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Employment Law No. 02-02-181-CV, 4/24/2003. Click here for the full text of this decision FACTS: The appellant, Deborah Malish, appeals from the trial court’s dismissal of her claims against appellees Pacific Employers Insurance Co., Cigna Healthcare of Texas Inc. and Ace American Insurance Co. She contends the trial court erred in granting the insurance companies’ motion for summary judgment/plea to the jurisdiction/motion for dismissal for failure to exhaust administrative remedies because she presented evidence that the Texas Workers’ Compensation Commission had determined she was entitled to medical treatment. HOLDING: Affirmed in part and reversed and remanded in part. The TWCC has exclusive jurisdiction of disputes over income benefits, preauthorization of medical care, and reimbursement of medical expenses. A court has no jurisdiction to award damages based on an insurance company’s denial of preauthorization or failure to reimburse medical expenses if the TWCC has not determined that the claimant is entitled to preauthorization or reimbursement. If a claim is not within a court’s jurisdiction, and the impediment to jurisdiction cannot be removed, then it must be dismissed; but if the impediment to jurisdiction could be removed, then the court may abate proceedings to allow a reasonable opportunity for the jurisdictional problem to be cured. In Malish’s second amended petition, she states claims for breach of the duty of good faith and fair dealing, the Texas Deceptive Trade Practices Act, Texas Insurance Code article 21.21, breach of contract and intentional infliction of emotional distress. Her claims appear to be based in part on the insurance companies’ actions or nonactions with respect to the medical treatment dispute in 1999 and 2000 that was never resolved by the TWCC in addition to their actions or nonactions with respect to the 2001 treatment that the TWCC eventually ordered. Malish also claims that the insurance companies “disobeyed the [TWCC] Order by not paying for the ordered medical treatment in a timely manner.” She further claims that they “unreasonably delayed providing medical care by their delay in providing support for their denial and their refusal to provide assistance with respect to the process.” She asks for damages based on extreme emotional distress and further physical injury caused by the alleged delays. The only TWCC determination in the record before the court is the determination that Malish was entitled to the psychotherapy treatment requested by a doctor in February 2001. Accordingly, the trial court properly concluded that it did not have jurisdiction over Malish’s claims to the extent that they are based on the insurance companies’ delay in reimbursing expenses for, or preauthorizing, medical care other than the psychotherapy ordered by the TWCC. However, the trial court erred in determining that it did not have jurisdiction over Malish’s claims to the extent they are based on the insurance companies’ denial of preauthorization for the TWCC-ordered psychotherapy treatment and delay in paying for the treatment once ordered. Accordingly, the court overrules Malish’s sole issue in part and sustains it in part. Having overruled in part and sustained in part Malish’s sole issue, the court affirms the trial court’s order dismissing Malish’s claims to the extent she complains about the insurance companies’ denial of or delay in payment and preauthorization of medical services, including psychotherapy, that are not the subject of the TWCC’s order. The court reverses the trial court’s order to the extent it is based on Malish’s claims related to the insurance companies’ denial of or delay in preauthorizing and paying for psychotherapy treatment that the TWCC ordered paid and remands those claims to the trial court. OPINION: Livingston, J.; Day, Livingston, and Dauphinot, JJ.

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