In most cases when a dispute arises regarding income or medical benefits, and such dispute falls under the jurisdiction of DWC, a party will request a BRC to attempt to resolve the disputed issue(s). 28 TAC Sections 141.1 and 142.5. If any disputes over issues raised at the BRC remain unresolved, the BRO will write a report detailing each issue not resolved. The BRC report establishes the issues to be resolved at the CCH that follows the BRC. An issue that was not raised at a BRC, was resolved by agreement of the parties at the BRC, or was not identified in the BRC report may not be considered by an ALJ at the CCH which follows unless:
The parties unanimously agree to add the issue(s). TLC Section 410.151(b)(1) and 28 TAC Section 142.7(b)(3) and (d); or The ALJ determines that there is good cause to add the issue(s). TLC Section 410.151(b)(2) and 28 TAC 142.7(e); or The issue(s) were actually litigated by the parties. APD 041286.
Following the CCH, the ALJ will issue a decision resolving the disputed issues properly raised. Either party may appeal the ALJ's decision to DWC's AP. The AP's jurisdiction is generally limited to review of the issues decided at the CCH. The AP will not typically consider issues raised for the first time on appeal. APD 040259.
The ALJ may only decide the issues which the parties have properly raised. Subject to the exceptions addressed below, an ALJ may not add new issues on the ALJ's own motion. Where there was no stated issue regarding the DOI, the parties stipulated to the claimed DOI for purposes of venue and coverage, and the DOI was not actually litigated, it was error for the ALJ to determine a different DOI than that stipulated to by the parties for purposes of venue and coverage. APD 001679.
The BRC report indicated that the sole issue in dispute in this case was whether the IE was entitled to LIBs based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with TLC Section 408.161. The ALJ made a finding that the IE did not suffer from imbecility as a naturally flowing result of his compensable traumatic brain injury. The AP noted that this finding was supported by the evidence. However, the ALJ then determined the IE was entitled to LIBs because he found that the IE had the permanent and total loss of use of both feet at or above the ankle as a result of the compensable injury. The AP noted that TLC Section 410.151(b) and 28 TAC Section 142.7 provide that issues not considered at a BRC may only be added by consent of the parties or upon a showing of good cause. While consent may be inferred if the parties actually litigated an issue not otherwise identified, the record in this case did not establish that the parties litigated whether the IE was entitled to LIBs based upon the theory of the total and permanent loss of use of both feet at or above the ankle. The specific issue before the ALJ as certified and amended at the CCH was whether the IE was entitled to LIBs based on a physically traumatic injury to the brain resulting in incurable imbecility. Therefore, the AP stated that the ALJ’s determination that the IE was entitled to LIBs based upon the total and permanent loss of use of both feet at or above the ankle exceeded the scope of the issue before him. The AP reversed the ALJ’s determination that the IE was entitled to LIBs, and rendered a new decision that the IE was not entitled to LIBs based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with TLC Section 408.161. APD 170558.
In some cases, it is necessary for the ALJ to make findings of fact on issues not certified for resolution at the CCH. This is so because the certified issues cannot be decided without first making certain threshold determinations. The following are some examples:
Before benefits may be awarded, it must first be established that the IE has sustained a compensable injury. "Compensable injury" means an injury that arises out of and in the course and scope of employment for which compensation is payable under the Act. TLC Section 401.011(10). Whether the IE has sustained a compensable injury is a threshold issue. APD 021303.
The only issue at the CCH was who was the IE's employer on the DOI. The ALJ made findings of fact that on the date of the claimed injury, IC 1 had coverage for employer 1, and that IC 2 had coverage for employer 2. The ALJ determined that employer 2 was the IE's employer on the DOI, and he ordered IC 2 to pay benefits. IC 1 had elected to limit its participation in the CCH because of issues involving this IC that were in litigation. IC 1 appealed the ALJ's finding that it provided coverage for employer 1, which was ultimately found not to be the IE's employer, on the DOI. The only disputed issue at the CCH involved who was the IE's employer on the DOI, however, to award benefits, the ALJ must determine the IC that had coverage for the IE's employer on the DOI. See 28 TAC Section 142.16(a)(2). It was not error for the ALJ to make findings of fact regarding the identity of the two employers' carriers on the DOI. The ALJ based his determination that IC 1 had coverage for employer 1 on a certificate of insurance which was in evidence. APD 042246.
