Opinion
No. 04-14-00558-CV
02-10-2016
Edna A. MARTINEZ, Appellant v. STATE OFFICE OF RISK MANAGEMENT, Appellee
MEMORANDUM OPINION
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-17102
Honorable Antonia Arteaga, Judge Presiding Opinion by: Karen Angelini, Justice
Concurring and Dissenting Opinion by: Jason Pulliam, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Jason Pulliam, Justice REVERSED AND REMANDED
In the underlying cause, the State Office of Risk Management (SORM) filed a petition seeking judicial review of an administrative appeals panel's decision regarding a workers' compensation claim filed by Edna A. Martinez. Martinez appeals the trial court's order granting summary judgment in favor of SORM. Martinez presents three issues on appeal asserting: (1) SORM is jurisdictionally barred from challenging the issue of compensability because it did not appeal the contested case hearing officer's findings regarding the elements of a compensable injury to the appeals panel; (2) SORM is jurisdictionally barred from asserting a statutory violation as a basis for the trial court to reverse the appeals panel's decision; and (3) if SORM is not jurisdictionally barred from raising the statutory violation, the violation is no evidence that Martinez did not sustain a compensable injury. Martinez also requests that if the trial court's judgment is reversed and rendered in her favor, the cause be remanded to the trial court to consider an award of attorney's fees. We reverse the trial court's judgment and remand the cause for further proceedings.
BACKGROUND
Martinez was employed as a case worker by the Texas Department of Protective and Regulatory Services. On Saturday, June 9, 2001, Martinez was seated at her kitchen table working on service plans and files in preparation for court hearings the following Monday. As she walked across her kitchen to retrieve a different pen, Martinez fell and injured herself.
On Monday, June 11, 2001, Martinez reported the injury and filed a claim for workers' compensation benefits. SORM, the Department's workers' compensation insurance carrier, denied the claim. Martinez sought review of her claim with the Texas Workers' Compensation Commission.
Effective September 1, 2005, the Texas Legislature abolished the Texas Workers' Compensation Commission and created the Texas Department of Insurance-Division of Workers' Compensation. The Commission's appeals panel issued its decision before this date.
At the benefit review conference, Martinez's position was that she slipped and fell while working at home. The Benefit Review Conference Report stated Martinez "indicate[d] the [Department] ha[d] quite often given approval for employees to take work home over the weekend and once the work has been performed, the paperwork is turned into the supervisor and the approvals are given." The report also stated SORM's position was the Department "was not aware that [Martinez] had been taking work home over the weekend nor did [Martinez] receive pre- approval for any overtime at home. Therefore, . . . [Martinez] was not in [the] course and scope of her employment."
The case then proceeded to a contested case hearing. Martinez and her supervisor presented conflicting testimony regarding whether the Department required pre-approval for an employee to work at home. Martinez testified minimal overtime, which she defined as not exceeding five hours, was authorized without prior approval. Martinez testified she worked overtime on April 1, 2001 without pre-approval, and her time sheets recording the overtime were approved. Martinez also offered as evidence notes from a unit meeting held on February 14, 2001. The notes stated, "each worker is encouraged to keep O/T to a minimum; additional time needed to complete work tasks, needs to be discussed with Anita." The notes also stated, "Cheryl will allow workers to borrow laptops on evenings, and weekends as needed." Martinez's supervisor, Richard Brooks, testified all overtime, including minimal overtime, required pre-approval. Brooks became Martinez's supervisor on May 1, 2001, and testified he signed the time sheets with the April 1, 2001 overtime because he was told to approve all overtime worked before he became supervisor. Notes from a unit meeting held on June 26, 2001, after Martinez was injured, stated all overtime had to be pre-approved.
