Election of Remedies Archives

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on February 28, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the appellant/cross-respondent (claimant) did not sustain a compensable injury on (date of injury); (2) the respondent/cross-appellant (carrier) is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; (3) the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under Community Health Development, Inc.; and (4) because the claimant did not sustain a compensable injury, there is no disability.

The claimant appealed the hearing officer’s determinations arguing that the same are contrary to the preponderance of the evidence. The carrier responded, urging affirmance of the hearing officer’s determinations regarding compensability and timely reporting of the claimed injury.

Conditioned upon a timely appeal having been filed by the claimant, the carrier appealed the hearing officer’s determination that the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under Community Health Development, Inc. The appeal file does not contain a response from the claimant to the carrier’s conditional appeal.

DECISION

Affirmed as reformed.

The claimant, a truck driver, testified that he injured his neck and back on (date of injury), while manipulating a heavy mail container onto a trailer.

TIMELY REPORTING OF INJURY

The hearing officer’s determination that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001 is supported by sufficient evidence and is affirmed.

ELECTION OF REMEDIES

The hearing officer’s determination that the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under Community Health Development, Inc. is supported by sufficient evidence and is affirmed.

COMPENSABILITY

In evidence is the Benefit Review Conference (BRC) Report which lists the following compensability issue:

Did the [c]laimant sustain a compensable injury on (date)?

At the CCH the parties initially agreed to the form of the compensability issue, as stated on the BRC report and entered into stipulations regarding the identity of the claimant’s employer and the employer’s workers’ compensation insurance carrier as of (date of injury); however, during the proceeding, the parties advised the hearing officer that the correct date of the claimed injury was actually (date of injury), rather than (date of injury), and that the parties had so agreed at the BRC. The hearing officer responded, acknowledging that each time she had mentioned June 19 to that point in the hearing, the correct date which should have been recited was (date of injury). Nevertheless, the hearing officer’s decision lists the compensability issue exactly as stated in the BRC report and the parties’ stipulations as reflected by Findings of Fact No. 1.B and 1.C reflect a claimed injury date of (date of injury). We therefore reform Finding of Fact No. 1.B. to read: On (date of injury), the claimant was the employee of Southern Mail Service, Inc., employer. We further reform Finding of Fact No. 1.C. to read: On (date of injury), the employer provided workers’ compensation insurance through National Interstate Insurance Company, carrier.

In her Finding of Fact No. 3, the hearing officer stated:

[The] [c]laimant did not sustain damage or harm to the physical structure of his body in the course and scope of his employment on (date of injury).

In her Conclusion of Law No. 3 and in the Decision section of her Decision and Order, the hearing officer stated:

[The] [c]laimant did not sustain a compensable injury on (date of injury).

In the first paragraph of her Decision and Order, the hearing officer stated:

[The] [c]laimant did not sustain a compensable injury on (date of injury)[.]

We note further that the hearing officer refers to the date of the claimed injury throughout the Discussion section of the Decision and Order as (date of injury).

The hearing officer’s determination regarding compensability is supported by sufficient evidence; however, because the date of the claimed injury, as agreed by the parties, was (date of injury) rather than (date of injury), we reform Conclusion of Law No. 3, the Decision and the first paragraph of the Decision and Order to conform to the evidence and to provide that the claimant did not sustain a compensable injury on (date of injury). We further reform Finding of Fact No. 3 to provide that the claimant did not sustain damage or harm to the physical structure of his body in the course and scope of his employment on (date of injury). The hearing officer’s determination, as reformed, that the claimant did not sustain a compensable injury on (date of injury), being supported by sufficient evidence, is affirmed.

DISABILITY

The hearing officer’s determination that the claimant had no disability is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm as reformed the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury).

We affirm the hearing officer’s determination that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001.

We affirm the hearing officer’s determination that the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under Community Health Development, Inc.

We affirm the hearing officer’s determination that because there is no compensable injury, there is no disability.

The true corporate name of the insurance carrier is NATIONAL INTERSTATE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

K. Eugene kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 2, 2014, in San Antonio, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent (claimant) did sustain a compensable injury on [date of injury], ; (2) the claimant did have disability resulting from an injury sustained on [date of injury], beginning August 28, 2012, and continuing through the date of the CCH; (3) the appellant (carrier) is not relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; and (4) the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under his group health insurance.

The carrier appealed the hearing officer’s determinations that the claimant sustained a compensable injury and had disability beginning August 28, 2012, and continuing through the date of the CCH, arguing that these determinations were not supported by legally or factually sufficient evidence. The carrier additionally appealed the hearing officer’s determination that the carrier is not relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001. Further, the carrier argued that the hearing officer’s determination that the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under his group health insurance policy was erroneous. The claimant responded, urging affirmance of the disputed determinations.

