This appeal arises pursuant to the Texas Workers’ Compensation Act, Tex. Lab. Code Ann. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 25, 2021, and May 24, 2021, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ). The ALJ resolved the disputed issues by deciding that: (1) the decedent, (claimant), did sustain a compensable injury, in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death; (2) the respondent (claimant beneficiary) is a proper legal beneficiary of the decedent, thus the claimant beneficiary is entitled to death benefits; and (3) the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86. The appellant (self-insured) appealed, disputing the ALJ’s determinations. The claimant beneficiary responded, urging affirmance of the disputed determinations.

DECISION

Reversed and remanded.

The evidence reflected that the decedent had been employed with the self-insured for 27 years and worked as a deputy sheriff detention officer in the Annex building of the (county) County Jail. The claimant beneficiary testified that the decedent began to have a dry cough and was tested for coronavirus 2019 (COVID-19) on (date of injury). The decedent’s condition rapidly deteriorated and he passed away at his house on the morning of April 30, 2020. The COVID-19 test yielded a positive result. Additionally, an autopsy report in evidence dated April 30, 2020, concluded that the decedent died as a result of complications of COVID-19, with hypertension and cardiomegaly contributing.

At issue was whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death. The ALJ reconvened the hearing on May 24, 2021, in order to take evidence and testimony regarding the applicability of Section 607.054 of the Texas Government Code. The self-insured argued in its appeal that the admission of new evidence and testimony at the May 24, 2021, CCH was improper. Rulings on evidentiary matters are reviewed under an abuse-of-discretion standard and the Appeals Panel will not disturb the ALJ’s ruling on a continuance absent an abuse of discretion.  Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.—San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the ALJ acted without reference to any guiding rules or principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex.1986).  Considering the facts of this case, we find no abuse of discretion in the ALJ’s reconvening the hearing and admission of evidence.

COMPENSABILITY

Section 401.011(34) provides that “occupational disease” means a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body, including a repetitive trauma injury. The term includes a disease or infection that naturally results from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease. Expert medical testimony is necessary to establish the cause of the disease. See generally Houston General Insurance Company v. Pegues, 514 S.W.2d 492 (Tex. Civ. App.—Texarkana 1974, writ ref'd n.r.e.), Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980).  The question in this case is whether there is a causal connection between COVID-19 and the decedent’s employment as established by medical evidence. 

Section 607.054 of the Government Code provides, in part, that a firefighter, peace officer, or emergency medical technician who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter, peace officer, or emergency medical technician, that results in death or total or partial disability is presumed to have contracted the disease or illness during the course and scope of employment as a firefighter, peace officer, or emergency medical technician. In her discussion of the evidence the ALJ stated that the claimant beneficiary satisfactorily met the requirements of Section 607.054 of the Government Code by proving that COVID-19 is a disease or illness of the lungs or respiratory tract and proving that there is a statistically positive correlation between COVID-19 and the decedent’s employment. We disagree. Although the articles in evidence discuss a prevalence of COVID-19 in police officers, the evidence in the record is insufficient to prove a statistically positive correlation between the decedent’s COVID-19 infection and his service as a detention officer. In addition, Senate Bill (S.B.) 22 of the 87th Leg., R.S. (2021) added a subsection (b) to Section 607.054 of the Government Code which provides this section does not apply to a claim that a firefighter, peace officer, or emergency medical technician suffers from severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) or COVID-19.

S.B. 22 provided an additional section to specifically cover SARS-CoV-2 and COVID-19 for detention officers, custodial officers, firefighters, peace officers, and emergency medical technicians. Section 607.0545(a) of the Government Code provides, in pertinent part, that a detention officer who suffers from COVID-19 that results in death or total or partial disability is presumed to have contracted the virus or disease during the course and scope of employment as a detention officer if the detention officer is: (1) employed in the area designated in a disaster declaration by the governor under Section 418.014 of the Government Code or another law and the disaster is related to COVID-19; and (2) contracts the disease during the disaster declared by the governor described above. On March 13, 2020, the governor declared a state of disaster in Texas due to COVID-19.

