II. HEARINGS, WHAT DO THEY ENTAIL? - Downs • Stanford

1 II. HEARINGS, what DO they ENTAIL? Timothy U. Stanford Downs & Stanford , 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).

2 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.

3 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.

4 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 .

5 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.

6 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.

7 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 Make sure all of the TWCC-21s have been identified and can be easily located during the hearing .

8 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.

9 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 -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.

10 I. BENEFIT REVIEW CONFERENCE. The Benefit Review Conference is a Means to Resolve Disputes. ( - ) (Rules , , , ) (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 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).