AP Reverses ALJ who Added an Issue after the Close of the Hearing
The appeals panel has reversed an ALJ’s decision and order and rendered a decision that illustrates two important rules when dealing with SIBs liability. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 190915, decided July 19, 2019.
The ALJ resolved the disputed issues by deciding that: (1) the claimant sustained a compensable injury; (2) the compensable injury extends to a left knee medial meniscus tear; (3) the carrier was not relieved of liability under Section 409.002 because the claimant timely notified his employer pursuant to Section 409.001; and (4) the carrier was not relieved of liability under Section 409.004 because of the claimant’s failure to timely file a claim with the Division within one year of the injury as required by Section 409.003.
The ALJ also determined that the carrier did not specifically contest compensability on the issue of relief of liability because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury pursuant to Section 409.022 and Rule 124.2(f) because the ALJ found that issue was actually litigated.
The carrier appealed, disputing all the ALJ’s determinations. The carrier contended that the ALJ abused his discretion in adding the issue of whether the carrier specifically contested compensability on the grounds of the claimant’s failure to timely file a claim for compensation with the Division within one year pursuant to Section 409.022 and Rule 124.2(f), because that issue was not actually litigated by the parties. The appeals panel agreed with the carrier.
The appeals panel first noted that the benefit review officer’s report did not mention an issue of carrier waiver of the defense of the claimant’s failure to file a claim within one year. It observed that § 410.151(b) provides, in part, that an issue not raised at the BRC may not be considered at a CCH except in limited circumstances. Rule 142.7(a) states, in part, that disputes not expressly included in the statement of disputes will not be considered by the ALJ.
The appeals panel did acknowledge that under Rule 142.7(c) a party may submit a response to the disputes identified as unresolved in the BRC Report. Rule 142.7(d) is a provision for adding disputes by unanimous consent. Rule 142.7(e) is a provision for adding disputes by permission of the ALJ. None of these provisions were applicable in this case.
The ALJ added the issue of whether the carrier specifically contested compensability on the grounds of the claimant’s failure to timely file a claim for compensation with the Division within one year pursuant to Section 409.022 and Rule 124.2(f) because he found that issue was actually litigated. The carrier contended on appeal that this issue was not actually litigated and the ALJ abused his discretion in adding the issue.
The appeals panel reviewed the record and concluded that the carrier’s raising of the one-year limitation as a defense was not requested to be added by either party and in fact was not ever mentioned at the CCH. The ALJ added the issue in the decision and order after the CCH without notifying the parties that he was doing so. The only evidence relating to this issue is the DWC-41 and the carrier’s PLN-1.
The appeals panel did not believe this issue was actually litigated, and held that it was an abuse of discretion to add the issue. See Appeals Panel Decision (APD) 111095, decided October 13, 2011; see also APD 013100, decided February 6, 2002. Accordingly, the panel reversed the ALJ’s determination that the carrier did not specifically contest compensability on the issue of relief of liability because of the claimant’s failure to timely file a claim for compensation with the Division within one year of the injury pursuant to Section 409.022 and Rule 124.2(f), and rendered a new decision by striking that determination.
The appeals panel also rejected the ALJ’s determination that a claimant could consider the employer’s first report to constitute a timely filed claim for compensation, writing:
The evidence did not establish that the employer filed the March 29, 2017, DWC-1 with the Division on behalf of the claimant. Furthermore, the DWC-1 may not be used as substantive evidence against a carrier or employer. See Section 409.005(f) and APD 012728, decided December 31, 2001. The ALJ’s finding that the DWC-1 qualifies as a claim for compensation in this case is not supported by the evidence. The ALJ found that the claimant first filed his DWC-41 with the Division on June 5, 2017, which was not within one year of the date of the claimed injury. This finding was not appealed. Therefore, the evidence established that the claimant did not file a claim with the Division within one year of the injury as required by Section 409.003.
The case was reversed and remanded for further action consistent with the decision.
FOLIO
