### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00766- CV

Service Lloyd s Insu rance C om pany, Ap pellant

v. Am eric an Alternative Insurance Cor poration, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -GN-0 5-0 0407 2, H ONO RAB LE DARLENE BY RNE, JUDGE P RESIDING

O P I N I O N

This is a worke rs’ compensa tion c ase in which the Texas Depa rtment of I nsuranc e, Division of Workers’ Compensation (the “Division”) order ed o n e i nsuranc e car rier, 1 appellant Service L loy ds I nsuranc e Company , to reimburse another insurance car rier, appellee Americ an Alterna

tive I nsuranc e Corporation (AAI C), for benef its paid by AAI C for an employ ee’ s compensa ble injury for which Service L loy ds was the liable car rier. The district court aff irmed the decision of the Divi sion. Service L loy ds arg ues t hat a worke rs’ c o m p ensation car rier cannot be a subclaimant under Texas L abor Code section 409.009 and the Division had no jurisdiction to order such re imbursement. We aff irm the judg ment of the district cour t.

Th e T ex as Workers’ Compensation Commi ssion was abolished eff ective September 1, 1 2005, an d its functions wer e assumed by the division of worke rs’ compensa tion within the Texas Depa

rtment of I nsuranc e. See Tex. L ab. Code Ann. § 402.001 (West 2006). We use the term “Division” to ref

er to both the division of worke rs’ c ompensation and the f ormer c ommissi on.Factual an d Procedural Background On Dec ember 9, 2002, Emmit Hines sustained a compensa ble inj u ry i n the course and scope of his employ

ment with CRES Manag ement. Fr om D ece mber 9, 2002, throug h May 9, 2004, AAI C paid worke rs’ compensa tion benef its to or for Hines. Howeve r, during that time period, Service L loy ds was the insurance car rier responsible to compensa te Hines for his injury

. AAI C sent

a written reque st to Service L loy ds for reimburse ment of the benef its err oneously paid by AAI C, but Service L loy ds declined to re imburse AAI C.

The Divisi on administers the Tex as W orker s’ C ompens at i o n Ac t (the “Act”)

. See Tex. L ab. Code Ann. § 402.001 (West 2006). On Fe bruar y 2, 2005, AAI C soug ht dispute resolution with the Division conce rning its claim ag ainst Service L loy ds. On J uly 28, 2005, a Division hear ing office r i ssued hi s decision that AAI C was a “subcla imant” wit hin the m eaning of section 409.009 of the Act and that the Division had jurisdiction to deter mine AAI C’s claim for reimburse ment from S er v i ce L loy ds. The hear ing office r order ed Service L loy ds to reimburse AAI C the amount o f $81,501 plus interest. See id. § 410.168(a) (West 2006) (hea ring office r decision). Service L loy ds appea led the decision to the Division’s appea ls panel, which deter mined on October 10, 2005, that the hear ing office r’s decision sho u l d b ecome the appea ls panel’ s final decision as well. See id. § 410.204(c) (West 2006) (appe als pane l decision).

Service L loy ds timely filed a petition for judicial re v iew in Travis County district court. See id. § 410.251 (West 2006) (authorizing judicial revie w of final decision of appea ls panel)

. The district court enter ed judgme nt on November 19, 2008, aff i rm i ng the decision of the Division. S ervic e L loy ds appea ls.

2Texas Labor Code Sec tion 409.009 Service L loy ds’s arg uments with reg ard to section 409.009 in v olve exclusively questions of s tatutory interpre tation. There fore , our revie w is de novo. See Texas Mun. Power Agenc y v. Public Util. Comm’n , 25 3 S

. W

. 3 d 184, 192 (Tex. 2007) (“Statutory construction is a question of law, whic h we r eview de novo.”).

