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At the recent State Bar of Texas Advanced Workers’ Compensation Seminar, attorney Matt Lewis, reviewed the DWC Appeals Panel decisions from August of 2018 to July of 2019. Lewis noted that the vast majority of the Appeals Panel Decisions focused on correcting clerical errors or misstatements of evidence and facts in Administrative Law Judge Decisions. The decisions were remanded or rendered by the Appeals Panel in situations where ALJs: failed to make a determination on complete periods of disability; provided inconsistent determinations within the D&O; failed to make findings of facts and conclusions of law on all issues litigated; misstated fact despite stipulations to those facts; failed to allow a Carrier to get an RME after the ALJ ordered a new DD examination; and, adopted MMI/IR certifications that failed to rate the entire compensable injury or rated conditions that were not compensable.
In the months of July and August of 2019, the Appeals Panel wrote four decisions.
To Rate a Hernia, There Must be a Palpable Defect. In APD 191070, the ALJ adopted the designated doctor’s certification of MMI/IR, which included 1% for bilateral inguinal hernia using Class 1 in Table 7 of the AMA Guides. However, the designated doctor’s narrative report explained that Claimant’s hernia repair was holding well and he had no palpable defect or protrusion. The Appeals Panel noted that each class listed in Table 7 of the AMA Guides requires a palpable defect in the supporting structures of the abdominal wall to justify rating under that table. The case was remanded for the ALJ to instruct the DD to rate the compensable injury in accordance with the AMA Guides.
Injury While Walking Across a Public Street is Likely Not Compensable under the Access Doctrine. In APD 190929, the Appeals Panel discussed, among other things, whether an injury was compensable under the access doctrine where the claimant was walking across a public street when he was struck by a truck. Under the “coming and going” rule, an injury that occurs while an employee is going to or coming from work is not compensable. However, there are several exceptions to this general rule including the “access doctrine.” Under the “access doctrine,” an injury is compensable if the employer has evidenced an intention that the access route or area that should be used by employees in going to or from work is so closely related to the employer’s premises as to be fairly treated as part of them.
The claimant in this case was injured when he was struck by a truck while crossing a public street on foot. The ALJ determined the injury was compensable, but failed to identify under which of the four alternate theories advanced the ALJ relied to determine the injury was compensable. The Appeals Panel remanded to the ALJ for further development of the case, but cautioned that the Supreme Court has held that “no case has extended the ‘access exception’ out into the public streets where other members of the public are subject to the same hazard.”
ALJ Cannot Add Issue if it is Not Raised at the BRC or Actually Litigated. In APD 190915, the Appeals Panel reversed and struck an ALJ’s determination that the Carrier did not specifically contest compensability based on the claimant’s failure to timely file a claim for compensation within one year. The issue was not certified out of the BRC and neither party asked to add the issue at the CCH. In fact, the issue was never mentioned at the CCH. The ALJ added the issue after the CCH without notifying the parties he was doing so. The Appeals Panel held that the issue of the carrier’s waiver was not actually litigated and it was an abuse of discretion to add the issue.
Rebutting the Compensability Presumption in Firefighter Cancer Case. In APD 191065, the ALJ determined that a self-insured rebutted the presumption that a firefighter developed pancreatic and liver cancer during the course and scope of his employment. The self-insured showed that a risk factor, accident, hazard or other cause not associated with the firefighter’s work caused his cancer, relying on a doctor’s report. In testimony at the CCH, the doctor opined that the cancer was related to family history. The Appeals Panel disagreed with the ALJ that the presumption of compensability was rebutted by the self-insured.
The self-insured’s rebuttal evidence included the firefighter’s own testimony that his father had kidney cancer. However, no specific evidence was offered linking the father’s kidney cancer to a neuroendocrine tumor, which is one of the conditions with which the firefighter had been diagnosed. Moreover, the self-insured’s doctor did not identify the cause of the firefighter’s cancer, but rather, the doctor simply voiced his contention that the cancer was related to family history citing an absence of the cancer among those identified in the firefighter literature.
The Appeals Panel reversed and rendered a decision that the self-insured did not rebut the presumption. Following this decision, it appears that to rebut the presumption, the Appeal Panel may require some evidence of genetic testing to determine if the firefighter possesses any of the genetic syndromes which have been identified to cause pancreatic neuroendocrine tumors.
Copyright 2019, Stone Loughlin & Swanson, LLP