                                  IN THE
                          TENTH COURT OF APPEALS

                               No. 10-12-00414-CV

INSURANCE COMPANY
OF THE STATE OF PENNSYLVANIA,
                                                       Appellant
v.

MERLE A. HUGHES,
                                                       Appellee



                          From the County Court at Law
                               Hill County, Texas
                              Trial Court No. 46131


                          MEMORANDUM OPINION


      Merle A. Hughes filed a claim for benefits with the Texas Worker’s

Compensation Commission, and a contested case hearing was heard before the Texas

Department of Insurance, Division of Worker’s Compensation (DWC). The DWC made

the following decision:

      [Hughes] sustained an injury, in the form of an occupational disease.
      Because [Hughes] did not sustain a compensable injury, she did not have
      disability.
       Carriers are relieved from liability under TEX. LABOR CODE ANN. § 409.002,
       because of [Hughes] failure to timely notify her employer pursuant to §
       409.001.
       The date of injury is July 28, 2004.

Hughes filed suit seeking judicial review of the DWC decision and order. After a jury

trial, the trial court entered judgment setting aside the DWC decision and order and

finding that Hughes sustained a compensable injury on August 31, 2006 while in the

course of her employment and that she sustained a disability beginning on October 6,

2006. The trial court also awarded attorney’s fees and costs to Hughes out of the

benefits. The Insurance Company of the State of Pennsylvania (ISOP) appeals from the

trial court’s judgment. We affirm.

                                 Sufficiency of the Evidence

       In the first issue on appeal, ISOP argues that the evidence is legally and factually

insufficient to support the jury’s finding on the issue of compensability. In the second

issue, ISOP argues that the evidence is legally and factually insufficient to support the

jury’s answer on the issue of disability.

       The Texas Workers' Compensation Act provides that a party who has exhausted

its administrative remedies and is aggrieved by a final decision of the appeals panel

may seek judicial review of the appeals panel decision. TEX. LABOR CODE ANN. 410.251

(West 2006); State Office of Risk Management v. Joiner, 363 S.W.3d 242, 246 (Tex.App.-

Texarkana 2012, pet. den’d). The Act provides that a trial is limited to issues decided by

the appeals panel and on which judicial review is sought and that the pleadings must




Insurance Company of the State of Pennsylvania v. Hughes                             Page 2
specifically set forth the determinations of the appeals panel by which the party is

aggrieved. TEX. LABOR CODE ANN. 410.302 (b) (West 2006).

          ISOP argues on appeal that Hughes failed to show that the injury arose out of her

job. ISOP contends that the expert who testified at trial was not qualified and that his

testimony did not establish causation related to Hughes’s employment. In its findings,

the DWC decision and order states that Hughes “sustained damage or harm to the

physical structure of her body due to repetitive work activities.” The DWC determined

that Hughes sustained an injury in the form of occupational disease. Because Hughes

was not aggrieved of the DWC’s decision that she sustained occupational disease, she

did not seek judicial review of that determination. See TEX. LABOR CODE ANN. 410.302

(b) (West 2006). ISOP did not seek review of the DWC’s determination that Hughes

sustained occupational disease.         The DWC determination that Hughes sustained

occupational disease was not presented for judicial review. We overrule the first and

second issues on appeal.

                                  Timely Notice to Employer

          In the third issue, ISOP argues that Hughes did not seek judicial review on the

issue of timely notice to her employer which relieves ISOP from all liability. The DWC

decision found Hughes date of injury to be July 28, 2004 and that Hughes notified her

employer of the injury on August 31, 2006, more than 30 days after the date of injury.

The DWC found Hughes notice to be untimely based upon the finding of the date of

injury.




Insurance Company of the State of Pennsylvania v. Hughes                             Page 3
       In her petition, Hughes stated that she was aggrieved by the determinations: 1)

that she did not sustain a compensable injury; 2) that she did not have disability; and 3)

that the date of injury was July 28, 2004. Again, the Workers’ Compensation Act

provides that a trial is limited to issues decided by the appeals panel and on which

judicial review is sought. TEX. LABOR CODE ANN. 410.302 (b) (West 2006). The pleadings

must specifically set forth the determinations of the appeals panel by which the party is

aggrieved. Id. Hughes set forth that she was aggrieved by the determination that her

date of injury was July 28, 2004 which was the basis for finding that the notice was

untimely. We find that Hughes’s pleadings comply with Section 410.302 (b). We

overrule the third issue.

                                       Improper Verdict

       In the fourth issue, ISOP argues that the jury verdict is improper and that

Hughes failed to object to the improper verdict. Question 4 asked “Did Merle Hughes

have disability resulting from the injury?” The jury answered “yes”. Question 4 then

continued, “If YES, for what time period?” The jury answered “FROM Oct 2 ’06 THRU

unknown”. ISOP contends that the verdict is “incomplete on the disability period

except to the limited extent of a disability of a single day.” ISOP further contends that

because Hughes would benefit from the incomplete answer, she was required to object

to the jury’s improper answer at the time it was given.

       The DWC decision determined that because Hughes did not sustain a

compensable injury, she did not have disability. The DWC decision was based upon its

finding that Hughes date of injury was July 28, 2004 and that Hughes did not notify her

Insurance Company of the State of Pennsylvania v. Hughes                            Page 4
employer until August 31, 2006. Because the DWC found that Hughes did not have

disability, the DWC did not determine the duration of the disability.

