In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-15-00263-CV
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IN RE TEXAS ALLIANCE OF ENERGY, AKA TEXAS ALLIANCE OF
ENERGY PRODUCERS WORKERS’ COMPENSATION SELF-INSURED
GROUP TRUST
________________________________________________________________________
Original Proceeding
253rd District Court of Liberty County, Texas
Trial Cause No. CV1104807
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MEMORANDUM OPINION
Texas Alliance of Energy, AKA Texas Alliance of Energy Producers
Workers’ Compensation Self-Insured Group Trust petitioned for a writ of
mandamus ordering the judge of the 253rd District Court of Liberty County, Texas
to dismiss certain claims brought by John Bennett in a workers’ compensation suit.
We conditionally grant the writ in part.
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Background
John Bennett sustained a compensable injury on August 30, 2006.
Administrative proceedings before the Division of Workers’ Compensation
(DWC) have resulted in two Appeals Panel decisions: (1) a 2011 Appeals Panel
decision ruling that Bennett reached maximum medical improvement on
September 3, 2008, that Bennett’s impairment rating was nineteen percent, and that
he was not entitled to supplemental income benefits (SIBs) for compensable
quarters one through six; and (2) a 2014 Appeals Panel decision ruling that Bennett
permanently lost entitlement to SIBs because he was not entitled to SIBs for twelve
consecutive months, and Bennett was not entitled to SIBs for the seventh through
the nineteenth quarters.
Bennett filed his lawsuit on September 2, 2011. His original pleading
concerned the 2011 Appeals Panel decision determining his impairment rating and
the date he reached maximum medical improvement. Bennett first requested a
judicial review of the first six quarters of SIBs in a pleading filed on November 28,
2011. He subsequently amended his petition to allege claims of negligence,
intentional infliction of emotional distress, and fraud. On November 6, 2014, the
trial court overruled Relator’s challenges to the trial court’s jurisdiction and
granted Bennett’s motion for summary judgment entitling Bennett to SIBs for the
2
first through sixth compensable quarters. Relator petitioned for mandamus relief
and argued that the trial court lacked subject matter jurisdiction over Bennett’s
extra-contractual claims and claims on which he failed to exhaust his
administrative remedies. We conditionally granted partial mandamus relief and
directed the trial court to grant a plea to the jurisdiction for any issues that Bennett
had not brought before the Appeals Panel. In re Texas Alliance of Energy, 09-14-
00521-CV, 2015 WL 269401, at *4 (Tex. App.—Beaumont Jan. 22, 2015, orig.
proceeding) (mem. op.).
Bennett filed his fourth amended petition on February 4, 2015, and his fifth
amended petition on March 25, 2015. The February 4, 2015 pleading and the
pleading it replaced stated, “This appeal is confirming quarters one through six and
appealing seven through nineteen.” But, neither Bennett’s third nor his fourth
amended petition expressly mentions the 2014 Appeals Panel proceeding before
the DWC. Bennett first expressly referenced the new DWC proceedings that
resulted in the 2014 Appeals Panel decision in his Fifth Amended Petition, which
he filed on March 25, 2015. In Bennett’s Fifth Amended Petition, he further
alleges that Relator “committed intentional infliction of emotional distress”
through “continual lies and misrepresentations, along with the refusal to accept
liability and pay benefits[,]” presented “fraudulent information and documentation
3
to the worker’s compensation hearing officer[,]” and “failed to timely appeal the
award of August 12, 2008 Notice of Entitlement to Supplemental Income Benefits
(SIBs) for the quarters.” Additionally, Bennett alleges in the Fifth Amended
Petition that Relator failed to provide medical treatment, failed to pay for his
medication, and failed to pay for his treatment-related travel.
The trial court signed an order ruling that the Fifth Amended Petition
showed that Bennett exhausted all administrative remedies. The trial court denied
Relator’s plea to the jurisdiction based upon the alleged failure to exhaust
administrative remedies, denied Relator’s motions to dismiss and for summary
judgment, and declined to reconsider the previous order granting partial summary
judgment in favor of Bennett. The trial court ruled that Bennett
is entitled to payment on SIBs quarters one through six in the Texas
Department of Insurance’s notice dated August 12, 2008. This case
combined all quarter[s] through nineteen and Plaintiff is entitled to
payment from quarters one through nineteen based upon a 19%
impairment rating (which was provided by the designated doctor).
