                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH


                               NO. 2-08-165-CV


TEXAS MUTUAL INSURANCE                                              APPELLANT
COMPANY

                                        V.

LAHONDA BAKER                                                           APPELLEE

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         FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                                   OPINION

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                                I. INTRODUCTION

      This case arises from a workers’ compensation award of supplemental

income benefits (SIBs) and attorneys’ fees to appellee Lahonda Baker. In ten

issues, appellant Texas Mutual Insurance Company challenges a jury’s

determination that Baker is entitled to SIBs and the trial court’s order granting

attorneys’ fees to Baker. We will affirm in part and reverse in part.
                               II. B ACKGROUND

      Baker was injured on February 13, 2001, while employed and working for

a packaging company.       Texas Mutual provided workers’ compensation

insurance coverage for the packaging company. Both parties agree that Baker

sustained a compensable injury in the course and scope of her employment that

resulted in a 17% impairment rating. Baker sought SIBs for eight consecutive

quarters from Texas Mutual. These quarters ranged from June 15, 2003, to

June 11, 2005.1 Following a benefit review conference and contested case

hearing, the Texas Workers’ Compensation Commission’s 2 (Commission)

hearing officer concluded that Baker was not entitled to SIBs for any of the

relevant quarters because Baker did not make a good faith effort to find

employment and because there existed credible records that demonstrated




      1
       … SIBs are calculated quarterly, and an injured worker’s eligibility for
SIBs for a quarter is determined by events during the preceding thirteen-week
qualifying period. Tex. Lab. Code Ann. § 408.144 (Vernon 2005); 28 Tex.
Admin. Code § 130.102 (last amended 1999) (Tex. Dep’t of Ins., Eligibility for
Supplemental Income Benefits; Amount); 28 Tex. Admin. Code § 130.103 (last
amended 1999) (Tex. Dep’t of Ins., Determination of Entitlement or Non-
entitlement for the First Quarter); 28 Tex. Admin. Code § 130.104 (adopted to
be effective 1999) (Tex. Dep’t of Ins., Determination of Entitlement or Non-
entitlement for Subsequent Quarters).
      2
     … Effective September 1, 2005, the Texas Workers’ Compensation
Commission is now the Texas Department of Insurance, Division of Workers’
Compensation. See Tex. Lab. Code Ann. § 402.001 (Vernon 2006).

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Baker had “some ability to work.” A Commission appeals panel affirmed the

decision.

      Baker then sought judicial review of the Commission’s determination.

The case was tried to a jury, which awarded SIBs to Baker for the Fourth, Fifth,

Sixth, Seventh, and Eighth Quarters. The jury determined that Baker possessed

no ability to work during the Fourth, Fifth, and Sixth Quarters and that Baker

had made a good faith effort to find employment during the Seventh and Eighth

Quarters. Baker then filed a motion with the trial court seeking attorneys’ fees.

The trial court granted the motion and ordered Texas Mutual to pay

$26,848.90 in attorneys’ fees to Baker. This appeal followed.

                                III. D ISCUSSION

      A.    Attorneys’ Fees

      In its first issue, Texas Mutual argues that the trial court erred by

awarding attorneys’ fees and expenses to Baker under section 408.147(c) of

the labor code. Tex. Lab. Code Ann. § 408.147(c) (Vernon 2006). We agree.

      It is a longstanding principle in Texas that attorney’s fees may not be

recovered from an opposing party unless such recovery is provided for by

statute or by contract between the parties. Travelers Indem. Co. of Conn. v.

Mayfield, 923 S.W.2d 590, 593 (Tex. 1996); New Amsterdam Cas. Co. v.

Texas Indus., Inc., 414 S.W.2d 914, 915 (Tex. 1967). The authorization of


                                       3
attorney’s fees in civil cases may not be inferred; rather, it “must be provided

for by the express terms of the statute in question.” Mayfield, 923 S.W.2d at

593 (quoting First City Bank-Farmers Branch v. Guex, 677 S.W.2d 25, 30 (Tex.

1984)).

