Opinion
No. 05-08-00587-CV
Opinion Filed February 19, 2009.
On Appeal from the 191st District Court, Dallas County, Texas, Trial Court Cause No. 07-12867-J.
Before Justices BRIDGES, RICHTER, and MAZZANT.
MEMORANDUM OPINION
Federal Insurance Company appeals the summary judgment in favor of Carol Ruiz on Federal's suit to overturn the administrative decision of the Division of Worker's Compensation in favor of Ruiz. Federal brings two issues on appeal, asserting the trial court erred in granting Ruiz's motion for summary judgment on the ground that Federal waived its right to dispute the extent of Ruiz's compensable injury by not timely urging that dispute in accordance with section 409.021(c) of the Texas Labor Code. We affirm the trial court's judgment.
BACKGROUND
Ruiz worked as a secretary for her employer, performing clerical work, typing, and some heavy lifting. On January 24, 2005, Ruiz sustained an injury in the course and scope of her employment. On February 10, 2005, the injury was reported to Federal, which was Ruiz's employer's worker's compensation carrier. During the sixty days after it received notice of the injury, Federal did not contest the compensability of the injury. On May 23, 2005, Federal notified Ruiz that it accepted Ruiz's claim for right shoulder strain, cervical strain, and left wrist strain but disputed other parts of Ruiz's claim, including cervical radiculopathy, C4-C5 disc protrusion, C3-C4 disc bulge, left wrist fibrocartilage tear, and left cubital tunnel syndrome.
Under Texas Labor Code section 409.021(c), a carrier that fails to contest the compensability of an injury during the sixty days following notice of the injury waives the right to contest the compensability of the injury. Tex. Lab. Code Ann. § 409.021(c) (Vernon 2006). However, the carrier may reopen the issue of compensability based on evidence that could not have been discovered earlier. Id. § 409.021(d). An administrative rule, 28 Texas Administrative Code section 124.3, provides that this waiver of the right to contest compensability after sixty days does not apply to "disputes of extent of injury." 28 Tex. Admin. Code § 124.3(e) (2004).
In this case, Federal does not dispute that it had notice of Ruiz's cervical radiculopathy, C4-C5 disc protrusion, C3-C4 disc bulge, left wrist fibrocartilage tear, and left cubital tunnel syndrome during the sixty days following its initial notice of her injury and that it did not contest the compensability of her injury. More than sixty days after notice of her injury, Federal first asserted that the compensable injury did not include cervical radiculopathy, C4-C5 disc protrusion, C3-C4 disc bulge, left wrist fibrocartilage tear, and left cubital tunnel syndrome.
Federal argued that its challenge was to the extent of Ruiz's compensable injury and therefore, according to rule 124.3(e), not waived by its failure to assert the non-compensability of that part of the injury within sixty days of notice of the injury. The hearing officer for the Division of Worker's Compensation rejected this argument and concluded,
The compensable injury includes the cervical radiculopathy, C4-C5 disc protrusion, C3-C4 disc bulge, left wrist fibrocartilage tear, and left cubital tunnel syndrome because the Carrier waived the right to contest compensability of Claimant's cervical radiculopathy, C4-C5 disc protrusion, C3-C4 disc bulge, left wrist fibrocartilage tear, and left cubital tunnel syndrome by not timely contesting the diagnoses in accordance with Texas Labor Code Sec. 409.021. . . .
The appeals panel permitted the hearing officer's order to become final. See Tex. Lab. Code Ann. § 410.204(c) (Vernon 2006).
Federal then filed suit in district court seeking to have the administrative decision overturned. Both Federal and Ruiz filed motions for summary judgment on the issue of whether Ruiz's cervical radiculopathy, C4-C5 disc protrusion, C3-C4 disc bulge, left wrist fibrocartilage tear, and left cubital tunnel syndrome were part of the injury through waiver under section 409.021(c) of the Texas Labor Code. The trial court granted Ruiz's motion for summary judgment and denied Federal's.
On appeal, Federal contends the trial court erred in granting Ruiz's motion for summary judgment because it was contesting the extent of injury and not the compensability of the injury, and rule 124.3(e) provides that section 409.021 does not apply to disputes of extent of injury. In a separate proceeding, Federal argued that Ruiz's bilateral carpal tunnel syndrome was not part of the same compensable injury at issue in this case. Today, we issue an opinion in that case concluding the trial court did not err in granting Ruiz's motion for summary judgment. See Fed. Ins. Co. v. Ruiz, No. 05-08-00529-CV (Tex.App.-Dallas Feb. 19, 2009, no pet. h.). Federal's arguments in this appeal are identical to those in No. 05-08-00529-CV. As discussed in that opinion, this Court rejected similar arguments in Sanders v. American Protection Insurance Co., 260 S.W.3d 682 (Tex.App.-Dallas 2008, no pet.). Accordingly, for the reasons set forth in Sanders and in Federal Insurance Co., No. 05-08-00529-CV, we overrule Federal's issues.
We affirm the trial court's judgment.