      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-06-00208-CV



               Shelly Frank, as Beneficiary of Eric Frank, Deceased, Appellant

                                                   v.

                            Liberty Insurance Corporation, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
    NO. D-1-GN-05-001135, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



                                            OPINION


               Shelly Frank appeals from the district court’s judgment dismissing her suit for lack

of subject-matter jurisdiction. Frank had obtained an adverse decision of a Texas Workers’

Compensation Commission hearing examiner and then requested review by the Commission’s

appeals panel. The appeals panel concluded that Frank had failed to timely file her request for

review and dismissed her administrative appeal. Frank then sued in district court for judicial review

of the appeals panel’s order. The carrier, Liberty Insurance Corporation, moved to dismiss Frank’s

suit for lack of subject-matter jurisdiction, urging that Frank had failed to exhaust her administrative

remedies by timely seeking appeals panel review. The district court granted Liberty’s motion.

               Concluding that Frank timely invoked the appeals panel’s jurisdiction, we reverse the

judgment of the district court and remand for further proceedings.
                                         BACKGROUND

               Shelly Frank’s husband, Eric Frank, had been an 11-year employee of Brinks, a

security and armored vehicle provider. On June 28, 2004, Brinks requested that Eric Frank report

to a “secret location.” On his way to this location, he sustained fatal injuries as a result of an

automobile accident. As his beneficiary, Shelly Frank filed a claim for workers’ compensation

benefits. Liberty, Brinks’s insurer for workers’ compensation coverage at the time, contested the

claim on the ground that injuries or deaths occurring while traveling to and from work are not

compensable. Frank argued that her husband’s death was compensable because the accident

occurred while he was on a “special mission” within the course and scope of his employment.

               Frank retained counsel to pursue her claim through the administrative processes of

the Texas Workers’ Compensation Commission.1 On September 1, 2004, Frank’s counsel sent

written notice to the Commission that his firm was representing Frank in connection with her

pending claim.2 Frank’s counsel requested a benefit review conference. An attorney from the firm

represented Frank at the benefit review conference on November 18, 2004. After the conference,

which did not resolve the case, a contested case hearing before a Commission hearing examiner was

held December 14, 2004. An attorney with the firm represented Frank at the hearing. On the

       1
         Nearly all of the events relevant to this appeal occurred prior to the legislature’s transfer
of the Commission’s functions to the Texas Department of Insurance, Workers Compensation
Division, effective September 1, 2005. See Act of May 29, 2005, 79th Leg., R.S., ch. 265, § 8.001,
2005 Tex. Gen. Laws 469, 607-08. For clarity, we will refer to this governmental entity simply as
“the Commission.”
       2
          The notice, on the firm’s letterhead, identified Ms. Frank as the claimant and listed her
social security number, Commission claim number, her late husband’s employer (Brinks), Brinks’s
carrier (Liberty), and the date of injury. Counsel also enclosed with this notice a copy of the firm’s
employment contract with Ms. Frank.

                                                  2
following day, the hearing officer signed a “Decision and Order” finding that Frank was not entitled

to benefits because Eric Frank had not been within the course and scope of employment at the time

of his injury. The decision noted that Frank “appeared and was represented by” counsel at the

hearing, identifying counsel by name.

                There is no dispute that the Commission was required by its own rules

to send a copy of the hearing officer’s decision to both Frank and her counsel.                    Rule

102.5—the Commission’s “General Rules for Written Communications to and from the

Commission”—provides in relevant part:


        After the Commission is notified in writing that a claimant is represented by an
        attorney or other representative, all copies of written correspondence to the claimant
        shall thereafter be sent to the representative as well as the claimant, unless the
        claimant requests delivery to the representative only. However, copies of
        settlements, notices setting benefit review conferences and hearings, and orders of
        the Commission shall always be sent to the claimant regardless of representation
        status. All written communications to the claimant or claimant’s representative will
        be sent to the most recent address or facsimile number supplied on either the
        employer’s first report of injury, any verbal or written communication from the
        claimant, or any claim form filed by the carrier via written notice or electronic
        transmission.


28 Tex. Admin. Code § 102.5(a) (2004).3 The Commission had unquestionably been “notified in

writing” that Frank was represented by an attorney. “Written communications” were at relevant

times defined within rule 102.5 to “include all records, reports, notices, filings, and other information

contained either on paper or in an electronic format.” Id. § 102.5(g). The term therefore included




        3
       We cite to the version of the Texas Administrative Code that was in effect at the time the
Commission issued its decision.

                                                   3
hearing officer decisions, as the second sentence of rule 102.5, subsection (a), implies. See id.

