                                        In The

                                 Court of Appeals
                     Ninth District of Texas at Beaumont
                             ____________________
                                NO. 09-14-00521-CV
                             ____________________


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

_______________________________________________________            ______________

                                 Original Proceeding
________________________________________________________             _____________

                           MEMORANDUM OPINION

      Relator, Texas Alliance of Energy a/k/a Texas Alliance of Energy Producers

Workers’ Compensation Self-Insured Group Trust, seeks mandamus relief from

the exercise of jurisdiction by the 253rd District Court of Liberty County, Texas, in

a suit filed by John Bennett. Relator contends the trial court improperly asserted

jurisdiction over Bennett’s extra-contractual claims, and that the trial court

improperly resolved as a matter of law workers’ compensation claims that were not

first adjudicated administratively or that were not timely appealed. We

conditionally grant the writ in part.

                                          1
                                     Background

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

administrative proceedings before the Division of Workers’ Compensation (DWC),

a contested case hearing resulted in a decision that Bennett reached maximum

medical improvement (MMI) 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. The Appeals Panel

notified the parties that the hearing officer’s decision and order became final on

July 18, 2011.

      On September 2, 2011, Bennett filed suit for judicial review of the Appeals

Panel’s decision on the impairment rating and date of MMI.1 In September 2011,

Relator filed a plea to the jurisdiction alleging in part that Bennett failed to request

relief from the Appeals Panel decision that he was not entitled to SIBs for the first

through sixth compensable quarters. Bennett added a request for SIBs to his prayer

for relief with a pleading filed on November 28, 2011. In 2013, Bennett amended

his pleadings to allege claims for negligence and intentional infliction of emotional



      1
       Bennett’s original petition identified the defendant as “Texas Alliance of
Energy Producers.” The defendant’s name varies in Bennett’s subsequent
pleadings, but Relator’s filings in the trial court assert that it is the proper
defendant.
                                           2
distress.2 In the pleading filed in 2013, Bennett’s factual recitations include a

statement that the Appeals Panel decision upholding the hearing officer’s decision

on MMI is incorrect because the actual impairment rating was twenty percent. The

petition does not mention the Appeals Panel’s decision on SIBs.

      Relator filed a motion for summary judgment in which it contended Bennett

had no judicial remedy for the extra-contractual claims asserted in his petition. See

Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 446-56 (Tex. 2012); Am. Motorists

Ins. Co. v. Fodge, 63 S.W.3d 801, 804 (Tex. 2001); see also Tex. Labor Code Ann.

§ 408.001(a) (West 2006). Regarding judicial review of the Appeals Panel’s

decision, Relator asserted that Bennett dropped his request for SIBs in one of the

amended pleadings he filed with the trial court, and his attempted amendment of

his petition to assert a claim for SIBs for the first quarter was not timely filed under

the statute. 3 See Tex. Labor Code Ann. § 410.252(a) (West Supp. 2014). Relator

      2
         In 2014, Bennett either filed or purported to file Plaintiff’s Third Amended
Petition, alleging Bennett’s entitlement to SIBs for the first compensable quarter
only and asserting claims for negligence and for intentional infliction of emotional
distress. The third amended petition bears an incorrect cause number and Relator
states that the trial court clerk’s office does not have a record of the petition having
been filed.
       3
         In its motion for summary judgment Relator also asserted that it was
entitled to judgment because Bennett originally sued the wrong defendant, that the
correct defendant was not sued until November 28, 2011, and that a subsequent
amendment to Bennett’s pleadings again named the wrong defendant, effectively
dismissing Relator from the suit. Relator contended it was entitled to judgment as a
                                           3
asserted that the issue of its failure to request a benefit review hearing on SIBs for

the first compensable quarter was not subject to judicial review because the issue

had not been presented to the Appeals Panel.

      Bennett filed a motion for summary judgment asserting that he was entitled

to judgment as a matter of law because Relator failed to request a benefit review

conference within ten days of the date the DWC issued a notice of entitlement to

SIBs for the first quarter. In response, Relator asserted that, having allowed the

issue of the first quarter of SIBs to be litigated before the Appeals Panel without

objection, Bennett could not obtain judicial review of Relator’s failure to exhaust

its administrative remedies regarding the first quarter of SIBs.

