been here before in two thousand and ten mr dominguez who worked for american nose at a accident and the case was pursued to the workers compensation commission after that accident perla garcia is spouse widow filed suit in cameron county district court is suing pursuing issues of coverage whether or not there is a workers compensation coverage in force in effect who is a correct employer for purposes of workers compensation and the issue of course and scope of employment that matter went through and the camera county we would like to get this matter ruled upon and i believe the person counseling as well but as you know the underlying district court has not ruled on the merits of coverage or the employer for purposes of workers compensation now they have ruled and given the relief that they sought concerning course in sco which is court previously affirmed back in two thousand and sixteen at the same time said we got to reverse the matter to address the standing issue but i thought your client case appeal in the brief that you filed before us today in fact that was very little difference when we re mandate it to the district court in she pointed out the it looked like a cut and paste job because you are still citing the record on appeal so we offered the opportunity our panel did to introduce facts that would support your arguments for being a party aggrieved and there may be one or two new cases but i don't see much difference between this appeal in the first one and therefore i find a hard time seeing why we should rule why we should not rule in line with the district because the most important fact and evidence which was before the court previously and is still before the court is there are two sides pending disputes the existence of coverage and the existence of who the proper employers for purposes of workers compensation contention is it's very simple under those under the statutes under the law and under what the texas supreme court has addressed concerning standing and that with parts there be a real controversy contend greyhound is not his employer for purposes of workers compensation we contend in addition americanos greyhound isn't ploy for workers compensation and first group and that's imperative because very i don't quite understand why they ruled the way they did in the card to the coverage question here but the texas law about party aggrieved i think we're bound by that and the texas law about party agree i think the district judge analyzed that pretty thoroughly and it's hard to get around a lot of that even though the case is time precisely point and it's also hard for me to understand at this late date why your arguments are weaker today than they were on the last appeal in other words if you had any opportunity if your client had those well the issues is standard and did we obtain the relief we so we sought and we did not and there are specific things which have transpired in let me bring to the court's attention the court's analysis of what is agreed to under texas law is simply incorrect there is a sweeping best case there's two of them the supreme court in continental cads b versus functional restoration  thousand southwest and thirty nine three ninety three review texas labor code section four ten point two fifty one and held that that language in in fourteen to fifty one in two fifty five was unambiguous would you cite that case to us last time i do not believe that case was cited previously and more importantly that's the supreme court case in two thousand and that case finds the language isn't a big  books versus texas department of water research water resources six eleven southwestern second for seventeen texas one nine hundred eighty one which was actually cited in the just energy case hel that the word agreed and affected are synonymous and both relate to me well let me just say this though the problem is i mean we you know there is a party aggrieved for purposes of  a federal appeal and if a judgment isn't a party's favorite or the party may not appeal the party up party can only appeal to a change in judgment even if the  party thinks that the district court's ruling was crazy not in accordance with the facts and so on and if they are still the beneficiary of the ruling they don't get to appeal now why did it why is that formulation different from what you're statutory scheme is constitutional because you have the right to go into court and have that decision reviewed otherwise it does not mean const constitutional muster it doesn't comply with with article three hander stand it i understand you claim it puts the your client in a bind but the way in which he said it put them in a bind had to do with premiums that allegedly the company had remembers it had to do with worker's comp payments that the company how to run is slim made while thinking that it was covering the injuries that it might not be able to recover  and all of that is certainly water under the bridge and as far as his particular case goes it's not entirely clear to me that this company is on the hook financially for the consequences of the t w c decision of the decision doesn't say to leave the liability effect the decision says carriers to pay benefits it doesn't say to leave the viability and that's the decision and that's what it says no the situation that you would win on either you would quote win on either finding but the issue is is there was there workers compensation force in effect or was there not and that's a decision that we have the right to have a court decide in an otherwise judged the way it is right now you have one so hearing officer who know care about the prince i don't care about the hearing officer and i doubt you know what the point to me is are you and breathed in the sense in which a tape