In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-15-00106-CV

JAN ROGERS FREEMAN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE 

ESTATE OF MICHAEL NEAL FREEMAN; JENNIFER PAIGE SCOGGINS; LAURIE LYNN 

CAVES; AND ASHLEY MICHELLE KIRKLAND, Appellants

V.

JI SPECIALTY SERVICES, INC., YORK RISK SERVICES GROUP, INC., AND DIANA 

MALDONADO, Appellees

On Appeal from the 71st District Court

Harrison County, Texas

Trial Court No. 15-626

Before Morriss, C.J., Moseley and Burgess, JJ.

Opinion by Justice Burgess
2

O P I N I O N

This appeal arises from a dispute involving workers’ compensation medical benefits for an 

injured law enforcement officer, Michael Neal Freeman (Freeman), who is now deceased. In 

September 2015, Jan Rogers Freeman, individually and as representative of the estate of Michael 

Neal Freeman, along with Jennifer Paige Scoggins, Laurie Lynn Caves, and Ashley Michelle 

Kirkland (collectively Appellants) filed suit against JI Specialty Services, Inc. (JI Specialty 

Services), York Risk Services Group, Inc. (York Risk Services), and Diana Maldonado 

(collectively Appellees). Appellants sought actual and exemplary damages from Appellees for 

their alleged intentional and grossly negligent conduct in matters involving Freeman’s workers’

compensation benefits. Appellees did not answer the suit; instead, they filed a motion to dismiss 

challenging the trial court’s subject-matter jurisdiction. Appellees argued that, pursuant to the 

Texas Workers’ Compensation Act (the Act), the trial court lacked subject-matter jurisdiction. 

The trial court granted Appellees’ motion and dismissed Appellants’ lawsuit. Appellants timely 

filed this appeal. For the reasons below, we affirm the trial court’s judgment.

I. Background1

On June 28, 2007, Freeman was employed by Harrison County, Texas, as a deputy sheriff. 

In performance of his duties, Freeman was seriously injured in a high-speed chase and suffered 

 

1Prior to filing this case, in August 2013, Appellants filed suit against JI Specialty Services and Maldonado in the 

Harrison County District Court alleging that they had failed and refused to adjust, authorize, and pay for certain 

workers’ compensation medical benefits, including a motorized wheelchair, a wheelchair accessible van, backup 

wiring for a generator for Freeman’s home, and a Hill ROM Total Spo2rt Bed - Model P1916EA1. In that case, 

Appellants’ final causes of action, which were amended after Freeman’s death, included wrongful death and survival 

claims, intentional infliction of emotional distress, abuse of process, Insurance Code violations, and gross negligence. 

In response, JI Specialty Services and Maldonado filed a motion to dismiss for lack of subject-matter jurisdiction due 

to Appellants’ alleged failure to exhaust their administrative remedies as required by the Act. The trial court granted 
3

disc herniations at C5-C6 and C6-C7. Harrison County participates in the Texas Association of 

Counties Risk Management Pool (the Risk Management Pool). See TEX. LOC. GOV’T CODE ANN.

§ 119.002 (West 2008).

2

 The Risk Management Pool enters into contracts with third-party 

administrators for the purpose of adjusting workers’ compensation claims; in Freeman’s case, the 

third-party administrator was JI Specialty Services. 

As a result of his injuries, Freeman underwent a cervical decompression. On July 25, 2011, 

Freeman had a second neck surgery, but due to an infection and complications, Freeman became 

a “ventilator dependent quadriplegic.”3 Appellants allege that, by April 2012, Freeman’s condition 

had deteriorated to the point that he needed a specialized bed in his home to prevent painful bed 

 

their motion to dismiss in December 2014. Appellants filed a motion for rehearing, which the trial court granted; 

however, before the parties obtained a rehearing, the Texas Supreme Court released In re Crawford. See In re 

Crawford & Co., 458 S.W.3d 920 (Tex. 2015) (per curiam). Appellants state that they nonsuited their case in order 

to reassess which claims remained viable in light of the court’s decision in Crawford. In September 2015, Appellants 

filed their original petition against Appellees in this litigation asserting causes of action for wrongful death and survival 

claims as well as a claim for gross negligence. Appellants sought actual damages and exemplary damages. 