Section 607.0545(b) of the Government Code provides, in pertinent part, the presumption only applies to specified persons including a detention officer employed on a full-time basis who is diagnosed with COVID-19 using a test authorized, approved, or licensed by the United States Food and Drug Administration. See Section 607.0545(b)(1) and (2)(A) of the Government Code. Section 607.0545(b)(2)(B) of the Government Code reflects that the presumption would apply to a deceased person who is diagnosed by a test authorized, approved, or licensed by the United States Food and Drug Administration (Section 607.0545(b)(2)(A) of the Government Code) or by another means, including by a physician. Section 607.0545(b)(3)(B)(iv) of the Government Code further provides, in pertinent part, that the presumption only applies to a detention officer who was last on duty not more than 15 days before the person died if COVID-19 was a contributing factor in the person’s death.

Section 607.058(a) of the Government Code provides, in part, that the presumption established in Section 607.0545 of the Government Code is rebuttable. Section 607.058(b) of the Government Code provides, in pertinent part, that any rebuttal offered must include a statement by the person offering the rebuttal that describes, in detail, the evidence that the person reviewed before making the determination that a cause not associated with the individual’s service as a detention officer was a substantial factor in bringing about the individual’s disease or illness without which the disease or illness would not have occurred.

Section 607.058(c) of the Government Code provides, in pertinent part, that an ALJ in addressing an argument based on a rebuttal shall make findings of fact and conclusions of law that consider whether a qualified expert, relying on evidence-based medicine, stated the opinion that, based on reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the individual’s service as a detention officer was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not have occurred. Section 607.058(d) of the Government Code provides, in pertinent part, that a rebuttal to a presumption under Section 607.0545 of the Government Code may not be based solely on evidence relating to the risk of exposure to COVID-19 of a person with whom a detention officer resides.

S.B. 22 provides that a person subject to Section 607.0545 of the Government Code who on or after the date the governor declared a disaster under Chapter 418 of the Government Code relating to COVID-19 but before the effective date of S.B. 22, contracted COVID-19, may file a claim for benefits related to COVID-19 on or after the effective date of S.B. 22 regardless of whether the claim is otherwise considered untimely and the changes in law made by S.B. 22 apply to that claim.

The ALJ in this case incorrectly determined that the presumption set forth in Section 607.054 of the Government Code applied to this claim. However, S.B. 22 makes clear that the presumption set forth in Section 607.0545 of the Government Code applies to claims, like the one in the instant case, that were pending at the time the law went into effect. S.B. 22 became effective on June 14, 2021, a date after the CCH was held and a decision was issued in this case. Because this claim was pending at the time S.B. 22 went into effect, we reverse the ALJ’s determination that the decedent did sustain a compensable injury in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death, and we remand this issue back to the ALJ for further action consistent with this decision.

On remand, the ALJ is to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code and make a determination of whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death.

PROPER LEGAL BENEFICIARY AND DEATH BENEFITS

As we have reversed and remanded the compensability issue in this case, we also reverse the ALJ’s determination that the claimant beneficiary is a proper legal beneficiary of the decedent, thus entitling her to death benefits, and we remand this issue back to the ALJ for further action consistent with this decision.

BURIAL BENEFITS

As we have reversed and remanded the compensability issue in this case, we also reverse the ALJ’s determination that the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86, and we remand the issue of burial benefits back to the ALJ for further action consistent with this decision.

SUMMARY

We reverse the ALJ’s determination that the decedent did sustain a compensable injury in the form of an occupational disease, with a date of injury of (date of injury), resulting in his death, and we remand this issue back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant beneficiary is a proper legal beneficiary of the decedent, thus entitling her to death benefits, and we remand this issue back to the ALJ for further action consistent with this decision.

