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Rehearing granted in two workers compensation cases [Feb. 4, 2011]

By Don Cruse

Which is rarer: snow in Austin, or a successful motion to rehear a petition? Today, at least, you don’t have to choose.

Although the Court is officially closed due to snow, the electronic version of today’s orders has now been posted. And mixed in with the handful of petition denials that you would expect in a non-conference week were two (yes, two) grants of rehearing for petitions that had previously been denied.

The two petitions granted rehearing were:

• DeLeon v. Royal Indemnity Co., No. 10?0319 (DDB) (had been denied review on Aug. 27, 2010)

• Bell v. Zurich American Insurance Co., No. 10-0411 (DDB) (had been denied review on Oct. 1, 2010)

Both were about the workers compensation system and, substantively, were about determining the “MMI” from an injury (the maximum medical impairment, measured as a percentage of full health).

So why rehearing?

The answers seem to be in the Bell case. The motion for rehearing in that case takes an interesting angle — pointing to a later-filed (and still-pending) petition that reached the opposite result on the same issue.¹ The motion made that pitch on the first page, before turning to any of the merits. (It also mentioned the DeLeon case, which had been denied review a few months before, as raising the same issue.)

That call was joined by a rehearing-stage amicus brief — an increasingly common, and sometimes successful, way to refocus the Court’s attention on an case it has just denied. This amicus brief was filed by a state agency, the Office of Injured Employee Counsel, which has a special role in workers compensation cases before the division (but is prohibited from representing them directly in Court.) The amicus brief leaned on that credibility:

OIEC has determined that the interests of injured employees as a class will be adversely affected if the Court of Appeals’ decision is not overturned. Thus, OIEC respectfully requests the Court to grant the Petitioner’s Motion for Rehearing and the Petition for Review

That added some weight to its lead argument, which focused on institutional concerns if workers compensation claims could be challenged through the procedural mechanism chosen by the insurer here (a UDJA suit) rather than by going through more formal review in the Division of Workers Compensation.

Although rehearing was granted, neither petition has been set for oral argument. Both have been returned to the Court’s docket and full briefing has been requested in both cases.

1. The other petition is American Zurich Insurance Co. v. Samudio, No. 10-0554 (DDB). The Court requested full briefs in Samudio on January 14, 2011.

Full post as published by Supreme Court of Texas Blog on February 04, 2011 (boomark / email).