                                       In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              _________________
                               NO. 09-15-00263-CV
                              _________________


 IN RE TEXAS ALLIANCE OF ENERGY, AKA TEXAS ALLIANCE OF
ENERGY PRODUCERS WORKERS’ COMPENSATION SELF-INSURED
                      GROUP TRUST

________________________________________________________________________

                              Original Proceeding
                 253rd District Court of Liberty County, Texas
                         Trial Cause No. CV1104807
________________________________________________________________________

                          MEMORANDUM OPINION

      Texas Alliance of Energy, AKA Texas Alliance of Energy Producers

Workers’ Compensation Self-Insured Group Trust petitioned for a writ of

mandamus ordering the judge of the 253rd District Court of Liberty County, Texas

to dismiss certain claims brought by John Bennett in a workers’ compensation suit.

We conditionally grant the writ in part.




                                           1
                                   Background

      John Bennett sustained a compensable injury on August 30, 2006.

Administrative proceedings before the Division of Workers’ Compensation

(DWC) have resulted in two Appeals Panel decisions: (1) a 2011 Appeals Panel

decision ruling that Bennett reached maximum medical improvement on

September 3, 2008, that Bennett’s impairment rating was nineteen percent, and that

he was not entitled to supplemental income benefits (SIBs) for compensable

quarters one through six; and (2) a 2014 Appeals Panel decision ruling that Bennett

permanently lost entitlement to SIBs because he was not entitled to SIBs for twelve

consecutive months, and Bennett was not entitled to SIBs for the seventh through

the nineteenth quarters.

      Bennett filed his lawsuit on September 2, 2011. His original pleading

concerned the 2011 Appeals Panel decision determining his impairment rating and

the date he reached maximum medical improvement. Bennett first requested a

judicial review of the first six quarters of SIBs in a pleading filed on November 28,

2011. He subsequently amended his petition to allege claims of negligence,

intentional infliction of emotional distress, and fraud. On November 6, 2014, the

trial court overruled Relator’s challenges to the trial court’s jurisdiction and

granted Bennett’s motion for summary judgment entitling Bennett to SIBs for the

                                         2
first through sixth compensable quarters. Relator petitioned for mandamus relief

and argued that the trial court lacked subject matter jurisdiction over Bennett’s

extra-contractual claims and claims on which he failed to exhaust his

administrative remedies. We conditionally granted partial mandamus relief and

directed the trial court to grant a plea to the jurisdiction for any issues that Bennett

had not brought before the Appeals Panel. In re Texas Alliance of Energy, 09-14-

00521-CV, 2015 WL 269401, at *4 (Tex. App.—Beaumont Jan. 22, 2015, orig.

proceeding) (mem. op.).

      Bennett filed his fourth amended petition on February 4, 2015, and his fifth

amended petition on March 25, 2015. The February 4, 2015 pleading and the

pleading it replaced stated, “This appeal is confirming quarters one through six and

appealing seven through nineteen.” But, neither Bennett’s third nor his fourth

amended petition expressly mentions the 2014 Appeals Panel proceeding before

the DWC. Bennett first expressly referenced the new DWC proceedings that

resulted in the 2014 Appeals Panel decision in his Fifth Amended Petition, which

he filed on March 25, 2015. In Bennett’s Fifth Amended Petition, he further

alleges that Relator “committed intentional infliction of emotional distress”

through “continual lies and misrepresentations, along with the refusal to accept

liability and pay benefits[,]” presented “fraudulent information and documentation

                                           3
to the worker’s compensation hearing officer[,]” and “failed to timely appeal the

award of August 12, 2008 Notice of Entitlement to Supplemental Income Benefits

(SIBs) for the quarters.” Additionally, Bennett alleges in the Fifth Amended

Petition that Relator failed to provide medical treatment, failed to pay for his

medication, and failed to pay for his treatment-related travel.

      The trial court signed an order ruling that the Fifth Amended Petition

showed that Bennett exhausted all administrative remedies. The trial court denied

Relator’s plea to the jurisdiction based upon the alleged failure to exhaust

administrative remedies, denied Relator’s motions to dismiss and for summary

judgment, and declined to reconsider the previous order granting partial summary

judgment in favor of Bennett. The trial court ruled that Bennett

      is entitled to payment on SIBs quarters one through six in the Texas
      Department of Insurance’s notice dated August 12, 2008. This case
      combined all quarter[s] through nineteen and Plaintiff is entitled to
      payment from quarters one through nineteen based upon a 19%
      impairment rating (which was provided by the designated doctor).

