Carrier’s Dispute, Raised at BRC, Prevented Waiver of New Claim
The Appeals Panel has reversed the decision of an Administrative Law Judge and has rendered a decision that a carrier had not waived its right to contest the compensability of a second claim by raising that dispute at a BRC. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 172699, decided January 3, 2018.
A BRC in this case was held on July 31, 2017. The carrier’s adjuster testified at the CCH that she had previously filed a PLN-1 with the Division on May 5, 2017, disputing a March 30, 2017, injury because she had no knowledge of a second date of injury. She also testified that she became aware of the second date of injury when talking to the carrier’s attorney right after the July 31, 2017, BRC, and that she changed the date of injury on the claim to reflect the new date of injury.
During the BRC the carrier contended that it was continuing to dispute the claimed injury (which now seemed to have a new date of injury) in its entirety. The BRC report dated August 4, 2017, reflects the carrier’s position that it was denying the claimed injury with the new date of injury in its entirety. It is clear that the claimant and the Division were informed of the carrier’s position at the BRC held on July 31, 2017, and the carrier’s dispute of compensability of the claim even with the new date of injury and its reasons for that dispute were reduced to writing by the benefit review officer in the BRC report dated August 4, 2017.
The ALJ found that the carrier had notice of the claimed injury bearing the new date of injury at the BRC on June 23, 2017. The appeals panel found that the evidence supported the ALJ’s finding in this respect. The 60th day after June 23, 2017, was August 22, 2017. The ALJ noted in her discussion that although a copy of an amended Notice of Denial of Compensability/Liability and Refusal to Pay Benefits (PLN-1) dated August 8, 2017, was in evidence, there was no copy that had been date stamped as received by the Division of Workers’ Compensation. The ALJ therefore determined that the carrier did not timely contest the injury in accordance with Section 409.021 and consequently waived the right to contest compensability of the claimed injury that bore the new date of injury.
The carrier appealed to the appeals panel. The appeals panel reversed the ALJ’s decision that the carrier waived it’s right to contest the compensability of the claim, which now bore the new date of injury.
The Appeals Panel has previously held in similar cases that a carrier’s dispute at a BRC was sufficient to satisfy the requirements for filing a written notice of denial when the BRC was held within the time period for disputing a claim, the carrier stated its reasons for contesting compensability at the BRC, the contest of compensability and reasons therefor were reduced to writing by the BRO within the time period for filing a dispute, and the parties proceeded to a CCH based on the carrier’s contest of compensability. See Appeals Panel Decision (APD) 022201, decided October 10, 2002; APD 980194, decided February 25, 1998; APD 962450, decided January 15, 1997; and APD 94292, decided April 26, 1994. In the case on appeal the carrier notified the claimant and the Division at the BRC held on July 31, 2017, that it was disputing the (date of injury), claimed injury in its entirety, and the BRC report dated August 4, 2017, clearly reflects the carrier’s position. As noted previously the deadline by which the carrier had to file a denial of the claimed injury was August 22, 2017. Based on the facts of this case and the prior holdings discussed above, we reverse the ALJ’s determination that the carrier did not timely contest the injury in accordance with Section 409.021, and consequently waived the right to contest compensability of the claimed injury of (date of injury), and we render a new decision that the carrier did timely contest the injury in accordance with Section 409.021 and therefore did not waive the right to contest compensability of the claimed injury of (date of injury).
The ALJ’s determination that the claimant was not injured in the course and scope of his employment on the new date of injury was not appealed and became final. Given that the appeals panel reversed the ALJ’s carrier waiver determination and rendered a new decision that the carrier did timely contest the injury in accordance with Section 409.021 and therefore did not waive the right to contest compensability of the claimed injury bearing the new date of injury, the appeals panel also reversed the ALJ’s determinations that the claimant sustained a compensable injury on the new date of injury, and that the claimant had disability from that injury and rendered a new decision that the claimant did not sustain a compensable injury on the new date of injury, and the claimant did not have disability from that claimed injury.
FOLIO
