Court of Appeals of Texas, Amarillo.

LONG JOHN SILVER’S, INC., a Subsidiary of Jerrico, Inc. and Long John Silver’s, Inc., a Subsidiary of Long John Silver’s Restaurants, Appellant,

v.

Sharon Yaskin ROGERS, Appellee.

No. 07-96-0325-CV.

|

Dec. 22, 1997.

Before BOYD, C.J., DODSON and QUINN, JJ.

OPINION

CARLTON B. DODSON, Justice.

*1 This is an appeal from a bench trial, concerning a worker’s compensation case, involving Sharon Yaskin Rogers (appellee) and her prior employer, Long John Silver’s, Inc., a Subsidiary of Jerrico, Inc., and a subsidiary of Long John Silver’s Restaurants (appellant). The trial court found appellant negligent and awarded damages to appellee. By three points of error, appellant claims the evidence is legally and factually insufficient to support the trial court’s judgment. We affirm.

The points of error raised by appellant are as follows: 1) the trial court erred in finding that Rogers’ injury was proximately caused by the negligence of Long John Silver’s, Inc. because the court improperly applied the applicable law and the evidence was legally and/or factually insufficient to support the finding; 2) the trial court erred in finding that on December 2, 1990, Rogers sustained an injury while in the course and scope of her employment with Long John Silver’s, Inc. because the evidence was legally and/or factually insufficient to support the finding; and 3) the trial court erred in finding that, as a proximate result of Long John Silver’s negligence, Rogers incurred reasonable and necessary past medical expenses in the amount of $5,423.00 because the evidence was legally and/or factually insufficient to support the finding. We disagree.

In February 1990, appellee was hired by appellant as an administrative assistant to the regional vice president, and was an office manager and secretarial supervisor in appellant’s Houston office. In October 1990, appellee received a memorandum giving notice that the office was being closed and moved to Dallas, and the personnel would be laid off. The memo also requested the personnel to remain with the company and assist in the move. On Sunday, December 9, 1990, appellee participated in the actual moving of furniture and boxes onto a moving truck for the final move to Dallas. The next day, appellee began feeling a pain in her neck and was later diagnosed with a herniated cervical disk. Appellee sued appellant for the injury she sustained while helping appellant with the December 9th move. Appellant is a non-subscriber to the Texas Workers Compensation system.

After a bench trial was held on January 30 and 31, 1995, the court found that appellant was negligent, which proximately caused appellee’s injuries. The court awarded damages which included $5,423.00 in past medical bills. The judgment was rendered on March 10, 1995, and on March 20, 1995, the court filed Findings of Fact and Conclusions of Law.

The trial court made the following findings of fact: 1) at all relevant times, Long John Silver’s, Inc. was a “non-subscriber” under the Texas Worker’s Compensation statutes; 2) on December 9, 1990, Rogers sustained an injury while in the course and scope of her employment with Long John Silver’s, Inc.; 3) the negligence of Rogers, if any, was not the sole proximate cause of her December 9, 1990 injury; 4) Rogers’ December 9, 1990 injury was proximately caused by the negligence of Long John Silver’s, Inc.; 5) such negligence consisted of Long John Silver’s, Inc.’s a) failure to provide equipment to load boxes; b) instructing Rogers to load boxes manually; and c) failing to provide manpower to assist Rogers in the task of loading boxes.

*2 The trial court further found the following damages: 6) As a result of her December 9, 1990 accident, Rogers incurred reasonable and necessary past medical expenses in the amount of $5,423.00; 7) Rogers will incur reasonable and necessary future medical expenses, as a result of her December 9, 1990 accident, in the amount of $24,000.00; 8) Rogers is entitled to an award for pain and suffering and mental anguish sustained in the past, in the amount of $10,000.00; 9) Rogers is entitled to an award for pain and suffering and mental anguish to be sustained in the future, in the amount of $10,000.00; 10) Rogers is entitled to an award for impairment in the past, in the amount of $10,000.00; 11) Rogers is entitled to an award for future impairment, in the amount of $10,000.00; 12) Rogers is entitled to an award for disfigurement, in the amount of $500.00; 13) Rogers is entitled to an award of pre and post-judgment interest at the applicable legal rate; and 14) Long John Silver’s, Inc. has previously paid medical benefits to and/or on behalf of Rogers in the amount of $5,949.09 and is entitled to a credit in that amount.

