                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-17-00138-CV


                               ANTHONY D. COLBY, APPELLANT

                                                     V.

     GRAPHIC ARTS MUTUAL INSURANCE COMPANY A/K/A UTICA NATIONAL
                    INSURANCE COMPANY, APPELLEE

                            On Appeal from the 345th District Court
                                     Travis County, Texas1
               Trial Court No. D-1-GN-16-004015, Honorable Tim Sulak, Presiding

                                         September 11, 2018

                                  MEMORANDUM OPINION
                         Before CAMPBELL and PIRTLE and PARKER, JJ.


        In the present appeal, we are called upon to determine whether appellant, Anthony

D. Colby, exhausted administrative remedies required as a precondition to his bringing

suit on his workers’ compensation claims in district court. Finding that he failed to exhaust



        1 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Third Court of Appeals and this Court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.
the required administrative remedies on the claims he asserts, we affirm the trial court’s

grant of a plea to the jurisdiction in favor of appellee, Graphic Arts Mutual Insurance

Company a/k/a Utica National Insurance Company (Utica).


                          Factual and Procedural Background


      In 2009, Colby sustained an on-the-job injury while working for Onion Creek Club.

He reported the injury to his employer, who was covered by a workers’ compensation

insurance policy through Utica. Colby’s medical condition was diagnosed as a cervical

sprain or strain and was determined to be compensable under the workers’ compensation

policy with Utica. Income benefits were paid and medical treatment was provided for

Colby’s injury in compliance with the Texas Workers’ Compensation Act.


      After a dispute arose regarding the extent of the compensable injury, Colby

requested the Division of Workers’ Compensation (DWC) to appoint a designated doctor

to address the proper extent of the injury. Colby disputed the qualifications of the doctor

that had previously served as his designated doctor. Because this doctor was no longer

certified to be a designated doctor, the DWC found good cause for Colby’s complaint and

appointed another designated doctor. After two more designated doctors were appointed

but then subsequently removed, the DWC appointed Dr. Lisa Persyn as designated

doctor in Colby’s case. However, Utica disputed Persyn’s appointment and requested an

expedited contested case hearing. Following this hearing, the DWC Hearing Officer

issued her Decision and Order concluding that Persyn was not properly appointed

designated doctor and cancelling this appointment.          Colby timely appealed this

determination to the DWC Appeals Panel. The Appeals Panel issued a notice that the



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Hearing Officer’s Decision and Order was upheld and constituted the final DWC

determination. Following enclosed instructions, Colby filed the instant suit in district court.


       By his original petition, Colby asserts claims for Utica’s denial of medical treatment,

improper claims handling, and violations of Colby’s civil rights. Colby makes a passing

reference to the designated doctor issue in the “Facts” section of his petition but he does

not directly challenge the DWC’s decision to remove Persyn as designated doctor, even

though this was the only issue that was decided by the DWC. By his petition, Colby seeks

injunctive relief requiring Utica “to provide medical and other benefits to which [Colby] is

entitled”; compensatory damages for pain and suffering, mental anguish, and physical

impairment; and exemplary damages. Utica answered contending, inter alia, that Colby’s

claims of denials of medical treatment, improper claims handling, and breaches of the

duty of good faith and fair dealing must be processed through the DWC’s administrative

system before they can be asserted in district court and that such a failure to exhaust

administrative remedies is jurisdictional.


       Subsequently, Utica filed a motion for summary judgment that, inter alia, claims

that Colby failed to show that he had exhausted administrative remedies before pursuing

his claims in district court. Colby responded explaining that he had been notified by the

DWC that, if he was dissatisfied with the decision of the Appeals Panel, he could file suit

with the district court within forty-five days of the date of the Appeals Panel’s decision.

He contends that, because he complied with DWC requirements to bring suit, he has

exhausted administrative remedies and Utica’s motion for summary judgment should be

denied. However, Colby makes only passing reference to the DWC’s removal of Persyn

as designated doctor in his petition. And, nowhere in his petition does Colby expressly

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identify a DWC order being appealed from, a DWC cause number, or an Appeals Panel

decision number.