In addition to Appellees’ argument that the trial court lacked subject-matter jurisdiction, Appellees also 

contend that the Appellants’ suit is barred by the doctrine of res judicata because a final judgment addressing the same 

issues and containing the same parties was issued in December 2014, when the trial court granted their motion to 

dismiss. Because we affirm the trial court’s judgment granting dismissal for lack of subject-matter jurisdiction, we 

decline to address the issue of res judicata.

2Section 119.002 states, 

(a) On the adoption of a resolution by the commissioners courts of at least 10 counties 

in this state, the County Government Risk Management Pool is created to insure each county in this 

state that purchases coverage in the pool against liability for acts or omissions of that county and 

the officials and employees of that county under the law. 

(b) Any county in this state that meets the criteria established by the pool in its plan 

of operation may purchase coverage from the pool. The county may use county funds to pay any 

fees, contributions, or premiums required to be a part of the pool and to obtain coverage through the 

pool. 

TEX. LOC. GOV’T CODE ANN. § 119.002.

3At approximately the same time, York Risk Services was in the process of purchasing JI Specialty Services. 
4

sores and the accumulation of fluid in his lungs. In an effort to alleviate these problems, 

Dr. Gregory Stocks prescribed the Hill TOM Total Spo2rt Bed - Model P1917EAI and submitted 

his request for preauthorization. Appellants claim that several other health-care practitioners who 

dealt with Freeman requested the specialized bed. Appellants maintain that Appellees refused to 

provide an appropriate bed for Freeman.4 

In their petition, Appellants allege that Appellees were “consciously indifferent to 

[Freeman’s] suffering and the harm that would occur to him without the specialized bed.” They 

allege wrongful death and survival causes of action arising out of Appellees’ intentional conduct, 

gross negligence, and negligence. They further allege that, as a direct cause of Appellees’ gross 

negligence, Freeman’s wife and children suffered pecuniary loss, loss of consortium, loss of 

companionship and society, and mental anguish. Appellants claim they were entitled to recover 

exemplary damages as a result of Appellees’ alleged gross negligence and intentional conduct. In 

addition, Appellants alleged Freeman’s estate sustained actual damages. Appellees responded by 

filing a motion to dismiss for lack of subject-matter jurisdiction. The trial court granted Appellees’ 

motion and dismissed Appellants’ suit. Appellants contend the trial court erred when it granted 

Appellees’ motion to dismiss. We disagree.

II. Standard of Review

Whether a trial court has subject-matter jurisdiction is a question of law and is subject to a 

de novo review. Tex. Nat. Res. Conservation Comm’n v. IT–Davy, 74 S.W.3d 849, 855 (Tex. 

 

4Appellants state that Appellees used as their justification a November 1, 2012, peer review from Dr. Bruce Friedman 

to provide a pretext for refusing the bed. Friedman allegedly opined that the “Rotorest bed” was determined to not be 

feasible for a “home setting” and could only be safely used in an acute hospital setting or long-term, acute-care facility. 
5

2002). When a trial court lacks subject-matter jurisdiction, the trial court’s judgment must be 

reversed and the case dismissed. City of Garland v. Louton, 691 S.W.2d 603, 605 (Tex. 1985)

(per curiam). A motion to dismiss due to a lack of subject-matter jurisdiction is the functional 

equivalent of a plea to the jurisdiction. Trutec Oil & Gas, Inc. v. W. Atlas Int’l, Inc., 194 S.W.3d 

580, 584 (Tex. App.—Houston [14th Dist.] 2006, no pet.); Anderson v. City of San Antonio, 120 

S.W.3d 5, 7 (Tex. App.—San Antonio 2003, pet. denied). A plea to the jurisdiction challenges the 

trial court’s authority to determine the subject matter of a cause of action. Tex. Dep’t of Parks & 

Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). 

“[W]e first look to the pleadings to determine if jurisdiction is proper, construing them 

liberally in favor of the plaintiffs and looking to the pleader’s intent,” and “we consider relevant 

evidence submitted by the parties when necessary to resolve the jurisdictional issues raised.” City 

of Waco v. Kirwan, 298 S.W.3d 618, 621, 622 (Tex. 2009). In considering any jurisdictional 

evidence, we “‘take as true all evidence favorable to the nonmovant’ and ‘indulge every reasonable 

inference and resolve any doubts in the nonmovant’s favor.’” Id. at 622 (quoting Miranda, 133 

S.W.3d at 228). In general, the standard mirrors that of a traditional summary judgment motion. 

Miranda, 133 S.W.3d at 227. 

