Court of Appeals of Texas, Dallas.

TEXAS WORKERS’ COMPENSATION COMMISSION and Glenda Mullens, Appellants,

v.

SERVICE LLOYDS INSURANCE COMPANY, Appellee.

No. 05-99-00052-CV.

|

Jan. 9, 2001.

Before Justices MORRIS, ROACH, and FITZGERALD.

OPINION

FITZGERALD.

*1 This is a workers’ compensation case. Glenda Mullens and the Texas Workers’ Compensation Commission (the Commission) appeal the judgment rendered in favor of Service Lloyds Insurance Company following the granting of motions for partial summary judgment and a jury trial. Mullens brings eight points of error¹ contending: (a) the trial court erred in exercising jurisdiction over a “sole cause” issue; (b) the jury’s findings did not support a take-nothing judgment; (c) the evidence is legally and factually insufficient to support the jury’s verdict; and (d) the trial court erred in granting Service Lloyds’ motions for partial summary judgment. The Commission brings one point of error contending that the lack of jury findings on the timeliness of the filing of Mullens’ workers’ compensation claim, the timeliness of Mullens’ employer reporting her injury, and the existence of good cause for Mullens’ not timely filing her claim should prevent Service Lloyds from receiving a take-nothing judgment. We overrule Mullens’ and the Commission’s points of error, and we affirm the trial court’s judgment.

FACTUAL BACKGROUND

Mullens had suffered back problems since 1987, and she underwent back surgery in January 1990 for a herniated disc. By November 1990, Mullens had recovered to the point that she suffered only minimal discomfort. In June 1991, Mullens began work as a used-car salesman at Prestige Ford. On July 3, 1991, Mullens injured her back getting into a vehicle to show a customer. From July 3-10, Mullens did not miss work. On July 10, 1991, Mullens went to Dr. Terry Sobey, who had performed her January 1990 back surgery. Dr. Sobey diagnosed her as suffering from a lumbar strain and prescribed “conservative care,” including physical therapy. Although Dr. Sobey did not tell her to stop working, Mullens did not return to work. Mullens had an appointment to see Dr. Sobey on July 24, 1991, but she testified that she was not allowed to see him because her account was in arrears. On July 25, Mullens resigned from Prestige Ford. She testified she told her supervisor, Jerry Reynolds, she was concerned that her absences due to her back problems would prevent her being allowed to work when she returned. Reynolds, however, testified Mullens told him she was quitting because the job required her to work too many hours and did not pay enough.

Mullens testified that, although the pain in her back grew worse, she did not see any doctor again until December 16, 1991, when she again saw Dr. Sobey. Following another visit with Dr. Sobey ten days later, Mullens did not see a doctor again until July 1992, when she returned to Dr. Sobey complaining of increased back pain. Tests led to surgery in September 1992. The surgery relieved some of Mullens’ pain, but her back pain has continued.

Although Mullens testified she suffered this on-the-job injury on July 3, 1991, she did not file a claim with the Commission until July 28, 1992, more than a year after the July 3, 1991 incident. Mullens explained she was unaware she could receive workers’ compensation benefits and that workers’ compensation benefits included medical care for work-related injuries. Mullens testified she first became aware of the true nature of workers’ compensation when a person at the social security office told her she should seek workers’ compensation benefits before applying for social security benefits. After receiving notice of Mullens’ workers’ compensation claim, Prestige Ford filed a report of Mullens’ injury with the Commission on August 18, 1992.

*2 Between July 1991 and September 1992, Mullens’ medical bills were paid by Aetna, a group health insurance plan that was a benefit of her husband’s employment. In September 1992, Mullens told Aetna that her back problems were a result of an on-the-job injury. Aetna informed Mullens that it did not cover injuries that were covered by workers’ compensation benefits. Aetna refused to pay her medical bills and wrote her heath-care providers to return the money it had paid them for recent treatment of her back injury.

Service Lloyds, Prestige Ford’s workers’ compensation insurance carrier, contested Mullens’ workers’ compensation claim before the Commission, asserting that Mullens was not disabled, that any disability was not a result of the July 3, 1991 incident, that she did not timely notify Prestige Ford of her injury, and that she did not timely file her workers’ compensation claim with the Commission. On March 2, 1993, the hearing officer found against Service Lloyds and for Mullens on each of these issues. The hearing officer determined that Mullens was disabled from July 3, 1991 through July 25, 1991 and thereafter beginning September 28, 1992. The Commission ordered Service Lloyds to initiate medical benefits and to pay temporary income benefits during Mullens’ disability. Both Service Lloyds and Mullens appealed the hearing officer’s decision to the Commission’s appeals panel, which, on May 12, 1993, affirmed the hearing officer’s decision.

