July 23, 2018
The goal of this analysis is to provide information concerning the adjudication process for a Texas workers’ compensation case. The usual adjudication process most commonly found will be addressed; however, many obstacles and practice pointers will be discussed. There are seemingly infinite issues, procedurally as well as substantively that arises in the practice of workers’ compensation law.
The Texas Department of Insurance – Division of Workers’ Compensation (DWC) has a hree tier hearing process: 1) Benefit Review Conference, 2) Benefit Contested Case Hearing, 3) Appeal to DWC’s Appeal Panel. The current Texas Workers’ Compensation Statute requires DWC’s staff to resolve disputes between carriers, claimants and, health care providers. (Codified in the TEXAS LABOR CODE Chapters 401-506). The statute is focused on expediting the workers’ compensation claims adjudication process. Although the jury system in district court is still a viable option for all parties, all DWC administrative proceedings must first be exhausted prior to filing a lawsuit at a courthouse.
I. BENEFIT REVIEW CONFERENCE
The Benefit Review Conference (BRC) is the first proceeding in resolving an issue in a workers’ compensation claim. (TEXAS LABOR CODE §§410.021-410.034). Either a claimant, carrier, employer, or medical provider may request a BRC. TEXAS LABOR CODE §410.023. Prior to requesting a BRC, the party requesting the BRC must attempt to resolve the dispute and document that effort. Form DWC-45 is to be completed, along with any supporting documentation, to request a BRC. The DWC is required to schedule the BRC within 40 days of the DWC’s receipt of the BRC request; however, there is little or no recourse if the DWC fails to set a BRC or refuses to set a BRC. 28 TEX. ADMIN. CODE §141.1(h). If DWC determines that the setting of a BRC can be expedited, the BRC may be set with 20 days. 28 TEX. ADMIN. CODE §141.1(h). The BRC will be conducted at a DWC Field Office not more than 75 miles from the injured workers’ residence
The carrier is required to request a BRC by completing form DWC-45, “Requesting for Setting a Benefit Review Conference.” Once represented, a claimant who is not represented by an attorney may obtain a BRC by simply contacting the local DWC field office by telephone. When a carrier files a DWC-45, requesting a BRC, the carrier needs to address all the issues that will be discussed at the BRC. The 28 TEX. ADMIN. CODE §s permit a Benefit Review Officer to refuse the parties from discussing issues that are not included in the DWC-45; however, most Benefit Review Officers will permit other issues to be discussed to potentially avoid another BRC. The claimant, on the other hand, does not need to file any special forms. If a claimant sets a BRC, the carrier’s representative needs to be prepared to discuss any possible issue.
BRCs are usually set for forty-five minute periods. The purpose of the BRC is to attempt to resolve, informally, all pending issues without having to move forward to a Contested Case Hearing. The carrier’s representative and claimant are required to attend. There will also be present a Benefit Review Officer (“BRO”) who presides over the BRC. The employer is given notice of the BRC but the employer is not required to attend, as is the carrier and claimant. If the claimant is not represented by an attorney, then an ombudsman typically assists the claimant with the discussion of the issues.
A. BENEFIT REVIEW OFFICER
The presiding officers for all administrative hearings are DWC employees. The presiding officer at the BRC is a Benefit Review Officer (BRO). A BRO must be an employee of the commission and be trained in the principles and procedures of dispute mediation. TEXAS LABOR CODE §410.022(b). The DWC is charged under this section with maintaining an educational and training program for BROs. A BRO is not required to be a licensed adjuster or attorney.
The Office of Injured Employee Council (OIEC) is a separate, independent state agency but works in conjunction with DWC. OIEC is charged with providing assistant to workers’ compensation claimants; advocate on behalf of injured employees as a class regarding rulemaking by DWC; assist injured employees with contacting appropriate boards for complaints against health care providers; and to assist injured employees with referral to social services, including financial assistant, rehabilitation, and work placement. TEXAS LABOR CODE §404.101. An ombudsman, who is an employee of DWC, is charged with assisting injured workers and persons claiming death benefits to obtain those benefits. TEXAS LABOR CODE §404.151.The ombudsman is required to:
1. meet with or otherwise provide information to injured workers;
2. investigate complaints;
3. communicate with employers, insurance carriers, and health care providers on behalf of injured workers;
4. assist unrepresented claimants, employers and other parties to enable those persons to protect their rights in the workers’ compensation system; and
5. meet with an unrepresented claimant privately for a minimum of 15 minutes prior to any informal or formal hearing.