The trial court made the following conclusions of law: 1) Long John Silver’s, Inc., as a non-subscriber to the Texas Workers’ Compensation system, is not entitled to assert the defense of comparative responsibility and/or contributory negligence; 2) Rogers is entitled to judgment against Long John Silver’s, Inc., in the amount of $63,973.91. The trial court’s final conclusion stated that all findings of fact herein are also considered conclusions of law.

In point of error one, appellant asserts that the trial court erred in finding that appellee’s injury was proximately caused by the negligence of appellant. Appellant asserts that the evidence is legally and/or factually insufficient to support this finding.¹ We disagree.

We will review the applicable law regarding this point of error. In reviewing a legal insufficiency point, we must look at the record in the light most favorable to the finding to see if any probative evidence or any reasonable inferences therefrom support the finding, while at the same time disregarding all evidence or reasonable inferences therefrom to the contrary. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981). In reviewing a factual insufficiency point, we must look at the entire record to determine if probative evidence exists to support the finding. If it does, we must determine whether the evidence is so weak or the answer so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust to support the finding. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

We also must review the applicable law regarding proximate cause. In Texas, proximate cause consists of two concepts: 1) cause-in-fact (i.e., a cause which produces an event without which the events would not have occurred); and 2) foreseeability (i.e., that a person of ordinary intelligence should have foreseen that the injurious event in question or a similar one could have occurred as a result of his action). Westinghouse Supply Co. v. Page & Wirtz Const., 647 S.W.2d 44, 48 (Tex.App.-Amarillo 1982, writ ref’d n.r.e.) Generally, the question of whether an act of negligence was a proximate cause of the consequences presents an issue for determination by the fact finder. Priest v. Myers, 598 S.W.2d 359, 362 (Tex.Civ.App.-Houston [14th Dist.] 1980, no writ). However, where the evidence is without material dispute and where only one reasonable inference may be drawn therefrom, a question of law is presented. Id.

*3 In the present case, we will first determine legal sufficiency of the challenged finding. The appellant argues the trial court made the following erroneous findings in regard to appellant’s negligence: 1) requiring appellant to lift, carry, and move heavy objects without proper aid, assistance, and/or equipment; 2) failing to adequately train Rogers in the duties she was to perform; and 3) failing to provide adequate manpower to assist Rogers in the task of loading heavy boxes, office furniture, and equipment.²

Appellant contends that appellee refused to utilize the aid and assistance available to her in response to the court’s finding that appellant failed to provide equipment to load boxes. Appellant argues that there was assistance available to appellee in the form of a dolly and manpower. Appellant further argues that appellee chose to lift boxes without asking for assistance. When the dolly was being used, appellee chose to go ahead and move the boxes without it. The equipment and manpower that was present was adequate. Appellant argues, in the alternative, that if the equipment and manpower available was inadequate, appellant had no actual or constructive knowledge of the deficient assistance. Appellant further argues that the items to be loaded were minor and that appellee never complained that the work was too hard for her.

Appellant relies on Cabrera v. Delta Brands, Inc., 538 S.W.2d 795 (Tex.App.-Texarkana 1976, writ ref’d n.r.e.) and Western Union Telegraph Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977 (Tex.1947) for its contention that the evidence was legally insufficient to support the finding that appellant was negligent. Both of these cases deal with non-subscribers and both held that as a non-subscriber, the employer cannot assert the defenses of contributory negligence and assumption of the risk. Appellant, in its brief, asserts the court in Cabrera relied on the following rule: “[t]he employer is not liable when he has provided help and injury results from the act of the employee in voluntarily proceeding to do the work without assistance.” The quote further states, “[t]he same is true when sufficient help is nearby and available and the employee does the work alone without seeking or asking for assistance.” Cabrera v. Delta Brands, Inc., 538 S.W.2d 795 at 798. We have reviewed the Cabrera case and do not agree that the case was decided on the rule stated by appellant.

The court in Cabrera merely acknowledges that the employer argues this rule as set out in Western Union Telegraph Co., but the court in Cabrera determines the real issues before the court are duty and reasonable foreseeability. The court further found the employer negligent, which was the proximate cause of the employee’s injury. Cabrera v. Delta Brands, Inc., 538 S.W.2d at 799. In Western Union Telegraph Co., the court did not believe that the testimony had been fully developed regarding the negligence of the employer and remanded the case back for a new trial for that purpose. Western Union Telegraph Co. v. Coker, 204 S.W.2d at 980. We do not consider these cases to be controlling in the case before us.

