Court of Appeals of Texas, El Paso.

Armida MACIAS and Manuel Macias, Individually and as Next Friends of Manuel Roberto Macias, and Victoria Iglecias Leon (Chaffino), Individually, Appellants,

v.

MEDTRONIC, INC., Appellee.

No. 08-98-00302-CV.

|

July 13, 2000.

Before BARAJAS, C.J., McCLURE, and CHEW, JJ.

OPINION

CHEW

*1 The Maciases’ appeal a take-nothing judgment rendered in favor of Medtronic in a products liability action. The sole issue is whether the trial court erred in failing to grant a mistrial because Medtronic violated a motion in limine and introduced evidence of collateral sources of payment to Armida Macias.

Mrs. Macias suffered a work-related injury in May of 1990 to her left hand. She experienced severe chronic pain in her left arm. Numerous treatment regimes were tried to no avail and, at one point, Mrs. Macias raised the possibility of amputating the arm. Ultimately, Dr. Lynn Neill, an anesthesiologist, suggested a spinal cord stimulator. Mrs. Macias was first treated with a temporary “lead” to judge whether the treatment would be beneficial. On October 17, 1992, Mrs. Macias underwent surgery to implant a permanent stimulator. Immediately after the surgery, Mrs. Macias reported that she was unable to move any of her body. Though she has made some improvements through physical therapy, she continues to need daily catheterization and she is unable to walk on her own, but must use a walker or crutches.

The Maciases contend that the trial court erred in failing to grant a mistrial after Appellee violated a motion in limine and introduced prejudicial evidence concerning workers’ compensation benefits, thus violating the collateral source rule. The testimony in question was given by Dr. Katz, a psychiatrist who treated Mrs. Macias for depression and other mental health issues. During cross-examination, Appellee’s attorney asked Dr. Katz about his appointment to the Workers’ Compensation Board. He continued the questioning and asked Dr. Katz about billing procedures, specifically confirming that when a doctor billed workers’ compensation for an employee’s injury, the doctor had “better be sure” that the treatment was for a work-related injury. At this point, Appellee’s counsel asked Dr. Katz about treatment he provided Mrs. Macias from April of 1994 to August of 1994. This treatment had been billed to workers’ compensation. Dr. Katz stated that Mrs. Macias’ was covered by workers’ compensation due to the initial accident, and that her subsequent treatments related to the initial claim and were covered as well. No objection was made during this exchange; it was lodged much later, after Dr. Katz had been dismissed, some sixty pages later in the record. Despite the late objection, the trial court agreed to strike Dr. Katz’s testimony as to the workers’ compensation issue, and gave the jury an instruction to disregard the testimony concerning worker’s compensation billing and benefits. The Appellants’ counsel mentioned a possible motion for a mistrial, but the trial court stated on the record it would deny that motion.

We pause to note Medtronics’ contention that the Maciases failed to perserved any error for our review because they failed to make a timely objection. Since the trial judge ultimately sustained the objection and gave the jury an instruction to disregard any testimony from Dr. Katz that referred to workers’ compensation, we are hard-pressed to conclude that the motion for mistrial was too late in coming. See Biard Oil Co. v. St. Louis Southwestern Ry. Co, 522 S.W.2d 588, 590-91 (Tex.Civ.App.-Tyler, 1975, no writ). Consequently, we will find that the issue is properly preserved for our review.

*2 The Maciases contend that the injection of the workers’ compensation payments were a violation of the collateral source rule, and that the testimony of Dr. Katz was so damaging that notwithstanding the jury instruction to disregard that testimony a mistrial was warranted. Appellee argues that the testimony was admissible because it pointed out an inconsistency in Dr. Katz’s position that all of Mrs. Macias’ psychiatric treatment was attributable to injuries received as a result of her surgery.

