author: SUE WALKER, Justice.

text:
    In the Interest of K.M.Z., N.D.Z., and D.J.J., Children.
    No. 2-04-374-CV.
    Court of Appeals of Texas, Fort Worth.
    Jan. 27, 2005.

      Ed Winfrey, Decatur, for appellant (mother).
    Barbara L. Moore, Arlington, Duke Hooten, Appellate Atty., Special Litigation Unit, Austin, for appellee.
    PANEL D: WALKER, J.; CAYCE, C.J.; and McCOY, J.
   OPINION

SUE WALKER, Justice.

This is an appeal from the trial court’s judgment terminating mother and father’s parental rights to their three children. We dismiss the appeal of mother, Appellant Misty Z. (hereinafter “Mother”), for want of jurisdiction because she failed to articulate good cause for an extension of time to file her notice of appeal. The appeal of father, Kevin Jones, remains pending before this court.

The trial court rendered an October 21, 2004 “Order of Termination.” On November 19, 2004, Mother filed a motion for new trial and a notice of appeal. Because the appeal is accelerated, her notice of appeal was due November 10, 2004. See Tex. R.App. P. 26.1(b).

Because Mother’s notice of appeal was untimely, on November 30, 2004, we notified her that we may not have jurisdiction over her appeal and that we would dismiss her appeal for want of jurisdiction unless she or any party desiring to continue the appeal filed with the court on or before December 10, 2004 a response showing grounds for continuing the appeal. See Tex.R.App. P. 42.3. Mother did not respond.

The timely filing of a notice of appeal is jurisdictional in this court, and absent a timely filed notice or extension request, we must dismiss the appeal. See Tex.R.App. P. 25.1(b), 26.3. A motion for extension of time is implied, however, when a party, acting in good faith, files a notice of appeal within the fifteen-day period in which Rule 26.3(a) permits parties to file a motion for extension of time to file their notice of appeal. See Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex.1997). Following an implied motion for extension of time, it is an appellant’s burden to establish a reasonable explanation or, in a termination appeal, good cause for the needed extension. See Jones v. City of Houston, 976 S.W.2d 676, 677 (Tex.1998); Verburgt, 959 S.W.2d at 617; see also Tex. Fam.Code ANN. § 263.405(h) (Vernon 2002) (requiring good cause for extension).

Here, Mother filed her notice of appeal nine days after it was due—-within the fifteen-day extension period. Thus, a motion for extension was implied. Verburgt, 959 S.W.2d at 617. Mother then was required to articulate good cause for the implied extension. But, Mother did not respond to our jurisdiction letter or provide us with any explanation for the needed extension. Having failed to articulate good cause for a nine-day extension of time to file her notice of appeal, Mother is not entitled to prosecute her appeal. Jones, 976 S.W.2d at 677; Verburgt, 959 S.W.2d at 617; Tex. Fam.Code Ann. § 263.405(h). Accordingly, we dismiss Mother’s appeal for want of jurisdiction.


source: Caselaw Access Project

author: ADELE HEDGES, Chief Justice.

license: Public Domain

text:
    Sandra Smothers BARTOSH, Individually and as Administratrix of the Estate of Jose De Alminana Smothers, Appellant, v. GULF HEALTH CARE CENTER-GALVESTON and Ecolab, Inc., Appellees.
    No. 14-04-00715-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    Oct. 11, 2005.

      Anthony Paul Griffin, Galveston, for appellant.
    Alana K. Bassin, Richard G. Morgan, Minneapolis, MN, Elizabeth Kamin, Elizabeth Volmert, Houston, Eric Gordon Wal-raven, G. Michael Stewart, Julia Fields Pendery, Dallas, for appellees.
    Panel consists of Chief Justice HEDGES, Justice ANDERSON, and Senior Justice MIRABAL.

       Senior Justice Margaret G. Mirabal sitting by assignment.

   OPINION

ADELE HEDGES, Chief Justice.

Jose de Alminana Smothers was attacked by fire ants while in the care of a nursing home facility run by Gulf Health Care Center-Galveston. She subsequently died from other causes. Her daughter, Sandra Smothers Bartosh, sued Gulf Health and Ecolab, Inc., the company that provided pest protection services at the property. Bartosh sued in her individual capacity and as administratrix of her mother’s estate. She alleged medical malpractice and premises liability against Gulf Health and negligence against Ecolab. The trial court granted summary judgment favoring Gulf Health on the malpractice claims prior to trial and granted a directed verdict favoring Ecolab at the close of the plaintiffs case-in-chief. Consequently, only the premises liability claim against Gulf Health was submitted to the jury. The jury found Gulf Health liable and awarded $136,000 to Bartosh. The trial court entered final judgment in accordance with the jury’s findings.

On appeal, Bartosh contends that the trial court erred in excluding (1) testimony from Texas Department of Human Resources personnel together with a report generated by those personnel, (2) testimony of plaintiffs medical expert, and (3) photographs of Smothers. Bartosh further contends that (4) the cumulative effect of the court’s errors was to improperly limit the jury’s assessment of damages, and (5) the trial court erred in granting a directed verdict favoring Ecolab. Gulf Health raises a cross-point asserting that because it has already tendered payment of the damages to Bartosh, this court should not award her any additional post-judgment interest after the date of tender. We affirm.

I. Background

On August 5, 2001, Jose de Alminana Smothers was taken to the University of Texas Medical Center at Galveston because she had become unresponsive at the Gulf Health facility in Galveston. Smothers was 82 at the time and was at the facility because she was suffering from end stage emphysema, among other ailments. While at the hospital, it was discovered that she had fire ants crawling on her. Although the evidence was somewhat inconsistent regarding how many ant bites she had sustained, she apparently had suffered dozens of bites to her legs. She was unresponsive at the time of admission but was observed to be moaning in apparent pain. She was treated at the hospital and discharged on August 24, 2001. On August 26, she died at home.

Her daughter, Sandra Bartosh, sued Gulf Health, alleging initially that it committed medical malpractice resulting in wrongful death by failing to prevent the fire ant attack. Bartosh subsequently amended her pleading to allege premises liability against Gulf Health. The trial court granted Gulf Health’s motion for summary judgment in regard to the medical malpractice and wrongful death actions. Bartosh also sued Ecolab, alleging that it had committed negligence in the provision of pest control services at the facility. At the close of the plaintiffs case, Ecolab moved for a directed verdict based on Bartosh’s failure to prove that Ecolab had a duty toward Smothers or that it had breached that duty. The trial court granted the directed verdict.

Also during trial, the court denied the admission of certain evidence about which Bartosh complains on appeal. First, the court refused to allow a report prepared by Texas Department of Human Resources (TDHR) personnel; the court additionally refused to allow the employees themselves to testify. The report included several unattributed statements regarding conditions and events at the Gulf Health facility and- discussed the possibility of statutory and code violations at the facility. Second, the court refused to allow Bar-tosh’s medical expert, Dr. John Messmer, to testify. Messmer was expected to testify that the ant attack may have explained the deterioration in Smothers’s health and may have contributed to her death. Lastly, the court refused to allow certain of the photographs offered to show the injuries sustained by Smothers. Other photographs were admitted showing the area subject to the ant bites. Some of the excluded photographs also showed areas of bed sores on Smothers’s body that were not part of this litigation.

The jury charge was comprised of only two questions. The first was a general question regarding premises liability, and in response, the jury found that Gulf Health’s negligence proximately caused Smothers’s injuries. The second question was on damages and included only three elements: (a) physical pain and mental anguish, (b) disfigurement, and (c) medical care. The jury awarded $136,000 in aggregate for the three elements. The trial court entered judgment in accordance with the verdict, and also awarded costs and prejudgment interest, for a total judgment of $154,592.41 plus post-judgment interest.

II. Issues Relating to Gulf Health

A. TDHR Evidence

In her first issue, Bartosh contends that the trial court erred in excluding testimony from TDHR personnel as well as a report generated by those personnel. Generally, the decision to admit or exclude particular evidence rests within the sound discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995); Frazier v. Havens, 102 S.W.3d 406, 410 (Tex. App.Houston [14th Dist.] 2003, no pet.). To obtain reversal of a judgment based upon the admission or exclusion of particular evidence, the appellant must show that (1) the trial court erred in admitting or excluding the evidence, and (2) such error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Tex.R.App. P. 44.1; Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); Frazier, 102 S.W.3d at 410. To establish harm (i.e., that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment), the appellant must demonstrate that the excluded evidence was both controlling on a material issue and not cumulative of other evidence. Williams Distrib. Co. v. Franklin, 898 S.W.2d 816, 817 (Tex.1995).

