COURT OF
APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-04-284-CV
ZURICH
AMERICAN
INSURANCE
COMPANY APPELLANT
V.
LAUREN
GILL APPELLEE
------------
FROM
THE 158TH DISTRICT COURT OF DENTON COUNTY
OPINION**
I. Introduction
In
a single point, Appellant Zurich American Insurance Company appeals the trial
court’s summary judgment in favor of Appellee Lauren Gill, affirming that
Zurich owes medical benefits to Gill under a workers’ compensation
claim. The issue before this court is the interpretation of Texas Labor
Code section 409.021(c) regarding the effect of the failure to contest the
compensability of an injury. Zurich’s position is that (1) its failure
to dispute that Gill had a compensable injury does not mean that it cannot
dispute whether she had an injury at all, and (2) this court should render
judgment in its favor because it proved to the trial court that no injury
occurred as a matter of law. Gill’s position is that (1) by failing to timely
dispute compensability, Zurich has waived its ability to contest the occurrence
of this injury, and (2) she established that an injury occurred as a matter of
law. Because we hold that Gill had an injury and that Zurich could not
contest the compensability of the injury, we affirm the trial court’s
judgment.
II. Background
Gill
was an employee of Professional Employer Services from April 2000 until May
2001. Although she suffered from allergy problems since her childhood, in
June 2000, she began suffering increased problems of sneezing, headaches,
congestion, a sore throat, and a runny nose. After removing ceiling tiles from
her office, she took them to a laboratory and discovered that they contained
stachybotrys mold. She was then medically diagnosed with allergic rhinitis
and maxillary sinusitis, obtained appropriate medical treatment, and
subsequently filed a workers’ compensation claim. Although Zurich,
Professional Employer Services’ workers’ compensation insurance carrier,
received notice of her claim in May 2001, it failed to respond until January 8,
2002, when it contested the compensability of Gill’s alleged injury.
A
contested case hearing was held October 31, 2002. The hearing officer found that
Gill sustained injuries that were ordinary diseases of life—specifically,
chronic allergic rhinitis and maxillary sinusitis. The hearing officer further
found that Gill’s allergic rhinitis and maxillary sinusitis were not injuries
in the form of an occupational disease. She further found that although Zurich
failed to timely contest compensability, and therefore could not challenge
whether the injury was compensable, Gill did not timely notify her employer of
her injury. Therefore, Zurich was relieved of any liability for the workers’
compensation claim.
Both
Zurich and Gill appealed the hearing officer’s decision to the Workers’
Compensation Commission Appeals Panel. The Appeals Panel affirmed the hearing
officer’s decision and order in part, holding that because the hearing officer
is the sole judge of the weight and credibility of the evidence and, as the
finder of fact, resolves the conflicts in the evidence and determines what facts
have been established, the hearing officer’s determination that Gill did not
sustain an injury in the form of an occupational disease was supported by
sufficient evidence and was not so against the great weight and preponderance of
the evidence as to be clearly wrong and unjust. Additionally, the Appeals Panel
held that the hearing officer’s determination that the date of injury was June
1, 2000 was supported by sufficient evidence and was not so against the great
weight and preponderance of the evidence as to be clearly wrong and unjust;
thus, the hearing officer’s determination that Gill failed to timely notify
her employer of her injury was supported by sufficient evidence and was not so
against the great weight and preponderance of the evidence as to be clearly
wrong and unjust. The Appeals Panel also held that the hearing officer did not
err as a matter of law by determining that Zurich waived its right to contest
the compensability of the injury by not timely contesting the injury in
accordance with the version of section 409.021 of the Labor Code effective at
that time. The Appeals Panel also held that the hearing officer did not err as a
matter of law by determining that Continental Casualty Company v. Williamson1 did not apply to this case. The Williamson
court held that if a hearing officer determines that there is no injury, and
that finding is not against the great weight and preponderance of the evidence,
then the carrier’s failure to contest compensability cannot create an injury
as a matter of a law.2 But Williamson
is limited to situations where there is a determination that the claimant did
not have an injury, as opposed to cases like this one where there is an injury
or disease that was determined by the hearing officer not to be causally related
to the claimant’s employment.3 Furthermore,
the Appeals Panel held that although there was conflicting evidence, the hearing
officer’s determination that Gill has not suffered disability was supported by
sufficient evidence and was not so against the great weight and preponderance of
the evidence as to be clearly wrong and unjust.