*4 Our review of the evidence taken in the light most favorable to appellee reveals appellee was employed by appellant during the time period that appellant was relocating from Houston to Dallas. Appellee received a memo from appellant instructing her to remain and assist in the move. Appellee participated in packing boxes and organizing the office in preparation for the move as instructed by appellant. Appellee, on December 9, 1990, was present at the final loading of boxes, office furniture, and equipment onto a moving truck. Appellee lifted and moved heavy boxes onto the moving truck. Appellee also lifted some furniture. Appellee did not receive any instructions from appellant telling her not to move heavy items.

Appellant could have reasonably foreseen that appellee would be lifting heavy boxes. Appellant provided one dolly for the use of three people. All three people would be moving different items from different locations continuously until the move was completed. Appellant could have reasonably foreseen that the one dolly would not be adequate for the amount of work to be done by three people. The moving truck being used by appellant did not have any type of hydraulic lift to aid in the lifting of the boxes. Appellee lifted the boxes onto the truck and then stacked them inside, sometimes over her head.

Appellant had a duty to its employee to provide a safe workplace including adequate aid for completing his or her task. Cabrera v. Delta Brands, Inc. 538 S.W.2d at 799. Appellant wanted to use office help in preparing for the move and wanted appellee to be a participant in the move. There was sufficient evidence to charge appellant with a duty to provide adequate equipment to aid appellee in moving heavy boxes. Appellant negligently failed to provide such help and this negligence proximately caused appellee’s injury. In applying the appropriate standard to this record, we conclude there was some evidence of probative force to support the findings of the court. Therefore, appellant’s legal sufficiency challenge is overruled.

Next, we consider the factual sufficiency challenge raised by appellant. Appellant claims the evidence to support the trial court’s finding was factually insufficient and argues the same facts used in its argument regarding legal insufficiency. Appellant contends there was adequate manpower on the day of the move, appellee chose to move boxes without asking for assistance, and equipment in the form of a dolly was available to her. The items to be loaded were minor and appellee never complained about the work being too hard for her.

Appellee argues the evidence was sufficient to support the trial court’s finding of negligence based on inadequate aid in the form of equipment and relies on the fact that appellant was required to train appellee in the moving of heavy boxes. Appellant acknowledged that appellee was in charge of office furniture, supplies, and equipment. Appellant testified at trial that appellee was responsible for the boxes which contained the office supplies and equipment. Appellee testified it was her understanding that she was expected to lift and move items in assisting appellant’s move. Appellee also testified that she was instructed to assist in the move by the memorandum she received from appellant. Appellee further argues that she was inexperienced in lifting and moving boxes, furniture, and equipment. Appellee lifted and moved heavy and bulky boxes. Appellee testified that during the move, she did something improperly, which resulted in injury to her neck.

*5 In our review of all the evidence, we conclude that there is some evidence which supports the finding of the trial court that appellant was negligent in requiring appellee to lift, carry, and move heavy objects without proper aid, assistance, and/or equipment. The trial court, as the fact finder, had the opportunity to observe witnesses, to evaluate their credibility and assign the weight to be given their testimony. We conclude the challenged finding is not so against the great weight of the evidence to be clearly wrong and manifestly unjust. Appellant’s factual sufficiency challenge regarding the trial court’s finding of negligence on the part of appellant, because appellant failed to provide proper assistance and/or equipment, is overruled.

Appellant next argues that the assistance was adequate. Appellant relies on the same facts relied upon above. Appellant relies on the case, Werner v. Colwell, 909 S.W.2d 866 (Tex.1995), in arguing that it is the employee’s burden to show that the employer required the employee to load objects when there was an inadequate work force. We have already made the determination that the court’s finding that appellant was negligent because it failed to provide proper aid and assistance in the form of equipment, was supported by the evidence. Then we also must determine that the assistance provided by appellant was inadequate. Therefore, we conclude that appellant’s contention the assistance provided appellee was adequate is overruled.

Because we have determined the trial court’s finding that appellant was negligent for failing to provide proper aid to appellee in moving the boxes, and its negligence was a proximate cause of appellee’s injury, we need not address appellant’s contentions that the trial court erred in finding that appellant failed to provide manpower to assist appellee in the task of loading boxes. We also need not address appellant’s argument that appellee was not required to lift, carry, or move heavy objects since we already addressed this issue in our conclusion above. Accordingly, appellant’s point of error one is overruled.

