      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-09-00435-CV



                                  Lonnie Donaldson, Appellant

                                                  v.

             Hoskins Electrical and North River Insurance Company, Appellees


     FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
             NO. 32,966, HONORABLE ED MAGRE, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant Lonnie Donaldson sued appellees Hoskins Electrical (“Hoskins”) and

North River Insurance Company (“North River”) (collectively “the defendants”) for judicial review

of a final decision of the Division of Workers’ Compensation of the Texas Department of Insurance

(“the Division”). The defendants answered and filed a plea to the jurisdiction, asserting that (1) the

trial court did not have subject-matter jurisdiction because Donaldson failed to exhaust his

administrative remedies by not timely requesting appeals panel review, and (2) Donaldson’s former

employer, Hoskins, was an improper party to a suit for judicial review of a workers’ compensation

decision. The trial court granted the defendants’ plea. On appeal, Donaldson asserts that (1) the trial

court has subject-matter jurisdiction over his suit for judicial review because he did not receive

timely notice of the hearing officer’s order and over his “tort suit” because the defendants previously

asserted that Donaldson was not an employee of Hoskins, and (2) the trial court erred in denying his
“request for a bench warrant to Milam County to defend himself in the 20th District Court.” We will

affirm the trial court’s order.


                      FACTUAL AND PROCEDURAL BACKGROUND

                Donaldson was employed by Hoskins as an operator of heavy digging equipment.

On June 30, 1999,1 he injured himself while lifting a heavy loading ramp onto an equipment trailer.

Donaldson filed a worker’s compensation claim. North River, Hoskins’s workers’ compensation

insurance company, denied the claim, asserting that Donaldson had failed to notify Hoskins of his

injury within the time required by the labor code. Donaldson requested a benefits review conference

to contest the denial. Because the parties were unable to come to an agreement at the conference,

Donaldson requested a contested case hearing. The Division set the hearing for November 9, 2006.

                Donaldson failed to appear at the hearing because he was incarcerated. The day after

the hearing, the Division sent Donaldson a letter giving him ten days to show cause for failing

to appear at the hearing. Receiving no response within the ten day period, the hearing officer

closed the record on November 21, 2006. On November 29, 2006, the hearing officer issued his

decision, finding that Donaldson was an employee of Hoskins at the time of his injury but that his

injury was not compensable because he failed to timely notify his employer of his injury. On

December 6, 2006, the Division mailed the hearing officer’s decision to Donaldson at his address

of record. According to the appellate record, Donaldson mailed his request for administrative review

of the hearing officer’s decision on August 16, 2007.


        1
          The administrative record lists Donaldson’s date of injury as May 20, 1999. The actual
date of injury is not relevant to the disposition of this appeal.

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                The appeals panel’s opinion recites that Donaldson, in a letter to Division

ombudsman Linda Lewis dated November 11, 2006, explained his absence at the contested case

hearing and noted that his address had changed as a result of his incarceration. Donaldson failed,

however, to include his new address. The opinion notes that, in support of his argument that the

Division already had his new address on file, Donaldson submitted a copy of an envelope addressed

to Lewis and postmarked November 20, 2006, that provides a different address for Donaldson than

the one on file with the Division. The appeals panel noted, however, that the envelope was not in

the Division’s file and did not bear a “received date” stamp that would indicate if or when it was

received by the Division.

                The appeals panel determined that, based on the record, Donaldson’s request for

review of the hearing officer’s decision was untimely because it was neither filed nor postmarked

by the deadline of January 4, 2007. Concluding that his petition was filed untimely, the appeals

panel dismissed the appeal for lack of jurisdiction. Donaldson filed his suit for judicial review of

the appeals panel decision in the trial court. The defendants filed a plea to the jurisdiction, asserting

that Donaldson had failed to exhaust his administrative remedies. The trial court granted the plea,

and Donaldson appealed.


                                    STANDARD OF REVIEW

                Whether a court has subject matter-jurisdiction is a question of law that we review

de novo. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225 (Tex. 2004). A trial

court has jurisdiction to review the decision of an agency only when provided by statute or when the

agency decision adversely affects a vested property or constitutional right. Continental Cas. Co.

                                                   3
v. Functional Restoration Assocs., 19 S.W.3d 393, 397 (Tex. 2000). The labor code permits a party

who has exhausted his administrative remedies and is aggrieved by a final decision of the Division’s

appeals panel to seek judicial review. Tex. Lab. Code Ann. § 410.251 (West 2006). In order to

exhaust his administrative remedies, a party must timely file a request for review with the appeals

panel. Frank v. Liberty Ins. Corp., 255 S.W.3d 314, 320 (Tex. App.—Austin 2008, pet. denied).

If a party does not timely file such a request, the trial court lacks subject-matter jurisdiction over a

suit for judicial review of the appeals panel decision. Id.


                                           DISCUSSION

Exhaustion of Administrative Remedies

                In his first issue, Donaldson asserts that the trial court erred in granting the

defendants’ plea to the jurisdiction because, under the circumstances, his appeals panel review

request was filed timely. He also argues that the trial court has jurisdiction over his “tort suit”

against the defendants because they had previously asserted that Donaldson was not an employee at

the time of his injury. The defendants argue that the record shows that Donaldson failed to exhaust

his administrative remedies and that his tort suit was improper because the labor code makes the

workers’ compensation system the exclusive remedy for an employee injured on the job and covered

by workers’ compensation insurance.