The decision and order of the contested case hearing officer states the hearing was held to decide the following disputed issues:
1. Did the Claimant sustain a compensable injury on June 9, 2001?
2. Did the Claimant have a disability; and if so, for what periods of time?
In the "statement of the evidence" section of the decision and order, the hearing officer addressed the issue of prior approval of overtime as follows:
Any injury may be found to arise out of and be [in] the course and scope of employment, without regard to [the injury] occurring on the Employer's premises or somewhere else. TWCC Appeal No. 960201. But an injury that occurs at home
must not be during some activity in violation of the Employer's policy. The known policy at the time was that employees should try to keep (paid) overtime hours to a minimum, as explained in February 2001. Despite the supervisor's testimony, it was quite clear that this was a fiscal, budgetary advisory from the Department, and not any type of ban on overtime. Only after the Claimant's injury did the supervisor try to make it an ex post facto ban.The hearing officer then explained the basis for his decision that Martinez did not sustain a compensable injury as follows:
However, the controlling line of legal precedents deal with the injury itself. The Claimant was not very positive about why she fell, other than to assume she stepped into water on the tiled kitchen floor. This left the impression that she may have had an idiopathic fall, or one caused by a substance on her kitchen floor. But slipping and falling to the floor is a risk that the Claimant shared with the general public. To have an injury arise out of employment, an employee has to be exposed to some hazard because of or inherent in the employment. Some instrumentality of the Employer is needed. That has often been held to be the floor of the Employer's offices, or a desk in the office, which caused the actually [sic] bodily harm when it was struck. TWCC Appeal No. 91111, 92211, and 931083. However, in the Claimant's case, the kitchen cabinet and the floor were not the Employer's instrumentalities causing bodily harm; they were the Claimant's cabinet and floor.In addition to the foregoing, the hearing officer's decision and order included the following findings of fact which are relevant to this appeal:
3. On June 9, 2001, the Claimant was furthering the business and affairs of the Employer by making a [sic] reports and service plans that she needed to present in court on June 11, 2001 as part of her normal work duties.The decision and order also contained the following relevant conclusion of law: "The Claimant did not sustain a compensable injury on June 9, 2001."
4. In the course of her work, the Claimant got up from her table to go to a drawer to get a different pen. While walking in her kitchen, the Claimant either had an idiopathic fall of unknown causes or slipped on some substance on her floor. The Claimant fell to the floor and sustained injuries to her head/face, left shoulder, left ankle, knees, left hip, and left thigh.
5. The Claimant's injury on June 9, 2001 did not involve any instrumentality of the Employer.
6. On June 9, 2001, the Claimant sustained an injury that did not arise out of nor was in the course and scope of her employment with the Employer.
Martinez filed a request for an appeals panel to review the hearing officer's decision. In SORM's response to Martinez's request for review, SORM stated it agreed with the hearing officer's findings of fact and conclusions of law. In arguing the hearing officer correctly concluded that Martinez did not sustain a compensable injury on June 9, 2001, SORM's response asserted:
According to Texas Labor Code Ann. Sect. 401.011(10) a compensable injury is one which arises out of and in the course and scope of employment. The testimony and facts of this case revealed that Claimant was not in the course and scope of employment when her injury occurred. According to Claimant, she was working at her home on a Saturday morning (Claimant testified that her regular working hours were 8-5 Monday through Friday) when she got up to retrieve an item and she slipped and fell on her own kitchen floor in [sic] an unknown substance. As there were no witnesses to the fall there was not sufficient evidence that Claimant was doing anything related to work. Claimant was not sure what made her fall.
As the hearing officer pointed out in his opinion, slipping and falling is a risk shared by the general public, Claimant was not in any way exposed to some hazard inherent in her employment as a child protective service officer. Claimant was in her own home and fell on her own kitchen floor, absolutely no instrumentality of the Employer were [sic] involved.
The appeals panel reversed the hearing officer's decision and rendered a new decision that Martinez sustained a compensable injury. The appeals panel reasoned as follows:
It is undisputed that the claimant fell and sustained injuries while working at home on June 9, 2001. There is evidence to support the hearing officer's decision that the claimant had authority to work at home at the time. The hearing officer determined that the injuries were not compensable because an instrumentality of the employer inherent in the employment was not involved. We disagree. The claimant was in the course and scope of her employment furthering the business affairs of her employer at the time. The work environment at the time the claimant was injured was her home. The claimant was injured when she fell, causing her body to strike her kitchen cabinets and floor. The claimant's injuries arose out of her employment because the employment had a causal connection with her injuries either through her activities, its conditions, or its environments. See Garcia v. Texas Indemnity Insurance Company, 209 S.W.2d 333 (Tex. 1948).