In its second point of error, appellant challenges the trial court’s finding that appellee’s injury was sustained in the course and scope of her employment. Appellant challenges this finding based on legal and/or factual insufficiency. We disagree.

Appellant relies on the following facts. On the day of the move, appellee assisted in the lifting of a coat closet, which was an item she bought from appellant for her personal use. She assisted in loading the item in a vehicle used by her personally. Appellant further argues that appellee cannot point to a specific object she was lifting or activity she was doing when she sustained her injury. Appellant contends that if her injury was sustained from lifting personal items, then the injury did not occur during the course and scope of her employment.

Appellee states that she did not load anything heavy onto the truck that was there for her personal use. Assuming arguendo, if appellee did load something heavy onto her personal vehicle, it was still in the course and scope of her employment because she was furthering the employer’s efforts to have the premises vacated.

*6 Our review of the record shows that during the move, appellee suffered pain as a result of helping appellant move. She testified that while moving on the 9th day of December, something in her mind said, “Whoops, you shouldn’t have done that.” She also testified that the very next day after the move, she felt pain in her neck. Appellee further testified that when she helped move items of a personal nature, she only moved a lightweight, swivel chair. She did not testify to feeling any pain after moving the chair. We conclude that there was sufficient evidence, legally and factually, to support the trial court’s finding that the injury was sustained during the course and scope of her employment. Consequently, appellant’s second point of error is overruled.

Appellant, in its third point of error, contends the trial court erred in finding that appellee incurred reasonable and necessary past medical expenses in the amount of $5,423.00 because the evidence was legally and/or factually insufficient. Again, we disagree.

Appellant argues that the evidence showed that appellee had sought medical treatment for neck problems and pain well before the injury the subject of this suit. Appellee had been struck by her brother twenty days after December 9, 1990. Appellant also argues that appellee failed to prove that the medical treatment appellee received was necessary. Appellant supports this contention by the fact that at time of trial, appellee introduced medical bills which did not show that the medical treatment was reasonably necessary nor did they prove the cost of the treatment was reasonable. Appellant relies on an excerpt from the business record affidavit given by Karen Evans, an employee of Dr. Guy Clifton, who testified on behalf of appellee. The excerpt is as follows:

Are you familiar with the amount usually and customarily charged for medical services reflected in the bills for the examination and/or treatment of Sharon Yaskin Rogers, DOB: 1-4-52, SSN: XXX-XX-XXXX pertinent to December 27, 1990 and all subsequent treatments?

Answer: Yes

Appellant contends that the burden to prove the medical services rendered were reasonably necessary, reasonable in amount, and causally related to the injury, is on the appellee. Kulms v. Jenkins, 557 S.W.2d 149, 154 (Tex.App.-Amarillo 1977, writ ref’d n.r.e.); Dallas Railway & Terminal Co. v. Gossett, 156 Tex. 252, 294 S.W.2d 377, 381-383 (Tex.1956); Dallas Railway & Terminal Co. v. Ector, 131 Tex. 505, 116 S.W.2d 683, 685 (Tex.1938).

Appellee contends that the evidence received from Dr. Guy Clifton, through his videotaped deposition, showed appellee had a herniated disk which was a result of the move on December 9, 1990. He also testified that the surgical procedures performed on appellee for the injury she sustained from the December 9, 1990 move were necessary. Our review of the record shows that, in addition to Dr. Guy’s videotaped deposition regarding the necessity of appellee’s medical treatment, the following question was asked the affiant for the business record’s affidavit regarding reasonable expense:

*7 Are such charges reasonable for like or similar services rendered in Harris County, Texas?

Answer: Yes

We, therefore, conclude that there was some evidence of probative force to support the trial court’s finding that appellee had incurred past medical expenses of $5,423.00. We also conclude the challenged finding is not so against the great weight of the evidence to be clearly wrong and manifestly unjust. Appellant’s third point of error is overruled.

In sum, we conclude points of error one, two, and three are overruled. Accordingly, judgment is affirmed.

	Footnotes
1		Appellant also challenged the finding based on the trial court improperly applying the applicable law, but appellant failed to address this challenge in its brief. Therefore, our review of this point of error is limited to the legal and factual sufficiency challenge.
2		In our review of the trial court’s findings of fact, we are unable to locate where the court made the finding that appellant failed to adequately train appellee in the duties she was to perform. Therefore, the court does not address appellant’s stated challenge to this finding by the trial court because no such finding was made.