Albert Betts Jr., Wade Caven Crosnoe, Thompson Coe Cousins & Irons, L. P., Austin, TX, for Amicus Curiae Insurance Council of Texas. We hold that: (1) the treating physician's opinion was based on a reliable foundation and, therefore, legally sufficient evidence supports the jury's verdict; (2) the trial court's omission of the but-for component in the jury charge constitutes reversible error; and (3) an insurance carrier is entitled to have a jury determine the disputed amount of reasonable and necessary attorney's fees for which it is liable. Although I agree the trial court erred by giving a definition of "producing cause" that did not include a "but for" element, I respectfully disagree with part of section III of the Court's opinion.
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A contested case hearing officer found that the May 2000 injury resulted in Crump's death and awarded death benefits. Because this is an appeal of a Workers' Compensation Commission award of death benefits, Transcontinental acknowledges that it had the burden to prove that the May 2000 injury was not a producing cause of Crump's death. The trial court asked the jury whether Crump's injury was a producing cause of his death, but to properly allocate the burden of proof, the court instructed the jury to answer "yes" unless they found by a preponderance of the evidence that the answer should be "no." In answering "yes," the jury thus failed to find that Crump's injury did not cause his death. The factfinder may consider, but is not bound by, the appeals panel's decision. In reviewing fees awarded in this situation, we have "held that the amount of the attorney's fees to be allowed in compensation cases is a matter for the trial court to determine without the aid of a jury, and the amount , 849 (1953) ("The amount of attorney's fees to be allowed in a compensation case is exclusively for the court and not the jury, and any such [contingency-fee] contract was made subject to the approval by the court. While we have not previously examined the fee-shifting provision in subsection (c), we have discussed similar fee-shifting provisions in other cases. We reasoned that, from the plain language of the statute, "the trial judge decides whether to award attorney's fees under the Act." Id. But we immediately noted that "section 552.323 does not dictate how to determine the attorney's fees amount, except that the award must be `reasonable.' In general, the reasonableness of statutory attorney's fees is a jury , 21 (Tex.1998), which involved attorney's fee awards under the Declaratory Judgment Act. In any proceeding under the Act, "the court may award costs and reasonable and necessary attorney's fees as are equitable and just." Bocquet, 972 S. The Court's desire to deal with the "substantial factor" question is understandable; it is important.
In 2002, the workers' compensation appeals panel affirmed the hearing officer's benefits award. CODE §§ 410.301-.308 (providing for, and limiting scope of, judicial review of a death benefits award). At trial, Transcontinental offered the testimony of Dr. Hunt reviewed Crump's medical records and testified that the May 2000 injury was not a producing cause of Crump's death, and that his death would have occurred without the work-related injury. John Daller, one of Crump's treating physicians, who testified that the May 2000 injury was a producing cause of Crump's death. On appeal, Transcontinental asserts that it conclusively established the lack of causality and is therefore entitled to judgment in its favor as a matter of law. Crump had had [sic] a renal transplant approximately 25 years prior, I believe. The method of review that [the Labor Code] provides is known as modified de novo review.") (citations omitted). Hinds, , 637 (Tex.1995) (finding harmful error where a jury instruction stated the standard of causation incorrectly and the evidence was "vigorously and convincingly disputed"); John Carlo Tex., Inc., 843 S. 278 ("Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment."). We hold that the definition of producing cause approved in Ledesmaa substantial factor in bringing about the injury or death and without which the injury or death would not have occurredapplies in workers' compensation cases. § 408.221(a), and must consider several factors in doing so, id. The insurance carrier can only be said to pay these fees in the technical sense that it drafts a separate check for the attorney's fees, payable directly to the claimant's attorney. The court in his discretion could award a lesser amount.")). But, as discussed below, those cases do not address subsection (c), which was not enacted until decades later. Here, the insurance carrier pays the claimant's "reasonable and necessary attorney's fees" for representing the claimant on judicial review in the courts when the carrier is unsuccessful on an issue it appealed from the Division of Workers' Compensation. "In general, the reasonableness of statutory attorney's fees is a jury question." City of Garland v. Nevertheless, given the record before us, I would not address the issue.
After a series of increasingly serious health complications which required repeated, lengthy hospitalizations, Crump died in January 2001 at age forty-three. Finding the court of appeals' categorization of the issues useful, we address each in turn. Co., , 516-17 (Tex.2007) (discussing the avenues of judicial review). In this situation, the claimant's attorney's fees are not limited to 25% of the claimant's recovery, but only by reasonableness and necessity. Prior to 2001, the only attorney's fee award mechanism was the one in subsection (b), described in the paragraph above, where the claimant always pays his own attorney's fees regardless of the outcome of the carrier's appeal. Applying that general rule here, we conclude that the carrier is entitled to submit the issue of the reasonableness and necessity of a claimant's attorney's fees, where disputed, to a jury, which will consider subsection (d)'s factors. It requested the following definition: "`Producing Cause' means that cause which in a natural and continuous sequence, produces death, and without which, the death would not have occurred." (Tex. De La Lastra, , 920-21 (Tex.1993) (appellate argument that maritime law preempted state law was not preserved because of failure to bring issue to trial court's attention, despite assertion that law changed during appellate process). The terms of worker's compensation insurance policies include provisions of the worker's compensation statutes. ("The provisions of the Workmen's Compensation Law become part of the contracts executed pursuant to it by those who bring themselves within the scope of its operation."). Because employees covered by worker's compensation are denied their common law right to sue their employers for work-related injuries, the worker's compensation statutes are construed liberally in favor of the worker. A liberal interpretation will award him the greatest benefits the nature of his injuries will sustain.") (citations omitted); Lumberman's Reciprocal Ass'n v.