Because Bartosh received a verdict and a judgment that Gulf Health’s negligence proximately caused Smothers’s damages, she cannot show harm from the exclusion of evidence related solely to causation, even if its exclusion was error. See Holeman v. Landmark Chevrolet Corp., 989 S.W.2d 395, 402 (Tex.App.-Houston [14th Dist.] 1999, pet. denied) (holding plaintiffs could not show harmful error in exclusion of evidence regarding knowing conduct where jury found in their favor on that issue); Morriss v. Centex Paving Co., 348 S.W.2d 790, 793-94 (Tex.Civ.App.-Eastland 1961, writ refd n.r.e.) (holding plaintiffs could not show harmful error in exclusion of evidence regarding defendant’s negligence where jury found in their favor on that issue). Although Bar-tosh globally asserts that all evidence relevant to causation is also necessarily relevant to damages, she cites no authority for this proposition and offers no explanation as to how conditions at the property discussed in the TDHR report and the prospective testimony of the TDHR employees contributed to Smothers’s physical pain and mental anguish, her disfigurement, or the costs of her medical care. See Manon v. Solis, 142 S.W.3d 380, 393 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (finding claim based on exclusion of evidence was without merit because appellant failed to explain how the excluded evidence was controlling on a material issue). The jury, in effect, found that Gulf Health’s negligence allowed the ant attack to occur. In the absence of a charge submission on exemplary damages, it is difficult to fathom how additional evidence related to causation could increase the amount of damages, as those elements were submitted to the jury. The jury charge did not include a submission on exemplary damages. Consequently, Bar-tosh cannot show harm in the trial court’s exclusion of causation evidence from TDHR personnel or reports.

Regarding evidence relating to damages, Bartosh points only to statements in the TDHR report and in the witness’s deposition testimony that when Smothers was transferred to the hospital she was a dependent, unresponsive female with multiple ant bites. These observations, apparently taken from a review of hospital records, were also reported at trial by Bartosh herself, by medical personnel who treated Smothers, and by the photographer who was called in to take photographs of Smothers; the statements were also contained in the hospital records that were admitted at trial. The exclusion of merely cumulative evidence cannot constitute harmful error. Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144 (Tex.2004).

Bartosh has failed in her burden of demonstrating that the excluded TDHR evidence was both controlling on a material issue and not cumulative of other evidence. See Williams Distrib. Co., 898 S.W.2d at 817; Manon, 142 S.W.3d at 393. Thus, even if the exclusion of the TDHR evidence was error, Bartosh cannot show that it was reasonably calculated to cause and probably did cause rendition of an improper judgment. Tex.R.App. P. 44.1; Gee, 765 S.W.2d at 396. Her first issue is overruled.

B. Plaintiffs Expert

In her second issue, Bartosh contends that the trial court erred in excluding the testimony of her medical expert, Dr. John Messmer. Bartosh maintains that the omission of Messmer’s testimony unfairly limited her proof of damages. Specifically, Bartosh expected Messmer to testify that the ant attack explained why Smothers’s health went into a sudden decline requiring her transfer to the hospital and that it contributed to her death.

Under Rule 702 of the Texas Rules of Evidence, the proponent of expert testimony must establish that (1) the expert is qualified to render an opinion on the subject matter, (2) the testimony is relevant to the issues in the case, and (3) it is based upon a reliable foundation. Tex.R. Evid. 702; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.1995). The trial court has the responsibility for making the preliminary determination as to whether the proponent has met these requirements. Tex.R. Evid. 104(a); Robinson, 923 S.W.2d at 556. We review a trial court’s decision to admit or exclude expert testimony under an abuse of discretion standard. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.2000).

Gulf Health objected to Mess-mer’s proposed testimony based on several theories, including that it was not based upon a reliable foundation. A witness who has been identified as an expert often appears inherently more credible than a lay witness, and a jury may be readily swayed by the designation. See Robinson, 923 S.W.2d at 553. Consequently, “trial judges have a heightened responsibility to ensure that expert testimony show some indicia of reliability.” Id. Although the requirements of qualification, relevance, and reliability set forth in Robinson apply to all expert testimony, the specific factors enumerated in that opinion do not necessarily apply in every case. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 718, 720-21, 726-27 (Tex.1998); Robinson, 928 S.W.2d at 557. In Gammill, instead of using the Robinson factors, the court assessed reliability based on the degree of analytical gap between the data examined and the opinion proffered. 972 S.W.2d at 727; see also Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 619 & n. 10 (Tex.App.-Houston [14th Dist.] 2004, pet. denied) (stating that under Gammill, court must determine whether the expert testimony is based on a reliable foundation); In re D.S., 19 S.W.3d 525, 529-30 (Tex.App.-Fort Worth 2000, no pet.) (following Gammill in analyzing expert medical testimony regarding causation of injuries). Specifically, the Gammill court found that the expert’s failure to show how his observations supported his conclusions rendered his testimony unreliable, stating that the trial court was not required “to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert.” 972 S.W.2d at 727 (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997)).

Messmer gave two depositions in this lawsuit. He opined that the fire ant attack might explain why Smothers went into a sudden decline requiring her transfer to the hospital and that it may have contributed to her death. He specifically offered two possible scenarios regarding the affect of the ant bites on Smothers. First, he theorized that the attack could have triggered an immune system response that lowered her blood pressure and, in turn, exaggerated preexisting skin lesions. Second, he suggested that the ants may have caused a bacterial infection, such as by streptococcus, to be introduced into Smothers’s body causing a sudden deterioration in the skin lesions and possibly causing her to go into anaphylactic shock. He additionally suggested that she may have had an allergic reaction to ant toxins. He based these conclusions on his medical training and experience and his review of hospital and facility records, photographs of Smothers, and depositions taken in this case.

Messmer described himself as a family physician and a specialist in geriatric medicine. He briefly explained his training in geriatrics and his certification in that field. Although he generally stated that he learned about fire ants in medical school, he did not profess to have any specialized training relating to insects, the effect of insect bites on health generally, or the effect of insect bites on geriatric patients. It is also important to note that Messmer said he did not review any literature pertaining to insect bites or the possible effects of insect bites on the health of patients generally or geriatric patients specifically. See Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 500-501 (Tex.2001) (noting expert’s extensive review of relevant literature in finding trial court did not abuse its discretion in admitting expert’s testimony); Wiggs v. All Saints Health Sys., 124 S.W.3d 407, 413 (Tex.App.-Fort Worth 2003, pet. denied) (discounting medical expert’s review of only two articles). Messmer claimed specialized training and knowledge regarding geriatric patients but not in regard to insect attacks or the effect of insect attacks on such patients.

Regarding his experience, Messmer testified that a large percentage of his patients are geriatric. He also stated that when he worked in South Carolina in the early eighties, he treated 20 to 30 patients for fire ant bites but that none of the patients was geriatric, none developed related infections or went into shock, and none died from the attacks. He has not treated any patients for fire ant bites since that time. Although Messmer is experienced in the field of geriatrics, he has only slight experience regarding fire ant bites and no experience dealing with the possible complications from fire ant bites that he stated may have affected Smothers. See Wiggs, 124 S.W.3d at 412-13 (emphasizing medical expert had only treated one patient for specific condition involved in lawsuit in holding trial court did not abuse its discretion in excluding expert’s testimony); State Farm Lloyds v. Mireles, 63 S.W.3d 491, 499 (Tex.App.-San Antonio 2001, no pet.) (“Certainly, if [an expert] is primarily depending on his experience to support his opinion, he would have to have seen it more than once.”).

Furthermore, Messmer’s testimony is replete with references to the speculative nature of his analysis. He stated that he was hired to speculate on what may have caused Smothers’s health to deteriorate, that he gave his best speculation regarding possible causes, and that he was just offering an opinion on what might have happened. See Robinson, 923 S.W.2d at 559 (stating that the fact that an opinion was formed for the purpose of litigation does not automatically render it suspect but does make it more likely to be biased toward a particular result). He said he felt like something catastrophic happened and believed that the ant bites may have caused it because they were “temporally associated.” He also stated that he had no evidence that the ant bites actually caused a severe medical event or that Smothers went into anaphylactic shock or had an allergic reaction. He acknowledged that the treating physicians considered and dismissed the possibility that the ant bites were infected and that blood cultures were negative for infection. He further acknowledged that the treating physicians indicated that the bites healed after three to four days, and her medical condition had improved before she left the hospital. He recognized that there was evidence that Smothers had diabetes, emphysema, a urinary tract infection, and other ailments that could also have caused her deterioration and that a medicine she was given for her emphysema, corticosteroids, could also have caused her skin to break down. See id. (stating that expert’s failure to rule out other causes rendered his opinion “little more than speculation”). He stated that urinary tract infections are a “high cause” for deaths due to cardiopulmonary arrest (one of the causes of death listed on Smothers’s death certificate) among nursing home populations. He stated that the urinary tract infection was just as likely to have caused the deterioration of Smothers’s condition as was the ant attack. He also admitted the possibility that the skin breakdown simply progressed in the week between the last entry in the Gulf Health records and her admission to the hospital and that the ant bites did not necessarily contribute to this breakdown. He concluded that the ant bites did not proximately cause Smothers’s death.

In summary, Messmer’s testimony did not reveal that he had specialized training or experience relating to insect bites and their effect on geriatric patients. Additionally, his testimony was highly speculative in nature. Consequently, the trial court did not abuse its discretion in determining that Bartosh failed in her burden to establish that Messmer’s testimony was based on a reliable foundation. See Robinson, 923 S.W.2d at 556. Accordingly, Bar-tosh’s second issue is overruled.

C. Photographs

In her third issue, Bartosh contends that the trial court erred in excluding photographs taken of Smothers after the fire ant attack. At trial, Gulf Health argued that certain of the photographs were substantially more prejudicial than probative in nature, citing Rule 403 of the Texas Rules of Evidence. Tex.R. Evid. 403. Bartosh argues that the excluded exhibits were necessary to show the number of ant bites and, thus, the level of pain suffered by Smothers.