We reverse the ALJ’s determination that the claimant beneficiary is entitled to reimbursement for burial benefits in the amount of $1,922.86, and we remand the issue of burial benefits back to the ALJ for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the ALJ is to apply the provisions set forth in Sections 607.0545 and 607.058 of the Government Code and make a determination of whether the decedent sustained a compensable injury in the form of an occupational disease with a date of injury of (date of injury), resulting in his death. The ALJ is then to make determinations regarding the issues of whether the claimant beneficiary is a proper legal beneficiary entitling her to death benefits and whether the claimant beneficiary is entitled to reimbursement for burial benefits.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the ALJ, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Government Code in the computation of the 15-day appeal and response periods.  See Appeals Panel Decision 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is (COUNTY) COUNTY (a self-insured governmental entity) and the name and address of its registered agent for service of process is

COUNTY JUDGE NELSON WOLFF
101 W. NUEVA, 10TH FLOOR
SAN ANTONIO, TEXAS 78205.

Cristina Beceiro
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on July 27, 2017, with the record closing on July 31, 2017, in (city), Texas, with (administrative law judge) presiding as the administrative law judge (ALJ).^[1] The ALJ resolved the disputed issues by deciding that the decedent did not sustain a compensable injury on (date of injury), that resulted in his death; that the decedent was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury); and that the appellant (claimant beneficiary) is not entitled to reimbursement for burial benefits from the respondent (carrier).

The claimant beneficiary appealed the ALJ’s determinations as being contrary to the overwhelming weight of the evidence and argued that the decedent was in the course and scope of his employment when he suffered fatal injuries on (date of injury). The carrier responded, urging affirmance.

DECISION

Reversed and rendered.

It is undisputed that the decedent died on (date of injury), when the motorcycle he was riding was struck by another vehicle. Evidence in the record reveals that the decedent arrived at the workplace and began his workday at approximately 6:58 a.m. on (date of injury); that he left the workplace at 7:03 a.m. to return to his residence to retrieve a laptop computer, owned by his employer and used in the performance of his duties, which he had forgotten to bring with him to work that morning; and that, while traveling back to the office, he was involved in the motor vehicle accident that resulted in his death. The record further reveals that the claimant beneficiary incurred liability for the costs of the decedent’s burial. The determinant issue is whether the decedent’s travel at the time of the motor vehicle accident was in the course and scope of employment.

As a general rule, an injury occurring in the use of the public streets or highways while an employee is traveling to or from work is not compensable. American General Insurance Co. v. Coleman, 303 S.W.2d 370 (Tex. 1957).  The rule is known as the “coming and going” rule.  The rationale of the rule is that “in most instances such an injury is suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer.”  Texas General Indemnity Co. v. Bottom, 365 S.W.2d 350 (Tex. 1963). This general rule is reflected in Section 401.011(12) which defines course and scope of employment as an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. However, course and scope of employment as defined in Section 401.011(12) generally does not include transportation to and from the place of employment except in certain limited circumstances.

In Evans v. Illinois Employers Insurance of Wausau, 790 S.W.2d 302 (Tex. 1990), the Texas Supreme Court affirmed the lower court’s summary judgment in favor of the insurance carrier holding that the decedent in that case was not on a special mission and in the course and scope of employment when traveling to attend a mandatory, regularly scheduled Monday morning safety meeting prior to traveling to his primary work site. The court held that attendance at the meeting was an integral part of the job and therefore “travel to the safety meeting was simply travel to work.” In its opinion, the court stated:

Had Mr B and Mr E been injured while en route from the safety meeting to the primary work site (at (employer) these injuries would have been covered by the Act. However, since neither of them had begun work, their injuries fall squarely within the “coming and going” rule. . . .

We hold in this case that the decedent was not simply traveling to or from work but had begun his workday at 6:58 a.m. on (date of injury), when he arrived at his office and that, since the travel which resulted in his death occurred after he had begun work, such travel did not fall within the coming and going rule. See also Appeals Panel Decision 960562, decided April 19, 1996, a case where a deputy sheriff, who had begun work, was held to have sustained a compensable injury when he returned to his residence to retrieve a logbook used to record his work activities and was thereafter involved in a motor vehicle accident on his way back to his office.