DECISION

Affirmed.

Section 410.203(b) was amended effective September 1, 2011, to allow the Appeals Panel to affirm the decision of a hearing officer as prescribed in Section 410.204(a-1). Section 410.204(a) provides, in part, that the Appeals Panel may issue a written decision on an affirmed case as described in subsection (a-1). Subsection (a-1) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearing officer if the case: (1) is a case of first impression; (2) involves a recent change in law; or (3) involves errors at the CCH that require correction but do not affect the outcome of the hearing. This case is a situation that requires correction but does not affect the outcome of the hearing.

The claimant testified that he was stepping into a “basket” at work on [date of injury], when his right knee twisted and he heard a loud pop as he stepped down on the rail of a platform. There was evidence that the claimant suffered from pre-existing right knee osteoarthritis and a lateral meniscus tear prior to the date of injury. However, as noted by the hearing officer, the claimant was able to return to work full duty prior to the [date of injury]. The hearing officer noted that she found the claimant’s testimony credible that he twisted his right knee and heard a loud pop while working on [date of injury]. Whether the claimant sustained a compensable injury and had resulting disability were questions of fact for the hearing officer to decide. The hearing officer specifically found that the claimant sustained damage or harm to the physical structure of his body in the course and scope of his employment on [date of injury],and that due to the injury he was unable to obtain and retain employment at wages equivalent to his pre-injury wage beginning August 28, 2012, and continuing through the date of the CCH. The hearing officer’s determinations that the claimant sustained a compensable injury on [date of injury], and had disability beginning August 28, 2012, and continuing through the date of the CCH are supported by sufficient evidence and are affirmed.

The 1989 Act generally requires that an injured employee or person acting on the employee’s behalf notify the employee’s employer of the injury no later than 30 days after the injury occurred. Section 409.001. The burden is on the claimant to prove the existence of notice of injury. Travelers Insurance Company v. Miller, 390 S.W.2d 284 (Tex. Civ. App.-El Paso 1965, no writ). In the present case, there was conflicting evidence as to whether or not the claimant gave timely notice of an [date of injury], , injury to his employer. It was within the province of the hearing officer to resolve the conflicting evidence. The hearing officer’s determination that the carrier is not relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001 is supported by sufficient evidence and is affirmed.

The hearing officer specifically found that the claimant did not make an informed election to receive health insurance benefits in lieu of workers’ compensation benefits. The hearing officer’s determination that the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under his group health insurance is supported by sufficient evidence and is affirmed.

In her discussion of the evidence the hearing officer stated, in part, that “[i]n Valley Forge Ins. Co. v. Austin, 65 S.W.3d 371 [(Tex. App.-Dallas 2001, pet. denied with per curiam opinion)], the Court of Appeals determined that election of remedies is no longer a viable defense under the 1989 Act.” We write to clarify that although in Valley Forge Insurance Company v. Austin, supra, the court of appeals held the election of remedies affirmative defense was abolished by Section 409.009 because it permitted subclaims by insurance carriers and health care providers as a means to prevent double recoveries, the Texas Supreme Court affirmed the underlying decision on the merits for other reasons and stated it left open the question of whether Section 409.009 abolished the election of remedies affirmative defense. See Valley Forge Insurance Company v. Austin, 105 S.W.3d 609 (Tex. 2003). See also Appeals Panel Decision 030473, decided April 15, 2003.

SUMMARY

We affirm the hearing officer’s determination that the claimant did sustain a compensable injury on [date of injury].

We affirm the hearing officer’s determination that the claimant did have disability resulting from an injury sustained on [date of injury], beginning August 28, 2012, and continuing through the date of the CCH.

We affirm the hearing officer’s determination that the carrier is not relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RICHARD J. GERGASKO, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 5, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the disputed issues before him, the hearing officer determined that: (1) the appellant/cross-respondent (claimant) was in the course and scope of her employment when involved in a motor vehicle accident (MVA) on [date of injury] (issue resolved by the parties stipulation at the CCH); (2) the claimant is barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group health insurance policy; (3) the respondent/cross-appellant (self-insured) is not relieved of liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003 (issue added at the request of the self-insured and upon a finding of good cause); and (4) the self-insured’s second Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1), filed with the Division on February 13, 2012, was based on newly discovered evidence that could not reasonably have been discovered at an earlier date, but the self-insured failed to exercise due diligence in asserting that defense and the self-insured’s defense on compensability is limited to the election of remedies defense listed on the first PLN-1 that was filed with the Division on December 1, 2009 (issue added by the hearing officer). We note that Issue 4, which was added by the hearing officer, refers to an Amended PLN-1 filed on February 13, 2012; however, the Amended PLN-1 in evidence is date-stamped February 6, 2012.

