II. HEARINGS, WHAT DO THEY ENTAIL?

II. HEARINGS, WHAT DO THEY ENTAIL? Timothy U. Stanford DOWNS & STANFORD, P.C. 501 Elm Place, Suite 200 Dallas, Texas 75202 Telephone: (214)748-7900 Facsimile: (214)748-4530

A. HOW TO OBTAIN THE GOALS YOU SEEK - 2 -

The most important aspect in trying to prevail at any level before the Texas Workers Compensation Commission is preparation. In order to obtain the goals you seek, a number of aspects have to be analyzed. First, identify the issues to be discussed throughout the entire hearing process. The Commission utilizes a three (3) tier hearing process: 1) Benefit Review Conference; 2) Contested Case Hearing; 3) Appeal to the Commission s Appeals Panel. By organizing the issues you will focus your preparation and garner the evidence necessary to support your client s position. The issues are the driving force behind the hearing process. The Benefit Review Conference is an informal discussion of the actual issues, whereas a Contested Case Hearing is a quasi administrative trial with sworn testimony and introduction of evidence on the disputed issues. Focus on your ultimate objective. What is in the best interest of your client? The answer is the same whether you are representing the injured worker, the employer, the insurance carrier or a self-insured entity. Focusing on the issues early on and reviewing the evidence prior to the Benefit Review Conference will help clarify whether the evidence is sufficient to support your client s case or whether any additional investigation and/or evidence is warranted. Identifying the issues must take place prior to the first hearing. If the issues are unclear, contact the local field office handling the file and ask them to check the file to determine if the issues are identified. Likewise, call opposing counsel or the Carrier to informally discuss the issues before the hearing. Review the request for scheduling of the Benefit Review Conference. This to will identify why the hearing - 3 -

is being requested. With time constraints and busy schedules, this is sometimes difficult; however, communication is the key to the resolution of any claim and effective claims handling. A well-presented case will be the most effective tool in obtaining the relief you seek. In order to be properly prepared, the evidence must be reviewed prior to the first hearing. Walking into the Benefit Review Conference is not the time to first be reviewing the file, the medical evidence or witness statements. If there are witnesses to the incident, interview them ahead of time and obtain a written statement. If the issue is compensability or causation, review the medical records to see if the evidence is sufficient to support your client s case. If not, a delay may be warranted to allow either party to garner further evidence. To get the Commission to schedule a hearing in the busier field offices takes a considerable amount of time. Ideally, a hearing could be scheduled within one or two weeks of the request. This is not the case. It takes longer. When you appear for the first hearing that is the time to be prepared, not reviewing your file for the first time and then going out to obtain additional medical evidence, clarification from the treating physician or trying to garner additional evidence. The Benefit Review Officer, the Ombudsman, the Disability Determination Officer and the other employees of the Commission will appreciate the fact that you have presented a concise, well prepared packet of information. This includes organizing the evidence before the hearing. Presenting an unorganized stack of papers which have not been either put in chronological order or separated by physician or issue detracts from the time needed to discuss the disputed issues. - 4 -

Present your evidence in a well established and concise manner and you will see that the Commission will be receptive. Separate the medical records and the TWCC filings. One of the most important documents in the claim file is the Payment of Compensation or Notice of Refused/Disputed Claim, commonly called the TWCC-21.. Make sure all of the TWCC-21s have been identified and can be easily located during the hearing. Likewise, with regard to the injured worker, make sure the, Employee s Notice of Injury or Occupational Disease and Claim for Compensation (TWCC-41) and the pertinent medical records supporting the compensability of the claim are easily at your disposal. Legal research is also warranted. Be prepared to present the pertinent section of the Texas Labor Code, the Associated Rules of the Texas Workers Compensation Commission or Appeals Panel Decisions supporting your case. Make a copy of the rule and highlight the pertinent provisions on which your are basing your position. Bring a copy of your legal research for the opposing party, as well as for the Commission. This, too, will show that you have done your homework and are prepared to argue the aspects of the law. The Appeals Panel Decisions can be accessed through the Texas Workers Compensation Commission s web site. Their Internet web site is www.twcc.state.tx.us. - 5 -

B. WHAT TO EXPECT - 6 -

This section will address what to expect of the different levels of the hearing process. I will address what basically occurs at each level from the Benefit Review Conference through the Contested Case Hearing and review by the Appeals Panel. I. BENEFIT REVIEW CONFERENCE The Benefit Review Conference is a Means to Resolve Disputes. (410.021-410.034) (Rules 141.1, 141.3, 141.4, 141.6) (These rules establish methods of requesting Benefit Review Conference, penalty for no show, information exchanged at the Benefit Review Conference and interlocutory order.) A. Purpose of the Benefit Review Conference 410.021 1. The Benefit Review Conference is an informal conference involving the Claimant, Carrier representative, and the employer (if they desire to be there) a. Usually set for a 30 minute conference b. Benefit Review Officer (Benefit Review Officer) mediates the conference 2. The Benefit Review Officer's purpose is to try to obtain an agreement concerning any issues involved without the necessity of a Benefit Contested Case Hearing, which is much more formal in nature and carries significant legal consequences. B. Activities at Benefit Review Conference 1. The party requesting the hearing gets the opportunity to explain their position concerning the issues, then the other party is given the opportunity to respond. - 7 -

