Summary
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
Summary of this case from Martinez v. State Office of Risk Mgmt.Opinion
No. 04-06-00517-CV
Delivered and Filed: May 23, 2007.
Appeal from the 285th Judicial District Court, Bexar County, Texas, Trial Court No. 2004-CI-01309, Honorable John D. Gabriel Jr., Judge Presiding.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
MEMORANDUM OPINION
REVERSED AND RENDERED; CAUSE REMANDED
Northside Independent School District, Self-Insured appeals the trial court's summary judgment order determining that NISD waived its right to contest the compensability of Lynn DuBose's claim. This court has jurisdiction to consider this interlocutory appeal pursuant to section 51.014(d) of the Texas Civil Practice and Remedies Code because the trial court issued a written order allowing the appeal based on the parties' agreement that the order involved a controlling question of law. Tex. Civ. Prac. Rem. Code Ann. § 51.104(d) (Vernon Supp. 2006). The trial court's order states, "the issue on appeal will be whether Defendant waived its right to contest compensability as alleged by Plaintiff in her Motion for Summary Judgment."
Factual Background
DuBose provided notice to NISD on December 19, 2001, that she had sustained a work related injury. On December 21, 2001, NISD filed a TWCC-21 form with the Texas Workers' Compensation Commission. The form stated that NISD would pay workers' compensation benefits as they accrued. On January 24, 2002, NISD filed a second TWCC-21 form with the Commission contesting the compensability of DuBose's injury. A Benefit Review Conference was concluded on July 28, 2003, but the parties were unable to reach an agreement. As a result, a Contested Case Hearing was held on September 30, 2003.
At the CCH, three disputed issues were presented to the hearing officer. The only issue relevant for purposes of this appeal was, "Did the Self-Insured timely contest compensability of the Claimant's alleged injury, according to the Texas Supreme Court?" In his closing arguments at the CCH, the ombudsmen arguing on behalf of DuBose, summarized this "waiver" argument as follows:
MR. RODRIGUEZ: Yes, sir. We want to start off with the waiver issue. I think that is probably the easiest one. With respect to the waiver issue, Your Honor, we refer you to Carrier's Exhibit No. 11. In that exhibit, you will see that there's a TWCC-21 in there. There's actually two TWCC-21s and both of them indicate that the first written notice occurred on December 20th, 2001. On the first page, it says — there's a file stamp down on the bottom and it says December 21, 2001, and that filed TWCC. The next one has a file stamp "copy" from the Commission. It says received TWCC San Antonio Field Office and the date on that is January 24th, 2002.
The insurance company is going to try to say that on the first page that's a Commission file stamp. Well, I think we have all done enough hearings to be able to recognize a Commission file stamp. This is not a Commission file stamp. It doesn't reflect — reflect TWCC's official TWCC stamp. Not only that, but when you look at Claimant's Exhibit No. 1, on there we have provided you with a Texas Comp's claims form list, and on there it shows — there is only one TWCC-21 that has been filed with the Commission and it reflects that it was filed with the Commission on January 24, 2002. Given that information, Your Honor, and the Downs case, the Carrier waived the right to dispute Mrs. DuBose's claim. And it is our opinion that there is a waiver issue on the part of the Carrier.
In the statement of evidence portion of the hearing officer's decision and order, the hearing officer states, in pertinent part:
The date of injury was set as November 26, 2001 as an occupational disease. The Claimant orally reported a work-related injury on November 28, 2001. No written report was made until December 19, when the TWCC-1 was made. The date of notice to the Self-Insured entity is thus December 19, 2001. The Claimant contended that the Self-Insured did not file a contest of compensability TWCC-21 form with the Commission until January 24, 2002. The Claimant urged that the May 2002 judicial interpretation of the Act required the Self-Insured to contest compensability of her injury by December 26, 2001.
This reference to a May 2002 judicial interpretation of the Act appears to be a reference to Continental Casualty Co. v. Downs, 81 S.W.3d 803 (Tex. 2002), even though Downs was actually decided on June 6, 2002.
The Claimant erroneously thought that the stamp in the lower right area of the original TWCC-21 form was not a Commission stamp. Actually, it is. This Hearing Officer has seen it many times, and knows that it is a stamp used mostly by the Central Office of the Commission to show receipt (although not retention) of the TWCC-21 form when a carrier or self-insured agrees to pay benefits as they accrue, while still deciding whether to contest an injury or not. The TWCC-21 reflected that the Self-Insured agreed to pay benefits as they accrued. But the Claimant's evidence did not show that the medical bills were presented to, or that any compensation benefits accrued, before January 24, 2002. As such, the Self-Insured did not waive it[s] right to contest compensability of the claimed injury.
In his findings of fact, the hearing officer found that NISD filed its TWCC-21 with the Commission on December 21, 2001, certifying that it would pay workers' compensation benefits when they accrued. The hearing officer further found that NISD filed a TWCC-21 with the Commission on January 24, 2002, contesting the compensability of DuBose's injury. The hearing officer concluded that NISD timely contested compensability of DuBose's injury.
