            TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-01-00631-CV



                         Everest National Insurance Company, Appellant

                                                   v.

  Texas Workers = Compensation Commission; Subsequent Injury Fund; Leonard W. Riley,
         Jr. in his Official Capacity as Director of Texas Workers = Compensation
                  Commission; and John Casseb, in his Official Capacity as
                    Administrator of Subsequent Injury Fund, Appellees


         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
            NO. GN003433, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                Everest National Insurance Company (Everest) paid workers= compensation benefits to

two injured employees1 pursuant to orders issued by hearing officers of the Texas Workers=

Compensation Commission. The Commission=s appeals panel subsequently affirmed the orders.2 Everest

appealed the panel=s decisions in district court and succeeded in having both decisions reversed. Having

done so, Everest requested reimbursement of all overpaid benefits as authorized by former sections

410.032(b) and 410.205(c) of the Workers= Compensation Act, which provides for reimbursement from


        1
         Everest seeks reimbursement for overpayments made in two unrelated cases, one involving
Michael P. Lee and another involving Janette Wilkerson.
        2
           In the Lee case, the appeals panel failed to timely issue a written decision. Accordingly, the
hearing officer=s decision became that of the appeals panel. See Tex. Lab. Code Ann. ' 410.204(c) (West
Supp. 2002).
the Subsequent Injury Fund (the Fund) after an interlocutory order awarding benefits is finally modified or

reversed.3 The administrator of the Fund denied a portion of the requested amount because it represented

payments made between the hearing officer=s decision and the appeals panel decision. 4

                Everest filed a third suit in district court seeking declaratory judgments under the

Administrative Procedure Act (APA) and the Uniform Declaratory Judgments Act (UDJA). See Tex.

Gov=t Code Ann. ' 2001.038 (West 2000); Tex. Civ. Prac. & Rem. Code Ann. '' 37.001-.011 (West

1997 & Supp. 2002). Relying on prior decisions from this Court, Everest moved for summary judgment,

asserting its rights to pursue a direct action to enforce what it alleged was the Commission=s statutory duty

to provide reimbursement and to obtain a declaratory judgment that the statute entitled Everest to

reimbursement. See Vanliner Ins. Co. v. Texas Workers= Comp. Comm=n, 999 S.W.2d 575, 579 (Tex.

        3
          See Act of May 12, 1993, 73d Leg., R.S., ch. 269, ' 1, 1993 Tex. Gen. Laws 987, 1209
amended, Act of May 19, 1999, 76th Leg., R.S., ch. 955, ' 4, 1999 Tex. Gen. Laws 3696, 3697
(formerly section 410.205(c) of the labor code); Act of May 12, 1993, 73d Leg., R.S., ch. 269, ' 1, 1993
Tex. Gen. Laws 987, 1202, amended, Act of May 19, 1999, 76th Leg., R.S., ch. 955, ' 2, 1999 Tex.
Gen. Laws 3696, 3697 (formerly section 410.032(b) of the labor code). We will refer to former sections
410.032(b) and 410.205(c) throughout this opinion as both provide the substantive law that governs
Everest=s suit.
        4
           We note that Everest also seeks reimbursement for overpayment made pursuant to an
interlocutory order issued after a benefit review conference in the Wilkerson case.




                                                     2
App.CAustin 1999, no pet.) (holding insurance carrier entitled to writ of mandamus to compel

reimbursement pursuant to former section 410.032(b)); Texas Workers= Comp. Comm=n v. Texas

Builders Ins. Co., 994 S.W.2d 902, 907 (Tex. App.CAustin 1999, pet. denied) (holding that carrier is

authorized to bring direct suit to recover reimbursement due under former section 410.205(c)). Everest

also requested judicial review of the agency=s decisions, asserting that they were arbitrary and capricious or

in violation of law.

                 The response of the Commission and other State defendants (collectively Athe

Commission@) ignored Everest=s claim for declaratory relief under the UDJA; instead, the Commission

focused on Everest=s request for judicial review. The Commission asserted that the court lacked subject-

matter jurisdiction to review the agency=s action because Everest had failed to pursue its administrative

remedies as required by section 401.021 of the Workers= Compensation Act.5 After a hearing on the

motion, the district court ruled that Everest=s failure to exhaust administrative remedies deprived the court of

subject-matter jurisdiction over the suit.6 We hold that the district court erred in dismissing Everest=s suit for

declaratory relief under the UDJA to enforce its alleged reimbursement claims pursuant to former sections

410.205(c) and 410.032(b).