SORM then filed a petition in the trial court seeking judicial review of the appeals panel's decision, generally asserting the appeals panel's decision was contrary to the law and facts. SORM and Martinez filed competing motions for summary judgment. The trial court granted SORM's motion and denied Martinez's motion. The trial court subsequently entered a final judgment reversing the appeals panel's decision and rendering judgment that Martinez did not sustain a compensable injury on June 9, 2001. Martinez appeals.
STANDARD OF REVIEW
We review a summary judgment de novo. Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In reviewing the granting of a traditional summary judgment, we consider all of the evidence in the light most favorable to the respondent, indulging all reasonable inferences in favor of the respondent, and determine whether the movant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). "When both sides move for summary judgment and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides and determine all questions presented." Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In such a case, "we render the judgment [that] the trial court should have rendered." Id.
ADMINISTRATIVE AND JUDICIAL REVIEW OF A WORKERS' COMPENSATION CLAIM
A. Administrative Review
The workers' compensation act establishes three levels for administrative review of a claim. In re Metropolitan Transit Authority, 334 S.W.3d 806, 811 (Tex. App.—Houston [1st Dist.] 2011, orig. proceeding [mand. denied]). In the first level, the parties participate in a benefit review conference. See id. "A benefit review conference is a nonadversarial, informal dispute resolution proceeding designed to . . . mediate and resolve disputed issues by agreement of the parties." TEX. LAB. CODE ANN. § 410.021 (West 2015).
Issues that are not resolved at the benefit review conference proceed to the second level of administrative review which is a contested case hearing conducted by a hearing officer. Id. at §§ 410.151(b), 410.152(a); see also In re Metropolitan Transit Authority, 334 S.W.3d at 811. After the contested case hearing, the hearing officer issues a written decision. TEX. LAB. CODE ANN. § 410.168 (West 2015).
The hearing officer's decision may then be appealed to an appeals panel which is the third level of administrative review. Id. at § 410.202; In re Metropolitan Transit Authority, 334 S.W.3d at 811. To appeal the decision of a hearing officer, a party files a written request for appeal. TEX. LAB. CODE ANN. § 410.202(a) (West 2015). If a party files a written request for appeal, the opposing party must file a written response. Id. at § 410.202(b). "A request for appeal or a response must clearly and concisely rebut or support the decision of the hearing officer on each issue on which review is sought." Id. at § 410.202(c). The appeals panel reviews each request, and if the appeals panel reverses the hearing officer's decision, it must issue a written decision. Id. at § 410.204(a).
B. Judicial Review of Appeals Panels' Decision
A party may seek judicial review of an appeals panel's decision by filing a petition in district court. Id. at § 410.252(a). Judicial review of an appeals panel's decision "is limited to issues decided by the appeals panel and on which judicial review is sought." Id. at § 410.302(b). Therefore, a party may not raise an issue in the trial court which was not raised before the appeals panel. Krueger v. Atascosa County, 155 S.W.3d 614, 619 (Tex. App.—San Antonio 2004, no pet.). "The statute applies equally to claimants and insurance carriers, and restricts judicial review to issues raised before the TWCC Appeals Panel regardless of which party initiates the appeal." Id.
SORM'S MOTION FOR SUMMARY JUDGMENT
The sole ground asserted in SORM's motion for summary judgment was that Martinez's injuries were not compensable because she was working at home without prior written authorization in violation of sections 658.010 and 659.018 of the Texas Government Code. In its motion, SORM contended, "Sections 658.010 and 659.018 limit the place where work may be performed, with §658.010 explicitly precluding work at home without prior written approval ." SORM further argued, "By allegedly working at home without prior written authorization, Martinez violated a state statute, not merely an office policy. .... Even if Martinez were working at home, she was breaking the law by doing so without prior written authorization, and any resulting injuries are, therefore, not compensable."
