Read 09034003.pdf text version

No. 09-0340

------------------ IN THE SUPREME COURT OF TEXAS ------------------------------------------------------------------------ INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Petitioner, v. CARMEN MURO, Respondent. ------------------------------------------------------------------------ On Petition for Review from the Fifth District Court of Appeals at Dallas -------------------------------------------------------------------- RESPONDENT'S BRIEF ON THE MERITS -------------------------------------------------------------------- Chad M. Ruback State Bar No. 90001244 THE RUBACK LAW FIRM 8117 Preston Road Suite 300 Dallas, Texas 75225 (214) 522-4243 (214) 522-2191 fax

TABLE OF CONTENTS TABLE OF CONTENTS.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 I. In response to Roman numeral I, the insurance company (1) is mistaken as to this Court's holding in the Seabolt case and (2) wholly fails to address how its interpretation of the Seabolt case could be reconciled with the plain language of the statute.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. The insurance company relies upon Seabolt in arguing that loss of use of a body part can occur only when there is a direct injury to that body part. But Seabolt holds no such thing. . . . . . . . . 3 The plain language of the statute imposes no requirement that loss of use of a body part can occur only when there is a direct injury to that body part. And the insurance company wholly fails to address how its interpretation of the Seabolt case could be reconciled with the plain language of the statute. . . . . . . . 5

B.

II.

In response to Roman numeral II, there was no need for the trial court to submit a producing cause question to the jury because there was no evidence to support such a question and, even if there had been such evidence, producing cause was not before the trial court (and is not before this Court) because the record does not reflect that the insurance company raised producing cause at the TWCC level. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 A. There was no need for the trial court to submit a producing cause question to the jury because there was no evidence to support such a question.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

i

B.

Producing cause was not before the trial court (and is not before this Court) because the record does not reflect that the insurance company raised producing cause at the TWCC level. . . . . . . . . . . . . . . . . . . 11

III.

In response to Roman numeral III, the insurance company's argument (about the 401-week cap on benefits) is predicated entirely upon the mistaken arguments made under Roman numeral I. . . . . . . . . . . . . . . . . . . . . . . . . . 12 In response to Roman numeral IV, the insurance company's argument (about sufficiency of the evidence) is predicated entirely upon the mistaken arguments made under Roman numeral I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 In response to Roman numeral V, the insurance company's argument about determination of attorneys' fees is contrary to the plain language of the statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

IV.

V.

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

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INDEX OF AUTHORITIES Cases Alexander v. Lockheed Martin Corp., 188 S.W.3d 348 (Tex. App.--Fort Worth 2006, pet. denied). . . . . . . . . . . . . . . . 11 Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Bunton v. Bentley, 153 S.W.3d 50 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 20 Cass v. Stephens, 156 S.W.3d 38 (Tex. App.--El Paso 2004, pet. denied). . . . . . . . . . . . . . . . . . . . 12 Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489 (Tex. 1993).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Discover Prop. & Cas. Ins. Co. v. Tate, 04-08-00757-CV, 2009 WL 1789237 (Tex. App.--San Antonio June 24, 2009, pet. filed). . . . . . . . . . . . . . . . . . . . . . . 20 Elboar v. Smith, 845 S.W.2d 240 (Tex. 1992).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Gray v. Noteboom, 159 S.W.2d 750 (Tex. App.--Fort Worth 2005, pet. denied). . . . . . . . . . . . . . . . 12 Heard v. Liberty Mut. Ins. Co., 828 S.W.2d 457 (Tex. App.--El Paso 1992, writ denied). . . . . . . . . . . . . . . . . . . 19 Hiroms v. Scheffrey, 76 S.W.3d 486 (Tex. App.--Houston [14th Dist.] 2002, no pet.). . . . . . . . . . . . . 12 Insurance Co. of State of Penn. v. Muro, 285 S.W.3d 524 (Tex. App.--Dallas 2009, pet. pending). . . . . . . . . . . . . . . . . . 4, 5 Krueger v. Atascosa County, 155 S.W.3d 614 (Tex. App.--San Antonio 2004, no pet.).. . . . . . . . . . . . . . . . . . 11 iii

Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308 (Tex. 1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 6, 17 Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447 (Tex. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 20 Texas Employers Ins. Ass'n v. Motley, 491 S.W.2d 395 (Tex. 1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 19 Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86 (Tex. App.--Houston [14th Dist.] 2008, pet. pending). . . . . . 19, 20 Transcontinental Ins. Co. v. Smith, 135 S.W.3d 831 (Tex. App.--San Antonio 2004, no pet.).. . . . . . . . . . . . . . . . . . 19 Travelers Ins. Co. v. Marmolejo, 383 S.W.2d 380 (Tex. 1964).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16 Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204 (Tex. 1962).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4 Statutes T EX. L AB. C ODE A NN. § 408.161 (Vernon 2006). . . . . . . . . . . . . . . . . 5, 6, 7, 8, 13, 14, 15 T EX. L AB. C ODE A NN. § 408.221 (Vernon 2006). . . . . . . . . . . . . . . . . . . . . . . . . 17, 18, 19 T EX. L AB. C ODE A NN. § 408.222 (Vernon 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 T EX. L AB. C ODE A NN. § 410.302 (Vernon 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

iv

STATEMENT OF THE CASE Respondent Carmen Muro worked for an employer which subscribed to workers compensation insurance. [CR p. 17; RR vol.1 p. 13] The employer's workers compensation insurance policy was issued by Petitioner The Insurance Company of the State of Pennsylvania. [CR p. 17; RR vol. 1 pp. 40, 71] Muro was involved in a work-related accident and sought benefits from the insurance company. [CR pp. 47, 96, 105, 223] The Texas Workers Compensation Commission held that Muro is entitled to the benefits. [CR pp. 12, 18] The insurance company appealed to the district court. [CR pp. 8-9, 47] The district court conducted a jury trial. [CR pp. 261, 338] The district court signed a judgment consistent with the jury findings (and consistent with the decision of the TWCC), holding that Muro is entitled to the benefits. [CR pp. 265, 338-39] And the district court awarded attorneys' fees to Muro. [CR pp. 339-40] The insurance company appealed to the Fifth District Court of Appeals at Dallas. The court of appeals affirmed.

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STATEMENT OF FACTS Respondent Carmen Muro ("Muro") worked for an employer which subscribed to workers compensation insurance. [CR p. 17; RR vol. 1 p. 13] The employer's workers compensation insurance policy was issued by Petitioner The Insurance Company of the State of Pennsylvania. ("the insurance company") [CR p. 17; RR vol. 1 pp. 40, 71] Muro was involved in a 1996 work-related accident and, as a result, became permanently disabled. [CR pp. 16, 47, 96, 99, 105, 223] Muro sought lifetime income benefits ("the benefits") from the insurance company. [CR p. 47] However, the insurance company did not agree to pay the benefits. [CR p. 14] Consequently, the Texas Workers Compensation Commission ("TWCC") scheduled a contested case hearing to determine whether Muro is entitled to the benefits. [CR p. 14] At the contested case hearing, the TWCC hearing officer heard live testimony and considered written evidence. [CR pp. 15-16] Following the hearing, the TWCC hearing officer held that Muro is entitled to the benefits. [CR p. 18] The TWCC hearing officer indicated that Muro would be entitled to the benefits if (1) she lost the use of both of her feet or (2) she lost the use of one hand and lost the use of at least one foot. [CR pp. 10, 18, 24, 51] The hearing officer indicated that, even though Muro was only required to satisfy one of these two criteria, she satisfied both of them. [CR pp. 10, 18, 24, 51] Specifically, the

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hearing officer held that Muro (1) has totally and permanently lost the use of both of her feet and (2) has totally and permanently lost the use of one of her hands. [CR pp. 10, 18, 24, 51]1 The hearing officer indicated that, although Muro did not have a direct injury to her feet or to her hand, she did lose the use of her feet and of her hand due to direct injuries to her neck, back, shoulder, and hips. [CR pp. 15-17, 24, 110] The insurance company argued that, regardless of whether Muro could use her feet and her hand, because the feet and the hand themselves were not directly injured, she is not entitled to the benefits. [CR pp. 25, 111] The insurance company appealed the TWCC hearing officer's decision to the TWCC appeals panel. [CR pp. 9, 12] The appeals panel declined to reverse the hearing officer's decision. [CR pp. 9, 12] The insurance company then appealed to the district court. [CR pp. 8-9, 47] The district court conducted a jury trial. [CR pp. 261, 338] The district court signed a judgment consistent with the jury findings (and consistent with the decisions of the TWCC hearing officer and the TWCC appeals panel), holding that Muro is entitled to the benefits. [CR pp. 265, 338-39] And the district court awarded attorneys' fees to Muro. [CR pp. 339-40] The insurance company appealed to the Fifth District Court of Appeals at Dallas. The court of appeals affirmed.

