NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
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Gone are the days where a party can count on adding an issue to be adjudicated at a CCH at the last minute, without first raising the issue at the BRC or properly and timely requesting to add the issue after the BRC and before a CCH. At least, maybe. In a recent decision, the Appeals Panel found no abuse of discretion when the Hearing Officer found “no good cause” to add an extent of injury issue requested by the Claimant. The issue was not raised at the BRC, the parties did not consent to adding the issue, and the Hearing Officer thus did not find good cause to add the issue. Citing Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238 (Tex. 1985) and Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986), the Appeals Panel found no abuse of discretion on the part of the Hearing Officer in denying the request to add the issue.
Hopefully this will prevent the all-to-often scenario in which a Claimant attorney or ombudsman will move for a continuance at the very last minute (after the Carrier representative has fully prepared for and traveled to the CCH), citing an extent of injury issue that he neglected to either raise at the BRC or timely request to be added after receipt of the Benefit Review Officer’s report.
As always, whether a party will be allowed to raise an issue at the CCH (or request a continuance on the basis of raising a new issue) will remain a fact-specific, case-by-case matter. Nevertheless, the Appeals Panel has given Hearing Officers a decision that supports their not having to automatically grant a continuance at the eleventh hour. --Erin Shanley, Stone Loughlin & Swanson, LLP