Court of Appeals of Texas, Houston (14th Dist.).

Mika Deen SIMPSON, Appellant,

v.

INDUSTRIAL INDEMNITY COMPANY, Appellee.

No. 14-98-00664-CV.

|

May 20, 1999.

Before Justices ANDERSON, HUDSON, and DRAUGHN.^*

OPINION

HUDSON.

*1 On December 9, 1995, appellant, Mika Deen Simpson, sustained an injury in the course of his employment with Bectel Group, Inc. Simpson sought worker’s compensation for his injury, and a contested hearing was held before the Texas Worker’s Compensation Commission on August 6, 1977. The hearing officer determined that Simpson had an impaired rating of seven percent. Simpson appealed, but on October 28, 1997, the Commission Appeals Panel affirmed the Commission’s decision. Simpson then filed suit in the district court against the worker’s compensation carrier, Industrial Indemnity Company, seeking judicial review and an impairment rating of twenty-five percent. Because Simpson did not mail a copy of his petition to the Texas Worker’s Compensation Commission, as required by Section 410.253 of the Texas Labor Code, the trial court dismissed his claim for want of jurisdiction. We reverse and remand.

A party who, like Simpson, has exhausted his administrative remedies may seek judicial review of a decision made by the Texas Worker’s Compensation Commission. See Tex. Lab.Code Ann. § 419.251 (Vernon 1996). However, a party seeking review must file his suit not later than the fortieth day after the date on which the decision of the appeals panel was filed with the division. See Tex. Lab.Code Ann. § 419.252 (Vernon 1996). Moreover, a copy of the petition must be “simultaneously filed with the court and the commission.” Tex. Lab.Code Ann. § 410.253 (Vernon 1996). Here, it is undisputed that Simpson did not file a copy of his petition with the Commission until more than 120 days after the decision of the appeals panel. Accordingly, Simpson did not comply with the mandatory requirements of Section 410.253.

Simpson raises a single issue before this Court in which he contends Section 410.253 of the Labor Code is directory, not jurisdictional. The day after oral argument in this case, the Supreme Court of Texas resolved this issue by holding that the “untimely filing with the Commission under section 410.253 does not deprive the trial court of its jurisdiction.” Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 959 (Tex.1999). The court reasoned:

[T]o evaluate whether intervention in a judicial review action is necessary and, if necessary, to timely intervene in the action, the Commission needs prompt notice that a lawsuit has been filed. Therefore, we hold that section 410.253’s simultaneous filing requirement is mandatory.

Nevertheless, the liberal construction we must give workers’ compensation laws precludes a jurisdictional interpretation. The purpose behind section 410.253 does not require dismissing the judicial review action for failure to timely file with the Commission. Section 410.254 gives the Commission a statutory right to intervene. If the commission receives late notice and requires additional time to intervene, the trial court can abate the judicial review action as necessary.

*2 Id. at 961-62.

Accordingly, we find the trial court had jurisdiction to entertain Simpson’s petition for judicial review. The trial court’s order of dismissal for want of jurisdiction is reversed and this cause is remanded to the trial court.

	Footnotes
*		Senior Justice Joe L. Draughn sitting by assignment.