Unique Staff Leasing, Ltd., Self-Insured v. Kenley Cates, as Beneficiary of Kody Ryan Cates

Opinion filed July 29, 2016

In The

Eleventh Court of Appeals
__________

No. 11-14-00309-CV
__________

UNIQUE STAFF LEASING, LTD., SELF-INSURED, Appellant
V.
KENLEY CATES, AS BENEFICIARY OF KODY
RYAN CATES, DECEASED, Appellee

On Appeal from the 29th District Court
Palo Pinto County, Texas
Trial Court Cause No. C44659

OPINION
This is an appeal from the judicial review of an administrative decision in a
workers’ compensation case in which benefits were awarded to Kenley Cates, as
beneficiary of Kody Ryan Cates, deceased.1 Ultimately, there were two separate
jury trials in this case. In the first trial, the sole question presented to the jury was
whether Kody was intoxicated from the voluntary introduction of marihuana into his

1
We note that Kenley is a minor child but that she appeared through her parent and natural guardian,
Janeth Menchaca, and was represented by an attorney.
body when he sustained the injury that caused his death. The jury found that Kody
was not intoxicated at that time. Later, in a separate jury trial, a different jury
awarded attorney’s fees to Appellee. The trial court entered a judgment in which it
incorporated the juries’ findings from the two trials. We affirm in part and reverse
and render in part.
At the time of the accident, Kody worked for Unique Staff Leasing, Ltd., Self-
Insured, a temporary employment company that placed Kody with Northeast
Services d/b/a Horton Tree Services. Kody worked as a lineman for Northeast
Services and, at the time of the accident, was doing work for Time Warner, a client
of Northeast Services. As a lineman, Kody worked on the cables that ran between
utility poles. On the morning of the accident, Kody arrived at work and loaded the
equipment into his truck that he would need for the jobs assigned to him and his
partner for that day. Each morning that Kody went to work, he saw a fellow
employee, Chester Lewis Hess. Kody also worked in the field with Hess many times
throughout their employment with Northeast Services. On the morning of the
accident, Hess talked with Kody, went over Kody’s assignments for the day, and
discussed the materials that Kody would need.
The last job that Kody performed that day required the use of a “cherry
picker”—a utility bucket that Kody stood in while he completed his assigned task at
a height of fifteen feet. Kody failed to use his safety harness during this assignment
as required by his employer and by federal law. While Kody was in the cherry
picker, Justin Allen Plyler, his supervisor, told Kody that he was going to take a
ladder back to the truck and get a cigarette. While Plyler was at the truck, he heard
a tool that Kody was using fall to the ground. When Plyler turned toward Kody, he
saw that Kody had fallen from the cherry picker to the ground. The record is unclear
as to whether Kody was wearing his safety helmet at the time. Kody died a few days
later as a result of severe head trauma that he suffered in the fall.
2
 Just after Kody’s accident, hospital personnel performed a urinalysis, the
results of which revealed the inactive metabolite of marihuana. A blood test taken
after his death revealed similar results.
Appellee sought workers’ compensation death benefits. In a hearing at the
administrative level, the Texas Department of Insurance, Division of Workers’
Compensation, found that Kody was not intoxicated at the time of his injury. The
appeals panel affirmed the decision of the hearing officer. Appellant then filed a suit
for judicial review of the administrative decision.
At trial, Dr. Stevan Cordas testified by deposition as an expert on the issue of
intoxication. Dr. Cordas testified that the results of the blood test and urinalysis,
standing alone, did not show that Kody was intoxicated at the time of his injury.
Instead, he testified that other information, such as testimony from witnesses who
observed Kody’s behavior on the date of the accident, was necessary to determine
whether Kody was intoxicated.
Dr. Dana Brian Mirkin testified by deposition as an expert for Appellant.
Dr. Mirkin stated that, based on the blood test and urinalysis results as well as
Kody’s failure to wear his safety harness, it was his opinion that Kody was
intoxicated at the time of his injury. At one point, Dr. Mirkin agreed with Dr. Cordas
that, in addition to a positive urinalysis or blood test, other information—such as
witness statements—was necessary to determine intoxication. However, Dr. Mirkin
testified that statements by those who observed Kody that day would not change his
opinion that Kody was intoxicated at the time of his injury.
Kody’s fiancée, Janeth Menchaca, testified that she had breakfast with Kody
on the day of his injury and that she did not believe that he was intoxicated at that
time. When Kody arrived at work on the morning of his injury, Hess briefly spoke
with Kody; Hess testified that Kody’s behavior and appearance were the same as
any other morning. On the day of Kody’s accident, he worked with Plyler. The two
3
worked together in the morning and early afternoon. Plyler testified that Kody did
not smoke marihuana while on the job that day and that Kody was not away from
him for a sufficient length of time for Kody to have smoked marihuana. Plyler
testified that Kody’s performance and capabilities that day were similar to any other
day. Plyler also testified that, if he had thought that Kody was unable to complete
the assigned tasks, he would not have let Kody work with him that day.