      Generally, attorney’s fees in a workers’ compensation case are payable

out of the claimant’s recovery. Mayfield, 923 S.W.2d at 593. But the court

in Mayfield recognized that section 408.147(c) provides for an exception to the

general rule if “an insurance carrier unsuccessfully challenges a Commission

order awarding supplemental income benefits.” Id. The question this court is

presented with is whether the section 408.147(c) exception applies in cases in

which the employee, rather than the insurance carrier, disputes the

Commission’s finding that the employee is not eligible for SIBs.

      Section 408.147 of the Workers’ Compensation Act provides the

following:

      § 408.147.         Contest of Supplemental Income Benefits by
                         Insurance Carrier; Attorney’s Fees

            (a) An insurance carrier may request a benefit review
      conference to contest an employee’s entitlement to supplemental
      income benefits or the amount of supplemental income benefits.

             (b) If an insurance carrier fails to make a request for a benefit
      review conference within 10 days after the date of the expiration
      of the impairment income benefit period or within 10 days after
      receipt of the employee’s statement, the insurance carrier waives
      the right to contest entitlement to supplemental income benefits

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     and the amount of supplemental income benefits for that period of
     supplemental income benefits.

            (c) If an insurance carrier disputes the commissioner’s
     determination that an employee is entitled to supplemental income
     benefits or the amount of supplemental income benefits due and
     the employee prevails on any disputed issue, the insurance carrier
     is liable for reasonable and necessary attorney’s fees incurred by
     the employee as a result of the insurance carrier’s dispute and for
     supplemental income benefits accrued but not paid and interest on
     that amount, according to Section 408.064 [Interest on Accrued
     Benefits]. Attorney’s fees awarded under this subsection are not
     subject to Sections 408.221(b), (f), and (i) [which place limitations
     on the award of attorney’s fees].


Tex. Lab. Code Ann. § 408.147.

     Because statutory construction is a question of law, we review the trial

court’s action de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656

(Tex. 1989); State Farm Lloyds v. Kessler, 932 S.W.2d 732, 735 (Tex.

App.—Fort Worth 1996, writ denied). To be sure, we should liberally construe

the Workers’ Compensation Act in favor of the injured worker, but a strained

or narrow construction of section 408.147(c) would be improper. See Kroger

Co. v Keng, 23 S.W.3d 347, 349 (Tex. 2000) (holding that strained or narrow

construction of section 406.033 of Workers’ Compensation Act would be

improper); Tex. Employers Ins. Ass’n v. Duree, 798 S.W.2d 406, 409 (Tex.

App.—Fort Worth 1990, writ denied) (en banc op. on reh’g) (acknowledging

that Workers’ Compensation Act should be liberally construed in favor of


                                      5
claimant). The primary rule of statutory construction is to ascertain and give

effect to the legislature’s intent. Tex. Gov’t Code Ann. § 312.005 (Vernon

2005); Kroger, 23 S.W.3d at 349. And we ascertain the legislature’s intent by

the plain and common meaning of the words used. Tex. Gov’t Code Ann.

§ 311.011 (Vernon 2005); Kroger, 23 S.W.3d at 349.

      This court has addressed section 408.147(c) before. See Liberty Mut.

Ins. Co. v. Montana, 49 S.W.3d 599, 601 (Tex. App.—Fort W orth 2001, no

pet.). In Montana, an employee sought judicial review of the Commission’s

determination that the employee was not entitled to SIBs for the Sixth and

Seventh Quarters after the Commission initially determined the employee was

eligible for SIBs. Id. at 600–01. A jury found that the employee was unable

to work during the requisite qualifying periods, and the trial court, accordingly,

entered a judgment awarding the employee SIBs for those quarters. Id. The

trial court also awarded attorney’s fees and expenses to the employee under

section 408.147(c).    Id.   The insurance carrier appealed, claiming that the

statute did not allow attorney’s fees for an employee any time an employee

challenged   the   Commission’s    determination    concerning   the   claimant’s

entitlement to SIBs. Id. at 602. This court held that “the plain language of the

statute authorizes an award of attorney’s fees in any case where the

Commission initially awards SIBs and the carrier later disputes that award as


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long as the employee eventually prevails on ‘any disputed issue.’” Id. at 604.

