Rodriguez v. Old Republic Ins.

Full title: INEZ RODRIGUEZ, Appellant, v. OLD REPUBLIC INSURANCE COMPANY, Appellee

Court: Court of Appeals of Texas, Eighth District, El Paso

Date published: Aug 6, 2004

No. 08-02-00522-CV (Tex. App. Aug. 6, 2004)

Opinion

No. 08-02-00522-CV

August 6, 2004.

Appeal from the County Court at Law Number Five of El Paso County, Texas, (Tc# 2000-068).

Monty B. Roberson, Attorney at Law, El Paso, TX, for appellant.

Robert E. Riojas, El Paso, TX, for appellee.

Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.

MEMORANDUM OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a workers' compensation case. For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

In August 1991, Appellant, Inez Rodriguez, was injured while at his job at Asarco, Inc. As a result of that injury, Appellant applied for Supplemental Income Benefits. He had a contested hearing before the Texas Workers' Compensation Commission ("TWCC") on September 28, 1999. The hearing officer determined that Appellant was not entitled to Supplemental Income Benefits and the TWCC Appeals Panel affirmed. In January 2000, Appellant filed suit seeking judicial review of the Appeals Panel's decision. After a jury found that Appellant had made a good faith effort to obtain employment commensurate with his ability to work during the filing period for the first through the twentieth quarters, the court entered judgment in Appellant's favor. Appellant filed his notice of appeal solely on the issue of attorney's fees.

II. DISCUSSION

In four issues, Appellant argues that the trial court erred in refusing to award attorney's fees in his Supplemental Income Benefits case.¹ This Court recently addressed a similar issue in Home Ins. Co. v. Garcia, 74 S.W.3d 52 (Tex. App.-El Paso 2002, no pet.). We noted that Section 408.147(c) of the Texas Labor Code does provide that attorney's fees are recoverable when an insurance carrier disputes a commission determination that an employee is entitled to Supplemental Income Benefits and the employee prevails on any disputed issue. Tex. Lab. Code Ann. § 408.147(c) (Vernon Supp. 2004); Home Ins. Co. v. Garcia, 74 S.W.3d at 60. However, we found there is no provision for the recovery of attorney's fees when the employee disputes a commission finding, as is the issue in the present case. Id. at 60. Accordingly, we overrule Appellant's issues on review and affirm the judgment of the trial court.

1 Appellee maintains this issue was waived because Appellant did not request a jury question on the issue of attorney's fees.