Court of Appeals of Texas, Houston (14th Dist.).

James N. RICHEY, Appellant,

v.

HUGHES TOOL COMPANY, Appellee.

No. 14-96-00465-CV.

|

Feb. 5, 1998.

Panel consists of Justices LEE, AMIDEI, and ANDERSON.

OPINION

NORMAN LEE, Justice.

*1 Appellant, James N. Richey, appeals from a take-nothing judgment in his suit for wrongful discharge in which he claimed his employer fired him in retaliation for filing a workers’ compensation claim, a violation of former art. 8307c, Tex.Rev.Civ. Stat. Ann. (repealed) [codified without substantive change at Tex. Lab.Code Ann. §§ 451.001-.003 (Vernon 1996), and referred to as the Anti-Retaliation Law]. Appellant brings two points of error, contending the trial court erred in excluding his worker’s compensation claim file and that the jury’s verdict is against the great weight and preponderance of the evidence. We affirm.

Appellant was a long-term employee of appellee, Hughes Tool Company (now known as Hughes Christensen Company). As part of his duties as a tool room leader, he assigned work to be done by other tool room employees. On November 16, 1990, appellant assigned a job to a co-worker, Scott Havers, and a fight erupted between the two men. Appellant was injured, and the on-site human resource supervisor, Liz Ramirez, advised him he could go to the company doctor or see a doctor of his own choice. Appellant indicated to Ramirez and his supervisor, Walter Tucker, that he preferred to see his own doctor. Both appellant and Havers were sent home after the fight and suspended pending an investigation of the incident. On Monday, November 19, 1990, appellee’s personnel manager interviewed other employees and decided to terminate both appellant and Havers. On November 21, 1990, appellee filed the Employer’s First Report of Injury (E-1), which instituted appellant’s compensation claim. Also on that day, appellant’s supervisor notified appellant he was terminated.

In this suit, appellant contends he was fired because he elected to see a doctor of his own choice. Appellant and his former co-workers in the tool room testified at trial. There was conflicting evidence as to who started the fight, but appellant maintained he only acted to defend himself. Evidence at trial showed that the company had a long-standing policy of terminating employees who participate in fights. The jury found that appellant was not discharged in violation of the Anti-Retaliation Law. This appeal followed.

In his first point of error, appellant asserts the trial court abused its discretion in excluding from evidence a certified copy of appellant’s Texas Workers’ Compensation Commission (TWCC) claim file. The file shows appellant received a favorable award from the TWCC. Appellee objected on several grounds, including relevance and hearsay, and asserted the file should be excluded because of its potential for confusion and prejudice. After determining the file was inadmissible, the trial court advised appellant it could be used for impeachment.

Exclusion of evidence is left to the sound discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). For the exclusion of evidence to constitute reversible error, an appellant must show (1) that the trial court committed error, and (2) that the error probably caused rendition of an improper judgment. McCraw v. Maris, 828 S.W.2d 756, 757 (Tex.1992); Tex.R.App.P. 44.1(a)(1). A person seeking to reverse a judgment based on evidentiary error need not prove that but for the error a different judgment would necessarily have been rendered, but only that the error probably resulted in the rendition of an improper judgment. Alvarado, 897 S.W.2d at 753; McCraw, 828 S.W.2d at 758. In making this determination, we review the entire record. Alvarado, 897 S.W.2d at 754; McCraw, 828 S.W.2d at 758.

*2 Appellant contends his claim file is directly probative of the essential elements of his cause of action under the Anti-Retaliation Law, which provides in relevant part as follows:

A person may not discharge or in any manner discriminate against an employee because the employee has:

(1) filed a workers’ compensation claim in good faith;

(2) hired a lawyer to represent the employee in a claim;

(3) instituted or caused to be instituted in good faith a proceeding under Subtitle A; or

(4) testified or is about to testify in a proceeding under Subtitle A.

Tex. Lab.Code Ann. § 451.001 (Vernon 1996).

Appellant first argues the file was necessary to show he had filed a claim. However, the E-1, the Employer’s First Report of Injury filed by appellee, was introduced into evidence. Charles Hoose, appellee’s personnel manager during these events, testified that the E-1 is the “document that goes to the Workers’ Compensation Commission to institute the workers’ compensation proceedings.” In addition, there was testimony from Donna Murphy, a former claims representative, regarding her administration of appellant’s claim.

Furthermore, appellant was not required to “file” a claim before bringing his suit. The Act prohibits discrimination for “instituting” a proceeding. The Anti-Retaliation Law can apply when an employee is fired before filing his claim. See Palmer v. Miller Brewing Co., 852 S.W.2d 57, 60-61 (Tex.App.-Fort Worth 1993, writ denied); Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 80 (Tex.App.-Dallas 1986, no writ) (the plaintiff’s statement he had suffered an on-the-job injury and he was going to see a doctor were sufficient to “institute a proceeding”).¹ Appellant testified he informed appellee of his injuries and that he wanted to see his own doctor instead of the company doctor.

