American Zurich Ins. Co. v. Samudio (Tex.App.- Houston [1st Dist.] Feb. 11, 2010)(Alcala) (Insurer's appeal in workers compensation case over worker's impairment rating fails, court of appeals affirms plea to the jurisdiction in judicial review suit; attorney fees award in favor of prevailing claimant in workers comp judicial review suit was proper)
SYNOPSIS FROM THE
O P I N I O N
Appellant, Zurich American Insurance Company (Zurich), a workers' compensation carrier, appeals from the trial court's judgment awarding attorney's fees to Daniel Samudio, appellee, and dismissing its appeal for lack of subject matter jurisdiction. Zurich had filed a petition for judicial review of a final decision by the Texas Department of Insurance Division of Workers' Compensation (Division) that held Daniel Samudio, appellee, had a 20 percent impairment rating.
In three issues, Zurich asserts that (1) the trial court had jurisdiction to determine whether Samudio's impairment rating complied with the Texas Workers' Compensation Act, (2) Samudio's plea to the jurisdiction, taken to its logical extension, would obviate summary judgment practice, and (3) the trial court should not have ordered Zurich to pay Samudio's attorneys' fees.
We conclude that (1) the trial court properly dismissed Zurich's judicial review action because it did not have jurisdiction under the Texas Workers Compensation Act to effect the remedies sought by Zurich, (2) a plea to the jurisdiction is a proper procedural vehicle for challenging a trial court's subject matter jurisdiction, and (3) the trial court properly ordered Zurich to pay Samudio's reasonable and necessary attorney's fees because Samudio was the prevailing party in the lawsuit.
We affirm.
AFFIRM TRIAL COURT'S JUDGMENT OF DISMISSAL: Opinion by Justice AlcalaBefore Chief Justice Radack, Justices Alcala and Higley
01-08-00233-CV American Zurich Insurance Company v. Daniel Samudio (link to pdf version)
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn P. Wood
Effective September 1, 2005 the legislature abolished the Texas Workers' Compensation Commission (the Commission), and transferred its responsibilities to the Texas Department of Insurance, Division of Workers' Compensation (the Division). Act of May 29, 2005, 79th Leg. R.S., ch. 265 §§ 8.001(b), 8.004(a), 2005 Tex. Sess. Law Serv. 608.
KEY WORDS: judicial review of administrative agency decision, exclusive jurisdiction doctrine, plea to the jurisdiction, exhaustion of administrative remedies, worker's compensation appeal, compensable injury, method of determining impairment rating, disputing impairment rating given to injured claimant, contested case hearing, attorneys fee award to prevailing party in workers' comp appeal
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A worker who has received an injury that results in permanent impairment may be entitled to receive lump sum compensation payments in addition to weekly benefits.Agreements for lump sum payments for permanent impairment and pain and suffering require the insurer to be satisfied that the worker has obtained independent legal advice prior to accepting payment. The insurer is required to record evidence that this advice has been obtained and the details of the agreement.An injured worker who has agreed to a lump sum payment for permanent impairment is not entitle to recieve additional compensation unless there has been an increase in the degree of permanent impairment that occurred after the payment was made.Enquiries on previous lump sum payments for permanent impairment can be made with WorkCover.Again the rules and conditions may differ prevailing to the timely circumstances which have to be taken into notice.For more information visit at
www.accidentsdirect.com/compensation-claims.aspx
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