Section 658.010 entitled "Place Where Work Performed" provides:
(a) An employee of a state agency shall, during normal office hours, conduct agency business only at the employee's regular or assigned temporary place of employment unless the employee:TEX. GOV'T CODE ANN. § 658.010 (West 2015).
(1) is travelling; or
(2) received prior written authorization from the administrative head of the employing state agency to perform work elsewhere.
(b) The employee's personal residence may not be considered the employee's regular or assigned temporary place of employment without prior written authorization from the administrative head of the employing state agency.
Section 659.018 entitled "Compensatory Time: Place Where Work Performed" provides:
(a) Except under circumstances specified in the General Appropriations Act or as provided by Subsection (b), an employee of a state agency as defined by Section 658.001 may not, for hours worked during any calendar week, accumulate compensatory time off under Section 659.015(f) or 659.016 to the extent that the hours are attributable to work performed at a location other than the employee's regular or temporarily assigned place of employment.TEX. GOV'T CODE ANN. § 659.018 (West 2015).
(b) An employee may accumulate compensatory time off for hours worked during any calendar week at the employee's personal residence if the employee obtains the advance approval of the administrative head of the agency for which the employee works or that person's designee.
In her response to SORM's motion, Martinez asserted SORM could not raise the alleged statutory violation as a basis for overturning the appeals panel's decision on judicial review because the issue was not raised in the administrative proceeding and was not decided by the appeals panel. Martinez makes this same argument in the second issue of her brief as one of the reasons the trial court erred in granting SORM's motion for summary judgment. In its brief, SORM counters that its statutory violation argument was an issue raised during the administrative proceedings because SORM argued Martinez violated the Department's policies by failing to obtain permission to work at home. During oral argument, however, SORM broadened its argument and definition of "issue," asserting the "issue" decided by the appeals panel was "compensability"; therefore, SORM was entitled to raise any reason or ground that might exist for denying compensability, regardless of whether that reason or ground was raised at the administrative level.
A. Applicable Law
1. Zurich American Ins. Co. v. Debose
In Zurich American Ins. Co. v. Debose, the Houston court of appeals addressed whether judicial review of an issue had been waived in a context similar to the one presented in this case. No. 01-13-00344-CV, 2014 WL 3512769, at *6-7 (Tex. App.—Houston [1st Dist.] July 15, 2014, pet. denied) (mem. op.). In that case, the two issues the hearing officer identified as being raised by the parties were: (1) whether the compensable injury extended to include degenerative joint disease to the right knee; and (2) whether the insurance carrier waived the right to contest compensability by not timely contesting the injury in accordance with sections 409.021 and 409.022 of the Texas Labor Code. Id. at *1. With regard to the second issue, the hearing officer's conclusion of law stated the insurance carrier waived its right to contest by not timely contesting the injury in accordance with those sections of the Texas Labor Code. Id. at *2. The insurance carrier appealed this conclusion of law, and the appeals panel adopted the hearing officer's order as its own decision. Id. The insurance carrier then sought judicial review, and the parties filed cross motions for summary judgment. Id. The trial court denied the insurance carrier's motion and granted the complainant's motion, upholding the determination that the insurance carrier had waived its right to contest compensability. Id. The insurance carrier appealed to the Houston court. Id.
On appeal, the Houston court first cited a decision by the Texas Supreme Court distinguishing between denying compensability in general and denying the extent of the compensable injury. Id. at *4 (citing State Office of Risk Mgmt. v. Lawton, 295 S.W.3d 646 (Tex. 2009)). Under sections 409.021 and 409.022 of the Texas Labor Code, an insurance carrier waives its right to contest compensability in general if it fails to contest the injury by the 60th day after the carrier receives notice of the injury. Id. at *3. "In contrast, an insurance carrier is not limited by the 60-day deadline to challenge the extent of the injury." Id. "Instead, when an insurance carrier receives a medical bill that includes treatment or services the carrier believes is not related to the compensable injury, the carrier has 45 days from the receipt of the medical bill to file a notice of dispute of extent of injury." Id. (citing 28 Tex. ADMIN. CODE §§ 124.3(e), 133.240(a)).