      The trial court granted Bennett’s motion for summary judgment and ordered

that Bennett is entitled to receive his benefits for compensable quarters one

through six. The trial court denied Relator’s motion for summary judgment and

Relator’s motion to sever Bennett’s extra-contractual claims. The trial court has

not disposed of all of the issues before that court.




matter of law because Bennett had no evidence that he timely filed suit against a
proper defendant and further amendment would be barred by the statute of
limitations. Relator does not press this argument in its mandamus petition, and we
do not consider it here.
                                           4
                                      Issues

       The issues in dispute in this mandamus proceeding concern whether Bennett

exhausted his remedies at the administrative level and whether he properly pleaded

his claims. Relator contends: (1) the trial court abused its discretion by asserting

jurisdiction over Bennett’s claims for extra-contractual damages allegedly arising

out of the claims handling process; (2) Bennett failed to exhaust administrative

remedies on his workers’ compensation claims, with respect to the issue of

entitlement to SIBs; and (3) Bennett failed to exhaust his administrative remedies

with respect to the issue of whether Relator waived its right to contest the first

compensable quarter of SIBs by failing to request a benefit review conference

when the DWC issued its August 12, 2008 notice of entitlement to SIBs for the

first quarter.

       Only the DWC can determine entitlement to particular benefits. See

Ruttiger, 381 S.W.3d at 437. When a claimant has failed to exhaust administrative

remedies, the trial court’s exercise of jurisdiction is “correctable by mandamus to

prevent a disruption of the orderly processes of government.” See In re Liberty

Mut. Fire Ins. Co., 295 S.W.3d 327, 328 (Tex. 2009). “If a claim is not within a

court’s jurisdiction, and the impediment to jurisdiction cannot be removed, then it

must be dismissed; but if the impediment to jurisdiction could be removed, then

                                         5
the court may abate proceedings to allow a reasonable opportunity for the

jurisdictional problem to be cured.” Fodge, 63 S.W.3d at 805.

      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) (West 2006). The DWC determined that Bennett reached

statutory MMI with a nineteen percent impairment rating and that he was not

entitled to SIBs for the first six compensable quarters, but Bennett challenged only

the impairment rating in his original petition for judicial review. No claims-

handling complaints were addressed by the Appeals Panel.4 Because the trial

court’s subject-matter jurisdiction is limited to the issues addressed by the Appeals

Panel, the trial court abused its discretion by denying Relator’s plea to the

jurisdiction as to Bennett’s claims-handling complaints. See Ruttiger, 381 S.W.3d

at 451-56; Fodge, 63 S.W.3d at 804; Bean v. Tex. Mut. Ins. Co., 09-11-00123-CV,

2012 WL 5450826, at *2 (Tex. App.—Beaumont Nov. 8, 2012, no pet.) (mem.

op.). We sustain issue one.

      The Appeals Panel ruled that Bennett was not entitled to SIBs for

compensable quarters one through six. Notwithstanding the Appeals Panel
      4
       The Workers’ Compensation Act addresses claims-handling abuses through
a sanctions process that includes judicial review of administrative violations. See
Tex. Labor Code Ann. §§ 415.001-.036 (West 2006 & Supp. 2014). Those
procedures were not implemented in this case and are not at issue here.
                                         6
decision, Relator argues that the record demonstrates that Bennett failed to exhaust

his administrative remedies with regard to his right to SIBs. Relator claims

Bennett’s failure to exhaust occurred when he failed to specifically plead that he

was challenging that ruling in his original petition, and again when he filed an

amended petition that did not include allegations specifically requesting that he

recover a judgment for SIBs.

      Several of the Courts of Appeals have held the time limit for filing suit

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

jurisdictional. See Fire & Cas. Ins. Co. of Conn. v. Miranda, 293 S.W.3d 620, 624

(Tex. App.—San Antonio 2009, no pet.); Texas Mun. League v. Burns, 209 S.W.3d

806, 812 (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 918, 921 (Tex. App.—Dallas 2001, pet. denied). Here, it

is undisputed that Bennett filed suit within forty-five days of the date on which the

DWC mailed the notice of its decision. See Tex. Labor Code Ann. § 410.252(a).

He complied with section 410.252(a).

      For its jurisdictional argument, Relator relies upon section 410.302(b) of the

Texas Labor Code. See id. § 410.302(b). The issues that may be determined by the

trial court are limited to issues decided by the Appeals Panel. Id. “The pleadings

                                         7
must specifically set forth the determinations of the appeals panel by which the

party is aggrieved.” Id. Section 410.302(b) defines the scope of the issues that may

be judicially reviewed after an appeals panel decision but the pleading requirement

is not itself jurisdictional. Old Republic Ins. Co. v. Warren, 33 S.W.3d 428, 432

(Tex. App.—Fort Worth 2000, pet. denied).