                To have exhausted his administrative remedies, Donaldson must have timely filed his

request for appeals panel review. Id. The deadline for filing a request is found in section 410.202

of the labor code:




                                                   4
       (a)     To appeal the decision of a hearing officer, a party shall file a written request
               for appeal with the appeals panel not later than the 15th day after the date on
               which the decision of the hearing officer is received from the division and
               shall on the same date serve a copy of the request for appeal on the
               other party.

       ....

       (d)     Saturdays and Sundays and holidays listed in Section 662.003, Government
               Code, are not included in the computation of the time in which a request
               for an appeal under Subsection (a) or a response under Subsection (b) must
               be filed.


Tex. Lab. Code Ann. § 410.202 (West 2006). The record reflects that the hearing officer’s order was

signed on November 29, 2006, and was mailed to Donaldson’s address of record on file with the

Division on December 6, 2006.

               The Division’s rules, which have the force and effect of statutory law, see Rodriguez

v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex. 1999), deem the hearing officer’s decision as

received by the claimant five days after it was mailed to the claimant’s address of record unless the

great weight of the evidence indicates otherwise, see 28 Tex. Admin. Code § 102.5(d) (2008) (Tex.

Dep’t of Ins., Div. of Workers’ Compensation, Gen. Rules for Written Commc’ns to & from Div.).

That means, barring evidence to the contrary, Donaldson was deemed to have received the hearing

officer’s decision on December 11, 2006. Pursuant to section 410.202 of the labor code and Division

rule 143.3(d)(1), his request for review was due fifteen days later, not counting Saturdays, Sundays,

or holidays. Tex. Lab. Code Ann. § 410.202(a), (d); 28 Tex. Admin. Code § 143.3(d)(1) (2008)

(Tex. Dep’t of Ins., Div. of Workers’ Compensation, Dispute Resolution by the Appeals Panel).

Excluding Christmas and New Year’s Day and not counting Saturdays and Sundays, Donaldson’s



                                                  5
petition for review had to be postmarked no later than January 4, 2007, to be timely. The record

reflects that his petition for review was postmarked on August 16, 2007, more than eight months

too late.

               Donaldson asserts that he did not receive actual notice of the hearing officer’s

decision until February 2007, via a letter sent by ombudsman Lewis explaining that his deadline to

file a request for appeals panel review had passed. Assuming without deciding that Donaldson

presented sufficient evidence to the Division in support of his contention that he did not receive

actual notice of the hearing officer’s decision until February 2007, his August 2007 filing would still

be untimely. Fifteen days after February 2007 would, at the latest, make the filing deadline

sometime in the middle of March 2007. Donaldson’s August 2007 filing is therefore, at a minimum,

five months too late. Because Donaldson failed to timely file his request for appeals panel review,

he failed to exhaust his administrative remedies. Because he failed to exhaust his administrative

remedies, the trial court lacked subject-matter jurisdiction over his suit for judicial review. See

Frank, 255 S.W.3d at 320.


Donaldson’s Tort Suit

               Donaldson argues that the trial court has jurisdiction over his tort suit against the

defendants because they represented to the court that Hoskins was not Donaldson’s employer at the

time of his injury. Donaldson reasons that this means that the Division no longer has exclusive

jurisdiction and that he may therefore bring a suit in tort against the defendants.

               This contention is without merit. The record reflects that Donaldson filed a workers’

compensation claim asserting that he was injured during the course and scope of his employment


                                                  6
with Hoskins. The hearing officer’s decision on Donaldson’s claim specifically found that he was

Hoskins’s employee at the time he was injured. Moreover, Donaldson does not point to any alleged

assertion by the defendants that he was not Hoskins’s employee. In any event, the non-appealed

decision of the hearing officer here is final and controlling. See Tex. Lab. Code Ann. § 410.169

(West 2006). As such, section 408.001 of the labor code bars Donaldson’s tort suit. See id.

§ 408.001 (West 2006) (workers’ compensation is exclusive remedy for injured employees whose

employers have workers’ compensation insurance).           Accordingly, we overrule Donaldson’s

first issue.


Bench Warrant

               In his second issue, Donaldson asserts that the trial court erred when it denied his

“request for a bench warrant to Milam County to defend himself in the 20th District Court.” It

appears that Donaldson is arguing that the trial court abused its discretion when it denied his motion

to be transported from his then-current site of incarceration to the courthouse to “present evidence”

at the hearing on the defendants’ plea. Donaldson asserts that his presence at the hearing was

indispensable because he was not allowed to otherwise present evidence showing the actual date that

he received notice of the hearing officer’s decision. Even assuming Donaldson is correct, there is

no error here. As noted above, Donaldson contends that he received notice of the hearing officer’s

decision in February 2007. Even taking as true Donaldson’s assertion, we have concluded that his

August 2007 filing for review was untimely. Thus, any argument or evidence in support of his

contention that he could have presented at the hearing would have been unavailing. Accordingly,

we overrule Donaldson’s second issue.

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                                      CONCLUSION

               Having overruled Donaldson’s two issues on appeal, we affirm the order of the

trial court.



                                           __________________________________________

                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Waldrop

Affirmed

Filed: August 11, 2010




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