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Old Republic Insurance Co. v. Warren11/16/2000
Old Republic Insurance Company (appellant) appeals from a jury verdict in favor of Derrick Warren (appellee) on appellee's claims for benefits under the Texas Worker's Compensation Act. We affirm.
STATEMENT OF FACTS
Appellee was injured at work on July 19, 1997. He received temporary income benefits from July to October 1997, at which time a carrier-selected physician determined he had reached maximum medical improvement. This physician gave appellee a 13 percent impairment rating as of October 28, 1997. At appellee's request, the Texas Worker's Compensation Commission (TWCC) appointed a doctor, Dr. Andrew Mager, to perform another examination. Dr. Mager filed a report indicating appellee had reached maximum medical improvement on October 1, 1997 with a 4 percent impairment rating.
Appellee's treating physician prepared a report giving appellee a 10 percent impairment rating as of April 14, 1998. The parties participated in a benefit review conference to mediate their disagreement on the date of maximum medical improvement and the percentage of impairment. Because the parties failed to resolve these issues, a contested case hearing was held. After that hearing, the hearing officer found that appellee had reached maximum medical improvement on October 1, 1997 with a 4 percent impairment rating. Appellee appealed to the TWCC appeals panel, which affirmed the hearing officer's findings on September 3, 1998. Appellee appealed to the 17th District Court of Tarrant County on September 17, 1998. The district court overruled appellant's plea to the jurisdiction and submitted the case to a jury.
The jury found that appellee had reached maximum medical improvement on April 14, 1998 with an impairment rating of 10 percent. The trial court overruled appellant's motion for judgment notwithstanding the verdict and rendered judgment in accordance with the jury's findings on July 29, 1999. Appellant's motion for new trial was overruled by operation of law.
ISSUES
On appeal, appellant challenges the trial court's ruling on its pleas to the court's jurisdiction (Issue 1); the court's submission of two special issues as a comment on the weight of the evidence (Issue 2); and the legal and factual sufficiency of the evidence to support the jury's answers (Issues 3-6). Additionally, appellant's counsel has a post-judgment motion for attorney's fees pending in this court.
THE TRIAL COURT'S JURISDICTION
In its first issue appellant claims the trial court erred in denying its plea to the jurisdiction as well as its post-verdict motion for judgment notwithstanding the verdict. Appellant claims the trial court lacked jurisdiction because appellee only asserted claims not tried at the administrative level and failed to challenge the only two issues decided in the administrative proceeding before the 40th day after the TWCC appeas panel issued its ruling.
Under section 410.252 of the Texas Labor Code, suit must be filed no later than 40 days after the appeals panel's decision is filed with the TWCC hearings division. Tex. Lab. Code Ann. ยง 410.252 (Vernon 1996). According to appellant, because section 410.301 limits the scope of a trial court's review to those issues decided by the appeals panel, and appellee's original and amended petitions did not refer to the appeals panel decision or the two issues it decided until more than 40 days had passed, jurisdiction in the trial court did not attach.
The record shows the appeals panel's decision was filed with the director of the hearings division on September 3, 1998. Appellee's original petition was filed September 17, 1998. His first and second amended
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