On June 16, 1993, Service Lloyds filed this suit, cause number 93-06360, in district court for judicial review of the Commission’s orders. See Tex.Lab.Code Ann. § 410.251 (Vernon 1996).² Mullens answered and later filed a counterclaim asserting causes of action against Service Lloyds for breach of the duty of good faith and fair dealing, negligence, gross negligence, unfair settlement practices, and violations of the Commission’s rules by failing to pay the workers’ compensation benefits pursuant to the Commission’s order. On November 24, 1993, the trial court severed Mullens’ “bad faith” claim from this suit and gave the bad-faith claim cause number 93-12288. The trial court ordered that proceedings in the bad-faith action were “stayed pending final disposition of the underlying workers’ compensation claim of Glenda Mullens.”

On April 21, 1994, the trial court granted Service Lloyds’ motion for summary judgment in cause number 93-06360, set aside the Commission’s decisions and orders, and ordered that Mullens take nothing from Service Lloyds on her workers’ compensation claim. The Commission then intervened in the suit. Mullens appealed the take-nothing summary judgment. This Court reversed the summary judgment and remanded the cause for further proceedings. See Mullens v. Service Lloyds Ins. Co., No. 05-94-00932 CV (Tex.App.-Dallas July 27, 1995, writ denied) (not published). Meanwhile, on August 25, 1994, the trial court had granted Service Lloyds’ motion for summary judgment on Mullens’ bad faith claims in cause number 93-12288 and ordered that Mullens take nothing from Service Lloyds. Mullens did not appeal the summary judgment on her bad faith claims in cause number 93-12288.

*3 A jury trial was held on the workers’ compensation claim. At the conclusion of the trial, the court determined that the jury’s answers supported a take-nothing judgment for Service Lloyds because Mullens’ workers’ compensation claim was barred due to her failure to file her claim with the Commission within one year of the July 3, 1991 injury.

SOLE CAUSE

In her first point of error, Mullens contends the trial court erred in exercising jurisdiction over the “sole cause issue” because Service Lloyds failed to exhaust its administrative remedies on this issue. Our review of this contention shows it is not a jurisdictional complaint but an evidentiary complaint.

To obtain judicial review of the Worker Compensation Commission’s rulings, an aggrieved party must have exhausted its administrative remedies. See Tex.Lab.Code Ann. § 410.251 (Vernon 1996). The trial court’s jurisdiction is limited to issues decided by the Commission’s appeals panel. See id. § 410.302; Ankrom v. Dallas Cowboys Football Club, Inc., 900 S.W.2d 75, 77 (Tex.App.-Dallas 1995, writ denied).

The concept of “sole cause,” as it appears Mullens intends it, is the inferential rebuttal defense that the employee’s claimed injury was not caused by the on-the-job incident, but that the employee’s disability was caused solely by another incident. See Texas Workers’ Compensation Ins. Fund v. Mandlbauer, 988 S.W.2d 750, 752 (Tex.1999) (per curiam).

Mullens argues that the “sole cause issue” Service Lloyds presented was that the sole cause of her disability was events occurring before and after her employment at Prestige Ford. She appears to assert that the trial court exercised its jurisdiction over this issue by permitting Service Lloyds to present testimony of Mullens’ back problems other than the July 3, 1991 incident. She argues the only relevance that evidence could have is to the sole-cause issue.

Service Lloyds accurately described Mullens’ briefing of this point of error as “confusing.” Despite the argument that the trial court exercised jurisdiction over the sole-cause issue, the record is clear that the trial court did not submit a jury question or instruction on “sole cause.” The clearest statement in Mullens’ brief explaining how the trial court erred is the following: “The trial court exceeded its subject matter jurisdiction in its consideration of and in allowing Lloyds to offer evidence, to ostensibly establish that Mullens’ back injury, disability, compensable injury and/or incapacity arose from any event other than her July 3, 1991 on-the-job injury.” This sentence shows that Mullens is alleging two distinct errors by the trial court: (1) admitting evidence of injuries other than the July 3, 1991 incident; and (2) considering evidence of injuries other than the July 3, 1991 incident.

