## IN THE SUPREME COURT O F TEX AS

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### T E X A S 

### M U T U A L 

### I N S U R A N C E 

### C O M P A N Y 

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. L A N C E 

### M O R R IS 

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F O U R T E E N T H D I S T R I C T O F T E X A S

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P ER CURIAM

L ance Morris injured his back while wo rk i n g and his employ er’ s worke rs’ compensa tion insurer, Texas Mutual I nsuranc e Company (TMI C), acc epted the injury a s c o mp e n s able. Three y ear s later when it was discovere d that Morris had hernia ted lumbar interver tebra l discs, TMI C disputed whether they wer e causa lly rela ted to the orig inal injury

. The Texas Depa rtment of I nsuranc e Division of Workers’ Compensation (the division) deter mined that the disc hernia tions wer e rela ted
t o the orig inal injury and order ed TMI C to pay medical benef its, which it did. Morris later s u ed TMI C for damag es cause d by its delay in pay ing benef its. T h e t ri al co u rt rende red judgme nt for Morris, and the court of appea ls aff irmed. Ba sed on our rec ent decision in Texas Mutual Insurance Co. v. Ruttiger , ___ S.W .3d ___ (Tex. 2012), we r ever se and r ender judgme nt for TMI C. On J une 12, 2000, Morris injured his b ac k wh ile working for the J ustin Communi ty Vol u n t ee r Fire Depa

rtment. The Fire Depa

rtment repor

ted to TMI C that Morris had strained hisback while working

. TMI C acc ept ed t h e i n j u ry as compensa

ble and paid benef

its. I n Marc h of 2003, Morris went to a hospital emer g ency room with sever e back pain and was diag nosed as having hernia ted lumbar disc s . On April 1, 2003, Dr. Charles Neblett reque sted TMI C to prea uthorize lumbar laminectomy surg ery to trea t the hernia ted discs. TMI C approve d the surg ery as medically

nece ssary , see 28 T E X . A D M I N . C O D E § 134.600, but later disputed its compensability on the basis that the her

niated discs we re not c ausally rela ted to the Marc h 2000 injury

. Morris eventua lly reque sted, and the d iv is io n held, two benef it revie w confe renc es to attempt to resolve the compensa

bility dispute. See T E X . L A B . C O D E § 410.021. The dispute was not resolved

so a contested case hear ing was held. See id. § 410.025. The hear ing office r conclude d that Morris’s orig inal injury cause d or ag g rava ted the lumbar disc hernia tions, they wer e compensa ble, and TMI C

was lia b le for compensa tion. The division specific ally order ed TMI C to pay medical benef its. TMI C then paid Morris both medica l and income be nefits re lating to the disc problems. Morris sued TMI C for violating article 21.21 of the I nsuranc e Code, brea ching its common 1 law duty of good faith and fair dealing, and violating t h e De ce p t i v e Trade Practices Act (DTPA), T E X . B U S . & C O M . C O D E §§ 17.41–.63. His suit was based on TMI C’s denial of compensa bility and delay in pay ing benef

its until order ed to do so by the division. A jury found for Morris and awa rded damag es for past mental ang uish, damag e to his cre dit reputa tion, additional damag es beca use TMI C
acte d knowing ly , and attorney ’s fee s. The trial court rende red judgme nt that Morris rec over under

T h e L e g i s l a t u r e h a s r e - c o d i f i e d I n s u r a n c e C o d e a r t i c l e 2 1

. 2 1 a n d p l a c e d t h e r e l e v a n t p r o v i s i o n s i n I n s u r a n c e 1 C o d e C h a p t e r 5 4 1

. R e f e r e n c e s t o I n s u r a n c e C o d e p r o v i s i o n s w i l l b e t o t h e r e - c o d i f i e d s e c t i o n s . 2his I nsuranc e C ode claim. The judgment also provided that if the I nsuranc e C ode claim failed on