DuBose appealed the decision to a Commission appeals panel. The appeals panel affirmed the hearing officer's decision, stating the following with regard to waiver:
Regarding the carrier waiver issue, the parties appear to agree that the self-insured received its first written notice of the claimed injury on December 20, 2001. In evidence is a Payment of Compensation or Notice of Refused/Disputed Claim (TWCC-21) dated December 21, 2001, with box 1 marked indicating certification by the self-insured that it would pay benefits as they accrued. In the lower right portion is a Texas Workers' Compensation Commission stamp dated December 21, 2001, indicating receipt of the TWCC-21. The hearing officer found that the self-insured had not waived the right to contest compensability pursuant to sections 409.021 and 409.022. On appeal, the claimant attacks this finding on the basis that the self-insured had not filed the TWCC-21 but that a third party administrator (TPA) had filed the form "but the TPA is not the 'Carrier' or 'Self-Insured.'" We reject this argument in that the self-insured is an organization which has obviously retained counsel and the TPA to act on its behalf.
DuBose sought judicial review of the appeals panel's decision. The trial court considered cross-motions for summary judgment and determined that NISD waived its right to contest compensability of DuBose's claim.
Although the trial court used the term "waiver," the Texas Supreme Court has explained:
Although the parties and the court of appeals label the consequence for failure to meet the seven-day pay-or-dispute deadline a "waiver," that is not precisely what happens under the statutory scheme. We are presented not with a question of waiver, but of a deadline (seven days to pay or dispute), and a consequence for failing to meet that deadline (a carrier that does nothing fails to avail itself of the sixty-day period to investigate or deny compensability). Both the deadline and the consequence are clearly chosen and clearly expressed by the Legislature.
Downs, 81 S.W.3d at 807.
Standard of Review
To prevail on a motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). In reviewing a summary judgment, we must accept as true evidence in favor of the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant's favor. Id. When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides' summary judgment evidence and determine all questions presented. FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). The reviewing court should render the judgment that the trial court should have rendered. Id.
Continental Casualty Co. v. Downs
In Continental Casualty Co. v. Downs, the Texas Supreme Court held that a carrier has two separate deadlines to meet in order to timely contest compensability. 81 S.W.3d 803, 806 (Tex. 2002). First, the carrier "must do one of two things within seven days after receiving written notice of injury," i.e., either: (1) begin paying benefits; or (2) give written notice of refusal to pay benefits. Id. at 805; see also Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 1195-96 (amended 2003) (current version at Tex. Lab. Code Ann. § 409.021 (Vernon 2006) (the statute was amended in 2003; however, the amendment only applies to a claim based on an injury that occurred on or after the effective date). Second, if the carrier meets the seven-day pay-or-dispute deadline, the carrier has a sixty day deadline to investigate and deny compensability. Downs, 81 S.W.3d at 806; see also Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 1195-96 (amended 2003) (current version at Tex. Lab. Code Ann. § 409.021 (Vernon 2006)). A carrier who initiates benefits may deny compensability within the sixty-day period for any valid reason; however, a carrier who files a notice of refusal is "limited to the grounds specified in the notice as bases for contesting compensability, except for newly discovered evidence." Downs, 81 S.W.3d at 806.
Limitation of Issues Presented
One of the issues presented in this appeal is whether an issue relating to NISD's timely compliance with the sixty-day deadline was properly presented to and determined by the trial court.
A. Motion for Summary Judgment
"A motion for summary judgment must itself expressly present the grounds upon which it is made, and must stand or fall on these grounds alone." Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997). "In other words, in determining whether grounds are expressly presented, we may not rely on briefs or summary judgment evidence." Id.
In DuBose's motion, the only ground expressly presented to the trial court with regard to "waiver" was whether NISD timely met the seven-day pay-or-dispute deadline. In her motion, DuBose stated:
IV. Plaintiff brings this Motion for Summary Judgment on the grounds that Defendant waived the right to dispute the compensability of Plaintiff's claim as a matter of law.
Plaintiff alleges that Defendant neither initiated payment nor filed a notice of refusal disputing compensability within seven (7) days of receiving written notice of injury, thus Defendant waived the right to dispute compensability of Plaintiff's claim. Accordingly, Plaintiff is entitled to reversal of the Appeals Panel erroneous decision as a matter of law.
After citing the decision in Downs and the statutory provisions it addressed, DuBose further stated:
VII. Consequently, a carrier that has neither initiated benefits nor filed a notice of refusal has not complied with the statutory requisite, and has failed to trigger the sixty-day period to investigate (TWCC Rule § 124.3(a) — "shall investigate") or deny compensability.
Accordingly, because DuBose did not raise a "waiver" issue pertaining to the sixty-day deadline in her motion, that ground was not before the trial court and could not be a basis for affirming its summary judgment.