Persons hired as ombudsmen are required to demonstrate satisfactory knowledge of the Workers’ Compensation Statutes and Rules, demonstrate experience in handling and resolving problems for the general public, possess strong interpersonal skills and have at least one year of demonstrated experience in the field of workers’ compensation. The ombudsman program also includes continuing education requirements as determined by the OEIC. The practical role of the ombudsman is often limited because some BROs conduct the hearing and advise the parties of the strength and weaknesses of their documents, arguments and theories. The ombudsman, at a BRC, generally advises a claimant of the various avenues for further investigation, like requesting medical opinions from a claimant’s treating physician, responding to interrogatories, assisting with the exchange of documentary evidence and the identity of persons with knowledge of relevant facts. An ombudsman will assist with completing motions, request subpoenas and gathering documents for exhibits, including communicating with treating doctors to provide opinions.
C. PURPOSE OF THE BRC
The purpose of a BRC is to provide a non-adversarial, informal dispute resolution proceeding designed to:
1. explain the rights of the prospective parties and procedures necessary to protect those rights;
2. discuss the facts of the claim, review available information to evaluate the claim and discuss the disputed issues; and
3. mediate and attempt to resolve the disputed issue by agreement.
Although a CCH may be scheduled within sixty days of the BRC, either party or the BRO may request another, second BRC and may make suggestions to the parties to obtain additional information; however only 2 BRCs are permitted on any topic. TEXAS LABOR CODE §410.026(b). A BRO may issue an interlocutory order for the payment of all or part of medical benefits or income benefits. TEXAS LABOR CODE §410.032. As a practical matter, an interlocutory order is generally limited to rare or unusual circumstances but still occur.
D. PREPARATION FOR A BRC
If an unrepresented claimant has requested a BRC, the carrier’s representative needs to be prepared to discuss every possible issue. To this end, the claims adjuster should provide a complete copy of the file, including any adjuster’s notes and pay sheets to the carrier’s representative at the BRC. This way, the carrier’s representative has virtually all of the information regarding the claim available at the BRC. 28 TEX. ADMIN. CODE § 141.4 requires that the parties exchange all pertinent information within 14 days of the BRC, or not later than five days before an expedited BRC. “Pertinent information” is generally defined as all information relevant to the resolution of the disputed issue or issues to be addressed at the BRC, including but not limited to:
1. information relating to the employee’s wages;
2. information relating to the employee’s medical condition;
3. the names of the witnesses who will attend the conference.
28 TEX. ADMIN. CODE § 141.4(a). If either party attending a BRC exchange documents at the BRC and not in advance of the BRC, a BRO may reschedule a BRC if the pertinent information has not been submitted timely. TEXAS LABOR CODE §410.026.
E. DESCRIPTION OF THE BRC
A BRC is an informal gathering, and, as such, the BRO may not take testimony. TEXAS LABOR CODE §410.026. Moreover, the BRO is not permitted to make a formal record of the proceeding. However, the BRO may direct questions to an employee, employer or representative of the insurance carrier to clarify issues in dispute. Importantly, since evidence is not presented at a BRC, common law or statutory rules of evidence or procedure are not applicable. TEXAS LABOR CODE §410.027(b). Generally, most BRC’s are scheduled for 45 minutes, although many disputes require substantially more time.
At the beginning of the BRC, the BRO is required to identify the case and introduce the parties. 28 TEX. ADMIN. CODE § 141.5(c). Next, the BRO typically informs the parties of their rights and responsibilities under Texas Workers’ Compensation statute and explains the purpose of the BRC. The BRO will allow each party an opportunity to state its position with regard to the disputed issues. Typically, the party requesting the BRC is asked to proceed first. The BRO may ask questions of the parties, encourage discussion of the disputed issues and answer the parties’ questions. 28 TEX. ADMIN. CODE §141.5(d). A BRO may also caucus individually with each party and encourage the parties to resolve the dispute by agreement. If the parties are able to resolve the issues in dispute, a “Benefit Dispute Agreement” is prepared by the BRO. TEXAS LABOR CODE §410.029(b). If the issues in dispute are not resolved, however, the BRO, near the conclusion of the BRC, shall identify each unresolved issue and summarize each party’s position concerning each issue. TEXAS LABOR CODE §410.031.
F. BRC AGREEMENTS
If the parties can agree to all or some of the issues at the BRC, the statute requires the BRO to prepare a written agreement. The agreement states the issues in dispute and describes the resolution. Each party, their representative and the BRO are required to sign the “Benefit Dispute Agreement” form, DWC-24. The agreement signed by the parties and the BRO are binding. An insurance carrier may be relieved of the binding nature of the agreement if the DWC or a court finds fraud, newly discovered evidence or other good and sufficient cause to relieve the carrier of the effects of the agreement. If a claimant is represented by an attorney, the same standard is applied to set aside the agreement. If a claimant is not represented by an attorney, the agreement can be set aside by a finding of “good cause.” TEXAS LABOR CODE §410.030(b).
