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This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 27, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (date of injury); (2) the respondent (carrier) has waived the right to contest compensability of the claimed injury for failure to timely dispute the injury in accordance with Section 409.021; and (3) the claimant did not have disability from December 4, 2020, through the date of the CCH. The claimant appealed, disputing the ALJ’s determinations regarding compensability and disability. The carrier responded, urging affirmance of the ALJ’s determinations. The ALJ’s determination that the carrier has waived the right to contest compensability of the claimed injury for failure to timely dispute the injury in accordance with Section 409.021 was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant testified that he was injured on (date of injury), when he fell backwards off a ladder while changing a light bulb in an apartment. The claimant also testified that because of the injury he lost consciousness, and when he woke up, he had a big headache and pain in his neck, back, and left shoulder. The claimant additionally testified he received medical treatment for his injury.

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

COMPENSABLE INJURY AND CARRIER WAIVER

Two of the issues before the ALJ were whether the claimant sustained a compensable injury on (date of injury), and whether the carrier waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021. The carrier argued at the CCH that Continental Casualty Company v. Williamson, 971 S.W.2d 108 (Tex. App.—Tyler 1998, no pet.), applied in this case because there was no injury, and because there was no injury there was no waiver.

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

The ALJ noted in her discussion that medical records in evidence show the claimant was examined at Memorial Hermann hospital on (day after the date of the claimed injury), for a trip and fall occurring “6 days ago,” and that he only complained of direct trauma to his chest and right knee due to a “trip and fall on Tuesday.” The ALJ also noted (date of injury), the date of the claimed injury, was a Sunday. The ALJ stated the evidence was not persuasive that the claimant sustained damage or harm to the physical structure of his body on (date of injury). Based on this rationale the ALJ found that the claimant did not sustain damage or harm to the physical structure of his body while in the course and scope of his employment on (date of injury), and determined the claimant did not sustain a compensable injury on (date of injury).

In Williamson, supra, the court held that “if [an ALJ] determines that there is no injury, and that finding is not against the great weight and preponderance of the evidence, the carrier’s failure to contest compensability cannot create an injury as a matter of law.” The Appeals Panel has previously recognized that Williamson is limited to situations where there is a determination that the claimant did not have an injury, that is, no damage or harm to the physical structure of the body, as opposed to cases where there is an injury, which was determined by the ALJ not to be causally related to the claimant’s employment. Appeals Panel Decision (APD) 070903-s, decided July 27, 2007. See also APD 120090, decided March 22, 2012. When a carrier waives its right to contest compensability of the injury, the injury becomes compensable as a matter of law, provided that there is physical harm or damage to the body, and the carrier is liable for workers’ compensation benefits. APD 023017, decided January 27, 2003; APD 030280, decided March 27, 2003; APD 162591, decided February 16, 2017.

As noted by the ALJ in this case there are medical records from Memorial Hermann hospital dated (date), the day after the claimed injury, indicating the claimant described a slip and fall injury that occurred six days prior to (day after the date of the claimed injury). These records reflect the claimant was diagnosed with an accidental fall, a neck strain, and a strain of the back. Also in evidence are records from Rossel Medical Care dated April 13, 2021, April 27, 2021, May 27, 2021, and June 24, 2021. These records also show the claimant was diagnosed with a cervical sprain/strain, a thoracic sprain/strain, and a lumbar sprain/strain, among other conditions, due to the claimed (date of injury), injury.

The ALJ indicates in her discussion that she based her finding of fact that the claimant did not sustain damage or harm to the physical structure of his body while in the course and scope of his employment on (date of injury), on her belief that “the evidence was not persuasive that [the claimant] sustained damage or harm to the physical structure of his body on (date of injury).” However, medical records in this case reflect there was damage or harm to the physical structure of the claimant’s body on (date of injury); therefore, Williamson, supra, does not apply. The ALJ’s finding is against the great weight and preponderance of the evidence.

Although the ALJ determined the claimant did not sustain a compensable injury on (date of injury), because she believed the evidence was not persuasive the claimant sustained damage or harm to the physical structure of his body on (date of injury), she also determined the carrier waived the right to contest compensability of the claimed injury for failure to timely dispute the injury in accordance with Section 409.021. The ALJ’s determination on carrier waiver under Section 409.021 was not appealed and has become final pursuant to Section 410.169. The carrier in this case did not dispute the claimed injury within 60 days of written notice of the claimed injury, and as explained above, Williamson, supra, does not apply. Therefore, we reverse the ALJ’s determination that the claimant did not sustain a compensable injury on (date of injury), and we render a new decision that the claimant did sustain a compensable injury on (date of injury).

DISABILITY

The ALJ’s determination that the claimant did not have disability from December 4, 2020, through the date of the CCH is supported by sufficient evidence and is affirmed.

SUMMARY

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

We affirm the ALJ’s determination that the claimant did not have disability from December 4, 2020, through the date of the CCH.

The true corporate name of the insurance carrier is SOMPO AMERICA 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.

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 (CCH) was held on March 1, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (carrier) is liable for payment of accrued benefits pursuant to 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3) resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury; and (2) the respondent (claimant) had disability resulting from the compensable injury of (date of injury), from March 31, 2020, through the present. The carrier appealed, disputing the ALJ’s determinations. The appeal file does not contain a response from the claimant to the carrier’s appeal.

DECISION

Affirmed in part and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), which extends to a lumbar strain. The claimant testified he was working with a coworker on (date of injury), inspecting a tank to be moved from its location in (state) to a different location. The claimant testified he was on top of the tank and injured his low back while reaching down and lifting up a heavy metal piece called a stinger his coworker handed up to him.

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).

DISABILITY

The ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), from March 31, 2020, through the present is supported by sufficient evidence and is affirmed.

CARRIER LIABILITY FOR BENEFITS UNDER RULE 124.3

Rule 124.3(a)(1) provides in pertinent part that if the carrier does not file a Notice of Denial by the 15th day after receipt of the written notice of the injury, the carrier is liable for any benefits that accrue and shall initiate benefits in accordance with this section. Rule 124.3(a)(2) provides that if the carrier files a Notice of Denial after the 15th day but on or before the 60th day after receipt of written notice of the injury: (A) the carrier is liable for and shall pay all income benefits that had accrued and were payable prior to the date the carrier filed the Notice of Denial and only then is it permitted to suspend payment of benefits; and (B) the carrier is liable for and shall pay for all medical services, in accordance with the 1989 Act and Texas Department of Insurance, Division of Workers’ Compensation (Division) Rules, provided prior to the filing of the Notice of Denial. Rule 124.3(a)(3) provides that the carrier shall not file notice with the Division that benefits will be paid as and when they accrue with the Division. Rule 124.3(a)(4) provides in pertinent part that a carrier’s failure to file a Notice of Denial by the 15th day after it receives written notice of an injury constitutes the carrier’s acceptance of the claim as a compensable injury, subject to the carrier’s ability to contest compensability on or before the 60th day after receipt of written notice of the injury, and that a carrier’s failure to do so results in the carrier being liable for all accrued income and medical benefits. Finally, Rule 124.3(a)(5) provides in pertinent part that a carrier commits an administrative violation if, not later than the 15th day after it receives written notice of the injury, it does not begin to pay benefits as required or file a Notice of Denial of the compensability of a claim.

The ALJ noted in his discussion that the carrier received written notice of the claimed injury on September 15, 2020, when the claimant’s attorney faxed the Employee’s Claim for Compensation for a Work-Related Injury or Occupational Disease (DWC-41) to the carrier, and that the 15th day after the carrier received notice was September 30, 2020. The ALJ further noted that the carrier filed a dispute on January 6, 2021. The ALJ found that the carrier did not file a denial disputing the claim with the Division by the 15th day after it received written notice of the injury and therefore determined that the carrier is liable for payment of accrued benefits pursuant to Rule 124.3 resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury.

The carrier argues on appeal that it had accepted compensability of the claimant’s (date of injury), injury, and contends that the ALJ in this case confuses a Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) with a Notice of Disputed Issue(s) and Refusal to Pay Benefits (PLN-11). The carrier also contends that because it had accepted the claimant’s (date of injury), injury as compensable, Rule 124.3 does not apply in this case.

In evidence is a PLN-11 dated January 6, 2021, in which the carrier stated it did not agree the “[claimant’s] work-related injury [of (date of injury),] stops [the claimant] from getting or keeping a job that pays what [the claimant] earned [prior to that injury] (existence, duration, or extent of disability).” The carrier also stated in this PLN-11 that it did not agree that “some of [the claimant’s] medical conditions were caused by [the claimant’s (date of injury),] work-related injury (extent of injury).” The carrier did not state in the PLN-11 that it was disputing compensability or liability of the (date of injury), injury, and the evidence does not contain a PLN-1 from the carrier denying compensability or liability of the (date of injury), injury. In Appeals Panel Decision (APD) 072002-s, decided December 20, 2007, the Appeals Panel noted that the “preamble to Rule 124.3 states a dispute of benefit entitlement, i.e.[,] disability and entitlement to [temporary income benefits], is not a dispute of compensability/liability. . . .” The carrier’s January 6, 2021, PLN-11 was a dispute of benefit entitlement, not a dispute of compensability or liability of the (date of injury), injury. The evidence did not establish that the carrier has filed a dispute of compensability or liability of that injury, and as noted above, the parties stipulated at the CCH that the claimant sustained a compensable injury on (date of injury). We reverse the ALJ’s determination that the carrier is liable for payment of accrued benefits pursuant to Rule 124.3, resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury. We render a new decision that the carrier is liable for the payment of accrued benefits in accordance with this decision. See APD 101679, decided December 30, 2010.

SUMMARY

We affirm the ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), from March 31, 2020, through the present.

We reverse the ALJ’s determination that the carrier is liable for payment of accrued benefits pursuant to Rule 124.3, resulting from its failure to dispute or initiate the payment of benefits within 15 days of the date it received written notice of the injury. We render a new decision that the carrier is liable for the payment of accrued benefits in accordance with this decision.

The true corporate name of the insurance carrier is NATIONWIDE AGRIBUSINESS 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.

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 (CCH) was held on December 8, 2020, with the record closing on December 28, 2020, 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 compensable injury of (date of injury), does not extend to left claw hand deformity and left upper extremity complex regional pain syndrome (CRPS); (2) the respondent (carrier) did not waive the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the impairment rating (IR) of 26% for the designated doctor determined compensable injury pursuant to 28 TEX. ADMIN. CODE § 130.102(h) (Rule 130.102(h)); (3) the IR of 26% for the designated doctor determined compensable injury assigned by (Dr. S) on August 2, 2019, did not become final under Rule 130.102(h); (4) the appellant (claimant) reached maximum medical improvement (MMI) on November 27, 2017; (5) the claimant’s IR is 4%; (6) the claimant is not entitled to supplemental impairment benefits (SIBs) for the first quarter, June 27, 2020, through September 25, 2020; and (7) the claimant is not entitled to SIBs for the second quarter, September 26, 2020, through December 25, 2020. The claimant appealed, disputing the ALJ’s determinations. The carrier responded, urging affirmance of the ALJ’s determinations.

DECISION

Reversed and remanded.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury), that extends to a displaced fracture of the base of the 5th metacarpal bone of the left hand; Dr. S was appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) as the designated doctor to determine extent of injury, MMI, and IR; the qualifying period for the first quarter of SIBs is from March 15, 2020, through June 13, 2020; and the qualifying period for the second quarter of SIBs for this case is from June 14, 2020, through September 12, 2020. The claimant, a mobile phlebotomist, testified she was injured on (date of injury), when her right knee buckled and she fell on her left hand. We note that the ALJ’s decision indicates there were no witnesses testifying on behalf of the claimant, when in fact, the claimant testified on her own behalf.

MMI/IR, FINALITY, AND WAIVER UNDER RULE 130.102(h)

Section 410.168 provides that an ALJ’s decision contain findings of fact and conclusions of law, a determination of whether benefits are due, and an award of benefits due. Rule 142.16 provides that an ALJ’s decision shall be in writing and include findings of fact, conclusions of law, and a determination of whether benefits are due, and if so, an award of benefits due.

In the ALJ’s decision, the ALJ indicated in Conclusion of Law No. 5 and in the Decision section that the IR of 26% assigned by Dr. S did not become final under Rule 130.102(h). However, the ALJ did not make a specific finding of fact regarding the issue of finality as was certified in this case and as required by Section 410.168 and Rule 142.16. See Appeals Panel Decision (APD) 132339, decided December 12, 2013; APD 150510, decided April 21, 2015; APD 162262, decided January 10, 2017; APD 181349, decided August 15, 2018.

We note that Finding of Fact No. 5 states, “[the] [carrier] contested the finding on extent of injury by filing a request for a benefit review conference prior to September 25, 2020.” However, this finding does not indicate that the 26% IR certification by Dr. S was disputed on that date or any other date. Accordingly, we reverse the ALJ’s determination that the IR of 26% for the designated doctor determined compensable injury assigned by Dr. S on August 2, 2019, did not become final under Rule 130.102(h) as being incomplete, and we remand the issue of whether the IR of 26% for the designated doctor determined compensable injury assigned by Dr. S on August 2, 2019, became final under Rule 130.102(h) back to the ALJ for further action consistent with this decision.

The ALJ also stated in Conclusion of Law No. 4 and in the Decision section that the carrier did not waive the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the IR of 26% for the designated doctor determined compensable injury pursuant to Rule 130.102(h). However, again the ALJ failed to make a specific finding of fact regarding the waiver issue as required. Therefore, we reverse the ALJ’s determination that the carrier did not waive the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the IR of 26% for the designated doctor determined compensable injury pursuant to Rule 130.102(h) as being incomplete, and we remand the waiver issue back to the ALJ for further action consistent with this decision.

In Conclusions of Law Nos. 6 and 7 and in the Decision section, the ALJ states that the claimant reached MMI on November 27, 2017, with an IR of 4%. However, the ALJ failed to make specific findings of fact regarding the MMI and IR issues as required. We reverse the ALJ’s determinations that the claimant reached MMI on November 27, 2017, with an IR of 4% as being incomplete, and we remand the issues of MMI and IR back to the ALJ for further action consistent with this decision.

EXTENT OF INJURY

The extent-of-injury conditions at issue in the present case are rated in Dr. S’ 26% IR which is considered in the waiver and finality issues above. Since we have reversed the ALJ’s determination that the carrier did not waive the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the IR of 26% for the designated doctor determined compensable injury pursuant to Rule 130.102(h) as being incomplete, we also reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to left claw hand deformity and left upper extremity CRPS. We remand the issue of whether the compensable injury of (date of injury), extends to left claw hand deformity and left upper extremity CRPS to the ALJ for further action consistent with this decision.

SIBS

The ALJ determined that the claimant is not entitled to SIBs for the first or second quarter because he determined that the claimant’s IR is 4% and does not meet the required 15% IR threshold to be eligible for SIBs. Since we have reversed the ALJ’s determinations that claimant reached MMI on November 27, 2017, with an IR of 4% as being incomplete, we also reverse the ALJ’s determinations that the claimant is not entitled to SIBs for the first quarter, June 27, 2020, through September 25, 2020, and that that the claimant is not entitled to SIBs for the second quarter, September 26, 2020, through December 25, 2020. We remand the issues of whether the claimant is entitled to SIBs for the first quarter, June 27, 2020, through September 25, 2020, and whether the claimant is entitled to SIBs for the second quarter, September 26, 2020, through December 25, 2020, to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the IR of 26% for the designated doctor determined compensable injury assigned by Dr. S on August 2, 2019, did not become final under Rule 130.102(h) as being incomplete, and we remand the issue of whether the IR of 26% for the designated doctor determined compensable injury assigned by Dr. S on August 2, 2019, became final under Rule 130.102(h) back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the carrier did not waive the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the IR of 26% for the designated doctor determined compensable injury pursuant to Rule 130.102(h) as being incomplete, and we remand the waiver issue back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determinations that the claimant reached MMI on November 27, 2017, with an IR of 4% as being incomplete, and we remand the issues of MMI and IR back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the compensable injury of (date of injury), does not extend to left claw hand deformity and left upper extremity CRPS, and we remand the issue of whether the compensable injury of (date of injury), extends to left claw hand deformity and left upper extremity CRPS to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the first quarter, June 27, 2020, through September 25, 2020, and we remand the issue of whether the claimant is entitled to SIBs for the first quarter, June 27, 2020, through September 25, 2020, to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the second quarter, September 26, 2020, through December 25, 2020, and we remand the issue of whether the claimant is entitled to SIBs for the second quarter, September 26, 2020, through December 25, 2020, to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand the ALJ is to make findings of fact, conclusions of law, and a decision as to whether the IR of 26% for the designated doctor determined compensable injury assigned by Dr. S on August 2, 2019, became final under Rule 130.102(h). Then, the ALJ is to make findings of fact, conclusions of law, and a decision as to whether the carrier waived the right to contest the extent of the (date of injury), compensable injury certified by the designated doctor on August 2, 2019, by not timely contesting the IR of 26% for the designated doctor determined compensable injury pursuant to Rule 130.102(h). The ALJ is to then make findings of fact, conclusions of law, and decisions as to whether the claimant has reached MMI, and if so, what is the IR. The ALJ is then to make findings of fact, conclusions of law, and a decision as to whether the compensable injury of (date of injury), extends to left claw hand deformity and left upper extremity CRPS. Finally, the ALJ is to make findings of fact, conclusions of law, and decisions as to whether the claimant is entitled to SIBs for the first and second quarters.

Additionally, the ALJ is to correct the Evidence Presented section to indicate that the claimant testified on her own behalf.

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

The true corporate name of the insurance carrier is AMERICAN CASUALTY COMPANY OF READING, PENNSYLVANIA and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM
1999 BRYAN STREET, SUITE 900
DALLAS, TEXAS 75201-3136.

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 September 15, 2020, and December 10, 2020, 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 claimed injury was caused by the appellant’s (claimant) attempt to unlawfully injure another person, thereby relieving the respondent (self-insured) of liability for compensation; and (2) the self-insured’s contest of compensability was based on newly discovered evidence that could not reasonably have been discovered at an earlier date, thus allowing the self-insured to reopen the issue of compensability.

