Texas Department of Insurance, Division of Workers' Compensation v. Linda Green

Opinion

ACCEPTED 01-15-00321-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 6/15/2015 6:17:53 PM CHRISTOPHER PRINE CLERK

DOCKET NO. 01-15-00321-CV _____________________________________ FILED IN IN THE COURT OF APPEALS 1st COURT OF APPEALS HOUSTON, TEXAS FOR THE FIRST DISTRICT OF TEXAS 6/15/2015 6:17:53 PM HOUSTON, TEXAS CHRISTOPHER A. PRINE _____________________________________ Clerk

TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION, Appellant, v. LINDA GREEN Appellee.

On Appeal from The 133rd Judicial District Court of Harris County, Texas Cause No. 2010-25688

RESPONDENT’S BRIEF

David Brenner State Bar No. 2958020 Elizabeth Brenner State Bar No. 24040570 Belinda May Arambula State Bar No. 24060241 BURNS ANDERSON JURY & BRENNER, L.L.P. P.O. Box 26300 Austin, Texas 78755-6300 (512) 338-5322 (telephone) (512) 338-5363 (facsimile) Attorneys for Zurich American Insurance Company

ORAL ARGUMENT REQUESTED TABLE OF CONTENTS

Page

INDEX OF AUTHORITIES.................................................................................... iv

STATEMENT REGARDING ORAL ARGUMENT ............................................. vi

ISSUE PRESENTED .............................................................................................. vii

ISSUE ONE ............................................................................................................ vii

Does the Declaratory Judgment Act confer jurisdiction on a court to address an issue that (1) was not timely and properly presented to the appeals panel, and (2) is statutorily subject to the judicial review process under the Texas Labor Code? ............................................................................ vii

STATEMENT OF FACTS ........................................................................................1

SUMMARY OF THE ARGUMENT ........................................................................4

ARGUMENT AND AUTHORITIES ........................................................................5

ISSUE ONE (Restated) ..............................................................................................5

Does the Declaratory Judgment Act confer jurisdiction on a court to address an issue that (1) was not timely and properly presented to the appeals panel, and (2) is statutorily subject to the judicial review process under the Texas Labor Code? ...............................................................................5

A. Standard of Review ...............................................................................5

B. The Texas Labor Code limits suits for judicial review to those issues addressed by the appeals panel after the exhaustion of administrative remedies.........................................................................5

C. The Declaratory Judgment Act cannot be utilized to expand the scope of judicial review.........................................................................8

CONCLUSION ........................................................................................................12

ii PRAYER ..................................................................................................................12

CERTIFICATE OF SERVICE ................................................................................14

CERTIFICATE OF COMPLIANCE .......................................................................15

APPENDIX ..............................................................................................................16

iii INDEX OF AUTHORITIES

Page Cases

Beacon Nat’l Ins. Co. v. Montemayor, 86 S.W.3d 260 (Tex. App.—Austin 2002, no pet.). ..............................................8

Ben Robinson Co. v. Texas Workers’ Comp. Comm’n, 934 S.W.2d 149 (Tex. App.—Austin 1996, writ denied) ......................................8

BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838 (Tex. 1990) ..................................................................................9

ESIS, Inc., Serv. Contractor v. Johnson, 908 S.W.2d 554 (Tex. App.—Fort Worth 1995, writ denied) ..............................6

Harris County Emergency Serv. Dist. No. 1 v. Miller, 122 S.W.3d 218 (Tex. App.—Houston [1st Dist.] 2003, no pet.) .........................7

MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660 (Tex. 2009) ................................................................................11

Strayhorn v. Raytheon E-Sys., Inc., 101 S.W.3d 558 (Tex. App.—Austin 2003, pet. denied) .......................................8

Texas Dep’t of Ins., Div. of Workers’ Comp. v. Lumbermens Mut. Cas., 212 S.W.3d 870 (Tex. 2006) ................................................................................10

Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891 (Tex. 1970) ................................................................................11

Texas Mun. Power Agency v. Pub. Util. Comm’n, 100 S.W.3d 510 (Tex. App.—Austin 2003) ........................................................12

Trinity Universal Ins. Co. v. Day, 155 S.W.3d 337 (Tex. App.—El Paso 2004, pet. denied) .....................................5

Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) .....................9

iv Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167 (Tex. App.—Texarkana 1997, no pet.) .......................................8

Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906 (Tex. App.—Austin 1998, pet. denied) ...................................8, 9

Statutes

TEX. LAB. CODE § 410.251 ........................................................................................5

TEX. LAB. CODE § 410.302 ........................................................................................6

v STATEMENT REGARDING ORAL ARGUMENT

Respondent requests oral argument because of the complexity of the factual

and legal issues presented for review. Respondent believes oral argument would

assist this Court in resolving the conflicting authority on the issues.

vi ISSUE PRESENTED

ISSUE ONE

Does the Declaratory Judgment Act confer jurisdiction on a court to address an issue that (1) was not timely and properly presented to the appeals panel, and (2) is statutorily subject to the judicial review process under the Texas Labor Code?

vii DOCKET NO. 01-15-00321-CV _____________________________________

IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS HOUSTON, TEXAS _____________________________________

TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION, Appellant,

v.

LINDA GREEN Appellee.

On Appeal from The 133rd Judicial District Court of Harris County, Texas Cause No. 2010-25688

TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS:

Zurich American Insurance Company (“Zurich”) requests that this Court

reverse the Trial Court’s Order Denying Appellant’s Plea to the Jurisdiction.

STATEMENT OF FACTS

This lawsuit is a judicial review proceeding that arises out of a workers’

compensation claim filed by Linda Green (“Green”) with the Texas Department of

Insurance, Division of Workers’ Compensation (“DWC”). Following a December

10, 2009 contested case hearing, the only issue to be decided was: “Does the

1 compensable injury of August 2, 2005 sustained by the claimant extend to include

the left ankle fracture, compression fracture L1 and T12-L2 conditions on or after

7/29/09?”1 The hearing officer decided that the compensable injury of August 2,

2005 sustained by the claimant does not extend to include the left ankle fracture,

compression fracture L1 and T12-L2 conditions on or after 7/29/09.2 No other

issues were decided by the hearing officer. Specifically, there was no challenge or

issue relating to the validity of the injurious practice defense.

Green filed a request for review to the DWC appeals panel.3 In her request

for review, Green did not challenge the hearing officer’s consideration of her

injurious practices.4 Green limited her request for review to certain findings of

fact, conclusions of law, and evidentiary issues, but it is completely devoid of a

challenge to the defense of injurious practices.5

On April 22, 2010, Green filed an original petition seeking judicial review of

four issues never decided by DWC.6 First, whether the claimant did not comply

with physical therapy on several occasions; second, removal of cast; third,

medication; and fourth, hindered recovery. No other issues were raised by judicial

review and no relief was specifically requested of the trial court. Again,

1 CR 7. 2 Id. 3 Appendix No. 1. 4 Id. 5 Id. 6 CR 1.

2 specifically, there was no objection or request for declaratory relief sought with

respect to the injurious practices.