Insurance carrier as subclaimant Service L loy ds arg ues that, as a matter of law, a worke rs’ compensa tion insurance

car rier cannot be a “subcla imant” under section 409.009 of the Act and, there fore , the Division

err ed in holding that AAI C is a subclaimant wi t h respect to its claim for reimburse ment from Service L loy ds. Section 409.009 of the Ac t states as follows:

A person may file a written claim with the division as a subclaimant if t h e p er s o n has: (1) provided compensa tion, including health car e provided by a health car e insurer, direc tly or indirec tly , to or for a

n employ ee or

leg al bene ficiar

y ; and (2) soug ht and bee n ref

used re imbursement from the insura nce c arr ier.

Tex. L ab. Code Ann. § 409.009 ( West 2006).

Service L loy ds’s arg ument is not supported by the plain lang uag e of the statute. See State v. Shumake , 199 S.W .3d 279, 284 (Tex. 2006) (“When construing a statute, we beg in with its lang uag e.”)

. A worke rs’ compensa tion car rier is a “per son” under section 409.009. See Tex. Gov’t Code Ann. § 311.005(2) (West 2005) (def ining “per son” to include a corpor ation, org anizatio n, and any other leg al entity ). Moreove r, AAI C has complied with the plain-lan gu age require ments
3of the statute. AAI C filed its written claim in the contex t o f Service L loy ds being responsible to

compensa te Hines for his injury

. See Texas Mut. Ins. Co. v. Sonic Sys. Int’l, Inc. , 214 S.W .3d 469, 477 (Te x . Ap p.—Houston [14t h Dist.] 2006, pet. denied) (holding that the term “subcla imant” denotes that reimburse ment is deriva tive of employ ee- claimant’s ability to rec over benef its). AAI C provided compensa tion to or for an employ ee—H ines. See Tex. L ab. Code Ann. § 4 0 1

. 0 1 1(11) (West Supp. 2009) (def

ining “compe nsation” as “pay ment of a benef

it”). AAI C s oug ht and was ref used re imbursement from the insura nce c arr ier—Servic e L loy ds. Notwithstanding AAI C’s having met the ex press requiremen t s o f section 409.009, Service L loy ds contends that the statute is applicable only to health c a r e in s urer s—specific ally , when the employ ee’ s health insurance policy pay s for medical car e that is cover ed b y the worke rs’ compensa tion policy

. We a g ree that section 409.009 can apply to he alth car e insurers. See Valley Forge Ins. Co. v. Austin , 65 S.W .3d 371, 372 (Tex. App.—Dallas 2001, pet. denied)

. Ho we ver, nothing i n t h e statutory lang uag e indicates that it applies only to health car e insurers. To the contra ry , section 409.009 applies when compensa tion has been provided, “ including health car e provided by a heal t h car e insurer.” Tex. L ab. Code Ann. § 409.009(1) (empha sis added) ; see Tex. Gov’t Code Ann. § 311.005(13) (“including ” is term of enlar g ement and not of l imitation or exclusive enumer ation; use of term does not cre ate presumption that components not expressed are excluded). Section 409.009 of the A ct is not lim ited to health ca re insure rs. Our holding that a worke rs’ compensa tion car rier can be a section 409.009 subclaimant is consistent with rules adopted in 2008 by the Division. Rules 140.6, 140.7, and 140.8

es t ablish proce dures applicable to subclaims pursued ag ainst worke rs’ compensa tion insurance

4car

riers. See 28 Tex. Admin. Code §§ 140.6, 140.7, 140.8 (2009). R u l es 140.7 and 140.8 are expressly limit ed to health car e insurers p u rsui ng reimburse ment as a subclaimant. See id. §§ 140.7(a) , 140.8(a) ; see also Tex. L ab. Code Ann. § 409.0091(b) (West Supp. 2009) (“This section applies only to a request for reimburse ment by a health car e insurer.” ). I n contra st, rule 140.6 contains no such limit ation, see 28 Tex. Admin. Code § 140.6(a) , provides for a subclaimant to file and pursue a claim for reimburse ment of any “b en ef i t that has been provided to an injured employ ee,” see id. § 140.6(c) (1), and expressly rec og nizes the possibili ty of s u bclaimants under section 409.009 other tha n health ca

