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Balboa v. Tig Premier Ins. Co.
April 27, 2001
Unpublished Opinion

Balboa v. Tig Premier Ins. Co.

Court of Appeals of Texas, El Paso.

Ernesto BALBOA, Appellant,



No. 08-00-00215-CV.


April 27, 2001.

Appeal from the 327th District Court of El Paso County, Texas (TC# 97-3898).

Before CHEW, JJ.



*1 Appellant Ernesto Balboa (“Balboa”) appeals from the trial court’s refusal to award him his attorney’s fees against Appellee T.I.G. Premier Insurance Co. (“T.I.G.”). Balboa brings one issue: whether the injured worker’s attorney is required to plead for attorney’s fees in order to recover them in a supplemental income benefits case under the new workers’ compensation act. We affirm.

Balboa injured his back and right thigh on September 17, 1995, and was awarded workers’ compensation. The insurance carrier, T.I.G ., disputed the supplemental income benefits payment for the second and third quarters (from April 9, 1997-July 8, 1997 and July 9, 1997-October 7, 1997). The parties were unable to resolve the dispute through mediation at a benefits review conference on July 10, 1997; therefore, a contested case hearing was held before a Texas Workers’ Compensation Commission Hearing Officer. After reviewing the testimony and exhibits presented, the hearing officer concluded on September 2, 1997, that Balboa was not due supplemental income benefits for the second and third quarters.

Balboa appealed the decision of the hearing officer to the Commission’s Appeals Panel. On October 29, 1997, the Commission’s panel upheld the hearing officer’s decision and denied Balboa supplemental benefits for the second and third quarters, whereupon Balboa brought suit. A trial was held before a jury, which rendered a verdict in favor of Balboa on March 29, 1999.

On August 3, 1999, the trial court held a hearing on Balboa’s motion for attorney’s fees. Balboa’s attorney, Mr. Monty Roberson, argued that under TEX.LAB.CODE ANN. § 408.147 did not apply because it did not apply to the initial determination of the Commission as to a worker’s benefits entitlement but in case of any dispute brought by an insurance carrier subsequently. T.I.G. also argued that Balboa had not pled for his attorney’s fees in the petition to the trial court. The trial court denied Balboa’s motion for attorney’s fees. Balboa appeals from the trial court’s refusal to award attorney’s fees.

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. See Conrad Moore & Assoc., Inc. v. Lerma, 946 S.W.2d 90, 96 (Tex.App.-El Paso 1997, writ denied).

Texas Workers’ Compensation Act provides that the attorney’s fee “shall be paid from the claimant’s recovery.” Mayfield, 923 S.W.2d at 593.

*2 Neither of the two exceptions of the Workers’ Compensation Act applies in this case. As is undisputed by the parties, T.I.G. challenged the award of supplemental benefits to Balboa for the second and third quarters. The Commission upheld T.I.G.’s position both at the initial dispute and the subsequent appeal to the Commission’s appeals panel. Balboa was therefore not entitled to his attorney’s fees under the statute.

Moreover, Balboa failed to plead for his attorney’s fees in his petition to the trial court. Because the attorney’s fees were not pled in the petition, the trial court could not award attorney’s fees to Balboa. There was no error in the trial court’s denial of Balboa’s motion for attorney’s fees.

The judgment of the trial court is affirmed.

End of Document