On September 12, 2011, after the statute of limitations for judicial review

proceedings expired, Green filed an amended petition, for the first time seeking

review of the DWC’s decision and a declaratory action.7 Through the declaratory

action, Green, for the first time, complained that the DWC hearing officer

inappropriately permitted the defense of injurious practices.

Zurich filed a Plea to the Jurisdiction challenging the trial court’s authority

to entertain Green’s declaratory judgment action.8 The DWC intervened in the

litigation, also challenging the trial court’s authority to entertain a declaratory

judgment action.9 After a hearing, the trial court denied both Pleas to the

Jurisdiction.10 Zurich filed an Original Petition for Writ of Mandamus on

December 3, 2012.11 This Court issued a Memorandum Opinion denying the Writ

on October 22, 2013.12 DWC filed a second Plea to the Jurisdiction addressing

Green’s request for declaratory judgment and attorneys’ fees under the Uniform

Declaratory Judgment Act “(UDJA”) on February 11, 2015.13 A hearing on the

second Plea to the Jurisdiction was held on March 2, 2015; the trial court denied

7 See CR 17. 8 Appendix No. 2. 9 CR 23. 10 CR 50. 11 Appendix No. 3. 12 Appendix No. 4. 13 CR 54.

3 TDI-DWC’s plea.14 DWC then filed an accelerated appeal on March 23, 2015.15

SUMMARY OF THE ARGUMENT

In workers’ compensation cases, judicial review is limited to issues decided

by the appeals panel, and a party may not seek review on issues the party did not

present to the appeals panel. A trial court may not enlarge this scope of review by

considering issues, or evidence probative of issues, that were not determined by the

DWC appeals panel. Nor may a party circumvent the statutorily mandated

limitations by asserting a declaratory judgment action. When a statute provides an

avenue for attacking a final agency order, a declaratory judgment action directed at

that order will not lie. This is so because a party is generally not entitled to

redundant remedies. When both the underlying suit and the declaratory judgment

action attack the validity of an administrative order, the court should dismiss the

request for declaratory relief for want of jurisdiction.

Green never challenged the availability of the defense of injurious practices

at the administrative level. It was not until the pendency of judicial review that

Green, for the first time, sought a declaration that the defense of injurious practices

was invalid. The declaratory judgment action is not properly before the trial court.

Therefore, the trial court erred in denying DWC’s Plea to the Jurisdiction.

14 CR 107. 15 CR 108.

4 ARGUMENT AND AUTHORITIES

ISSUE ONE (Restated) Does the Declaratory Judgment Act confer jurisdiction on a court to address an issue that (1) was not timely and properly presented to the appeals panel, and (2) is statutorily subject to the judicial review process under the Texas Labor Code?

A. Standard of Review

A plea to the jurisdiction is a dilatory plea used to contest the trial court’s

authority to determine the subject matter of the cause of action.16 The purpose of a

dilatory plea is not to review the case on the merits, but to establish a reason why

the merits should never be reached.17 Whether a trial court properly denies a plea

to the jurisdiction is a question of law examined under a de novo standard of

review.18

B. The Texas Labor Code limits suits for judicial review to those issues addressed by the appeals panel after the exhaustion of administrative remedies.

The Texas Labor Code provides that a party that has exhausted its

administrative remedies under this subtitle and is aggrieved by a final decision of

the appeals panel may seek judicial review.19 The Texas Labor Code limits the

issues that can be raised on judicial review at trial to those issues decided by the

appeals panel, as follows: “(b) A trial under this subchapter is limited to issues 16 Trinity Universal Ins. Co. v. Day, 155 S.W.3d 337, 339 (Tex. App.—El Paso 2004, pet. denied). 17 Id. 18 Id. 19 TEX. LAB. CODE § 410.251.

5 decided by the appeals panel and on which judicial review is sought.”20 The

pleadings must specifically set forth the determinations of the appeals panel by

which the party is aggrieved.21 There is no provision in the Texas Workers’

Compensation Act authorizing the trial court to enlarge this scope of review by

considering issues, or evidence probative of issues, that were not determined by the

DWC appeals panel.22

Texas courts explain that a failure to raise a defense and, by logical

extension. a challenge to the defense at any stage of the administrative review

process waives the defense and, by extension, a challenge to the defense. 23 In ESIS,

Inc. Serv. Contractors v. Johnson, the court explained that the employer’s failure

to raise the intoxication defense at the administrative review process waives the

defense and the trial court is barred from adjudicating the issue on appeal. The

court held that the defense must be raised by the employer at the administrative

level in order to be preserved for appeal to the trial court. Green never raised a

challenge to the availability or validity of the injurious practice defense at the

administrative level.

Green never challenged the availability of the defense of injurious practices

at the administrative level. It was not until September 13, 2011, during the 20 TEX. LAB. CODE § 410.302. 21 Id. 22 ESIS, Inc., Serv. Contractor v. Johnson, 908 S.W.2d 554 (Tex. App.—Fort Worth 1995, writ denied) 23 Id. at 562.

6 pendency of judicial review, that Green, for the first time, objected to the defense

of injurious practices and sought a declaration that the defense is invalid. This

issue was not properly before the trial court. The validity of the defense was never

raised during the administrative review phase. Issues that were not decided at the

contested case hearing, or by the appeals panel, pursuant to section 410.302 of the

Texas Labor Code, cannot be raised for the first time at trial. Thus, the trial court

lacks jurisdiction to entertain issues not decided by the appeals panel. Moreover,

challenges to the defense that are never raised at the administrative level are

waived.

In Harris Co. Emergency Serv. Dist. v. Miller, the Houston Court of Appeals

explained that HCESD’s failure to respond to Miller’s request for review of the

contested case hearing officer’s decision to the DWC appeals panel was a failure to

exhaust administrative remedies.24 The court held because HCESD failed to

establish its right to proceed on judicial review, the trial court should have

rendered a take-nothing judgment. The court further noted “[t]he vitality and

thoroughness of the agency-review process will fast be diluted if parties are

allowed the option to participate or not in the successive phases.” 25 Likewise, here,

Green did not raise a challenge to the defense of injurious practices on request for

24 Harris Co. Emergency Serv. Dist. No. 1 v. Miller, 122 S.W.3d 218 (Tex. App.—Houston [1st Dist.] 2003, no pet.) 25 Id. at 225.

7 review to the appeals panel. Green should not be permitted to dilute the agency

review process by raising it for the first time under the guise of a declaratory

judgment action that challenges the finality of an appeals panel decision.

