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At a Glance:
Title:
Continental Cas. Ins. Co. v. Functional Restoration Associates
Date:
April 6, 2000
Citation:
19 S.W.3d 393
Court:
Texas Supreme Court
Status:
Published Opinion

Continental Cas. Ins. Co. v. Functional Restoration Associates

Supreme Court of Texas.

CONTINENTAL CASUALTY INSURANCE COMPANY, Petitioner,

v.

FUNCTIONAL RESTORATION ASSOCIATES, the Texas Workers’ Compensation Commission, Respondents.

No. 98–0479.

|

Argued Jan. 13, 1999.

|

Decided April 6, 2000.

|

Rehearing Overruled July 6, 2000.

Attorneys & Firms

*395 Jane Lipscomb, James Michael Loughlin, Austin, for Petitioner.

David A. Talbot, Jr., Don Walker, Austin, for Respondent.

Opinion

Justice O’NEILL joined, and in Part III of which Justice GONZALES joined.

In this case we determine whether Continental Casualty Insurance Co. (“Continental”) is entitled to judicial review of a medical benefits decision by the Texas Workers’ Compensation Commission’s Hearings Division. The trial court dismissed Continental’s suit for want of jurisdiction. The court of appeals reversed, holding that although the Texas Workers’ Compensation Act does not confer a statutory right to judicial review of medical benefits disputes, Continental has an inherent right to judicial review. 964 S.W.2d 776. Because we conclude that Continental has no statutory right to judicial review and failed to plead a right to inherent judicial review, we reverse the court of appeals’ judgment and affirm the district court’s judgment dismissing the suit.

I

James Hood suffered an on-the-job injury compensable under the Workers’ Compensation Act. At the time, Continental was the workers’ compensation insurance carrier for Hood’s employer. Hood received medical treatment for his injury from Functional Restoration Associates (“FRA”) and Productive Rehabilitation Institute of Dallas for Ergonomics (“PRIDE”). Continental returned a request-for-preauthorization form to PRIDE, stating “[reasonable and] necessary as related to injury will defer to MEO Dr. to determine necessity.”1 After treatment *396 began, Continental received a medical opinion that the treatments were not necessary. Continental then informed FRA and PRIDE that it would not authorize treatment, and refused payment.

In response, FRA and PRIDE requested medical dispute resolution from the commission. See 413.031(d). The hearing officer ordered Continental to pay the medical bills.

Continental filed suit in Travis County district court seeking judicial review of the commission’s decision. After the trial court requested briefing on jurisdiction, the commission entered a plea to the jurisdiction. The trial court granted the plea and dismissed the suit. The court of appeals reversed, holding that, although the Workers’ Compensation Act does not confer a right to judicial review of medical benefits disputes, Continental has an inherent right to judicial review of the agency decision because the commission proceedings affected a vested property right. 964 S.W.2d 776. Both Continental and the commission filed petitions for review.

II

There are four types of benefits available to injured workers under the Texas Workers’ Compensation Act: medical, income, death, and burial. See Lumbermens Mut. Cas. Co. v. Manasco, 971 S.W.2d 60, 61 (Tex.1998).

Although these procedures generally govern benefits dispute resolution, the Act also provides a different dispute resolution procedure for certain types of medical benefits disputes. These procedures are described in Chapter 413, entitled “Medical Review.” id. § 408.027(d).

*397 An APA hearing is an adversarial, trial-type proceeding. The decision of the hearing officer in a id. § 402.073(b). Chapter 413 does not state whether a hearing officer’s decision is subject to judicial review. The question presented is whether Continental is entitled to judicial review of the hearing officer’s decision regarding its medical benefits dispute. Continental, joined by FRA and PRIDE,4 argues that it has such a right under the Workers’ Compensation Act, or, alternatively, that it has an inherent right to judicial review. The commission, on the other hand, contends that Continental has neither a statutory nor an inherent right to judicial review. We hold that Continental does not have a statutory right to judicial review. Further, without deciding whether Continental has a constitutional due process right to judicial review of the commission’s order, we conclude that Continental failed to plead such a right in the district court. Therefore, we hold that the district court properly granted the plea to the jurisdiction.

