Good Cause Not Yet Shown by Claimant to Add Carrier Waiver in Death Claim

The Appeals Panel has reversed the decision of a Hearing Officer who concluded that that a claimant had shown good cause to add the issue of carrier waiver in a claim for death benefits. The Hearing Officer had determined that, although the death claim was not compensable, the carrier waived its right to contest the compensability of the claim. In Appeals Panel Decision Number 160298, decided May 25, 2016, the Appeals Panel reversed the Hearing Officer’s determination and remanded the case with instructions.

Following the death of a covered employee, the beneficiary filed a claim for death benefits with the Division. The carrier contends that the only issue raised at the BRC was the compensability of the death. However, at the first CCH setting, the claimant attempted to raise an issue of carrier waiver. Under Section 409.021 a carrier waives its right to contest compensability if it fails to dispute the compensability of the claim in a timely fashion. Rule 142.17(a) states that a carrier shall have 60 days from notification of the death or from written notice of the injury that resulted in the death (whichever is greater) to conduct an investigation. Subsection (b) states that if the carrier believes that it is not liable for the death or that the death is not compensable, it shall file a notice of denial of the claim in accordance with Rule 124.2.

Under Section 410.151 and Rule 142.7(e), An issue that was not raised at a benefit review conference or that was resolved at a benefit review conference may not be considered in a contested case hearing unless the parties consent or the commissioner determines that good cause existed for not raising the issue at the conference. Good cause is not defined.

The Hearing Officer noted in the Statement of the Case that “[a]t the request of [the claimant beneficiary] and for good cause, the [carrier waiver] issue was added. . . .” However, the Hearing Officer did not specify in his decision what evidence established good cause to add the issue. The Appeals Panel reversed the hearing officer’s determination of good cause and remanded the case to the hearing officer to make an express finding on the good cause issue. The Appeals Panel wrote:

On remand the Hearing Officer is to specify the carrier’s objection to the addition of the carrier waiver issue, and then make a determination of whether there was good cause to add the issue of carrier waiver. If the Hearing Officer determines there was good cause to add the carrier waiver issue he is to provide a discussion of his rationale, and then determine whether the carrier waived the right to contest compensability of the claimed injury in accordance with Section 409.021.

While several cases have been decided on the question of whether a carrier or claimant provided good cause to add an issue that was not raised at the BRC, the question of what actually constitutes good cause has never been clearly defined. We know that good cause must be found by the Hearing Officer, and that the Hearing Officer’s decision regarding good cause will not be reversed absent an abuse of discretion. However, we do not have a decision from the Appeals Panel that describes the elements that must be proved to establish good cause for failing to raise a waiver issue. This case may eventually provide that guidance.