The fact that Green appeared pro se has no impact on the requirements of the

review process. Courts have consistently held that pro se litigants must comply

with all procedural requirements and are subject to the same standards applicable

to a licensed attorney.26

C. The Declaratory Judgment Act cannot be utilized to expand the scope of judicial review.

To establish a trial court’s subject-matter jurisdiction to grant relief under

the UDJA, a party must plead the existence of an “underlying controversy” within

the scope of section 37.004 of the Civil Practice and Remedies Code.27 However,

the power of courts to issue declaratory judgments in the face of administrative

proceedings is limited.28 When a statute provides an avenue for attacking a final

agency order, a declaratory judgment action directed at that order will not lie.29

This is so because a party is generally not entitled to redundant remedies.30 “There

is no basis for declaratory relief when a party is seeking in the same action a

26 Weaver v. E-Z Mart Stores, Inc., 942 S.W.2d 167, 169 (Tex. App.—Texarkana 1997, no pet.). 27 Strayhorn v. Raytheon E-Sys., Inc., 101 S.W.3d 558, 572 (Tex. App.—Austin 2003, pet. denied). 28 Beacon Nat’l Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex. App.—Austin 2002, no pet.). 29 Id.; Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906, 911 (Tex. App.— Austin 1998, pet. denied); Ben Robinson Co. v. Texas Workers’ Comp. Comm’n, 934 S.W.2d 149, 153 (Tex. App.—Austin 1996, writ denied). 30 See Young Chevrolet, 974 S.W.2d at 911; Ben Robinson, 934 S.W.2d at 153.

8 different, enforceable remedy, and a judicial declaration would add nothing to what

would be implicit or express in a final judgment for the enforceable remedy.”31

When both the underlying suit and the declaratory judgment action attack the

validity of an administrative order, the court should dismiss the request for

declaratory relief for want of jurisdiction.32

Here, Green’s judicial review suit regarding whether her compensable injury

was the producing cause of particular injuries after July 29, 2009 was pending

before the trial court when Plaintiff amended her petition seeking a declaratory

judgment action. To succeed on judicial review, Green must establish that the work

injury was the producing cause of her conditions after July 29, 2009. In an effort to

avoid this burden, Green artfully, through declaratory judgment action, requested

the trial court declare that her injurious practices cannot be a basis for finding the

work injury was not the producing cause of her conditions after July 29, 2009.

Texas precedent holds that declaratory judgment actions are not available to settle

disputes pending before a court.33 Thus, Green cannot artfully plead, through the

guise of declaratory judgment action, for the court to rule upon an element of her

cause of action that is already pending before the trial court.34

Both statute and case law carve out a limited and precise role for declaratory 31 Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283, 296 (Tex. App.— Houston [1st Dist.] 2001, pet. denied). 32 See, Young Chevrolet, Inc., 974 S.W.2d at 911. 33 BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838 (Tex. 1990). 34 Id.

9 judgments under the UDJA. The UDJA is not meant to supplant other remedies,

including the exclusive remedy provision under the Texas Labor Code. Nor is the

UDJA meant to address specific agency orders. Zurich anticipates Green will cite

to the Lumbermens35 decision for support when, in fact, Lumbermens supports

Zurich’s position. The case involved a carrier’s use of declaratory judgment to

challenge the Division of Workers’ Compensation’s issuance of advisories. The

Lumberman court authorized use of UDJA under this circumstance because the

declaratory judgment did not target the appeals panel holding regarding the

specific advisory; instead, it complained about the broader concern of the

Division’s role in the issuance of advisories.36 At the same time, the court

reiterated that a declaratory judgment cannot be used to challenge a specific

Division decision.37 Accordingly, “when a statute provides a specific method for

attacking an agency order, a declaratory judgment action directed at that order will

not lie.”38 Here, the Texas Labor Code provides the exclusive means for

challenging the DWC appeals panel finding.

Green will also likely cite to MBM Fin. Corp. v. Woodlands Operating Co.

for the proposition that the existence of another remedy does not bar a declaratory

judgment action. Yet, the Texas Supreme Court, citing the Federal Rules of Civil 35 Texas Dep’t of Ins., Div. of Workers’ Comp. v. Lumbermens Mut. Cas., 212 S.W.3d 870 (Tex. 2006). 36 Id. at 874. 37 Id. at 875. 38 Id.

10 Procedure, stated, “The existence of another adequate remedy does not preclude a

declaratory judgment that is otherwise appropriate.”39 In the next sentence, the

Court reiterates the UDJA “cannot be invoked when it would interfere with some

other exclusive remedy or some other entity’s exclusive jurisdiction.”40

Any reliance by Green on Texas Liquor Control Board v. Canyon Creek or

Texas Mun. Power Agency v. Pub. Util. Comm’n is equally misplaced. In Texas

Liquor Control Board, the Texas Supreme Court refused to authorize use of

declaratory judgment to circumvent the administrative process for addressing a

suspended liquor license.41 Again, the Court explained that an action for

declaratory judgment will not be considered when there is another pending action

between the parties that will adjudicate the same issues.42

The Austin Court of Appeals also dealt with this issue at length in Texas

Mun. Power Agency v. Public Util. Comm’n. The case involved a suit for judicial

review in district court challenging an order of the Public Utility Commission

(PUC) and a subsequently filed UDJA action asking the court to construe chapters

of the Public Utility Regulatory Act. The appeals court allowed both actions to

proceed because the UDJA action did not duplicate the issues under judicial

39 MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex. 2009)(emphasis added). 40 Id. 41 Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895-96 (Tex. 1970). 42 Id.

11 review–each action sought a distinct type of relief.43 The UDJA action sought a

declaration regarding the agency’s authority, generally, under provisions of the

regulatory act; while the suit for judicial review sought a ruling on a specific PUC

order.44 However, here, the relief Green seeks through declaratory judgment is

indistinct from relief available through the administrative process. Green attempts

to use declaratory relief to bypass the administrative process by obtaining a ruling

on the DWC order. This is not a proper use of a declaratory judgment order. Thus,

the declaratory judgment action is not properly before the trial court and this Court

should reverse the trial court’s denial of the Plea to the Jurisdiction.

CONCLUSION

In sum, Green cannot utilize the UDJA as an avenue for relief on the

injurious practices issue. The issue was not raised at the administrative level and,

thus, it was waived. As Green may not seek relief under the UDJA, her claim

regarding the defense of injurious practices is barred.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Respondent, Zurich American

Insurance Company respectfully requests that this Court reverse the trial court’s

Order Denying Texas Department of Insurance, Division of Workers’ 43 Texas Mun. Power Agency v. Pub. Util. Comm’n, 100 S.W.3d 510, 519 (Tex. App.—Austin 2003). 44 Id.

12 Compensation’s Plea to the Jurisdiction, and for such other and further relief to

which Respondent may be entitled.

Respectfully submitted,

BURNS ANDERSON JURY & BRENNER, L.L.P. P.O. Box 26300 Austin, Texas 78755-6300 (512) 338-5322 (telephone) (512) 338-5363 (facsimile)

/s/ David Brenner David Brenner State Bar No. 02958020 Elizabeth Brenner State Bar No. 24040570 dbrenner@bajb.com Belinda May Arambula State Bar No. 24060241 barambula@bajb.com

COUNSEL FOR RESPONDENT

13 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing pleading has

been forwarded to all parties listed below, on this 15th day of June 2015 in

accordance with Rule 9.5 of the Texas Rules of Appellate Procedure.