2. The Benefit Review Officer mediates the conference, and drafts a Benefit Review Agreement if the parties can agree on a resolution of the claim. The Agreement is legally binding on the parties. 3. The Benefit Review Officer has the right to "caucus" with individual parties in an attempt to come to an agreement. a. Benefit Review Officer will meet with both parties individually. b. Benefit Review Officer cannot disclose information given in the caucus to the other party without approval. 4. No testimony is given at Benefit Review Conference. The employer representative can choose to be present and give input into the proceedings. - not to be an admission 5. Benefit Review Officer can attempt to encourage either party to drop its dispute if it becomes evident there is no basis for dispute, or it is evident a party will not prevail at a Benefit Contested Case Hearing. Neither party is required to resolve issues at a Benefit Review Conference. C. Benefit Review Officer responsibilities 410.026, 141.5(c) 1. If claim is to be resolved, Benefit Review Officer shall draft the Benefit Review Agreement and sign off on the agreement along with other parties. 2. If no agreement, Benefit Review Officer must determine if case needs to be reset to enable the parties to obtain additional information, or if it needs to go on to a Benefit Contested Case Hearing. 3. If it goes to a Benefit Contested Case Hearing, Benefit - 8 -

Review Officer must define the issues to be addressed at the Benefit Contested Case Hearing.( 410.031, Rule 141.5 ) D. Interlocutory Orders a. Issues must be framed by the Benefit Review Officer b. Benefit Review Officer must also frame each party's position on each issue. c. Benefit Review Officer must also give recommendation as to each issue. d. Benefit Review Officer required in their report to also identify documents relied upon or exchanged by the parties. 1. Order issued by the Commission ordering the Carrier to perform some activity within five days of receipt of order.( 410.032, Rule 141.6) a. Can order Carrier to initiate benefits to the Claimant. Must identify the type of benefit. b. Can also order Carrier to suspend benefits to the Claimant. 2. If interlocutory order issued, case must go to a Benefit Contested Case Hearing to resolve issues. 3. Interlocutory orders subsequently overturned by the Benefit Contested Case Hearing Officer are eligible for reimbursement from the Subsequent Injury Fund. a. If an order is issued and later overturned, you must submit the order and the Benefit Contested Case Hearing Decision to the Subsequent Injury Fund for reimbursement. 410.037-9 -

b. Reimbursement occurs once per year, at the end of October. 4. Failure to abide by the express provisions of the interlocutory constitute a violation under the Act and is punishable through administrative violations against the Carrier. Rule 141.6(d) - 10 -

II. BENEFIT CONTESTED CASE HEARINGS The Benefit Contested Case Hearing (410.151-410.169) (Rules 142.3, 142.11, 142.12, 142.13) A. Purpose of the Benefit Contested Case Hearing 1. Benefit Contested Case Hearing is an administrative proceeding with legal consequences, and issues are decided by an administrative law judge assigned to hear all evidence. 2. Sworn testimony is taken, and documents are introduced into evidence. 3. Both the employer and the Carrier have the right to present evidence, cross-examine witnesses, and introduce witness testimony into the record at the Benefit Contested Case Hearing. 4. The decision and order of the Benefit Contested Case Hearing Officer are final and binding pending review by the Appeals Panel or judicial review. B. Actions Prior to the Benefit Contested Case Hearing 1. Because the hearing is formal in nature, documents, witness identities, and other information intended to be introduced into evidence must be exchanged prior to the Benefit Contested Case Hearing. 410.160, Rule 142.13(c) 2. Evidence exchange and discovery is conducted pursuant to Rule 142.13 of the Associated Rules of the Texas Workers' Compensation Act. 3. All documents must be exchanged and identification of - 11 -

persons with knowledge of facts within 15 days after the Benefit Review Conference, or as soon as they become available. 410.160(4), Rule 142.13(c)(1) 4. Parties can exchange interrogatories, which are largely standard in nature, and must be answered within five days of receipt of same. 410.159, Rule 142.13(d), Rule 142.19 5. Documents not timely exchanged or witnesses not timely identified will be excluded from evidence at the Benefit Contested Case Hearing, absent a clear showing of good cause for the failure to exchange and identify. 410.161 6. Witness depositions allowed under limited circumstances, and request must be made to the Benefit Contested Case Hearing Officer in writing, identifying the witness to be deposed and why his testimony is necessary, and be filed with the Commission at least 10 days prior to the hearing. 410.158(a)(2), Rule 142.13(e) C. Duties of the Hearing Officer 1. Authorized to issue subpoenas, rule on requests, issue orders, establish time limits on the hearing, administer oaths and other duties. 410.163, Rule 142.2 2. Position is essentially that of judge, and he rules on all material issues in dispute at the hearing. 410.163, Rule 142.2 D. Benefit Contested Case Hearing rules and procedures 1. No ex parte communications allowed between any party and the hearing officer regarding any substantive issue in dispute at the Benefit Contested Case Hearing. 410.167, Rule 142.3 2. Benefit Contested Case Hearing will be set no later than 60 days from the date of the Benefit Review Conference. - 12 -

