Opinion filed October 8, 2009




                                               In The


   Eleventh Court of Appeals
                                            ___________

                                     No. 11-09-00005-CV
                                         __________

               FACILITY INSURANCE CORPORATION, Appellant

                                                  V.

                             KEVIN LOYD GIBBS, Appellee


                             On Appeal from the 35th District Court
                                     Brown County, Texas
                               Trial Court Cause No. CV0604153


                                           OPINION

       This is an interlocutory appeal in a workers’ compensation suit. Kevin Loyd Gibbs suffered an
injury while in the course and scope of his employment, and the Texas Department of Insurance, Division
of Workers’ Compensation, found that he was entitled to lifetime income benefits. Facility Insurance
Corporation filed suit to appeal this determination. Gibbs challenged the trial court’s jurisdiction to hear
new evidence, and the trial court found that its jurisdiction was limited to Gibbs’s entitlement to lifetime
income benefits through the date of the contested case hearing. We affirm.
                                          I. Background Facts
       Gibbs injured his lower back in 1993 and has undergone multiple back surgeries for this injury.
Gibbs was ultimately diagnosed with failed back syndrome, and his treating physician opined that Gibbs’s
lower extremities did not possess substantial utility because he was unable to control his legs and that
Gibbs would be unable to get and keep employment requiring the use of his legs. The Division found that
as of November 29, 2005, Gibbs was entitled to lifetime income benefits based on the total and permanent
loss of use of both feet.
        Facility appealed this determination and gave notice that it would call a vocational rehabilitation
counselor and an orthopedic surgeon to offer opinions on Gibbs’s employability and medical condition
that were developed after the administrative process. Gibbs contended that the trial court lacked
jurisdiction to consider any evidence of his condition after November 29, 2005. The trial court agreed and
held that no new evidence concerning Gibbs’s condition after November 29 was admissible. The trial
court also found that an interlocutory appeal was appropriate pursuant to TEX . CIV . PRAC. & REM . CODE
ANN . § 51.014(d) (Vernon 2008), and it entered an agreed order authorizing an interlocutory appeal.
                                                 II. Issues
        Facility challenges the trial court’s ruling with a single issue, contending that new evidence
generated after November 29, 2005, but concerning Gibbs’s condition, is admissible.
                                               III. Discussion
        The heart of this appeal is whether Facility can introduce evidence of Gibbs’s current condition.
Facility argues that, if Gibbs is not disabled today, then the hearing officer’s decision that he was
permanently disabled on November 29 is necessarily in error. Gibbs responds that his current condition
is not in issue and that, if Facility desires to seek relief based upon new medical evidence, it must first
present that evidence to the Division. We cannot directly address this issue by deciding whether specific
testimony or evidence would, if offered, be admissible because to do so would constitute an advisory
opinion. See Speer v. Presbyterian Children’s Home and Serv. Agency, 847 S.W.2d 227, 229 (Tex. 1993)
(courts have no jurisdiction to render advisory opinions). We will, therefore, restrict ourselves to the trial
court’s jurisdictional ruling.
        In Tex. Dep’t of Ins., Div. of Workers’ Comp. v. Jackson, 225 S.W.3d 734, 736 (Tex.
App.—Eastland 2007, no pet.), we held that the Workers’ Compensation Act imposes a three-step
administrative process as a predicate to seeking judicial review, that each step is contingent upon
completion of the prior proceeding, and that each step is limited to the scope of the prior proceeding.
Consequently, we found that the trial court lacked the authority to consider issues beyond those originally
presented to the hearing officer at the Contested Case Hearing. Id.

                                                      2
        The issue presented to the hearing officer in this case was whether Gibbs was entitled to lifetime
income benefits as of November 29, 2005, based on the total and permanent loss of use of both feet. The
trial court’s jurisdiction is limited to that same issue. But the Act does not limit the trial court’s
jurisdiction to consideration of the evidence presented to the hearing officer. The trial court has
jurisdiction to consider new evidence – even if it was created after November 29, so long as it is relevant
to Gibbs’s disability on November 29. For example, if Gibbs underwent an MRI on December 1 and a
doctor testified that the results of the MRI would have been the same if conducted on November 29, then
the court would have jurisdiction to consider this evidence. But if the new evidence instead establishes
Gibbs’s condition on some subsequent date, then the court lacks jurisdiction because the proffering party
has not yet exhausted its administrative remedies. See id. at 737 (whether claimant was entitled to
benefits at trial is a related but separate question from whether he was entitled to benefits as of the date
of the contested case hearing); see also DWC Appeals Panel Decision, APD, No. 020432-s, April 10,
2002, 2002 WL 971079 (Division has jurisdiction to determine continued entitlement to lifetime income
benefits).
        The trial court correctly found that its jurisdiction was limited to Gibbs’s entitlement to lifetime
income benefits as of November 29, 2005, and Facility’s issue is overruled. We express no opinion on
the findings of fact or conclusions of law in the trial court’s agreed order authorizing an interlocutory
appeal or on whether Facility’s new evidence is admissible.
                                               IV. Holding
         The trial court’s partial summary judgment order is affirmed.




                                                               RICK STRANGE
                                                               JUSTICE
October 8, 2009
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




                                                     3