On June 1, 2015, the trial court signed an order denying Relator’s motion to
reconsider its plea to the jurisdiction for the seventh through the nineteenth
compensable quarters.
4
Request for Mandamus Relief
Relator has filed a motion to issue the writ of mandamus that we
conditionally granted on January 22, 2015. See id. at *4. Additionally, Relator
presents two new complaints that relate to claims asserted in Bennett’s Fifth
Amended Petition. First, Relator contends that Bennett failed to exhaust his
administrative remedies with respect to his entitlement to medical benefits because
he has not presented those issues to the Appeals Panel for resolution by the DWC
before filing suit. Second, Relator argues Bennett’s failure to timely file a
challenge to the Appeals Panel’s 2014 decision deprived the trial court of
jurisdiction over Bennett’s claim for SIBs for compensable quarters seven through
nineteen.
“Recovery of workers’ compensation benefits is the exclusive remedy of an
employee covered by workers’ compensation insurance coverage . . . against the
employer or an agent or employee of the employer for . . . a work-related injury
sustained by the employee.” Tex. Labor Code Ann. § 408.001(a) (West 2015).
The Workers’ Compensation Act “provides the exclusive process and remedies for
claims arising out of a carrier’s investigation, handling, or settling of a claim for
workers’ compensation benefits.” In re Crawford & Co., 458 S.W.3d 920, 925-26
(Tex. 2015). The dispute resolution process consists of four possible steps: (1) a
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benefit review conference; (2) a contested case hearing; (3) an administrative
appeals panel review; and (4) a judicial review. Tex. Mut. Ins. Co. v. Ruttiger, 381
S.W.3d 430, 437 (Tex. 2012). Judicial review of a workers’ compensation case “is
limited to issues decided by the appeals panel and on which judicial review is
sought.” Tex. Labor Code Ann. § 410.302(b).
The 2011 Appeals Panel decided eight issues, which were described in the
decision on the contested case hearing as follows:
1. What is the date of maximum medical improvement (MMI)?
2. What is the claimant’s impairment rating (IR)?
3. Is the Self-Insured relieved of liability for supplemental income benefits
(SIBs) because of the claimant’s failure to timely file an application for
supplemental income benefits for the 1st through 4th quarter[s], and if so,
for what periods? (Withdrawn by agreement of the parties).
4. Is the claimant entitled to supplemental income benefits for the first
quarter, from September 30, 2009 through December 29, 2009?
5. Is the claimant entitled to supplemental income benefits for the second
quarter, from December 30, 2009 through March 30, 2010?
6. Is the claimant entitled to supplemental income benefits for the third
quarter, from March 31, 2010 through June 29, 2010?
7. Is the claimant entitled to supplemental income benefits for the fourth
quarter, from June 30, 2010 through September 28, 2010?
8. Is the claimant entitled to supplemental income benefits for the fifth
quarter, from September 29, 2010 through December 28, 2010?
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9. Is the claimant entitled to supplemental income benefits for the sixth
quarter, from December 29, 2010 through March 29, 2011?
At the conclusion of the administrative process, the DWC concluded that
Bennett’s impairment rating is 19%, that Bennett reached maximum medical
improvement on September 3, 2008, and that Bennett is not entitled to SIBs for the
first through the sixth compensable quarters.
The 2014 Appeals Panel decided two issues, which were described in the
contested case hearing as follows:
1. Is the Claimant entitled to supplemental income benefits for the 7th, 8th,
9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, and 19th quarters,
April 7, 2011 through May 7, 2014?
2. Has the Claimant permanently lost entitlement to supplemental income
benefits pursuant to Texas Labor Code § 408.146(c) because he was not
entitled to them for 12 consecutive months?
The 2014 Appeals Panel struck a finding of fact that during the qualifying period
for the eighth quarter, the claimant demonstrated an active effort to obtain
employment each week during the entire qualifying period; the result of the
administrative process was that Bennett permanently lost entitlement to SIBs
because he was not entitled to SIBs for twelve consecutive months and Bennett is
not entitled to SIBs for the seventh through nineteenth compensable quarters.
Only these enumerated issues were exhausted through step three of the four-
step-dispute-resolution process identified in the Ruttiger decision. See Ruttiger,
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381 S.W.3d at 437. The DWC has exclusive jurisdiction over claims-handling
disputes arising out of a carrier’s investigation, handling, or settling of a claim for
workers’ compensation benefits. See Crawford & Co., 458 S.W.3d at 925-26. The
DWC resolved neither Bennett’s claims-handling issues nor his medical
reimbursement claims for prescription medication, mileage, or surgery. 1 Bennett’s
claim for failure to timely provide medical treatment depends upon an
administrative determination of the right to the medical treatment and an
administrative resolution of the claims-handling complaints. See id.; see also In re
Liberty Mut. Fire Ins. Co., 295 S.W.3d 327, 328 (Tex. 2009). Accordingly, the trial
court lacks subject matter jurisdiction over Bennett’s claims for medical benefits
and for failing to timely provide medical treatment. See Crawford, 458 S.W.3d at
925-26; see also Texas Alliance, 2015 WL 269401, at *2.
“[I]t is proper for a trial court to dismiss claims over which it does not have
subject matter jurisdiction but retain claims in the same case over which it [does
have] jurisdiction.” Thomas v. Long, 207 S.W.3d 334, 338 (Tex. 2006). Relator is
1
The venue provisions of section 410.252(b) do not implicate the trial
court’s subject matter jurisdiction. Mayberry v. Am. Home Assur. Co., 122 S.W.3d
455, 458 (Tex. App.—Beaumont 2003, no pet.). We do not decide whether the
Liberty County District Court is the court of proper venue for a judicial review of
claims of this nature. Compare Tex. Labor Code Ann. § 410.252(b) with Tex.
Labor Code Ann. § 410.255, and Tex. Gov’t Code Ann. § 2001.176(b) (West
2008).
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not entitled to a dismissal of Bennett’s suit for judicial review of the 2011 Appeals
Panel decision because the trial court does have jurisdiction to review the 2011
Appeals Panel decision concerning Bennett’s entitlement to SIBs for the first
through sixth compensable quarters. See Texas Alliance, 2015 WL 269401, at *3;
see also Old Republic Ins. Co. v. Warren, 33 S.W.3d 428, 432 (Tex. App.—Fort
Worth 2000, pet. denied) (“No case has held that a plaintiff’s failure to follow the
strictures of section 410.302 [of the Texas Labor Code] divests a district court of
jurisdiction when the plaintiff’s original petition was timely filed.”).2 Bennett’s
live pleading re-states his previous claim for intentional infliction of emotional
distress as damages arising from the carrier’s “refusal to accept liability and pay
benefits.” Likewise, Bennett re-states his fraud allegations as a claims-handling
dispute. Bennett’s amended pleading demonstrated that he exhausted his
administrative remedies relative to his entitlement to SIBs for the first through the
sixth compensable quarters, but the amended pleading does not demonstrate that he
exhausted his administrative remedies on the claims-handling dispute. We
conclude that Bennett has not exhausted his administrative remedies for his claims-
2
In this mandamus proceeding, Relator does not argue that the trial court
lacked subject matter jurisdiction over Bennett’s claim for SIBs for the first
through sixth compensable quarters. The trial court granted a partial summary
judgment on this issue, but we express no opinion regarding the trial court’s ruling.
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handling dispute, his claims for medical benefits, and his claims for failing to
timely provide medical treatment.
In our previous opinion arising out of this litigation, we explained that
Bennett should have an opportunity to replead before the trial court grants a plea to
the jurisdiction for any issues that were not brought before the Appeals Panel.
Texas Alliance, 2015 WL 269401, at *4. This situation is different because Bennett
has been given an opportunity to replead, but he continues to assert unexhausted
claims. Relator brought the lack of subject matter jurisdiction to the attention of the
trial court through a plea to the jurisdiction and a motion to dismiss. The trial court
abused its discretion by failing to dismiss those claims over which the trial court
lacked subject matter jurisdiction. Crawford, 458 S.W.3d at 926-7.
