Court of Appeals of Texas, Dallas.

FIDELITY AND CASUALTY COMPANY OF NEW YORK and Texas Workers’ Compensation Commission, Appellants,

v.

Larry D. RUST, Appellee.

No. 05-97-01509-CV.

|

Jan. 23, 2001.

Before THOMAS, Chief J., WHITTINGTON and JAMES, JJ.

OPINION

THOMAS.

*1 Fidelity and Casualty Company of New York (Fidelity) and the Texas Workers’ Compensation Commission (the Commission) appeal the trial court’s judgment in favor of Larry D. Rust. Fidelity and the Commission contend the trial court erred in not dismissing the suit for lack of subject matter jurisdiction because Rust failed to file a copy of the original petition with the Commission, as required by statute. In two additional issues, Fidelity also contends the trial court erred in (1) finding indemnity benefits were due to Rust and ordering a lump sum payment of attorney’s fees; and (2) rendering judgment in favor of Rust because there was no evidence or factually insufficient evidence to support the judgment. We modify the trial court’s judgment, to reflect that the attorney’s fees be paid from Rust’s recovery, and affirm it as modified.

Factual Background

Rust, a truck driver for Texas Instruments, was walking along the left side of his truck when he was struck on the head by a piece of machinery that had fallen from the truck. Rust was treated at a local hospital and released back to work. While at work, he asked that he be taken to his parent’s house. When he arrived, he was “wild and incoherent” and in tremendous pain. Rust’s parents took him to a different hospital for treatment and he remained off work for approximately seven months. Despite the treatment, Rust’s condition continued to worsen and he left his job approximately sixteen months after the accident. Among the symptoms Rust exhibited were forgetfulness, confusion, disorientation, and deep mood swings. Rust was subsequently declared legally incompetent and his parents were appointed guardians.

Fidelity, as Texas Instrument’s insurer, initially paid for Rust’s medical treatment. However, a dispute arose over whether Rust’s mental condition was caused by the head injury and Fidelity refused to authorize further payments for treatment of Rust’s mental impairment.

The Commission appointed Dr. John Krusz to perform an independent neurological examination of Rust. Dr. Krusz concluded Rust’s symptoms were consistent with traumatic brain injury, suffered when Rust was hit by the piece of machinery. Dr. Krusz then referred Rust to Dr. Ricardo Schack, a psychiatrist. Dr. Schack found Rust to be delusional and confused and admitted him to the hospital for a period of time because he refused to take his medications. In Dr. Schack’s opinion, Rust was completely unable to function as demonstrated by his inability to eat or drink adequately. Dr. Schack agreed with Dr. Krusz that Rust’s mental condition was caused by the head injury. A third doctor, Dr. Ken Pool, also opined, after examining Rust, that Rust’s condition was caused by the head injury. However, Dr. Thomas Lucas, a doctor for Fidelity, disagreed based upon statements by Rust’s family. Additionally, there were no medical records documenting Rust’s mental condition until more than a year after the accident and the records showed Rust’s mental deterioration occurred suddenly, not gradually.

*2 The Commission issued an initial determination that Rust had not proven by a preponderance of the evidence his current mental disabilities were related to his head injury. An appeals panel affirmed the decision, and Rust appealed to the district court. Following a jury trial, but before entry of judgment, Fidelity filed a motion to dismiss, asserting the trial court lacked jurisdiction because Rust failed to file a copy of his original petition with the Commission. Thereafter, the Commission intervened in support of the appeals panel decision and also filed a motion to dismiss for lack of jurisdiction. The trial court denied Fidelity’s motion but did not rule on the Commission’s motion. Subsequently, the trial court entered judgment for Rust in accordance with the jury’s findings. Noting the injury suffered at Texas Instruments was a producing cause of Rust’s incapacity, the court found Rust entitled to $636,00 in indemnity benefits. The trial court also awarded Rust attorney’s fees and expenses.

Jurisdiction

In the first issue, Fidelity and the Commission both contend the trial court should have dismissed the suit for lack of subject matter jurisdiction because Rust failed to file a copy of the original petition with TWCC, as required by statute. See Tex.Labor Code Ann. § 410.253 (Vernon 1996). We disagree.

A party seeking judicial review of a decision of TWCC’s appeals panel must file suit no later than the fortieth day after the date on which the decision is filed. See id. § 410.252(a). Further, the statute provides that a copy of the petition shall be simultaneously filed with the court and the commission and served on any opposing party. See id. § 410.253. However, the Supreme Court has held that although simultaneous filing of the petition with the Commission under section 410.253 is mandatory, it is not jurisdictional. See Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961-62 (Tex.1999); see also Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). Accordingly, we overrule this issue.¹

Attorney’s Fees

In its second issue, Fidelity contends the trial court erred in finding that lifetime indemnity benefits were due to Rust and then, based on the present value of those benefits, ordering an award of attorney’s fees and expenses of $171,648, payable in a lump sum. Specifically, regarding the determination of lifetime indemnity benefits, Fidelity, citing section 410.302 of the labor code, argues: “[t]he trial court did not have the authority to determine that lifetime benefits were due to Rust, or to determine the present value of those indemnity benefits, because those questions had not been decided and appealed and were not before the court.” Regarding the award of attorney’s fees, Fidelity contends the trial court (a) did not have the power to order a percentage of the present value of the lifetime benefits to be paid in a lump sum as attorney’s fees, including expenses; and (b) erred in not ordering the attorney’s fees to be taken out of Rust’s recovery, as required by statute.