III

It is well recognized under Texas law that there is no right to judicial review of an administrative order unless a statute provides a right or unless the order adversely affects a vested property right or otherwise violates a constitutional right. See Firemen’s & Policemen’s Civil Serv. Comm’n of Fort Worth v. Kennedy, 514 S.W.2d 237, 239 (Tex.1974). Therefore, the first inquiry is whether the Texas Workers’ Compensation Act provides Continental a statutory right to judicial review. Although such a determination would seem to be easy, its difficulty is revealed by the fact that, until this litigation arose, the commission itself believed that judicial review was available.5 The lower courts concluded that the Act does not provide a statutory right to judicial review in this case. We agree.

A

Continental initially contends that Section 410.255 is entitled “Judicial Review of Issues Other Than Compensability or Income or Death Benefits,” and states that:

(a) For all issues other than those covered under Section 410.301(a), judicial review shall be conducted in the manner provided for judicial review of a contested case under Subchapter G, Chapter 2001, Government Code [the APA].

TEX. section 410.255 grants it a right to judicial review to be conducted in the manner provided for judicial review of a contested case under the APA.

*398 Our objective in construing a statute is to determine and give effect to the Legislature’s intent. See section 410.255 simply prescribes the manner of judicial review.

Continental argues that the plain language of TEX. LAB.CODE § 410.002. It further provides that, except as otherwise provided by Chapter 410, the APA does not apply to Chapter 410. See id. § 410.003. Subchapters B, C, D, and E govern benefit review conferences, arbitration, contested case hearings, and appeals panel proceedings, respectively. Subchapter F follows, and is entitled “Judicial Review—General Provisions.” Subchapter G is entitled “Judicial Review of Issues Regarding Compensability or Income or Death Benefits” and includes section 410.301(a), which states that “[j]udicial review of a final decision of a commission appeals panel regarding compensability or eligibility for or the amount of income or death benefits shall be conducted as provided by this subchapter.” Id. § 410.301(a).

Section 410.251, entitled “Exhaustion of Remedies,” provides:

A party that has exhausted its administrative remedies under this subtitle and that is aggrieved by a final decision of the appeals panel may seek judicial review under this subchapter [subchapter F] and Subchapter G, if applicable.

Id. section 410.301.

Thus, 410.255 do not apply.

Continental contends that section 410.301 (compensability, income, or death benefits), regardless of whether the party received appeals panel review. Continental contends that this legislative intent became somewhat obscured by the 1993 codification, which reorganized the judicial review provisions.

We recently held that, when the language of a code provision is clear and unambiguous, it controls even though it was enacted as part of the Legislature’s ongoing statutory revision and even though it may effect a change in the law. See 410.255 is unambiguous, we need not look to the prior law in determining legislative intent; instead, we may presume that the Legislature intended the plain meaning of its words. See id.

But even considering the prior law, our conclusion remains unchanged. The precodification statutes read:

CHAPTER F. JUDICIAL REVIEW OF COMMISSION DECISIONS

SECTION 6.61. JUDICIAL REVIEW; PROCEDURES. (a) A party that has exhausted its administrative remedies under this Act and is aggrieved by a final decision of the appeals panel may seek judicial review under this chapter by filing suit not later than the 40 th day after the date on which the decision of the appeals panel was filed with the division of hearings.

....

SECTION 6.62. TRIAL OF ISSUES REGARDING COMPENSABILITY OR INCOME OR DEATH BENEFITS ON A WORKERS’ COMPENSATION CLAIM. (a) Judicial review of a final decision of a commission appeals panel regarding compensability or eligibility for or the amount of income or death benefits shall be conducted as provided by this section.