texas case is describing you have to have suffered a financial consequence that is you hit the nail on the head no explaining it is me  quota rosco in same year aggrieved only when the loss resulting from fanatic financial decisions actually were or immediate that's not what a rosco says and more importantly as a court indicated we're supposed to determine jurisdiction staining based on the facts of the particular case and in this particular case the court found that the trial court found that there were three disputed issues so we have a real controversy the  insured was deprived of the exclusive really defense and those are all facts that the court acknowledges hell of the court then wants to make it a legal conclusion that this is simply advisory opinion and disregards which texas supreme court has said is a parker so i think you know i don't understand how your company is hurt we have a finding that there is no coverage i understand that and what is the dollars and cents consequence of that the dollars and cents consequence are we have to refund premiums no it's too late for that did you refund did the company is there any evidence in the record that the company refund and premium no because the case is on appeal because no server we could we presume the reason for the remand was so that the company could offer evidence about how it was a suffered when maybe the company didn't understand them well the a greyhound right or it the fact that they're temporary and or interruption of coverage which i don't understand but the fact that their temporary interruption of coverage breached the union contract what does that have to do with n h i see those are one of the factors there are many factors of about a party to be aggrieved but the bottom line your honor is what we what what would be the impact if we affirm the district representing them you're representing new hampshire which has no coverage courting to the well that they were there if they have an employees liability policy that provides that and that's not exactly yes it is you and that they were there hav you provided offense under new tours why billeted policy portion of the policy in the underlying case do they pay the judgement and under the under the sea under the policy provision on employers liability if there is an adverse judgment they would have to or they should now the other issue is this also strips this converse is this from a worker's compensation case to a non subscriber case so not only do you strip beaches ready doctor you are now subjecting them to stripping of common or rugs and more importantly yes what is the effect that's isn't that under roscoe isn't that a future injury in other words they were concerned about a left hand injury in a right and i know and that was already a right hand injury and there was already the other hand injury at the time that they were getting the ruling on the first one and everything is is administrative to the vision other words you it's issue driven so you can have an issue on compensable with duis or injury and then come back and have a whole other proceeding on does that injury extend to your left hand right in the foot or right foot and this goes on all the time as to your process so it's totally distinguishable from this particular c it's not the dollars you make it's a difference you make in the shadow of my grandfather page keeton and i don't do workers compensation i don't take this case lightly because i spend most of my days and hours putting people in the portion scope  that in under coverage as we tried to argue in a number of these cases i was actually involved in an array texas mutual case and i was involved in the deal case that are both cases they've been by both sides before this court but what is important about this case in the anomaly or the neatness of this texas works come sation system is the insurance company is a party to the proceedings the employer has a right to participate in the insurance company may have been in a position and odds with the employer in some circumstances absolutely and i've been in situations where the employer and i had a hearing two weeks ago the employer said to passengers that died in a car coming from an out of town job assignment or in the course and scope employment the surviving kids agreed to are represented and i'm sitting on the same side as the attorney for the employer with the insurance company sitting on the other side i've been in the case where the employer argues that the person isn't it's like that in re is to just energy texas case which is which the judge tack  discussed in the parties have discussed where the employer is a party that has suffered no harm but i've been in cases where the employee is arguing between an employer and independent contractors off in oregon and when there's a tort law see a lot of times they come back and those say wait wait they really weren't employees so they can't sue us and their cover workers come up and implore take the fifth amendment a few months ago at a hearing and at the administrative level when we showed they'd signed documents their independent contractor asked why they work claims in a panic and employ to the federal government for other purposes but the point is the division of workers compensation can only be awarded workers compensation but well let me change is not effective and then it says company is liable oh they mean america and us i suppose right so now because i training is a non subscriber case at that point they don't get to the worker's compensation system when there's negligence involved a lot of times implores what i say is cover work up the void negatives lawsuits when there is no negligence they will be the first one to say wait there really wasn't a policy and i don't think