TEXAS ATTORNEY FEES –WORKERS COMPENSATION LAW
Prevailing Party Is One Who Is Vindicated By The Trial Court’s Judgment
Insurance Company of the State of Pennsylvania v. Orosco, 2005 Tex.App.Lexis 3958 (Tex.App.-San Antonio 2005)
At issue in this case was whether the claimant sustained an injury in the course and scope of employment and whether the claimant timely reported his injury to his employer. The claimant alleged a repetitive trauma injury to his left hand due to typing. The TWCC HO and Appeals Panel determined that the claimant was injured in the course and scope of employment, but that he failed to timely report his injury to his employer. Therefore, he would not recover work comp benefits.
Following this decision, the claimant filed a new claim alleging repetitive trauma injury to the right hand. ICSP therefore filed suit in the original claim seeking a determination that the left hand injury was not work-related. This was done in part to protect itself against the new claim alleging a new injury out of the same cause as the underlying action. Presumably, a favorable finding in the trial court would preclude the new claim. ICSP was also concerned that failing to file suit would result in preclusion of its defenses to the new claim.
The appellate court determined that ICSP was not aggrieved by the decision of the Appeals Panel. ICSP had been relieved of liability by the Appeals Panel. Because it is not aggrieved, it has no standing to appeal the determination that the injury was sustained in the course and scope of employment.
Orosco was awarded attorney fees for prevailing in this action under Texas Labor Code §408.221. ICSP argued that Orosco did not “prevail.” The court noted that the Texas Labor Code does not define a “prevailing” party. However, case law indicates a prevailing party is one who is vindicated by the trial court’s judgment. Here, Claimant sought and obtained dismissal of the Insurance Carrier’s claim against him. Therefore, Claimant prevailed.
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