Opinion
No. 04-14-00558-CV
02-10-2016
Edna A. MARTINEZ, Appellant v. STATE OFFICE OF RISK MANAGEMENT, Appellee
CONCURRING AND DISSENTING OPINION
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-17102
Honorable Antonia Arteaga, Judge Presiding Opinion by: Karen Angelini, Justice
Concurring and Dissenting Opinion by: Jason Pulliam, Justice Sitting: Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Jason Pulliam, Justice
I concur with the majority's opinion and disposition of Martinez's appeal from the trial court's denial of her motion for summary judgment. Accordingly, I concur in the affirmance of the trial court's denial of Martinez's motion for summary judgment.
However, I respectfully disagree with the majority's opinion and disposition of Martinez's appeal from the trial court's granting of SORM's motion for summary judgment. For this reason, I write separately and dissent from that portion of the majority opinion, only. Accordingly, I would affirm the trial court's granting of SORM's motion for summary judgment.
DISPOSITION OF THE TRIAL COURT'S ORDER GRANTING
SORM'S MOTION FOR SUMMARY JUDGMENT
A. Determination of the Meaning of "Issue" as Used Within the Act
This case presents an issue of law addressed specifically by only one court of appeals in Tex. Workers' Comp. Ins. Fund v. Tex. Workers' Comp. Comm'n, 124 S.W.3d 813, 819-22 (Tex. App.—Austin 2003, pet. denied). The crux of this appeal is the limited determination of the meaning of the term "issue" as used in the Texas Worker's Compensation Act (the Act). Texas Workers' Comp. Ins. Fund provides strong, persuasive and applicable guidance to resolution of this legal question. I believe Texas Workers' Comp. Ins. Fund properly disposes of the legal question here, and therefore, should be followed. I also disagree with the manner in which the majority construes other authority to support its opinion. For these reasons, I respectfully dissent.
This case specifically implicates Sections 410.301 and 410.302 of the Act. Section 410.301, titled "Judicial Review of Issues Regarding Compensability or Income or Death Benefits", states, "[j]udicial review of a final decision of the appeals panel regarding compensability or eligibility for or the amount of income or death benefits shall be conducted as provided by this subchapter." TEX. LAB. CODE ANN. § 410.301(a)(West 2015). Section 410.302(b) states judicial review under the Act is "limited to issues decided by the appeals panel and on which judicial review is sought." See id. § 410.302(b).
The parties agree that upon judicial review, Sections 410.301 and 410.302 dictate that the judiciary may only address "issues" decided by the appeals panel; however, the parties disagree as to the context and meaning of the term "issue" as used in the Act. Martinez contends SORM is jurisdictionally barred from raising the "issue" of statutory violation as basis for a finding that her claim is not compensable because SORM did not raise the statutory-violation "issue" during the administrative proceedings. SORM contends its statutory-violation argument is just that, merely a sub-argument to support its position on the "issue" of compensability of Martinez's injury. The "issue" of compensability was consistently raised in the administrative process and was determined by the appeals panel in this case. Therefore, SORM contends it satisfied the requirements of the Act and may raise upon judicial review any sub-argument to support its position on the "issue" of compensability.
In Texas Workers' Comp. Ins. Fund, the Austin Court of Appeals addressed the same legal question to be determined in this case, that is, interpretation of the term "issue" as it appears in the Act. See Tex. Workers' Comp. Ins. Fund, 124 S.W.3d at 819-21. As the first Texas court to address this question, the Austin Court of Appeals reconciled the meaning of the term "issue" as it appears in the Act with common usage and understanding of the term as used and understood within Texas case law and appellate practice. The Austin court held,
"[a]lthough Texas Mutual would have us equate the meaning of "issue" as used in section 410.204(a) with the "issues" or "points of error" that Texas appellate courts consider on appeal, see TEX. R. APP. P. 38.1(e), (h), we believe that "issue" must be interpreted within the context of the workers' compensation act. Throughout the workers' compensation act, "issue" is never used to refer to legal arguments or doctrines; rather, "issue" is used to refer to disputed matters related to the underlying workers' compensation claim.Id. at 820. Reasoning that Texas courts discussing "issues" in the context of the Act "have repeatedly characterized 'issue' as being related to the underlying workers' compensation claim," the Austin court then concluded "issue" "refers to disputed determinations made by the hearing officer in rendering his decision." Id. at 820-21 (citing Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 253 (Tex. 1999); American Cas. Co. v. Martin, 97 S.W.3d 679, 686-87 (Tex. App.—Dallas 2003, no pet.); Tex. Gen. Indem. Co. v. Eisler, 981 S.W.2d 744, 745 (Tex. App.—Houston [1st Dist.] 1998, no writ); Feagley v. Tex. Workers' Comp. Comm'n, No. 03-99-00292-CV, 2000 WL 263166, at *4 (Tex. App.—Austin March 9, 2000, no pet.) (not designated for publication)).