The claimant appealed the ALJ’s decision, contending that he was unable to attend the December 10, 2020, CCH because “he had been receiving medical care and heart surgery and was unaware [of] the proceeding and given no opportunity to explain his absence. . . .” The self-insured responded, urging affirmance of the ALJ’s decision.

DECISION

Reversed and remanded.

A CCH was called to order on September 15, 2020, to hear the disputed issues. The self-insured was present; however, the claimant did not appear for the CCH. Due to the claimant’s nonattendance at the CCH, the ALJ issued a 10-day letter dated September 17, 2020, to the claimant. The claimant responded, and the ALJ issued an Order Regarding Failure to Attend Hearing (Order) on October 21, 2020, in which she determined there was good cause for the claimant’s failure to attend the September 15, 2020, CCH, and stated that the case be rescheduled for December 10, 2020. We note that although the style on the Order reflects the correct docket number it does not contain the claimant’s correct name; instead, the Order lists the name of a completely unrelated person.

The CCH was called to order on December 10, 2020. The self-insured was present but the claimant did not appear for this setting of the CCH. The claimant’s ombudsman announced on the record that she attempted to contact the claimant on November 20, 2020, for a prep appointment but his voicemail was full. The self-insured urged the ALJ to not send the claimant another 10-day letter and instead issue a decision and order because the case had been reset several times. The ALJ closed the record on December 10, 2020, and issued a decision and order that she signed on December 16, 2020, and was sent to the parties on December 30, 2020. The ALJ specifically found that the claimant was properly notified of the December 10, 2020, CCH, and that he failed to show good cause for failing to appear at that CCH. We disagree. Although the October 21, 2020, Order notifying the parties that the CCH was rescheduled for December 10, 2020, indicates it was sent to the claimant’s correct address, the Order lists a completely different person as the claimant to appear at the CCH. Given that the Order did not identify the actual claimant as the claimant to appear at the CCH, we do not believe the claimant received proper notice of the December 10, 2020, CCH setting. We remand this case to the ALJ to consider whether the claimant had good cause for failing to attend the CCH. If good cause is found, the ALJ is to permit the parties to present evidence on the merits of the claim at the CCH on remand.  

Accordingly, we reverse the ALJ’s determination that: (1) the claimed injury was caused by the claimant’s attempt to unlawfully injure another person, thereby relieving the self-insured of liability for compensation; and (2) the self-insured’s contest of compensability was based on newly discovered evidence that could not reasonably have been discovered at an earlier date, thus allowing the self-insured to reopen the issue of compensability. We remand this case to the ALJ to take evidence concerning the claimant’s nonappearance at the December 10, 2020, CCH and, if good cause is found, to allow for the presentation of evidence on the merits of the claim. The ALJ is then to make determinations on the disputed issues of whether the claimed injury was caused by his attempt to unlawfully injure another person thereby relieving the self-insured of liability for compensation, and whether the self-insured’s contest of compensability was based on newly discovered evidence that could not reasonably have been discovered at an earlier date, thus allowing the self-insured to reopen the issue of compensability.

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

PAT J. DANIEL, INTERIM – CITY SECRETARY
900 BAGBY
HOUSTON, TEXAS 77002.

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 (CCH) was held on November 13, 2018, with the record closing on December 18, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (date of injury); and (2) the respondent (carrier) did not waive the right to contest the compensability of the (date of injury), claimed injury because it timely contested compensability in accordance with Section 409.021. The claimant appealed, disputing the ALJ’s determinations of compensability and waiver. The carrier responded, urging affirmance of the disputed compensability and waiver determinations.

DECISION

Reversed and remanded.

The claimant, although represented by an attorney, did not appear at the scheduled CCH. At the CCH, documentary evidence was offered by the claimant’s attorney. The ALJ initially stated she would send the claimant a 10-day letter but subsequently stated that she did not feel it was necessary to do so. There is no evidence that the ALJ sent a 10-day letter to the claimant. 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. The Appeals Panel has long held that if a party does not attend the CCH a 10-day letter must be sent to the party who did not attend.

Accordingly, because the ALJ failed to issue a 10-day letter to the claimant after his non-appearance at the scheduled CCH, we reverse the ALJ’s determinations that the claimant did not sustain a compensable injury on (date of injury), and that the carrier did not waive the right to contest the compensability of the (date of injury), claimed injury because it timely contested compensability in accordance with Section 409.021. We remand this case to the ALJ to allow the claimant to present evidence concerning whether he had good cause for his failure to attend the November 13, 2018, CCH and to present evidence relevant to the disputed issues.

We note that 28 TEX. ADMIN. CODE § 142.11 (Rule 142.11) regarding the failure to attend a CCH was amended to be effective January 7, 2019. However, the CCH in this case was held on November 13, 2018, prior to the effective date of Rule 142.11 as amended.

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 APD 060721, decided June 12, 2006.

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

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

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 January 25, 2018, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the appellant (claimant) sustained a compensable injury on (date of injury); (2) respondent 2 (carrier) did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021; and (3) the claimant had disability resulting from the compensable injury of (date of injury), beginning on July 20, 2017, and continuing through July 22, 2017, but at no other time through the date of the CCH. The claimant appealed, disputing that portion of the ALJ’s disability determination that was adverse to him. The claimant alleges the parties stipulated at the CCH that the claimant sustained a compensable injury on (date of injury), and that the parties agreed to withdraw the issue of carrier waiver under Section 409.021. The carrier responded, urging affirmance of the disputed portion of the disability determination. The appeal file does not contain a response from respondent 1 (subclaimant) to the claimant’s appeal.

That portion of the ALJ’s determination that the claimant had disability resulting from the compensable injury of (date of injury), beginning on July 20, 2017, and continuing through July 22, 2017, was not appealed and has become final pursuant to Section 410.169.

DECISION

Affirmed in part and reversed by striking in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury). The stipulations contained in Finding of Fact No. 1 do not reflect this stipulation. We affirm the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), based upon the parties’ stipulation of the same at the CCH.

The parties also agreed at the CCH to withdraw the issue of carrier waiver under Section 409.021. However, the decision contains findings of fact, conclusions of law, and an analysis by the ALJ explaining his determination that the carrier has not waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021. The ALJ has exceeded the scope of the issues before him to determine at the CCH. We therefore reverse the ALJ’s decision by striking the determination that the carrier has not waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021.

That portion of the ALJ’s determination that the claimant did not have disability resulting from the compensable injury of (date of injury), beginning on July 23, 2017, and continuing through the date of the CCH is supported by sufficient evidence and is affirmed.

SUMMARY

We affirm the ALJ’s determination that the claimant sustained a compensable injury on (date of injury), based upon the parties’ stipulation of the same at the CCH.

We reverse the ALJ’s decision by striking the determination that the carrier has not waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021.

We affirm that portion of the ALJ’s determination that the claimant did not have disability resulting from the compensable injury of (date of injury), beginning on July 23, 2017, and continuing through the date of the CCH.

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

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 5, 2017, 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 respondent (claimant) did not sustain a compensable injury on (date of injury); (2) the appellant (carrier) is relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001; (3) the carrier’s defense on compensability is limited to the 30 days defense listed on the Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1), that was filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division) on September 18, 2017; and (4) the carrier has not waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021. The carrier appealed, disputing the ALJ’s determination that the carrier’s defense of compensability was limited to the 30-day defense listed on the PLN-1 that was filed with the Division on September 18, 2017. The carrier argues that the ALJ’s conclusion of law and decision is inconsistent with the ALJ’s finding of fact regarding the limitation of the carrier’s defense of compensability. The appeal file does not contain a response from the claimant.

The following determinations by the ALJ were not appealed and have become final pursuant to Section 410.169: (1) the claimant did not sustain a compensable injury on (date of injury); (2) the carrier is relieved from liability under Section 409.002 because of the claimant’s alleged failure to timely notify his employer pursuant to Section 409.001; and (3) the carrier has not waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021.

DECISION

Reversed and rendered as reformed.

The claimant testified that he injured his right knee while working in a tight crawl space. In her discussion of the evidence the ALJ stated in part: “[the] [c]arrier provided plain language on its PLN-1 explaining that it was contesting the existence and compensability of an injury along with the failure of [the] [c]laimant to timely notify his employer.” The ALJ found in Finding of Fact No. 10 that the carrier disputed the compensability of the claim on the PLN-1 because of the claimant’s failure to notify the employer timely and because there was no evidence of an injury. That finding is supported by sufficient evidence and is affirmed.

However, in Conclusion of Law No. 5 the ALJ determined that the carrier’s defense on compensability is limited to the 30 days defense listed on the PLN-1 that was filed with the Division on September 18, 2017. 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). In the instant case, the ALJ’s determination is inconsistent with her finding of fact regarding the limitation of the carrier’s defense of compensability. As previously noted, the ALJ found that the carrier also disputed compensability of the claimant’s alleged injury because there was no evidence of an injury and that finding is supported by sufficient evidence. Accordingly, we reverse the ALJ’s determination that the carrier’s defense on compensability is limited to the 30 days defense listed on the PLN-1 that was filed with the Division on September 18, 2017, and render a new decision that the carrier’s defense on compensability is not limited to the 30 days defense listed on the PLN-1 that was filed with the Division on September 18, 2017.

We also note that in the first paragraph on page one of the Decision and Order that contains a summary of the ALJ’s holdings, the ALJ incorrectly identified the date of injury alleged as July 17, 2017, rather than (date of injury). Accordingly, we reform the ALJ’s holding on the first page to conform to the evidence, finding of fact, conclusion of law, and decision to read as follows: the claimant did not sustain a compensable injury on (date of injury).

The true corporate name of the insurance carrier is GRAY INSURANCE COMPANY, INC. and the name and address of its registered agent for service of process is

ROBERT L. WALLACE

1717 EAST LOOP, SUITE 333

HOUSTON, TEXAS 77029.

Margaret L. Turner
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Carisa Space-Beam
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on October 5, 2017, in (city), Texas, with (hearing officer) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by determining that: (1) the appellant/cross-respondent (self-insured) did not waive the right to contest the compensability of brachial neuritis by not timely contesting the impairment rating (IR) in accordance with 28 TEX. ADMIN. CODE § 130.102(h) (Rule 130.102(h)); (2) the compensable injury of (date of injury), does not extend to brachial neuritis; (3) the Texas Department of Insurance, Division of Workers’ Compensation (Division) abused its discretion in denying the self-insured’s first Request to Schedule, Reschedule, or Cancel a Benefit Review Conference (BRC) (DWC-45) filed on June 22, 2017; (4) the self-insured did not waive its right to contest the respondent/cross-appellant’s (claimant) entitlement to supplemental income benefits (SIBs) for the 12th quarter by failing to timely request a BRC; and (5) the claimant is not entitled to SIBs for the 12th quarter, July 2 through September 30, 2017.

The self-insured appealed the ALJ’s determination, requesting review to correct clerical mistakes. The claimant cross-appealed the ALJ’s determinations. The self-insured responded, urging affirmance of the ALJ’s determinations. The appeal file does not contain a response from the claimant to the self-insured’s appeal.

DECISION

Affirmed in part, reformed in part, and reversed and rendered in part.

The parties stipulated, in part, that the claimant sustained a compensable injury on (date of injury); the self-insured (we note the ALJ refers to the self-insured as a carrier throughout the decision) has accepted the compensable injury in the form of a cervical strain and the diagnosis of right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h); the qualifying period for the 12th quarter of SIBs was from March 20 through June 18, 2017; the self-insured received the Application for [SIBs] (DWC-52) for the 12th quarter of SIBs on June 19, 2017; the self-insured paid the claimant the 11th quarter SIBs; the self-insured submitted a DWC-45 requesting a BRC disputing the claimant’s entitlement to SIBs on June 22, 2017; the DWC-45 was denied by the Division on June 28, 2017; and the self-insured filed a second DWC-45 disputing the claimant’s entitlement to SIBs for the 12th quarter on July 3, 2017. The evidence established that the claimant was injured during self-defense training.

CLERICAL CORRECTIONS

As noted above the parties stipulated at the CCH that the self-insured has accepted the compensable injury in the form of a cervical strain and the diagnosis of right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h). However, Finding of Fact No. 1.H. omits “right-sided” from the stipulation. We reform Finding of Fact No. 1.H., in part, to state right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h) to reflect the stipulation as made by the parties at the CCH.

The decision states that the true corporate name of the self-insured is City of Fort Worth. However, the evidence established that the correct name for the self-insured is Tarrant County. We reform the decision to reflect that the true corporate name of the self-insured is Tarrant County.

WAIVER OF RIGHT TO CONTEST COMPENSABILITY OF BRACHIAL NEURITIS UNDER RULE 130.102(h)

The ALJ’s determination that the self-insured did not waive the right to contest the compensability of brachial neuritis by not timely contesting the IR in accordance with Rule 130.102(h) is supported by sufficient evidence and is affirmed.

EXTENT OF INJURY

The ALJ’s determination that the compensable injury of (date of injury), does not extend to brachial neuritis is supported by sufficient evidence and is affirmed.

ABUSE OF DISCRETION IN DENYING SELF-INSURED’S DWC-45 FILED ON JUNE 22, 2017

The claimant contended that the ALJ erred in adding the issue of whether the Division abused its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017. We review the ALJ’s ruling to add an issue on an abuse-of-discretion standard, that is, whether the ALJ acted without reference to any guiding rules or principles.  Appeals Panel Decision (APD) 031719, decided August 11, 2003, Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986). The ALJ correctly noted at the CCH that the BRC report reflects the self-insured’s position, and added the issue at the self-insured’s request and for good cause. The ALJ did not abuse her discretion in adding this issue.

As previously noted the parties stipulated that the self-insured paid the 11th quarter of SIBs, and that it received the claimant’s DWC-52 for the 12th quarter of SIBs on June 19, 2017. It is undisputed that the self-insured had until June 29, 2017, to request a BRC to dispute the claimant’s entitlement to SIBs for the 12th quarter as provided by Rule 130.108(c).

In evidence is a DWC-45 filed with the Division by the self-insured on June 22, 2017. The self-insured indicated that it was disputing entitlement to SIBs, and specified the following:

Inability to work was not direct result of compensable injury, no good faith effort to seek work duringt [sic] qualifying period, and no sufficiently detailed narrative from physician that explains complete inability to work.

Also in evidence is a Commissioner Order dated June 28, 2017, denying the self-insured’s request to schedule a BRC because the self-insured failed to indicate what quarter was in dispute and the description of the disputed issue was insufficient to meet the requirements of Rule 141.1(d). The self-insured submitted another DWC-45 on July 3, 2017, with more specific information; however, as noted above the self-insured’s deadline to file was June 29, 2017. The self-insured argued at the CCH that the Division abused its discretion in denying its DWC-45 filed on June 22, 2017.

Section 408.147(b) provides as follows:

(b) If an insurance carrier fails to make a request for a [BRC] within 10 days after the date of the expiration of the impairment income benefit period or within 10 days after receipt of the employee’s statement, the insurance carrier waives the right to contest entitlement to [SIBs] and the amount of [SIBs] for that period of [SIBs].

Rule 141.1, effective October 1, 2010, provides in part:

(d) Request for [BRC].  A request for a [BRC] shall be made in the form and manner required by the [D]ivision.  The request shall:

(1)  identify and describe the disputed issue or issues;

(2)  provide details and supporting documentation of efforts made by the requesting party to resolve the disputed issues, including but not limited to, copies of the notification provided in accordance with subsection (a) of this section, correspondence, e-mails, facsimiles, records of telephone contacts, or summaries of meetings or telephone conversations . . .;

(3)  contain a signature by the requesting party attesting that reasonable efforts have been made to resolve the disputed issue(s) prior to requesting a [BRC], and that any pertinent information in their possession has been provided to the other parties . . .; and

(4)  be sent to the [D]ivision and opposing party or parties.

(e) Complete Request.  A request that meets the requirements of subsection (d) of this section is a complete request for a [BRC].  The [D]ivision will schedule a [BRC] if the request is complete and otherwise appropriate for a [BRC].

(f)  Incomplete Request.  A request for a [BRC] that does not meet the requirements of subsection (d) of this section is an incomplete request and will be denied.

(1)  A denied request for a [BRC] does not constitute a dispute proceeding, except as provided by subsection (g) of this section.

(2)  The [D]ivision will notify the parties if a request is denied and state the reasons for the denial.

(3)  Upon notice from the [D]ivision, the requesting party may submit a new request for a [BRC] that meets the requirements of this section.

(g) Incomplete Request Denials.  If a party disagrees with the [D]ivision’s determination that the request was incomplete, or, if a party has good cause for failing to meet the requirements of subsection (d) of this section, the party may pursue an administrative appeal of the [D]ivision’s determination in accordance with Chapter 142 of this title (relating to Dispute Resolution—[CCH]).  The party may also request an expedited [CCH] in accordance with [Rule] 140.3 of this title (relating to Expedited Proceedings).

The self-insured satisfied the criteria of Rule 141.1(g) to pursue an administrative appeal of the Division’s denial of the self-insured’s DWC-45 filed on June 22, 2017, because the self-insured’s position at the August 9, 2017, BRC was that the Division abused its discretion in denying its DWC-45 filed on June 22, 2017, and the self-insured made a motion to add abuse of discretion as an issue at the CCH. See APD 150499-s, decided April 29, 2015.

The ALJ found that the DWC-45 filed by the self-insured on June 22, 2017, satisfied the criteria of Rule 141.1, and determined that the Division abused its discretion in denying the self-insured’s DWC-45 filed on June 22, 2017.

An order of an administrative body is presumed to be valid and the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action.  Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref’d).

The evidence established that the Division denied the self-insured’s DWC-45 filed on June 22, 2017, because the self-insured failed to indicate what quarter was in dispute and the description of the disputed issue was insufficient to meet the requirements of Rule 141.1(d).

Rule 141.1(d)(1) requires the request for BRC to both identify and describe the disputed issue or issues. The self-insured’s DWC-45 in evidence does not state which quarter is in dispute and there was no evidence to establish that any information containing the specific quarter in dispute, such as the claimant’s 12th quarter DWC-52, was attached to the DWC-45. Identification of the specific SIBs quarter or quarters being disputed is essential for the Division to determine whether or not it has authority to set the BRC. By not specifying the actual quarter in dispute the self-insured’s request does not identify the disputed issue of whether the claimant is entitled to 12th quarter SIBs, and is therefore not a complete request under Rule 141.1(d). The ALJ’s finding that the DWC-45 submitted by the self-insured on June 22, 2017, satisfied the criteria of Rule 141.1 is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Accordingly, we reverse the ALJ’s determination that the Division abused its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017, and we render a new decision that the Division did not abuse its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017.

WAIVER OF 12TH QUARTER SIBs AND CLAIMANT’S ENTITLEMENT TO 12TH QUARTER SIBs

The evidence established that the self-insured’s DWC-45 filed on June 22, 2017, was not a complete request pursuant to Rule 141.1 and that the self-insured did not file another request until after the 10-day deadline. Accordingly, we reverse the ALJ’s determination that the self-insured did not waive its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC, and we render a new decision that the self-insured waived its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC. See APD 111189-s, decided October 3, 2011.

The ALJ determined that the claimant is not entitled to SIBs for the 12th quarter. However, given that we have reversed the ALJ’s determination that the self-insured did not waive its right to contest the claimant’s entitlement to SIBs for the 12th quarter and have rendered a new decision that the self-insured waived its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC, we reverse the ALJ’s determination that the claimant is not entitled to SIBs for the 12th quarter, July 2 through September 30, 2017, and we render a new decision that the claimant is entitled to SIBs for the 12th quarter, July 2 through September 30, 2017.

SUMMARY

We reform Finding of Fact No. 1.H., in part, to state right-sided C6-7 radiculopathy has been administratively accepted pursuant to Rule 130.102(h) to reflect the stipulation as made by the parties at the CCH.

We reform the decision to reflect that the true corporate name of the self-insured is Tarrant County.

We affirm the ALJ’s determination that the self-insured did not waive the right to contest the compensability of brachial neuritis by not timely contesting the IR in accordance with Rule 130.102(h).

We affirm the ALJ’s determination that the compensable injury of (date of injury), does not extend to brachial neuritis.

We reverse the ALJ’s determination that the Division abused its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017, and we render a new decision that the Division did not abuse its discretion in denying the self-insured’s first DWC-45 filed on June 22, 2017.

We reverse the ALJ’s determination that the self-insured did not waive its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC, and we render a new decision that the self-insured waived its right to contest the claimant’s entitlement to SIBs for the 12th quarter by failing to timely request a BRC.

We reverse the ALJ’s determination that the claimant is not entitled to SIBs for the 12th quarter, July 2 through September 30, 2017, and we render a new decision that the claimant is entitled to SIBs for the 12th quarter, July 2 through September 30, 2017.

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

COUNTY JUDGE GLEN WHITLEY

100 EAST WEATHERFORD STREET

FORT WORTH, TEXAS 76102.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
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 27, 2017, with the record closing on October 10, 2017, 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 respondent (claimant) was not injured in the course and scope of his employment on (date of injury); (2) the claimant had disability from the claimed injury of (date of injury), from April 20, 2017, through the date of the CCH; (3) the appellant (carrier) did not timely contest the injury in accordance with Section 409.021 and consequently waived the right to contest compensability of the claimed injury of (date of injury); and (5) the claimant sustained a compensable injury on (date of injury).

The carrier appealed the ALJ’s determinations regarding carrier waiver under Section 409.021, compensability of the (date of injury), claimed injury, and disability. The carrier contends on appeal that the ALJ’s determinations are against the great weight of the evidence. The claimant responded, urging affirmance of the ALJ’s determinations. The ALJ’s determination that the claimant was not injured in the course and scope of his employment on (date of injury), was not appealed and has become final pursuant to Section 410.169.

DECISION

Reformed in part and reversed and rendered in part.

The parties stipulated, in part, that the date of the claimed injury is (date of injury). The claimant testified he was injured while performing his duties as a package sealer for the employer.

PARTIES PRESENT

(Ms. L) testified at the CCH as a witness on behalf of the carrier. However, the decision incorrectly reflects that no witnesses testified for the carrier. We reform the ALJ’s decision to reflect that Ms. L testified as a witness for the carrier.

EVIDENCE PRESENTED

The record reflects that Claimant’s Exhibits 1 through 9 were admitted, and Carrier’s Exhibits A through O were admitted. However, the decision incorrectly states Claimant’s Exhibits 1 through 8 were admitted, and Carrier’s Exhibits A through N were admitted. We reform the ALJ’s decision to state Claimant’s Exhibits 1 through 9 and Carrier’s Exhibits A through O were admitted to reflect the evidence as actually admitted.

CARRIER WAIVER

The ALJ found that the carrier had notice of the (date of injury), claimed injury on June 23, 2017. The evidence supports the ALJ’s finding. We note that the 60th day after June 23, 2017, is August 22, 2017. The ALJ noted in her discussion that although a copy of an amended Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) dated August 8, 2017, was in evidence, there was no copy that had been date stamped as received by the Texas Department of Insurance, Division of Workers’ Compensation (Division). The ALJ therefore determined that the carrier did not timely contest the injury in accordance with Section 409.021 and consequently waived the right to contest compensability of the claimed injury of (date of injury).

The Benefit Review Conference (BRC) in this case was held on July 31, 2017. The carrier’s adjuster testified at the CCH that she had previously filed a PLN-1 with the Division on May 5, 2017, disputing a March 30, 2017, injury because she had no knowledge of an (date of injury), date of injury. The adjuster also testified that she became aware of the (date of injury), date of injury when talking to the carrier’s attorney right after the July 31, 2017, BRC, and that she changed the date of injury on the claim to reflect (date of injury). During the BRC the carrier contended that it was continuing to dispute the claimed injury in its entirety. The BRC report dated August 4, 2017, reflects the carrier’s position that it was denying the claimed injury of (date of injury), in its entirety. It is clear that the claimant and the Division were informed of the carrier’s position at the BRC held on July 31, 2017, and the carrier’s dispute of compensability of the (date of injury), claimed injury and its reasons for that dispute were reduced to writing by the benefit review officer (BRO) in the BRC report dated August 4, 2017.