G. BRO’S REPORT
If the disputes have not been entirely settled at the BRC, and the issues are being set for a BRC, the BRO is required to prepare a written report, detailing each issue that has not been resolved at the conference. TEXAS LABOR CODE §410.031. This report should be prepared no later than the fifth day after the close of the BRC. 28 TEX. ADMIN. CODE § 141.7(c). The BRO’s report includes:
(1) a statement of each resolved issue;
(2) a statement of each issue raised but not resolved;
(3) a statement of the position of the parties regarding each unresolved issue;
(4) a statement of the procedures required to request a contested case hearing or arbitration and a complete explanation of the differences in those proceedings and the rights of the parties to subsequent review of the determinations made in those proceedings; and
(5) the date of the contested case hearing scheduled.
TEXAS LABOR CODE §410.031(b). This report is typically the first exhibit introduced by the Hearing Officer at the CCH. It is used as the statement of issues that establishes the scope of the evidence and testimony at the CCH.
The BRC and CCH are conducted at the local DWC field offices. Presently, there are 21 different field offices throughout the state.1 Unless good cause exists, the BRC and CCH generally take place at the field office within 75 miles of the claimant’s residence at the time of injury. Texas Labor Code §410.005. If the claimant lives within 75 miles of multiple field offices, the BRC or CCH will be scheduled at the nearest field office. For claimants that have moved out of State, the BRC and CCH are typically conducted at the field office closest to the claimant at the time of the injury unless other arrangements are made. For example, an out ofstate claimant who has retained an attorney in Fort Worth would likely be able to have the BRC in Fort Worth.
II. BENEFIT CONTESTED CASE HEARING
A Benefit Contested Case Hearing (CCH) is an administrative trial before a Hearing Officer employed by DWC. The Hearing Officer makes findings of facts and conclusions law and decides the disputed issues after considering the evidence. The Hearing Officer prepares a written report of the findings, which is called a Decision and Order.
1. Hearing Officer's Authority
If the parties do not mutually agree to arbitration, a CCH will take place upon completion of the BRC. TEX. LAB. CODE ANN. § 410.151. A Hearing Officer conducts the CCH. TEX. LAB. CODE § 410.152. A Hearing Officer must be licensed to practice law. TEX. LAB. CODE § 410.152. The Hearing Officer is authorized to issue subpoenas, rule on motions, issue orders, direct parties to appear at pre-hearing conferences in order to resolve evidentiary or procedural issues, establish time limits for conducting a hearing, administer all oaths, rule on the admissibility of evidence, determine the relevancy, materiality, weight and credibility of evidence, request additional evidence, take official notice of the law of Texas or other jurisdictions, examine parties and witnesses, recess, postpone or dismiss a hearing, and take any other action necessary to facilitate the orderly conduct and disposition of the hearing. See 28 TEX. ADMIN. CODE § 142.2. It should be noted that the parties are prohibited from having ex parte communication with a Hearing Officer regarding any fact, issue, law or rule relating to a CCH, unless the communication is in written form and distributed to all of the parties. TEX. LAB. CODE ANN. § 410.167. However, this rule does not preclude ex parte communications with respect to procedural matters. Id.
2. Including Additional Issues at the CCH
The issues listed as being unresolved by the BRO in his written report—which is occasionally referred to as the "Statement of Disputes"—are the only ones to be discussed at the CCH. TEX. LAB. CODE § 410.151(b). Additional issues, other than those addressed in the report, may be discussed at a CCH only if:
(1) both parties consent; or
(2) if there is good cause for not raising the issue at the BRC.
28 TEX. ADMIN. CODE § 142.7(c) indicates that a party may respond to a BRO's report within twenty days of receiving it. This is a factor frequently considered by Hearing Officers in determining whether good cause exists for including additional issues. For example, after a BRC report is prepared, the carrier's representative, if wishing to have additional issues included, should send a letter to the Hearing Officer (with a copy of the letter being forwarded to the claimant or the claimant's representative), addressing the specific issue or issues that were not included in the report. 28 TEX. ADMIN. CODE §§ 142.4, 142.7(c).
TEX. LAB. CODE § 410.155 permits a party to move for a continuance if there is good cause. However, the DWC has implemented a procedure whereby the parties at the BRC agree to a specific date for the CCH. Hearing officers generally will not find good cause for scheduling conflicts.
For a carrier disputing compensability and not paying benefits, a continuance will rarely be granted. In addition to establishing good cause, a movant orally requesting a continuance during a hearing must demonstrate that the continuance "will not prejudice the rights of the other party" and that the movant has exercised due diligence. 28 TEX. ADMIN. CODE 142.10(c)(3). Since an "abuse of discretion" standard is used by the Appeals Panel in reviewing a Hearing Officer's denial of a continuance, the Appeals Panel will rarely reverse the Hearing Officer's decision. However, in Appeals Panel Decision No. 130073, the Appeals Panel reversed a Hearing Officer who denied a continuance to a claimant who decided, at the CCH, to request a designated doctor examination on the extent of injury.
