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 October 28, 2020, and January 11, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant), for workers’ compensation purposes, was not an employee of (employer), at the time of the claimed injury on (date of injury); (2) the claimant did not sustain a compensable injury on (date of injury); (3) the respondent (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; and (4) because the claimant did not sustain a compensable injury, the claimant did not have disability from June 30, 2018, through September 1, 2018. The claimant appealed the ALJ’s determinations. The carrier responded, urging affirmance of the ALJ’s determinations.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant testified that on (date of injury), he was injured when he was rear-ended while driving his taxi. The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

EMPLOYEE OR INDEPENDENT CONTRACTOR

The ALJ’s determination that the claimant, for workers’ compensation purposes, was not an employee of (employer), at the time of the claimed injury on (date of injury), is supported by sufficient evidence and is affirmed.

COMPENSABLE INJURY

The ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), is supported by sufficient evidence and is affirmed.

DISABILITY

The ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability from June 30, 2018, through September 1, 2018, is supported by sufficient evidence and is affirmed.

TIMELY NOTICE TO EMPLOYER

The ALJ noted in her discussion that the claimant credibly testified he notified his dispatcher on the date of injury and that his dispatcher provided transportation for him from the hospital. The ALJ further noted that if the claim was found to be compensable, the carrier is not relieved of liability since the claimant contacted his employer, or someone in a supervisory position with the employer, within 30 days of the date of injury. The ALJ found in Finding of Fact No. 8 that the claimant notified the employer, or an employee holding a supervisory or management position, of the (date of injury), injury within 30 days of the date of injury. The ALJ also found in Finding of Fact No. 9 that because there is no compensable injury, the issue as to the timely reporting of an injury to the claimed employer is moot. However, Conclusion of Law No. 5, the Decision, and the Decision and Order paragraph on the first page of the decision all state 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. The ALJ made inconsistent and conflicting findings of fact and determinations regarding the issue of timely notice to the employer. Usually, a case in which the ALJ makes inconsistent and conflicting findings of fact and determinations on a disputed issue will be remanded to the ALJ to make determinations that are consistent and supported by the evidence. See generally Appeals Panel Decision 171955, decided October 17, 2017. However, in the instant case we have affirmed the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury). The ALJ’s finding of fact that because there is no compensable injury the issue as to the timely reporting of an injury to the claimed employer is moot is legally correct. Therefore, under the circumstances in this case, we reverse the ALJ’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, and we render a new decision that because there is no compensable injury the issue as to the timely reporting of an injury to the claimed employer is moot.

SUMMARY

We affirm the ALJ’s determination that the claimant, for workers’ compensation purposes, was not an employee of (employer), at the time of the claimed injury on (date of injury).

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

We affirm the ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability from June 30, 2018, through September 1, 2018.

We reverse the ALJ’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, and we render a new decision that because there is no compensable injury the issue as to the timely reporting of an injury to the claimed employer is moot.

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
2200 ALDRICH STREET
AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:
Cristina Beceiro
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal after remand 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 October 23, 2018, with the record closing on October 25, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). Appeals Panel Decision (APD) 182682, decided January 28, 2019, was issued as a result of the ALJ’s decision and order following that hearing. The case was remanded to the ALJ to correct the carrier information for the registered agent of respondent 1/cross-appellant 1 (carrier), correct inconsistencies and omissions, and make determinations on the compensable injury and employer issues supported by the evidence. No further hearing was held on remand.  The ALJ issued a decision and order on remand which resolved the disputed issues by deciding that:  (1) appellant/cross-respondent (claimant) sustained a compensable injury on (date of injury); (2) on (date of injury), (Employer) (Employer ) was the claimant’s employer for purposes of the Texas Workers’ Compensation Act; (3) on (date of injury), (employer) (Employer ) was the claimant’s employer for purposes of the Texas Workers’ Compensation Act; and (4) respondent 2/cross-appellant 2 (self-insured) is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify Employer or the self-insured pursuant to Section 409.001.

The claimant appealed, disputing the ALJ’s determination that the self-insured is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify Employer or the self-insured pursuant to Section 409.001. The claimant contends that the ALJ’s prior decision and order contained an unappealed finding that the claimant notified her employer, or an employee holding a supervisory or management position, of the claimed injury within 30 days of (date of injury), and that the finding should be applicable to both the carrier and the self-insured. The claimant further argues that the ALJ confuses notice to employer with notice to the self-insured and therefore misapplies the notice provisions. The carrier responded to the claimant’s appeal, arguing that notice to Employer is irrelevant because the claimant was not in the paid service of Employer and therefore could not be its employee. The self-insured responded, contending that the claimant could not be an employee of Employer as a matter of law.

The carrier cross-appealed, contending that the ALJ erred by determining that the claimant was an employee of Employer . Additionally, the carrier disputes the ALJ’s determination that the claimant sustained a compensable injury on (date of injury). The appeal file does not contain a response from the claimant or the self-insured to the carrier’s request for review.

The self-insured cross-appealed, disputing the ALJ’s determination that Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act. The self-insured argues that the claimant was not an employee of Employer as a matter of law. The carrier responded to the self-insured’s appeal. In its response, the carrier agreed with the self-insured’s position that the claimant was not an employee of Employer . The appeal file does not contain a response from the claimant to the self-insured’s request for review.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that on (date of injury), Employer was an employer of the claimant. The claimant testified that she was injured when she was struck by a car walking to her car.

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

COMPENSABLE INJURY

The claimant testified that upon her arrival at work on the date of injury, she parked as directed by a traffic attendant for Employer . It was undisputed that upon finishing her duties the claimant was walking to the parking lot to retrieve her vehicle when she was struck by a car while crossing the street. The ALJ determined the claimant sustained a compensable injury applying the access doctrine.

