Date: 02-26-2015

Case Style: Adrian Tijerina v. Texas Property Casualty Insurance Guaranty Association as Receiver for SIR Lloyd's Insurance Company and the Texas Department of Insurance, Division of Workers' Compensation

Case Number: 03-13-00300-CV

Judge: Scott K. Field

Court: Texas Court of Appeals, Third District on Appeal from 200th District Court of Travis County

Plaintiff's Attorney: Mark A. Cevallos and Kevin B. Miller

Defendant's Attorney: Greg Whigham for Texas Property Casualty Insurance Guaranty Association as Receiver for SIR Lloyd's Insurance Company

Dennis M. McKinney for Texas Department of Insurance, Division of Workers' Compensation

Description: Adrian Tijerina appeals from the trial court’s order granting pleas to the jurisdiction
filed by Texas Property Casualty Insurance Guaranty Association as Receiver for SIR Lloyd’s
Insurance Company (the Association) and the Texas Department of Insurance, Division of Workers’
Compensation (the Division), and dismissing his case for lack of jurisdiction. In two issues, Tijerina
contends that the case was erroneously transferred to Travis County district court from Ector County
district court, where suit was originally filed, and that the Travis County district court erred by
granting the pleas to the jurisdiction and dismissing his case. We will affirm.
BACKGROUND
Tijerina sustained an injury to his back while working at an Albertson’s grocery
store in 1987. Tijerina submitted his claim for workers’ compensation benefits to the Industrial
Accident Board. 1 Dissatisfied with the Board’s award, Tijerina filed a petition in Ector County
district court seeking a trial de novo. In 1989, Tijerina obtained a judgment against his employer’s
workers’ compensation carrier awarding him lost wages in the amount of $32,753.99.2 The judgment
also ordered that Tijerina “is entitled to future medical benefits as set forth under the workers’
compensation laws of the State of Texas for the remainder of his life.”
In June 2012, Tijerina filed a petition in Ector County district court alleging causes
of action against the Association and the Division apparently related to his belief that surgery was
required to improve the condition of his back. Tijerina alleged that the suit was one “to enforce an
existing judgment from Ector County,” specifically the 1989 judgment rendered by the Ector County
district court. Tijerina alleged that the Association “has failed to provide medical benefits and pay
for medical expenses as ordered by this judgment. Plaintiff sues to enforce this judgment.” With
respect to the Division, Tijerina sought a declaratory judgment that the Division “improperly refused
jurisdiction over the medical benefits claim of Plaintiff and that the DWC at all times relevant had
jurisdiction to make the determination that Plaintiff was entitled to the medical benefits he has
improperly been denied.” The Division and the Association each filed a plea to the jurisdiction
seeking dismissal of Tijerina’s claims on the ground that he had failed to exhaust his administrative
1 The former Industrial Accident Board later became the Texas Workers’ Compensation
Commission. In 2005, the legislature abolished the Texas Workers’ Compensation Commission and
transferred its functions to the Texas Department of Insurance, Workers’ Compensation Division.
See Act of May 29, 2005, 79th Leg., R.S., ch. 265, § 8.001, 2005 Tex. Gen. Laws 469, 607-08.
2 The parties to the judgment were Tijerina and SIR Lloyd’s Insurance Company. SIR
Lloyd’s was subsequently placed into receivership and declared impaired. The Association is a
statutorily created entity whose purpose is to pay “covered claims” of impaired insurance companies
doing business within the state. See generally Tex. Ins. Code §§ 462.001-.351.
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remedies at the Division before filing suit. The Division also asserted that sovereign immunity
barred any claim for declaratory relief, Tijerina’s claims were not ripe, and his request for declaratory
relief was duplicative of available administrative relief. The Association also filed a motion to
transfer venue, asserting that under the Texas Insurance Code, mandatory venue for Tijerina’s
suit was in Travis County. The Ector County district court granted the Association’s motion and
transferred the case to Travis County district court. See Tex. Ins. Code § 462.017(b) (“Venue in a
suit by or against the commissioner or association relating to an action or ruling of the commissioner
or association under this chapter is in Travis County.”).
In October 2012, while his suit was pending in Travis County, counsel for Tijerina
filed an application with the Division for a pre-hearing conference. The application stated that the
ground for requesting the conference was that the Association was “refusing to provide postjudgment
medical treatment.” Nothing in the plaintiff’s petition or in his briefing to this Court
identifies the nature of the “medical treatment” Tijerina claims to have been denied. There is no
evidence of any medical expenses incurred by Tijerina that the Association has refused to pay. Nor