The Houston court then noted the insurance carrier initially acknowledged the claimant's injury to her right knee was compensable. Id. at *5. When the insurance carrier received a medical bill for the care and treatment of degenerative joint disease in the claimant's right knee, however, the insurance carrier disputed that bill, asserting the care for the injury the claimant sustained as a result of her fall at work did not extend to care for injuries related to the degenerative joint disease. Id. Because the insurance carrier was not contesting compensability in general, but only the extent of the injury, the Houston court held the insurance carrier did not waive its right to contest payment for treatment of the degenerative joint disease under sections 401.021 and 409.022 of the Texas Labor Code. Id.
In her brief before the Houston court, the claimant asserted even if the insurance carrier did not waive its dispute based on the 60-day deadline in sections 401.021 and 409.022, the insurance carrier waived its dispute based on the 45-day deadline to challenge extent of injury. Id. at *6. To support this assertion, the claimant relied on the afore-cited sections of the Texas Administrative Code. Id. The insurance carrier argued that the trial court's judgment could not be affirmed based on this waiver argument because the argument was not presented to the hearing officer or the appeals panel. Id. The Houston court agreed, reasoning:
The only issue of waiver presented to the hearing officer or the appeals panel was whether [the insurance carrier] had waived its right to contest payment pursuant to sections 409.021 and 409.022 of the Texas Labor Code. These sections do not establish the 45-day deadline to contest extent of injury in a bill. That instead, is governed by sections 124.3 and 133.240 of title 28 of the Texas Administrative Code. Because waiver under these sections of the Administrative Code was never presented for consideration in the administrative review process, the trial court lacked jurisdiction to consider it. Accordingly, any waiver of the right to contest extent of injury could not have been a ground upon which the trial court could have granted summary judgment.Id. at *7 (internal citations omitted). Similarly, in this case, SORM moved for summary judgment based on a statutory violation argument that was never presented to the hearing officer or the appeals panel.
2. Tex. Workers' Comp. Ins. Fund v. Tex. Workers' Comp. Comm'n
One of the cases cited in SORM's brief is Tex. Workers' Comp. Ins. Fund v. Tex. Workers' Comp. Comm'n, 124 S.W.3d 813 (Tex. App.—Austin 2003, pet. denied). In that case, Leonard D. Watts suffered a cut on his leg while working and developed sepsis, resulting in him being unable to walk without assistance and having to use a wheelchair for mobility. Id. at 816. In 1996, a hearing officer determined that Watts's medical condition was causally connected to a compensable injury and awarded him temporary income benefits. Id. That decision was affirmed by an appeals panel. Id. at 816-17.
In 1999, Watts requested lifetime income benefits based on his disability. Id. at 817. "On April 3, 2000, a contested case hearing was held to determine one issue; 'Is the Claimant entitled to lifetime income benefits based on the loss of use of both feet and/or legs[?]" Id. The hearing officer concluded Watts was not entitled to lifetime income benefits. Id. Watts appealed to an appeals panel, "arguing that the Commission had already determined in the 1996 decision that 'the causative factors were present to connect [Watts's] disabling conditions to [Watts's] legs and feet to his on the job injury.'" Id. "Watts argued that, by requiring him to relitigate the issue of causation, the hearing officer 'totally ignored the legal doctrines of Res Judicata and Collateral Estoppel.'" Id. The appeals panel reversed the hearing officer's decision and remanded the cause to him, instructing him to accept the 1996 findings in resolving the disputed issue of whether Watts was entitled to lifetime income benefits. Id.
After a second hearing, the same hearing officer found the medical evidence was insufficient to establish that the work related injury caused Watts loss of use of both feet; therefore, Watts was not entitled to lifetime income benefits. Id. Watts appealed, arguing "The Hearing Officer, for a second time, totally ignored the legal doctrines of Res Judicata and Collateral Estoppel, and for the second time has delved into the previously decided issues of causation and determined that the medical evidence is insufficient to establish causation for lifetime benefits." Id. at 817-18. The appeals panel decided the hearing officer's decision was against the great weight and preponderance of the evidence. Id. at 818. The appeals panel reversed the hearing officer's decision and rendered a decision that Watts was entitled to lifetime income benefits. Id.