The jury found that Kody was not intoxicated at the time of the accident. After
the jury had returned its verdict, Appellee filed an Application In Support Of
Attorney’s Fees And Request For Entry of Final Judgment. In response, Appellant
took the position that Appellee had waived her right to collect attorney’s fees. The
trial court held a hearing on whether Appellee waived her right to recover attorney’s
fees. After that hearing, the trial court ordered, and subsequently held, a separate
trial on attorney’s fees before a new jury.
The second jury awarded Appellee $41,413.22 in attorney’s fees for legal
representation in the trial court. The jury also awarded prospective attorney’s fees
in the amount of (1) $12,000 if legal representation continued through the court of
appeals, (2) $15,000 if legal representation continued at the petition-for-review stage
in the Supreme Court of Texas, and (3) $10,000 if legal representation continued and
the petition for review was granted and additional briefing or oral arguments were
requested by the Supreme Court of Texas.
Appellant raises five issues for our review. In its first issue, Appellant argues
that the evidence was legally insufficient to support the trial court’s judgment that
Kody was not intoxicated at the time of his accident. Specifically, Appellant argues
that expert testimony is required to rebut the presumption of intoxication and that
the expert testimony of Dr. Cordas was not sufficient to rebut the presumption of
intoxication. Appellant also contends that the testimony from its own expert,

4
Dr. Mirkin, conclusively established that Kody was intoxicated at the time of the
accident.
The Texas Labor Code provides that a party that seeks judicial review of an
administrative decision regarding compensability or death benefits has the burden
of proof by a preponderance of the evidence. TEX. LAB. CODE ANN. §§ 410.301(a),
410.303 (West 2015). Because Appellant lost at the administrative level and sought
judicial review of the issue of intoxication, Appellant had the burden of proof by a
preponderance of the evidence on that issue at trial. See id.
“[A] party [that] attacks the legal sufficiency of an adverse finding on an issue
on which [it] has the burden of proof . . . must demonstrate on appeal that the
evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). When we consider a legal
sufficiency challenge, we review all the evidence in the light most favorable to the
trial court’s judgment and indulge every reasonable inference in its favor. City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We credit any favorable
evidence if a reasonable factfinder could and disregard any contrary evidence unless
a reasonable factfinder could not. Id. at 827. We may sustain a no-evidence or legal
sufficiency challenge only when (1) the record discloses a complete absence 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 only evidence offered to
prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively
establishes the opposite of a vital fact. Id. at 810 (citing Robert W. Calvert, “No
Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361, 362–
63 (1960)).
Intoxication is defined in the Texas Labor Code, in relevant part, as “not
having the normal use of mental or physical faculties resulting from the voluntary
introduction into the body” of a controlled substance. LAB. § 401.013(a)(2)(B).
5
Marihuana is one such controlled substance. TEX. HEALTH & SAFETY CODE ANN.
§ 481.002(5) (West Supp. 2015), § 481.032 (West 2010); see also Adkins v. Tex.
Mut. Ins. Co., No. 04-07-00750-CV, 2008 WL 4500322, at *2 (Tex. App.––San
Antonio, Oct. 8, 2008, no pet.) (mem. op.). Under Section 401.013(c) of the Labor
Code, a rebuttable presumption arises that the employee was intoxicated if an
insurance carrier provides evidence, through a blood test or urinalysis, of the
employee’s introduction of a controlled substance into his body. LAB. § 401.013(c).
At trial, Appellant provided blood test and urinalysis results that showed the
presence of the inactive metabolite of marihuana, an indication that Kody had
marihuana in his system. Consequently, Appellee had the burden to rebut the
presumption of intoxication. See LAB. § 401.013(c); Bituminous Fire & Marine Ins.
Co. v. Ruel, No. 07-12-00507-CV, 2014 WL 2553348, *5 (Tex. App.––Amarillo
June 4, 2014, pet. denied) (mem. op.) (explaining that Ruel “rebutted the
presumption of intoxication to the satisfaction of the jury and established by a
preponderance of the evidence that he was not intoxicated at the time of the accident”
(emphasis added)); Tex. Mut. Ins. Co. v. Havard, No. 01-07-00268-CV, 2008 WL
598347, *4 (Tex. App.––Houston [1st Dist.] Mar. 6, 2008, no pet.) (mem. op.)