Ken Paxton, Texas Attorney General Charles E. Roy, First Assistant Attorney General James E. Davis Deputy Attorney General for Civil Litigation David A Talbot, Jr. Chief, Administrative Law Division Dennis M. McKinney Assistant Attorney General Office of the Texas Attorney General Administrative Law Division P. O. Box 12548 Austin, TX 78711-2548

Bradley Dean McClellan Law Offices of Richard Pena, P.C. 1701 Directors Blvd. Suite 110 Austin, TX 78744

Raymond L. Kalmans Stephen L. Brochstein Schlanger, Silver, Barg & Paine, LLP 109 North Post Oak Lane, Ste. 300 Houston, TX 77024

/s/David Brenner David Brenner

14 CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Texas Rule of

Appellate Procedure 9.4 because this brief contains 3,357 words. This brief

complies with the typeface requirements of Texas Rule of Appellate Procedure 9.4

because this brief has been prepared in a proportionally spaced typeface using

Microsoft Word 2010 in Times New Roman 14 point.

/s/ DAVID BRENNER

15 APPENDIX

1. Green’s Request for Review

2. Zurich American Insurance Company’s Plea to the Jurisdiction

3. Zurich American Insurance Company’s Original Petition for Writ of

Mandamus

4. First Court of Appeals Memorandum Opinion

5. TEX. LAB. CODE § 410.251

6. TEX. LAB. CODE § 410.302

16 APPENDIX I LINDA GREEN PAGE 02 01/07/2010 16:39 8324525761 2:5 l1mm1a 01/37/2010 99: 4'3 932.15267&)

Of:'1:~.t-) Ill" t.~jUrftd ffimpkty4~e ~~c:.;'t• , \llnlorld r'IHa r'Hfl,:·< TEXAS Dlil'AATM:E..NT 01' lNStiM.NCll !J[VISION OF WORRtllS' CO~U>ENSATION jAN Ui Z~!l! aEFORE THl! ,\..!'PEALS PANEL AVSTJN. TEXAS

lj

: I;«~No, 1/.Z::,t'JS ·!9 ?cH.,z 1·~/"C_t;.ta:;., ~ ~

.... - . 'rO Till: HONORA:all.!i' MliMSE:RS Ol' il:lE AP!'%\LS l'A..''El..

My OP.m~/111·lln !findings <>fl'nct. Col)cl~JS!(lllt oflllw !Qld othar $p<:'Qilk malt<'n ie!lJ«ll;l,z tb.e Dcci$lotl ll!d O!'d~r l~u~ by th~ H<1Sritlg O!llcor tn llli.s llllltlt:'t. 11711 listing tnch ditn~mcut !"fJIWI1•IJt below.

01/07/2010 THU 16:37 [TX/RX NO 67BO] laJ002 PAGE 03 LINDA GREEN Bl/07/2010 16:39 8324525761 q):S~:24 p,m OHJ1-1CIQ l:l 3611763)16 PAGI!; 63 91;B7;~ete aa;49 ea2~s~~7s1

Otfior c.,f ~f!J ure~~ E!l•1pl1;J ( oe Cf.H\11 r.! ~ 1

JAN f) 7 . \lf{:f~Hl~ Hc!f3 Oi!i:~i$

2i\t(J

~LAJMANI'S 1\&QI.!ULFOJS Rlf/Vft\y

TO THE f!OC\ORA.BU ~"lEi\ ERS OE' THE APPeALS PA."-'EI.:

My n~~m4' f ::.) .. .hi /'.L<---.. - · r 11111 tile Claim1111t in ti:Ua nmm. t IIUJ tllill$ thill RfL.ttw and othef S[l«r io.lhi• m.tter. ram Ustln1 e~h di~¥~U~11t!JI ~!Giy bel-ow.

