Court Concludes that Challenge to Claimant’s Late Filed Petition was not Preserved

A Houston appellate court has affirmed the judgment of a trial court that ruled that a claimant had failed to raise a fact question to support his challenge to the Division’s resolution of MMI, IR, extent of injury and disability issues. The case, Rush v. Ace American Insurance Co. No. 01-18-00402-CV (Houston [1st] July 9, 2019), also addressed how parties should raise the issue of whether a suit for judicial review has been timely filed in light of a recent Texas Supreme Court decision.

In 2013 the claimant sustained a compensable injury that consisted of an electrical shock injury and subsequent redness to his left fifth finger. A Division hearing officer concluded that claimant’s compensable injury did not extend to and include a cervical strain, a right shoulder strain, disc protrusions at C3 through C6, tendinosis and a partial thickness tear of the right shoulder, or memory loss.” Later, a hearing officer concluded that claimant’s “compensable injury did not extend to and include bilateral carpal tunnel syndrome.” The claimant sought judicial review of the appeals panels’ decisions related to his extent-of-injury issue.

As an initial matter, Ace argued that the trial court lacked jurisdiction because Rush did not seek judicial review of the administrative appeals panels’ decisions “within the mandatory forty-five day deadline” for filing suit. The court observed that Texas Labor Code § 410.252(a) provides:

A party may seek judicial review by filing suit not later than the 45th day after the date on which the division mailed the party the decision of the appeals panel. For purposes of this section, the mailing date is considered to be the fifth day after the date the decision of the appeals panel was filed with the division.

The court rejected the carrier’s argument.

In Chicas v. Texas Mutual Insurance Co., we held that although the forty-five day deadline for filing a petition seeking judicial review of an administrative appeals panel’s decision was mandatory, it was not jurisdictional. Instead, we explained that the forty-five day deadline provided for by section 411.252(a) constitutes a statute of limitations. The Texas Supreme Court, affirming our decision, agreed, holding that the “45-day deadline to seek review from an appeals-panel decision found in section 410.252(a), was not jurisdictional.” Accordingly, we hold that any purported failure of Rush to comply with the forty-five day deadline found in Texas Labor Code section 411.252(a) did not deprive the trial court of jurisdiction in the instant case.

To the extent that Ace asserts on appeal that Rush “wholly failed to plead or prove that he timely filed suit” and “limitations should . . . result in the dismissal of his case,” we note that statute of limitations is an affirmative defense which must be proven at trial or through a motion for summary judgment. An affirmative defense that is not pleaded or proved and on which findings are not obtained is waived. Here, Ace only asserted its statute-of-limitations affirmative defense in its plea to the jurisdiction. Because Ace failed to plead, prove, and obtain findings on his statute-of-limitations affirmative defense, we hold that it has waived any complaint related to Rush’s purported failure to comply with the statute of limitations found in Texas Labor Code section 411.252(a).

Although the court did not dismiss the claimant’s appeal on jurisdictional grounds, it did reject the claimant’s complaints that the trial court had erred in granting a directed verdict on the issues of extent of injury, disability and MMI/IR.