Hearing Officer Must Find the Date of First Notice when Deciding Case Involving Carrier Waiver
The Appeals Panel has reversed the decision and order of a benefit contested case Hearing Officer who concluded that the carrier did not waive its right to contest the compensability of the claim. The Appeals Panel remanded the case for the Hearing Officer to enter such a specific finding.
In Appeals Panel Decision Number 160580, decided May 26, 2016, the carrier disputed the compensability of the claim on the basis that the claimant was not injured in the course and scope of his employment and on the basis that the claimant failed to report an injury to his employer within 30 days, as required by the act. The claimant maintained that the carrier’s dispute was not filed within 60 days from the date of first written notice. The carrier argued that even if the dispute was late, the claimant did not sustain an “injury” and that, under Continental Casualty Company v. Williamson, 971 S.W.2d 108 (Tex. App.-Tyler 1998, no pet.), its failure to contest the compensability of the claim could not create an injury as a matter of law. The Appeals Panel reversed the case and remanded the claim with instructions.
The Hearing Officer determined 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. However, the Hearing Officer made no findings of fact or any discussion as to when the carrier received first written notice of the injury. The claimant has the burden to prove when the carrier received the first written notice of injury and, once that is done, the burden shifts to the carrier to prove that it timely filed a dispute. See Appeals Panel Decision (APD) 051656, decided September 14, 2005. Without a finding as to when the 60-day period began, it cannot be determined whether or not the carrier timely contested compensability of the injury in accordance with Section 409.021. Because the Hearing Officer’s decision is legally incomplete regarding the waiver issue, 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 remand this issue to the Hearing Officer for further action consistent with this decision.
In remanding the case, the Appeals Panel specifically reversed the issue involving the existence of a compensable injury, but affirmed the Hearing Officer’s finding that the claim had not been timely reported to the employer. In so doing, the Appeals Panel observed that a carrier that has waived its right to contest compensability under Section 409.021 has also waived its right to assert a defense under Section 409.002 based upon the claimant’s failure to timely notify his or her employer of an injury pursuant to Section 409.001, citing Appeals Panel Decision Numbers 022027-s and APD 041810.
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