The hearing officer concluded that Muro "is entitled to lifetime income benefits based on the total and permanent loss of use of both feet at or above the ankle, or one foot at or above the ankle and one hand at or above the wrist." [CR p. 18] 2

1

After the TWCC hearing officer, the TWCC appeals panel, the district court, and the court of appeals all ruled against the insurance company, the insurance company petitioned this Court for review. SUMMARY OF THE ARGUMENT The plain language of the statute provides that if a person has totally and permanently lost the use of both feet and of a hand, she is entitled to the benefits. The plain language of the statute does not require that there be a direct injury to the feet or to the hand. The plain language of the statute provides that, in this type of case, the amount of the attorneys' fees award must be decided by the court, rather than the jury. And this Court has upheld this statutory requirement. ARGUMENT I. In response to Roman numeral I, the insurance company (1) is mistaken as to this Court's holding in the Seabolt case and (2) wholly fails to address how its interpretation of the Seabolt case could be reconciled with the plain language of the statute. Under Roman numeral I, the insurance company argues that loss of use of a body part can occur only when there is a direct injury to that body part. [insurance company's brief pp. 9-20] A. The insurance company relies upon Seabolt in arguing that loss of use of a body part can occur only when there is a direct injury to that body part. But Seabolt holds no such thing.

In support of its argument that loss of use of a body part can occur only when there is a direct injury to that body part, the insurance company cites to this Court's holding in the 3

1962 Seabolt case. Specifically, the insurance company relies on the following language in the Seabolt case: "A total loss of use of a member exists whenever by reason of injury . . . the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member." [insurance company's brief p. 11, citing Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex. 1962)]. However, the 1962 Seabolt case never holds that this is the only way to have a loss of use of a body part. In Navarette (a 1986 case applying Seabolt), this Court considered this issue without including any of the Seabolt language relied upon by the insurance company to support the argument that a total loss of use of a body part exists only when due to a direct injury to the body part itself. Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 310 (Tex. 1986) ("In Seabolt, we said that a total loss of use of a member can exist when such member is such that the workman cannot procure and retain employment requiring the use of the member.").2 Seabolt simply does not provide justification for the insurance company's argument that loss of use of a body part can occur only when there is a direct injury to that body part. There are undoubtedly other cases which, like Seabolt, hold that a direct injury to the body part itself satisfies the "loss of use" requirement of the statute (or its predecessor).

As noted in the opinion of the Dallas Court of Appeals, the trial court's jury charge tracked the "loss of use" language used by this Court in Navarette. See Insurance Co. of State of Penn. v. Muro, 285 S.W.3d 524, 531 (Tex. App.--Dallas 2009, pet. pending). [CR p. 263] 4

2

However, the insurance company does not cite (and Muro could not find) any case holding that this is the only way to satisfy the loss of use requirement.3 B. The plain language of the statute imposes no requirement that loss of use of a body part can occur only when there is a direct injury to that body part. And the insurance company wholly fails to address how its interpretation of the Seabolt case could be reconciled with the plain language of the statute.

The plain language of the statute is at odds with the insurance company's argument that loss of use of a body part can occur only when there is a direct injury to that body part. Specifically, the Texas Labor Code provides that a person is entitled to the benefits if she has suffered the "loss of both feet" or has suffered the "loss of one foot. . . and the loss of one hand." T EX. L AB. C ODE A NN. § 408.161(a)(2), (4) (Vernon 2006). For the purposes of this

The insurance company claims that Muro argued in the court of appeals that Navarette enlarged the definition of "loss of use" used in Seabolt. [insurance company's brief p. 17] The insurance company is mistaken. Muro has never argued that Navarette modified Seabolt in any way. What Muro has argued is that Seabolt offered one way in which "loss of use" could be satisfied and that Navarette indicated that this way is not the only way in which "loss of use" could be satisfied. [Muro's court of appeals brief pp. 5-6] Similarly, the insurance company claims that the court of appeals found that Navarette adopted a new and different definition of "loss of use." [insurance company's brief p. 18] The insurance company is mistaken. The court of appeals did not find that Navarette adopted a new and different definition of "loss of use." Rather, the court of appeals (like this Court in Navarette) declined to limit "loss of use" to the one scenario considered in Seabolt. See Insurance Co. of the State of Penn. v. Muro, 285 S.W.3d 524, 530-31 (Tex. App.--Dallas 2009, pet. pending) ("[T]he definition used in the trial court's charge was based upon the Texas Supreme Court's definition of `loss of use' from Navarette. . . . Because the trial court tracked the language used by the Texas Supreme Court in Navarette, we conclude that the trial court did not abuse its discretion."). 5