(b) A trial under this section shall be limited to issues decided by the commission appeals panel and on which judicial review is sought....

....

SECTION 6.63. COURT APPROVAL OF SETTLEMENTS REQUIRED. (a) After judicial review of an award is sought and until the entry of judgment by the trial court, any settlement made by the parties must be approved by the trial court....

....

SECTION 6.64. JUDICIAL REVIEW OF ISSUES OTHER THAN COMPENSABILITY OR INCOME OR DEATH BENEFITS. (a) For all issues other than those covered under Section 6.62(a) of this Act, judicial review shall be conducted in the manner provided for judicial review of a contested case under Section 19, [APA]....

(b) Judicial review conducted under this section is governed by the substantial evidence rule.

Act of Dec. 11, 1989, 71 st Leg., 2d C.S., ch. 1, 1989 Tex. Gen. Laws 1, 60–62, repealed by Act of May 12, 1993 73 rd Leg., R.S., ch. *400 269, § 5(2), 1993 Tex. Gen. Laws 1273. Subsection 6.61(a) became section 410.255 contains no such language.

Continental also points to the legislative history of the Act. Continental argues that the debate over judicial review “was not whether to grant the right of judicial review of administrative decisions, but rather whether those cases would be tried to a jury under the preponderance of the evidence standard or limited to the substantial evidence threshold.” Workers’ compensation reformers wanted to eliminate de novo review of commission decisions, whereas opponents of the bill wanted to retain it. In the end, Continental contends, the judicial review provisions in Chapter 410 were a compromise, allowing modified de novo review for some benefits issues (compensability, income benefits, and death benefits), and substantial evidence review for others, including medical benefits disputes.6

Although presenting a closer case than the current statute, the prior law is not so clearly in Continental’s favor as Continental asserts. The legislative history never expressly states that medical benefits disputes arising in the Division of Medical Review may receive judicial review. Nor does it state that disputes not proceeding through the appeals panel may be reviewed under section 410.255 provides the manner of judicial review, but does not grant a right of judicial review, of appeals panel decisions on issues other than compensability, income benefits, or death benefits.

B

Continental next argues that Section 413.031(d) states:

A party to a medical dispute that remains unresolved after a review of the medical service under this section is entitled to a hearing. The hearing shall be conducted by the State Office of Administrative Hearings within 90 days of receipt of a request for a hearing in the manner provided for a contested case *401 under Chapter 2001, Government Code (the administrative procedure law).

TEX. GOV’T CODE § 2001.171.

Continental argues that, construed together, section 401.021 similarly provides that commission hearings are “governed by” the APA, meaning that the APA provisions on judicial review apply. We disagree.

When viewed in the context of the entire Act, the function of TEX. LAB.CODE § 407.066(b) (“A party aggrieved by a decision of the director is entitled to judicial review.”).

Our conclusion that section 401.021 does not provide a right to judicial review.

C

Last, Continental argues that the APA, GOV’T CODE § 2001.171. Because it has exhausted all its administrative remedies and is aggrieved by a final decision in a contested case, Continental contends it is entitled to judicial review under the APA.

Relying on its own decisions, the court of appeals held that the APA provisions regarding judicial review apply only when another statute grants a right to judicial review. Southwest Airlines Co. v. Texas High–Speed Rail Auth., 867 S.W.2d 154, 158 (Tex.App.—Austin 1993, writ denied), which held that the APA itself does not grant a right to judicial review). Although we have never decided this issue, we hold that Continental has waived its challenge to this holding by failing to raise it below. More importantly, Continental expressly waived this argument in the trial court. At the hearing on the commission’s plea to the jurisdiction, Continental stated, “[W]e don’t argue that APTRA [now APA] provides an independent source of judicial review. We agree with the Foy case, that is a correct reading of the law.” Accordingly, we do not reach the merits of this argument.

D

In sum, we hold that the Workers’ Compensation Act does not provide Continental a statutory right of judicial review. 410.255 do not apply.

