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 25, 2019, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury); (2) the decedent’s death on May 21, 2016, did not result from the compensable injury of (date of injury); and (3) the decedent had disability from May 2, 2014, through the date of his death resulting from an injury sustained on (date of injury).

The appellant/cross-respondent (carrier) appealed, disputing the ALJ’s determinations that the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), and that the decedent had disability from May 2, 2014, through the date of his death resulting from an injury sustained on (date of injury). There is no response in the appeal file from the respondent/cross-appellant (claimant beneficiary) to the carrier’s appeal. The claimant beneficiary cross-appealed, disputing the ALJ’s determination that the decedent’s death on May 21, 2016, did not result from the compensable injury of (date of injury). The carrier responded, urging affirmance of the cross-appealed determination.

DECISION

Affirmed in part, reversed by striking in part, and reversed and rendered in part.

The parties stipulated, in part, that the decedent died on May 21, 2016. The evidence reflects the decedent performed maintenance at a cement production plant and was exposed to cement dust particles. The evidence also reflects that the decedent was admitted to a hospital on (date of injury), with complaints of cough and shortness of breath. Medical records in evidence from the hospital noted references to pulmonary fibrosis. The decedent was discharged on May 4, 2014, with a diagnosis of “[s]trep pneumonia and sepsis secondary to bilateral pneumonia, also with fibrosis with positive rhinovirus.” The evidence further reflects that the decedent was hospitalized again in December 2015 for respiratory problems, and that he was repeatedly diagnosed with pulmonary fibrosis. In evidence is the autopsy report from a postmortem examination performed on May 24, 2016, noting the decedent’s cause of death as “[s]evere diffuse pulmonary fibrosis,” as well as the death certificate dated June 1, 2016, noting the decedent’s immediate cause of death as “respiratory failure secondary to pneumonia superimposed on idiopathic pulmonary fibrosis.”

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

COMPENSABLE OCCUPATIONAL DISEASE

The ALJ’s determination that the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), is supported by sufficient evidence and is affirmed.

DISABILITY

The disability issue as agreed to by the parties at the CCH was whether the decedent had disability from May 2, 2014, through the date of his death. Although the ALJ correctly noted the disability start date as May 2, 2014, in the Issue Statement No. 2, Conclusion of Law No. 5, the decision section, and the summary paragraph on page one of the decision, Finding of Fact No. 7 incorrectly identifies the start date as (date of injury). We reverse by striking that portion of Finding of Fact No. 7 that the decedent had disability on (date of injury), as exceeding the scope of the issue before the ALJ. That portion of the ALJ’s determination that the decedent had disability from May 2, 2014, through the date of his death resulting from an injury sustained on (date of injury), is supported by sufficient evidence and is affirmed.

COMPENSABILITY OF DECEDENT’S DEATH

The ALJ’s finding that the decedent was diagnosed with pulmonary fibrosis on (date of injury), was not appealed, and his finding that the decedent’s pulmonary fibrosis arose as a result of his employment is supported by the evidence. The ALJ also found the evidence was insufficient to establish that the decedent’s death on May 21, 2016, arose out of or naturally flowed from the (date of injury), compensable injury, and therefore determined that the decedent’s death on May 21, 2016, did not result from the compensable injury. However, as noted above the death certificate listed the decedent’s immediate cause of death as “respiratory failure secondary to pneumonia superimposed on idiopathic pulmonary fibrosis,” and the autopsy report listed the decedent’s cause of death as severe diffuse pulmonary fibrosis. The compensable injury in this case, as determined by the ALJ, is pulmonary fibrosis. There was no evidence that established the decedent’s death resulted from something other than respiratory problems. Under the facts of this case the ALJ’s determination that the decedent’s death on May 21, 2016, did not result from the compensable injury is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Therefore, we reverse the ALJ’s determination that the decedent’s death on May 21, 2016, did not result from the compensable injury of (date of injury), and we render a new decision that the decedent’s death on May 21, 2016, did result from the compensable injury of (date of injury).

SUMMARY

We affirm the ALJ’s determination that the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury).

We affirm that portion of the ALJ’s determination that the decedent had disability from May 2, 2014, through the date of his death resulting from an injury sustained on (date of injury).

We reverse by striking that portion of Finding of Fact No. 7 that the decedent had disability on (date of injury), as exceeding the scope of the disability issue before the ALJ.

We reverse the ALJ’s determination that the decedent’s death on May 21, 2016, did not result from the compensable injury of (date of injury), and we render a new decision that the decedent’s death on May 21, 2016, did result from the compensable injury of (date of injury).

The true corporate name of the insurance carrier is AMERICAN ZURICH 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:

Cristina Beceiro
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 October 20, 2011, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) (decedent’s) death was not a result of the compensable injury sustained on [date of injury]; (2) the [date of injury], compensable injury extends to vertigo, seizures, aspiration, dysphasia, dysphagia, tremors, and Parkinsonian symptoms; (3) the [date of injury], compensable injury does not extend to brain atrophy and dementia pugilistica; (4) [Dr. F] was not properly appointed as a designated doctor in accordance with Section 408.0041 and  28 TEX. ADMIN. CODE § 127.5 (Rule 127.5) to address the issue of extent of injury; and (5) the respondent/cross-appellant (self-insured) filed its dispute for death benefits in a timely manner pursuant to Rule 132.17.

The appellant/cross-respondent (claimant beneficiary) appealed, disputing the hearing officer’s determinations that: Dr. F was not properly appointed as a designated doctor in accordance with Section 408.0041 and Rule 127.5 to address the extent of injury; the compensable injury does not extend to brain atrophy and dementia pugilistica; the self-insured filed its dispute for death benefits in a timely manner pursuant to Rule 132.17; and that the decedent’s death was not a result of the compensable injury sustained on [date of injury]. The self-insured responded, urging affirmance of the determinations appealed by the claimant beneficiary.

The self-insured also filed a cross-appeal, disputing the hearing officer’s determination that the compensable injury of [date of injury], extends to vertigo, seizures, aspiration, dysphasia, dysphagia, tremors, and Parkinsonian symptoms. The appeal file does not contain a response from the claimant beneficiary to the self-insured’s cross-appeal.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated that the decedent sustained a compensable injury on [date of injury], and the event of [date of injury], resulted in some form of traumatic brain injury. However, the extent of the severity of the brain injury was in dispute. The decedent was injured on [date of injury], when he fell off the top of the ladder and sustained numerous injuries including a skull fracture, fracture of the right orbit, and a pelvis fracture. It was undisputed that the decedent died on [dammiate of decedent’s death].

The hearing officer’s determinations that: the [date of injury], compensable injury extends to vertigo, seizures, aspiration, dysphasia, dysphagia, tremors, and Parkinsonian symptoms and that the [date of injury], compensable injury does not extend to brain atrophy and dementia pugilistica are supported by sufficient evidence and are affirmed.

An issue listed in the benefit review conference report and the decision and order is as follows: Was Dr. F appointed as a designated doctor in accordance with Section 408.0041 and Rule 127.5? However, we note the issue that was actually litigated was limited to the appointment of Dr. F specifically on the issue of extent of the compensable injury. The hearing officer’s determination that Dr. F was not properly appointed as a designated doctor in accordance with Section 408.0041 and Rule 127.5 to address the issue of extent of injury is supported by sufficient evidence and is affirmed because Section 408.0041(a) provides in part that a designated doctor’s examination be used to resolve an extent of injury question and Dr. F cannot examine the decedent to resolve the extent of his compensable injury after the decedent’s death.

