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Response to Petition for Attorneys Fees

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									                    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

 ——————————————————————————————————

                RESPONSE TO PETITION FOR REVIEW

 ——————————————————————————————————

                                                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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

          This case is of minimal importance to the jurisprudence of the state.. . . . . . . . . . . 3

          In response to Roman numeral I of the petition for review, 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

          In response to Roman numeral II of the petition for review, the insurance company’s
          argument (about the 401-week cap on benefits) is predicated entirely upon the
          mistaken arguments made under Roman numeral I of the petition for review.. . . . 6

          In response to Roman numeral III of the petition for review, the insurance company’s
          argument (about sufficiency of the evidence) is predicated entirely upon the mistaken
          arguments made under Roman numeral I of the petition for review. . . . . . . . . . . . 7

          In response to Roman numeral IV of the petition for review, the insurance company’s
          argument about determination of attorneys’ fees is contrary to the plain language of
          the statute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

APPENDIX A:                   “ISSUES PRESENTED FOR REVIEW”
                              section of the insurance company’s Appellant’s Brief. . . . . . . . Tab A

APPENDIX B:                   T EX. L AB. C ODE A NN. § 408.222 (Vernon 2006). . . . . . . . . . . . Tab B
                                                                  i
                                       INDEX OF AUTHORITIES

Cases

Bocquet v. Herring,
     972 S.W.2d 19 (Tex. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bunton v. Bentley,
      153 S.W.3d 50 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Discover Prop. & Cas. Ins. Co. v. Tate,
     04-08-00757-CV, 2009 WL 1789237
     (Tex. App.—San Antonio June 24, 2009, no pet. h.). . . . . . . . . . . . . . . . . . . . . . . 13

Heard v. Liberty Mut. Ins. Co.,
      828 S.W.2d 457 (Tex. App.—El Paso 1992, writ denied). . . . . . . . . . . . . . . . . . . 13

Insurance Co. of State of Penn. v. Muro,
      285 S.W.3d 524 (Tex. App.—Dallas 2009, pet. pending). . . . . . . . . . . . . . . . . . . . 4

Navarette v. Temple Indep. Sch. Dist.,
      706 S.W.2d 308 (Tex. 1986).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5, 11

Pat Baker Co., Inc. v. Wilson,
      971 S.W.2d 447 (Tex. 1998).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Texas Employers Ins. Ass’n v. Motley,
      491 S.W.2d 395 (Tex. 1973).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Transcontinental Ins. Co. v. Crump,
      274 S.W.3d 86 (Tex. App.—Houston [14th Dist.] 2008, pet. pending). . . . . . 13, 14

Transcontinental Ins. Co. v. Smith,
      135 S.W.3d 831 (Tex. App.—San Antonio 2004, no pet.).. . . . . . . . . . . . . . . . . . 13

Travelers Ins. Co. v. Marmolejo,
      383 S.W.2d 380 (Tex. 1964).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Travelers Ins. Co. v. Seabolt,
      361 S.W.2d 204 (Tex. 1962).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

                                                          ii
Statutes

T EX. L AB. C ODE A NN. § 408.161 (Vernon 2006). . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7, 8

T EX. L AB. C ODE A NN. § 408.221 (Vernon 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

T EX. L AB. C ODE A NN. § 408.222 (Vernon 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12




                                                      iii
                             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.




                                            iv
                                 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




                                               1
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.



       1
         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
       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

       This case is of minimal importance to the jurisprudence of the state.

       In its petition for review, the insurance company states that this “case raises two

important questions.”      [petition for review at p. vi]       But the insurance company

acknowledges that (1) these two questions are answered by well-settled precedent from this

Court and (2) the relief sought by the insurance company is mere error correction. [petition

for review at p. vii] (“The court of appeals’ dual holding” as to these two questions is

“contrary to this Court’s settled holdings and requires immediate correction by this court.”)

As such, this case is of minimal importance to the jurisprudence of the state.




                                               3
       In response to Roman numeral I of the petition for review, 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. [petition for review pp. 1-6]

In support of that argument, the insurance company cites to this Court’s holding in the 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.” [petition for review pp. 3-6, 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



       2
         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
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).

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.

       Moreover, 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 lifetime

income 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 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 lifetime income 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 lifetime income benefits.3

Nevertheless, the insurance company argues that, regardless of whether Muro totally and


       3
        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).
                                               5
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

hand, the legislature could have included such a requirement in section 408.161. In fact, the

legislature did include such a requirement in section 408.161 for lifetime income benefits as

to the spine and as to the skull. T EX. L AB. C ODE A NN. § 408.161(a)(5), (6) (Vernon 2006)

(requiring “injury to the spine” and “injury to the skull”). Yet, in the same statute, the

legislature chose not to include the words “injury to” when addressing the loss of use of the

feet, hand, eyes, or wrist.