The Texas Workers' Compensation Insurance Fund which was renamed Texas Mutual Insurance Company sought judicial review of the appeals panel's decision. Id. Texas Mutual argued "the only 'issues' before the appeals panel were res judicata and collateral estoppel;" therefore, the appeals panel exceeded its statutory authority by deciding the case on factual sufficiency grounds. Id. The trial court agreed and reversed the appeals panel's decision. Id. at 819.
In response to Texas Mutual's argument that the only issues presented to the appeals panel were res judicata and collateral estoppel, the Commission argued that res judicata and collateral estoppel "were merely 'subarguments' of the issue of entitlement to lifetime income benefits." Id. at 820. The Commission contended the only "issue" before the hearing officer was whether Watts was entitled to lifetime income benefits. Id. The Austin court agreed, asserting:
Throughout the workers' compensation act, "issue" is never used to refer to legal arguments or doctrines; rather, "issue" is used to refer to disputed matters related to the underlying workers' compensation claim.As support for this assertion, the Austin court cites various sections of the Texas Labor Code that use the word "issue." Id. The Austin court then concluded "issue" as used in section 410.204(a) "refers to disputed determinations made by the hearing officer in rendering his decision," and the issue before the appeals panel was whether Watts was entitled to lifetime income benefits. Id. at 821.
After announcing its holding, the Austin court further commented on Texas Mutual's argument, stating:
We also agree with the Commission that the legal doctrines of res judicata and collateral estoppel were merely subarguments advanced by Watts in rebutting the decision of the hearing officer. Although the appeals panel did not use the terms res judicata or collateral estoppel in making its decision, it is clear from a review of both Watts's requests for appeal and the appeals-panel decisions that the appeals panel actually decided the case based upon the legal arguments Watts advanced. . . . Although the appeals panel did not use the terms "res judicata" or "collateral estoppel," it is clear that the appeals panel ruled as it did because it believed the 1996 hearing had already determined that the 1994 compensable injury led to Watts's physical impairment, including the loss of use of both feet, at or above the ankle. Section 410.204(a) states that "an appeals panel shall issue a decision that determines each issue on which review was requested." See id. § 410.204(a). Section 410.204(a) does not state, however, that the appeals panel must decide each issue on which review is requested — here, Watts's eligibility for lifetime income benefits — for the exact legal reason urged by the party seeking review.Id. at 821-22.
From its opinion, it is unclear why the Austin court went as far as it did in its analysis. The hearing officer found "The medical evidence is insufficient . . . ." As a result, sufficiency was an issue decided by the hearing officer, thereby allowing the appeals panel to consider factual sufficiency. In any event, the Austin court's broad statements that the term "issue" does not take into consideration the arguments advanced during the administrative proceedings is inconsistent with the Houston court's holding in Zurich American Ins. Co. and with many other appellate court decisions addressing whether an "issue" was decided by an appeals panel under section 401.302. See Ballard v. Arch Ins. Co., No. 14-14-00647-CV, 2015 WL 6560531, at *3-4 (Tex. App.—Houston [14th Dist.] Oct. 29, 2015, no pet.) (holding issue of whether designated doctor's report should be excluded because he failed to perform his evaluation in compliance with AMA guidelines was waived where only issue raised at contested case hearing was whether the designated doctor was qualified); State Office of Risk Mgmt. v. Joiner, 363 S.W.3d 242, 243 (Tex. App.—Texarkana 2012, pet. denied) (holding issue of whether treating physician's certification was invalid because it failed to comply with AMA Guides was waived where only issue raised at contested case hearing was whether certification was invalid because it contained an incorrect date of maximum medical improvement); Northside Indep. Sch. Dist. v. Dubose, No. 04-06-00517-CV, 2007 WL 1481661 (Tex. App.—San Antonio May 23, 2007, no pet.) (holding waiver issue based on sixty day deadline to investigate and deny compensability not proper ground for summary judgment where only waiver issue presented at administrative level related to seven-day pay-or-dispute deadline); Trinity Universal Ins. Co. v. Berryhill, No. 14-03-00629-CV, 2004 WL 744417, at *3 (Tex. App.—Houston [14th Dist.] Apr. 8, 2004, no pet.) ("Although a waiver issue was considered, the "Downs waiver" issue was not in the administrative proceeding.").