"""'~ u.

~~~ 1dis•~ w!tb Findi!ll off'~! Number~----- bite•~

----~---·---·--~-------·--~----~ _ _ _ _ _ _ _ _ ,....,......__,Ko-

I di~~ wltb Finding of Filet Nlill'lbl!l' _ _ __ -·

) . . ,_, .....

. fTX/RX NO A7A01 ~nn~ 01/07/2010 THU 18 37 LINDA GREEN PAGE 04 01/07/2010 16:39 8324525761 4 !l 1615763;16

01/07/2010 THU 18:87 [TX/RX NO 87801 Gt!004 · Bl/07/2010 16:39 8324525761 LINDA GREEN PAGE 05 03:56:54 ~.m. 01-0HCIO 5 ;I J615763SI6

f1,AI:\1ANU\ REOPE.Sl' FOR REVJE \! ATTAChMENT:

Claltnonlll·inda Or~»

Carrlerr Zurich Amerio:an Jnsura11ce

II

f disagree with Finding uf'Fact Number .::l_be.:nps~ Medical from Ortbopnodk C~nl!lr In (claimant exll2) states a cundition ofpareslholas, nurubness QQd pain down loft leg would be JK!rmanent du" to the injlll')' to my t.l vertebJ·I'Ie body aud tile !'11Sidu!tl n~uropothy, (Pg l) slatos l ~IY be n•c~ssar.v h• th~ fi•ture. Also (f.ltdlwmt ~~#5) medical rec.ot'ds from Dr. Ronald Moon from Octllber ZIJ()II tl!rt)ugh March 2009 shows tbe need fo)r .;on tinned lfelltmr.nt and m~dleatlons. (clahn~ltf!J ex#6) Th•rapy ll.e<:ords whi~h .~flOW f WIJS Cd treatment I$ needed and lhnt J have been ~nmpliant. (claimants ex#lO) Medical rep•u1 from deslguat~d d<~etor:tl1S~ssed a 55% Impairment. (clnim~nt.9 exiiU) Medical Report fl-om Dr. William Luphl!lCcl show' tbaH huve contlnutd problems and tbatl need reFerrals !'or treat~nent of my llljurloo. (dnlntant ex#l4)1\tedlcal from Dr. Michael l(eudtic.k stales he r~vlewod my extelJII.Ive records and l'it1d~ I need epidurals o>nd medlmtlmJ,,,

HI

I dl.'l'l~ with Conclusion of LHl'' Number J..bC<'>luse Medical from Otthopnedlc Center Jn (cllllin~lll e~JI2) ~tate~ n conditio11 of par~Htheias, numbness and pain d()Wlt lefll•g would be permanent due t11 the injury to IIIJ' J,.1 vertebrae body and the residual neuroputhy, (t>g 2) states 1 will bave rltrorlic p~ln, b~ l1') ahrace permanently, ~pg8) notes utber surgery 11.1ny lie I):.:#lOJ Medlcalrtport from designated I doett1r WJIJ<)$-'Itd A 55% lo!pltkm~D.t. (claimants ex#l2) Medical Report {~om Dr. ' Wlll.ilun Lupiuacd shows that l bl!•e ''Ontin"f"/ probl\'hls IU!d tbnt I need ref~rrals fl.lt lfeatment of illy tl!.lmi~s. (clruruant o:xill4) :W:edl

01/07/2010 THU 16:37 [TX/RX NO 6780] li1J005 APPENDIX2 CAUSE NO. 2010-25688

LINDA M. GREEN § IN THE DISTRICT COURT § vs. § 133RD JUDICIAL DISTRICT § ZURICH AMERICAN INSURANCE § COMPANY § HARRIS COUNTY, TEXAS

PLEA TO THE JURISDICTION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW Zurich American Insurance Company, Defendant, in the above entitled

and numbered cause, and files this, its Plea to the Jurisdiction, as this Court lacks jurisdiction,

pursuant to section 4 I 0.302 of the Texas Labor Code, with regard to two issues raised by the

Plaintiffs Original Petition for Judicial Review, and for same would show unto the Court the

following:

I. Introduction

1. This lawsuit is a judicial review that arises out of a workers' compensation claim filed by

Plaintiff Linda M. Green with the Texas Department of Insurance, Division of Workers'

Compensation ("Division").

2. Following a December 10, 2009 contested case hearing, the only issue to be decided was:

"Does the compensable injury of August 2, 2005 sustained by the claimant extend to include an

the left ankle fracture, compression fracture L1 and Tl2-cconditions on or after 7/29/09?" 1 The

hearing officer decided that the compensable injury of August 2, 2005 sustained by the claimant

1 See Exhibit to Plaintiffs Petition, Decision and Order of December 14, 2009. does not extend to include the left ankle fracture, compression fracture L1 and TI2-L2

conditions on or after 7/29/09."2

3. No other issues were decided by the hearing officer.

4. This hearing officer's decision became final by the Appeals Panel letter of March 12,

5. Plaintiff filed her Original Petition for Judicial Review requesting that this Court address

four issues. First, whether the claimant did not comply with physical therapy on several

occasions; second, removal of cast; third, medication; and fourth, hindered recovery. No other

issues were raised by judicial review and no relief was specifically requested of this Court.

Because Plaintiff seeks review of issues not considered by the appeals panel, this Court must

dismiss for want of jurisdiction.

II. AUTHORITY

6. Section 410.302 of the Texas Labor Code limits the issues that can be raised at trial to

those issues decided by the appeals panel, as follows: "(b) A trial under this subchapter is

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

pleadings must specifically set forth the determinations of the appeals panel by which the party is

aggrieved. " 4

7. The issues raised by Plaintiff were not decided at the contested case hearing, or by the

Appeals Panel and, pursuant to section 410.302 of the Texas Labor Code, they cannot be raised

for the first time at trial. This Court, respectfully, lacks jurisdiction to entertain issues not

decided by the appeals panel.

2 !d. 3 !d. 4 TEX. LAB. CODE § 410.302 (2009).

G:\069\24582\Piea to jurisd.doc . 2 III. CONCLUSION

8. Since the hearing officer and the appeals panel did not make a decision with regard to

other injuries and the impairment rating, in accordance with section 410.302 of the Texas Labor

Code, this Court is without jurisdiction to address these issues at trial.

WHEREFORE, PREMISES CONSIDERED, Defendant Zurich American Insurance

Company prays that this Plea to the Jurisdiction to be granted, that this cause be dismissed, and

that Defendant be granted such other and further relief which it may show itself to be entitled.

BURNS ANDERSON JURY & BRENNER, L.L.P. P.O. Box26300 Austin, TX 78755-6300 (512) 338-5322 (512) 338-5363 (Telecopier)

David Brenner State Bar No. 02958020 dbrenner@bajb.com Belinda May State Bar No. 24060241 barambula@bajb.com

Attorneys for Defendant Zurich American Insurance Company

G:\069\24582\Piea to jurisd.doc 3 CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing pleading has been forwarded this 2 d- day of May 2010 in accordance with Rules 21 and 21a of the Texas Rules of Civil Procedure to the following:

VIA CERTIFIED MAIL# 7010 0290 0002 4014 8767 Linda M. Green 2031 Longleaf Dr. Apt. A Hoover, AL 35216

G:\069\24582\Plea to jurisd.doc 4 APPENDIX3 ACCEPTED 221 EFJ017209235 FIRST COURT OF APPEALS HOUSTON, TEXAS NO. _ _ _ _ __ 12 December 3 P12:52 M KARINNE McCULLOUGH CLERK IN THE COURT OF APPEALS FOR THE . FOURTEENTH DISTRICT HOUSTON, TEXAS

In Re: Zurich American Insurance Company

Respondent: Hon. Jaclanel McFarland

Real Party in Interest: Linda M. Green

On Mandamus from Cause No. 20 I 0-25688 In the 133rd Judicial District Court Harris County, Texas

ORIGINAL PETITION FOR WRIT OF MANDAMUS

DAVID BRENNER BELINDA MAY ARAMBULA BURNS ANDERSON JURY & BRENNER P.O. Box 26300 Austin, Texas 78755-6300 512-338-5322 (telephone) 512-338-5363 (facsimile)

ATTORNEYS FOR RELATORS, ZURICH AMERICAN INSURANCE COMPANY

ORAL ARGUMENT REQUESTED THE PARTIES

The parties to the application are:

(a) Relator is Zurich American Insurance Company, whose attorneys are David Brenner. and Belinda May Arambula, Bums Anderson Jury & Brenner, L.L.P., P.O. Box 26300, Austin, TX 78755.

(b) Intervenor and Defendant is the Texas Department of Insurance, Division of Workers' Compensation, who is represented by the Attorney General of the State of Texas, Dennis M. McKinney, P. 0. Box 12548, Capital Station, Austin, TX 78711-2548.

(c) The Honorable Jaclanel McFarland, Judge of the 133rd Judicial District Court, Harris County, Texas, 133rd Judicial District Court, 201 Caroline, 11th Floor, Houston TX 77002, as respondent, being the presiding judge who has issued the order from which relator seeks relief; and

(d) Linda M. Green, the Plaintiff and a real party at interest herein, whose ·attorney is Bradley McClellan, Law Offices of Richard Pena, P.C., 1701 Directors Blvd., Suite 110, Austin TX 78744.

ii TABLE OF CONTENTS