As a general rule, testimony about the receipt of workers’ compensation benefits is not admissible in a suit against a third-party tortfeasor because it is immaterial and may confuse the jury. See Macias v. Ramos, 917 S.W.2d 371, 374 (Tex.App.-San Antonio 1996, no writ); J.R. Beadel & Co. v. De La Garza, 690 S.W.2d 71, 74 (Tex.App.-Dallas 1985, writ ref’d n.r.e.). There is, however, an exception when a witness gives testimony inconsistent with the receipt of benefits. See Mundy v. Shippers, Inc., 783 S.W.2d 743, 745 (Tex.App.-Houston [14th Dist.] 1990, writ denied); De La Garza, 690 S.W.2d at 74. Here, Dr. Katz attributed Mrs. Macias’ psychiatric problems to the bungled surgery, yet he had billed workers’ compensation for some of the treatment.

We first note that a trial court’s denial of a motion for mistrial is ordinarily reviewed under an abuse of discretion standard. See Till v. Thomas, 10 S.W.3d 730, 734 (Tex.App.-Houston [1st Dist.] 1999, no pet.); In Re M.R., 896 S .W.2d 97, 107 (Tex.App.-Fort Worth 1992), writ denied, 858 S.W.2d 365 (Tex.1993). That standard is of special import here, because, from our reading of the record, we believe that it is arguable that the evidence stricken by the trial court was admissible for impeachment purposes. The testimony pointed out an inconsistancy in Dr. Katz’s position that all of Mrs. Macias’ psychiatric treatment was attributable to the injuries received as a result of her surgery. See De La Garza, 690 S.W.2d at 74. But just because a trial court decides a matter within its discretion differently than an appellate court would in a similar circumstance does not demonstrate that an abuse of discretion occurred. See McDaniel v. Yarbrough, 898 S.W.2d 251, 254 (Tex.1995). And since we are not convinced that the evidence was inadmissible, it would be incompatible to say that the trial court’s instructions to the jury to disregard the testimony could not cure any improper impression that might have been given the jurors. Moreover, the fact that the appellants did not immediately object to the mention of workers’ compensation negates their present contention that the questions and evidence offered were so prejudicial that mere asking or tender requires reversal.

Finally, the Supreme Court has stated that error in admitting evidence will not require reversal unless that evidence controlled the judgment. See Gee v. Liberty Mutual Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989); see also Hill v. Heritage Resources, Inc., 964 S.W.2d 89, 136 (Tex.App.-El Paso 1997, pet. denied). If other competent evidence of the fact in question appears in the record, improper admission of evidence will not constitute reversible error. See Gee, 702 S.W.2d at 397; Hill, 964 S.W .2d at 136. Thus, evidentiary rulings will not cause reversal unless the appellants demonstrate that the whole case turns on the evidence improperly admitted or excluded. See Superior Derrick Servs., Inc. v. Anderson, 831 S.W.2d 868, 876 (Tex.App.-Houston [14th Dist.] 1992, writ denied); Shenandoah Assoc. v. J & K Properties, Inc., 741 S.W.2d 470, 493 (Tex.App.-Dallas 1987, writ denied).

*3 Appellants contend that the workers’ compensation evidence convinced the jury that the Maciases need not be fully compensated for their damages because they were already the beneficiaries of workers’ compensation payments. They further contend that the jury must have inferred from the workers’ compensation evidence that the Maciases had settled with other defendants such as physicians, and thus, did not need further compensation from Medtronic.

The jury only heard testimony concerning workers’ compensation benefits in connection with Armida Macias’ psychiatric treatment. Appellants do not demonstrate how this testimony would affect the damage awards for the other plaintiffs. Additionally, there is no evidence in the record that the jury heard any evidence or comment about any settlement the Maciases may have negotiated with other defendants, and there is no attempt to explain how we could come to a conclusion that the introduction of evidence of workers’ compensation payments led the jury to believe that the Maciases had been fully compensated by other defendants. If the jury had been so influenced, it would not have awarded the Maciases $1,115,000.

We overrule Issue One and affirm the judgment of the trial court.