Dealing with the second alleged error first, we note that the factual issues in this case were determined by a jury, not the trial court. Therefore, because the trial court was not the trier of fact, it did not “consider” evidence of injuries other than the July 3, 1991 injury. Mullens’ first alleged error demonstrates that her complaint is not that the trial court lacked jurisdiction but that the trial court erred in admitting evidence of Mullens’ back injuries other than the July 3, 1991 injury. Our conclusion that this point of error challenges an evidentiary decision and not the trial court’s jurisdiction is further supported by Mullens’ closing sentence under this point of error: “It follows, therefore, that the erroneous inclusion of the ‘sole cause’ evidence and argument likely caused or contributed to the rendition of an erroneous finding on issue no. 2 [that Mullens did not suffer disability as a result of a compensable injury], and thus reversible error has been committed.” We conclude that, regardless of how Mullens phrased the point of error, the basis for this first point of error is an evidentiary complaint and not a jurisdictional complaint.

*4 To preserve her evidentiary complaint for appellate review, Mullens had to object to the evidence at the first opportunity. See Maritime Overseas Corp v. Ellis, 971 S.W.2d 402, 411 (Tex.1998), cert. denied, 525 U.S. 1017 (1999); Moon v. Spring Creek Apartments, 11 S.W.3d 427, 432 (Tex.App.-Texarkana 2000, no pet.). Mullens did not object to the admission of the evidence of her back injuries before and after July 3, 1991 until she had testified extensively about her history of back problems from 1987 to the day of trial. When Mullens finally objected, the trial court ruled that the issue of the admissibility of this evidence was waived. Mullens does not refer to or appear to challenge this ruling on appeal. Mullens did not object to any argument by Service Lloyds concerning this issue. By failing to timely object to the admission of the evidence or to the argument, Mullens has not preserved any error from the jury’s consideration of the evidence or argument. See Tex.R.App.P. 33.1; Tex.R.Evid. 103(a)(1).

We overrule Mullens’ first point of error.

LIMITATIONS

In her second point of error, Mullens asserts the trial court erred in entering a take-nothing judgment against her on the basis of limitations because the jury’s findings do not support the judgment on that ground.

To be entitled to workers’ compensation benefits, the employee must timely notify the employer of the injury and timely file a claim with the Commission. The Workers’ Compensation Act (the Act) requires an employee to notify its employer of an injury within thirty days of when the injury occurs. See Tex.Lab.Code Ann. § 409.001(a)(1) (Vernon 1996).³ The employee must then file a claim with the Commission within one year of the injury. See id. § 409.003.⁴ The employee’s failure to timely notify the employer and to file the claim with the Commission relieves the employer and its insurance carrier of liability under the Act.⁵ See id. §§ 409.002, .004.⁶

The Act also places reporting duties on the employer. The employer is required to file a written report with the Commission “if an injury results in the absence of the employee from work for more than one day.” Id. § 409.005(a)(1) (Vernon 1996) (emphasis added).⁷ The employer must file the report within eight days of “the employee’s absence from work for more than one day” due to an injury. Id. If the employer has been given notice of the injury but fails to file a report with the Commission as required by section 409.005, the employee’s one-year limitation for filing the claim with the Commission is tolled until the employer files the written report. See id. § 409.008.⁸

In this case, the jury found in question one that Mullens sustained a compensable injury on July 3, 1991. The jury found in question three that Mullens reported her injury to Prestige Ford within thirty days of July 3, 1991. The trial court found as a matter of law that Mullens did not timely file her claim with the Commission within one year of her injury and that she did not have good cause to file it late.⁹ Prestige Ford did not file a report of injury with the Commission until after Mullens filed her claim. Therefore, if under section 409.005, Prestige Ford was required to file a report of injury with the Commission, then Mullens’ limitations period for filing her claim with the Commission was tolled. However, if Prestige Ford was not required to file a report of injury with the Commission, then Mullens’ limitations period for filing her claim with the Commission was not tolled, her claim was untimely, and Service Lloyds was relieved of liability.

*5 Section 409.005 required Prestige Ford to file an injury report with the Commission if the injury resulted in Mullens’ absence from work for more than one day. In jury question four, the trial court submitted the issue of whether Prestige Ford was required by the Act to file an injury report:

Do you find from a preponderance of the evidence that Glenda Mullens missed one or more days of work because of a compensable injury during the period beginning July 3, 1991 and ending July 25, 1991?

Answer “she did” or “she did not”. You are instructed that an answer of “she did not” must be supported by a preponderance of the evidence.

