          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                          NO. 03-02-00107-CV



             Hartford Underwriters Insurance Company/Richard Hafley, Appellants

                                                     v.

             Richard Hafley/Hartford Underwriters Insurance Company, Appellees




        FROM THE DISTRICT COURT OF COMAL COUNTY, 274TH JUDICIAL DISTRICT
            NO. C-97-400C, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING




                  This is a worker=s compensation case. Hartford Underwriters Insurance Company

(AHartford@) challenges an award of Supplemental Income Benefits made by the Worker=s Compensation

Commission (Athe Commission@) to Richard A. Hafley (AHafley@). See Tex. Lab. Code Ann. '' 408.142,

.147(c) (West 1996 & Supp. 2002). In a modified trial de novo, the district court affirmed the award and

awarded attorney=s fees to Hafley. See id. '' 410.251, .252 (West 1996). Hartford argues that: (1) the

Commission improperly calculated Hafley=s income from self-employment based on net, rather than gross,

income; (2) the evidence before the district court was insufficient to support a benefits award; and (3)

Hafley did not Aprevail@ on any issue within the scope of the statute and was not entitled to attorney=s fees.

Hafley has also appealed, challenging the district court=s jurisdiction to review the Commission=s decision.

We will affirm.
                                             BACKGROUND

                   In 1992, the Commission awarded Hafley disability benefits based on a work-related back

injury. By 1994, he had reached maximum recovery, with a seventeen percent impairment rating. This

impairment rating made him eligible for Supplemental Income Benefits (ASIBs@) so long as his wages

remained less than eighty percent of his pre-injury wages. Id. ' 408.412. Like other worker=s

compensation benefits, SIBs are administered through an administrative process that is meant to ensure

quick disbursement of benefits and decrease the need to litigate relatively small claims. See generally id. ''

408.081-.162 (West 1996 & Supp. 2002) (hereinafter Athe Act@); Texas Workers= Comp. Comm=n v.

Garcia, 893 S.W.2d 504, 513, 521 (Tex. 1995).

                   SIBs require a comparison between an injured employee=s pre-injury wages and his wages

after reaching maximum recovery. Tex. Lab. Code Ann. ' 408.412(b). Although Hafley had been a wage-

earning employee at the time he was injured, he was self-employed during the relevant benefits period.

Because Hafley did not receive Awages@ from a third-party employer, the hearing officer calculated his

wages as the difference between his total self-employment income and his business expenses. Hartford

challenged the award, and an appeals board affirmed. Hartford then filed an appeal in the Comal County

District Court. After a bench trial, the district court affirmed the Commission=s decision and awarded

attorney=s fees.

                   In this appeal, Hartford complains that Hafley=s income should have been calculated on the

basis of his gross, rather than net, self-employment income. Hartford also challenges the award of
attorney=s fees, claiming that Hafley has not prevailed on any issue within the meaning of the Act=s fee

provision. Finally, Hartford challenges the legal and factual sufficiency of the district court=s findings.

                  Hafley also appeals, challenging the district court=s refusal to dismiss the cause for want of

jurisdiction. Hafley argues that, because he is a resident of Guadalupe County, rather than Comal County,

the district court could not exercise jurisdiction under the Act=s provisions. We will consider the

jurisdictional issue first.


                                               DISCUSSION

Jurisdiction and Venue

                  Hafley=s original application for benefits listed his street address as being in New Braunfels

and Comal County. Based on this information, Hartford filed its appeal in the District Court of Comal

County. Hafley=s street address, however, is in an area of New Braunfels that actually lies in Guadalupe

County. The Act requires that an appeal be filed in Athe county where the employee resided at the time of

the injury.@ Id. ' 410.252(b)(1). Thus, Hartford did not file in Hafley=s county of residence and failed to

satisfy section 410.252(b)(1). Hafley contends that this failure is jurisdictional and asks us to dismiss the

appeal and reinstate the Commission=s order.

                  The relevant section of the Act provides as follows:


                                        Time for Filing Petition; Venue

         (a) A party may seek judicial review by filing suit not later than the 40th day after the date
             on which the decision of the appeals panel was filed with the division.


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         (b) The party bringing suit to appeal the decision must file a petition with the appropriate
             court in:
             (1) the county where the employee resided at the time of the injury or death if the
                  employee is deceased; or

              (2) in the case of an occupational disease, in the county where the employee resided
                  on the date disability began or any county agreed to by the parties.


Tex. Lab. Code Ann. ' 410.252. Relying on Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71 (Tex. 2000),

Hafley argues that the venue provisions of section 410.252 are jurisdictional and, therefore, Hartford=s

petition must be dismissed. He takes the position that the venue requirement is a substantive limitation on

the power of the district court to exercise appellate power over the Commission. Hartford responds that

the section, as shown by its heading, is merely a venue statute and failure to comply with it does not deprive

the district court of jurisdiction.