      Before ruling on Utica’s summary judgment motion, the trial court afforded Colby

an opportunity to amend his pleadings. In his amended pleadings, Colby again asserts

claims for medical treatment, yet in this pleading he requests that the trial court order

Utica to pay Colby the cost of medical procedures “upfront” in order to ensure quality

medical treatment. Colby prays that the trial court “reverse the [DWC] appeals panel

decision” but he provides no argument to identify any basis upon which to conclude that

the DWC Hearing Officer or Appeals Panel erred. Colby also filed a second amended

pleading that he asks the trial court to consider separately from his DWC appeal. In this

amendment, Colby asserts his claims for “Civil Rights/Discrimination Violation.” Notably,

nowhere does Colby identify any basis for the trial court’s jurisdiction over civil rights

claims asserted by an individual against an insurance carrier.


      Approximately a week after Colby filed his amended pleadings, the trial court

granted Utica’s motion for summary judgment but expressly ruled that Colby’s “claims as

pled in his Original Petition are dismissed.” Uncertain whether the trial court’s summary

judgment ruling disposed of all of Colby’s pending claims, Utica filed a Plea to the

Jurisdiction and Motion to Dismiss. By this motion, Utica again contends that Colby failed

to exhaust administrative remedies available from the DWC before pursuing judicial

review in the district courts. Colby responded yet again stating that he had presented a

case to the DWC and, therefore, had exhausted administrative remedies. The trial court




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issued its order granting Utica’s plea to the jurisdiction and motion to dismiss on February

24, 2017. Colby timely appealed from this order.2


                                                    Law


        A trial court has jurisdiction to award damages only to the extent that relief is not

dependent upon the direct or indirect adjudication of a matter within the DWC’s exclusive

jurisdiction. In re Tex. Mut. Ins. Co., 321 S.W.3d 655, 660 (Tex. App.—Houston [14th

Dist.] 2010, orig. proceeding). Whether an agency has subject matter jurisdiction over a

matter is a question of law reviewed de novo. Id. (citing Subaru of Am., Inc. v. David

McDavid Nissan, Inc., 84 S.W.3d 212, 222 (Tex. 2002)). When an agency has exclusive

jurisdiction to resolve a dispute, a party must first exhaust all administrative remedies

before a trial court has subject matter jurisdiction. Id. (citing O’Neal v. Ector County Indep.

Sch. Dist., 251 S.W.3d 50, 51 (Tex. 2008) (per curiam)).


        A plea to the jurisdiction challenging exhaustion of administrative remedies under

the workers’ compensation scheme can rest on the pleadings, or on evidence. Id. When

the plea challenges the pleadings, we must determine whether the pleader has alleged

facts that affirmatively demonstrate the court's jurisdiction to hear the case. Id. In

conducting this review, we must look to the allegations in the pleadings, liberally construe

them in the plaintiff’s favor, and look to the pleader’s intent. Id. If the pleadings fail to




        2   Colby’s notice of appeal seeks appeal from the trial court’s “final judgement entered on February
24, 2017, granting Defendant[’s] Motion for Summary Judgement . . . .” We note that the dispositive ruling
of the trial court that was entered on February 24, 2017, is an order granting Utica’s plea to the jurisdiction
and motion to dismiss. By contrast, the trial court granted Utica’s motion for summary judgment by order
dated January 11, 2017. Because Utica raised the same grounds in its plea to the jurisdiction that it had
previously raised in its motion for summary judgment and as Colby appealed the trial court’s February 24,
2017 ruling, we will limit our review to the propriety of the trial court’s grant of Utica’s plea.

                                                      5
allege sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not

affirmatively demonstrate incurable defects in jurisdiction, the plaintiff should be afforded

the opportunity to amend. Id. at 660-61.


       “The Workers’ Compensation Act vests the power to award compensation benefits

solely in the [DWC], subject to judicial review.” Am. Motorists Ins. Co. v. Fodge, 63

S.W.3d 801, 803 (Tex. 2001). The Act also vests exclusive jurisdiction to determine a

claimant’s entitlement to medical benefits upon the DWC. In re Tex. Mut. Ins. Co., 321

S.W.3d at 661 (citing In re Liberty Mutual Fire Ins.Co., 295 S.W.3d 327, 328 (Tex. 2009)

(orig. proceeding) (per curiam)). Claims against workers’ compensation carriers for unfair

settlement practices are not cognizable under the Texas Insurance Code because the

Workers’ Compensation Act includes specific penalties and sanctions for enforcement of

its requirements. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 433, 443 (Tex. 2012).

An injured employee also may not assert a claim for breach of the common law duty of

good faith and fair dealing against a workers’ compensation carrier. Id. at 451.