Regarding the issue of whether Bennett timely filed a petition for judicial
review of the 2014 Appeals Panel decision, section 410.252(a) of the Texas Labor
Code provides, as follows:
A party may seek judicial review by filing suit not later than the 45th
day after the date on which the division mailed the party the decision
of the appeals panel. For purposes of this section, the mailing date is
considered to be the fifth day after the date the decision of the appeals
panel was filed with the division.
Tex. Labor Code § 410.252(a). The 2014 Appeals Panel determined that Bennett is
not entitled to SIBs for the seventh through the nineteenth compensable quarters.
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Bennett had to file suit challenging the 2014 Appeals Panel decision by January
26, 2015. See id.; see also Tex. R. Civ. P. 4. On that date, Bennett’s live pleading
in his pending lawsuit against the carrier expressly complained only about the 2011
Appeals Panel decision and omitted any mention of the DWC proceedings that
were actively being pursued at the administrative level when the pleading was
filed. However, this pleading also stated, “This appeal is confirming quarters one
through six and appealing seven through nineteen.” Bennett repeats the same
statement in a pleading that he filed on February 4, 2015. Bennett first expressly
referenced the 2014 DWC appeals panel decision in his fifth amended original
petition filed on March 25, 2015.
In its Supplemental Petition for Writ of Mandamus, Relator cites cases from
eight of the Courts of Appeals to support the proposition that the forty-five day
deadline in section 410.252 of the Texas Labor Code is mandatory and
jurisdictional. See Davis v. Am. Cas. Co. of Reading, Pa., 408 S.W.3d 1, 6 (Tex.
App.—Amarillo 2012, pet. denied); Fire & Cas. Ins. Co. of Conn. v. Miranda, 293
S.W.3d 620, 624 (Tex. App—San Antonio 2009, no pet.); Tex. Mun. League
Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 812 n. 9 (Tex. App.—Fort
Worth 2006, no pet.); LeBlanc v. Everest Nat’l Ins. Co., 98 S.W.3d 786, 787 (Tex.
App.—Corpus Christi 2003, no pet.); Johnson v. United Parcel Serv., 36 S.W.3d
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918, 921 (Tex. App.—Dallas 2001, pet. denied); Argonaut Sw. Ins. Co. v. Walker,
64 S.W.3d 654, 657 (Tex. App.—Texarkana 2001, pet. denied); Morales v.
Travelers Indem. Co. of Conn., No. 01-14-00429-CV, 2014 WL 7340374, at *2
(Tex. App.—Houston [1st Dist.] Dec. 18, 2014, pet. denied) (mem. op.); Cervantes
v. Tyson Foods, Inc., 130 S.W.3d 152, 155 (Tex. App.—El Paso 2003, pet.
denied). These cases are all distinguishable from the case before this Court by
reason of the vehicle in which the issue is presented for review in the appellate
court. The issue is before this Court in a petition for a writ of mandamus. See Tex.
R. App. P. 52.1.
“Incidental district court rulings, which include pleas to the jurisdiction,
generally will not be reviewed by mandamus because an adequate appellate
remedy exists.” In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003). The
denial of a plea to the jurisdiction relating to an unexhausted claim is subject to
mandamus “to prevent a disruption of the orderly processes of government.”
Liberty Mut., 295 S.W.3d at 328. Because Bennett has exhausted his administrative
remedy regarding his entitlement to SIBs for the seventh through the nineteenth
compensable quarters, the trial court’s exercise of jurisdiction does not interfere
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with the jurisdiction of the DWC. Accordingly, Relator has an adequate remedy by
appeal. 3 See id.
We conditionally grant mandamus relief and we direct the trial court to
dismiss Bennett’s medical benefits claims for lack of subject matter jurisdiction.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on August 4, 2015
Opinion Delivered August 31, 2015
Before Kreger, Horton, and Johnson, JJ.
3
We express no opinion regarding the trial court’s ruling.
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in Re Texas Alliance of Energy, AKA Texas Alliance of Energy Producers Workers' Compensation Self-Insured Group Trust
Combined Opinion