Court of Appeals of Texas, Dallas.

WAUSAU UNDERWRITERS INSURANCE COMPANY, Appellant,

v.

Patricia GARCIA, Daniel Antonio Garcia, Desiderio Garcia, Antonio Carrillo Garcia, and Manuel Garcia, Beneficiaries to Daniel Garcia, Deceased, Appellees.

No. 05-99-01413-CV.

|

May 15, 2000.

Before Justices KINKEADE, MORRIS, and ROACH.

OPINION

ROACH.

*1 In this workers’ compensation case, Wausau Underwriters Insurance Company appeals the trial court’s summary judgment reversing a final decision of the Texas Workers’ Compensation Commission on the compensability of Daniel Garcia’s fatal heart attack. Wausau argues the trial court erred in concluding that: (1) Wausau waived its right to contest the compensability of Garcia’s heart attack, and (2) the heart attack was compensable. Because we agree appellees did not meet their summary judgment burden on the waiver issue, and because appellees offered no summary judgment evidence on the compensability of Garcia’s heart attack, we reverse the trial court’s judgment and remand the cause to the trial court for further proceedings.

Appellees are beneficiaries of Daniel Garcia. They seek death benefits under the Texas Workers’ Compensation Act for Garcia’s fatal heart attack on November 7, 1994. After Wausau denied appellees’ claim, the case proceeded through the administrative channels available for contested cases. Ultimately, an appeals panel of the Texas Workers’ Compensation Commission denied appellees’ claim concluding: (1) Wausau had not waived its right to contest the compensability of Daniel Garcia’s heart attack, and (2) the heart attack was not compensable.

Appellees filed a petition in district court to set aside the appeals panel decision. They later moved for summary judgment on the grounds that: (1) Garcia sustained a compensable heart attack, and (2) Wausau waived its right to contest the compensability of Garcia’s heart attack because its notice of refusal contesting compensability was insufficient under the workers’ compensation act and commission rules. The trial court granted appellees’ motion. This appeal followed.

Generally, a carrier is liable for benefits under the workers’ compensation act if an employee’s injury or death arose out of and in the course and scope of his employment. Tex.Lab.Code Ann. § 406.031(a)(2) (Vernon 1996). A benefit claim involving a heart attack, however, is subject to additional compensability requirements. See Tex.Lab.Code Ann. § 408.008 (Vernon 1996). A heart attack is compensable under the Act only if: (1) it occurs at definite time and place and is caused by a specific event occurring in the course and scope of employment; (2) the preponderance of the medical evidence indicates the employee’s work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor to the heart attack; and (3) the heart attack was not triggered solely by mental or emotional stress, unless it was precipitated by a sudden stimulus. Id.

A carrier refusing to pay a claim for benefits must provide the claimant and the commission with written notice specifying the grounds for its refusal. See Tex.Lab.Code Ann. §§ 409.021(a)(2) & 409.022(a) (Vernon 1996). The carrier’s notice of refusal, presented on a form known as a “TWCC-21,” must provide a “full and complete statement of the grounds for the carrier’s refusal to begin payment of benefits.” 28 Tex.Admin.Code § 124 .6(a) & (a)(9) (West 1999). Explanations merely stating a conclusion such as, ‘liability is in question,’ ‘compensability in dispute,’ ‘no medical evidence received to support disability,’ or ‘under investigation,’ do not satisfy the requirements of this rule. Id.

*2 The carrier’s defenses to compensability in all subsequent claim proceedings are limited to the grounds listed in its notice of refusal, unless the defense is based on newly discovered evidence that could not have been discovered earlier. Tex.Lab.Code Ann. § 409.022(b) (Vernon 1996). If a carrier does not contest compensability within sixty days after receiving notification of the injury, it waives the right to contest the compensability of the injury. Tex.Lab.Code Ann. § 409.021(c) (Vernon 1996).

On appeal, Wausau contends its notice of refusal was sufficient to allow it to contest the compensability of Garcia’s heart attack. Additionally, Wausau argues appellees’ failure to meet their summary judgment burden with respect to the waiver issue also precluded the trial court from concluding Garcia’s heart attack was compensable as a matter of law because appellees offered no summary judgment evidence on the compensability of Garcia’s heart attack.