Answer: She Did Not

Based on this answer, Service Lloyds argued that Prestige Ford was not required to file an injury report with the Commission and that the one-year limitations period for Mullens to file her claim with the Commission was not tolled; therefore, Service Lloyds argued that, under section 409.004, it was relieved of liability due to Mullens’ failure to timely file her claim with the Commission.

Mullens argues that the jury’s finding in question four that she missed work “because of a compensable injury “ did not establish that “an injury “ resulted in her absence from work as required by section 409.005(a)(1). Thus, Mullens argues, Service Lloyds failed to obtain the necessary jury findings to support the judgment. Although in other contexts the distinction between “an injury” and “a compensable injury” might have merit, the facts of this case render any such distinction harmless. In this case, the jury found in jury question one “that Glenda Mullens sustained a compensable injury on July 3, 1991.” This July 3, 1991 compensable injury was the only injury in evidence between July 3, 1991 and July 25, 1991. Therefore, when the jury found that Mullens did not miss one or more days of work due to “a compensable injury,” it necessarily found that Mullens did not miss one or more days of work due to “an injury.”¹⁰ Mullens’ argument to the contrary lacks merit.

Mullens also argues that, regardless of limitations, she is entitled to medical benefits because the jury found she sustained a “compensable injury” and the Act entitles an employee “all health care reasonably required by the nature of the [compensable] injury.” See id. § 408.021. She argues that she met all the prerequisites to recover medical benefits because the jury found she sustained a compensable injury and she notified her employer of the injury within thirty days. Mullens cites one case in support of her claim: Houston General Ins. Co. v. Vera, 638 S.W.2d 102 (Tex.App .-Corpus Christi 1982, writ ref’d n.r.e.). Vera involved an employee suffering from an “occupational disease,” not “an injury .” The Act requires the employer to file a report with the Commission after being notified of the disease, regardless of whether the employee misses work. See Tex.Lab.Code Ann. § 409.005(a) (Vernon 1996). In Vera, the employee did not timely file his claim with the Commission; however, his employer did not file the report with the Commission as required by the Act, so the employee’s time to file his claim with the Commission was tolled. See Vera, 638 S.W.2d at 106; see also Tex.Lab.Code Ann. § 409.008 (Vernon 1996). In this case, as discussed above, Mullens sustained “an injury,” not an “occupational disease.” Although notice of the occupational disease triggered the employer’s duty to file the report with the Commission in Vera, Mullens’ notice to Prestige Ford of “an injury” without absence from work due to the injury did not require Prestige Ford to file the report of injury with the Commission. We conclude Vera is distinguishable. Because Prestige Ford was not required to file the report of injury with the Commission, Mullens’ limitations period for filing her claim with the Commission was not tolled.

*6 Mullens’ argument that she is entitled to medical benefits because she suffered a compensable injury and timely notified her employer of the injury omits one necessary element to recovery from the employer or the employer’s insurance carrier: timely filing a claim with the Commission. As discussed above, Mullens’ failure to comply with the filing requirements of section 409.003 “relieve[d] the employer and the employer’s insurance carrier of liability….” Tex.Lab.Code Ann. § 409.004 (Vernon 1996). The Act could not be clearer: the employee’s failure to comply with the filing requirements of section 409.003 prohibits a judgment against the employer’s insurance carrier. See id. § 409.004; see also Anderson v. Hood County, 958 S.W.2d 448, 450 (Tex.App.-Fort Worth 1997, no pet.) (employer entitled to summary judgment when employee fails to timely file claim with Commission). Mullens’ arguments lack merit.

Mullens also argues that Service Lloyds did not attack the award of medical benefits in the trial court and that the Commission’s award of medical benefits is res judicata in Mullens’ favor. We disagree. By asserting limitations, which relieved it from all liability under the Act, Service Lloyds attacked the award of all benefits under the Act, including the award of medical benefits. Mullens’ argument lacks merit.

We overrule Mullens’ second point of error.

SUFFICIENCY OF THE EVIDENCE

In her third and fourth points of error, Mullens contends that the trial court erred in denying her motion for judgment notwithstanding the verdict and her motion for new trial because the jury’s answers to questions two and four were not supported by legally and factually sufficient evidence.