(finding that Havard rebutted the presumption of intoxication to the satisfaction of
the trial court and that “a reasonable fact finder could conclude that Havard was not
intoxicated at the time of his injury”).
Appellee offered both expert and lay person testimony to show that Kody was
not intoxicated at the time of the accident. Appellant argues that expert testimony is
necessary to rebut the presumption of intoxication because whether a person is
intoxicated is a complicated medical condition that is outside the common
knowledge and experience of jurors. Generally, expert testimony is required when
the testimony concerns information or knowledge outside that of an ordinary lay
person. Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982).
6
 In support of this argument, Appellant cites two cases2 in which the Supreme
Court of Texas found that expert testimony was necessary. First, in Insurance Co.
of North America v. Myers, the Supreme Court of Texas considered the necessity of
expert testimony to link an injury in the course and scope of employment to the
aggravation of an existing tumor. Ins. Co. of N. Am. v. Myers, 411 S.W.2d 710, 713–
14 (Tex. 1966). Second, in Guevara v. Ferrer, the court found that the evidence was
legally insufficient to support the $1.1 million jury finding on medical expenses
because there was not sufficient expert evidence that all the expenses were due to
injuries caused by the accident. Guevara v. Ferrer, 247 S.W.3d 662, 665, 669–70
(Tex. 2007). These cases are distinguishable from the case before us in that the
Supreme Court of Texas held that expert testimony was necessary to explain the
causation of the complicated medical condition at hand. Id.; Myers, 411 S.W.2d at
713.
Here, the question is not whether intoxication caused Kody’s injuries.
Instead, the question is simply whether Kody’s injury occurred while he was in a
state of intoxication. In Roark, the court explicitly stated that expert testimony is
required when the topic of testimony is outside the experience of laymen. Roark,
633 S.W.2d at 809. Here, in line with Section 401.013(a)(2)(B) of the Labor Code,
the trial court defined intoxication in the jury charge as “the state of not having the
normal use of mental or physical faculties resulting from the voluntary introduction
into the body of marijuana.”

2
We note that one of the other cases that Appellant cites for this argument concerns the lack of
expert testimony on the diagnosis of skull fractures and the applicable standard of care. Roark, 633 S.W.2d
at 809 (finding that “the diagnosis of skull fractures is not within the experience of the ordinary layman”).
Additionally, Appellant cites two cases that concern expert testimony in products liability suits, not medical
causation. See Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 640–43 (Tex. 2009) (finding that the expert’s
testimony in a products liability suit was legally insufficient to support the jury verdict because his theory
was not reliable); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006) (determining that expert
testimony was needed in a design defect suit to show that the alleged defect in the fuel system caused the
fire that occurred after the accident).

7
 In American Interstate Insurance Co. v. Hinson, the Beaumont Court of
Appeals explained that “normal behavior is observable[] and that non-experts are
competent to provide testimony relevant to whether a person acted normally.” Am.
Interstate Ins. v. Hinson, 172 S.W.3d 108, 117 (Tex. App.––Beaumont 2005, pet.
denied). Hinson concerned a claim for workers’ compensation benefits for an
employee that fell from a steel structure. Id. at 110. After the accident, a urinalysis
was positive for marihuana. Id. at 112. Hinson lost at the administrative level and
sought judicial review. Id. at 114. Consequently, Hinson had the burden to prove
by a preponderance of the evidence that he was not intoxicated at the time of his
injury. Id. Hinson, alone, testified in his defense, without objection to his lay
testimony, regarding his lack of intoxication. Id. at 111–12, 115. The jury found
that Hinson was not intoxicated at the time of his injury. Id. at 114. The court found
that Hinson’s lay testimony that concerned his lack of intoxication at the time of the
injury was “some evidence that he had the normal use of his physical and mental
faculties at the time of the injury.” Id. at 115. Further, the court found that the expert
testimony that Hinson was intoxicated at the time of his injury was not conclusive
and that a reasonable juror could disregard such evidence. Id. at 117, 119–20.
Consequently, the court found that the evidence, even without expert testimony that
Hinson was not intoxicated, was legally sufficient for the jury to find that Hinson
was not intoxicated at the time of his injury. Id. at 119–20.
Unlike the case before us, Hinson specifically concerned the lay testimony of
an employee who had personal knowledge of how the marihuana affected him, rather
than the lay testimony of a third-party observer, but we agree with the court’s
statement that a lay person is competent to testify to whether a person was acting
normally at the time of the injury. See id. at 117 (“We believe . . . that normal
behavior is observable, and that non-experts are competent to provide testimony
relevant to whether a person acted normally.”).
