Texas Workers' Compensation Insurance v. Ashy

972 S.W.2d 208, 1998 Tex. App. LEXIS 5057, 1998 WL 473239

• Court: Court of Appeals of Texas
• Decided: August 13, 1998
• Docket: 09-97-060 CV
• Status: Published

Opinions

OPINION

WALKER, Chief Justice.

This is an appeal from a judgment rendered in a suit for judicial review of a decision of the Texas Workers’ Compensation Commission’s Appeals Panel pursuant to the Texas Workers’ Compensation Act. See generally Tex. Lab.Code Ann. §§ 401.001-506.001 (Vernon 1996).

Since the enactment of the present Workers’ Compensation Act, effective April 1, 1990, appeals are on the increase regarding the jurisdictional effect of Tex. Lab.Code Ann. §§ 410.252 and 410.253, following the exhausting of administrative remedies. Section 410.252 provides in relevant part that a party may seek judicial review by filing suit not later than the 40th day after the date on which the decision of the appeals’ panel was filed. From a judicial review perspective, compliance with § 410.252 has been virtually non-problematic whereas interpretive understanding of § 410.258 has generated increased judicial attention. . Section 410.253 provides:

A copy of the petition shall be simultaneously filed with the court and the commission and served on any opposing party.

Tex. Lab.Code Ann. § 410.253

There being no common law right to judicial review of an administrative decision, one’s appellate remedy is strictly statutory. See Benavidez v. Travelers Indent. Co., 960 S.W.2d 422, 423 (Tex.App.—Austin 1998, writ filed), citing Southwest Airlines Co. v. Texas High-Speed Rail Authority, 867 S.W.2d 154,157 (Tex.App.—Austin 1993, writ denied). Realizing that a literal interpretation and application of the word “simultaneously” would be unduly restrictive of one’s appellate remedy, “simultaneously” has come to mean that an applicant must file its petition with the Texas Workers’ Compensation Commission “within” the 40-day time period provided in § 410.252. Such requirement is both mandatory and jurisdictional. Benavidez, 960 S.W.2d at 424. See Planet Ins. Co. v. Serrano, 936 S.W.2d 35, 37 (Tex.App.—San Antonio 1996, no writ). Thus, the word “simultaneous” does not mean “at the same time” suit is filed, but within the 40-day time period. Id. Further, the rigidity of the “40-day” rule expands somewhat through application of the “mailbox rule.” See Adkins v. Ector County Ind. School Dist., 969 S.W.2d 142 (Tex.App—El Paso, n.w.h.).

Our present case is unique in that Mr. Ashy, in seeking his appeal from the Texas Workers’ Compensation Commission decision, did not specifically plead compliance with § 410.253 and nothing in the record serves as evidence of non-compliance. Appellant Fund has not affirmatively shown from the record, nor does the record establish, that the trial court was without statutory jurisdiction to proceed. A review of the record clearly shows that appellee pled jurisdictional requirements, albeit appellee did not specifically plead § 410.253 compliance. From the face of the record nothing would indicate a lack of trial court jurisdiction. Since appellant Fund has failed to affirmatively show the lack of jurisdiction, we find no error and overrule appellant’s point of error one.¹

Appellant’s point of error two contends that the trial court erred in failing to render findings of fact and conclusions of law. It is uncontested that appellant timely requested that the trial court prepare such findings and conclusions. It is also uncontested that the trial court did not respond to appellant’s request.

Upon proper request, the trial court has a duty to file findings of fact and conclusions of law. See Cherne Industries, Inc. v. Magallanes, 763 S.W.2d 768, 772 (Tex.1989) (quoting Wagner v. Riske, 142 Tex. 337, 343, 178 S.W.2d 117, 120 (1944)). The failure to file findings of fact and conclusions of law upon proper requests is presumed harmful, unless “the record before the appellate court affirmatively shows that the complaining party has suffered no injury.” Cherne Industries, 763 S.W.2d at 772; City of Los Fresnos v. Gonzalez, 830 S.W.2d 627, 629 (Tex.App.—Corpus Christi 1992, no writ); Anzaldua v. Anzaldua, 742 S.W.2d 782, 784 (Tex.App.—Corpus Christi 1987, writ denied). See also Goggins v. Leo, 849 S.W.2d 373, 379 (Tex.App.—Houston [14th Dist.] 1993, no writ). The test for harm is whether the circumstances of the particular case would require an appellant to guess at the reason for the trial court’s decision. Sheldon Pollack Corp. v. Pioneer Concrete of Texas, Inc., 765 S.W.2d 843, 845 (Tex.App.—Dallas 1989, writ denied). The harm caused by the trial court’s failure to file findings of fact and conclusions of law boils down to whether such failure denies or prevents appellant from making a proper presentation of his case on appeal. See Eye Site, Inc. v. Blackburn, 750 S.W.2d 274, 277 (Tex.App.—Houston [14th Dist.] 1988), rev’d on other grounds, 796 S.W.2d 160 (Tex.1990).

The Decision and Order entered by the TWCC proclaimed that Mr. Ashy’s average weekly wage was to be $463.92. At trial, Ashy contended that such decision was not just, fair, and right, contending that Ashy’s average weekly wage should have been $655.26. Appellant Fund contends that the trial court’s failure to file findings of fact and conclusions of law forces Fund to guess the reason or reasons that the trial court ruled that Ashy’s average weekly wage was $565.