THE PARTIES ................................................................................................................ ii

INDEX OF AUTHORITIES .......................................................................................... iv

STATEMENT OF THE CASE ........ ; .............................................................................. v

STATEMENT OF JURISDICTION .............................................................................. vi

ISSUE PRESENTED .......................................................................... :......................... vii

Issue 1: Does the Declaratory Judgment Act confer jurisdiction on a court to . address an issue that is statutorily subject to the judicial review process identified by the Texas Labor Code and that was not timely and properly presented to the Appeals Panel? ................................................................................ vii

STATEMENT OF FACTS ........................................................................... ;.................. 2

SUMMARY OF THE ARGUMENT .............................................................................. 3

ARGUMENTS AND AUTHORITIES ........................................................................... 4

A. The standard of review ....................................................................................... 4

B. The Texas Labor Code limits suits for judicial review to those issues addressed by the appeals panel after the exhaustion of administrative remedies ....... 4

C. The Declaratory Judgment Act cannot be utilized to expand the scope of .JUd'1c1a . 1rev1ew . ........................................................................................................... .. 6

PRAYER ......................................................................................................................... 8

CERTIFICATE OF SERVICE ................................................................... ,................. ·. 10

APPENDIX .................................................................................................................... 11

Cases

BeaconNat'lins. Co. v. Montemayor, 86 S.W.3d 260 (Tex. App.-Austin 2002, no pet.) ....................................................... 7

Ben Robinson Co. v. Texas Workers' Comp. Comm'n, 934 S.W.2d 149 (Tex. App.-Austin 1996, writ denied) .............................................. 7

BHP Petroleum Co. Inc. v. Millard, 800 S.W.2d 838 (Tex. 1990) ......................................................................................... 8

ESIS, Inc., Serv. Contractor v. Johnson, 908 S.W.2d 554 (Tex. App.-Fort Worth 1995, writ denied) ...................................... 5

Harris County Emergency Serv. Dist. No. I v. Miller, 122 S.W.3d 218 (Tex. App.-Houston [1st Dist.] 2003, no pet.) ................................. 6

In re Texas Mut. Ins. Co., 321 S.W.3d 655 (Tex. App.-Houston [14th Dist.] 2010, no pet.) ......................... vi, 4

Strayhorn v. Raytheon E-Sys., Inc., 101 S.W.3d 558 (Tex. App.-Austin 2003, pet. denied) .............................................. 7

Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283 (Tex. App.-Houston [1stDist.] 2001, pet. denied) ............................ 7

.Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) ......................................................................................... 4

Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974 S.W.2d 906 (Tex. App.-Austin 1998, pet. denied) .............................................. 7

TEX. GOV'T CODE § 22.221 ................................................................................................ vi

TEX. LAB. CODE§ 410.251 ................................................................................................. 4

TEX. LAB. CODE§ 410.302 ............................ ;.................................................................... 5

iv STATEMENT OF THE CASE

Nature of underlying proceeding:

The underlying proceeding is a workers' compensation judicial review lawsuit in

which Plaintiff also seeks declaratory relief. Plaintiff Linda M. Green ("Green") filed suit

against Zurich American Insurance Company ("Zurich"), seeking judicial review of a

Texas Department of Insurance, Division of Workers' Compensation ("DWC") Appeals

Panel decision affirming that her compensable injury of August 2, 2005 does not extend

to include the left ankle fracture, compression fracture Ll, and T12-L2 cond.itions on or

after July 29, 2009. Green then amended her lawsuit seeking declaratory relief that the

hearing officer at the DWC inappropriately permitted the defense of injurious practices.

DWC then intervened. Both Zurich and DWC challenged the jurisdiction of the trial court

to entertain declaratory relief.

Respondent:

The respondent is Judge Jaclanel McFarland of the 133rd Judicial District Court of

Harris County Texas.

Respondent's action from which Relator seele! relief:

Zurich ("Relator") is seeking mandamus relief from the trial court's denial of the

plea to the jurisdiction.

v STATEMENT OF JURISDICTION

The Court has power to grant the writ of mandamus pursuant to ~ections 22.22l(a)

and (b) of the Texas Government Code. Issuance of the writ is proper when a trial court

erroneously denied a plea to the jurisdiction. In re Texas Mut. Ins. Co., 321 S.W.3d 655

(Tex. App.-Houston [14th Dist.]2010, no pet.).

The trial court has elected to exercise declaratory judgment jurisdiction on an issue

that is properly only addressed through the judicial review process of the Texas Labor

Code, on an issue not previously addressed by the appeals panel, and which is targeted

toward an element of a dispute pending before the court.

Issue 1: Does the Declaratory Judgment Act confer jurisdiction on a court to address an issue that is statutorily subject to the judicial review process identified by the Texas Labor Code and that was not timely and properly presented to the Appeals Panel?

vii NO. ________________

IN THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT HOUSTON, TEXAS

On Mandamus from Cause No. 2010-25688 In the 133rd Judicial District Court Harris County, Texas

TO THE HONORABLE COURT OF APPEALS OF TEXAS:

In accordance with the requirements of Rule 52 of the Texas Rules of Civil

Procedure, Zurich, as Relator, seeks the issuance of a writ of mandamus against

Respondent, the Honorable J aclanel McFarland, Judge of the 133rd Judicial District

Court, Harris County, Texas.

Zurich seeks mandamus relief because the trial court erroneously overruled the

challenge to its jurisdiction to entertain declaratory judgment in a workers' compensation

judicial review proceeding, on an issue not addressed or presented to the appeals panel

and targeting a subpart of an issue on judicial review. Mandamus is necessary because an

appeal is an inadequate remedy.

1 STATEMENT OF FACTS

This lawsuit is a judicial review proceeding that arises out of a workers'

compensation claim filed by Green with the DWC. Following a December 10, 2009

contested case hearing, the only issue to be decided was: "Does the compensable injury

of August 2, 2005 sustained by the claimant extend to include the left ankle fracture,

compression fracture Ll and Tl2-conditions on or after 7/29/09?" 1 The hearing officer

decided that the compensable injury ofAugust 2, 2005 sustained by the claimant does not

extend to include the left ankle fracture, compression fracture Ll and Tl2-L2 conditions

on or after 7/29/09. 2 No other issues were decided by the hearing officer. Specifically,

there was no challenge or issue relating to the validity of the injurious practice defense.

Green filed a request for review to the DWC's appeals panel. 3 In her request for

review, Green did not challenge the hearing officer's consideration of her injurious

practices. 4 Green limited her request for review to certain findings of fact, conclusions