The claimant appealed the hearing officer’s determination on election of remedies, contending that she did not make an informed and voluntary choice to use her group health insurance policy for the injuries sustained in the [date of injury], MVA. The claimant also contends that the Amended PLN-1 filed on February 6, 2012 (which asserted late filing of a claim and election of remedies defenses) replaced and superseded the December 1, 2009, PLN-1 (which only asserted election of remedies defense). Because the hearing officer found that the Amended PLN-1 filed on February 6, 2012, was not filed after the exercise of due diligence, the claimant asserts then the self-insured also waived the defense of election of remedies included in the February 6, 2012, Amended PLN-1. The self-insured responded to the claimant’s appeal, urging affirmance of the election of remedies determination and objecting to the raising for the first time on appeal, the argument that the self-insured waived the defense of election of remedies by filing the Amended PLN-1.

The self-insured cross-appealed the hearing officer’s finding that the self-insured did not exercise due diligence in asserting the defense of late filing of a claim within one year and the hearing officer’s determinations that the carrier is not relieved of liability because of the claimant’s failure to timely file a claim with the Division within one year and that the self-insured’s defense on compensability is limited to the election of remedies defense listed on the December 1, 2009, PLN-1. The claimant responded to the self-insured’s cross-appeal, urging affirmance of the adverse determinations to the self-insured.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The appeal file in this case indicates there is only one compact disc (CD) for the CCH and the appeal file does contain one CD. However, the CD in the appeal file does not contain a complete recording of the CCH. The CD recording was stopped during the claimant’s testimony when the hearing was recessed for a break. The CD recording was not turned back on after the recess or, for whatever reason, did not record after the recess. The hearing officer’s decision indicates that not only did the claimant testify at the CCH, but also [SH], [CT], [RM], and [PW] testified at the CCH. The file indicates that there was no court reporter and the file does not contain a transcript, or tape recording of the CCH proceeding. Consequently, we reverse and remand this case to the hearing officer for reconstruction of the complete CCH record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is (a governmental entity self-insured) and the name and address of its registered agent for service of process is

[DIRECTOR]

[ADDRESS]

[CITY], TEXAS [ZIP CODE].

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on January 13, 2011. The hearing officer resolved the disputed issue by deciding that the respondents (claimant beneficiaries) are not barred from pursuing Texas workers’ compensation benefits because of an election by the decedent to receive benefits under the Workers’ Compensation Act of the state of Mississippi.

The appellant (carrier) appealed, contending that the hearing officer erred in deciding that the claimant beneficiaries are not barred from pursuing Texas workers’ compensation benefits. The claimant beneficiaries responded, urging affirmance.

DECISION

Reversed and rendered.

The parties stipulated that on __________, the decedent sustained a compensable injury resulting in his immediate death. It was undisputed that the decedent was living in the state of Texas at the time he was hired by his employer but that he was hired on April 29, 2009, in Mississippi and was assigned to a terminal in Mississippi. The decedent’s wife testified that the decedent’s supervisor was in Mississippi.

The decedent’s wife testified that she received benefits paid under Mississippi workers’ compensation law shortly after her husband’s death. She testified she did not receive any benefit checks until she returned the paperwork for filing a workers’ compensation claim in Mississippi. Additionally, she testified that she did file for Mississippi workers’ compensation benefits. In evidence is an agreement, dated April 29, 2009, and signed by the decedent, which stated that the employer and the decedent mutually agree to be bound by the workers’ compensation laws of the state of Mississippi.

Section 406.071 entitled Extraterritorial Coverage, provides that an employee working in another jurisdiction is entitled to Texas workers’ compensation benefits if the injury would have been compensable in Texas, and if the employee has “significant contacts” in Texas or the employment is principally located in Texas. Significant contacts is further defined as meaning that the employee was hired or recruited in Texas and was injured not later than one year after the date of hire or had worked in Texas “for at least 10 working days during the 12 months preceding the date of injury.” The evidence established that the decedent was injured more than one year after the date of hire and no evidence was presented regarding the number of days the decedent worked in Texas during the 12 months preceding the date of injury. Accordingly, the claimant beneficiaries failed to establish “significant contacts” in Texas or principle employment in Texas as required by Section 406.071.

Section 406.075 provides:

(a)An injured employee who elects to pursue the employee’s remedy under the workers’ compensation laws of another jurisdiction and who recovers benefits under those laws may not recover under this subtitle.