III. Discussion

A. Exclusive Jurisdiction

1. Applicable Law

In this case, the trial court has subject-matter jurisdiction to hear a claim and award 

damages “only to the extent that relief is not dependent upon the adjudication, directly or 
6

indirectly, of a matter within the [Texas Department of Insurance–Workers’ Compensation 

Division’s (the Division)] exclusive jurisdiction.” Cunningham Lindsey Claims Mgmt., Inc. v. 

Snyder, 291 S.W.3d 472, 477 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). The Act 

provides that the recovery of workers’ compensation benefits is the exclusive remedy of an 

employee covered by workers’ compensation insurance for a work-related injury. TEX. LAB.CODE 

ANN. § 408.001(a) (West 2015). “The [Act] vests the power to award compensation benefits solely 

in the Workers’ Compensation Commission . . . , subject to judicial review.” Am. Motorists Ins. 

Co. v. Fodge, 63 S.W.3d 801, 803 (Tex. 2001) (quoting Saenz v. Fid. & Guar. Ins. 

Underwriters, 925 S.W.2d 607, 612 (Tex. 1996)). “The determination that an agency does [or]

does not have exclusive jurisdiction is a question of law, which we review de novo.” Snyder, 291 

S.W.3d at 477.

2. Analysis

As pointed out by Appellees, the crux of this case is found in the exclusive remedy 

provision of the Texas Labor Code, which states: 

(a) Recovery of workers’ compensation benefits is the exclusive 

remedy of an employee covered by workers’ compensation insurance coverage or 

a legal beneficiary against the employer or an agent or employee of the employer 

for the death of or a work-related injury sustained by the employee.

(b) This section does not prohibit the recovery of exemplary damages[5]

by the surviving spouse or heirs of the body of a deceased employee whose death 

was caused by an intentional act or omission of the employer or by the employer’s 

gross negligence.

 

5To the extent Appellants seek actual damages, subpart (b) is inapplicable. 
7

(c) In this section, “gross negligence” has the meaning assigned by 

Section 41.001, Civil Practice and Remedies Code.

TEX. LAB. CODE ANN. § 408.001 (West 2015). 

Appellants maintain their claims for the “grossly negligent and intentional death of 

[Freeman] are separate and apart from the administrative remedies afforded them.” They state that 

“the Legislature was cognizant of a Constitutionally granted right to bring suit for exemplary 

damages for grossly negligent and intentional conduct that results in death and therefore set out a 

specific subpart alongside and apart from the Exclusive Remedy Provision which allows 

Appellants[’] suit.” Appellants reason that subpart (a) does not trump subpart (b); instead, “each 

subpart stands on its own and recovery may be had under either if the facts support it.” Relying 

completely on subpart (b), Appellants contend that their case falls within the exception to the 

exclusive remedy provision.

In support of Appellants’ position, they emphasize the Texas Supreme Court’s decision in 

Crawford. See Crawford, 458 S.W.3d at 920. In Crawford, a workers’ compensation claimant 

and his spouse (collectively the Johnsons) brought a lawsuit against the insurer, its claims services 

contractors, and its employee (collectively Crawford) for numerous causes of action, some 

sounding in tort,6some sounding in contract,7and some alleging violations of the Texas Insurance 

Code and the Texas Deceptive Trade Practices Act. Id. at 922. 

 

6The tort causes of action included negligence; gross negligence; negligent, fraudulent, and intentional 

misrepresentation; fraud; fraud by non-disclosure; fraudulent inducement; intentional infliction of emotional distress; 

malicious prosecution; and conspiracy. Crawford, 458 S.W.3d at 922.

7The contract causes of action included breach of contract, quantum meruit, and breach of the common-law duty of 

good faith and fair dealing. Id.
8

The Johnsons specifically pled that the Act did not require them to pursue their claims 

through the Division’s administrative procedures and that they did not need to exhaust their 

remedies because 

(1) the Act’s administrative procedures [did] not apply to some of their claims; 

(2) Crawford’s “subterfuge” of the workers’ compensation system relieve[d] 

[plaintiffs] from any duties under that system; and (3) the Johnsons [were] seeking 

to recover for “independent injuries . . . that [were] unrelated to . . . workers[’] 

compensation injuries and the benefits that he [was] entitled to under the system.” 

Id. The Johnsons agreed that they were required to pursue their claims for workers’ compensation 

benefits through the administrative process; however, they argued that “they [could] pursue [the] 

claims for additional, independent, and ‘unrelated’ damages in the courts.”8 Id. 