The general rule is that workers’ compensation benefits do not apply to injuries received going to and from work. Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex. 1963). An exception is those cases which come within the access doctrine, where “the employer has evidenced an intention that the particular access route or area be used by the employee in going to and from work, and where such access route or area be used by the employee in going to and from work, and where such access route or area is so closely related to the employer’s premises as to be fairly treated as a part of the premises.” Texas Compensation Insurance Co. v. Matthews, 519 S.W.2d 630 (Tex. 1974). Matthews concerned an employee who was injured when she fell in a street on her way to work. In that case, the Supreme Court briefly summarized prior cases concerning the access doctrine, including Kelty v. Travelers Insurance Co., 391 S.W.2d 558 (Tex. Civ. App.-Dallas 1965, writ ref’d n.r.e.) which held that whether the employee was within the course and scope of her employment at the time of her injury presented a fact question, which precluded the rendition of summary judgment in favor of the carrier. In Kelty, the employee sustained injuries after she slipped on an icy sidewalk 10 to 12 feet from the employer’s building, which sidewalk was found to be an appurtenance to the premises leased by the employer who was responsible for maintaining it. However, the Matthews court wrote that Kelty had carried the access exception “as far as it reasonably could be, without an amendment to the Workmen’s Compensation Act,” stating that “no case has extended the ‘access exception’ out into the public streets where other members of the public are subject to the same hazard.” In the instant case, the claimant’s injury occurred while she was walking in the roadway of a public street and was thus “a consequence of risk and hazards to which all members of the traveling public are subject rather than risk and hazards having to do with and originating in the work or business of the employer.” See Kelty.

Accordingly, the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), is reversed and a new decision rendered that the claimant did not sustain a compensable injury on (date of injury).

EMPLOYER AS EMPLOYER

The ALJ’s determination that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act is supported by sufficient evidence and is affirmed.

EMPLOYER AS EMPLOYER

The ALJ determined that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act. The parties stipulated at the CCH that Employer was an employer of the claimant on the date of injury. Section 501.002(a) provides, in part, that enumerated provisions of Subtitle A and B apply to this chapter except to the extent that they are inconsistent with Chapter 501. Chapter 401 was an enumerated provision that applied to Chapter 501 but specifically excepted Section 401.012, which defined employee. Chapter 501, which provides for workers’ compensation coverage for state employees, (…), specifically provides a definition of employee in Section 501.001(5). Section 501.001(5) defines an employee, in part, as a person who is: paid from state funds but whose duties require that the person work and frequently receive supervision in a political subdivision of the state.

It was undisputed that the claimant did not receive payment from Employer for work performed on (date of injury). At the CCH, the self-insured argued that as a matter of law the claimant could not be an employee of Employer because she did not receive payment from Employer . In her discussion of the evidence in the decision and order on remand, the ALJ acknowledged this argument but stated that it was “not supported by persuasive authority.” We disagree. There was no evidence that the claimant was paid from state funds in relation to her work on the date of injury. Accordingly, under the facts of this case, it was legal error for the ALJ to determine that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act. We reverse the ALJ’s determination that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act and render a new decision that on (date of injury), Employer was not the claimant’s employer for purposes of the Texas Workers’ Compensation Act.

NOTICE TO EMPLOYER

In APD 182682, supra, it was noted that the ALJ’s initial determination in this case on the issue of timely notice to the employer was not appealed and that determination became final pursuant to Section 410.169. The ALJ noted in her decision and order on remand that the timely notice issue became final for the carrier and would not be addressed, but the decision would address the timely notice issue for the self-insured. The claimant contends in her appeal that the finding of fact regarding timely notice to the employer in the initial CCH was not limited specifically to the carrier and therefore also became final for the self-insured. As set forth above, we have reversed the ALJ’s determination that Employer was the claimant’s employer. Consequently, the issue of timely notice to Employer is moot.

SUMMARY

We affirm the ALJ’s determination that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act.

We reverse the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), and render a new decision that the claimant did not sustain a compensable injury on (date of injury).

We reverse the ALJ’s determination that on (date of injury), Employer was the claimant’s employer for purposes of the Texas Workers’ Compensation Act and render a new decision that on (date of injury), Employer was not the claimant’s employer for purposes of the Texas Workers’ Compensation Act.

We have reversed the ALJ’s determination that Employer was the claimant’s employer; consequently, the issue of timely notice to Employer is moot.

According to the information provided by the self-insured, the true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is

For service in person the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

300 W. 15TH STREET

WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING      

6TH FLOOR      

AUSTIN, TEXAS 78701.

 

For service by mail the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

According to the information provided by the carrier, 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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

Cristina Beceiro
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 August 7, 2018, September 25, 2018, and November 29, 2018, with the record closing on December 12, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) (Employer R) was not the appellant’s (claimant) employer for purposes of the 1989 Act at the time of the claimed injury; (2) (Employer D) was the claimant’s employer for purposes of the 1989 Act; (3) the claimant did not sustain a compensable injury on (date of injury); (4) because the claimant did not sustain a compensable injury, the claimant did not have disability as a result of the claimed injury of (date of injury), from January 20, 2018, through the date of the CCH; (5) respondent 1 (carrier 1) is not liable for the claimant’s claimed injury allegedly sustained on (date of injury); and (6) respondent 2 (carrier 2) is liable for any compensable injury sustained by the claimant on (date of injury).

The claimant appealed, disputing the ALJ’s determinations of compensability and disability. Both carrier 1 and carrier 2 responded urging affirmance of the disputed compensability and disability determinations.

The ALJ’s determinations that Employer R was not the claimant’s employer for purposes of the 1989 Act at the time of the claimed injury; Employer D was the claimant’s employer for purposes of the 1989 Act; carrier 1 is not liable for the claimant’s claimed injury allegedly sustained on (date of injury); and carrier 2 is liable for any compensable injury sustained by the claimant on (date of injury), have not been appealed and have become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The claimant testified that he was using a compacting machine to compact dirt at work when he felt pain in his low back on (date of injury).

In his discussion of the evidence the ALJ states that: “[the] [c]laimant did not visit a doctor until January 30, 2018. [The] [c]laimant treated at Concentra Medical Centers from January 30, 2018[,] through February 22, 2018[,] and there is no mention in the multiple Concentra office visit records that indicate [the] [c]laimant was injured on the job or even how he was injured.” The ALJ also states that “[t]he medical records of Concentra merely provide a diagnosis of sprain of ligaments of the lumbar spine. They do not indicate how the injury occurred.” The ALJ determined that the claimant did not sustain a compensable injury on (date of injury).

On appeal, the claimant specifically references that the medical records in evidence describe the claimant’s mechanism of injury that occurred on (date of injury). In evidence is a medical record from Concentra Medical Centers dated January 30, 2018, that states that “[t]he patient presents today with lower back pain. He used a machine to compact down the soil on (date of injury) when his back started hurting.” That record reflects that the (date of injury), event occurred at work. Additionally, that the “[p]atient presents with C/O [complaints of] lower back injury. As per patient, he bent down to work on a machine and felt a sharp pain in his lower back. Also, he said he was later dismissed from work.”