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statute, "the total and permanent loss of use of a body part is the loss of that body part." T EX. L AB. C ODE A NN. § 408.161(b) (Vernon 2006). The plain language of the statute provides that if a person has totally and permanently lost the use of both feet, she is entitled to the benefits. Similarly, the plain language of the statute provides that if a person has totally and permanently lost the use of at least one foot and of at least one hand, she is entitled to the benefits.4 Nevertheless, the insurance company argues that, regardless of whether Muro totally and permanently lost the use of both of her feet and of one of her hands, because her feet and her hand were not directly injured, she is not entitled to the benefits. The insurance company's position is at odds with the plain language of the statute. If the legislature had wanted to require that the injury be directly to the feet and to the hands, the legislature could have included such a requirement in the statute. In fact, the legislature did include such a requirement with regard to the spine and with regard to the brain. See T EX. L AB. C ODE A NN. § 408.161(a)(5), (a)(6) (Vernon 2006) (requiring "injury to the spine" and "injury to the brain"). Yet, in the same statute, the legislature chose not to include the words "injury to" when addressing the loss of use of the feet or hands. See T EX. L AB. C ODE A NN. § 408.161(a)(2), (a)(3), (a)(4) (Vernon 2006).

Although the statute is not at all ambiguous, if the statute were ambiguous, it should nevertheless be construed in Muro's favor. That is because this Court has held that workers compensation statutes "should be liberally construed in the worker's favor." Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex. 1986). 6

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In paragraph (a)(5), the legislature chose to provide the benefits for loss of use of arms and legs if (and only if) these losses resulted from an injury "to the spine." The insurance company suggests that, because the loss of use of arms and legs is benefits-eligible when the loss is due to injury "to the spine"--and is not benefits-eligible when the injury is directly to the arms and legs--the loss of use of other body parts (e.g., the hands and feet) should be benefits-eligible only when due to an injury directly to those particular body parts. [insurance company's brief pp. 15-17] This is simply not a logical conclusion. By imposing a restriction on when loss of use of the arms is benefits-eligible (i.e., only when caused by an injury to the spine), that does not imply a restriction on when loss of use of the hands is benefits-eligible. To the contrary, the plain language of the statute provides that a worker is eligible for the benefits whenever she has lost the use of both hands, for example, regardless of whether the loss of use of the hands was due to an injury directly to the hands or was due to an injury to another body part. Paragraph (a)(1) provides that loss of sight in both eyes is benefits-eligible, paragraph (a)(2) provides that loss of use of both feet is benefits-eligible, paragraph (a)(3) provides that loss of use of both hands is benefits-eligible, and so on. See T EX. L AB. C ODE A NN. § 408.161(a) (Vernon 2006). If the legislature had intended to provide a limitation on all seven of the paragraphs in which it listed benefits-eligible losses, the legislature could have done so. Instead, the legislature chose to provide the limitation only on two of those seven paragraphs. Specifically, the legislature provided that for paragraph (a)(5) losses (i.e., loss of use arms and legs), the benefits would be payable only if the losses were due to injury to 7

the spine, and the legislature provided that for paragraph (a)(6) losses (i.e., loss of sanity), the benefits would be payable only if the loss was due to injury to the brain. As for the other five paragraphs, the legislature chose to impose no such restrictions. Specifically, the "injury to" limitation was applied only to the arms and legs. . . and not to the eyes, feet, or hands.5 And, as noted by this Court in Dallas Merchant's & Concessionaire's Ass'n v. City of Dallas, 852 S.W.2d 489, 493 n.7 (Tex. 1993), the application of the doctrine of expressio unius est exlucio alterius "provides that the inclusion of a specific limitation excludes all others." Curiously, the insurance company's brief suggests that the statute refers to the "injured member." [insurance company's brief pp. 11-12] ("Otherwise, the adjective `injured' would have been unnecessary to the definition. `Every word of a statute is presumed to have been used for a purpose.") But the plain language of the statute simply does not require the loss of use to be due to the condition of an "injured member." In fact, the statute doesn't even use the word "injured" or the word "member." See T EX. L AB. C ODE A NN. § 408.161 (Vernon 2006).

The insurance company argues that such restrictions must be imposed on paragraph (a)(2) (which addresses loss of use of both feet) or else paragraph (a)(5) (which addresses loss of use of legs, among other things) would be meaningless. [insurance company's brief p. 16] The insurance company is mistaken. It is possible to lose the use of one's feet without losing the use of one's legs (and vice versa). The legislature was entirely within its prerogative to impose a restriction on recovery based on loss of use of one's legs but impose no such restriction on recovery based on loss of use of one's feet. 8

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II.

In response to Roman numeral II, there was no need for the trial court to submit a producing cause question to the jury because there was no evidence to support such a question and, even if there had been such evidence, producing cause was not before the trial court (and is not before this Court) because the record does not reflect that the insurance company raised producing cause at the TWCC level. Under Roman numeral II, the insurance company argues that the trial court failed to

submit a question to the jury as to whether the accident at issue was the producing cause of the loss of use of Muro's feet and hand. [insurance company's brief pp. 20-26] A. There was no need for the trial court to submit a producing cause question to the jury because there was no evidence to support such a question.