Bartosh presented a total of thirty-six photographs for admission, marked as plaintiffs exhibits 11 through 46. The trial court admitted seven photographs, specifically exhibits 11, 12, 14, 15, 19, 42, and 46. All of the admitted photographs except exhibit 42 show areas of Smothers’s legs that were attacked by the fire ants. Exhibit 42 is a photograph of Smothers’s face. Five of the excluded photographs, exhibits 13, 16, 18, 21, and 39, show the same areas of ant bites shown in the admitted exhibits. Two more photographs, exhibits 43 and 44, show Smothers’s face from the same angle as does exhibit 42. The trial court did not abuse its discretion in excluding these photographs because they were clearly cumulative of photographs that were admitted. See Nissan Motor Co., 145 S.W.3d at 144 (holding that the exclusion of cumulative evidence cannot constitute harmful error).

Fourteen of the excluded photographs, exhibits 17, 20, 22-24, 27-31, 34, 36, 37, and 40, show a bed sore on Smothers’s right buttock. Bartosh acknowledges that this tissue damage is not a subject of the current lawsuit. She contends, however, that the photographs of the spot were still admissible because there were ant bites on Smothers’s buttocks. It is difficult to tell whether this is true from the photographs. The jury heard testimony from at least two witnesses, including the photographer who took the photographs, that there were ant bites on Smothers’s buttocks; therefore, the photographs themselves would have been of limited additional probative value. Further, the tissue affected by the bed sore appears to be considerably more damaged than does the tissue subject to the ant attack. Because it is likely that the bed sores developed while Smothers was in Gulf Health’s care, the trial court was within its discretion in determining that the prejudicial effect of these photographs outweighed their probative value under Rule 403. See Pack v. Crossroads, Inc., 53 S.W.3d 492, 499-500 (Tex.App.Fort Worth 2001, pet. denied).

The remaining eight excluded photographs, exhibits 25, 26, 32, 33, 35, 38, 41, and 45, show additional sores on Smothers’s heel and arm. Again, Bartosh acknowledges that the bed sores are not subjects of the current lawsuit. She does not assert that these photographs show any ant bites or were admissible for any other purpose. Accordingly, she has failed to show that the trial court abused its discretion in excluding them. See Tex. R.App. P. 38.1(h).

The trial court did not abuse its discretion in excluding the photographs. Accordingly, Bartosh’s third issue is overruled.

D. Cumulative Effects of Error

In her fifth issue, Bartosh contends that the cumulative effects of the trial court’s errors unfairly limited evidence regarding damages. In addition to the arguments raised above, Bartosh additionally asserts under this issue that the trial court erroneously (1) restricted the time frame regarding which evidence could be offered; (2) permitted Jason Finney to testify without having been listed as a witness in pretrial disclosures; and (3) struck portions of her Fifth Amended Petition. Because we have not found that any of the alleged errors raised under previous issues were either error or harmful error, we need not readdress those complaints under Bartosh’s cumulative error complaint. We address each of the additional matters in -turn.

1. Timeframe

Bartosh contends that the trial court erred in restricting the time frame regarding which evidence could be offered concerning the presence of and treatment for fire ants at the facility. Specifically, she complains that the court excluded evidence that (1) Ecolab had treated the property on April 30, 2001, and (2) a different pest control company was called to treat the property in September 2001 because ants were found at the facility.

Because Bartosh prevailed on the issue of Gulf Health’s liability, the exclusion of this evidence could not be harmful error in relation to that issue. See Holeman, 989 S.W.2d at 402; Morriss, 348 S.W.2d at 793-94. Further, the two additional treatments for fire ants clearly have no relevance to the damages elements submitted to the jury: physical pain and mental anguish, disfigurement, and medical care costs. Thus, Bartosh has failed in her burden to prove that the excluded evidence was controlling on a material issue of fact. See Williams Distrib. Co., 898 S.W.2d at 817; Manon, 142 S.W.3d at 393.

2. Jason Finney

Bartosh next asserts that the trial court erred in permitting Jason Finney to testify without having been listed as a witness in pretrial disclosures. Finney was the Ecolab employee who serviced the Gulf Health account. Finney was not called to testify prior to the trial court’s granting of a directed verdict favoring Ec-olab. Gulf Health called him during its case-in-chief after Bartosh concluded her case and the trial court released Ecolab. Bartosh does not claim that any of Fin-ney’s testimony related to the damages elements submitted to the jury. Indeed, our review of Finney’s testimony reveals that it was limited to his treatments at the facility and his communications with Gulf Health employees. Because Bartosh prevailed on the liability issue against Gulf Health and Finney’s testimony did not relate to any damages issues submitted to the jury, any error in admitting his testimony would have been harmless. See Williams Distrib. Co., 898 S.W.2d at 817; Manon, 142 S.W.3d at 393; Holeman, 989 S.W.2d at 402; Morriss, 348 S.W.2d at 793-94.

3. Fifth Amended Petition

Lastly, Bartosh contends that the trial court erred in striking portions of her Fifth Amended Petition in which she requested exemplary damages and purported to assert a claim under section 22.04(a) of the Texas Penal Code. Tex. Pen.Code ANN. § 22.04(a) (Vernon 2003) (“Injury to a Child, Elderly Individual, or Disabled Individual”). The court struck portions of the pleading when it granted Gulf Health’s special exceptions. Gulf Health specially excepted to Bartosh’s claim for exemplary damages on the basis that her pleading failed to set forth facts or allegations demonstrating a right to such damages. Gulf Health specially excepted to Bartosh’s pleading under section 22.04(a) on the basis that it did not state a claim on which relief could be granted. Bartosh did not replead either claim. On appeal, except for stating that her Fifth Amended Petition was timely filed, Bartosh provides no argument and no authority to explain how the trial court erred in striking the sections of the pleading; thus, she has waived this argument. Tex.R.App. P. 38.1(h); Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex.App.-Houston [14th Dist.] 2003, pet. denied).

In summary, Bartosh has failed to establish that the trial court committed any harmful error, much less multiple occasions of harmful error. Accordingly, her fifth issue is overruled.

III. Directed Verdict

In her fourth issue, Bartosh contends that the trial court erred in granting a directed verdict favoring Ecolab at the close of her case-in-chief. She sued Eco-lab for negligence arising out of its provision of pest control services at the Gulf Health facility. Ecolab’s motion for directed verdict asserted that Bartosh failed to present any evidence that Ecolab had any legal duty toward Smothers or that it had breached any such duty.

A trial court may direct a verdict when a plaintiff fails to present evidence raising a fact issue essential to the plaintiffs right of recovery. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex.2000). In reviewing the grant of a directed verdict, we utilize the normal standards for reviewing the legal sufficiency of the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 809-828 (Tex.2005).

A. The Ecolab-Gulf Health Relationship

In the contract between Ecolab and Gulf Health, Ecolab agreed to provide periodic services “in accordance with current pest elimination procedures to eliminate rats, mice, and cockroaches,” and it guaranteed that during the period of service, rats, mice, and cockroaches would not become established on the premises. Although the agreement also states that Ecolab would treat for ants and other insects with the regular service, any necessary baiting would be at an additional charge. The agreement expressly excludes coverage for fire ants unless noted in the “Special Instructions” section. The only reference to ants in the “Special Instructions” section is the statement: “Ants not guaranteed.”

The record also contains customer service reports from Ecolab’s visits to the facility. Most of these include the following language: “Got Ants? Try our GroundForce Ant Program.” There was testimony and literature introduced that the GroundForce Program was designed to provide comprehensive protection against fire ants and other crawling insects not covered by the basic pest control agreement. It included investigation, monitoring, baiting, and spraying. There was undisputed testimony that Ecolab recommended this service to Gulf Health on several occasions and that Gulf Health consistently declined.

The service reports further indicate that on four occasions, June 22, July 12 and 24, and August 1, the Ecolab technician, Jason Finney, applied fire ant bait at the Gulf Health facility. Specifically, the reports identify each application as a spot treatment on the exterior of the property.

B. Duty and Breach

Bartosh contends that there was evidence that Ecolab had a duty toward Smothers and that it breached that duty. Ecolab’s primary argument in its motion for directed verdict was that the contract for pest control services between itself and Gulf Health expressly excluded treatment or monitoring for fire ants, except for spot treatments as requested by Gulf Health. Ecolab asserted that because it had no contractual duty to treat or monitor for fire ants at the facility, it cannot be held responsible for the fire ant attack on Smothers. Bartosh, however, argues that her negligence claims are independent of any contractual obligation; therefore, she can maintain her negligence cause of action. She bases this conclusion on four points: (1) she suggests that this is a negligent activity case; (2) she cites cases from other jurisdictions in which plaintiffs sought to hold pest control companies ha-ble for damages from fire ant attacks; (3) she suggests that the fire ant related services provided by Ecolab were performed negligently; and (4) she contends that Ec-olab’s duty stems from the fact that it had actual and constructive knowledge that fire ants were present at the facility, and it had superior knowledge and expertise regarding fire ants as compared to Gulf Health. We discuss each contention in turn.