The ALJ’s statement that the medical records of Concentra do not indicate how the injury occurred or that he was injured at work are misstatements of the evidence presented at the CCH. As mentioned above, a medical record from Concentra Medical Center referenced an injury at work to the claimant’s back while using a compacting machine on (date of injury).

While the ALJ can accept or reject in whole or, in part, the evidence regarding the claimed injury, his decision in this case is based, in part, upon a misstatement of the medical evidence in the record. Accordingly, we reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), and we remand the issue of compensability to the ALJ for further action consistent with this decision.

Because we have reversed and remanded the issue of compensability, we also reverse the ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability as a result of the claimed injury of (date of injury), from January 20, 2018, through the date of the CCH, and we remand the issue of disability to the ALJ for further action consistent with this decision.

CLERICAL ERRORS

We note that the heading of the ALJ’s decision on page one incorrectly states “(city)” Field Office rather than “(city)” Field Office. Also, we note that the ALJ’s Parties Present section on page three, second sentence, incorrectly states the claimant’s attorney’s name as “R” rather than “R.”

SUMMARY

We reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), and we remand the compensability issue to the ALJ.

We reverse the ALJ’s determination that because the claimant did not sustain a compensable injury, the claimant did not have disability as a result of the claimed injury of (date of injury), from January 20, 2018, through the date of the CCH, and we remand the disability issue to the ALJ.

REMAND INSTRUCTIONS

On remand the ALJ is to correct his misstatement of the evidence regarding the medical records in evidence.  The ALJ shall consider all of the evidence and make a determination of whether the claimant sustained a compensable injury on (date of injury), and whether the claimant had disability from January 20, 2018, through the date of the CCH.

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 ALJ, 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 Appeals Panel Decision 060721, decided June 12, 2006.

According to information provided by carrier 1, 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 KELLY-GRAY, PRESIDENT

6907 CAPITOL OF TEXAS HIGHWAY NORTH

AUSTIN, TEXAS 78755.

According to information provided by carrier 2, the true corporate name of the insurance carrier is TRAVELERS CASUALTY COMPANY OF AMERICA and the name and address of its registered agent for service of process is

CORPORATION SERVICE CO.

d/b/a CSC-LAWYERS INCORPORATING SERVICE CO.

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Veronica L. Ruberto
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 December 19, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) respondent 1/cross-appellant (Employer P) was respondent 3’s (claimant) employer for the purposes of the Texas Workers’ Compensation Act at the time of the claimed injury; and (2) the claimant sustained a compensable injury on (date of injury).

Appellant/cross-respondent (carrier 1) appealed the ALJ’s determinations. Both the claimant and respondent 2 (carrier 2) responded, urging affirmance. Employer P appealed the ALJ’s decision. Also, the claimant and carrier 2 responded to Employer P’s appeal stating that Employer P did not have standing to appeal the ALJ’s determinations.

DECISION

Affirmed.

The parties stipulated that: on (date of injury), (Employer C) provided workers’ compensation coverage with carrier 2; on (date of injury), Employer P provided workers’ compensation coverage with carrier 1; and 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).

EMPLOYER STANDING

Review of the record reflects that the Employer P was not present at the CCH on December 19, 2018. Section 409.011(b)(4) provides that an employer has the right to contest the compensability of an injury if the insurance carrier accepts liability for the payment of benefits.  Although the parties stipulated 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), neither carrier 1 nor carrier 2 stipulated that it accepted liability for the payment of benefits for the injury. Employer P does not have standing to appeal the issues in this case and its appeal was not considered. See Appeals Panel Decision (APD) 170773, decided June 5, 2017; APD 93133, decided May 6, 1993, and cases cited therein; APD 960490, decided April 24, 1996.

COMPENSABLE INJURY AND EMPLOYER

The ALJ is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ). As an appellate reviewing tribunal, the Appeals Panel will not disturb challenged factual findings of an ALJ absent legal error, unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

The ALJ’s determinations that Employer P was the claimant’s employer for the purposes of the Texas Workers’ Compensation Act at the time of the claimed injury and the claimant sustained a compensable injury on (date of injury), are supported by sufficient evidence and are affirmed.

According to information provided by carrier 1, the true corporate name of the insurance carrier is ACCIDENT FUND INSURANCE COMPANY OF AMERICA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

According to information provided by carrier 2, 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 KELLY-GRAY, PRESIDENT

6907 CAPITOL OF TEXAS HIGHWAY NORTH

AUSTIN, TEXAS 78755.

Veronica L. Ruberto
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 consolidated contested case hearing (CCH) was held on October 23, 2018, with the record closing on October 25, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (date of injury); (2) (Employer G) was the claimant’s employer for purposes of the 1989 Act on (date of injury); and (3) respondent 1 (carrier) is not relieved from liability under Section 409.002 because of the claimant’s failure to timely notify her employer pursuant to Section 409.001.

The claimant appealed the ALJ’s compensable injury and employer determinations. Also, the claimant noted on appeal that the ALJ had inconsistencies throughout the decision. Respondent 2 (self-insured) responded, urging affirmance. The appeal file does not contain a response from the carrier.

The ALJ’s determination that the carrier is not relieved from liability under Section 409.002 because of the claimant’s failure to timely notify her employer pursuant to Section 409.001 was not appealed and that determination became final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The claimant testified that she was struck by a motor vehicle while crossing a street on (date of injury). The evidence reflects that on that date Employer G provided workers’ compensation insurance with the carrier, and (Employer T), a self-insured governmental entity, provided workers’ compensation insurance as a self-insured.

Carrier-Carrier Information Sheet

As a condition of being issued a certificate of authority to engage in the business of insurance in Texas, alien or foreign insurance companies are required to appoint a person in Texas as agent for service of process on whom any process to be served on the company may be served.  See Texas Insurance Code Section 804.103(b); also, Texas Labor Code Sections 401.011(28) and 410.204(d).  The carrier is required to provide both a name and a physical address of a registered agent for service of process in Texas.  See generally Appeals Panel Decision (APD) 011845-s, decided September 11, 2001; APD 180107, decided February 20, 2018. See also Section 410.164(c).

