      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00766-CV



                        Service Lloyds Insurance Company, Appellant

                                                v.

                   American Alternative Insurance Corporation, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
       NO. D-1-GN-05-004072, HONORABLE DARLENE BYRNE, JUDGE PRESIDING



                                          OPINION


               This is a workers’ compensation case in which the Texas Department of Insurance,

Division of Workers’ Compensation (the “Division”)1 ordered one insurance carrier,

appellant Service Lloyds Insurance Company, to reimburse another insurance carrier, appellee

American Alternative Insurance Corporation (AAIC), for benefits paid by AAIC for an employee’s

compensable injury for which Service Lloyds was the liable carrier. The district court affirmed the

decision of the Division. Service Lloyds argues that a workers’ compensation carrier cannot be a

subclaimant under Texas Labor Code section 409.009 and the Division had no jurisdiction to order

such reimbursement. We affirm the judgment of the district court.




       1
         The Texas Workers’ Compensation Commission was abolished effective September 1,
2005, and its functions were assumed by the division of workers’ compensation within the
Texas Department of Insurance. See Tex. Lab. Code Ann. § 402.001 (West 2006). We use the term
“Division” to refer to both the division of workers’ compensation and the former commission.
Factual and Procedural Background

               On December 9, 2002, Emmit Hines sustained a compensable injury in the course

and scope of his employment with CRES Management. From December 9, 2002, through May 9,

2004, AAIC paid workers’ compensation benefits to or for Hines. However, during that time period,

Service Lloyds was the insurance carrier responsible to compensate Hines for his injury. AAIC sent

a written request to Service Lloyds for reimbursement of the benefits erroneously paid by AAIC, but

Service Lloyds declined to reimburse AAIC.

               The Division administers the Texas Workers’ Compensation Act (the “Act”). See

Tex. Lab. Code Ann. § 402.001 (West 2006). On February 2, 2005, AAIC sought dispute resolution

with the Division concerning its claim against Service Lloyds. On July 28, 2005, a Division hearing

officer issued his decision that AAIC was a “subclaimant” within the meaning of section 409.009

of the Act and that the Division had jurisdiction to determine AAIC’s claim for reimbursement from

Service Lloyds. The hearing officer ordered Service Lloyds to reimburse AAIC the amount of

$81,501 plus interest. See id. § 410.168(a) (West 2006) (hearing officer decision). Service Lloyds

appealed the decision to the Division’s appeals panel, which determined on October 10, 2005, that

the hearing officer’s decision should become the appeals panel’s final decision as well. See id.

§ 410.204(c) (West 2006) (appeals panel decision).

               Service Lloyds timely filed a petition for judicial review in Travis County

district court. See id. § 410.251 (West 2006) (authorizing judicial review of final decision of appeals

panel). The district court entered judgment on November 19, 2008, affirming the decision of the

Division. Service Lloyds appeals.



                                                  2
Texas Labor Code Section 409.009

              Service Lloyds’s arguments with regard to section 409.009 involve exclusively

questions of statutory interpretation. Therefore, our review is de novo. See Texas Mun. Power

Agency v. Public Util. Comm’n, 253 S.W.3d 184, 192 (Tex. 2007) (“Statutory construction is a

question of law, which we review de novo.”).


       Insurance carrier as subclaimant

              Service Lloyds argues that, as a matter of law, a workers’ compensation insurance

carrier cannot be a “subclaimant” under section 409.009 of the Act and, therefore, the Division

erred in holding that AAIC is a subclaimant with respect to its claim for reimbursement from

Service Lloyds. Section 409.009 of the Act states as follows:


       A person may file a written claim with the division as a subclaimant if the person
       has:

       (1) provided compensation, including health care provided by a health care insurer,
       directly or indirectly, to or for an employee or legal beneficiary; and

       (2) sought and been refused reimbursement from the insurance carrier.


Tex. Lab. Code Ann. § 409.009 (West 2006).

              Service Lloyds’s argument is not supported by the plain language of the statute. See

State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006) (“When construing a statute, we begin with its

language.”). A workers’ compensation carrier is a “person” under section 409.009. See Tex. Gov’t

Code Ann. § 311.005(2) (West 2005) (defining “person” to include a corporation, organization,

and any other legal entity). Moreover, AAIC has complied with the plain-language requirements

                                               3
of the statute. AAIC filed its written claim in the context of Service Lloyds being responsible to

compensate Hines for his injury. See Texas Mut. Ins. Co. v. Sonic Sys. Int’l, Inc., 214 S.W.3d 469,

477 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (holding that the term “subclaimant”

denotes that reimbursement is derivative of employee-claimant’s ability to recover benefits). AAIC

provided compensation to or for an employee—Hines. See Tex. Lab. Code Ann. § 401.011(11)

(West Supp. 2009) (defining “compensation” as “payment of a benefit”). AAIC sought and was

refused reimbursement from the insurance carrier—Service Lloyds.