(b)The amount of benefits accepted under the laws of the other jurisdiction without an election under Subsection (a) shall be credited against the benefits that the employee would have received had the claim been made under this subtitle.

In some instances a claimant or claimant beneficiary may receive benefits from another state without making an election to do so. In such a case, the claimant or claimant beneficiary may still pursue benefits in Texas and the amount received in benefits from the other state will be subtracted from the benefits paid under Texas law. See Appeals Panel Decision 032459, decided October 29, 2003.

In reviewing a “great weight” challenge, we must examine the entire record to determine if: (1) there is only “slight” evidence to support the finding; (2) the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust; or (3) the great weight and preponderance of the evidence supports its nonexistence. See Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

In the instant case, the hearing officer specifically found that the “claimant” received no benefits under the workers’ compensation law of Mississippi. In the Discussion portion of the decision and order, the hearing officer commented that the “[d]eceased sustained a fatal injury resulting in his instantaneous death, and no benefits were paid to [d]eceased.” As previously discussed, the claimant beneficiary testified that she filed for benefits in Mississippi and received benefits paid under the provisions of the Mississippi workers’ compensation law. There was no evidence to the contrary. If the hearing officer’s finding that the “claimant” received no benefits under the workers’ compensation law of Mississippi refers to the claimant beneficiaries that finding is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. If the hearing officer’s finding is a reference to the decedent, that finding is correct. However, the fact that the decedent received no benefits under the workers’ compensation law of Mississippi is not determinative of the outcome under the facts of this case pursuant to Section 406.075.

As previously noted, the claimant beneficiaries failed to establish “significant contacts” in Texas or principle employment in Texas as required by Section 406.071. Additionally, the evidence establishes that the claimant beneficiaries filed to request workers’ compensation benefits from the state of Mississippi and received workers’ compensation benefits from the state of Mississippi. Accordingly, we reverse the hearing officer’s determination that the claimant beneficiaries are not barred from pursuing Texas workers’ compensation benefits and render a new decision that the claimant beneficiaries are barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under the Workers’ Compensation Act of the state of Mississippi.

The true corporate name of the insurance carrier is LIBERTY INSURANCE CORPORATION and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701.

Margaret L. Turner

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 9, 2010. With regard to the disputed issues the hearing officer determined that: (1) the appellant (claimant) does not have disability as a result of the ____________, compensable injury from February 18, 2010, through the date of the CCH; (2) the compensable injury does not include a disc protrusion at the L4-5 level of the lumbar spine or a bulge at the L5-S1 level of the lumbar spine; and (3) the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group health insurance policy.

The claimant appealed the disability and extent-of-injury determinations on a sufficiency of the evidence basis. The respondent (carrier) responded, urging affirmance.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The CCH was recorded on two compact discs (CDs). The CDs were blank. A handwritten notation on the CDs indicates that they constituted “2 hours total.” The file indicates that there was no court reporter and the file does not contain a transcript or a tape recording of the CCH proceeding. Consequently, we reverse and remand this case to the hearing officer for reconstruction of the CCH record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is SERVICE LLOYDS INSURANCE COMPANY and the name and address of its registered agent for service of process is

JOSEPH KELLEY-GRAY, PRESIDENT

6907 CAPITOL OF TEXAS HIGHWAY NORTH

AUSTIN, TEXAS 78755.

Thomas A. Knapp

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 28, 2010. The hearing officer resolved the disputed issues before her by determining that: (1) the appellant (claimant) was not in the course and scope of employment when involved in a motor vehicle accident (MVA) on ____________; (2) the respondent (carrier) is relieved of liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; (3) the carrier is relieved of liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of injury as required by Section 409.003; and (4) the claimant is barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group insurance policy. The claimant appealed the hearing officer’s determinations. The carrier responded, urging affirmance.

DECISION

Affirmed in part and reversed and rendered in part.

It was undisputed that the claimant was injured in a MVA on Saturday, ____________.

COURSE AND SCOPE OF EMPLOYMENT, TIMELY NOTICE TO EMPLOYER, AND

TIMELY FILING OF CLAIM FOR COMPENSATION

The hearing officer’s decision that the claimant was not in the course and scope of employment when involved in a MVA on ____________, is supported by sufficient evidence and is affirmed.

The hearing officer’s decision that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001 is supported by sufficient evidence and is affirmed.

The hearing officer’s decision that the carrier is relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Division within one year of injury as required by Section 409.003 is supported by sufficient evidence and is affirmed.

