Court of Appeals of Texas, Houston (1st Dist.).

CITY OF PASADENA, Appellant,

v.

TEXAS WORKERS’ COMPENSATION COMMISSION and Zolio Sanchez, Appellees.

No. 01-96-01091-CV.

|

May 29, 1997.

OPINION

BASS, Justice¹

*1 This is an accelerated appeal from the denial of a temporary injunction. We affirm.

FACTS

The City of Pasadena (the City) provided workers’ compensation coverage through self-insurance. Zolio Sanchez, the City’s employee, claimed a workplace injury. The parties did not dispute Sanchez was injured. The City, however, contested whether the incident caused certain of the injuries Sanchez claimed.

Sanchez and the City followed the current Texas Workers’ Compensation Act’s administrative procedure. See Tex. Labor Code Ann. §§ 410.001–410.308 (Vernon 1996). The Texas Workers’ Compensation Act establishes a three-tier system for claim determination. Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 514 (Tex.1995). The parties first participate in an informal, non-adversarial conference by a benefits review officer who mediates the dispute. Tex. Labor Code Ann. §§ 410.021, 410.024, 410.026. If the dispute is not completely resolved at the benefit review conference, the parties may choose between arbitration or a contested case hearing (CCH). Tex. Labor Code Ann. §§ 410.104(a), 410.151(a). The parties may appeal the CCH decision to an administrative Appeals Panel. Tex. Labor Code Ann. §§ 410.201–410.208. After exhausting these administrative remedies, a party may appeal to the district court. Tex. Labor Code Ann. §§ 410.251–410.256.

The City and Sanchez participated in a benefit review conference. The parties did not resolve their dispute, and the benefit review officer did not order the carrier to pay Sanchez benefits. The City sought a CCH review, and a hearing was held. The CCH hearing officer determined that Sanchez was entitled to temporary income benefits from the date of his injury to the CCH hearing date. The CCH officer also determined the statutory maximum medical improvement (MMI) date, which could have cut off the City’s liability before the hearing date, could not yet be determined. The temporary income benefits awarded was about $35,000, to be paid in a lump sum.

The City appealed to the administrative Appeals Panel. While that appeal was still pending, the City sued Sanchez and TWCC for injunctive relief and declaratory judgment. The City sought a declaration that being required to pay a CCH’s officer’s award pending an administrative Appeals Panel’s decision violates the U.S. and Texas Constitutions. The City also sought a temporary restraining order and temporary and permanent injunctions prohibiting the enforcement of the applicable Labor Code provisions.

The trial court granted the City’s request for a temporary restraining order, enjoining TWCC from (1) requiring the City to pay the CCH lump-sum award, and (2) assessing administrative penalties. At the hearing for temporary and permanent injunction, only the City presented evidence, which consisted of the depositions of two TWCC employees from an unrelated lawsuit. The trial court denied the City’s request for a temporary injunction. The trial court allowed the City to post a supersedeas bond. The City appeals from the order denying temporary injunction.

REQUESTED RELIEF

*2 The City’s brief raises five points of error, each addressing and arguing the underlying lawsuit’s merits rather than the propriety of denying the temporary injunction. On appeal from an interlocutory order refusing a temporary injunction, our review is limited to determining whether the trial court clearly abused its discretion in denying the temporary injunction. We may not consider the merits of the underlying lawsuit. Davis v. Huey, 571 S.W.2d 859, 861-62 (Tex.1978); Univ. of Texas Med. Sch. v. Than, 834 S.W.2d 425, 428-29 (Tex.App.-Houston [1st Dist.] 1992), aff’d as modified on other grounds, 901 S.W.2d 926 (Tex.1995). We may not consider the City’s points of error, which concern the merits.

The City also filed a reply brief two working days before oral argument and five months after TWCC had filed its appellee’s brief. The City’s reply brief acknowledged that, in its original brief, it had incorrectly requested a determination of the merits. The City then raised and argued for the first time the propriety of the temporary injunction’s denial. The City did not seek this Court’s permission to supplement or amend its original brief. The reply brief’s new point of error regarding the standard for granting temporary injunction was not timely filed, is not preserved, and will not be considered. See Gabriel v. Snell, 613 S.W.2d 810, 813 (Tex.Civ.App.-Houston [14th Dist.] 1981, no writ); Green Light Co. v. Moore, 485 S.W.2d 360, 364 (Tex.Civ.App.-Houston [14th Dist.] 1972, no writ) (reply brief filed two days before oral argument).

The City has not assigned as error any grounds upon which we may reverse the trial court’s order. Grounds of error not assigned by points of error or argument are waived and may not be grounds for reversal. San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209-10 (Tex.1990); Central Educ. Agency v. Burke, 711 S.W.2d 7, 8-9 (Tex.1986).

We accordingly overrule the City’s points of error.

We affirm the order denying temporary injunction.

Justices O’CONNOR and HEDGES also sitting.

	Footnotes
1		The Honorable Sam H. Bass, Retired Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.