ATTORNEY FEES–TEXAS WORKERS’ COMPENSATION LAWYERS
Lump Sum Permitted In Death Case Should Be Based On Present Value Of Future Benefits
Texas Workers’ Compensation Insurance Fund v. Simon 1998 WL 538231 (Tex. App – San Antonio) August 26, 1998
The San Antonio Court of Appeals withdrew its opinion of June 3, 1998, and substituted this opinion to clarify that summary judgment motions were denied and that if Mrs. Simon is successful at trial, any damages award will be under the 1989 Act.
The Court stated again that the issue of whether the TWCIF waived its right to raise a causation issue had not been raised at the BRC or CCH and, therefore, could not be raised on appeal to civil court.
The issue in the case was whether Mr. Simon’s bee sting at the Damco Repair Shop that resulted in his death arose out of his employment. TWCIF introduced affidavits concerning the current conditions in the shop and Simon’s predisposition to react to bee stings. The Court stated that an affidavit of current conditions was not sufficient summary judgment evidence because it did not speak to the conditions in the Damco Repair Shop at the time of the incident. The Court also stated that a pre-existing condition such as a predisposition to a severe allergic reaction to a bee sting will not preclude compensation.
The Court distinguished this case from the Bratcher case at 823 S.W. 2d 720. Bratcher died of an aneurysm while straining to have a bowel movement. The Court in Bratcher denied recovery because the strain could have occurred at any time and there was no causal connection between the injury and the employment. In this case, however, there was evidence of an injury incident to employment.
With respect to attorney fees, the court stated that any lump sum attorney fees in the event Mrs. Simon prevails at trial, would be based on 25% of the present value of future benefits.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation defense lawyers in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.