MEMORANDUM OPINION

Opinion by Justice WRIGHT.

Gary Russell sued relator Texas Mutual Insurance Company alleging causes of action arising from relator's delay in authorizing two medical procedures for a back injury Russell received in the course of his employment. Relator filed a plea to the jurisdiction asserting the trial court has no jurisdiction over the suit because Russell has failed to exhaust his administrative remedies with the Texas Worker's Compensation Commission (the Commission). The trial court denied relator's plea to the jurisdiction. In this original mandamus proceeding, relator claims the trial judge clearly abused his discretion in denying the plea to the jurisdiction and that relator has no adequate remedy at law. We agree with relator and conditionally grant the petition for writ of mandamus.

Facts

On March 12, 2002, Russell was injured on the job. Relator is the worker's compensation carrier for Russell's employer. Between March 12, 2002 and October 13, 2003, Russell's doctors made nineteen preauthorization requests for procedures under his worker's compensation claim. Two of the procedures Russell's doctors requested were a discogram and spinal fusion surgery. Russell's first preauthorization request for the discogram was made on September 16, 2002. Relator denied that request, as well as Russell's March 28, 2003 preauthorization request for spinal fusion surgery. Russell did not pursue any administrative remedies with the Commission regarding the denial of these requests. Rather, he elected to pursue the alternative treatment methods that relator had authorized. In the fall of 2003, Russell's doctor again sought preauthorization for the discogram and spinal fusion surgery. The requests were granted and the procedures were performed.

On May 19, 2004, Russell filed suit against relator, alleging causes of action for breach of the duty of good faith and fair dealing, violations of the Deceptive Trade Practices Act, insurance code violations, and intentional infliction of emotional distress. The asserted bases of the claims were relator's delay in approving the discogram and spinal fusion surgery. In May 2005, Russell filed his first amended petition, asserting the same claims, and asserting that relator's bad faith was based on its delay in approving the discogram, recommending and approving a decompression without fusion procedure that was inconsistent with Russell's doctor's recommendation, and delaying approval of the spinal fusion surgery.

On June 16, 2004, relator filed an answer, affirmative defenses, and special exceptions. And, on January 24, 2005, relator filed a plea to the jurisdiction, asserting the trial court lacked jurisdiction over the lawsuit because Russell failed to exhaust his administrative remedies. The trial judge denied relator's plea to the jurisdiction on May 23, 2005.

Standard of Review and Applicable Law

Mandamus relief is appropriate only if the trial court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Entergy Corp., 142 S.W.3d 316, 320 (Tex. 2004). Generally, mandamus does not lie to correct incidental trial rulings when there is a remedy by appeal. Id. However, the erroneous denial of a plea to the jurisdiction based on exclusive agency jurisdiction could justify mandamus relief where it interferes with the legislatively mandated function and purpose of the agency and clearly disturbs "the orderly processes of government." See id. at 321; In re Tex. Mut. Ins. Co., 157 S.W.3d 75, 78 (Tex.App.-Austin 2004, orig. proceeding).

"[U]nder the exclusive jurisdiction doctrine, the Legislature grants an administrative agency the sole authority to make the initial determination in a dispute." Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002). If an agency has exclusive jurisdiction, courts have no subject matter jurisdiction over the dispute until the party has exhausted all of the administrative remedies within the agency. See In re Entergy Corp., 142 S.W.3d at 321-22; Subaru of Am., Inc., 84 S.W.3d at 221. Absent subject matter jurisdiction, the trial court must dismiss any claim within the agency's exclusive jurisdiction. See In re Entergy Corp., 142 S.W.3d at 322. Whether the agency has exclusive jurisdiction is a matter of statutory interpretation. See id.

The Texas Worker's Compensation Act provides that the recovery of worker's compensation benefits is the exclusive remedy of an employee covered by worker's compensation insurance for a work-related injury. See Tex. Lab. Code Ann. § 408.001(a) (Vernon 1996).The Act vests the power to award compensation benefits solely to the Commission, subject to judicial review. Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 803 (Tex. 2001) (citing Tex. Lab. Code Ann. §§ 408.001(a), 410.168-.169, .203-.205, .208 (Vernon 1996 Supp. 2004-05)). Medical benefits are included within the definition of benefits. See Tex. Lab. Code Ann. § 401.011(5) (Vernon Supp. 2004-05).

Analysis

Relator contends the trial court lacks jurisdiction because Russell did not exhaust any of his administrative remedies with the Commission. Russell responds that he does not have to exhaust the administrative remedies because, once the medical procedures were authorized, there was no dispute left for the Commission to resolve. We disagree with Russell's arguments.

Russell alleged four causes of action in his lawsuit: (1) breach of the duty of good faith and fair dealing; (2) violations of the Deceptive Trade Practices Act; (3) violations of the Texas Insurance Code; and (4) intentional infliction of emotional distress. The factual underpinnings on which Russell bases his claims are relator's delay in authorizing the discogram procedure that ultimately showed fusion surgery was necessary, recommending and approving decompression without surgery, which was inconsistent with Russell's surgeon's recommendation, and delay in approving the fusion surgery.

Russell's claims are within the Commission's exclusive jurisdiction. See Fodge, 63 S.W.3d at 803 (Commission has jurisdiction over preauthorization of medical care). The claims are premised on an improper delay in authorizing the requested procedures and improper authorization of alternative procedures. By his own admission, Russell never sought an administrative review of the initial denial of authorization for the discogram and fusion surgery or the authorization of the alternative procedures. The fact that the discogram and fusion surgery were ultimately authorized does not constitute any type of determination by the Commission that the initial denial of the procedures and authorization of alternative procedures were improper. Therefore, there does remain a dispute for the Commission to resolve. See id. at 804 (absent determination benefits were due, no recovery of damages for failure to pay benefits). Because the preauthorization of medical care is within the Commission's exclusive jurisdiction, Russell's failure to exhaust his administrative remedies leaves the trial court without subject matter jurisdiction over the lawsuit. See In re Entergy Corp., 142 S.W.3d at 321-22; In re Tex. Mut. Ins. Co., 157 S.W.3d at 78. Therefore, the trial judge clearly abused his discretion in denying relator's plea to the jurisdiction.

We further conclude relator has no adequate remedy at law. To allow the lawsuit to proceed when the trial court does not have jurisdiction to resolve the issues would interfere with the Commission's authority and disturb the "orderly processes of government." See In re Tex. Mut. Ins. Co., 157 S.W.3d at 78.

Accordingly, we conditionally grant the writ of mandamus. We order the trial judge to vacate the May 23, 2005 order denying Texas Mutual Insurance Company's plea to the jurisdiction and to dismiss the lawsuit for lack of subject matter jurisdiction. See In re Entergy, 142 S.W.3d at 324; Fodge, 63 S.W.3d at 805. We further order the trial judge to file with this Court, within thirty days of the date of this order, a certified copy of the order in compliance with this order. Should the trial court fail to comply, the writ will issue.