But this court’s holding in Montana was predicated on the Commission’s having

initially determined that the employee was eligible for SIBs and the insurance

carrier’s having later disputed the employee’s entitlement to SIBs for

subsequent compensable quarters. Id. This present case is distinguishable.

      In this case, it is the employee, Baker, who has contested the

Commission’s initial and continued determination that she was not entitled to

SIBs. In cases like this one, we agree with our sister court in El Paso that when

an employee disputes the Commission’s finding and there has never been an

initial determination by the Commission that the employee is entitled to SIBs,

there exists “no provision for the recovery of attorney’s fees [under

408.147(c)].” Home Ins. Co. v. Garcia, 74 S.W.3d 52, 60 (Tex. App.—El Paso

2002, no pet.). Just as the plain language of the statute authorizes an award

of attorney’s fees to an employee who prevails on any disputed issue in cases

in which the Commission initially awards SIBs and the insurance carrier later

disputes that award, the statute is equally clear and unambiguous that

attorney’s fees are not recoverable when the employee disputes an initial

Commission finding that the employee is not entitled to SIBs.          Compare

Montana, 49 S.W.3d at 604 (holding that section 408.137(c) permits the

recovery of attorney’s fees when the Commission makes an initial determination


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that the employee is entitled to SIBs and the insurance carrier later disputes the

employee’s entitlement for subsequent quarters), with Garcia, 74 S.W.3d at 60

(holding that section 408.137(c) does not permit the recovery of attorney’s

fees when the employee disputes a Commission finding). Thus, we hold that

the trial court erred by awarding attorney’s fees to Baker and sustain Texas

Mutual’s first issue.

        B.    Baker’s Entitlement to Supplemental Income Benefits

        In its remaining nine issues, Texas Mutual argues that the trial court erred

by entering judgment, based on the jury’s verdict, that Baker was entitled to

SIBs.

              1.    Fourth Quarter SIBs

        In its second issue, and in parts of its seventh, eighth, ninth, and tenth

issues, Texas Mutual contends that Baker was not entitled to SIBs for the

Fourth Quarter. In these issues, Texas Mutual asserts three basic arguments.

First, Texas Mutual argues that Baker failed to establish a statutory prerequisite

to the jury’s finding that Baker had no ability to return to work. Second, Texas

Mutual argues that Baker failed to “provide a ‘narrative report’ showing her

inability to work during the Fourth Quarter.” Third, Texas Mutual argues that

the evidence is legally and factually insufficient to support the jury’s finding that




                                          8
Baker had no ability to work during the Fourth Quarter’s qualifying period. We

disagree.

                  a.      Records indicating Baker could work during the Fourth
                          Quarter

      Texas Mutual contends that Baker cannot recover SIBs for the Fourth

Quarter because “eight other records showing” that Baker had an ability to

work during the quarter were presented to the jury. Texas Mutual’s argument

is that chapter 28, section 130.102(d)(4) of the Texas Administrative Code

clearly dictates that an injured employee cannot receive SIBs if other records

show that the injured employee is able to return to work. See 28 Tex. Admin.

Code § 130.102(d)(4); see also Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d

248, 254 (Tex. 1999) (reasoning that when administrative rules, which have

the same force as statutes, are clear and unambiguous, a court will follow the

rules’ clear language).    Texas Mutual further contends that eight different

medical records indicating that Baker had an ability to work during the Fourth

Quarter were introduced and presented to the jury. Therefore, Texas Mutual

argues, Baker cannot satisfy her burden that “no other records” demonstrate

she had an ability to work during the qualifying period for the Fourth Quarter.

      Baker counters, among other retorts, that none of the records Texas

Mutual relies on for their argument is dated within the relevant qualifying period

for determining whether Baker was entitled to SIBs for the Fourth Quarter.

                                        9
Thus, Baker argues, the jury “could reasonably and properly have disregarded

these reports.” We agree with Baker.