As mentioned above, in order for an injury to be compensable, the injury must occur while the employee is engaged in furtherance of the affairs or business of the employer and the activity must originate in the work, business, trade, or profession of the employer. There is no bright-line rule for determining whether the employee travel originated in the employer’s business. Rather each situation is necessarily dependent on the facts. Proof of origination can come in many forms. See Zurich American Ins. Co. v. McVey, 339 S.W.3d 724 (Tex. App.-Austin 2011, pet. denied).

In the Discussion section of her Decision and Order, the ALJ indicated that there was no evidence that the decedent was required to return to his residence to retrieve his laptop computer and that, for such reason, “his travel was not in the course and scope of his employment.”

We disagree. While the decedent’s supervisor testified that the decedent did not need his laptop to connect to the company network and that the decedent could access such information from another computer at the workplace, he also indicated that the decedent would need his laptop to access information stored on its hard drive. The decedent obviously believed it necessary to have access to his assigned computer at work that day as there is no evidence of any personal or other purpose which was furthered by his travel back to his residence after beginning his workday on (date of injury).

Under the specific facts of this case, the decedent’s workday began when he accessed the workplace on (date of injury), at 6:58 a.m. His travel to and from his residence after having begun his workday was for the purpose of retrieving his assigned laptop computer which he deemed necessary for the performance of his duties at work that day. Such travel was not simply transportation to and from the place of employment but was travel that both furthered the employer’s business and originated in such business. We hold that the ALJ’s determination that the decedent was not in the course and scope of his employment when involved in the motor vehicle accident on (date of injury), to be incorrect as a matter of law and against the great weight and preponderance of the evidence. We accordingly reverse the ALJ’s decision and render a new decision that the decedent did sustain a compensable injury on (date of injury), that resulted in his death; that the decedent was in the course and scope of his employment when he was involved in a motor vehicle accident on (date of injury); and that the claimant beneficiary is entitled to reimbursement for burial benefits from the carrier.

SUMMARY

We reverse the ALJ’s decision that the decedent did not sustain a compensable injury on (date of injury), that resulted in his death and render a new decision that the decedent did sustain a compensable injury on (date of injury), that resulted in his death.

We reverse the ALJ’s decision that the decedent was not in the course and scope of his employment when involved in a motor vehicle accident on (date of injury), and render a new decision that the decedent was in the course and scope of his employment when involved in a motor vehicle accident on (date of injury).

We reverse the ALJ’s decision that because the injury of (date of injury), was found not to be compensable, the claimant beneficiary is not entitled to reimbursement for burial benefits from the carrier and render a new decision that the claimant beneficiary is entitled to reimbursement for burial benefits from the carrier.

The true corporate name of the insurance carrier is OLD REPUBLIC INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

1. Section 410.152 was amended in House Bill 2111 of the 85th Leg., R.S. (2017), effective September 1, 2017, changing the title of hearing officer to ALJ.

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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 14, 2007. The disputed issues were:

(1)Does the compensable injury of ___________, include the progressive dementia that resulted in the Employee’s death on January 16, 2006?;

(2)Is VP entitled to reimbursement of burial benefits from the carrier, and if so, what is the amount?; and

(3)Does the approval of the Benefit Dispute Settlement (DWC-25) preclude the claimant from pursuing death benefits?

For good cause, the following issue was added by the hearing officer:

(4)Does the Texas Department of Insurance, Division of Workers’ Compensation (Division) have jurisdiction to render a decision on the merits concerning the above listed disputed issues?

The hearing officer resolved the disputed issues by deciding that: (1) the Division has jurisdiction to resolve the disputed issue concerning the extent of injury; (2) the compensable injury of ___________, included progressive dementia which resulted in the death of the deceased on January 16, 2006; and (3) due to the execution and approval of a DWC-25 the Division does not have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits.

