Appeals Panel: Claimant Failed to Prove LIBs Entitlement; Gets to Try Again
The appeals panel has reversed the decision and order of a benefit contested case hearing officer that found a claimant to be entitled to Lifetime Income Benefits. The appeals panel rendered a decision that the claimant was not entitled to the LIBs based on a traumatic brain injury. However, the appeals panel noted that the claimant was still entitled to pursue a claim for LIBs based on a different theory of LIBs entitlement such as total loss of use of both feet at our above the ankle.
In Appeals Panel Decision No. 170558, decided May 2, 2017, the hearing officer issued a decision and order awarding LIBs to the injured worker. The self-insured employer appealed.
On appeal, the appeals panel observed that the certified issue to be decided by the hearing officer was whether the claimant was entitled to LIBs from September 20, 2016, based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with Section 408.161. The appeals panel first noted that the hearing officer had determined that the claimant did not suffer from imbecility as a naturally flowing result of his traumatic brain injury. The appeals panel found that there was sufficient evidence to support that finding.
However, the hearing officer also found that the claimant was entitled to LIBs based upon the total and permanent loss of use of both feet at or above the ankle. The carrier challenged this aspect of the decision, arguing that the hearing officer’s finding in this regard exceeded the scope of the certified issue and should not have been made. The appeals panel agreed with the carrier.
[Rule 142.7] essentially provide that issues not considered at a BRC may only be added by consent of the parties or upon a showing of good cause. While consent may be inferred if the parties actually litigated an issue not otherwise identified, the record in this case does not establish that the parties litigated that the claimant is entitled to LIBs based upon the total and permanent loss of use of both feet at or above the ankle. The specific issue before the hearing officer as certified and amended at the CCH was whether the claimant is entitled to LIBs from September 20, 2016, based on a physically traumatic injury to the brain resulting in incurable imbecility. The hearing officer’s determination that the claimant is entitled to LIBs from September 20, 2016, based upon the total and permanent loss of use of both feet at or above the ankle exceeded the scope of the issue before him. Because there is sufficient evidence to support the hearing officer’s finding that the claimant does not suffer from imbecility as a naturally flowing result of his (date of injury), traumatic brain injury, which was the specific issue at the CCH, we reverse the hearing officer’s determination that the claimant is entitled to LIBs from September 20, 2016, and we render a new decision that the claimant is not entitled to LIBs from September 20, 2016, based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with Section 408.161.
Importantly, the appeals panel took pains to note that its decision did not preclude the claimant from filing a claim for LIBs based upon a different theory of entitlement contained in Section 408.161. Thus, under this decision the claimant can pursue LIBs recovery in a second CCH using a different theory of entitlement under Section 408.161.
FOLIO