       When an agency has exclusive jurisdiction, a party must exhaust all administrative

remedies before seeking judicial review of the agency’s action. In re Tex. Mut. Ins. Co.,

321 S.W.3d at 661 (citing Subaru of Am., Inc., 84 S.W.3d at 221).             Exhaustion of

administrative remedies is required to ensure that the administrative agency has had the

opportunity to resolve disputed fact issues within its exclusive jurisdiction before those

issues are addressed by a court. Id. Even after administrative remedies have been

exhausted, judicial review of an area in which the DWC has been granted exclusive

jurisdiction is limited to issues decided by the Appeals Panel and on which judicial review

is specifically sought. TEX. LABOR CODE ANN. § 410.302(b) (West 2015).

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                                                 Analysis


        Initially, we note that Colby’s petition does not expressly identify a DWC order

being appealed from, a DWC cause number, or an Appeals Panel decision number. At

best, Colby references a DWC Hearing Officer’s Decision and Order and a subsequent

notice issued by the Appeals Panel that the Decision and Order was upheld and became

final. This Decision and Order identifies the issue as whether Persyn was properly

appointed as designated doctor. However, Colby’s petition asserts claims for Utica’s

denial of medical treatment, improper claims handling, and violations of Colby’s civil

rights. Clearly, these claims were not addressed by the DWC’s resolution of the propriety

of the appointment of Persyn as designated doctor. Consequently, as a direct appeal for

judicial review of a DWC decision, Colby’s petition is deficient. Further, Colby’s petition

seeks damages for pain and suffering, mental anguish, physical impairment, as well as

exemplary damages, but does not request a modification or set aside of any DWC order. 3


        The DWC has been granted exclusive jurisdiction over Colby’s claims. Colby

asserts claims for Utica’s denial of medical treatment, but DWC has been granted

exclusive jurisdiction over this area. See In re Tex. Mut. Ins. Co., 321 S.W.3d at 661. He

asserts claims that Utica has improperly handled his workers’ compensation claim, but

this is also an area over which DWC has been granted exclusive jurisdiction. Ruttiger,

381 S.W.3d at 433, 443. It appears that Colby also asserts claims that would fall under

a theory that Utica has breached its duty of good faith and fair dealing, but this is another



         3 It appears that Colby believes that his exhaustion of administrative remedies as to any issue

entitles him to judicial review of all issues that he has with Utica. However, the law provides that judicial
review of issues over which DWC has exclusive jurisdiction is limited to those issues expressly decided by
the Appeals Panel. TEX. LABOR CODE ANN. § 410.302(b).

                                                     7
area where the DWC has been granted exclusive jurisdiction. Id. at 451. Finally, Colby

asserts claims for violation of his civil rights. However, Colby cites to no authority that

would make his civil rights claims cognizable against a workers’ compensation carrier.

See 42 U.S.C.S. § 1983 (affords action for deprivation of Constitutional rights against

state actors). Consequently, we conclude that Colby has not exhausted administrative

remedies as to any of his claims for which such exhaustion is required and he has not

identified any basis for the trial court’s exercise of jurisdiction over his civil rights claims.


       As to the designated doctor issue on which Colby appears to have exhausted

administrative remedies, Colby’s argument is that the originally appointed designated

doctor is not qualified and is no longer authorized to be appointed as a designated doctor

by the DWC. However, this argument was not the issue for which administrative remedies

were exhausted. The DWC Hearing Officer’s Decision and Order identifies the disputed

issue as: “Was Lisa Persyn, properly appointed the designated doctor in accordance with

TEX. LABOR CODE ANN § 408.0041 pursuant to Rule § 127.130?” It is clear that the

propriety of Persyn’s appointment as designated doctor was all that was being decided

at this hearing. In fact, in response to argument presented by Colby, the Hearing Officer

specifically stated that whether the original designated doctor remained qualified to serve

as designated doctor “is irrelevant at this point . . . .” The issue that was addressed by

the DWC was simply whether Persyn was properly appointed in compliance with the

applicable rules and regulations of the DWC. Thus, the designated doctor claim asserted

by Colby does not comport with the issue presented to the DWC.




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                                          Conclusion


       Having concluded that Colby did not exhaust administrative remedies before

asserting his present claims in district court, we affirm the trial court’s grant of Utica’s plea

to the jurisdiction and motion to dismiss.




                                                           Judy C. Parker
                                                              Justice




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