re insure rs, see id. § 140.6(d)( 1). Our holdi ng is also consistent with the current int erpr eta t i o n o f s ection 409.009 in the Division’s administrative decisions. See Tarrant Appraisal Dist. v. Moore , 845 S.W .2d 820, 823 (Tex. 1993) (“Construction of a statute by the administrative ag ency char g ed with its enfor ceme nt is entitled to serious considera tion, so long as the construction is rea sonable and does not contra dict the plain lang uag e o f the statute.”). I n 2003, the Division’s appea ls panel, fac ed with a worke rs’ compensa tion car

rier seeking reimburse ment as a subclaimant, stated: “[W ]e do not view either of two or more car

riers disputing

. . . their liability to one another for amounts paid to a claimant, to be ‘subclaimants’ for the purposes of Section 409.009.” Division Appea l No. 030286 (Mar

. 20, 2003). The appea ls panel provided no rea soning for its position. Three y ear s later, the Division reje cted its prior statement based on section 409.009’s “plain meaning ” and section 402.084 of the Act, which

acc ording to the appea ls panel “re cog nizes by its exp re s s p rovision the potential of a car rier

5becoming a subcla imant.” See Division Appea l No. 052857-s (F eb. 8, 2006). The appe als pane l 2 held that a worke rs’ compensa tion car rier can be a subclaimant in acc ordanc e with section 409.009 of the Ac t. See id.

3 Division’s jurisdiction over subclaim Next, Service L loy ds contends that, even if AAI C qualifies as a subclaimant under section 409.009, as a matter o f law the Division has no jurisdiction over an independe ntly -ra ised section 409.009 subclaim. Service L loy ds appea rs to conce de that a section 409.009 subclaim may be filed with the Division a s part of a proce eding in which there is a pending dispute involving the injured employ ee’ s entitlement to benef its. The issue, then, is whether a section 409.009 claim may be filed in the a

bsence of such a

pending benef

it disput e. Service L loy ds relies on a 2004 appea ls panel d ec ision in which the Division deter mined that a section 409.009 subclaimant could not independe ntly invoke the Division’s jurisdiction beca

use the Di v i s i o n has the authority to resolve benef it disputes—pursuant to section 410.002 of the Act and Division rule 140.1—and a subclaim, by i t s el f, is not a “bene fit dispute.” See Division Appea l No. 040412 (Apr. 14, 2004); see also 28 Tex. Admin. Code § 140.1

Section 402.084 curr ently provides that a “potential subclaim identified by an ins uranc e 2 car rier

. . . may form the basis for the identification and filing of a subclaim ag ainst an insurance car rier,” see id. § 402.084(c- 4) (West 2006), and define s “insuranc e car rier” to include an insurance company with authority to “eng ag e in the business of worke rs’ compensa tion insurance in this state,” see id. § 402.084(c- 1)(2) (A). We note that the Division has also not limit ed s ec t i o n 4 0 9

. 0 0 9 to insurers. See, e.g. , 3 Division Appea l No. 030281 (Mar

. 13, 2003) (employ ee’ s trea ting doctor); Division Appea l No. 002026 (Oc t. 16, 2000) (employ er)

. 6(2009) (def ining “bene fit dispute” as “disputed issue arising under the [Act] in a worke rs’ compensa tion claim reg arding compensa bility o r el igibility for, or the amount of, income or death be nefits”)

.

Ho wever, the Division subsequently overr uled its 2004 decision. See Divis i o n Appea l No. 052857-s (dete rmining that Division has j u ri s diction over worke rs’ compensa tion

car rier’ s subclaim despite absenc e of dispute over benef its that are due to employ ee)