Appellant also argues the fact that he received an award is unbiased evidence he filed his claim in good faith. In addition, appellee argues the file shows that the TWCC rejected appellee’s argument that appellant was an active participant in the fight. To be entitled to benefits, the employee must show that the injury was sustained in the course and scope of employment. Tex. Lab.Code Ann. § 406.031(a)(2) (Vernon 1996); see also former Tex.Rev.Civ. Stat. Ann. art. 8309 § 1. An employee who suffers injuries from fighting on the job is generally not entitled to workers’ compensation benefits. Kurtz v. Liberty Mut. Ins. Co., 572 S.W.2d 766, 768 (Tex.Civ.App.-Waco 1978, no writ). However, when an employee is injured in a fight over the manner in which the work is to be done, the injury is compensable. See, e.g., U.S. Cas. Co. v. Henry, 367 S.W.2d 405, 407 (Tex.Civ.App.-Waco 1963, writ ref’d n.r.e.). Thus, the decision to award compensation concerned whether the fight between appellant and Havers arose out of their employment.

*3 Appellant also asserts the file shows that appellee only reluctantly assisted appellant in filing his claim because it waited five days after the fight to submit the claim. As appellee timely filed the E-1, this contention is without merit. See Tex. Lab.Code Ann. § 409.005 (Vernon 1996) (formerly Tex.Rev.Civ. Stat. Ann. art. 8307 § 7) (requiring a report within eight days after an employee misses more than one day of work). We also reject appellant’s contention that the fact that appellee’s carrier contested the claim is probative of the reason behind appellee’s decision to terminate appellant. Employers are permitted under the Texas Workers’ Compensation Act to contest the compensability of claims, and such evidence is not probative of discrimination. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452 (Tex.1996).

Appellee argues the file was properly excluded because it contains hearsay. Appellant contends the file is admissible as an exception to hearsay as a public record or report. See Tex.R.Civ.Evid. 803(8). The public records exception to the hearsay rule does not mean that ex parte statements, hearsay, opinions, and conclusions contained in the records are admissible, however. Mary Lee Found. v. Texas Employment Comm’n, 817 S.W.2d 725, 728 (Tex.App.-Texarkana 1991, writ denied). Among other matters, the claim file contains copies of letters and medical records including hearsay statements by appellant’s physicians, the insurance carrier and attorneys. Appellant tendered the entire file and never offered to redact objectionable portions of it.

Appellee relies primarily on two cases to support its contention that the claim file was inadmissible. First, in Castro v. U.S. Natural Resources, Inc., 880 S.W.2d 62, 66-67 (Tex.App.-San Antonio 1994, writ denied), the court held that general information about workers’ compensation benefits is inadmissible in a suit against a third party tortfeasor because it is immaterial. Despite the court’s reference to “a suit against a third party tortfeasor,” the court applied the rule in a suit against an employer for retaliatory discharge for filing a compensation claim. See id. Recently, this court also confronted the exclusion of testimony from the discharged worker about his compensation award in a suit brought under the Anti-Retaliation Law. Johnson v. City of Houston, 928 S.W.2d 251, 254 (Tex.App.-Houston [14th Dist.] 1996, no writ). This court agreed that evidence of a compensation award is irrelevant in a suit for wrongful discharge. Id. at 255. We follow these precedents and conclude that evidence of a compensation award is inadmissible in an anti-retaliation suit.

While early cases considered the admissibility of this type of evidence in the context of a suit against a third party for liability for injuries, we find the same potential for confusion of the jury exists here. Evidence of an award by an agency which considered a different issue than the one presented here would result in unfair prejudice and confusion. See Tex.R.Civ.Evid. 403. The nature of appellant’s claim for compensation benefits and his suit for wrongful termination are so different that a jury could only have been confused by being informed of the award. See Myers v. Thomas, 143 Tex. 502, 506-07, 186 S.W.2d 811, 813 (1945). Any probative value evidence of an award may have would be more than offset by the misleading effect on the jury. See id.

*4 For these reasons, we conclude the trial court did not abuse its discretion in refusing to admit appellant’s TWCC claim file and overrule point of error one.

In his second point of error, appellant argues that the jury’s negative answer to question one on liability is so against the great weight and preponderance of the evidence as to be manifestly unjust. The jury found that appellee did not discharge appellant in violation of the Anti-Retaliation Law.

When a party complains of the jury’s failure to find a fact, we may reverse only when the great weight of the evidence supports an affirmative answer. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988); see also Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 647 (Tex.1988) (holding that court of appeals has authority to review jury’s “failure to find” in same manner as it reviews jury findings). In reviewing a factual sufficiency complaint, we must first examine all of the evidence. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). Having considered and weighed all of the evidence, we should set aside the verdict only if the evidence is so weak, or the finding is so against the great weight and preponderance of the evidence, that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In re King’s Estate, 150 Tex. 662, 664, 244 S.W.2d 660, 661 (1951). Because this court is not a fact finder, we may not review the credibility of the witnesses or substitute our judgment for the trier of fact. Winkle v. Tullos, 917 S.W.2d 304, 318 (Tex.App.-Houston [14th Dist.] 1996, writ denied).