Rule 132.17(a) provides that upon being notified of a death resulting from an injury, the carrier shall investigate whether the death was a result of the injury, and if the carrier has not already done so in compliance with Rule 124.3 due to the injury being reported separately, conduct an investigation relating to the compensability of the death, the carrier’s liability for the death, and the accrual of benefits.  Rule 132.17(b) provides that if the carrier believes that it is not liable for the death, or that the death was not compensable, the carrier shall file the notice of denial of a claim in the form and manner required by Rule 124.2.  Rule 132.17(b) further provides that if the notice of denial is not filed by the 60th day as required, the carrier may not raise an issue of compensability or liability, and is liable for any benefits that accrued and shall initiate benefits in accordance with this section.

The hearing officer found that the claimant beneficiary filed her claim for death benefits with the Texas Department of Insurance, Division of Workers’ Compensation (Division) on January 18, 2011. However, there is no evidence in the record that the claim for death benefits was filed with the Division on January 18, 2011. The 60 day time limit imposed by Rule 132.17 is triggered upon notice to the carrier, not the date the claimant filed for death benefits with the Division.

In evidence is a facsimile transmission (fax) confirmation which reflects that correspondence, including the Notice of Fatal Injury or Occupational Disease and Claim for Compensation for Death Benefits (DWC-42) from the claimant beneficiary’s attorney was sent and received by fax to the third party administrator of the self-insured on January 14, 2011. The self-insured acknowledged in its response to the claimant beneficiary’s appeal that the DWC-42 “was not filed until January 14, 2011.”

The hearing officer found that the self-insured timely filed its Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11) disputing death benefits with the Division on March 16, 2011. In evidence is the self-insured’s dispute (listing its third party administrator) dated March 15, 2011, but was file stamped as received by the Division on March 16, 2011. The self-insured acknowledges in its response to the claimant beneficiary’s appeal that it filed its dispute concerning the claim for death benefits on March 16, 2011. The self-insured maintains that “[t]he 60th day following January 14, 2011, was March 16, 2011, thereby making the dispute timely filed.” However, the 60th day following January 14, 2011, is March 15, 2011. The self-insured needed to file its dispute on or before March 15, 2011, to be timely and failed to do so. The self-insured filed its dispute on March 16, 2011.

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

The hearing officer’s determination that the self-insured filed its dispute for death benefits in a timely manner pursuant to Rule 132.17 is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

We reverse the hearing officer’s determination that the self-insured filed its dispute for death benefits in a timely manner pursuant to Rule 132.17 and render a new decision that the self-insured did not file its dispute for death benefits in a timely manner pursuant to Rule 132.17.

The hearing officer found that the decedent’s death was not a result of the compensable injury sustained on [date of injury]. Although the evidence supports the factual determination that the decedent’s death was not the result of the compensable injury sustained on [date of injury], the self-insured’s failure to timely file a notice of denial of the claim prevents the self-insured from disputing an issue of compensability or liability for the decedent’s death.  Accordingly, we reverse the hearing officer’s determination that the decedent’s death was not a result of the compensable injury sustained on [date of injury], and render a new determination that the decedent’s death was a result of the compensable injury sustained on [date of injury], by virtue of carrier waiver pursuant to Rule 132.17(a) and (b). See Appeals Panel Decision 110391, decided June 2, 2011.

SUMMARY

We affirm the hearing officer’s determination that the [date of injury], compensable injury extends to vertigo, seizures, aspiration, dysphasia, dysphagia, tremors, and Parkinsonian symptoms.

We affirm the hearing officer’s determination that the [date of injury], compensable injury does not extend to brain atrophy and dementia pugilistica.

We affirm the hearing officer’s determination that Dr. F was not properly appointed as a designated doctor in accordance with Section 408.0041 and Rule 127.5 to address the issue of extent of injury.

We reverse the hearing officer’s determination that the self-insured filed its dispute for death benefits in a timely manner pursuant to Rule 132.17 and render a new decision that the self-insured did not file its dispute for death benefits in a timely manner pursuant to Rule 132.17.

We reverse the hearing officer’s determination that the decedent’s death was not a result of the compensable injury sustained on [date of injury], and render a new determination that the decedent’s death was a result of the compensable injury sustained on [date of injury], by virtue of carrier waiver pursuant to Rule 132.17(a) and (b).

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701.

Margaret L. Turner
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 May 7, 2009^[1]. The hearing officer determined that: (1) the __________, compensable injury does not extend to a closed head injury, intracranial hemorrhage, respiratory failure, and a stroke (CVA), and (2) the employee’s (decedent) death was not the result of the compensable injury sustained on __________. The appellants (claimant beneficiaries) appealed the hearing officer’s injury and extent-of-injury determinations. Respondent 1 (carrier) responded, urging affirmance. The appeal file does not contain a response from respondent 2 (subclaimant).

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The CCH was recorded on two compact discs (CD). The first CD contains 1 track, for a total time of 6 seconds, in which the hearing officer states
“testing 1, 2, testing 1, 2.” There is no other sound on the first CD. The second CD contains 42 tracks, for an approximate total time of 41 minutes and 18 seconds. At the beginning of the second CD the hearing officer states that they are back on the record and are preceding with the testimony of (Dr. S). The appeal file does not indicate that a court reporter was present and the file does not contain a transcript or other recording of the proceeding. Consequently, we remand the case for reconstruction of the CCH record.

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

MR. RUSSELL RAY OLIVER, PRESIDENT  

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Veronica L. Ruberto

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

1. We note that the hearing officer’s decision incorrectly states that the date of the CCH was May 7, 2007.

   ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on December 14, 2004. The hearing officer determined that the decedent did not sustain a compensable injury on ___________, which resulted in his death. The appellant (claimant beneficiary) appealed the hearing officer’s decision, contending that the decedent was in the course and scope of his employment and furthering the affairs of the employer at the time of the motor vehicle accident. Additionally, the claimant beneficiary asserts that the appeal is timely given that her attorney did not receive a copy of the decision and order until January 28, 2005, when the Texas Workers’ Compensation Commission (Commission) sent by facsimile transmission (fax) a copy of the decision and order to the attorney and the claimant beneficiary filed an appeal on that same date. The respondent (carrier) responded that the claimant beneficiary’s appeal is untimely, and that the hearing officer’s decision should be affirmed. The claimant beneficiary filed a response to the carrier’s response asserting that the appeal is timely given that her attorney did not receive the decision and order until January 28, 2005, and filed the appeal that same date.

DECISION

The hearing officer’s decision has become final pursuant to Section 410.169 because the claimant beneficiary’s appeal was not timely filed with the Commission.

Commission records reflect that on December 22, 2004, the hearing officer’s decision and order was: (1) mailed to the claimant, carrier’s representative, employer, and ombudsman; and (2) placed in the (City) carrier’s representative’s box. We note that the benefit review conference report and the decision and order state that the claimant is represented by an attorney, rather than assisted by an ombudsman. The claimant beneficiary’s attorney states that she contacted the Commission on January 28, 2005, to inquire about the status of the decision and order and was informed that the decision and order was issued in “December 2004.” Upon the attorney’s request, the Commission faxed a copy of the decision and order to her on January 28, 2005, and on that same date the claimant beneficiary filed an appeal with the Commission and asserting that it was timely. The carrier filed a response on February 16, 2005, arguing that the claimant beneficiary’s appeal is untimely because the decision and order was mailed to the claimant beneficiary and carrier’s attorney on December 22, 2004; therefore “notice to the claimant [beneficiary] of the hearing officer’s decision triggers the deadline for appeal.” The carrier contends that the claimant beneficiary is deemed to have received the decision and order on December 27, 2004, pursuant to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 102.5(a) (Rule 102.5(a)) and that the appeal was filed later than the 15th day after the claimant beneficiary was deemed to have received the decision and order, thus the appeal is untimely.