is there any evidence that any health-care provider submitted a claim for payment to the Association
that the Association denied, or that any health-care provider requested pre-authorization from the
Association to perform any procedure on Tijerina. The most that we can surmise from the record
is that Tijerina wanted the Association to pre-authorize or in some manner commit to pay medical
expenses associated with back surgery.3
We base this supposition 3 on a notation on the Division’s benefits review conference
sheet that states: “Need order for back surgery,” the contents of the Division’s file for Tijerina’s
workers’ compensation claim, and counsels’ arguments at the hearing on the plea to the jurisdiction,
which indicate that Tijerina wanted to undergo back surgery.
3
The Division held a benefits review conference in late October 2012 at which it
informed Tijerina that it did not have jurisdiction to grant him the relief he sought. The Division
took the position that, in a workers’ compensation case governed by the “old law,” once the
employee has secured an award or judgment, the Division’s jurisdiction thereafter with respect to
requests for post-judgment medical benefits is limited to rendering an award to determine the
carrier’s liability for the cost or expense of items actually furnished to and received by Tijerina.4
Because Tijerina had not incurred any costs or expense and the requested medical procedure—back
surgery—had not been furnished to or received by Tijerina, the Division maintained that it did not
have the authority to consider Tijerina’s requested relief.
In April 2013, the Travis County district court granted the Association’s and the
Division’s pleas to the jurisdiction and dismissed the case. Tijerina then perfected this appeal.
DISCUSSION
Transfer of Venue
In his first issue, Tijerina asserts that the Ector County district court erred by
transferring the suit to Travis County. The Association had requested the transfer based on Texas
Insurance Code section 462.017(b), which provides: “Venue in a suit by or against the commissioner
or association relating to an action or ruling of the commissioner or association under this chapter
is in Travis County.” Id. § 462.017(b). On appeal, Tijerina argues that the 70th Judicial District
4 There is no dispute that Tijerina’s claim is governed by the Workers’ Compensation Act
in effect at the time of his injury in 1987. See National Union Fire Ins. Co. of Pittsburgh, Pa. v.
Reyna, 897 S.W.2d 777, 778 (Tex. 1995) (applying version of the Workers’ Compensation Act in
effect at the time of the injury, not version in effect at time of suit).
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Court of Ector County had mandatory and exclusive jurisdiction over his suit because it was brought
to “enforce” a prior judgment rendered by that court. We disagree.
Tijerina’s claim against the Association cannot correctly be characterized as a suit
to enforce the trial court’s 1989 judgment. Tijerina’s current claim against the Association arises
out of its alleged failure to pay for or commit to pay for back surgery that Tijerina requested at least
20 years after the 1989 judgment was rendered. The 1989 judgment does not purport to order the
workers’ compensation carrier to pay any claim for medical benefits Tijerina might make in the
future. Rather, it requires the carrier to provide Tijerina with post-judgment benefits that he is entitled
to under the workers’ compensation laws of the State of Texas. The Association has not taken the
position that it is not obligated to provide qualifying medical benefits. Rather, the dispute here is
whether the costs and expenses of the back surgery Tijerina desires to undergo constitute such benefits.
Under the old workers’ compensation law, while an insurer was required to furnish
all medical services reasonably required to cure and relieve the employee from the effects naturally
resulting from his injury, a court rendering judgment in favor of an injured worker in his suit against
his insurance carrier was prohibited from including in the judgment an award for any cost or expense
of medical services not actually furnished to and received by the employee prior to the date of the
judgment. See Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, 1917 Tex. Gen. Laws 269 (repealed
1989) (current version of Texas Workers’ Compensation Act at Tex. Lab. Code ch. 408); Employers
Mut. Cas. Co. v. Poorman, 428 S.W.2d 698, 701 (Tex. Civ. App.—San Antonio 1968, writ ref’d
n.r.e.). The judgment was res judicata on the issue of the insurer’s liability for costs and expenses
that could have been claimed up to the date of the judgment, but not on the insurer’s obligation to
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pay for medical services or other items compensable under the Workers’ Compensation Act after the
date of judgment. Instead, the Division retained continuing jurisdiction to render successive awards
for medical expenses incurred in the future (post-judgment). Id. This ensured that the employee
would be able to seek and obtain reimbursement for compensable medical services and related