Further, the Legislature did not expressly grant a right to judicial review of hearings conducted under section 413.031, although it did so with regard to APA hearings on other issues. The Legislature’s inclusion of an express right to judicial review for some contested case hearings suggests that the Legislature did not intend judicial review when it did not expressly provide for it.

Under Continental’s position, the Legislature did not need to grant an express right to judicial review in section 410.255 is small, but it includes at least such issues as spinal-surgery second-opinion disputes8 and attorney’s fees, both of which are related to an insurer’s liability for compensation for injury or death. Thus, a right to judicial review need not be implied.

The dissent relies heavily on the fact that Senator John Montford, the Act’s primary sponsor, has written that 410.301, requiring appeals panel review for both.

If the Legislature intended City of Amarillo v. Hancock, 150 Tex. 231, 239 S.W.2d 788, 791 (1951) (“[T]he courts should carefully restrict their jurisdiction to that clearly granted or necessarily implied from the Constitution and specific acts of the legislature.”). Thus, applying the plain language of the Act, as we are bound to do, we hold that Continental has no statutory right to judicial review.

IV

Continental contends that, even if it has no statutory right to judicial review, it has an inherent right to judicial review under *404 due process. The court of appeals concluded that Continental has an inherent right to judicial review because the commission proceedings adversely affected a vested property right—Continental’s money—and therefore the district court improperly granted the commission’s plea to the jurisdiction. 964 S.W.2d at 782.

When the Legislature remains silent or denies a right of judicial review, administrative decisions may nevertheless be attacked in court if they adversely affect a vested property right or otherwise violate some provision of the State or Federal Constitution. See Rosow v. City of San Antonio, 734 S.W.2d 659, 660–61 (Tex.1987). Because Continental’s petition in the district court did not allege an inherent constitutional right to judicial review as a basis for jurisdiction, but instead only alleged an invalid statutory basis for judicial review, we hold that the district court properly granted the commission’s plea to the jurisdiction on the only ground asserted.

In reviewing the trial court’s dismissal based on the commission’s plea to the jurisdiction, we examine the plaintiff’s pleadings to determine whether the plaintiff has affirmatively shown that the trial court had subject matter jurisdiction. See Tex. Gov’t Code Ann. § 2001.171 [the APA]....” In support of its claim, Continental’s petition states that the Commission’s:

findings, inferences, and conclusions, and decisions are unlawful and improper because of one or more of the following:

1. The Commission’s decision is not supported by substantial evidence considering the reliable and probative evidence in the record as a whole;

2. The Commission’s decision is arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

The petition makes no mention of an “inherent right to review” or a “due process” right to review, nor does it otherwise invoke any right to review based on the Constitution.

The Third Court of Appeals concluded that Continental’s use of the term “arbitrary and capricious” was sufficient to invoke its right to judicial review under the due process clause. Carrizales v. Texas Department of Protective and Regulatory Services, 5 S.W.3d 922, 925 (Tex.App.—Austin 1999, pet. denied), the appellant argued that his allegations, which were identical to the allegations Continental made in this case, supported his claim for inherent judicial review. The Third Court of Appeals held, without distinguishing Continental, that the allegations only supported the appellant’s claim for judicial review under the APA and did not inform the trial court that the appellant was asserting an independent constitutional right to judicial review. Accordingly, the court of appeals *405 held that the district court properly dismissed the case for want of jurisdiction on the only ground asserted. See id.

Section 2001.174 of the APA provides the grounds under which a court may reverse or remand an agency decision. TEX. GOV’T CODE § 2001.174. It states that a court reviewing an agency decision:

(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

....

(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Id. § 2001.174(2)(E),(F).