The decision whether to grant a motion for judgment notwithstanding the verdict is reviewed using the legal sufficiency analysis. See State Bar of Tex. v. Dolenz, 3 S.W.3d 260, 264-65 (Tex.App.-Dallas 1999, no pet.); (citing Brown v. Bank of Galveston, N.A., 963 S.W.2d 511, 513 (Tex.1998)). In addressing a legal sufficiency or no-evidence challenge, we must consider only the evidence and inferences, viewed in their most favorable light, that support the jury’s finding, and we must disregard all evidence and inferences to the contrary. See Stafford v. Stafford, 726 S .W.2d 14, 16 (Tex.1987); Alm v. Aluminum Co. of Am., 717 S.W.2d 588, 593 (Tex.1986). If there is more than a scintilla of evidence to support the finding, then the no-evidence challenge fails. See Stafford, 726 S.W.2d at 16. When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence. See Kindred v. Con/Chem, Inc ., 650 S.W.2d 61, 63 (Tex.1983); Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 755 (Tex.1970). However, if the evidence supplies some reasonable basis for differing conclusions by reasonable minds as to the existence of a vital fact, then there is some evidence. See Kindred, 650 S.W.2d at 63.

*7 A trial court’s denial of a motion for new trial is usually reviewed for abuse of discretion. However, when the motion challenges the sufficiency of the evidence, the reviewing court uses the appropriate evidentiary sufficiency standard to determine whether the trial court erred in denying the motion. See McMillon v. Texas Dep’t of Ins., 963 S.W.2d 935, 938 (Tex.App.-Austin 1998, no pet.). In reviewing the denial of a motion for new trial challenging the factual-sufficiency-of-the-evidence to support a jury verdict, an appellate court must consider and weigh all of the evidence, not just that evidence which supports the verdict. See Burtch v. Burtch, 972 S.W.2d 882, 888 (Tex.App.-Austin 1998, no pet.) (citing In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951)). The verdict should be set aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985). However, this Court is not a fact finder, and we may not pass upon the credibility of the witnesses or substitute our judgment for that of the trier of fact, even if a different answer could be reached upon review of the evidence. See Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref’d n.r.e.).

In question four, the jury found that Mullens did not “miss[ ] one or more days of work because of a compensable injury during the period beginning July 3, 1991 and ending July 25, 1991.” The evidence is undisputed that Mullens, in spite of her injury, worked from July 3, 1991 through July 10, 1991. Although some of the testimony is unclear, it appears undisputed that Mullens did not work at Prestige Ford after July 10, 1991 and that she resigned from Prestige Ford on July 25, 1991. Mullens cites to her own testimony that her absence from work after visiting the doctor on July 10, 1991 was a result of the July 3, 1991 injury. Mullens also cites her doctor’s testimony that she had suffered a lumbar strain. However, the evidence also shows her doctor did not tell her she could not work, and she never gave a doctor’s slip to her employer. The jurors also had before them Mullens’ testimony about her previous jobs, which showed that she had rarely held a job for an extended period but had quit several jobs within a few months of beginning work. The jurors could also consider Reynolds’ testimony that she told him she was quitting because the job required too many hours for too little money. The jurors could reasonably conclude from this evidence that Mullens’ absence from work after July 10, 1991 was caused by her dislike of the job and not by the July 3, 1991 injury. We conclude that the jurors’ answer to question four was supported by more than a scintilla of evidence and that it was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we conclude that the jury’s answer was supported by legally and factually sufficient evidence. Therefore, the trial court did not err in denying Mullens’ motion for judgment notwithstanding the verdict or abuse its discretion in denying Mullens’ motion for new trial concerning jury question four. We overrule Mullens’ third point of error.

*8 In jury question two, the jurors found that Mullens did not “sustain [ ] a disability because of a compensable injury.” The jury’s answers to questions one, three, and four establish Service Lloyds’ entitlement to a take-nothing judgment on it its defense of limitations. Therefore, any error in denying Mullens’ motion for judgment notwithstanding the verdict and motion for new trial challenging the sufficiency of the evidence to support the jury’s answer to question two is harmless. See Tex.R.App.P. 44.1(a); Galveston County Fair & Rodeo, Inc. v. Glover, 940 S.W.2d 585, 586 (Tex.1996) (per curiam); Keene Corp. v. Kirk, 870 S.W.2d 573, 580 (Tex.App.-Dallas 1993, no writ). We overrule Mullens’ fourth point of error.

MULLENS’ COUNTERCLAIMS

In her fifth through eighth points of error, Mullens contends that the trial court erred in granting in part Service Lloyds’ motions for partial summary judgment on her counterclaims. These counterclaims and their disposition arise out of the following facts.