It is proper for a trial court to refuse to submit a jury question if there is no evidence to support that question. See Elboar v. Smith, 845 S.W.2d 240, 243 (Tex. 1992). And there is not one iota of evidence that the accident at issue was not the producing cause of the loss of use of Muro's feet and hand.6 The insurance company suggests that because there was evidence that Muro's feet and hand themselves were not injured, this constitutes some evidence that the accident at issue was not the producing cause of the "loss of use" of Muro's feet and hand. [insurance company's brief pp. 24-25] The insurance company is mistaken. As discussed under Roman numeral I, the statute simply does not require an injury to the feet or hands to recover for the "loss of use" of them. The uncontroverted evidence is that, due to injuries to her neck, back,

Because the TWCC found in Muro's favor, the insurance company had the burden to prove in the trial court that the accident at issue was not the producing cause of the loss of use of Muro's feet and hand. See T EX. L AB. C ODE A NN. § 410.303 (Vernon 2006). 9

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shoulder, and hips, Muro lost the use of her feet and of her hand (in spite of the fact that the feet and hand were themselves functioning at normal or near-normal levels). The insurance company argues that it did have evidence that Muro had rheumatoid arthritis and fibromyalgia prior to the accident at issue and that Muro initially returned to work after the accident at issue, but the trial court excluded such evidence. [insurance company's brief pp. 25-26] Because the insurance company's issues presented to the court of appeals did not address whether the trial court erred in excluding the evidence, that issue was not before the court of appeals. See Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) ("It is axiomic that an appellate court cannot reverse a trial court's judgment absent properly assigned error."). And because that issue was not before the court of appeals, that issue is not before this Court. See Bunton v. Bentley, 153 S.W.3d 50, 53 (Tex. 2004) (holding that a complaint--even a complaint of unconstitutionality--may not be raised in a petition for review if that complaint was not before the court of appeals). Even if the trial court had admitted evidence that Muro had rheumatoid arthritis and fibromyalgia prior to the accident at issue and that Muro initially returned to work after the accident at issue, this would not constitute evidence that the accident was not the producing cause of the loss of use of Muro's feet and hand. Specifically, the insurance company did not attempt to offer any evidence (e.g., by expert testimony) that (1) the loss of use of Muro's feet and hand was caused by her rheumatoid arthritis and fibromyalgia or (2) Muro's initial return to work somehow indicated that the accident at issue was not the cause of the loss of use of her feet and hand. To the contrary, the uncontroverted evidence (Dr. Crain's expert 10

testimony and written report) establishes that Muro's inabilities were caused by the accident at issue. [RR vol. 2 pp. 109; vol. 4 defendant's exhibit 6 p. 5]7 B. Producing cause was not before the trial court (and is not before this Court) because the record does not reflect that the insurance company raised producing cause at the TWCC level.

Even if there had been evidence that would have supported a jury question as to whether the accident at issue was the producing cause of the loss of use of Muro's feet and hand, the trial court would nevertheless have been correct in denying a jury question regarding producing cause. Specifically, in an appeal to a trial court of a TWCC decision, the trial court may only consider issues raised at the TWCC level. See T EX. L AB. C ODE A NN. § 410.302(b) (Vernon 2006); Alexander v. Lockheed Martin Corp., 188 S.W.3d 348, 353 (Tex. App.--Fort Worth 2006, pet. denied) ("Cases interpreting this section hold that a party may not raise an issue in the trial court which was not raised before the TWCC Appeals Panel."); Krueger v. Atascosa County, 155 S.W.3d 614, 619 (Tex. App.--San Antonio 2004, no pet.) ("The cases interpreting § 410.302 hold that a party may not raise an issue in the trial court which was not raised before the TWCC Appeals Panel."). And the record in this case does not reflect that the insurance company raised producing cause at the TWCC level. In

Dr. Crain's written report refers to the 1996 accident (the accident at issue in this case). [RR vol. 4 defendant's exhibit 6 p. 5] However, where Dr. Crain was reading that report out loud from the witness stand, the reporter's record indicates that he said "1966" instead of "1996." [RR vol. 2 pp. 109] Because Dr. Crain was reading out loud directly from his written report, it appears either that Dr. Crain mis-spoke or that the court reporter mis-transcribed what Dr. Crain said. 11