8
 The Hinson court cautioned that evidentiary problems might be an issue when
attempting to lay the predicate for observational testimony rather than testimony
based on personal knowledge. Id. at 116. However, the Hinson court stated that the
court did not need to analyze the issue of whether the proper predicate was laid
because Hinson’s testimony was admitted without objection. Id. Similarly, we need
not decide whether a proper predicate was laid because the lay testimony that
indicated that Kody had the normal use of his mental and physical faculties was
admitted without objection. See id.
Appellant argues that Hinson is distinguishable in that the court relied on the
criminal definition of intoxication because it cited and analyzed criminal cases. We
note that we have previously analyzed the definition of intoxication from both the
Texas Penal Code and the Texas Labor Code and have determined that they are
substantially the same. Powers v. Tex. Mut. Ins. Co., No. 11-08-00088-CV, 2010
WL 337144, at *1 (Tex. App.––Eastland Jan. 29, 2010, pet. denied) (mem. op.).
Additionally, Appellant argues that Hinson is not applicable because the rebuttable
presumption of intoxication was not codified at the time of the Hinson decision. We
do not agree that this change in the Labor Code affects the applicability of the Hinson
decision to the case before us.
After the rebuttable presumption of intoxication was codified in the Labor
Code, an appeals panel for the Texas Division of Workers’ Compensation
considered whether the rebuttable presumption required expert scientific or medical
evidence to sufficiently rebut the presumption. Tex. Div. Workers’ Comp., Appeal
No. 062507-s, 2007 WL 747437, at *2 (Jan. 31, 2007). The panel noted that the
addition of the rebuttable presumption to Section 401.013 of the Labor Code did not
include a requirement that the presumption be rebutted by expert evidence. Id. As
a result, the appeals panel declined to establish a requirement that expert testimony
must be used to rebut the presumption of intoxication. The panel did, however, find
9
that the lay testimony before it was not enough to rebut the presumption because it
merely consisted of the worker’s conclusory one-line statement that he was not
intoxicated at the time of the injury. Id.
The First Court of Appeals has also determined whether lay testimony could
support a jury’s finding regarding intoxication. See Dall. Nat’l Ins. Co. v. Lewis,
No. 01-10-00528-CV, 2011 WL 2436505, at *1 (Tex. App.––Houston [1st Dist.]
June 16, 2011, no pet.) (mem. op.). Lewis concerned an employee that was killed
while driving a shuttle bus. Id. The workers’ compensation appeals panel denied
compensation to Lewis, the employee’s next friend, at the administrative level, and
Lewis sought judicial review of the appeals panel’s decision. Id. As a result, Lewis
had the burden of proof. Id. at *4. The medical examiner’s results indicated that the
employee tested positive for cocaine in his system. Id. at *2. The trial court found
that the employee was not intoxicated at the time of his injury. Id. at *1. The
insurance carrier then appealed the trial court’s judgment and challenged the legal
sufficiency of the evidence. Id. at *1, 4. The insurance carrier specifically argued
that the trial court “‘incorrectly lent weight’” to the lay opinion testimony of the
employee’s coworker, who testified that the employee’s actions on the night of his
death were normal. Id. at *4. The rebuttable presumption of intoxication applied at
the time of the court’s decision in Lewis, and the court relied on Hinson and held
that the lay witness testimony of the employee’s coworker was legally sufficient to
support the jury’s verdict that the employee was not intoxicated at the time of the
accident. Id. at *4 n.2, *6.
The Amarillo Court of Appeals also noted that lay witnesses are competent to
testify as to whether a person acted normally. Ruel, 2014 WL 2553348, at *4 (noting
that Ruel’s supervisor and coworker testified that he “was fit for duty and acted
normal” and citing Lewis and Hinson for the proposition that these individuals were
competent to provide testimony as to whether Ruel acted normally).
10
 We find Hinson, and the cases that rely on Hinson, persuasive. As a result,
we hold that expert testimony is not required to rebut the presumption of intoxication
under Section 401.013(c) of the Texas Labor Code. We agree with the Hinson court
that lay witnesses are competent to testify as to whether an individual acted
“normally” based on the witnesses’ observations. Our holding, however, should not
be construed to opine one way or the other that lay witnesses are competent to testify
as to whether an individual is intoxicated by marihuana or any other specific
controlled substance. The evidence that is necessary to show that a person is acting
normally, or is not intoxicated, is quite different than the evidence that is required to
prove that a person is intoxicated.
Although expert testimony may not be required, it was presented in this case;
therefore, it is necessary for us to review Appellant’s specific contentions regarding
the deficiency of Dr. Cordas’s testimony. Appellant argues that Dr. Cordas’s
testimony is contradictory because, at the beginning of his testimony, he stated that
he could not provide an opinion as to whether Kody was intoxicated at the time of
his injury, but then through a hypothetical, he provided the opinion that, if the
presumed information was true, Kody was not intoxicated. We do not believe that
the testimony of Dr. Cordas was contradictory.
