shutterstock_320663342

January 1, 1991 is a red-letter date for many Texas workers and their attorneys. This was the date workers’ compensation changed drastically in Texas. Gone were the days of wheeling and dealing at pre-hearing conferences, followed occasionally by routine litigation cases – deposition of claimant, supervisor, eye-witness and doctor. Then, generally the parties settled in mediation or at the courthouse steps. Those days were well known for settlements, and fairly clear cut medical and money benefits to claimants.

The “new” law became a rallying cry as attorneys across the state stopped representing workers injured on or after January 1, 1991. The reasons for abandoning this area of the law were generally that the law was too technical and thus a legal malpractice trap for the unwary and that the law restricted fees making the practice a loosing proposition. Insurance defense attorneys cite the same reasons for getting out of the comp business. Defense firms downsized as work dried up because adjusters could handle most of the hearings since claimants generally were underrepresented.

Now, twenty-five years later we still have the “new law”, however more attorneys are entering this field of law. And with the continual up-dating of rules by both the Texas Department of Insurance – Division of Workers Compensation, and the interpretation of rights by the Texas Courts it is significant learning curve for attorneys.

Keep in mind that a governmental agency oversees workers comp and two things they love are its: FORMS and ACCRONYMS. You must know and use both. You can find most of the information you need on the Texas Department of Insurance, Division of Workers Compensation’s website.

The first acronym to learn is DWC (or Division) for the Texas Department of Insurance, Division of Workers Compensation. And form numbers are found in the bottom left-hand corner of the documents.

For example, the DWC 41 Notice of Injury must be filed by claimant within one year of the injury. Too many injured workers, wrongfully, believe that their employer or doctor filled it out for them, or if they are getting benefits there is no need to also file the form. The web-site also has DWC 42 which is for death claim beneficiaries, and both forms are available in Spanish. A new version of the DWC 42 was just released in November 2015.

Perhaps the main reason that attorneys should never try to “just help out” someone on a claim is there are simply to many mistakes you can make: some may defeat the claimant’s rights others may expose you to an administrative violation (including fines). Unfortunately, from my perspective, claimants – and perhaps adjusters – wait too long to get an attorney involved. From the claimant’s perspective, he or she doesn’t want attorney fees taken out of the weekly check so they wait until the indemnity benefits are gone, and they have usually missed a critical deadline, and then complain no attorney will help them.

While a related state agency: Office of Injured Employee’s Counsel (OIEC) provides free ombudsman help for unrepresented claims, I’ve seen attorneys focus on the real issue at dispute which resulted in appropriate compromises early in the process, saving fees for their client. Under the new law, an employer’s rights have been elevated and they may need to consider legal representation early. They have the right to be represented at all hearings and to receive notices of all DWC actions.

File the proper forms and do it timely.

Most disputes involve issues of the extent of injury. While most insurance adjusters know the requirements and time limits, claimants often wait too long for anything to be done. Even so, dispute resolution for the last seven years has resulted in a large body of law on issues of was a dispute timely filed. For example, a carrier has sixty days in which to dispute a claim. If no timely dispute, they have accepted the claim, although they can dispute certain aspects later. The statute allows the 60 day rule to be extended if the carrier has “newly discovered evidence which could not have been discovered earlier.” This exemption is not an easy one to claim in that the carrier the burden of proof that the grounds for dispute could not have been determined even if it had properly investigated the claim. The carrier is again held to a strict deadline for Supplemental Income Disputes (SIBs) disputes. Once a claimant submits an application for SIBs, the carrier has only ten (10) days to dispute entitlement.

Maximum Medical Improvement and Impairment Rating Disputes

Another major area of dispute has to do with Maximum Medical Improvement (MMI) and Impairment Ratings (IR). The first valid impairment rating becomes final unless PROPERLY disputed within 90 days. Both the carrier and claimant have the right to dispute MMI and impairment ratings. If the claimant has not seen a Designated Doctor, the proper way to dispute an impairment rating is by filing a DWC 32 and Request a Designated Doctor examination. If the claimant had previously seen a Designated Doctor, the only way to dispute the impairment rating is by filing a DWC 45 Request for Benefit Review Conference, and the form must be properly filled out and accepted by the Division within the 90 days.

Basically, the dispute resolution process under the “new law” consists of a Benefit Review Conference, followed by a Contested Case Hearing, then Appeals Panel and ultimately Judicial Review. To move forward to each of these stages, the proper paperwork must be filed timely. Before a Benefit Review Conference (known as a BRC) will be scheduled a DWC 45 must be filed. This request identifies the issues and certifies all informal attempts to resolve the dispute have been exhausted. A DWC employee will scrutinize this request, and it is not unusual for TWCC to call one or both sides to investigate dispute resolution attempts. A BRC is not a matter of right and everyone must satisfactorily show that a BRC is really necessary. The hearing officer is probably not an attorney. The meeting is informal and each side briefly states their position, sharing documents to back up their argument and the hearing officer is expected to caucus with the parties to help resolve the issues. One or more issues can be framed for the dispute process and they can be handled at one time or as the issue actually arises. For example, a claimant may never have a BRC, or only one for a specific issue while another may have BRC after BRC as each issue arises. Supplemental Income Benefit issues are decided quarterly, and on some cases SIBs disputes can arise four times a year, often with decisions not yet final on one quarter when the next quarter is set for hearing.