While seeking relief from the Commission’s order in Dallas County district court, Service Lloyds also brought suit in Travis County against Mullens, the Commission, the executive director of the Commission, and the Subsequent Injury Fund seeking an injunction to avoid paying Mullens any benefits during the pendency of the litigation on Mullens’ workers’ compensation claim in Dallas County district court. Service Lloyds posted a $5,000 bond and obtained a temporary restraining order. A letter from the attorney general to Service Lloyds, dated July 30, 1993, states that the parties had agreed that Service Lloyds would nonsuit the Travis County action and pay benefits to Mullens in exchange for the Commission not charging Service Lloyds with an administrative violation for failing to comply with the Commission’s order to pay benefits to Mullens. On July 30, 1993, the trial court in the Travis County suit signed a document styled “Order of Non-Suit.”¹¹

After this Court remanded the Dallas County suit to the trial court, Mullens filed more counterclaims. These counterclaims alleged that Mullens was the third-party beneficiary to an agreement between Service Lloyds and the Commission in the Travis County suit and that Service Lloyds breached the agreement by not paying her the workers’ compensation benefits ordered by the Commission and by Service Lloyds’ continuing to litigate its obligation to pay benefits to Mullens. The counterclaims alleged breach of contract for Service Lloyds’ failure to follow the Travis County agreement, negligence, gross negligence, breach of fiduciary duties, and breach of the duty of good faith and fair dealing. Both Service Lloyds and Mullens moved for summary judgment on the counterclaims. Service Lloyds also moved to sever the counterclaims from the workers’ compensation action. The docket sheet indicates the trial court made rulings on these motions on August 19, 1998 and August 28, 1998, but the trial court did not sign orders on these rulings. On September 8, 1998, before the trial court had signed orders on the summary judgment rulings, Mullens amended her counterclaims. The amended counterclaims consisted of causes of action for judicial enforcement of the Commission’s orders that Service Lloyds pay benefits to Mullens, and breach of Service Lloyds’ duty of good faith and fair dealing by not paying her benefits. On September 9, 1998, the trial court ordered “that the ‘bad faith’ claim asserted by Glenda Mullens be, and hereby is, severed from the workers’ compensation claim asserted in Glenda Mullens’ pleadings for affirmative relief.” The severance order transfers the “bad faith” action to a new cause of action and orders all further proceedings on the “bad faith” action abated “pending final disposition of the underlying workers’ compensation claim of Glenda Mullens.”

*9 The September 9, 1998 severance order does not identify which specific causes of action constitute the severed “ ‘bad faith’ action,” but it appears the trial court intended to sever all causes of action except Service Lloyds’ suit for judicial review of the Commission’s orders on Mullens’ workers’ compensation claim. Assuming the severance order severed all of Mullens’ counterclaims, any orders by the trial court granting in part Service Lloyds’ motions for partial summary judgment on her counterclaims are not part of the judgment on appeal and are not before us.

Even if the severance order did not sever all of Mullens’ counterclaims from the cause before us, nothing in the record shows the trial court signed orders granting Service Lloyds’ motions for partial summary judgment. Nor did Mullens request inclusion of any such orders in her designation of the clerk’s record. At our request, the district clerk reviewed its file and has certified that it found no orders on the trial court’s rulings on these motions for partial summary judgment. See Tex.R.App.P. 34.5(c).

A docket entry is not an order. It does not form a part of the record; it is simply a notation for the clerk’s and the court’s convenience. See Guyot v. Guyot, 3 S.W.3d 243, 246 (Tex.App.-Fort Worth 1999, no pet.); Gainesville Oil & Gas Co. v. Farm Credit Bank, 795 S.W.2d 826, 828 n.2 (Tex.App.-Texarkana 1990, no writ); Energo Int’l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151 (Tex.App.-Dallas 1986, no writ). A docket entry is also inherently unreliable. See Guyot, 3 S.W.3d at 246; Energo, 722 S.W.2d at 151 n.2. The docket sheet cannot be used to show the existence of an order. See Guyot, 3 S.W.3d at 246.

Either the rulings on the counterclaims are not part of the judgment on appeal or the record does not show the trial court granted Service Lloyds’ motions for summary judgment on Mullens’ counterclaims. Either way, the record does not support Mullens’ contentions that the trial court erred by granting these motions. We overrule Mullens’ fifth through eighth points of error.