The appellant/cross-respondent (claimant) appealed, disputing the hearing officer’s determination that the Division does not have jurisdiction to resolve the disputed issues concerning death and burial benefits. The claimant argues that both parties agreed that the Division has jurisdiction over the disputed issues. The respondent 1/cross-appellant (self-insured) also appealed, contending that the hearing officer added the issue of whether the Division has jurisdiction to resolve the disputed issues without notice to the parties and without opportunity for the parties to present position statements and arguments on this issue. The self-insured additionally appealed the determinations that the Division did not have jurisdiction to resolve the disputed issues concerning death and burial benefits and that the compensable injury included progressive dementia. The self-insured contends that the determination regarding the extent of injury and cause of death were precluded by the express terms and legal effect of the approved DWC-25. Although properly notified of the CCH, the respondent 2 (Subsequent Injury Fund (SIF)) did not appear. The SIF did not respond to either the appeal of the claimant or self-insured.

DECISION

Affirmed in part and reversed and rendered in part.

FACTUAL SUMMARY

The parties stipulated that the deceased sustained a compensable injury on ___________; that the deceased died on January 16, 2006; and that the claimant is the widow of the deceased. The death certificate of the deceased was in evidence and listed the cause of death as progressive dementia since a closed head injury on ___________. At issue was whether the compensable injury included the progressive dementia that resulted in the decedent’s death; whether the claimant was entitled to reimbursement of burial benefits from the self-insured; and whether the approval of the DWC-25 precluded the claimant from pursuing death benefits.

JURISDICTION

A court must notice, even sua sponte, the matter of its own jurisdiction, for jurisdiction is fundamental in nature and may not be ignored. Lamka v. Townes, 465 S.W.2d 386 (Tex.Civ.App.-Amarillo 1971, writ ref'd n.r.e.) The hearing officer found good cause for adding the jurisdiction issue. We have reviewed the record and we perceive no abuse of discretion on the part of the hearing officer adding the issue of whether the Division has jurisdiction to render a decision on the merits of the disputed issues on her own motion. Morrow v. H.E.B. Inc., 714 S.W.2d 297 (Tex. 1986).

The hearing officer noted that the disputed issues concerning death benefits, including burial benefits, do not involve the resolution of a medical benefit dispute or seek enforcement of the terms of the DWC-25 and therefore found she had no jurisdiction to decide the disputed issue regarding death benefits, including burial benefits. Section 401.011(40) defines “settlement” as a final resolution of all the issues in a workers’ compensation claim that are permitted to be resolved under the terms of this subtitle. Section 401.011(11) defines “compensation” as payment of a benefit.  Section 401.011(5) defines “benefit” as a medical benefit, an income benefit, a death benefit, or a burial benefit based on a compensable injury. The determination of “benefit disputes” are adjudicated by the Division’s Hearings Division.

28 TEX. ADMIN. CODE § 140.1 (Rule 140.1) provides that:

1. Benefit dispute--A disputed issue arising under the Texas Workers’ Compensation Act (the Act) in a workers’ compensation claim regarding compensability or eligibility for, or the amount of, income or death benefits.

2. Benefit proceeding--A proceeding pursuant to the Act, Chapter 410, conducted by a presiding officer to resolve one or more benefit disputes. Benefit proceedings include benefit review conferences, benefit contested case hearings, appeals, and, after January 1, 1992, arbitration.

The issue of whether or not the compensable injury of ___________, included the progressive dementia that resulted in the death of the deceased was not an issue that was previously determined by the Division, nor was the entitlement to burial benefits or the right of the claimant to pursue death benefits. The Division has been given statutory authority to determine the liability of an insurance carrier for compensation for an injury or death. See Section 410.002 and Section 410.251. We reverse the hearing officer’s determination that due to the execution and approval of a DWC-25, the Division does not have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits. We render a new decision that the Division does have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits.

EXTENT OF INJURY

The hearing officer’s decision that the compensable injury of ___________, includes the progressive dementia that resulted in the claimant’s death on January 16, 2006, is supported by sufficient evidence and is affirmed.

SETTLEMENT

In evidence was a DWC-25, which was executed by the legal representatives of the self-insured and the deceased, on December 9 and December 10, 2004, respectively. The claimant signed the DWC-25 on behalf of the deceased, under the authority of a Statutory Durable Power of Attorney that had previously been executed by the deceased. The DWC-25 was approved by the Division on December 29, 2004. The claimant signed the DWC-25 as follows: [decedent’s name] by [claimant name] attorney in fact.

