                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-17-00269-CV


IN RE OLD REPUBLIC INSURANCE                                        RELATOR
COMPANY



                                       ----------

                             ORIGINAL PROCEEDING
                         TRIAL COURT NO. 048-281264-15

                                       ----------

                           MEMORANDUM OPINION1

                                       ----------

      In this workers’ compensation case focused on lifetime-income benefits

(LIBs), Relator Old Republic Insurance Company complains of the denial of its

plea to the jurisdiction by Respondent Senior Judge Fred Davis, sitting for the

Honorable David Evans in the 48th District Court of Tarrant County. Because we

agree that real party in interest Trena Jones has not exhausted her



      1
          See Tex. R. App. P. 47.4, 52.8(d).
administrative remedies in the Division of Workers’ Compensation (DWC), we

conditionally grant mandamus relief.

                   I.     Background and Procedural History

A.    Jones Was Injured on the Job and Collected Supplemental Income
      Benefits.

      In September 2006, Jones sustained multiple, severe injuries in a motor

vehicle accident during the course and scope of her employment. An incomplete

list of Jones’s injuries includes “cervical injuries, bilateral shoulder injuries and an

injury to her right hand in the form of a degloving of the pinkie finger.” By 2015,

Jones had received all the supplemental income benefits she was entitled to

receive under the “no ability to work” theory of recovery. See, e.g., Tex. Mut. Ins.

Co. v. Baker, 292 S.W.3d 798, 806 (Tex. App.—Fort Worth 2009, no pet.) (citing

relevant administrative code provisions and discussing the theory).

B.    Jones Attempted to Qualify for LIBs in the DWC.

      Jones sought LIBs through the DWC based on the loss of use of both her

hands at or above the wrist. The parties did not reach an agreement at a benefit

review conference, so on July 1, 2015, a DWC hearing officer2 held a contested

case hearing to decide whether Jones was “entitled to lifetime income benefits

(LIBs) from June 10, 2014, through [July 1, 2015], based on the loss of and/or

      2
       In nonsubstantive changes, the Texas Legislature recently replaced
“hearing officer” and “hearings officer” with “administrative law judge” in workers’
compensation statutes. See, e.g., Tex. Lab. Code Ann. § 410.204(c) (West
Supp. 2017). These nonsubstantive labels do not affect this opinion. We
therefore cite the current statutes.


                                      2
total and perm[ane]nt loss of use of both hands at or above the wrist,” see Tex.

Lab. Code Ann. § 408.161(a)(3), (b) (West 2015). See generally id. §§ 410.021–

.034, 410.151–.169 (West 2015 & Supp. 2017) (governing benefit review

conferences and contested case hearings in workers’ compensation matters).

       The parties stipulated before the hearing officer that Jones had sustained a

compensable injury.     The “Discussion” section of the hearing officer’s order

provides that “[b]ilateral carpal tunnel syndrome, cubital tunnel syndrome, lateral

epicondylitis and degenerative arthritis are not part of the compensable injury or

impairment. [Jones’s] impairment rating is based upon injuries to the cervical

spine, lumbar spine, bilateral shoulders and right little finger . . . .” [Emphasis

added.] The hearing officer found that Jones failed to establish that

         [S]he no longer possesse[d] any substantial utility of both hands
          at or above the wrist as a member of the body or her condition
          [was] such that she [could not] get and keep employment
          requiring the use of such member as a result of her compensable
          injury from June 10, 2014, through [July 1, 2015; or]

         [S]he ha[d] permanent loss of use of both hands as members of
          her body as a result of her compensable injury from June 10,
          2014, through [July 1, 2015].

       Neither party asked the hearing officer to issue a finding on the extent of

Jones’s compensable injury, and he did not. The hearing officer concluded that

Jones was not entitled to LIBs.

       Jones appealed the hearing officer’s decision to a DWC appeals panel,

which did not issue a decision of its own, instead allowing the hearing officer’s




                                     3
decision to become final and to become the appeals panel’s final decision. See

id. § 410.204(c).

C.    Old Republic Filed a Plea to the Jurisdiction in the Trial Court and a
      Request for an Expedited Benefit Review Conference with the DWC.

      Jones filed suit seeking judicial review of the DWC’s denial of her claim.

Almost two years later, on August 7, 2017, Old Republic filed a plea to the

jurisdiction, contending that Jones had not exhausted her administrative

remedies at the DWC because she had not yet obtained an administrative finding

defining the “exact nature” and extent of the injuries to her “hands or shoulders.”

On the same day, Old Republic requested an expedited benefit review

conference from the DWC, disputing the compensability of Jones’s claim and the

extent of her compensable injury.

D.    Respondent Denied the Plea to the Jurisdiction, and DWC
      Proceedings Remain Pending.

      Respondent denied Old Republic’s plea to the jurisdiction on August 11,

2017, and Old Republic filed its petition for writ of mandamus in this court that

same day. Meanwhile, the benefit review conference Old Republic requested

was scheduled for August 30, 2017.

                                II.       Discussion

A.    Standard of Review

      Mandamus relief is proper only to correct a clear abuse of discretion when

there is no “adequate remedy at law, such as a normal appeal.” In re H.E.B.