410.025(b), Rule 142.6(a)(1) 3. Disputes not listed in the statement of dispute will not be considered by the hearing officer. 410.151(b) 4. Parties may submit a response to disputes identified as unresolved in the Benefit Review Officer report and recommendation. Rule 142.7(c) a. Must be in writing b. Describes the party's position on the disputed issue c. Be delivered to all parties. 5. Benefit Contested Case Hearing's can be held by summary procedure, using witness statements, summaries of evidence, medical reports, agreements and stipulations. Rule 142.8 6. Parties may enter into stipulations, resolve issues by agreement, or resolve all issues by settlement prior to the Benefit Contested Case Hearing. 410.166, Rule 142.9 E. Handling of Benefit Contested Case Hearing 1. In most cases, Claimant has the burden of proof on all disputed issues concerning the claim. 2. Party with the burden of proof is allowed to open the hearing. 3. Opening statements are given by the parties, then evidence and testimony is introduced. 4. The hearing officer rules on objections, and ensures hearing is handled in professional manner. 5. At close of evidence, parties are given opportunity to - 13 -

give closing statements, after which the hearing officer closes the hearing. 6. At the close of the hearing, a hearing on the issue of attorney's fees is held, and an attorney has the opportunity to explain any fees which exceed statutory guidelines. 7. If a party does not appear at the Benefit Contested Case Hearing, the hearing officer may allow the attending party to put on evidence, especially if this will lessen inconvenience to witnesses appearing to testify. F. Hearing Officer's Duties after Benefit Contested Case Hearing 410.168, Rule 142.16-14 -

1. After the record closes, the hearing officer issues a decision on benefits, in writing, noting findings of fact and conclusions of law, a determination of whether benefits are due, and must be signed by the Hearing officer. 2. Decisions are to be filed with the Division of Hearings no later than 10 days after the record closes. 142.16(c) 3. No later than seven days after filing the decision, the TWCC shall furnish to the parties a file stamped copy of the decision, and a statement detailing the manner and time period for filing appeal with the TWCC. 142.16(d) III. APPEALS PANEL Appealing a Case to the Appeals Panel. (410.201-410.256) (Rules 143.3 and 143.5) A. Standard of Review by the Appeals Panel, 410.203/204, Rule 143.2 1. As a general rule the Appeals Panel will not disturb findings of fact of the hearing officer 2. Appeals Panel, however, will reverse a hearing officer's interpretation or application of law. B. The erroneous omission of evidence by a Benefit Contested Case Hearing Officer will only be reversible by the Appeals Panel when the error was harmful or reasonably calculated to cause and probably did cause rendition of an improper judgment. C. No particular form for the Request for Review has been articulated, and it can be drafted in almost any manner, so long as it rebuts the decision of the Hearing officer. - 15 -

D. Deadlines for Filing Request for Review - 16 -

1. Party filing request a. Must be filed in Austin not later than the 15th day after receipt of the Hearing Officer's decision. 410.202(a), Rule 143.3(a)(3) b. Must also be filed with the opposing party on the same day. 410.202(a), Rule 143.3(a)(4) c. Presumed to be timely filed if mailed on or before the 15th day after receipt of the hearing officer's decision, and received by the commission not later than the 20th day after the date of receipt of the Hearing officer's decision. 410.202(a), Rule 143.3(c) 2. Party responding to Request for Review a. Filed in Austin (Central Office) not later than the 15th day after request received by respondent. 410.202(b) b. Filed with opposing party on same day. c. Same rule as (c) above applies to mailing to Commission. E. Deadline for Appeal Panel to Render Decision 1. Appeals Panel must issue a written decision not later than the 30th day after the date the response was filed with the TWCC. 410.204(a), Rule 143.5(a) 2. If no response filed by the 30th day, the hearing officer's decision becomes final, constitutes the decision of the Appeals Panel, and for the purposes of establishing the time for seeking judicial review, deemed filed on that date. 410.204(c), Rule 143.5(b) 3. Decision of the Appeals Panel not appealed for judicial - 17 -

review becomes final on the 41st day after the date the decision was filed 410.205(a), Rule 143.5(d) - 18 -

4. Decision of the Appeals Panel appealed to judicial review is binding on the parties for the duration of judicial review. 410.205(b), Rule 143.5(e) F. Qualifications of the Appeals Panel members 1. Panel of three, must be licensed to practice law in Texas. 410.201(a) and (b) 2. Cannot conduct a Benefit Review Conference or Benefit Contested Case Hearing. 410.201(c) IV. JUDICIAL REVIEW Judicial Review of Workers' Compensation Claim. (410.251-410.256) A. Time line for Filing suit 1. Party seeking judicial review must file suit not later than the 40th day after the decision of the Appeals Panel was filed with the Division of Hearings. 410.252(a) 2. Must be filed in the appropriate court in the county where the employee resided at the time of the injury. Can be filed in either district court or county court. 410.252(b) B. Filing with the Commission 1. Copy of the petition shall be filed with the court and with the commission. 410.253 Note: This filing is mandatory but no longer jurisdictional according to a recent Texas Supreme Court Decision. 2. Commission has the right to intervene in any judicial proceeding. 410.254-19 -