appea l, he could ele ct to rec over unde r the c ommon law claim or the D TPA claim. The court of appea ls conclude d that there was no evidenc e to support the damag es awa rded for loss of cre dit r eputation. I t r ever sed the trial court’s judgme nt in part and rema nded for further proce eding s. 287 S.W .3d 401, 434-35. I n this Court TMI C seeks reve rsal of that part of the court of appea ls’ judgme nt favor able to Morris. I t advanc es multiple reasons, but we addre ss only four of them. We first consider an arg ument TMI C did not raise in the courts below: the trial court did not have jurisdiction over Morris’s suit beca use he did not exhaust administrative reme dies available to him under the Workers’ Compensation Act (Ac t). T E X . L A B . C O D E §§ 410.002–.308; Am. Motorists Ins. Co. v. Fodge , 63 S.W .3d 801, 804-05 (Tex. 2001); see, e.g. , Minton v. Gunn , 355 S.W .3d 634, 639 (Tex. 2011) (re cog nizi ng that we must have jurisdiction to consider an appea l be fore rea ching the merits). TMI C asser

ts that beca

use Morris’s claim is for delay damag es—dama g es from TMI C’s delay in pay ing benef

its while it was contesting compensa bility of the lumbar claim—the trial court did not have jurisdicti o n b ec au s e Morris did not timely use reme dies aff orded by the Act for

o b t ai ning benef

its. TMI C say s the evidence is undisputed that Morris (1) delay ed in reque s t i n g a first benef

it revie w confe renc e for more than six months afte r TMI C contested compensa bility ; (2) did not reque st the division to enter an interlocutory order direc ting TMI C to pay benef its; (3) failed in his reque st for a benef

it revie w confe renc e to explain why an expedited setting was neede d, thus causing the division to not set an ex p ed ited confe renc e; (4) ag ree d to two non-expedited benef it revie w confe renc es; and (5) ag ree d to a non-expedited contested case hear ing. Morris responds, in
3part, that (1 ) the division proce dures which TMI C claims he did not timely use cannot be

jurisdictional beca

use they are permissive, not mandatory ; (2) he obtained a division finding that his back surg ery and subsequent medical trea tment wer e compensa ble so he complied with the exhaustion require ments set out in Fodge , 63 S.W .3d 801; and (3) his actions and inactions of which TMI C complains are not jurisdictional matters, but rathe r g o to the question of whether he mitigated his damag es and TMI C waived that issue by not raising it in the lower cour ts. We held in Fodge th at a t ri al court does not have jurisdiction over a claim for delay in providing compensa tion benef its if the division has not made a deter mination that the benef

its wer e due. Id. at 802, 804-05. T h er e, worke rs’ compensa tion claimant Anne Fodg e claimed she was injured on the job and Americ an Motorists, her employ er’ s compensa tion insurer, denied the claim. Id. at 802. The division deter mined at a contested case hear ing that she had been injured on the job and was entitled to temporar y income benef

its, but it did not deter

mine whether she was entitled to any medical benef

its. Id. Fodg e then sued Americ an Mot o rists. Part of her claims wer e that Americ an Mot orists’ delay in pay ing income and medical b en ef i t s until afte r t he divi sion order ed it to do so violated the DTPA and I nsuranc e Code and brea ched its common law duty of g ood faith and fair dealing

. Id. at 802-03. We note d that the division had exclusive jurisdiction to de termine whether benef

its wer e due to Fodg e an d i t h ad n ot y et deter mined whether she was entitled to medical benef

its, althoug h it had deter

mined she was entitled to income benef its. Id. at 804-05. We held that the trial court had jurisdiction over Fodg e’s claim for delay ed pay ment of income benef

its, but beca use the division had not deter mined that she was entitled to medical benef its the trial court did not have jurisdiction over her claim for delay ed medical benef its. Id. at 8 0 4

. Bu t we did not
4addre ss w hether the timing of a claimant’s utiliz ation of the Act’s proce dures is a n issue that must be dete rmined by

the division before a trial c ourt has jurisdiction over a claim for de lay

damag es. The Act contains certain deadlines that must be met. I t specifies that an inj ured employ ee must g ive notice of injury to the employ er not later than the thirtieth day afte r t h e i n j u ry occur s. T E X . L A B . C O D E § 409.001(a)

. An employ ee’ s failure to timely g ive notice of injury can relieve the insurer of its obliga tion to pay compensa tion. Id. § 409.002. The Act also specifie s that an injured employ ee must file a claim for compensa tion not later than one y ear afte r the injury occur s, or, if the injury is an occupational disease, not later than one y ear afte r the employ ee knew or should have known that the injury

may be re lated to the employ

ment. Id. § 409.003. An employ ee’ s failure to timely file a claim for compen s at i o n ca n also relieve the insurer of its obliga tion to pay compensa tion. Id. § 409.004. But TMI C points to no provision in the Act that specifie s time limit s for claimants to reque st benef it revie w confe renc es, penalizes claimants if they delay in reque sting them, or require s the division to deter mine whether employ ees’ benef it revie w confe renc e reque sts

are timely

. The section of the Act addre ssing reque sts for benef it revie w confe renc es provides only that the division may “[o] n rec eipt of a reque st from a party or on its own motion” direc t the parties
to meet in a benef

it revie w confe renc e. Id. § 410.023(a)