ELECTION OF REMEDIES

Election of remedies is an affirmative defense raised by the carrier to the claimant’s claim under the Act. See Allstate Ins. Co. v. Perez, 783 S.W.2d 779 (Tex. App.—Corpus Christi 1990, no writ). The carrier has the burden of proof on this issue. See Am. Cas. Co. v. Martin, 97 S.W.3d 679 (Tex. App.—Dallas 2003); Appeals Panel Decision (APD) 032585, decided November 6, 2003.

In Bocanegra v. Aetna Life Insurance Company, 605 S.W.2d 848 (Tex. 1980), the Texas Supreme Court held that an election of remedies is only made as a result of an (1) informed choice (2) between two rights, remedies, or states of fact that (3) are so inconsistent (4) as to constitute manifest injustice. Also, the Bocanegra case makes clear that an election of remedies defense should be imposed sparingly, reserved for instances where the “assertion of a remedy, right, or state of facts is so unconscionable, dishonest, contrary to fair dealing, or so stultifies the legal process or trifles with justice or the courts as to be manifestly unjust.” Id. at 851. See APD 990525, decided April 16, 1999.

In Valley Forge Insurance Company v. Austin, 65 S.W.3d 371 (Tex. App.—Dallas 2001, pet. denied with per curiam opinion), the court of appeals held the election of remedies affirmative defense was abolished by Section 409.009 because it permitted subclaims by insurance carriers and health care providers as a means to prevent double recoveries. The Texas Supreme Court affirmed the underlying decision on the merits for other reasons and stated it left open the question of whether Section 409.009 abolished the election of remedies affirmative defense. See Valley Forge Insurance Company v. Austin, 105 S.W.3d 609 (Tex. 2003). See also APD 030473, decided April 15, 2003.

The claimant testified that on the Monday, following the weekend MVA, he went into the office and told the general manager and assistant general manager that he had been hurt and needed to see the doctor. However, there was conflicting evidence from the employer that although the claimant stated that he was hurt in a MVA over the weekend, the claimant did not tell the employer it was a work-related injury.

The claimant testified that he was told by his employer to go to the hospital emergency room and that when he asked how he would pay for the visit, was told by his employer to use his group health insurance and that it would all be sorted out later. The claimant further testified that he paid for his medical treatment with his group health insurance although he objected to doing so many times with his employer. The claimant also testified that the assistant general manager told him “[d]on’t worry. We’ll work it out . . . . You just take care of your health first. That’s all that matters. All this will work out in the end . . . . He just kept telling me that.”

The claimant testified, which was supported by his answers to the carrier’s interrogatories, that he obtained a civil suit settlement from the insurance carrier of the driver of the pickup truck that rear-ended him. He stated that an amount of $7,920.00 each was paid to his attorney handling the claim, to his group health insurance carrier, and to him.

We hold that the evidence in this case does not meet the standards set forth in Bocanegra, supra, for imposing a binding election, and we accordingly reverse the hearing officer’s decision that the claimant is barred from pursuing Texas workers’ compensation benefits based on an election to receive benefits under a group health insurance policy, and we render a decision that the claimant is not barred from pursuing Texas workers’ compensation benefits based on an election of remedies.

SUMMARY

We affirm the hearing officer’s decision that the claimant was not in the course and scope of employment when involved in a MVA on ____________.

We affirm the hearing officer’s decision that the carrier is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001.

We affirm the hearing officer’s decision that the carrier is relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Division within one year of injury as required by Section 409.003.

We reverse the hearing officer’s decision that the claimant is barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group insurance policy and render a new decision that the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group insurance policy.

The true corporate name of the insurance carrier is INDEMNITY INSURANCE COMPANY OF NORTH AMERICA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 5, 2010. With regard to the disputed issues before her the hearing officer determined that the appellant (claimant) did not sustain a compensable injury on __________, and because there is no compensable injury the claimant did not sustain disability.

The claimant appealed, contending that she sustained a compensable injury in the course and scope of her employment and had sustained disability. The respondent (self-insured) responded, urging affirmance.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The CCH was recorded on two compact discs (CDs). The CDs enclosed in the file are blank. The file indicates that there was no court reporter and the file does not contain a transcript or a tape recording of the CCH proceeding. Consequently, we reverse and remand this case to the hearing officer for reconstruction of the CCH record. See Appeals Panel Decision (APD) 100512, decided June 3, 2010.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

RD, SUPERINTENDENT

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Thomas A. Knapp

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). This case returns following our remand in Appeals Panel Decision 092082, decided March 3, 2010, to reconstruct the record. A contested case hearing (CCH) on remand was held on April 5, 2010. In the original CCH held on November 30, 2009, the disputed issues before the hearing officer were:

(1)Did the appellant (claimant) sustain a compensable injury on ___________?

(2)Has the respondent (carrier) waived its right to dispute the compensability of such alleged injury?