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fact, the TWCC hearing officer's detailed written decision does not even mention producing cause.8 [CR pp. 14-18] Because the insurance company was the appellant in the court of appeals, the insurance company had a duty to bring to the court of appeals (and to this Court) a record supporting its claims of entitlement to reversal of the trial court's judgment. See Gray v. Noteboom, 159 S.W.2d 750, 753 (Tex. App.--Fort Worth 2005, pet. denied); Cass v. Stephens, 156 S.W.3d 38, 56 (Tex. App.--El Paso 2004, pet. denied); Hiroms v. Scheffrey, 76 S.W.3d 486, 489 (Tex. App.--Houston [14th Dist.] 2002, no pet.). Because the insurance company did not bring to the court of appeals (or to this Court) a record reflecting that the insurance company raised producing cause at the TWCC level, the insurance company has waived its producing cause complaint. III. In response to Roman numeral III, the insurance company's argument (about the 401-week cap on benefits) is predicated entirely upon the mistaken arguments made under Roman numeral I. Under Roman numeral III, the insurance company makes an argument that is predicated entirely upon the mistaken arguments the insurance company made under Roman numeral I. Specifically, under Roman numeral III, the insurance company correctly notes that workers compensation benefits are capped at 401 weeks unless lifetime income benefits

Nor did the insurance company raise the producing cause issue in its trial court pleadings. [CR pp. 8-11] Doing so would arguably be required by section 410.302(b), which provides that, when a party appeals the TWCC decision to a trial court, the appealing party's "pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved." TEX . LAB. CODE ANN . § 410.302(b) (Vernon 2006). 12

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are granted by statute. . . but then mistakenly argues that lifetime income benefits are not granted by statute to someone in Muro's situation. [insurance company's brief pp. 26-28] However, as noted in Muro's response to the insurance company's Roman numeral I, the plain language of the statute provides that the benefits are granted whenever a person has (1) suffered the loss of use of both feet or (2) has suffered the loss of use of at least one foot and of at least one hand. See T EX. L AB. C ODE A NN. § 408.161(a)(2), (4) (Vernon 2006); T EX. L AB. C ODE A NN. § 408.161(b) (Vernon 2006). Even though Muro was only required to satisfy one of these two criteria, the TWCC ruled that she satisfied both of them, the jury agreed, and the trial court signed a judgment consistent with both the TWCC ruling and the jury verdict. [CR pp. 18, 265, 339] And the uncontroverted evidence supports the TWCC ruling, the jury verdict, the trial court judgment, and the court of appeals judgment. IV. In response to Roman numeral IV, the insurance company's argument (about sufficiency of the evidence) is predicated entirely upon the mistaken arguments made under Roman numeral I. Under Roman numeral IV, the insurance company makes an argument that is predicated entirely upon the mistaken arguments the insurance company made under Roman numeral I. Specifically, under Roman numeral IV, the insurance company argues that there was insufficient evidence to support the trial court's award of the benefits to Muro. . . under the interpretation of the statute offered by the insurance company under Roman numeral I. [insurance company's brief pp. 29-30] However, as noted in Muro's response to the insurance company's Roman numeral I, the plain language of the statute provides that the benefits are granted whenever a person has (1) suffered the loss of use of both feet or (2) has 13

suffered the loss of use of at least one foot and at least of one hand. See T EX. L AB. C ODE A NN. § 408.161(a)(2), (4) (Vernon 2006); T EX. L AB. C ODE A NN. § 408.161(b) (Vernon 2006). Even though Muro was only required to satisfy one of these two criteria, the TWCC ruled that she satisfied both of them, the jury agreed, and the trial court signed a judgment consistent with both the TWCC ruling and the jury verdict. [CR pp. 18, 265, 339] And the uncontroverted evidence supports the TWCC ruling, the jury verdict, the trial court judgment, and the court of appeals judgment. Additionally, under Roman numeral IV, the insurance company cites the 1964 Marmolejo case, which holds that an injury to one body part (e.g., hips) can satisfy the loss of use requirement as to another body part (e.g., feet) only if the injury to the first body part "extended to and affected" the second body part. [insurance company's brief p. 30, citing Travelers Ins. Co. v. Marmolejo, 383 S.W.2d 380, 382 (Tex. 1964)] company's reliance on Marmolejo is misplaced for two reasons. First, the "extended to and affected" language used in Marmolejo is applicable to a portion of the lifetime income benefits statute which has since been repealed. The statute used to provide for lifetime income benefits when there was (1) a "loss of use" of certain enumerated body parts (such as the loss of use of both feet or the loss of use of one foot and one hand) or (2) "other losses" that resulted in "total incapacity." [insurance company's court of appeals brief p. 9] But the "other losses" portion of the statute was repealed in 1989. [insurance company's brief p. 13] ("In the 1989 redrafting of the act, the legislature retained the `loss of use' doctrine from the former law but repealed the `other loss' clause.") 14 The insurance

