AP Concludes that Coverage Defense Cannot be Waived

The appeals panel has issued a decision reiterating past holdings that workers’ compensation coverage may not be extended by waiver or estoppel. The appeals panel posted its decision in Appeals Panel Decision 150662 on June 9, 2015.

The parties stipulated at the CCH that coverage belonged with one insurance carrier “for all dates pertinent to this claim.” However, in its appeal the carrier contended that the correct carrier for the date of injury of [date of injury], was a different insurance carrier. The carrier attached to its appeal the results of an online employer’s workers’ compensation insurance coverage verification which indicates that on the date of injury, the second insurance carrier provided workers’ compensation coverage for the claimant’s employer.

The appeals panel reversed the decision of the hearing officer, which found the claim to be compensable, and remanded the cause for a determination regarding coverage. In this connection, the Appeals Panel wrote:

In Houston Gen. Ins. Co. v. Association Cas. Ins. Co., 977 S.W.2d 634 (Tex. App.-Tyler 1998, no writ), the Tyler Court of Appeals held that workers’ compensation coverage may not be extended by waiver or estoppel. This case is similar to Appeals Panel Decision (APD) 042725, decided December 15, 2004, where information was sent to the Texas Department of Insurance, Division of Workers’ Compensation (Division) after the CCH, advising that the carrier did not have coverage. See also APD 070514, decided May 1, 2007.

Accordingly, the Appeals Panel continues to recognize the general rule that coverage may not be created by waiver and estoppel, and a coverage dispute may be raised at any time in the dispute resolution proceedings.