C. Limitation of Issues 1. A party in judicial review is limited to issues decided by the Appeals Panel. 410.302 2. Pleadings must specifically set forth the determinations of the Appeals Panel by which the party is aggrieved. 410.302 D. Standard of Review 1. De Novo 410.255(a) 2. Substantial evidence test 410.255(b) E. Burden of Proof-Party appealing the decision of the Appeals Panel has the burden of proof by a preponderance of the evidence. 410.303 F. Consideration of the Appeals Panel Decision 1. In a jury trial, the court, before submitting the case to the jury, shall inform the jury in the court's instruction, of the Appeals Panel decision on each disputed issue submitted to the jury. 410.304(a) 2. In a trial without a jury, the court in rendering its judgment shall consider the decision of the Appeals Panel. 410.304(b) G. Evidence in Judicial Review 1. Evidence adduced as in other civil trials. 410.306(a) 2. Commission will make available a certified copy of the Commission's record. All facts and evidence contained in the record are admissible to the extent allowed under TRCP. 410.306(b) 3. Except in limited circumstances (see below), evidence of - 20 -

extent of impairment shall be limited to that presented to the Commission. 410.306(c) H. Impairment Rating Disputes: Substantial Change in Condition Admissible 410.307(a) 1. Evidence of the extent of impairment is not limited to that presented to the Commission if the court, after a hearing, finds that there is a substantial change in condition. The court's finding of substantial change can only be based upon the following: a. Medical evidence from the same doctor or doctors whose testimony was given to TWCC b. Newly acquired evidence c. Evidence which has come to party's knowledge since the Benefit Contested Case Hearing. d. Evidence that would probably present a different result if admitted into evidence at trial. 2. If substantial change is disputed, court shall require the DD in the case to verify the substantial change in condition, if any. His report will be presumed to be correct unless the preponderance of the other medical evidence is to the contrary. 3. Substantial change must be confirmable by recognized laboratory or diagnostic tests or signs confirmable from physical examination. 4. New medical evidence of the extent of impairment must be from and is limited to the same doctor or doctors who made the impairment ratings previously. 5. The court or jury shall adopt one of the impairment ratings made by the doctors who initially treated the Claimant. - 21 -

I. Effect of Judicial Review Decision A. De Novo Review 1. If the decision of the Appeals Panel is reversed on judicial review, the Carrier is entitled to reimbursement from the Subsequent Injury Fund for any monies expended pursuant to Commission Order. 2. Commission will not accept default judgments in judicial review for reimbursement, but may accept summary proceedings, such as Motions for Summary Judgment. 3. Decision from Court in this state carries more weight than Appeals Panel decisions, so long as the TWCC has been given the right to intervene in the suit. B. Substantial Evidence Standard: The substantial evidence standard is governed by chapter 2001 Government Code subchapter G. Subchapter G is captioned Contested Case in Judicial Review. That section requires that review under the substantial evidence rule or undefined scope of review is as follows: 1. If the law authorizes review of a decision in a contested case under the substantial rule or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to the agency discretion but; a. may affirm the agency decision in whole or in part; and b. shall reverse or remand the case for further - 22 -

proceedings if substantial rights of the appellant have been prejudiced because of the administrative findings, inferences, conclusions, or decisions are: 1. in violation of a constitutional or statutory provision; 2. in excess of the agency s statutory authority; 3. made through unlawful procedures; 4. affected by other error of law; - 23 -

5. not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or 6. arbitrarily or capricious as characterized by abuse of discretion or clearly unwarranted exercise of discretion. 2. The procedures in a substantial evidence rule or undefined scope rule: 2001.175. a. After service of the petition on the state agency, the agency shall send the reviewing court the original or certified copy of the entire record of the preceding under review within the time permitted for filing an answer or within additional time as allowed by the court. The record shall be filed with the clerk. b. The record may be shortened by stipulation of all parties to the review proceedings. c. The court may assess additional costs against a party who unreasonably refuses to stipulate to limit the record unless the party is subject to a rule under 2001.177 requiring payment of all costs of record preparation. The court may require or permit later corrections or additions to the record. d. A party may apply to the court to present additional evidence. That party must convince the court that the additional evidence is material and that there were good reasons for the failure to present it in a proceeding before the state agency, the - 24 -

court may order that additional evidence be taken before the agency - 25 -

on conditions determined by the court. The agency may change its findings and decisions by reason of additional evidence and file the additional evidence and any changes, new findings, or decisions with review in court. e. The party seeking judicial review shall offer and the reviewing court shall admit the state agency record into evidence as an exhibit. f. The court shall conduct the review sitting without a jury and is confined to the agency record, except when the court may receive evidence of procedural irregularities alleged to have occurred before the agencies that are not reflected in the record. 3. A petition initiating judicial review. 2001.176: a. The petition must be filed within 30 days of the date on which the decision is final and appealable. b. Unless otherwise provided by statute, it must be filed in Travis County District Court, and served on the state agency and each party of record in a proceeding before the agency. c. The filing of the petition vacates the state agency decision for which trial de novo is the manner of review authorized by law, but does not affect the enforcement of an agency decision for which another manner of review is authorized. 4. Costs: 2001.177: The state agency by rule may - 26 -

