The certification must be “provided to the employee and the carrier by verifiable means.” Appeal No. 042163-s discusses this requirement in detail, and Appeals No. 041985-s and 052163-s cite the preamble to Rule 130.12:
Written notice is verifiable when it is provided from any source in a manner that reasonably confirms delivery to the party. This may include acknowledged receipt by the injured employee or insurance carrier, a statement of personal delivery, confirmed delivery by e-mail, confirmed delivery by facsimile [fax], or some other confirmed delivery to the home or business address. The goal of this requirement is not to regulate how a system participant makes delivery of a report or other information to another system participant, but to ensure that the system participant filing the report or providing the information has verifiable proof that it was delivered. 29 Tex Reg 2331, March 5, 2004.
This lays out that “verifiable means” can include admission of receipt without regard to the verifiability aspect of the transmission. Also note that it is “confirmed delivery” that counts with respect to transmission (e.g. by email or facsimile), rather than transmission alone.
Although the statutory requirement is conjunctive (delivered both to the carrier and employee), this is not apparent in the preamble, and the Appeals Panel has not applied the statutory provision in a way requiring this conjunctive element to be met. In other words, by the layout of the textual requirements as conjunctive, ordinarily this would be read as requiring that each party be notified of the MMI/IR certification by verifiable means to trigger the 90 day clock. No case seems to test that theory, but some of the Appeals Panel cases involve situations where the receipt by verifiable means was through a source other than one of the parties, which would raise the question potentially of whether it was also delivered to the second party so as to meet the conjunctive element of the text.
Related to this is precedent establishing that notice to the attorney alone, when a claimant is represented by counsel, is not sufficient to establish notice for finality purposes (See Appeal No. 080921-s).
“Verifiable means” is read by the Appeals Panel to require documentary evidence of delivery. Testimonial evidence is not sufficient when the documentary evidence does not indicate the date or address. The verifiable means requirement is construed to mean verifiable by the trier of fact, not merely by the party which sent it (See. Appeal No. 101033). An email printout showing transmission to the claimant’s email address is not evidence of delivery, per Appeal No 172534.
The Appeals Panel has indicated that testimony regarding date of receipt can be sufficient evidence, but only when the testimony establishes a date certain for receipt. When there was testimony by a claimant that she received the notice sometime in October 2012, the Appeals Panel determined this was insufficient to establish an acknowledged date of receipt. Of note here, the idea of acknowledged receipt bypasses the “verifiable means” element entirely, relying on whether the claimant received it and not verification of the method of delivery. Implicitly this appears to rely on a reading of the statute in which verifiable means would be contrasted with deemed receipt.
Similarly, a reasonably certain inference regarding receipt of a report by an insurance carrier, based on its filing for a post-designated doctor required medical examination, is not sufficient to establish a date certain for 90 day finality. In Appeal No. 160629, the Appeals Panel agreed with the ALJ that the request for a post-DD RME suggests that the carrier had actual knowledge of the DD report, but there was no acknowledgment of receipt, evidence of delivery, or any evidence in the record to establish a date certain. This seems a case where poorly litigated cases make bad law, as there are several provisions which should establish when a carrier received a document such as a designated doctor report:
Rule 102.4(i) requires an insurance carrier to “maintain adjuster's notes on activities and verbal communications involved with the administration of a claim, with the exception of privileged attorney-client communications. The adjuster's notes shall, at a minimum, include the date of the activity or communication, the identity of the carrier staff involved in the contact, the person contacted by or contacting the carrier and a summary of the activity or communication.” Rule 102.4(j) requires that an insurance carrier “that receives a written communication related to a workers' compensation claim shall date stamp or otherwise annotate the document indicating the date the written communication was received.” It is unclear why such evidence was not available. A carrier that is complying with the rules would have such evidence of when it received a designated doctor report and any other documents, if at all, and to the extent that it does not maintain such records, reasonable inferences could be drawn similarly to cases where a claimant receives notice by USPS at his address, signed for by another person, but denies personal receipt.
The term “verifiable means” has made for some interesting litigation, the upshot of which is that the Appeals Panel has read the “verifiable means” element to essentially cancel out the “provided to” requirement. It is an interesting case of interpretive tunnel vision.
The Appeals Panel has held, for example, that delivery of USPS certified mail, signed for by the claimant’s grandmother at a time when he was acknowledged by all parties to be overseas, constitutes proof the certification was “provided to” the claimant based on prior precedent from the 90 day administrative rule (Appeal No. 070655r):
The hearing officer, in the Background Information cited above, apparently believed that the carrier mailed the PLN-3 to the claimant’s address by certified mail return receipt requested and that the certified mail was signed for by the claimant’s grandmother, but that the claimant did not receive Dr. E’s certification. In a long line of Appeals Panel Decisions, we have held that when a certification of MMI/IR is mailed to the claimant’s correct address by certified mail, return receipt requested, but signed for by someone else other than the claimant, the MMI/IR certification has been delivered to the claimant. See Appeals Panel Decision (APD) 960335, decided April 5, 1996; APD 94365, decided May 11, 1994; and APD 992013, decided October 27, 1999.
Note that the precedent is all from the administrative rule, overturned by the Fulton case mentioned at the outset of this paper. And the prior Appeals Panel decisions generally involve not reversing a decision, but affirming a decision (e.g. 992013) in which the judge has ruled the certification was delivered and therefore notice was given.
This is important because it really is one thing for a judge to determine that, under the particular facts of how the notice arrived, who signed for it, where the claimant was living at the time, and so forth, that the claimant in fact did get notice, despite protestations to the contrary. And quite another to say that the judge cannot reasonably read the facts presented to her as failing to show such notice.
Drilling down into the particulars, there seems to be quite a solid argument, both on policy and credibility grounds, for a judge to determine that a claimant did receive notice of an MMI/IR certification when the notice arrived at his residence, at a time he was living there, and merely signed for by another person. It would hardly make sense for any party to avoid notice merely by gaming his interactions with the postal carrier to avoid signing for his own mail. But what the Appeals Panel does is create a rule that forecloses any judge finding a set of facts sufficient to defeat notice so long as the bare minimum of the arrival of a document to an address is shown.
As an example, in an unpublished case of my own, a carrier sent notice of MMI/IR to an address at a ranch that was owned by another party. The claimant was living in the owner’s RV at the back of the property behind the main house. The carrier used an overnight private courier service. The verification of delivery showed only that it was delivered to the address. The entrance to the address was a locked gate behind which a dirt road led to the house, and behind it the RV. There was no evidence any human being ever took delivery of the package. There was no evidence as to whether it was left anywhere that it could reasonably be found, or perhaps left with a neighbor and never received by either the owner or the claimant. There was evidence the claimant had already moved most of his possessions to another residence and was only returning to the address to pick up his possessions as he moved them to his new home. Despite this, The ALJ felt constrained by this rule to find that the notice was delivered by verifiable means because the rule has been laid down in such a way as to eliminate any possibility of judgment by the trier of fact.
In other words, the element is met even when the party does not actually receive the notice so long as it was delivered to an address associated with the party. One can certainly understand that a document was provided to a party if the party actually received it. The Appeals Panel has incorporated an understanding of “provided to” that is met merely by its verified availability at an address known to be associated with a party regardless of the party ever having actually possessed the package, been made aware of its basic content, or otherwise have any knowledge of its significance. This emphasis on the verifiability of the means of delivery of the package undercuts genuine inquiry as to whether the notice was actually “provided to” the claimant under the facts of individual cases.
There is case law with the Appeals Panel precedent going the other direction. The Appeals Panel reversed and rendered when an ALJ found finality after the certified mail notice was never actually picked up by the claimant, the mail was returned to the carrier, and the claimant testified no notice of the package was ever received. In this case it was critical that the record did not contain evidence of when the notice of a certified mail package available at the post office was delivered to the claimant (See Appeal No. 050031-s). This rendered it impossible to establish a date certain to start the 90 day clock. This date certain element has been carried forward in more recent case law (See Appeal No. 152535).
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