of law, and evidentiary issues, but it is completely void of a challenge to the defense of

injurious practices. 5

On April 22, 2010, Plaintiff filed an Original Petition seeking judicial review of

four issues never decided the by DWC. 6 Whether the claimant did not comply with

physical therapy on several occasions; second, removal of cast; third, medication; and

fourth, hindered recovery. No other issues were raised by judicial review and no relief

1 See Plaintiffs Original Petition, Appendix I. 2 !d. ' See Claimant's Request for Review, Appendix 18. 4 !d. s Id. . 6 Plaintiffs Original Petition, Appendix 1.

2 was specifically requested of the trial court. Again, specifically, there was no objection or

request for declaratory relief sought with respect to the injurious practices.

On September 12, 2011, after the statute of limitations for judicial review

proceedings expired, Plaintiff filed an Amended Petition, for the first time seeking review

of the DWC's decision and a declaratory action. 7 Through the declaratory action, Green,

for the first time, complained that the DWC hearing officer inappropriately permitted the

defense of injurious practices.

Zurich filed a Plea to the Jurisdiction challenging the trial court's authority to

entertain Green's declaratory judgment action. 8 The DWC intervened in the litigation,

also challenging the trial court's authority to entertain a declaratory judgment action. 9

After a hearing, the trial court denied both Pleas to the Jurisdiction. 10

In workers' compensation cases, judicial review is limited to issues decided by the

appeals panel and a party may not seek review on issues the party did not present to the

appeals panel. A trial court may not enlarge this scope of review by considering issues,

or evidence probative of issues, that were not determined by the DWC's appeals panel.

Nor may a party circumvent the statutorily mandated limitations by asserting a

declaratory judgment action. When a statute provides an avenue for attacking a final

agency order, a. declaratory-judgment action directed at that order will not lie. This is so

because a party is generally not entitled to redundant remedies. When both the underlying

7 See Plaintiff's FirstAmended Petition, Appendix 59. 8 Zurich's Plea to the Jurisdiction, Appendix 25. 9 DWC's Interventior and Plea to the Jurisdiction, Appendix 37. 10 Order denying Plea to the Jurisdiction, Appendix 99.

3 suit and the declaratory judgment action attack the validity of an administrative order, the

court should dismiss the request for declaratory relief for want of jurisdiction.

Green never challenged the availability of the defense of injurious practices at the

administrative level. It was not until the pendency of judicial review, that Green for the

first time sought a declaration that the defense of injurious practices was invalid. The

declaratory judgment action is not properly before this Court and should be dismissed for

want of jurisdiction.

ARGUMENTS AND AUTHORITIES

A. The standard of review.

Mandamus relief is available when the trial court clearly abuses its discretion and

when there is no other adequate remedy at law.n Issuance of the writ is proper when a

trial court erroneously denied a plea to the jurisdiction. 12

B. The Texas Labor Code limits suits for judicial review to those issues addressed by the appeals panel after the exhaustion of administrative remedies.

The Texas Labor Code provides that a party that has exhausted its administrative

remedies under this subtitle and is aggrieved by a final decision of the appeals panel may

seek judicial review. 13 The Texas Labor Code limits the issues that can be raised on

judicial review at trial to those issues decided by the appeals panel, as follows: "(b) A

trial under this subchapter is limited to issues decided by the appeals panel and on which

11 Wa/kerv. Packer, 827 S,W.2d 833,839-30 (Tex. 1992). 12 In re Texas Mutual Ins. Co., 321 S.W.3d 655. 13 TEX. LAB. CODE § 410.25!.

4 judicial review is sought." 14 The pleadings must specifically set forth the determinations

of the appeals panel by which the patty is aggrieved. 15 There is no provision in the Texas

Workers' Compensation Act authorizing the trial court to enlarge this scope of review by

considering issues, or evidence probative of issues, that were not determined by the

DWC's appeals panel, 16

Texas courts explain that a failure to raise a defense and, by logical extension a

challenge to the defense, at any stage of the administrative review process waives the

defense and, by extension, a challenge to the defense. 17 In ESIS, Inc. Serv. Contractors v.

Johnson, the court explained that the employer's failure to raise the intoxication defense

at the administrative review process waives the defense and the trial court is barred from

adjudicating the issue on appeal. The court held that the defense must be raised by the

employer at the administrative level in order to be preserved for appeal to the trial comt.

Green never raised a challenge to the availability or validity of the injurious practice

defense at the administrative level.

Green never challenged the availability of the defense of injurious practices at the

administrative level. It was not until September 13, 2011, during the pendency of judicial

review, that Green for the first time objected to the defense of injurious practices and

sought a declaration that the defense is invalid. This issue was not properly before the

trial court. .The. validity of the defense was never raised at the administrative review.

Issues that were not decided at the contested case hearing, or by the appeals panel,

14 TEX. LAB. CODE § 410.302. "!d. 16 ESIS, Inc., Serv. Contractor v. Johnson, 908 S.W.2d 554 (Tex. App.-Fort Worth 1995, writ denied). 17 !d. at 562. ·

5 pursuant to section 410.302 of the Texas Labor Code, cannot be raised for the first time at

trial. Thus, the trial court lacks jurisdiction to entertain issues not decided by the appeals

panel. Moreover, challenges to the defense that are never raised at the administrative

level are waived.

In Harris County Emergency Serv. Dist. v. Miller, the Houston Court of Appeals

explained that HCESD's failure to respond to Miller's request for review of the contested

case hearing offer's decision to the DWC's appeals panel was a failure to exhaust

administrative remedies. 18 The court held because HCESD failed to establish its right to

proceed on judicial review, the trial court should have rendered a take-nothing judgment.

The court further noted "[t]he vitality and thoroughness of the agency-review process will

fast be diluted if parties are allowed the option to participate or not in the successive

phases." 19 Likewise, here, Green did not raise a challenge to the defense of injurious

practices on request for review to the appeals panel. Green should not permitted to dilute

the agency review process by raising it for the first time under the guise of a declaratory

judgment action~ that challenges the finality of an appeals panel decision.

C. The Declaratory Judgment Act cannot be utilized to expand the scope of judicial review

To establish a trial court's subject-matter jurisdiction to grant relief under the

Uniform Declaratory Judgment Act, a party must plead the existence of an "underlying

controversy" within the scope of section 37.004 of the Civil Practice and Remedies

18 Harris County Emergency Serv. Dis/. No. 1 v. Miller, 122 S.W.3d 218 (Tex. App.-Houston [1st l)ist.]2003, no pet.) 1' ld at 225.

6 Code. 20 However, the power of courts to issue declaratory judgments in the face of

administrative proceedings is limited. 21 When a statute provides an avenue for attacking a

final agency order, a declaratory-judgment action directed at that order will not lie. 22 This

is so because a party is generally not entitled to redundant remedies. 23 "There is no basis