Grocery Co., L.P., 492 S.W.3d 300, 304 (Tex. 2016) (orig. proceeding) (quoting


                                      4
State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984) (orig. proceeding)). Whether

a clear abuse of discretion can be adequately remedied by appeal depends on a

careful analysis of the costs and benefits of interlocutory review. In re McAllen

Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding). As this

balance depends heavily on circumstances, it must be guided by analysis of

principles rather than simple rules that treat cases as categories.        Id.   “[T]o

prevent a disruption of the orderly processes of government,” mandamus relief is

available when a trial court erroneously denies a plea to the jurisdiction based on

a party’s failure to exhaust administrative remedies in a workers’ compensation

dispute. In re Liberty Mut. Fire Ins. Co., 295 S.W.3d 327, 328 (Tex. 2009) (orig.

proceeding); In re Tex. Mut. Ins. Co., 321 S.W.3d 655, 660 (Tex. App.—Houston

[14th Dist.] 2010, orig. proceeding [mand. denied]).

B.    Exhaustion of Remedies

      The DWC has exclusive jurisdiction to determine a claimant’s entitlement

to benefits. Am. Motorists Ins. Co v. Fodge, 63 S.W.3d 801, 804–05 (Tex. 2001)

(referring to predecessor to DWC); Tex. Mut. Ins. Co. v. Vasquez, No. 04-14-

00295-CV, 2015 WL 2339777, at *2 (Tex. App.—San Antonio May 13, 2015, no

pet.) (mem. op.) (stating same for DWC); Tex. Mut. Ins. Co., 321 S.W.3d at 660.

A workers’ compensation claimant must therefore exhaust all administrative

remedies within the DWC before seeking judicial review. Tex. Mut. Ins. Co.,

321 S.W.3d at 661. This requirement “ensures that the administrative agency

has the opportunity to resolve disputed fact issues within its exclusive jurisdiction

                                     5
before a court must address those issues.” Id. This requirement applies to

disputes regarding compensability and extent of injury. Id.

C.    LIBs

      LIBs, which “are permanent income benefits[,] . . . are paid upon the

establishment of eligibility . . . until . . . the death of the employee.” Liberty Mut.

Ins. Co. v. Adcock, 412 S.W.3d 492, 497 (Tex. 2013). LIB determinations are

subject to judicial review but may not be reopened thereafter. Id. For the total

loss of use of hands to be compensable, the loss of use must have resulted from

injury to the hands themselves.       See Dallas Nat’l Ins. Co. v. De La Cruz,

470 S.W.3d     56,   58   (Tex.    2015);   see    also   Tex.    Lab.   Code     Ann.

§ 408.161(a)(3), (b). The injury can be direct or indirect, but the hands’ physical

structures must have been damaged or harmed for the injury to be compensable.

See De La Cruz, 470 S.W.3d at 59; see also Tex. Lab. Code Ann.

§ 408.161(a)(3), (b).

D.    Application

      A trial court lacks jurisdiction to consider issues that were not first decided

in the administrative process.3 See Lopez v. Zenith-Ins. Co., 229 S.W.3d 775,

778 (Tex. App.—Eastland 2007, pet. denied) (op. on reh’g). The DWC has not

      3
        Jones’s arguments that Old Republic has waived or should be estopped
from raising its subject matter jurisdiction claims fail because subject matter
jurisdiction cannot be waived, Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 445 (Tex. 1993), and estoppel “cannot create subject-matter
jurisdiction where it does not otherwise exist.” In re Crawford and Co.,
458 S.W.3d 920, 928, n.7 (Tex. 2015) (original proceeding).


                                      6
fully resolved the dispute regarding the extent of Jones’s compensable injury for

LIB purposes; there are no findings defining the extent of her compensable injury

for LIB purposes. Therefore, the trial court does not yet have jurisdiction to

determine whether Jones is entitled to LIBs because that decision turns on the

extent of her compensable injury.           We consequently hold that Respondent

abused its discretion by denying Old Republic’s plea to the jurisdiction. Because

the DWC’s “orderly processes” would be disrupted by proceedings in the trial

court and Old Republic would be inconvenienced by a delayed appellate review,

we also hold that appeal would be inadequate in this case, and we conditionally

grant mandamus relief. See In re Sw. Bell Tel. Co., 235 S.W.3d 619, 623–

24 (Tex. 2007) (orig. proceeding).

                                III.       Conclusion

      Having held that Respondent abused his discretion and that an appeal in

this instance is inadequate, we conditionally grant relief.    The benefit review

conference Old Republic obtained by disputing Jones’s LIB claim regarding the

extent and compensability of her injury was set for August 30, 2017. Because

the “impediment to [the trial court’s] jurisdiction [can] be removed” by letting Old

Republic’s dispute of Jones’s claim proceed through the administrative steps in

the DWC, we direct Respondent to vacate his order denying Old Republic’s plea

to the jurisdiction and to abate the trial court proceedings pending the resolution

by the DWC of the extent and compensability of Jones’s injury for LIB purposes.




                                       7
See Fodge, 63 S.W.3d at 805. The writ will issue only if Respondent fails to

comply.



                                              PER CURIAM

PANEL: PITTMAN, MEIER, and KERR, JJ.

DELIVERED: September 28, 2017




                                 8