The "extended to and affected" language used in the Marmolejo case is applicable to the repealed portion of the statute.9 Specifically, in Marmolejo, a worker sustained an injury directly to a leg, which does not satisfy any of the seven possible means of recovery under the "loss of use" theory. See T EX. L AB. C ODE A NN. § 408.161(a) (Vernon 2006). This Court held that, for the worker to recover based on the "general disability" (i.e., total incapacity) theory (the repealed portion of the statute, addressing "other losses"), the worker would have to prove that his leg injury "extended to and affected other portions of his body" so as to render him totally incapacitated. See id. at 381-82. Because injury to one leg would generally not result in "general disability" (i.e., total incapacity), it is perfectly sensible to allow recovery only if that leg injury "extended to and affected" the rest of the worker's body. Muro's benefits are not predicated on "general disability" (the repealed portion of the statute to which the Marmolejo case imposed the "extended to and affected" requirement). Rather, Muro's benefits are predicated on the loss of use of two feet or on the loss of use of one foot and one hand (the portion of the statute which was not repealed and to which case law has not imposed an "extended to and affected" requirement). The plain language of the current statute requires only that Muro establish the loss of use of two feet or the loss of use

Notably, the insurance company did not cite (and Muro could not find) any cases in which the "extended to and affected" language had been applied to the current lifetime income benefits statute--the statute at issue in this case. 15

9

of one foot and one hand. The plain language of the current statute does not require anything more of Muro and certainly does not impose an "extended to and affected" requirement. Morever, it is significant that this Court held in Marmolejo that an injury to one body part (e.g., hips) could satisfy the requirement as to another body part (e.g., feet) if the injury to the first body part "extended to and affected" the second body part, as this is not the same as a holding that loss of use of the second body part can be established only by a direct injury to the second body part (which is what the insurance company is arguing should be required). If, in Marmolejo, this Court had intended to hold that there is a loss of use of the second body part only if there is a direct "injury to" the second body part, the Court could have done just that. Instead, this Court chose to use the "extended to and affected" language, which could be interpreted to mean that a direct injury to the first body part can satisfy the loss of use requirement as to the second body part if the direct injury to the first body part is such that it actually results in the loss of use of the second body part. (Under this interpretation, the direct injury to the first body part could not satisfy the loss of use requirement as to the second body part if the injury merely caused pain to the second body part or somewhat limited the use of the second body part, but stopped short of resulting in the loss of use of the second body part.) This interpretation would be consistent with the plain language of the statute, while the interpretation suggested by the insurance company would not be.

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V.

In response to Roman numeral V, the insurance company's argument about determination of attorneys' fees is contrary to the plain language of the statute. Under Roman numeral V, the insurance company argues that the trial court erred in

deciding the amount of attorneys' fees to award without submitting such a question to the jury.10 [insurance company's brief pp. 30-37] However, the plain language of the statute provides to the contrary.11 Specifically, Texas Labor Code section 408.221 provides that "(a) An attorney's fee. . . for representing a claimant before the. . . court under this subtitle must be approved by the . . . court. (b) Except as otherwise provided, an attorney's fee under this section is based on the attorney's time and expenses according to written evidence presented to the. . . court. . . . (d) In approving attorney's fees under this section, the. . . court shall consider. . . ." T EX. L AB. C ODE A NN. § 408.221 (Vernon 2006).

Following the plain language of the statute, the court considered written evidence of attorneys' fees and determined the reasonable and necessary attorneys' fee award based on that written evidence. [CR pp. 295-320, 332-337] Notably, the insurance company did not object to the written evidence offered by Muro and did not offer any controverting evidence. As such, it is somewhat perplexing that the insurance company now claims that the amount of attorneys' fees was of a controversial nature. [insurance company's brief p. 37] Although the statute is not at all ambiguous, if the statute were ambiguous, it should nevertheless be construed in Muro's favor. That is because this Court has held that workers compensation statutes "should be liberally construed in the worker's favor." Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 309 (Tex. 1986). 17

11

10

As the insurance company correctly notes, the amount of attorneys' fees is generally be decided by a jury (based on live testimony).12 [insurance company's brief pp. 35-37] However, the legislature chose to provide that, in appeals of TWCC benefit determinations, the amount of attorneys' fees must be decided by the court (based on written evidence).13 Consistent with the plain language of the statute, this Court has held that the trial court--not the jury--must determine the attorneys' fee award in TWCC appeals. See Texas Employers Ins. Ass'n v. Motley, 491 S.W.2d 395, 397 (Tex. 1973) ("[T]he amount of the