10. Judgments and Settlements require a party who appeals a final decision in a Benefit Contested Case Hearing to pay all or part of the costs of preparation of the original or certified copy of the record. 3. 410.257 -- Judgment after Judicial Review 1. The judgment entered by the court on judicial review of an Appeals Panel Decision must comply with all appropriate provisions of the law. 2. The section may not provide for payments of benefits in a lump sum except as provided under 408.128 regarding commutation of impairment income benefits or the limitation or termination of the Claimant s right to medical benefits. 3. A judgment resolving an issue of impairment cannot be entered before the date the Claimant reaches MMI. 4. The judgment under this section may not order reimbursement for the subsequent injury fund. 5. A judgment based upon default or an agreement of the parties does not constitute a modification or reversal of an Appeals Panel Decision awarding benefits for the purposes of 410.205 (recovery from the subsequent injury fund). 6. A judgment that, on its face, does not comply with this section is void. 7. This section only applies to a judgment on judicial review regarding a proceeding initiated on or after September 1, 1997. 2. Notification of the Commission of proposed judgments - 27 -

and settlements. 410.258 a. Filing proposed judgments with the Commission. i The party who initiated the proceeding must file a proposed judgment or settlement made by the parties to the proceeding, including a proposed default judgment, with the executive director of the Commission. - 28 -

ii The judgment or settlement must be filed with the Commission not later than the 30 th day before the date on which the court is scheduled to enter the judgment or approve the settlement. 1. The proposed judgment or settlement must be mailed to the executive director by certified mail return receipt requested. b. Intervention by the Commission. The Commission may intervene with regard to the judgment or settlement under the previous section not later than the 30 th day after the date of receipt of the proposed judgment or settlement. i. The commission shall review the proposed judgment or settlement to determine compliance with the appropriate provisions of the law. ii. iii. iv. If the Commission determines the proposal is not in compliance with the law, the Commission may intervene as a matter of right in the proceeding not later than the 30 th day after the date of receipt of the proposed judgment or settlement. The court may limit the extent of the Commissions intervention as described in subsection iv below. If the Commission does not interfere before the 31 st day after its receipt of the proposed judgment or settlement, the court shall enter the judgment or approve the settlement if the court determines if the proposed judgment or settlement is in compliance with all appropriate provisions of the law. - 29 -

v. If the Commission intervenes in a proceeding, the Commission shall inform the court of each reason the Commission believes the proposed judgment or settlement is not in compliance with the law. This court shall give full consideration to the information provided by the Commission before entering a judgment or approving a settlement. c. A judgment entered or settlement approved without complying with these provisions, is void. d. This section applies only to a settlement or judgment on judicial review regarding a proceeding initiated on or after September 1, 1997. Proceedings before that date are not effected. 3. 410.256: Court approval of Settlement. 1. The claim or issue in a judicial review cannot be settled contrary to the provisions of an Appeals Panel Decision issued on the claim or issue unless a party to the proceeding has filed for judicial review. A trial court must approve a settlement made by the parties after the judicial review of an award is sought and before the court enters judgment. 2. The court cannot approve a settlement except on a finding that: 1. the settlement accurately reflects the agreement between the parties; 2. the settlement adheres to all appropriate provisions of the law; and - 30 -

3. under the law and facts the settlement is in the best interest of the Claimant. 3. A settlement may not provide for 1. payment of any benefits in a lump sum except as provided in 408.128 (commutation of impairment benefits) or - 31 -

2. the limitation or termination of a Claimant s right to medical benefits. 4. The settlement or agreement that resolves an issue of impairment cannot be made before the Claimant reaches maximum medical improvement. 5. A party proposing a settlement before judgment is entered by the trial court may petition the court orally or in writing for the approval of the settlement. 6. Settlement of a claim or issue under this section does not constitute a modification or reversal of the Appeals Panel Decision awarding benefits for the purpose of 410.205 (recovery from the subsequent injury fund). 7. Settlement of a claim or issue must be in compliance with all appropriate provisions of the law including notification and approval of the proposed judgment or settlement under 410.258 set forth above. This settlement is void if it does not comply with this section on its face. Note: Any proceeding initiated on or after September 1, 1997 is specifically subject to the requirement to notify the commission of all judgments so that the Commission may have time to approve or disapprove of same under 410.258. - 32 -

C. HOW TO BEST PRESENT YOUR SIDE OF THE ISSUE - 33 -

In order to effectively present your side of the issue, after you identify the specific issues, focus on the goal you seek. Is there a possible resolution? Is there an alternative means to resolve the case rather than going through the entire hearing process? There are only a limited number of issues argued before the Commission. Most of the disputed issues involve the of compensability of the injury, medical causation for an extent of injury, disputes over qualifications for supplemental income benefits, maximum medical improvement and impairment rating and disputes over disability. Understanding the issues will allow you to prepare your evidence. Organize your evidence as it pertains to each issue. This will allow the Commission to focus on your evidence while you are explaining your position. Present the law, rule and applicable Appeals Panel decisions supporting your case. Remember, the Benefit Review Conference is slated for 30 to 45 minutes. A detail discussion of the evidence or argument of the law will not take place. If there is sensitive information or evidence that would cause an unnecessary disruption of the hearing, present it to the Benefit Review Officer during the private caucus. You can explain the sensitive nature of any evidence to the Benefit Review Officer. Remember, you must exchange that evidence or it will not be admissible at the Contested Case Hearing. - 34 -

Being prepared is the best way to present your side of the issue. If the issue involves a dispute of maximum medical improvement or an impairment rating, read all of the reports in question. Prepare an outline of the dates of maximum medical improvement and the different impairment ratings. Make sure the impairment rating includes all the applicable body parts. If there is impairment based upon loss of range of motion, double check the range of motion findings in comparison with the straight leg raising test to determine whether the validity criteria has been met. Understanding the range of motion under the AMA guidelines is a key component to impairment rating disputes. If the case proceeds to a Contested Case Hearing, prepare your evidence in the most favorable light to your position. Pre-mark and identify the documents. Arrange your witnesses to tell their side of the story in the most logical sequential manner. The Hearing Officer routinely hears two (2) cases a day. The evidence must be presented in a logical fashion. Meet with your witnesses prior to the Contested Case Hearing. This meeting serves two (2) purposes. First, you can ascertain the witnesses credibility and clarify their testimony. Second, you can explain what will take place during the hearing. This simple meeting helps put the witness at ease when they testify. It is important for the witness to have a general understanding of what will happen during the Contested Case Hearing. - 35 -

Preparation and organization of the evidence in a logical sequence are the two most beneficial tools in presenting your side of the case. - 36 -

D. EVIDENTIARY ISSUES AND HOW TO HANDLE THEM - 37 -

Legal conformity to the Texas Rules of Civil Evidence is not followed by the Commission. If the evidence has been exchanged with the other party and the witness identified, the Hearing Officer will admit the evidence. Rule 142.13(c) requires each party to exchange any evidence sought to be used at the Contested Case Hearing. This includes the identity and location of any person with knowledge of relevant facts, including witnesses. If a party seeks to introduce evidence that was not exchanged, they must present evidence establishing good cause for the failure to exchange the evidence. Good cause is not specifically defined by the Commission. The determination of good cause is within the discretion of the Hearing Officer. Hearsay evidence is not admissible in a court of law, but it is admissible at a Contested Case Hearing. Appeals Panel Decision No. 941552. Written statements containing hearsay testimony are also admissible. However, an unsigned witness statement or transcript of a recorded statement is not admissible if a proper objection is lodged. Appeals Panel decision No. 960662. The Commission believes it is the better practice to refuse to admit into evidence unsigned, unauthenticated transcriptions of telephone interviews/recorded statements where there is a proper objection. If a party does not object, then there is no issue. Written witness statements and transcripts can be verified in two ways. First, have the person who gave the - 38 -

statement read and sign the document. Second, have the person who transcribed the statement verify that the transcript is a true and accurate transcript. - 39 -

Because of the time constraints during the Contested Case Hearing, the parties routinely have witnesses testify telephonically. The Hearing Officer may not categorically refuse to allow telephonic testimony. Appeals Panel decision Nos. 961636, 961067, 972519. Although there is no rule that requires a prior motion before the Contested Case Hearing, it is the better practice to file a motion to allow telephonic testimony if you know that a witness will testify via telephone. The motion does not need to be elaborate. It should state the name of the witness, the telephone number to where the call will be placed and why the witness will appear telephonically. It is common for expert witnesses to testify telephonically. You are best served to have other witnesses testify at the Contested Case Hearing. The Hearing Officer is the sole judge of the credibility of each witness. Credibility is difficult to measure if the witness is not present at the hearing. If the Claimant attempts to introduce the Employer s First Report of Injury or Illness (TWCC-1), the Carrier should object. Pursuant to section 405.005(c) of the Texas Labor Code, the Hearing Officer is prohibited from using the TWCC-1 as an admission by the Carrier. Appeals Panel Decision No. 971898. If the Hearing Officer relies on unadmitted evidence, the Appeals Panel should reverse the Hearing Officer s findings. Appeals Panel Decision No. - 40 -

983043. It is important to note that just because the Hearing Officer makes an erroneous ruling or allows introduction of evidence that was not exchanged, this does not automatically constitute reversible error. The Appeals Panel affords wide discretion to the Hearing Officer on evidentiary rulings. For example, the Appeals Panel found that the Hearing Officer committed error in allowing the Claimant s wife to testify when her name was not exchanged as a witness. But it was not reversible error. Appeals Panel Decision No. 94737. In Appeals Panel Decision No. 972519, the Hearing Officer refused to allow two (2) of the Carrier s witnesses to testify via telephone. One of the witnesses was a medical expert. The Appeals Panel criticized the Hearing Officer, but found the error was not reversible error. Reversible error is recognized when the error constitutes clearly identifiable manifest injustice in the Hearing Officer s ruling. - 41 -