expenses incurred after a final judgment. The old workers’ compensation law article 8307 section
5 provided that the employee is entitled to receive a successive award for compensable costs or
medical expenses “actually furnished to or received by” the employee in the future. Id.; see also
Texas Dep’t of Ins. Div. of Workers’ Comp. v. Mensch, No. 04-14-00449-CV, 2015 WL 179272, at
*4 (Tex .App.—San Antonio Jan. 14, 2015, no pet. h.) (“We conclude that, under the ‘old’ law, [an
injured employee] is not entitled to recover a judgment for any expenses he has not actually
incurred.”). Thus, provision of the medical service or other item to the employee had to precede the
Division’s determination regarding the insurer’s liability for that service or item. Consistent with
the statute’s directive, the Ector County court’s 1989 judgment did not award Tijerina a set amount
of monetary damages for future medical expenses, but simply stated that he is entitled to future
medical benefits in accordance with the workers’ compensation laws for the remainder of his life.
The Ector County court did not have before it, and thus did not adjudicate, whether
the medical benefit Tijerina now seeks—payment for the cost and expense of back surgery more
than 20 years later—is a compensable medical benefit under the workers’ compensation laws.
Thus there has been no prior adjudication that the Association is required to provide this particular
medical benefit that any court could be asked to enforce. See New Jersey Bank (N.A.) v. Knuckley,
637 S.W.2d 920, 921 (Tex. 1982) (test to determine if pleading constitutes suit to enforce prior
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judgment, as opposed to new suit, is whether suit seeks to litigate new issues and controversies not
attempted to be litigated in prior suit); Burrage v. Hunt Prod. Co., 114 S.W.2d 1228, 1233 (Tex. Civ.
App.—Dallas 1938, writ dism’d) (suit not one to enforce judgment when judgment plaintiff purports
to be enforcing does not grant any relief sought in subsequent proceeding, subsequent proceeding
requires resolution of fact issues, and judgment rendered in subsequent proceeding could be appealed
by either party). The trial court did not err in transferring the suit to Travis County, the mandatory
venue for a suit arising out of actions taken by the Association. We overrule Tijerina’s first issue.
Dismissal for Lack of Jurisdiction
We next consider whether the trial court erred in dismissing Tijerina’s claim against
the Division for lack of jurisdiction.5 In his original petition, Tijerina requested that the trial court
declare that the Division had the authority to determine whether he was entitled to the medical
benefits he sought from the Association. Specifically, the original petition stated:
Plaintiff sues for Declaratory Judgment and seeks a declaration that [the Division]
improperly refused jurisdiction over the medical benefits claims of Plaintiff and that
[the Division] at all times relevant had jurisdiction to make the determination that
Plaintiff was entitled to the medical benefits he has been improperly denied.
Although he does not cite the statute, suits for declaratory relief are brought under the Uniform
Declaratory Judgments Act (UDJA). See Tex. Civ. Prac. & Rem. Code §§ 37.001-.011. State
5 We review a trial court’s ruling on a plea to the jurisdiction de novo. Texas Dep’t of Parks
& Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). In our review, we construe the pleadings
liberally in favor of the pleader and look to the pleader’s intent to determine whether the facts alleged
affirmatively demonstrate the trial court’s jurisdiction to hear the cause. See id. If the pleadings
affirmatively negate the existence of jurisdiction, then the trial court may grant the plea to the
jurisdiction without allowing the plaintiff an opportunity to amend. Id. at 227.
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agencies, such as the Division, are immune from suits under the UDJA unless the legislature has
waived immunity for the particular claim at issue. See Texas Dep’t of Transp. v. Sefzik, 355 S.W.3d
618, 620 (2011). The UDJA does not waive the state’s sovereign immunity when the plaintiff
seeks a declaration of his right under a statute or some other law. Id. at 621 (citing City of El Paso
v. Heinrich, 284 S.W.3d 366, 372-73 (Tex. 2009)). A state agency may be a proper party to a
declaratory judgment action that challenges the validity of a statute, see id. at 373 n.6, but Tijerina
does not challenge the validity of any statute; rather, he challenges the Division’s actions taken
pursuant to Texas workers’ compensation laws. Tijerina has not identified any provisions of the
UDJA that waive immunity for this claim, and the trial court properly granted the Division’s plea
to the jurisdiction.6
Even were we to liberally construe Tijerina’s petition as one seeking judicial
review of the Division’s disposition of his request for medical benefits, dismissal would still be
appropriate because Tijerina has failed to exhaust his administrative remedies by securing an agency
determination regarding the compensability of his requested medical benefits. Paradissis v. Royal