Bartosh first suggests that this is a negligent activity case. Her negligence claim against Ecolab is basically that Ecolab had a duty to discover and properly treat for fire ants and that it failed to do so, thus allowing the fire ants to attack Smothers. As the Texas Supreme Court has explained, “[r]eeovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity.” Timberwalk Apts., Partners, Inc., v. Cain, 972 S.W.2d 749, 753 (Tex.1998); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex.1992). Bartosh clearly does not claim that any activity of Ecolab directly and contemporaneously harmed Smothers; instead, she claims that Ecolab’s negligence permitted a condition to exist (ie., the presence of fire ants at the facility) that resulted in harm to Smothers. This is not a negligent activity case.

Second, Bartosh cites to several cases from other jurisdictions in which plaintiffs sought to hold pest control companies ha-ble for damages due to fire ant attacks, including J.C. Posey Estate v. Centennial Health Care Properties Corp., 78 F.Supp.2d 554 (N.D.Miss.1999); Cook’s Pest Control, Inc. v. Boykin, 807 So.2d 524 (Ala.2001); and Rein v. Benchmark Construction Co., 865 So.2d 1134 (Miss.2004). In J.C. Posey Estate, a federal district court addressed whether the plaintiff had fraudulently joined a pest control company in the lawsuit to defeat diversity jurisdiction. 78 F.Supp.2d at 556-57. In analyzing this issue, the court held that the plaintiff did have a viable claim against the company because there was evidence that it had a responsibility to treat for insects at the property where the attack occurred. Id. at 557. However, the court provides little explanation for the basis of this responsibility (although it does mention the contract between the pest control company and the nursing home). Therefore, it is impossible to compare the facts of that case to those of the case before us.

In Cook’s Pest Control, the main issue was whether the plaintiff was a third-party beneficiary to the pest control contract such that he could be held to the arbitration clause in the contract. 807 So.2d at 526-27. In determining that the plaintiff was not a third-party beneficiary, the court vaguely references other theories of recovery that do not depend on the existence of the contract. Id. at 527. However, the court does not explain what these theories are or on what basis any duty was created for the pest control company. Thus, this case is of little help to Bartosh’s position.

In Rein, the court considered, in a summary judgment context, whether several companies involved in maintenance at a nursing home were potentially liable for a fire ant attack on one of the patients. 865 So.2d at 1136-42. The court looked primarily at the contracts between the companies and the nursing home operator to determine what each company had agreed to do. One company, a landscaper, had not agreed to do any treatment for fire ants and, thus, could not be held liable for the attack, even though it had performed some treatments of its own volition. Id. at 1146-47. Another company had contracted to perform “ant bed control” and, thus, was potentially liable for the ant attack. Id. at 1147. Contrary to Bartosh’s assertion, this case does not stand for the proposition that a pest control company has a duty to inspect and treat for fire ants absent a contractual basis for such duty. Instead, the case suggests that the existence of a duty should be ascertained from reviewing what services the party agreed to perform.

Next, Bartosh contends that when Ecolab did treat for fire ants at the facility, it then had a duty toward her and it performed that duty negligently. In support of this argument she cites only to statements by her entomology expert, Dr. Philip Hamman. As mentioned above, Ec-olab spot-treated with fire ant bait on four occasions: June 22, July 12 and 24, and August 1. Hamman stated that he had no criticisms regarding the first three treatments. Although it was disputed at trial, the fourth treatment, on August 1, just four days before the attack on Smothers, may have been in response to someone’s having reported seeing an ant in the room next to Smothers’s room. Hamman testified on direct examination that simply treating the exterior of the room, as the service report indicated was done, would not have been a sufficient response to the alleged ant sighting. On cross-examination, Hamman further explained that there should have been an exhaustive visual inspection in the area where the ant was reportedly seen. He emphasized, however, that no treatment should have been undertaken in the interior until there was a clear identification of a particular pest. He then acknowledged that he possessed no information regarding what Jason Fin-ney, the Ecolab technician who serviced Gulf Health, did in response to the alleged ant report. He stated that it would be difficult to criticize the August 1 treatment without knowing on what basis Finney made the application. Thus, Hamman’s testimony does not support Bartosh’s assertion that Ecolab performed fire ant related services in a negligent manner. Bartosh cites no other evidence to support her contention that Ecolab negligently performed such services. In other words, assuming Ecolab had a duty toward Smothers when it did provide treatment at the facility, Bartosh has presented no evidence that it breached that duty.

Lastly, Bartosh contends that Ecolab’s duty stems from the fact that it had actual and constructive knowledge regarding fire ants at the facility and superior knowledge and expertise as compared to Gulf Health. Regarding the knowledge assertion, Bar-tosh suggests that Ecolab (1) knew fire ants had made their way to the room next to Smothers’s room, and (2) should have known that the premises were infested with fire ants. Bartosh provides no citation for the suggestion that Ecolab had knowledge that fire ants were in the adjacent room, and she cites only to two excluded exhibits as support for the suggestion that Ecolab should have known that the premises were infested.

Regarding the comparison of fire ant expertise as between Ecolab and Gulf Health, there was evidence that Eco-lab is a professional pest control company and Gulf Health employees had limited experience or training relating to fire ants; however, Bartosh cites to no authority that superior expertise alone creates a duty in this situation. There are certainly situations in which one party’s superior knowledge is considered as a factor (perhaps a deciding factor) in determining whether that party had a duty to act. See, e.g., Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 191-92 (Tex.2004) (considering “superior knowledge” of risk as a factor in determining scope of duty to warn in products liability case); McIntosh v. NationsBank, 963 S.W.2d 545, 548 (Tex.App.-Houston [14th Dist.] 1997, writ ref d) (considering “superior knowledge” of risk as a factor in determining scope of duty to warn in premises liability case). However, the law does not generally impose a duty on a party simply because it possesses expertise in a field, absent circumstances requiring the party to put that expertise to use. Here, the evidence was consistent that it was Gulf Health’s, and not Ecolab’s, responsibility to monitor the property for fire ants, and that Gulf Health repeatedly refused to purchase the GroundForce Ant Program, which would have placed a duty on Ecolab to monitor for fire ants and to train facility staff. Hamman, plaintiffs own expert, acknowledged that if a client refused to purchase the fire ant program, there was not much a pest control company could do, and it certainly did not have to provide the service for free. Accordingly, we find Bartosh’s superior expertise argument to be without merit under the circumstances of this case.

Bartosh has failed to demonstrate that she presented evidence raising a fact issue essential to her right of recovery. See Fin. Review Servs., 29 S.W.3d at 77. The trial court did not err in granting the directed verdict. Bartosh’s fourth issue is overruled.

IV. Cross-Point

In its sole cross-point, Gulf Health asserts that because it has already tendered payment of the damages to Bartosh, this court should not award her any additional post-judgment interest after the date of tender, citing Tex. Fin.Code Ann. § 304.005 (Vernon Supp.2004-05), et al. However, this court does not make any award to Bartosh. We simply affirm the trial court’s judgment. Gulf Health does not allege any error in the trial court’s judgment. Accordingly, we dismiss its cross-point as moot.

The trial court’s judgment is affirmed.

      . In issue five, Bartosh claims, among other things, that the trial court erred in striking portions of her Fifth Amended Petition, including those requesting exemplary damages. As discussed in detail below, Bartosh fails to demonstrate that the court erred in striking those sections of the pleading.

      . The expressly nonexclusive factors listed in Robinson are as follows:
      (1) the extent to which the theory has been or can be tested;
      (2) the extent to which the technique relies upon the subjective interpretation of the expert;
      (3) whether the theory has been subjected to peer review and/or publication;
      (4) the technique’s potential rate of error;
      (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and
      (6) the non-judicial uses which have been made of the theory or technique.
      923 S.W.2d at 557.

      . But cf. Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 600-05 (Tex.App.Houston [1st Dist.] 2002, pet. denied) (en banc) (holding that medical causation testimony fell outside realm of "hard science" and applying factors from Nenno v. State, 970 S.W.2d 549 (Tex.Crim.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim.App.1999), for determining reliability of expert testimony in the "soft” sciences). The Nenno court pronounced that in addressing fields of study outside the hard sciences, the appropriate questions are: (1) whether the field of expertise is a legitimate one, (2) whether the subject matter of the expert’s testimony is within the scope of that field, and (3) whether the expert’s testimony properly relies upon and utilizes the principles involved in the field. 970 S.W.2d at 561. Neither the Fourteenth Court of Appeals nor the Texas Supreme Court has adopted the Nenno analysis for use in civil cases, and we do not see the need to do so in the present case.

      .Messmer further asserted that Gulf Health violated the applicable standard of care by allowing Smothers to be attacked by fire ants. However, Bartosh’s medical malpractice claim was eliminated by summary judgment, and she does not claim that this assertion is relevant to her premises liability claim that went to the jury.

      . Messmer may not have been perfectly clear on the legal definition of proximate cause. See generally IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798-99 (Tex.2004) (defining proximate cause).

      . Rule 403 states as follows:
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

      . Bartosh does not address any of her complaints under issue five in relation to Ecolab.