The
Appeals Panel, however, reversed the hearing officer’s decision that Zurich
was relieved of liability under section 409.002 because of Gill’s failure to
timely notify her employer of her injury pursuant to section 409.001. The
Appeals Panel explained that when a carrier loses its right to contest
compensability, that loss includes its right to assert a defense under section
409.002 based upon the claimant’s failure to give timely notice of her injury
to her employer. Consequently, Zurich was not relieved of liability.
Finally, the Appeals Panel rendered the decision that because Zurich waived its
right to contest compensability, Gill had a compensable injury as a matter of
law.
Zurich
then filed suit in district court, appealing the panel’s determinations that,
among other things, it had waived the right to contest compensability of the
claimed injury by not timely contesting the injury, and thus it was obligated to
pay medical benefits for Gill’s medical care. Gill answered and
counter-claimed, complaining that the Appeals Panel erred in finding that (1)
she did not sustain an injury in the form of an occupational disease and (2) her
medical problems were not caused, enhanced, or aggravated by her working
conditions. Each party subsequently filed a motion for summary judgment.
The
question presented to the trial court, according to Zurich’s motion, was
“whether or not Ms. Gill sustained an injury as outlined in the Texas Labor
Code.” In her motion for summary judgment, Gill posited the issue as
whether Zurich “waived the right to contest compensability of the claimed
injury by not timely contesting the injury.” After a hearing and
considering the motions, the trial court denied Zurich’s motion and granted
summary judgment in favor of Gill, finding that “(1) Zurich has waived the
right to contest compensability; (2) thus judgment affirming the decision of the
TWCC’s Appeals Panel decision number 023017 is appropriate; [and] (3) Zurich
owes medical benefits to Lauren Gill.” This appeal resulted.
III. Analysis
A. Statutes
The
goal of statutory construction is to give effect to legislative intent.4 Unless a statute is ambiguous, we discern that
intent from the language of the statute itself.5
Further, we consider a statute as a whole, not its provisions in isolation.6 Additionally, an administrative agency’s construction or
interpretation of a statute, which the agency is charged with enforcing, is
entitled to serious consideration by reviewing courts, so long as that
construction is reasonable and does not contradict the plain language of the
statute.7
In
this case, our analysis begins with an examination of the pertinent statutory
definitions contained in section 401.011 of the Texas Labor Code:
(26) “Injury” means damage or harm to the physical structure of the body and
a disease or infection naturally resulting from the damage or harm. The
term includes an occupational disease.
.
. . .
(34)
“Occupational disease” means a disease arising out of and in the course of
employment that causes damage or harm to the physical structure of the body,
including a repetitive trauma injury. The term includes a disease or infection
that naturally results from the work-related disease. The term does not
include an ordinary disease of life to which the general public is exposed
outside of employment, unless that disease is an incident to a compensable
injury or occupational injury.8
To
be “compensable,” the injury must arise out of and in the scope and course
of employment for which compensation is payable.9
At
issue in this appeal is the meaning of a particular statutory section containing
these defined phrases. Section 409.021(c) of the Texas Labor Code states:
“If an insurance carrier does not contest the compensability of an injury on
or before the 60th day after the date on which the insurance carrier
is notified of the injury, the insurance carrier waives its right to contest
compensability.”10 It is undisputed that
Zurich did not contest compensability within the sixty-day period. But
Zurich argues that (1) this does not mean that it is not allowed to contest
whether there was an underlying injury at all, and (2) if no such injury
occurred, it cannot be compensable because nothing arose “in the course and
scope of employment for which compensation is payable.”11
In sum, Zurich argues that there was no injury, therefore there was no
“compensable injury” as a matter of law, and so Zurich did not have to
comply with section 409.021.12
Gill
points the court to an additional deadline missed by Zurich contained in former
section 409.021(a), applicable to this case, which reads:
An insurance carrier shall initiate compensation under this subtitle
promptly. Not later than the seventh day after the date on which an
insurance carrier receives 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.13
Gill
argues that if Zurich’s construction of the statute is correct regarding its
being able to contest the occurrence of an injury at any time, then there is no
reason for the insurance company to ever respond to a claim, let alone to do so
“promptly” as set forth in former section 409.021(a).