§ 102.5(a). Consequently, the Commission was required by subsection (a) of rule 102.5 to send

the hearing notice to both Frank and Frank’s counsel via “the most recent address or facsimile

number supplied on either the employer’s first report of injury, any verbal or written communication

from the claimant, or any claim form filed by the carrier via written notice or electronic

transmission.” Id.

               A copy of the Commission’s letter transmitting the hearing officer’s decision reflects

that, on December 22, 2004, the Commission mailed copies of the decision to Liberty’s counsel and

Frank personally, and sent what it termed “information copies” to Brinks and to “Ombudsman.” The

Commission did not send a copy to Frank’s counsel as required by its rule 102.5(a). Frank observes

that the Commission’s sending of the decision to “Ombudsman” is consistent with its procedures

for claimants who are not represented by counsel. See Act of May 12, 1993, 73rd Leg., R.S.,

ch. 269, § 1, sec. 409.041, 1993 Tex. Gen. Laws 987, 1196-97 (former Tex. Lab. Code

§ 409.041(b)(4)) (current version at Tex. Lab. Code Ann. § 404.151(b)(4) (West 2006)) (purposes

of Commission’s ombudsman program include “assist[ing] unrepresented claimants, employers, and

other parties to enable those persons to protect their rights in the workers’ compensation system”);

see also Act of May 26, 1995, 74th Leg., R.S., ch. 980, § 1.31, sec. 409.041, 1995 Tex. Gen. Laws

4912, 4920 (former Tex. Lab. Code § 409.041(b)(5)) (current version at Tex. Lab. Code Ann.

§ 404.151(b)(5) (West 2006)) (requiring an ombudsman to “meet with an unrepresented claimant

privately for a minimum of 15 minutes prior to any informal or formal hearing”) (emphasis added).




                                                 4
               Frank’s counsel did not receive a copy of the decision or any notice that a decision

had been issued until January 28, 2005, when counsel happened to call the Commission to inquire

as to the status of the proceeding.4 In response to this telephone call, the Commission faxed a copy

of the hearing officer’s decision to Frank’s attorney that same day.           Frank’s attorney then

immediately filed—on the same day—a request for review with the appeals panel.

               The appeals panel held that it did not have jurisdiction to review the hearing officer’s

decision because Frank’s request for review was not filed timely. The panel, relying on a long line

of its decisions involving similar facts, reasoned that the Commission’s mailing of the decision to

Frank personally had alone triggered her deadline for filing her administrative appeal, that this

deadline had lapsed before January 28, 2005, and that “we do not consider” whether or when her

counsel ever received a copy of the decision as required by rule 102.5(a) because “the operative date

for determining the timeliness of the appeal is the date the claimant, not his or her attorney, received

the hearing officer’s decision.” Evidently it is not unprecedented for the Commission to mail

claimants copies of hearing officer decisions while misdirecting or failing altogether to send copies

to claimants’ counsel as required by rule 102.5(a). In such instances, the appeals panel has ruled




       4
          The record is silent as to whether “Ombudsman” actually received a copy of the hearing
officer’s decision, though under the Commission’s rules, as discussed below, he or she would be
deemed to have received it five days after mailing. See 28 Tex. Admin. Code § 102.5(d) (2004).
The record does not indicate that “Ombudsman” thereafter made any effort in response to the
misdirected mailing to ensure that Frank’s rights were protected, such as forwarding the decision to
Frank or her counsel.

                                                   5
that the claimant’s appeal deadline is triggered solely by the claimant’s actual or deemed personal

receipt of the decision without regard to when or if counsel received it.5

               Frank then filed a suit for judicial review of the appeals panel’s decision in the

district court. Liberty filed a motion to dismiss the suit on the grounds that the district court lacked

subject-matter jurisdiction because Frank had not exhausted her administrative remedies by timely

requesting appeals panel review of the hearing officer’s decision. The district court granted Liberty’s

motion to dismiss. This appeal followed.