As noted, Continental alleged a right to judicial review under the Workers’ Compensation Act, section 410.255 of the Workers’ Compensation Act. We have already determined that this is not a valid basis for jurisdiction. And, although Continental clearly had ample opportunity to amend its petition to include a claim for inherent judicial review—as evidenced by its asserting a right to inherent judicial review in its brief in response to the commission’s plea to the jurisdiction and at the hearing on the plea—it never did so.

In sum, Continental’s trial court petition clearly alleges only its right to judicial review conferred by statute; it did not allege an inherent right to judicial review under due process of law. Because Continental expressly waived its right to judicial review under Foy, 896 S.W.2d at 317. Accordingly, we reverse the court of appeals’ judgment and affirm the district court’s judgment dismissing the suit.9

Chief Justice PHILLIPS filed a dissenting opinion in which Justice GONZALES joined, and in which Justice OWEN joined in Part II.

Justice HECHT joined.

Chief Justice PHILLIPS, dissenting.

I agree with the Court’s holding that Continental Casualty does not have a statutory right to judicial review of the Workers’ *406 Compensation Commission’s decision. But I disagree with the Court that Continental waived its constitutional basis for judicial review merely because it neglected to add this claim to its pleadings once this issue was raised in the trial court. This holding not only elevates form over substance, but is contrary to the spirit of established precedent. Therefore, I respectfully dissent.

I

Continental brought this suit to reverse the Commission’s order requiring it to pay for medical services provided by Functional Restoration Associates (“FRA”) and Productive Rehabilitation Institute of Dallas for Ergonomics (“PRIDE”) to James Hood. Continental’s petition stated that Continental sought judicial review “pursuant to Texas Labor Code section 410.255 and an inherent right to judicial review because the Commission’s order adversely affected Continental’s protected property interest. Continental never amended its petition, but the Commission never objected in the trial court to this omission. At the hearing on the plea to the jurisdiction, both the Commission and Continental argued both grounds. The trial court granted the plea and dismissed the suit.

II

A plea to the jurisdiction is a dilatory plea that challenges a court’s subject matter jurisdiction. When a plea to the jurisdiction is granted, the trial court dismisses the suit without prejudice. See Womack v. Allstate Ins. Co., 156 Tex. 467, 296 S.W.2d 233, 237 (1956) (“[W]hen the affidavits or other summary judgment ‘evidence’ disclose facts which render the position of the moving party untenable, summary judgment should be denied regardless of defects which may exist in the pleadings of the [nonmovant].”). Because both Continental’s brief and its oral argument set forth its constitutional jurisdictional argument, error has been preserved.1

III

It is well-established that there is no right to judicial review of an administrative order unless a statute provides one or the order violates some provision of the state or federal constitution. See Schwantz v. Texas Dep’t of Pub. Safety, 415 S.W.2d 12, 15 (Tex.Civ.App.—Waco 1967, writ ref’d) (same).

The key inquiry for determining if Continental has an inherent right to judicial review is whether Continental has a protected property interest that was adversely affected by the Commission’s decision. See Huston v. Federal Deposit Ins. Corp., 663 S.W.2d 126 (Tex.App.—Eastland 1983, writ ref’d n.r.e.)).

In my opinion, Continental meets this burden. The interest at stake is the money Continental was ordered to pay. Continental owns and possesses this money; it therefore has a protected property interest in it. While the property interests protected by due process extend well beyond actual ownership of property, ownership of money is among the core property interests protected by due process. See Fire Dep’t of City of Fort Worth v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664, 666 (1949).

Justice HECHT, dissenting.

Because the Texas Workers’ Compensation Act provides for judicial review of medical benefits issues in section 410.255, I respectfully dissent.

I

James Hood sustained a job-related injury and received treatment from two medical service providers. Hood’s employer’s workers’ compensation insurance carrier, Continental Casualty, refused to pay for these services, contending that they were not medically necessary. The health care providers pursued the matter with the Commission, and the Commission determined that Continental should pay. Continental requested a hearing by the State Office of Administrative Hearings, as it had the right to do under section 413.031(d) of the Labor Code. At the conclusion of that proceeding, Continental was ordered to pay for the medical services provided to Hood. Continental then attempted to appeal to a Travis County district court, but that appeal was dismissed for want of jurisdiction.

