Court of Appeals of Texas, Houston (1st Dist.).

Gerardo GARZA, Appellant

v.

TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellee.

No. 01-90-00133-CV

|

May 23, 1991.

Before SAM BASS, O’CONNOR and WILSON, JJ.

SAM BASS, Justice.

O P I N I O N

*1 This is an appeal from a take-nothing verdict. The appellant received a back injury, and filed a claim with the Industrial Accident Board. The appellee, the workers’ compensation carrier, filed its appeal from the Board award, and a trial was held. The jury found that the appellant had sustained an injury in the course of his employment, however, that injury was not a producing cause of either total or partial incapacity.

We reverse and remand.

This suit is on an injury that the appellant sustained on January 14, 1987. The evidence showed that the appellant suffered two back injuries in 1982 necessitating surgery and time off from work. The appellant subsequently returned to work and experienced back pain from 1982 to 1987.

On January 14, 1987, the appellant was working as a pipe fitter at the Phillips 66 plant in Old Ocean, Texas. While performing his duties, the appellant felt a sharp pain in his back when he bent down to pick up a part while straddling a pipe. The appellant saw Dr. Hester, who prescribed physical therapy. After the appellant had missed approximately two weeks of work, Dr. Hester allowed him to return to work with no restrictions.

In February 1987, the appellant experienced pain in his leg while climbing a tower. He then saw several doctors. A Dr. Christensen eventually released the appellant to work with some restrictions and stated that the appellant had recovered from the January 1987 injury.

After listening to the appellant and witnesses and experts for both sides, the jury found that the appellant had suffered an injury on January 14th. However, the jury also found that the injury was not a producing cause of any total or partial incapacity. The trial court entered judgment that the appellant take nothing from the appellee.

In his third point of error, the appellant complains that the trial court excluded testimony of Dr. DeYoung concerning: (1) whether the appellant suffered an injury on January 14th; (2) whether the appellant was totally incapacitated; (3) whether the appellant’s injury was a producing cause of any total incapacity; and (4) the duration of the appellant’s incapacity.

The trial court excluded Dr. DeYoung’s testimony concerning total incapacity and producing cause. The doctor testified to the following:

Q: And, Doctor, I would like you to assume for me the following definitions of total incapacity. Total incapacity does not imply absolute inability to perform any kind of labor but means that one is disabled from performing the usual tasks of a workman, not merely the usual tasks of any particular trade or occupation to such an extent that he cannot get and keep employment.

Do you understand that definition —

A: Yes.

Q: — Doctor, as I recited it?

Doctor, do you have an opinion as to whether Mr. Garza is totally incapacitated?

*2 A: Yes.

Q: And what is that opinion?

A: That he is totally incapacitated as far as his ability to perform heavy work such as being a pipe fitter.

Q: Thank you, Doctor. And, Doctor, the final definition that I would ask you is regarding producing cause. Producing cause means injury or condition which either independently or together with one or more injuries or conditions results in incapacity and without which such incapacity would not have occurred when it did.

Do you understand that definition?

. . . .

A: Yes.

Q: And what is that opinion, Doctor?

A: I felt that he had —

Q: I’m sorry. I didn’t ask the question.

First of all, you answered that you had an opinion as far as Mr. Garza being totally incapacitated, and do you have an opinion as to whether the injury that Mr. Garza suffered on or about January the 14th was a producing cause of that incapacity?

A: Yes, I do.

Q: And what is that opinion?

A: I feel that the injury caused the incapacity.

The appellant then tendered and offered the deposition testimony into evidence. The trial court refused the tender. The appellant argues on appeal that the trial court erred because experts can give their opinion on mixed questions of law and fact.

An expert witness may state an opinion on a question of law and fact if the opinion is confined to relevant issues and if it is based on proper legal concepts. Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361, 365 (Tex. 1987). Before an expert can give an opinion, a predicate must be laid showing that he was familiar with the proper legal definition. E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d 63, 65 (Tex. App.–Texarkana 1990, writ denied).

The jury charge defined producing cause as:

[a]n efficient, exciting, or contributing cause from an injury or condition which, in a natural sequence, produces incapacity and without which cause such incapacity would not have occurred when it did. There may be more than one producing cause of incapacity, but there can be only one sole cause of incapacity. If GERARDO GARZA’s incapacity, if any, is solely caused by preexisting conditions of his body or any prior injury, independent of and not aggravated by his injury of January 14, 1987, if any, then his injury, if any, of January 14, 1987, cannot be a producing cause of any incapacity.

The appellee argues that although an expert may testify on mixed questions of law and fact, an expert may not do so where such testimony is unfairly prejudicial. Louder v. DeLeon, 754 S.W.2d 148, 149 (Tex.1988); TEX.R.CIV.EVID. 403. According to the appellee, the evidence is extremely prejudicial because: (1) of the value the jury may place on the expert’s background and education; and (2) the appellant relied on definitions used in the standard workers’ compensation jury charge in questioning Dr. DeYoung. Therefore, the appellee admits that the definitions given to Dr. DeYoung were based on proper legal concepts.

*3 According to Birchfield, rule 704 of the rules of evidence requires that the expert opinion be based on proper legal concepts. Birchfield, 747 S.W.2d at 365; TEX. R. CIV. EVID. 704. Telling the expert the proper legal definition of the terms and determining if he understands those definitions lays a predicate to demonstrate that the opinion is based on proper legal concepts. See E-Z Mart, 794 S.W.2d at 65. There is no merit to the appellee’s assertion that the testimony is highly prejudicial and should be excluded.

Nor is the error in excluding the testimony harmless. The medical evidence was confusing, technical, and gave no clear indication of the cause of the appellant’s back problems. In addition, this was the only evidence that directly linked the injury to compensable damages. Therefore, Dr. DeYoung’s testimony was relevant, and the error was harmful.

The point of error is sustained. The evidence was relevant, based on proper legal concepts, and the error was not harmless.

The appellant also complains of the trial court’s exclusion of Dr. DeYoung’s opinion on whether the appellant suffered an injury on January 14, 1987. However, the jury found that the appellant had sustained an injury on that date. Therefore, while it was error to exclude this testimony, it was harmless.

Furthermore, the appellant claims that the trial court erred in excluding testimony concerning the duration of the appellant’s alleged incapacity. This evidence was not a part of the appellant’s bill of exceptions, nor was it excluded from the jury. The jury heard that the appellant’s alleged incapacity may be lifelong. There is no error.

Since we have sustained the appellant’s third point of error, we need not reach his remaining points. The judgment of the trial court is reversed, and the case remanded for a new trial.

Do not publish. TEX. R. APP. P. 90.