The fact that Dr. Cordas gave an opinion based on hypothetical information
does not mean that Dr. Cordas provided contradictory testimony. Rather, his opinion
was developed through the use of a hypothetical question as is permitted when
questioning an expert witness. In addition, here, the expert testimony did not bind
the jury. See TEX. R. EVID. 703; E.I. du Pont de Nemours & Co. v. Robinson, 923
S.W.2d 549, 562 (Tex. 1995); see also City of Keller, 168 S.W.3d at 820 (“Even
uncontroverted expert testimony does not bind jurors unless the subject matter is one
for experts alone.”). Moreover, the jury, as the sole judge of the credibility of the

11
witnesses, was free to believe all or part of a witness’s testimony. City of Keller,
168 S.W.3d at 819.
In addition to Dr. Codas’s expert testimony that Kody was not intoxicated,
Appellee also presented lay witness testimony to show that Kody was not intoxicated
at the time of his injury. Menchaca testified that she was with him the entire
weekend prior to his injury. She explained that the couple spent the weekend
relaxing with family and friends. On Monday, she was not sure whether Kody went
to work, but she recalled having dinner with him that night. Kody’s accident
occurred on Tuesday. On Tuesday morning, Kody had breakfast with Menchaca,
and she testified that, to her knowledge, he was not “high” at that time.
Hess, an employee of Northeast Services and the cousin of Kody’s father,
testified that, when Kody arrived at work on the date of the accident, he spoke with
Kody for a brief period. He testified that Kody did not seem any different that day
than he had seemed any other day.
Plyler, Kody’s supervisor, testified that Kody worked jobs alongside him
throughout the day. Plyler testified that he worked with Kody on a daily basis and
that he knew Kody outside of work as well. Plyler had been around people that had
used marihuana, and he had used marihuana himself. Plyler knew of Kody’s
marihuana usage but had not used marihuana with him. Plyler testified that he could
recognize when someone had used marihuana and when they had not. He testified
that, during the day, Kody did not seem clumsy and did not have trouble
remembering how to complete work-related tasks. Kody worked just like he had on
any other day. Further, he testified that, unquestionably, he believed that Kody had
not used marihuana on the date of his injury. Plyler based this testimony on his
knowledge of Kody and his working with Kody daily for over a year.
Plyler also testified that he had seen Kody the night before his injury. Kody
came to Plyler’s home to have his hair cut by Plyler’s wife. Plyler testified that
12
Kody’s behavior that night was normal, that Kody did not appear to have smoked
marihuana prior to his arrival, and that Kody did not smoke marihuana at Plyler’s
house.
Appellant argues that Plyler’s testimony was not sufficient to rebut the
presumption of intoxication. Specifically, Appellant argues that Plyler testified that
Kody’s actions and behavior were “normal” on the date of his injury but that Plyler
also testified that Kody acted abnormally by not wearing his safety equipment.
However, several individuals, including Plyler, testified that, while it may be
unsafe to fail to wear the safety harness, they had all done so on occasion. Hess and
Thomas “Joe” Hoschar, another employee of Northeast Services, both explained that
the harness often gets in the way of the job, especially quick jobs similar to that
which Kody was performing on the date of his injury. Hoschar, Hess, and Plyler
further testified that, when they had failed to wear their safety gear, they were not
intoxicated. Additionally, Plyler agreed that the location of this job was perfect to
go up into the cherry picker without the fear of being caught by a Time Warner
representative for not wearing the safety harness.
Appellant further argues that Plyler’s testimony was insufficient to rebut the
presumption of intoxication because Plyler testified that the signs that he recognized
in individuals that had smoked marihuana were their silly actions and bloodshot
eyes. While these may be the only signs Plyler could describe as symptoms of
marihuana intoxication, Plyler also testified as to how Kody acted on the day he was
injured. From his observations, Plyler testified that Kody had the same behavior and
abilities as Kody had any other day. The jury, as the sole judge of the credibility of
the witnesses, was free to believe all or part of Plyler’s testimony, as well as the
testimony by other lay witnesses. City of Keller, 168 S.W.3d at 819.
Additionally, Appellant argues that the evidence was legally insufficient to
show that Kody was not intoxicated because Dr. Mirkin’s testimony conclusively
13
established that Kody was intoxicated at the time of his injury. We disagree.
“Evidence is conclusive only if reasonable people could not differ in their
conclusions, a matter that depends on the facts of each case.” Id. at 816 (footnote
omitted). Under a legal sufficiency review, we are required to disregard Dr. Mirkin’s
testimony unless reasonable jurors could not. See id. at 827; see also Hinson, 172
S.W.3d at 117.