In this case the carrier provided the name and address of a registered agent in the state of (state); however, it failed to provide a name of a registered agent for service of process in Texas. In particular, we note that the carrier provided a registered agent name and post office box address for a (title) with (third party administrator) in (state), and provided a physical address for service of process in (city), Texas. Also, we note that, in the Order section on page 6 of her decision, the ALJ listed (name) as the registered agent for service of process with a physical address in (city), Texas; however, there is no carrier information sheet in evidence reflecting that information. Accordingly, we remand this case to the ALJ to request from the carrier the required information for its registered agent in Texas as provided in Section 410.164(c).

COMPENSABLE INJURY AND EMPLOYER

Given that we are remanding this case for the ALJ to determine the proper name and address of the registered agent for service of process for the carrier, we reverse the ALJ’s determinations that the claimant did not sustain a compensable injury on (date of injury), and Employer G was the claimant’s employer for purposes of the 1989 Act on that same date, and we remand the compensable injury and employer issues to the ALJ for further action consistent with this decision. Furthermore, we note the ALJ’s determination in the Decision section on page six contains inconsistent language regarding the claimant’s employer and omits the date of injury in the first sentence, although the ALJ did include the date of injury in the second sentence. The ALJ states, in part, that:

(Employer G) was the [c]laimant’s employer for purposes of the [1989] Act. (Employer G) was not the [c]laimant’s employer for purposes of the [1989] Act on (date of injury) (emphasis added)[.]

INCONSISTENCIES AND OMISSIONS

Pursuant to Section 410.203(c), the Appeals Panel may not remand a case more than once.  Given that we are remanding this case for the ALJ to determine the proper name and address of the registered agent for service of process for the carrier, we note the ALJ’s decision contains inconsistencies and omissions throughout the decision.

Statement of the Case, Page Two

On appeal, the claimant references an inconsistency by the ALJ on page two of the decision. The ALJ states “Docket number [docket no.] (docket no. redacted) is associated with (Employer G) and State Office of Risk Management.” We note the evidence reflects that (Employer G) provided workers’ compensation with (the carrier).

Stipulations, Page Five

A review of the record reflects that the ALJ excluded from the decision a stipulation made by the parties at the CCH. The parties stipulated that on (date of injury), (Employer (G)), was an employer of the claimant.

Also, the ALJ included in the decision a stipulation that was not made by the parties at the CCH. Finding of Fact No. 1.C. states that on (date of injury), (Employer T) provided workers’ compensation insurance with State Office of Risk Management.

Conclusion of Law No. 4, Page Six

We note that the ALJ’s Conclusion of Law No. 4 omits the date of injury as part of the determination on who the claimant’s employer was for purposes of the 1989 Act.

Order Section, Page Six

We note that the ALJ did not include any language on the payment of benefits under the Order section on page six.

SUMMARY

We remand this case to the ALJ to obtain compliance with Section 410.164(c) by determining the proper name and address of the registered agent for service of process for the carrier.

We reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), and we remand the compensable injury issue to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that Employer G was the claimant’s employer for purposes of the 1989 Act on (date of injury), and we remand the employer issue to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ shall take official notice of the Texas Department of Insurance, Division of Workers’ Compensation (Division) records regarding the carrier and request from the carrier the required information for its registered agent in Texas as required in Section 410.164(c).

After the ALJ determines the proper name and address of the registered agent for service of process for the carrier, the ALJ is to make determinations on the compensable injury and employer issues consistent with this decision and supported by the evidence. The ALJ is to correct all inconsistencies and omissions as mentioned above in this decision.

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 ALJ, 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.

According to the information provided by the self-insured, the true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is

For service in person the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

300 W. 15TH STREET

WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR

AUSTIN, TEXAS 78701.

 

For service by mail the address is:

STEPHEN S. VOLLBRECHT, EXECUTIVE DIRECTOR

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Veronica L. Ruberto
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 was held on December 13, 2016, with the record closing on February 3, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent, (self-insured), was not the appellant’s (claimant) employer for purposes of the 1989 Act; (2) the claimant was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury); (3) the self-insured is not relieved from liability under Section 409.004 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; (4) the claimant did not have disability; (5) the average weekly wage (AWW) is $760.20; and (6) the claimant did not sustain a compensable injury on (date of injury).

The claimant appealed the hearing officer’s determinations that the self-insured was not the claimant’s employer for purposes of the 1989 Act; that the claimant was not in the course and scope of employment when involved in a motor vehicle accident on (date of injury); that the claimant had no disability; and that the claimant did not sustain a compensable injury as contrary to the preponderance of the evidence.

The self-insured responded, urging affirmance.

The hearing officer’s determinations that the self-insured is not relieved from liability under Section 409.004 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001 and that the AWW is $760.20 were not appealed and have become final pursuant to Section 410.169.

DECISION

Reversed and rendered in part and reversed and remanded in part.

The claimant testified that he had worked for approximately 20 years detasseling seed corn for the self-insured in cornfields located in (city), Texas and Plymouth, Indiana. He further testified that the work of detasseling was performed during periods lasting approximately six weeks each during the spring and fall in Texas and during the summer in Indiana and that in between the three detasseling seasons when he worked for the self-insured, he was free to work for other employers.

As he had in previous years, the claimant attended a recruitment meeting in Texas with representatives from the self-insured who traveled to Texas for the purpose of recruiting workers willing to travel to Indiana to assist local work crews in detasseling seed corn. During the recruitment meeting, which occurred on May 31, 2014, the claimant signed a Worker Disclosure & Information Statement (disclosure). The claimant testified that he was to be paid for his attendance at the recruitment meeting and that he understood he was hired when he signed the disclosure. The disclosure states it is only a disclosure of the terms of potential employment with the self-insured, including the rate of pay, provisions for a housing stipend and an additional $120.00 stipend to be paid to the claimant upon his arrival in Indiana. The disclosure further provides that the claimant is responsible for obtaining his own transportation to and from the state of Texas and that work in Indiana is expected to run from approximately July 10, 2014, to July 24, 2014.

The claimant testified that, also as in years previous, he planned to travel to Indiana together with seven co-workers in a truck owned and operated by one of his co-workers; that the luggage of the workers was transported in a separate vehicle operated by the self-insured’s crew leader (Mr. R); that the trip to Indiana required two full days; and that he paid the owner of the truck in which he rode the sum of $100.00 for transportation to Indiana. The claimant testified that upon arrival in Indiana, prior to beginning work in the fields, he would receive “arrival pay” and a housing stipend. Work in the fields would begin a day or two following arrival of the workers in Indiana.