*3 To the extent Fidelity complains of the award of indemnity benefits, we overrule the second issue because Fidelity has failed to provide a clear, concise or substantive argument for the contention made, with appropriate citations to the record. See Tex.R.App.P. 38.1(h). Fidelity’s entire argument on this issue is contained in the above-quoted sentence. Without argument and citation to authorities, nothing is presented for review. See id.; Nuchia v. Woodruff, 956 S.W.2d 612, 620 (Tex.App.-Houston [14th Dist.] 1997, pet. denied).

We also overrule Fidelity’s second issue to the extent it complains the trial court did not have the authority to order attorney’s fees be paid in a lump sum but sustain the issue to the extent Fidelity argues the trial court erred in not ordering the attorney’s fees be paid from Rust’s recovery. The labor code, which authorizes the award of attorney’s fees in a workers’ compensation case, expressly requires attorney’s fees be paid in periodic payments in one situation only: death benefit cases where the only disputed issue is the proper beneficiary or beneficiaries. See Tex.Lab.Code Ann. § 408.221(d) (Vernon 1996). In all other situations, the trial court has full discretion to order a commutation of fees. Id. However, the trial court must order the fees be paid from the claimant’s recovery. See id. § 408.221(b). In this case, the trial court ordered Fidelity to pay a lump sum to Rust’s counsel as attorney’s fees but did not explicitly order the fees be taken out of Rust’s recovery. This was error. Accordingly, we modify the trial court’s judgment to reflect the attorney’s fees awarded to Rust’s counsel be paid from Rust’s recovery. See Tex.R.App.P. 43.2(b); C.G.V. v. Texas Dep’t of Human Res., 663 S.W.2d 871, 873 (Tex.App.-Beaumont 1983, no writ) (appellate courts have the power to modify judgments without remand to the trial court when it appears from the facts of the record that the modification is necessary and that the justice of the case requires it).

Legal and Factual Sufficiency

In its third issue, Fidelity contends there was no evidence or factually insufficient evidence to support the jury’s verdict. Specifically, Fidelity contends the trial court erred in entering judgment based on the jury’s verdict because there was no clinical evidence of a traumatic brain injury, physicians who opined the 1991 injury was the producing cause of Rust’s mental condition admitted they had not reviewed the medical records pertaining to the injury, and there were no symptoms of mental illness until sixteen months after the injury. We reject Fidelity’s contentions.

When an appellant raises both legal and factual sufficiency challenges, we must examine the legal sufficiency challenge first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). In reviewing a no evidence challenge, we consider only the evidence and the inferences that support the finding and disregard all evidence to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992). If there is any evidence of probative value that supports the adverse finding, the point of error fails. See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 84 (Tex .1992); Holley v. Watts, 629 S.W.2d 694, 697 (Tex.1982).

*4 Applying this standard, we conclude there was legally sufficient evidence to support the trial court’s judgment. The record reflects Rust was incoherent following the head injury. There was also some evidence that Rust’s mental capacity began to progressively diminish after the accident, and he was eventually declared legally incompetent. Further, three physicians opined Rust’s mental incapacity was caused by the head injury. Of those three, one noted that Rust’s judgment was so impaired he did not know how to eat or drink adequately. From this evidence, the jury could have determined that Rust’s head injury was the producing cause of his mental illness. Accordingly, to the extent Fidelity complains the evidence was legally insufficient, we overrule Fidelity’s third issue.

We also overrule Fidelity’s point to the extent it complains the evidence was factually insufficient to support the judgment. In reviewing a factual sufficiency challenge, we must consider and weigh all of the evidence and set aside the verdict only if it so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In Re King’s Estate, 150 Tex. 662, 664-66, 244 S .W.2d 660, 661-62 (1951). This Court is not a fact finder and 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 Price v. Short, 931 S.W.2d 677, 689 (Tex.App.-Dallas 1996, no writ); Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.-Dallas 1986, writ ref’d n.r.e.).

Although Fidelity maintains the physicians who opined Rust’s mental condition was caused by the head injury had not reviewed the medical records pertaining to the injury, it was within the jury’s province to determine the credibility of the witnesses and weight to give their testimony. Moreover, although there may not have been any clinical evidence of a traumatic brain injury, there was other evidence from which the jury could determine the head injury caused Rust’s mental condition. Similarly, although there may have been some evidence that Rust did not begin exhibiting symptoms of a mental illness until sixteen months after the injury, there was also evidence that he began exhibiting symptoms shortly after the injury. Based on the record, we cannot conclude the evidence was factually insufficient to support the judgment.

We modify the trial court’s judgment to reflect the attorney’s fees awarded to Rust’s counsel be paid from Rust’s recovery. As modified, we affirm the trial court’s judgment.

	Footnotes
1		In what appears to be a cross-issue raised in connection with this issue, Rust challenges the Commission’s standing to intervene in this suit, asserting section 410.254 of the labor code, which authorizes the intervention, is an unconstitutional violation of the separation of powers. However, there is nothing in the record which shows Rust raised this complaint at trial. In fact, in granting the Commission leave to intervene, the trial court noted no party opposed the intervention. Moreover, Rust did not file a notice of appeal. Accordingly, we do not address Rust’s contention. See Tex.Rs.App.P. 25.1(c), 33.1(a); Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.1993) (as a rule, a party must assert a claim, including a constitutional claim, in the trial court in order to raise it on appeal); Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex .1982) (per curiam) (a party should not be allowed to waive, consent to, or neglect to complain about an error at trial and then surprise his opponent on appeal by stating his complaint for the first time).