(3)Did the claimant make an election of remedies by accepting benefits payable pursuant to a group health insurance policy?

(4)Has the carrier waived its right to raise the claimant’s alleged election of remedies as a defense?

(5)Did the claimant sustain disability from April 17 through July 10, 2006?

(6)Is the carrier liable for benefits accrued pursuant to 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3) resulting from the carrier’s alleged failure to timely dispute the claim or initiate payment of benefits?

The hearing officer’s determinations in the prior CCH that were not appealed and became final pursuant to Section 410.169 are as follows: (1) the claimant sustained a compensable injury on ___________; (2) the carrier waived its right to dispute the compensability of the claimant’s injury of ___________, on all bases, including the claimant’s alleged election of remedies; and (3) the claimant did not make an election of remedies by obtaining benefits payable pursuant to a group health insurance policy.

In the CCH on remand held April 5, 2010, the hearing officer again determined that: (1) the claimant sustained a compensable injury on ___________; (2) the carrier waived its right to dispute the compensability of the claimant’s injury of ___________; (3) the claimant did not make an election of remedies by obtaining benefits payable pursuant to a group health insurance policy; (4) the carrier waived its right to dispute compensability of the claimant’s injury on all bases, including the claimant’s alleged election of remedies; (5) the claimant sustained no disability as of the date of the CCH; and (6) Rule 124.3 does not apply to render the claimant entitled to income or medical benefits attributable to any alleged injury to her cervical and lumbar spine.

The claimant appealed, disputing the hearing officer’s determination that Rule 124.3 does not apply to render the claimant entitled to income or medical benefits attributable to any alleged injury to her cervical or lumbar spine. The claimant also appealed the hearing officer’s disability determination. The carrier responded, urging affirmance.

DECISION

Reversed and rendered.

RULE 124.3

At both the November 30, 2009, CCH and the hearing on remand on April 5, 2010, one of the issues was “[i]s [the] [c]arrier liable for benefits accrued pursuant to Rule 124.3, resulting from [the] [c]arrier’s alleged failure to timely dispute the claim or initiate payment of benefits?” We note that the issue was not limited to the liability described in Rule 124.3(a). Rule 124.3(a)(1) provides that if the carrier does not file a notice of denial by the 15th day after receipt of the written notice of the injury, the carrier is liable for any benefits that accrue and shall initiate benefits in accordance with this section. Rule 124.3(a)(2) provides that if the carrier files a notice of denial after the 15th day but on or before the 60th day after receipt of written notice of the injury: (A) the insurance carrier is liable for and shall pay all income benefits that had accrued and were payable prior to the date the carrier filed the notice of denial; and (B) the insurance carrier is liable for and shall pay for all medical services, in accordance with the 1989 Act and Texas Department of Insurance, Division of Workers’ Compensation Rules, provided prior to the filing of the notice of denial. Finally, Rule 124.3(a)(4) provides that the carrier commits a violation if, not later than the 15th day after it receives written notice of the injury, it does not begin to pay benefits as required or file a notice of denial of the compensability of a claim in the form and manner required by Rule 124.2.

Rule 124.3(b) provides that except as provided by subsection (c), the carrier waives the right to contest compensability or liability for the injury, if it does not contest compensability on or before the 60th day after the date on which the insurance carrier receives written notice of the injury. In unappealed findings, the hearing officer found that the carrier did not dispute the compensability of the claimed injury within 60 days of its first written notice of the claimed injury. Because the carrier did not dispute compensability of the claimed injury within 60 days of its written notice, the carrier is liable for benefits pursuant to Rule 124.3(b).

The hearing officer concluded that Rule 124.3 does not apply to render claimant entitled to income or medical benefits attributable to any alleged injury to her cervical or lumbar spine. Rule 124.3(e) provides that the waiver provision of Section 409.021 “does not apply to disputes of extent of injury.” To the extent that this conclusion can be interpreted as making a determination on the extent of the claimant’s compensable injury we strike the language “to her cervical or lumbar spine” as surplusage. We note that the extent of the claimant’s injury was not a disputed issue before the hearing officer.

In her discussion, the hearing officer stated that the claimant appeared to allege some form of carrier’s alleged waiver of its right to dispute the alleged extent of the compensable injury and referenced State Office of Risk Mgmt. v. Lawton, 295 S.W.3d 646 (Tex. 2009). In the present case, the carrier has denied compensability of the injury in its entirety, although it failed to do so within the 60 days of its first written notice of the claimed injury; therefore, the rationale in the Lawton decision does not apply to this case. The extent of the claimant’s compensable injury was not at issue in the CCH.