The DWC-25 provides in part:

“1. The compensable injury of ___________, includes a traumatic brain injury with cognitive impairment and cortical atrophy with effects on memory, cognitive functions and activities of daily living.

2. The need for assisted living care is related to the compensable injury and [s]elf-insured will bear the fair and reasonable cost of that care….

5. All income benefits will end on March 23, 2005, a date 401 weeks from the date of the injury. Except as provided in this agreement, [c]laimant and his beneficiaries are not entitled to any additional income benefits including lifetime income benefits and death benefits….

THIS SETTLEMENT IS THE FINAL RESOLUTION OF ALL ISSUES IN THIS CLAIM AND THE PARTIES WAIVE THEIR RIGHTS TO SUBSEQUENT [DIVISION] PROCEEDINGS, OTHER THAN THOSE NECESSARY TO RESOLVE MEDICAL BENEFIT DISPUTES OR TO ENFORCE COMPLIANCE WITH THE TERMS OF THIS SETTLEMENT.”

The self-insured contends that the terms of the approved DWC-25 and its legal effect preclude consideration of whether the compensable injury extended to include progressive dementia and whether the decedent’s death was a direct and natural result of the compensable injury. Further, the self-insured argues that the DWC-25 on its face indicates the intent of the parties by the settlement to preclude payment of death benefits.

Death benefits do not vest until the death of an employee which results from a compensable injury. See Freeman v. Texas Compensation Insurance Co., 603 S.W.2d 186, 190 (Tex. 1980); and Garrett v. Texas Employers Ins. Ass’n, 226 S.W.2d 663 (Tex.Civ.App.-San Antonio 1949, writ ref’d). There is no evidence that the claimant signed the DWC-25 on her own behalf. She signed the DWC-25 on behalf of the deceased pursuant to a Statutory Durable Power of Attorney. In Elizondo v. Tex. Natural Res. Conservation Comm’n, 974 S.W.2d 928, 931 (Tex.App.-Austin 1998, no pet.) the Court noted that an individual acting in an official or representative capacity is, in law, a distinctly separate individual from the same person acting as an individual.

The Eastland Court of Appeals stated in Maryland Casualty Co. v. Stevens, 55 S.W.2d 149 (Tex.Civ.App.-Eastland 1932, writ ref’d):

The Workmen’s Compensation Law, in no uncertain terms, creates a cause of action for compensation insurance in favor of the legal beneficiaries of a deceased employee for the death of the employee. That cause of action, for all practical purposes, is separate and distinct from the cause of action for compensation which the same statute just as certainly creates in favor of the injured employee [citations omitted]. These causes of action consist largely of common elements. They are each dependent upon the existence of the same accident, the same resulting injury, sustained in the course of employment. The only practical difference is that the employee’s individual cause of action covers the full extent of the injury except his death, and the cause of action of the beneficiaries is for the death only. Notwithstanding the near approach to identity of these two causes of action, they are so distinct that the employee can, by no act or deed, release or affect the cause of action belonging to the legal beneficiaries. [Emphasis added.],

In American Motorists Ins. Co. v. Villagomez, 398 S.W.2d 742 (Tex. 1966), the

Texas Supreme Court stated that:

It has long been settled in Texas that where death results from a compensable injury, a new cause of action for death benefits arises and vests in the legal beneficiaries of the decedent. This cause of action is separate and distinct from the cause of action for compensation belonging to the injured employee during his life and which will, upon his death, vest in his legal beneficiaries the right to claim all compensation payments which had accrued at the time of his death but had not been paid.

The Court went on to state “the obvious intent is that no action can be taken by the employee during the period between the injury and the resulting death that would influence in any way, either positively or negatively, the rights of his beneficiaries to collect benefits by reason of his death.”