       5
          See Tex. Workers’ Comp. Comm’n, Appeal No. 50442, 2005 TX Wrk. Comp. LEXIS 87,
(Apr. 12, 2005) (claimant’s counsel delayed in receiving decision because Commission sent it to
wrong address; panel held that deadline ran from date claimant was deemed to have received
decision by mail); Tex. Workers’ Comp. Comm’n, Appeal No. 001646, 2000 TX Wrk. Comp.
LEXIS 1158 (Aug. 18, 2000) (Commission erroneously sent hearing officer’s decision intended for
claimant’s counsel to another attorney; counsel did not receive decision until after appeal deadline,
triggered by claimant’s deemed date of receipt, had run; panel held that “the operative date for
determining the timeliness of an appeal is the date the party received the hearing officer’s decision,
and is not the date the party’s attorney received the decision”); Tex. Workers’ Comp. Comm’n,
Appeal No. 950503, 1995 TX Wrk. Comp. LEXIS 4383 (May 15, 1995) (claimant’s counsel did not
receive copy of hearing officer’s decision or carrier’s request for review for 1-1/2 months; “We note
that the Commission’s cover letter attached to the decision appears to have inadvertently left out the
name of the claimant’s attorney, which certainly should have been included”); Tex. Workers’ Comp.
Comm’n, Appeal No. 941144, 1994 TX Wrk. Comp. LEXIS 5407(Oct. 4, 1994) (claimant’s counsel
did not receive copy of hearing officer’s decision from Commission, but was given copy by claimant;
“the operative date for determining the timeliness of this appeal is the date the claimant, not
his attorney, received the hearing officer’s decision”); Tex. Workers’ Comp. Comm’n, Appeal
No. 92219, 1992 TX Wrk. Comp. LEXIS 2418 (July 15, 1992) (same holding where Commission
transmitted hearing officer’s decision to claimant, carrier, carrier’s attorney, and employer, but not
to claimant’s attorney; “the Commission sent a copy of the decision to appellant’s attorney and
apologized for his being inadvertently omitted from the distribution list”); see also Tex. Workers’
Comp. Comm’n, Appeal No. 001467, 2000 TX Wrk. Comp. LEXIS 989 (Aug. 9, 2000) (trigger date
for requesting review was date carrier’s representative received hearing officer’s decision, not date
its counsel received it); Tex. Workers’ Comp. Comm’n, Appeal No. 93353, 1993 TX Wrk. Comp.
LEXIS 3349 (June 21, 1993) (same).

                                                   6
                                             ANALYSIS

                Frank brings a single issue contending that the district court erred in dismissing her

suit for judicial review for lack of subject-matter jurisdiction because she had timely filed her request

for review with the appeals panel and, therefore, did not fail to exhaust her administrative remedies.

When reviewing the grant of a motion to dismiss based on a lack of subject-matter jurisdiction, we

review the record de novo to determine whether the trial court had subject-matter jurisdiction. Lacy

v. Bassett, 132 S.W.3d 119, 122 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (citing Bland

Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). A plaintiff must allege facts

affirmatively demonstrating the trial court’s jurisdiction to hear the case. Texas Ass’n of Bus.

v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). We construe the pleadings in favor

of the plaintiff, accepting all his allegations as true, and consider only the evidence pertinent to the

jurisdictional inquiry. Bland, 34 S.W.3d at 555.

                Trial courts possess jurisdiction to grant judicial review of an agency action only

when provided for by statute, or the agency action adversely affects a vested property right or

otherwise violates a constitutional right. Continental Cas. Ins. Co. v. Functional Restoration

Assocs., 19 S.W.3d 393, 397 (Tex. 2000). The legislature has provided that “[a] party that has

exhausted its administrative remedies under [the workers’ compensation act] and that is aggrieved

by a final decision of the appeals panel may seek judicial review.” Tex. Lab. Code Ann. § 410.251

(West 2006). Included in a party’s exhaustion-of-remedies requirements is the timely filing of a

request for review with the appeals panel. Continental Cas. Co. v. Rivera, 124 S.W.3d 705, 712

(Tex. App.—Austin 2003, pet. denied) (citing Tex. Lab. Code Ann. § 410.202).



                                                   7
                Statutory requirements that define, enlarge, or restrict the class of causes the

court may decide or the relief the court may award are considered to be jurisdictional. Sierra Club

v. Texas Natural Res. Conservation Comm’n, 26 S.W.3d 684, 687-88 (Tex. App.—Austin 2000),

aff’d on other grounds, 70 S.W.3d 809 (Tex. 2002). Consequently, a party’s failure to exhaust

administrative remedies under the workers’ compensation act—including timely filing a request for

review with the appeals panel—deprives the district court of subject-matter jurisdiction over the

party’s suit for judicial review of the appeals panel’s decision. Rivera, 124 S.W.3d at 712.

                Whether Frank timely filed her request for judicial review with the appeals panel

turns on the statutes and Commission rules governing when she was considered to have received the

hearing officer’s decision and the deadline for her to request review. The legislature has provided

that “[t]o 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 . . . .” Tex. Lab. Code Ann. § 410.202(a) (West 2006). The

Commission has further specified in its rules that “[a] party to a benefit contested case hearing who

is dissatisfied with the decision of the hearing officer may request the appeals panel to review the

decision,” and that “[t]he request shall”: (1) be in writing; (2) “clearly and concisely rebut each issue

in the hearing officer’s decision that the appellant wants reviewed, and state the relief the appellant

wants granted”; (3) “be filed . . . not later than the 15th day after receipt of the hearing

officer’s decision”; (4) be served on the other party on the same day filed with the Commission; and

(5) contain a certificate that a copy of the request has been served on other parties. See

28 Tex. Admin. Code § 143.3(a) (2004). Saturdays, Sundays, and legal holidays listed in section



                                                   8
662.003 of the government code are not included in the computation of time in which a request for

an appeal must be filed. Id. § 143.3(f); see Tex. Gov’t Code Ann. § 662.003 (West 2004).