On June 1, 2015, the trial court signed an order denying Relator’s motion to

reconsider its plea to the jurisdiction for the seventh through the nineteenth

compensable quarters.




                                          4
                          Request for Mandamus Relief

      Relator has filed a motion to issue the writ of mandamus that we

conditionally granted on January 22, 2015. See id. at *4. Additionally, Relator

presents two new complaints that relate to claims asserted in Bennett’s Fifth

Amended Petition. First, Relator contends that Bennett failed to exhaust his

administrative remedies with respect to his entitlement to medical benefits because

he has not presented those issues to the Appeals Panel for resolution by the DWC

before filing suit. Second, Relator argues Bennett’s failure to timely file a

challenge to the Appeals Panel’s 2014 decision deprived the trial court of

jurisdiction over Bennett’s claim for SIBs for compensable quarters seven through

nineteen.

      “Recovery of workers’ compensation benefits is the exclusive remedy of an

employee covered by workers’ compensation insurance coverage . . . against the

employer or an agent or employee of the employer for . . . a work-related injury

sustained by the employee.” Tex. Labor Code Ann. § 408.001(a) (West 2015).

The Workers’ Compensation Act “provides the exclusive process and remedies for

claims arising out of a carrier’s investigation, handling, or settling of a claim for

workers’ compensation benefits.” In re Crawford & Co., 458 S.W.3d 920, 925-26

(Tex. 2015). The dispute resolution process consists of four possible steps: (1) a

                                         5
benefit review conference; (2) a contested case hearing; (3) an administrative

appeals panel review; and (4) a judicial review. Tex. Mut. Ins. Co. v. Ruttiger, 381

S.W.3d 430, 437 (Tex. 2012). Judicial review of a workers’ compensation case “is

limited to issues decided by the appeals panel and on which judicial review is

sought.” Tex. Labor Code Ann. § 410.302(b).

      The 2011 Appeals Panel decided eight issues, which were described in the

decision on the contested case hearing as follows:

      1. What is the date of maximum medical improvement (MMI)?

      2. What is the claimant’s impairment rating (IR)?

      3. Is the Self-Insured relieved of liability for supplemental income benefits
         (SIBs) because of the claimant’s failure to timely file an application for
         supplemental income benefits for the 1st through 4th quarter[s], and if so,
         for what periods? (Withdrawn by agreement of the parties).

      4. Is the claimant entitled to supplemental income benefits for the first
         quarter, from September 30, 2009 through December 29, 2009?

      5. Is the claimant entitled to supplemental income benefits for the second
         quarter, from December 30, 2009 through March 30, 2010?

      6. Is the claimant entitled to supplemental income benefits for the third
         quarter, from March 31, 2010 through June 29, 2010?

      7. Is the claimant entitled to supplemental income benefits for the fourth
         quarter, from June 30, 2010 through September 28, 2010?

      8. Is the claimant entitled to supplemental income benefits for the fifth
         quarter, from September 29, 2010 through December 28, 2010?

                                         6
      9. Is the claimant entitled to supplemental income benefits for the sixth
         quarter, from December 29, 2010 through March 29, 2011?

      At the conclusion of the administrative process, the DWC concluded that

Bennett’s impairment rating is 19%, that Bennett reached maximum medical

improvement on September 3, 2008, and that Bennett is not entitled to SIBs for the

first through the sixth compensable quarters.

      The 2014 Appeals Panel decided two issues, which were described in the

contested case hearing as follows:

      1. Is the Claimant entitled to supplemental income benefits for the 7th, 8th,
         9th, 10th, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th, and 19th quarters,
         April 7, 2011 through May 7, 2014?

      2. Has the Claimant permanently lost entitlement to supplemental income
         benefits pursuant to Texas Labor Code § 408.146(c) because he was not
         entitled to them for 12 consecutive months?