A transcript of the testimony of (Ms. H), Administrative Coordinator for the self-insured at the Plymouth, Indiana plant, was admitted into evidence. Ms. H testified that all pre-employment paperwork for workers recruited in Texas, including state tax forms, federal tax forms, the payroll choice form, the worker disclosure form and the USCIS I-9 Employment Eligibility Verification form is completed in Texas and turned in to the self-insured prior to the workers departing for Indiana. Ms. H further testified that the self-insured uses E-Verify to determine eligibility of its employees; that company policy requires that e-verification be obtained no later than the first day of employment but not before the job offer is accepted by the employee; and that e-verification was completed in Texas prior to the claimant and his co-workers leaving for Indiana.

It is undisputed that the claimant was injured in a motor vehicle accident on (date of injury), after beginning travel from Texas to Indiana when the vehicle in which he was riding sustained a blowout and was involved in a rollover accident near Georgetown, Texas.

It is the claimant’s position that he was the employee of the self-insured in the course and scope of his employment at the time of the accident.

The self-Insured argues that the claimant and his co-workers would not become employees of the self-insured until they arrived in Indiana, collected their arrival pay and housing stipend and attended a brief safety meeting.

EXISTENCE OF EMPLOYMENT RELATIONSHIP

Section 401.012(a) defines employee as a person in the service of another under a contract of hire, whether express or implied, or oral or written. As we stated in Appeals Panel Decision (APD) 93443, decided July 19, 1993, Professor L has noted that "the compensation concept of ‘employee’ is narrower than that of the common law concept of ‘servant’ in the respect that most statutes insist upon the existence of an express or implied contract of hire as an essential feature of the employment relation.  1C Larson, Workmen's Compensation Law, §§ 47.00, 47.10." We have also noted that whether a contract for hire exists is a mixed question of law and fact. APD 93931, decided November 23, 1993.  In that case, we affirmed the finding of the hearing officer that a contract for hire had not been proven even though the claimant put on protective clothing at the plant site and was instructed in the use of the equipment.  Fatal to the claim of a contract for hire was the lack of evidence of any payment or promise to pay the claimant for this time.

Under the facts of this case, where the claimant attended a recruitment meeting on May 31, 2014, for which he was to be paid; that he completed all pre-employment paper work on May 31, 2014, and had his employment eligibility verified electronically, which the self-insured’s policy dictates must be completed after a job offer is accepted by the employee but no later than the first day of employment, and given that, as in years past, upon arrival in Indiana and prior to beginning work in the fields, the claimant was to be paid “arrival pay” and a housing stipend from which payroll deductions would be withheld, we hold that the hearing officer’s decision that the self-insured was not the claimant’s employer for purposes of the 1989 Act is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We accordingly reverse the hearing officer’s determination that the self-insured was not the claimant’s employer for purposes of the 1989 Act and render a new decision that the self-insured was the claimant’s employer for purposes of the 1989 Act.

COURSE AND SCOPE OF EMPLOYMENT

Section 401.011(12) provides in pertinent part that “course and scope of employment” means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. Course and scope of employment as defined in Section 401.011(12) generally does not include transportation to and from the place of employment except in certain limited circumstances. The “special mission” exception provided by Section 401.011(12)(A)(iii) arises where the employee is directed in his employment to proceed from one place to another.

The key to this case is whether the claimant was an employee of the self-insured at the time of the injury. In his discussion, the hearing officer stated “[s]ince it was determined that [the] [c]laimant was not an employee of [the] [self-insured] for purposes of the [1989 Act], it was further determined that he was not in the course and scope of his employment when involved in a motor vehicle accident. . . .” As noted above, we have reversed the hearing officer’s determination that the self-insured was not the claimant’s employer for purposes of the 1989 Act and rendered a new decision that the self-insured was the claimant’s employer for purposes of the 1989 Act. The claimant’s travel on (date of injury), from Texas was at the direction of and in furtherance of the business affairs of the self-insured and would not have been made had there been no business of the self-insured to be furthered by the travel. Accordingly, we reverse the hearing officer’s determination that the claimant was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury), and render a new decision that the claimant was in the course and scope of his employment when involved in a motor vehicle accident on (date of injury). Because the claimant was in the course and scope of his employment when involved in the motor vehicle accident on (date of injury), we reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and render a new decision that the claimant did sustain a compensable injury on (date of injury).

DISABILITY

Given that we have reversed the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and rendered a new decision that the claimant did sustain a compensable injury on (date of injury), we reverse the hearing officer’s determination that the claimant did not have disability and we remand the issue of whether the claimant had disability from July 13, 2014, through July 1, 2015, to the hearing officer to make a determination consistent with this decision.

SUMMARY

We reverse the hearing officer’s determination that the self-insured was not the claimant’s employer for purposes of the 1989 Act and render a new decision that the self-insured was the claimant’s employer for purposes of the 1989 Act.

We reverse the hearing officer’s determination that the claimant was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury), and render a new decision that the claimant was in the course and scope of his employment when involved in a motor vehicle accident on (date of injury).

We reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and render a new decision that the claimant did sustain a compensable injury on (date of injury).

We reverse the hearing officer’s determination that the claimant did not have disability and we remand the issue of disability from July 13, 2014, through July 1, 2015, to the hearing officer to make a determination consistent with this decision.

REMAND INSTRUCTIONS  

On remand the hearing officer is to make findings of fact, conclusions of law and a determination regarding the issue of disability from July 13, 2014, through July 1, 2015, which are supported by the evidence and consistent with this decision. The hearing officer is not to consider additional evidence on remand.

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 E.I. DUPONT DE NEMOURS & COMPANY, INC. (a certified self-insured) and the name and address of its registered agent for service of process is

RUSSELL STALLINGS

c/o CRAWFORD & COMPANY

769 KINGFISHER LANE

LEANDER, TEXAS 78641.

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). Contested case hearings were held on November 15, 2016, and December 13, 2016, with the record closing on February 3, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the respondent, (self-insured), was not the appellant’s (claimant) employer for purposes of the 1989 Act; (2) the claimant was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury); (3) the self-insured is not relieved from liability under Section 409.004 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; (4) since the claimant did not sustain a compensable injury, he has no disability; (5) the average weekly wage (AWW) is $760.20; and (6) the claimant did not sustain a compensable injury on (date of injury).