                  In Dubai, the supreme court reversed the long-standing doctrine of Mingus v. Wadley, 115

Tex. 551, 285 S.W. 1084 (Tex. 1926), which held that the technical requirements of a statutory cause of

action, created in derogation of the common law, are jurisdictional. Mingus, like the case at hand, involved

a challenge to a worker=s compensation award. The then-current statute provided several statutory

prerequisites to appeal from the Industrial Accident Board=s determinations, including a venue requirement

that suit be brought Ain the county where the injury occurred.@ Mingus, 285 S.W. at 1087-88. The Mingus

court reasoned that, because worker=s compensation is statutory, an appeal from a compensation award

must be dismissed if brought in any county other than that where the injury occurred. Id.




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                  Dubai rejected Mingus Ato the extent that it characterized the plaintiff=s failure to establish a

statutory prerequisite as jurisdictional.@ Dubai, 12 S.W.3d at 74. The supreme court noted that statutory

prerequisites are not generally jurisdictional. Id. at 76. Flexibility in reading statutory prerequisites is

necessary because, when it is difficult to tell Awhether the parties have satisfied the requisites of a particular

statute, it seems perverse to treat a judgment as perpetually void merely because the court or the parties

have made a good-faith mistake in interpreting the law.@ Id. at 76. Dubai, then, holds that automatically

labeling statutory Airregularities,@ including statutory venue provisions, as jurisdictional would

make the judgments in those cases perpetually vulnerable to collateral attack. Id. Because Dubai

rejects Mingus=s holding that the venue provisions of the former worker=s compensation act were

jurisdictional, we must look to the statute itself in order to determine whether jurisdiction was proper in the

district court.

                  By its terms, section 410.252 applies to the venue of an appeal to the district court, not the

district court=s jurisdiction to hear a particular type of case. The section heading describes it as a venue

provision. By its language, the section does not limit or create specific powers in a specific district court,

nor does it indicate that other district courts should be denied jurisdiction over worker=s compensation

appeals. See Sierra Club v. Texas Natural Res. Conservation Comm=n, 26 S.W.3d 684, 688 (Tex.

App.CAustin 2000), aff=d, 70 S.W.3d 809 (Tex. 2002) (suggesting that jurisdictional statutory

requirements are those that define scope of court=s substantive power). When a statutory prerequisite to

suit is such that it affects only venue, without making any substantive change in the court=s inherent power, it

should not be held jurisdictional. See Dubai, 12 S.W.3d at 76. Section 410.252 directs an appellant to


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choose among several courts, all of which have subject-matter jurisdiction over worker=s compensation

claims. Therefore, it raises a question of venue, rather than subject-matter jurisdiction. Thus, we overrule

Hafley=s issue and hold that the district court had jurisdiction to review the Commission=s decision.

Calculation of Wages

                SIBs help a recovering employee ensure that his income is not disproportionately lower than

it was before the injury. They may be awarded to injured workers who have found new employment, but

have an impairment rating exceeding fifteen percent and are receiving wages of less than eighty percent of

their pre-injury wages and meet other technical criteria. Tex. Lab. Code Ann. ' 408.142. SIBs are

calculated quarterly and provide a claimant with limited benefits to partially offset any reduction in income.

Id. ' 408.144(a), (b) (West 1996); Garcia, 893 S.W.2d at 515.

                To qualify for SIBs, Hafley needed to show that his average weekly wage during the sixth

compensable quarter was less than eighty percent of his pre-injury average weekly wage. To establish his

wages for the purposes of calculating his benefits under the Act, Hafley submitted both his income derived

from his self-employment activities and evidence of his business expenses. This evidence included receipts

and expert testimony by Hafley=s accountant and an independent accounting expert. The Commission

calculated Hafley=s wages based on the evidence presented and issued an award.

                The Act defines Awages@ to include Aall forms of remuneration payable for a given period to

an employee for personal services,@ including any Aadvantage that can be estimated in money.@ Tex. Lab.

Code Ann. ' 401.011(43) (West Supp. 2002). Hartford contends that this definition prohibits the

Commission from allowing a self-employed claimant to recover on the basis of net income. Because the


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definition of Awages@ includes all forms of remuneration, Hartford contends that the Commission is required

to calculate a claimant=s income from self-employment on the basis of gross receipts.

                 Hafley responds that the statute is silent on how to calculate wages for a self-employed

claimant. Therefore, he argues, the Commission acted within its administrative discretion because the net

income of a self-employed claimant is analogous to the income of a wage-earning employee; that is, both

represent the amount of money an injured worker has available for personal use.