      . For example, in Keetch, a Kroger employee sprayed plants approximately thirty minutes before the plaintiff slipped on the floor in the area where spraying had occurred. 845 S.W.2d at 264. The court explained that the plaintiff may have been injured by a condition created by the activity but was not directly injured by the activity (spraying) itself; thus, the facts did not support a negligent activity claim. Id.

      . Finney did not testify at trial until after the directed verdict was granted, and he apparently was not deposed prior to trial.

      . Furthermore, the evidence was consistent that it was Gulf Health, and not Ecolab, that undertook to monitor the property for fire ants, and that Gulf Health had repeatedly refused to purchase the Ecolab GroundForce Ant Program, which would have included monitoring.

      . Bartosh additionally cites to testimony by Finney that if he saw a problem at the facility he could treat at his discretion. However, this testimony came after the close of plaintiff's case and the grant of directed verdict. We therefore do not consider it in assessing the propriety of the directed verdict.

      . The excluded exhibits are a time sheet and an "emergency waiver” form from a different pest control company that treated the facility in September 2001, over a month after the attack on Smothers. Interestingly, the form notes only that there was an "imminent infestation” and neither document references any current or former infestation.

      . In her statement of facts, Bartosh asserts that Hamman concluded that there was an infestation at the facility based on three things: (1) the indication that ants may have been in the adjacent room within four days of the attack; (2) the prior exterior treatments for fire ants; and (3) the attack on Smothers. Obviously, Ecolab could not have known about the attack on Smothers prior to the attack, and thus would not have had known of this supposed evidence of an infestation.


author: JOHN T. BOYD, Senior Justice (Retired). BRIAN QUINN, Chief Justice,

text:
    DEAN FOODS COMPANY d/b/a Bell Gandy’s, Inc. and Texas Worker’s Compensation Commission, Appellants, v. Debra ANDERSON, Appellee.
    No. 07-04-0016-CV.
    Court of Appeals of Texas, Amarillo.
    Oct. 13, 2005.
    Rehearing Overruled Dec. 21, 2005.

      Abel Reyna, Jr., Michael L. Byrd, Byrd & Associates, Lubbock, for Appellants.
    Kevin Heyburn, Asst. Atty. Gen., Austin, for Appellant TWCC.
    Christopher Carver, John E. Gibson, Gibson Carver, L.L.P., Lubbock, for Ap-pellee.
    Before QUINN, C.J., CAMPBELL, J., and BOYD, S.J.

      . John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov’t Code Ann. § 75.002(a)(1) (Vernon Supp.2004).

   OPINION

JOHN T. BOYD, Senior Justice (Retired).

In this appeal, appellants Dean Foods Company d/b/a Bell Gandy’s, Inc. (Dean Foods) and the Texas Worker’s Compensation Commission (TWCC) challenge the trial court’s award of attorney’s fees to cross-appellant Debra Anderson (Anderson). In her appeal, Anderson challenges the amount of attorney’s fees awarded and specifically complains of the trial court’s refusal to consider a contingent fee contract in determining the amount of its award of attorney’s fees to her. We reverse the trial court’s judgment in part and render a corrected judgment.

Background

Anderson’s husband was murdered by an unknown assailant while employed by Dean Foods. She filed a claim for workers’ compensation benefits because of his death. That claim was opposed by Dean Foods, which contended that the death was the result of personal animosities with the assailant or assailants and also contended that the death occurred outside of the course and scope of his employment. The claim proceeded to hearing before a TWCC hearing officer, who found that the death was a compensable injury. That finding was affirmed by a TWCC appeals panel. Anderson was the sole beneficiary and entitled to whatever TWCC benefits might be payable.

Dean Foods appealed the compensability determination to the district court. In her answer and counterclaim, inter alia, Anderson sought affirmative relief, including attorney’s fees. Other than her quest for attorney’s fees, Anderson’s counterclaims were severed into separate causes and are not at issue in this appeal.

A year after filing its suit, Dean Foods filed a motion for nonsuit. In filing her answer to the suit, Anderson had asked for the award of attorney’s fees and, after receiving notice of the nonsuit motion, also submitted a motion seeking attorney’s fees in the amount of $320,855.20 with supporting affidavits. In the judgment giving rise to this appeal, the trial court found: 1) it had jurisdiction to ¿ward attorney’s fees, 2) Anderson was not the “prevailing party” in the suit, 3) reasonable and necessary attorney’s fees in the amount of $100,167.86 were incurred by Anderson, and 4) the attorney’s fees were to be paid out of Anderson’s death benefit award. See Tex. Lab.Code Ann. § 408.221 (Vernon Supp.2004-2005) (the Code). Both parties appealed this decision and TWCC intervened in the appeal. See id. § 410.254 (Vernon 1996).

In its appeal, Dean Foods challenges the trial court’s 1) subject matter jurisdiction to assess attorney’s fees, 2) the judgment awarding attorney’s fees, and 3) the trial court’s receipt of evidence regarding attorney’s fees after Dean Foods had filed its nonsuit motion. TWCC also appeals the trial court’s award of attorney’s fees. Anderson appeals 1) the trial court’s finding that she was not the “prevailing party” within the purview of the Code, 2) the judgment failing to award her attorney’s fees pursuant to a contingency fee agreement between herself and her attorneys, and 3) the trial court’s decision that Dean Foods had standing to contest the award of attorney’s fees to her.

Discussion

We will consolidate the parties’ issues and discuss the three determinative questions presented in those issues. Those questions are: 1) whether the trial court had subject matter jurisdiction to award attorney’s fees, 2) the statutory interpretation of the “prevailing party” requirement for attorney’s fees under section 408.221(c) of the Code, and 3) the trial court’s award of attorney’s fees.

Standard of Review

Statutory construction is a question of law, and we review the trial court’s action de novo. Johnson v. City of Fort Worth, 774 S.W.2d 653, 656 (Tex.1989). The primary goal in statutory construction is to ascertain and give effect to the legislature’s intent, the evil, and the remedy. Tex. Gov’t Code Ann. § 312.005 (Vernon 2005). In ascertaining the legislative intent, we should liberally construe these workers’ compensation provisions in favor of injured workers. Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex.2000).

Subject Matter Jurisdiction

Whether a court has subject matter jurisdiction is a question of law reviewed de novo. See Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). A district court may judicially review a TWCC appeals decision once a party has exhausted all administrative remedies. Tex. Lab.Code Ann. § 410.251 (Vernon 1996); see also Cervantes v. Tyson Foods, Inc., 130 S.W.3d 152, 155 (Tex.App.-El Paso 2003, pet. denied). In determining whether a pleader has alleged facts sufficient to demonstrate the trial court’s subject matter jurisdiction, we construe the pleadings in favor of the pleader. See Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982).

TWCC contends that the trial court lacked statutory authority to award Anderson any attorney’s fees. Dean Foods asserts that Anderson only pled for attorney’s fees related to her counterclaims and did not seek attorney’s fees related to the request for judicial review until after it had filed its nonsuit motion. At that time, it reasons, the nonsuit had terminated the trial court’s jurisdiction, and Anderson could not subsequently file a request for affirmative relief. See Ault v. Mulanax, 724 S.W.2d 824, 828 (Tex.App.-Texarkana 1986, orig. proceeding).

Once Dean Foods exhausted its administrative remedies and sought judicial review, the trial court gained jurisdiction over the dispute. When the court obtained jurisdiction, Anderson was entitled to and indeed obligated to respond, and in that response, seek attorney’s fees. Tex.R. Civ. P. 97; Falls County v. Perkins and Cullum, 798 S.W.2d 868, 870 (Tex.App.-Fort Worth 1990, no pet.). Although Anderson’s answer only requested attorney’s fees in a general manner, it can reasonably be construed as requesting attorney’s fees associated with her defense in the judicial review of the award the appeals panel had made to her. That being so, we conclude that Anderson properly and timely requested an award of attorney’s fees incurred as a result of the judicial review. Tex.R. Civ. P. 45; Tex. Dep’t of Parks and Wildlife v. Miranda, 133 S.W.3d at 226. A request for attorney’s fees is a claim for affirmative relief. Falls County v. Perkins and Cullum, 798 S.W.2d at 870-71. Texas Rule of Civil Procedure 162 specifically provides that a dismissal or nonsuit “shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief. ...” Therefore, we conclude that Dean Foods’ nonsuit did not deprive the trial court of subject matter jurisdiction over Anderson’s request for attorney’s fees.

Prevailing Party

Dean Foods next contends that the trial court could not have awarded attorney’s fees under section 408.221(c) of the Code because the court determined that Anderson was not the “prevailing party” in the suit and that status was a prerequisite to the award of attorney’s fees to be paid by the insurance carrier. TWCC contends the trial court had no authority to award attorney’s fees under section 408.221(b) of the Code, which provides for attorney’s fees to be paid from the claimant’s recovery, because in its judgment, the court did not award a “recovery” from which attorney’s fees could be paid.

In deciding these arguments, we will first consider the implications of section 408.221(c) of the Code. In pertinent part, that statute provides:

An insurance carrier that seeks judicial review under Subchapter G, Chapter 410, of a final decision of a commission appeals panel regarding compensability or eligibility for, or the amount of, income or death benefits is hable for reasonable and necessary attorney’s fees as provided by Subsection (d) incurred by the claimant as a result of the insurance carrier’s appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier in accordance with the limitation of issues contained in Section 410.302_ [Emphasis added].