4. Record of CCH
The Hearing Officer is required to electronically record the hearing, including all arguments and testimony. TEX. LAB. CODE § 410.164. If a tape is damaged or the tape recorder malfunctions, upon appeal, the Hearing Officer will have to reconstruct the record, including ordering all witnesses at the initial CCH to testify again. Appeals Panel Decision No. 121650. After the conclusion of the CCH, the DWC will provide a copy of the CCH testimony on a DVD and a court reporter can be retained to transcribe the testimony given at the CCH. Either party may, however, request that the proceeding be transcribed by a court reporter. TEX. LAB. CODE § 410.164(b). The court reporter's transcript will become the "official record" of the CCH. The party requesting that a court reporter transcribe the CCH is required to bear the cost for the court reporter’s services. It should be noted that the original transcription of the CCH testimony should be provided to the DWC with a copy purchased by the party requesting the court reporter's presence. 28 TEX. ADMIN. CODE § 142.14(c).
1. Exchange of Exhibits and Witnesses
The CCH is to be held not later than sixty (60) days from the date of the BRC. 28 TEX. ADMIN. CODE § 142.6(a). As such, with less than sixty days transpiring between the BRC and the
CCH, discovery is often greatly limited. The first aspect of "discovery" is the initial exchange of information. TEX. LAB. CODE § 410.160 requires that the parties exchange all medical records, medical reports, witness statements, photographs, and other documents that the parties intend to offer into evidence at the CCH, plus identify the name and the address of any witness known to the parties to have knowledge of relevant facts. The DWC Rules require that this exchange be completed within fifteen (15) days after the BRC. 28 TEX. ADMIN. CODE § 142.13(c). The Appeals Panel has construed this requirement to mean that documentation that was exchanged at a BRC need not be exchanged again within these fifteen days after the BRC. Appeals Panel Decision No. 950831. If a party fails to exchange the documents within fifteen days after the BRC or when the documentary evidence becomes available, the documents themselves are to be excluded from evidence unless good cause for the failure to exchange is found by the Hearing Officer. TEX. LAB. CODE § 410.161. If a Hearing Officer admits an exhibit that was not exchanged within these fifteen (15) days and does not expressly find good cause for doing so, the admission of the exhibit constitutes reversible error. Appeals Panel Decision No. 951396. In determining whether a party has good cause for exchanging evidence after the 15-day period, the HO must apply a two-prong test. First, the HO must consider whether the party exercised due diligence in obtaining the evidence. Appeals Panel Decision No. 042996. Second, the HO must determine whether, after obtaining the evidence, the party promptly provided the evidence to the other party. Appeals Panel Decision No. 001090. Whether good cause exists is a question of fact for the HO to decide. 28 TEX. ADMIN. CODE § 142.13; Appeals Panel Decision No. 000291.
Interrogatories may be forwarded to the other party. TEX. LAB. CODE ANN. §410.159. The interrogatories must be presented no later than twenty days before the CCH, unless otherwise agreed. 28 TEX. ADMIN. CODE § 142.13(d). Answers to the interrogatories must be returned no later than five days after a party receives the interrogatories themselves. Id. The interrogatories are twelve separate questions predetermined by the DWC, with an additional four questions to be drafted by the carrier's representative. 28 TEX. ADMIN. CODE § 142.19. The DWC has promulgated a similar set of interrogatories for claimants to send to carriers. Unlike the discovery process implemented under the Texas Rules of Civil Procedure in district court, the only sanction available under the discovery rules for failure to timely respond to an interrogatory is exclusion of a witness or exhibit. TEX. LAB. CODE ANN. § 410.161. The exclusion of evidence for failing to answer the interrogatories is rarely affirmed by the Appeals Panel. The injured employee received interrogatories from the insurance carrier and objected to the form of the question. The insurance carrier did not file a motion to compel. At the CCH, the insurance carrier objected to all of the injured employee’s testimony and timely exchanged exhibits based on the injured employee’s refusal to answer the interrogatories. The Hearing Officer sustained the insurance carrier’s objection and excluded the evidence and injured employee’s testimony. The Appeals Panel reversed the Hearing Officer’s decision citing TEX. LAB. CODE ANN. §410.158, which states that “discovery . . . may not seek information that may readily be derived from documentary evidence described in TEX. LAB. CODE ANN. §410.160. Answers to discovery . . . need not duplicate information that may readily be derived from documentary evidence . . .” TEX. LAB. CODE ANN. §410.158(b). The Appeals Panel remanded the case for the Hearing Officer to admit and consider all exhibits which were properly and timely exchanged and to allow the injured employee to testify. Appeals Panel Decision No. 002932-s.
