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 November 12, 2012, and concluded on February 28, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by decided that: (1) the appellant/cross-respondent (carrier 1) is liable for respondent 2’s (claimant) injury sustained on [date of injury]; (2) carrier 1 waived the right to contest the compensability of the claimed injury by not contesting compensability in accordance with Section 409.021; (3) by virtue of carrier 1’s waiver the claimant sustained a compensable injury on [date of injury]; (4) the claimant had disability only beginning on December 28, 2010, and continuing through February 21, 2012; (5) respondent 1/cross-appellant (carrier 2) is not liable for the claimant’s injury sustained on [date of injury]; and (6) carrier 1 is not entitled to reimbursement from carrier 2.

Carrier 1 appealed all of the hearing officer’s determinations. Carrier 2 appealed the hearing officer’s determination that by virtue of carrier 1’s waiver the claimant sustained a compensable injury on [date of injury]; and that the claimant had disability only beginning on December 28, 2010, and continuing through February 21, 2012. Carrier 1 responded to carrier 2’s appeal, and carrier 2 responded to carrier 1’s appeal. The appeal file contains no response from the claimant to either carrier 1’s appeal or carrier 2’s appeal.

DECISION

Affirmed as reformed.

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).  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.

All of the hearing officer’s determinations are supported by sufficient evidence and are affirmed. However, as discussed below, the hearing officer’s decision requires correction by reformation that will not affect the outcome of the hearing.

The issues reported out of the benefit review conference (BRC) were: (1) “[i]s [carrier 1] or [carrier 2] or are both liable for the claimant’s injury sustained on [date of injury]?”; (2) [d]id the claimant sustain a compensable injury on [date of injury]?”; (3) [d]id the claimant have disability resulting from the [date of injury], compensable injury, and if so, for what period(s)?”; and (4) [i]s [carrier 1] entitled to reimbursement from [carrier 2], and if so, in what amount?”

At the first setting of the CCH on November 12, 2012, carrier 2 requested the hearing officer add the issue of whether carrier 1 waived the right to contest the compensability of the claimed injury by not contesting compensability in accordance with Section 409.021, noting that was its documented position in the BRC report. The hearing officer responded that she would consider adding the issue. The CCH was continued after sending the claimant a 10-day letter because he failed to appear at the CCH. The claimant failed to respond to the 10-day letter, so the CCH was ultimately conducted on February 28, 2013. The hearing officer failed to note in the decision and order that she was adding the waiver issue, but did make findings of fact and conclusions of law on that issue, and determined that carrier 1 waived the right to contest compensability of the claimed injury by not contesting compensability in accordance with Section 409.021. A review of the record reveals that the parties did actually litigate the waiver issue at the CCH.

The parties stipulated that venue is proper in the [City] field office of the Texas Department of Insurance, Division of Workers’ Compensation, and that the claimant was the employee of [Employer] on [date of injury]. The hearing officer’s decision also reflects that the parties entered into a third stipulation: “[o]n [date of injury], Employer provided workers’ compensation insurance with [carrier 1], and [carrier 2].” However, a review of the record reveals that the parties did not enter into this stipulation. Rather, the hearing officer noted on the record that because there was a dispute as to the correct carrier, there would be no stipulation regarding who provided workers’ compensation. We therefore reform the hearing officer’s decision and order by striking stipulation C.

The true corporate name of carrier 1 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.

The true corporate name of carrier 2 is AMERICAN GUARANTEE & LIABILITY 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.

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 November 21, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. With regard to the four disputed issues before him, the hearing officer determined that: (1) the respondent/cross-appellant’s (carrier) defense of compensability is limited to the “carrier denies that an injury arose out of the course and scope of employment with a Hartford insured” defense listed on the first Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) that was filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division) on July 3, 2012; (2) the appellant/cross-respondent (claimant) sustained a compensable injury on [date of injury]; (3) the claimant, who was injured in Indiana, is entitled to all the rights and remedies under the 1989 Act; and (4) the claimant did not have disability beginning April 25, 2012, and continuing through the date of the hearing.

The claimant appealed the hearing officer’s determination that he did not have disability beginning April 25, 2012, and continuing through the date of the hearing. The carrier responded to the claimant’s appeal, urging affirmance for the disability determination.

The carrier appealed the hearing officer’s determinations that the carrier’s defense of compensability is limited to the “carrier denies that an injury arose out of the course and scope of employment with a Hartford insured” defense listed on the first PLN-1 that was filed with the Division on July 3, 2012; the claimant sustained a compensable injury on [date of injury]; and the claimant, who was injured in Indiana, is entitled to all the rights and remedies under the 1989 Act. The claimant responded to the carrier’s appeal, urging affirmance for the issues on which he prevailed.

DECISION

Affirmed in part and reversed and remanded in part.

COMPENSABLE INJURY, CLAIMANT’S ENTITLEMENT UNDER THE 1989 ACT AND DISABILITY

The hearing officer’s determinations that the claimant sustained a compensable injury on [date of injury]; the claimant, who was injured in Indiana, is entitled to all the rights and remedies under the 1989 Act; and the claimant did not have disability beginning April 25, 2012, and continuing through the date of the hearing are all supported by sufficient evidence and are affirmed. We note that the hearing officer’s determinations were made independent of his determination that the carrier’s defense of compensability is limited to the defense listed on the PLN-1 filed July 3, 2012.

CARRIER’S DEFENSE OF COMPENSABILITY

Section 409.021 provides that for claims based on a compensable injury that occurred on or after September 1, 2003, that no later than the 15th day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall:  (1) begin the payment of benefits as required by the 1989 Act; or (2) notify the Division and the employee in writing of its refusal to pay.  Section 409.021(c) provides that if an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability.

Section 409.022(a) provides that an insurance carrier’s notice of refusal to pay benefits under Section 409.021 must specify the grounds for refusal and pursuant to Section 409.022(b) the grounds for the refusal specified in the notice constitute the only basis for the insurance carrier’s defense on the issue of compensability in a subsequent proceeding, unless the defense is based on newly discovered evidence that could not reasonably have been discovered at an earlier date.

In the Background Information section of his decision the hearing officer noted that the claimant filed his first report of injury on April 17, 2012, and that the carrier did not file a PLN-1 disputing the claim until July 3, 2012. The hearing officer also noted that the carrier’s first PLN-1 filed on July 3, 2012, asserted the defense that an injury did not occur in the course and scope of employment. The hearing officer, in Finding of Fact No. 7, found that the claimant filed a first report of injury on April 17, 2012, and determined that the carrier’s defense of compensability is limited to the “carrier denies that an injury arose out of the course and scope of employment with a Hartford insured” defense listed on the first PLN-1 that was filed with the Division on July 3, 2012.

While it may be true that the claimant filed a report of injury on April 17, 2012, the hearing officer made no findings regarding when the carrier received the first written report of injury, which is required under Section 409.021. Pursuant to Section 409.021, the carrier has 60 days from the date on which it is notified of the injury to contest the compensability of an injury. Without a date certain on which the carrier received written notice of the claimant’s injury, it cannot be determined when the 60-day period the carrier had to dispute the claim begins. Further, there was evidence of dates in addition to the April 17, 2012, date found by the hearing officer. Therefore, we remand the issue of whether the carrier’s defense of compensability is limited to the “carrier denies that an injury arose out of the course and scope of employment with a Hartford insured” defense listed on the first PLN-1 that was filed with the Division on July 3, 2012, to make a finding of fact regarding when the carrier first received written notice of the injury based on the evidence, and to make further findings of fact, conclusions of law, and a decision on the carrier’s defense of compensability issue consistent with this decision.

SUMMARY

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

We affirm the hearing officer’s determination that the claimant, who was injured in Indiana, is entitled to all the rights and remedies under the 1989 Act.

We affirm the hearing officer’s determination that the claimant did not have disability beginning April 25, 2012, and continuing through the date of the hearing.

We reverse the hearing officer’s determination that the carrier’s defense of compensability is limited to the “carrier denies that an injury arose out of the course and scope of employment with a Hartford insured” defense listed on the first PLN-1 that was filed with the Division on July 3, 2012. We remand this issue to the hearing officer to make a finding of fact regarding when the carrier first received written notice of the injury based on the evidence, and to make further findings of fact, conclusions of law, and a decision on the carrier’s defense of compensability issue 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 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 Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is HARTFORD UNDERWRITERS 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 78701-3232.

Carisa Space-Beam
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 October 28, 2010.

The issues before the hearing officer were the following:

1. 1.Is respondent 2 (carrier L) or appellant (carrier A) liable for respondent 1’s (claimant) injury sustained on ____________?

2. 2.Was (Employer 1) or (Employer 2) the claimant’s employer for purposes of the 1989 Act at the time of the claimed injury?

3. 3.Is the carrier relieved from 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?

4. 4.Has carrier L waived its right to contest that the claimant was an employee of Employer 1, pursuant to Section 409.021? (added for good cause at the request of carrier A)

The hearing officer determined the following:

1. 1.Carrier A, the carrier for Employer 2 is liable for the claimant’s injury sustained on ____________;

2. 2.Employer 2 was the claimant’s employer for purposes of the 1989 Act at the time of the claimed injury;

3. 3.Carrier L and carrier A are not relieved from liability under Section 409.004; and

4. 4.Carrier L has not waived its right to contest that the claimant was an employee of Employer 1, pursuant to Section 409.021.

Carrier A appealed the hearing officer’s determinations that: (1) Employer 2 was the claimant’s employer for purposes of the 1989 Act at the time of the claimed injury; (2) carrier A, the carrier for Employer 2, was liable for the claimant’s injury sustained on ____________; (3) carrier A is not relieved from liability under Section 409.004; and (4) carrier L has not waived its right to contest that the claimant was an employee of Employer 1, pursuant to Section 409.021.

Carrier L responded, urging affirmance and arguing that carrier A’s appeal was not timely. The appeal file does not contain a response from the claimant.

The hearing officer’s determination that carrier L is not relieved from liability under Section 409.004 has not been appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

It is undisputed that the claimant sustained serious injuries when he fell 20 to 30 feet from a roof at work at the Employer 2 facility on ____________.

TIMELY APPEAL

Carrier A’s appeal is timely and carrier L’s response that the appeal is untimely is without merit based upon a review of the Division records and the date of service of the hearing officer’s decision and order by the Division to carrier A and to the attorney representing carrier A at their correct addresses.

EMPLOYER

The claimant testified that Employer 1 hired him in September of 2006 and assigned him to work at Employer 2 as an industrial maintenance mechanic to work on pumps and valves, replace pipes, weld and do preventive maintenance. The evidence reflects that Employer 1 is a provider of temporary workers and not a staff leasing agency. The claimant further testified that Employer 1 employees would visit the Employer 2 facility each week to deliver payroll and to check on their assigned workers; however, the claimant also stated that he received daily work assignments from Employer 2 maintenance supervisors, and that on the date of injury, ____________, a Employer 2 supervisor had directed him as well as the entire maintenance department, to work on the roof, removing panels to allow access by a crane inside the Employer 2 facility.

The claimant’s testimony was consistent with and supported by the testimony of (DJR), a manager for Employer 1. DJR stated that he considered the claimant as an employee of Employer 1 on the date of injury as well as a co-employee of Employer 2 because Employer 2 had assigned the claimant to work outside the scope of the duties for which Employer 1 had assigned the claimant to with Employer 2, namely: to work on machinery and equipment within the plant to keep it functioning to continue to make styrofoam cups rather than to work as a general laborer on the roof. DJR also testified that while Employer 2 could fire the claimant from their work site, only Employer 1 could fire the claimant as an employee of Employer 1. DJR also stated that Employer 2’s maintenance managers had control over the claimant’s work at the Employer 2 facility. There is no evidence of a written or oral agreement between Employer 1 and Employer 2 regarding workers’ compensation insurance coverage for Employer 1 temporary workers assigned to Employer 2.

The identity of the employer for the purpose of workers’ compensation was at issue in this case. In Wingfoot Enters. v. Alvarado, 111 S.W.3d 134 (Tex. 2003), the Texas Supreme Court held that there may be two employers for workers’ compensation purposes when a provider of temporary workers furnishes a worker to a client that controlled the details of the work at the time the worker was injured and there was no agreement between the provider of temporary workers and the client regarding workers’ compensation coverage. The Texas Supreme Court also held that “[a]n employee injured while working under the direct supervision of a client company is conducting the business of both the general employer and that employer’s client. The employee should be able to pursue workers’ compensation benefits from either.” See also Appeals Panel Decision 061764-s, decided October 31, 2006.

That portion of the hearing officer’s decision that Employer 2 is the claimant’s employer for purposes of the 1989 Act at the time of the claimed injury is supported by sufficient evidence and is affirmed.

Because there is sufficient evidence to support the hearing officer’s determination that at the time of the claimant’s injury on ____________, he was performing the duties of a maintenance mechanic assigned by Employer 1, a temporary agency, to Employer 2, the client, accordingly the claimant at the time of his injury was conducting the business of Employer 1, the general employer, and Employer 2, the employer’s client.  Additionally, there is no evidence of an agreement regarding workers’ compensation coverage between Employer 1 and Employer 2. Therefore, that portion of the hearing officer’s employer-employee decision that did not include a conclusion of law or decision regarding whether Employer 1 is the claimant’s co-employer for purposes of the 1989 Act at the time of the claimed injury is reversed as incomplete and a new decision rendered that Employer 1 is the claimant’s co-employer for purposes of the 1989 Act at the time of the claimed injury.

FAILURE TO TIMELY FILE CLAIM FOR COMPENSATION

UNDER SECTION 409.004 AS TO CARRIER A

The hearing officer’s decision that carrier A is not relieved from liability under Section 409.004 is supported by sufficient evidence and is affirmed.

SECTION 409.021 AS TO CARRIER L

Section 409.021(a) provides that for claims based on a compensable injury that occurred on or after September 1, 2003, that not later than the 15th day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall:  (1) begin the payment of benefits as required by the 1989 Act; or (2) notify the Division and the employee in writing of its refusal to pay. Section 409.021(c) provides that if an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability.

Carrier L, the insurance carrier for Employer 1, did not contend either at the CCH, or on appeal, that it contested the compensability of the claimant’s injury within the 60-day period. In the Background Information of the decision, the hearing officer stated:

This [h]earing [o]fficer performed a review of the Division’s [Dispute Resolution Information System] [n]otes, Texas Compass Claim Forms List, and TXCOMP file on the claimant’s ____________, date of injury. That review shows that [Employer 1] filed its First Report of Injury on March 20, 2007. ([Hearing Officer’s Exhibit Nos. 4 and 5]). It also shows that [carrier L] initiated benefits upon receiving notice of the injury, and that [carrier L] did not contest the claim within the 60-day period to dispute. In fact, the Division’s records show that the carrier paid benefits for over two years. Those benefits included impairment income benefits. To date, there is still no PLN dispute of the claim from [carrier L], in the Division’s records.

In addition, there is an unappealed Finding of Fact No. 8 which in pertinent part states that neither carrier L nor its insured employer, Employer 1, contested the claim within the 60-day period to dispute. Rather carrier L argued at the CCH and on appeal that it found evidence that could not have reasonably been discovered earlier which would allow it to reopen the issue of compensability pursuant to Section 409.021(d).

DJR, the manager for Employer 1, for which the insurance carrier is carrier L, testified that Employer 1 does not assign workers to do “roofing jobs or anything like that because of the risk” and that he was not aware that the claimant was performing such duties and that the claimant was injured because of a fall from “a high height” until “shortly after the injury occurred based on the investigation of the injury actually happening,” either on or a few days after ____________. DJR further testified that he reported the facts of the claimant’s fall to carrier L, and that to his knowledge carrier L never disputed or denied that this was not a compensable injury. Rather, carrier L paid income and medical benefits to the claimant over the last three years. DJR testified that he had advised carrier L that he felt that Employer 2 could have co-employer responsibility and “they needed to pursue subrogation from day one.”

The evidence reflects that carrier L reasonably could have discovered that the claimant’s injury on ____________, allegedly occurred while the claimant was performing work outside the scope of his assigned duties, at the direction of Employer 2, in order to dispute compensability.^[1]Accordingly, we reverse the hearing officer’s decision that carrier L has not waived its right to contest that the claimant was an employee of Employer 1, pursuant to Section 409.021 and render a new decision that carrier L has waived its right to contest that the claimant was an employee of Employer 1, pursuant to Section 409.021.

CARRIER LIABILITY

That portion of the hearing officer’s decision that carrier A, the carrier for Employer 2, is liable for the claimant’s injury sustained on ____________, is supported by sufficient evidence and is affirmed.

Given that we have rendered a new decision that Employer 1 is the claimant’s co-employer for purposes of the 1989 Act at the time of the claimed injury, that portion of the hearing officer’s decision on carrier liability that did not include a conclusion of law or decision regarding whether carrier L, the insurance carrier for Employer 1, was liable for the claimant’s injury sustained on ____________, is reversed as incomplete and a new decision rendered that carrier L is liable for the claimant’s injury sustained on ____________.

SUMMARY

We affirm that portion of the hearing officer’s determination that Employer 2 is the claimant’s employer for purposes of the 1989 Act at the time of the claimed injury.

We affirm that portion of the hearing officer’s determination that carrier A, the carrier for Employer 2, is liable for the claimant’s injury sustained on ____________.

We affirm the hearing officer’s determination that carrier A is not relieved from liability under Section 409.004.

We reverse that portion of the hearing officer’s determination on the identity of the claimant’s employer at the time of the claimed injury as incomplete regarding Employer 1 and render a new decision that Employer 1 was the claimant’s co-employer for purposes of the 1989 Act at the time of the claimed injury.

We reverse that portion of the hearing officer’s determination on carrier liability regarding carrier L as incomplete and render a new decision that carrier L, the insurance carrier for Employer 1, is liable for the claimant’s injury sustained on ____________.

We reverse the hearing officer’s determination that carrier L has not waived its right to contest that the claimant was an employee of Employer 1, pursuant to Section 409.021 and render a new decision that carrier L has waived its right to contest that the claimant was an employee of Employer 1, pursuant to Section 409.021.

The true corporate name of insurance carrier A is AMERICAN HOME ASSURANCE 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.

The true corporate name of insurance carrier L is LIBERTY MUTUAL FIRE 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.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note that in the Background Information section of the decision and order, the hearing officer discusses that a carrier cannot waive into coverage and that who the correct employer is involves a question of coverage. The hearing officer bases his determination on carrier waiver under Section 409.021 on this concept. This is legal error. In Moralez v. Liberty Mutual Ins., 241 S.W.3d 514 (Tex. 2007) the Texas Supreme Court held that employee status is a question of compensability and is not a coverage issue.

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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 October 11, 2010.

The issues before the hearing officer were:

1. 1.Was (Employer 1), (Employer 2), (Employer 3)^[1], or (Employer 4), respondent 1’s (claimant) employer for purposes of the 1989 Act?

2. 2.Did appellant, Texas Mutual Insurance Company (TMC/Carrier C), respondent 2, Texas Mutual Insurance Company (TMC/Carrier A), respondent 3, Zurich American Insurance Company (Zurich/Carrier B), or respondent 4, American Guarantee and Liability Insurance Company (AG&L/Carrier D) provide workers’ compensation insurance for Employer 1, Employer 2, Employer 3, or Employer 4 on (date of injury)? (issue as modified by consent of all parties)

3. 3.Did the claimant sustain a compensable injury on (date of injury)?

4. 4.Did the claimant have disability resulting from an injury sustained on (date of injury), and if so, for what period(s)?

The hearing officer determined that: (1) on (date of injury), the claimant was the employee of Employer 1, Employer 2, and Employer 3 but was not the employee of Employer 4 for purposes of the 1989 Act; (2) TMC/Carrier C provided workers’ compensation insurance for Employer 2 and Employer 3 on (date of injury); (3) TMC/Carrier A did not provide workers’ compensation for Employer 1 on (date of injury); (4) AG&L/Carrier D did not provide workers’ compensation insurance for either Employer 1, Employer 2, Employer 3, or Employer 4 on (date of injury); (5) Zurich/Carrier B provided workers’ compensation insurance for Employer 4 on (date of injury); (6) the claimant sustained a compensable injury on (date of injury); and (7) the claimant had disability beginning on August 22, 2009, and continuing through the date of the CCH, October 11, 2010.

TMC/Carrier C appealed the hearing officer’s determinations; however, it specifically contended that because the claimant was not an “assigned employee” under the Staff Leasing Services Act (SLSA), the claimant was not covered by Employer 3’s workers’ compensation policy, and that the claimant was not a borrowed servant of Employer 2. AG&L/Carrier D responded, urging affirmance of the hearing officer’s determination that AG&L/Carrier D did not provide workers’ compensation insurance coverage for any entity in this claim or any liability in this case. The appeal file does not contain a response from the claimant, TMC/Carrier A, or Zurich/Carrier B to TMC/Carrier C’s appeal. The hearing officer’s order to dismiss AG&L/Carrier D from the case has not been appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

FACTUAL SUMMARY

The claimant testified that she was injured at work when she fell through a hole in the floor while cleaning at the (jobsite) on (date of injury). The claimant testified that she was hired and paid by Employer 1, which did Employer 1 hanging. The evidence reflects that the claimant was sent by Employer 1 to do general cleaning at the (jobsite).

The evidence reflects the following relationships between entities on the (jobsite):

1. 1.Employer 4 was the general contractor for the (jobsite);

2. 2.Employer 4 contracted with Employer 2 as an independent contractor to provide services on the project which included drywall hanging;

3. 3.Employer 3 was the license holder under SLSA and contracted with Employer 2, the client company, to provide human resource (HR) services and workers’ compensation insurance to the “Staff” of Employer 2 on the (jobsite).

4. 4.By agreement with Employer 2, Employer 3 did not provide workers’ compensation insurance for any Employer 2 employee other than those defined as “Staff.” Employer 2 understood that it would be responsible for providing workers’ compensation insurance for any employees other than “Staff.”

5. 5.Employer 2 “Staff” is defined within the contract between Employer 2 and Employer 3 as meaning “those identified by [Employer 2] as employees subject to this Agreement, reported to Employer 3 in writing, and for whom [Employer 2] has reported payroll and supplied the other data required by Employer. Persons who have not been identified to Employer 3 as Staff are not subject to this Agreement. Staff are ‘assigned employees’ within the meaning of Texas Labor Code 91.001(2).”

6. 6.Employer 2 contracted with Employer 1 for temporary workers for the (jobsite).

EMPLOYMENT RELATIONSHIPS AND COVERAGE

EMPLOYER 1 AND TMC/CARRIER A

That portion of the hearing officer’s determination that on (date of injury), the claimant was the employee of Employer 1 is supported by sufficient evidence and is affirmed.

The hearing officer’s determination that TMC/Carrier A did not provide workers’ compensation insurance for Employer 1, on (date of injury), is supported by sufficient evidence and is affirmed.^[2]

EMPLOYER 4 AND ZURICH/CARRIER B

The hearing officer’s determination that Zurich/Carrier B provided workers’ compensation insurance for Employer 4 on (date of injury), is supported by sufficient evidence and is affirmed.

The hearing officer’s determination that on (date of injury), the claimant was not the employee of Employer 4 is supported by sufficient evidence and is affirmed.

EMPLOYER 2 AND EMPLOYER 3 AND TMC/CARRIER C

The hearing officer’s determination that TMC/Carrier C provided workers’ compensation insurance for Employer 2 and Employer 3 on (date of injury), is supported by sufficient evidence and is affirmed.

(TY), the vice-president of Employer 2, testified that Employer 2 contracted with Employer 1 to provide temporary workers for the (jobsite), which was a big job lasting at least a year. TY testified that the hiring of Employer 1’s employees was to supplement Employer 2’s employees for this project because they did not have enough people to do all the work.

In evidence is the Subcontract Agreement dated November 14, 2008, between Employer 4, the general contractor, and Employer 2, the independent contractor. Employer 2 agreed in pertinent part with Employer 4 that:

Employer 2 would furnish all materials, labor, construction equipment, tools, supplies, and/or services to furnish the work and shall carry out all obligations, duties, and responsibilities imposed on Employer 2 by the Agreement Documents.

Employer 2 shall provide and maintain, during the term of this Agreement . . . occurrence-based insurance with coverages and limits of liability . . . . Employer 2 shall require each Subcontractor to provide and maintain, during the term of their respective agreements . . . the insurance coverages specified.

Required Coverage includes workers’ compensation.

Employer 2 and its Subcontractors shall be independent contractors with respect to the Work, and neither Employer 2 nor its Subcontractors, nor any person employed by any of them shall be deemed to be Employer 4’s employees, servants, representatives or agents in any respect.

In evidence is the Customer Service Agreement between Employer 2 and Employer 3, signed on January 21, 2009, and on February 3, 2009, respectively. That agreement specifically provides in pertinent part that:

1. 1.Employer 3 agrees to provide [Employer 2] with the HR support services identified under this Agreement, solely with respect to those employees identified in writing by [Employer 2] to Employer 3 as Staff under the terms of this Agreement.  Employer 3 assumes only those responsibilities toward the Staff as specifically required under this Agreement or which are required under Chapter 91 of the Texas Labor Code. In all other respects, [Employer 2] shall continue to have full and sole responsibility with respect to the Staff and with respect to the operation of its business.

   * * * *

   6.(a) [Employer 2] is solely responsible for locating, recruiting, evaluating and screening all persons that [Employer 2] intends to designate as Staff under this Agreement. Persons hired by [Employer 2] will become Staff subject to this Agreement only upon [Employer 2’s] submission of a completed Employer 3 new employee packet and the assignment of an employee number by Employer 3. Persons hired by [Employer 2] but not disclosed to Employer 3 by [Employer 2] are not Staff under this Agreement, and Employer 3 shall have no responsibility of any kind as to such persons. [Employer 2] understands that only Staff properly identified to Employer 3 under this Agreement will be covered by Employer 3’s workers’ compensation insurance.

   * * * *

   8.(e) [Employer 2] shall maintain a policy of standard workers’ compensation insurance in order to cover all employees of [Employer 2], other than Staff covered by this Agreement . . . . [Employer 2] understands that Employer 3’s workers’ compensation insurance will not provide any coverage with respect to any of [Employer 2’s] contractors or subcontractors. [Employer 2] shall ensure that all of its contractors or subcontractors hold workers’ compensation in compliance with state law. [Employer 2] shall obtain a certificate of insurance from each contractor or subcontractor . . . .

The evidence reflects that Employer 1 furnished to Employer 2 a Certificate of Liability Insurance for workers’ compensation coverage provided by TMC/Carrier A for its employees at the (jobsite). Also in evidence is a Notice of Cancellation reflecting that said policy, effective from October 9, 2008, through October 9, 2009, was cancelled effective February 16, 2009. TY testified that he was unaware that Employer 1 no longer had workers’ compensation insurance coverage for the claimant’s injuries until after her date of injury on (date of injury), and that he was misled by Employer 1 as to workers’ compensation insurance coverage.

(AS), the Director of Risk Management for Employer 3, testified that the workers’ compensation insurance coverage through TMC/Carrier C did not cover any employees hired by Employer 2 and undisclosed to Employer 3. AS testified that the claimant was not an employee of Employer 2 or of Employer 3. There is no evidence that the claimant completed the new employee packet required by Employer 3 or that Employer 3 issued the claimant a new employee number as set out under the terms of the Agreement with Employer 2 such that the claimant would be identified as “Staff” or an “assigned employee” of Employer 2. AS testified that Employer 2 and Employer 3 would be considered co-employers only as to disclosed employees of Employer 2 and such co-employees would be covered by TMC/Carrier C.

The claimant testified that she reported to the jobsite at (jobsite) and was provided tools to use and directions as to where to work at the jobsite by two foremen employed by Employer 2. Employer 2’s foremen, Johnny and Miguel, daily supervised at the jobsite the Employer 1 crew’s work of which her cleaning was an integral part of her crew’s drywall hanging. Testimony from TY reflected that although Employer 1 initially paid its employees, Employer 2 began paying Employer 1 employees directly after concerns about Employer 1 paying its employees.

The identity of the employer for purpose of workers’ compensation was at issue in this case. The starting point in our analysis is the definition of “Employer” under Section 401.011(18). “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 term includes a governmental entity that self-insures, either individually or collectively.” Section 401.011(44) defines “Workers’ compensation insurance coverage” to mean: “(A) an approved insurance policy to secure the payment of compensation; (B) coverage to secure the payment of compensation through self-insurance as provided by this subtitle; or (C) coverage provided by a governmental entity to secure the payment of compensation.” The exclusive remedy provision of the 1989 Act says, “Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.” See Section 408.001(a). But if an employer, i.e., “a person who employs one or more employees,” elects not to obtain workers’ compensation insurance, that employer is subject to common-law negligence claims and may not assert certain defenses, including contributory negligence, assumed risk, or that the injury or death was caused by a fellow employee. See Section 406.033.

We note that in Texas Workers’ Compensation Insurance Fund v. Del Industrial, Inc., 35 S.W.3d 591 (Tex. 2000), the insurance carrier for Del Industrial was attempting to collect premiums to cover not only workers directly employed by Del Industrial but the employees leased to Del Industrial by a staff leasing company. The staff leasing company had elected not to provide workers’ compensation coverage for the employees leased to Del Industrial. The court stated that the insurance carrier in that case contended that the “coemployer” language in subsection (c) means that Del Industrial, the client company, is the “coemployer” of the leased employees for workers’ compensation purposes such that the leased workers were covered by Del Industrial’s workers’ compensation policy. The court went on to say that interpretation of “coemployer” ignores the context in which the word is used and is contrary to the express statutory scheme developed by the Texas Legislature. The court further stated that because the Legislature immediately followed the term “coemployers” with an explicit explanation of the consequences of the staff leasing company’s election, it held that the staff leasing company and the client company are “coemployers” only to the extent of the staff leasing company’s election. The court stated that the SLSA, Texas Labor Code Chapter 91, statutorily supercedes the common-law right-of-control test in determining employer status of leased employees for workers’ compensation purposes.

Under SLSA, Labor Code Chapter 91, Section 91.001(2) defines “Assigned employee” to mean “an employee under a staff leasing services arrangement whose work is performed in this state. The term does not include an employee hired to support or supplement a client company’s work force in a special work situation, including: (A) an employee absence; (B) a temporary skill shortage; (C) a seasonal workload; or (D) a special assignment or project.

Section 91.001(14) also defines “Staff leasing services” to mean:

an arrangement by which employees of a license holder are assigned to work at a client company and in which employment responsibilities are in fact shared by the license holder and the client company, the employee’s assignment is intended to be of a long-term or continuing nature, rather than temporary or seasonal in nature, and a majority of the work force at a client company worksite or a specialized group within that work force consists of assigned employees of the license holder. The term includes professional employer organization services. The term does not include: (A) temporary help; (B) an independent contractor; (C) the provision of services that otherwise meet the definition of “staff leasing services” by one person solely to other persons who are related to the service provider by common ownership; or (D) a temporary common worker employer as defined by Chapter 92.

Section 91.001(16) defines “Temporary help” to mean:

an arrangement by which an organization hires its own employees and assigns them to a client to support or supplement the client’s work force in a special work situation, including: (A) an employee absence; (B) a temporary skill shortage; (C) a seasonal workload; or (D) a special assignment or project.

We must analyze whether the claimant under the facts of this case is covered as an “assigned employee” under the workers’ compensation insurance coverage by TMC/Carrier C as provided by the agreement between Employer 2 and Employer 3 under SLSA, Labor Code Chapter 91. The evidence reflects that the claimant was a temporary worker furnished by Employer 1 to Employer 2 in order to supplement its workforce on a special project. Section 91.001(16). The testimony of TY, the vice-president of Employer 2, reflects that Employer 2 and Employer 1 had an agreement that Employer 1 was to provide workers’ compensation insurance for its employees, which included the claimant, on the (jobsite), and that Employer 2 did not know that the workers’ compensation insurance coverage provided by TMC/Carrier A was cancelled effective February 16, 2009. There is no evidence that Employer 2 provided workers’ compensation insurance coverage for any temporary workers on the (jobsite). The evidence reflects that the claimant is not an employee of Employer 2 or of Employer 3 based on the terms of the agreements in evidence as discussed between Employer 2 and Employer 3 and by the testimony of TY and AS, the Director of Risk Management for Employer 3. Accordingly, we hold that on (date of injury), the claimant was not an assigned employee for which workers’ compensation insurance coverage was provided by TMC/Carrier C for Employer 2 and Employer 3. Further, because Employer 1’s workers’ compensation insurance coverage was cancelled by TMC/Carrier A effective on February 16, 2009, prior to the date of the claimant’s work injury on (date of injury), the claimant had no “employer” that provided workers’ compensation insurance coverage for the claimant’s work injury for purposes of the 1989 Act.

Therefore, the hearing officer erred as a matter of law in finding that the claimant was an employee of Employer 3and/or Employer 2 under a theory of coemployers under SLSA or under a theory that Employer 2 was an “employer” for the purposes of the 1989 Act providing workers’ compensation insurance coverage for the claimant, a temporary worker provided by Employer 1. That portion of the hearing officer’s determination that on (date of injury), the claimant was the employee of Employer 2 and of Employer 3 for purposes of the 1989 Act is reversed and a new decision rendered that on (date of injury), the claimant was not the employee of Employer 2 or of Employer 3 for purposes of the 1989 Act.

COMPENSABILITY AND DISABILITY

Section 401.011(10) defines “[c]ompensable injury” to mean “an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle [the 1989 Act].” To be eligible for benefits under the Act, the injured worker must have been an employee of an employer that carries workers’ compensation insurance coverage at the time the work-related injury occurred. Section 406.031. Section 401.011(16) defines “[d]isability” to mean “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the pre-injury wage.”

Given that we have affirmed that portion of the hearing officer’s determination that the claimant was the employee of Employer 1, which did not carry workers’ compensation insurance coverage at the time the claimant’s work-related injury occurred on (date of injury), and reversed that portion of the hearing officer’s determination that the claimant was the employee of Employer 2 and of Employer 3 on (date of injury), and rendered a new decision that the claimant was not an employee of Employer 2 or of Employer 3 on (date of injury), we hold that the claimant was not an employee of an employer that was a subscriber to workers’ compensation insurance on (date of injury). Therefore, we reverse the hearing officer’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 further reverse the hearing officer’s determination that the claimant had disability beginning on August 22, 2009, and continuing through the date of the CCH, October 11, 2010, and we render a new decision that the claimant did not have disability because there is no compensable injury on (date of injury).

SUMMARY

We affirm the hearing officer’s determination that on (date of injury), the claimant was the employee of Employer 1.

We affirm the hearing officer’s determination that TMC/Carrier A did not provide workers’ compensation insurance for Employer 1, on (date of injury).

We affirm the hearing officer’s determination that on (date of injury), the claimant was not the employee of Employer 4.

We affirm the hearing officer’s determination that Zurich/Carrier B provided workers’ compensation insurance for Employer 4 on (date of injury).

We affirm the hearing officer’s decision that TMC/Carrier C provided workers’ compensation insurance for Employer 2 and Employer 3 on (date of injury).

We reverse that portion of the hearing officer’s decision that on (date of injury), the claimant was the employee of Employer 2 and of Employer 3 for the purposes of the 1989 Act and we render a new decision that on (date of injury), the claimant was not the employee of Employer 2 or of Employer 3 for the purposes of the 1989 Act.

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

We reverse the hearing officer’s determination that the claimant had disability beginning on August 22, 2009, and continuing through the date of the CCH, October 11, 2010, and we render a new decision that the claimant did not have disability because there is no compensable injury on (date of injury).

The true corporate name of TMC/Carrier A is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RON O. WRIGHT, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

The true corporate name of Zurich/Carrier B 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.

The true corporate name of TMC/Carrier C is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RON O. WRIGHT, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

The true corporate name of AG&L/Carrier D is AMERICAN GUARANTEE AND LIABILITY 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.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Carisa Space-Beam
Appeals Judge

1. Employer 3 is also known as (name).

   ↑

2. In the Background Information section of the decision and order, the hearing officer stated: “Records show that [Employer 1] obtained workers’ compensation insurance from [TMC/Carrier A] and that such insurance was properly terminated as of February 16, 2009.”

   ↑

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 July 7, 2010. The issues before the hearing officer were:

1. (1)Did Liberty Mutual Insurance Company provide workers’ compensation insurance coverage for (employer) on __________?

2. (2)Did the appellant (claimant) have disability from July 9, 2009, to the present, resulting from the compensable injury sustained on __________?

The hearing officer determined that the parties agreed the respondent (carrier) did not owe interest on unpaid Texas workers’ compensation benefits because the claimant received (state) workers’ compensation benefits for that time period from the same carrier, and that the parties agreed and stipulated that the carrier provided workers’ compensation coverage for the employer on __________.

The claimant appealed that portion of the agreement and the decision which states, “because [the] [c]laimant received [(state)] workers’ compensation benefits for that time period from the same carrier,” contending that the hearing officer incorrectly recited the parties’ agreement in his decision. The appeal file does not contain a response from the carrier. The parties’ agreement regarding the proper carrier was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and rendered.

The hearing officer’s decision that the parties agreed that the carrier did not owe interest on unpaid Texas workers’ compensation benefits because the claimant received (state) workers’ compensation benefits for that time period from the same carrier does not accurately reflect the parties’ agreement. A review of the record of the July 7, 2010, CCH establishes that the agreement was as follows:

Claimant’s attorney: The claimant is agreeing to waive the interest payment for any past due disability. And it’s my understanding that the carrier is agreeing to pay future benefits pursuant to the Act.

Carrier’s attorney: I think only on the first point on the first issue with regard to the [(state)] claim, because an [(state)] claim has already been initiated, not by [the claimant], but by the employer and [c]arrier, we - - we need to actually withdraw the [(state)] claim, so we’re going to have to file something in [(state)] that will result in dismissal of the [(state)] claim, and that’s - - with that amendment, everything else [the] [c]arrier agrees to as stated by [the claimant’s attorney].

Consequently, the hearing officer erred in his determination of the parties’ agreement referencing that the rationale for waiving interest was “because [the] [c]laimant received [(state)] workers’ compensation benefits for that time period from the same carrier.” We reverse that portion of the hearing officer’s determination by striking so much of that determination and of the decision which refers to “because [the] [c]laimant received [(state)] workers’ compensation benefits for that time period from the same carrier.” We render a new decision that the parties agreed that the carrier did not owe interest on unpaid Texas workers’ compensation benefits.

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.

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 commenced on October 5, 2009, and concluded on December 3, 2009. The issues before the hearing officer were:

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

2. 2.Does the claimant have disability resulting from the injury sustained on __________, from February 9, 2008 through the present?

3. 3.Was [(Employer 1)], [(Employer 2)] and/or [(Employer 3)] the claimant’s employer for the purpose of the Texas Workers’ Compensation Act at the time of the claimed injury?

4. 4.Is [respondent 3] American Guarantee & Liability [(Carrier C)], [respondent 1] America First Lloyds Insurance Company [(Carrier A)], or [respondent 2] Ace American Insurance Company [(Carrier B)] liable for the claimed injury sustained on __________?

5. 5.Has [Carrier A], [Carrier B], and/or [Carrier C] waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021?

The hearing officer determined that: (1) Employer 2/Employer 3 is the employer for the purpose of the Texas Workers’ Compensation Act at the time of the claimed injury on __________; (2) neither Carrier A, Carrier B, nor Carrier C is liable for the claimant’s injury sustained on __________; (3) the claimant did not sustain a compensable injury on __________; (4) the claimant “did not have disability resulting from an injury sustained on __________, from April 23, 2008 through July 4, 2009”; and (5) neither Carrier A, Carrier B, nor Carrier C have waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021.

The claimant appealed all the issues. Carrier A, Carrier B, and Carrier C responded, urging affirmance.

DECISION

Affirmed in part and reversed and rendered in part.

INSURANCE COVERAGE, INJURY AND CARRIER WAIVER ISSUES

The hearing officer’s determinations that: (1) neither Carrier A, Carrier B, nor Carrier C is liable for the claimant’s __________, injury; (2) the claimant did not sustain a compensable injury on __________; and (3) neither Carrier A, Carrier B, nor Carrier C have waived the right to contest compensability of the claimed injury by not timely contesting the injury pursuant to Section 409.021, are supported by sufficient evidence and are affirmed.

WHO IS THE EMPLOYER

The hearing officer determined that Employer 2/Employer 3 (license holders under the Staff Leasing Services Act) “is the employer” at the time of the claimed injury. The hearing officer in the findings of fact considered Employer 2 and Employer 3 as being the same entity. The evidence shows that Employer 2 and Employer 3 are two separate entities/employers. The claimant applied for employment with Employer 3; signed an acknowledgement that he was an employee of Employer 3, that he would be performing his job skills for Employer 1 as directed by his supervisor, an employee of Employer 3, that any injuries would be reported to Employer 3 and that reassignments would be made by Employer 3. The claimant testified that he was paid by Employer 3. We affirm so much of the hearing officer’s decision and order that determined that Employer 3 is the employer for purpose of the Texas Workers’ Compensation Act at the time of the claimed injury on __________. We reverse so much of the findings of fact, conclusions of law and decision that hold Employer 2 was an employer, for purpose of the Texas Workers’ Compensation Act at the time of the claimed injury on __________, as being so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. We render a new decision that strikes that portion of the hearing officer’s decision and order that holds Employer 2 was an employer for the purpose of the Texas Workers’ Compensation Act at the time of the claimed injury on __________.

DISABILITY

The disability issue before the hearing officer was “[d]oes the claimant have disability resulting from the injury sustained on __________, from February 9, 2008, through the present?” The hearing officer, in the Background Information commented that because there is no compensable injury, there can be no disability. See the definition of disability in Section 401.011(16). The hearing officer goes on to state “if this case is found to be compensable . . . [t]he preponderance of the evidence supports that [c]laimant sustained disability from a claimed injury on __________, from February 9, 2008 through the date of this hearing.”

The hearing officer in Conclusion of Law No. 6 and the Decision concludes that the claimant “did not have disability resulting from an injury sustained on __________, from April 23, 2008 through July 4, 2009.” As noted above, the period of claimed disability at issue was from February 9, 2008, through December 3, 2009, the date of the CCH. The period of disability litigated was from February 9, 2008, through the date of the CCH, December 3, 2009.

Accordingly, we reverse the hearing officer’s determination in Conclusion of Law No. 6 and the Decision that the claimant did not have disability from April 23, 2008, through July 4, 2009, and render a new decision that the claimant did not have disability resulting from the __________, injury from February 9, 2008, through December 3, 2009, in order to conform with the evidence.

The hearing officer in Finding of Fact No. 10 found that beginning on February 9, 2008, and continuing through the date of the hearing, “but not thereafter,” the work injury of __________, was a cause of the claimant’s inability to obtain and retain employment of wages equivalent to his pre-injury wage. The hearing officer exceeded her jurisdiction by determining that the claimant did not have disability after the date of the CCH. We strike that portion of the hearing officer’s Finding of Fact No. 10 that the claimant did not have disability after the date of the hearing by striking the words “but not thereafter.”

SUMMARY

We affirm the hearing officer’s determinations that: (1) neither Carrier A, Carrier B, nor Carrier C is liable for the claimant’s __________, injury; (2) the claimant did not sustain a compensable injury on __________; and (3) neither Carrier A, Carrier B, nor Carrier C have waived the right to contest compensability of the claimed injury pursuant to Section 409.021.

We reverse the hearing officer’s determination that “[Employer 2]/[Employer 3] is the employer for the purpose of the Texas Workers’ Compensation Act at the time of the claimed injury on __________” and render a new decision that Employer 3 is the employer for the purpose of the Texas Workers’ Compensation Act at the time of the claimed injury on __________, and strike that portion of the hearing officer’s decision and order that held Employer 2 was an employer for the purpose of the Texas Workers’ Compensation Act at the time of the claimed injury on __________.

We reverse the hearing officer’s Conclusion of Law No. 6 and the Decision portion of the hearing officer’s decision and order that states the claimant did not have disability resulting from an injury sustained on __________, “from April 23, 2008 through July 4, 2009” and render a new decision that the claimant did not have disability resulting from an injury sustained on __________, from February 9, 2008, through December 3, 2009, in order to conform with the evidence.

We strike that portion of the hearing officer’s Finding of Fact No. 10 that the claimant did not have disability after the date of the hearing.

The true corporate name of Carrier A is AMERICA FIRST LLOYDS INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICES COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701.

The true corporate name of Carrier B is ACE AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is

ROBIN M. MOUNTAIN

225 EAST JOHN CARPENTER FREEWAY, SUITE 1300

IRVING, TEXAS 75062-2281.

The true corporate name of Carrier C is AMERICAN GUARANTEE & LIABILITY INSURANCE COMPANY 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.

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). A contested case hearing (CCH) was held on July 27, 2007. The hearing officer resolved the disputed issues by deciding that: (1) the respondent 2 (claimant) sustained a compensable injury on ___________; (2) the claimant had disability on December 22, 2005, and from (Carrier A’s alleged date of injury), through February 28, 2007, but not otherwise through the date of the CCH; (3) both appellant/cross-respondent (Carrier A) and respondent 1/cross-appellant (Carrier Z) provided workers’ compensation insurance for the employer applicable to the claimant’s injury of ___________; and (4) neither Carrier A nor Carrier Z is relieved from liability under Section 409.002 because the claimant did timely notify his employer pursuant to Section 409.001.

Both Carrier A and Carrier Z appealed the hearing officer’s determination that both carriers provided workers’ compensation insurance coverage for the employer on ___________. Carrier A contends that it provided the employer with workers’ compensation coverage only for a specific work site, the (VP) project. However, Carrier A alleges that the claimant was injured on (Carrier A’s alleged date of injury), at a work site other than the VP project. Carrier Z contends that it provided the employer with workers’ compensation coverage for a different work site, the (FBC) project, and that the claimant was injured at the VP project on ___________. Also, Carrier Z attached to its appeal an affidavit from its adjuster and a copy of Carrier Z’s insurance policy that purports to show that it provided workers’ compensation coverage for the employer at a specific work site, the FBC project. Both carriers responded to the other party’s appeal. Both carriers contend that they provided the employer with “project-specific” workers’ compensation coverage, rather than “general” coverage. Both Carrier A and Carrier Z have included the following language in their respective responses to the appeal and cross-appeal:

Both [Carrier A and Carrier Z] agree that, if the date of injury for the compensable injury is ___________, at the [VP] project, then [Carrier A] has sole coverage for that compensable injury. While the carriers disagree on other issues, both agree that under the policies identified by the Hearing Officer at the [CCH], each has project-specific workers’ compensation coverage under [Section 406.123], and neither generally insures [the employer] for workers’ compensation in Texas under those polices identified by the Hearing Officer.

Claimant responded to both Carrier A’s and Carrier Z’s appeals, urging affirmance of the hearing officer’s decision. The hearing officer’s disability and timely notice determinations were not appealed and have become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

FACTUAL SUMMARY

The claimant testified that on ___________, he was working at the VP project, a construction work-site, and hurt his low back lifting a 60-pound piece of rebar. The claimant testified that on (Carrier A’s alleged date of injury), he was working at a different work site when his right leg gave out. In evidence is a certificate of insurance that shows that Carrier A provided the employer with workers’ compensation coverage for the VP project from November 3, 2005, through March 15, 2006. At the CCH, the hearing officer admitted as evidence the Texas Department of Insurance, Division of Workers’ Compensation (Division) records (specifically, Texas Compass Employer Coverage) which indicate that Carrier A and Carrier Z provided insurance coverage for the employer (Hearing Officer’s Exhibit No. 4). The hearing officer found that on ___________, the claimant sustained damage to the physical structure of his body in the course and scope of his employment with the employer at the VP project in Dallas, Texas. The hearing officer determined that both Carrier A and Carrier Z provided workers’ compensation insurance for the employer applicable to the claimant’s injury of ___________.

COMPENSABLE INJURY

The hearing officer’s decision that the claimant sustained a compensable injury on ___________, is supported by sufficient evidence and is affirmed.

EMPLOYER COVERAGE

Coverage is a threshold requirement for establishing liability of a carrier. See APD 022268-s, decided October 30, 2002. The hearing officer found that on ___________, Carrier A provided workers’ compensation insurance for the employer for work performed at the VP project in Dallas, Texas, and that on ___________, Carrier Z provided workers’ compensation insurance for the employer. The hearing officer states in his discussion that “[b]ased on the evidence presented, both Carriers provided workers’ compensation insurance for [the employer] applicable to Claimant’s injury on ___________, [Carrier A] through a project specific policy as shown by exhibits [Carrier Z] offered, and [Carrier Z] through a policy shown by the Division’s [Texas Compass Employer Coverage] computer records.”

As previously mentioned, both Carrier A and Carrier Z agree, on appeal, that “if the date of injury for the compensable injury is ___________, at the [VP] project, then [Carrier A] has sole coverage for that compensable injury.” Given that we have affirmed the hearing officer’s determination that the claimant sustained a compensable injury on ___________, we reverse the hearing officer’s determination that both Carrier A and Carrier Z provided workers’ compensation insurance for the employer applicable to the claimant’s injury of ___________, and we render a decision that Carrier A provided workers’ compensation insurance for the employer applicable to the claimant’s injury of ___________, at the VP project. In view of the basis for our reversal, it is not necessary to consider whether documents submitted with Carrier Z’s appeal is newly discovered evidence.

SUMMARY

We affirm the hearing officer’s determination that the claimant sustained a compensable injury on ___________. We reverse the hearing officer’s determination that both Carrier A and Carrier Z provided workers’ compensation insurance for the employer applicable to the claimant’s injury of ___________, and we render a new decision that Carrier A provided workers’ compensation insurance for the employer applicable to the claimant’s injury of ___________, at the VP project.

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

ROBIN M. MOUNTAIN

6600 CAMPUS CIRCLE DRIVE EAST, SUITE 300

IRVING, TEXAS 75063.

The true corporate name of insurance carrier Z 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 75251-2237.

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 (CCH) was held on February 22, 2007.

The disputed issues with regard to Docket No. 1, were:

1. 1.Did appellant 2, Ace American Insurance Company (Carrier A) or appellant 1, Liberty Mutual Insurance Company (Carrier L) provide workers’ compensation insurance for the employer on ___________?

2. 2.Did the respondent (claimant) sustain a compensable injury on ___________?

3. 3.Did the claimant have disability resulting from an injury sustained on ___________, and if so for what periods?

   With regard to those issues the hearing officer determined that: (1) Carrier A did not provide workers’ compensation insurance to the employer on ___________; (2) Carrier L provided workers’ compensation insurance for the employer on ___________; (3) the claimant sustained a compensable injury on ___________; and (4) the claimant had disability due to the ___________, injury beginning on December 28, 2005, and continuing through July 16, 2006.

The sole disputed issue with regard to Docket No. 2, which pertained to the claimant’s compensable injury of (date of injury for Docket No. 2), was:

1.Did the first certification of maximum medical improvement (MMI) and impairment rating (IR) assigned by Dr. E on June 16, 2005, become final under [28 TEX. ADMIN. CODE § 130.12 (Rule 130.12)]?

With regard to that issue the hearing officer determined that the first certification of MMI and IR assigned by Dr. E on June 16, 2005, did not become final under Rule 130.12. See also Section 408.123.

Carrier L appealed, contending that Dr. E’s first certification of MMI and IR had become final; that the ___________, back injury had no nexus to the employment and was “a spontaneous idiopathic incident;” and that because the claimant had not sustained a compensable injury on ___________, the claimant did not have disability due to that injury. Carrier L also asserts that the hearing officer should have noted a stipulation that Carrier A “did not provide statutory workers’ compensation insurance” for the employer and that Carrier A is not subject to the jurisdiction of the Texas Department of Insurance, Division of Workers’ Compensation (Division). Carrier A also appealed, contending that the claimant’s ___________, injury was not in the course and scope of his employment. The determination that Carrier L provided workers’ compensation insurance for the employer was not appealed and has become final. Section 410.169.

The claimant responded to the appeals, urging affirmance. Regarding the finality issue, the claimant contends that he never received Dr. E’s certification and that even if he had, one or more of the exceptions in Section 408.123 would apply.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant was a “core analyst trainer” analyzing core cylinders of rock obtained in drilling in the United States and overseas. The parties, including the claimant, stipulated that the claimant sustained a compensable (low back) injury on (date of injury for Docket No. 2). The claimant also sustained another injury, while overseas, to his low back on ___________. The parties agreed on the record that Carrier L provided “statutory” workers’ compensation coverage for the employer and that Carrier A is not subject to the jurisdiction of the Division. The parties also agreed that if Carrier L is required to make payments under the 1989 Act for the ___________, injury, Carrier A would reimburse Carrier L in accordance with an international commercial insurance policy.

WHETHER CARRIER A PROVIDED WORKERS’ COMPENSATION INSURANCE COVERAGE FOR THE EMPLOYER

The hearing officer’s determination that Carrier A did not provide workers’ compensation coverage for the employer on ___________, is supported by the evidence and is affirmed.

COMPENSABLE INJURY AND DISABILITY UNDER DOCKET NO. 1

The hearing officer’s determinations that on ___________, the claimant sustained a compensable injury and that the claimant had disability due to the ___________, injury beginning on December 28, 2005, and continuing through July 16, 2006, are supported by the evidence and are affirmed.

FINALITY UNDER DOCKET NO. 2

The claimant sustained his compensable (date of injury for Docket No. 2), injury working on a heavy rock cylinder and began treating with Dr. E on (date of injury for Docket No. 2). The claimant was diagnosed with a lumbar strain, taken off work for two days, and then returned to work at light duty through June 6, 2005. Dr. E reported that the claimant was able to resume his regular duties by June 7, 2005, and on June 16, 2005, was given a full release with no restrictions on his activities. In a Report of Medical Evaluation (DWC-69) and narrative, both dated June 16, 2005, Dr. E certified the claimant at MMI on that date with a 0% IR. The IR was assessed as a Diagnosis-Related Estimate Lumbosacral Category I: Complaints and Symptoms, applying the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000). It is undisputed that Dr. E’s certification was the first certification of MMI and IR for the (date of injury for Docket No. 2), injury.

Carrier L contends that a Notification of [MMI]/First Impairment Income Benefit Payment Form (PLN-3) with Dr. E’s DWC-69 and report was mailed to the claimant, at the claimant’s address, by certified mail, return receipt requested, on July 15, 2005. In evidence is a PLN-3 dated July 15, 2005, addressed to the claimant in which it states: “We have received a report from [Dr. E] (copy attached) certifying that you have reached MMI on 06/16/2005 and have been assigned a whole body IR of 0%.” Also in evidence is a certified mail receipt, indicating the correspondence was sent to the claimant at the address where he was receiving all his mail at the time, on July 15, 2005. A copy of a United States Postal Service certified mail return receipt requested form or “green card” shows an individual, who the parties agree is the claimant’s grandmother, signed for the correspondence on July 25, 2005 (although that date could be read to be July 15, 2005, a date which is highly unlikely in that the correspondence was mailed on July 15, 2005, at a city several hundred miles away from the address where it was delivered). It is undisputed that the claimant was overseas at the time, and the claimant contends that he never received the certification or report.

On this issue, in the Background Information, the hearing officer writes:

. . . the evidence does not establish that claimant received written notice as required in [Rule 130.12(b)] through verifiable means. On July 15, 2005 carrier prepared a PLN-3 stating it received a report from [Dr. E] certifying a date of MMI and an IR. The notice letter recites that the report is attached, however the evidence does not establish that the [DWC-69] and narrative report were in fact attached to the PLN-3 mailed to claimant’s address. The evidence does establish that carrier mailed the PLN-3 to claimant’s address, certified mail return receipt requested, that was signed for by the claimant’s grandmother. Claimant testified that he did not receive [Dr. E’s] certification. Under Rule [130.12(b)] and relevant AP decisions a date certain cannot be established on which to calculate the 90 days as running against claimant.

Section 408.123(e) provides that, except as otherwise provided by this section, an employee’s first valid certification of MMI and first valid assignment of IR is final if the certification or assignment is not disputed before the 91st day after the date written notification of the certification or assignment is provided to the claimant and the carrier by verifiable means. Rule 130.12(b) provides, in part, that the first MMI/IR certification must be disputed within 90 days of delivery of written notice through verifiable means; that the notice must contain a copy of a valid DWC-69, as described in subsection (c); and that the 90-day period begins on the day after the written notice is delivered to the party wishing to dispute the certification.

The hearing officer, in the Background Information cited above, apparently believed that the carrier mailed the PLN-3 to the claimant’s address by certified mail return receipt requested and that the certified mail was signed for by the claimant’s grandmother, but that the claimant did not receive Dr. E’s certification. In a long line of Appeals Panel Decisions, we have held that when a certification of MMI/IR is mailed to the claimant’s correct address by certified mail, return receipt requested, but signed for by someone else other than the claimant, the MMI/IR certification has been delivered to the claimant. See Appeals Panel Decision (APD) 960335, decided April 5, 1996; APD 94365, decided May 11, 1994; and APD 992013, decided October 27, 1999. See also APD 992419, decided December 16, 1999, where the Appeals Panel held that the fact that the certified mail may actually be signed for by someone at the correct address other than the claimant does not as a matter of law establish nonreceipt by the claimant. We hold, in this case, that the written notice of the certification of MMI/IR by Dr. E was provided to the claimant by verifiable means. The hearing officer states that a date certain cannot be established on which to calculate the 90 days as “running against the claimant.” We disagree. Although the claimant testified that he did not get Dr. E’s certification of MMI/IR until “the first hearing,” the 90-day period began to run on the day after written notice of Dr. E’s certification of MMI/IR was delivered to the claimant’s address by verifiable means with a copy of Dr. E’s DWC-69, and signed for by the claimant’s grandmother, which was on July 25, 2005 (as explained above). It is undisputed that the claimant did not dispute Dr. E’s certification within 90 days of July 25, 2005.

The hearing officer also seems to indicate that he believes the PLN-3 was mailed and was signed for by the grandmother but that “the evidence does not establish that the DWC-69 and narrative report were in fact attached to the PLN-3 mailed to claimant’s address.” The PLN-3 references Dr. E’s report, states a “copy attached” and states the MMI date and IR. The claimant acknowledged that his grandmother signed for the certified mail sent by the carrier and that it was sent to the address where he received all of his mail. There is no evidence that Dr. E’s DWC-69 and narrative were not attached as the PLN-3 states. The claimant only testified that he did not receive the certification, although conceding that his grandmother had actually signed for the certified mail.

Lastly, the claimant generally contends, in his response, that even if he had received the certification, an exception would apply under Section 408.123(f) that “he had a previously undiagnosed condition and or improper and inadequate treatment for the compensable injury at the time of the certification.” The claimant does not cite any “compelling medical evidence” nor is there any in the record (see Section 408.123(f)(1)) to support his bare assertion. The hearing officer, in the Background Information, comments that the finality “‘issue’ as phrased and tried by the parties was only whether the certification became final as to the claimant by operation of the 90 day rule.” We hold that it did as explained above.

Accordingly, we reverse the hearing officer’s determinations that the claimant did not receive written notice by verifiable means of Dr. E’s June 16, 2005, certification of MMI and IR, and that the first certification of MMI and IR assigned by Dr. E on June 16, 2005, did not become final under Rule 130.12, as being so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. We render a new decision that the first certification of MMI on June 16, 2005, and 0% IR assigned by Dr. E became final under Section 408.123 and Rule 130.12.

SUMMARY

With regard to Docket No. 1, we affirm the hearing officer’s determinations that Carrier A did not provide workers’ compensation insurance to the employer on ___________; that the claimant sustained a compensable injury on ___________; and that the claimant had disability due to the compensable ___________, injury from December 28, 2005, continuing through July 16, 2006. With regard to Docket No. 2, we reverse the hearing officer’s determination that the first certification of MMI and IR assigned by Dr. E on June 16, 2005, did not become final under Rule 130.12 and render a new decision that the first certification of MMI and IR assigned by Dr. E on June 16, 2005 (for the (date of injury for Docket No. 2) injury) became final pursuant to Section 408.123 and Rule 130.12.

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

CT CORPORATION SYSTEMS

350 NORTH ST. PAUL, SUITE 2900

DALLAS, TEXAS, 75201.

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

ROBIN M. MOUNTAIN

6600 CAMPUS CIRCLE DRIVE EAST, SUITE 300

IRVING, TEXAS 75063.

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). A contested case hearing (CCH) was held on November 21, 2005. The hearing officer resolved the disputed issues by deciding: (1) Clarendon National Insurance Company/respondent 1 (carrier 1) provided workers’ compensation coverage for the employer on ___; (2) that carrier 1 is not relieved from liability under Sections 409.003 and 409.004; (3) that Fairfield Insurance Company/appellant (carrier 2) does not have standing as a subclaimant in accordance with Section 409.009; and (4) that the Texas Department of Insurance, Division of Workers’ Compensation (Division) does not have authority to determine whether carrier 2 is entitled to reimbursement from carrier 1 for benefits paid. Carrier 2 appealed, disputing the determination that it does not have standing as a subclaimant in accordance with Section 409.009 and that the Division does not have authority to determine whether carrier 2 is entitled to reimbursement from carrier 1 for benefits paid. Carrier 1 responded, urging affirmance. The determinations that carrier 1 provided workers’ compensation insurance for the employer on ___, and that carrier 1 is not relieved from liability under Sections 409.003 and 409.004 have not been appealed, and have become final pursuant to Section 410.169.

DECISION

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

The parties stipulated that the respondent 2 (claimant) sustained an injury in the course and scope of his employment on ___; that carrier 1 provided workers’ compensation coverage for the employer on ___; and that on (date of claimant’s death), the claimant died. It was undisputed that the claimant’s death was not a result of the injury sustained in the course and scope of his employment. The evidence reflected that carrier 2 had provided coverage for the employer but that such coverage was terminated prior to the date the claimant sustained the injury. However, despite the termination of coverage, carrier 2 mistakenly paid benefits and subsequently requested reimbursement from carrier 1. In correspondence dated January 7, 2005, carrier 1 refused the request from carrier 2 for reimbursement of benefits mistakenly paid to the claimant for injury sustained on ___.

SUBCLAIMANTS STATUS

The hearing officer determined that carrier 2 did not have standing as a subclaimant in accordance with Section 409.009. Section 409.009, effective for the time period at issue, is entitled “Subclaims” and provides:

A person may file a written claim with the commission as a subclaimant if the person has:

1. (1)provided compensation, including health care provided by a health care insurer, directly or indirectly, to or for an employee or legal beneficiary, and

2. (2)sought and been refused reimbursement from the insurance carrier.

Texas Government Code Section 311.005(2) defines “person” as follows: includes corporation, organization, government or governmental subdivision or agency, business trust, estate, trust, partnership, association, and any other legal entity.

Section 401.011(11) defines “compensation” as payment of a benefit. Section 401.011(5) defines “benefit” as a medical benefit, an income benefit, a death benefit, or a burial benefit based on a compensable injury.

In evidence was an affidavit from a claims representative from carrier 2 which stated that carrier 2 had paid a total of $94,605.57 in workers’ compensation benefits to or on behalf of the claimant in connection with the injury he sustained in the course and scope of his employment. There was also documentation in evidence which reflected that carrier 2 had requested reimbursement from carrier 1 and that such request was denied. Applying the plain meaning of the applicable statutes, carrier 2 is a person who would be allowed to file a written claim with the Division as a subclaimant, therefore meeting each element set forth in Section 409.009.

Further, statutory support for authorizing a carrier to be a subclaimant can be found in Section 402.084. Section 402.084(b)(8), effective September 1, 2001, provides that information on a claim may be released as provided by subsection (a) to a subclaimant under Section 409.009 that is an insurance carrier that has adopted an antifraud plan under Article 3.97-3, Insurance Code, or the authorized representative of such a subclaimant. [Emphasis added.] This provision recognizes by its express provision the potential of a carrier becoming a subclaimant. Although this provision was amended in 2005, the bill analysis in House Bill 251 evidences the intent of the legislature to continue the practice. The analysis provides in part that “House Bill No. 251 amends the Labor Code to require TWCC to release to an insurance carrier certain data that will allow the carrier to identify potential subclaims and pursue recovery that is already allowed under Section 409.009….” Business & Industry Comm., Bill Analysis, Tex. H.B. 251, 79th Leg., R.S. (2005).

Both carriers at the CCH as well as the hearing officer acknowledged that prior Appeals Panel decisions have been conflicting regarding both subclaimant status of carriers as well as jurisdiction regarding cases where the issue is carrier to carrier reimbursement.

In Appeals Panel Decision (APD) 941124, decided October 6, 1994, the Appeals Panel affirmed a hearing officer’s decision that the injured employee was the borrowed servant of the client company and that the client company’s workers’ compensation insurance carrier was the liable carrier, but reversed the hearing officer’s decision that the client company’s carrier had to reimburse the workers’ compensation insurance carrier of the employer who had hired the injured employee and assigned her to work at the client company for workers’ compensation benefits paid by that carrier to the claimant. The Appeals Panel cited Section 410.033 and noted that there was some support for the proposition that reimbursement between multiple carriers may be made in the absence of an interlocutory order, but concluded that the decision in Associated Indemnity Company v. Hartford Accident & Indemnity Company, 524 S.W.2d 373 (Tex. Civ. App.-Dallas 1975, no writ), was controlling and rendered a decision that the client company’s carrier was not required to reimburse the other carrier, who had accepted premiums collected by its insured from the client company and paid benefits to the injured employee.

In APD 961448, decided September 9, 1996, the Appeals Panel affirmed a hearing officer’s decision that the injured employee was the employee of the self-insured city under the borrowed servant doctrine; reversed the hearing officer’s decision that he did not have jurisdiction to decide the carrier reimbursement issue; and after explaining that the hearing officer determined that the carrier for the leasing company would be entitled to reimbursement if he had jurisdiction to determine the reimbursement issue and that such determination was not appealed, added a sentence to the hearing officer’s decision that the carrier for the leasing company was entitled to reimbursement for benefits paid to the injured employee. APD 961448, supra, considered the language in APD 941124, supra, regarding there being some support for the proposition that reimbursement between multiple carriers may be made in the absence of an interlocutory order.

In APD 992012, decided November 4, 1999, the Appeals Panel affirmed a hearing officer’s determination that she did not have jurisdiction to decide whether carrier B should reimburse carrier A for benefits it paid to the injured employee. The compensable injury occurred on the day that carrier B’s workers’ compensation insurance for the employer became effective, but carrier A mistakenly paid benefits. The Appeals Panel held that notwithstanding language in APD 961448 and APD 941124, a review of the language in Sections 410.032 and 410.033 revealed that the Division does not have the authority to order reimbursement in a situation where the “overpayment” was not made under an interlocutory order. The Appeals Panel noted that carrier A mistakenly paid benefits to the injured employee and that such benefit payments were not made pursuant to an interlocutory order. The Appeals Panel also noted that in Houston General Insurance Co. v. Association Casualty Insurance Company, 977 S.W.2d 634 (Tex. App.-Tyler 1998, no pet.), the court had characterized a claim for reimbursement, such as made by carrier A, as a claim for equitable subrogation, which the Appeals Panel said did not fall within the express or implied powers of the Division.

In APD 992487, decided December 22, 1999, the Appeals Panel affirmed the hearing officer’s decision that the injured employee was the borrowed servant of the motel he was assigned to work at as a security guard and that carrier A, the workers’ compensation insurer for the security guard company, was not entitled to reimbursement from carrier B, the motel’s workers’ compensation insurer, for workers’ compensation benefits paid to and for the injured employee. No interlocutory order had been issued for carrier A to pay benefits to the injured employee. Carrier A did pay medical and income benefits to the injured employee. The Appeals Panel applied the decision in APD 992012, supra, in determining that the hearing officer did not err in not ordering reimbursement from carrier B to carrier A. In addressing carrier A’s assertion that it was entitled to reimbursement as a subclaimant under Section 409.009, the Appeals Panel said “we do not view either of two or more carriers disputing the amounts of their respective liability to a claimant or their liability to one other [sic] for amounts paid to a claimant as subclaimants.”

In APD 000129, decided March 6, 2000, there were two compensable injuries with a period of overlapping disability. The hearing officer determined that carrier 2 was a subclaimant entitled to reimbursement from carrier 1 for benefits paid to and for the injured employee. Carrier 1 cited APD 992012, supra, as prohibiting reimbursement between carriers unless based on an interlocutory order of the Division, but the Appeals Panel stated that APD 992012 was inapplicable because the hearing officer based reimbursement on carrier 2’s status as a subclaimant. The Appeals Panel then stated that it was not holding that the subclaimant provisions of Section 409.009 do, or do not, apply to a carrier because that question was not before it because findings of fact that carrier 2 was a subclaimant and that a subclaimant is entitled to reimbursement were not appealed. The Appeals Panel stated that Section 409.009 does not limit subclaimants to reimbursement for payments the subclaimant was required to make and does not rule out voluntary compensation paid as being ineligible for reimbursement. The Appeals Panel also stated that “[p]resumably, if a carrier may use the general provisions of Section 409.009 which only say that a claim may be filed, then it may, in effect, expand the provisions of Section 410.033 to allow reimbursement whether or not there has been a Commission order involved.” The Appeals Panel affirmed the hearing officer’s determination for reimbursement to be paid by carrier 1 for benefits paid by carrier 2.

In APD 011531, decided August 16, 2001, the Appeals Panel affirmed the hearing officer’s determination that the injured employee was the borrowed servant of the client company he was assigned to work at by the day labor service and reversed the hearing officer’s decision that the workers’ compensation insurance carrier for the day labor service was entitled to reimbursement from the workers’ compensation insurance carrier for the client company. The carrier for the day labor service had paid medical and income benefits to and for the claimant. There was no interlocutory order for payment of benefits. The Appeals Panel stated that the hearing officer was without authority to order reimbursement to the day labor service carrier from the client company carrier, citing APD 992012, supra, that an interlocutory order was required and stating that Section 410.033 is the only statute addressing the situation of reimbursement in the case of multiple carriers who may be liable for benefits. The Appeals Panel also said that APD 992012 had distinguished and essentially overruled APD 961448, supra. The Appeals Panel noted that although APD 000129, supra, had “muddied the waters” by allowing reimbursement where one carrier was cast by the hearing officer as a “subclaimant,” no such finding or contention was made in the case before it.

In APD 030286, decided March 20, 2003, the Appeals Panel affirmed a hearing officer’s determination that two carriers provided workers’ compensation insurance for the injured employee’s compensable injury and that the Division does not have authority to determine the amount of reimbursement to be paid to carrier 1 by carrier 2. The Appeals Panel noted that Section 410.033 was not applicable because carrier 1 did not pay benefits pursuant to an interlocutory order of a benefit review officer. The Appeals Panel also said that it agreed with the hearing officer that the Division does not have authority to order equitable reimbursement, citing APD 992012, supra. With regard to carrier 1’s contention that it was entitled to reimbursement as a subclaimant under Section 409.009, the Appeals Panel cited APD 992487, supra, that it did not view either of two or more carriers disputing the amounts of their respective liability to a claimant, or their liability to one another for amounts paid to a claimant, to be subclaimants for the purposes of Section 409.009.

In APD 040412, decided April 14, 2004, the Appeals Panel affirmed a hearing officer’s decision that carrier 1 did not have standing as a subclaimant in accordance with Section 409.009 and that carrier 1 was not entitled to reimbursement from carrier 2 for benefits paid. The Appeals Panel stated that assuming, arguendo, that carrier 1 is a subclaimant under Section 409.009, the Division is without authority to determine whether carrier 1 is entitled to reimbursement from carrier 2 for benefits paid. The Appeals Panel noted that the Division is given the authority to resolve benefit disputes, and that there was no benefit dispute presented in the case. The Appeals Panel noted that carrier 1 was asking the Division to order carrier 2 to reimburse it for benefits it mistakenly paid to the injured employee for an injury where it did not provide coverage and that carrier 1 had not pointed to any provision in the 1989 Act that authorizes the Division to award reimbursement in that situation. The Appeals Panel also noted that it did not appear that the case was covered by the reimbursement provisions contained in Sections 410.033 and 410.209 because payment was not made pursuant to an interlocutory order or Division decision. The Appeals Panel cited APD 992012, supra, in stating that it did not have either the express or implied authority to grant carrier 1 the relief it sought.

In the instant case, the hearing officer applied the most recent decision, APD 040412, supra, and determined that carrier 2 does not have standing as a subclaimant in accordance with Section 409.009 and that the Division does not have jurisdiction. Applying the plain meaning of Section 409.009 and considering the specific statutory provision that recognizes that an insurance carrier can be a subclaimant, we reverse the hearing officer’s determination that carrier 2 does not have standing as a subclaimant in accordance with Section 409.009 and render a new determination that carrier 2 does have standing as a subclaimant in accordance with Section 409.009.

JURISDICTION

28 TEX. ADMIN. CODE § 140.1 (Rule 140.1) provides that:

1. (1)Benefit dispute--A disputed issue arising under the Texas Workers’ Compensation Act (the Act) in a workers’ compensation claim regarding compensability or eligibility for, or the amount of, income or death benefits.

2. (2)Benefit proceeding--A proceeding pursuant to the Act, Chapter 410, conducted by a presiding officer to resolve one or more benefit disputes. Benefit proceedings include benefit review conferences, benefit contested case hearings, appeals, and, after January 1, 1992, arbitration.

Rule 141.1(a) provides that a request for a benefit review conference may be made by a claimant, a subclaimant, a carrier, or an employer who has contested compensability. The rules specifically recognize that a subclaimant may request a benefit review conference, the first step in initiating a compensation benefits claim.

The Workers’ Compensation Act vests the power to award compensation benefits solely in the Workers’ Compensation Commission (now known as the Division), subject to judicial review. Saenz V. Fidelity & Guaranty Insurance Underwriters, 925 S.W.2d 607 (Tex. 1996). The Division has jurisdiction of disputes over income benefits, preauthorization of medical care, and reimbursement of medical expenses. The legislature has granted the Division exclusive jurisdiction over claims for policy benefits. American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex. 2001). In adjudicating such claims, the Division will necessarily have to interpret compensation policies and determine the period in which coverage existed. See Gonzalez v. Cigna Ins. Co. of Tex., 924 S.W.2d 183, 184-87 (Tex. App.-San Antonio 1996, writ denied).

As noted in APD 000129, supra, Section 409.009 does not limit subclaimants to reimbursement for payments the subclaimant was required to make and does not rule out “voluntary” compensation paid as being ineligible for reimbursement. In comparison, we observe that Section 410.033 is much more specific in addressing two disputing carriers; it addresses the issuance of an order by the Commission and, based on that order, it then spells out that one carrier “is entitled to reimbursement” for the share it paid pursuant to the order when that order is later ruled to be incorrect. Presumably, if a carrier may use the general provisions of Section 409.009 which only say that a claim may be filed, then it may, in effect, expand the provisions of Section 410.033 to allow reimbursement whether or not there has been a Commission order involved. To the extent prior cases conflict with our decision in this case, they are overruled.

The hearing officer’s determination that the Division does not have authority to determine whether carrier 2 is entitled to reimbursement from carrier 1 for benefits paid is reversed and a new decision rendered that the Division does have authority to determine whether carrier 2 is entitled to reimbursement from carrier 1 for benefits paid. Because the hearing officer determined that carrier 2 did not have standing as a subclaimant and that the Division did not have authority to determine reimbursement, he did not resolve the issues regarding whether carrier 2 is entitled to reimbursement from carrier 1 and if so in what amount. Therefore, this case is remanded back to the hearing officer to determine the amount of reimbursement, if any, that carrier 2 is entitled to from carrier 1.

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, as amended effective June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of time in which a request for appeal or a response must be filed.

The true corporate name of the insurance carrier is FAIRFIELD INSURANCE COMPANY 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.

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

CT CORPORATION SYSTEM

350 NORTH ST. PAUL STREET, SUITE 2900

DALLAS, TEXAS 75201.

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Robert W. Potts
Appeals Judge