At the time of the opinion, Section 410.204(a) read: "(a) An appeals panel shall issue a decision that determines each issue on which review was requested...." --------
I agree with the reasoning and conclusion drawn by the Austin Court of Appeals in Texas Workers' Comp. Ins. Fund and conclude its holding applies to the similar procedural posture and determination to be made in this case. As in Texas Workers' Comp. Ins. Fund, Martinez would have this court equate the meaning of "issue" as used in Sections 410.301(b) and 410.302(a) of the Act with the usage of "issue" or "point of error" that Texas appellate courts typically consider on appeal. See TEX. R. APP. P. 38.1(e),(h); see also Tex. Workers' Comp. Ins. Fund, 124 S.W.3d at 820-21. Within this normal appellate practice, appellate courts may not consider issues raised for the first time on appeal. See Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 (Tex. 2014) ("We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court."). However, as outlined by the Austin Court of Appeals in Texas Workers' Comp. Ins. Fund, Martinez confuses "issues decided by the appeals panel" as it appears in Sections 410.301(b) and 410.302(a) of the Act with the parties' arguments raised to support their position, and thus, the findings of fact rendered by the Hearing Officer and Appeals Panel. See Tex. Workers' Comp. Ins. Fund, 124 S.W.3d at 820-21. Apart from common appellate practice and understanding, the Act uses the term "issue" in a different light. For this reason, the term "issue" as used in the Act must be interpreted within the context of its definition and usage within the Act, itself.
Specific to this case, Section 410.301 defines an "issue" to be either compensability or income or death benefits. TEX. LAB. CODE ANN. § 410.301(a). Because the word "issue" as referenced in the Act has a different nuance and usage than in common Texas appellate practice, I would hold that "issue," as used in Section 410.301 and .302, refers to the disputed matters enumerated therein, that is, compensability, income, or death benefits. To be entitled to trial, or judicial review on one of these enumerated issues, a party must have presented it to the appeals panel for determination. TEX. LAB. CODE ANN. § 410.302; see also Tex. Workers' Comp. Ins. Fund, 124 S.W.3d at 820-21 (holding "issue" is used to refer to "disputed matters related to the underlying workers' compensation claim", or the broad matters presented to the hearing officer or appeals panel for determination.). "Issue" as used within the Act does not refer to all arguments to support a party's position with regard to one of the disputed matters enumerated within the Act.
As stated by the majority, Martinez raised the following "disputed issues" to be determined at all stages of the administrative process: (1) Did Martinez sustain a compensable injury on June 9, 2001; and (2) Did Martinez have a disability. Thus, following Texas Workers' Comp. Ins. Fund, any argument raised to support or negate either of these two issues may be raised at any time. In this case, determination whether Martinez violated state law by working at home is an argument in support of SORM's position that Martinez's injury is not compensable. As enunciated by the Austin court, to hold that all arguments pertaining to compensability were the "issues" to be decided in administrative review "would totally ignore the repeated meaning of 'issue' elsewhere in [the Act] and would, in effect, elevate form over substance." See Tex. Workers' Comp. Ins. Fund, 124 S.W.3d at 821.
I respectfully disagree with the majority's interpretation of Zurich American Ins. Co. v. Debose and its application to the facts and procedural posture in this case. See Zurich American Ins. Co. v. Debose, No. 01-13-00344-CV, 2014 WL 3512769, at *6-7 (Tex. App.—Houston [1st Dist.] July 15, 2014, pet. denied) (mem. op.). In Zurich American Ins. Co., the claimant asserted two issues during the administrative review process: (1) whether the compensable injury extended to include degenerative joint disease; and (2) whether Zurich American waived its right to contest compensability of the degenerative disease by not presenting the contest within 60 days of the date of notice of the claim. Id. at *1,*3. These two issues are both specifically codified and recognized "issues" within the Texas Workers' Compensation Act Sections 409.021 and 409.022. See TEX. LAB. CODE ANN. §§ 409.021, 409.022. However, during judicial review, the claimant also argued Zurich American waived its right to contest the extent of the injury by missing the 45-day deadline, found within Sections 124.3 and 133.240 of the Texas Administrative Code. Id. at *4.
