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                                    MEMORANDUM OPINION

                                             No. 04-07-00859-CV

                        PACIFIC EMPLOYERS INSURANCE COMPANY,
                                       Appellant

                                                        v.

                                                 Bill HIBDON,
                                                    Appellee

                      From the 57th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2003-CI-05050
                              Honorable Lori Massey, Judge Presiding1

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Karen Angelini, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: April 29, 2009

REVERSED AND RENDERED

           This is an appeal from a judgment affirming a portion of a decision by the Appeals Panel of

the Texas Workers’ Compensation Commission (TWCC), which found Pacific Employers Insurance

Company (“Pacific”) had waived its right to contest the compensability of a worker’s claimed




           1
          … The trial was held before the Honorable Karen Pozza, judge of the 407th Judicial District Court, and she
orally rendered judgment. However, the written judgment was signed by the Honorable Lori Massey, former judge of
the 288th Judicial District Court.
                                                                                                        04-07-00859-CV



injury.2 Pacific appeals, raising three issues contesting the trial court’s judgment. We reverse the

trial court’s judgment and render judgment in favor of Pacific.

                                                    BACKGROUND

         In 2002, William Hibdon claimed he suffered an on-the-job injury. Hibdon reported his

alleged injury to his employer, which contacted its insurance carrier, Pacific. Two days after it

received notice, Pacific filed its notice of refusal to pay (TWCC-21) with the TWCC, contesting the

compensability of Hibdon’s claim, and sent the same form to Hibdon, albeit to the wrong address.

At the contested case hearing, Hibdon claimed Pacific had waived its right to contest compensability

because Hibdon had not received the notice of refusal within seven days of the date Pacific received

notice of the injury, as he contends was required by the version of section 409.021(a) of the Texas

Labor Code in effect at the time of Hibdon’s alleged injury.3 See Act of May 12, 1993, 73rd Leg.,

R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 987, 1195, codifying Act of December 12, 1989, 71st Leg.,

2d C.S., ch. 1, § 5.21(a), 1989 Tex. Gen. Laws 1, 51 (effective Jan. 1, 1991) (stating that “not later

than the seventh day after the date on which an insurance carrier receives written notice of an injury,

the insurance carrier shall . . . notify the commission and the employee in writing of its refusal to pay

. . . .”). The hearing officer disagreed, finding Pacific had not waived its right to contest

compensability because it timely mailed the notice and Hibdon timely received it. The hearing

officer also concluded Hibdon did not sustain a compensable injury and had no disability. An



         2
         … The TW CC was abolished effective September 1, 2005, with its functions transferred to a new division of
the Texas Department of Insurance. Sw. Bell Tel., L.P. v. Mitchell, 276 S.W .3d 443, 444 n.3 (Tex. 2008) (citing Act
of May 29, 2005, 79th Leg., R.S., ch. 265, §§ 1.003, 8.001, 2005 Tex. Gen. Laws 469, 470, 607-08).

         3
         … All references to section 409.021(a) of the Texas Labor Code are to the version in effect at the time of
Hibdon’s alleged injury. See Mitchell, 276 S.W .3d at 445 (referring to version of section 409.021(a) in effect at the time
of worker’s alleged injury).

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appeals panel for the TWCC agreed with the hearing officer’s determinations on injury and

disability, but disagreed with the finding on waiver, and held Pacific failed to timely send notice that

it was refusing to pay to Hibdon at the correct address, thereby waiving its right to contest

compensability.

        Pacific filed suit in the district court, challenging the appeals panel finding of waiver. No

other findings by the appeals panel were challenged by Pacific or Hibdon. The matter was tried to

the court, which found Pacific had mailed its notice of refusal to the wrong address, and Hibdon did

not receive it within the statutorily-required seven days. The trial court concluded section 409.021(a)

required that Hibdon actually receive the written notice of refusal no later than seven days after

Pacific received written notice of the alleged injury. The trial court rendered judgment in favor of

Hibdon, affirming the appeals panel decision on waiver. Pacific filed this appeal.

                                               ANALYSIS

        In its first issue, Pacific argues the trial court erred in concluding section 409.021(a) required

Hibdon to receive Pacific’s written notice of refusal no later than seven days after Pacific received

written notice of Hibdon’s injury. We agree.

        After the briefs in this case were filed, and the matter was submitted to this court, the Texas

Supreme Court issued its opinion in Sw. Bell Tel. v. Mitchell, 276 S.W.3d 443 (Tex. 2008). In

Mitchell, the supreme court held the failure of a workers’ compensation insurer to either begin

paying benefits or give written notice of its refusal to do so within the seven day deadline of section

409.021(a) did not waive the insurer’s right to contest the compensability of the worker’s injury. 276




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                                                                                                           04-07-00859-CV



S.W.3d at 448.4 If an insurer does not waive its right to contest compensability by failing to send

notice of refusal within the seven day period, then per force it cannot waive the right to contest

compensability if the worker fails to receive it within the seven day period.5 See id. Accordingly,

the trial court erred as a matter of law in concluding Pacific waived compensability because Hibdon

did not receive Pacific’s notice of refusal to pay within seven days of the date Pacific received notice

of Hibdon’s injury.

                                                      CONCLUSION

         We sustain Pacific’s first issue. Because our sustaining of the first issue is dispositive of the

appeal, we need not address Pacific’s remaining issues. We reverse the trial court’s judgment and

render judgment in favor of Pacific, holding it did not waive its right to contest compensability.

Given that the TWCC hearing officer and the appeals panel both found Hibdon neither sustained a

compensable injury nor had a disability, and the findings were not contested in the trial court,

Hibdon is not entitled to the payment of any benefits.



                                                                   Steven C. Hilbig, Justice




         4
          … Mitchell overruled Continental Cas. Co. v. Downs, which held section 409.021(a) precluded a insurer from
contesting the compensability of a worker’s injury unless the insurer, within seven days of receiving notice of injury,
either began to pay benefits or gave written notice of its refusal to do so. 81 S.W .3d 803, 804, 807 (Tex. 2002).

         5
          … Hibdon does not argue that he did not receive Pacific’s notice of refusal within sixty days of the date Pacific
received notice of the injury. See T EX . L ABOR C O D E A N N . § 409.021(c) (Vernon 2006) (stating that if insurance carrier
does not contest compensability of injury on or before 60th day after date on which insurance carrier is notified of injury,
carrier waives right to contest compensability). Accordingly, section 409.021(c) is not implicated.

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