      Because courts presume in favor of jurisdiction, unless the petition

affirmatively demonstrates a lack of jurisdiction, the trial court will assume

jurisdiction until it is proven otherwise. Peek v. Equip. Serv. Co. of San Antonio,

779 S.W.2d 802, 804 (Tex.1989); see also Tex. Dep’t of Transp. v. Beckner, 74

S.W.3d 98, 104 (Tex. App.—Waco 2002, no pet.). Relator suggests Bennett’s live

pleading is his Second Amended Petition, and argues that pleading exclusively

presented claims-handling complaints over which the trial court lacks subject

matter jurisdiction. Bennett’s pleadings are somewhat confusing, and from the

mandamus record it is unclear which petition is Bennett’s live pleading. The trial

court did not abuse its discretion in denying Relator’s plea to the jurisdiction as it

relates to Bennett’s claim for SIBs. 5 The trial court may require Bennett to amend

      5
        This is an original mandamus proceeding limited to the trial court’s subject
matter jurisdiction. Except where the trial court’s subject matter jurisdiction is
implicated, we express no opinion regarding the motions for summary judgment,
the responses to the motions and the objections to the summary judgment evidence,
or the trial court’s rulings on the motions for summary judgment.
                                          8
his pleadings to comply with section 410.302(b) of the Texas Labor Code. See

Beckner, 74 S.W.3d at 104. The mandamus record does not establish that Bennett

affirmatively pleaded himself out of court with regard to his appeal of the Appeals

Panel’s decision that he is not entitled to SIBs for compensable quarters one

through six. We overrule issue two.

      Relator contends that the trial court abused its discretion in exercising

jurisdiction over the issue of whether Relator exhausted its administrative remedies

regarding Bennett’s entitlement to SIBs for the first quarter. The trial court’s

subject matter jurisdiction is limited to issues decided by the Appeals Panel. See

Tex. Labor Code Ann. § 410.302(b). A trial court lacks subject-matter jurisdiction

over any issue that was not properly presented to the Appeals Panel. Frank v.

Liberty Ins. Corp., 255 S.W.3d 314, 320 (Tex. App.—Austin 2008, pet. denied).

The trial court cannot consider an issue of waiver that was not presented for

consideration in the administrative review process. Zurich Am. Ins. Co. v. Debose,

No. 01-13-00344-CV, 2014 WL 3512769, at *7 (Tex. App.—Houston [1st Dist.]

July 15, 2014, no pet.) (mem. op.). The mandamus record does not indicate that the

Appeals Panel considered whether Relator waived its right to challenge the first

quarter SIBs either in the contested case hearing or the Appeals Panel because it

failed to request a benefit review conference after a notice of entitlement to SIBs

                                         9
for the first quarter issued on August 12, 2008. In the absence of evidence

demonstrating that the Appeals Panel considered the issue of waiver, the trial court

abused its discretion by considering an issue that was not presented to the Appeals

Panel. Id. We sustain issue three.

                                     Conclusion

      The mandamus record demonstrates that the trial court failed to limit itself to

issues considered by the Appeals Panel. See Tex. Labor Code Ann. § 410.302(b).

Bennett exhausted his administrative remedies with regard to his entitlement to

SIBs, however, and Relator has not demonstrated that the trial court could not

exercise jurisdiction over a properly pleaded dispute concerning SIBs. If the

impediment to jurisdiction could be removed, then the trial court may abate

proceedings to allow a reasonable opportunity for the jurisdictional problem to be

cured. See Fodge, 63 S.W.3d at 805.

      We are confident that the trial court will reconsider its rulings in light of this

opinion, and that after giving the plaintiff an opportunity to replead, the trial court

will grant a plea to the jurisdiction as to any issues that were not brought before the

Appeals Panel. The writ of mandamus shall issue only if the trial court fails to

comply within a reasonable time.




                                          10
      PETITION CONDITIONALLY GRANTED IN PART.


                                                  PER CURIAM

Submitted on December 17, 2014
Opinion Delivered January 22, 2015

Before McKeithen, C.J., Kreger and Johnson, JJ.




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