THE COMMISSION’S APPEAL

In its sole point of error, the Commission contends the trial court erred in granting Service Lloyds a take-nothing judgment. Service Lloyds argues the Commission lacks standing to bring this point of error because it does not have a justiciable interest in the outcome of the case. Section 410.254 of the Act provides that “the commission shall be permitted to intervene in any judicial proceeding under [the Act].” Tex.Lab.Code Ann. § 410.254 (Vernon 1996). This provision authorizes the Commission to be a party “in any judicial proceeding under [the Act]” without having a justiciable interest in the case. See Texas Workers’ Compensation Comm’n v. Hartford Accident & Indem. Co., 952 S.W.2d 949, 953 (Tex.App.-Corpus Christi 1997, pet. denied); ESIS, Inc. v. Johnson, 908 S.W.2d 554, 563 (Tex.App.-Fort Worth 1995, writ denied). This appeal is a “judicial proceeding” under the Act; accordingly, the Commission is not required to have a justiciable interest to participate in the appeal. We conclude that section 410 .254 authorizes the Commission to bring its appeal, regardless of whether it has a justiciable interest in the judgment.

*10 The Commission asserts that Service Lloyds was not entitled to a take-nothing judgment without jury findings on the issues of the timeliness of Mullens’ filing her claim with the Commission, the timeliness of Service Lloyds’ reporting her injury or the existence of good cause for Mullens’ failure to timely file her claim with the Commission. There are no jury findings on the issues of the timeliness of Mullens’ filing her claim with the Commission and of good cause for failing to timely file the claim because, as the trial court stated in its judgment,

At the conclusion of the evidence, and prior to submitting the case to the Jury, the Court found, as a matter of law, that Glenda Mullens did not file her Notice of Injury and Claim for Compensation within one year of July 3, 1991, and did not have good cause for her failure.

The Commission does not explain why the trial court, having found these facts established as a matter of law, had to submit these issues to the jury. Only disputed issues of fact may be submitted to a jury. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223 (Tex.1992); Employers Cas. Co. v. Block, 744 S.W .2d 940, 944 (Tex.1988). Because these issues were not disputed, Service Lloyds was not required to obtain jury findings on them.

The Commission also argues that Service Lloyds should have obtained a jury finding on whether Prestige Ford timely filed its report of injury with the Commission. The evidence was undisputed that Prestige Ford did not file its report of injury until August 18, 1992. The only issue was whether, under the Act, it was required to file a report of injury. This issue was submitted to the jury in question four, in which the jury found that Mullens did not “miss [ ] one or more days of work because of a compensable injury during the period beginning July 3, 1991 and ending July 25, 1991.” Like Mullens, the Commission argues that the Act required a finding that Mullens did not miss more than one day of work due to “an injury” as opposed to “a compensable injury.” As discussed under Mullens’ second point of error, the only injury Mullens suffered between July 3 and July 25, 1991 was the July 3 incident. In question one, the jury found this error was a “compensable injury.” Therefore, any distinction between “an injury” and “a compensable injury” could not have affected the jury’s answer to question four. We overrule the Commission’s point of error.

We affirm the trial court’s judgment.

