Brad Miller recently convinced the Appeals Board in Utah to reverse the award of certain workers’ compensation benefits granted during a default hearing. An Application for Hearing had been filed by petitioner with a request for various medical benefits and “possible surgery.” The petitioner did not request TTD benefits in the original Application for Hearing. The employer and insurance carrier did not timely respond to the Application for Hearing and a Default Order was entered.
During the subsequent hearing to address the benefits due pursuant to the default, the ALJ allowed petitioner to unilaterally amend the Application for Hearing and awarded TTD benefits and also ordered respondents to pay for a lumbar spine surgery. The ALJ awarded these benefits to the petitioner even though respondents were not allowed to participate at the hearing due to the default.
Respondents filed an appeal and argued that it was improper to allow the petitioner to pursue new issues and benefits for hearing after the Default Order was entered. The argument focused on the fact that the default only applied to benefits which were specifically requested in the original Application for Hearing (as respondents only defaulted on those specific issues).
The Appeals Board in Utah agreed with respondents and overturned the award of TTD benefits and the cost of surgery. The Appeals Board noted that even though the Application for Hearing included a “possible surgery,” that surgery had not been formally recommended by the treating physicians until after the Application for Hearing was filed. The Appeals Board also noted that the TTD benefits were added as an issue after the default had been entered. As a result, it was error for the ALJ to award the costs of surgery and TTD benefits as part of the default hearing.
Torres v. O’Reilly’s Auto Parts, 16-0524 (Appeals Board January 10, 2018)
Would you like to now more? Contact Brad J. Miller at firstname.lastname@example.org or 720.488.9586.