A Rare Reversal and Remand Based on the Appeals Panel’s Consideration of Newly Discovered Evidence
The Appeals Panel has reversed and remanded an ALJ’s determinations of MMI, IR, and disability based on newly discovered evidence provided by the carrier. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 200029, decided March 5, 2020.
On appeal, the carrier contended that after the conclusion of the CCH on November 21, 2019, the carrier received information that the claimant worked during the period of disability at issue—contrary to her testimony that she had not returned to work since the date of the injury. The ALJ had determined the claimant had disability from September 7, 2018 through September 3, 2019; however, an employment verification report, dated December 23, 2019, revealed that the claimant had worked full-time from September 10, 2018 through October 17, 2018. The carrier attached the employment verification report to its appeal and argued it constituted newly discovered evidence.
Generally, the Appeals Panel had refused to consider new evidence presented for the first time on appeal. To determine whether new evidence submitted with an appeal would require remand for further consideration, the Appeals Panel considered:
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- whether the evidence came to the knowledge of the party after the hearing;
- whether the evidence was cumulative of other evidence of record;
- whether the evidence was not offered at the hearing due to a lack of diligence;
- and whether the evidence was so material that it would probably result in a different decision.
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The claimant testified, on August 6, 2019 and November 21, 2019, that she was injured when she fell from a rung on one level of a scaffold into the entrance hole of a lower level of the scaffold and had not worked since the date of the injury. The carrier received the employment verification report on or about December 23, 2019, and filed its appeal on December 30, 2019. The Appeals Panel reasoned that because the report did not come into existence until a month after the CCH concluded, the carrier could not have been made aware of the claimant’s employment during the claimed period of disability until a date after the CCH concluded—which fulfilled the first consideration regarding knowledge of the party and the third consideration concerning lack of diligence. They also concluded that the new evidence was not cumulative of other evidence in the record because the testimony in the record from the claimant was completely opposite the new evidence.
Finally, the Appeals Panel opined that if the claimant’s alleged full-time employment from September 10 through October 17, 2018 was true, it would call into question her credibility on the issues of disability, MMI, and IR—which would show that the new evidence was “so material that it would probably result in a different decision.” Meeting all the requisite considerations, the Appeals Panel reversed and remanded the issues of disability, MMI, and IR, so the ALJ would be allowed to consider the new evidence and allow the parties to present evidence at the CCH on remand.
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