Tex. Lab.Code Ann. § 408.221(c) (Vernon Supp.2004-2005).

The concept of “prevailing party” is not defined in the statute. However, it has been defined in other contexts as when “one of the parties to a suit ... successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of its original contention.” City of Amarillo v. Glick, 991 S.W.2d 14, 17 (Tex.App.-Amarillo 1997, pet. denied), quoting F.D.I.C. v. Graham, 882 S.W.2d 890, 900 (Tex.App.-Houston [14th Dist.] 1994, no writ). Whether a party “prevails” should be based upon success on the merits, rather than whether damages are awarded. City of Amarillo v. Glide, 991 S.W.2d at 17; Scholl v. Home Owners Warranty Corp., 810 S.W.2d 464, 468 (Tex.App.-San Antonio 1991, no writ).

Dean Foods contends that because of its nonsuit, Anderson could not and did not obtain a favorable judgment on the merits and therefore, she was not and could not have been the “prevailing party” in the suit Dean Foods filed. See generally Cigna Ins. Co. of Tex. v. Middleton, 63 S.W.3d 901, 903 (Tex.App.-Eastland 2001, pet. denied); see also Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598, 605, 121 S.Ct. 1835, 1840-41, 149 L.Ed.2d 855 (2001). In advancing that proposition, Dean Foods places considerable reliance upon the court’s reasoning employed in the Cigna Ins. Co. case which is the most nearly analogous authority cited by it. In that case, the court did reverse an award of attorney’s fees to the claimant from the carrier because the claimant was not a “prevailing party” .in the suit. However, the facts in that case are distinguishable from those before us.

In reaching its decision, the Cigna court noted that the insurance company and the claimant had settled and both had nonsuit-ed their claims. Because of this, the court reasoned, there “were no remaining issues upon which Middleton [the worker claimant] could prevail.” Cigna Ins. Co. of Tex. v. Middleton, 63 S.W.3d at 903. As we noted above, the facts in that case are different from those before us here. This is not a case in which both parties sought a nonsuit of their claims.

In this case, Anderson had received a legal determination from the TWCC hearing officer that was affirmed by an appeals panel and which was binding upon Dean Foods during the pendency of an appeal. See Tex. Lab.Code Ann. § 410.205(b) (Vernon Supp.2004-2005). Upon Dean Foods’ nonsuit, the appeal panel’s award became final and received the imprimatur of the trial court, marking the end of any further appeal on the issue of compensability. Id. § 410.205(a). Thus, even though the trial court, because of Dean Foods’ nonsuit, did not render a judgment on the merits of the case, the effect of Dean Foods’ nonsuit was to make TWCC’s award final and enforceable. Thus, Anderson became the “prevailing party” within the purview of the statute. See Pacific Employers Insurance Co., No. 08-05-00086-CV, 2005 WL 2044936 (Tex.App.-El Paso August 25, 2005, no pet. h.). Moreover, because Anderson had not joined in the nonsuit, the issue of her attorney’s fees still remained to be disposed of. Tex.R. Civ. P. 162.

Further, although the general rule is that the workers’ compensation claimant’s attorney’s fees are paid out of the claimant’s recovery, section 408.221(c) is an exception to that general rule. In enacting that statute, it appears that the intent of the legislature was to ensure that if the insurance carrier appealed an award, thereby delaying the payment of benefits to an injured worker, it ran the risk of having to pay the claimant’s attorney’s fees if its appeal was not well taken. Additionally, there is another valid reason for the statute and the apparent legislative intent. While a worker is not required to have an attorney to represent him or her in TWCC proceedings, in an appeal to the district court, the worker must obtain an attorney or run the risk of representing himself or herself with the pitfalls that may await a non-legally trained participant in a court of record. The trial court here had before it affidavits that showed the activities undertaken by counsel necessitated by the carrier’s appeal to the district court.

For these reasons, the section 408.221(c) authorization of the award of attorney’s fees to the “prevailing party” is applicable in this case. Having made that decision, we need not address TWCC’s issue regarding the trial court’s authority to award attorney’s fees under section 408.221(b) of the Code or Anderson’s issue regarding Dean Foods’ standing under section 408.221(b). See Tex.R.App. P. 47.1.

Award of Attorney’s Fees

We now address Anderson’s contention that the trial court erred in failing to consider her contingency fee contract with her attorneys in assessing the amount of reasonable and necessary attorney’s fees to be awarded to her. In doing so, we also note Dean Foods’ contention that the trial court erred by allowing affidavit evidence after it had filed its nonsuit motion. Attorney’s fees must be approved by TWCC or the trial court and must be based upon the attorney’s time and expense as evidenced by written documentation. See Tex. Lab.Code Ann. § 408.221(a) & (b) (Vernon Supp.2004-2005). However, the manner and amount of the award of attorney’s fees is within the trial court’s discretion. Texas Employers Ins. Ass’n v. Motley, 491 S.W.2d 395, 397 (Tex.1973); Transcontinental Ins. Co. v. Smith, 135 S.W.3d 831, 838 (Tex.App.-San Antonio 2004, no pet.).

Applying the principles of statutory construction we have noted, a plain reading of the statute would appear to allow contingency agreements. However, any agreement as to the amount of attorney’s fees still must be approved by the trial court. Tex. Lab.Code Ann. § 408.221(a) (Vernon Supp.2004-2005). In addition, section 408.221(c) states the trial court shall take into consideration the additional factors listed in section 408.221(d) in making its determination as to the amount of attorney’s fees that were reasonable and necessary. Parenthetically, in cases such as this one in which the carrier has filed the appeal, the trial court is not limited by 25 percent of the claimant’s recovery applicable in some other workers’ compensation cases. See id. § 408.221®. Reading the statute as a whole, we conclude the trial court’s discretion in assessing reasonable and necessary attorney’s fees is not limited, restricted, or dictated by a contingency fee contract entered into by a claimant and her attorneys. Anderson’s issue in that regard is overruled.

We next address Dean Foods’ contention that the trial court erred by allowing evidence relating to attorney’s fees by affidavit after the filing of the nonsuit motion. As we have noted above, Anderson had timely raised the issue of attorney’s fees prior to the filing of that motion. Further, again as we noted above, the trial court was required to consider evidence of the factors listed in section 408.221(d) of the Code in making its decision as to what attorney’s fees were reasonable and necessary. Dean Foods has failed to uphold its burden to show that the trial court abused its discretion in reviewing affidavits in making its determination. See Transcontinental Ins. Co. v. Smith, 135 S.W.3d at 889. Without such a showing by Dean Foods, we presume the evidence supported the trial court’s decision as to attorney fees. Id. Dean Foods’ argument is overruled.

For the reasons we have expressed, we reverse the trial court’s finding as to the “prevailing party” and its holding that the attorney’s fees would be paid out of Anderson’s recovery. We do affirm its finding as to the amount of attorney’s fees to be awarded. Accordingly, and pursuant to the applicable provisions of section 408.221(c) of the Code, we render judgment awarding Anderson the amount of $100,167.86 as the attorney’s fees reasonably and necessarily incurred by her to be paid by Dean Foods. See Tex.R.App. P. 43.3.

BRIAN QUINN, Chief Justice, concurs.

BRIAN QUINN, Chief Justice,

concurring.

I concur with the majority with regard to the “prevailing party,” but write separately to explain that the majority’s decision also follows analogous precedent. We have recognized that of the many statutes and rules which may entitle a prevailing party to recover attorney’s fees-, the analysis applied has been uniform. City of Amarillo v. Glick, 991 S.W.2d 14, 17 (Tex.App.-Amarillo 1997, no pet.) (dealing with the recovery of fees under § 143.015(c) of the Local Government Code). Furthermore, included among the category of statutes and rules alluded to in City of Amarillo is Rule 131 of the Texas Rules of Civil Procedure, and though it speaks in terms of a “successful party,” the definition accorded that phrase is the same one accorded the term “prevailing party.” Id. So, given the uniformity of definition utilized throughout the differing bodies of law, it seems only logical that opinions implicating Rule 131 would be authoritative when deciding whether a party prevailed under § 408.221(c) of the Texas Labor Code. After all, they encompass the same concept.

Next, it consistently has been held that the beneficiary of a non-suit, e.g., the defendant when a plaintiff files a non-suit, is the prevailing or successful party for purposes of Rule 131. City of Houston v. Woods, 138 S.W.3d 574, 581 (Tex.App.-Houston [14th Dist.] 2004, no pet.); Harris v. Shotwell, 490 S.W.2d 860, 861 (Tex.App.-Fort Worth 1973, no writ); Reed v. State, 78 S.W.2d 254, 256 (Tex.App.-Austin 1935, writ dism’d). If we are to retain the uniformity spoken of above, then we cannot but conclude that Anderson was the successful or prevailing party here when Dean Foods filed its non-suit.

      . Dean Foods is a certified self-insurer subject to the Texas Workers’ Compensation Act. Tex. Lab.Code Ann. § 407.042 (Vernon 1996).

      .Dean Foods additionally based its denial of compensability on other grounds but abandoned them prior to the contested case hearing.

