Court of Appeals of Texas, Beaumont.

LUMBERMENS MUTUAL CASUALTY COMPANY, Appellant,

v.

Dorman D. PERKINS, Appellee.

No. 09-98-131 CV.

|

Jan. 27, 2000.

Before WALKER, C.J., STOVER and FARRIS, JJ.

OPINION

FARRIS.¹

*1 This case was filed as an old law workmen’s compensation case involving Dorman D. Perkins’s hearing loss claim. The carrier, Lumbermens Mutual Casualty Company, raises three issues on appeal. The first two are grounded upon a jury finding that the first distinct manifestation of Perkins’s occupational disease occurred after the effective date of the new Workers’ Compensation Act and the carrier’s avowal that the trial court did not have subject matter jurisdiction because Perkins did not exhaust his administrative remedies under the new Act. Perkins contends his suit is governed by the “old” workers’ compensation law-Tex.Rev .Civ.Stat.Ann. arts. 8306-8309f (Vernon 1967), repealed by Act of December 13, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01, Tex.Gen.Laws 1, 114-115. In contrast, Lumbermens contends the action is governed by the “new” workers’ compensation law, which was enacted as Tex.Rev.Civ.Stat.Ann. art. 8308-1.01 et seq. by the legislature in 1989 with an effective date of January 1, 1991, for most provisions. See Act of December 13, 1989, 71st Leg., 2nd C.S., ch. 1, §§ 1.01-17.19, 1989 Tex.Gen.Laws 1-122, repealed by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5(2), 1993 Tex .Gen.Laws 987, 1273 (current version at Tex.Lab.CodeAnn. §§ 401.001–506.002 (Vernon 1996 & Supp.2000)). The carrier also complains that the trial court erred in excluding a copy of a medical report included in the records of the Workers’ Compensation Commission. We overrule each of the carrier’s issues and affirm the judgment.

Perkins’s hearing loss was attributed to his long term, on the job, exposure to loud noise. As the carrier concedes, the claim for workers’ compensation benefits was first filed under the new Act. Later, Perkins amended his claim and alleged that his injury had occurred at an earlier time while the old law was still in effect. The carrier never challenged Perkins’s amended claim prior to trial. The jury found that Perkins had sustained a partial permanent hearing loss beginning Thanksgiving 1990 and that May 31, 1991, was the date of the first distinct manifestation of his hearing loss.

In issue one, the carrier complains that the trial court erred in overruling its post-verdict motion to dismiss for want of jurisdiction, because Perkins failed to exhaust the administrative procedures required under the new Act. In issue two the carrier complains that the trial court erred in overruling its motion for leave to file a trial amendment after the verdict was received. In its tendered trial amendment, it affirmatively pleaded that Perkins had not exhausted his administrative remedies under the new Act; thus, the court lacked subject matter jurisdiction.

Under the old law, the question of “first distinct manifestation” bears upon the issue of good cause for failing to timely file a compensation claim. See Butler v. Federated Mutual Ins. Co., 871 S.W.2d 950, 953 (Tex.App.-Fort Worth 1994, writ denied). Under the new Act, the date of injury for an occupational disease is the date the employee knew or should have known that the disease may be related to the employment. Tex.Lab.Code Ann. § 408.007 (Vernon 1996). Before the trial court, the carrier alleged that Perkins failed to file his claim within one year of the first distinct manifestation of his hearing loss, as required by former Tex.Rev.Civ.Stat.Ann. art. 8307, § 4a (current version at Tex.Lab.Code Ann. §§ 409.001–409.004 (Vernon 1996)). During closing argument, the carrier insisted Perkins knew his hearing loss was work-related back in 1985. On appeal, the carrier argues that, because the jury found Perkins’s injury did not manifest itself until after the effective date of the new Act, it was covered by that Act rather than the old law.

*2 We overrule issue one because Perkins procedurally complied with the statute which was before the trial court. Both parties pleaded, tried, and argued the case as though it were an old law case. Accordingly, the trial court submitted the case under the old law, including questions relating to the carrier’s defense that Perkins failed to timely file his claim and give notice to his employer as required by former article 8307, § 4a. Generally, where jurisdiction is once lawfully and properly acquired, no subsequent fact or event in the case serves to defeat the court’s jurisdiction. See Dallas Indep. School Dist. v. Porter, 709 S.W.2d 642, 643 (Tex.1986). When a cause of action derives from a statute, its statutory provisions are mandatory. See Grounds v. Tolar Indep. School Dist ., 707 S.W.2d 889, 891 (Tex.1986). Ordinarily, a plea to the jurisdiction raises incurable jurisdictional defects which are shown on the face of plaintiff’s pleadings. See Dolenz v. Texas State Bd. of Med. Exam’rs, 899 S.W.2d 809, 811 (Tex.App.-Austin 1995, no writ). But a plea to the jurisdiction can also challenge the accuracy of the jurisdictional facts pleaded by the plaintiff in which case evidence of such facts must be presented. Id. at 811 n. 3. In this case Perkins complied with law as pleaded while the carrier stood by and never offered evidence challenging the jurisdictional facts alleged by Perkins. Instead, the carrier took advantage of facts testified to by Perkins to raise a defense challenging the timeliness of Perkins’s claim.

We overrule issue two because the carrier’s post verdict amendment would have presented a new affirmative defense substantially changing the nature of the trial. See White v. Sullins, 917 S.W.2d 158, 161 (Tex.App.-Beaumont 1996, writ denied). Notably, from the history of Perkins’s claim before the Commission, it is clear that the carrier was aware of the facts related to its proposed trial amendment. See generally Cocke v. White, 697 S.W.2d 739, 742 (Tex.App.-Corpus Christi 1985, writ ref’d n.r.e.) (Vendor was aware of compromise and settlement agreement for a full year before trial, and amendment at a late date would have prejudiced purchaser, who had not prepared to meet settlement defense.).

In its remaining issue, the carrier complains the trial court erred in excluding its sixth exhibit, a document the carrier insists was admissible as a public record under Tex.R.Evid. 803(8)(C). The rule authorizes the admission of factual findings resulting from an investigation made pursuant to authority granted by law unless the sources of information or other circumstances indicate lack of trustworthiness. We overrule issue three because the exhibit was not properly authenticated. See Castro v. Sebesta, 808 S.W.2d 189, 195 (Tex.App.-Houston [1st Dist.] 1991, no writ). Further, because of the absence of information describing the qualifications of the author of the report, the failure to identify the author as the person who administered the hearing tests alluded to, and the incomplete nature of the information included, the trial court, acting within its discretion, could have determined that the exhibit was untrustworthy. See generally Horvath v. Baylor Univ. Med. Ctr., 704 S.W.2d 866, 870 (Tex.App.-Dallas 1985, no writ).

*3 By cross-point, Perkins urges this Court to find the carrier’s appeal frivolous pursuant to Tex.R.App.P. 45. We decline to do so. After reviewing the “record, brief, or other papers filed in the court of appeals,” we conclude the appeal was not objectively frivolous and overrule the cross-point.

The judgment is AFFIRMED.

	Footnotes
1		The Honorable David Farris, sitting by assignment pursuant to Tex.Gov’t Code Ann. § 74.003(b) (Vernon 1998).