E. TESTIFYING EXPERTS - 42 -

During the hearing process, it is not uncommon for a medical provider to testify on behalf of the injured worker or the insurance carrier as a testifying expert. While district courts have certain procedures, standards and criteria to show that the expert testimony is reliable, the Texas Workers Compensation Commission is more lenient for the admissibility of their opinions. Normally, the district court must evaluate the methods, analysis, principals, standards, criteria and testing protocol relied upon by the expert in reaching their final opinion. In doing so, the court will guarantee and insure that the expert opinion falls within applicable professional standards and that the opinion is reliable based upon the knowledge and experience of the actual medical community. See E.I. Dupont de Nemours and Company, Inc. v. Robinson, 923 S.W. 2d 549 (Tex.1995). In doing so, the courts are to consider the qualifications of the expert, the scientific reliability of the expert s opinion and the relevance of that opinion. Relevance is normally based upon whether the expert s opinion will help provide valuable information to the jury without causing undue confusion or the rendering of an opinion based on speculate, guess or surmise. The majority of expert testimony in workers compensation hearings is from physicians and other health care providers. Normally, an expert witness is qualified based upon his/her knowledge, experience, training, education, - 43 -

skill, certifications, work history, etc. to testify about specialized subjects if that expert s testimony would assist the hearing officer (who is the trier of fact) in understanding the evidence, determining a fact issue or explaining the position espoused by the party offering the expert s opinions. In order for the expert opinion to be admissible, it must be reliable. In a number of cases, both parties have challenged the expert s opinion as not being based upon sound scientific methods and procedures. Thus, the expert s opinion is simply a subjective belief based on unsupported speculation. The expert must base his/her opinion on facts and cannot base his/her opinion on mere speculation, guess or surmise. In order to evaluate the scientific reliability and credibility of a specific opinion, the fact finder must look at a number of factors. The Texas Supreme Court in the Robinson decision identified some of these factors to include, but are not limited to, the following: 1. How thoroughly the theory has been tested or can it be tested by scientific principals? 2. What is the extent of the subjective interpretation of the expert? 3. Has the theory been subjected to peer review and publication? 4. Has the underlying theory or scientific technique been accepted by the relevant pertinent scientific community? - 44 -

5. What is the potential rate of error and/or percentage of error for the scientific techniques forming the basis of the theory? 6. The non-judicial uses that have been made of the theory or technique? (Robinson 953 S.W.2d at 714) If you are able to properly object to the expert s opinion evidence, the party seeking to offer the expert s evidence bears the burden of proof in demonstrating its admissibility and satisfaction of the above factors. The determining factor on admissibility should concentrate on the reliability of the principles and testing methodology, not just the conclusions. Normally, a licensed medical doctor will be able to testify about their care, treatment, prognosis and diagnosis of the injured worker. Likewise, a physician reviewing the case on behalf of the insurance carrier or the Commission may testify as to their independent findings, conclusions, diagnosis, prognosis and medical care. Just because that expert has a medical license does not automatically equate that expert may be able to testify about all medical issues. The area of testimony must focus within the parameters of that expert s qualifications. An area where we have a number of challenges to the scientific credibility of the expert lies in cases involving chemical exposure, multichemical sensitivity and occupational diseases. A back strain involves a - 45 -

general orthopedic aspect of muscle and bone structures. Occupational diseases are more complex and require more sound principals. In a leading case, the Texas Supreme Court has attacked the credibility and reliability of the medical experts opinions. In the case of Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706 (Tex. 1997), the Supreme Court identified a number of factors in determining whether the medical experts opinions were reliable. The Havner case was based upon a chemical exposure and epidemiological studies. One of the testifying experts was required to show that the epidemiological study performed identified that: 1. The insured party must establish that he is similar to the person subject to the study; 2. The injured employee was exposed to the same substance (this is a difficult burden in multi-chemical sensitivity cases); 3. The injured worker s exposure to the substance was comparable or greater to that performed in the epidemiological studies; 4. The alleged exposure occurred before the injury and the timing of onset of the illness is consistent with that experienced by those in the epidemiological study. The Texas Workers Compensation Appeals Panel has routinely stated, - 46 -

pursuant to Section 410.165(a), that during a Contested Case Hearing conformity to the Legal Rules of Evidence is not necessary. A number of parties have tried to use the Havner and Robinson cases to challenge the opinion of a testifying expert. Although it does attack the credibility of the expert, it depends on the Contested Case Hearing Officer s consideration on whether the Havner or Robinson cases will apply. See Appeals Panel No. 991064. In Appeals Panel Decision No. 990857, in discussing the Havner decision, the Appeals Panel stated: It is important to emphasize that the Benefit Contested Case Hearing process and standards of evidence are devised in the 1989 Act to get at the heart of the factual issues governing payment of income and medical benefits in a more expedient, summary fashion than might be permitted in a full blown trial in district court. To that end, summary procedures may be used, and witness statements of summaries that might not be admissible in district court are expressly allowed at the Benefit Contested Case Hearing. Conformity to the Legal Rules of Evidence is not necessary. A hearing officer shall accept all written reports signed by a health care provider. [Citing Section - 47 -

