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 January 25, 2021, and May 24, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the decedent, (claimant), did sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death; (2) the respondent (claimant beneficiary) is a proper legal beneficiary of the decedent, thus the claimant beneficiary is entitled to death benefits; and (3) the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86. The appellant (self-insured) appealed, disputing the ALJ’s determinations. The claimant beneficiary responded, urging affirmance of the disputed determinations.

DECISION

Reversed and remanded.

The evidence reflected that the decedent had been employed with the self-insured for 27 years and worked as a deputy sheriff detention officer in the Annex building of the (county) County Jail. The claimant beneficiary testified that the decedent began to have a dry cough and was tested for coronavirus 2019 (COVID-19) on (date of injury). The decedent’s condition rapidly deteriorated and he passed away at his house on the morning of April 30, 2020. The COVID-19 test yielded a positive result. Additionally, an autopsy report in evidence dated April 30, 2020, concluded that the decedent died as a result of complications of COVID-19, with hypertension and cardiomegaly contributing.

At issue was whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death. The ALJ reconvened the hearing on May 24, 2021, in order to take evidence and testimony regarding the applicability of Section 607.054 of the Texas Government Code. The self-insured argued in its appeal that the admission of new evidence and testimony at the May 24, 2021, CCH was improper. Rulings on evidentiary matters are reviewed under an abuse-of-discretion standard and the Appeals Panel will not disturb the ALJ’s ruling on a continuance absent an abuse of discretion.  Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.—San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the ALJ acted without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986).  Considering the facts of this case, we find no abuse of discretion in the ALJ’s reconvening the hearing and admission of evidence.

COMPENSABILITY

Section 401.011(34) provides that “occupational disease” means a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease. Expert medical testimony is necessary to establish the cause of the disease. See generally Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.—Texarkana 1974, writ ref'd n.r.e.), Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980).  The question in this case is whether there is a causal connection between COVID-19 and the decedent’s employment as established by medical evidence. 

Section 607.054 of the Government Code provides, in part, that a firefighter, peace officer, or emergency medical technician who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter, peace officer, or emergency medical technician, that results in death or total or partial disability is presumed to have contracted the disease or illness during the course and scope of employment as a firefighter, peace officer, or emergency medical technician. In her discussion of the evidence the ALJ stated that the claimant beneficiary satisfactorily met the requirements of Section 607.054 of the Government Code by proving that COVID-19 is a disease or illness of the lungs or respiratory tract and proving that there is a statistically positive correlation between COVID-19 and the decedent’s employment. We disagree. Although the articles in evidence discuss a prevalence of COVID-19 in police officers, the evidence in the record is insufficient to prove a statistically positive correlation between the decedent’s COVID-19 infection and his service as a detention officer. In addition, Senate Bill (S.B.) 22 of the 87th Leg., R.S. (2021) added a subsection (b) to Section 607.054 of the Government Code which provides this section does not apply to a claim that a firefighter, peace officer, or emergency medical technician suffers from severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or COVID-19.

S.B. 22 provided an additional section to specifically cover SARS-CoV-2 and COVID-19 for detention officers, custodial officers, firefighters, peace officers, and emergency medical technicians. Section 607.0545(a) of the Government Code provides, in pertinent part, that a detention officer who suffers from COVID-19 that results in death or total or partial disability is presumed to have contracted the virus or disease during the course and scope of employment as a detention officer if the detention officer is: (1) employed in the area designated in a disaster declaration by the governor under Section 418.014 of the Government Code or another law and the disaster is related to COVID-19; and (2) contracts the disease during the disaster declared by the governor described above. On March 13, 2020, the governor declared a state of disaster in Texas due to COVID-19.

Section 607.0545(b) of the Government Code provides, in pertinent part, the presumption only applies to specified persons including a detention officer employed on a full-time basis who is diagnosed with COVID-19 using a test authorized, approved, or licensed by the United States Food and Drug Administration. See Section 607.0545(b)(1) and (2)(A) of the Government Code. Section 607.0545(b)(2)(B) of the Government Code reflects that the presumption would apply to a deceased person who is diagnosed by a test authorized, approved, or licensed by the United States Food and Drug Administration (Section 607.0545(b)(2)(A) of the Government Code) or by another means, including by a physician. Section 607.0545(b)(3)(B)(iv) of the Government Code further provides, in pertinent part, that the presumption only applies to a detention officer who was last on duty not more than 15 days before the person died if COVID-19 was a contributing factor in the person’s death.

Section 607.058(a) of the Government Code provides, in part, that the presumption established in Section 607.0545 of the Government Code is rebuttable. Section 607.058(b) of the Government Code provides, in pertinent part, that any rebuttal offered must include a statement by the person offering the rebuttal that describes, in detail, the evidence that the person reviewed before making the determination that a cause not associated with the individual’s service as a detention officer was a substantial factor in bringing about the individual’s disease or illness without which the disease or illness would not have occurred.

Section 607.058(c) of the Government Code provides, in pertinent part, that an ALJ in addressing an argument based on a rebuttal shall make findings of fact and conclusions of law that consider whether a qualified expert, relying on evidence-based medicine, stated the opinion that, based on reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the individual’s service as a detention officer was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not have occurred. Section 607.058(d) of the Government Code provides, in pertinent part, that a rebuttal to a presumption under Section 607.0545 of the Government Code may not be based solely on evidence relating to the risk of exposure to COVID-19 of a person with whom a detention officer resides.

S.B. 22 provides that a person subject to Section 607.0545 of the Government Code who on or after the date the governor declared a disaster under Chapter 418 of the Government Code relating to COVID-19 but before the effective date of S.B. 22, contracted COVID-19, may file a claim for benefits related to COVID-19 on or after the effective date of S.B. 22 regardless of whether the claim is otherwise considered untimely and the changes in law made by S.B. 22 apply to that claim.

The ALJ in this case incorrectly determined that the presumption set forth in Section 607.054 of the Government Code applied to this claim. However, S.B. 22 makes clear that the presumption set forth in Section 607.0545 of the Government Code applies to claims, like the one in the instant case, that were pending at the time the law went into effect. S.B. 22 became effective on June 14, 2021, a date after the CCH was held and a decision was issued in this case. Because this claim was pending at the time S.B. 22 went into effect, we reverse the ALJ’s determination that the decedent did sustain a compensable injury in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death, and we remand this issue back to the ALJ for further action consistent with this decision.

On remand, the ALJ is to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code and make a determination of whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death.

PROPER LEGAL BENEFICIARY AND DEATH BENEFITS

As we have reversed and remanded the compensability issue in this case, we also reverse the ALJ’s determination that the claimant beneficiary is a proper legal beneficiary of the decedent, thus entitling her to death benefits, and we remand this issue back to the ALJ for further action consistent with this decision.

BURIAL BENEFITS

As we have reversed and remanded the compensability issue in this case, we also reverse the ALJ’s determination that the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86, and we remand the issue of burial benefits back to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the decedent did sustain a compensable injury in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death, and we remand this issue back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant beneficiary is a proper legal beneficiary of the decedent, thus entitling her to death benefits, and we remand this issue back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86, and we remand the issue of burial benefits back to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code and make a determination of whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death. The ALJ is then to make determinations regarding the issues of whether the claimant beneficiary is a proper legal beneficiary entitling her to death benefits and whether the claimant beneficiary is entitled to reimbursement for burial benefits.

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 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 (COUNTY) COUNTY (a self-insured governmental entity) and the name and address of its registered agent for service of process is

COUNTY JUDGE NELSON WOLFF
101 W. NUEVA, 10TH FLOOR
SAN ANTONIO, TEXAS 78205.

Cristina Beceiro
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 March 12, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issue by deciding that the respondent (claimant beneficiary) is a proper legal beneficiary of the decedent entitling her to death benefits. The appellant (carrier) appealed, disputing the ALJ’s determination. The carrier argues on appeal that the ALJ’s decision contains a misstatement of the evidence regarding the filing of the decedent’s tax return. The claimant beneficiary responded, urging affirmance of the ALJ’s determination.

DECISION

Reversed and remanded.

The parties stipulated that the decedent sustained a fatal injury while in the course and scope of his employment on (date of injury). We note that the decision states Carrier’s Exhibits CR-A through CR-F were admitted into evidence; however, Carrier’s Exhibit G was also admitted into evidence during the CCH.

The ALJ stated in her discussion that the evidence revealed the claimant beneficiary and decedent “filed taxes jointly.” The only tax return in evidence is the decedent’s 2006 tax return. Although the tax return notes the claimant beneficiary as a dependent, it also states under the box depicting the dependent’s relationship to the decedent as “none.” The tax return does not state that the decedent was married and filing jointly. The claimant beneficiary testified at the CCH that the relationship was listed as none because “the tax man” told them to do so, and that the claimant beneficiary had told him she was still technically married to another man at that time. The evidence reflected that the claimant beneficiary was divorced from that man on February 19, 2008. The ALJ has misstated the evidence in this case regarding the filing of the decedent’s tax return. We view the ALJ’s misstatement of the evidence as a material misstatement of fact.  We therefore reverse the ALJ’s determination that the claimant beneficiary is a proper legal beneficiary of the decedent entitling her to death benefits, and we remand this case to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to correct her misstatement of the evidence regarding the filing of the decedent’s tax return.  The ALJ shall consider the evidence and make a determination of whether the claimant beneficiary is a proper legal beneficiary of the decedent entitling her to death benefits supported by the evidence.

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.

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

MR. RICHARD GERGASKO, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 12, 2017, in (city), Texas, with (hearing officer) as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) Mr S. (decedent) did not sustain a compensable occupational disease on (date of injury), which resulted in his death; (2) Ms S. (claimant beneficiary 1), Mr S. Jr. (claimant beneficiary 2), and Kadarian Martin (claimant beneficiary 3) are proper legal beneficiaries of the decedent but are not entitled to death benefits because the claim is not compensable; and (3) because the claim is not compensable, respondent 1 (carrier) is relieved from liability for death benefits under Section 409.007.

Claimant beneficiary 1 appealed the hearing officer’s decision arguing that the evidence supports a determination that the decedent sustained a compensable occupational injury on (date of injury), which resulted in his death. The carrier responded, urging affirmance. The appeal file does not contain a response from claimant beneficiary 2 or claimant beneficiary 3.

The hearing officer’s determination that claimant beneficiary 1, claimant beneficiary 2, and claimant beneficiary 3 are proper legal beneficiaries of the decedent was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed as reformed.

It was undisputed that the decedent died on June 11, 2012, due to widespread lung cancer.

The hearing officer’s determination that the decedent did not sustain a compensable occupational injury on (date of injury), resulting in his death is supported by sufficient evidence and is affirmed.

In Finding of Fact No. 7, the hearing officer stated:

7.[Claimant beneficiary 3] is the biological child of [the] [d]ecedent, born on February 16, 2014.

We note, however, that a copy of the birth certificate of claimant beneficiary 3 in evidence establishes that the correct date of birth is February 16, 2012. Accordingly, we reform Finding of Fact No. 7 as follows:

7.[Claimant beneficiary 3] is the biological child of [the] [d]ecedent, born on February 16, 2012.

In evidence is a Notice of Fatal Injury or Occupational Disease and Claim for Compensation for Death Benefits (DWC-42) claiming death benefits for each of the claimant beneficiaries. Although no evidence was offered concerning the date of filing with the Texas Department of Insurance, Division of Workers’ Compensation (Division), the DWC-42 is dated April 8, 2016, a date more than three years following the date of the decedent’s death. A second DWC-42 prepared only on behalf of claimant beneficiary 3 is also in evidence. No evidence was offered concerning the date the second DWC-42 was filed with the Division; however, the form was signed on July 28, 2016, a date more than four years following the date of the decedent’s death.

Section 409.007 provides in pertinent part that:

a.  A person must file a claim for death benefits [DWC-42] with the [D]ivision not later than the first anniversary of the date of the employee’s death.

b.  Failure to file in the time required by Subsection (a) bars the claim unless:

1.  the person is a minor or incompetent; or

2.  good cause exists for the failure to file a claim under this section.

Pursuant to Section 409.007(a), a DWC-42 must be filed by the first anniversary of the decedent’s death, which in this case was June 11, 2013.  However, the evidence established that as of the first anniversary of the decedent’s death, claimant beneficiary 2 and claimant beneficiary 3 were both minor children and pursuant to Section 409.007(b), their failure to file a DWC-42 not later than the first anniversary date of the decedent’s death does not bar their claims.

In her Conclusion of Law No. 7, and in her decision, the hearing officer stated:

Because this claim is not compensable, [the] [c]arrier is relieved from liability for death benefits to [claimant beneficiary 1], [claimant beneficiary 2], and [claimant beneficiary 3] under [Section] 409.007.

Because the evidence established that both claimant beneficiary 2 and claimant beneficiary 3 were minor children as of the date of the CCH, we strike that portion of the hearing officer’s Conclusion of Law No. 7 and Decision which determine that the carrier is relieved from liability for death benefits to claimant beneficiary 2, and claimant beneficiary 3 under Section 409.007.

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

RICHARD J. GERGASKO, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

K. Eugene Kraft
Appeals Judge

CONCUR

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 14, 2016, with the record closing on January 25, 2016, in Austin, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that the respondent (claimant beneficiary) is a proper legal beneficiary of (decedent), entitling her to death benefits.

The appellant (carrier) appealed the hearing officer’s determination based on sufficiency of the evidence grounds and argued that the hearing officer erred in admitting the deposition of (CN) into evidence over the carrier’s objection. The claimant beneficiary responded, urging affirmance.

DECISION

Reversed and remanded.

The parties stipulated that the decedent sustained a compensable injury on (date of injury), which resulted in his death.

The claimant beneficiary testified that, on February 14, 2012, she and the decedent agreed to be married and thereafter, until the decedent’s death, lived together as husband and wife and represented to others that they were married. In support of her position, the claimant beneficiary offered excerpts from the deposition of CN which was taken on October 2, 2014, in the probate matter of the estate of the decedent. The carrier objected to the admission of the deposition excerpts into evidence on the grounds that such testimony had not been timely exchanged and was provided to the carrier on January 6, 2015, only 8 days prior to the CCH, in response to its request for production.

28 TEX. ADMIN. CODE § 142.13(c)(1) (Rule 142.13(c)(1)) provides that the parties exchange documentary evidence “no later than 15 days after the benefit review conference [BRC].” Rule 142.13(c)(2) further provides that “[t]hereafter, parties shall exchange additional documentary evidence as it becomes available.” Rule 142.13(c)(3) provides that the hearing officer shall make a determination whether good cause exists for a party not having previously exchanged such information or documents to introduce such evidence at the hearing. A party who belatedly investigates the facts and then does not disclose known information in order to make further investigation and development runs the risk of having evidence excluded for failure of exchange. See Appeals Panel Decision (APD) 991744, decided October 1, 1999.

In this case, the BRC was held on November 5, 2015. The exchange deadline pursuant to Rule 142.13(c)(1) was November 25, 2015. As noted above, the deposition of CN was taken on October 2, 2014. After the carrier objected to the offer, the hearing officer asked if the claimant beneficiary had an explanation for the late exchange. Counsel for the claimant beneficiary replied that the deposition had been in the possession of the claimant beneficiary’s probate attorney, “an attorney that’s not a party to the [w]orkers’ [c]ompensation claim” and that it was provided to counsel for the carrier as soon as it was made available to the attorney representing the claimant beneficiary before the Texas Department of Insurance, Division of Workers’ Compensation (Division). The hearing officer then stated:

“[T]wo things makes (sic) me think there’s good cause. One is the nature of this dispute of death benefits my threshold by allowing late exchange would be lowered because of the nature of the dispute. Secondly, this is a response in a request for discovery that was signed and they received this information. I think this was exchanged as soon as they got it. The rules provide additional information could be exchanged upon receipt. So in this situation, I understand the objection, but it is overruled.”

The hearing officer is incorrect in his determination that the threshold for establishing good cause for the late exchange of documentary evidence pursuant to Rule 142.13(c)(1) is lowered in disputes concerning death benefits. We further disagree with his ruling that good cause for the late exchange of relevant documentary evidence exists where such evidence is obtained by the opposing party through additional discovery processes as authorized by Rule 142.13(f).

To obtain a reversal of a decision based on the hearing officer’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show the admission or exclusion was in fact error, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper decision. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles. APD 051705, decided September 1, 2005; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). Because excerpts from the deposition of CN were not timely exchanged, and the hearing officer overruled the carrier’s objection and admitted the deposition excerpts without a showing of good cause for the claimant beneficiary’s untimely exchange, we find the hearing officer’s evidentiary ruling was in fact error. We further note that the hearing officer relied on the deposition excerpts in rendering his decision, stating in his decision that CN and the decedent were “great” friends, best friends and business partners. The admission of CN’s deposition testimony was reasonably calculated to cause, and probably did cause, the rendition of an improper decision. Accordingly, we hold that the hearing officer abused his discretion in admitting excerpts from the deposition of CN due to the claimant beneficiary’s failure to timely exchange such evidence.

We reverse the hearing officer’s decision and remand the issue of whether the claimant beneficiary is a proper legal beneficiary of the decedent, to the hearing officer to make findings of fact, conclusions of law, and enter a decision which are supported by the evidence. The hearing officer is to consider neither the deposition testimony of CN nor any additional evidence on remand.

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

The true corporate name of the insurance carrier is 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.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). Contested case hearings were held on September 1, 2015, and October 5, 2015, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the decedent, a firefighter, sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), which resulted in his death; (2) appellant (self-insured) is not relieved from liability under Section 409.004 because of the decedent’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; (3) the self-insured’s defenses on compensability are limited to the defenses listed on the Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) filed on November 23, 2011; (4) (child). and (child) are proper legal beneficiaries of (deceased), deceased, entitling them to death benefits; and (5) MT is not a proper legal beneficiary of MT, deceased, and is not entitled to death benefits.

The self-insured appealed the hearing officer’s determinations urging that the decedent did not meet the presumption criteria prescribed by TEX. GOVT. CODE ANN. § 607.055 because he did not regularly respond on the scene to calls involving fires or firefighting and that the decedent’s type of cancer was not one known to be associated with firefighting. The self-insured further argues that it did not waive its right to assert the affirmative defense of the decedent’s failure to file a claim for compensation within one year following the date of injury because the self-insured’s PLN-1 was filed less than a year following the alleged date of injury and prior to the affirmative defense becoming known or available. Respondent 1 (claimant beneficiaries) responded, urging affirmance of the disputed determinations.

The hearing officer’s determination that (child) is not a proper legal beneficiary of (deceased), deceased, was not appealed and has become final pursuant to Section 410.169.

DECISION

Reversed and remanded.

The parties stipulated that: (1) the decedent met all the applicability requirements of TEX. GOVT. CODE ANN. § 607.052; (2) both the decedent and his wife, (wife), were non-smokers; and (3) if this claim is compensable, (child), (child), a minor, and (child), a minor, are proper legal beneficiaries of (deceased), deceased.

It is not disputed that the decedent was a firefighter for the self-insured from 1986 until his retirement in 2012, who was diagnosed with adenocarcinoma of the gastric cardia (stomach cancer) in (date). He reported the condition to his employer as a work-related occupational disease on (date of injury). The self-insured filed its Employer’s First Report of Injury or Illness (DWC-1) on (date), and on (date), filed a PLN-1 denying the decedent sustained a compensable injury in the course and scope of employment and insisting that he suffered from an ordinary disease of life. The decedent’s stomach cancer resulted in his death on (date).

Section 409.003 provides that an employee or person acting on the employee’s behalf shall file with the Division a claim for compensation for an injury not later than one year after the date on which the injury occurred; or if the injury is an occupational disease, not later than one year after the date on which the employee knew or should have known that the disease was related to the employee’s employment. Section 409.004 provides, in part, that failure to file a claim for compensation with the Division as required under Section 409.003 relieves the employer and the carrier of liability unless:  (1) good cause exists for failure to file a claim in a timely manner; or (2) the employer or the employer’s insurance carrier does not contest the claim.

In his Conclusion of Law No. 4, the hearing officer determined that the self-insured is not relieved from liability under Section 409.004 because of the decedent’s failure to timely file a claim for compensation with the Division within one year as required by Section 409.003; however, no findings of fact concerning the issue of good cause for failure to file were made by the hearing officer. In his Conclusion of Law No. 5, the hearing officer determined that the self-insured’s defenses to compensability were limited to those listed in its PLN-1 filed on November 23, 2011, but again, no findings of fact concerning the issue are included in the decision.

We reverse the hearing officer’s decision as being incomplete and remand the case for the hearing officer to consider and make findings of fact, conclusions of law, and a decision which are supported by the evidence resolving all of the disputed issues in this case. No new evidentiary hearing on remand is necessary. Because we are remanding this case for the hearing officer to make findings of fact, conclusions of law, and a decision supported by the evidence, we do not reach the merits of the disputed issues in this case.

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 CITY OF MCALLEN (a self-insured governmental entity) and the name and address of its registered agent for service of process is

JIM DARLING, MAYOR

1300 HOUSTON AVE.

MCALLEN, TEXAS 78501.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 5, 2014, in Houston, Texas, with [hearing officer] presiding as hearing officer. The hearing officer determined that: (1) SC (decedent) was not an employee of [Employer], at the time of the claimed injury on [date of injury]; (2) the decedent did not suffer a compensable injury on [date of injury], resulting in his death; and (3) the appellant/cross-respondent (claimant beneficiary) is a proper legal beneficiary of the decedent, but because the [date of injury], injury is not compensable, she is not entitled to death benefits.

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

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

DECISION

Affirmed in part and reversed and remanded in part.

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

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

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

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

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

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

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

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

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

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

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

SUMMARY

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

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

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

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

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

REMAND INSTRUCTIONS

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

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

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

RICHARD J. GERGASKO, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 12, 2013, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that respondent 2 (claimant beneficiary 2) is a proper legal beneficiary of (decedent), entitling him to death benefits and appellant (claimant beneficiary 1) is not a proper legal beneficiary of decedent and is not entitled to death benefits.

The claimant beneficiary 1 appealed, contending that he meets the definition of “eligible parent” contained in the statute and rules and that claimant beneficiary 2 is not entitled to death benefits. Respondent 1 (carrier) responded, urging affirmance. The appeal file does not contain a response from claimant beneficiary 2.

DECISION

Affirmed in part and reversed and rendered in part.

It was undisputed that the claimant sustained a compensable injury in the course and scope of his employment on [date of injury], resulting in his death. [LS] was the mother of the decedent. Claimant beneficiary 2 was the biological father of the decedent. Claimant beneficiary 1 was the decedent’s stepfather.

The sole issue before the hearing officer was as follows: Is claimant beneficiary 2, biological father, or claimant beneficiary 1, stepfather, a proper legal beneficiary of decedent entitling either of them to death benefits? Although not noted in the decision and order, the Benefit Review Conference Report and the parties at the CCH represented that it was undisputed that LS, the decedent’s mother, is a proper legal beneficiary of decedent entitling her to death benefits.

In evidence is an affidavit from LS which states in part that the decedent was never married and did not have any children. Claimant beneficiary 1 testified at the CCH that at the time of his death, the decedent was living in the household of claimant beneficiary 1 without paying rent. There was no evidence in the record that anyone else was financially dependent upon the decedent. Section 408.182(d-1) provides:

If there is no eligible spouse, no eligible child, and no eligible grandchild, and there are no surviving dependents of the deceased employee who are parents, siblings, or grandparents of the deceased, the death benefits shall be paid in equal shares to surviving eligible parents of the deceased. A payment of death benefits under this subsection may not exceed one payment per household. Total payments under this section may not exceed 104 weeks regardless of the number of surviving eligible parents.

Section 408.182(f)(4) defines “eligible parent” as the mother or the father of a deceased employee, including an adoptive parent or stepparent. The term does not include a parent whose parental rights have been terminated. 28 TEX. ADMIN. CODE § 132.9(d) (Rule 132.9(d)) provides that an eligible parent who is entitled to receive death benefits shall receive benefits until the earlier of: (1) the date the eligible parent dies; or (2) the date of the expiration of 104 weeks of death benefit payments.

The status of a beneficiary under the 1989 Act is determined as of the date of the workers’ death. Freeman v. Texas Compensation Ins. Co., 603 S.W.2d 186, 190 (Tex. 1980). Although much of the testimony at the CCH discussed the lack of contact and support of claimant beneficiary 2, there was no evidence presented that the parental rights of claimant beneficiary 2 have been terminated. It was undisputed that claimant beneficiary 2 was the biological father of the decedent. That portion of the hearing officer’s determination that claimant beneficiary 2 is a proper legal beneficiary of decedent entitling him to death benefits is supported by sufficient evidence and is affirmed.

The statutory definition of eligible parent quoted above defines eligibility in terms of the familial relationship with the decedent with the only exclusion being the termination of parental rights. See also Rule 132.11(e). The evidence established that at the time of the decedent’s death, claimant beneficiary 1 was married to the decedent’s biological mother and was the decedent’s stepfather. There is nothing in the language of Section 408.182(f)(4) to suggest that certain types of parents, such as stepparents be treated differently than other parents. Although Section 408.182(d-1) provides that a payment of death benefits made under this subsection may not exceed one payment per household, it also provides that death benefits shall be paid in equal shares to surviving eligible parents of the deceased. Accordingly, we reverse the hearing officer’s determination that claimant beneficiary 1 is not a proper legal beneficiary of decedent and is not entitled to death benefits and render a new decision that claimant beneficiary 1 is a proper legal beneficiary of decedent and is entitled to death benefits.

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

CINDY GHALIBAF

5221 NORTH O’CONNOR BOULEVARD, SUITE 400

IRVING, TEXAS 75039-3711.

Margaret L. Turner
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 22, 2012, with the record closing on June 11, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer.

With regard to the first issue before him, the hearing officer determined that: (1) respondent 3 (claimant beneficiary 3) is the proper legal beneficiary of (deceased) and she is entitled to death benefits; and (2) appellant/cross-respondent (claimant beneficiary 1); respondent 4 (minor claimant beneficiary 4); respondent 5 (claimant beneficiary 5); respondent 7 (claimant beneficiary 7); respondent 8 (claimant beneficiary 8); respondent 9 (claimant beneficiary 9); respondent 10 (claimant beneficiary 10); respondent 11 (claimant beneficiary 11); respondent 12 (claimant beneficiary 12); and respondent 13 (claimant beneficiary 13) are not proper legal beneficiaries of the deceased and they are not entitled to death benefits.

With regard to the second issue before him, the hearing officer determined that respondent 1/cross-appellant 1 (carrier) is not relieved from liability for death benefits to the claimant beneficiaries 1, 3, 4 (minor), 5, 7, 8, 9, 10, 11, 12, and 13 because of their failure to file a claim for death benefits with the Texas Department of Insurance, Division of Workers’ Compensation (Division) pursuant to Section 409.007(b).

We note that the two disputed issues certified out of the benefit review conference (BRC) listed respondent 6 (claimant beneficiary 6) and that the hearing officer failed to make any finding of fact or conclusion of law as to whether claimant beneficiary 6 is a proper legal beneficiary entitled to death benefits or whether the carrier is relieved of liability for death benefits to claimant beneficiary 6 because of his failure to file a claim for death benefits with the Division pursuant to Section 409.007(b).

Claimant beneficiary 1 appealed the hearing officer’s determinations that she was not a proper legal beneficiary entitled to death benefits. The appeal file does not contain any response to her appeal.

Respondent 2/cross-appellant 2 (claimant beneficiary 2) cross-appealed, contending that she was a necessary party to the issue of who is the proper legal beneficiary entitled to death benefits. Attached to her cross-appeal is evidence of a marriage certificate between claimant beneficiary 2 and the deceased, a Beneficiary Claim for Death Benefits (DWC-42) completed by claimant beneficiary 2 on March 7, 2012, with a claim number of “[docket no. 1]” rather than this case’s claim number of “[docket no. 2],” and Dispute Resolution Information System (DRIS) notes under claim number “[docket no. 2]” regarding potential claims for death benefits, identifying claimant beneficiary 2 as a potential claimant beneficiary and the second wife of deceased. The appeal file does not contain any response to claimant beneficiary 2’s cross-appeal.

The carrier cross-appealed the hearing officer’s determination on who is the proper legal beneficiary entitled to death benefits and that the carrier is not relieved from liability for death benefits to the claimant beneficiaries as previously listed because of the claimant beneficiaries’ failure to file a claim for death benefits with the Division pursuant to Section 409.007(b). The appeal file does not contain any response to the carrier’s cross-appeal.

DECISION

Reversed and remanded.

It is undisputed that the deceased was killed on [date of injury], when he was struck by a log at work. The carrier does not dispute that the death was the result of a compensable injury.

Although duly notified of the time, date, and place of the CCH, the claimant beneficiaries 6, 7, 8, 9, 10, 11, 12, and 13 failed to appear and failed to respond to a 10-day letter sent to them advising them of an opportunity to contact the Division so that the CCH could be reconvened to permit them to present evidence on the disputed issues and to show good cause why they failed to appear at the May 22, 2012, CCH setting. The record was held open until June 11, 2012, but these claimant beneficiaries did not contact the Division. None of these claimant beneficiaries appealed the decision and order of the hearing officer or responded to the appeal and two cross-appeals filed in this case.

Although duly notified of the time, date, and place of the CCH, [PM], as next friend of minor claimant beneficiary 4, was not sent a 10-day letter subsequent to her failure to appear at the CCH. A review of Division records reflect the 10-day letter and decision and order was only sent to minor claimant beneficiary 4. We note that the next friend of a minor claimant beneficiary should be duly notified of the time, date, place of any hearings in the claim as well as should be mailed any 10-day letters and be served with any decisions and orders and appellate documents in the claim.

Division records reflect that claimant beneficiary 2 was not duly notified of the BRC held on January 10, 2012, or of the CCH held May 22, 2012. Further, a copy of the decision and order was not sent to claimant beneficiary 2 by the Division. However, claimant beneficiary 2 was served with copies of claimant beneficiary 1’s appeal and the carrier’s cross-appeal. Claimant beneficiary 2 filed a cross-appeal, contending she was the sole proper legal beneficiary of the deceased and entitled to death benefits.

We further note that in the section entitled “PARTIES PRESENT” of the decision, the hearing officer makes a material misstatement of fact. The hearing officer states that “[c]laimant [b]eneficiary [5], appeared and was assisted by [CM], ombudsman. [Claimant beneficiary 1] appeared but gave notice that she was not pursuing a claim for benefits.”

Upon review of the recording of the CCH and the evidence, the hearing officer materially erred in these statements. Claimant beneficiary 5 appeared at the CCH and she was not assisted by an ombudsman or represented by an attorney. On the record, the hearing officer inquired of claimant beneficiary 5, who had filed a DWC-42, whether she was pursuing a claim for death benefits. Claimant beneficiary 5 stated to the hearing officer that she was not pursuing benefits at that time. We note that the hearing officer listed claimant beneficiary 5 as a witness for her case-in-chief; however, claimant beneficiary 5 was called to testify for the carrier’s case-in-chief. We also note that the hearing officer sent a 10-day letter to claimant beneficiary 5, although she appeared at the CCH.

It is also reflected upon review that claimant beneficiary 1 appeared at the CCH and pursued a claim as a proper legal beneficiary entitled to death benefits. Claimant beneficiary 1 was assisted at the CCH by CM, ombudsman. We note that she was a witness at the CCH but the hearing officer failed to list claimant beneficiary 1 as a witness for her case-in-chief. Claimant beneficiary 1 has filed an appeal in this claim, appealing the hearing officer’s determination of who is the proper legal beneficiary entitled to death benefits.

BACKGROUND INFORMATION

The evidence at the May 22, 2012, CCH reflects that the deceased participated in two formal “marriage ceremonies.” The first was in 1972 in Mexico with claimant beneficiary 3, and the second was in 1983 in Texas with claimant beneficiary 2.

The evidence at the May 22, 2012, CCH further reflects that the deceased and claimant beneficiary 3 had four children and that none of the four children were minors or enrolled as a full-time students in an accredited educational institution or less than 25 years of age on the deceased’s date of death, [date of injury].

The evidence at the May 22, 2012, CCH reflects that the deceased and claimant beneficiary 2 had two children and that neither of these two children were minors or enrolled as a full-time students in an accredited educational institution or less than 25 years of age on the deceased’s date of death, [date of injury]. The deceased was the grandfather of minor claimant beneficiary 4, whose mother was one of these children and who is now deceased.

The evidence at the May 22, 2012, CCH reflects that sometime in the late 1970s, the deceased left claimant beneficiary 3 and their children at his parent’s house in Mexico, and moved to Texas to work and live. The evidence also reflects that there were periods of time that the deceased lived in Texas with claimant beneficiary 1, his sister, and paid her money for those time periods.

The evidence at the May 22, 2012, CCH reflects that the claimant beneficiaries 1, 5, 7, 9, 10, 11, 12, and 13 were the sisters of the deceased; claimant beneficiaries 6 and 8 were the brothers of the deceased.

The evidence further reflects that the claimant beneficiaries 1, 2, 3, 4 (minor), 5, 6, 7, 8, 9, 10, 11, 12, and 13 at various times have alleged that they were potential proper legal beneficiaries of the deceased entitled to death benefits. However, in the Background Information section of his decision, the hearing officer stated that although the claimant beneficiaries 1, 3, 4 (minor), 5, 7, 8, 9, 10, 11, 12, and 13 presented their claims for death benefits to the carrier on specific dates, “[t]he evidence presented failed to establish when or if any of the claims for death benefits were filed with the Division.”

NEWLY DISCOVERED EVIDENCE

Documents submitted for the first time on appeal are generally not considered unless they constitute newly discovered evidence. See generally, Appeals Panel Decision (APD) 091375, decided December 2, 2009; Black v. Wills, 758 S.W.2d 809 (Tex. App.-Dallas 1988, no writ).  In determining whether new evidence submitted with an appeal or response requires remand for further consideration, the Appeals Panel considers whether the evidence came to the knowledge of the party after the hearing, whether it is cumulative of other evidence of record, whether it was not offered at the hearing due to a lack of diligence, and whether it is so material that it would probably result in a different decision.  See APD 051405, decided August 9, 2005.

Upon review of the new evidence attached to the cross-appeal of claimant beneficiary 2, we agree that the marriage certificate between the deceased and claimant beneficiary 2, the DWC-42 completed by claimant beneficiary 2 on March 7, 2012, with a claim number of “[docket no. 1]” rather than this case’s claim number of “[docket no. 2],” and the DRIS notes under claim number “[docket no. 2]” regarding potential claims for death benefits, identifying claimant beneficiary 2 as a potential claimant beneficiary and the second wife of deceased meets the requirements of newly discovered evidence and the documents were considered. We note a portion of the DRIS notes under claim number “[docket no. 2]” were admitted into evidence at the CCH held on May 22, 2012.

NECESSARY PARTIES TO CLAIM

28 TEX. ADMIN. CODE § 140.1(4) (Rule 140.1(4)) states that a “[p]arty to a proceeding” is defined as “[a] person entitled to take part in a proceeding because of a direct legal interest in the outcome.”

Section 408.182 provides in pertinent part:

1. (a)If there is an eligible child or grandchild and an eligible spouse, half of the death benefits shall be paid to the eligible spouse and half shall be paid in equal shares to the eligible children. If an eligible child has predeceased the employee, death benefits that would have been paid to that child shall be paid in equal shares per stirpes to the children of the deceased child.

2. (b)If there is an eligible spouse and no eligible child or grandchild, all the death benefits shall be paid to the eligible spouse.

3. (c)If there is an eligible child or grandchild and no eligible spouse, the death benefits shall be paid to the eligible children or grandchildren.

4. (d)If there is no eligible spouse, no eligible child, and no eligible grandchild, the death benefits shall be paid in equal shares to surviving dependents of the deceased employee who are parents, stepparents, siblings, or grandparents of the deceased.

5. (e)If an employee is not survived by legal beneficiaries or eligible parents, the death benefits shall be paid to the subsequent injury fund under Section 403.007.

6. (f)In this section:

7. (7)“Eligible child” means a child of a deceased employee if the child is:

8. (H)a minor;

9. (I)enrolled as a full-time student in an accredited educational institution and is less than 25 years of age; or

10. (J)a dependent of the deceased employee at the time of the employee’s death.

11. (11)“Eligible grandchild” means a grandchild of a deceased employee who is a dependent of the deceased employee and whose parent is not an eligible child.

12. (12)“Eligible spouse” means the surviving spouse of a deceased employee unless the spouse abandoned the employee for longer than the year immediately preceding the death without good cause, as determined by the [D]ivision.

Rule 132.2(b) provides in pertinent part that:

A benefit which flowed from a deceased employee, at the time of death, on an established basis in at least monthly intervals to the person claiming to be dependent, is presumed to be a regular or recurring economic benefit. This presumption may be overcome by credible evidence. The burden is on the claimant [beneficiary] to prove that benefits, which flowed less frequently than once a month, were regular or recurring at the time of the employee’s death.

Rule 132.3(b) provides that:

A surviving spouse who abandoned the employee, without good cause for more than one year immediately preceding the death, shall be ineligible to receive death benefits. The surviving spouse shall be deemed to have abandoned the employee if the surviving spouse and the employee had not been living in the same household for more than one year preceding the employee’s death unless the spouse is:

1. (1)hospitalized;

2. (2)in a nursing home; or

3. (3)living apart due to career choices, military duty, or other reasons where it is established their separation is not due to the pending breakup of the marriage. The burden is on a person who opposes the claim of a surviving spouse to prove the spouse abandoned the deceased employee.

Rule 132.3(c) provides that:

If more than one person claims to be the surviving spouse of the deceased employee, the [Division] shall presume the most recent spouse is the surviving spouse. This presumption may be rebutted by an individual who presents proof of a prior valid marriage to the deceased employee.

Section 409.007 provides in pertinent part that:

1. (a)A person must file a claim for death benefits [DWC-42] with the [D]ivision not later than the first anniversary of the date of the employee’s death.

2. (b)Failure to file in the time required by Section (a) bars the claim unless:

3. (3)the person is a minor or incompetent; or

4. (4)good cause exists for the failure to file a claim under this section.

Section 409.008 provides that:

If an employer or the employer’s insurance carrier has been given notice or has knowledge of an injury to or the death of an employee and the employer or insurance carrier fails, neglects, or refuses to file the report under Section 409.005, the period for filing a claim for compensation under Sections 409.003 and 409.007 does not begin to run against the claim of an injured employee or a legal beneficiary until the day on which the report required under Section 409.005 has been furnished.

We cannot address the hearing officer’s determinations in this case because it is apparent that claimant beneficiary 2, claimant beneficiary 6, and PM, the next friend of minor claimant beneficiary 4 were necessary parties to this proceeding. Necessary parties have been defined as those persons who have such an interest in the controversy that a final judgment or decree cannot be made without affecting their interests.  McDonald v. Alvis, 281 S.W.2d 330 (Tex. 1955).  Rule 39(a) of the Texas Rules of Civil Procedure requires a person who is subject to service of process to be joined as a party in an action if: (1) in his absence complete relief cannot be accorded among those already parties; or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may: (i) as a practical matter impair or impede his ability to protect that interest; or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. Rule 39(b) provides if such person cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or be dismissed, listing factors to be considered by the court. See also Rule 140.1 which defines “party to a proceeding.”

The Rules of Civil Procedure have not been held applicable to CCHs and service of process is not issued to compel a party’s attendance at a hearing.  By analogy, though, the same concepts of fairness and judicial economy that underlie Rule 39 and case law concerning necessary parties should be applied in these proceedings, especially where the beneficiary status of a minor child is concerned.  That the outcome of this proceeding affects that minor claimant beneficiary 4’s interest as well as the beneficiary status of claimant beneficiary 2, “married” to the deceased in 1983 is certain, as the hearing officer’s decision, if affirmed, will determine that all death benefits be paid to claimant beneficiary 3.

Further, the hearing officer’s decision and order is incomplete because there are no findings of fact or conclusions of law regarding claimant beneficiary 6.

Accordingly, we reverse the hearing officer’s decision and remand this case. Because of lack of notice to and joinder of all necessary parties and because of the decision being incomplete as to all necessary parties, we do not reach the merits of claimant beneficiary 1’s appeal or claimant beneficiary’s 2 cross-appeal regarding whether or not either is a proper legal beneficiary; we do not reach the merits of the carrier’s cross-appeal whether claimant beneficiary 3 is a proper legal beneficiary or whether the carrier is relieved for liability to any of the claimant beneficiaries because of their failure to file a claim for death benefits with the Division pursuant to Section 409.007(b). We remand this case to the hearing officer for further action consistent with this decision.

DEATH BENEFIT CLAIMS

Section 409.008 provides that if an employer or the employer’s insurance carrier has been given notice or has knowledge of an injury to or the death of an employee and the employer or insurance carrier fails, neglects, or refuses to file the report under Section 409.005 (Employer’s First Report of Injury or Illness (DWC-1)), the period for filing a claim for compensation under Sections 409.003 and 409.007 does not begin to run against the claim of an injured employee or a legal beneficiary until the day on which the report required under Section 409.005 has been furnished.

The plain language of Section 409.007 provides in pertinent part that a claimant beneficiary must file a DWC-42 with the Division not later than the first anniversary of the date of the employee’s death unless the person is a minor or good cause exists for the failure to file a claim.

In the Background Information section of his decision, the hearing officer stated that the claimant beneficiaries 1, 3, 4 (minor), 5, 7, 8, 9, 10, 11, 12, and 13 “presented their respective claims for death benefits resulting from [the deceased’s] death to [the] [c]arrier . . .” on specified dates. The hearing officer further stated that “[t]he evidence presented failed to establish when or if any of the claims for death benefits were filed with the Division.” The hearing officer also stated that “[u]nder the circumstances presented, the hearing officer finds that the one year limitation period for filing a claim with the Division was tolled until [the] [c]arrier complied with its responsibility to give notice of [the deceased’s] death to the Division and, by pursuing their respective claims for death benefits, the claimant beneficiaries complied with their responsibility to file their claims with the Division within one year of the date the Report of Injury was filed with the Division.”

We do not agree with the hearing officer’s analysis that pursuing a claim for death benefits with a carrier without filing a DWC-42 with the Division complies with the requirements under Section 409.007(b). Section 409.007(b) provides that a claim for death benefits not timely filed with the Division is barred unless: (1) the person is a minor or incompetent; or (2) good cause exists for the failure to file a claim under this section.

Because we are remanding this case regarding the issue of notice and joinder of all necessary parties and the incomplete decision, we do not reach the merits of the second disputed issue of whether the carrier is relieved of liability because of a claimant beneficiary’s failure to file a claim for death benefits with the Division under Section 409.007(b).

In order to resolve the disputed issues, the hearing officer must have in evidence, either through the parties or through the hearing officer’s official notice of the Division’s records, what claimant beneficiaries have filed a DWC-42 with the Division and the date of the filing of the various DWC-42s. The DRIS notes attached to the claimant beneficiary’s appeal and that portion of the DRIS notes admitted at the CCH, indicate that various DWC-42s have been filed in this case either under the claim number of “[docket no. 1]” or claim number of “[docket no. 2].”

REMAND INSTRUCTIONS

On remand, the hearing officer is to consolidate/link the two claims, “[docket no. 1]” and “[docket no. 2].” The hearing officer is to ensure that proper service and notice of hearings is sent to all necessary and proper parties, to-wit: (1) claimant beneficiaries 1, 2, 3, 4 (minor through next of friend PM), 5, 6, 7, 8, 9, 10, 11, 12, and 13; (2) the carrier; and (3) the Subsequent Injury Fund, in order to allow for due process and fairness of these proceedings for those persons who have such an interest in the controversy that a final judgment or decree cannot be made without affecting their interests.

On remand, the hearing officer is to amend the two disputed issues to include all necessary parties, the 13 claimant beneficiaries.

All parties are to be allowed an opportunity to present evidence on the disputed issues and to respond to evidence admitted by official notice of the hearing officer, which must include but is not specifically limited to the filing of the DWC-42s with the Division.

On remand, the hearing officer must consider the evidence and make necessary findings of fact and conclusions of law as required by the 1989 Act and Rules as to who is the proper legal beneficiary entitled to death benefits and is the carrier relieved of liability for death benefits because of any claimant beneficiary’s failure to file a claim for death benefits with the Division pursuant to Section 409.007(b).

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

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

C T CORPORATION SYSTEM

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Cynthia A. Brown
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 29, 2011. The hearing officer resolved the disputed issue by deciding that the appellant (claimant beneficiary) is not a proper legal beneficiary of the workers’ compensation death benefits payable on account of (decedent)’s compensable fatal injury of (date of injury).

The claimant beneficiary appealed, contending that nothing in the 1989 Act distinguishes an equitable adoption from that of a statutory adoption and the hearing officer erred in deciding that the claimant beneficiary is not a proper legal beneficiary of the decedent entitled to death benefits. The respondent (carrier) responded, urging affirmance.

DECISION

Affirmed.

Pursuant to Section 410.203(b)(3) the Appeals Panel is permitted to write an affirmance of the decision of a hearing officer in a case described in Section 410.204. Section 410.204(a) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearings 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. A written decision was issued in this case because, as under the facts presented, it is a case of first impression.

It was undisputed that the decedent sustained a compensable fatal injury on (date of injury), while he was in the course and scope of his employment with employer. The claimant beneficiary contended that she was a proper legal beneficiary of the workers’ compensation benefits payable due to the compensable fatal injury of the decedent because a district court had decided that the claimant beneficiary had been equitably adopted by the decedent.

The claimant beneficiary’s mother, (SW) testified at the CCH that the decedent was not the biological father of the claimant beneficiary although he treated her as his daughter and even exercised visitation with the claimant beneficiary when he picked up his biological son for his visitation. SW testified that she was never married to the decedent, had never lived with the decedent, and that the decedent was the father of her son. She testified that she and the decedent had discussed his adoption of the claimant beneficiary and had approached the claimant beneficiary’s biological father to request that he terminate his parental rights to allow for the decedent’s adoption of the claimant beneficiary. SW acknowledged at the CCH that the claimant beneficiary’s biological father refused to terminate his parental rights to allow for the adoption.

The Texas Probate Code § 3(b) defines “child” in part as including an adopted child, whether adopted by any existing or former statutory procedure or by acts of estoppel. Under the theory of equitable adoption, courts have recognized a right of intestate succession for children who are neither the natural children nor the legally adopted children of the deceased. See Heien v. Crabtree, 369 S.W.2d 28 (Tex. 1963). The court in Heien, after discussing several cases, went on to state the courts did not intend to hold, and did not hold, that “equitable adoption” or “adoption by estoppel” is the same as legal adoption or that it has all of the legal consequences of a statutory adoption.

In evidence was a Judgment Declaring Heirship and Heirship by Equitable Adoption. The district court’s Judgment recites that “the evidence presented and admitted fully and satisfactorily proves each and every issue of heirship and equitable adoption of [claimant beneficiary] by the [decedent].” The Judgment went on to “declare and decree and adjudge” that the claimant beneficiary was equitably adopted by the decedent and is a joint heir with the son of the decedent.

Although the courts have recognized adoption by estoppel, the courts have held that adoption by estoppel is inapplicable to many situations. In Amos v. Central Freight Lines, Inc., 575 S.W.2d 636, 638 (Civ.App.-Houston [1st Dist.] 1978, no writ), the court held that an equitably adopted child is not entitled to maintain a suit for the wrongful death of his or her adopted parent, since the cause of action is purely statutory and does not inure to the benefit of the children by reason of inheritance. The court noted in Amos, that as in the case with workman’s compensation benefits, the right to recover death benefits [under the Wrongful Death Act] is not obtained through inheritance but is conferred by statute. Additionally, the court held in Griffith v. Christian, 564 S.W.2d 170 (Tex.Civ.App.-Tyler 1978, no writ) that rights to workers’ compensation benefits are not obtained through inheritance but are conferred by statute.

Section 408.181(a) provides that an insurance carrier shall pay death benefits to the legal beneficiary if a compensable injury to the employee results in death. “Child” is defined for purposes of workers’ compensation in Section 401.011(7) as a son or daughter and the term includes an adopted child or a stepchild who is a dependent of the employee. The 1989 Act does not provide of the payment of death benefits to a child who has been equitably adopted. We affirm the hearing officer’s determination that the claimant beneficiary is not a proper legal beneficiary of the workers’ compensation death benefits payable on account of the decedent’s compensable fatal injury of (date of injury).

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on March 24, 2011, with the record closing on April 7, 2011, in (City), Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that since (decedent) was not survived by any eligible beneficiary, the workers’ compensation death benefits at issue in this case shall be paid to respondent 2 (Subsequent Injury Fund (SIF)).

The appellant (claimant beneficiary) appealed, disputing the hearing officer’s determination that the decedent was not survived by any eligible beneficiary and alleging that she did not receive notice of the CCH but did receive the 10-day letter sent to her when she did not appear at the CCH. The claimant beneficiary stated that the 10-day letter was dated January 18, 2007, although the envelope was dated April 19, 2011. Respondent 1 (carrier) responded, urging affirmance. The appeal file does not contain a response from the SIF.

DECISION

Reversed and remanded.

The disputed issue as stated in the benefit review conference (BRC) report was: “Is [claimant beneficiary] the proper legal beneficiary of the decedent entitling her to death benefits?” The carrier filed a response to the BRC report asking that the issue be changed to: “Who is the proper legal beneficiary of the decedent entitling him/her to death benefits?” The carrier noted in its response that a grandson of the decedent may have received monetary support from the decedent, making the grandson a potential beneficiary. However, the record does not reflect that notice of the BRC or notice of the CCH was sent to the grandson or his guardian.

The claimant correctly notes in her appeal that the date of the 10-day letter sent was January 18, 2007. The 10-day letter states that the claimant beneficiary should contact the (City) field office within 10 days of the date of the letter to request the hearing be reconvened to permit her to present evidence on the disputed issue and to show good cause why she failed to attend the CCH. The claimant alleges in her appeal that she never got notice of the CCH and that the envelope she received the 10-day letter in was dated April 19, 2011. The 10-day letter in the appeal file was addressed to the claimant at an address Texas Department of Insurance, Division of Workers’ Compensation (Division) records indicate was changed in December of 2010.

In Appeals Panel Decision (APD) 042634, decided November 29, 2004, the Appeals Panel noted that the purpose of the 10-day letter process is to give the non-appearing party the opportunity to meaningfully participate in the dispute resolution process.  In APD 020273, decided March 29, 2002, a claimant made a number of factual allegations in her appeal regarding good cause for failing to attend the CCH and her attempts to respond to the 10-day letter, and the Appeals Panel stated that it was not in a position to evaluate the credibility of the claimant in regard to those matters and thus, remanded the case to the hearing officer to take evidence concerning the claimant’s allegations and to permit the claimant to present evidence on the merits of her claim at the CCH on remand.

In the instant case, Division records indicate the 10-day letter was sent to the claimant beneficiary at the wrong address and although the claimant beneficiary acknowledged its receipt, she maintained she did not receive it in time to respond and did not receive the notice of the CCH. Further, the claimant beneficiary stated the incorrect date at the top of the 10-day letter caused her confusion about what action she should take. Additionally, as previously noted the hearing officer modified the disputed issue at the CCH to determine who are the proper beneficiaries of the workers’ compensation death benefits payable on account of the decedent’s compensable fatal injury of [date of injury], and although a grandson was noted by the carrier as a potential beneficiary there was no evidence he or his guardian received notice of the CCH.

Accordingly, we reverse the hearing officer’s determination that since the decedent was not survived by any eligible beneficiary, the workers’ compensation death benefits at issue in this case shall be paid to the SIF and remand this case to the hearing officer to determine whether the claimant beneficiary had good cause for failing to appear at the March 24, 2011, CCH, afford the parties including the SIF the opportunity to present evidence on the disputed issues, and give notice of the CCH to the grandson who has been identified as a potential beneficiary.

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

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Margaret L. Turner

CONCUR:

Cynthia A. Brown
Appeals Judge

Thomas A. Knapp
Appeals Judge