MMI &IR/Extent of Injury.
Despite the fact that the issue concerned the IE's IR only, it was not error for the ALJ to determine a date of MMI. MMI is a threshold issue to finding an IR. When IR is the stated issue, MMI is of necessity a part of that issue, unless specifically resolved or stipulated to. APD 93328.
To add an issue which was not raised at the BRC, a party must timely file a request to add the issue pursuant to 28 TAC Section 142.7(e), and the ALJ must find that good cause exists to add the issue. APD 992759. Whether good cause exists to add additional issues is within the discretion of the ALJ, and that determination will not be reversed on appeal unless there is a finding that the ALJ abused his or her discretion in adding, or refusing to add, the additional issue(s) not listed in the BRC report. APD 031719.
Raising Additional Disputes Prior to the Hearing
By Unanimous Consent
Under 28 TAC Section 142.7(d), effective January 7, 2019: parties may, by unanimous consent, submit for inclusion in the statement of disputes one or more disputes not identified as unresolved in the BRO's report. Additional disputes submitted by consent shall:
• be made in writing;
• identify the dispute and explain the party's position on it;
• be signed by all parties;
• be sent to the division no later than 10 days before the hearing; and
• explain why the issue was not raised earlier.
By Permission of the ALJ
Under 28 TAC Section 142.7(e)(1), effective January 7, 2019: if requester is an IC, an IC representative, an IE represented by an attorney, or an IE assisted by OIEC, an additional dispute may be raised provided that the request:
• is in writing;
• identifies and describes the dispute or disputes;
• states the reason for the request;
• is sent to DWC no later than 15 days before the hearing;
• is delivered to all other parties, as provided by 28 TAC Section 142.4; and
• the ALJ determines that good cause exists to add the issue.
An IE who is neither represented by an attorney nor assisted by OIEC may request additional disputes to be included in the statement of disputes by permission of the ALJ by contacting DWC in any manner no later than 15 days before the hearing. 28 TAC Section 142.7(e)(2), effective January 7, 2019.
Good Cause Established.
A BRC was held on September 21, 1999, regarding the IE's entitlement to sixth quarter SIBs. A BRC report was distributed to the parties on September 24, 1999, indicating that a CCH would be held on November 15, 1999, to determine whether the IE is entitled to SIBs for the disputed quarter. On October 5, 1999, the IE made a written request to add the issue of whether the IC had waived the right to contest her entitlement to SIBs for the disputed quarter. The written request contained the IE's reasons for adding the issue. The IE stated that, at the BRC, she had incorrectly relied on a facsimile copy of her SIBs application that was filed with the IC on July 12, 1999, instead of a green card indicating that the IC received the SIBs application on June 22, 1999. As of October 12, 1999, the ALJ's notes indicated that no response to the request had been received from the IC. On October 14, 1999, the ALJ issued an order, upon a finding of good cause, adding the waiver issue. On October 28, 1999, the IC filed a motion opposing the IE's request to add the waiver issue. At the CCH, the IC renewed its objection to the addition of the waiver issue, and the ALJ reaffirmed her ruling, stating that good cause had been shown and that the IC had received adequate notice of the additional issue to prepare to litigate it. The ALJ properly added the issue because the IE timely filed a written request which identified and described the dispute, stated the reason for the request, delivered a copy of the request to the other parties, and the ALJ found good cause to add the issue and that finding was supported by the record. APD 992759.
Good Cause Not Established.