               Notwithstanding AAIC’s having met the express requirements of section 409.009,

Service Lloyds contends that the statute is applicable only to health care insurers—specifically, when

the employee’s health insurance policy pays for medical care that is covered by the workers’

compensation policy. We agree that section 409.009 can apply to health care insurers. See Valley

Forge Ins. Co. v. Austin, 65 S.W.3d 371, 372 (Tex. App.—Dallas 2001, pet. denied). However,

nothing in the statutory language indicates that it applies only to health care insurers. To the

contrary, section 409.009 applies when compensation has been provided, “including health care

provided by a health care insurer.” Tex. Lab. Code Ann. § 409.009(1) (emphasis added); see

Tex. Gov’t Code Ann. § 311.005(13) (“including” is term of enlargement and not of limitation or

exclusive enumeration; use of term does not create presumption that components not expressed are

excluded). Section 409.009 of the Act is not limited to health care insurers.

               Our holding that a workers’ compensation carrier can be a section 409.009

subclaimant is consistent with rules adopted in 2008 by the Division. Rules 140.6, 140.7, and 140.8

establish procedures applicable to subclaims pursued against workers’ compensation insurance



                                                  4
carriers. See 28 Tex. Admin. Code §§ 140.6, 140.7, 140.8 (2009). Rules 140.7 and 140.8 are

expressly limited to health care insurers pursuing reimbursement as a subclaimant. See id.

§§ 140.7(a), 140.8(a); see also Tex. Lab. Code Ann. § 409.0091(b) (West Supp. 2009) (“This section

applies only to a request for reimbursement by a health care insurer.”). In contrast, rule 140.6

contains no such limitation, see 28 Tex. Admin. Code § 140.6(a), provides for a subclaimant to file

and pursue a claim for reimbursement of any “benefit that has been provided to an injured

employee,” see id. § 140.6(c)(1), and expressly recognizes the possibility of subclaimants under

section 409.009 other than health care insurers, see id. § 140.6(d)(1).

                Our holding is also consistent with the current interpretation of section 409.009 in

the Division’s administrative decisions. See Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823

(Tex. 1993) (“Construction of a statute by the administrative agency charged with its enforcement

is entitled to serious consideration, so long as the construction is reasonable and does not contradict

the plain language of the statute.”). In 2003, the Division’s appeals panel, faced with a workers’

compensation carrier seeking reimbursement as a subclaimant, stated: “[W]e do not view either of

two or more carriers disputing . . . their liability to one another for amounts paid to a claimant, to be

‘subclaimants’ for the purposes of Section 409.009.” Division Appeal No. 030286 (Mar. 20, 2003).

The appeals panel provided no reasoning for its position. Three years later, the Division rejected its

prior statement based on section 409.009’s “plain meaning” and section 402.084 of the Act, which

according to the appeals panel “recognizes by its express provision the potential of a carrier




                                                   5
becoming a subclaimant.”2 See Division Appeal No. 052857-s (Feb. 8, 2006). The appeals panel

held that a workers’ compensation carrier can be a subclaimant in accordance with section 409.009

of the Act.3 See id.


       Division’s jurisdiction over subclaim

               Next, Service Lloyds contends that, even if AAIC qualifies as a subclaimant under

section 409.009, as a matter of law the Division has no jurisdiction over an independently-raised

section 409.009 subclaim. Service Lloyds appears to concede that a section 409.009 subclaim may

be filed with the Division as part of a proceeding in which there is a pending dispute involving the

injured employee’s entitlement to benefits. The issue, then, is whether a section 409.009 claim may

be filed in the absence of such a pending benefit dispute.

               Service Lloyds relies on a 2004 appeals panel decision in which the Division

determined that a section 409.009 subclaimant could not independently invoke the Division’s

jurisdiction because the Division has the authority to resolve benefit disputes—pursuant to

section 410.002 of the Act and Division rule 140.1—and a subclaim, by itself, is not a “benefit

dispute.” See Division Appeal No. 040412 (Apr. 14, 2004); see also 28 Tex. Admin. Code § 140.1




       2
            Section 402.084 currently provides that a “potential subclaim identified by an insurance
carrier . . . may form the basis for the identification and filing of a subclaim against an insurance
carrier,” see id. § 402.084(c-4) (West 2006), and defines “insurance carrier” to include an insurance
company with authority to “engage in the business of workers’ compensation insurance in this state,”
see id. § 402.084(c-1)(2)(A).
       3
         We note that the Division has also not limited section 409.009 to insurers. See, e.g.,
Division Appeal No. 030281 (Mar. 13, 2003) (employee’s treating doctor); Division Appeal
No. 002026 (Oct. 16, 2000) (employer).

