FOLIO

DWC Commissioner Adopts SOAH Decision on First Responder Cancer Presumption

Oct 16, 2023 | by FOL

We previously provided an update regarding an important decision issued by the State Office of Administrative Hearings (SOAH) regarding first responder cancer claims (FOLIO, August 9, 2023). There has been an important new development in this case.

To recap, the case involved two claims for cancer that were filed prior to the revisions made to Texas Government Code Section 607.055 that provided a list of cancers to which the presumption applies for firefighters and emergency medical technicians. The claims were also submitted prior to the creation of the continuing investigation process by utilizing the PLN 14.

At the proceeding, the Division of Workers’ Compensation (DWC) contended that the carrier had committed multiple administrative violations in its processing, investigation, and ultimate denial of both claims. The Administrative Law Judges (ALJs) for SOAH found no violations had been committed and thus no penalty should be assessed.

The SOAH ALJs issued a decision that included numerous Findings of Facts and Conclusions of Law. These included important determinations such as the employee bears the burden of proof to show they are entitled to a presumption and that the DWC presented insufficient evidence to establish the proposed administrative penalty was calculated in accordance with the law.

The important new development is that on September 19, 2023, Commissioner Jeff Nelson issued a Decision and Order adopting all of the ALJs’ Findings of Fact and Conclusions of Law. The Commissioner also ordered that no administrative penalty was to be imposed.

DWC can appeal the Commissioner’s Decision by filing an appeal in Travis County District Court. While possible, these types of appeals are rare since the standard of review in District Court would be under the substantial evidence rule, which makes it very difficult to reverse the Decision.

DWC has until October 16, 2023 to file a Motion for Rehearing with the Commissioner. DWC would then have 30 days from the date the Motion for Rehearing is overruled to file suit in district court to review the Commissioner’s Decision.

Should you have any questions about this decision or its applicability to your claims handling, please feel free to reach out to Jessica MacCarty (jmm@fol.com), Kevin Poteete (ksp@fol.com), or Roy Leatherberry (rjl@fol.com) with the firm.