we'd be here if america condos and greyhound were openly concerned about negligence in this case because the policy is it and let me be clear on this we we wish the ultimate issue is whether you can have a retroactive policy which the judge below as it reached and we believe this court could determine that like they could at the last the forget the retired justice that was sitting here asked a lot of questions about that last time we had our unit but on march ninth two thousand and eleven we had a pre hearing in the policy was presented at that preparing at the administrative proceedings and i was there and i said america qantas is not on this policy and that is the employer of ef party you grieve what is the evidence whether their party grieve is national the cover it does it have alternative coverage in case america conason greyhound or non subscribers new hampshire i don't understand is why is that cameron county case been up held up for all this time because that is the first thing and these negatives lawsuits which of course involves possibly millions of dollars and millions of dollars up front but but you're not but you're not suing new hampshire and there's no direct action you're suing americanos ingraham right greg and there's either coverage for those people and there's not but i don't see why you had any reason to keep that in pan we did ask for the baiting that we've been asking to move forward but is it common for the employer pass to bait those cases and that's the end or a texas mutual case which i was on the losing side of which was the employer will have to be required to then and will be required to carry the same burden of proof because it's an affirmative that this and that case then rape takes mutual cases actually recent decision of the texas supreme court from april this year and i apologize for not submitting it doesn't directly impact this case but it's painter and it's case number sixteen dash zero two one zero game case number sixteen this year zero two one zero and it was decided april of this year and that is the follow up to enter a texas mutual that is the other proceedings going on with the crew members trying to sue the  line senates but it's important and that's the at the gamesmanship that can go on in worker's comp or seems you could have a worker's comp proceeding determine someone is not a spouse for worker compensation benefits but at the same time you could have other proceedings going on wrongful death for seedings and other proceedings or someone is a spouse right so coming back to this case you there in the argument that was  same argument was up here the last time it is were they a party grieved and the argument would be that they're under roscoe i think that there's county case in other words america conason greyhound could say this is not a non subscribers suit because our rough formation lasy balance but they could argue that we would of course think we could argue strongly and it's just like in a wrongful death proceeding if the worker's comp division has made a determination of course in sco i don't think that takes away a wrongful death which is the gross negligence  a judge i think would make a legal determination on a on a policy instruction if there was an argument about what date they were put on the policy setting that if it maybe not but i don't know how there could here but is well presented which has to do with standing and texas law administrative law as interpreted by the court seems rather narrow on standing here in it is statutory and it's a grave it's not that they've exhausted remedies it's not that they're not satisfied it's not that they're not upset about it but the statute requires they be aggrieved and it's a statutory term into the statutory worker's compensation system which a texas supreme court has held most aspects of it are constitutional and actually challenging seven aspects of it when you have a medical only the speed there is no provision for attorney things but that's the bottom the just energy texas case that was cited by judge tag which i believe we didn't discuss the first time around but it's been discussed when we're back here is not a worker's comp case but it's an employment case with the employer actually in that case where they determine an independent contractor was an employee for unemployment benefits in front employment benefits them poor saying wait that makes this an agree party and the dallas corps peoples which is a conservative or fields in texas  they said no you're not because you don't have to pay anything and there's not any dish don't charge a need in it show any additional charges like judge you asked they say they're going to at the refund premiums that's what happens premiums are allowed to be adjusted there's no evidence that they've refunded any premiums but what isn't evidence is that this is what i've called a past three or self funded policy it's a five million dollar policy with a five million dollar deductible they've argued it only applies to the employers think that's relevant and only bring it up because mr severe argued we may be it libel in the employer's lot villany portion no they're not at the end of the day any dollar that they've argued that that only applies to the imports liability portion of policy if that's true then and no liability for dollars into that portion either so what it is and why bring that up in the just energy texas case in that case if someone's an employer independent contractor yes that could certainly affect withholding over time and other matters but those more in the speech and work within the jurisdiction of the texas workforce commission in that case and  award workers compensation that is and they can determine coverage but that's not something exclusively in