The court concluded that the Division had exclusive jurisdiction over plaintiffs’ claims and 

that the Act provided their exclusive remedies. Crawford, 458 S.W.3d at 923. Referring to 

Ruttiger,

9

the court explained,

[T]he Act, as substantially revised in 1989, “prescribes detailed, [Division]-

supervised, time-compressed processes for carriers to handle claims and for dispute 

resolution” and “has multiple, sometimes redundant but sometimes additive, 

penalty and sanction provisions for enforcing compliance with its requirements.”

 

8For instance, the Johnsons sought damages based on the insurance adjuster falsely accusing them of insurance fraud, 

which lead to their arrest and a two-year ordeal to clear their names. Crawford, 458 S.W.3d at 922. In its ruling, the 

court stated:

We now turn to the Johnsons’ claims for malicious prosecution and intentional infliction of 

emotional distress, which are both based on allegations that Crawford falsely reported to a district 

attorney that the Johnsons committed insurance fraud by requesting mileage reimbursements for 

travel that had not occurred. We hold that the Division has exclusive jurisdiction over these claims 

because they also arise out of Crawford’s investigation, handling, and settling of the Johnsons’ 

claims for workers’ compensation benefits.

Id. at 927.

9

In Ruttiger, the Texas Supreme Court eliminated certain statutory and common-law claims arising from an insurer’s 

adjustment, handling, and settling of workers’ compensation claims. Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 

457 (Tex. 2012) (Willett, J., concurring).
9

Crawford, 458 S.W.3d at 923 (quoting Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 433 (Tex. 

2012)). The Crawford court stated, “‘Recognizing and respecting the Legislature’s prime position 

in enacting, studying, analyzing, and reforming the system, and its efforts in having done that’ we 

concluded that ‘[t]he Act effectively eliminates the need for a judicially imposed cause of action 

outside the administrative processes and other remedies in the Act.’” Id. at 924 (quoting Ruttiger, 

381 S.W.3d 451). The court further stated, “[T]he rule we applied in Ruttiger is that the Act 

provides the exclusive process and remedies for claims arising out of a carrier’s investigation, 

handling, or settling of a claim for workers’ compensation benefits.” Id. at 925–26.

The Texas Supreme Court continued, “We did not hold in Ruttiger, however, that the Act 

bars every statutory and common law claim that can be asserted against a workers’ compensation 

carrier.” Id. at 924 (citing Ruttiger, 381 S.W.3d 445–46). Citing Rodriguez v. Naylor Indus., Inc., 

763 S.W.2d 411, 412 (Tex. 1989), the court went on to explain that an exception to the rule exists 

when “a spouse is pursuing a loss of consortium claim where there is evidence that the employer’s 

intentional tort caused the employee’s injury.”10 Crawford, 458 S.W.3d at 928 (citing Rodriguez, 

763 S.W.2d at 412).11 Based on Crawford, Appellants argue that the Texas Supreme Court 

specifically gave an example of a permissible cause of action [i.e., consortium], and it is one by 

which Appellants herein have brought suit.” 

 

10In Rodriguez, the spouse was suing her husband’s employer for loss of consortium resulting from personal injuries 

her husband suffered following a tire blowout on a truck he was driving at work. Rodriguez, 763 S.W.2d at 411–12.

11The court concluded that, even if the spouse had standing to assert her claims, they fell within the Division’s 

exclusive jurisdiction. Crawford, 458 S.W.3d at 928. 
10

Appellees maintain that the Act remains Appellants’ exclusive remedy because their 

alleged claims arise out of Appellees’ conduct in the adjusting, handling, or settling of Freeman’s 

workers’ compensation benefits prior to his death. Moreover, Appellees contend that Appellants 

ignore the fact that subpart (b) is applicable only in cases involving an employer and that this is 

not such a case. Appellees point out that the cases cited by Appellants, especially Smith v. Atlantic 

Richfield12 and Barnes v. United Parcel Service, Inc.,

13 are suits involving employers. They 

emphasize that Smith and Barnes stood for the proposition that, even if a deceased worker had not 

exhausted his or her administrative remedies under the Act, either by not claiming benefits (as in 

Smith) or by failing to exhaust administrative remedies (as in Barnes), a suit by a family member 

against the decedent’s employer for exemplary damages is not prohibited under various legal 

theories. 