The Bocquet case relied upon by the insurance company for this proposition involves a declaratory judgment as to a real property easement. [insurance company's brief pp. 31-34 citing Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998).] The Bocquet case does not have anything to do with workers compensation cases and does not reference the Texas Labor Code provision addressing attorneys' fees in workers compensation cases. Section 408.221 (the statute at issue) provides the framework for a workers compensation claimant to recover her attorneys' fees if the insurance carrier unsuccessfully appeals to the district court. The "approved by the. . . court" language of section 408.221 is repeated verbatim in section 408.222, which provides that an insurance carrier's attorneys' fees must also be "approved by the. . . court." T EX. L AB. C ODE A NN. § 408.222 (Vernon 2006). Although the insurance company pleaded for attorneys' fees, (1) the insurance company did not offer any evidence to the jury as the insurance company's attorneys' fees and (2) the insurance company did not request that the court submit a question to the jury as to the insurance company's attorneys' fees. [CR pp. 10, 255-260] In light of the insurance company's inaction when facing the exact same "approved by the. . . court" language, it seems odd that the insurance company is now arguing that (1) Muro should have offered evidence to the jury as to her attorneys' fees and (2) the court should have submitted a question to the jury as to Muro's attorneys' fees. 18

13

12

attorney's fees to be allowed in compensation cases is a matter for the trial court to determine without the aid of a jury and the amount of the recovery is within its discretion.");14 see also Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86, 103 (Tex. App.--Houston [14th Dist.] 2008, pet. granted) ("By its plain language, section 408.221 provides the amount of attorney's fees will be determined by the trial court according to the written evidence submitted to it. . . . If we were to accept appellant's argument that a worker's compensation claimant must submit the issue of attorney's fees sought pursuant to section 408.221 to the jury, we would render a large portion of the statute's language meaningless."); Transcontinental Ins. Co. v. Smith, 135 S.W.3d 831, 838 (Tex. App.--San Antonio 2004, no pet.) ("Section 408.221 of the Texas Labor Code governs the award of attorney's fees to the workers compensation claimant's attorney. Section 408.221 provides the TWCC or the court must approve the attorney's fees. . . . [T]he trial court has the discretion as to the manner and amount of the award of attorney's fees. The trial court must determine the amount of attorney's fees awarded in a workers compensation case without the aid of a jury. The fees are based on the attorney's time and expense according to written evidence presented to the commission or court.") (internal citations omitted); Heard v. Liberty Mut. Ins. Co., 828 S.W.2d 457, 459 (Tex. App.--El Paso 1992, writ denied) ("The amount of attorney's fees to be awarded in a compensation case is a matter for the trial court even in jury tried cases

In the Motley case, to support its holding that attorneys' fees in a workers comp case are decided by the trial court judge, this Court cites a 1953 case which held the same thing. See Texas Employers Ins. Ass'n v. Motley, 491 S.W.2d 395, 397 (Tex. 1973). Plainly, this holding has been the established rule of law in Texas for well over 50 years. 19

14

and the amount of such fees is within the trial court's discretion."); but see Discover Prop. & Cas. Ins. Co. v. Tate, 04-08-00757-CV, 2009 WL 1789237 (Tex. App.--San Antonio June 24, 2009, pet. filed). In this Court, the insurance company suggests that it would be unconstitutional to have the trial court--rather than the jury--determine the attorneys' fee award in TWCC appeals. [insurance company's brief p. 35] However, the insurance company did not include a constitutionality complaint in any of the issues on appeal it presented to the court of appeals. [insurance company's court of appeals brief p. 3] As such, the complaint was not before the court of appeals. See Pat Baker Co., Inc. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) ("It is axiomic that an appellate court cannot reverse a trial court's judgment absent properly assigned error."). And because the complaint was not before the court of appeals, the complaint is not before this Court. See Bunton v. Bentley, 153 S.W.3d 50, 53 (Tex. 2004) (holding that a complaint--even a complaint of unconstitutionality--may not be raised in a petition for review if that complaint was not before the court of appeals). Even if the insurance carrier had brought its constitutionality complaint before the court of appeals, the insurance company's constitutionality complaint would still lack merit, as explained in great detail by the Crump court. Crump, 274 S.W.3d at 100-02. PRAYER Respondent Carmen Muro respectfully prays that this Court deny the petition for review. She further prays for her costs and for all other relief to which she may be entitled.

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Respectfully submitted,

[original was signed by Chad M. Ruback] Chad M. Ruback State Bar No. 90001244 THE RUBACK LAW FIRM 8117 Preston Road Suite 300 Dallas, Texas 75225 (214) 522-4243 (214) 522-2191 fax CERTIFICATE OF SERVICE I hereby certify that, on December 12, 2009, I served a copy of the foregoing Respondent's Brief on the Merits, via certified mail, return receipt requested, to the following counsel for Petitioner Insurance Company of the State of Pennsylvania: Robert D. Stokes Flahive, Ogden & Latson, P.C. P.O. Drawer 13367 Austin, Texas 78711 [original was signed by Chad M. Ruback] Chad M. Ruback

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