Neither Dr. Cordas nor Dr. Mirkin defined “normal” use of mental or physical
faculties. As a result, the jury “was free to determine what would constitute normal”
for Kody. See Hinson, 172 S.W.3d at 117 (“Dr. Kurt did not define ‘normal’ use of
mental faculties. In absence of any scientific evidence conclusively establishing
normal use, the jury was free to determine what would constitute normal use in
Hinson’s case.”). Although, at one point, Dr. Mirkin agreed with Dr. Cordas that
the blood test and urinalysis results, standing alone, do not show that Kody was
intoxicated at the time of his injury, Dr. Mirkin later testified that witness statements
would not change his opinion that Kody was intoxicated at the time of his injury.
He agreed that other information, such as “witnesses, [and] other evidence, based
around the accident,” should be used to determine whether Kody had the normal use
of his mental and physical faculties at the time of his injury.
Dr. Mirkin testified that, in his expert opinion, Kody was intoxicated at the
time of his injury because marihuana was present in his system and because Kody
failed to use his safety harness. Dr. Mirkin testified that Kody’s failure to wear his
safety harness was the only performance deficit that Dr. Mirkin relied on to form his
opinion. Further, Dr. Mirkin testified that he would base his opinion on this deficit
in performance even if Kody had failed to use his safety harness on previous
occasions.
Additionally, contrary to his prior testimony that witness statements should
be considered to determine intoxication at the time of the injury, Dr. Mirkin testified
14
that the statements from other individuals that observed and interacted with Kody
on the date of his injury would not change Dr. Mirkin’s opinion that Kody was
intoxicated at the time of his injury. Despite testimony by other individuals who
indicated that the failure to wear the safety harness was not necessarily an
uncommon practice for individuals in this field, and despite Hess, Hoschar, and
Plyler testifying that they were not intoxicated at the times that they failed to use
their safety harnesses while on the job, Dr. Mirkin opined that Kody’s failure to use
his harness showed that he was intoxicated.
In opposition to Dr. Mirkin’s testimony, Dr. Cordas testified that, if other
individuals that knew Kody well and had observed him complete difficult tasks
testified that Kody seemed “normal” on the day of his injury, it would suggest that
Kody was not intoxicated at the time of his injury. As we have noted, Plyler and
Hess, two individuals that often observed and worked with Kody, testified that he
seemed “normal” on the date of his injury and that there was nothing unusual about
his behavior that day. We find that a reasonable jury could have disregarded
Dr. Mirkin’s testimony that Kody’s failure to use his safety harness was an
indication of intoxication and, instead, accepted, and found credible, the testimony
of Dr. Cordas and the individuals that worked in the same field as Kody that the
failure could simply have resulted from a desire to get the job done quickly.
We hold that Dr. Mirkin’s scientific and expert testimony in this case did not
conclusively show that Kody did not have the normal use of his mental and physical
faculties at the time of his injury. Consequently, we further hold that, based on the
testimony of Dr. Cordas, in addition to the testimony of lay witnesses, the evidence
was legally sufficient to support the jury’s verdict that Kody was not intoxicated at
the time of his accident. As a result, we overrule Appellant’s first issue.
In its second issue, Appellant argues that the evidence is factually insufficient
to support the jury’s verdict that Kody was not intoxicated at the time of the accident.
15
In reviewing a factual sufficiency challenge, we consider all of the evidence and
uphold the finding unless it is so against the overwhelming weight of the evidence
as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Several witnesses accounted for Kody’s time, actions, and behavior on the
day of and the days leading up to his injury. Menchaca testified that Kody was with
family all weekend prior to the accident that occurred on a Tuesday. On Monday,
Menchaca could not remember if Kody worked, but she testified that they had dinner
together and that he went to Plyler’s house to get a haircut. Plyler testified that Kody
came to Plyler’s house for a haircut on the night before the accident, stayed
approximately an hour, and did not seem like he had smoked marihuana prior to his
arrival.
On the morning of his injury, Kody had breakfast with Menchaca, and she
testified that he was not “high” at that time. When Kody arrived at work, he spoke
with Hess, who testified that Kody’s behavior was not out of the ordinary. While at
work, Kody worked alongside Plyler, who testified that Kody acted normally and
did not have trouble doing his job. Plyler testified that the specific signs of
marihuana intoxication that he knew about were that the person would act silly and
have bloodshot eyes.
But Plyler and Hoschar also testified that it was out of character for Kody to
fail to wear his safety harness. However, several witnesses, including Plyler,
testified that they had failed to wear the required safety harnesses and that their
failure to do so was not due to intoxication.
