Important SOAH Decision on First Responder Cancer Presumption
The State Office of Administrative Hearings (SOAH) recently released a critically important decision regarding first responder cancer claims.
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.
At the outset, the ALJs analyzed and discussed whether the carrier or the claimant has the burden to prove whether the cancer presumption is applicable to the claim. The ALJs found that it is the claimant who bears the burden to show that the prima facie elements of the presumption have been met. The SOAH panel also held that the carrier is not required to gather specific documents and evidence in order for the carrier’s investigation to be reasonable and prudent.
The ALJs then addressed DWCs assertion that the investigation performed by the carrier was unreasonable on its face given that the claims were denied quickly or before the 15 day deadline. DWC also complained of the carrier’s failure to gather specific documents and evidence, including medical records and an expert opinion. The carrier countered that not only had it performed a reasonable investigation under the specific facts of the claim, the documents and evidence DWC asserted were necessary were not needed due to the types of cancer involved in the relevant cases.
The Panel noted that there is no minimum amount of time required for an investigation to be deemed reasonable and prudent. The ALJs also agreed with the carrier’s argument that at the time these claims were submitted, the IARC had only identified three types of cancer to which the presumption was applicable, and neither claim involved one of those cancers. The amount of time in which the carrier determined the presumption was inapplicable and thus denied the claims was therefore not unreasonable.
The ALJs also noted that the reasonableness and thoroughness of the carrier’s investigation had to be reviewed in the context of the uncertainty of the law at the time of the claims. The judges specifically pointed out that there was a lack of precedent and DWC guidance regarding certain elements of the presumption, including what constitutes “regularly responded” to fires at the time the carrier received these claims.
Finally, the Panel discussed the penalty DWC assessed and requested in conjunction with these two claims. While the judges had determined no violation had been committed and thus there was no basis for imposing a penalty, they nonetheless reviewed the amount DWC had proposed. The ALJs found that no evidence was presented by DWC to prove how the proposed penalty was calculated or allocated between the two claims or the various asserted violations. Given the lack of guidance proffered by DWC as to how the penalty should be calculated, the ALJs commented that they were concerned that the imposition of the penalty requested by DWC could result in an arbitrary decision.
The decision from SOAH has not been signed or approved by Commissioner Jeff Nelson; as such, it is currently only a recommendation from SOAH. Commissioner Nelson could take several months to review and sign the decision, which would then finalize the judges’ rulings.
In light of this decision, we anticipate that DWC will provide additional guidance to system participants as to the Division’s interpretation of the relevant rules and statutes that govern their obligations. DWC has a variety of methods by which it can clarify what it perceives to be the carriers’ responsibilities within the system, including rule making and the issuance of bulletins. The hope is that this decision from SOAH will encourage DWC to utilize these other methods of instruction as opposed to wielding enforcement actions as teaching tool.
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.
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