Appeals Panel Concludes Priority Mail Can Verify Delivery

The appeals panel has confirmed USPS priority mail as a valid method of establishing delivery by verifiable means.  The decision, Texas Division of Workers’ Compensation Appeals Panel Decision No. 210405, decided May 27,2021 reverses and renders an ALJ’s decision that delivery was not made by verifiable means.

Flahive lawyer Greg Solcher secured the decision, which corrects a misimpression existing among some ALJs with the Division.

Dr. R’s certification was the first certification of MMI/IR.  The self-insured prepared a PLN 3 which referenced Dr. R’s certification, had the USPS tracking number typed across the top and contained the claimant’s correct address.  The USPS tracking information print-out was also introduced into evidence.  This showed that the mailing was delivered on May 15, 2019.  The claimant denied receiving it.  The dispute of the certification did not occur until 2021.

In her discussion of the evidence the ALJ stated: “…although the PLN-3a itself outlined [the] [c]laimant’s name and address as verified by [the] [c]laimant, the tracking page did not have any address whatsoever to properly identify that the notice had been delivered to the same address as outlined in the notice.  This presented an ambiguous interpretation.”

Since the tracking information provided by USPS only includes a City, State and zip code, the ALJ’s interpretation would have eliminated priority mail as a method of delivery by verifiable means.

In reversing the ALJ, the appeals panel referenced the preamble to rule 130.12 which states that written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party, and that this may include delivery by e-mail, confirmed delivery by facsimile transmission, or some other confirmed delivery to the home or business address.  The goal of this requirement is not to regulate how a system participant makes delivery of a report or other information to another system participant, but to ensure that the system participant filing the report or providing the information has verifiable proof that it was delivered.

The appeals panel concluded that in this case, Dr. R’s certification of MMI/IR was delivered to the claimant on May 15, 2019, as evidenced by the PLN-3a addressed to the claimant’s correct address in (city), Texas, stating that Dr. R’s certification of MMI and assigned IR is attached with a (tracking number), and the printout from USPS bearing the same tracking number confirming delivery to (city), Texas.  This constituted delivery through verified means and because the claimant did not dispute within 90 days, the 90 day rule applied.