      The qualifying period for the Fourth Quarter SIBs was March 14, 2004,

through June 12, 2004. None of the records on which Texas Mutual relies for

its argument is from that qualifying time period. We overrule this portion of

Texas Mutual’s second, seventh, eighth, ninth, and tenth issues.

                         b.    Narrative report concerning Baker’s injuries

      Tex0as Mutual also contends that Baker failed to provide a narrative

report showing her inability to work during the Fourth Quarter.          For this

argument, Texas Mutual cites the Texas Administrative Code and multiple

Commission Appeals Panel decisions for the proposition that generalized

treatment notes are insufficient to meet the prerequisite of a narrative report to

be entitled to SIBs. See 28 Tex. Admin. Code § 130.102(d)(4); see also Tex.

Workers’ Comp. Comm’n, Appeal No. 010897, 2001 WL 1461580, at *2

(2001); Tex. Workers’ Comp. Comm’n, Appeal No. 080850, 2008 WL

4176920 at *2 (Aug. 5, 2008). The gist of Texas Mutual’s argument is that

Baker offered only general “treatment notes” that did not sufficiently explain

the causation between Baker’s injuries and her alleged inability to work during

the Fourth Quarter.




                                       10
      Baker responds that she satisfied the “narrative report” requirement by

admitting into evidence her treating doctor’s letters and treatment notes. To

buttress her position, Baker also admitted into evidence the contested case

hearing officer’s decision which specifically stated that Baker’s treating doctor’s

“letters and medical notes [qualified] as ‘a narrative report from a doctor which

specifically explains how the injury causes a total inability to work.’” Baker

contends that the hearing officer’s decision is consistent with other Appeals

Panel decisions in which a doctor’s progress notes and testimony were

considered sufficient to meet the narrative report requirement.          See Tex.

Workers’ Comp. Comm’n, Appeal No. 012527, 2001 WL 36099628, at *2

(Dec. 11, 2001). We agree with Baker.

      The fact that the hearing officer made this specific finding in his decision

and that the decision was admitted into evidence at trial is evidence sufficient

to support the jury’s determination that Baker had satisfied the narrative report

requirement.   We overrule this portion of Texas Mutual’s second, seventh,

eighth, ninth, and tenth issues.

                         c.    Sufficiency of the Evidence

      Texas Mutual ultimately asserts that the evidence is legally and factually

insufficient to support the jury’s determination that Baker had “no ability” to

work during the Fourth Quarter qualifying period. This argument, however, is


                                        11
predicated on Texas Mutual’s argument that Baker had failed to meet the “no

other records” requirement.     Having disposed of that issue against Texas

Mutual, we overrule the remaining portion of its second, seventh, eighth, ninth,

and tenth issues.

             2.     Four Consecutive Quarter Rule

      In its third issue, Texas Mutual argues that Baker is not entitled to SIBs

at all. Texas Mutual’s argument is that under section 130.106 of the Texas

Administrative Code, a workers’ compensation claimant who is not entitled to

SIBs for a period of four consecutive quarters permanently loses any entitlement

to SIBs. See 28 Tex. Admin. Code § 130.106 (adopted to be effective 1999)

(Tex. Dep’t of Ins., Permanent Loss of Entitlement to Supplemental Income

Benefits).   Texas Mutual’s third issue is predicated on this court’s having

sustained its second issue. Because we overruled Texas Mutual’s second issue,

we also overrule its third issue.

             3.     Baker’s entitlement to SIBs for the Seventh and Eighth
                    Quarters

      In its sixth issue, Texas Mutual argues that the evidence is legally and

factually insufficient to support the jury’s determination that Baker is entitled

to SIBs for the Seventh and Eighth Quarters because Baker failed to search for

employment every week during the qualifying periods. Baker counters that she

was not required to search for employment every week during the qualifying

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periods for the Seventh and Eighth Quarters; rather, Baker argues that the

evidence is legally and factually sufficient to demonstrate that she satisfied the

good faith effort requirement to obtain employment during the qualifying

periods. We agree with Baker.