The 2014 Appeals Panel struck a finding of fact that during the qualifying period

for the eighth quarter, the claimant demonstrated an active effort to obtain

employment each week during the entire qualifying period; the result of the

administrative process was that Bennett permanently lost entitlement to SIBs

because he was not entitled to SIBs for twelve consecutive months and Bennett is

not entitled to SIBs for the seventh through nineteenth compensable quarters.

      Only these enumerated issues were exhausted through step three of the four-

step-dispute-resolution process identified in the Ruttiger decision. See Ruttiger,
                                          7
381 S.W.3d at 437. The DWC has exclusive jurisdiction over claims-handling

disputes arising out of a carrier’s investigation, handling, or settling of a claim for

workers’ compensation benefits. See Crawford & Co., 458 S.W.3d at 925-26. The

DWC resolved neither Bennett’s claims-handling issues nor his medical

reimbursement claims for prescription medication, mileage, or surgery. 1 Bennett’s

claim for failure to timely provide medical treatment depends upon an

administrative determination of the right to the medical treatment and an

administrative resolution of the claims-handling complaints. See id.; see also In re

Liberty Mut. Fire Ins. Co., 295 S.W.3d 327, 328 (Tex. 2009). Accordingly, the trial

court lacks subject matter jurisdiction over Bennett’s claims for medical benefits

and for failing to timely provide medical treatment. See Crawford, 458 S.W.3d at

925-26; see also Texas Alliance, 2015 WL 269401, at *2.

      “[I]t is proper for a trial court to dismiss claims over which it does not have

subject matter jurisdiction but retain claims in the same case over which it [does

have] jurisdiction.” Thomas v. Long, 207 S.W.3d 334, 338 (Tex. 2006). Relator is

      1
       The venue provisions of section 410.252(b) do not implicate the trial
court’s subject matter jurisdiction. Mayberry v. Am. Home Assur. Co., 122 S.W.3d
455, 458 (Tex. App.—Beaumont 2003, no pet.). We do not decide whether the
Liberty County District Court is the court of proper venue for a judicial review of
claims of this nature. Compare Tex. Labor Code Ann. § 410.252(b) with Tex.
Labor Code Ann. § 410.255, and Tex. Gov’t Code Ann. § 2001.176(b) (West
2008).
                                          8
not entitled to a dismissal of Bennett’s suit for judicial review of the 2011 Appeals

Panel decision because the trial court does have jurisdiction to review the 2011

Appeals Panel decision concerning Bennett’s entitlement to SIBs for the first

through sixth compensable quarters. See Texas Alliance, 2015 WL 269401, at *3;

see also Old Republic Ins. Co. v. Warren, 33 S.W.3d 428, 432 (Tex. App.—Fort

Worth 2000, pet. denied) (“No case has held that a plaintiff’s failure to follow the

strictures of section 410.302 [of the Texas Labor Code] divests a district court of

jurisdiction when the plaintiff’s original petition was timely filed.”).2 Bennett’s

live pleading re-states his previous claim for intentional infliction of emotional

distress as damages arising from the carrier’s “refusal to accept liability and pay

benefits.” Likewise, Bennett re-states his fraud allegations as a claims-handling

dispute. Bennett’s amended pleading demonstrated that he exhausted his

administrative remedies relative to his entitlement to SIBs for the first through the

sixth compensable quarters, but the amended pleading does not demonstrate that he

exhausted his administrative remedies on the claims-handling dispute. We

conclude that Bennett has not exhausted his administrative remedies for his claims-



      2
       In this mandamus proceeding, Relator does not argue that the trial court
lacked subject matter jurisdiction over Bennett’s claim for SIBs for the first
through sixth compensable quarters. The trial court granted a partial summary
judgment on this issue, but we express no opinion regarding the trial court’s ruling.
                                         9
handling dispute, his claims for medical benefits, and his claims for failing to

timely provide medical treatment.

      In our previous opinion arising out of this litigation, we explained that

Bennett should have an opportunity to replead before the trial court grants a plea to

the jurisdiction for any issues that were not brought before the Appeals Panel.

Texas Alliance, 2015 WL 269401, at *4. This situation is different because Bennett

has been given an opportunity to replead, but he continues to assert unexhausted

claims. Relator brought the lack of subject matter jurisdiction to the attention of the

trial court through a plea to the jurisdiction and a motion to dismiss. The trial court

abused its discretion by failing to dismiss those claims over which the trial court

lacked subject matter jurisdiction. Crawford, 458 S.W.3d at 926-7.

