                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 DELIA MENDOZA,                                                 No. 08-08-00337-CV
                                                §
                        Appellant,                                   Appeal from
                                                §
 v.                                                          County Court at Law No. 6
                                                §
 OLD REPUBLIC INSURANCE                                       of El Paso County, Texas
 COMPANY,                                       §
                                                                  (TC # 2004-2974)
                        Appellee.               §


                                          OPINION

       Delia Mendoza appeals a summary judgment granted in favor of Old Republic Insurance

Company in litigation involving a worker’s compensation claim. For the reasons that follow, we

reverse and remand.

                                 FACTUAL BACKGROUND

       On July 14, 2004, Mendoza filed an original petition pursuant to Section 410.252 of the

Texas Labor Code, claiming that on or about May 8, 2003 she was injured on the job as an employee

of Leviton Mfg. Co., Inc. Her lawsuit sought to overturn an appeals panel decision which had

affirmed a ruling by a hearing officer that Mendoza did not sustain a compensable repetitive trauma

injury. On August 13, 2008, Old Republic Insurance Company filed a plea to the jurisdiction and,

alternatively, a motion for summary judgment on the basis that Mendoza failed to exhaust her

administrative remedies under the Texas Workers’ Compensation Act prior to filing the lawsuit. The

court denied the plea to the jurisdiction but granted summary judgment relief. This appeal follows.

In her sole issue for review, Mendoza complains that the summary judgment motion was legally
insufficient.

                                           SUMMARY JUDGEMENT

                                                 Standard of Review

         The issue on appeal is whether the movant met the summary judgment burden by establishing

that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter

of law. TEX .R.CIV .P. 166a(c). We review a summary judgment de novo. Valence Operating

Company v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In deciding whether a disputed issue of

material fact exists that would preclude summary judgment, we take all evidence favorable to the

non-movant as true and we indulge every reasonable inference and resolve any doubts in favor of

the non-movant. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.

1985).

                                               Timeliness of Response

         We first address Old Republic’s argument that Mendoza’s responsive pleadings cannot be

considered. It contends that because Mendoza failed to meet the seven-day requirement for filing

a response to the motion for summary judgment, she cannot now argue that her summary judgment

evidence creates a fact issue that would justify reversal. TEX .R.CIV .P. 166a(c).1

         Mendoza filed her response on August 29, 2008, one day late. Old Republic argued that the

filing was untimely and objected to the exhibits. The summary judgment affirmatively stated that

the court “considered all documents filed of record, the summary judgment evidence, the authorities

cited by the parties, and the argument of counsel, if any.” The court also overruled Old Republic’s

objections to Mendoza’s exhibits.


         1
           Rule 166a(c) of the Texas Rules of Civil Procedure states in relevant part: “Except on leave of court, the
adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written
response.”
       Mendoza counters that since Old Republic never moved to strike her response, it has waived

its right to complain. She also argues that the trial court both expressly and implicitly granted leave

to file a late response by considering all documents filed and overruling Old Republic’s objections.

       Our analysis is guided by Goswami v. Metropolitan Sav. & Loan Ass’n, 751 S.W.2d 487,

490-91 n. 1 (Tex. 1988). There, the Supreme Court held that absent a showing of surprise by the

opposing party, a failure to seek leave of court to file an untimely pleading may be cured by the trial

court’s action in considering the amended pleading. 751 S.W.2d at 490. But the court expressly

distinguished the presumption governing amended pleadings under Rule 63 from the presumption

governing the filing of opposing affidavits and responses to a motion for summary judgment under

Rule 166a(c). Id. at 490-91 n.1. The mere fact that the trial court’s judgment implies that it

reviewed Mendoza’s response does not dispense with the necessity of showing that the trial court

granted leave to file it untimely. Because Mendoza’s response was not properly before the trial

court, we will not review the response or the evidence attached to it. We will only address

Mendoza’s complaint regarding the legal sufficiency of the motion itself.

                              Exhaustion of Administrative Remedies

       The Texas Worker’s Compensation Act provides for a three-part administrative process: (1)

a benefit review conference, (2) a contested case hearing, and (3) an appeal to the Division of

Workers’ Compensation’s Appeals Panel. TEX .LAB.CODE ANN . § 410.023 (Vernon 2006)(benefit

review conference); TEX .LAB.CODE ANN . § 410.151 (contested case hearing);TEX .LAB.CODE ANN .

§ 410.202 (appeal to appeals panel). These administrative proceedings are a prerequisite to any

lawsuit for judicial review where the underlying claim is a workers’ compensation claim: “A party

that has exhausted its administrative remedies under this subtitle and that is aggrieved by a final

decision of the appeals panel may seek judicial review under this subchapter.” TEX .LAB.CODE ANN .
§ 410.251. A party’s failure to exhaust administrative remedies under the workers’ compensation

laws deprives the district court of jurisdiction. TEX .LAB.CODE ANN . § 410.251; Combined Specialty

Ins. Co. v. Deese, 266 S.W.3d 653, 658 (Tex.App.--Dallas 2008, no pet.).

       In the trial court, Old Republic argued that there was no genuine issue of material fact with

respect to Mendoza’s failure to exhaust her administrative remedies. The summary judgment

evidence revealed that Mendoza suffered a prior work-related injury to her left arm, her left hand,

and her neck in 2002.

       Q. All right. Ms. Mendoza, I understand that when you were working at Leviton you
       had a prior workers’ compensation injury that you reported. Is that correct?

       A. Yes, sir.

       Q. And I believe the date of that injury was April 6, 2002?

       A. Yes, sir.

       Q. And at that time you felt numbness and pain in your hands and fingers. Is that
       correct?

       A. Yes, I did.

       Q. Was that in both hands and fingers?

       A. Both hands.

       Q. Your left hand and your right hand?

       A. Yes, sir.

This work-related injury and associated workers’ compensation claim also involved carpal tunnel
syndrome:

       Q. So I take it at that point in time, sometime in 2002, you believed that your carpal
       tunnel syndrome in both hands was related to your work at Leviton?

       A. That’s what the doctor stated.

                                           .     .      .
       Q. Okay. And did you have any reason to doubt what the doctors told you?

       A. No, I do not.

       Q. Okay. You don’t have any reason to doubt that today, do you?

       A. No, sir.

Although Mendoza also claimed a neck injury when she filed in 2002, the Division of Workers’

Compensation found that the work-related injury did not include an injury to Mendoza’s left hand

or neck.

       Q. Okay. So, to make sure I understand you, when you pursued your claim at the
       Division of Workers’ Compensation, the Division of Workers’ Compensation said
       your left hand injury and your neck was not part of or included within your workers’
       compensation injury?

       A. Yes, sir.

       Q. And that’s as a result of the April 2002 injury?

       A. Yes, sir.

Mendoza’s testimony is corroborated by the certified copies of the Division of Workers’

Compensation administrative records that were attached to the summary judgment motion.

       Mendoza never appealed the decision of the Texas Workers’ Compensation Commission

concerning the scope and extent of the April 2002 injury. Old Republic argues that instead of

appealing the adverse decision, Mendoza concocted a new injury, filed a new workers’ compensation

claim, and prosecuted that claim in the present lawsuit. To support its argument, Old Republic relies

on Mendoza’s testimony that the 2003 injuries could be traced back to the 2002 injury:

       Q. Ms. Mendoza, I understand that in this case you’re claiming that you have this
       injury to your left hand and your neck, but that relates back to the date you injured
       your right arm, your right hand. Is that right?

       A. Yes, sir.
       Q. Okay. So it relates back to the date April 6, 2002?

       A. Yes, sir.

       Q. That’s what you’re claiming in this case?

       A. Yes, sir.

       The Act defines a compensable injury as “damage or harm to the physical structure of the

body.” TEX .LAB.CODE ANN . § 401.011(26)(Vernon Supp. 2009). As a matter of law, pain alone

cannot be considered damage to the body. Saldana v. Houston General Ins. Co., 610 S.W.2d 807,

811 (Tex.Civ.App.--Houston [1st Dist.] 1980, writ ref’d n.r.e.). However, the aggravation of a

preexisting condition is a compensable injury for purposes of the Act. See Peterson v. Continental

Casualty Company, 997 S.W.2d 893, 895 (Tex.App.--Houston [1st Dist.] 1999, no pet.); Cooper v.

St. Paul Fire & Marine Ins. Co., 985 S.W.2d 614, 616-18 (Tex.App.--Amarillo 1999, no pet.).

       Old Republic introduced summary judgment evidence that Mendoza returned to work at

Leviton on April 21, 2003. The Employer’s First Report of Injury dated June 6, 2003, indicated that

not only did Mendoza return to work, she reported a subsequent injury on May 8, complaining of

numbness and pain in her left arm, thumb, index and middle finger, and neck. The Employer’s First

Report also established that Mendoza had experienced pain to her neck and numbness to her thumb,

index, and middle finger since April 6, 2002. Mendoza was diagnosed with L-CTS on May 5, 2003.

       The Employer’s First Report of Injury creates a genuine issue of material fact as to whether

Mendoza suffered an aggravation of a preexisting condition. Consequently, Old Republic is not

entitled to judgment as a matter of law. TEX .R.CIV .P. 166a(c). Under the applicable standard of

review, we take all evidence favorable to the non-movant as true and indulge every reasonable

inference and resolve any doubts in favor of the non-movant. Nixon, 690 S.W.2d 549. We must thus

indulge the inference that Mendoza suffered and was diagnosed with an injury subsequent to her
return to work on April 21, 2003. Despite the fact that Mendoza testified that the injury relates back

to 2002, aggravation of a preexisting condition is still a compensable injury for purposes of the

Texas Workers’ Compensation Act. We sustain Mendoza’s sole point of error, reverse the trial

court’s granting of the summary judgment in favor of Old Republic, and remand the case for further

proceedings consistent with this opinion.


July 30, 2010
                                                      ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.
