Court of Appeals of Texas, Beaumont.
INSURANCE COMPANY of the State of Pennsylvania, Relator,
v.
The Honorable David V. WILSON, Respondent.
No. 09-97-239 CV.
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Submitted on Sept. 11, 1997.
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Decided Nov. 20, 1997.
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Rehearing Overruled December 11, 1997
Before WALKER, C.J., BURGESS and STOVER, JJ.
OPINION
PER CURIAM.
Original Proceeding
*1 This mandamus proceeding arises out of an appeal by the Relator, Insurance Company of the State of Pennsylvania, from a decision of the Workers’ Compensation Commission, which determined that Roger Langford, deceased, was injured by an occupational illness he contracted while working in Kuwait following the Gulf War. Christine Langford substituted as defendant when Roger Langford died. Relator’s mandamus complaint is that the Honorable David V. Wilson (Respondent), presiding judge of the 217th Judicial District Court of Angelina County, committed errors of law and abused his discretion by disallowing on appeal any discovery of evidence which was not elicited during the workers’ compensation administrative proceedings. Specifically, Relator requests this appellate court to direct Respondent to, inter alia, “permit fact and expert discovery as though there had been no intervening agency action” and to “allow fact and expert testimony and evidence in the trial court as though there had been no intervening agency action.”
The Texas Workers’ Compensation Commission (TWCC), by and through the office of the Attorney General, intervened in the present cause pursuant to the Texas Workers’ Compensation Act, which authorizes TWCC to intervene in any judicial proceeding for judicial review of a final decision of a TWCC Appeals Panel. Tex. Lab.Code Ann. § 410.254 (Vernon 1996). Thus, TWCC is a party in interest to this mandamus proceeding.
BACKGROUND TO MANDAMUS REVIEW
On January 3, 1997, Judge Wilson signed an Order denying Relator’s Motion to Compel Execution of Medical Authorization. On June 4, 1997, Judge Wilson signed an Order denying Plaintiff’s Motion to Reconsider. In this June 4 Order, Judge Wilson not only reiterated his denial of Relator’s request for medical authorization, but additionally determined:
IT IS ORDERED THAT: (1) expert witnesses whose reports or testimony were not presented in the administrative phase of this proceeding cannot be presented in the trial de novo; (2) the discovery procedures before the Workers’ Compensation Commission preempts the Rules of Civil Procedure regarding discovery; and (3) any defense that has not been raised before the administrative agency will not jurisdictionally be before this trial court.
In the present case, Relator sought further discovery following the Commission’s final decision in an effort to bring forth for judicial review the question of solecause. At the Commission level, Relator contended the injury did not occur in the course and scope of claimant’s employment with the insured employer. In the district court lawsuit, Relator contends the general defense of non-compensability at the Commission level encompasses the sole cause defense, though sole cause was not specifically raised before the Commission.
Real Party in Interest, Mrs. Langford, contends that failure to specifically raise sole cause before the Commission bars the issue from judicial review and no new discovery may be had on such point.
*2 The question of whether the general rule that no new defenses and no new issues may be raised for the first time on appeal from the Commission’s ruling prohibits Relator from pleading the sole cause defense, presenting evidence on the sole cause defense and submitting jury questions on the sole cause defense, are matters to be decided by appeal, not mandamus.
Nevertheless, we believe, and hold, that the requested discovery (the medical authorization) may be reasonably calculated to lead to admissible evidence on issues determined by the Commission. Therefore, Judge Wilson abused his discretion in signing the January 3, 1997 order denying Relator’s Motion to Compel Execution of Medical Authorization. Thus we conditionally grant mandamus should his honor fail to withdraw the Orders of January 3, 1997 and June 4, 1997.1
WRIT CONDITIONALLY GRANTED.
Footnotes |
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1 |
Actually when Judge Wilson grants Relator’s motion, the orders of January 3, 1997 and June 4, 1997 will be rendered moot. |
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