Dr. Cordas testified that, if other individuals who knew Kody and observed
his behavior stated that he seemed normal on the day of the accident, then that would
suggest, with a reasonable degree of medical certainty, that Kody was not intoxicated
at the time of the accident. Both Dr. Cordas and Dr. Mirkin agree that the presence
of the inactive marihuana metabolite indicates past use of marihuana and that it can
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show up in a urinalysis for weeks after use. There is no indication in the record as
to when the use of marihuana occurred.
Dr. Mirkin testified that, based on the positive drug screen and the fact that
Kody failed to wear his safety harness, Kody was intoxicated at the time of his injury.
Dr. Mirkin initially testified that other witness testimony should be used to determine
if an individual is intoxicated at the time of injury. However, Dr. Mirkin later
testified that any statements by witnesses that observed Kody on the date of the
accident would not change his opinion that Kody was intoxicated at the time of his
injury.
We hold that the jury’s verdict was not against the great weight and
preponderance of the evidence. Each expert provided competing opinions regarding
whether Kody was intoxicated, and the lay witnesses provided competent testimony
that Kody was acting normally on the day of the accident. This is not a case in which
the jury’s finding is so against the overwhelming weight of the evidence as to be
clearly wrong and unjust. See Cain, 709 S.W.2d at 176. Consequently, we overrule
Appellant’s second issue.
In its third issue, Appellant argues that the trial court erred when it awarded
attorney’s fees to Appellee because Appellee waived her right to recover them.
Appellant bases its argument on Appellee’s failure to provide evidence of attorney’s
fees and Appellee’s failure to request that the trial court submit a question to the jury
on attorney’s fees at the original trial on the merits. We agree with Appellant’s
argument.
In her answer, Appellee requested the recovery of attorney’s fees upon a
verdict in her favor. Generally, attorney’s fees are not recoverable absent an
agreement between the parties or a statute that provides otherwise. Tony Gullo
Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310–11 (Tex. 2006). Under Section
408.221(c) of the Texas Labor Code, a claimant is entitled to recover attorney’s fees
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upon a favorable verdict at the trial court level when an insurance carrier seeks
judicial review of the administrative decision. LAB. § 408.221(c).
In Transcontinental Insurance Co. v. Crump, the Supreme Court of Texas
held that the “insurance carrier is entitled to have a jury determine” the
reasonableness and necessity of disputed attorney’s fees recoverable under
Section 408.221(c) of the Texas Labor Code. Transcon. Ins. Co. v. Crump, 330
S.W.3d 211, 232 (Tex. 2010). The party that requests attorney’s fees has the burden
to prove the reasonableness and necessity of those fees. See Stewart Title Guar.
Co. v. Sterling, 822 S.W.2d 1, 10–11 (Tex. 1991).
Rule 279 of the Texas Rules of Civil Procedure provides that a ground of
recovery is waived when no element of the ground of recovery is submitted to the
jury. TEX. R. CIV. P. 279. Moreover, it is the responsibility of the party with the
burden of proof on a ground of recovery to request that the issue be submitted to the
jury. See id.; see also Cannon v. Sun-Key Oil Co., 117 S.W.3d 416, 422 (Tex.
App.—Eastland 2003, pet. denied).
Appellee did not request that the trial court submit a jury question on
attorney’s fees in the trial on Kody’s intoxication. In fact, Appellee did not present
any evidence of attorney’s fees in the first trial. Instead, Appellee submitted a post-
verdict motion in which she requested attorney’s fees and requested that the trial
court enter judgment on the jury verdict.
Appellee relies on several cases to support the proposition that the proper
appellate remedy is remand, not waiver, where the party with the burden of proof on
attorney’s fees fails to present evidence and fails to request the submission of a
question on attorney’s fees to the jury. Thus, we believe Appellee’s argument to be
that, because the trial court ordered a separate jury trial on the issue of attorney’s
fees, this court should affirm the trial court’s award of attorney’s fees. However, the
cases upon which Appellee relies are not applicable here.
