Court of Appeals of Texas, San Antonio.

Joe Garcia MORALES, Guardian of the Person and Estate of Flavio Morales, Appellant

v.

TEXAS WORKERS’ COMPENSATION INSURANCE FACILITY, Appellee

No. 04-96-00042-CV.

|

Aug. 5, 1998.

From the Probate Court Number 2, Bexar County, Texas Trial Court No. 92-PC-0902 Honorable Sandee Bryan Marion, Judge Presiding

Opinion on Motion for Rehearing

DUNCAN, Justice.

*1 We grant Joe Garcia Morales’ motion for rehearing, withdraw our June 17, 1998 opinion, and substitute this opinion in its place.

Joe Garcia Morales, in his capacity as the guardian of the person and estate of his brother, Flavio Morales, appeals the trial court’s judgment awarding Texas Workers’ Compensation Insurance Facility two-thirds of Flavio Morales’ recovery in a third-party negligence action. We affirm.

Factual and Procedural Background

Flavio Morales was severely injured in a two-car collision, and the probate court appointed Flavio’s brother, Joe, guardian of Flavio’s person and estate. On Flavio’s behalf, Joe sued Employers Casualty Company to recover workers’ compensation benefits, and he also sued the drivers of the two cars involved in the collision for damages. Employers denied coverage on the ground that Flavio’s injury was outside the course and scope of his employment. See Morales v. Employers Cas. Co., 897 S.W.2d 866 (Tex.App.-San Antonio 1995, writ denied). Ultimately, however, Joe prevailed in both suits-recovering lifetime medical and income workers’ compensation benefits for his brother in the suit against Employers and $40,020 in the suit against the two drivers.

After the two suits were finally concluded, Employers’ successor, the Texas Workers’ Compensation Insurance Facility, asked the probate court to award it two-thirds of Morales’ recovery in the suit against the two drivers to reimburse it for a portion of the benefits it had paid Flavio. See Tex. Lab.Code Ann. § 417.001-.003 (Vernon 1996). The trial court granted the request, awarding $26,680 to the Facility and $13,340 to Morales’ attorney. Morales appealed.

Discussion

In his first point of error, Morales argues the trial court erred in awarding the Facility two-thirds of Flavio’s recovery in the suit against the two drivers because there is no evidence the Facility has paid Flavio benefits in at least that amount. In his second point of error, Morales contends the trial court erred in refusing to further reduce the Facility’s reimbursement to zero to reflect the amount paid for attorney’s fees by Morales in his suit against Employers to establish Flavio’s right to workers’ compensation benefits. We disagree.

Scope and Standards of Review

Whether a trial court may reduce a workers’ compensation insurance carrier’s subrogation interest by the amount of the claimant’s attorney’s fees in the suit to establish his right to benefits is a question of law. We review a trial court’s legal conclusions de novo. Walker v. Packer, 827.S.W.2d. 833, 840 (Tex.1992).

A trial court’s factual findings are reviewed under the same standards applied to jury findings. Southern States Transp., Inc. v. Texas, 774 S.W.2d 639, 640 (Tex.1989). Therefore, we review only the evidence and reasonable inferences tending to support the challenged finding to determine whether there is any supporting evidence of probative force. E.g., Juliette Fowler Homes, Inc. v. Welch Assoc., Inc., 793 S.W.2d 660, 666 n. 9 (Tex.1990). Evidence is legally insufficient to support a finding if it is “no more than a mere scintilla.” Robert W. Calvert, “No Evidence” and “Insufficient Evidence Points of Error, 38 Tex. L.Rev. 361, 363 (1960). Evidence is less than a scintilla when it is “so weak as to do no more than create a mere surmise or suspicion of its existence,” id., or when “reasonable minds cannot differ from the conclusion that the evidence lacks probative force.” Id. at 364.

Attorney’s Fees

*2 If a worker must establish his right to workers’ compensation benefits through litigation, his attorney is entitled to a fee “from the claimant’s recovery” in an amount not to exceed twenty-five percent of the benefits paid. See Tex. Lab.Code Ann. §§ 408.221(b), 408.221(h) (Vernon 1996). A worker may also recover damages from responsible third parties that cause his injury; however, in that event, the worker’s compensation “insurance carrier is subrogated to the rights of the injured employee….” Id. § 417.001. Therefore, “[t]he net amount recovered … in a third-party action shall be used to reimburse the insurance carrier for benefits, including medical benefits, that have been paid for the compensable injury.” Id. § 417.002(a). “[N]et amount recovered” means the third-party recovery less the claimant’s attorney’s fees and expenses in the third-party action. See id. §§ 417.001, 417.003. By statute, this fee cannot exceed one-third of the recovery. Id. § 417.003(a)(1), (c). A trial court is prohibited from further reducing the “net amount recovered” by the amount of attorney’s fees incurred by the claimant in his suit to establish his right to workers’ compensation benefits. Foster v. Truck Ins. Exch., 933 S.W.2d 207, 211-12 (Tex.App.-Dallas 1996, writ denied); see Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 593 (Tex.1996) (“attorney’s fees may not be recovered from an opposing party unless such recovery is provided for by statute or by contract between the parties”). We therefore overrule Morales’ second point of error.

Sufficiency of the Evidence of Benefits Paid

To establish its right to be reimbursed from a third-party recovery, an insurance carrier must prove the amounts of benefits it has paid to the injured worker. Texas Workers’ Compensation Fund v. Serrano, 962 S.W.2d 536, 538 (Tex.1998) (per curiam). In this case, Morales’ attorney’s testimony conclusively establishes he has sought and received the probate court’s approval of more than $40,000 for attorney’s fees in connection with the suit to establish Morales’ right to workers’ compensation benefits. This fact yields only one reasonable inference-Morales has received at least $26,680 in workers’ compensation benefits. See Tex. Lab.Code Ann. §§ 408.221(b), 408.221(h). We therefore overrule Morales’ first point of error and affirm the judgment.