The specific issue in dispute as noted above was is the carrier liable for benefits accrued pursuant to Rule 124.3 resulting from the carrier’s alleged failure to timely dispute the claim or initiate payment of benefits. Although the hearing officer made a specific conclusion of law regarding Rule 124.3 as discussed above, she failed to include a specific determination in the decision portion of her decision and order regarding the disputed issue concerning Rule 124.3. Accordingly, we reverse the hearing officer’s decision as being incomplete and render a new decision that the carrier is liable for benefits accrued pursuant to Rule 124.3(b) resulting from the carrier’s alleged failure to timely dispute the claim or initiate payment of benefits.

DISABILITY

The disability issue in dispute before the hearing officer was limited to a specified time period from April 17 through July 10, 2006. The hearing officer found that although from April 17 through July 10, 2006, the claimant was unable to obtain and retain employment at wages equivalent to the wages she earned prior to ___________, the claimant’s incapacity was not the result of her compensable injury of ___________. That finding is supported by sufficient evidence. We affirm that portion of the hearing officer’s disability determination that the claimant did not sustain disability from April 17 through July 10, 2006. However, in the decision portion of the decision and order, the hearing officer determined that the claimant “has sustained no disability as of the date of the [CCH].” While consent may be inferred if the parties actually litigated an issue not otherwise identified, the record in this case does not establish that the parties litigated disability before April 17 or after July 10, 2006. Accordingly, we reverse the hearing officer’s determination that the claimant has sustained no disability as of the date of the CCH as exceeding the scope of the issue, and render a new determination that the claimant did not sustain disability from April 17 through July 10, 2006.

SUMMARY

We reverse the hearing officer’s decision as being incomplete and render a new decision that the carrier is liable for benefits accrued pursuant to Rule 124.3(b) resulting from the carrier’s alleged failure to timely dispute the claim or initiate payment of benefits.

We reverse the hearing officer’s determination that the claimant has sustained no disability as of the date of the CCH as exceeding the scope of the issue, and render a new determination that the claimant did not sustain disability from April 17 through July 10, 2006.

The true corporate name of the insurance carrier is HARTFORD INSURANCE COMPANY OF THE MIDWEST and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 30, 2009. The disputed issues before the hearing officer were:

(1)Did the appellant (claimant) sustain a compensable injury on __________?

(2)Has the respondent (carrier) waived its right to dispute the compensability of such alleged injury?

(3)Did the claimant make an election of remedies by accepting benefits payable pursuant to a group health insurance policy?

(4)Has the carrier waived its right to raise the claimant’s alleged election of remedies as a defense?

(5)Did the claimant sustain disability from April 17 through July 10, 2006?

The hearing officer determined that: (1) the claimant sustained a compensable injury on __________; (2) the carrier waived its right to dispute the compensability of the claimant’s injury of __________; (3) the claimant did not make an election of remedies by obtaining benefits payable pursuant to a group health insurance policy; (4) the claimant did not sustain disability from April 17 through July 10, 2006; and (5) Rule 124.3 does not apply to this case. We note that the hearing officer did not make a determination on the issue of whether the carrier waived its right to raise the claimant’s alleged election of remedies as a defense.

The claimant appealed the hearing officer’s determinations that the claimant did not sustain disability from April 17 through July 10, 2006, and that Rule 124.3 does not apply to this case. The carrier responded, urging affirmance. The hearing officer’s determinations that: (1) the claimant sustained a compensable injury on __________; (2) the carrier waived its right to dispute the compensability of the claimant’s injury of __________; and (3) the claimant did not make an election of remedies by obtaining benefits payable pursuant to a group health insurance policy, were not appealed and have become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The CCH was recorded on one compact disc (CD). The CD is damaged, containing a crack on the surface. The appeal file does not indicate that a court reporter was present and the file does not contain a transcript or other recording of the proceeding. Consequently, we remand the case for reconstruction of the CCH record. See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is HARTFORD INSURANCE COMPANY OF THE MIDWEST and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701-3232.

Veronica L. Ruberto

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 3, 2008. The issues before the hearing officer were:

1.Did the appellant (claimant) sustain a compensable injury on ___________?
2.Does the claimant have disability resulting from an injury sustained on ___________, from August 10, 2007, through April 27, 2008?
3.Is the claimant barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group health insurance policy?

The hearing officer determined that: (1) the claimant did not sustain a compensable injury on ___________; (2) because the claimant did not sustain a compensable injury, the claimant did not have disability; and (3) the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group health insurance policy.

The claimant appeals the hearing officer’s determinations on compensability and disability. The respondent (carrier) responds, urging affirmance.