“Untimely requests,” the Commission has further provided, “do not invoke the jurisdiction of the

appeals panel and will not be reviewed by the appeals panel.” 28 Tex. Admin. Code § 143.3(a)(3).

               The Commission has also promulgated rules for determining when a hearing officer’s

decision is considered to be “received” by a party so as to trigger the 15-day deadline for requesting

appeals panel review. Rather than determining when a party actually received the decision in every

case, the Commission has crafted a regime whereby the date of receipt will be presumed or deemed

based on when and how the Commission transmitted the decision to the party. At relevant times,

subsection (d) of rule 102.5—another component of the Commission’s “General Rules for Written

Communications to and from the Commission”—provided:


       (d)     For purposes of determining the date of receipt for those written
               communications sent by the Commission which require the recipient to
               perform an action by a specific date after receipt, unless the great weight of
               evidence indicates otherwise, the Commission shall deem the received date
               to be five days after the date mailed; the first working day after the date the
               written communication was placed in a carrier’s Austin representative box
               located at the Commission’s main office in Austin as indicated by the
               Commission’s date stamp; or the date faxed or electronically transmitted.


Id. § 102.5 (2004). The deemed-date provisions control unless the party can prove by “the great

weight of the evidence” that he or she “did not have actual notice by one of the deemed dates.”

Texas Workers’ Comp. Comm’n v. Harris Co., 132 S.W.3d 139, 145 (Tex. App.—Houston

[14th Dist.] 2004, no pet.). Similarly, rule 143.3, one of the Commission’s rules governing requests




                                                  9
for appeals panel review in particular, contains deemed-date provisions that are substantively

identical to rule 102.5(d) in all respects relevant to this case:


        (d)     The commission shall deem that the parties received the hearing officer’s
                decision:

                (1)     five days after the date the commission’s letter was mailed to the
                        parties, unless the great weight of evidence indicates otherwise;

                (2)     the first working day after the date the written communication was
                        placed in a carrier’s Austin representative box located at the
                        commission’s main office in Austin unless the great weight of
                        evidence indicates otherwise;

                (3)     the working day that it was faxed by the commission, if faxed during
                        normal business hours as defined in § 102.3(c); otherwise, the next
                        working day after the date faxed; or

                (4)     the working day that it was electronically transmitted by the
                        commission, if transmitted during normal business hours as defined
                        in § 102.3(c); otherwise, the next working day after the date
                        electronically transmitted.


28 Tex. Admin. Code § 143.3(d) (2004).

                In its decision holding that Frank failed to timely request review, the appeals panel

stated that “Commission records indicate that the hearing officer’s decision was mailed to the

claimant beneficiary on December 22, 2004.” The panel further observed that “the claimant did

not dispute or provide evidence that she did not receive the hearing officer’s decision from

the Commission.” Frank has not challenged these factual determinations. Applying the deemed-

date provision applicable to written communications sent by mail, the appeals panel held

that Frank personally had “received” the decision five days after mailing—December 27, 2004.



                                                   10
See 28 Tex. Admin. Code § 102.5(d) (“unless the great weight of evidence indicates otherwise, the

Commission shall deem the received date to be five days after the date mailed . . . ,”); see also id.

§ 143.3(d) (“The commission shall deem that the parties received the hearing officer’s decision:

(1) five days after the date the commission’s letter was mailed to the parties, unless the great weight

of evidence indicates otherwise . . . .”). From this deemed receipt date, the appeals panel calculated

Frank’s deadline to file her appeal to be January 18, 2005. See Tex. Lab. Code Ann. § 410.202;

28 Tex. Admin. Code § 143.3(a)(3), (e)-(f). Since Frank’s attorney did not fax the request for review

to the Commission until January 28, 2005, the appeals panel held that the request had not

been timely filed.