Indem. Co., 507 S.W.2d 526, 529-30 (Tex. 1974) (affirming dismissal of action in district court for
Suits 6 to require state officials to comply with statutory or constitutional provisions are not
prohibited by sovereign immunity. See City of El Paso v. Heinrich, 284 S.W.3d 366, 372 (Tex. 2009).
Thus a suit seeking declaratory relief for ultra vires action may be brought against a state official in
his official capacity. Id. at 371-72. Although Tijerina has not sued any state officials, the relief he
seeks is directly related to whether the Division employees acted outside the scope of their authority
by not making a determination of his medical-benefits request and thus falls within the ultra vires
rationale. See id. at 372 (under ultra vires exception claims may be brought against state official who
has acted without legal or statutory authority or has failed to perform purely ministerial act).
However, any such claim, even if asserted by Tijerina, would fail because, as set forth in this opinion,
the Division officials’ actions comported with the applicable statutes and administrative rules.
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failure to exhaust administrative remedies as to continuing medical services). To the extent Tijerina
was seeking approval of specific costs or expenses related to back surgery, the Division’s jurisdiction
over claims for compensation made after the trial court rendered the 1989 judgment is limited. See
Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, 1917 Tex. Gen. Laws 269 (repealed 1989) (current
version of Texas Workers’ Compensation Act at Tex. Lab. Code ch. 408). According to article 8307
section 5 of the “old law,” once the first award or judgment in a workers’ compensation case has been
made, the Division:
shall have continuing jurisdiction in the same case to render successive awards to
determine the liability of the association for the cost or expense of any such items
actually furnished to and received by said employee . . . .
Id. (emphasis added). Thus, after the 1989 judgment, the Division had the authority to consider
Tijerina’s claims for further compensation only if, after medical services have been provided to the
claimant, the insurance company either refused to pay or reduced the amount of the requested
payment. Consequently, to exhaust his administrative remedies, Tijerina must first have the surgery
and then submit the claim to the Division. The Division’s decision regarding the compensability of
that claim would then be subject to judicial review. See Mensch, 2015 WL 179272 at *4 (“old”
workers’ compensation law requires claimant to first receive sought-after medical care before he can
exhaust administrative remedies by requesting that Division order carrier to pay costs or expenses
thereof). Tijerina has not submitted to the Division any documentation or other evidence of unpaid
bills for medical services actually furnished to or received by Tijerina. Tijerina has therefore failed
to exhaust his administrative remedies regarding any claim for unpaid medical benefits.
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To the extent Tijerina was seeking a determination from the Division that back surgery
would, once performed, be compensable, Tijerina has likewise failed to exhaust his administrative
remedies by obtaining a Division determination that he is entitled to that medical benefit under
applicable workers’ compensation law. Article 8306 section 7 of the workers’ compensation law in
effect at the time of Tijerina’s injury provided that “the association shall furnish such medical aid,
hospital services, nursing, chiropractic services, and medicines as may reasonably be required at the
time of the injury and at any time thereafter to cure and relieve from the effects naturally resulting
from the injury.” See Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, 1917 Tex. Gen. Laws 269
(repealed 1989) (emphasis added). Specific to requests for surgery, article 8306 section 12e provided:
If it be shown by the examination, report of facts and opinions of experts, all reduced
to writing and filed with the board, that such operation is advisable and will relieve
the condition of the injured employee or will materially benefit him, the board shall
so state in writing . . . .
Id. The Division’s administrative rules further provided:
(a) Demand for surgery by the claimant or by the insurance carrier shall be
accompanied by a medical report which establishes, regardless of specific words
used, that:
(1) in reasonable medical probability the requested surgical procedure will
either effect a cure or will materially and beneficially improve and relieve the
claimant’s condition; and
(2) the surgery is medically advisable.
(b) In addition to the medical reports described in subsection (a) of this section, the
party demanding the surgery shall simultaneously file with the board all other
medical reports pertinent to the injury or disease at issue.
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28 Tex. Admin. Code § 41.145 (1988) (Tex. Workers’ Comp. Comm’n, Reports Accompanying
Demand for Surgical Operation). Thus, in order to secure a determination from the Division that the