A BRC was held and the issues of compensability and disability were certified as the issues to be resolved at the CCH. The IC requested the addition of an issue regarding a BFOE. The IC stated that it had good cause to add the BFOE issue because the employer's BFOE was not tendered to the IE until after the BRC. The evidence indicated that the alleged BFOE was made to the IE more than 30 days prior to the CCH, and the IC failed to submit a written request for addition of the issue no later than 15 days prior to the CCH. The request for the addition of the issue was properly denied. APD 033140.
Good Cause Finding Not Required.
If an issue is actually discussed and left unresolved at the BRC, and the BRC report does not list the issue as one to be resolved at the CCH, no good cause need be shown to have the issue added. This is so because the issue is not an "additional" issue within the meaning of 28 TAC Section 142.7. APD 972651.
The IE's beneficiary timely filed a response to the BRC report requesting that the issue of carrier waiver be added. In the request to add the issue, the beneficiary stated that the issue of waiver was discussed at the BRC but that the BRO failed to list the issue as one to be resolved at the CCH. In its reply to the beneficiary's response to the BRC report, the IC acknowledged that the issue of waiver was discussed at the BRC. The ALJ denied the request to add the waiver issue because he felt that the decision in Continental Casualty Company v. Downs, 81 S.W.3d 803 (Tex. 2002) was never intended to be applied retroactively and it was, therefore, a "nonissue." The ALJ erred in failing to add the issue because it was discussed at the BRC, and the beneficiary complied with the procedural requirements of 28 TAC Section 142.7(e). APD 002210.
Issue(s) Actually Litigated.
The stated issue from the BRC report involved whether the IE's compensable injury extended to specific diagnoses of herniated discs and radiculopathy involving the cervical spine. The ALJ determined that the IE's compensable injury did not extend to include the specific conditions listed in the issue, but that it did extend to include a cervical strain. The IC appealed, asserting that the ALJ erred in determining that the compensable injury extends to and includes a cervical strain because that was not a listed condition in the issue. The ALJ did not commit reversible error because the record and evidence from the CCH showed that what was actually litigated was generally whether the compensable injury extends to include an injury to the cervical spine. APD 042740.
The issues in the BRO report were MMI and IR, and the ALJ issued a decision on only those two issues. The AP found that the additional issues of extent of injury and whether a second DD was properly appointed were both actually litigated by the parties in the CCH. The case was thus remanded back to the ALJ for her to add those issues and make a decision. APD 182017.
Condition Within Extent-of-Injury Issue Actually Litigated.
Among the conditions in the extent-of-injury issue in the BRC report and as agreed upon and actually litigated at the CCH was spondylolisthesis at C5-6. The ALJ omitted that condition from the decision and order. The AP cited TLC Section 410.168, which provides that the ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. The AP reversed and remanded the case back to the ALJ to make a determination on the compensability of the omitted condition. APD 181376. See also APD 182119.
Issue Not Actually Litigated.
The stated issues at the CCH involved the identity of the IE's employer for purposes of the Texas Workers' Compensation Act on the date of his compensable injury, and whether the IE had disability as a result of his compensable injury. In addition to making findings regarding the listed issues, the ALJ further made findings regarding the IE's PIE. On appeal, the IC asserted that the ALJ erred as a matter of law by making findings regarding PIE. The issue of PIE was not before the ALJ nor was it actually litigated by the parties. The ALJ's findings regarding PIE were stricken from the decision and order. APD 041283.
The BRC report certified issues of extent of injury, MMI, IR, and disability for the CCH. At the CCH, the parties agreed to withdraw the extent-of-injury issue and litigated only the issues of MMI, IR, and disability. In the ALJ’s decision, in addition to her determinations on the issues of MMI, IR, and disability, she made a determination on the extent-of-injury issue that had been withdrawn at the CCH. The AP reversed and rendered by striking the ALJ’s extent-of-injury determination, since it exceeded the scope of the disputed issues. APD 182544.
Standard of Review
The AP will review an ALJ's finding of good cause to add an additional issue, or finding of no good cause when excluding an additional issue, on an abuse-of-discretion standard. APD 971626.