for declaratory relief when a party is seeking in the same action a different, enforceable

remedy, and a judicial declaration would add nothing to what would be implicit or

express in a final judgment for the enforceable remedy. 24 When both the underlying suit

aqd the declaratory judgment action attack the validity of an administrative order, the

court should dismiss the request for declaratory relief for want of jurisdiction. 25

Here, Green's judicial review suit regarding whether her compensable injury was

the producing cause of patticular injuries after July 29, 2009 was pending before the trial

court, when Plaintiff amended her petition seeking a declaratory judgment action. To

succeed on judicial review, Green must establish that the work injury was the producing

cause of her conditions after July 29, 2009. In an effort to avoid this burden, Green

artfully, through declaratory judgm()nt action, requested the trial court declare that her

injurious practices caimot be a basis for finding the work injury was not the producing

cause of her conditions after July 29, 2009. Texas precedent holds that declaratory

20 Strayhorn v. Raytheon E-Sys., Inc., I0 I S.W.3d 558, 572 (Tex. App.-Austin 2003, pet. denied). 21 Beacon Nat'/ Ins. Co. v. Montemay01; 86 S.W.3d 260, 267 (Tex. App.-Austin 2002, no pet.). 22 !d.; Young Chevrofet, Inc. v. Texas Motor Vehicle Bd, 974 S.W.2d 906, 911 (Tex. App.-Austin 1998, pet. denied); Ben Robinson Co. v. Texas Workers' Camp. Comm 'n, 934 S.W.2d 149, !53 (Tex. App.-Austin 1996, writ denied). 23 See Young Chevrolet, 974 S.W.2d at 911; Ben Robinson, 934 S.W.2d at 153. 24 Universal Printing Co. v. Premier Victorian Homes, Inc., 73 S.W.3d 283, 296 (Tex. App.-Houston [1st Dis!.] 2001, pet. denied). 25 See, Young Chevrolet, Inc., 974 S.W.2d at 911.

7 judgment actions are not available to settle disputes pending before a court. 26 Thus,

Green cannot artfully plead, through the guise of declaratory judgment action, for the

court to rule upon an element of her cause of action that is already pending before the

trial court. 27

PRAYER WHEREFORE, PREMISES CONSIDERED, Relator, Zurich American Insurance

Company respectfully requests that:

1. This Court issue a writ of mandamus directed to Respondent, commanding her to rescind her order denying the plea to the jurisdiction and order that the Plaintiffs declaratory judgment claims be dismissed for want of jurisdiction.

2. This Court grant such other and further relief to which Relator may, by this pleading or proper amendment thereto, show itself to be justly entitled.

BURNS ANDERSON JURY & BRENNER, L.L.P. P.O. Box 26300 Austin, Texas 78755-6300 512-338-5322 (telephone) 512-338-5~acB!mile)

BY: kjy~~ DatidBl'(mner Attorney in Charge State Bar No. 02958020 dbrenner@bajb.com Belinda May Arambula State Bar No. 24060241 barambula@bajb.com ATTORNEYSFORRELATOR

26 BHP Petroleum Co. Inc, v. Millard, 800 S.W.2d 838 (Tex. 1990). 21 Id.

8 STATE OF TEXAS § § COUNTY OF TRAVIS §

BEFORE ME, the undersigned notary public, on this day personally appeared David Brenner, duly sworn by me on his oath deposed and said that he is attorney for Relator in the above-entitled and numbered cause; that he has reviewed the petition and .concluded that every factual statement in the petition is supported by competent evidence included in the appendix or record; that the documents attached to the appendix are true and correct copies of the records filed by the parties in the Harris County District Clerk's office associated with the underlying pro mg.

SUBSCRIBED AND SWORN TO BEFORE ME on this the~day of December, 2012, to certifY which witness my hand and official seal.

t""""'"'s;;;-s;;;';jj'""'l' . L~ J~.~ Notary Pub!i6 in and for ~ -NQtary Public:, T ' C T i. State ofT••.. . rav1s ounty, exas ...............................................................................-·i ~ ~'''''mnlll\'' Comm. Exp.-01~09~14

9 I CERTIFICATE OF SERVICE

It is hereby certified that a true and concct copy of this original petition for writ of mandamus has been senied upon the following listed individuals in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure on this .;;J_ day of December 2012.

Bradley Dean McClellan Law Offices of Richard Pena, P.C. 2028 East Ben White, Suite 220 Austin, TX 78741

Greg Abbott Daniel T. Hodge David C. Mattax David A. Talbot Dennis M. McKinney Office of the Attorney General P.O. Box .12548 Austin, Texas 78711-2548

10 APPENDIX4 Opinion issued October 22, 2013

In The

For The

NO. 01-12-01094-CV

IN RE ZURICH AMERICAN INSURANCE COMPANY, Relator

Original Proceeding on Petition for Writ ofMandamus 1

MEMORANDUM OPINION

By petition for writ of mandamus, Relator Zurich American Insurance

Company challenges the trial court's denial of a plea to the jurisdiction.

We deny relator's petition for writ of mandamus. All outstanding motions

are dismissed as moot.

The underlying cause of action is Linda M Green v. Zurich American Insurance Co., in the District court of Harris County, Texas, 133rd Judicial District, cause no. 2010-25688. PER CURIAM

Panel consists of Justices Jennings, Sharp, and Brown.

2 APPENDIXS § 410.251. Exhaustion of Remedies, TX LABOR§ 410.251

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annas) Title 5· Workers' Compensation Subtitle A. Texas Workers' Compensation Act Chapter 410: Adjudication of Disputes (Refs &Annas) Subchapter F. Judicial Review--General Provisions V.T.C.A., Labor Code§ 410.251

§ 410.251. Exhaustion of Remedies

Currentness \~ I I! F IIli A party that has exhausted its administrative remedies under this subtitle and that is aggrieved by a fmal decision of the appeals panel may seek judicial review under this subchapter and Subchapter G, 1 if applicable. j '. 1; ii II II Credits li Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. I!i

Editors' Notes

REVISOR'S NOTE

2006 Main Volume

The source law refers to judicial review under "this chapter," meaning Chapter F of Article 6 of the Texas Workers' Compensation Act (V.A.C.S. Article 8308-6.61 et seq.). That statute is revised in this chapter as this subchapter and Subchapter G, and the revised law reflects this change.

Notes of Decisions containing your search terms (0) View a11166

Footnotes I

V.T.C.A., Labor Code§ 410.301 et seq.

V. T. C. A., Labor Code§ 410.251, TX LABOR§ 410.251 Current through the end of the 2011 Regular Session t:J 2012 Thomson Reuters. No clnint to original U.S. Government Worb. and First Called Session of the 82nd LegislatureEnd of Document

\\'"'' ·.lle~•NNext © 2012 Thomson Reuters. No claim to original U.S. Government Works. 1 APPENDIX6 § 410.302. Admissibility of Records; Limitation of Issues, TX LABOR§ 410.302

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs &Annas) Title 5. Workers' Compensation Subtitle A. Texas Workers' Compensation Act Chapter 410. Adjudication of Disputes (Refs & Annas) Subchapter G. Judicial Review ofissues Regarding Compensability or Income or Death Benefits V.T.C.A., Labor Code§ 410.302

§ 410.302. Admissibility of Records; Limitation of Issues

Effective: September 1, 2005 Currentness

(a) The records of a contested case hearing conducted under this chapter are admissible in a trial under this subchapter in accordance with the Texas Rules of Evidence.

(b) A trial under this subchapter is limited to issues decided by the appeals panel and on which judicial review is sought. The pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved.

Credits Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 265, § 3.204, eff. Sept. 1, 2005.

Notes of Decisions containing your search terms (0) View all69

V. T. C. A., Labor Code§ 410.302, TX LABOR§ 410.302 Current through the end ofthe 2011 Regular Session \\) 2012 Thomson Reuters. No claim to original U.S. Government Works. and First Called Session of the &2nd LegislatureEnd oi'Documcut

't.L•stL•;,vNext © 2012 Thomson Reuters. No claim to original U.S. Government \/Vorl