Section 410.202(a) provides that to appeal the decision of a hearing officer, a party shall file a written request for appeal with the Appeals Panel not later than the 15th day after the date on which the decision of the hearing officer is received from the division and shall on the same date serve a copy of the request for appeal on the other party. Section 410.202 was amended effective June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code from the computation of time in which to file an appeal or a response. Rule 102.5(a) provides in part that after the Commission is notified in writing that a claimant is represented by an attorney or other representative, all copies of written communications to the claimant shall thereafter be sent to the representative as well as the claimant, unless the claimant requests delivery to the representative only. However, copies of settlements, notices setting benefit review conferences and hearings, and orders of the Commission shall always be sent to the claimant regardless of representation status.

In the instant case, the claimant beneficiary’s attorney asserts that she did not receive the decision and order until she requested it from the Commission on January 28, 2005, and filed the appeal on that same date, thus the appeal is timely. While the claimant beneficiary’s attorney asserts that she did not receive a copy of the hearing officer’s decision and order, the file does not contain evidence that the claimant beneficiary herself did not receive her copy of the decision and order. The Appeals Panel has held that since the 1989 Act gives the party, not the attorney, the right to appeal, and provides the party, not the attorney, with 15 days in which to file an appeal, the operative date for determining the timeliness of the appeal is the date the claimant, not his or her attorney, received the hearing officer’s decision. Texas Workers’ Compensation Commission Appeal No. 92219, decided July 15, 1992; Texas Workers' Compensation Commission Appeal No. 941144, decided October 4, 1994.  While Rule 102.5(a) does provide that written communications to the claimant shall be sent to the representative, this has been interpreted to be a courtesy copy as provided for in Commission Advisory 93-11, signed November 4, 1993, and does not operate to extend or change the 15 days after receipt of the hearing officer’s decision by the party. Texas Workers' Compensation Commission Appeal No. 011059, decided June 26, 2001.

Commission Advisory 93-11, provides in part that:

All documents and notices related to workers’ compensation dispute resolution proceedings that are required to be provided by the [Commission] to claimants will continue to be mailed to the Claimant. Notice to the Claimant for all purposes will be established by this notification. If the Claimant is represented by an attorney before the Commission, and the Commission has the address of such attorney in its files, then a courtesy copy of all such documents will be mailed such attorney. (Emphasis added.)

Commission records indicate that the hearing officer’s decision was mailed to the claimant beneficiary on December 22, 2004. We note that the claimant did not dispute or provide evidence that she did not receive the hearing officer’s decision from the Commission. Pursuant to Rule 102.5(d), unless the great weight of evidence indicates otherwise, the claimant beneficiary is deemed to have received the hearing officer’s decision on December 27, 2004, which was five days after the date it was mailed to her. We do not consider the claimant beneficiary’s attorney’s explanation that she did not receive a copy of the decision and order until January 28, 2005. Pursuant to Section 410.202, as amended June 17, 2001, and Rule 143.3(e), the claimant had until January 18, 2005, to mail her request for appeal to the Commission, and the mailed request for appeal had to be received by the Commission by January 26, 2005.  The Commission received the claimant’s appeal by fax on January 28, 2005.  Accordingly, the claimant beneficiary's appeal was not timely filed and the jurisdiction of the Appeals Panel has not been properly invoked.

Having determined that the hearing officer's decision and order have become final under Section 410.169 because a timely appeal was not filed with the Commission, the Appeals Panel does not have jurisdiction to review the hearing officer's decision.

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

CT CORPORATION

350 NORTH ST. PAUL STREET

DALLAS, TEXAS 75201.

Veronica L. Ruberto

CONCUR:

Robert W. Potts
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 February 19, 2004. On the issue before him, the hearing officer held that the death of the deceased father (decedent herein) of the respondent (claimant beneficiary herein) was a result of treatment for the compensable injury sustained on _______________. The appellant (carrier herein) files a request for review, arguing that the decedent’s death did not result from his compensable injury, but was the result of depression, addiction to prescription drugs and suicidal tendencies. There is no response from the claimant beneficiary to the carrier’s request for review in the appeal file.

DECISION

Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.

The hearing officer recites the facts of the case in some detail and we incorporate his rendition of the facts by reference. This case is a claim for death benefits. The parties stipulated that the decedent sustained a compensable lumbar spine injury on _______________. As a result of his injury he had been given prescription medications including Celexa (citalopram) and Soma (carisoprodol). The decedent was found dead on October 22, 2002, and according to the autopsy report he died from the toxic effects of multiple drugs including Celexa and Soma. There was no evidence of the presence of any illicit drugs or alcohol in the autopsy report.

The law supports compensation for a condition brought about by reasonable or necessary medical treatment for a work-related injury. Liberty Mutual Insurance Co. v. Pool, 449 S.W.2d 121, 123 (Tex. Civ. App.-Texarkana 1969, writ ref'd n.r.e.); Home Insurance Co. v. Gillum, 680 S.W.2d 844 (Tex. App.-Corpus Christi 1984, writ ref'd n.r.e.). In Texas Workers' Compensation Commission Appeal No. 93612, decided September 3, 1993, we held that the 1989 Act Asupports compensation for a condition brought about by reasonable or necessary medical treatment for a work related injury. In Texas Workers' Compensation Commission Appeal No. 960574, decided May 3, 1996, the deceased in that case expired as the result of a "mixed drug overdose," and the Appeals Panel affirmed the hearing officer's decision that his compensable injury resulted in his death.

The carrier argues that the decedent’s death was the result of drug addiction and/or suicide. There was conflicting evidence offered with respect to cause of the decedent’s death. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence, including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). The hearing officer discusses the evidence and explains in some detail why he believed the decedent’s death was accidental as opposed to suicidal and due to treatment for the decedent’s compensable injury. In view of the evidence presented, we cannot conclude that the hearing officer's determinations are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is WAUSAU BUSINESS 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.

Gary L. Kilgore

CONCUR:

Margaret L. Turner
Appeals Judge

Edward Vilano
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 25, 2003. The hearing officer resolved the disputed issue by deciding that death benefits are payable to the appellant (claimant) for 364 weeks as an eligible dependent stepchild of the decedent. The claimant appeals, contending that the hearing officer erred in limiting the duration of his death benefits to 364 weeks under Section 408.183(e) rather than awarding the duration periods specified in Sections 408.183(c) and (d). The respondent (carrier) asserts that the hearing officer’s decision is correct and requests affirmance.

DECISION

Affirmed.

In Texas Workers’ Compensation Commission Appeal No. 981280, decided July 29, 1998, the Appeals Panel reversed and remanded a prior CCH decision that determined that the claimant’s mother and the claimant are the proper legal beneficiaries of the decedent. The CCH decision on remand, which was issued on September 4, 1998, determined that the claimant’s mother and the claimant are the proper legal beneficiaries of the decedent because, at the time of the decedent’s death, the claimant’s mother was the decedent’s common-law wife and the claimant was a dependent of the decedent. The CCH decision on remand was not appealed to the Appeals Panel.

The disputed issue before the hearing officer in the present case was for what duration should benefits be payable to the claimant as an eligible dependent stepchild of the decedent? The parties stipulated that the decedent died on ______________, as a result of a compensable injury; that at the time of the decedent’s death, the decedent was married, through a common-law marriage, to the claimant’s mother; that the claimant is the son of the claimant’s mother from a prior marriage; that the claimant was born on (date of birth); that the claimant was not adopted by the decedent; and that the claimant was the decedent’s dependent at the time of the decedent’s death. It is undisputed that at the time of the decedent’s death, the claimant was the dependent stepson of the decedent. It is also undisputed that the claimant does not have a mental or physical disability.

Section 401.011(7) defines “child” as “a son or daughter. The term includes an adopted child or a stepchild who is a dependent of the employee.”