their jurisdiction because a number of these cases and when i cite to the excel case in my brief about whether you have to be named on the policy in that case a text spring court made the determination that the employer the other implore was it on the policy and they had to be named on the policy and that's ultimate i know this court probably won't reach it resolve that i wish they had the first i believe they could at this time because if you can't have a retroactive policy then you can it be agreed either and that's part of our argument and i principles of contract construction would apply here is apply everywhere else and if if if my insurance company forgot to put you know somebody on my pa say i had an individual policy and i meant for family coverage and they knew that and then somebody in the family gets hurt of course a we could do a retroactive free formation non workers that's but that makes no sense at all and it and the reason it makes sense it's not it's a bargain as you very well know and the bargain is you get a speedy compensation according to a standard formula even though it might be less and you're in what you wouldn't have lawyers charging you forty percent in and all the day late and so forth of court yes that's true but unlike other states where it's mandatory to be covered and that  and they can in church i mean we come in sit and say oh yeah you were supposed to have coverage but you weren't on the policy if someone came in and tried to say cover us here and they were early on the policy but in texas it's always been standard that you had that the policy in effect at the time of the injury not even getting minutes late and we cite a number of cases the first time around i cited the case of this done again that's not here but that's the but that's why you couldn't have a retroactive policy because every time someone got seriously hurt and there wasn't worker's comp in place in texas and in poor come in and say wait here's my policy are like karmas parallel garcia here it's eight ten nearly ten years after the injury and she doesn't have a dime yes thousand and five for surviving spouse of the peace officer and she received a few benefits and then they were stopped because she lost the final decision it's been all way up through the court system in texas i wish and that's why the red dragon determination i believe would help but just to get back to the aggrieved party there is nothing showing that the insurance company has had a set for any immediate damage or actual loss and that's the eros go decision is the deal decision for the opposite for the worker and i'm going to be honest with you miss christine go ahead last this decision at the administration level i believe she could have brought a lawsuit challenging that even if she were awarded workers compensation benefits but she is in a different position because she is the party in the district court proceeding in the negatives lossy but new mr mcclellan i've known him for a long time we've had a lot of cases together he's a well respected bush compensation attorney in texas i have to disagree with him on a number of matters first and foremost i think his representation of this court that the finding of the division have no effect on the chairman county case is simply false and inaccurate because even in his own brief he acknowledges the decision of the division on kerber it will be final and bind defense you have to establish that you are the employer and that there was a worker's compensation policy in force in effect that's exactly why they went through this process if they want to talk in this is where i have the problem with your argument though which is  that i i do not see the proof in new hampshire is on the hook for coverage in cut cameron count but what they're trying to do your honors they're using the division process to get a finding and some of the cases where there's no dispute about course and scope and there's no dispute about coverage i agree if you can assert those under diversity of the right to phone district i know that i'm just wondering why we don't we don't have this expertise in workers comp at all well if it was found in district court they had the right to new hampshire did not get the ultimately it sought in any manner and counts as being very careful in his answers and he is well aware that the court has jurisdiction because otherwise the first thing he would have done as would i is f jurisdiction was stipulated to the work prerequisites a four hundred fifty one were stipulated to his complied with this matter was litigated for two three years before the judge to spot it dismissed it and on motions for summ on coverage summary judgment motions filed for the employer status but at the end of the day we get back to you in the cases that were cited in this case is that the the issues a first group as well and the cases which they saddam era maps are is not a political because there's no dispute concerning coverage in that case there's no dispute concerning the existence of the workers compensation policy so they're well aware that they want this decision d not want this case to be to retirement on the merits they want this case to be determined in saying there's no standing so they can assert the division decisions final and binding and we're going to follow in cameron county to say there's no comp coverage there for which is a very many have said it is not upon so what we believe is in this case under this scenario any claimant could use this process to go to the division and make a finding there's no coverage whether in fact there's coverage or not there would be no remedy there be no appeal which is not what the statute provides and it's not what the constitutional provisions provide and it's not quite the