      Regarding the issue of whether Bennett timely filed a petition for judicial

review of the 2014 Appeals Panel decision, section 410.252(a) of the Texas Labor

Code provides, as follows:

      A party may seek judicial review by filing suit not later than the 45th
      day after the date on which the division mailed the party the decision
      of the appeals panel. For purposes of this section, the mailing date is
      considered to be the fifth day after the date the decision of the appeals
      panel was filed with the division.

Tex. Labor Code § 410.252(a). The 2014 Appeals Panel determined that Bennett is

not entitled to SIBs for the seventh through the nineteenth compensable quarters.

                                          10
Bennett had to file suit challenging the 2014 Appeals Panel decision by January

26, 2015. See id.; see also Tex. R. Civ. P. 4. On that date, Bennett’s live pleading

in his pending lawsuit against the carrier expressly complained only about the 2011

Appeals Panel decision and omitted any mention of the DWC proceedings that

were actively being pursued at the administrative level when the pleading was

filed. However, this pleading also stated, “This appeal is confirming quarters one

through six and appealing seven through nineteen.” Bennett repeats the same

statement in a pleading that he filed on February 4, 2015. Bennett first expressly

referenced the 2014 DWC appeals panel decision in his fifth amended original

petition filed on March 25, 2015.

      In its Supplemental Petition for Writ of Mandamus, Relator cites cases from

eight of the Courts of Appeals to support the proposition that the forty-five day

deadline in section 410.252 of the Texas Labor Code is mandatory and

jurisdictional. See Davis v. Am. Cas. Co. of Reading, Pa., 408 S.W.3d 1, 6 (Tex.

App.—Amarillo 2012, pet. denied); Fire & Cas. Ins. Co. of Conn. v. Miranda, 293

S.W.3d 620, 624 (Tex. App—San Antonio 2009, no pet.); Tex. Mun. League

Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 812 n. 9 (Tex. App.—Fort

Worth 2006, no pet.); LeBlanc v. Everest Nat’l Ins. Co., 98 S.W.3d 786, 787 (Tex.

App.—Corpus Christi 2003, no pet.); Johnson v. United Parcel Serv., 36 S.W.3d

                                        11
918, 921 (Tex. App.—Dallas 2001, pet. denied); Argonaut Sw. Ins. Co. v. Walker,

64 S.W.3d 654, 657 (Tex. App.—Texarkana 2001, pet. denied); Morales v.

Travelers Indem. Co. of Conn., No. 01-14-00429-CV, 2014 WL 7340374, at *2

(Tex. App.—Houston [1st Dist.] Dec. 18, 2014, pet. denied) (mem. op.); Cervantes

v. Tyson Foods, Inc., 130 S.W.3d 152, 155 (Tex. App.—El Paso 2003, pet.

denied). These cases are all distinguishable from the case before this Court by

reason of the vehicle in which the issue is presented for review in the appellate

court. The issue is before this Court in a petition for a writ of mandamus. See Tex.

R. App. P. 52.1.

      “Incidental district court rulings, which include pleas to the jurisdiction,

generally will not be reviewed by mandamus because an adequate appellate

remedy exists.” In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003). The

denial of a plea to the jurisdiction relating to an unexhausted claim is subject to

mandamus “to prevent a disruption of the orderly processes of government.”

Liberty Mut., 295 S.W.3d at 328. Because Bennett has exhausted his administrative

remedy regarding his entitlement to SIBs for the seventh through the nineteenth

compensable quarters, the trial court’s exercise of jurisdiction does not interfere




                                        12
with the jurisdiction of the DWC. Accordingly, Relator has an adequate remedy by

appeal. 3 See id.

       We conditionally grant mandamus relief and we direct the trial court to

dismiss Bennett’s medical benefits claims for lack of subject matter jurisdiction.

       PETITION CONDITIONALLY GRANTED.



                                                              PER CURIAM


Submitted on August 4, 2015
Opinion Delivered August 31, 2015

Before Kreger, Horton, and Johnson, JJ.




       3
           We express no opinion regarding the trial court’s ruling.
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