        5
           The defendants also filed an amended original answer in which they asserted a plea to the
jurisdiction on the same ground.
        6
          Although the court=s order is styled AOrder on Plaintiff=s Motion for Summary Judgment@ and
does not expressly state that it is an order of dismissal, the parties treat it as dismissing the cause.




                                                        3
                                             DISCUSSION

Standard of Review

                Subject-matter jurisdiction is essential to the authority of a court to decide a case.

Texas Ass=n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). On appeal from

the judgment of dismissal, we are obliged to take as true the allegations in Everest=s petition and

construe them favorably to its position. See id. at 446; Novak v. M.D. Anderson Cancer Ctr., 50

S.W.3d 512, 516 (Tex. App.CAustin 2000), rev=d on other grounds, 52 S.W.3d 704, 711 (Tex.

2001).


The Underlying Dispute

                The underlying dispute in this appeal primarily concerns what has been termed the

Areimbursement gap.@     The Workers= Compensation Act establishes a four-tiered system for the

determination of claims. See Texas Builders, 994 S.W.2d at 903; Texas Workers= Comp. Comm=n v.

City of Bridge City, 900 S.W.2d 411, 412 (Tex. App.CAustin 1995, writ denied). Subchapter B

provides first for the informal resolution of claims through a non-adversarial conference conducted by a

Abenefit review officer@ who may render an interlocutory order determining whether benefits are to be paid.

This informal conference is a prerequisite to any further proceeding toward resolution of the claim. See

Tex. Lab. Code Ann. '' 410.021-.024, 410.032 (West 1996 & Supp. 2002). If issues remain unresolved

after the conference, the parties may agree to resolve the claim by arbitration under Subchapter C; failing

agreement in that regard, a party may elect to determine the claim by a contested-case proceeding under the



                                                    4
provisions of Subchapter D. Id. '' 410.101-.121 (arbitration), 410.151-.169 (contested case) (West

1996 & Supp. 2002). The third tier is established in Subchapter E, which provides for an administrative

appeal from the hearing officer=s contested-case decision to an appeals panel. Id. '' 410.201-.209 (West

1996 & Supp. 2002). Review outside the Commission is authorized in Subchapter F, establishing a cause

of action for judicial review of the appeals-panel decision or the hearing officer=s decision if the appeals

panel fails timely to render a decision. Id. '' 410.251-.258 (judicial review), 410.204 (decision) (West

1996 & Supp. 2002).

                 The insurance carrier must immediately commence making payments pursuant to an

interlocutory order, but it is entitled to reimbursement if the order is modified or overturned. Id. '' 410.032

(payment of benefits under interlocutory order), .209 (reimbursement for overpayment) (West Supp. 2002).

 At the time that Everest=s claims arose, however, the full extent of a carrier=s ability to recoup

overpayments was subject to some confusion because two different provisions addressed reimbursement.

Section 410.032(b) specifically provided for reimbursement of benefits paid pursuant to a benefit review

officer=s order that was later reversed or modified at a contested case hearing or at arbitration. Former

section 410.205(c) addressed reimbursement of overpayments made pursuant to an appeals panel decision

that was subsequently modified or reversed by a court of last resort. There was no express provision

addressing the circumstances in issue here, where a carrier that was ordered to pay benefits by a hearing

officer and then by the appeals panel subsequently obtained a district-court judgment reversing and setting

aside the appeals panel=s final order. Although the statute did not expressly authorize the Commission to

omit reimbursement for benefits paid between the contested case hearing and the appeals panel decision,



                                                      5
the Commission has interpreted the statute=s silence as creating a Agap,@ and the Fund has declined to

reimburse the carrier for payments made during this period as it did on Everest=s two claims here. See, e.g.,

City of Bridge City, 900 S.W.2d at 413.


Jurisdiction

                 In bringing its direct action, Everest relied on this Court=s decisions holding that the

reimbursement scheme established by statute is mandatory and that the Commission=s failure to comply may

be enforced by a direct suit for declaratory relief under the UDJA. See Texas Builders, 994 S.W.2d at

907, 909. Texas Builders sought a declaratory judgment that section 410.205(c) required reimbursement

of overpayments after Texas Builders obtained a judgment overturning the final decision by the appeals

panel and that the Fund had no discretion under the statute to deny the claim. Id. at 905. Our holding in

Texas Builders is clear authority for Everest=s suit. In that case, the carrier obtained a declaratory judgment

from the trial court that section 410.205(c) required the Fund to reimburse it for benefits it had paid. Id.

On appeal, the Commission challenged the trial court=s jurisdiction, asserting inter alia that sovereign

immunity barred the carrier=s declaratory action suit. Id.

                 In Texas Builders, the trial court had viewed the suit under section 410.205(c) as a direct

suit, not as a request for judicial review. See id. at 906. This Court rejected the Commission=s argument

that suit was barred by sovereign immunity and held that section 410.205(c) authorized a carrier to bring a

direct action to enforce an alleged reimbursement claim. Id. at 906-07. We stated that the insurance

company Amust be afforded the opportunity to prove the Commission=s interpretation violates the meaning

of the statute@ and accordingly found that the Act waived the Commission=s immunity from suit and


                                                      6
Aauthorized a direct suit . . . to recover monies owed under the statute.@ Id. at 907 (emphasis added).

We also concluded that the plain language of the reimbursement provisions required the Fund to reimburse

carriers after a modification or reversal of an appeals panel decision and hence the Fund had no discretion

to deny a claim for reimbursement. Id. at 909. In light of our holding in Texas Builders, Everest was

entitled to maintain a direct suit in district court for a declaratory judgment regarding the Fund=s partial denial

of its reimbursement request, and the trial court erred in dismissing these claims.

                 Although Everest sought a declaratory judgment pursuant to section 2001.038 of the APA,

in addition to the UDJA, only the UDJA provides a vehicle for declaratory relief in this instance. Section

2001.038 of the APA authorizes a suit for declaratory judgment to determine Athe validity or applicability of

a rule@ and while Everest=s pleadings refer to the Commission=s Rules 116.11 and 116.12, Everest did not

seek to have the court determine either the validity or applicability of those rules. See Tex. Gov=t Code

Ann. ' 2001.038 (West 2000). Because Everest sought a determination regarding the effect of sections

410.032(b) and 410.205(c), the UDJA authorizes its suit for declaratory judgment pursuant to its

provisions. See Tex. Civ. Prac. & Rem. Code Ann. ' 37.004 (West 1997) (authorizing suit to obtain

declaration regarding rights, status, or other legal relations affected by statute).

                 Moreover, Everest was not required to exhaust administrative remedies. The administrator

of the Fund not only denied Everest=s requests for reimbursement but affirmatively stated that the carrier had

no administrative remedies and no right to review: AThis is the final decision of the Fund. Decisions of the

Fund are not subject to further review by the Commission.@ In response to Everest=s direct suit in district

court, however, the Commission now maintains that the Fund=s reimbursement determinations are subject to



                                                        7
review, and contends for the first time that administrative remedies are available to a carrier and must be

exhausted before the carrier may bring suit regarding a reimbursement claim. The Commission relies on

Everest=s failure to exhaust these newly-afforded remedies to argue that the district court lacked jurisdiction

to hear this direct suit. We reject that argument.

                 The Commission posits that Everest=s suit is governed by section 401.021 of the Workers=

Compensation Act, which incorporates several provisions of the APA, including the requirement that a party

first exhaust its administrative remedies before filing suit. See Tex. Lab. Code Ann. ' 401.021 (West

1996). Section 401.021 of the Act provides that Aa proceeding, hearing, judicial review, or

enforcement of a commission order, decision, or rule is governed by@ the APA. See id. Section

2001.051 of the APA entitles a party in a contested case to an opportunity for a hearing; section 2001.058

contains provisions relating to contested-case hearings conducted by the State Office of Administrative

Hearings (SOAH). See Tex. Gov=t Code Ann. '' 2001.051, .058 (West 2000). The Commission then

cites section 2001.171 of the APA, which states: AA person who has exhausted all administrative remedies

available within a state agency and who is aggrieved by a final decision in a contested case is entitled to

judicial review under this chapter.@ Id. ' 2001.171. The Commission asserts that because the Workers=

Compensation Act incorporates provisions that both afford claimants a SOAH hearing and require

exhaustion of administrative remedies as a prerequisite to judicial review, a carrier must first initiate a SOAH

hearing before filing suit to recover reimbursement pursuant to section 410.205(c).

                 In addition to its interpretation of the statute, the Commission points to its rules governing

adjudicative hearings. See 28 Tex. Admin. Code '' 148.1-.28 (2002) (Tex. Workers= Comp. Comm=n,



                                                       8
Hearings Conducted by the State Office of Administrative Hearings). Specifically, Rule 148.1 provides that

the scope of chapter 148 applies to Aall hearings to adjudicate disputes arising under the Texas Workers=

Compensation Act@ except for hearings related to benefit disputes. Id. ' 148.1. Rule 148.1 also expressly

references the applicability of the APA provisions to hearings conducted pursuant to the rules. Id. '

148.1(b).

                 Nothing in the statute or rules provides for a contested case hearing or any other review of

the Fund=s denial of a claim for reimbursement after reversal of an interlocutory order. Furthermore, we

note that the Commission=s interpretation that the Act requires a carrier to initiate a contested case hearing

to challenge a denial of a reimbursement request is inconsistent with its prior position that there is no

administrative remedy available to the carrier, as articulated to Everest in the letter denying its request for

reimbursement. As the Commission=s counsel frankly conceded at oral argument before this Court, the

interpretation advanced by the Commission in this appeal signals a departure from the agency=s previous

position that decisions by the Fund are not subject to any kind of review. See generally Texas Builders,

994 S.W.2d at 906 (Commission=s argument that there is no right to review of decision not to reimburse

carrier after decision of appeals panel has been reversed or modified). In light of the Commission=s long-

standing interpretation that the Act provides no administrative remedies and no right of review for a denial of

reimbursement, we are not persuaded by the contrary position that the agency has taken in this appeal. See

Texas Citrus Exch. v. Sharp, 955 S.W.2d 164, 170 (Tex. App.CAustin 1997, no pet.) (agency

interpretation that is long-standing and applied uniformly is entitled to greater deference); Amarillo Indep.

Sch. Dist. v. Meno, 854 S.W.2d 950, 954 n.6 (Tex. App.CAustin 1993, writ denied) (degree of



                                                      9
deference to agency interpretation of ambiguous statute may become particularly great when it is one of

long-standing and uniform application).

                 For its exhaustion theory, the Commission focuses solely on section 401.021, which is

found in the AGeneral Provisions@ chapter and AMiscellaneous Provisions@ subchapter of the statute, rather

than on the specific statutory provisions governing reimbursement claims. Neither the specific section of the

statute relating to requests for reimbursement, nor the specific Commission rules governing reimbursement

procedures expressly affords the carrier a contested case hearing or any other administrative remedy. See

Tex. Lab. Code Ann. ' 410.205(c); 28 Tex. Admin. Code '' 116.11, .12 (2002) (Tex. Workers= Comp.

Comm=n, General ProvisionsCSubsequent Injury Fund). Furthermore, the concept of a contested case

hearing is inconsistent with the type of dispute at issue here.

                 The Commission=s rules which specifically relate to reimbursement claims support this

conclusion. Rule 116.11 establishes the procedure for reimbursement requests filed with the Fund and

requires the carrier to provide numerous documents, including Aa claim-specific summary of the reason the

carrier is seeking reimbursement or refund@ and Aa detailed payment record.@ 28 Tex. Admin. Code '

116.11(c)(1), (2). In cases where reimbursement is sought for overpayment made pursuant to a modified

or overturned decision or interlocutory order, the Rule also requires the carrier to submit Aa copy of the

decision or interlocutory order@ and a copy of the final decision modifying or overturning the decision or

interlocutory order, Acopies of all reports by the employer including, but not limited to, the Employer=s First

Report of Injury, the Wage Statement, and all Supplemental Reports of Injury for overpayments of income

benefits,@ and Aif an overpayment of medical benefits, copies of all medical bills and preauthorization request



                                                      10
forms associated with the overpayment for overpayment of medical benefits.@ Id. ' 116.11(c)(4) (A), (B),

(C). Finally, the Rule states that the request shall include Aany other documentation reasonably required by

the [Fund] to determine entitlement to reimbursement or payment from the [Fund] and the amount of

reimbursement to which the carrier is entitled.@ Id. ' 116.11(c)(6).

                 The express provisions of the Rule indicate that a reimbursement request contemplates a

documentary procedure as opposed to an adjudicative contested case hearing. See 1 Tex. Admin. Code '

155.5(8) (2002) (State Office of Administrative Hearing, Rules of Procedure) (defining contested case as

A[a] proceeding, including, but not restricted to, ratemaking and licensing, in which the legal rights, duties, or

privileges of a party are to be determined by an agency after an opportunity for adjudicative hearing@). In

addition, the underlying dispute in the instant caseCwhether the statute authorizes the Commission to

withhold benefits paid during the Areimbursement gap@Cturns not on contested factual matters but on a

purely legal issue. Therefore, an evidentiary hearing is inappropriate. For all of these reasons, we reject the

Commission=s argument and hold that the statute does not require a carrier to initiate a contested case

hearing to resolve reimbursement disputes.

                 Alternatively, the Commission asserts that our decision in City of Bridge City precludes

Everest=s claims on the merits. The Commission takes the position that partial withholding by the Fund in

this case was authorized by a decision of this Court. See City of Bridge City, 900 S.W.2d at 416. Our

review of the trial court=s order of dismissal based on a plea to the jurisdiction is confined to the

jurisdictional question. We note, however, that City of Bridge City involved a constitutional challenge to

the statutory reimbursement scheme and did not directly address the legal issue which Everest asked the trial



                                                       11
court to determine in its suit for declaratory relief. See id. at 413. Furthermore, in addressing the

constitutional issue framed by the parties, we made several assumptions regarding the interpretation of the

statutory reimbursement provisions. See id.7 In this cause, Everest challenges that statutory interpretation.

                                              CONCLUSION



        7
            Recent legislative amendments, not in effect at the time this claim for reimbursement arose, make it
clear that the legislature did not intend for there to be any omission in reimbursement. See Act of May 19,
1999, 76th Leg., R.S., ch. 955, ' 7, 1999 Tex. Gen. Laws 3696, 3697. Sections 410.032(b) and
410.205(c) have been deleted and a new section 410.209 has been added. See Act of May 19, 1999,
76th Leg., R.S., ch. 955, ' 5, 1999 Tex. Gen. Laws 3696, 3697 (now codified at Tex. Lab. Code Ann. '
410.209 (West Supp. 2002)). Section 410.209 authorizes reimbursement for benefits paid by a carrier
pursuant to any interlocutory order that is finally overturned:

            The subsequent injury fund shall reimburse an insurance carrier for any overpayments
            of benefits made under an interlocutory order or decision if that order or decision is
            reversed or modified by final arbitration, order, or decision of the commission or a
            court. The commission shall adopt rules to provide for a periodic reimbursement
            schedule, providing for reimbursement at least annually.

Tex. Lab. Code Ann. ' 410.209 (West Supp. 2002) (emphasis added).




                                                      12
               We follow our holding in Texas Builders that a carrier is authorized to bring a direct

suit for declaratory relief under the UDJA to enforce the Fund=s statutory obligation to reimburse

overpayments made pursuant to interlocutory orders that are subsequently modified or reversed.

We hold that the statute does not require a carrier to instigate a contested case hearing before

seeking such declaratory relief. Everest did not fail to exhaust its administrative remedies

because it had none. We hold that the trial court has jurisdiction to hear Everest=s direct suit for

declaratory relief regarding the denial of its reimbursement claims. Therefore, we reverse the

judgment of the trial court and remand this cause for consideration on the merits.




                                              Bea Ann Smith, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Reversed and Remanded

Filed: June 21, 2002

Publish




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