B. Case Law
Two
cases touching on the issue before this court are discussed by the parties. In Williamson,
claimant Claude Williamson alleged that on August 10, 1993, he fell down a
staircase at work, which replicated a March 1993 injury.14
Williamson filed a worker’s compensation claim, but Continental did not
respond within the sixty-day time frame.15
Following the contested case hearing at which Williamson and others testified,
the hearing officer entered a Decision and Order, with findings of fact and
conclusions of law, including a finding that Williamson willfully intended to
injure himself by staging the incident in question but did not sustain an
injury.16 The hearing officer therefore
held that, although the insurance carrier had waived its right to dispute the
compensability of Williamson’s alleged injury, because Williamson had no
injury, he was not entitled to benefits.17
The
Appeals Panel affirmed the hearing officer’s findings of fact and conclusions
of law, but disagreed with the conclusion that because there was a finding of no
injury, Williamson was not entitled to benefits.18
The Appeals Panel instead held that Williamson suffered no injury, but because
Continental did not timely contest compensability, Williamson’s injury was
established as a matter of law.19
Continental
then appealed the Appeals Panel decision to the trial court. The trial
court affirmed the decision, which was again appealed to our sister court in
Tyler.20 The question on appeal was whether an
employer’s failure to timely contest compensability, when there is no injury,
creates a compensable injury as a matter of law.21
The Tyler court found that an injury and a compensable injury are two different
animals.22 Continental may have waived its
right to contest the compensability of an injury, but it never waived its right
to contest the injury itself.23 The court
therefore held that if a hearing officer determines that there is no injury, and
that finding is not against the great weight and preponderance of the evidence,
then the carrier’s failure to contest compensability cannot create an injury
as a matter of a law.24 The appellate court
reversed the trial court’s judgment and rendered judgment in favor of the
carrier.25
Willamson
has been held by the Texas Workers’ Compensation Commission Appeals Panel to
be limited to situations where there is a determination by the hearing officer
that the claimant did not have an injury, that is, no damage or harm to the
physical structure of the body, as opposed to cases where there is an injury or
disease determined by the hearing officer not to have been causally related to
the employment.26
The
second case discussed by the parties is Continental Casualty Company v. Downs.27 Mary Downs timely filed a claim for worker’s
compensation benefits after her husband’s death, but the carrier, Continental,
did not dispute the compensability of her claim until forty-eight days after it
received the notice.28 A hearing
officer determined that the heart attack that caused her husband’s death was
not compensable and that Continental had timely contested compensability, which
the Texas Workers’ Compensation Commission Appeals Panel affirmed.29
On
appeal, the trial court affirmed the Appeals Panel’s decision, but the San
Antonio Court of Appeals reversed the trial court and rendered judgment in favor
of Downs because Continental had not, within seven days of notice of the claim,
notified Downs of its refusal to pay benefits and therefore Continental could
not contest compensability.30 In other words,
by failing to meet the seven-day deadline contained in former section
409.021(a), Continental no longer had the sixty days allowed by section
409.021(c) to investigate compensability.31
The
Texas Supreme Court agreed with this analysis, holding that “[t]herefore, a
carrier that has neither initiated benefits nor filed a notice of refusal, has
not complied with the [seven-day] statutory requisite, and has failed to trigger
the sixty-day period to investigate or deny compensability.”32
The court went on to observe that
[a]lthough 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).33
C. Application
Applying
the foregoing case law and statutory analysis to this case, we hold that Gill
has an injury that is compensable by Zurich. When notified of a claim
under the worker’s compensation statute, an insurer operating under the law
effective in this case had seven days to either begin paying benefits or notify
the commission and the employee of its refusal to pay.34
By acting on the notice of an injury, the insurance carrier would then afford
itself up to sixty days after notice to investigate the claim and contest the
compensability of the injury pursuant to Texas Labor Code section 409.021(c).35 Because Zurich did not act within the seven-day
period, let alone within the sixty-day period, it no longer had a right to
contest compensability of the injury. This, however, is not disputed by
Zurich, who argues that the Williamson case allows it to dispute the
occurrence of an injury, although not its compensability.36
But
again, the Workers’ Compensation Commission Appeals Panel has repeatedly and
consistently held that Williamson applies to situations where there is a
determination that the claimant did not have an injury, as opposed to cases
where there is an injury or disease which was determined by the hearing officer
not to be causally related to the claimant’s employment.37
In Appeal No. 981847, from September 25, 1998, the chief judge of the Appeals
Panel wrote as follows:
Similarly, in appeal 981640, supra, where the appeal panel applied the Williamson
decision, the hearing officer determined that there was no injury (reflex
sympathetic dystrophy) and that determination was supported by the
evidence. In the case under review, that was not the situation. Not
only did the evidence support the hearing officer’s determination that the
claimant sustained an occupational disease, but the fact that the claimant had a
dystopia condition was not in dispute; rather, whether it related to her
employment, a compensability issue, was the essence of the issue. In other
words, the question was not that the claimant did not have an injury or
condition at all but whether it was connected to her employment, a
compensability matter. We do not read the Williamson case to extend to
situations where there is some injury or condition supported by the evidence and
the pertinent issue is whether it relates to the employment, a compensability
matter. To so extend Williamson would effectively read section 409.021(c)
out of existence. (Emphasis added).38
We
agree. Therefore, because the hearing officer found that Gill had an injury, Williamson
does not apply to this case. Consequently, Zurich’s sole issue is whether Gill
had an “injury.”