Section 408.182 is entitled “Distribution of Death Benefits,” and subsection (f) provides as follows:

(f) In this section:

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

1. (A) a minor;

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

3. (A) a dependent of the deceased employee at the time of the employee’s death.

Section 408.183 is entitled “Duration of Death Benefits,” and subsections (c), (d), and (e) provide as follows:

(c)A child who is eligible for death benefits because the child is a minor on the date of the employee’s death is entitled to receive benefits until the child attains the age of 18.

(d)A child eligible for death benefits under Subsection (c) who at age 18 is enrolled as a full-time student in an accredited educational institution or a child who is eligible for death benefits because on the date of the employee’s death the child is enrolled as a full-time student in an accredited educational institution is entitled to receive or to continue to receive, as appropriate, benefits until the earliest of:

(1)the date the child ceases, for a second consecutive semester, to be enrolled as a full-time student in an accredited educational institution;

(2)the date the child attains the age of 25; or

(3)the date the child dies.

1. (e)A child who is eligible for death benefits because the child is a dependent of the deceased employee on the date of the employee’s death is entitled to receive benefits until the earlier of:

(1)the date the child dies; or

(2)if the child is dependent:

(A)because the child is an individual with a physical or mental disability, the date the child no longer has the disability; or

1. (B)because of a reason other than a physical or mental disability, the date of the expiration of 364 weeks of death benefit payments.

Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 132.4 (Rule 132.4), effective January 1, 1991, is entitled “Eligibility of a Child to Receive Death Benefits,” and subsection (d) provides as follows:

(d)A person claiming benefits as the dependent stepchild of the deceased employee shall prove that the employee was married to a parent of the claimant, and must also establish dependent status as set out in § 132.2 of this title (relating to Determination of Facts of Dependent Status).

Rule 132.8, effective January 1, 1991, is entitled “Duration of Death Benefits for an Eligible Child.” The preamble to Rule 132.8 at 15 Tex. Reg. 7023 (1990) states:

New § 132.8 explains how long a child who receives death benefits will be paid, based upon the child’s reason for being eligible for benefits.

Rule 132.8(a) pertains to a child who is eligible to receive death benefits because the child is a minor on the date of the employee’s death. Rule 132.8(b) pertains to a child who is eligible to receive death benefits as a full-time student at an accredited educational institution on the date of the employee’s death or on the child’s 18th birthday. Rule 132.8(d) pertains to a child who is eligible to receive death benefits because the child had a mental or physical handicap and was dependent on the employee because of the handicap on the date of the employee’s death. Rule 132.8(f) provides as follows:

(f)A child, who is otherwise eligible to receive benefits because the child was dependent on the employee on the date of the employee’s death, is entitled to receive benefits until the earlier of:

(1) the date on which the child dies; or

(2) the expiration of 364 weeks of death benefit payments.

In Texas Workers’ Compensation Commission Appeal No. 941246, decided November 2, 1994, the Appeals Panel affirmed a hearing officer’s decision that a deceased employee’s stepchildren were not the decedent’s legal beneficiaries under the 1989 Act because the stepchildren had failed to prove their dependency status, which was “the threshold requirement for establishing entitlement to death benefits.” In Texas Workers’ Compensation Commission Appeal No. 002112, decided October 19, 2000, the Appeals Panel stated “a nonbiological or non-adoptive child of an injured worker may only recover benefits if that person is a dependent stepchild of the deceased.”

In the instant case, the hearing officer stated in the Discussion section of his decision that:

Under the Act, § 401.011(7), “child” includes a stepchild who is a dependent of the employee. Under the stipulated facts, [claimant] is such a stepchild. An eligible child, pursuant to Act § 408.182(f), can fit into one of three categories: a minor, an under-25 student, or a dependent at the time of death. The next section, § 408.183, determines the duration of death benefits. Such duration depends on the category of the child---minor, student or dependent.

In this case, [claimant] was a stepchild of the deceased, and he was a minor, but he did not get his eligibility for benefits from his minority, but rather from his status as a dependent. As a dependent, his eligibility for death benefits extended, pursuant to § 408.183(e)(2)(B), until the date of expiration of 364 weeks of death benefit payments.

The claimant asserts that because Section 401.011(7) includes in the definition of “child” a stepchild who is dependent on the employee, he, as a dependent stepchild, is a “child” for all purposes of the 1989 Act and, therefore, is an eligible child under Section 408.182(f) as both a minor and a dependent and his death benefits should have been awarded until his 18th birthday or as long as he is a full-time student and has not turned 25 pursuant to Sections 408.183(c) and (d). We disagree with the claimant’s contention because his eligibility for death benefits is not because he was a minor on the date of the decedent’s death, which he was; rather his eligibility for death benefits is because he was a dependent of the decedent on the date the decedent died. We do not read Section 401.011(7), which defines “child,” as abrogating the specific provision contained in Section 408.183(e), which pertains to “a child who is eligible for death benefits because the child is a dependent of the deceased employee on the date of the employee’s death….” As previously noted, the preamble to Rule 132.8 (relating to the Duration of Death Benefits for an Eligible Child), states that Rule 132.8 explains how long a child who receives death benefits will be paid, based upon the child’s reason for being eligible. Since the reason the claimant was eligible for death benefits was because he was a dependent stepchild of the decedent on the date of the decedent’s death, Section 408.183(e) and Rule 132.8(f) apply and, therefore, we perceive no error in the hearing officer’s decision that death benefits are payable to the claimant for 364 weeks as an eligible dependent stepchild of the deceased.

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is TEXAS PROPERTY & CASUALTY INSURANCE GUARANTY ASSOCIATION for Reliance National Indemnity Company, an impaired carrier and the name and address of its registered agent for service of process is

MARVIN KELLY, EXECUTIVE DIRECTOR

9120 BURNET ROAD

AUSTIN, TEXAS 78758.

Robert W. Potts

CONCUR:

Gary L. Kilgore
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 February 5, 2003. With respect to the disputed issues before him, the hearing officer determined that (decedent) did not sustain a compensable injury resulting in her death on ___________, as she was not in the course and scope of her employment at the time of her fatal injury. In addition, the hearing officer determined that the decedent is survived by her husband, (claimant beneficiary), and two adult dependent children. The claimant beneficiary has appealed the course and scope determination, and argues that the decedent was in the course and scope of her employment at the time of her fatal injury, either by virtue of falling under the “special mission” exception and/or the “dual purpose” exception to the “going and coming” rule under Section 401.011(12). The respondent (carrier) responded, urging that the hearing officer be affirmed, as the decedent fell under neither exception to the rule and was not in the course and scope of her employment at the time of her fatal injury. Neither party appealed the legal beneficiaries’ determination; therefore, it has become final pursuant to Section 410.169.

DECISION

Affirmed.

The hearing officer did not err in determining that the decedent did not sustain a compensable injury on ___________. The parties do not dispute that the decedent sustained injuries causing her death in a motor vehicle accident (MVA) while on her way to pick up a document before heading to her workplace. Nor do the parties dispute that the decedent was going to retrieve said document, at a different location than her normal workplace, at the express instruction of her supervisor. The only issue in dispute was whether the decedent was in the “course and scope” of her employment at the time of the MVA. The claimant beneficiary testified that the decedent was traveling, on the route she usually took to her workplace, to get to a library downtown to retrieve the document, when she was killed in the MVA. There was no evidence presented that the decedent was traveling from one workplace to another workplace. The hearing officer determined that the decedent’s activities at the time of the MVA did not fall within the exceptions to the “going and coming” noncompensability under Sections 401.011(12)(A)(iii) and (B), commonly called the “special mission” and the “dual purpose” exceptions, respectively, which read as follows:

“Course and scope of employment” means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:

1. (A)transportation to and from the place of employment unless:

* * * * *

1. (iii)the employee is directed in the employee’s employment to proceed from one place to another place; or

2. (A)travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless:

3. (ii)the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel; and

4. (iii)the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.

The carrier argues that the facts do not support that the decedent was on a “special mission” for her employer, or that her travel on the date of the MVA was of a “dual purpose” nature and that the decedent was simply “going to” her employment. The hearing officer determined that the decedent was involved in the MVA “before getting to work”; that the decedent “had not yet performed the employer’s mission, at the time of the accident and was not traveling in the nature of a “dual purpose”; and therefore, the injuries she sustained in the MVA on ___________, were not compensable. The hearing officer properly applied the 1989 Act and his determination is not against the great weight of the evidence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The hearing officer’s decision and order is affirmed.

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. RUSSELL OLIVER, PRESIDENT

221 WEST 6TH STREET

AUSTIN, TEXAS 78701.

Terri Kay Oliver

CONCUR:

Judy L. S. Barnes
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 was held on January 28, 2002. The hearing officer determined that (1) the compensable injury of ______________, did not include and extend to a fatality; and (2) the proper legal beneficiaries of the deceased are: MR, AR, DR Jr., MR, and RLR. The appellants (claimants) appeal the injury determination and beneficiary determination with regard to RMR on sufficiency of the evidence grounds. The respondent (carrier) responds that the claimants’ appeal is untimely and, in the alternative, urges affirmance. The hearing officer’s beneficiary determination with regard to the remaining named claimants was not appealed and is, therefore, final. Section 410.169.

DECISION

Affirmed.

We first address the carrier’s assertion that the claimants’ appeal is untimely. Our review of the record reveals that the hearing officer’s decision and order was mailed to the claimants on March 20, 2002, using a former address. The claimants’ attorney represents that a copy of the hearing officer’s decision was not received until April 17, 2002, when she received a facsimile copy from the Texas Workers' Compensation Commission’s Hearings Division. A copy of the facsimile transmittal cover sheet is attached to the claimants’ appeal. The claimants filed their appeal on May 8, 2002, fifteen days after receipt of the decision and order. The claimants’ appeal is timely filed.

The hearing officer did not err in determining that the compensable injury did not include and extend to a fatality and that RMR is not a legal beneficiary of the deceased. These were questions of fact for the hearing officer to resolve. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)) and, as the trier of fact, resolves the conflicts and inconsistencies in the evidence, including the medical evidence (Texas Employers Insurance Association v. Campos, 666 S.W.2d 286 (Tex. App.-Houston [14th Dist.] 1984, no writ)). In view of the evidence presented, we cannot conclude that the appealed determinations are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

The decision and order of the hearing officer are affirmed.

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

CT CORPORATION COMPANY

350 NORTH ST. PAUL, SUITE 2900

DALLAS, TEXAS 75201.

Philip F. O'Neill
Appeals Judge

CONCUR:

Susan M. Kelley
Appeals Judge

Roy L. Warren
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 March 19, 2002. The hearing officer determined that the deceased's compensable right knee injury of ___________, resulted in his death on _____________.

The appellant (carrier) appealed, contending that the medical evidence was insufficient to support the hearing officer's decision, that the deceased had in fact died as a result of a heart attack unrelated to the employment, and that the respondent's (claimant/beneficiary) evidence does not establish that the deceased's "death naturally flowed from the compensable injury" and does not rise to the level of reasonable medical probability. The claimant/beneficiary responded, citing Appeals Panel decisions and urging affirmance.

DECISION

Affirmed.

It is undisputed that the deceased, age 43 at the time of his compensable injury, had had a kidney transplant in 1975, had been treated with immunosuppressive medication, and had a complicated medical history. There was uncontroverted testimony that he had not missed any work in the nine or ten years of his employment except for gallbladder surgery in 1985. The parties stipulated that the deceased sustained a compensable right knee injury on ___________, when he hit his leg on a metal object. The deceased was initially diagnosed with a contusion and hematoma. The deceased subsequently developed an infection, was prescribed antibiotics, and was referred to a specialist. The deceased was admitted for the first of several hospitalizations on June 14, 2000, with a diagnosis of cellulitis and was prescribed intravenous antibiotics. The deceased continued to be admitted and discharged by three hospitals, including (hospital 3) on some eight or nine times between June 2000 and ___________, when he was again admitted at hospital 3 with impressions that included hypotension, sepsis, renal disease, a "[h]istory of hepatitis C and cirrhosis with abnormal liver function tests" and atrial fibrillation. The deceased died the following day, ___________.

An autopsy report had findings of propoxyphene toxicity, atherosclerotic cardiovascular disease, chronic renal failure, and liver fibrosis with ascites and hyposplenia. The cause of death was listed as propoxyphene toxicity and the manner of death was "Accident." The death certificate gave as the immediate cause of death "cardiorespiratory arrest." The claimant/beneficiary's contention is that the treatment of the compensable injury infection with antibiotics caused the deceased's liver and renal failure, eventually resulting in the deceased's death when his heart stopped. The carrier contends that the deceased died from cardiorespiratory arrest unrelated to the compensable injury.

The claimant/beneficiary's position is supported by Dr. D, who wrote that "within reasonable medical probability the proximate cause of [deceased's] hepatic decompensation was his work-related injury. Subsequent therapy, required to treat the work-related injury, exacerbated the liver dysfunction and contributed to his death." The carrier's position is supported by Dr. H, a transplant surgeon, who commented that while "the wound infection certainly contributed to the claimant's [sic, deceased's] overall illness," the cause of death was "by acute myocardial infarction resulting in sudden death."

In Texas Workers' Compensation Commission Appeal No. 950206, decided March 28, 1995, the Appeals Panel stated:

The employer takes the employee as he finds him. Texas Workers' Compensation Commission Appeal No. 941328, decided November 17, 1994 . . . . In Appeal No. 941328, supra, we stated "[t]he fact that some underlying disease enhanced the affects of a work-related injury does not render the amplified consequences of an injury noncompensable." See also Sowell v. Travelers Insurance Co., 374 S.W.2d 412 (Tex. 1963).

The issue in this case was framed as "[d]id the compensable injury . . . result in the claimant's [sic, deceased's] death?" Causation in this case must be proved by expert evidence to a reasonable degree of medical probability. Schaefer v. Texas Employers= Insurance Association, 612 S.W.2d 199 (Tex. 1980). Here we have conflicting expert medical opinion and, notwithstanding the carrier's argument that Dr. D's opinion regarding causation lacked a scientific basis, there was conflicting expert medical evidence. Whether the deceased's death was due to complications and treatment of the compensable injury causing reactions in the deceased's immune system or whether the deceased "died from cardiorespiratory arrestBheart attack" was ultimately a question of fact for the hearing officer to resolve.

With conflicting expert medical evidence in support of contradictory views, we cannot say that either the hearing officer erred as a matter of law or that her decision is so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Accordingly, the hearing officer's decision and order are affirmed.

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

CT CORPORATION

350 NORTH ST. PAUL

DALLAS, TEXAS 75201.

Thomas A. Knapp

Appeals Judge

CONCUR:

Susan M. Kelley
Appeals Judge

Robert W. Potts
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 22, 2002. On the three issues before him, the hearing officer held that the deceased wife (deceased) of the appellant (claimant/spouse) was “specifically excluded” from coverage; that the respondent’s (carrier) defense on compensability is not limited to the “specific exclusion from coverage” defense listed on the Payment of Compensation or Notice of Refused or Disputed Claim (TWCC-21) that was filed with the Texas Workers’ Compensation Commission (Commission) on June 6, 1996; and that the carrier is relieved from liability because of the claimant/spouse’s failure to timely file a claim for compensation with the Commission within one year of the injury. The claimant/spouse has appealed all adverse determinations. The carrier files a response urging affirmance.

DECISION

Reversed and rendered.

This case is a claim for death benefits; the claimant present at the CCH was the claimant/spouse. The case was styled incorrectly in the hearing officer’s decision and order in that the deceased was listed as the “claimant.” It was stipulated that the deceased died on ____________, while furthering the business of (the insured employer).

Although there is a reference in the record to a surviving minor child, this child’s status as a potential or actual “claimant” in this case was left undeveloped. While we note that no issue was raised disputing the status of any beneficiaries, it is incumbent on the hearing officer, most especially when minor beneficiaries may exist, to clarify through stipulation the identity of those who would have beneficiary status in the event a death is found to be compensable. This is especially true when one of the issues has to do with whether a timely claim for death benefits was filed.

In view of the complexity of the issues presented and the fact that each party in this hearing had a burden of proof, the record is remarkably scant. The claimant/spouse testified that he was the sole proprietor of the insured employer. He testified that it was not a corporation or partnership. The insured employer was formed in December 1995, to perform services for a single client company. The client company required workers’ compensation insurance. The claimant/spouse testified that the insured employer moved onto the premises of the client company at the end of January 1996.

The claimant/spouse testified that the deceased was the company’s “Gal Friday” and was paid a salary of $350.00 a week. When she was killed in an automobile accident on ____________, she was on her way to pick up a part for equipment used by the insured employer.

The claimant/spouse said he was not paid a salary but took draws from the insured employer as needed and then only if the insured employer was profitable. According to three premium checks in evidence, the bank account for the insured employer was initially in the claimant/spouse’s name, although the deceased was also authorized to sign checks off this account. She also did the tax filings for the insured employer, and was tasked with obtaining workers’ compensation insurance. To carry out this task, the deceased contacted the same carrier that insured a family member’s business and served as the primary contact with the insurance salesman.

The insurance application. The application for combined workers’ compensation and general liability coverage is in evidence. “Applicant” is shown as claimant/spouse and the deceased is shown as “d/b/a” the insured employer; however, the business risk is checked as “individual” rather than the other provided alternatives of partnership or corporation. The number of employees shown is six. Although six “crew members” are indicated, including two truck drivers, the application also states that one of the truck drivers is a contractor.

The application for insurance is dated December 4, 1995, and shows a policy period of “12/11/95 to 12/11/95 (sic)." Premium is to be based on payroll. The application queries whether “sole prop/partners/exec” officers are to be excluded or included, but neither alternative is checked. The claimant/spouse and the deceased are listed in an area below this question. The classification number assigned to the deceased is “clerical.” The claimant/spouse was assigned a “mech logging” number. To the side of the names, where method of computing premium is indicated, the alternative “excl.” is checked.

In the application’s premium calculation section, all premiums are shown as calculated for the ”mech logging” category. On the policy itself, no specific number of covered employees is listed and the premium is calculated for “logging or lumbering- mechanized felling machines & delimbing equipment” that the claimant/spouse said was the business of the insured employer. The claimant/spouse said it was his understanding that he would be excluded from coverage under the policy because he was the insured employer’s owner, and he did not understand that the deceased would be excluded. As shown by an endorsement schedule entitled “Partners, Officer and Others Exclusion Endorsement” to the workers’ compensation policy, only his name was listed as an excluded “other.” Although a transcribed statement from the insurance salesman said that both the claimant/spouse and the deceased were intended to be excluded from coverage, there was no explanation as to why the endorsement only listed the claimant/spouse. The claimant/spouse said that there were five other employees who worked for the insured employer as employees. The insured employer also worked with independent contractors, at least one of whom was a truck driver.

The dispute of compensability. After the deceased’s death, it was undisputed that death benefits were initiated by the carrier after the claimant/spouse hired an attorney to handle a claim relating to the death. The claimant/spouse said that he concluded that his attorney had filed all required forms as he was hired to do. A TWCC-21 dated June 5, 1996, states that written notice of injury was first received on April 9, 1996, and given by the claimant/spouse’s attorney. The injury is described as a “death,” the employee’s name is that of the deceased, and the reason shown for terminating benefits is “[c]laimant[/spouse] is a sole proprietor and/or partner, and as such, is specifically excluded from coverage.” There was no evidence about when, or if, a dispute was filed by the carrier also asserting that the claimant/spouse failed to timely file a claim for death benefits in accordance with Section 409.007.

In a statement given to the adjuster on June 5, 1996, the claimant/spouse said that he did not discuss the coverage with the deceased much prior to her death, and that the insurance salesman told him that the insured employer would be covered the next day after payment of a deposit but that he recalled no discussion specifically relating to coverage for the deceased or him.

The claimant/spouse said that the salesman’s visit to the insured employer was sometime in December 1995, but that the first payment was made for the policy in January. In evidence is a check dated January 9, 1996, for a total of $2,296.00, comprised of $2,060.00 deposit for workers’ compensation insurance plus another $236.00 for general liability. Checks for combined workers’ compensation and general liability payments are also in evidence for February 9 and March 8, 1996. The first two checks are in the name of the claimant/spouse and shown as a business account; the third check is in the name of the insured employer. All show the same post office box as the address and all are signed by the deceased.

The insurance policy is entitled “workers compensation and employers liability insurance policy” and is shown as produced by the servicing office on December 15, 1995. The policy period on this document is shown as December 14, 1995, through December 14, 1996, 12:01 a.m. standard time and gives the insured’s mailing address.

A request for a benefit review conference (BRC) was made by the attorney for the claimant/spouse on October 31, 2001. The request form asserted that “claimant” died in an accident and that “claimant’s” widower and child sought “LIBS” (lifetime income benefits, sic). The BRC report is dated December 13, 2001, and is the first written indication that an issue relating to failure to file a death benefits claim was raised.

WHETHER THE CARRIER WAS LIMITED TO THE DEFENSE RAISED IN

ITS TWCC-21

Because this issue potentially makes a threshold disposition of the case, we will discuss it first.

Section 409.022(a) states that a carrier’s refusal to pay benefits must “specify” the grounds for refusal. Section 409.022(b) states that the grounds specified in the notice constitute the only basis for the defense in a further proceeding unless based upon newly discovered evidence that could not reasonably have been discovered at an earlier date. Although there was no explanation of the lapse of time between the June 1996 TWCC-21 and the October 31, 2001, request for a BRC, there was no contention that there were new grounds that could not have been discovered in the intervening five plus years nor was any amended TWCC-21 urged or produced. The BRC was held on December 6, 2001, and the BRC report is the only document in the case raising a defense relating to a claim for compensation.

The sole ground, therefore, in the TWCC-21, or any disputing document before the hearing officer was: “Claimant is a sole proprietor and/or partner, and as such, is specifically excluded from coverage.” The hearing officer found that a fair reading of the document as a whole made it clear that the deceased’s “status as an owner is the gravamen of the carrier’s dispute.”

Even given the hearing officer’s interpretation, it is immediately clear that an issue relating to whether the carrier was discharged from liability for a claim was not asserted as a ground and therefore should not have been considered by the hearing officer absent a finding of newly discovered evidence. We will not remand, however, as it is clear from the record that a finding of newly discovered evidence would not be supportable. Although it would not be possible to raise this defense within 60 days after a death, the issue of late or nonfiling of a claim for compensation must be raised within a reasonable time after discovery of facts indicating that defense. Texas Workers’ Compensation Commission Appeal No. 962230, decided December 23, 1996. The carrier’s failure to raise this as an issue until the BRC was not reasonable. Therefore, the issue relating to the claimant/spouse’s failure to file a claim for death benefits was not properly before the hearing officer and had been waived. The hearing officer’s determination to the contrary was error and we reverse that determination.

We now consider the stated issue on the TWCC-21. The Appeals Panel has said that "magic words are not necessary" to contest the compensability of an injury under the statute and rule, and that the Commission will look to "a fair reading of the reasoning listed" to determine if the notice of refusal or denial is sufficient. Texas Workers' Compensation Commission Appeal No. 93326, decided June 10, 1993. And, as was stated in Texas Workers' Compensation Commission Appeal No. 93533, decided August 9, 1993, "[t]he key point to be determined is whether, read as a whole, any of the reasons listed by carrier would be a defense to compensability that could prevail in a subsequent proceeding." For example, disputing a right leg injury would be found to not be a waiver of a disputed left leg injury. Texas Workers’ Compensation Commission Appeal No. 982654, decided December 30, 1998.

Given that the parties and the hearing officer all incorrectly referred to the deceased at some time or other as the “claimant” and there was no actual confusion as to the party for whom exclusion was argued by the carrier, we will not hold in this case that lack of the proper terminology was fatal to the defense. We also believe that it may be “fairly read” as raising the prospect that the deceased was excluded from coverage specifically under the policy or the law in effect at the time coverage was extended. In summary, while the TWCC-21 grounds may not be fairly read to include a dispute over failure to file a claim, they may be read to join an issue over the coverage of the deceased.

WHETHER THE DECEASED WAS EXCLUDED FROM COVERAGE

The hearing officer found that at the time of her death, the “[deceased] had the powers and authority of a co-owner of the [insured] employer.” His conclusion of law is that the deceased was a co-owner and “specifically excluded from coverage.” In our opinion, excluding the deceased from coverage for this stated reason alone was error on the part of the hearing officer for several reasons. As noted in Texas Workers’ Compensation Commission Appeal No. 94401, decided March 19, 1994, there is no provision of the 1989 Act that specifically excludes from coverage a company owner, partner, or corporate officer from coverage, as there was under the “old law.”

Whether the deceased was “an owner.” Although the parties and hearing officer tended to blur the terms “partner” and “sole proprietor,” those terms are not equivalent business relationships. BLACK’S LAW DICTIONARY (6th Ed. 1990) defines sole proprietorship as:

A form of business in which one person owns all the assets of the business in contrast to a partnership, trust, or corporation. The sole proprietor is solely liable for all the debts of the business.

A sole proprietor is clearly an owner, but the only owner, of a business. There was no evidence that the deceased was a “sole proprietor.” There is, however, evidence that the claimant/spouse was a sole proprietor, in which case the deceased could not, as a matter of law, be a “co-owner.”

A “co-owner” relationship would be a form of partnership. A partnership consists of an express or implied agreement containing four required elements: (1) community of interest in the venture; (2) an agreement to share profits; (3) an agreement to share losses; and (4) mutual right of control or management of the enterprise. Schlumberger Technology Corp. v. Swanson, 959 S.W.2d 171 (Tex. 1997). The Supreme Court stated in this case that if there is no evidence of any one of these elements, a jury-finding of partnership cannot be sustained. The burden of proof of the existence of a partnership is upon the person seeking to establish its existence. State v. Houston Lighting & Power Co., 609 S.W.2d 263, 267 (Tex. Civ. App.-Corpus Christi 1980, writ ref’d n.r.e.)

Section 203 of the Texas Uniform Partnership Act, Tex. Rev. Civ. Stat. Ann. Art. 6132b-2.03 (Vernon’s 1999), is entitled “Rules for Determining if Partnership is Created,” and lists factors that indicate creation of a partnership, which include, under subsection (a):

1. (a)receipt or right to receive a share of profits of the business;

2. (a)expression of an intent to be partners in the business;

3. (a)participation or right to participate in control, of the business;

4. (a)sharing or agreeing to share:

5. (a)losses of the business; or

6. (B)liability for claims by third parties against the business; and

7. (5)contributing or agreeing to contribute money or property to the business.

However, Art. 6132b-2.03(b) states that any one of several circumstances, by itself, does not indicate that a person is a partner, one of which is receipt of business profits as wages paid to an employee, Art. 6132b-2.03(b)(1)(B), or co-ownership of property (including community property), Art. 6132b-2.03(b)(2). An agreement to share losses by business owners is no longer necessary to create a partnership. Art. 6132b-2.03(c) (reversing previous court decisions holding such to be critical^[1]).

There was no evidence offered to show many of the elements set out in Art. 6132b-2.03. Essentially, only one element was advanced by the carrier; that there was an expression of intent in the application for insurance made by the deceased that a partnership existed.

While reasonable minds could certainly differ as to whether a partnership existed or whether the carrier met its burden of proof, the evidence is marginally sufficient to uphold the hearing officer’s conclusion of law that the deceased was a co-owner of the insured employer. However, as will be discussed below, this is not dispositive of coverage in this case for various reasons, because the determination that the deceased was “specifically excluded from coverage” is erroneous as a matter of law and also against the great weight and preponderance of the evidence.

Dual capacity. Even under old law, an executive officer injured while serving as an employee of the company could be covered under the doctrine of “dual capacity.” Under this doctrine, as applied in Harris v. Casualty Reciprocal Exchange, 632 S.W.2d 714 (Tex. 1982), a corporate officer who was also performing the duties of an employee, was held to be covered by the employer’s workers’ compensation policy and the statute then in existence that made coverage of partners, sole proprietors, and corporate executive officers elective did not preclude coverage in this case. See also Pennsylvania National Mutual Cas. Ins. Co. v. Hannah, 701 S.W.2d 67 (Tex. App.-Beaumont 1985, writ ref'd n.r.e.); Appeal No. 94401, supra. As the Hannah case notes, the test is whether the individual was hired to perform both executive and employee-related duties, and does not focus on only the tasks performed at the time of the injury. These cases have not been dealt with or applied by the hearing officer in this case in his attempt to distinguish Appeal No. 94401 solely on its facts. The stipulation and the undisputed evidence were that the deceased was hired to perform employee-like clerical functions and was compensated for her work in the form of a salary. Consistent with this was that she was not, at the time of her death, performing an executive function. Therefore, we reverse and render that even if the deceased had been a “co-owner” as found by the hearing officer, she was injured while acting in the course and scope of employment under the “dual capacity” doctrine.

The Insurance Policy as a Contract. The claimant/spouse argued that Section 406.097 of the 1989 Act controlled because the policy was not delivered and paid for until after January 1, 1996. Insofar as it might be applicable to the facts of this case, this provision states:

1. (a)A sole proprietor, partner, or corporate executive officer of a business entity that elects to provide workers' compensation insurance coverage is entitled to benefits under that coverage as an employee unless the sole proprietor, partner, or corporate executive officer is specifically excluded from coverage through an endorsement to the insurance policy or certificate of authority to self-insure.

This statute is to be effective for an insurance policy or certificate of authority to self-insure that is delivered, issued for delivery, or renewed on or after January 1, 1996, and the Texas Labor Code annotation further states that a policy delivered, issued for delivery, or renewed before January 1, 1996, is governed by the law as it existed immediately before September 1, 1995.

While there is no specific issuance date mentioned in the policy, there is the date of December 15, 1995, below the servicing agent’s name and address. The attached endorsements, including the specific exclusion for the claimant/spouse are listed as effective December 14, 1995. Although the only checks in evidence for payment of premium are dated in January 1996 and the evidence points toward payment then, we cannot agree that the hearing officer’s decision that the policy was issued for delivery on or about December 14, 1995, is against the great weight and preponderance of the evidence. However, the fact that Section 406.097 may not apply does not mean, as the hearing officer has then held, that the deceased was therefore excluded from coverage. In our opinion, the hearing officer has erred as a matter of law in determining that the deceased was not covered by the workers’ compensation insurance policy in evidence in this record.

An insurance policy is a contract. The information page of the policy in issue, like the application, included check-mark options for indicating whether the business is individual, a partnership, or a corporation; only the “individual” block is checked. The policy states that the only agreements relating to insurance are those stated in the policy and may only be changed by endorsement issued to be part of the policy. General Section, subsection A. Subsection B of the General Section states that if an insured is a partnership and the reader is a partner, the reader is insured only in the capacity as an employer of the partnership’s employees. However, the specific endorsement governing the exclusion of partners, officers, and “others” lists only the claimant/spouse as an “other.”

If an insurance contract is subject to more than one reasonable interpretation, the court will adopt the construction most favorable to the insured. State Farm Fire & Cas. Co. v. Reed, 873 S.W.2d 698, 699 (Tex. 1993). An implication cannot be allowed to override an express provision of an insurance contract. Fruhman v. Nawcas Benevolent Auxiliary, 436 S.W.2d 912, 915 (Tex. Civ. App.-Dallas 1969, writ ref’d n.r.e). Words of exception and limitation are construed strictly against the insurer. Fort Worth Lloyds Ins. Co. v. Willham, 406 S.W.2d 76, 79 (Tex. Civ. App.-Amarillo 1966, writ ref’d n.r.e). When construing an exclusionary clause, the court will adopt the insured’s construction as long as it is not unreasonable, even if the insurer’s construction appears to be more reasonable or more accurately reflect the parties’ intent. Pro-Tech Coating Inc. v. Union Standard Ins. Co., 897 S.W.2d 885, 890 (Tex. App.-Dallas 1995, no writ). An intent to exclude coverage must be expressed in clear and unambiguous language. National Union Fire Ins. Co. v. Hudson Energy Co., 811 S.W.2d 552, 555 (Tex. 1991).

It is when a policy term is ambiguous that a construction affording coverage will be adopted. Gonzales v. Mission American Ins. Co., 795 S.W.2d 734, 737 (Tex. 1990). Where language is plain and unambiguous, courts must enforce the contract as made by the parties. Travelers Ins. Co. v. Newsom, 352 S.W.2d 888 (Tex. Civ. App.-Amarillo 1961, writ ref’d n.r.e.).

In our opinion, any general provisions that could indicate that the deceased was not covered by workers’ compensation were modified and superceded by the specific endorsement excluding only the claimant/spouse.^[2] To the extent that an ambiguity is created by including the deceased’s name as part of the “dba,” we are guided by the rules of construction cited above, and the policy must be interpreted in favor of coverage for the insured employer and the deceased who, when injured, was furthering the interests of the insured employer. Accordingly, we reverse the conclusion that the deceased was “specifically excluded” from coverage and render a decision that the deceased was a covered employee under the contract of insurance with the insured employer.

FAILURE TO FILE A TIMELY CLAIM FOR DEATH BENEFITS

Our previously discussed determination that the matter of timely filing of a claim was not raised within a reasonable time after the defense arose is dispositive, but we shall also discuss the hearing officer’s findings on this issue, as a means of instructing against repeating the obvious and substantive errors on this issue.

As a cursory reading of the 1989 Act shows, the requirement for filing a claim for death benefits with the Commission is found in Section 409.007(a). We would observe that Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 122.100 (Rule 122.100) also provides that a written claim for compensation be filed by each beneficiary with the Commission and that it “should” be on a Notice of Fatal Injury or Occupational Disease/Claim for Compensation for Death Benefits (TWCC-42) form. Another writing containing the information in Rule 122.100(b) could be considered as a claim. Although the “broad brush” appears to have been used by everyone at the CCH, the issue at the CCH could not include more than the surviving husband’s claim, as the failure of a surviving minor child to file a claim within one year of the deceased’s death would not bar payment of that child’s benefits. Section 409.007(b)(1).

No evidence was offered on the claim-filing issue during the CCH, except perhaps the claimant/spouse’s testimony that he believed his attorney had filed required paperwork on his claim.^[3] Not until the carrier’s closing argument was the matter even directly mentioned, and then claimant/spouse’s attorney responded in rebuttal by equating the claim filing requirement with “written notice of injury”.^[4]

In spite of the lack of evidence (as opposed to argument) about when any written claim was filed, the hearing officer nevertheless found as fact that the claimant/spouse “did not file a [TWCC-41] with the Commission prior to October 31, 2001." The significance of this date (corresponding to the date that the request for the BRC was made) is not explained by the hearing officer.

The hearing officer erred in holding that the carrier was “relieved from liability” for death benefits. The stated issue, the conclusion of law, and counterpart decision paragraph are inapplicable to a death benefits case on their face, because each provision relieves the carrier of liability under “§ 409.004" of the 1989 Act. That provision of the 1989 Act does not apply in death benefits cases. The provision that would apply, which is Section 409.007(b), provides that an untimely claim is only barred for the errant beneficiary; a carrier could not be relieved of “liability” for a death benefits claim under this provision without compromising the statutory rights of the (SIF). See Sections 403.007 and 408.182(e). The SIF is not required to file a claim. Rule 122.100(a). However, the duties and remedies under the proper statutory provisions were not brought forward as an issue in either the BRC or this CCH; what the decision amounts to is, at best, an advisory opinion on a statutory provision that does not apply.

In response to any assertion that this issue could be fairly read to include Section 409.007, we observe that “fair reading” has its limits. The carrier was represented by counsel. We are disinclined on appeal to treat invocation of the inapplicable statutes and remedies as a mere typographical error. Consequently, we reverse Finding of Fact No. 5, Conclusion of Law No. 5, and that part of the decision paragraph which purport to hold that a claim for death benefits was not filed and that the carrier is therefore “relieved from liability,” and we render a decision without such finding of fact and conclusion of law.

For the reasons set forth above, we reverse and render a new decision that the deceased was covered by the carrier’s workers’ compensation policy as an employee of the insured employer, even if she also was a co-owner of the insured employer. We further hold that the issue of filing a claim for death benefits was neither timely, nor properly, raised by the carrier, and therefore the carrier is not discharged from liability for payment of death benefits. The carrier is, therefore, ordered to pay death benefits (including accrued benefits) to the beneficiary or beneficiaries of the deceased in accordance with the 1989 Act.

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

MR. STEVE ROPER

1616 S. CHESTNUT STREET

LUFKIN, TEXAS 75902.

Susan M. Kelley
Appeals Judge

CONCUR:

Michael B. McShane
Appeals Judge

Edward Vilano
Appeals Judge

1. See, for example, Grimmett v. Higginbotham, 907 S.W.2d 1 (Tex. App.-Tyler 1994, writ den’d).

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2. It can be argued that the endorsement appears to anticipate the Section 406.097 exclusion that had been enacted by the legislature.

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3. We have made clear in Texas Workers' Compensation Commission Appeal No. 941698, decided February 2, 1995, that an Employee’s Notice of Injury or Occupational Disease & Claim for Compensation (TWCC-41) form is one of those documents that should be included in the record by the hearing officer as part of his or her responsibility to make a complete record, where timely filing of a claim with the Commission is an issue. See also Texas Workers' Compensation Commission Appeal No. 941171, decided October 17, 1994. It would seem that any TWCC-42 on file should be officially noticed as well. Because of our disposition on this issue, we will not remand for official notice.

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4. On appeal, the claimant/spouse’s attorney argues that the “tolling” provision under Section 409.008 applies because of the failure of the insured employer or insurance carrier to file an Employer’s First Report of Injury or Illness (TWCC-1). No facts exist one way or the other in the record upon which to evaluate this new argument.

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