While Appellants do not dispute the fact that Appellees were not Freeman’s employers, 

they argue, without directing us to any cases in support of their argument, that Appellees have 

construed the exclusive remedy provision too narrowly. We disagree. It is well settled that we 

are required to follow the plain meaning of a statute. Meno v. Kitchens, 873 S.W.2d 789, 792 

(Tex. App.—Austin 1994, writ denied). Courts must presume that every word in a statute has been 

used for a purpose and that every word excluded was excluded for a purpose. Cameron v. Terrell 

 

12In Smith, the family of the deceased employee, who during the course of employment was exposed to carcinogenic 

substances, contracted cancer, and died, brought suit against the employee’s employer for wrongful death to recover 

exemplary damages. Smith v. Atl. Richfield Co., 927 S.W.2d 85 (Tex. App. —Houston [1st Dist.] 1996, writ denied).

13In Barnes, the fiancée of an employee who suffered a fatal heart attack at work brought a gross negligence action 

against his employer after denial of workers’ compensation benefits on behalf of her son. Barnes v. United Parcel 

Serv., Inc., 395 S.W.3d 165 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
11

& Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981). Contrary to Appellants’ argument, had the 

Legislature intended to include insurance companies, risk management pools, third-party 

administrators, or other agents of employers in subpart (b),14 it could have easily done so. It plainly 

chose not to, and we decline to interpret the language of subpart (b) to mean anything other than 

its plain meaning. Under these circumstances, Section 408.001(b)’s exception to the exclusive 

remedy provision is of no assistance to Appellants. 

B. Failure to Exhaust Administrative Remedies

Having determined that Appellants’ claims fall within the scope of the exclusive remedy 

provision of Section 408.001(a), we must now consider whether Appellants’ petition sufficiently 

alleges that they have exhausted their administrative remedies as required by that section. 

Appellees contend that Appellants failed to exhaust their administrative remedies prior to filing 

their lawsuit in the district court. Appellants maintain the issue is not whether Appellees followed 

the proper procedure, but that, instead, the issue is whether Appellees’ conduct was intentional or 

grossly negligent. 

1. Applicable Law

A claimant is required to exhaust all administrative remedies with the Division before suing 

an insurer15 on statutory and tort claims alleging denials, delays, interruptions, and premature 

 

14We note that the Legislature included “employer or an agent or employee of the employer” in subpart (a). Had they 

wanted to include such language in subpart (b), they could have done so. As such, we find it unnecessary to determine 

if Appellees were acting as agents of Freeman’s employer, Harrison County, nor do we find it necessary to determine 

the ramifications of making such a finding. 

15Statutorily, the Risk Management Pool is subject to the provisions of the Act, but it is not considered “insurance” 

for purposes of the Insurance Code and other laws of the State. TEX. LAB. CODE ANN. § 119.008 (West 2008).
12

terminations of medical treatment. TEX. LAB. CODE ANN. § 410.251 (West 2015).16 The 

exhaustion requirement ensures that the administrative agency has had the opportunity to resolve 

 

16An insurance carrier is required to approve or deny a preauthorization request and provide notice of its decision to 

the claimant or health-care provider within three working days of receipt of the request. 28 TEX. ADMIN. CODE 

§ 134.600(i) (West, Westlaw current through Oct. 7, 2016) (Tex. Dep’t of Ins., Div. of Workers’ Comp., 

Preauthorization, Concurrent Utilization Review, and Voluntary Certification of Health Care). The insurance carrier 

must provide a written notice of its decision to the injured employee or his representative within one working day of 

the decision. 28 TEX. ADMIN. CODE § 134.600(j) (West, Westlaw current through Oct. 7, 2016) (Tex. Dep’t of Ins., 

Div. of Workers’ Comp., Preauthorization, Concurrent Utilization Review, and Voluntary Certification of Health 

Care). A denial of preauthorization shall include the clinical basis for the denial, a description or the source of the 

screening criteria that were utilized as guidelines in making the denial, the principal reasons for denial, if applicable, 

a plain language description of the complaint and appeal process, and after reconsideration of a denial, notification of 

the availability of an independent review. 28 TEX. ADMIN.CODE § 134.600(m) (West, Westlaw current through Oct. 7, 

2016) (Tex. Dep’t of Ins., Div. of Workers’ Comp., Preauthorization, Concurrent Utilization Review, and Voluntary 

Certification of Health Care).