B. Analysis and Conclusion
SORM's assertion that the "issue" decided by the appeals panel was the broad issue of "compensability" is very similar to the argument SORM made in State Office of Risk Mgmt. v. Joiner, 363 S.W.3d 242, 243 (Tex. App.—Texarkana 2012, pet. denied). In that case, a dispute arose over whether Joiner's permanent impairment rating was 34%, as calculated by her treating physician, or 7%, as calculated by the designated doctor appointed by the division. Id. at 244-45. The hearing officer concluded Joiner's impairment rating was 34%, but the appeals panel reversed on the grounds that the treating physician's impairment rating was based on a date of maximum medical improvement that differed from the stipulated date. Id. at 245. On judicial review, the trial court rendered judgment in favor of Joiner. Id.
The Texarkana court first addressed and rejected SORM's complaint that the treating physician's certification was invalid because it failed to reflect the stipulated date of maximum medical improvement. Id. The court then addressed SORM's argument that the treating physician's impairment rating was medically invalid because the treating physician failed to comply with the AMA guides in the manner in which he used range of motion measurements. Id. at 253.
The Texarkana court noted SORM never took the position at the administrative level that the treating physician's range of motion testing was conducted improperly, thereby invalidating his rating, noting:
. . . . The appeals panel in this case did not decide the issue of whether [the treating physician's] certification was invalid for the reason that it allegedly failed to comply with AMA Guides. Instead, the decision of the appeals panel was limited to the issue of whether [the treating physician's] certification was invalid because it contained an incorrect date of maximum medical improvement.Id. at 253-54. The court rejected SORM's argument that the challenge was to the "broad issue of the 'claimant's impairment rating,'" asserting:
. . . . The SORM's attempt to broadly define "issue" as basically anything that falls under the umbrella of the "claimant's impairment rating" is inconsistent with the purpose of "encourag[ing] parties to present evidence during administrative proceedings...."Id. at 254 (internal citations omitted). Similarly in this case, SORM seeks to broadly define "issue" "as basically anything that falls under the umbrella of '[compensability].'" Id.
Under section 410.302, a 'trial court lacks jurisdiction to consider new issues because, in that instance, the moving party has failed to exhaust its administrative remedies." Lopez v. Zenith Ins. Co., 229 S.W.3d 775, 778 (Tex. App.—Eastland 2007, pet. denied). This requirement ensures that "issues on which either party seeks judicial review" "have been 'decided by' the TWCC Appeals Panel." Krueger, 155 S.W.3d at 619. It also ensures "the accuracy and efficiency of [the administrative] proceedings." Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 528 (Tex. 1995).
If SORM had raised its statutory violation argument at the administrative level, the hearing officer and the appeals panel could have determined in the first instance whether SORM was estopped from asserting such a violation given the Department's policy allowing Martinez to work at home. As the appeals panel noted in its decision, "There is evidence to support the hearing officer's decision that the claimant had the authority to work at home at the time." If SORM is able to raise the statutory violations in the trial court, whether the statute would preclude Martinez from working at home despite the "authority" she was given to do so by the Department would be decided in the first instance by the trial court rather than by the hearing officer or the appeals panel. Even under the Austin court's broad definition, whether the statutory provisions precluded Martinez from working at home despite the Department's policy was not a "disputed determination made by the hearing officer in rendering his decision." Tex. Workers' Comp. Ins. Fund, 124 S.W.3d at 821.
Because the statutory violations were never presented for consideration in the administrative review process, the trial court lacked jurisdiction to consider SORM's argument based on those violations as a ground for summary judgment. Accordingly, the trial court erred in granting SORM's motion for summary judgment, and Martinez's second issue is sustained. See id. Because we hold the trial court did not have jurisdiction to consider the statutory violations as a basis for granting summary judgment, we need not address Martinez's third issue asserting, in the alternative, the trial court erred in granting SORM's motion for summary judgment because the statutory violations did not affect the compensability of her injury.