       Interestingly, the petition for review was focused quite intently on the insurance

company’s interpretation of the Seabolt case, but wholly failed to address how that

interpretation could be reconciled with the plain language of the statute.

       In response to Roman numeral II of the petition for review, the insurance
       company’s argument (about the 401-week cap on benefits) is predicated entirely
       upon the mistaken arguments made under Roman numeral I of the petition for
       review.

       Under Roman numeral II, the insurance company makes an argument that is

predicated entirely upon the mistaken arguments made under Roman numeral I of the petition

for review. Specifically, under Roman numeral II, the insurance company correctly notes

that workers compensation benefits are capped at 401 weeks unless lifetime income benefits




                                                6
are granted by statute. . . but then mistakenly argues that lifetime income benefits are not

granted by statute to someone in Muro’s situation. [petition for review pp. 7-8]

       However, as noted in response to Roman numeral I of the petition for review, the

plain language of the statute provides that lifetime income 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 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, and the trial court judgment.

       In response to Roman numeral III of the petition for review, the insurance
       company’s argument (about sufficiency of the evidence) is predicated entirely
       upon the mistaken arguments made under Roman numeral I of the petition for
       review.

       Under Roman numeral III, the insurance company makes an argument that is

predicated entirely upon the mistaken arguments made under Roman numeral I of the petition

for review. Specifically, under Roman numeral III, the insurance company argues that there

was insufficient evidence to support the trial court’s award of lifetime income benefits to

Muro. [petition for review pp. 8-9] However, as noted in response to Roman numeral I of

the petition for review, the plain language of the statute provides that lifetime income

benefits are granted whenever a person has (1) suffered the loss of use of both feet or (2) has

                                              7
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, and the trial court

judgment.

       Additionally, under Roman numeral III, 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. [petition for review p. 9, citing Travelers

Ins. Co. v. Marmolejo, 383 S.W.2d 380, 382 (Tex. 1964)] The insurance 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 “general disability” (i.e, total incapacity).

[insurance company’s appellant’s brief p. 9] But the “other losses” portion of the statute was

repealed in 1989. [insurance company’s appellant’s brief p. 10] (“In the 1989 redrafting of



                                               8
the act, the legislature retained the ‘loss of use’ doctrine but repealed the ‘other loss’

exception.”)

       The “extended to and affected” language used in the Marmolejo case is applicable to

the repealed portion of the statute.4 Specifically, in Marmolejo, a worker injured a leg, which

is not one of the enumerated body parts. This Court held that, for the worker to recover

based on a “general disability” 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 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 on the loss of use of




       4
        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.
                                             9
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 Marmolejo held that an injury to one body part (e.g.,

hips) can 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 the Marmolejo 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 Marmolejo court could have

done just that. Instead, the Marmolejo 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.




                                               10
       In response to Roman numeral IV of the petition for review, the insurance
       company’s argument about determination of attorneys’ fees is contrary to the
       plain language of the statute.

       The petition for review promised that it would raise two questions. [petition for

review pp. vi-vii] After using Roman numerals I, II, and III to address the first question, the

insurance company finally addresses the second question in Roman numeral IV.

       Specifically, under Roman numeral IV, 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.5 [petition for review p. 9] However, the plain language of the statute

provides to the contrary.6 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).




       5
         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.
       6
        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).
                                              11
       As the insurance company correctly notes, the amount of attorneys’ fees is generally

be decided by a jury (based on live testimony).7 [petition for review pp. 9-10] 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).8

       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

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.”);9 see also

       7
          The Bocquet case relied upon by the insurance company for this proposition
involves a declaratory judgment as to a real property easement. [petition for review pp. 9-10,
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 workers compensation cases.
       8
           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.
       9
         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.
Plainly, this holding has been the established rule of law in Texas for well over 50 years.
                                               12
Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86, 103 (Tex. App.—Houston [14th Dist.]

2008, pet. pending) (“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

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, no pet. h.).

       In its petition for review, the insurance company complains that it is unconstitutional

to have the trial court—rather than the jury—determine the attorneys’ fee award in TWCC
                                               13
appeals. [petition for review pp. 12-13] 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 appellant’s brief p. 3, which is included as Appendix “A”

hereto] 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.




                                             14
                                                  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 September 1, 2009, I served a copy of the foregoing Response
to Petition for Review, 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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