When an insurance carrier refuses preauthorization, the claimant or health-care provider may request 

reconsideration within thirty days of receipt of a written denial and is required to document the reconsideration request. 

28 TEX. ADMIN. CODE § 134.600(o)(1) (West, Westlaw current through Oct. 7, 2016) (Tex. Dep’t of Ins., Div. of 

Workers’ Comp., Preauthorization, Concurrent Utilization Review, and Voluntary Certification of Health Care). The 

insurance carrier is required to reply to a request for reconsideration within thirty days after receiving a request for 

reconsideration of denied preauthorization or three working days of receipt of a request for reconsideration of denied 

concurrent review. 28 TEX. ADMIN. CODE § 134.600(o)(2) (West, Westlaw current through Oct. 7, 2016) (Tex. Dep’t 

of Ins., Div. of Workers’ Comp., Preauthorization, Concurrent Utilization Review, and Voluntary Certification of 

Health Care).

If reconsideration is denied, a health-care provider or employee may appeal the denial by filing a request for 

medical dispute resolution by an independent review organization with the Division. TEX. LAB. CODE ANN.

§§ 413.031–032 (West 2015); 28 TEX. ADMIN. CODE § 134.600(o)(4) (West, Westlaw current through Oct. 7, 2016) 

(Tex. Dep’t of Ins., Div. of Workers’ Comp., Preauthorization, Concurrent Utilization Review, and Voluntary 

Certification of Health Care). Medical necessity disputes are considered either “categorized as preauthorization or 

concurrent medical necessity” or “retrospective medical necessity” disputes. 28 TEX. ADMIN. CODE 133.305(a)(4)

(West, Westlaw current through Oct. 7, 2016) (Tex. Dep’t of Ins., Div. of Workers’ Comp., MDR–General). A request 

for independent review of a medical necessity dispute must be filed no later than the forty-fifth calendar day after 

receipt of the insurance carrier’s denial of an appeal. 28 TEX. ADMIN. CODE § 133.308(h) (West, Westlaw current 

through Oct. 7, 2016) (Tex. Dep’t of Ins., Div. of Workers’ Comp., MDR of Medical Necessity Disputes). In addition, 

the Division may dismiss an independent review of a request for medical necessity dispute resolution if the requestor 

informs the Division, or the Division determines, that the dispute no longer exists. 28 TEX. ADMIN. CODE

§ 133.308(i)(1) (West, Westlaw current through Oct. 7, 2016) (Tex. Dep’t of Ins., Div. of Workers’ Comp., MDR of 

Medical Necessity Disputes).

A party to a medical necessity dispute may appeal the independent review organization’s decision by asking 

for a contested case hearing. 28 TEX. ADMIN. CODE § 133.308(s)(1) (West, Westlaw current through Oct. 7, 2016) 

(Tex. Dep’t of Ins., Div. of Workers’ Comp., MDR of Medical Necessity Disputes). A benefit review conference is 

not a prerequisite to a division contested case hearing in this instance. Id. Finally, a party to a medical necessity 

dispute who has exhausted all administrative remedies may seek judicial review of the Division’s decision. 28 TEX.

ADMIN. CODE § 133.308(s)(1)(F). 
13

any disputed fact issues within its exclusive jurisdiction before a district court addresses those 

issues. See Essenburg v. Dallas Cty., 988 S.W.2d 188, 189 (Tex. 1998) (per curiam). 

2. Analysis

First, Appellants claim that, “[b]y failing to subject themselves to discovery, Appellees 

misconstrue, if not mislead the Court regarding the evidence.” They state, 

Appellees would have us believe that getting benefits from them was as easy as 

ordering a Big Mac from McDonalds when the gravamen of Appellants [sic] 

Petition is that, instead, Appellees were like a black hole of nothingness where no 

fewer than seven (7) health care providers requested that Appellees pay for a 

specialized bed for Deputy Freeman, in addition to the repeated instances by his 

attorneys and his family and yet Appellees took no action on the requests. 