SORM's motion for summary judgment was based exclusively on the statutory violations, not on the Department's internal policies. As previously noted, the hearing officer determined Martinez was authorized to work at home because "[o]nly after [Martinez's] injury did the supervisor try to make [working overtime at home] an ex post facto ban." In its review, the appeals panel stated, "There is evidence to support the hearing officer's decision that the claimant had authority to work at home at the time."
MARTINEZ'S MOTION FOR SUMMARY JUDGMENT
In her first issue, Martinez asserts the trial court erred in denying her motion for summary judgment because SORM waived judicial review of "compensability" by failing to appeal the factual findings of the contested case hearing officer to the appeals panel. SORM responds it was not required to appeal every adverse finding of the contested case hearing officer to seek judicial review of the "issue" of compensability.
As previously noted, a party may not raise an issue in the trial court that was not raised before the appeals panel. TEX. LAB. CODE ANN. § 410.302(b) (West 2015); Krueger, 155 S.W.3d at 619. Although the intermediate appellate courts are in agreement that judicial review is limited to "issues" decided by the appeals panel, there is a split of authority on whether the term "issues" encompasses each factual finding of a hearing officer at a contested case hearing, thereby requiring a party to appeal each adverse factual finding to avoid forfeiture of judicial review. Compare Zurich American Ins. Co., 2014 WL 3512769, at *8-11 (holding "issues" do not refer to the fact findings by a hearing officer) and Lopez v. Zenith Ins. Co., 229 S.W.3d 775, 778-79 (Tex. App.—Eastland 2007, pet. denied) (holding party failed to exhaust administrative remedies by failing to appeal hearing officer's findings to the appeals panel). In this appeal, however, we need not decide whether SORM forfeited its right to challenge the hearing officer's specific findings of fact to resolve Martinez's first issue.
A "compensable injury" is "an injury that arises out of and in the course and scope of employment for which compensation is payable." TEX. LAB. CODE ANN. § 401.011(10) (West 2015). An injury "arises out of" employment when the employment has a causal connection with the injuries either through its activities, its conditions, or its environments." Garcia v. Tex. Indem. Ins. Co., 209 S.W.2d 333, 336 (Tex. 1948) (internal citations omitted). An injury is in the "course and scope of employment" when the injury (1) relates to or originates in, and (2) occurs in furtherance of, the employer's business. SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 642 (Tex. 2015).
In this case, Martinez's waiver argument is based on the hearing officer's findings that: (1) she was "furthering the business and affairs" of the Department on the date in question; and (2) she was "[i]n the course of her work" when she "got up from her table to go to a drawer to get a different pen." The first finding clearly relates to the "course and scope" element of the compensable injury definition. Because the hearing officer used the term "course" in his second finding, this finding also likely relates to the element of "course and scope." This interpretation is further bolstered by the "statement of the evidence" section of the hearing officer's decision discussing the reasons he concluded Martinez's injury did not "arise out of employment." Therefore, even if SORM was required to appeal the hearing officer's factual findings, the failure to appeal would not forfeit the "arises out of" element of a compensable injury but would at most forfeit the "course and scope" element of compensability. More importantly, using the hearing officer's findings to argue the hearing officer determined Martinez sustained a compensable injury is contrary to the hearing officer's finding that Martinez "sustained an injury that did not arise out of nor was in the course and scope of her employment" and its conclusion that Martinez "did not sustain a compensable injury." For the foregoing reasons, we overrule Martinez's first issue. Because this is the only issue Martinez raises on appeal to challenge the trial court's denial of her motion for summary judgment, we hold the trial court did not err in denying her motion for summary judgment.
CONCLUSION
Because the trial court erred in granting SORM's motion for summary judgment, we reverse the trial court's order and remand the cause for further proceedings.
Because we reverse the trial court's judgment, we need not address Martinez's issue regarding attorney's fees. --------
Karen Angelini, Justice