Depositions are permitted, but only after the Hearing Officer finds good cause for such an allowance; however, a hearing officer is limited to allow a healthcare providers to be deposed on written questions only. TEX. LAB. CODE ANN. § 410.158. The claimant, other parties or witnesses (other than the aforementioned healthcare providers) may be deposed orally or on written questions; however, Hearing Officers have rarely found good cause for taking these depositions. On the other hand, good cause for obtaining information from healthcare providers by deposition on written questions is routinely granted. This is due to the fact that clarification frequently needs to be obtained from these providers regarding issues concerning their credentials, qualifications and opinions.
4. Other Forms of Discovery
Since the Texas Rules of Evidence do not apply to the admissibility of evidence at the CCH, other types of informal discovery are permitted. For example, recorded statements, if signed by the witness (preferably before a notary public) are admissible. TEX. LAB. CODE ANN. § 410.165. Hearsay documents are also admitted; therefore, affidavits of custodians of records establishing the elements for the business record exception to the hearsay rule are not needed. Additionally, if a witness favorable to a particular party has "skeletons in the closet," a party would be permitted to admit a transcription or tape recording of that testimony, without an opportunity for the opposing party to cross-examine the witness. The Hearing Officer may also grant subpoenas for documents or other tangible things to be presented or for witnesses to appear at the CCH. 28 TEX. ADMIN. CODE § 142.12. In cases in which disability is in dispute, records from the Texas Employment Commission may provide relevant information refuting disability. If the Hearing Officer issues a subpoena for Texas Employment Commission records, the carrier's representative must also send an authorization to the claimant, which the latter must sign. DWC Appeals Panel No. 92095 (April 27, 1992). A subpoena need not be served by a certified process server or law enforcement officer. 28 TEX. ADMIN. CODE § 142.12. 28 TEX. ADMIN. CODE § 142.12(e) permits a person at least 18 years of age, other than a party, to serve a subpoena. See also TEXAS RULES OF CIVIL PROCEDURE 176.5(a) (applying the same rule).
As discussed above, conformity with the Texas Rules of Evidence is not necessary in a CCH. TEX. LAB. CODE ANN. § 410.165. The Hearing Officer is the sole judge of the relevance and materiality of the evidence offered and the weight and credibility to be given to any evidence. Id. In fact, only three objections should be considered by a Hearing Officer:
(1) the document has not been exchanged;
(2) the witness' identity has not been exchanged; and
(3) the exhibit or testimony is immaterial and/or irrelevant.
D. Description of CCH
Some Hearing Officers may initially discuss the issues off the record and consider any preliminary motions. Some remain on the record at all times. Hearing Officers will require the parties to exchange exhibits and consider objections at the beginning of the CCH. Each party is asked to exchange an exhibit list. Before getting on the record, the Hearing Officer frequently asks for stipulations, clarifies issues, and entertains pre-trial motions, including invoking "the rule." Once on the record, the Hearing Officer will briefly describe the nature of the hearing, disclose to unrepresented claimants that the Hearing Officer does not represent the claimant, and then state the issues in dispute and stipulations. The injured employee, who usually bears the burden of proof, will be permitted to make the first opening statement. The carrier's representative may make an opening statement after the conclusion of the claimant's opening statement or reserve the carrier's opening statement until the beginning of its case-in-chief. After the opening statements, the claimant is permitted to call any witnesses and introduce any documentary evidence as an exhibit. Then, after the claimant rests, the carrier's representative is permitted to call its witnesses and introduce its exhibits. Afterwards, the claimant is provided an opportunity for rebuttal. The parties are then permitted a closing statement. Most CCH's are completed within two hours; however, where numerous witnesses testify, a CCH may last longer.
A CCH is much shorter than a trial since there is neither voir dire nor a jury charge to discuss. Also, there are few pre-trial motions or objections to testimony or exhibits. Moreover, the admissibility of written statements saves a considerable amount of time, since the statement
is included as an exhibit and generally not read into the record. After the conclusion of the evidence, the Hearing Officer may leave the record open and request from the parties or witnesses additional evidence. 28 TEX. ADMIN. CODE § 142.2(10). This procedure is commonplace when clarification is needed from a designated doctor with regard to maximum medical improvement or impairment rating opinions.
If a party fails to attend a scheduled CCH, that party commits a Class C administrative violation, which carries a penalty not to exceed $1,000. TEX. LAB. CODE ANN. § 410.156(b). However, undoubtedly the more punitive “sanction” to which the absent party is exposed is that the Hearing Officer is permitted to conduct the CCH without the party and ultimately rule on the issues in dispute in that party's absence. The Hearing Officer, however, must conduct a "show cause” hearing to determine if the absent party can demonstrate good cause for failing to attend the CCH. Appeals Panel Decision No. 92055. If the absent party fails to establish good cause but appears at the rescheduled CCH, the absent party may still present evidence at the “show cause” hearing.