      . The factors listed include 1) the time and labor required, 2) the novelty and difficulty of the questions involved, 3) the skill required to perform the legal services necessary, 4) the fee customarily charged in the locality for similar legal services, 5) the amount involved in the controversy, 6) the benefits to the claimant that the attorney is responsible for securing, and 7) the experience and ability of the attorney performing the services. Tex. Lab.Code Ann. § 408.221(d) (Vernon Supp. 2004-2005).


author: SCOTT, Justice,

text:
    Lucy KEITH, Appellant, v. HOPPLE PLASTICS; Hon. R. Scott Borders, Administrative Law Judge; and Workers’ Compensation Board, Appellees.
    No. 2004-SC-0451-WC.
    Supreme Court of Kentucky.
    Nov. 23, 2005.
    As Corrected Dec. 13, 2005.

      James Russell Garvin, Brown, Lippert, Heile & Evans, Cincinnati, OH, Counsel for Appellant.
    Walter A. Ward, James Owen Fenwick, III, Clark & Ward, Lexington, Counsel for Appellee.
   OPINION OF THE COURT

It is undisputed that the claimant’s work-related injury occurred when she was 68 years old and eligible for Social Security retirement benefits. Leaving an argument that KRS 342.730(4) was unconstitutional for the courts to decide, an Administrative Law Judge (ALJ) determined that the statute limited the duration of the claimant’s partial disability award to the difference between 102 weeks and the duration of the temporary total disability (TTD) benefits she had already received. The claimant’s sole argument on appeal was that KRS 342.730(4) violates the equal protection clause of the United States Constitution and/or Section 3 of the Kentucky Constitution. Hence, the Workers’ Compensation Board (Board) affirmed under Blue Diamond Coal Co. v. Cornett, 300 Ky. 647, 189 S.W.2d 963 (Ky.1945). The Court of Appeals affirmed, noting that the constitutionality of the statute had been upheld previously in McDowell v. Jackson Energy RECC, 84 S.W.3d 71, 76 (Ky.2002). We affirm.

The claimant was born in 1932. She sustained a work-related wrist fracture on June 9, 2000, and later filed an application for workers’ compensation benefits. Among other things, she asserted that she was unable to return to the work in which she was injured. She testified that she had not returned to any other type of work and received social security retirement benefits of $922.00 per month. It was undisputed that the injury resulted in a 7% disability rating. An ALJ determined that the claimant lacked the physical capacity to perform the work she had performed at the time of the injury; therefore, she was entitled to an enhanced income benefit of $33.28 per week by operation of KRS 342.730(l)(c)l. Noting the claimant’s testimony that she was receiving social security retirement benefits and the parties’ stipulation that she had received 76.53 weeks of TTD benefits, the ALJ determined that KRS 342.730(4) limited the duration of permanent income benefits to 27.57 weeks.

The claimant asserts that she is entitled to receive 425 weeks of partial disability benefits following her TTD award rather than the 27.57 weeks the ALJ awarded. She argues that although the purpose of temporary and permanent total disability benefits is to replace lost income, the purpose of partial disability benefits is to compensate the worker for having received a permanent injury. Therefore, the General Assembly had no rational basis for treating partially disabled workers differently based on age. Attempting to distinguish McDowell v. Jackson Energy, supra, and Wynn v. Ibold, 969 S.W.2d 695 (Ky.1998), she asserts that the court’s rationale for concluding that income benefits duplicated Social Security retirement benefits was that the workers received temporary total or permanent total disability rather than permanent partial disability.

Several statutes are relevant to the issues this appeal presents. As defined in KRS 342.0011(12):

“Income benefits” means payments made under the provisions of this chapter to the disabled worker or his dependents in case of death, excluding medical and related benefits.

KRS 342.730(1) provides formulae for calculating “income benefits for disability” and bases the benefit on the worker’s average weekly wage and disability, whether it be total (subsection a) or partial (subsections b-e). KRS 342.730(l)(d) provides 425 weeks of “income benefits” to workers with a partial disability of less than 50%. As amended effective December 12, 1996, KRS 342.730(4) provides, in pertinent part, as follows:

All income benefits payable pursuant to this chapter shall terminate as of the date upon which the employee qualifies for normal old-age Social Security retirement benefits under the United States Social Security Act, 42 U.S.C. secs. 301 to 1397f, or two (2) years after the employee’s injury or last exposure, whichever last occurs.

The 1994 version of KRS 342.730(4), commonly referred to as the “tier down,” applied to “any income benefits awarded under ... this section,” ie., to partial as well as total disability benefits. In Leeco, Inc. v. Crabtree, 966 S.W.2d 951 (Ky.1998), the court noted that workers’ compensation income benefits are but one of several forms of wage-loss protection, one of which is social security. Addressing the duplication of benefits that occurs when a worker is eligible for more than one form of income replacement, the court stated:

A reduction in workers’ compensation benefits upon a worker’s eligibility for an alternative form of income replacement is consistent with the principle of coordinating the various systems of wage-loss protection in order to avoid a duplication of benefits.

Id., 966 S.W.2d at 955 (citations omitted). It concluded that the primary purpose of KRS 342.730(4) was to avoid duplicating other forms of income replacement, particularly social security retirement benefits. Id.

Shortly after Leeco, Inc. v. Crabtree, supra, was decided, in Wynn v. Ibold, 969 S.W.2d at 697, the court observed that reducing income benefits at an age when workers became eligible for other forms of income replacement avoided a duplication of benefits. It also reduced the overall cost of workers’ compensation, thereby improving the economic climate for all citizens of the commonwealth. Id. Finding those to be legitimate state objectives and sound public policy, the court determined that the statute complied with the requirements of due process and equal protection. Contrary to the claimant’s assertion, Wynn v. Ibold, supra, did not specify whether the worker’s disability was partial or total.

The 1996 version of KRS 342.730(4) is unambiguous in stating that it applies to “[a]ll income benefits payable under this chapter.” Although KRS 342.730(1) refers to partial disability benefits as “income benefits” and although partial disability benefits clearly come within the definition of income benefits, the claimant asserts that KRS 342.730(4) applies only to total disability benefits, be they permanent or temporary. She argues that totally disabled individuals cannot work; therefore, their benefits replace lost income like social security retirement benefits do. In contrast, partially disabled workers are able to earn an income; therefore, permanent partial disability benefits are not designed to replace income but to compensate the worker for having received a permanent injury. This argument is based on the erroneous premise that benefits awarded for total and partial disability have different purposes.

The Workers’ Compensation Act does not create a quasi tort. Adkins v. R & S Body Co., 58 S.W.3d 428, 431-32 (Ky.2001); Leeco, Inc. v. Crabtree, swpra. Workers’ compensation is a form of social welfare legislation. Its purpose is to require employers to provide necessary medical treatment for workers who are injured in the course of their employment and to replace some of the income they will lose, thereby enabling them to meet their own essential needs and those of their dependents. Adkins v. R & S Body Co., supra; Wynn v. Ibold, supra; Leeco, Inc. v. Crabtree, supra; Workmen’s Compensation Board of Kentucky v. Abbott, 212 Ky. 123, 278 S.W. 533 (1925); see also, Newberg v. Sarcione, 865 S.W.2d 317, 319 (Ky.1993).

In a case involving social or economic legislation where no fundamental right is at stake and no suspect class is implicated, a statute will comply with the Fourteenth Amendment’s right to equal protection if it furthers a legitimate state objective and there is any conceivable rational basis for the classes it creates. Heller v. Doe, 509 U.S. 312, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993); Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970); Popplewell’s Alligator Dock No. 1, Inc. v. Revenue Cabinet, 133 S.W.3d 456, 466-67 (Ky.2004); Commonwealth v. Howard, 969 S.W.2d 700, 703 (Ky.1998). Legislative acts are presumed to be valid; therefore, the burden is on one attacking a statute to show the negative. Heller v. Doe, supra; Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351 (1973); Delta Air Lines, Inc. v.. Commonwealth of Kentucky Revenue Cabinet, 689 S.W.2d 14 (Ky.1985). Although the court may impose procedural safeguards on the administration of a statute, its role is not to second-guess the statute’s wisdom. Dandridge v. Williams, supra. Equal protection does not require there to be a perfect fit between means and ends. Heller v. Doe, supra; Dandridge v. Williams, supra; Commonwealth v. Howard, supra. Nor does it concern whether the statute fulfills ideal social or economic objectives or whether it could have been more just and humane. Dandridge v. Williams, supra. The standards for determining if a legislative classification complies with principles of equal protection found in Sections 1-3 and 59(24) of the Kentucky Constitution are essentially the same. Commonwealth v. Howard, supra; Delta Air Lines, Inc. v. Commonwealth of Kentucky Revenue Cabinet, supra.

Like their pre-1996 counterparts, the 1996 versions of KRS 342.0011(11)(b) and KRS 342.730(1)(c) anticipate that an individual will experience a loss of present and/or future income yet retain the ability to work, perhaps to continue in the same job. Although impairment is a prominent factor in determining the amount of a worker’s partial disability under KRS 342.730(1)(b) and (c), the ability to perform physical labor clearly is affected by the amount of impairment an injury has caused. Although the method used in the 1996 statute may imperfectly measure an individual worker’s loss, partial disability benefits continue to be awarded on the basis of occupational disability rather than impairment. Adkins v. R & S Body Co., supra. Like all other income benefits, they continue to be paid periodically as set forth in KRS 342.040(1). We are aware of nothing, and the claimant has pointed to nothing, to convince us that partial disability benefits are qualitatively different from total disability benefits or that the legislature viewed them as being different.