	Footnotes
1		In their briefs, Mullens and the Commission styled their points of error as “issues.” However, to avoid any confusion caused by the use of the word “issue” in other contexts throughout the opinion, we use the term “point of error” to refer to the complaints in their briefs.
2		The Workers’ Compensation Act in effect on July 3, 1991 and when Mullens filed her claim on July 28, 1992 was the Act of Dec. 12, 1989, 71st Leg., 2nd C.S., ch. 1, 1989 Tex.Gen.Laws 1 81. In 1993, the legislature repealed and recodified the Act without substantive change into the Texas Labor Code. See Act of May 12, 1993, 73rd Leg., R.S., ch. 269, §§ 5, 6, 1993 Tex.Gen.Laws 1188, 1273. Because the 1989 Act was repealed without a savings clause for cases in litigation and the recodification of the 1989 Act was without substantive change (with one exception-see infra note 7), we will cite to the relevant provisions of the Texas Labor Code instead of the 1989 provisions.
3		This statute provides: (a) An employee or a person acting on the employee’s behalf shall notify the employer of the employee of an injury not later than the 30th day after the date on which: (1) the injury occurs; or (2) if the injury is an occupational disease, the employee knew or should have known that the injury may be related to the employment. (b) The notice required under Subsection (a) may be given to: (1) the employer; or (2) an employee of the employer who holds a supervisory or management position. Tex.Lab.Code Ann. § 409.001(a)(b) (Vernon 1996).
4		This statute provides: An employee or a person acting on the employee’s behalf shall file with the commission a claim for compensation for an injury not later than one year after the date on which: (1) the injury occurred; or (2) if the injury is an occupational disease, the employee knew or should have known that the disease was related to the employee’s employment. Tex.Lab.Code Ann. § 409.003 (Vernon 1996).
5		There are exceptions to this relief from liability, including the employee showing good cause for not notifying or filing, actual knowledge by the employer of the injury, and the employer’s failure to contest the claim. See Tex.Lab.Code Ann. §§ 409.002, .004 (Vernon 1996).
6		Section 409.002 provides: Failure to notify an employer as required by Section 409.001(a) relieves the employer and the employer’s insurance carrier of liability under this subtitle unless: (1) the employer, a person eligible to receive notice under Section 409.001(b), or the employer’s insurance carrier has actual knowledge of the employee’s injury; (2) the commission determines that good cause exists for failure to provide notice in a timely manner; or (3) the employer or the employer’s insurance carrier does not contest the claim. Tex.Lab.Code Ann. § 409.002 (Vernon 1996). Section 409.004 provides: Failure to file a claim for compensation with the commission as required under Section 409.003 relieves the employer and the employer’s insurance carrier of liability under this subtitle unless: (1) good cause exists for failure to file a claim in a timely manner; or (2) the employer or the employer’s insurance carrier does not contest the claim. Tex.Lab.Code Ann. § 409.004 (Vernon 1996).
7		This statute provides: (a) An employer shall report to the employer’s insurance carrier [and the commission] if: (1) an injury results in the absence of an employee of that employer from work for more than one day; or (2) an employee of the employer notifies that employer of an occupational disease under Section 409.001. (b) The report under Subsection (a) must be made not later than the eighth day after: (1) the employee’s absence from work for more than one day due to an injury; or (2) the day on which the employer receives notice under Section 409.001 that the employee has contracted an occupational disease. (c) The employer shall deliver a written copy of the report under Subsection (a) to the injured employee at the time that the report is made to the insurance carrier. (d) The insurance carrier shall file the report of the injury on behalf of the policyholder. Except as provided by Subsection (e), the insurance carrier must electronically file the report with the commission not later than the seventh day after the date on which the carrier receives the report from the employer. Tex.Lab.Code Ann. § 409.005(a)-(d) (Vernon 1996). The bracketed material contains the change in the procedure for filing the claim with the Commission. Under the 1989 Act, the employer was required to file the report of injury with both its insurance carrier and the Commission. See Act of Dec. 12, 1989, 71st Leg., 2nd C.S. ch. 1, § 5.05(a), 1989 Tex.Gen.Laws 1, 49. Under the 1993 recodification, the employer files the report of injury with its insurance carrier, which has the responsibility to file the report with the Commission. See Tex.Lab.Code Ann. § 409.005(a), (d) (Vernon 1996).
8		This statute provides: If an employer or the employer’s insurance carrier has been given notice or has knowledge of an injury to or the death of an employee and the employer or insurance carrier fails, neglects, or refuses to file the report under Section 409.005, the period for filing a claim for compensation under Sections 409.003 and 409.007 does not begin to run until the day on which the report required under Section 409.005 has been furnished. Tex.Lab.Code Ann. § 409.008 (Vernon 1996).
9		Ignorance of the law is not “good cause.” As the supreme court has stated, “[P]laintiff is charged with knowledge that his employer had provided for the payment of compensation under the Act. He is also presumed to know the law.” See Allstate Ins. Co. v. King, 444 S.W.2d 602, 605 (Tex.1969) (citation omitted).
10		To the extent Mullens may be arguing that the trial court erred in including the word “compensable” in jury question four, we conclude she waived any error because she did not object to the jury question. See Tex.R.Civ.P. 274, 278; City of Austin v. Travis County Landfill Co., 25 S.W.3d 191, 202-03 (Tex.App.-Austin 1999, no pet.); Kirkpatrick v. Memorial Hosp., 862 S.W.2d 762, 769 (Tex.App.-Dallas 1993, writ denied). Furthermore, we cannot conclude the error, if any, probably caused the rendition of an improper judgment because the only injury was the July 3, 1991 injury, which the jury found in question one was a compensable injury. Therefore, the error was harmless. See Tex.R.App.P. 44.1.
11		This order found that Service Lloyds had a reasonable basis for filing suit and obtaining the temporary restraining order, and the trial court ordered Service Lloyds’ $5,000 deposit returned to it. Curiously, although styled “Order of Nonsuit,” the order does not appear to contain language dismissing Service Lloyds’ causes of action.