An employee can recover damages for retaliatory discharge under the Workers’ Compensation Act only if he proves that without his filing a workers’ compensation claim, the discharge would not have occurred when it did. See Texas Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 633-37 (Tex.1995); Cazarez, 937 S.W.2d at 450. Uniform enforcement of a reasonable absence-control provision does not constitute retaliatory discharge. Texas Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313 (Tex.1994) (per curiam). When an employer has enforced the rule uniformly, and the employee violated it, then the employee could not have been terminated in violation of the Anti-Retaliation Law. Cazarez, 937 S.W.2d at 451.

Similarly, in this case, appellee’s uniform enforcement of its rule against fighting on the premises controverts appellant’s claim that his termination would not have occurred when it did but for his decision to see his own doctor. Appellee’s “Standards of Conduct” provide that fighting on company premises “constitutes grounds for suspension and/or discharge for first offense.” The rules further provide that fighting is a “Class A” offense which can result in “[i]mmediate discharge without prior warning.” The rules do not provide an exception for an employee who participates in a fight while defending himself. Several witnesses testified that these rules were posted on the company bulletin board and that every employee who had been found to be an active participant in a fight on the premises had been terminated. Thus, the evidence established appellee uniformly enforced its policy against fighting.

*5 On the Monday morning following the fight, Charles Hoose began an investigation of the fight. He interviewed both participants and all the witnesses to the fight, and he obtained written statements from most witnesses and appellant. Havers did not provide a written statement. There was testimony that both men were active participants in the fight. One witness, Gerald Skotak, testified he saw appellant lunge toward Havers and grab his throat in a “choke hold.” Both men punched each other as they rolled on the floor. Havers described how appellant “latched” onto him, grabbing him by the throat and pushing him over the mill table. Because appellant and Havers each blamed the other for starting the fight, Hoose relied primarily on the account given by Skotak, an independent witness. Hoose testified he could not determine who started the fight, but he found that both men were at fault. He testified that his decision to terminate appellant’s employment was based solely on his conclusion appellant was an active participant in the fight in violation of company policy.

Appellant argues that the fact that the decision to terminate him was made the same day he would have started losing time from work as a result of his injuries constituted evidence of appellee’s improper motive. Appellee, however, provided evidence of previous incidents of compensation claims with lost time from work for long periods without termination, including one employee on long-term disability since 1990. Appellant admitted he had filed previous compensation claims and continued to receive regular promotions and pay increases. In addition, appellant complains that Havers’ previous suspension was a factor in his termination, but appellant had no history of rule violations and was nevertheless terminated. The company policy provided, however, that an employee could be fired for fighting after the first offense, and appellee was not required to give consideration to his performance record.

There was disputed testimony about the cause of the fight and who instigated it. Havers testified appellant started the fight, but appellant testified that Havers was angry because he was aware of appellant’s involvement in a two-day suspension that ended the day of the fight. Havers denied knowing appellant had been involved in the suspension, and he and other workers testified Havers was not angry before the fight. Walter Tucker testified however, that appellant teased Havers about his suspension shortly before the fight began. Appellant testified Havers screamed that he would kill appellant, but no other witnesses heard the threat. Appellant also testified Havers kicked him in the groin, but no one else saw the kick. Medical records confirmed appellant had a groin injury. Gary Tristan, a tool room leader, testified Skotak had to pull Havers off appellant. Skotak agreed he had to “bear-hug” Havers when he separated the two men. There was also testimony that one of appellant’s superiors, Tucker, had loaned money to Havers for an outside business venture with two other co-workers. Tucker did not make the decision to terminate appellant, and Havers was also terminated. Hoose, who made the termination decision, testified he was not aware of any outside business relationship between the workers. It was within the jury’s province to resolve these credibility issues. Presented with all of this conflicting evidence, the jury could disbelieve any witness and resolve inconsistencies in the testimony. See McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986).

*6 In conclusion, while there is some evidence in the record to support appellant’s contention that he was defending himself, the record does not contain overwhelming evidence that appellant was discharged for initiating compensation proceedings. We hold the jury’s verdict is not against the great weight and preponderance of the evidence. Accordingly, we overrule point of error two.

We affirm the judgment of the court below.

	Footnotes
1		Appellant argues that the jury was obviously confused because it questioned during deliberations when appellant filed his claim. Any confusion by the jury may have resulted from the fact that the decision to terminate appellant was made before the claim was filed and the jury was not instructed that retaliation can occur before a claim is actually filed. See Hunt, 711 S.W.2d at 80.