AP Rejects Carrier’s Attempt to Set Aside DWC Agreement

The Appeals Panel has issued a decision that holds that a Hearing Officer erred in finding good cause to set aside a DWC-24 (Benefit Dispute Agreement) based on new medical records that were received after the effective date of the agreement. The Appeals Panel posted its decision in Appeals Panel Decision No. 151634 on October 15, 2015.

The claimant sustained a compensable right knee injury. The carrier accepted a strain and a contusion. The claimant argued that the injury extended to and included a right knee meniscus tear as well as other allegedly degenerative conditions. A designated doctor was appointed and the examination resulted in the doctor’s opinion that the compensable injury included the disputed conditions. After the designated doctor’s exam, the carrier requested the Division issue subpoenas for the production of  medical records from a number of providers who saw the claimant prior to his accident. Meanwhile, the Division scheduled the case for a Benefit Contested Case Hearing on, among other issues, the issue of extent of injury.

On the day before the Contested Case Hearing was supposed to take place, the parties, both of which were represented by counsel, signed a DWC-24 that resolved, among other issues, the extent of injury dispute. Two weeks after the agreement was approved, the Claimant underwent an arthroscopy of the right knee joint.

Four weeks after the agreement was approved, the carrier received some subpoenaed medical records, including progress notes and medication reports, which show that the claimant had a prior right knee injury in 2003, while in military service, and had complaints of right knee pain in 2011, 2012, 2013, and 2014. Also, the subpoenaed progress notes in evidence indicate that the claimant received prescriptions for pain medication from various healthcare providers.

The carrier sought to set aside the DWC-24. The claimant refused to do so. After a benefit dispute agreement, a Hearing Officer determined that good cause existed to relieve the carrier from the effects of the agreement. The Hearing Officer wrote, “the medical records clearly show [the disputed knee] conditions are not new and the claimant had been treating for them within weeks [prior to] the date of injury. Newly discovered evidence and other good and sufficient cause exist for relieving the parties of the effects of the agreement.”

The claimant appealed.

The appeals panel reversed the Hearing Officer’s Decision and Order, and rendered a decision that reinstated the agreement.

In this case, the carrier may not have been aware of the contents of records documenting the claimant’s previous healthcare treatment, but it certainly was aware that the claimant had previously received treatment from a number of healthcare providers and was further aware, as reflected in the carrier’s request for subpoenas, that it needed to determine whether these healthcare providers had provided pre-injury treatment to the claimant’s right knee. The fact that the carrier had not received records of the claimant’s prior healthcare treatment at the time it signed the DWC-24 is not, by itself, enough to constitute newly discovered evidence or other good and sufficient cause to relieve the carrier from the effects of the agreement.

We note that fraud is a third criteria to determine whether the carrier is relieved from the effects of an agreement pursuant to Section 410.030. Although the hearing officer did not make a finding of fact on fraud, the carrier’s allegation on fraud is based on the medical records the carrier received after the DWC-24 was signed. We have determined based on the evidence that the medical records are not newly discovered evidence because the carrier did not exercise due diligence in obtaining the records.

The hearing officer’s determination that good cause exists to relieve the carrier from the effects of the DWC-24 signed on January 15, 2015, is against the great weight and preponderance of the evidence.

The decision represents the agency’s apparent policy to give greater weight to finality of agreements than to their accuracy. Parties should be aware that it is very difficult to set aside an agreement once it has been approved by the Division.