Because
we are dealing with statutory construction, we must examine the Texas Labor
Code’s definition of “injury.”39
As previously set forth, “injury” is defined as damage or harm to the
physical structure of the body and a disease or infection naturally resulting
from the damage or harm, including an occupational disease.40
The
statute specifies that the term “occupational disease” does not include
“an ordinary disease of life to which the general public is exposed outside of
employment, unless that disease is an incident to a compensable injury or
occupational disease.”41 Because Gill has
pointed to no evidence in the record that her rhinitis and maxillary sinusitis
were anything other than “ordinary disease[s] of life,” we agree with the
Appeals Panel that she has not shown that her condition is an occupational
disease.
Therefore,
to be an “injury,” Gill’s condition must qualify as damage or harm to the
physical structure of the body and a disease or infection naturally resulting
from the damage or harm.42 The question of
whether an injury occurred is one of fact.43 A
contested case hearing officer, as finder of fact, is the sole judge of the
relevance and materiality of the evidence as well as of the weight and
credibility that is to be given the evidence.44
It was for the hearing officer to resolve the inconsistencies and conflicts in
the evidence.45 This is equally true
regarding medical evidence.46 The trier of
fact may believe all, part, or none of the testimony of any witness.47 An appellate body is not a fact finder, and does
not normally pass upon the credibility of witnesses or substitute its own
judgment for that of the trier of fact, even if the evidence would support a
different result.48 Additionally, when
reviewing a hearing officer’s determination of a fact issue, the decision
should be reversed only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust.49
The
record shows, and Zurich does not contest, that Gill has chronic allergic
rhinitis and maxillary sinusitis, which manifested in the form of sneezing,
headaches, congestion, a sore throat, and a runny nose. The Appeals Panel
recognized and agreed with the hearing officer’s determination that Gill had
physical harm or damage to her body due to the chronic allergic rhinitis and
maxillary sinusitis. Because Gill’s chronic allergic rhinitis and
maxillary sinusitis resulted in the malfunctioning of the physical structure of
the body,50 the agency’s determination that Gill
had an injury is not so contrary to the overwhelming weight of the evidence as
to be clearly wrong and unjust.51
Consequently,
we hold that, under the facts of this case, although Gill’s condition was an
ordinary disease of life, not incident to a compensable injury or occupational
disease, her condition was an “injury” for purposes of section 401.011(26)
of the Texas Labor Code. Thus, because Zurich cannot contest the
compensability of the injury, it owes medical benefits to Gill. We
overrule Zurich’s sole point.
IV. Conclusion
Having
held that (1) Gill had an injury, (2) Zurich may not contest the compensability
of the injury, and thus (3) Zurich owes medical benefits to Gill, we affirm the
trial court’s judgment.
LEE
ANN DAUPHINOT
JUSTICE
PANEL
A: LIVINGSTON, DAUPHINOT, and MCCOY, JJ.
MCCOY,
J. filed a dissenting opinion.
DELIVERED:
September 8, 2005
COURT
OF APPEALS
ZURICH
AMERICAN APPELLANT
INSURANCE
COMPANY
LAUREN
GILL APPELLEE
DISSENTING OPINION
I
respectfully dissent. I do not believe that the Legislature intended that an
“injury” encompass the symptoms of an “ordinary disease of life,” as has
been found present here, any more than those from a common cold, a cold sore (a
viral infection), or athlete’s foot (a fungal infection).
