Opinion
No. 05-01-02050-CV.
Opinion Filed February 11, 2003.
Appeal from the 116th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 97-08168-F.
AFFIRM.
Before Justices WRIGHT, BRIDGES, and O'NEILL.
MEMORANDUM OPINION.
Dallas County appeals the judgment awarding Victor Pavlu compensation benefits for a work related injury after Dallas County sought to have the Workers' Compensation Commission's award set aside. In three issues, Dallas County contends: (1) the trial court erred by denying its motion for summary judgment, motion for directed verdict, and motion for judgment notwithstanding the verdict; (2) the evidence does not support the jury's findings; and (3) the trial court erred in its calculation of compensation benefits. In a single cross-point, Pavlu contends the trial court erred in its calculation of compensation benefits. We affirm the trial court's judgment.
In its second issue, Dallas County contends the evidence is legally and factually insufficient to support the jury's findings that (1) Pavlu had good cause for the delay in filing his claim; (2) Pavlu was injured in the course and scope of his employment; (3) Pavlu was partially incapacitated as a result of his injury; and (4) Pavlu's partial incapacity was permanent. We review challenges to the legal and factual sufficiency of jury findings using well-known standards of review. See Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001) (legal sufficiency); Tex. Farmers Ins. Co. v. Cameron, 24 S.W.3d 386, 392 (Tex.App.-Dallas 2000, pet. denied) (factual sufficiency). In making its findings, the jury weighs the evidence, assesses the credibility of witnesses, and resolves conflicts and inconsistencies. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). We are mindful that this Court is not a fact finder, and we cannot substitute our judgment for that of the jury, even if a different finding could be reached on the evidence. Service Lloyds Ins. Co. v. Martin, 855 S.W.2d 816, 820 (Tex.App.-Dallas 1993, no writ).
Pavlu testified that on June 23, 1988, he was injured while executing a mental illness warrant. The man Pavlu took into custody hit Pavlu on the left side of his back with a wooden ax handle so hard the ax handle broke. Pavlu filed a report of injury the same day. His back was bruised and swollen for "two weeks or so." Over the next several months, Pavlu had some back and leg pain when he was fatigued, but he did not associate it with the June 23rd incident. In late December of 1990, Pavlu awoke with severe leg pain. He went to see Dr. Prasert Punhong on January 2, 1991. After speaking with Dr. Punhong, Pavlu realized for the first time that his leg pain was caused by the June 23rd incident. The doctor's office filed a form for Pavlu, which Pavlu believed was a workers' compensation claim form. Dr. Punhong recommended that Pavlu see an orthopedic specialist. The next day, Pavlu filed a supplemental notice of injury form. He then contacted Alexis, the third party administrator for workers' compensation claims, and began to see Dr. Lancourt "under workers' compensation through Alexis." Pavlu never paid Dr. Lancourt or the physical therapist for his treatment which lasted "eight months to a year." According to Pavlu, the treatment and therapy were not done under his Kaiser medical insurance. Some time later, after Pavlu lost the feeling in his left leg and fell, he retired from Dallas County because he felt he could not perform his duties as a deputy sheriff. In 1995, Dr. Lancourt determined Pavlu had a twenty percent impairment of his lumbar spine, due in part to his 1987 accident.
The form was entitled "Initial Worker's Compensation Visit Questionaire and Employer's Treatment Notice."
According to Dr. Punhong, Pavlu's injury was more consistent with being the result of an injury rather than a degenerative condition. Because the only significant injury to Pavlu's back was the June 23rd incident, Punhong believed it was the cause of Pavlu's back and leg problems. Dr. Marvin Van Howl disagreed. According to Dr. Van Hal, Pavlu's back problems were not caused by an accident, but were the result of age-related degeneration.
Viewed under the appropriate standards, we conclude the above evidence is legally and factually sufficient to support the jury's findings that (1) Pavlu had good cause for the delay in filing his claim; (2) Pavlu was injured in the course and scope of his employment; (3) Pavlu was partially incapacitated as a result of his injury; and (4) Pavlu's partial incapacity was permanent. See Martin, 855 S.W.2d at 820 (duration and extent of an incapacity resulting from an injury is at best a reasonable estimate that may be established by testimony of worker alone); Butler v. Federated Mut. Ins. Co., 871 S.W.2d 950, 953 (Tex.App.-Fort Worth 1994, writ denied) (if person does not believe his injury is severe or is mistaken as to its cause, good cause can be established for a failure to timely file claim); Cigna Ins. Co. v. Evans, 847 S.W.2d 417, 420 (Tex.App.-Texarkana 1993, no pet.) (same). We overrule Dallas County's second issue. Having done so, we need not address Dallas County's first issue. See Shell Oil Prod. Co. v. Main Street Ventures, L.L.C., 90 S.W.3d 375, 387 (Tex.App.-Dallas 2002, pet. filed) (JNOV reviewed under legal sufficiency standard); Reese v. Duncan, 80 S.W.3d 650, 665 (Tex.App.-Dallas 2002, pet. denied) (after case is tried on merits, denial of summary judgment is not reviewable on appeal and complaint about denying motion for directed verdict is in essence challenge to legal sufficiency).
In its third issue, Dallas County contends the trial court made "erroneous rulings" in its final judgment, resulting in harm to Dallas County. Specifically, Dallas County complains the trial court erred by: (1) awarding benefits for 401 weeks from June 23, 1988, the date of injury, rather than for 300 weeks from the date of injury; (2) awarding lifetime medical benefits; and (3) awarding benefits because Pavlu was not incapacitated for longer than one week. Dallas County also maintains that because the amount awarded to Pavlu is incorrect, the attorneys' fees award must be recalculated.
An argument in a brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Tex.R.App.P. 38.1(h); see Thedford v. Union Oil Co., 3 S.W.3d 609, 615 (Tex.App.-Dallas 1999, pet. denied). The briefing on Dallas County's complaints about these four issues consists of seven paragraphs of Dallas County's brief. The briefing does not contain any meaningful analysis of the issues. Nor does Dallas County provide the Court with any case law in support of its arguments. Thus, we conclude these issues are inadequately briefed and present nothing for our review. However, because Dallas County's briefing about the length of time covered by compensation is arguable adequate, we will address that complaint.
Contrary to Dallas County's argument, a workers' disability need not always commence on the date of injury. Maryland Cas. Co. v. Duke, 825 S.W.2d 232, 235 (Tex.App.-Texarkana 1992, writ denied). When, as here, the incapacity arises after injury, benefits are measured from the date the incapacity commences and extend a maximum of 401 weeks from the date of injury. Id. Thus, we conclude Dallas County's argument lacks merit. We overrule its third issue.
In a single cross-point, Pavlu contends the trial court incorrectly calculated Pavlu's benefits at 49 weeks. According to Pavlu, this Court should reform the judgment to provide him recovery for 300 weeks of incapacity beginning on February 22, 1995, the date of incapacity, and ending 300 weeks later. The Texas Rules of Appellate Procedure provide that any party "who seeks to alter the trial court's judgment or other appealable order" must file a notice of appeal. Tex.R.App.P. 25.1(c). Rule 25.1(c) further states that when a party fails to file a notice of appeal, a showing of "just cause" is required before an appellate court may award more favorable relief than did the trial court. Here, Pavlu requests more favorable relief from this Court and failed to file a notice of appeal. Further, Pavlu failed to show "just cause" for his failure to file a notice of appeal. Thus, we lack jurisdiction to consider Pavlu's cross-point.
Accordingly, we affirm the trial court's judgment.