costs and expenses related to a surgical operation were compensable, Tijerina was required to submit
to the Division the written opinion of a medical professional that the surgery would materially and
beneficially improve and relieve his condition. Tijerina does not allege in his petition that he
provided the Division with the required documentation, nor have we found in the record a report
from a medical professional recommending that Tijerina undergo back surgery such that the Division
was in a position to consider the compensability of any related costs or expenses. A notation on the
benefits review conference sheet states: “Need order for back surgery.” If Tijerina’s petition could
be construed as complaining that the Division did not consider his request for a determination that
the costs and expenses of back surgery would be compensable, he has again failed to exhaust his
administrative remedies. Thus, even were we to treat Tijerina’s claim against the Division as a suit
for judicial review rather than a request for declaratory judgment, the trial court correctly dismissed
the claim for lack of jurisdiction.
We next consider whether the trial court erred in dismissing Tijerina’s claim
against the Association. Ripeness is a component of subject-matter jurisdiction. Robinson v. Parker,
353 S.W.3d 753, 755 (Tex. 2011). To evaluate ripeness, courts consider “whether, at the time a lawsuit
is filed, the facts are sufficiently developed ‘so that an injury has occurred or is likely to occur, rather
than being contingent or remote.’” Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 852 (Tex.
2000) (quoting Patterson v. Planned Parenthood of Houston & Se. Tex., Inc., 971 S.W.2d 439, 442
(Tex. 1998)). “A case is not ripe when determining whether the plaintiff has a concrete injury
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depends on contingent or hypothetical facts, or upon events that have not yet come to pass.” Id.; see
also Camarena v. Texas Emp’t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (trial court cannot grant
relief based on “a hypothetical situation which might or might not arise at a later date”). Ripeness,
like standing, “is a threshold issue that implicates subject matter jurisdiction, and like standing,
emphasizes the need for a concrete injury for a justiciable claim to be presented.” Patterson, 971
S.W.2d at 442 (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)).
Tijerina alleges that the Association has failed to comply with the 1989 judgment
by refusing to provide him medical benefits he is entitled to receive pursuant to that judgment. As
noted above, the judgment provides that Tijerina is entitled to “future medical benefits as set forth
under the workers’ compensation laws of the State of Texas for the remainder of his life.” Thus, for
the Association’s alleged failure to provide him medical benefits to be contrary to the trial court’s
order and thus arguably an actionable injury ripe for adjudication, the medical benefits being denied
must have been compensable under the applicable laws governing a workers’ compensation claim.
The Division, not the trial court, has exclusive jurisdiction to determine compensability because the
Workers’ Compensation Act vests the power to determine whether a claimant is entitled to workers’
compensation solely in the Division subject to judicial review. See Henry v. Dillard Dep’t Stores,
Inc., 70 S.W.3d 808, 809 (Tex. 2002) (citing American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801,
804 (Tex. 2001)). In Henry, the court held that a trial court could not adjudicate an employee’s
claim for bad faith denial of workers’ compensation benefits because it required, as a threshhold
matter, making the determination that the employee was entitled to benefits and resolution of that
question was within the Division’s exclusive jurisdiction, subject to judicial review. Id.; see also
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Saenz v. Fidelity & Guar. Ins. Underwriters, 925 S.W.2d 607, 612 (Tex. 1996) (stating Workers’
Compensation Act vests power to award workers’ compensation benefits solely in Commission,
subject to judicial review).
The Division did not conduct an administrative hearing on the compensability issue
because, as explained above, it lacked the authority to make the requested determination. Whether
Tijerina is entitled to medical benefits in the form of back surgery has not yet been decided and is
contingent on the Division’s determination of that issue. Consequently, whether the Association’s
alleged failure to provide Tijerina with that benefit violated the 1989 judgment is not yet ripe for
adjudication. The trial court properly dismissed this claim for lack of subject-matter jurisdiction.
We overrule Tijerina’s second appellate issue.

Outcome: CONCLUSION
Having overruled Tijerina’s two appellate issues, we affirm the trial court’s order
of dismissal.
__________________________________________
Scott K. Field, Justice
Before Justices Pemberton, Field, and Bourland
Affirmed
Filed: February 26, 2015
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