The claimant appealed the hearing officer’s determinations that the self-insured was not the claimant’s employer for purposes of the 1989 Act; that the claimant was not in the course and scope of employment when involved in a motor vehicle accident on (date of injury); that the claimant had no disability; and that the claimant did not sustain a compensable injury as contrary to the preponderance of the evidence.

The self-insured responded, urging affirmance.

The hearing officer’s determinations that the self-insured is not relieved from liability under Section 409.004 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001 and that the AWW is $760.20 were not appealed and have become final pursuant to Section 410.169.

DECISION

Reversed and rendered in part and reversed and remanded in part.

The claimant testified that he had worked for a number of years detasseling seed corn for the self-insured in cornfields located in Weslaco, Texas and Plymouth, Indiana. He further testified that the work of detasseling was performed during periods lasting approximately three weeks during the spring and fall in Texas and during the summer in Indiana and that in between the three detasseling seasons when he worked for the self-insured, he was free to work for other employers.

As he had in previous years, the claimant attended a recruitment meeting in Texas with representatives from the self-insured who traveled to Texas for the purpose of recruiting workers willing to travel to Indiana to assist local work crews in detasseling seed corn. During the recruitment meeting, which occurred on May 31, 2014, the claimant signed a Worker Disclosure & Information Statement (disclosure). The claimant testified that he was to be paid for his attendance at the recruitment meeting and that he understood he was hired when he signed the disclosure. The disclosure states it is only a disclosure of the terms of potential employment with the self-insured, including the rate of pay, provisions for a housing stipend and an additional $120.00 stipend to be paid to the claimant upon his arrival in Indiana. The disclosure further provides that the claimant is responsible for obtaining his own transportation to and from the state of Texas and that work in Indiana is expected to run from approximately July 10, 2014, to July 24, 2014.

The claimant testified that, also as in years previous, he planned to travel to Indiana together with seven co-workers in a van owned and operated by (Mr. C); that the luggage of the workers traveling with Mr. C was transported in a separate vehicle operated by the self-insured’s crew leader (Mr. R); that Mr. R and Mr. C coordinated the travel using their cell phones; that the crew spent the night mid-trip in Hope, Arkansas; that the claimant planned to pay Mr. C the sum of $100.00 for transportation to and from the state of Texas; and that Mr. R paid Mr. C the additional sum of $300.00 to cover costs of the trip to Indiana. The claimant testified that upon arrival in Indiana, prior to beginning work in the fields, he would receive “arrival pay” and a housing stipend and would attend a brief safety meeting. Employee payroll deductions, including state and federal taxes, were withheld from the arrival pay and housing stipend paid to the claimant. Work in the fields would begin within a week or sooner following arrival of the workers in Indiana.

(Ms. H), Administrative Coordinator for the self-insured at the Plymouth, Indiana plant testified that all pre-employment paperwork for workers recruited in Texas, including state tax forms, federal tax forms, the payroll choice form, the worker disclosure form and the USCIS I-9 Employment Eligibility Verification form is completed in Texas and turned in to the self-insured prior to the workers departing for Indiana. Ms. H further testified that the self-insured uses E-Verify to determine eligibility of its employees; that company policy requires that e-verification be obtained no later than the first day of employment but not before the job offer is accepted by the employee; and that e-verification was completed in Texas prior to the claimant and his co-workers leaving for Indiana.

It is undisputed that the claimant was injured in a motor vehicle accident on (date of injury), after beginning travel from Texas to Indiana when Mr. C’s vehicle sustained a blowout and was involved in a rollover accident near Georgetown, Texas.

It is the claimant’s position that he was the employee of the self-insured in the course and scope of his employment at the time of the accident.

The self-Insured argues that the claimant and his co-workers would not become employees of the self-insured until they arrived in Indiana, collected their arrival pay and housing stipend and attended a brief safety meeting.

EXISTENCE OF EMPLOYMENT RELATIONSHIP

Section 401.012(a) defines employee as a person in the service of another under a contract of hire, whether express or implied, or oral or written. As we stated in Appeals Panel Decision (APD) 93443, decided July 19, 1993, Professor Larson has noted that "the compensation concept of ‘employee’ is narrower than that of the common law concept of ‘servant’ in the respect that most statutes insist upon the existence of an express or implied contract of hire as an essential feature of the employment relation. 1C Larson, Workmen's Compensation Law, §§ 47.00, 47.10." We have also noted that whether a contract for hire exists is a mixed question of law and fact. APD 93931, decided November 23, 1993.  In that case, we affirmed the finding of the hearing officer that a contract for hire had not been proven even though the claimant put on protective clothing at the plant site and was instructed in the use of the equipment.  Fatal to the claim of a contract for hire was the lack of evidence of any payment or promise to pay the claimant for this time.

Under the facts of this case, where the claimant attended a recruitment meeting on May 31, 2014, for which he was to be paid; that he completed all pre-employment paper work on May 31, 2014, and had his employment eligibility verified electronically, which the self-insured’s policy dictates must be completed after a job offer is accepted by the employee but no later than the first day of employment, and given that, as in years past, upon arrival in Indiana and prior to beginning work in the fields, the claimant was to be paid “arrival pay” and a housing stipend from which payroll deductions would be withheld, we hold that the hearing officer’s decision that the self-insured was not the claimant’s employer for purposes of the 1989 Act is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We accordingly reverse the hearing officer’s determination that the self-insured was not the claimant’s employer for purposes of the 1989 Act and render a new decision that the self-insured was the claimant’s employer for purposes of the 1989 Act.

COURSE AND SCOPE OF EMPLOYMENT

Section 401.011(12) provides in pertinent part that “course and scope of employment” means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. Course and scope of employment as defined in Section 401.011(12) generally does not include transportation to and from the place of employment except in certain limited circumstances. The “special mission” exception provided by Section 401.011(12)(A)(iii) arises where the employee is directed in his employment to proceed from one place to another.

