Extent of Injury Case Reversed for Late Expert Designation
The Appeals Panel has reversed the decision of a Hearing Officer who concluded that that the claimant’s compensable injury did not extend to and include various disputed injuries or conditions of his upper extremities. The Appeals Panel remanded the case for further determination of the compensability of the claimant’s injury to the right hand, left carpal tunnel syndrome, left cubital tunnel syndrome, and a subcortical edema at the base of the second and third metacarpal and in the trapezoid and capitate without evidence of fracture to the left hand.
In Appeals Panel Decision Number 160074, decided March 21, 2016, the Appeals Panel considered the appeal of a claimant who had suffered a laceration of his left hand when it was crushed between two pipes while at work. The claimant sought to extend the laceration injury to include other upper extremity injuries. The panel reversed the case and remanded for further proceedings.
On appeal, the Claimant contended that the Hearing Officer erred in permitting the carrier’s peer review doctor to testify at the hearing because his identity had not been disclosed in accordance with Rule 142.13(c)(1)(D) requires, in part, that no later than 15 days after the benefit review conference (BRC), parties shall exchange the identity and location of any witness known to have knowledge of the relevant facts. The claimant asserted that the carrier exchanged Dr. H’s identity, along with the identities of 43 other potential witnesses, via facsimile transmission at 10:00 p.m. on October 20, 2015, the 15th day following the date of the BRC on October 5, 2015.
The claimant objected to the testimony of the carrier’s doctor and argued that the carrier had not exchanged the identity of the witness within 15 days after the BRC. The hearing officer did not discuss the reasons for the late exchange nor did she make any determination of good cause, but summarily overruled the claimant’s objection and allowed the doctor to testify at the CCH concerning extent of the compensable injury. The Hearing Officer additionally denied the claimant’s request that the CCH record be held open so that the treating doctor could respond to the objected-to testimony. The appeals panel concluded that the Hearing Officer’s ruling was erroneous:
Because the carrier’s exchange of information was received by the claimant after normal business hours on October 20, 2015, the claimant did not receive the exchange until October 21, 2015, a date more than 15 days after the BRC.
The Appeals Panel reversed the Hearing Officer’s decision and remanded the extent of injury, disability, MMI and IR issues to the Hearing Officer to make findings of fact, conclusions of law, and to enter a decision that is supported by the evidence. The Hearing Officer was specifically directed not to consider the testimony of the carrier’s expert nor any additional evidence on remand.
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