               As noted, it is undisputed that Frank’s counsel did not receive a copy of the decision

until January 28, 2005. In the appeals panel’s view, whether, when or if Frank’s counsel received

the hearing officer’s decision was irrelevant for purposes of determining when Frank’s 15-day appeal

deadline began running. The panel summarized its rationale, and that of the prior appeals panel

decisions on which it relied, as follows:


       The Appeals Panel has held that since the 1989 [Workers’ Compensation] Act gives
       the party, not the attorney, the right to appeal, and provides the party, not the
       attorney, with 15 days in which to file an appeal, the operative date for determining
       the timeliness of the appeal is the date the claimant, not his or her attorney, received
       the hearing officer’s decision. Texas Workers’ Compensation Commission Appeal
       No. 92219, decided July 15, 1992; Texas Workers’ Compensation Commission
       Appeal No. 941144, decided October 4, 1994. While Rule 102.5(a) does provide that
       written communications to the claimant shall be sent to the representative, this has
       been interpreted [by the Commission] to be a courtesy copy as provided for in
       Commission Advisory 93-11, signed November 4, 1993, and does not operate to
       extend or change the 15 days after receipt of the hearing officer’s decision by the
       party. Texas Workers’ Compensation Commission Appeal No. 011059, decided
       June 26, 2001.

                                                  11
Tex. Workers’ Comp. Comm’n, Appeal No. 050206, 2005 TX Wrk. Comp. LEXIS 59

(March 14, 2005).

              In the Commission’s Advisory 93-11, cited by the appeals panel, the Commission

construed its rules to provide that only its communications sent directly to parties to workers’

compensation dispute resolution processes—claimants, carriers, and employers—constitute notice

to those parties and that any communications sent to those parties’ respective counsel are mere

“courtesy copies.”


       [A]ll documents and notices that are required to be provided by the Texas Workers’
       Compensation Commission to insurance carriers that provide workers’ compensation
       coverage will be placed in the Carrier’s Austin Commission Representative’s Box
       on the first floor in the Central Office. Notice to the Carrier for all purposes will be
       established by this notification.

       ....

       If the Carrier was represented by an attorney at any proceeding before the
       commission, and the Commission has the address of such attorney in its files, then
       a courtesy copy of all documents related to workers’ compensation dispute resolution
       proceedings, including transmittal letters containing Benefit Review Conference
       Reports, Contested Case Hearing Decisions, and Appeals Panel Decisions will be
       mailed to such attorney.

       All documents and notices related to workers’ compensation dispute resolution
       proceedings that are required to be provided by the Texas Workers’ Compensation
       Commission to claimants will continue to be mailed to the Claimant. Notice to the
       Claimant for all purposes will be established by this notification. If the Claimant is
       represented by an attorney before the Commission, and the Commission has the
       address of such attorney in its files, then a courtesy copy of all such documents will
       be mailed to such attorney.

       All documents and notices that are required to be provided by the Texas Workers’
       Compensation Commission to employers will continue to be mailed to the Employer.
       Notice to the Employer for all purposes will be established by this notification. If the
       Employer is represented by an attorney before the Commission, and the Commission

                                                 12
        has the address of such attorney in its files, then a courtesy copy of all documents
        related to workers’ compensation dispute resolution proceedings will be mailed to
        such attorney.


TWCC          Advisory           93-11        (Nov.         4,     1993),        available            at

http://www.tdi.state.tx.us/wc/news/advisories/ad93-11.html.

                Frank disputes the Commission’s interpretation of its rules. She urges that the

Commission’s view renders meaningless rule 102.5(a)’s mandate that the Commission send the

hearing officer’s decision to both Frank and her counsel, as it permits a claimant’s appeal deadline

to expire without counsel ever receiving notice of the decision. To effectuate rule 102.5(a)’s

mandate, Frank argues, her appeal deadline must be construed to have been triggered only when her

counsel, in addition to Frank herself, finally received the decision. Because her counsel immediately

filed an appeal on her behalf once he received the decision, Frank asserts that she timely invoked the

appeals panel’s jurisdiction and did not fail to exhaust her administrative remedies. See Tex. Lab.

Code Ann. § 410.202(a); 28 Tex. Admin. Code § 143.3(a)(3), (e). Frank suggest that Liberty “is

asking the Court to ignore [rule 102.5] and hold that the citizens of this state and their lawyers cannot

rely on a properly promulgated Commission Rule requiring the Commission to send a copy of the

CCH Hearing Officer’s Decision to the attorney representing a claimant for purposes of triggering

the 15 day deadline.” Frank further emphasizes the principle that courts must “liberally construe the

Workers’ Compensation Act in favor of the injured worker; thus, a strained or narrow construction

is improper.” Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000).

                Liberty urges that we should defer to the Commission’s interpretation of its own rules

because it is not plainly erroneous or inconsistent with the text of the rules. Liberty argues that while

                                                   13
rule 102.5(a) obligated the Commission to send copies of the hearing officer’s decision to both Frank

and her counsel, the rule is silent regarding the consequences of noncompliance. Liberty also points

out that other language in rule 102.5(a) requires “copies of settlements, notices setting benefit review

conferences and hearings, and orders of the Commission shall always be sent to the claimant

regardless of representation status.” See 28 Tex. Admin. Code § 102.5(a). “That emphasis on notice

to the claimant,” Liberty contends, “supports the Appeals Panel’s conclusion in this case that notice

to the attorney is a courtesy and not a prerequisite to commencement of the 15-day response

deadline.” To the extent the rules are vague, ambiguous, or leave room for policy determinations,

Liberty further asserts, the Commission’s comments when adopting amended rule 102.5(a) evince

intent that further supports the appeals panel’s holding. There, the Commission explained that it

amended rule 102.5(a) to “specifically list some documents which will be sent to both the claimant

and the claimant’s representative regardless of the claimant’s request” because “sending notices to

both the claimant and the claimant’s representative reduces potential delays in distributing

information that could occur if notices were only sent to the claimant’s representative.” 24 Tex. Reg.

6499 (1999) (Tex. Workers’ Comp. Comm’n). Liberty views these comments as reflecting an

understanding and intent that only the claimant’s receipt of notices requiring responsive action, and

not that by her attorney, triggers response deadlines.

               “We construe administrative rules, which have the same force as statutes, in the same

manner as statutes.” Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex. 1999).

“Unless the rule is ambiguous, we follow the rule’s clear language.” Id. The failure of an agency

to follow the clear, unambiguous language of its own rules is arbitrary and capricious, and will be



                                                  14
reversed. Id. at 254-55. Although we defer to an agency’s interpretation where there is vagueness,

ambiguity, or room for policy determinations in the regulation, we cannot defer to an administrative

interpretation that is plainly erroneous or inconsistent with the regulation. Id. (quoting Public Util.

Comm’n of Tex. v. Gulf States Util. Co., 809 S.W.2d 201, 207 (Tex. 1991)); BFI Waste Sys. of N.

Am., Inc. v. Martinez Environ. Group., 93 S.W.3d 570, 575 (Tex. App.—Austin 2002, pet. denied).

Further, as this Court has observed, a “competing factor” limiting the deference we might otherwise

afford the Commission’s interpretation of its own rules is the longstanding principle that “we must

liberally construe the Workers’ Compensation Act in favor of the injured worker; thus, a strained

or narrow construction is improper.” Ackerson v. Clarendon Nat’l Ins. Co., 168 S.W.3d 273, 275

(Tex. App.—Austin 2005, pet. denied) (citing Keng, 23 S.W.3d at 349).

                The text of rules, like statutes, is the first and foremost means of achieving

our primary objective: ascertaining and giving effect to the intent of the body that enacted them.

State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006); Texas Dep’t of Transp. v. City of Sunset Valley,

146 S.W.3d 637, 642 (Tex. 2004); Rodriguez, 997 S.W.2d at 254. Besides yielding our primary

indicator of the drafters’ intent, this focus on the text of the enactment “ensures that ordinary citizens

are able to ‘rely on the plain language . . . to mean what it says.’” Diversicare Gen. Partner, Inc.

v. Rubio, 185 S.W.3d 842, 860 (Tex. 2005) (quoting Fitzgerald v. Advanced Spine Fixation Sys.,

996 S.W.2d 864, 866 (Tex. 1999)). We must read the enactment as a whole and not just

isolated portions, giving meaning to language consistent with its other provisions. City of Sunset

Valley, 146 S.W.3d at 642. We must presume that the entire enactment was intended to be effective.

Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 86 (Tex. 2006).



                                                   15
               Subsection (a) of rule 102.5 unequivocally requires that the Commission, once it

receives written notification that a claimant is represented by counsel or other representative, “shall”

thereafter send copies of “all written communications” to both the claimant and the representative.

28 Tex. Admin. Code § 102.5(a) (emphasis added). “Shall” denotes a mandatory duty. See

Tex. Gov’t Code Ann. § 311.016(2) (West 2005); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493

(Tex. 2001). Thus, based on the plain meaning of its own rule 102.5(a), the Commission had

assumed the mandatory obligation of sending the hearing officer’s decision to Franks via two

independent means—to Franks personally and to her counsel.6 When viewed in context of the

Workers Compensation Act as a whole and the principle that it must be construed liberally to

achieve its purposes of compensating injured workers, this unique dual-notice requirement manifests

intent to protect the rights of claimants who are relying on counsel by ensuring that both the claimant

and counsel receive copies of all written communications, making such communications less likely




       6
         Further, reading subsections (a) and (b) of rule 102.5 together confirms that, as is ordinarily
the case, a written communication to a claimant’s counsel is considered to be a means of written
communication to the claimant. Specifically, the final sentence of subsection (a) identifies the
addresses or facsimile numbers that the Commission will use when sending “[a]ll written
communications to the claimant or claimant’s representative,” while subsection (b) separately
addresses the contact information that the Commission will use to send “written communications
to persons other than carriers and claimants.” 28 Tex. Admin. Code § 102.5(a), (b) (emphasis
added). Read together, these provisions imply that a claimant’s representative is not among the
“persons other than carriers or claimants” addressed in subsection (b) because written
communications “to the claimant or claimant’s representative” as referenced in subsection (a) are
both communications to the claimant.