       Section 410.302 (b) limits the trial to issues decided by the appeals panel. The

duration of disability was not determined by the appeals panel. Hughes was aggrieved

by the determination that the date of injury was July 28, 2004 which led to the

determination that she did not have a compensable injury and disability. Hughes’s

pleadings set forth those determinations by which she was aggrieved. See TEX. LABOR

CODE ANN. 410.302 (b) (West 2006).           Therefore, the duration of disability was not

properly before the trial court.

       A question is immaterial when it should not have been submitted, or when it

was properly submitted but has been rendered immaterial by other findings. Spencer v.

Eagle Star Insurance Company of America, 876 S.W.2d 154, 157 (Tex. 1994). Submission of

an improper jury question can be harmless error if the jury's answers to other questions

render the improper question immaterial. City of Brownsville v. Alvarado, 897 S.W.2d 750,

752 (Tex.1995). A jury question is considered immaterial when its answer can be found

elsewhere in the verdict or when its answer cannot alter the effect of the verdict. City of

Brownsville v. Alvarado, 897 S.W.2d at 752.

       The question on the duration of the disability should not have been submitted to

the jury. The jury found that the date of injury was August 31, 2006, and that Hughes

sustained a compensable injury. The Workers’ Compensation Act provides in Section

410.207 that during judicial review of the appeals panel decision on any disputed issue

relating to a workers’ compensation claim, the division retains jurisdiction of all other

Insurance Company of the State of Pennsylvania v. Hughes                             Page 5
issues related to the claim. TEX. LABOR CODE ANN. 410.207 (West 2006). After the jury

verdict finding that Hughes sustained a compensable injury, the claim must return to

the DWC for a determination of the duration of disability.        We find that the jury’s

answer on the duration of disability was immaterial because its answer could not alter

the effect of the verdict. We overrule the fourth issue.

                                  Attorney’s Fees and Costs

       In the fifth issue, ISOP argues that the trial court erred in awarding attorney’s

fees in the judgment. The trial court’s judgment states:

       IT IS FURTHER ORDERED, ADJUDGED AND DECREED that
       Defendants, the Insurance Company of the State of Pennsylvania and
       Indemnity Insurance Company of North America are ORDERED to pay
       Clay Hinds, Attorney at Law the sum of $13,200.00 for attorneys fees out
       of the benefits of Merle Hughes in accordance with the rules and
       guidelines of the Texas Department of Insurance, Division of Workers’
       Compensation.

       Section 408.221 provides:

              (a) An attorney's fee, including a contingency fee, for representing a
       claimant before the division or court under this subtitle must be approved
       by the commissioner or court.

              (b) Except as otherwise provided, an attorney's fee under this
       section is based on the attorney's time and expenses according to written
       evidence presented to the division or court. Except as provided by
       Subsection (c) or Section 408.147(c), the attorney's fee shall be paid from
       the claimant's recovery.

TEX. LABOR CODE ANN. 408.221 (a) (b) (West 2006).          Section 408.221 provides two

relevant possibilities in which an insurance carrier will pay a claimant's attorney's fees.

Transcontinental Insurance Company v. Crump, 330 S.W.3d 211, 229 (Tex. 2010). The first

is where the carrier pays the claimant's attorney's fees for representation before the

Insurance Company of the State of Pennsylvania v. Hughes                               Page 6
Division of Workers' Compensation and some court proceedings, but the fees are

subtracted from the claimant's recovery. Id. This is the situation that is before us in this

appeal. The trial court must approve these fees, and must consider several factors in

doing so. Id. In reviewing fees awarded in this situation, the Court in Transcontinental

"held that the amount of the attorney's fees to be allowed in compensation cases is a

matter for the trial court to determine without the aid of a jury, and the amount of the

recovery is within its discretion." Transcontinental Insurance Company v. Crump, 330

S.W.3d at 229-230 (citing Texas Employers Insurance Association v. Motley, 491 S.W.2d 395,

397 (Tex.1973)).

       The judgment states that the attorney’s fees are to be paid out of Hughes’s

benefits. The attorney for ISOP agreed on the record that the fees were payable out of

Hughes’s proceeds. We find that the trial court did not abuse its discretion in awarding

the attorney’s fees out of Hughes’s benefits.

       ISOP also complains that the trial court’s judgment incorrectly awards costs in

the amount of $363 to Hughes. Rule 131 of the Texas Rules of Civil Procedure states

that "[t]he successful party to a suit shall recover of his adversary all costs incurred

therein, except when otherwise provided." TEX. R. CIV. P. 131. A determination of

whether a party is the prevailing or successful party must be based upon success on the

merits, and not on whether damages were awarded. Caesar v. Bohacek, 176 S.W.3d

282,286 (Tex.App.-Houston [1 Dist.] 2004, no pet.). Hughes was the successful party.

ISOP does not dispute the amount of costs or argue that the trial court miscalculated the



Insurance Company of the State of Pennsylvania v. Hughes                              Page 7
costs. We do not find that the trial court abused its discretion in awarding costs. We

overrule the fifth issue.

                                           Conclusion

       We affirm the trial court’s judgment.




                                              AL SCOGGINS
                                              Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed April 16, 2015
[CV06]




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