Section 408.041 provides alternative theories for determining average weekly wage:

(a) Except as otherwise provided by this subtitle, the average weekly wage of an employee who has worked for the employer for at least the 13 consecutive weeks immediately preceding an injury is computed by dividing the sum of the wages paid in the 13 consecutive weeks immediately preceding the date of the injury by 13.

(b) The average weekly wage of an employee whose wage at the time of injury has not been fixed or cannot be determined or who has worked for the employer for less than the 13 weeks immediately preceding the injury equals:

(1) the usual wage that the employer pays a similar employee for similar services; or

(2) if a similar employee does not exist, the usual wage paid in that vicinity for the same or similar services provided for remuneration.

(c) If Subsection (a) or (b) cannot reasonably be applied because the employee’s employment has been irregular or because the employee has lost time from work during the 13-week period immediately preceding the injury because of illness, weather, or another cause beyond the control of the employee, the commission may determine the employee’s average weekly wage by any method that the commission considers fair, just, and reasonable to all parties and consistent with the methods established under this section.

Ashy, at trial, set forth his theory of the case which contended that Subsection C of § 408.041 should represent the law of the case. Appellee testified at trial that for the 11 or 12 weeks prior to the accident made the basis of the lawsuit, appellee had been unable to work “unfettered” due to interference with work due to therapy for a prior on the job injury. Ashy testified that the only accurate basis for evaluating his earning capacity was to employ the first two weeks of his employment. It was at the end of the first two weeks of employment that appellee suffered his first of two on the job injuries. Appellant vigorously contends that the trial court should have applied the “13-week period immediately preceding the injury ...” and that Ashy failed to show that his lost time for work during this 13-week period was due to illness, weather, or other causes beyond the control of the employee. Ashy testified that during this 13-week period he lost time due to causes beyond his control in that he was receiving treatment for physical therapy for a previous on the job injury. At the conclusion of all the evidence, the trial court made the following determination:

THE COURT: Here is the finding of the Court. Based upon everyone’s figures, here is what I’ve come up with for an average weekly wage; $565 per week. That would be the ruling of the Court.

MS. BASINGER: Do we have any finding as to how the Court arrived at that?

THE COURT: Just and right.

MS. BASINGER: No other ruling on that, Your Honor?

THE COURT: Huh-uh. Based upon the evidence before me, all the numbers that both of you put up there.

MS. BASINGER: Based upon the evidence and the numbers.

THE COURT: Yes.

The record in this cause speaks as to how the trial court reached its ultimate ruling. The trial court emphatically stated that its ruling was based upon the evidence submitted to which appellant made no further inquiry. The record before us affirmatively shows how the trial court reached its ruling. Consequently, we find no harm suffered by appellant resulting from the trial court’s failure to file findings of fact and conclusions of law. We overrule appellant’s point of error two.

Point of error three, as a shade of point of error two, addresses legal and factual sufficiency of the evidence to support the trial court’s determination of average weekly wage.

Regarding appellant’s legal sufficiency challenge, appellant must demonstrate that there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In reviewing no evidence points we consider only the evidence and inferences that tend to support the findings and disregard all evidence and inferences to the contrary. State Farm Fire & Cas. Co. v. Simmons, 963 S.W.2d 42, 44 (Tex.1998); Minnesota Mining & Mfg. Co. v. NishikaLtd., 953 S.W.2d 733, 738 (Tex.1997). Recently, our Texas Supreme Court has determined that in reviewing no evidence points of error, the reviewing court must consider all of the record evidence in a light most favorable to the party in whose favor the verdict has been rendered, and every reasonable inference deducible from the evidence is to be indulged in that party’s favor. Associated Indem. Corp. v. Cat Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998).

In reviewing appellant’s factual sufficiency of the evidence challenge, we also consider all the evidence. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). In reviewing factual sufficiency challenges, we must first consider, weigh, and examine all the evidence which supports and which is contrary to the trial court’s determination. Plas-Tex, Inc., 772 S.W.2d at 445; Sosa v. City of Balch Springs, 772 S.W.2d 71, 72 (Tex.1989). After properly considering the record, we should set aside the trial court’s finding only if the evidence which supports the finding is so weak as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

The evidence shows that Ashy missed work during the 11 or 12 week period prior to his accident because he was in therapy. As previously stated, appellant contends that Ashy offered no proof to show that his missing time from work was due to “illness” or “weather” in compliance with Tex. Lab.Code § 408.041(e). The evidence before the trial court adequately supports the fact that Ashy missed work for “another cause beyond the control of the employee....” The evidence offered by Ashy showed that Ashy had been unable to work a full schedule due to physical therapy appointments. Appellee further offered evidence that the physical therapy appointments caused him to lose the opportunity to earn wages at his job. We conclude that the evidence is legally and factually sufficient to support the trial court’s judgment. Point of error three is overruled. The judgment of the trial court is affirmed.

AFFIRMED.

1 . During oral argument appellee, without supporting brief, proffered the applicability of Rule 93(13) Texas Rules of Civil Procedure for the proposition that appellant’s failure to raise the jurisdictional issue at trial results in prohibition of raising same for the first time on appeal. We allowed the parties opportunity to file supplemental briefs regarding Rule 93(13) applicability. Interesting though the question be, we choose not to address same at the present time.