The Court concludes that the Workers’ Compensation Act does not provide for judicial review of medical benefits disputes. *409 The Court’s construction of the Act is an unreasonable one. section 410.255 to apply to so few issues.

II

Medical benefits disputes are covered by id. § 413.031(d). The issue before the Court is whether there is a right to judicial review of administrative decisions that result from these hearings.

section 410.301(a)”:

§ 410.255. Judicial Review of Issues Other Than Compensability or Income or Death Benefits

(a) For all issues other than those covered under Section 410.301(a), judicial review shall be conducted in the manner provided for judicial review of a contested case under Subchapter G, Chapter 2001, Government Code [sections 171 et seq. of the Administrative Procedure Act].

(b) Judicial review conducted under this section is governed by the substantial evidence rule.

Id. § 410.255 (emphasis added). Medical benefits issues are “issues other than those covered under § 410.301(a).2

§ 410.255.

The Court does not accept the straightforward meaning of section 410.255 only applies when there has been a final decision from an appeals panel. Since virtually no medical benefits disputes are heard by an appeals panel under the Act, see id. § 413.043, the Court reasons that there is no right to judicial review.

As construed by the Court, the role of section 410.255.

The Court’s erroneous construction of section 410.251 of the Act, which says:

§ 410.251 Exhaustion of Remedies

A party that has exhausted its administrative remedies under this subtitle and that is aggrieved by a final decision of the appeals panel may seek judicial review under this subchapter and subchapter B, if applicable.

Id. § 410.251. The Court views this section as the exclusive grant of judicial review of issues other than those arising under section 410.310(a). That erroneous premise then leads the Court to conclude that unless there has been a decision by an appeals panel, there is no right to judicial review.

But Section 410.251 does not say that judicial review is foreclosed under all other circumstances.

It is apparent that section 410.301(a), is a very different standard.

The Court has also drawn unwarranted conclusions from section 410.255.

The Court’s reliance on §§ 410.002; 410.255. Accordingly, it was necessary to include a separate provision for judicial review when alleged violations of the Act are at issue under Chapter 415.

It is also of no moment that the words used in section 410.255. Although different words are used, both Code provisions make it clear that there is a right of judicial review.

III

The Court’s construction of section 410.255 and its predecessor, article 8308–6.64, that “[j]udicial review conducted under this section is governed by the substantial evidence rule” if the only issues to which the substantial evidence rule could ever apply were attorney’s fees and differing medical opinions about the necessity of spinal surgery? The question of what standard of judicial review should apply was a much-debated, controversial issue when the Legislature was promulgating the Act. The Legislature unquestionably intended for there to be a dichotomy between the standard of review applied to medical benefits issues and the standard of review to be applied to issues regarding compensability, eligibility, and the amount of income or death benefits. The Court’s decision eliminates the significance of that dichotomy.

Interpreting the Act as providing for judicial review of medical benefit disputes is consistent with the writings of Senator Montford, the principal sponsor of the Workers’ Compensation Act. He wrote in his guide to the Act that it created two distinct tracks for review, one for medical benefits disputes and another for other benefits disputes:

In Chapter F of Article 6 are provisions changing the judicial review step of the prior comp law ... to (1) a non-“de novo” and non-APTRA trial by jury (or judge) with respect to issues regarding compensability, income benefits, and/or death benefits, and (2) for all other comp issues/disputes (that is, all not included in the foregoing category (1), such as a medical benefits dispute/issue), an APTRA Section 19 judicial review tried ... without a jury.

