Appeals Panel Concludes ALJ Exceeded the Scope of his Authority in Second CCH

An ALJ who heard a case on remand erred in addressing the disability issue in the second CCH because that issue had not been appealed after the first CCH, according to a new Appeals Panel Decision. In Appeals Panel Decision No. 181529, decided August 31, 2018, the Appeals Panel noted that a Division ALJ had decided the issues of MMI, IR, extent of injury, and disability in the first CCH. The carrier appealed the issues of MMI, IR, and extent, but did not appeal the disability issue because the ALJ had found that the employee had not sustained disability as claimed.

In the first appeal, Appeals Panel Decision No. 152240, the Appeals Panel remanded the case for reconstruction of the record because the recording of the CCH was incomplete. A remanded hearing was held before the first ALJ in the case. Before a Decision in the remanded hearing was written, however, the ALJ from the first CCH ceased to be employed by the Division. The Division, therefore, assigned a second ALJ to listen to the hearing from the second CCH and issue a Decision and Order on the remanded issues.

The second ALJ informed the parties that because the Appeals Panel had remanded the case for reconstruction of the record, he would make a determination on all the disputed issues, which included extent of injury, MMI, IR, and disability. The carrier objected to the disability issue being re-litigated because the disability determination had not been appealed after the first CCH and had become final as a matter of law. The second ALJ overruled the carrier’s objection and issued a Decision and Order that found that disability existed – the opposite result from the first CCH. The ALJ also determined that the compensable injury did not extend to the disputed conditions and that the claimant reached MMI with a 6 percent IR.

The claimant appealed the second CCH Decision. In its response, the carrier urged the Appeals Panel to affirm the ALJ’s determinations on extent, MMI, and IR. The carrier also urged the Appeals Panel to render a decision that the disability issue had become final as a matter of law. The Appeals Panel agreed with the carrier.

As previously mentioned, in APD 152240, supra, the Appeals Panel stated that ALJ (ALJ)’s determination that the claimant did not have disability from (date of injury), and continuing through the date of the CCH was not appealed and became final pursuant to Section 410.169. The carrier at the CCH on remand, as well as on appeal, asserts that ALJ (ALJ)’s disability determination was not appealed and became final as a matter of law.

On remand, ALJ (ALJ) issued a determination on the disability issue. ALJ (ALJ)’s disability determination exceeds the scope of the issue before him because ALJ (ALJ)’s disability determination became final as a matter of law. Accordingly, we reverse ALJ (ALJ)’s determination that the claimant did not have disability resulting from the compensable injury during the period from (date of injury), through the date of the CCH on February 23, 2018, as exceeding the scope of the issue before him, and we render a new decision by striking ALJ (ALJ)’s disability determination.

The Appeals Panel’s Decision recognizes that a party that is aggrieved by a determination of an ALJ must appeal those decisions, even if there are other determinations made by the ALJ that the party does not disagree with.