Insurance Company of the State of Pennsylvania v. Isaac Flores

Affirmed and Memorandum Opinion filed April 27, 2006 Affirmed and Memorandum Opinion filed April 27, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00346-CV ____________ INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Appellant V. ISAAC FLORES, Appellee On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2004-23848 M E M O R A N D U M   O P I N I O N Appellant, the Insurance Company of the State of Pennsylvania (ICSP), filed a restricted appeal from a default judgment granted in favor of Isaac Flores, appellee, in a workers= compensation claim. In two issues, ICSP argues that error is apparent on the face of the record and that the trial court lacked jurisdiction over this case. We affirm. Factual and Procedural Background Flores sustained a neck injury in February 1993 while employed as a machinist. At the time of Flores=s injury, his employer was insured by ICSP. Flores consulted Dr. Mark McDonnell, an orthopedic surgeon, due to increasing pain related to his injury, and Dr. McDonnell recommended surgery. Consequently, Flores filed a claim with the Texas Workers= Compensation Commission requesting coverage of his surgery. The Commission denied Flores=s claim, and he sought review by an independent review organization (AIRO@). The IRO also denied his claim, and the Texas Workers= Compensation Commission Appeals Panel (the AAppeals Panel@) upheld the IRO=s decision. On May 7, 2004, Flores filed a petition in the trial court appealing the Appeals Panel=s decision and naming ICSP as defendant. ICSP did not file an answer to Flores=s petition. Flores filed a motion for default judgment, and on August 16, 2004, the trial court held a hearing on Flores=s motion. ICSP neither responded to the motion nor attended the hearing. At the hearing, the trial court heard testimony from Flores and from Dr. McDonnell, who testified about Flores=s need for surgery. Based on this testimony, the trial court found that Flores=s surgery was medically necessary and vacated and reversed the Appeals Panel=s decision. The trial court signed an interlocutory default judgment in Flores=s favor on September 30, 2004 and signed a final default judgment on December 7, 2004. ICSP filed a notice of restricted appeal on March 30, 2005. Analysis To prevail in a restricted appeal, a party must establish that (1) it filed notice of the restricted appeal within six months after the judgment was signed, (2) it was a party to the underlying suit, (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. See Alexander v. Lynda=s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The face of the record, for purposes of a restricted appeal, consists of all the papers on file in the appeal, including the statement of facts. Norman Commc=ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). In this case, the parties dispute only whether error is apparent on the face of the record. The Texas Labor Code provides that A[a] party that has exhausted its administrative remedies under this subtitle and that is aggrieved by a final decision of the appeals panel may seek judicial review under this subchapter.@ Tex. Lab. Code Ann. ' 410.251 (Vernon 2006). The Code further provides that A[a] party may seek judicial review by filing suit not later than the 40th day after the date on which the decision of the appeals panel was filed with the division.@ Id. ' 410.252(a) (Vernon 2006).[1] In its first issue, ICSP claims that in his petition, Flores misrepresented to the trial court that the forty-day filing deadline of section 410.252(a) is measured from when he received the Appeals Panel=s decision rather than when it was filed with the district. See Morales v. Employers Cas. Co., 897 S.W.2d 866, 869 (Tex. App.CSan Antonio 1995, writ denied) (A[T]here is no basis for calculating the 40 day deadline from [appellee=s] >actual notice= of the appeals panel decision.@). ICSP claims this misrepresentation constitutes error on the face of the record. A review of the record shows Flores stated, in his petition, that the Appeals Panel=s decision was Aserved by letter dated March 26, 2004 . . . [and] received on March 29, 2004.@ He then stated that A[w]ithin 40 days after receipt of this decision [he] filed this suit.@ This language does not assert that the forty-day filing deadline began on Flores=s receipt of the Appeals Panel=s decision. See Gold v. Gold, 145 S.W.3d 212, 213 (Tex. 2004) (A[A] restricted appeal requires error that is apparent, not error that may be inferred.@). Further, even if Flores did misstate the law, there is no indication the trial court relied on it in entering a default judgment.[2] ICSP further complains that Flores=s failure to attach the Appeals Panel=s decision and accompanying cover letter to his petition, although he referenced them in his petition, also constitutes error on the face of the record. The record shows that Flores attached three exhibits with labels designating the exhibits as AExhibit >A,=@ Exhibit >B,=@ and AExhibit >C.=@ Although in his petition, Flores refers to the Appeals Panel=s decision and accompanying letter as AExhibit A,@ AExhibit A@ in the record before us consists of a certified mail receipt, not the Appeals Panel=s decision, which is nowhere in the record.[3] However, even if these documents were not attached as referenced in Flores=s petition, ICSP cites no authority, and we have found none, requiring Flores to attach the Appeals Panel=s decision to his petition. Moreover, we cannot determine, without referring to extrinsic evidence, whether the documents to which Flores referred contain the Appeals Panel=s filing date. See Lynda=s Boutique, 134 S.W.3d at 848 (noting, in case involving restricted appeal, that Aif extrinsic evidence is necessary, it should be presented in a motion for new trial or a bill of review@). Thus, error is not apparent on the face of the record. We overrule ICSP=s first issue. In its second issue, ICSP claims the trial court lacked jurisdiction over Flores=s suit because his May 7, 2004 petition was filed more than forty days after March 12, 2004, the date ICSP claims the Appeals Panel filed its decision with the division. As discussed above, because the record does not establish the filing date of the Appeal Panel=s decision, we cannot determine whether Flores filed his suit within the forty-day filing deadline. Thus, error is not apparent on the face of the record. Accordingly, we overrule ICSP=s second issue. We affirm the trial court=s judgment. /s/ Leslie Brock Yates Justice Judgment rendered and Memorandum Opinion filed April 27, 2006. Panel consists of Chief Justice Hedges and Justices Yates and Anderson. [1] Several Texas courts have held that this forty-day filing deadline is jurisdictional. See, e.g., LeBlanc v. Everest Nat=l Ins. Co., 98 S.W.3d 786, 787 (Tex. App.BCorpus Christi 2003, no pet.); Morales v. Employers Cas. Co., 897 S.W.2d 866, 868 (Tex. App.BSan Antonio 1995, writ denied). But see Tex. Dep=t of Transp. v. Beckner, 74 S.W.3d 98, 103 (Tex. App.BWaco 2002, no pet.) (holding that section 410.252(a) is a limitations period, not a jurisdictional requirement). However, in this restricted appeal, we need not determine whether the forty-day filing deadline is jurisdictional because the record lacks sufficient evidence to establish whether Flores filed his petition within that deadline. [2] The trial court=s interlocutory default judgment, which disposed of all but Flores=s claim of attorney=s fees, referenced the Appeals Panel=s decision but did not indicate that it calculated the forty-day filing deadline from Flores=s receipt of the decision. [3] In its brief, ICSP includes an unauthenticated copy of the Appeals Panel=s cover letter and decision reflecting a file-stamped date of March 18, 2004. However, we cannot consider evidence outside the appellate record. See Carlton v. Trinity Univ. Ins. Co., 32 S.W.3d 454, 457B58 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (granting motion to strike extra-record documents included in appellant=s brief); see also Rosenfeld v. Steelman, 405 S.W.2d 301, 302 (Tex. 1966) (holding that appellate court may not consider affidavits outside the record to determine trial court=s jurisdiction). Flores filed a motion to strike the copy of the letter and decision attached to appellant=s brief, which we grant.