. Given the silence of the Ac t as t o time constraints for claimants to r equest a benef it r eview confe renc e or the eff ect of delay in f

iling one,

we conclude that Morris is corr ect. The same g oes for interlocutory order s and delay s in connec tion with contested c ase he aring s. We conclude tha t under this rec ord, Morris’s de lay s in r equesting division action were not jurisdictional in nature , but rathe r wer e matters of whether he mitigated h i s d am age s . Thus his

5delay s in seeking relief from the division did not de prive the trial court of jurisdiction. Be cause of

our dispositi on of the appea l we do not further addre ss the timeliness of Morris’s seeking relief from the division. Next we consider TMI C’s arg ument that cause s of action for unfair claims settlement prac tices under

I nsuranc e Code section 541.060 and brea ch of the common law duty of g ood faith and fa i r dealing do not apply in the worke rs’ compensa tion context. After the parties filed their 2 briefs, we held in Ruttiger that a claimant cannot rec over damag es u n d er s ec tion 541.060 from a worke rs’ compensa tion insurer for unfair claims settlement prac tices. ___ S.W .3d at ___. We also held that amendments to the Act eliminated the need for a cause of action for brea ch of the common law duty of g ood faith and fair dealing ag ainst worke rs’ compensa tion insurers. Id. at __ (over ruling Aranda v. Ins. Co. of

N. Am. , 748 S.W .2d 210, 212-13 (Tex. 1988)). I n acc ord with our decision in Ruttiger we a g ree with TMI C that Morris cannot re cover on either of

these c laims. Finally , we addre ss whether Morris can rec over under I nsuranc e Code section 541.061. We held in Ruttiger that a cause of action under section 541.061 for misrepre sentation of an insurance policy is not nece ssarily

incompatible with the worke rs’ c ompensation sy stem. Id. at ___. TMI C arg ues that the ba sis of Morris’s claim for misrepre sentation is TMI C’s filing of the dispute based

on a lack of causa l rela tionship betwee n the 2000 injury and the disc hernia tions, and that its dispute simply was not a misrepre sentation of its policy

. Morris does not contest TMI C’s position or point
to any statements or actions by TMI C that he contends constituted untrue statements about or failure

M o r r i s a s s e r t s t h a t T M I C f a i l e d t o p r e s e r v e i t s c h a l l e n g e t o h i s I n s u r a n c e C o d e c l a i m . B u t T M I C o b j e c t e d 2 t o t h a t q u e s t i o n i n t h e j u r y c h a r g e a n d c h a l l e n g e d t h e l e g a l s u f f i c i e n c y o f t h e e v i d e n c e t o s u p p o r t t h a t f i n d i n g i n t h e c o u r t o f a p p e a l s . W e c o n c l u d e t h a t i t p r e s e r v e d t h e c h a l l e n g e . 6to disclose so m et h i n g about the insurance policy

. TMI C’s Notice of Refused or Disputed Claim

specifie d that TMI C disputed whether Morris’s compensa ble J une 2000 back strain extended to his lumbar disc hernia tions a nd whether he had a

disability as a r esult of the orig inal back strain. The testimony and other evidenc e b o re out that question as being the basis for TMI C’s denial of compensa bility

. Thus, the dispute betwee n Morris and TMI C was the extent of Morris’s injury , not what the policy said or whether it cover ed the disc problems if they wer e rela ted to the back strain. See Ruttiger , ___ S.W .3d at ___. We a g ree with T MI C tha t the re is no evidenc e it misrepr esente d its poli cy . M o rr i s ’s DTPA claim depends on the validity of his I nsuranc e Code claim. Be cause h i s claims under the I nsuranc e Code fa il, he cannot r ecove r on his DTPA claim. See id. at ___. We gr ant TMI C’s petition for revie w. Without hear ing or al arg ument, see T E X . R. A P P . P. 59.1, we r ever se the c ourt of appe als’ judg ment and re nder judg ment that Morris take nothing

.

OP INION DELIVERED: October 26, 2012

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