        Subsection (b)’s reference to carriers reflects that such entities are governed by separate
statutes and rules requiring that they receive communications through a designated Austin
representative and that such communications constitute notice to the carrier. We discuss these
requirements below.

                                                  16
to be overlooked by either. Rule 102.5(a)’s further requirement that the Commission give dual

notice of “copies of settlements, notices setting benefit review conferences and hearings, and orders

of the Commission,” even if the claimant requests to have their written communications sent

exclusively to counsel, is also consistent with this intent.7

                The deemed receipt provisions of subsection (d), rule 102.5 and rule 143.3(d) must

be construed in this context, especially where the former appears in the same rule as the dual notice

requirement of subsection (a). See City of Sunset Valley, 146 S.W.3d at 642 (statutes must be

construed as a whole, not just isolated portions). The parties’ dispute ultimately turns on a choice

between two alternative “trigger events” under the deemed receipt provisions. Under Liberty’s view,

echoing that of the Commission, we should look only to when the Commission mailed the hearing

officer’s decision to Frank personally, without regard to when (or even if) it sent the decision to

Frank’s counsel. Under Frank’s view, we should look to the communication through which the

Commission completed its compliance with the dual-notice requirement of rule 102.5(a). The

former construction would eviscerate the manifest intent of rule 102.5(a)’s dual-notice requirement,

while Frank’s construction would give effect to both sets of provisions. We accordingly conclude

that Frank’s construction is the correct one.8 See Lexington Ins. Co., 209 S.W.3d at 86.

        7
          We also observe that nothing in the rule’s “legislative history” cited by Liberty is
inconsistent with the intent manifested in its text.
        8
          We also observe that while the current version of rule 102.5(d) explicitly provides that “the
Commission shall deem the received date to be the earliest of” five days after mailing, the first
working day after placement in a carrier’s Austin representative’s box, or the date faxed or
electronically transmitted, 28 Tex. Admin. Code § 102.5(d) (2007) (emphasis added), the prior
version that applies to this case, as one of our sister courts has observed, did not “indicate that it is
the earliest of the deemed date provisions that controls,” Texas Workers’ Comp. Comm’n v. Harris
Co., 132 S.W.3d 139, 145 (Tex. App.—Houston [14th dist.] 2004, no pet.); see 28 Tex. Admin.
Code § 102.5(d) (2004). The same is true of rule 143.3(d).

                                                   17
               We also find instructive the supreme court’s analysis in Commercial Life Insurance

Company v. State Board of Insurance, 774 S.W.2d 650, 651-52 (Tex. 1989). Commercial Life had

initiated a proceeding in the department of insurance to change its name. After a hearing, the

commissioner approved the name change but the board of insurance subsequently voted to overrule

the commissioner’s order. No notice of this order was given to Commercial. The APA required that

as a prerequisite to appealing an agency order or decision in a contested case, a motion for rehearing

had to be filed within 15 days after the date of rendition. Commercial learned of the order 17 days

after it had been rendered. Commercial immediately filed a motion for rehearing, which was

overruled by operation of law, and then sued for judicial review. A plea to the jurisdiction was filed

on the basis that Commercial had failed to exhaust its administrative remedies by filing a timely

motion for rehearing. The trial court sustained the plea and dismissed the suit. Id.

               The APA at the time contained a requirement that the parties be notified personally

or by mail of any decision or order entered by the agency, but did not specify when such notice must

be given. Nonetheless, the supreme court inferred from the statutory scheme legislative intent that

the agency “promptly notify the parties of its orders or decisions” and that “[i]n the absence of such

notice, the legislature could not have intended [the 15-day rehearing deadline] to preclude the

parties’ right to appeal.” Id. at 652. “Thus,” it reasoned, “the time period for filing a motion for

rehearing does not commence until the agency complies with its statutory duty to notify the parties

of the order or decision.” Id. The court observed that the 15-day rehearing deadline “requires parties

to take prompt action in order to preserve their right to seek judicial review” and that “the duty of

the agency to provide notice serves the critical function of informing the aggrieved party of the date

on which the [deadline] begins to run.” Id. For that reason, the supreme court held, it would

                                                 18
“interpret the notice provision . . . to ensure that a party’s ability to seek judicial review of agency

orders and decisions will not be compromised because of the agency’s failure to give notice of the

order.” Id.; see Meador-Brady Mgt. Corp. d/b/a Pasadena Honda v. The Tex. Motor Vehicle

Comm’n, 866 S.W.2d 593, 595-96 (Tex. 1993) (applying same analysis to motor vehicle code).