                                                 6
(2009) (defining “benefit dispute” as “disputed issue arising under the [Act] in a workers’

compensation claim regarding compensability or eligibility for, or the amount of, income or

death benefits”).

                However, the Division subsequently overruled its 2004 decision. See Division

Appeal No. 052857-s (determining that Division has jurisdiction over workers’ compensation

carrier’s subclaim despite absence of dispute over benefits that are due to employee). The Division’s

current interpretation is consistent with the applicable statutes and rules. Section 409.009 of the Act

expressly states that the person seeking reimbursement from the insurance carrier “may file a written

claim with the division.” Tex. Lab. Code Ann. § 409.009. Such a claim, by itself, falls within the

express scope of section 410.002 of the Act. See id. § 410.002 (“A proceeding before the division

to determine the liability of an insurance carrier for compensation for an injury or death under this

subtitle is governed by this chapter.”). The Division’s rules indicate not only that a subclaimant is

entitled to file its claim with the Division, see 28 Tex. Admin. Code § 140.6(c)(1) (“A subclaimant

may file and pursue a claim for reimbursement of a benefit that has been provided to an injured

employee . . . .”), but also that there need not be a pending dispute with regard to the employee’s

entitlement to benefits, see id. § 141.1(a) (2009) (“A request for a benefit review conference may be

made by . . . a subclaimant . . . .”).

                We consider the Division’s current interpretation to be reasonable.             Under

Service Lloyds’s construction, a carrier (as subclaimant) could recover from another carrier

erroneously paid benefits if the employee (as claimant) was disputing the amount of benefits to

which he is entitled, but not if the employee had no such dispute. Such a construction of the statute



                                                  7
could encourage a carrier-subclaimant to manufacture a dispute with the employee for the sole

purpose of pursuing a subclaim and thereby enabling its receipt of the reimbursement to which it is

entitled. In contrast, under the Division’s construction, the carrier-subclaimant can obtain any

reimbursement due without forcing the employee to become involved. In fact, the Division’s rules

contemplate the adjudication of a subclaim “without the participation of the injured employee.” See

id. § 140.6(c)(2), (3).

                The Division’s construction of section 409.009 of the Act is reasonable and does not

contradict the plain language of the Act or the Division’s rules. The Division has jurisdiction over

a section 409.009 claim even in the absence of a dispute affecting the amount to which the injured

employee is entitled. See Texas Mun. Power Agency, 253 S.W.3d at 192 (“In ascertaining the scope

of an agency’s authority, we give great weight to the agency’s own construction of a statute.”);

Tarrant Appraisal Dist., 845 S.W.2d at 823 (“Construction of a statute by the administrative agency

charged with its enforcement is entitled to serious consideration, so long as the construction is

reasonable and does not contradict the plain language of the statute.”).


Conclusion

                We conclude that a workers’ compensation carrier may be a “subclaimant” under

section 409.009 of the Act, and that the Division has jurisdiction over a subclaimant’s

section 409.009 claim against a carrier regardless of the existence of any dispute regarding the

amount of benefits to which the injured employee is entitled.4 Therefore, we find no error in the


        4
         Given our conclusions with respect to section 409.009 of the Act, we need not consider
Service Lloyds’s additional arguments that (1) AAIC has failed to sufficiently allege a claim under

                                                 8
district court’s judgment affirming the Division’s decision and order, pursuant to section 409.009

of the Act, that Service Lloyds reimburse AAIC the amount of $81,501 plus interest.5 We affirm the

judgment of the district court.




                                              __________________________________________

                                              G. Alan Waldrop, Justice

Before Justices Patterson, Pemberton and Waldrop

Affirmed

Filed: February 25, 2010




section 410.033 of the Act, see Tex. Lab. Code Ann. § 410.033 (West 2006) (in proceeding with
disputing carriers, authorizing reimbursement of payments made in accordance with interlocutory
order), or (2) the Division has no authority to award reimbursement under equitable principles, see
Houston Gen. Ins. Co. v. Association Cas. Ins. Co., 977 S.W.2d 634, 637-38 (Tex. App.—Tyler
1998, no pet.) (equitable subrogation claim involves balancing of equities).
       5
           Service Lloyds asserts a third point of error—that the Division’s award of $81,501 plus
interest was error. However, Service Lloyds bases this assertion of error exclusively on its previous
two points of error—that AAIC cannot be a subclaimant and that the Division is without jurisdiction
to order reimbursement. Consequently, Service Lloyds’s third point of error requires no additional
analysis.

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