BOB
MCCOY
NOTES
** Majority Opinion by Justice Dauphinot;
Dissenting
Opinion by Justice McCoy
MAJORITY OPINION NOTES:
1.
971 S.W.2d 108 (Tex. App.—Tyler 1998, no pet.).
2.
Id. at 110-11.
3.
See, e.g., Appeals Panel No. 022274, 2002 WL 31474068, at *2 (Tex.
Workers’ Comp. Comm’n Oct. 17, 2002); Appeals Panel No. 022027-s, 2002 WL
31474007, at *2 (Tex. Workers’ Comp. Comm’n Sept. 30, 2002); Appeals Panel
No. 990223, 1999 WL 202028, at *3 (Tex. Workers’ Comp. Comm’n Mar. 22,
1999); Appeals Panel No. 990135, 1999 WL 163482, at *4 (Tex. Workers’ Comp.
Comm’n Mar. 10, 1999); Appeals Panel No. 981847, 1998 WL 1012977, at *2 (Tex.
Workers’ Comp. Comm’n Sept. 25, 1998).
4.
Cont’l Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex. 2002).
5.
Id.
6.
Id.
7.
Broadhurst v. Employees Ret. Sys. of Tex., 83 S.W.3d 320, 323 (Tex.
App.—Austin 2002, pet. denied).
8.
Tex. Lab. Code § 401.011(26),
(34) (Vernon Supp. 2004-05).
9.
Id. § 401.011(10).
10.
Id. § 409.021(c) (Vernon Supp. 2004-05).
11.
See id.
12.
See TIG Premier Ins. Co. v. Pemberton, 127 S.W.3d 270, 272 n.1
(Tex. App.—Waco 2003, pet. denied).
13.
Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen.
Laws 1195 (amended 2003) (current version at Tex. Lab. Code Ann. § 409.021(a)
(Vernon Supp. 2004-05)).
14.
Williamson, 971 S.W.2d at 109.
15.
Id.
16.
Id.
17.
Id. at 109-110.
18.
Id. at 110.
19.
Id.
20.
Id.
21.
Id. at 110-11.
22.
Id. at 110.
23.
Id. at 110-11.
24.
Id.
25.
Id. at 111.
26.
See, e.g., Appeals Panel No. 022274, 2002 WL 31474068, at *2;
Appeals Panel No. 022027-s, 2002 WL 31474007, at *2; Appeals Panel No. 990223,
1999 WL 202028, at *3; Appeals Panel No. 990135, 1999 WL 163482, at *4; Appeals
Panel No. 981847, 1998 WL 1012977, at *2.
27.
81 S.W.3d at 804-07.
28.
Id. at 804.
29.
Id.
30.
Id.
31.
Id.
32.
Id. at 806.
33.
Id. at 807.
34.
Act of May 12, 1993, 73rd Leg. R.S., ch. 269, § 1, 1993 Tex. Gen.
Laws 1195 (amended 2003).
35.
Tex. Lab. Code Ann. § 409.021(c).
36.
See Williamson, 971 S.W.2d at 110.
37.
See, e.g., Appeals Panel No. 022274, 2002 WL 31474068, at *2;
Appeals Panel No. 022027-s, 2002 WL 31474007, at *2; Appeals Panel No. 990223,
1999 WL 202028, at *3; Appeals Panel No. 990135, 1999 WL 163482, at *4; Appeals
Panel No. 981847, 1998 WL 1012977, at *2.
38.
Appeals Panel No. 981847, 1998 WL 1012977, at *2.
39.
See Tex. Lab. Code Ann. §
401.011(26).
40.
Id.
41.
Id. § 401.011(34).
42.
Id. § 401.011(26).
43.
Williamson, 971 S.W.2d at 110.
44.
Tex. Lab. Code Ann. § 410.165(a)
(Vernon 1996); Williamson, 971 S.W.2d at 110.
45.
Williamson, 971 S.W.2d at 110.
46.
Id.
47.
Id.
48.
Id.
49.
See id.
50.
See GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 610 (Tex. 1999)
(holding, with regard to the injury of emotional distress, that “[t]he phrase
‘physical structure of the body’ refers to the entire body, and emotional
distress may constitute an ‘injury’ when it results in malfunctioning of the
physical structure of the body”).
51.
See Williamson, 971 S.W.2d at 110; see also Broadhurst, 83 S.W.3d
at 332.
DISSENTING OPINION NOTES:
Not
applicable.