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact; (3) the evidence offered to prove a vital fact is no more

than a mere scintilla; or (4) the evidence establishes conclusively the opposite

of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334

(Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No

Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361,

362–63 (1960). In determining whether there is legally sufficient evidence to

support the finding under review, we must consider evidence favorable to the

finding if a reasonable factfinder could and disregard evidence contrary to the

finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co.

v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168

S.W.3d 802, 807, 827 (Tex. 2005).

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and


                                       13
weighing all of the evidence in the record pertinent to that finding, we

determine that the evidence supporting the finding is so weak, or so contrary

to the overwhelming weight of all the evidence, that the answer should be set

aside and a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635

(Tex. 1986) (op. on reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965);

In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

      In order to be entitled to SIBs, an “injured employee who has not returned

to work and is able to return to work in any capacity shall look for employment

commensurate with his or her ability to work every week of the qualifying

period and document his or her job search efforts.” 28 Tex. Admin. Code

§ 130.102(e); Teague v. Ins. Co. of State of Pa., 144 S.W.3d 607, 611 (Tex.

App.—Amarillo 2004, no pet.) (holding that in order to satisfy the good faith

effort criterion necessary to maintain qualification for SIBs, a claimant is

obligated to search every week for work commensurate with claimant’s ability

to work). The Commission Appeals Panel has noted that a claimant can satisfy

this requirement by demonstrating that the claimant had no ability to work for

part of the qualifying period and by conducting a good faith job search in the

other part of the qualifying period. See Tex. Workers’ Comp. Comm’n, Appeal

No. 001777, 2000 WL 1573129, at *2 (Sept. 18, 2000). In order to prevail

under this theory, the claimant must produce evidence that establishes the


                                      14
requirements of section 130.102(d)(4) specific to the portion of the qualifying

period in which no ability to work is claimed.          28 Tex. Admin. Code

§ 130.102(d).    That is, the claimant must produce a narrative report that

explains how the injury causes a total inability to work, and no other record can

show that the claimant had some ability to work in the part of the qualifying

period during which the claimant asserts she had no ability to work.        Tex.

Workers’ Comp. Comm’n, Appeal No. 001777, 2000 WL 1573129, at *2

(Sept. 18, 2000).

      In this case, Baker offered evidence consisting of her medical records, and

letters and medical notes from her treating physician, indicating that she was

unable to work in any capacity during the qualifying periods pertaining to the

Seventh and Eighth Quarters. Moreover, there was evidence presented at trial

that Baker did look for employment for all but the initial weeks of the Seventh

Quarter qualifying period and an eight-day stretch during the Eighth Quarter

qualifying period.

      The jury could have reasonably found that Baker either was not able to

work in any capacity for the entire qualifying periods or reasonably determined

that Baker’s medical records and her search for employment showed that Baker

had no ability to work for part of the qualifying periods and conducted a good

faith job search in the other part of the qualifying periods “commensurate with


                                       15
. . . her ability to work.” See 28 Tex. Admin. Code § 130.102(e); see also Tex.

Workers’ Comp. Comm’n, Appeal No. 022558, 2002 WL 31856238, at *1

(Nov. 25, 2002) (recognizing that a claimant may satisfy the good faith

requirement under a “hybrid theory” whereby the claimant demonstrates no

ability to work for part of the qualifying period and by conducting a good faith

job search in the other part of the qualifying period).    Furthermore, Texas

Mutual has not pointed to any evidence in the record to show that the jury’s

determination is so contrary to the overwhelming weight of all the evidence that

it should be set aside and a new trial ordered. We overrule Texas Mutual’s

sixth issue.

                               IV. C ONCLUSION

      Having sustained Texas Mutual’s first issue, we reverse the trial court’s

judgment awarding attorneys’ fees to Baker and render judgment that Texas

Mutual not pay Baker’s attorneys’ fees.      Having overruled Texas Mutual’s

issues two through nine, we affirm the remainder of the trial court’s judgment.




                                           BILL MEIER
                                           JUSTICE

PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.

         MCCOY, J. concurs without opinion.

DELIVERED: July 23, 2009

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