in Re Texas Mutual Insurance Company ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00391-CV
IN RE TEXAS MUTUAL INSURANCE COMPANY
Original Proceeding
OPINION
Texas Mutual Insurance filed a petition for writ of mandamus requesting this
Court to compel the Honorable Judge Robert G. Dohoney, a visiting judge sitting for the
66th District Court of Hill County, to grant Texas Mutual’s plea to the jurisdiction and
to dismiss the suit in its entirety for failure to exhaust administrative remedies before
the Division of Worker’s Compensation (DWC). We deny the petition.
STANDARD OF REVIEW
A writ of mandamus properly issues when the relator demonstrates that the trial
court abused its discretion and there is no adequate remedy by appeal. In re Gulf
Exploration, LLC, 289 S.W.3d 836, 842 (Tex. 2009). A trial court abuses its discretion if it
reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial
error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus
Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005); Walker v. Packer, 827 S.W.2d 833, 839
(Tex. 1992).
OVERVIEW OF WORKER’S COMPENSATION PROCESS
There are four potential levels to the determination and review of disputed
issues in a worker’s compensation claim. The first three are within the DWC and the
fourth is a judicial review. But each of the four is considered administrative in the sense
that all four must be exhausted before the claimant is considered as having exhausted
the administrative process. The three-stage hearing process consists of: 1) the benefit
review conference; 2) the contested case hearing; and 3) the administrative appeal.
Texas Workers’ Compensation Com’n v. Garcia, 893 S.W.2d 504, 514-15 (Tex. 1995).
A party may challenge the decision of the appeals panel by judicial review. TEX.
LABOR CODE ANN. § 410.251 (West 2006). A decision of the appeals panel regarding
benefits is final in the absence of a timely appeal for judicial review. TEX. LABOR CODE
ANN. § 410.205(a) (West 2006). Judicial review is the fourth tier of the system for
disposition of claims by the DWC. In re Tyler Asphalt & Gravel Co., Inc., 107 S.W.3d 832,
840 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
It is not disputed that Bell did not exhaust his administrative remedies.
FACTUAL BACKGROUND
Leroy Bell was injured in the course of his employment with Warren
Laboratories, Inc. Bell received worker’s compensation benefits from Texas Mutual. In
July 2007, Texas Mutual requested that the DWC appoint a designated doctor to
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examine Bell and determine the maximum medical improvement (MMI), impairment
rating, and ability to return to work.
Dr. Foox was appointed and found that Bell reached MMI on July 16, 2007, and
further found an impairment rating of two percent. Dr. Foox determined that Bell
could return to work immediately, July 16, 2007, but on light duty for the first month.
Dr. Foox noted certain restrictions for the first month including no kneeling or squatting
and no climbing of ladders or stairs. Dr. Foox stated that standing, walking, and sitting
would be as tolerated by Bell. Dr. Foox stated that after one month, the restrictions
could probably be removed entirely.
Stage 1 – Benefit Review Conference
Bell challenged Dr. Foox’s MMI date and the impairment rating with the DWC.
He did not directly challenge the return-to-work date as determined by Dr. Foox. At
best, it could be said he challenged it indirectly by challenging the date of MMI. A
benefit review conference was held on May 28, 2008, but the parties were unable to
reach an agreement.
Bell did not seek a benefit review conference to dispute Dr. Foox’s, the
designated doctor, finding that he was able to return to work. Thus, Bell did not
exhaust his administrative remedies as to that finding.
Stage 2 – Contested Case Hearing
A contested case hearing was held on July 1, 2008, to decide the disputed issues
of the MMI date and the impairment rating. The Hearing Officer agreed with Dr.
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Foox’s findings and determined that Bell reached MMI on July 16, 2007, and that Bell
has an impairment rating of two percent.
Stage 3 – Administrative Appeal
Bell requested a review of the Hearing Officer’s determinations by the appeals
panel. The appeals panel adopted the decision of the Hearing Officer.
Stage 4 – Judicial Review
Bell did not seek a judicial review of either of the disputed findings: MMI date
or the impairment rating. Bell did not exhaust his administrative remedies. Thus, for
all purposes, Bell cannot challenge, directly or indirectly, DWC’s determination of the
return-to-work date, the date he reached MMI, or his impairment rating.
TERMINATION OF BELL’S EMPLOYMENT
Bell did not return to work after Dr. Foox’s examination on July 16, 2007. On
August 27, 2007, Amy Roessler, the human resource manager for Warren Labs, called
Priscilla Griffith, a Texas Mutual adjuster, to inquire about the options available to
Warren Labs concerning Bell. Roessler’s notes from the telephone conversation state
that Griffith told her Bell had reached MMI, Warren Labs does not have to find work for
Bell, and Warren Labs does not have to hold a position for Bell.
Warren Labs terminated Bell on August 29, 2007. Bell filed suit against Warren
Labs for wrongful termination and discrimination. Bell’s suit against Texas Mutual
alleges a cause of action for aiding and abetting, conspiracy, and tortuous interference
with a contract. Texas Mutual filed a plea to the jurisdiction arguing that the trial court
does not have subject matter jurisdiction over two key issues in the case: 1) whether
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Bell was at MMI; and 2) whether Bell was able to return to work on August 27, 2007.
Texas Mutual contends that Bell did not exhaust his administrative remedies with
respect to those two issues. Texas Mutual’s argument herein is that the trial court does
not have jurisdiction of Bell’s claims against Texas Mutual because Bell cannot prove his
claims without challenging the finding of MMI and the impairment rating. We disagree
with Texas Mutual.
EXCLUSIVE JURISDICTION
The Workers' Compensation Act vests the Workers' Compensation Division with
exclusive jurisdiction to determine a claimant's entitlement to medical benefits. In re
Liberty Mutual, 295 S.W.3d 327, 328 (Tex. 2009); American Motorists Ins. Co. v. Fodge, 63
S.W.3d 801, 803-04 (Tex. 2001). If an agency has exclusive jurisdiction to resolve a
dispute, a party must first exhaust all administrative remedies before a trial court has
subject matter jurisdiction. O'Neal v. Ector County Indep. Sch. Dist., 251 S.W.3d 50, 51
(Tex. 2008). The determination of whether an agency has subject matter jurisdiction is
treated as a question of law and reviewed de novo. Subaru of America, Inc. v. David
McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 2002).
Texas Mutual argues that Bell’s claims require a jury to determine the date of
Bell’s MMI and Bell’s return-to-work date. Texas Mutual contends that those claims
come within the exclusive jurisdiction of the DWC and that the DWC has already
decided those claims. Texas Mutual further argues that the trial court does not have
jurisdiction over the claims because Bell failed to exhaust his administrative remedies
with regard to an administrative determination of these two critical facts.
In re Texas Mutual Insurance Co. Page 5
Bell contends that Texas Mutual and Warren Labs conspired to terminate his
employment. He argues that Texas Mutual encouraged Warren Labs to terminate him
and assisted Warren Labs in his termination. Bell states that his claims are for wrongful
termination and are not controlled by the DWC and that he will not ask the trial court to
rule on or submit to the jury any question within the jurisdiction of the DWC.
DISCUSSION
Bell’s claims against Texas Mutual center around the telephone conversation
between Griffith, an employee of Texas Mutual, and Roessler, an employee of Warren
Labs. Bell states that in the conversation, Griffith misrepresented Bell’s MMI because he
was appealing the finding. Bell also states that Griffith misrepresented that Warren
Labs did not have to allow Bell to return to work because of the American’s With
Disabilities Act and the worker’s compensation anti-retaliation statute.
The trial court has jurisdiction to award damages only to the extent that relief is
not dependent upon the direct or indirect adjudication of a matter within the DWC's
exclusive jurisdiction. Cunningham Lindsey Claims Mgmt., Inc. v. Snyder, 291 S.W.3d 472,
477 (Tex. App.—Houston [14th Dist.] 2009, pet. filed). The DWC appoints a designated
doctor to resolve any question about MMI and the ability to return to work. TEX. LABOR
CODE ANN. § 408.0041(a)(2) & (5) (West Supp. 2010). The determination of MMI and the
ability to return to work affect a claimant’s entitlement to benefits which is within the
exclusive jurisdiction of the DWC.
The determination of whether Griffith’s statements misrepresented DWC’s
determination of Bell’s MMI and ability to return to work do not involve a matter
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within the DWC’s exclusive jurisdiction. The trial court can adjudicate Bell’s claims
against Texas Mutual while Bell fully embraces, as he must, the accuracy and finality of
the date he reached MMI, his percentage of impairment rating, and his return-to-work
date. See American Motorists Ins. Co. v. Fodge, 63 S.W.3d at 804. Bell is not simply
restating his workers’ compensation claims under a different legal theory. Id. Bell
cannot, however, directly or indirectly claim that the final determination of the date he
reached MMI, the impairment rating, or the return-to-work date were wrong or
otherwise improperly determined because he was required to exhaust his
administrative remedies as to those disputed issues and he failed to do so; therefore, the
DWC’s decision as to each is final as determined by the DWC appeals panel.
CONCLUSION
Bell did not exhaust his administrative remedies, and therefore, the trial court
lacks jurisdiction to determine the issues within DWC’s exclusive jurisdiction. The trial
court did not, however, abuse its discretion by denying Texas Mutual’s plea to the
jurisdiction. Notwithstanding Bell’s failure to exhaust his administrative remedies to
challenge the DWC’s now final decision, the trial court has jurisdiction of Bell’s claims.
The fact that Bell reached MMI on July 16, 2007, could return to work immediately, and
had suffered a two percent impairment do not necessarily prevent the trial court from
having jurisdiction of Bell’s claims. We should not be understood as holding that Bell
has a valid or legally cognizable claim, or will be able to prove facts necessary to
establish the breach of any legal duty or damages proximately caused by such a breach,
if any. All we hold in this mandamus proceeding is that the trial court is not deprived
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of its jurisdiction to otherwise consider and resolve Bell’s claims just because Bell is
prohibited from challenging, either directly or indirectly, the final determinations of the
DWC. For purposes of trial, the results of the DWC proceeding will be something akin
to an uncontrovertible stipulation of fact or law-of-the-case that Bell reached MMI on
July 16, 2007, that July 16, 2007 is his return-to-work date, and that he has a two percent
impairment rating. Based on the foregoing analysis, we deny Texas Mutual Insurance
Company’s petition for writ of mandamus.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Petition denied
Opinion delivered and filed February 2, 2011
[OT06]
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