The Appeals Panel has previously held in similar cases that a carrier’s dispute at a BRC was sufficient to satisfy the requirements for filing a written notice of denial when the BRC was held within the time period for disputing a claim, the carrier stated its reasons for contesting compensability at the BRC, the contest of compensability and reasons therefor were reduced to writing by the BRO within the time period for filing a dispute, and the parties proceeded to a CCH based on the carrier’s contest of compensability. See Appeals Panel Decision (APD) 022201, decided October 10, 2002; APD 980194, decided February 25, 1998; APD 962450, decided January 15, 1997; and APD 94292, decided April 26, 1994. In the case on appeal the carrier notified the claimant and the Division at the BRC held on July 31, 2017, that it was disputing the (date of injury), claimed injury in its entirety, and the BRC report dated August 4, 2017, clearly reflects the carrier’s position. As noted previously the deadline by which the carrier had to file a denial of the claimed injury was August 22, 2017. Based on the facts of this case and the prior holdings discussed above, we reverse the ALJ’s determination that the carrier did not timely contest the injury in accordance with Section 409.021, and consequently waived the right to contest compensability of the claimed injury of (date of injury), and we render a new decision that the carrier did timely contest the injury in accordance with Section 409.021 and therefore did not waive the right to contest compensability of the claimed injury of (date of injury).

COMPENSABILITY AND DISABILITY

As previously mentioned the ALJ’s determination that the claimant was not injured in the course and scope of his employment on (date of injury), was not appealed and has become final. The ALJ determined that the claimant sustained a compensable injury on (date of injury), and had disability from the claimed injury of (date of injury), from April 20, 2017, through the date of the CCH based on her determination of carrier waiver under Section 409.021. Given that we have reversed the ALJ’s carrier waiver determination and have rendered a new decision that the carrier did timely contest the injury in accordance with Section 409.021 and therefore did not waive the right to contest compensability of the claimed injury of (date of injury), we also reverse the ALJ’s determinations that the claimant sustained a compensable injury on (date of injury), and that the claimant had disability from the claimed injury of (date of injury), from April 20, 2017, through the date of the CCH, and we render a new decision that the claimant did not sustain a compensable injury on (date of injury), and the claimant did not have disability from the claimed injury of (date of injury), from April 20, 2017, through the date of the CCH.

SUMMARY

We reform the ALJ’s decision to reflect that Ms. L testified as a witness for the carrier.

We reform the ALJ’s decision to state Claimant’s Exhibits 1 through 9 and Carrier’s Exhibits A through O were admitted to reflect the evidence as actually admitted.

We reverse the ALJ’s determination that the carrier did not timely contest the injury in accordance with Section 409.021, and consequently waived the right to contest compensability of the claimed injury of (date of injury), and we render a new decision that the carrier did timely contest the injury in accordance with Section 409.021 and therefore did not waive the right to contest compensability of the claimed injury of (date of injury).

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

We reverse the ALJ’s determination that the claimant had disability from the claimed injury of (date of injury), from April 20, 2017, through the date of the CCH, and we render a new decision that the claimant did not have disability from the claimed injury of (date of injury), from April 20, 2017, through the date of the CCH.

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

CT CORPORATION

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal after remand arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act).

STATEMENT OF THE CASE

A contested case hearing (CCH) was held in this matter on November 8, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. In a Decision and Order dated November 8, 2016, the hearing officer determined:

(1) the respondent’s (claimant) date of injury is (date of injury);

(2) the appellant (carrier) is not relieved from liability under Section 409.002 because of the claimant’s failure to timely notify his employer pursuant to Section 409.001;

(3) the carrier is not relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Texas Department of Insurance, Division of Workers’ Compensation (Division) within one year of the injury as required by Section 409.003;

(4) the carrier did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021;

(5) the claimant did not sustain a compensable repetitive trauma injury; and

(6) the claimant did not have disability from May 1, 2015, and continuing through the date of the CCH.

The claimant appealed the hearing officer’s determinations on compensability, date of injury, carrier waiver of the right to contest compensability under Section 409.021, as well as the hearing officer’s finding of fact that the work injury was not a producing cause of the claimant’s inability to obtain and retain employment at wages equivalent to his pre-injury wage from May 1, 2015, through the date of the CCH. The carrier responded, urging affirmance of the determinations appealed by the claimant. The carrier cross-appealed the hearing officer’s determinations on the date of injury, timely notice to the employer, and timely filing a claim with the Division. The appeal file did not contain a response from the claimant to the carrier’s cross-appeal.

After review of all determinations appealed, the Appeals Panel remanded the case on February 16, 2017, for further proceedings on the issue of disability. On remand the hearing officer determined that the claimant had disability from (date of injury), and continuing through the date of the November 8, 2016, CCH.

The carrier appealed the hearing officer’s decision on remand that the claimant had disability from (date of injury), contending that the evidence does not support that decision. The claimant responded, urging affirmance.

DECISION

We incorporate by reference the determinations in Appeals Panel Decision 162591, decided February 16, 2017, as set forth below:

DATE OF INJURY

We affirm the hearing officer’s determination that the claimant’s date of injury is (date of injury).

TIMELY NOTICE TO EMPLOYER

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

TIMELY FILING CLAIM WITH THE DIVISION

We affirm the hearing officer’s determination that the carrier is not relieved from liability under Section 409.004 because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury as required by Section 409.003.

WAIVER OF COMPENSABILITY UNDER SECTION 409.021

We reverse the hearing officer’s determination that the carrier did not waive the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021, and we render a new decision that the carrier waived the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021.

COMPENSABLE INJURY

We reverse the hearing officer’s determination that the claimant did not sustain a compensable repetitive trauma injury based on the carrier’s waiver of the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021, and render a new decision that the claimant sustained a compensable repetitive trauma injury based on the carrier’s waiver of the right to contest compensability of the claimed injury by not timely contesting the injury in accordance with Section 409.021.

DISABILITY

On remand the hearing officer determined that the claimant had disability from (date of injury), and continuing through the date of the November 8, 2016, CCH. A review of the record in this case established that the hearing officer’s determination that the claimant had disability from (date of injury), and continuing through the date of the November 8, 2016, CCH is supported by sufficient evidence and is affirmed.

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

CT CORPORATION SYSTEM

1999 BRYAN STREET, SUITE 900

DALLAS, TEXAS 75201-3136.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

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