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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 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 May 22, 2017, with the record closing on June 7, 2017, in (city), Texas, with (administrative law judge (ALJ)) presiding as (ALJ).[1] 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 claimant’s horseplay was not a producing cause of the claimed injury and the respondent (carrier) is not relieved of liability for compensation; (3) the claimed injury was not caused by the claimant’s willful intention and attempt to injure himself and the carrier is not relieved of liability for compensation; (4) the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons not related to the employment and the carrier is not relieved of liability for compensation; and (5) the claimant did not have disability resulting from the claimed injury.

The record reflects that the claimant did not appear at the CCH on May 22, 2017, nor did he respond to the ALJ’s letter dated May 23, 2017, affording him the opportunity to respond within 10 days and request that the hearing be reconvened in order for him to present evidence concerning the disputed issues and to show good cause for his failure to attend the CCH. Having received no response to her 10-day letter, the ALJ issued her decision on June 16, 2017.

The claimant appeals the ALJ’s determinations arguing that his failures to attend the May 22, 2017, CCH and to respond to the ALJ’s 10-day letter dated May 23, 2017, are the result of his failure to receive notices of the CCH or the ALJ’s 10-day letter. The claimant further complains of the ALJ’s determinations that he did not sustain a compensable injury on (date of injury), and that he did not have disability resulting from a compensable injury. The carrier argues that the appeal is untimely and that the ALJ’s determinations are supported by the evidence and should be affirmed.

DECISION

Reversed and remanded.

Section 410.168(f) provides that the Texas Department of Insurance, Division of Workers’ Compensation (Division) shall send a copy of the ALJ’s decision to each party. 28 TEX. ADMIN. CODE § 142.16(d) (Rule 142.16(d)) provides that the Division shall furnish a copy of the ALJ’s decision no later than seven days after the decision is filed with the Division. Section 410.202(a) provides that to appeal the decision of an ALJ, 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 ALJ 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(d) provides that Saturdays and Sundays and holidays listed in Section 662.003 are not included in the computation of the time in which to file an appeal or a response. Rule 143.3(d), effective December 13, 2009, provides that a request for review shall be presumed to be timely filed if it is: (1) mailed on or before the 15th day after the date of deemed receipt of the ALJ’s decision; and (2) received by the Division not later than the 20th day after the date of deemed receipt of the ALJ’s decision. The Appeals Panel has held that both portions of Rule 143.3(d) must be complied with for an appeal to be timely. Appeals Panel Decision (APD) 042688, decided December 1, 2004.

Records of the Division reflect that the ALJ’s 10-day letter and decision were mailed on May 23, 2017, and June 23, 2017, respectively, to the claimant at (address 1), (city), Texas. Assuming the decision was mailed to the claimant’s correct address, pursuant to Rule 102.5(d), the claimant would be deemed to have received the ALJ’s decision 5 days later on June 28, 2017. With the deemed date of receipt of the ALJ’s decision on June 28, 2017, in accordance with Section 410.202, excluding Saturdays and Sundays and holidays listed in Section 662.003, the claimant’s appeal would have to have been filed or mailed no later than July 20, 2017.

The claimant’s request for review is dated August 7, 2017, and was sent to and received by the Division via facsimile transmission on that date. Therefore, the claimant filed what would appear to be an untimely appeal; however, records of the Division reflect that the ALJ’s 10-day letter and decision were mailed to the claimant at an incorrect address. Attached to the claimant’s appeal is a copy of the claimant’s Employee’s Claim for Compensation for a Work-Related Injury (DWC-41) filed on April 18, 2017, and listing the claimant’s address as (address 2), (city), Texas rather than (address 1), (city), Texas, the address contained in the Division’s records as of June 2017. Because the ALJ’s decision was not mailed to the claimant’s correct last known address, the claimant is not deemed to have received a copy of the decision. We therefore hold, under the facts of this case, that the deadline for filing an appeal prescribed in Section 410.202 was not triggered.

In APD 042634, decided November 29, 2004, the Appeals Panel noted that the purpose of the 10-day letter process is to give the non-appearing party the opportunity to meaningfully participate in the dispute resolution process.  In APD 020273, decided March 29, 2002, a claimant made a number of factual allegations in her appeal regarding good cause for failing to attend the CCH and her attempts to respond to the 10-day letter, and the Appeals Panel remanded the case to the ALJ to take evidence concerning the claimant’s allegations and to permit the claimant to present evidence on the merits of her claim at the CCH on remand.

In this case, the claimant makes factual allegations that if true, could constitute a basis for the claimant’s failure to attend the May 22, 2017, CCH and to respond to the ALJ’s 10-day letter dated May 23, 2017. Accordingly, because the 10-day letter and the ALJ’s Decision and Order were not mailed to the claimant’s correct last known address, we reverse the ALJ’s determinations that the claimant did not sustain a compensable injury on (date of injury); that the claimant’s horseplay was not a producing cause of the claimed injury and the carrier is not relieved of liability for compensation; that the claimed injury was not caused by the claimant’s willful intention and attempt to injure himself and the carrier is not relieved of liability for compensation; that the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons not related to the employment and the carrier is not relieved of liability for compensation; and that the claimant did not have disability resulting from the claimed injury and we remand this case to the ALJ to allow the claimant to present evidence concerning whether he had good cause for his failure to appear at the CCH on May 22, 2017, and to present evidence relevant to the disputed issues.

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 SERVICE LLOYDS INSURANCE COMPANY and the name and address of its registered agent for service of process is

JOSEPH KELLY-GRAY, PRESIDENT

6907 CAPITOL OF TEXAS HIGHWAY NORTH

AUSTIN, TEXAS 78755.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. Section 410.152 was amended in House Bill 2111 of the 85th Leg., R.S. (2017), effective September 1, 2017, changing the title of hearing officer to ALJ.

    ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on August 2, 2016, in (city), Texas, with (hearing officer) presiding as hearing officer. Hearing Officer (hearing officer 1) resigned her position with the Texas Department of Insurance, Division of Workers’ Compensation (Division) prior to writing a decision and order and the case was reassigned to (hearing officer). Hearing Officer (hearing officer 2) resolved the disputed issues by deciding that: (1) the appellant (claimant) did not sustain a compensable injury on (date of injury); (2) the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons and was directed at the claimant as an employee and because of the employment, and the respondent (carrier) is not relieved of liability for compensation; and (3) the claimant did not have disability resulting from the claimed injury.

The claimant appealed the hearing officer’s decision. In his appeal the claimant requested an immediate dismissal of the hearing officer’s decision and contended that the hearing officer’s statement that the parties were informed of the change in hearing officer and waived another hearing is inaccurate. The carrier responded, urging affirmance of the hearing officer’s decision.

DECISION

Affirmed.

The claimant testified at the CCH held on August 2, 2016, that he was injured when he was attacked by his supervisor after a heated argument.

Division records show that prior to her resignation Hearing Officer 1 notified the parties that she did not have sufficient evidence from the August 2, 2016, CCH to determine the issue of disability. The claimant initially indicated a willingness to withdraw the issue of disability so it could be addressed separately at a later CCH; however, the claimant changed his mind and notified Hearing Officer 1 that he was unwilling to withdraw the disability issue. Hearing Officer 1 reopened the record and ordered a designated doctor examination to address disability and notified the parties that upon receipt of the designated doctor’s report and responses from the parties regarding that report she would issue a decision. However, Hearing Officer 1 resigned her position as hearing officer prior to the receipt of the designated doctor’s report, and the case was reassigned to Hearing Officer 2. The appeal records show the record was still open when the case was reassigned to Hearing Officer 2.

Hearing Officer 2 noted in her decision the following:

Hearing Officer 1 was no longer available to complete the decision, and the matter was reassigned to Hearing Officer 2. The parties were informed of the change and waived another hearing.

The claimant contends on appeal that the hearing officer’s statement is untrue, and requests an “Emergency CCH.”

Division records reflect that Hearing Officer 2 sent an email to both parties that stated the following:

Parties on (claimant) matter:

You may be aware, by now, that hearing officer 1 is no longer with the Division. Therefore, I will be writing the decision and order on the above matter.

Recall that the [c]laimant, attended a designated doctor examination on [October 27, 2016] on the issue of [d]isability. I received [(Dr. J)] report and I have marked the report as Hearing Officer Exhibit 4 for identification purposes. It is attached to this email for your review. Do take some time to go through the report. Please inform me within the next 10 days if you have a legal (emphasis original) objection to the admission of [Hearing Officer] Exhibit 4. If you have an objection, please state clearly the legal basis of your objection, so that I can make a proper ruling. You are also free to make a comment or observation regarding the report. The record will close on March 6, 2017, at which time the Decision and Order will be written. Thank you for your prompt attention to this matter.

The claimant responded to the hearing officer in an email dated February 25, 2017, stating in part that “I request that you rule quickly. . . .”

Although Division records show there was discussion between the parties that the claimant was considering to withdraw the issue of disability to be addressed in a later proceeding, Division records also show that the claimant ultimately declined to withdraw the issue of disability for a later proceeding. The record was still open when the case was reassigned to Hearing Officer 2 and the parties were allowed to submit additional arguments regarding the designated doctor’s report on disability. Based on a review of the record on appeal there is no evidence the claimant was promised a second CCH in this case. As noted above, the claimant requested Hearing Officer 2 to “quickly” resolve the issues and make a decision. We perceive no error on the hearing officer’s part in issuing her decision without holding a second CCH.

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

The hearing officer’s determination that the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons and was directed at the claimant as an employee and because of the employment, and does not relieve the carrier of liability for compensation is supported by sufficient evidence and is affirmed.

The hearing officer’s determination that the claimant did not have disability resulting from the claimed injury is supported by sufficient evidence and is affirmed.

SUMMARY

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

We affirm the hearing officer’s determination that the claimed injury did not arise out of an act of a third person intended to injure the claimant because of personal reasons and was directed at the claimant as an employee and because of the employment, and does not relieve the carrier of liability for compensation.

We affirm the hearing officer’s determination that the claimant did not have disability resulting from the claimed injury.

The true corporate name of the insurance carrier is VALLEY FORGE INSURANCE COMPANY 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

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 13, 2014, in Lufkin, Texas, with [hearing officer] presiding as hearing officer. The hearing officer resolved the disputed issues by deciding that: (1) the injury sustained on [date of injury], was caused by the appellant/cross-respondent’s (claimant) attempt to unlawfully injure another person, thereby relieving the respondent/cross-appellant (carrier) of liability for compensation; (2) because the carrier is relieved from liability, the claimant did not sustain a compensable injury on [date of injury]; and (3) because the claimant did not sustain a compensable injury, she did not have disability as a result of the alleged injury.

The claimant appealed all of the hearing officer’s determinations based on sufficiency of the evidence. The carrier responded urging affirmance. Also, the carrier specifically cross-appealed the hearing officer’s findings of fact that the claimant sustained injuries and was unable to obtain and retain employment at wages equivalent to her pre-injury wages, as a result of the incident on [date of injury].[1] The appeal file does not contain a cross-response from the claimant.

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 appeal file in this case contains one compact disc (CD). The CD lists a recording as being 1 hour, 20 minutes, and 51 seconds long. However, the CD only contains static and no audible arguments or testimony. The file indicates that there was no court reporter and the file does not contain a transcript or tape recording of the CCH proceeding.  Consequently, we reverse and remand this case to the hearing officer for reconstruction of the CCH record.  See Appeals Panel Decision (APD) 060353, decided April 12, 2006.

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

The true corporate name of the insurance carrier is NEW HAMPSHIRE 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.

Veronica L. Ruberto
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

  1. With regard to the disability finding, the hearing officer’s Finding of Fact No. 6 states that “[a]s a result of the injuries sustained in the altercation [the] [c]laimant was unable to obtain and retain employment at wages equivalent to her pre-injury wage from January 11, 2013, through January 15, 2014.” (Emphasis added). We note that the hearing officer found that the beginning date of disability, January 11, 2013, is a date prior to the date of injury of [date of injury].

    ↑

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 16, 2014, in Dallas, Texas, with [hearing officer] presiding as hearing officer.

The disputed issues before the hearing officer were:

  1. 1.Did the [appellant/cross-respondent (claimant)] sustain a compensable injury on [date of injury]?

  2. 2.Did the [c]laimant have disability resulting from a compensable injury sustained on [date of injury], for the period of October 7, 2012, through the present?

  3. 3.Was the claimed injury caused by the [c]laimant’s attempt to unlawfully injure another person, thereby relieving the [respondent/cross-appellant (carrier)] of liability for compensation?

The hearing officer determined that: (1) the claimed injury was not caused by the claimant’s attempt to unlawfully injure another person, therefore the carrier is not relieved of liability for compensation; (2) the claimant did not sustain a compensable injury on [date of injury]; and (3) the claimant was not unable to obtain and retain employment at wages equivalent to the preinjury wage because of the claimed injury on [date of injury], beginning October 7, 2012, through May 9, 2014, the date of the CCH.

The claimant appealed the hearing officer’s determination that she did not sustain a compensable injury on [date of injury], on a sufficiency of the evidence point of error. The claimant also contended that she had disability for the claimed period. The carrier responded to the claimant’s appeal, urging affirmance of the appealed determinations. The carrier also filed a cross-appeal, contending that the hearing officer’s determination that the claimed injury was not caused by the claimant’s attempt to unlawfully injure another person, therefore the carrier is not relieved of liability for compensation is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. The appeal file does not contain a response from the claimant to the carrier’s cross-appeal.

DECISION

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

The claimant testified she was injured on [date of injury], when a coworker pushed her.

COMPENSABLE INJURY AND ATTEMPT TO UNLAWFULLY INJURE ANOTHER PERSON

The hearing officer’s determinations that the claimed injury was not caused by the claimant’s attempt to unlawfully injure another person, therefore the carrier is not relieved of liability for compensation, and that the claimant did not sustain a compensable injury on [date of injury], are supported by sufficient evidence and are affirmed.

DISABILITY

In Finding of Fact No. 5 the hearing officer found that “[t]he claimed injury was a not (sic) cause of [the] [c]laimant’s inability to obtain and retain employment at wages equivalent to her preinjury wage beginning on October 7, 2012, through May 9, 2014, the date of the [CCH].” We note that the hearing officer misidentified the date of the CCH as May 9, 2014, when the CCH in fact occurred on May 16, 2014. There is sufficient evidence to establish that the claimed injury was not a cause of the claimant’s inability to obtain and retain employment at wages equivalent to her preinjury wage beginning on October 7, 2012, through May 16, 2014, the actual date of the CCH. We therefore reform Finding of Fact No. 5 to state that the claimed injury was not a cause of the claimant’s inability to obtain and retain employment at wages equivalent to her preinjury wage beginning on October 7, 2012, through May 16, 2014, the date of the CCH, to reflect the correct date of the CCH.

The hearing officer made a conclusion of law and a decision that state “[the] [c]laimant was not unable to obtain and retain employment at wages equivalent to the pre-injury wage because of the claimed injury on [date of injury], beginning October 7, 2012, through May 9, 2014, the date of the [CCH].” We note that the hearing officer’s conclusion of law and decision misidentified the CCH date, which actually occurred on May 16, 2014. The hearing officer did not make a specific conclusion of law or a decision whether the claimant had disability resulting from a compensable injury sustained on [date of injury], for the period of October 7, 2012, through May 16, 2014 the date of the CCH, which was an issue properly before the hearing officer to determine. We therefore reverse the hearing officer’s decision as incomplete. As discussed above, the evidence is sufficient to establish that the claimed injury was not a cause of the claimant’s inability to obtain and retain employment at wages equivalent to her preinjury wage beginning on October 7, 2012, through May 16, 2014, the date of the CCH. We therefore render a new decision that the claimant did not have disability beginning on October 7, 2012, through May 16, 2014, the date of the CCH, to conform to the evidence and Finding of Fact No. 5 as reformed.

SUMMARY

We affirm the hearing officer’s determination that the claimed injury was not caused by the claimant’s attempt to unlawfully injure another person, therefore the carrier is not relieved of liability for compensation.

We affirm the hearing officer’s determination that the claimant did not sustain a compensable injury on [date of injury].

We reform Finding of Fact No. 5 to state that the claimed injury was not a cause of the claimant’s inability to obtain and retain employment at wages equivalent to her preinjury wage beginning on October 7, 2012, through May 16, 2014, the date of the CCH, to reflect the correct date of the CCH.

We reverse the hearing officer’s decision as incomplete, and we render a new decision that the claimant did not have disability beginning on October 7, 2012, through May 16, 2014, the date of the CCH, to conform to the evidence and Finding of Fact No. 5 as reformed.

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

RICHARD J. GERGASKO

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Carisa Space-Beam
Appeals Judge

CONCUR:

Veronica L. Ruberto
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 1, 2004. In Texas Workers’ Compensation Commission Appeal No. 041943, decided September 27, 2004, the Appeals Panel remanded the case back for reconstruction of the record and for the hearing officer to “make a determination regarding whether her determinations with regard to compensability and disability would have been different if the statement of (Ms. I) had been admitted and considered.” Another CCH was held on October 19, 2004. The hearing officer on remand determined that the appellant (claimant) did not sustain a compensable injury; that she did not have disability; and that the respondent (carrier) is relieved of liability for compensation because the claimant willfully intended and attempted to injure herself. The claimant appeals, contending that the hearing officer abused her discretion in excluding an exhibit (Ms. I’s statement) on the basis of untimely exchange and no good cause shown. Inferentially, the claimant appeals the hearing officer’s other determinations on the basis that admission of the excluded statement would have changed the hearing officer’s decision had it been admitted. The carrier responds, urging affirmance.

DECISION

Affirmed.

First, the hearing officer misstates what the Appeals Panel requested in Appeal No. 041943, supra. The hearing officer states that she was requested “to consider the written statement of [Ms. I] offered by the claimant as Exhibit No. 12.” In fact the Appeals Panel requested that the hearing officer “make a determination regarding whether her determinations with regard to compensability and disability would have been different if the statement of [Ms. I] had been admitted and considered.” The claimant questions whether the hearing officer had “an impermissible bias” and requests that we remand the case “before another hearing officer.” Without commenting on the propriety of the request to the hearing officer in Appeal No. 041943, we merely note that Section 410.203(c) precludes a remand more than once. Since we have already used our remand for reconstruction of the record we cannot remand another time for the hearing officer to address the request posed in Appeal No. 041943.

Our standard of review regarding the hearing officer’s evidentiary rulings is one of abuse of discretion. Texas Workers’ Compensation Commission Appeal No. 92165, decided June 5, 1992. To obtain reversal of a judgment based upon the hearing officer’s abuse of discretion in the admission or exclusion of evidence, an appellant must first show that the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Texas Workers’ Compensation Commission Appeal No. 92241, decided July 24, 1992; see also Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles. Texas Workers’ Compensation Commission Appeal No. 951943, decided January 2, 1996; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).

In this case the claimant, a direct care worker at a substance abuse rehabilitation facility, alleges two falls on ______________. The alleged injury was reported and the carrier denied liability on January 20, 2004. A benefit review conference (BRC) was held on May 24, 2004, at which time, according to the claimant’s appeal and the carrier’s response, apparently the existence of the potential witness was discussed. There was a dispute whether the potential witnesses’ name and present location could be disclosed based on the employer’s confidentiality policy. Nonetheless, the claimant “through unofficial channels” was able to ascertain the location and telephone number of the potential witness. When that occurred is unknown, however, the claimant and her attorney did contact the potential witness on June 10, 2004, and obtained a verbal waiver of confidentiality. The witnesses’ statement was taken via tape recording on June 11, 2004, and was transcribed and exchanged on June 18, 2004.

The claimant asserts that the hearing officer erred in excluding Claimant’s Exhibit No. 12, the witnesses’ transcribed statement, which the hearing officer excluded on the basis of “No good cause was found to admit the document as the claimant did not use due diligence to obtain the statement after the witness was located.” The claimant argues that a “determination of good cause is not necessary unless the hearing officer first determines that the evidence was not known to the party or was a document that was not in the party’s possession, control, or custody.” Section 410.160 provides that the parties shall exchange all medical reports, expert witness reports, medical records, and witness statements within the time prescribed by Texas Workers’ Compensation Commission (Commission) rule. Section 410.161 provides that a party who fails to disclose such information or documents at the time disclosure is required may not introduce the evidence at any subsequent proceeding unless good cause is shown for not having timely disclosed the information or documents. Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.13(c) (Rule 142.13(c)) provides that the parties shall exchange with each other medical reports and records, witness statements, and other documents intended to be offered into evidence no later than 15 days after the BRC and thereafter exchange additional documentary evidence as it becomes available. Given that the claimant did not show an attempt to obtain and exchange the statement within the time period prescribed by Rule 142.13(c) we cannot agree that the claimant was not required to make a showing of good cause in order to obtain its admission or that the hearing officer abused her discretion in ruling no good cause had been established for failing to timely exchange the statement. See Texas Workers’ Compensation Commission Appeal No. 030675, decided April 28, 2003, for a similar result. Apparently the potential witness was discussed at the BRC on May 24, 2004, and there was no showing that the witness could not have been “unofficially” contacted, a waiver of the confidentiality obtained and an exchange made with the carrier within 15 days of the BRC.

Whether the claimant fell as she alleges, had disability as a result of those falls and whether the second fall was an attempt to injure herself and claim an injury were factual determinations for the hearing officer to resolve. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given to the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ). The hearing officer could believe all, part, or none of the testimony of any witness. Aetna Insurance Company v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). Fairly clearly the hearing officer did not find the claimant’s version persuasive.

The hearing officer’s decision and order are 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

RUSSELL OLIVER, PRESIDENT

221 WEST 6TH STREET, SUITE 300

AUSTIN, TEXAS 78701-3403.

Thomas A. Knapp

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 July 1, 2004. The hearing officer determined that appellant (claimant) did not sustain a compensable injury; that she did not have disability; and that respondent (carrier) is relieved of liability because claimant “willfully intended and pretended to injure herself.” Claimant appealed these determinations on sufficiency grounds. Claimant also contends that the hearing officer abused her discretion in excluding certain evidence. The file does not contain a response from carrier.

DECISION

We reverse and remand.

We remand for two reasons. Because we are already reversing and remanding for reconstruction of the record, we also remand for the hearing officer to make an additional determination. The hearing officer should make a determination regarding whether her determinations with regard to compensability and disability would have been different if the statement of Ms. I had been admitted and considered. The credibility of such statement is, of course, for the hearing officer to consider.

We also remand because the record is incomplete. The record of the proceedings and the evidence considered by the hearing officer have not been received, though they were requested. Because there is no record to review pursuant to Section 410.203, we must reverse and remand.

The Appeals Panel cannot render an informed decision in this case on the merits of the appeal and response without a complete record of the proceedings, evidence, and decision. Accordingly, the decision and order of the hearing officer are reversed and the case is remanded for reconstruction of the record or the forwarding of the hearing record if it can be located. At such time, the parties should be advised that a new decision has been rendered or the decision has been reissued and that any appeal or response must be reasserted and filed in the case, if desired. Texas Workers' Compensation Commission Appeal No. 961101, decided July 19, 1996.

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 Workers’ Compensation Commission's Division of Hearings, 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 Texas Workers' Compensation Commission Appeal No. 92642, decided January 20, 1993.

According to information provided by carrier, 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

RUSSELL OLIVER, PRESIDENT

221 WEST 6TH STREET, SUITE 300

AUSTIN, TEXAS 78701-3403.

Judy L. S. Barnes

CONCUR:

Gary L. Kilgore
Appeals Judge

Robert E. Lang

Appeals Panel

Manager/Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 30, 2004. The hearing officer determined that the respondent (claimant) sustained a compensable injury on _______________; that the injury did not arise out of an act of a third person intended to injure the claimant because of a personal reason and not directed at the claimant as an employee or because of the employment; that the injury was not caused by the claimant’s willful attempt to unlawfully injure another person; that the compensable injury extends to and includes the claimant’s head, cervical injury, cognitive deficits, linguistic deficits, and a psychological disorder; that the compensable injury does not extend to or include a lumbar injury, prostate condition, and erectile dysfunction; and that the claimant has had disability since October 5, 1999. The appellant (carrier) appealed the hearing officer’s determinations regarding compensability, extent of injury, and disability, asserting that it should be relieved from liability pursuant to Sections 406.032(1)(B) and 406.032(1)(C). The claimant responded, urging affirmance. The hearing officer’s determination that the compensable injury does not extend to or include a lumbar injury, prostate condition, and erectile dysfunction has not been appealed and has become final. Section 410.169.

DECISION

Affirmed.

The hearing officer did not err in reaching the complained-of determinations. The disputed issues all involved questions of fact for the hearing officer to resolve. That includes the determinations as to whether the injury was caused by the claimant’s willful intent to unlawfully injure another person, or arose out of an act of a third person intended to injure the claimant because of a personal reason and not directed at the claimant as an employee or because of the employment. 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 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, 176 (Tex. 1986).

The decision and order of the hearing officer are affirmed.

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

CORPORATION SERVICE COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701.

Daniel R. Barry

CONCUR:

Judy L. S. Barnes
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 13, 2004. The hearing officer determined that respondent/cross-appellant (claimant) sustained a compensable injury on ________________; that the injury did not extend to the low back; that the claimed injury was not caused by claimant’s willful intention or attempt to injure himself; and that claimant had disability from October 23, 2003, through December 28, 2003. Appellant/cross-respondent (carrier) appealed the determinations regarding compensability, disability, and willful intent on sufficiency grounds. Claimant responded that the hearing officer did not err in determining that he sustained a compensable injury and that the claimed injury was not caused by claimant’s willful intention or attempt to injure himself. Claimant appealed the determinations regarding disability and extent of injury. Carrier responded that claimant did not sustain a compensable injury at all or have any disability, and that there was no error in the determination regarding extent of injury.

DECISION

We affirm.

We have reviewed the complained-of determinations and conclude that the issues involved fact questions for the hearing officer. The hearing officer reviewed the record and decided what facts were established. We conclude that the hearing officer’s determinations are supported by the record and are not 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). Regarding claimant’s complaint that the hearing officer did not mention certain evidence, the hearing officer was not required to set forth all of the evidence. No reversible error has been shown.

We affirm the hearing officer’s decision and order.

According to information provided by carrier, the true corporate name of the insurance carrier is ZURICH AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is

LEE F. MALO

12222 MERIT DRIVE, SUITE 700

DALLAS, TEXAS 75251.

Judy L. S. Barnes

CONCUR:

Gary L. Kilgore
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 2, 2004. The hearing officer resolved the disputed issues by deciding that: (1) the appellant (carrier) is not relieved of liability for compensation because the respondent’s (claimant) claimed injury on _______________, was not caused by the claimant’s attempt to unlawfully injure another person; (2) that the claimant’s claimed injury arose out of an act of a third person intended to injure the claimant because of the claimant’s employment with the employer; (3) that the claimant was not participating in horseplay at the time of the claimant’s claimed injury; (4) that the claimant sustained a compensable left hip, left knee, right elbow, head, left eye, face, and left arm injury on _______________; and (5) that the claimant had disability beginning on September 17 and continuing through September 20, 2003, and for no other period. The carrier appealed the determinations and disputed an evidentiary ruling made by the hearing officer. The claimant responded, urging affirmance of the challenged determinations and evidentiary ruling.

DECISION

Affirmed.

The carrier asserts that the hearing officer erred in excluding its exhibit “H,” the claimant’s personnel records, from admission into evidence at the CCH because it was not exchanged with the claimant as required by Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 142.13(c)(1)(E) (Rule 142.13(c)(1)(E)). Rule 142.13(c)(1)(E) requires in part that no later than 15 days after the benefit review conference, parties shall exchange with one another all photographs or other documents which a party intends to offer into evidence at the hearing. The carrier asserted that although the exhibit was not exchanged timely, it was exchanged as soon as it was obtained. The claimant objected to the exhibit on the grounds that it was not timely exchanged. The hearing officer determined that the exhibit was not timely exchanged and sustained the claimant’s objection.

Our standard of review regarding the hearing officer's evidentiary rulings is one of abuse of discretion. Texas Workers' Compensation Commission Appeal No. 92165, decided June 5, 1992. To obtain reversal of a judgment based upon the hearing officer's abuse of discretion in the admission or exclusion of evidence, an appellant must first show that the admission or exclusion was in fact an abuse of discretion, and also that the error was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Texas Workers' Compensation Commission Appeal No. 92241, decided July 24, 1992; see also Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the hearing officer acted without reference to any guiding rules or principles. Texas Workers' Compensation Commission Appeal No. 951943, decided January 2, 1996; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). Given the determination that the exhibit was not timely exchanged, we do not find the hearing officer’s evidentiary ruling to be an abuse of discretion, as he acted with reference to guiding rules and principles. Nor did the carrier establish that the exclusion of this evidence probably caused the rendition of an improper judgment. We perceive no error.

The issues of injury and disability both turned on factual considerations. Section 410.165(a) provides that the hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given to the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals-level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer's decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard, we find no error in the hearing officer’s findings of injury and disability.

Section 406.032(1)(B) and (1)(C) provide that an insurance carrier is not liable for compensation if the injury was caused by the employee’s willful attempt to injure himself or to unlawfully injure another person or arose out of an act of a third person intended to injure the employee because of a personal reason and not directed at the employee as an employee or because of the employment. Section 406.032(2) provides that an insurance carrier is not liable for compensation if the employee’s horseplay was a producing cause of the injury.

We have observed that whether there was a personal motivation to an assault that causes injury is a question of fact to be decided by the hearing officer. Texas Workers' Compensation Commission Appeal No. 971051, decided July 21, 1997. There was conflicting evidence on this issue. The hearing officer's determinations that the claimant’s claimed injury was not caused by the claimant’s attempt to unlawfully injure another person; that the claimant was not participating in horseplay at the time of the claimed injury; and that the claimant’s claimed injury arose out of an act of a third person intended to injure the claimant because of the claimant’s employment with the employer are not against the great weight and preponderance of the evidence, and we will not disturb them on appeal.

We affirm the decision and order of the hearing officer.

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

CORPORATION SERVICE COMPANY

701 BRAZOS STREET, SUITE 1050

AUSTIN, TEXAS 78701.

Margaret L. Turner

CONCUR:

Daniel R. Barry
Appeals Judge

Chris Cowan
Appeals Judge

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