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Downs v. Continental Casualty Co.8/16/2000
APPELLEE'S MOTION FOR REHEARING GRANTED; APPELLANT'S MOTION FOR REHEARING ON MOTION TO MODIFY JUDGMENT IN PART GRANTED; REVERSED AND RENDERED IN PART AND REVERSED AND REMANDED IN PART
We grant Continental Casualty Co.'s and Mary Ann Downs' motions for rehearing, withdraw our opinion and judgment issued January 26, 2000, and in their place issue this opinion and a revised judgment.
After the Texas Workers' Compensation Commission found Raymond Downs' death was not compensable, it denied the timely claim for death benefits filed by his widow, Mary Ann Downs. Downs appealed, contending Continental Casualty Co. waived its right to deny compensability by failing to either begin the payment of benefits or send notice of its refusal to pay within seven days of the date it received written notice of injury, as required by section 409.021(a) of the Texas Labor Code. The trial court granted Continental Casualty's no-evidence motion for summary judgment and denied Downs' motion, and she appeals. We hold Continental Casualty waived its right to deny compensability, reverse the trial court's judgment, render judgment reversing the decision of the Texas Workers' Compensation Commission, and remand the cause to the trial court for further proceedings consistent with this opinion.
Factual and Procedural Background
The material facts are not disputed. Downs made a timely claim for death benefits and established her beneficiary status. However, Continental Casualty did not either begin to pay benefits or notify Downs of its refusal to pay until forty-eight days after the date it received the notice of injury.
Standard of Review
"Interpretation of a statute is a pure question of law over which the [trial] judge has no discretion." Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997).
The Parties' Arguments
The relevant statutory provisions are sections 409.021 and 409.022 of the Texas Labor Code. Under section 409.021(a), the carrier "shall" either "begin the payment of benefits" or "notify the commission and the employee in writing of its refusal to pay and advise the employee of: (A) the right to request a benefit review conference; and (B) the means to obtain additional information from the commission" " ot later than the seventh day after the date on which an insurance carrier receives written notice of an injury." Tex. Lab. Code Ann. § 409.021(a) (Vernon 1996). If the carrier opts to refuse to pay, its "notice of refusal to pay benefits under Section 409.021 must specify the grounds for the refusal," and " he grounds for the refusal specified in the notice constitute the only basis for the insurance carrier's defense on the issue of compensability in a subsequent proceeding, unless the defense is based on newly discovered evidence that could not reasonably have been discovered at an earlier date." Id. § 409.022(a)-(b). From this provision, Downs argues that a carrier that does not either begin paying benefits or send a notice of refusal within the seven day period waives its right to later deny compensability. Continental Casualty argues the contrary, relying upon section 409.021(c), which provides in part that " f an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest compensability." Id. § 409.021(c). This is in fact the construction adopted by the Texas Workers' Compensation Commission. See Tex. Worker's Compensation Comm'n, Appeal No. 960949, 1996 WL 367060, at *4 (June 28, 1996); Tex. Worker's Compensation Comm'n, Appeal No. 950944, 1995 WL
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