410.165(b)] The statutory scheme governing workers compensation administrative agency hearings alone would render Havner evidentiary requirements not strictly applicable to the Benefit Contested Case Hearing process. Likewise, as observed by the hearing officer, expert evidence is not required to prove causation in cases of carpal tunnel syndrome ( CTS ). We note that the Havner decision itself does not require the finder of fact to refrain from considering the totality of the evidence offered. While we believe that it is an over simplification of the Havner to state that it precludes consideration of an expert s bare opinion, we find nothing in this toxic tort case to override the hearing scheme envisioned by the legislature in the 1989 Act. While it is imperative to challenge the expert s opinions if you believe the opinion is scientifically flawed, the Commission takes the position that the Havner and Robinson case do not apply in the administrative hearing process. In Appeals Panel Decision No. 981730, the Appeals Panel noted that the Robinson case involves the Texas Rules of Civil Evidence which did not apply in the realm of the Contested Case Hearing. The medical evidence, testimony and opinion did not need to show detailed scientific support, acceptance on the - 48 -

scientific community, peer review in the appropriate trade publication scientific method or explain the actual biochemistry on how trauma effects the human body. Two months later the Appeals Panel applied the principles of Havner. In Appeals Panel Decision No. 982074, the Commission ruled that the medical evidence that particular case indicated there was only a mere possibility of a causal relationship between the development of migraine headaches after the Claimant received an injection. There was no proof based on a reasonable degree of medical probability. The lack of support for the Claimant s medical expert s opinion made it legally insufficient to prove causation in a case such as this which requires reasonable medical probability. Appeals Panel Decision No. 990857 requires the hearing officer to admit into evidence all reports signed by health care providers. The Appeals Panel identified that the hearing officer is not required to ignore the necessity for proper scientific methodology in reviewing that evidence or testimony. In Appeals Panel Decision No. 990591, the Appeals Panel actually reversed the hearing officer s decision because they felt the evidence was insufficient to support the finding that the Claimant sustained a compensable injury while sleeping in the sleeper compartment of the employer s truck. In that case, the Claimant s doctor based his opinion that he believed there was repetitive - 49 -

trauma to the Claimant because the Claimant had driven the truck for 15 years. The Appeals Panel confirmed that when an expert opinion is based on facts that differ materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict. The Appeals Panel cited the Texas Supreme Court case of Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995). Normally, expert medical evidence is not required to prove an injury such as a back injury, repetitive trauma to the back or neck, knee injury, etc. There are some cases where expert testimony is required. For example, where a Claimant is claiming the injury manifested three months after the Claimant ceased work, expert evidence was required on the issue of causation. See Appeals Panel Decision No. 982649. In hearing loss cases, the Appeals Panel has determined that medical evidence is necessary to establish an ear injury caused by excessive noise. See Appeals Panel Decision No. 981644. In cases of chemical exposure, medical evidence was required to prove an occupational disease injury of a latex allergy or sensitivity. See Appeals Panel Decision No. 980378. When dealing with expert testimony, testing and opinion evidence a party should not ignore the requirements of the Havner and Robinson rulings. Although the Commission will most likely allow the testimony, challenging - 50 -

the reliability of the opinion sends a message to the Hearing Officer. The Hearing Officer is the sole judge of the reliability of the evidence and the credibility of the witness. - 51 -

F. WHAT TO DO AFTER EACH HEARING LEVEL - 52 -

This section will focus on steps which will take place after the Benefit Review Conference, the Benefit Contested Case Hearing and following receipt of the Appeals Panel decision. It is intended to help provide familiarity with what takes place following each level. I. BENEFIT REVIEW CONFERENCE Exchange all evidence and identify witnesses who may testify at the Contested Case Hearing. Pursuant to Rule 141.4(b), 14 days before the Benefit Review Conference the parties should exchange all pertinent information in the parties possession by filing with the commission and exchanging with the other parties. If there is pertinent information that becomes available thereafter, it should be brought to the Benefit Review Conference with sufficient copies for filing and exchanging. If you have sufficient time before the Benefit Review Conference, then send the medical records or other documents pertaining to the case to the opposing side. If not, and is regularly the case, bring an evidence exchange packet to the Benefit Review Conference. Organize the document exchange so that you identify all documents being provided to the opposing side. The evidence must be exchanged or it will not be considered at any subsequent hearings. There are two different avenues in which to verify the evidence - 53 -

exchange. If the opposing side is provided with an evidence packet and there are no additional documents, simply send a letter certified mail, return receipt requested, identifying that during the Benefit Review Conference all pertinent documents were exchanged as listed on the attached evidence exchange list. You will then also need to identify all witnesses who may testify at the Contested Case Hearing. Second, if there are additional documents or the actual documents were not exchanged at the Benefit Review Conference, you must send a complete set of the documents no later than 15 days after the Benefit Review Conference. Pursuant to Rule 142.13(c)(1), no later than 15 days after the Benefit Review Conference, the parties shall exchange the following information: 1. All medical reports and reports of expert witnesses who will testify at the hearing; 2. All medical records; 3. Any witness statements; 4. The identity and location of any witness known to have knowledge of relevant facts; and 5. All photographs or other documents which a party intends to offer into evidence at the hearing. If you possess any other documents not previously exchanged, you must - 54 -