Dispute Resolution Under The “New” Workers’ Compensation Law©

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.

Three Business Documents to get you started.

So. You are ready to start a business. Your head is full of ideas, your future is bright. You are ready to conquer the world and set it on fire. That’s great… but do you know what KIND of business you will be? What is your tax structure? Does your name fit all the criteria for the Secretary of State? These questions open up lots of details, and they all need specific attention. Before you can open your doors, you need to get your business on the correct footing in order to ensure a successful venture.

The first step is CERTIFICATE OF FORMATION, and it is critical that this step is correct. Will you be a corporation, an LLC, or an LLLP? This is a great place to get legal help involved, because we are talking about your hard earned property and assets that will need protection. The Texas Secretary of State’s office has forms that satisfy the state requirements for filing a Certificate of Formation for nearly every type of entity. Get very familiar with the information the SOS provides. It is full of great information and answers a multitude of commonly asked questions on the formation of businesses and provides the documents for all of them.

However, that is only the beginning. Your business name is everything, and you will be filling out a NAME CERTIFICATE. Did you know that you have to choose a company name that complies with the Secretary of State’s requirements? You want a name that stands out and describes your business, but did you know the Banking Commissioner could object to a word in your business title, and you would have to file paperwork against that objection in order to use that name? Can I protect my name so that someone else cannot use it? Can I register my business name as a trademark? Business names can be headaches, don’t be afraid to ask for legal help when filing these documents.

Then, another very important piece of business that needs to be implemented are the there are ARTICLES OF INCORPORATION. Your businesses’ “articles of incorporation” act as a charter to establish the existence of your corporation in your state, and set forth certain basic information about the new business. Filed as a single document with the Secretary of State’s office, the articles of incorporation describe the fundamental identifying and operating characteristics of your corporation. Once filed and approved by the state, the articles of incorporation legally create the corporation as a registered business entity within the state.

Included in the Articles of Incorporation, at a minimum will be the following information:

  • Your new corporation’s principal place of business, which is the name and address.
  • The corporate purpose -usually stated in broad language saying you aren’t breaking the law.
  • Name and address of your corporation’s registered agent, who is the person or place authorized to physically accept delivery of certain legal documents (including lawsuits) on behalf of your corporation.
  • Stock information–which includes the number of shares the corporation is authorized to issue, designation of classes of shares, and value of each share.

The articles of incorporation will also usually identify the incorporators of the corporation, who started the incorporation process and are often responsible for signing the articles of incorporation prior to filing with the state. If the articles name the director(s) of the new corporation, the director(s) may also be required to sign the articles of incorporation before they are filed.

Whether you write them yourself, or consult an experienced business attorney for help, your new business’s articles of incorporation do not necessarily need to be complicated or extensive. If you decide to prepare them yourself, your articles of incorporation will most likely be accepted for filing in your state as long as they contain the minimum information identified above. But you likely need not create the articles completely from scratch, as most SOS websites contain pre-printed articles of incorporation forms that your business can complete in a relatively short amount of time.

Once your new corporation’s articles of incorporation are written and signed, they are ready for filing with your state’s SOS office. In all states, the filing of the articles of incorporation requires the payment of a corresponding filing fee, which is dependent upon the state of incorporation.

Whew. It’s a lot, but if starting a business was easy, everyone would do it.

What Is Negligence?

Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm. Sounds simple enough, right? Wrong. Common sense alone may tell who is legally liable. However, establishing or proving negligence and liability in a legal setting can be more complicated. Negligence can be based on what someone did, or on what they didn’t do. This applies to individual people as well as companies and corporations.

In most, if not all negligence cases, the burden of proof is always present. Through civil litigation, if an injured person proves that another person acted negligently to cause their injury, they can recover damages to compensate for their harm.  If a case for negligence is proven, that proof can potentially entitle the injured plaintiff to compensation for injury to their body and damages to property, mental well-being, financial status, or even intimate relationships.  However, because negligence cases are very fact driven, a general definition does not completely explain the concept of WHEN the law will require one person to compensate another for losses caused by accidental injury.  In addition to this, the law of negligence in common law is only one aspect of the law of liability. Although resulting damages must be proven in order to recover compensation in a negligence action, the nature and extent of those damages are not the primary focus of negligence cases.

Common law jurisdictions will possibly differ slightly in the exact classification of the elements of negligence, but the elements that must be established in every negligence case are specific and they are: breach, duty, causation, and damages. Negligence can be conceived of as having just three elements–conduct, causation and damages. More often, it is said to have four add punitive damages; or five (duty, breach, actual cause, proximate cause, and damages). Each scenario would be correct, depending on how much specificity someone is seeking. 

Shall We Proceed?

In the United States, The plantiff must prove each element to win his case. The defendant may request some sort of judicial resolution early on if there is a very unlikely chance that said plantiff can prove on of the elements. Doing this would prevent the case from going to a jury. The ability to resolve a negligence case without trial is very important to defendants. If the specific limits provided for by the four elements are unproven, any plaintiff could claim any defendant was responsible for any loss, and subject that person to a very costly court battle.

The elements give the defendant a chance to test a plaintiff’s accusations before trial, and thus providing a guide to the jury to decide whether the defendant is or is not liable, after the trial. Whether the case is resolved with or without trial very much depends on the particular facts of the case; and the ability of the parties to appropriately present the issues to the court. The duty and causation elements in particular, give the court the best opportunity to take the case from the jury, because they directly involve questions of policy. The court can find that regardless of any disputed facts, the case can be resolved as a matter of law from undisputed facts, because two people in the position of the plaintiff and defendant simply cannot be legally responsible to one another for negligent injury.

On appeal, the court reviewing a decision in a negligence case will analyze in terms of at least one of these elements, depending on the outcome of the case and the question on appeal. For example, if it is an appeal from a final judgment after a jury verdict, the reviewing court will look to see that the jury was properly instructed on each contested element, and that the record shows sufficient evidence for the jury’s findings.