In McDowell v. Jackson Energy RECC, supra, the court addressed an argument that the 1996 version of KRS 342.730(4) was unfair to workers who were eligible for social security retirement benefits and denied them equal protection on the basis of their age. Noting that an equal protection challenge “presupposes that a statute is discriminatory, thus perceptually unfair,” the court explained that fairness “is an aspect of public policy reserved to the legislature” and that the court’s function is to determine whether a statute is constitutional. Id., 84 S.W.3d at 74. The standard for doing so is whether there is a rational basis for the perceived discrimination, i.e., whether the statute is rationally related to a legitimate state purpose. Id.; see also Steven Lee Enterprises v. Varney, 36 S.W.3d 391, 395 (Ky.2000).

The McDowell court viewed the purpose of KRS 342.730(4) as being the same as that of the pre-1996 “tier down,” which survived an equal protection challenge in Wynn v. Ibold, supra. Both provisions sought to avoid a duplication of income replacement benefits, thereby reducing the cost of workers’ compensation and improving the economic climate for all of the state’s citizens. The court noted that coordinating systems of wage-loss protection by requiring an offset for duplicative income replacement benefits or placing a ceiling on combined benefits was viewed widely as being sound public policy. Arthur Larson and Lex K. Larson, 9 Larson’s Workers’ Compensation Law § 97.35(a) and (b) (Matthew Bender 1997).

Relying on Richardson v. Belcher, 404 U.S. 78, 92 S.Ct. 254, 30 L.Ed.2d 231 (1971), the McDowell court noted that the United States Supreme Court rejected an equal protection challenge to a section of the Social Security Act that permitted social security disability benefits to be reduced by virtue of overlapping state workers’ compensation benefits. It also noted that social security disability benefits are converted to social security retirement benefits at age 65. The McDowell court found no distinction for the purposes of a rational basis analysis between the offset required by the Social Security Act and KRS 342.730(4)’s reverse offset in which workers’ compensation benefits are offset by social security retirement benefits. It concluded that like the statute at issue in Richardson v. Belcher, supra, KRS 342.730(4) did not deny affected workers equal protection because its purpose provided a rational basis for any perceived discrimination.

Legislative acts carry a strong presumption of constitutionality. Lehnhausen v. Lake Shore Auto Parts Co., supra; Brooks v. Island Creek Coal Co., 678 S.W.2d 791, 792 (Ky.1984); Delta Air Lines, Inc. v. Commonwealth of Kentucky Revenue Cabinet, supra; United Dry Forces v. Lewis, 619 S.W.2d 489 (Ky.1981); Sims v. Board of Education of Jefferson County, 290 S.W.2d 491 (Ky.1956). The claimant has asserted that KRS 842.730(4) is unfair to partially disabled workers who are eligible for social security retirement. She has, however, failed to show that it has no conceivable rational basis.

The principle of terminating workers’ compensation benefits when workers become eligible for normal old-age social security benefits is not new to Kentucky. Brooks v. Island Creek Coal Co., supra. Nor is the concept of coordinating different forms of wage-loss protection or of avoiding making it more profitable to be disabled than not. See Richardson v. Belcher, 404 U.S. at 83, 92 S.Ct. 254; McDowell v. Jackson Energy RECC, supra; Wynn v. Ibold, supra; and Leeco v. Crabtree, supra. Although KRS 342.730(4) discriminates against workers who are eligible for both workers’ compensation disability benefits and normal social security retirement benefits, it advances a legitimate state interest in coordinating forms of income replacement benefits and avoiding a duplication of benefits. Although it discriminates against partially disabled workers who are eligible for social security retirement benefits, it advances a legitimate state interest in preventing workers who are eligible for old-age social security benefits and only partially disabled from ultimately receiving greater workers’ compensation benefits than similarly-situated workers who are totally disabled. We conclude, therefore, that KRS 342.730(4) is rationally related to a legitimate state interest and that it is constitutional when applied to either total or partial disability awards. See McDowell v. Jackson Energy, supra.

The decision of the Court of Appeals is affirmed.

COOPER, JOHNSTONE, ROACH, and WINTERSHEIMER, JJ„ concur.

SCOTT, J., dissents by separate opinion in which LAMBERT, C.J., and GRAVES, J. join.

SCOTT, Justice,

Dissenting.

Lucy Keith was born in 1932 and was employed by Hopple Plastics as an assembler for her entire working life. At the time of the injury that ended her career, she was 68 years old, earning $475.60 per week, and planning to continue in her job for another four to five years. That ended with her injury. Unable to continue to perform her job, she retired and began to collect $230.50 per week ($922.00 per month) in social security retirement benefits plus $33.28 per week for her disability. Simply stated, the injury prevented her from earning an income on which she could live and left her with combined benefits on which she could not. Worse yet, although KRS 342.730(l)(b) and (d) provide for 425 weeks of partial disability benefits, KRS 342.730(4) limited Lucy to 27.57 weeks because she was eligible for social security retirement. Convinced that KRS 342.730(4) denies her equal protection, I would hold that KRS 342.730(4) is unconstitutional and reverse.

The majority’s reason for approving KRS 342.730(4) under the rational basis test is that it avoids a duplication of equivalent benefits and that total and partial disability benefits are the same. Its rationale fails to confront the actual purpose for KRS 342.730(4), which is to save money for employers. Not only does the state have no legitimate interest in doing so by depriving elderly workers who are partially disabled of workers’ compensation benefits based solely on their eligibility for social security retirement, the two types of benefits are not equivalent.

The majority has equated workers’ compensation benefits with social security retirement benefits. Granted, there are some similarities. However, as the dissent in McDowell v. Jackson Energy RECC, 84 S.W.3d 71, 79 (Ky.2002), correctly pointed out, the rationale and source of funding for the two programs belie their overlap. So does the basis for calculating benefits.

Workers’ compensation is employer-funded, placing on industry the cost of the injuries it causes and providing it with an incentive to promote workplace safety. Benefits compensate a worker for a reduction in earning capacity due to an injury at a rate that is commensurate with the resulting disability. As defined in KRS 342.0011(1l)(b), a partially disabled worker remains able to work. The partial disability benefit calculation in KRS 342.730(l)(b) and (c) takes into account that some partially disabled workers like Lucy will never again be able to perform the type of work they performed at the time of their injury or to earn as much as they did at that time. Also accounting for the reality that some partially disabled workers are able to return to work and earn the same or greater wage, it encourages a return to employment by permitting such workers to collect a lesser benefit but providing for a greater benefit during periods that they are unable earn the same or greater wage.

Although the social security program is mandatory for factory workers such as Lucy, it does not include all workers who are covered by Chapter 342. Participating employers contribute to social security retirement, but it is a benefit that a worker earns and to which the worker contributes. It provides income for elderly workers without regard to disability, in an amount based on the value of the contributions to the worker’s account and the age at which the worker starts to draw benefits. Eligibility for normal benefits is based on having achieved a designated age and having made at least the minimum number of contributions. The longer an individual continues to work and contribute to their account, the greater their monthly benefit will be.

The apparent purpose of social security retirement has changed over the years. Its initial purpose was to provide income for workers over 65, who were near the end of their life expectancy. They were likely to be unable to work due to advancing age and failing health, and the benefit prevented them from becoming dependent on the public. In 2002, when KRS 342.730(4) terminated Lucy’s partial disability award, life expectancies were much longer. The Social Security Act permitted workers who were 65 or older to receive their full benefit and continue to work, thereby encouraging them to remain in the workforce. See McDowell v. Jackson Energy RECC, 84 S.W.3d at 77. Therefore, the benefit became more of a return on investment or contractual benefit than a social welfare benefit. Id.

Many individuals who have participated in the social security program now choose to work beyond the normal retirement age. Like Lucy, many must do so because their social security retirement benefit alone is inadequate for their essential needs. The principles of requiring industry rather than the public to bear the cost of industrial injuries and providing employers with an incentive to promote workplace safety apply no less to such workers than they do to workers who are ineligible for social security retirement. Equal protection demands that they be treated the same. $33.28 a week is not much compared to the $475.00 a week she earned prior to her injury; nor is it a fair substitute for her lifelong loyalty to her job and employer. Yet, it’s all she got — and KRS 342.730(4) took it away.

I dissent for Lucy Keith.

LAMBERT, C.J., and GRAVES, J., join this dissent.

      . When deposed, she testified that although her application indicated that she was bom in 1934, her birth certificate stated 1932.

      . Although the ALJ determined that the claimant was entitled to a total of two years (104 weeks) of income benefits, the sum of 76.53 and 27.57 equals 104.10. Neither party appears to have brought the discrepancy to the ALJ's attention.

      . Subsection (c) was amended effective July 14, 2000, which was shortly after the claimant’s injury. As amended, KRS 342.730(l)(c)3 recognizes the effects of education and advancing age on a worker’s post-injury earning capacity. Among other things, it provides an additional multiplier for partially disabled workers more than 50, 55, or 60 years of age.