               Here, the Commission has imposed upon itself an obligation not only to ensure that

claimants are served some notice of its decisions sufficiently promptly to enable them to seek review,

but also to provide such notice through both claimants and their representatives. The purposes of

this dual-notice requirement, like the notice requirement in Commercial Life Insurance, would be

compromised unless the appeal deadlines under the Commission’s rules are interpreted not to

commence until the agency fully complies with its duty to give notice. Commercial Life Ins. Co.,

774 S.W.2d at 652.

               The Commission’s view that its failure to comply with its rule 102.5(a) mandate is

irrelevant for appeal deadline purposes is based on the same sort of “strained or narrow construction”

that this Court condemned in Ackerson. 168 S.W.3d at 275. Its notion that “since the 1989 Act

gives the party, not the attorney, the right to appeal, and provides the party, not the attorney, with

15 days in which to file an appeal, the operative date for determining the timeliness of the appeal is

the date the claimant, not his or her attorney, received the hearing officer’s decision” lacks support.

Section 410.202 of the labor code may “give[] the party, not the attorney, the right to appeal,” and

impose deadlines that impact “the party, not the attorney,”9 but the same is true for any claim


        9
           See Tex. Lab. Code Ann. § 410.202(a ) (West 2006)(“[t]o 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 . . . .”)
(emphasis added).

                                                  19
in which an attorney represents a party. We further note that in the Workers Compensation Act, the

legislature expressly provided that “[a] claimant may be represented at a benefit review conference,

a contested case hearing, or arbitration by an attorney” or other representative. Tex. Lab. Code Ann.

§ 410.006(a) (West 2006); see also id. § 408.221 (West 2006) (governing attorney’s fee awards paid

to claimants’ counsel). As the legislature anticipated that claimants could be represented by counsel

in the contested case hearing leading to the decision that is the subject of appeal panel review, its

reference to “party” in section 410.202 necessarily comprehends that either a party or counsel acting

on his or her behalf could “receive” the hearing officer’s decision.10

               Similarly strained and inconsistent with the Workers Compensation Act and the

Commission’s own rules is the notion, stated in Advisory 93-11, that communications to a claimant’s

counsel are mere “courtesy copies” irrelevant to appeal deadlines. That view is squarely inconsistent

with the text of rule 102.5, as we have previously explained.11 There is likewise no support for that

view in the Workers Compensation Act. There is support in the act and the Commission’s rules for

treating written communications sent to carriers’ counsel as mere “courtesy copies.” The legislature

has explicitly required carriers to designate an Austin representative and provided that “[n]otice

to the designated agent constitutes notice to the insurance carrier.” Id. § 406.011(a) (West 2006);

see 28 Tex. Admin. Code § 41.35 (2004) (requiring carriers to designate Austin representatives and

that “[w]ritten notification or communication by the [Commission] with such representative shall



       10
          Subsections (a) and (b) of rule 102.5, again, are consistent with this observation. See
supra note 5.
       11
         And, as Frank suggests, the notion would come as quite a surprise to claimants and their
counsel who were relying on the Commission’s dual-notice obligation stated in the text of rule 102.5
“‘to mean what it says.’” Rubio, 185 S.W.3d at 860 (quoting Fitzgerald, 996 S.W.2d at 866).

                                                 20
be deemed notification to the carrier for all purposes”). But the legislature has imposed no

such requirement regarding notice to claimants. To the contrary, labor code section 410.202, as

discussed above, contemplates “receipt” of a hearing officer’s decision by either a claimant or his

or her counsel.12

                 We hold that Frank did not receive the hearing officer’s decision until January

28, 2005, and that she complied with the 15-day deadline for requesting appeal panel review by filing

her request on the same day.        Tex. Lab. Code Ann. § 410.202(a); 20 Tex. Admin. Code

§ 143.3(a)(3). Consequently, she did not fail to exhaust her administrative remedies, and that the

district court erred in dismissing her suit for judicial review for lack of subject-matter jurisdiction.

We reverse the district court’s judgment of dismissal and remand to that court for further

proceedings.




                                               Bob Pemberton, Justice

Before Justices Pemberton, Waldrop and Henson;
 Dissenting Opinion by Justice Waldrop

Reversed and Remanded

Filed: April 11, 2008




        12
             We express no opinion regarding copies of communications sent to employers and their
counsel.

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