E. Decision and Order of Hearing Officer
After the record is closed, the Hearing Officer shall issue a written decision. 28 TEX. ADMIN. CODE § 142.16. Importantly, the Hearing Officer shall not disclose his ruling at the conclusion of the testimony. Since the Hearing Officer is required to review and study all the exhibits introduced into evidence, it would be an error for the Hearing Officer to make a ruling immediately upon the conclusion of the evidence.
The decision and order of the Hearing Officer shall include findings of fact and conclusions of law and shall contain the latter’s specific determination of whether benefits are due. The Hearing Officer is required to file its decision with the Division of Hearings within ten days after the close of the hearing. The Division of Hearings, within seven days of its receipt of the decision and order, shall mail a copy to the claimant, carrier and employer. 28 TEX. ADMIN. CODE § 142.16. After the decision and order have been distributed to the parties, the Hearing Officer may not reconsider the decision or reopen the CCH.
III. APPEALS PANEL
A. Effect of Hearing Officer's Decision and Order
The decision of the Hearing Officer is final in the absence of a timely appeal by a party to the Appeals Panel. Moreover, during the pendency of this appeal, the decision of the Hearing Officer is binding. TEX. LAB. CODE § 410.169. If the decision of the Hearing Officer has not been appealed, it becomes final on the 16th day after the date on which it was received from the Division of Hearings. 28 TEX. ADMIN. CODE § 142.16 (f). Failure by the carrier to pay benefits in accordance with the final order within twenty days of the date on which it becomes final is a an administrative violation. Thus, since the effect of the order is binding, whether or not the decision and order of the Hearing Officer is appealed, the carrier would be required to begin payment of benefits in accordance with the decision and order of the Hearing Officer within twenty days of the date on which the order was received by the Division of Hearings. TEX. LAB. CODE § 410.208.
B. General Information
The Appeals Panel, which consists of three appeals judges, shall conduct the administrative appeals proceeding. TEX. LAB. CODE ANN. § 410.201. The appeals judges must be licensed to practice law in Texas, and they are not permitted to conduct BRC's or CCH's. Additional exhibits and testimony are not permitted to be presented to the appeals panel. Also, the parties may not appeal an issue unless it was ruled upon by the Hearing Officer. TEX. LAB. CODE ANN. § 410.203.
C. Description of the Appeals Proceeding
A party dissatisfied with the decision of the Hearing Officer is permitted to file a written request for appeal not later than fifteen business days after that party receives the decision and order. TEX. LAB. CODE ANN. § 410.202. Workers' compensation carriers generally "receive" the decision and order of the Hearing Officer on the date stated on the cover letter from the Division of Hearings, since the Division places a copy of the decision and order in the box of the carrier's Austin representative, which is located at the DWC control office in Travis County. It should be noted that the date on which the carrier's attorney or adjuster receives the appeals panel decision is not the date from which the appeal deadline runs. The claimant, however, is presumed to receive the decision and order of the Hearing Officer within five days of the date on which it was mailed to the claimant or the claimant's representative. 28 TEX. ADMIN. CODE § 102.4(f).
2. Request for Review
The party appealing the decision of the Hearing Officer must file a written request for review, stating the specific issues being appealed and the factual and legal rationale for the error of the Hearing Officer. TEX. LAB. CODE § 410.202. Any issue not requested to be reviewed by the appeals panel will become final. 28 TEX. ADMIN. CODE § 142.16(f). Thus, a party should exercise extreme care in preparing a Request for Review to the Appeals Panel, since the factual findings and conclusions of law not appealed to the Appeals Panel will become absolute. Indeed, a district court does not have jurisdiction over any issue found by the Hearing Officer that is not included in the Request for Review to the Appeals Panel. TEX. LAB. CODE ANN. § 410.302.
3. Response Brief
The other party shall respond to the appellant's request for review to the appeals panel. 28 TEX. ADMIN. CODE § 143.4. The response must be filed in the Commission's central office in Austin no later than fifteen days after the appellant's request was received by the respondent. Id. The response may be mailed on or before the 15th day after the appellant’s request for review is received; however, either the Commission's central office or the other party must receive the Response to the Request for Review not later than the 20th day after the date of the Commission’s receipt of the appellant's request. Id. Importantly, failure to file a timely response only affects the respondent by resulting in the exclusion of the reply brief from the Appeals Panel's review and consideration.
4. Appeals Panel Decision
The Appeals Panel is required to consider the record made of the CCH, including all exhibits and testimony, the written Request for Review, and the Response to the Request for Review filed by the appellee. The appeals panel may affirm the decision of the Hearing Officer, reverse the decision of the Hearing Officer or render a new decision, or reverse and remand the case for further consideration and evidentiary development by the Hearing Officer. TEX. LAB. CODE ANN. § 410.203. The Appeals Panel, however, may only remand the decision of the Hearing Officer one time. Id. Thus, after the Appeals Panel has remanded an issue for further clarification, the Appeals Panel, on subsequent appeal, must only affirm or reverse.