Upon review of the trial court's summary judgment award in favor of the claimant, the Texarkana court held the only issue of waiver presented during the administrative process was the 60-day deadline issue, that is, whether Zurich failed to timely contest compensability of the injury within 60 days of notice of the claim. Zurich American Ins. Co., 2014 WL 3512769, at *4-5. Following evaluation and discussion of the insurer's right to contest compensability of an injury payment and the insurer's right to contest the extent of the injury, the Texarkana court concluded the issue of right to contest compensability is a separate and distinct waiver issue from that of the right to contest the extent of the injury. Id. at *4-5. The Texarkana court made particular note of the fact that the 45-day deadline to contest the extent of the injury arises under Section 124.3 and 133.240 of the Texas Administrative Code, not the Labor Code which contains the Act. Id. at *7. Having made this distinction and conclusion that both comprised separate and distinct issues, the Texarkana court concluded the claimant could not raise for the first time on judicial review the issue whether Zurich complied with the 45-day deadline to contest the extent of injury even though the broad topic of waiver was addressed in the administrative process. Id.
Going further to determine whether, as Martinez asserted in her motion for summary judgment, a party must contest every finding of fact of the hearing officer to exhaust administrative remedies, the Texarkana court, again, agreed with the Austin court's holding, and applied its reasoning to this context of preservation of error. Id. at *7. In doing so, the Texarkana court agreed with the Austin court's interpretation and use of the term "issue" within the context of the Act, stating,
It is the act of raising the disputed issues at each level of the administrative review process that exhausts a party's administrative remedies. As the Austin Court of Appeals has held, '[t]hroughout the workers' compensation act, 'issue' is never used to refer to legal arguments or doctrines; rather, 'issue' is used to refer to disputed matters related to the underlying workers' compensation claim.' [citation omitted]. We agree with this holding.Id. at *9. In its agreement with the Austin court's reconciliation of the use of "issue" within the Act, the Texarkana court in Zurich stated, "[w]e hold that, under a plain reading of the workers' compensation statutory framework, 'issues' does not refer to the fact findings of the hearing officer, but to the specific matters identified to be in dispute by the parties." Id.
Based upon the consistent understanding and application of the use of "issue" under the Act and the acknowledgment of agreement with the Austin court's determination, the Texarkana court's determination in Zurich American Ins. Co. is, thus, consistent with the holding in Texas Workers' Comp. Ins. Fund: that arguments to support a party's position may be raised for the first time on judicial review, but new issues for determination may not. Compare id., with Tex. Workers' Comp. Ins. Fund, 124 S.W.3d at 820-21; see also Greene v. Farmers Ins. Exch., 446 S.W.3d at 764.
Under the undisputed facts presented in this case, the issues presented to the appeals panel were compensability and disability, and these issues were properly presented to the trial court upon SORM's filing of its Original Petition. SORM consistently disputed compensability of Martinez's injury throughout the administrative process. The parties do not dispute that SORM's statutory-violation argument pertains to the issue of compensability. Thus, following Texas Workers' Comp. Ins. Fund and Zurich, if the issue of compensability had not been asserted or raised during the administrative process, SORM and Martinez would both be barred from raising compensability and from asserting any arguments pertaining to the issue of compensability on judicial review. See also Greene v. Farmers Ins. Exch., 446 S.W.3d at 764. Therefore, SORM may raise its statutory-violation argument to support its position that Martinez did not suffer a compensable injury at any time in the administrative and judicial process.
B. Statutory Violation is not Evidence of Compensability
Martinez raises a third issue not addressed by the majority opinion, arguing: the trial court erred by granting SORM's motion for summary judgment because the alleged statutory violation does not constitute evidence that Martinez suffered a compensable injury. I would conclude this argument fails.
First, the issue whether Martinez violated Texas statute is a legal determination, not an evidentiary determination. Any determination by the trial court on the issue whether Martinez violated the relevant statutes by working at home without permission would result in disposition of SORM's motion for summary judgment as a matter of law. Second, Martinez's argument hinges upon her alleged premise that "it is otherwise undisputed that her injury arose out of and in her performance of activities in the course and scope of employment." However, SORM has always disputed the issue whether Martinez's injury arose out of the course and scope of her employment.
Here, the trial court was required to make a legal determination regarding Martinez's noncompliance with the statutes referenced in SORM's motion for summary judgment. The trial court based its decision on a ground that could be raised upon judicial review.
For these reasons, Martinez's argument fails.
CONCLUSION
In my opinion, SORM may raise its argument that Martinez violated state law by working at home upon judicial review of the appeals panel decision. Therefore, I would overrule Martinez's points of issue and affirm the trial court's granting of SORM's motion for summary judgment. I dissent in the majority's reversal of the trial court's judgment granting SORM's motion for summary judgment. I concur in the majority's affirmance of the trial court's denial of Martinez's motion for summary judgment.
Jason Pulliam, Justice