B. Presentation at Administrative Level
Judicial review of a final decision of an appeals panel regarding compensability is limited to issues decided by the appeals panel and on which judicial review is sought. Tex. Lab. Code Ann. § 410.302(b) (Vernon 2006). The Workers' Compensation Act provides a three-step administrative process for resolving disputed issues: (1) benefit review conference (BRC); (2) contested case hearing (CCH); and (3) appeals panel . Tex. Dept. of Ins. v. Jackson, No. 11-06-00158-CV, 2007 WL 1218361, at *2 (Tex.App.-Eastland Apr. 26, 2007, no pet. h.). The three-step administrative process is a building block process. Id. Each step is contingent upon completion of the prior proceeding and is limited to the scope of the prior proceeding. Id. Finally, judicial review of the appeals panel decision is limited to those issues decided by the appeals panel. Krueger v. Atascosa County, 155 S.W.3d 614, 619 (Tex.App.-San Antonio 2004, no pet.).
In this case, the transcript of the CCH and the hearing officer's decision reveal that the only "waiver" issue presented related to the seven-day pay-or-dispute deadline. Similarly, the only "waiver" issue decided by the appeals panel related to that same deadline. Because no issue was decided at the administrative level pertaining to the sixty-day deadline, the trial court could not have considered the sixty-day deadline as a ground for summary judgment even if it had been properly presented as a ground in DuBose's motion. See American Home Assurance Co. v. Frazier, No. 09-05-322 CV, 2006 WL 3377733, at *3-4 (Tex.App.-Beaumont Nov. 22, 2006, no pet.) (noting distinction between seven-day deadline and sixty-day deadline and plaintiff's failure to establish that he raised the seven-day pay-or-dispute deadline at the administrative level); see also 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.) (holding consideration of one type of waiver in administrative proceeding did not equate to a different type of waiver argument).
Although we note that the sixty-day deadline was raised as an alternative "waiver" issue in DuBose's written request for review of the CCH decision, the scope at the appeals panel level was limited to the issues decided by the hearing officer at the CCH level, and judicial review is limited to those issues "decided by" the appeals panel.
Accordingly, the only basis upon which the trial court could have determined that NISD "waived" its right to contest compensability would be a failure to comply with the seven-day pay-or-dispute deadline.
Seven-Day Pay-or-Dispute Deadline
At the time DuBose's claim was filed, section 409.021 of the Texas Labor Code provided:
No later than the seventh day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall:
(1) begin the payment of benefits as required by this subtitle; or
(2) notify the commission and the employee in writing of its refusal to pay and advise the employee of:
(a) the right to request a benefit review conference; and
(b) the means to obtain additional information from the commission.
Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 1195-96 (amended 2003) (current version at Tex. Lab. Code Ann. § 409.021 (Vernon 2006). Section 409.021 did not require NISD to notify DuBose of its decision to begin the payment of benefits. See id.; see also Downs, 89 S.W.3d at 807 (referring to initiation of benefits as one action permitted to be taken to meet the deadline). Therefore, the only question remaining is whether NISD failed to comply with the seven-day deadline by failing to begin the payment of benefits.
In seeking to establish that a genuine issue of material fact was raised with regard to whether NISD timely initiated the payment of benefits, DuBose relies exclusively on a Return To Work Certificate and Medical Excuse she presented to her supervisor upon returning to work. DuBose contends that the handwritten notation of "Pacificare $10.00 ck 5521" is evidence that she presented a medical bill to NISD for which NISD did not initiate payment. DuBose asserts that this was a claim for the reimbursement of her $10.00 co-pay. The Return To Work Certificate, however, was marked nonoccupational, and Carol Sauceda, who worked as a claims specialist for NISD at the time of DuBose's claim, stated that she did not think NISD would have seen it since it was not marked as being employment related. Bianca Olivares, who worked for CMI Barron Risk Management as their claims adjuster for NISD, testified that no medical bills had been submitted to her for DuBose.
Because the Return to Work Certificate was presented to DuBose's supervisor in conjunction with her Medical Excuse, the record does not contain any evidence that DuBose submitted the Return to Work Certificate as evidence of a medical bill. DuBose states in her affidavit that she handed these documents to her supervisor when she returned to work and found her classroom littered with debris. After presenting the documents, DuBose was moved to a different classroom. Furthermore, the Return to Work Certificate was marked nonoccupational which Sauceda testified would not put a claims specialist on notice that it was an employment-related medical expense. Accordingly, the notation on the Return to Work Certificate is insufficient to raise a genuine issue of material fact with regard to NISD's initiation of payment benefits.
Conclusion
Because the record conclusively establishes that NISD complied with the proper procedures to begin paying benefits within seven days from the date it received DuBose's written notice of injury, the trial court erred in granting summary judgment in favor of DuBose. The trial court's order is reversed, and judgment is rendered that NISD timely contested the compensability of DuBose's claim. Having disposed of the issue presented in this appeal pursuant to section 51.014(d) of the Texas Civil Practice and Remedies Code, the cause is remanded to the trial court for further proceedings.
Karen Angelini, Justice