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Practice tip for carriers – request a BRC

A decision this month from the Court of Appeals in Corpus Christi may offer a practice tip for practitioners involved in disputes over the Division’s exclusive jurisdiction to adjudicate the issue of whether a worker was in the course and scope of employment. In The University of Texas Rio Grande Valley v. Oteka, the court held that the injured worker was not required to exhaust her administrative remedies with the Division before filing a personal injury lawsuit against her employer. In doing so, it distinguished similar but conflicting decisions in its sister courts of appeal. 

The case began when Oteka, a UTRGV nursing professor, attended a graduation ceremony for UTRGV students at McAllen Convention Center and, as she was walking to her car after the ceremony, was struck by a vehicle driven by a UTRGV police officer. She sued UTRGV for negligence, and UTRGV asserted the exclusive remedy defense under the Texas Workers’ Compensation Act. Oteka, who did not file a claim for compensation with the Division, contended that she was not in the course and scope of her employment at the time of her injury. UTRGV filed a plea to the jurisdiction, asserting that the compensability determination, including the issue of whether Oteka was in the course and scope of her employment, is within the exclusive jurisdiction of the Division. 

The court of appeals agreed with Oteka and held that the trial court had jurisdiction to decide the issue. The basis for its holding was its conclusion that Oteka’s suit was “not based on the ultimate question of whether she is eligible for workers’ compensation benefits.” 

The court noted that the Houston and Austin courts of appeal had reached the opposite conclusion in cases with similar facts (In re Tyler Asphalt & Gravel Co., Inc. and In re Hellas Constr., Inc.). But it distinguished them, noting that in both of those cases the administrative process at the Division had been invoked by one of the parties and the courts of appeal held that because the administrative process had been invoked, the personal injury suits should be abated (not dismissed) pending the outcome of that process. The Corpus Christi court then said that because there was no collateral proceeding in which the Division was determining the compensability of Oteka’s injuries, the holdings in the Houston and Austin courts were “inapposite.”

The takeaway here may be that, where a party is challenging a trial court’s jurisdiction to adjudicate the issue of course and scope of employment and arguing that the Division has exclusive jurisdiction over that issue, that party may wish to initiate an administrative proceeding at the Division, by requesting a Benefit Review Conference, thereby allowing it to cite Tyler Asphalt and Hellas as authority and distinguish Oteka.