                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-08-00340-CV

LONNIE DONALDSON,
                                                        Appellant
v.

SERVICE LLOYDS INSURANCE COMPANY,
                                                        Appellee



                          From the 21st District Court
                            Burleson County, Texas
                             Trial Court No. 25,306


                         MEMORANDUM OPINION


      Lonnie Donaldson suffered a work-related injury in 1992 and was awarded

worker’s compensation benefits. When he challenged his impairment rating, the Texas

Department of Insurance Division of Worker’s Compensation (“DWC”) held a

contested case hearing and rendered a decision. Donaldson appealed, but the Appeals

Panel dismissed the appeal as untimely. In 2008, Donaldson, a Texas inmate, sued

Service Lloyds Insurance Company, his employer’s insurance carrier, for negligence

and pain and suffering. The trial court granted Lloyds’s plea to the jurisdiction and
motion to dismiss. Donaldson appeals, arguing that: (1) he was denied a jury trial; (2)

he was denied counsel; (3) he was not allowed to wear his “free world clothing” at the

hearing on Lloyds’ motion; (4) he failed to timely receive transcripts; (5) Lloyds used his

status as an inmate to make him “look bad;” (6) no evidence was presented on his

behalf at the contested case hearing and the DWC hearing officer improperly found that

he failed to show cause for failure to appear at the hearing; and (7) Lloyds has denied

medical treatment and payment. We affirm.

                                       ANALYSIS

       The allegations in Donaldson’s petition arise out of his 1992 injury. In its plea to

the jurisdiction, Lloyds argued that: (1) the DWC has the sole authority to award

compensation benefits; thus, the administrative process is Donaldson’s exclusive

remedy; and (2) Donaldson’s suit for judicial review of an agency decision was not

timely. In its motion to dismiss, Lloyds argued that Donaldson’s lawsuit is frivolous

under Chapter 14 of the Civil Practice and Remedies Code.

       The Texas Workers’ Compensation Act provides that the recovery of workers’

compensation benefits is the exclusive remedy of an employee covered by workers’

compensation insurance for a work-related injury. Roskey v. Continental Cas. Co., 190

S.W.3d 875, 880 (Tex. App.—Dallas 2006, pet. denied); Bestor v. Serv. Lloyds Ins. Co., 276

S.W.3d 549, 553 (Tex. App.—Waco 2008, no pet.); see Am. Motorists Ins. Co. v. Fodge, 63

S.W.3d 801, 804-05 (Tex. 2001); see also TEX. LAB. CODE ANN. § 408.001(a) (Vernon 2006).

It “vests the power to award compensation benefits solely in the Workers’

Compensation Commission, subject to judicial review.”          Fodge, 63 S.W.3d at 803.


Donaldson v. Service Lloyds Ins. Co.                                                 Page 2
Donaldson’s suit arises out of the same injury for which he received benefits. The

DWC, not the trial court or this Court, evaluates “disputes over income benefits,

preauthorization of medical care, and reimbursement of medical expenses.”                                Id.

Donaldson’s exclusive remedy is the recovery of worker’s compensation benefits, not a

common law personal injury claim.1 See Aguirre v. Vasquez, 225 S.W.3d 744, 753 (Tex.

App.—Houston [14th Dist.] 2007, no pet.) (“Section 408.001 of the Labor Code

precludes employees or families of employees who have received Workers’

Compensation benefits from asserting a common law claim for those injuries.”).

        Additionally, Donaldson filed a suit for judicial review against the DWC hearing

officer, not Lloyds. To the extent that his pleadings against Lloyds may be construed as

an attempt to seek judicial review, he must have sought judicial review within forty

days of the Appeals Panel’s filed decision, in this case September 2007. See TEX. LAB.

CODE ANN. § 410.251 (Vernon 2006); see also Act of May 12, 1993, 73d Leg., R.S., ch. 269,

§ 1, 1993 Tex. Gen. Laws 987, 1209 (amended 2009) (current version at TEX. LAB. CODE

ANN. § 410.252 (Vernon Supp. 2009)). He maintains that, in October 2007, he sued

Lloyds in Brazos County. That suit, however, was dismissed. Our review consists

solely of the Burleson County proceedings, which were not filed until May 2008, well

beyond the forty-day time period for seeking judicial review.

        Because the trial court lacked jurisdiction over Donaldson’s claims, Lloyds’ plea

to the jurisdiction was properly granted and the trial court did not violate Donaldson’s


1        We also note that the two-year statute of limitations has run for filing a personal injury lawsuit.
See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon 2002).



Donaldson v. Service Lloyds Ins. Co.                                                                 Page 3
right to a jury trial by dismissing the lawsuit. See Fort Bend County v. Martin-Simon, 177

S.W.3d 479, 484 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (“When a trial court

learns that it lacks jurisdiction to hear a cause, the court must dismiss the cause and

refrain from rendering a judgment on the merits.”). Nor was the trial court required to

appoint an attorney for Donaldson. See Gibson v. Tolbert, 102 S.W.3d 710, 712 (Tex. 2003)

(“[W]e have ‘never held that a civil litigant must be represented by counsel in order for

a court to carry on its essential, constitutional function.’”). The record of the hearing

contains no objection from Donaldson as to his “free world clothing.” See TEX. R. APP. P.

33.1. Nor does the record support Lloyds’ complaints regarding untimely receipt of

transcripts or an intent to make him “look bad.” Because the trial court properly

granted Lloyds’ plea to the jurisdiction, his lawsuit was properly dismissed on that

basis and we need not address whether the trial court properly granted Lloyds’ motion

to dismiss as frivolous. We affirm the trial court’s judgment.




                                                       FELIPE REYNA
                                                       Justice
Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
       (Chief Justice Gray concurring with note)*
Affirmed
Opinion delivered and filed November 10, 2009
[CV06]

*      (Chief Justice Gray concurs only in the judgment of the Court and only to the
extent it affirms the trial court’s judgment and assesses cost against Appellant. A
separate opinion will not issue.)




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