Appellees concede the trial court’s ruling that Garcia sustained a compensable heart attack rests solely on the trial court’s determination that Wausau did not sufficiently dispute compensability in its TWCC-21.¹ Therefore, the narrow issue before us is whether the explanation contained on Wausau’s TWCC-21 for denying appellees’ claim constitutes statutorily sufficient notice to permit Wausau to contest compensability.²

Wausau’s TWCC-21 provided the following reason for denying the claim: “There is no medical evidence at this time that Mr. Garcia [sic] alleged heart attack and death was substantially contributed to be [sic] his work, rather than the natural progression of a pre-existing heart condition. Claimant’s widow has been advised of her right to request a benefit review conference if she does not agree with our current position.” The commission appeals panel, while acknowledging the TWCC-21 was not artfully worded, determined a fair reading revealed sufficient grounds for contesting compensability on the basis that Garcia’s heart attack was caused by heart disease rather than by his work. Specifically, the panel noted the language regarding the “natural progression of a pre-existing heart condition” tracked a portion of the statutory language addressing the compensability of heart attacks. See Tex.Lab.Code Ann. § 408.008(2) (Vernon 1996).

Although few courts have directly addressed the sufficiency of a carrier’s notice disputing compensability under the above statutes and rules, there are a significant number of appeals panel decisions that are instructive on the issue. We note at the outset appeals panels have consistently held there are no magic words a carrier must use in its TWCC-21 to contest the compensability of an injury. See Texas Workers’ Compensation Fund v. Simon, 980 S.W.2d 730, 734 (Tex.App.-San Antonio 1998, no pet.). Instead, the appeals panels look to a fair reading of the reasoning listed to determine if the notice of refusal is sufficient. Texas Workers’ Compensation Appeal No. 93326, 1993 WL 212294 at *2 (June 10, 1993). The pivotal inquiry is whether when read as a whole, whether any of the reasons listed would be a defense to compensability that could prevail in a subsequent proceeding. See Texas Workers’ Compensation Commission Appeal No. 94977, 1994 WL 501008 at *3 (September 6, 1994); Texas Workers’ Compensation Appeal No. 950703, 1995 WL 419869 at *2 (June 20, 1995).

*3 Wausau’s notice of refusal, although hardly a model of clarity, does focus on a statutorily defined requirement for the compensability of heart attacks. Under section 408.008, medical evidence is necessary to establish the heart attack was caused by the employee’s work rather than the natural progression of a preexisting heart condition or disease. See Tex.Lab.Code Ann. § 408.008(2) (Vernon 1996). The lack of sufficient medical evidence demonstrating Garcia’s work was a substantial factor in bringing about his heart attack would therefore be a defense to compensability in this case. Unlike the explanations deemed insufficient in rule 124.6(a)(9), and those held insufficient in other appeals panels cases, Wausau’s notice of refusal goes beyond stating a general conclusion that it was disputing the claim or that it did not have enough information to decide whether the claim was compensable.

Wausau’s notice indicating “no medical evidence” must be read together with the statutory language it recites. When read in its entirety, Wausau’s notice disputed whether Garcia’s heart attack was work-related and at least implied the attack resulted from a preexisting heart condition. Moreover, in contrast to claims involving other types of injuries, section 408.008 specifically frames the causation issue in heart attack cases. The question becomes whether work or a preexisting heart condition or disease caused the attack. The answer depends on the medical evidence presented. Where, as here, a carrier’s notice of refusal can be read to assert a denial based on the absence of evidence of a statutory element needed for compensability, we cannot conclude the notice is insufficient as a matter of law.

Having failed to establish Wausau’s notice of refusal was insufficient as a matter of law, appellees are not entitled to summary judgment on the basis that Wausau’s waived compensability. Absent waiver, there is no basis for us to conclude that Garcia’s heart attack was compensable as a matter of law. We therefore reverse the trial court’s judgment and remand the cause for further proceedings.

	Footnotes
1		Wausau filed its first TWCC-21 on December 13, 1994. It then filed a second TWCC-21 on January 12, 1995. This appeal concerns only the December 13 TWCC-21. All references to Wausau’s TWCC-21 refer to the form filed on December 13.
2		We note the trial court’s order granting summary judgment states Wausau “did not timely, properly, and sufficiently dispute the compensability of the fatal heart attack suffered by Daniel Garcia, on November 7, 1994….” At oral argument, the Court questioned whether appellant challenges the trial court’s ruling that its TWCC-21 was not timely filed. Appellees conceded at oral argument that Wausau’s December 13th TWCC-21 was filed before the sixty-day deadline. After reviewing the record and applicable case law, we are satisfied that the timeliness issue was not a distinct basis for the trial court’s ruling but merely an aspect of the overall determination that Wausau had failed to preserve its right to contest compensability. In other words, if the language in Wausau’s TWCC-21 does not comply with the specificity requirements, Wausau would not have timely contested compensability, even if its TWCC-21 was filed before the sixty-day deadline expired.