At a BRC, the hearing is either cancelled, continued, rescheduled (usually a tactical move to resolve issues economically) or an agreement is reduced to writing or the matter proceeds to a Benefits Contested Case Hearing (called a CCH but occasionally seen written by the DWC as a BCCH). In case you don’t care for acronyms, you are in the wrong area of the law. The slang use of the acronyms is so deep rooted, few people will stop to help you unless you can toss around the appropriate lingo at least some of the time.

The CCH is scheduled during the BRC with all parties required to sign acknowledging the date and time and that continuances are not allowed. Through the years, the no continuance policy has gotten stronger and stronger. Within a few weeks, the parties receive a written report outlining the issues, everyone’s position on the issues and the Benefit Review Officer’s (BRO) recommendation. This report will be made an exhibit by the CCH hearing officer at the next state of dispute resolution.

A CCH is rather like a bench trial in terms of procedure. he statute and rules dictate mandatory and elective discovery. The time limits are extremely abbreviated. For example, you have fifteen (15) days after a BRC to send to the other side documents and disclosures that to a litigator looks like a disclosure statement with “knowledgeable list” and “expert list” and production of documents. If prescribed interrogatories are sent, you have five days to answer discovery. Unless you get the interrogatories just before a CCH, any reputable attorney will be gracious about extending the response date. Pretty much full disclosure is required, and routinely given. A refreshing rule, in my opinion, is that if one party produces a document, the other side doesn’t have to which means parties are not simply photocopying everything in sight or risk having evidence excluded. The time and money saved for this common sense rule is one the court systems need to consider. The goal is no surprises, not to see how much a party can spend in photocopying expense. On the other hand, a document not produced by anyone prior to the hearing will almost always be excluded.

A CCH hearing officer will be licensed attorney. The fairness of the hearing varies from officer to officer and is the luck of the draw. Formal rules of evidence don’t apply, which means you don’t have the expense of proving up business records. However, some evidence rules may apply depending on the hearing officer. Hearsay may be of concern to one officer while another may find hearsay objections to be merely irritating interruptions. Relevancy will more likely be a winning argument. The CCH protocol allows opening and closing statements, the right of cross examination and the admission of evidence. The hearing officer will have exhibits and also has the right to question the witnesses. Most field offices schedule CCHs in two hour blocks although can last a few minutes or for more than a day. Within a few weeks, everyone receives a written decision. The carrier must pay according to the decision within 20 days.

It is this stage that attorneys are most often utilized which may explain the bench trial atmosphere. Legal arguments – remember, first cite Appeal Panel Decisions, then the statute, then DWC rules, and lastly, case law – are especially effective. The hearing officer as the trier of fact has the sole right and responsibility to determine the credibility of witness. Rarely will the CCH decision be overturned for a difference of interpretation over the credibility and weight given to the evidence. The hearings are audio taped, although a party may request (and routinely granted) the right to have a court reporter present. The party requesting the court reporter must arrange for the reporter and pay the costs. A copy of the transcript must be provided at no charge to the DWC.

The next step of dispute resolution, is the Appeal Panel. Much like an appellate court, attorneys in panels of three in Austin review the case on written briefs only. Oral arguments are not allowed. The form for appealing is varied. Some attorneys present a full appellate brief. Others in a simple letter format point out the issues in dispute. A re-hash of the CCH will not advance your cause; supported arguments with legal authority (remember, start with AP Decisions) will be considered. The written Appeals Panel Decision will often discuss at length the evidence obvious the judges having reviewed the tape or transcript as well reviewing all the evidence whether or not discussed in the underlying CCH decisions.

The Appeals Panel can affirm, remand or reverse and render. The decision sent to the parties will have the style of the case. However, the decisions as reported to the public with take out all identifying names. Initials are often used and even the location of the hearing will be deleted. References to the decision use an appeal case number and date.

Within 45 days of the Appeals Panel Decision, any party may appeal for judicial review by filing a petition in district court with service on the opposing side and on the DWC. While the claimant generally had the burden of proof at all the administrative dispute resolution levels, on judicial review the party appealing has the burden of proof. In the case of a carrier request for Judicial review, if a claimant prevails, the carrier in most cases has to pay attorney fees and expenses. An exception is for governmental or public employees after the Supreme Court in 2008 found the State of Texas had sovreign immunity and didn’t have to pay. Otherwise, attorney fees are paid by each party. Judicial Review is limited to specific issues brought forward from the Appeals Panel. Only issues decided by the Appeals Panel can be litigated, and those issues must be specifically identified in the petition for judicial review. Both sides may request Judicial Review. This stage of dispute resolution is not trial de novo resulting in most cases being affirmed. A judge is required to charge the jury with how the Appeals Panel decided on the issue. It is up to the judge’s discretion on how this is accomplished: a judge may put a simple one sentence instruction in the charge, or may include the entire Appeals Panel decision. In all other ways, Judicial Review is just like any other civil lawsuit.