Appeals Panel Rules that Hearing Officer Lost Objectivity, Went on Fishing Expedition for Claimant

The Appeals Panel has reversed the decision and order of a benefit contested case Hearing Officer and rendered a decision that an injured worker did not suffer disability. But the reason for the reversal is that the Hearing Officer behavior in the case, in the eyes of the Appeals Panel, was procedurally unfair to the carrier and constituted an abuse of discretion.

In Appeals Panel Decision No. 160787, decided July 6, 2016, the Appeals Panel affirmed the Hearing Officer’s decision that the claimant was not intoxicated at the time of the injury. However, the Appeals Panel reversed the Hearing Officer’s decision that the claimant suffered disability. The Appeals Panel described the lengths that the Hearing Officer went to in order to develop some evidence of disability as “procedurally unfair” and a “fishing expedition.”

The carrier argued on appeal that the Hearing Officer abused his discretion when he unilaterally reopened the record after the CCH in the Tyler field office had closed in order to obtain and admit evidence regarding disability that was neither exchanged nor offered by either party. The Hearing Officer did so under the rationale that he was obligated to “develop a full and complete record” in the case. The Appeals Panel wrote that the Hearing Officer’s actions went well beyond the boundaries of that obligation.

The Hearing Officer has a statutory responsibility to “ensure the preservation of the rights of the parties and the full development of facts required for the determination to be made.” Section 410.163(b). Hearing Officers are also specifically authorized to “request additional evidence” from the parties pursuant to 28 TEX. ADMIN. CODE § 142.2(10) (Rule 142.2(10)). These important responsibilities must be exercised in light of and balanced with the fundamental requirement that both sides receive a fair and objective hearing. The Hearing Officer is the neutral fact finder and, as such, cannot serve or appear to serve as an advocate. While the Hearing Officer has a responsibility to develop facts necessary for an informed decision, this must be done in a manner and procedure that is outcome neutral and protects the procedural and substantive rights of the parties. See APD 992056, decided November 1, 1999, and APD 92272, decided August 6, 1992, for further explanation.

In applying these considerations to the present case, we note that the Hearing Officer made two separate requests for additional information relating to the claimant’s status, and that the second request occurred 16 days after the hearing had concluded and the record closed—hence disrupting the orderly presentation of evidence and the timely resolution of the dispute. Additionally, the second request to the ombudsman for “whatever records of [Dr. W’s] she was able to get” was inappropriately broad and unfocused, compounded by the fact that the Hearing Officer did not notify the insurance carrier until after the records were received and admitted into evidence.

In order to maintain a neutral forum, a Hearing Officer’s decision to reopen the record should typically be to clarify other evidence offered by a party—or, at least, other evidence should point to the missing evidence as key to a well-informed resolution of the dispute. Instead, the Hearing Officer’s open ended and untimely request was essentially a “fishing expedition” for more evidence largely unconnected to the evidence offered by the parties. Under these circumstances, we hold that the Hearing Officer’s second request for additional records was procedurally unfair to the carrier and constituted an abuse of discretion. Accordingly, we will not consider any of these records that were erroneously admitted by the Hearing Officer after the CCH.

The Appeals Panel did not address why it affirmed a Hearing Officer’s decision on the intoxication issue when the procedure followed by the Hearing Officer on the disability issue so obviously demonstrated bias against the carrier.