Subsequent Injury Fund of the State of Texas (Formerly the "Second Injury Fund") v. Larry Milligan--Appeal from 74th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-224-CV

SUBSEQUENT INJURY FUND OF THE STATE OF TEXAS

(FORMERLY THE "SECOND INJURY FUND"),

Appellant

v.

LARRY MILLIGAN,

Appellee

From the 74th District Court

McLennan County, Texas

Trial Court # 92-3244-3

O P I N I O N

The Subsequent Injury Fund (Fund) appeals from a judgment awarding Larry Milligan lifetime benefits for injuries sustained while at his place of work. The Fund first argues that, statutorily, it is not liable for lifetime benefits. In point two, the Fund claims that the court erred by refusing to submit a question requiring the jury to determine if Milligan was totally and permanently incapacitated. We will affirm.

On February 17, 1987, Milligan fractured his right ankle while at work at Plantation Foods in Waco. He returned to work shortly after the accident, but in October 1987 he again injured his right ankle. The second injury was more severe and required surgery. However, the surgery was not completely successful as Milligan continued to suffer from pain and swelling in his ankle. Although able to continue working at Plantation Foods, he was limited in his ability to use his right leg, ankle, and foot.

In November 1989, Milligan's left ankle was crushed when it was caught between a fork lift and a cement wall. The combination of the injures to his right and left ankle prevented him from being able to stand or walk for any significant length of time. As a result, Milligan lost his job at Plantation Foods.

After settling his claim against the workers' compensation insurance carrier, Milligan sued the Fund to recover lifetime benefits for total incapacity arising from the combined injuries. The jury found that Milligan had suffered a permanent, total loss of use of both his right and left foot in the course of his employment. The court rendered judgment for Milligan based on the verdict, awarding him a lump-sum payment, weekly payments for the remainder of his life, and attorney's fees.

In point one, the Fund claims that the court erred in awarding Milligan lifetime benefits because the statutory scheme does not provide for such payments from the Fund. See Tex. Rev. Civ. Stat. Ann. art. 8306, 10(b), 12c, 12c-1 (Vernon Supp. 1994) (repealed 1989). // This contention has been both accepted and rejected by other courts. See Second Injury Fund v. Tomon, 853 S.W.2d 654, 658 (Tex. App. Houston [14th Dist.] 1993, writ denied) (holding that the Fund is not liable for lifetime benefits); State v. Mireles, 838 S.W.2d 285, 287 (Tex. App. Dallas 1992, writ denied) (holding that the Fund is liable for lifetime benefits). However, we will not reach the issue.

"In order to preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling he desired the court to make if the specific grounds were not apparent from the context." Tex. R. App. P. 52(a). The Fund claims that this argument was presented to the trial court in its motion for a new trial. However, we are unable to find this argument in that motion. In the motion the Fund argued, first, that Milligan failed to show a previous total loss of one ankle prior to the injury which resulted in the loss of use of the other ankle; second, that the court erred by failing to submit a jury question on total and permanent incapacity; third, that the evidence was legally and factually insufficient to support a finding of total and permanent loss of use of both legs; and, finally, that the evidence was legally and factually insufficient to support a finding of a permanent loss of use of his right ankle. None of these arguments match the claim that the court erred because the Fund cannot be liable for lifetime benefits.

"The erroneous rendition of a final judgment is not fundamental error." Young v. Hodde, 682 S.W.2d 236, 237 (Tex. 1984). The complaint concerning the judgment must first be brought to the attention of the trial court and a ruling secured. See Winters v. Arm Refining Co., Inc., 830 S.W.2d 737, 738-39 (Tex. App. Corpus Christi 1992, writ denied). The Fund failed to complain to the trial court; thus, this complaint is not preserved and point one is overruled. See Tex. R. App. P. 52(a).

In point two, the Fund argues that the court erred by failing to require the jury to determine if Milligan was totally and permanently incapacitated. Unlike point one, this point has been properly preserved by an objection lodged by the Fund prior to the reading of the charge to the jury. See Tex. R. Civ. P. 278. The Fund claims that Milligan had the burden to secure a jury finding of total and permanent incapacity before the Fund can be held liable for benefits. See Tex. Rev. Civ. Stat. Ann. art. 8306, 12c-1 (repealed 1989). As support for this position, the Fund cites to Second Injury Fund v. Keaton, 162 Tex. 250, 345 S.W.2d 711 (1961).

In Keaton, the claimant stipulated that he was partially and permanently incapacitated as a result of injuries to his legs. See id. at 713. The court stated that it was required "to determine whether or not the liability of the Second Injury Fund is to be extended to the [claimant], who has been found by the trial court to be only partially and permanently disabled as the result of general injuries." Id. at 713-14. The court concluded that "it was the intention of the legislature that before the Second Injury Fund may be held liable, the employee must establish that he has been totally and permanently incapacitated." Id. at 714. Thus, the Fund now argues that to recover benefits a claimant must secure a finding by the fact-finder that he has been totally and permanently disabled.

We do not believe that Keaton decides this issue. The Keaton court merely recognized the statutory requirements for reaching the Fund; the court did not determine the procedure to be used in establishing that the claimant met those requirements. Instead, we must look to the statutory scheme to determine how Milligan can meet his burden to prove that he was totally and permanently incapacitated. See id. at 713.

A claim against the Fund for benefits is created by section 12c-1. See id. at 714-15. This section allows a worker who has suffered a previous injury to claim benefits from the Fund when that worker "becomes permanently and totally incapacitated through the loss or loss of use of another member or organ." See Tex. Rev. Civ. Stat. Ann. art. 8306, 12c-1 (repealed 1989). The legislature listed injuries that conclusively establish permanent and total incapacity in section 11a:

Injuries constituting total and permanent incapacity. In cases of the following injuries, the incapacity shall conclusively be held to be total and permanent, to-wit:

. . .

(2) The loss of both feet at or above the ankle.

. . .

In any of the above enumerated cases it shall be considered that the total loss of the use of a member shall be equivalent to and draw the same compensation during the time of such total loss of the use thereof as for the total and permanent loss of such member.

The above enumeration is not to be taken as exclusive but in all other cases the burden of proof shall be on the claimant to prove that his injuries have resulted in permanent, total incapacity.

Id. art. 8306, 11a (repealed 1989). // Thus, a claimant has two avenues for demonstrating that he has been totally and permanently incapacitated. He must either show that his injuries are on the list of injuries that are conclusive proof of incapacitation or he must show both the injuries and a resulting permanent, total incapacity. If the injuries are on the list, the legislature has concluded that proof of the injuries alone are sufficient to demonstrate that the claimant is totally and permanently incapacitated.

At oral argument, the Fund asserted that section 11a has "historically" been applied only to instances where the claimant was injured in one devastating event. However, the Fund has not provided us with any precedent to support this assertion, and we have been unable to find case law limiting section 11a to injuries arising out of one event.

The jury determined that Milligan suffered injuries in the course of his employment that resulted in the permanent total loss of use of his right foot at the ankle and of his left foot at the ankle. These findings satisfy the requirement of section 11a(2). See id. Thus, the conclusive presumption of section 11a attached, and there was no factual issue for the jury to resolve.

Because the statute specifies that proof of the loss of use of both feet at or above the ankle conclusively establishes a total and permanent incapacity, the court did not err in refusing to submit the issue to the jury. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223 (Tex. 1992). Point two is overruled.

The judgment is affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed May 18, 1994

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