Hearing Officer Failed to Maintain Impartiality; Case Reversed and Rendered
The Appeals Panel has concluded that a Division Hearing Officer lost his impartiality when he improperly reopened the record to admit evidence that was never exchanged with the carrier after a CCH had been concluded. In Appeals Panel Decision Number 160618, decided June 9, 2016, the parties appeared for a CCH on February 1, 2016. The evidentiary portion of the hearing ended and the record was closed. On February 16, 2016, the Hearing Officer wrote the adjuster for the carrier and stated:
As a [h]earing [o]fficer, I have the responsibility and duty to fully develop the record in each case that comes before me. I have, therefore, reopened the record in [the case on appeal], and directed the ombudsman for [the claimant] to provide me with the examination reports from (Dr. M).
Another letter in the hearing file from the Hearing Officer dated February 18, 2016, to the carrier’s adjuster stated that all of the reports from Dr. M obtained from the ombudsman were included and admitted as Hearing Officer Exhibit 3.
The records from Dr. M admitted by the Hearing Officer after the CCH consist of Dr. M’s diagnosis of PTSD and a discussion of psychological testing administered to the claimant dated April 29, 2014, and progress notes dating from May 2014 through May 2015. A review of the record reveals that neither party sought the admittance of Dr. M’s records dated April 29, 2014, through May 2015, that the Hearing Officer admitted into evidence after the CCH; instead, the Hearing Officer unilaterally reopened the record to direct the ombudsman to provide him with medical records from Dr. M, and upon receipt of those documents admitted them into evidence.
The Hearing Officer concluded that the compensable injury extended to PTSD and that the claimant was entitled to SIBs for the fourth compensable quarter. The Hearing Officer’s decision in this regard relied upon the newly admitted medical records. The carrier appealed, arguing that the Hearing Officer abused his discretion by improperly reopening the record to admit evidence after the CCH that was never exchanged with the carrier. This, the carrier argued, was reversible error. The Appeals Panel agreed.
Section 410.163(b) provides that a Hearing Officer “shall ensure the preservation of the rights of the parties and the full development of facts required for the determination to be made.” In APD 992056, decided November 1, 1999, an extent of injury case, the Appeals Panel noted that Section 410.163(b) does not grant the Hearing Officer the right to become a “surrogate party at the CCH,” and that a Hearing Officer is not to become an advocate for either party. The Appeals Panel further stated that “it is the parties themselves who are primarily responsible for presenting their case and protecting their own interests,” and held that it was “improper for the Hearing Officer to shore up the claimant’s case under the guise of ensuring a full development of the record.” In APD 92272, decided August 6, 1992, which is a case involving the issue of compensability, the Appeals Panel noted that the Hearing Officer acts as an impartial judge of the facts and is not an advocate for any party. This may appear to be a fine line at times, but it is one that must be observed to have a dispute resolution system that is, and appears to be, absolutely fair, impartial, and just.
The Appeals Panel concluded that the Hearing Officer had exceeded his authority to fully develop the facts under Section 410.163(b) and had abused his discretion when he reopened the record to request and obtain from the ombudsman medical records that neither party sought to admit into the record and were not exchanged with or disclosed to the carrier prior to the Hearing Officer’s admittance of those records after the CCH.
Accordingly, the Appeals Panel declined to consider any of the records from Dr. M dated April 29, 2014, through May 2015 that were erroneously admitted by the Hearing Officer after the CCH. Without those records, there was legally insufficient evidence to establish that the claimed injury extended to or included PTSD or that the claimant was entitled to SIBs for the fourth compensable quarter. The Appeals Panel reversed the Hearing Officer’s decision and order and rendered a decision accordingly.
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