Finally, the appeals panel shall issue its written decision within thirty days of its receipt of the request for review by the appellant. TEX. LAB. CODE ANN. § 410.204(a). Less than 5% of the Appeals Panel Decision results in a reversal of the Hearing Officer’s decision.
D. Finality of the Appeals Panel Decision
If the Appeals Panel does not issue a written decision by the 45th day after the Request for Review was filed by the appellant, the Hearing Officer's decision becomes final and constitutes the decision of the Appeals Panel. 28 TEX. ADMIN. CODE § 143.5(b). However, for the purposes of seeking judicial review, the date on which the Appeals Panel's decision is filed with the Division of Hearings, the aggrieved party has forty days to file a petition in district court. Id. To seek judicial review, by filing suit in district court, the petition must be filed no later than the 45th day after the date on which the decision of the Appeals Panel was filed. The decision of the Appeals Panel still remains binding during the pendency of the appeal in district court. TEX. LAB. CODE ANN. § 410.205(b).
The Texas Workers' Compensation Statute has several provisions regarding arbitration. See TEX. LAB. CODE ANN. §§ 410.101 - 410.121. It should be noted that if the parties agree to submit their dispute to arbitration after the BRC, the decision of the arbitrator is final and may not be appealed. TEX. LAB. CODE § 410.104 (c). However, a court of competent jurisdiction may vacate the arbitrator's award, on a finding that the award was procured by corruption, fraud, or misrepresentation; the decision of the arbitrator was capricious; or the award was not within the jurisdiction of the Commission. See TEX. LAB. CODE ANN. § 410.121. No arbitrations has been pursued since 2005. Considering the difficulty in overturning an arbitrator's award and the high probability that the arbitrator's award will become final, very few parties elect to submit disputed issues to arbitration.
V. JUDICIAL REVIEW
A. General Information
A party may seek judicial review by filing suit not later than the 45th day after the date on which the decision of the appeals panel was filed with the DWC Division of Hearings. TEX. LAB. CODE ANN. § 410.252(a).
The petition must be filed in the county in which the employee resided at the time of the injury or, in the case of an occupational disease claim, in the county in which the employee resided on the date disability began. TEX. LAB. CODE § 410.252(b). The Texas Workers’ Compensation Act is silent as to the proper venue for an out-of-state claimant who is seeking workers' compensation benefits in Texas. Based upon the strict construction of the statute, however, a suit appealing the Appeals Panel decision regarding an out-of-state claimant should be filed in the claimant's county of residence when the disability first arose, even if that county is in another state. See id. A copy of the petition should be filed "simultaneously" with the district court, the DWCappeals clerk, and the opposing party. TEX. LAB. CODE ANN. § 410.253. This provision can be satisfied by including a certificate of service and "simultaneously" mailing a copy of the petition to DWC, opposing party and the district clerk.
B. Intervention by the Attorney General's Office
DWC may intervene in any judicial proceeding appealed to district court. TEX. LAB.CODE § 410.254. The attorney general's office, as the state's attorney, may also file an intervention in order to support the appeals panel decision.
C. Limitation of Issues
The scope of a trial in district court is limited to the issues decided by the Appeals Panel and timely appealed to the court. Thus, a party may appeal one part of the Appeals Panel decision and accept other parts as final. As such, the pleadings must specifically set forth the specific determination of the appeals panel that the party is appealing. TEX. LAB. CODE § 410.302.
D. Burden of Proof
The party appealing the decision to district court has the burden of proof by a preponderance of the evidence. Thus, if the appeals panel found that the claimant had an injury in the course and scope of employment, the carrier would have the burden at court to prove that the claimant did not in fact suffer such an injury by a preponderance of the evidence. Id.