1 JOHN T. MONTFORD ET AL., A GUIDE TO TEXAS WORKERS’ COMP REFORM, § 6F.0(a) (1991). This same publication deals more extensively with judicial review in succeeding sections, and repeats at other junctures that former section 6.64(a), recodified as section 410.255, made judicial review “mandatory” for “a medical benefits dispute/issue.” Id. at § 6F.64. Additional references to the availability of judicial review for medical benefits decisions appear throughout Senator Montford’s workers’ comp guide.

I generally am loathe to refer to secondary materials in construing a statute, even *412 when those materials were authored by the primary sponsor of the legislation at issue. See American Fed’n of Gov’t Employees Locals 225, 1504 & 3723 v. Federal Labor Relations Auth., 712 F.2d 640, 647 n. 29 (D.C.Cir.1983)). But in some instances, secondary materials authored by a legislator so clearly reflect the generally accepted, fundamental meaning of a statute that a court should be guided by that interpretation and should not construe the statute in a highly technical and unreasonable manner. This is one of those instances. It seems extremely unlikely that Senator Montford would write as extensively and as matter-of-factly as he has done about judicial review of medical benefits decisions if there were any question about the matter. It seems equally unlikely that Senator Montford’s view of something as basic as judicial review under the Act, which was debated so extensively by the Legislature, could be as far off the mark as the Court concludes.

Senator Montford’s explanation of judicial review of medical benefits issues is entirely consistent with the wording of section 410.255. No one questioned Senator Monford’s view before or after he wrote the workers’ comp guide. There is no indication that when the non-substantive recodification of the Act occurred in 1993,3 Senator Montford or any other member of the Legislature thought that judicial review of medical benefits decisions was unavailable. As the Court explains, even the Commission thought that judicial review of medical benefit disputes was available until it argued to the contrary in this litigation. See 19 S.W.3d 393.

Senator Montford’s guide also discusses the fact that former article 8308–6.64, which is now section 2001.171 of the APA as a prerequisite to judicial review.

The Court’s response to Senator Montford’s writings about the Act is unpersuasive. The Court first says that “Senator Montford’s book deals with the precodification version of the Act rather than the current version.” 19 S.W.3d at 403. As *413 noted above, the current version is a non-substantive codification of the law about which Senator Montford wrote. The Court next discusses early drafts of the Act. See 19 S.W.3d at 403. But Senator Montford’s writings are not addressed to drafts. He wrote in 1991 about the Act as passed by the Legislature in 1989.

Finally, the Court says that “further revisions during codification then expressly tied 410.301. Just the opposite is true.

Notably, section 410.031? The Court does not or cannot say.

* * * * *

The Court recognizes that section 410.255 appears, on its face, to grant a right to judicial review. But the Court declines to give the section that effect. Accordingly, I respectfully dissent. I would hold that the district court had jurisdiction of the appeals by the providers of medical benefits.

Footnotes

1

In its suit for judicial review, Continental seeks review of the hearing officer’s determination that Continental’s response was a preauthorization of the treatment under the Workers’ Compensation Act. Because we consider only whether Continental is entitled to judicial review in the first instance, we express no opinion on the merits of this issue.

2

In fee disputes and preauthorization disputes, the most common issues are medical necessity and reasonableness. But when the carrier denies liability for payment of medical benefits on the basis that the injury is not compensable, the general dispute resolution procedures of Chapter 410 would apply rather than the procedures of section 413.031. See KILPATRICK, 1 TEXAS WORKERS’ COMPENSATION LAW § 22.24[2][b], at 22–67–68 (1993); MONTFORD ET AL., 1 A GUIDE TO TEXAS WORKERS’ COMP REFORM § 4.68(d), at 4–179 (1991).

3

At the time of Continental’s hearing, “APA hearings” were conducted by the commission’s Hearings Division. See 28 TEX. ADMIN. CODE E § 145.1(a) (rules governing these hearings). All hearings conducted on or after January 1, 1996, are conducted by the State Office of Administrative Hearings (SOAH). See 148.1(b).

4

Although FRA and PRIDE are technically aligned with the commission regarding the outcome of the medical benefits dispute, they agree with Continental that judicial review is available.

5

See, e.g., 28 TEX. ADMIN. CODE § 145.23(h) (governing hearings conducted by the commission’s Hearing Division before January 1, 1996) (“A party dissatisfied with a decision of the hearing officer may seek judicial review as provided by the [APA], § 19.”). The commission asserts that section 145.23(h) applies only to contested case hearings for which the Act expressly provides a right of judicial review. In any event, an agency’s rulemaking power cannot validly expand or create district court jurisdiction beyond that given in the Legislature’s own enactments. See Employees Retirement Sys. of Tex. v. Foy, 896 S.W.2d 314, 317 (Tex.App.—Austin 1995, writ denied).

6

Continental argues that this Court correctly interpreted section 410.255 (or at all) was not at issue in Garcia; the statement is dicta, and is not binding.

7

Thus, section 401.021) does not apply to Chapter 410 proceedings.

Relatedly, we disagree with the court of appeals that TEX. LAB.CODE § 410.002.

8

Although preauthorization is not required for spinal surgery, an insurance carrier is generally liable for spinal surgery costs only if the employee obtains a second opinion before surgery. See TEX. LAB.CODE § 408.026(a)(1). When the opinions of the treating doctor and second-opinion doctor conflict, the employee or the carrier may appeal directly to a benefit contested case hearing, and, if necessary, to the appeals panel under Chapter 410. See 28 TEX. ADMIN. CODE § 133.206(k). These disputes proceed through Chapter 410 because they are benefits disputes, but they do not fall under the medical benefits dispute resolution procedures of Chapter 413, which apply only to preauthorization disputes and fee disputes for services already rendered.

9

Because of our disposition, we need not address the court of appeals’ holding regarding the timeliness of Continental’s petition under 964 S.W.2d at 782–83.

1

The Court’s reliance on Id. at 925.

2

Parties to a medical benefits dispute under Barron v. Board of Trustees of the Policemen’s Pension & Relief Fund, 176 W.Va. 480, 345 S.E.2d 779, 782 (1985).

1

Section 413.031 provides in pertinent part:

§ 413.031. Medical Dispute Resolution

(a) A party, including a health care provider, is entitled to a review of a medical service provided or for which authorization of payment is sought if a health care provider is:

(1) denied payment or paid a reduced amount for the medical service rendered;

(2) denied authorization for the payment for the service requested or performed if authorization is required by the medical policies of the commission; or

(3) ordered by the division to refund a payment received for a medical service rendered.

* * * * * *

(c) A review of a medical service under this section shall be provided by a health care provider professional review organization if requested by the health care practitioner or if ordered by the commission.

(d) A party to a medical dispute that remains unresolved after a review of the medical service under this section is entitled to a hearing. The hearing shall be conducted by the State Office of Administrative Hearings within 90 days of receipt of a request for a hearing in the manner provided for a contested case under Chapter 2001, Government Code (the administrative procedure law).

TEX. LAB.CODE § 413.043.

2

LAB.CODE § 410.301(a).

3

The 1993 revisions reflect that they were intended to be non-substantive:

§ 1.001. Purpose of Code

(a) This code is enacted as a part of the state’s continuing statutory revision program, begun by the Texas Legislative Council in 1963 as directed by the legislature in the law codified as Section 323.007, Government Code. The program contemplates a topic-by-topic revision of the state’s general and permanent statute law without substantive change.

(b) Consistent with the objectives of the statutory revision program, the purpose of this code is to make the law encompassed by this code more accessible and understandable, by:

(1) rearranging the statutes into a more logical order;

(2) employing a format and numbering system designed to facilitate citation of the law and to accommodate future expansion of the law;

(3) eliminating repealed, duplicative, unconstitutional, expired, executed, and other ineffective provisions; and

(4) restating the law in modern American English to the greatest extent possible.

TEX. LABOR CODE § 1.001(a).

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