The courts have recognized that the legal beneficiaries have an independent cause of action separate from the injured employee and have stated that the injured employee can take no action that would negatively effect the rights of his beneficiaries to collect benefits by reason of his death. The rights of the legal beneficiary are not derivative but rather are created directly by statute. Section 408.181(a). We hold that the settlement by the decedent does not bar the claim of the decedent’s legal beneficiaries. See Swain v. Standard Acc. Ins. Co., 81 S.W.2d 258, affirmed by the Texas Supreme Court 109 S.W.2d 750. We reverse the hearing officer’s determination that due to the execution and approval of a DWC-25, the Division does not have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits. We render a new decision that the approval of the DWC-25 does not preclude the claimant from pursuing death benefits.

BURIAL BENEFITS

As explained above, the hearing officer erred by finding that the Division lacked jurisdiction to resolve the claimant’s claim for death benefits including burial benefits. The Funeral Purchase Agreement for the burial of the decedent was in evidence and reflected that the claimant paid $7,238.00 for the burial of the decedent.

If the death of an employee results from a compensable injury that occurred before September 1, 1999, the carrier shall pay the lesser of the actual costs incurred for reasonable burial expenses or $2,500.00. Section 408.186; Rule 132.13(b). We render a new decision that the claimant is entitled to reimbursement of burial benefits from the self-insured in the amount of $2,500.00.

SUMMARY

We affirm the hearing officer’s determinations that the Division has jurisdiction to resolve the disputed issue concerning extent of injury and that the compensable injury extends to include progressive dementia that resulted in the employee’s death on January 16, 2006. We reverse the hearing officer’s decision that due to the execution and approval of a DWC-25, the Division does not have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits and render a new decision that the Division does have jurisdiction to resolve the disputed issues concerning death benefits including burial benefits. We render a new decision that the approval of the DWC-25 does not preclude the claimant from pursuing death benefits. We render a new decision that the claimant is entitled to reimbursement of burial benefits from the self-insured in the amount of $2,500.00.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

AW

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 2, 2001. The hearing officer resolved the disputed issues by deciding that the deceased sustained a compensable heart attack on _________; that the deceased was not in a state of intoxication when the compensable injury occurred; that respondent two (subclaimant) is entitled to reimbursement for burial benefits from the appellant (carrier) in the amount of $5,867.00; and that, since no person was found who would be eligible for death benefits as a beneficiary under the 1989 Act, the death benefits are to be paid to respondent one (SIF). The carrier appealed the hearing officer’s determinations that the deceased sustained a compensable heart attack and that the subclaimant is entitled to reimbursement for burial benefits. The SIF and the subclaimant responded, requesting affirmance. There is no appeal of the determinations that the deceased was not in a state of intoxication when the compensable injury occurred or that the carrier is to pay the death benefits to the SIF.

DECISION

The hearing officer’s decision is affirmed.

COMPENSABILITY ISSUE

The hearing officer did not err in determining that the deceased sustained a compensable heart attack. The hearing officer applied the appropriate statutory provision of the 1989 Act, Section 408.008, in making the determination on compensability. Concerning the carrier’s contention, we find that there is no material misstatement of the evidence in the decision. Conflicting medical evidence was presented, and the hearing officer resolved those conflicts in favor of the claimant. The hearing officer is the sole judge of the weight and credibility of the evidence. Section 410.165(a). As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established. The hearing officer’s decision on the compensability issue is supported by sufficient evidence and is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175 (Tex. 1986).

REIMBURSEMENT ISSUE

The carrier’s contention that the hearing officer erred in determining that the subclaimant is entitled to reimbursement for burial benefits from the carrier is predicated on its assertion that the deceased did not sustain a compensable heart attack. Since we are affirming the hearing officer’s decision that the deceased sustained a compensable heart attack, we likewise affirm the decision on the reimbursement issue.

The hearing officer’s decision and order are affirmed.

The true corporate name of the insurance carrier is TEXAS WORKERS’ COMPENSATION INSURANCE FUND (effective September 1, 2001, the true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY) and the name and address of its registered agent for service of process is

MR. RUSSELL R. OLIVER, PRESIDENT

221 WEST 6TH STREET

AUSTIN, TEXAS 78701

Robert W. Potts

Appeals Judge

CONCUR:

Gary L. Kilgore

Appeals Judge

Robert E. Lang

Appeals Panel

Manager/Judge