Where an IE is represented by an attorney, a signed written agreement made in accordance with TLC Section 410.029 is binding on the IC and the IE through the conclusion of all matters relating to the claim unless the agreement is set aside by DWC or a court based upon a finding of:
- Newly discovered evidence; or
- Other good and sufficient cause.
NOTE: This standard applies to ICs whether the IE is represented or unrepresented.
A signed written agreement is binding through the conclusion of all matters relating to the claim of an unrepresented IE unless DWC, on a finding of good cause, relieves the IE from the effects of the agreement. TLC Section 410.030; 28 TAC Section 147.4; APD 002152.
An oral agreement reached during a CCH, which is preserved on the record, is effective and binding on the parties on the date made in the same manner as a signed written agreement, subject to the provisions of 28 TAC Section 147.4(d)(1) and (2); 28 TAC Section 147.4(c); APD 050265; APD 041843.
ICs and Represented IEs.
The IE signed an agreement concerning her MMI date and IR. Eight months later, the IE sought to be relieved from the effects of the agreement based upon fraudulent conduct by her attorney. Specifically, the IE asserted that the agreement had been signed by the IC prior to her signing it, and that she had signed it on the hood of her attorney's car without being advised of the binding effects of such an agreement. The ALJ determined that the IE failed to prove that fraud existed, and that the IE was bound by the agreement. Whether fraud exists is a question of fact for the ALJ to decide. The ALJ's determination that there had been no fraud or misrepresentations by the IE's attorney was sufficiently supported by the evidence. APD 961151.
Newly Discovered Evidence.
At a BRC, the IE and IC entered into a written agreement that the compensable injury included the IE's heart and that the IC had waived the right to contest compensability. A year later the IC attempted to dispute the claimed injuries, asserting that it had newly discovered evidence that the IE had a congenital heart condition. The evidence showed that the IC was aware of the claimant's heart condition, although described by a different name, prior to entering into the agreement. The IC was not relieved from the effects of the agreement based upon newly discovered evidence. Texas Workers' Compensation Insurance Fund v. Martinez, 30 S.W.3d 490 (Tex. App.-Texarkana 2000, pet. denied); APD 970704.
The IE signed an agreement resolving the issues of disability, MMI, and IR. After signing the agreement, the IE was diagnosed as having a L5-S1 disc herniation. The IE sought relief from the effects of the agreement based upon this newly discovered evidence. The ALJ found in favor of the IE and relieved her from the effects of the agreement. The AP found that the ALJ had abused her discretion in concluding that the IE was relieved from the effects of the agreement and reversed and rendered a decision that she was not relieved from the effects of the agreement. The AP held that in making a determination of what constitutes good cause, the ALJ should consider whether the evidence was unknown prior to signing the agreement, whether the failure to discover the evidence was due to a lack of diligence, whether the evidence was so material that had it been known it would have probably changed the outcome, and whether it was cumulative, corroborative, collateral, or impeaching. Merrifield v. Seyferth, 408 S.W.2d 558 (Tex. Civ. App.-Dallas 1966, no writ). Because there was no evidence that the ALJ considered any of the above factors, the ALJ abused her discretion and the AP reversed and rendered a decision that the agreement was final and binding and that there was not good cause for relieving the IE from the effects of the agreement. APD 992397.
Other Good and Sufficient Cause.
At the CCH, the IE was represented by an attorney, and the parties entered into an agreement on the issues of compensability, timely reporting, disability, extent of injury, MMI, and IR. That agreement was memorialized in a D&O issued by the ALJ after the CCH. The IE appealed the ALJ’s D&O, contending that she did not understand the agreement, that her attorney told her not to speak during the CCH, and that she was not given an opportunity to present her evidence. While an interpreter was present at the CCH to translate for the IE, the interpreter incorrectly translated portions of the parties’ agreement on extent of injury, as well as specific sections of the Labor Code, the ending date of disability, and other terminology. Throughout the CCH, the IE interrupted with questions regarding the issues in dispute. Given these problematic issues, the AP reversed and remanded the case back to the ALJ to make a determination on whether good cause existed to set aside the parties’ agreement. APD 111432.
At a CCH on remand, the IE did not appear, but his attorney did and entered into an oral agreement with the IC. The IE appealed the D&O issued by the ALJ following the CCH, requesting to be relieved from the effects of the agreement. The IE’s appeal reflected that, had he been present at the CCH, he would not have agreed to the resolution of the issues found in the D&O. The AP cited the binding effect of oral agreements under 28 TAC Section 147.4(c), but also noted that, even where the parties make an agreement on the record at a CCH, an ALJ may not permit an agreement to be made that is contrary to the 1989 Act and DWC rules. The AP found good and sufficient cause to set aside the oral agreement made at the CCH considering that the IE was not present at the CCH on remand, and there was no explanation requested by the ALJ or provided by the IE’s attorney as to why the IE was not present. Additionally, the AP found that the ALJ erred in the D&O by including language in the agreement that was not read into the record at the CCH, including a statement of the agreement on MMI and IR when those issues were not resolved on the record of the CCH. The AP rendered a decision setting aside the ALJ’s D&O. APD 150452.
The standard for relieving an unrepresented IE from the effects of an agreement is less than that for an IC or represented IE. APD 002152. An agreement is binding on an unrepresented IE unless DWC, for good cause, relieves the IE from the effects of the agreement. TLC Section 410.030(b); 28 TAC Section 147.4(d)(2).
Good Cause Found.
The IE, who was not represented by an attorney, and the IC entered into a written agreement that the IE sustained a compensable rotator cuff strain, and that he suffered no disability. The IE testified at the CCH that he did know he had a rotator cuff tear at the time he signed the agreement. The IE testified that he signed the agreement because when the IC's representative told the BRO they would pay for a shoulder strain, the BRO told the IC's representative, "No, whatever he needs." The IE thought that would include surgery if necessary. The ALJ determined that there was good cause to relieve the IE from the effects of the agreement because he did not understand that the IC was only accepting a shoulder strain based upon the BRO's statement to the IC's representative that the IC would be liable for whatever the IE needed regarding his injury, and that, at the time the parties entered into the agreement, the IE did not know the full extent of his injury because he had not yet been diagnosed with a rotator cuff tear. Whether good cause exists is a question of fact for the ALJ to resolve. APD 010641.
No Good Cause Found.
The IE and IC signed an agreement which stated that the IE's compensable injury did not extend to include the lumbar spine. At the time the IE entered into the agreement, he was not represented by an attorney. The IE argued that he should be relieved from the effects of the agreement because he was confused about the nature of the injury, he had ineffective assistance by the ombudsman, there was a lack of consideration for the agreement, and he was under financial pressure to sign the agreement. Evidence was presented that both the ombudsman and the BRO explained the agreement to the IE before he signed it. The ALJ determined that good cause did not exist to relieve the IE from the effects of the agreement. Whether good cause exists is a question of fact for the ALJ to resolve. APD 033267.