The hearing officer’s determination that the claimant is not barred from pursuing Texas workers’ compensation benefits because of an election to receive benefits under a group health insurance policy has not been appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The claimant testified that he sustained a repetitive trauma injury to his right hand due to his repetitive duties at work as an electrician. The claimant testified that he had sharp pains to his right hand prior to ___________, the date that he noticed that his right hand became numb and his fingers swollen from cutting wires with his hands at work. A medical report dated ___________, shows that the claimant complained of swelling to his right index finger and that he remembered that his symptoms began two weeks ago but did not “recall any injury to finger.” The claimant was referred to an orthopedic surgeon. In a medical report dated March 29, 2007, Dr. G, an orthopedic surgeon, diagnosed the claimant with right hand tendonitis and prescribed medication. In a medical note dated May 1, 2007, Dr. G referred the claimant to Dr. Bo, a hand specialist, to evaluate the claimant’s right hand tendonitis because the claimant continued to have pain to his right hand. In a medical report dated May 15, 2007, Dr. Bo diagnosed the claimant with right carpal tunnel syndrome (CTS) and “PIP and MCP joint sprain.” An EMG dated June 27, 2007, shows an impression of “[m]oderately severe right [CTS],” “[j]oint abnormalities in the right hand,” and “[s]oft, fairly diffuse, mass of the right volar wrist.” Dr. Bo referred the claimant to Dr. Bu, another hand specialist, for a second opinion. In a medical report dated July 3, 2007, Dr. Bu diagnosed the claimant with CTS secondary to flexor tenosynovitis. An operative report dated October 12, 2007, shows that the claimant underwent “right open carpal tunnel release.”

The Texas Department of Insurance, Division of Workers’ Compensation appointed, Dr. M, as a designated doctor to determine: (1) the extent of the claimant’s compensable injury; (2) whether the claimant’s disability is a direct result of the work related injury; and (3) whether there “is the harm to [the] physical structure of the body from the claimant’s job.” Dr. M’s narrative report dated February 12, 2008, states that in his opinion “the tenosynovitis and [CTS] were in fact related to his employment and employment only.”

The hearing officer states in the Background Information section of her decision that the “[c]laimant’s repetitive job duties of cutting wire may be the cause of his injuries, but no medical report was in evidence to support any causation theory.” The hearing officer found that: (1) the designated doctor, Dr. M, opined that the claimant’s injuries consisting of [CTS] and tenosynovitis are related to his employment; and (2) Dr. M’s report is not supported by the preponderance of the evidence, “since no medical report was in evidence to show how an incident on ___________ caused the injuries.” The hearing officer erred in not giving presumptive weight to the designated doctor’s report pursuant to Section 408.0041.

Section 408.0041(e) provides that the report of the designated doctor has presumptive weight unless the preponderance of the evidence is to the contrary. In this case, the purpose of the designated doctor’s examination was to determine, among other things, whether there was “harm to [the] physical structure of the body from the claimant’s job.” The designated doctor opined that the claimant’s CTS and tenosynovitis are related to the claimant’s employment. There are no other medical reports in evidence contrary to the designated doctor’s report showing that the claimant’s injuries are not related to his employment. Additionally, there is no evidence that the claimed injuries are not related to the claimant’s employment. The hearing officer’s determination that the claimant did not sustain a compensable injury on ___________, is against the great weight and preponderance of the evidence. Accordingly, we reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on ___________, and we render a new decision that the claimant sustained a compensable injury on ___________.

The hearing officer found that the claimed injury was a cause of the claimant’s inability to obtain or retain employment at wages equivalent to the claimant’s preinjury wage beginning August 10, 2007, and continuing through April 27, 2008. However, the hearing officer determined that the claimant did not have disability because the claimant did not have a compensable injury. The hearing officer states in the Background Information section of her decision, that if the claim were compensable then the report of the designated doctor, Dr. M, dated February 12, 2008, supports the claimed period of disability. Given that we have reversed the hearing officer’s compensability determination and we have rendered a new decision that the claimant sustained a compensable injury on ___________, we likewise reverse the hearing officer’s disability determination. We reverse the hearing officer’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability and we render a new decision that the claimant had disability resulting from an injury sustained on ___________, from August 10, 2007, through April 27, 2008.

SUMMARY

We reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on ___________, and we render a new decision that the claimant sustained a compensable injury on ___________. We reverse the hearing officer’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability and we render a new decision that the claimant had disability resulting from an injury sustained on ___________, from August 10, 2007, through April 27, 2008.

The true corporate name of the insurance carrier is ZURICH AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is

LEO F. MALO

12222 MERIT DRIVE, SUITE 700

DALLAS, TEXAS 75251.

Veronica L. Ruberto

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge