                           NUMBER 13-10-00470-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

LUMBERMENS MUTUAL CASUALTY                                               Appellant,
COMPANY,

                                          v.

NOE PORTILLO,                                                              Appellee.


                  On appeal from the 398th District Court
                        of Hidalgo County, Texas.


                       MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Rodriguez and Garza
               Memorandum Opinion by Justice Garza
      This appeal arises out of the judicial review of a workers’ compensation decision

regarding the proper impairment rating for appellee, Noe Portillo. See TEX. LAB. CODE

ANN. § 410.251 (West 2006).      Appellant, Lumbermens Mutual Casualty Company

(―Lumbermens‖), sought to overturn a decision of the appeals panel of the Texas
Workers’ Compensation Commission, now known as the Texas Department of

Insurance, Division of Workers’ Compensation (―the Division‖). The trial court granted

Portillo’s plea to the jurisdiction and dismissed the case for lack of subject matter

jurisdiction. On appeal, Lumbermens argues by three issues that the trial court erred.

We reverse and remand.

                                           I. BACKGROUND

        Portillo suffered a work-related lumbar spinal injury on July 26, 2001, and he

sought workers’ compensation benefits. After reaching maximum medical improvement

(―MMI‖),1 Portillo was assigned an impairment rating2 of twenty percent by the contested

case hearing officer of the Division. See id. § 408.122. The Division’s appeals panel

affirmed the decision of the hearing officer.                 See id. § 410.203 (West 2006).

Lumbermens, after paying benefits to Portillo pursuant to the Division’s ruling, then filed

the instant petition for judicial review with the trial court. In the petition, Lumbermens

seeks to overturn the decision of the appeals panel and requests the entry of a

judgment of a ten percent impairment rating. If it succeeds, Lumbermens intends to

seek reimbursement of the overpayment to Portillo from the Subsequent Injury Fund

(―SIF‖). See id. § 403.006 (West Supp. 2010) (establishing the SIF as a ―dedicated

account in the general revenue fund‖), § 410.209 (West 2006) (stating that the SIF

―shall reimburse an insurance carrier for any overpayments of benefits made under an



        1
          The labor code defines MMI generally as the earlier of: (A) the earliest date after which, based
on reasonable medical probability, further material recovery from or lasting improvement to an injury can
no longer reasonably be anticipated; or (B) the expiration of 104 weeks from the date on which income
benefits begin to accrue. TEX. LAB. CODE ANN. § 401.011(30) (West Supp. 2010).
        2
          The ―impairment rating‖ is ―the percentage of permanent impairment of the whole body resulting
from a compensable injury.‖ Id. § 401.011(24). It is used to calculate the worker’s impairment income
benefits. See id. § 408.121 (West 2006).

                                                    2
interlocutory order or decision if that order or decision is reversed or modified by final

arbitration, order, or decision of the commissioner or a court‖).

        Portillo filed a plea to the jurisdiction, arguing that the judgment Lumbermens

seeks would be advisory because Lumbermens is requesting reimbursement from the

SIF, not from Portillo.        The trial court granted Portillo’s plea to the jurisdiction but

subsequently entered a final judgment on the merits. The trial court then vacated the

final judgment and dismissed the case for want of jurisdiction.3 This appeal followed.

                          II. STANDARD OF REVIEW AND APPLICABLE LAW

        By its first issue, Lumbermens contends that the trial court erred in concluding

that it did not have subject matter jurisdiction over Lumbermens’ petition for judicial

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

case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d, 440, 443 (Tex. 1993);

Everest Nat’l Ins. Co. v. Tex. Workers’ Comp. Comm’n, 80 S.W.3d 269, 271 (Tex.

App.—Austin 2002, no pet.). A plea to the jurisdiction is a dilatory plea used to defeat a

cause of action without regard to whether the claims asserted have merit. Bland Indep.

Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). The plea challenges the trial court’s

subject matter jurisdiction. Id.; see Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638

(Tex. 1999). Whether a trial court has subject matter jurisdiction is a question of law

that we review de novo. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226

(Tex. 2004); Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855

(Tex. 2002). On appeal from the judgment of dismissal, we are obliged to take as true

the allegations in Lumbermens’ petition and construe them favorably to its position. See

        3
            On the same date that the judgment was vacated and the case dismissed for want of
jurisdiction, the trial court entered findings of fact and conclusions of law pertaining to the merits of the
underlying dispute.

                                                     3
Tex. Ass’n of Bus., 852 S.W.2d at 446; Novak v. M.D. Anderson Cancer Ctr., 50 S.W.3d

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

2001).

         Section 410.209 of the labor code entitles a workers’ compensation carrier that

has paid benefits under an ―interlocutory order or decision‖ of the Division to be

reimbursed from the SIF for any overpayments if the order or decision is ultimately

―reversed or modified by final arbitration, order, or decision of the commissioner or a

court.‖ TEX. LAB. CODE ANN. § 410.209. Therefore, to establish a right to reimbursement

under section 410.209, Lumbermens bore the burden to prove that: (1) it was required

to pay workers’ compensation benefits by an ―interlocutory order or decision‖ of the

Division; (2) it paid benefits under the interlocutory order; and (3) the order was

ultimately ―reversed or modified‖ by a ―final . . . order, or decision of . . . a court.‖ Id.

                                           III. ANALYSIS

         It is undisputed that Lumbermens paid benefits under the interlocutory order of

the Division.    See id.     However, before it can seek reimbursement from the SIF,

Lumbermens must show that the order was ―reversed or modified‖ by ―the

commissioner or a court.‖ Id. Because the trial court granted Portillo’s plea to the

jurisdiction, Lumbermens was prevented from seeking reversal or modification of the

order.

         In its petition for judicial review, Lumbermens alleged that the hearing officer and

appeals panel erred in determining that a twenty percent impairment rating for Portillo

was proper.4 Lumbermens sought judicial review to set aside the final decision of the


         4
         Specifically, Lumbermens contended that the hearing officer erred by relying on advisories
issued by the Executive Director of the Division which allegedly ―modify and substantively change the

                                                 4
Division. It also requested a judgment that Portillo’s proper impairment rating is, in fact,

ten percent.

        In his plea to the jurisdiction, Portillo argued that the judgment Lumbermens

seeks would be advisory because ―it would not have a practical affect [sic] on a now

existing controversy between the parties.‖ See Tex. Ass’n of Bus., 852 S.W.2d at 444

(noting that Texas courts have no jurisdiction to render advisory opinions, which are

opinions that decide abstract questions of law without binding the parties). Portillo

stated that ―the now existing controversy between the parties, as Lumbermens has

noted, is whether Lumbermens is entitled to reimbursement from the [SIF] for any

overpayment of benefits.‖5             Relying on a separate provision in the statute, Portillo

persuaded the trial court that it was powerless to order the fund to reimburse

Lumbermens. See TEX. LAB. CODE ANN. § 410.257(d) (West 2006). The trial court thus

concluded that it had no jurisdiction over Lumbermens’ petition for judicial review. We

disagree with that determination.


plain meaning and application‖ of impairment evaluation guides published by the American Medical
Association (―AMA‖). See id. § 408.124 (West 2006) (stating that ―[a]n award of an impairment income
benefit, whether by the commissioner or a court, must be based on an impairment rating determined
using‖ the AMA guides); Tex. Dep’t of Ins. v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870, 877 (Tex.
App.—Austin 2006, pet. denied) (holding that the trial court did not err in declaring that the Division’s
issuance of the advisories ―was invalid and that their application is an ultra vires act‖).

          Because the judgment on appeal dismissed Lumbermens’ action for want of subject matter
jurisdiction, our inquiry here is limited to whether the trial court was correct in that determination.
Accordingly, we do not address Lumbermens’ second and third issues on appeal, which concern the
merits of its petition for judicial review. See TEX. R. APP. P. 47.1.
        5
            In its pleadings before the trial court, Lumbermens stated:

        As stipulated, Lumbermens cannot and will not seek reimbursement from Mr. Portillo. If
        Lumbermens prevails, Mr. Portillo is entitled to keep the funds that he received.
        Lumbermens’ sole recourse is to seek reimbursement from the Subsequent Injury Fund.
        Resolution of the issue pending before the Court (what is Mr. Portillo’s impairment rating)
        is a statutory prerequisite. Lumbermens can seek reimbursement from the Subsequent
        Injury Fund only if the [the Division’s] decision is reversed.


                                                       5
      Subsection 410.257(d) of the labor code does state that ―[a] judgment under this

section may not order reimbursement from the subsequent injury fund.‖ Id. However,

Lumbermens is not asking the trial court to order reimbursement, strictly speaking.

Instead, Lumbermens is merely asking, as the statutory scheme permits, for the trial

court to review the evidence in the record to ascertain whether the Division properly

determined Portillo’s impairment rating. See id. § 410.209. If the trial court determines

that the Division’s order was improper, it must make its own determination based on the

evidence and enter judgment accordingly. It is then incumbent upon Lumbermens to

present that judgment to the SIF. See 28 TEX. ADMIN. CODE § 116.11(a), (c)(1), (c)(2),

(c)(4) (2010); Everest Nat’l Ins. Co., 80 S.W.3d at 274-75.6 As Lumbermens argued to


      6
          The Texas Administrative Code provides, in pertinent part:

      (a) An insurance carrier may request:

                (1) reimbursement from the Subsequent Injury Fund (SIF), pursuant to Labor
                    Code §403.006(b)(2), for an overpayment of income, death, or medical
                    benefits when the insurance carrier has made an unrecoupable overpayment
                    pursuant to decision of a hearing officer or the appeals panel or an
                    interlocutory order, and that decision or order is reversed or modified by final
                    arbitration, order, or decision of the commissioner, State Office of
                    Administrative Hearings, or a court of last resort;

                ....

      (b) Requests for reimbursement attributable to subsection (a)(1) of this section,
          insurance carrier claims of benefit overpayments made under an interlocutory order
          or decision of the commissioner that is later reversed or modified by final arbitration,
          order, decision of the commissioner, the State Office of Administrative Hearings, or
          court of last resort shall be filed with the SIF administrator in writing and include:

                (1) a claim-specific summary of the reason the insurance carrier is seeking
                    reimbursement and the total amount of reimbursement requested;

                (2) a detailed payment record showing the dates of payments, the amounts of
                    the payments, purpose of payments, the payees, the periods of benefits paid,
                    all plain language notices (PLNs) regarding the payment of benefits, all
                    certifications of maximum medical improvement, all assignments of
                    impairment rating and documentation that demonstrates that the
                    overpayment was unrecoupable as described in subsection (b) of this
                    section, if applicable;


                                                     6
the trial court, an order ―revers[ing] or modif[ying]‖ the Division’s decision is a statutory

prerequisite to its ability to seek reimbursement for any overpayment from the SIF. See

TEX. LAB. CODE ANN. § 410.209.                The judgment that Lumbermens seeks is not a

judgment compelling the SIF to reimburse it, but rather, a judgment ―revers[ing] or

modif[ying]‖ the Division’s decision as to Portillo’s impairment rating, which is authorized

by statute. See id. Such a judgment would not be merely advisory; accordingly, the

trial court had subject matter jurisdiction over Lumbermens’ petition for judicial review.

See Tex. Ass’n of Bus., 852 S.W.2d at 444. Lumbermens’ first issue is sustained.7

                                            IV. CONCLUSION

        The trial court erred in granting Portillo’s plea to the jurisdiction. We reverse the

judgment of the trial court and remand for further proceedings consistent with this

opinion.

                                                                  ________________________
                                                                  DORI CONTRERAS GARZA
                                                                  Justice


Delivered and filed the
21st day of July, 2011.




                ....

                (4) copies of all relevant orders and decisions (Benefit Review Conferences,
                    Interlocutory Orders, Contested Case Hearing Decisions & Orders, Appeals
                    Panel Decisions, and Court orders) regarding the payment for which
                    reimbursement is being requested along with an indication of which
                    document is the final decision on the matter.

28 TEX. ADMIN. CODE § 116.11(a), (c)(1), (c)(2), (c)(4) (2010).
        7
          We do not address Lumbermens’ second or third issues because those issues pertain only to
the merits of its petition for judicial review. See supra n.4.

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