                 Administrative agencies are given wide latitude in determining how best to accomplish their

regulatory responsibilities, so long as they do not create new powers and responsibilities in addition to those

granted by their enabling statute. Public Util. Comm=n v. GTE-Southwest, 901 S.W.2d 401, 407 (Tex.

1995). This involves Awhatever power is reasonably necessary to fulfill a function or perform a duty that the

legislature has expressly placed in the agency.@ Kawasaki Motors v. Motor Vehicle Comm=n, 855

S.W.2d 792, 797 (Tex. App.CAustin 1993, writ denied). Courts, therefore, give serious consideration to

an agency=s interpretation of its enabling statute, so long as the interpretation does not contradict the plain

language of the statute. Argonaut Ins. Co. v. Baker, 45 Tex. Sup. Ct. J. 866, 890, 2002 Tex. LEXIS 89,

at *14 (June 20, 2002) (citing Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993)).




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                The definition of wages provided in section 401.011(43) describes only the income of a

claimant who is employed by, and receives a salary and other benefits from, a third-party employer. The

legislature did not explicitly provide a methodology for calculating the Awages@ of self-employed claimants.

In its decision, the Commission indicated that, under the facts of this case, it chose to calculate wages

based on net income in order to fulfill the Act=s intent. This is a common-sense solution. The district court

affirmed the Commission=s determination based on its own evaluation of the facts. We hold that the Act, by

implication, provides discretion to the Commission to choose a method for calculating the equivalent of

statutory Awages@ for a self-employed claimant. Accordingly, we overrule Hartford=s contention in this

regard.


Legal and Factual Sufficiency of the Evidence

                Hartford challenges the legal and factual sufficiency of the district court=s findings regarding

the award of SIBs. Much of Hartford=s challenge to the Commission=s decision to award benefits is framed

as a challenge to the Commission=s decision to accept particular records as evidence and the Commission=s

choice of accounting procedures. According to Hartford, the accounting difficulties involved in assessing

any self-employed claimant=s income will necessarily undermine the benefits award process. However, the

Commission=s use of the specific facts of Hafley=s claim is not before this Court because all factual issues

were determined by the district court de novo. Hartford may not, then, challenge the sufficiency of the

evidence before the Commission.




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                 In reviewing its challenge to the evidence introduced before the district court, Hartford

makes two complaints: (1) that the Commission permitted certain business expenses to be deducted from

Hafley=s gross receipts which Hartford=s experts had testified should not be allowed, and (2) that Hafley

introduced no evidence from which the district court could, on its own, calculate Hafley=s net income. After

our review of the evidence, we conclude that based on the record, which includes an appendix to Hartford=s

expert testimony detailing Hafley=s financial information, the district court could have calculated Hafley=s

income as it did. We overrule Hartford=s legal and factual sufficiency issues.


Attorney=s Fees

                 Hartford contends that, because no final order has issued on which an award of attorney=s

fees may be based, Hafley does not qualify for attorney=s fees under the statute. The Act provides that,

when an insurance carrier disputes an award of SIBs, the claimant may recover attorney=s fees if Athe

employee prevails on any disputed issue.@ Tex. Lab. Code Ann. ' 408.147(c) (emphasis added).

Hartford argues that no worker=s compensation claimant can have prevailed on a disputed issue within the

meaning of the statute unless a mandate has issued on the case and no further judicial proceedings are

possible. We disagree.

                 The Commission awarded Hafley SIBs. That constitutes an issue on which he prevailed

and which was then appealed to the district court. See Liberty Mut. Ins. Co. v. Montana, 49 S.W.3d

599, 603 (Tex. App.CFort Worth 2001, no pet.) (employee eligible for attorney=s fees in contested

benefits decision even if no relief is given until district court level). The contested issue of the SIBs award



                                                      9
was properly brought before the district court and therefore constitutes an issue in that appeal on which

Hafley has prevailed. Thus, the final judgment of the district court, although subject to appeal, was final for

purposes of the attorney=s fees provision of the Act. Hafley=s attorneys presented affidavits detailing their

fees and billing rates which, after the trial in district court, amounted to $32,830.63. This evidence was

sufficient to support the award in that amount. Therefore, we overrule Hartford=s issue regarding the

appropriateness of attorney=s fees.




                                             CONCLUSION

                 Having overruled both parties= issues on appeal, we affirm the district court=s judgment.




                                                   Mack Kidd, Justice

Before Justices Kidd, B. A. Smith and Yeakel

Affirmed

Filed: October 10, 2002

Publish




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