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 First, Appellee relies on a case with similar facts to those before us,
Commerce & Industry Insurance Co. v. Ferguson-Stewart, in which the First Court
of Appeals remanded the attorney’s fees issue to the trial court for a separate jury
trial. Commerce & Indus. Ins. Co. v. Ferguson-Stewart, 339 S.W.3d 744, 748–49
(Tex. App.—Houston [1st Dist.] 2011, no pet.). In Ferguson-Stewart, the claimant
did not provide evidence or request the submission of a question on attorney’s fees
to the jury. Id. at 748. Instead, the claimant, in a post-trial motion, requested that
the trial court award attorney’s fees. Id. The First Court of Appeals found that
remand was appropriate. Id. at 748–49. However, when the trial court awarded
attorney’s fees, the Supreme Court of Texas had yet to decide Transcontinental
Insurance Co. v. Crump. See id. at 748 (“CIIC relies on Transcontinental Insurance
Co. v. Crump, decided after the conclusion of trial in this case . . . .”). Prior to the
decision of the Supreme Court of Texas in Crump, it was unclear whether the jury
or the trial court should decide the reasonableness and necessity of attorney’s fees
under Section 408.221(c). Crump, 330 S.W.3d at 229 (finding ambiguous the statute
that permits attorney’s fees under the Texas Labor Code). The Ferguson-Stewart
court noted that “[t]he supreme court’s analysis in Crump shows that its conclusion
was not an obvious one.” Ferguson-Stewart, 339 S.W.3d at 749. Consequently,
because Crump was available to the court of appeals but not to the trial court and
because the claimant attempted to pursue her right to recover attorney’s fees, the
court in Ferguson-Stewart found that remand was the appropriate remedy. Id. at
748–49. Here, the parties and the trial court had the benefit of Crump prior to the
first jury trial. Therefore, under Crump, Appellee should have presented evidence
of and requested a jury question on the issue of attorney’s fees at the first trial.
Second, Appellee relies on Discover Property & Casualty Insurance Co. v.
Tate, in which the claimant failed to request the submission of a jury question on
attorney’s fees. Discover Prop. & Cas. Ins. Co. v. Tate, 298 S.W.3d 249, 251–52
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(Tex. App.—San Antonio 2009, pet. denied). Again, however, the trial court’s
judgment in Tate came prior to the decision of the Supreme Court of Texas in
Crump. Because the law was unsettled as to whether a jury or the trial court should
determine the reasonable amount of attorney’s fees under Section 408.221(c), and
“in the interest of justice,” the San Antonio Court of Appeals found that remand was
the appropriate remedy. Tate, 298 S.W.3d at 257 (“Tate [did not] waive[] his claim
for fees by not submitting a jury issue on fees or objecting to its omission. Instead,
in the interest of justice, we remand for a new trial on the amount of attorney’s
fees.”).
Finally, Appellee argues that a case cited by Appellant in its brief, Z.A.O.,
Inc. v. Yarbrough Drive Center Joint Venture, supports her claim that she did not
waive her right to recover attorney’s fees. Z.A.O., Inc. v. Yarbrough Drive Ctr. Joint
Venture, 50 S.W.3d 531 (Tex. App.––El Paso 2001, no pet.). However, Z.A.O. is
distinguishable from the case before us as well. In Z.A.O., the prevailing party
prevailed in a contract dispute. Id. at 550. The problem in Z.A.O. was that the
prevailing party failed to segregate the amount of attorney’s fees between its tort and
contract causes of action. Id. Because the prevailing party was not entitled to
recover attorney’s fees on its tort cause of action, the court remanded the attorney’s
fees issue. Id. at 550–51.
We find that these cases do not support Appellee’s argument. Additionally,
we have previously found that a party waives its right to recover attorney’s fees when
it fails to put on evidence of attorney’s fees and fails to request the trial court to
submit a question on attorney’s fees to the jury. Fuqua v. Oncor Elec. Delivery Co.,
315 S.W.3d 552, 560 (Tex. App.––Eastland 2010, pet. denied) (holding that Oncor’s
request for the trial judge, rather than the jury, to determine the reasonableness of its
attorney’s fees and the failure to submit the question of attorney’s fees to the jury
resulted in a waiver of Oncor’s claim for the recovery of attorney’s fees).
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Consequently, we hold that, under Rule 279, Appellee waived her right to recover
attorney’s fees.
Although prior to Crump, it may have been routine for a claimant to request
recovery of attorney’s fees in a post-trial motion, Crump clarified the insurance
carrier’s right to a jury determination of the reasonableness and necessity of
attorney’s fees. See Crump, 330 S.W.3d at 232. Because this case was tried
approximately three years after the decision in Crump, we do not find that justice
requires affirmance of the trial court’s award of attorney’s fees after a second,
separate jury trial on this issue. We sustain Appellant’s third issue.
Appellant’s fourth issue concerns whether the trial court erred when it ordered
a separate trial on attorney’s fees. Appellant’s fifth issue concerns whether the trial
court erred when it granted Appellee attorney’s fees for the time spent seeking
attorney’s fees. Because we have held that Appellee has waived her right to recover
attorney’s fees, we do not reach Appellant’s fourth and fifth issues. See TEX. R.
APP. P. 47.1.
We reverse the trial court’s judgment as it relates to the award of attorney’s
fees, and we render judgment that Appellee take nothing as to her claim for
attorney’s fees. In all other respects, we affirm the judgment of the trial court.

JIM R. WRIGHT
CHIEF JUSTICE

July 29, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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