E. Evidence in District Court
1. Appeals Panel Decision Is Considered
The fact finder, whether a jury or the trial court, is to be informed of the Appeals Panel decision on each disputed issue. TEX. LAB. CODE ANN. § 410.304. The court is to "inform the jury in the court's instructions, charge, or questions to the jury of the commission appeals panel decision on each disputed issue…that is submitted to the jury." Further, the actual decision and order of the appeals panel may be admissible. ESIS, Inc. v. Johnson, 908 S.W.2d 554, (Tex. App.—Fort Worth, Sept. 27, 1995, no pub.). The Fort Worth Court of Appeals, in Johnson, ruled that the Commission's records were admissible, and thus, the actual decision of the appeals panel, as part of the DWC's file, is admissible. See also TEX. LAB. CODE § 410.306(b). Even though the Texas Supreme Court has ruled that the fact finder is not required to accord any particular weight to the appeals panel decision in Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504, 520 (Tex. 1995), the Beaumont Court of Appeals found that instructing the jury that the decision has no weight is error. Liberty Mutual Insurance Co. v. Camacho, 228 S.W.3d 453 (Tex. App. – Beaumont 2007, pet. denied)
2. Judicial Review Regarding Issues of Compensability or Entitlement to
If a party is disputing the amount of income benefits paid or whether a claim is compensable, the evidence is generally not limited. TEX. LAB. CODE ANN. § 410.306(a); Garcia, 893 S.W.2d at 530. Thus, a witness who does not testify at the CCH, or exhibits that were not introduced at the CCH, although the witness or exhibits may have been available at the time of the CCH, may be part of the evidence in district court. As such, with the exception of the change of the burden of proof and the court's instruction to the jury regarding the appeals panel decision, the district court trial is a "modified trial de novo." Garcia, 893 S.W.3d at 530.
3. Judicial Review Regarding Impairment Rating
If a party is disputing the date on which maximum medical improvement was certified or the value of the whole body impairment rating, the evidence in district court shall be limited to the evidence presented at the CCH. TEX. LAB. CODE § 410.306(c); Garcia, 893 S.W.3d at 529. Therefore, when a carrier is preparing for a CCH regarding the date of maximum medical improvement and the whole body impairment rating, special care should be taken in preserving evidence in anticipation of a subsequent trial on the matter. For example, in order for the opinion of an expert to be introduced in district court, the expert must be qualified. See TEX. R. CIV. EVID. 702. Generally, DWC will not require evidence demonstrating the competency or qualifications of an expert since any medical report signed by a doctor is admissible. TEX. LAB. CODE § 410.165(b). However, in order to anticipate the possibility of a claimant's appeal of the CCH and appeals panel decisions to the district court, the carrier should present all of the evidence necessary to demonstrate the competency of any experts whose testimony supports the carrier's contentions. Therefore, with regard to a CCH involving the impairment rating or maximum medical improvement date, the carrier should present "courthouse-ready" evidence (i.e., evidence that complies with the Texas Rules of Evidence and Civil Procedure). The evidence regarding the extent of the impairment may not be limited to the evidence presented at the CCH, however, if the court, after a hearing, finds that there is a substantial change of condition to the claimant. TEX. LAB. CODE § 410.307. If the parties are not able to stipulate as to whether or not the claimant's condition is substantially changed, the court is required to request the designated doctor who was appointed by the DWC to verify the substantial change of condition, if any. Id. The finding of a designated doctor shall be presumed to be correct, and the court shall base its finding regarding the substantial change of condition on the medical evidence presented by the designated doctor, “unless the preponderance of the other medical evidence is to the contrary.” Id. It should be noted that whether there is, in fact, a substantial change of condition is a question of law and, thus, is not to be presented to the jury. TEX. LAB. CODE ANN. §§ 410.307(b) - (e).
F. Suit to Enforce
If a workers' compensation carrier refuses or fails to comply with the final order and decision of the DWC, a claimant may bring suit in the county of his residence or in the county in which the injury occurred in order to enforce the award. TEX. LAB. CODE § 410.208. In addition to the judgment, the claimant would be entitled to a “penalty equal to 12% of the amount of benefits recovered in the judgment and interest, with reasonable attorney’s fees for the prosecution and collection of the claim.” Id. Also, a person who fails to comply with the Commission's order and decision within twenty days of the date the decision becomes final commits an administrative violation.
The statute permits a court to approve a settlement made by the parties after judicial review of the appeals panel decision is sought, “and before the court enters judgment.” TEX. LAB. CODE § 410.256. A settlement, however, may not provide for:
(1) payment of any benefits in lump sum; or
(2) the limitation or termination of a claimant's right to medical benefits. Id.
If the parties attempt to settle the claim in violation of the TWCA, the settlement would likely be void and subject the carrier to an administrative penalty. Settlement permitted but creative settlements are needed to comply with the statutory mandate. Generally, the parties are only permitted to try the case or non-suit the issue appealed to the district court.
H. Attorneys’ Fees
If the insurance carrier seeks judicial review of an Appeals Panel decision regarding compensability or eligibility for income or death benefits, and the carrier fails to overturn the Appeals Panel decision, the carrier is liable for the claimant’s attorneys’ reasonable and necessary fees and expenses. TEX. LAB. CODE § 408.221(c). The fees awarded to claimant’s attorneys has been substantial.
1 DWC field offices are located in Abilene, Amarillo, Austin, Beaumont, Corpus Christi, Dallas, Denton, El Paso, Fort Worth, Houston (two field offices), Laredo, Lubbock, Lufkin, Midland/Odessa, San Angelo, San Antonio, Tyler, Waco, Weslaco, and Wichita Falls.