. The Division’s

curr ent interpre tation is consistent with the applicable statutes and rules. Section 409.009 of the Act expressly states that the person seeking reimburse ment from the insurance car rier “may file a written claim with the division.” Tex. L ab. Code Ann. § 409.009. Such a claim, by itself, falls within the express scope of section 410.002 of the Act. See id. § 410.002 (“A proce eding befor e the division to de termine the liability of an insurance car rier for compensa tion f

or an injury or death under this subtitl e is g overne d by this c hapter .”). The Division’s rules indicate not only that a subclaimant is entitled to file its claim with the Division, see 28 Tex. Admin. Code § 140.6(c) (1) (“A subclaimant may file and pursue a claim for reimburse ment of a b en ef i t that has been provided to an injured

em p l o y ee . . . .”), but also that there need not be a pending dispute with reg ard to the employ ee ’s entitlement to benef

its, see id. § 141.1(a) (2009) (“A reque st for a benef it revie w confe renc e may be made by . . . a subcla imant . . . .”). We consider the Division’s curr ent interpre tation to be rea sonable. Under Service L loy ds’s construction, a car rier (as subclaimant) could rec over from anoth er car rier

err oneously paid benef

its if the employ ee (a s claimant) was disputing the amount of benef its to which he is entitled, but not if the employ ee had no such dispute. Such a construction of the statute

7could encour ag e a car rier- subclaimant to manufa ctur e a dispute with the employ ee for the sole purpose of pursuing a subclaim and there by enabling its rec eipt of the reimburse ment to which it is entitled. I n contra st, under the Division’s construction, the car rier- sub cl ai m an t can obtain any reimburse ment due without forc ing the employ ee to become involved. I n fac t, the Division’s rules contemplate the adjudication of a subclaim “without the participa tion of the injured employ ee.” See id. § 140.6(c) (2), ( 3).

The Division’s construction of section 409.009 of the Act is rea sonable and does not contra dict the plain lang uag e of the Act or the Division’s rules. The Division has jurisdiction over

a section 409.009 claim even in the absenc e of a dispute aff ecting the amount to w hich the injured employ ee is entitled. See Texas Mun. Power Agenc y , 253 S.W .3d at 192 (“I

n asce rtaining the scope of an ag ency ’s authority , we g ive g rea t weig ht to the ag ency ’s o wn construction of a statute.”); Tarrant Appraisal Dist. , 845 S.W .2d at 823 (“Construction of a statute by the administrative ag ency char g ed wi th its enfor ceme nt is entitled to serious consideration, so long as the construction is

rea sonable a

nd does not contra dict the plain lang uag e of the statute.”).

Conclu sion We conclude that a workers’ compensa tion car rier may be a “subcla imant” under section 409.009 of the Act, an d t h at t h e Division has jurisdiction over a subclaimant’s section 409.009 claim ag ainst a car rier reg ardle ss of the exis tence of any dispute reg arding the amount o f benef

its to which the injured employ ee is entitled. There fore , we find no err or in the 4

Given our conclusions wit h respe ct t o section 40 9

. 0 0 9 o f t h e Act, we need not consider 4 Service L loy ds’s additional arg uments that (1) AAI C has failed to sufficie ntly alleg e a claim under 8district court’s judgment affirming the Divi sion’s decision and order , pursuant to section 409.009

of the Act, that Service L loy ds reimburse AAI C the amount of $81,501 plus interest. We aff irm the 5 judgme nt of the district court.

__________________________________________ G. Alan Waldrop, Just ice Be fore J ustices Patterson, Pember ton and Waldrop Affir med Filed: F ebrua

ry 25, 2010

s ec tion 410.033 of the Act, see Tex. L ab. Code Ann. § 410.033 (West 2006) (in proce ed i n g wi t h disputing ca

rrier s, authorizing re imbursement of pay ments made in acc ordanc e with interlocutory order ), or (2) the Division has no authority to awa rd reimburse ment under equitable principles, see Ho u s t o n Ge n. Ins. Co. v. Association Cas. Ins. Co. , 977 S.W .2d 634, 637-38 (Tex. App.—Ty ler 1998, no pet.) (e quitable subrog ation claim involves balanc ing of equities). Service L loy ds asser

ts a third point of err or—that the Division’s awa rd of $81,501 plu s 5 interest was err or. Howeve r, Service L loy ds bases this asser tion of err or exclusively on its previous two points of err or—that AAI C cannot be a subclaimant and that the Division is without jurisdiction to order reimburse ment. Consequently , Service L loy ds’s third point of err or require s no additional analy sis. 9