The key to this case is whether the claimant was an employee of the self-insured at the time of the injury. In his discussion, the hearing officer stated “[s]ince it was determined that [the] [c]laimant was not an employee of [the] [self-insured] for purposes of the [1989 Act], it was further determined that he was not in the course and scope of his employment when involved in a motor vehicle accident. . . . As noted above, we have reversed the hearing officer’s determination that the self-insured was not the claimant’s employer for purposes of the 1989 Act and rendered a new decision that the self-insured was the claimant’s employer for purposes of the 1989 Act. The claimant’s travel on (date of injury), from Texas was at the direction of and in furtherance of the business affairs of the self-insured and would not have been made had there been no business of the self-insured to be furthered by the travel. Accordingly, we reverse the hearing officer’s determination that the claimant was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury), and render a new decision that the claimant was in the course and scope of his employment when involved in a motor vehicle accident on (date of injury). Because the claimant was in the course and scope of his employment when involved in the motor vehicle accident on (date of injury), we reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and render a new decision that the claimant did sustain a compensable injury on (date of injury).

DISABILITY

Given that we have reversed the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and rendered a new decision that the claimant did sustain a compensable injury on (date of injury), we reverse the hearing officer’s determination that the claimant did not have disability and we remand the issue of disability to the hearing officer to make a determination consistent with this decision.

SUMMARY  

We reverse the hearing officer’s determination that the self-insured was not the claimant’s employer for purposes of the 1989 Act and render a new decision that the self-insured was the claimant’s employer for purposes of the 1989 Act.

We reverse the hearing officer’s determination that the claimant was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury), and render a new decision that the claimant was in the course and scope of his employment when involved in a motor vehicle accident on (date of injury).

We reverse the hearing officer’s determination that the claimant did not sustain a compensable injury on (date of injury), and render a new decision that the claimant did sustain a compensable injury on (date of injury).

We reverse the hearing officer’s determination that the claimant did not have disability and we remand the issue of disability to the hearing officer to make a determination consistent with this decision.

REMAND INSTRUCTIONS  

On remand the hearing officer is to make findings of fact, conclusions of law and a determination regarding the issue of disability which are supported by the evidence and consistent with this decision. The hearing officer is not to consider additional evidence on remand.

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 E.I. DUPONT DE NEMOURS & COMPANY, INC. (a certified self-insured) and the name and address of its registered agent for service of process is

RUSSELL STALLINGS

c/o CRAWFORD & COMPANY

769 KINGFISHER LANE

LEANDER, TEXAS 78641.

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 February 4, 2016, and concluded on May 9, 2016, in Austin, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) respondent 1 (claimant) sustained a compensable injury on Date of injury); (2) the claimant had disability from November 18, 2014, through the date of the CCH; and (3) the claimant was the employee of Rivera Drywall, Inc. (RDI) for the purposes of the 1989 Act at the time of the claimed injury on Date of injury). The appellant (carrier) appeals the hearing officer’s determinations of compensability, disability, and employee status based on sufficiency of the evidence. The claimant responded, urging affirmance of the disputed determinations. The appeal file does not contain a response from respondent 2 (subclaimant).

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record at the CCH. The appeal file contains two compact discs (CD) recording the February 4, 2016, setting of the CCH. The first CD is approximately 77 minutes and contains preliminary matters, opening arguments, direct and cross-examination of the claimant and partial direct examination of another witness, Terri Gomez (TG). The second CD is approximately 15 minutes and contains additional direct examination of TG, and partial cross-examination. The hearing was continued until May 9, 2016. The appeal file does not contain a recording or transcript of the May 9, 2016, setting. Consequently, we reverse and remand this case to the hearing officer who presided over the two settings in this CCH, if possible, for reconstruction of the 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 TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RICHARD J. GERGASKO

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
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 May 5, 2014, in Houston, Texas, with [hearing officer] presiding as hearing officer. The hearing officer determined that: (1) SC (decedent) was not an employee of [Employer], at the time of the claimed injury on [date of injury]; (2) the decedent did not suffer a compensable injury on [date of injury], resulting in his death; and (3) the appellant/cross-respondent (claimant beneficiary) is a proper legal beneficiary of the decedent, but because the [date of injury], injury is not compensable, she is not entitled to death benefits.

The claimant beneficiary appealed the hearing officer’s determinations that the decedent was not an employee of [Employer], at the time of the claimed injury on [date of injury], and that the decedent did not suffer a compensable injury on [date of injury], resulting in his death. The claimant beneficiary also appeals the hearing officer’s determination that she is not entitled to death benefits because the [date of injury], injury is not compensable. The claimant beneficiary contended that the hearing officer’s determinations are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The respondent/cross-appellant (carrier) responded to the claimant beneficiary’s appeal, urging affirmance of the appealed determinations. The hearing officer’s determination that the claimant beneficiary is a proper legal beneficiary of the decedent was not appealed and has become final pursuant to Section 410.169.

The carrier filed a cross-appeal. The carrier contended that the hearing officer erroneously changed some of the language requested by the carrier and granted by the hearing officer in Issue No. 3. The carrier further contended that the hearing officer’s determination regarding the issue of the decedent’s employer at the time of the claimed injury failed to address all of the employers listed in the issue statement at the CCH. The carrier also requested clerical corrections regarding the proper spelling of the employers listed in the decision. The appeal file does not contain a response from the claimant beneficiary to the carrier’s cross-appeal.

DECISION

Affirmed in part and reversed and remanded in part.

It is undisputed that the decedent sustained an injury on [date of injury], which resulted in his death. The evidence reflects that the decedent was cleaning gutters on the home of (Mr. W), the majority owner of [Employer], [Employer], and [Employer] Inc., when he fell from a ladder. The parties stipulated that on [date of injury], [Employer], [Employer] and [Employer], provided workers’ compensation insurance with the carrier.

Upon the carrier’s motion and overruling of the claimant beneficiary’s objection, the hearing officer added the following issue as worded in the Decision and Order:

3. Whether the decedent was an employee of [Employer]Inc., [Employer], or [Employer] for the purposes of workers’ compensation on [date of injury]?

The issue as read at the CCH was stated as follows:

Was [the decedent] an employee of [Employer], [Employer], or [Employer]. for the purposes of the Texas Workers’ Compensation Act at the time of his death on [date of injury]?

Issue No. 3 does not reflect the issue as requested and approved by the hearing officer at the CCH. Accordingly, we reform Issue No. 3 to reflect the issue as requested by the carrier and granted by the hearing officer at the CCH.

The hearing officer determined that the decedent was not an employee of [Employer], at the time of the claimed injury on [date of injury]. There is sufficient evidence to support this determination. Therefore, we affirm the hearing officer’s determination that the decedent was not an employee of [Employer], at the time of the claimed injury on [date of injury].