We construe Appellants’ statement to mean that they repeatedly made the requests for the 

specialized bed, but they received no response from Appellees; therefore, they had no denial to 

submit through the administrative channels. Appellants’ petition, however, states, “Defendants 

refused to provide an appropriate bed for Deputy Freeman. They used as their justification a 

November 1, 2012[,] peer review from Dr. Bruce Friedman, a burn specialist . . . .” They state 

further, “Defendants maintained their refusal to authorize said bed despite the fact that Deputy 

Freeman had around the clock skilled health care workers attending to him . . . .” Whether 

Appellants received a denial of their request or they failed to receive an answer at all, either 

complaint could have been submitted to the Divsion. Although Appellants’ petition reflects that 

they repeatedly asked for the specialized bed, there exists no statement in their petition that they 

even attempted to exhaust their administrative remedies prior to filing suit in district court.
14

Instead, Appellants make the following claim: 

JI SPECIALTY SERVICES, INC. and YORK RISK SERVICES GROUP, INC.

“have tacitly accepted culpability for the death of Deputy Freeman by paying death 

benefits to Plaintiff Jan Freeman. These defendants were under no affirmative duty 

to pay benefits for death due to natural causes or an ordinary disease of life. Instead, 

they have tendered death benefits to Jan Freeman in compensation for her loss. 

Thus, all administrative remedies under the Texas Workers [sic] Compensation Act 

for the death of Deputy Freeman have been exhausted. 

Appellants point to no authority to support their claim that, because Appellees tendered death 

benefits, they are excused from exhausting their administrative remedies. Moreover, Appellants’ 

statements acknowledge the requirement that they must exhaust their administrative remedies prior 

to filing suit. 

The Houston Court of Appeals addressed a similar issue in Macias v. Schwedler, 135 

S.W.3d 826 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). In that case, the wife (Macias) 

of an employee brought a wrongful death action against a workers’ compensation insurance 

company and its employees (the Company) who were involved in the denial of her husband’s 

workers’ compensation claim. Id. at 827–28. She brought the suit individually, on behalf of her 

husband’s estate, and as next friend of the couple’s children. Id. at 828. She alleged that the 

Company knowingly violated the Texas Insurance Code. She also alleged claims of fraud, unfair 

settlement practices, and intentional infliction of emotional distress. The Company filed a motion 

to dismiss for lack of subject-matter jurisdiction arguing that Macias’ petition failed to state facts 

showing that the decedent (or plaintiff) exhausted her administrative remedies before the Division 

and that the trial court had no jurisdiction to adjudicate Macias’ claim for workers’ compensation 

benefits. Id. at 829. The trial court granted the Company’s motion to dismiss. Id.
15

On appeal, Macias argued, among other things, that, “because this is not a suit to recover 

compensation benefits as damages, there is no determination of benefits or medical treatment for 

the Commission to make, and therefore, there is no need to exhaust administrative remedies under 

the [Act].” Id. In affirming the trial court, the Houston Court of Appeals stated, “Macias ignores 

that each of these grounds of recovery is based on Macias’s assertion that benefits for Manuel 

Macias were wrongly denied. Therefore, the basis for the denial of benefits is central to the 

lawsuit.” Id. 

As in Macias, Appellants have attempted to find a way around the Act’s requirement that 

they exhaust their administrative remedies. Their claims fit squarely within the parameters of the 

Act, and they fall outside of the exceptions to the exclusive remedy provision, subpart (b), because 

they have filed suit against Appellees, not Freeman’s employer. They were required to exhaust 

their administrative remedies in accordance with the Act. Their petition is void of any statement 

claiming that they did. “As we have often explained, claimants may not recast claims to avoid 

statutory requirements or to qualify for statutory protections.” Crawford, 458 S.W.3d at 926 

(citing Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 851 (Tex. 2005)). 

IV. Conclusion

Because Appellants have no claim against an insurance adjuster for intentional conduct or 

gross negligence resulting in death under Section 408.001(b) and because their claims arise out of 

the denial of medical benefits under the Act, Appellants’ claims fall within the exclusive remedy 

provision of Section 408.001(a). Because Appellants have not alleged facts sufficient to establish 

that they exhausted their administrative remedies under that section, their petition fails to 
16

demonstrate that the trial court had subject-matter jurisdiction to consider their claims. 

Accordingly, the trial court correctly granted Appellees’ plea to the jurisdiction and dismissed 

Appellants’ petition.17 Consequently, we affirm the trial court’s judgment.

Ralph K. Burgess

Justice

Date Submitted: May 23, 2016

Date Decided: November 3, 2016

 

17See Crawford, 458 S.W.3d at 929 (“Because [the plaintiffs] failed to exhaust their administrative remedies under the 

Act prior to filing this action, the trial court lacked jurisdiction and should have dismissed it.”).