PJC General Negligence 2022

W ORKERS ’ C OMPENSATION —B URDEN OF P ROOF

PJC 15.1

PJC 15.1

Burden of Proof (Comment)

An aggrieved party may appeal a final decision of the appeals panel of the Division of Workers’ Compensation of the Texas Department of Insurance (DWC, formerly TWCC). Tex. Lab. Code §410.251; Tex. Gov’t Code §§2001.171–.178. Issues that the appeals panel has decided may be tried to the court or to a jury, and the appealing party bears the burden of proof by a preponderance of the evidence. Tex. Lab. Code §§ 410.303–.304; Morales v. Liberty Mutual Insurance Co. , 241 S.W.3d 514, 516 (Tex. 2007). If the dispute involves compensability or eligibility for or the amount of income or death benefits, the trial court reviews any appealed issues under a modified de novo standard. Rodriguez v. Service Lloyds Insurance Co. , 997 S.W.2d 248, 253 (Tex. 1999); see also Texas Workers’ Compensation Commission v. Garcia , 893 S.W.2d 504, 515 (Tex. 1995). Traditionally, the claimant carries the burden of proof to validate his claim. Even on judicial review, when the claimant has the burden of proof, most courts are able to draw on other areas of law to reach an equitable construction of jury questions. New for courts and litigants is the drafting of questions when the carrier has appealed and the claimant has become the defendant. A strict reading of the Texas Labor Code indi cates that the carrier must prove a negative, such as proving that the claimant did not have a disability. See Transcontinental Insurance Co. v. Crump , 330 S.W.3d 211, 226 (Tex. 2010). While some claimants’ attorneys have avoided this type of construction, thinking that it might confuse a jury, it should be emphasized that the successful claimant who is now a defendant in the appeal has an absolute right to require the carrier to disprove the appeals panel findings. See Tex. Lab. Code § 410.303; Crump , 330 S.W.3d at 226; Morales , 241 S.W.3d at 516. Therefore, in a suit for judicial review, the placement of the burden of proof is determined by who the “aggrieved” ( see Tex. Lab. Code §410.251) and appealing party is shown to be in the pleadings. In a case in which each party has appealed sepa rately from adverse determinations by the DWC, each party will bear the burden of proof on the issue from which it has appealed. To that end, the Committee has recommended two versions of many of the ques tions in this volume: one in which the burden of proof has been placed on the employee as the appealing party, and the other in which the burden of proof has been placed on the carrier as the appealing party. In occasional cases, each party may bear the burden of proof to establish the answer for which it advocates. See PJC 23.9.

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