However, the issue before the hearing officer, as discussed above, was whether the decedent was an employee of [Employer], [Employer], or [Employer]. for the purposes of the Texas Workers’ Compensation Act at the time of his death on [date of injury]. The hearing officer failed to make conclusions of law or a decision as to whether the decedent was the employee of [Employer], or [Employer]. We therefore reverse the hearing officer’s decision as incomplete, and we remand the issue of whether the decedent was the employee of [Employer], or [Employer], to the hearing officer for further action consistent with this decision.

The hearing officer noted in the Discussion portion of her decision that the evidence in the record supported that the decedent was the employee of [Employer]., but that the preponderance of the evidence indicated that the decedent was not in the course and scope of employment on [date of injury], because he was working for (Mr. R) on one of Mr. R’s side businesses.

The hearing officer based her determinations that the decedent did not suffer a compensable injury on [date of injury], resulting in his death, and that the claimant beneficiary is not entitled to death benefits on her determination that the decedent was not an employee of [Employer]. However, the hearing officer failed to determine whether the decedent was an employee of [Employer], or [Employer], at the time of the injury. We therefore reverse the hearing officer’s determinations that the claimant did not suffer a compensable injury on [date of injury], resulting in his death, and because the [date of injury], injury is not compensable, the claimant beneficiary is not entitled to death benefits, and we remand these issues to the hearing officer for further action consistent with this decision.

We note that throughout the Decision and Order the hearing officer refers to the employers as [Employer], [Employer], [Employer], and [Employer]. The carrier contends that the proper employer spellings are as follows: [Employer], and [Employer]. On remand the hearing officer is to determine the correct employer names, including the correct employer spellings.

SUMMARY

We modify Issue No. 3 to reflect the issue as requested by the carrier and granted by the hearing officer at the CCH to read as follows: was the decedent an employee of [Employer]., [Employer]., or [Employer]. for the purposes of the Texas Workers’ Compensation Act at the time of his death on [date of injury]?

We affirm the hearing officer’s determination that the decedent was not an employee of [Employer], at the time of the claimed injury on [date of injury].

We reverse the hearing officer’s decision as being incomplete, and we remand the issue of whether the decedent was the employee of [Employer], or [Employer]., for the purposes of the Texas Workers’ Compensation Act at the time of his death on [date of injury].

We reverse the hearing officer’s determination that the claimant did not suffer a compensable injury on [date of injury], resulting in his death, and we remand the issue of whether the decedent suffered a compensable injury on [date of injury], resulting in his death to the hearing officer for further action consistent with this decision.

We reverse the hearing officer’s determination that because the [date of injury], injury is not compensable, the claimant beneficiary is not entitled to death benefits, and we remand the issue of whether the claimant beneficiary is entitled to death benefits to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the hearing officer is to determine the correct employer names, including the correct employer spellings, and make findings of fact, conclusions of law, and a decision consistent with this decision.

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 Appeals Panel Decision 060721, decided June 12, 2006.

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.

Carisa Space-Beam
Appeals Judge

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). A contested case hearing was held on April 16, 2014, in San Angelo, Texas, with [hearing officer] presiding as hearing officer. The hearing officer determined that: (1) at the time of the respondent’s (claimant) injury on [date of injury], the claimant was the general employee of (GC) and was the borrowed employee of (H); and (2) the claimant sustained a compensable injury on [date of injury].

The appellant (carrier) appeals the hearing officer’s determinations contending that the hearing officer erred in determining that the claimant was a borrowed employee of H. The carrier contends that the Equipment Lease Agreement dated June 8, 2012, governs the relationship between GC and H wherein GC assumed the responsibilities of an employer and therefore the claimant is not an employee of H. The appeal file does not contain a response from the claimant nor from GC.

DECISION

Reversed and remanded.

It is undisputed that on [date of injury], the claimant was in a motor vehicle accident when he was driving a truck owned by GC which was leased to H. The parties stipulated that on the date of injury, [date of injury]: H provided workers’ compensation insurance with Old Republic General Insurance Corporation, carrier; and GC, did not have workers’ compensation insurance. In evidence is an Equipment Lease Agreement dated June 8, 2012, which indicates that GC, as owner-operator, leased equipment to H, and GC agreed to provide transportation services to H, as a motor carrier.

The issue in dispute, as revised by agreement of the parties, is “[w]ho was the claimant’s employer on [date of injury], for purposes of the Texas Workers’ Compensation Act?” See Section 406.121, which defines “owner-operator,” “motor carrier,” and “transportation services.” See also Section 406.122, Status of Employee, and 28 TEX. ADMIN. CODE § 112.102 (Rule 112.102), Agreements between Motor Carriers and Owner Operators. Section 401.011(18) states in part that “Employer” means, unless otherwise specified, a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.

The hearing officer made a conclusion of law and decision that “[a]t the time of [the] [c]laimant’s injury on [date of injury][the] [c]laimant was the general employee of [GC] and was the borrowed employee of [H].” As previously mentioned above, the issue agreed to by the parties was “[w]ho was [the] [c]laimant’s employer on [date of injury], for purposes of the Texas Workers’ Compensation Act?” The hearing officer’s decision identifies the claimant as a general employee of GC and a borrowed employee of H on [date of injury]; however, the hearing officer’s decision fails to determine the identity of the claimant’s employer on the date of injury, [date of injury], for purposes of the Texas Workers’ Compensation Act. The hearing officer’s decision is incomplete because it fails to completely address the issue as amended upon agreement of the parties and litigated by the parties.

Accordingly, we reverse the hearing officer’s determination that at the time of the claimant’s injury on [date of injury], the claimant was the general employee of GC and was the borrowed employee of H as being incomplete, and we remand this case to the hearing officer to determine the issue of who was the claimant’s employer on [date of injury], for purposes of the Texas Workers’ Compensation Act.  No additional evidence is required.

The hearing officer also determined that the claimant sustained a compensable injury on [date of injury]. However, given that we have reversed and remanded the issue of who was the claimant’s employer on [date of injury], for purposes of the Texas Workers’ Compensation Act, we must also reverse the hearing officer’s determination that the claimant sustained a compensable injury on [date of injury], and remand that issue to the hearing officer. No additional evidence is required.

 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 Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is OLD REPUBLIC GENERAL 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 78701-3218.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge