Court of Appeals of Texas, El Paso.
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, Appellant,
v.
Helaine BYRD, Appellee.
No. 08-00-00177-CV.
|
Aug. 16, 2001.
OPINION
McCLURE.
*1 The Insurance Company of the State of Pennsylvania appeals from a final judgment in a worker’s compensation case following a jury verdict in favor of Helaine Byrd. We affirm.
PROCEDURAL HISTORY
Helaine Byrd filed a worker’s compensation claim on March 6, 1997, alleging she sustained a compensable injury to her back on July 11, 1996. The Company denied the claim in its entirety. The following issues were submitted to a Texas Workers’ Compensation Commission (TWCC) hearing officer:
• whether Byrd sustained a compensable injury on July 11, 1996;
• whether the Company was relieved of liability because of Byrd’s failure to timely notify her employer, Bridgestone/Firestone, Inc. (Firestone) of any injury; and
• whether Byrd had a disability.
The hearing officer determined that Byrd had not proven she sustained a compensable injury on July 11, 1996, and therefore did not have a disability from the injury. He also found she had good cause for her failure to notify Firestone not later than the thirtieth day after the injury. The TWCC Appeals Panel affirmed the decision of the hearing officer. The Company filed suit alleging it had been aggrieved by the conclusion that Byrd had good cause for failure to timely notify Firestone of the injury.
During pretrial discovery, the Company served Byrd with certain discovery requests, including written interrogatories and a request for disclosure seeking the identity of all expert witnesses she intended to call at trial. Byrd did not designate any expert witnesses but responded that she would supplement. Because she failed to do so, Dr. Manuel Moreno was not listed as either an expert witness or as a person with knowledge of relevant facts. However, on March 25, 1999, Byrd served the Company with an affidavit proving up Dr. Moreno’s medical records, which consisted of twenty-seven pages. The Company argued its motion in limine prior to opening statements and acknowledged it had obtained Dr. Moreno’s records after Byrd disclosed in her deposition that she had seen him for treatment. Additionally, the Company’s attorney was told at the pretrial conference that Dr. Moreno would testify at trial. Byrd’s counsel explained that Dr. Moreno was not designated as an expert witness because her volunteer legal assistant prepared the responses “and then disappeared out of my life, and it just was an administrative glitch.”
The trial court allowed Dr. Moreno to testify, finding that the Company was not surprised and stating it was the court’s policy to allow both parties to present their evidence. The Company requested a continuance based upon its not having been afforded an opportunity to depose Dr. Moreno. The court denied the motion, ruled Dr. Moreno’s testimony would be limited to the opinions contained in his report, and that the Company could depose him during the evening of the first day of trial. The record does not indicate whether the deposition took place.
UNDISCLOSED WITNESS
*2 In Issue One, the Company argues the trial court abused its discretion in allowing Dr. Moreno to testify when he was not properly designated as an expert witness. Rule 193.6 provides:
(a) Exclusion of Evidence and Exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties.
(b) Burden of Establishing Exception. The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record.
See Tex.R.Civ.P. 193.6.
We review this contention under the abuse of discretion standard. A party attacking the ruling of a trial court under the abuse of discretion standard labors under a heavy burden. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985)(orig.proceeding). The test for abuse of discretion is not whether, in the opinion of this Court, the facts present an appropriate case for the trial court’s actions. Rather, it is a question of whether the court acted without reference to any guiding rules and principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed .2d 721 (1986); Amador v. Tan, 855 S.W.2d 131, 133 (Tex.App.-El Paso 1993, writ denied). Another way of stating the test is whether the act was arbitrary or unreasonable. See Downer, 701 S.W.2d at 242 citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984); Amador, 855 S.W.2d at 133. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. See Downer, 701 S.W.2d at 242 citing Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965). A mere error of judgment is not an abuse of discretion. See Loftin v. Martin, 776 S.W.2d 145, 146 (Tex.1989).
When a party objects to an unidentified witness, the exclusion is automatic unless the other party proves good cause, or lack of unfair surprise, or lack of prejudice. Alvarado v. Farah Mfg. Co., Inc., 830 S.W.2d 911 (Tex.1992). The purpose for this exclusionary rule is to require complete responses to discovery requests, promote responsible assessment of settlement, and prevent trial by ambush. Id. Byrd’s attorney explained that her office made an inadvertent omission with respect to Dr. Moreno’s disclosure in the discovery responses. The Supreme Court has held that inadvertence by counsel in failing to properly supplement discovery does not constitute good cause for purposes of allowing an undesignated expert to testify at trial. City of Fort Worth v. Gay, 977 S.W.2d 814, 818 (Tex.App.-Fort Worth 1998, no writ); Alvarado, 830 S.W.2d at 915; Sharp v. Broadway National Bank, 784 S.W.2d 669, 671 (Tex.1990).
*3 However, the Company was not unfairly surprised because it had been informed during Byrd’s deposition over a year prior to trial, that Dr. Moreno was a treating physician. Further, the Company received a copy of the doctor’s records regarding Byrd’s examination and treatment eight months prior to trial. More importantly, at the pretrial hearing more than thirty days prior to trial, the trial court and the Company’s counsel were advised by Byrd’s counsel that she would have two witnesses, Helaine Byrd and her treating doctor, Manuel Moreno. The Company urges it was prejudiced because counsel had no opportunity to present controverting expert testimony, relying on Byrd’s response to discovery that there were no expert witnesses designated to testify. Yet, at the hearing on the Company’s motion in limine, its counsel admitted he had written to Dr. Moreno with Byrd’s authorization do so, and had received and reviewed his records. He had several weeks to prepare for trial in light of his awareness that Dr. Moreno would testify.
Because the Company has not shown it suffered unfair surprise as required by Rule 193.6, we conclude the trial court did not abuse its discretion in admitting Dr. Moreno’s testimony. The first issue for review is overruled.
SUFFICIENCY OF THE EVIDENCE
The next three issues for review raise complaints of factual insufficiency. The test for factual sufficiency is set forth in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). In reviewing a complaint that a finding is against the great weight and preponderance of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. It is for the jury to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. See Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex.App.-El Paso 1981, no writ). The jury’s finding should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence. See id. Thus, we cannot substitute our judgment for that of the fact finder even if we find a fact contrary to that found by the jury. If, however, the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the issue should be sustained.
Compensable Injury
In Issue Two, the Company complains of the jury’s finding that Byrd sustained a compensable injury. A “compensable injury” is one which arises out of and in the course and scope of employment for which compensation is payable under the Texas Labor Code. See Tex.Lab.Code Ann. § 401.011(10)(Vernon 1996). “Course and scope of employment” is an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. See Tex.Lab.Code Ann. § 401.011(12).
*4 The Company contends the great weight of the evidence established that Byrd’s lower back pain was the result of medical conditions and/or accidents unrelated to her employment. We have charted a time line in order to distinguish these incidents and the course of treatment sought for each.
1984 Byrd is involved in the first of three automobile accidents.
1985 Byrd, suffering from sarcoidosis, begins treatment with prescription steroids.
1992 Byrd is involved in a second auto accident in which she injures her back. She seeks treatment from Dr. Hazarian who assigns a 10 percent whole body impairment rating and opines she sustained permanent injuries to her lower back. She ultimately settles a lawsuit for $19,000.
8/95 Byrd is treated for chronic lower back pain. Dr. Bagley’s report states “follow-up low back pain of unknown etiology.”
9/95 Byrd is rear-ended in a third auto accident and files another lawsuit alleging permanent injury to her lower back. She wears a neck and back brace for four months.
7/11/96 Byrd suffers an on-the-job injury at Firestone. At a clinic at William Beaumont Army Hospital, she is diagnosed with a urinary tract infection and is prescribed an antibiotic.
7/16/96 Byrd returns to Beaumont and is treated in the emergency room. She does not mention her work-related injury or the pain in her lower back.
7/24/96 Byrd’s sarcoidosis flares again and she is treated by Dr. Kumke, a pulmonary specialist at Beaumont. Dr. Kumke opines that the steroid therapy is causing insomnia, lower back pain, and weight gain. Byrd receives a prescription for Naprosyn, an anti-inflammatory agent. When the medication is discontinued at the end of July, her back pain returns.
8/96 Byrd is deposed in the lawsuit arising out of the 1995 auto accident. She testifies she has been taking Naprosyn. She does not mention the on-the-job injury and denies being in any other accidents. She claims her back pain is related to the car accident.
9/96 Doctors rule out kidney infection and determine that the back pain is musculoskeletal.
2/28/97 Dr. Saikewicz reads a CT scan as normal.
3/4/97 Emergency room report references “low back pain…. Constant six months, worse in last week, patient seen in OB GYN last week. Heard no results of UA. Patient has had workup urology last year. Motor vehicle accident one year ago.” An MRI of the lumbar spine is normal. Dr. Dailey’s report indicates she was scheduled for follow-up of lower back pain from the accident and does not mention a work-related injury. Ultimately, she testifies that this is the day she became aware of the on-the-job injury.
3/6/97 Byrd reports the on-the-job injury to Firestone. She sees Dr. Alarcon, an orthopedic surgeon, and “admitted working as a Firestone store manager and lifting tires, and has noted that recently it has led to increase to her low back pain.” At this time, however, she still relates the back pain to the car accident.
*5 4/1/97 Byrd is treated at Beaumont for ear pain.
4/3/97 Byrd returns to Beaumont, complaining of lower back pain. She tells Dr. Posnick she has had intermittent lower back pain for nine months. His notes reveal she “denied any antecedent trauma in July 1996.”
5/5/97 Byrd is seen at Beaumont for lower back pain. She does not mention the work-related injury.
12/97 Byrd settles the 1995 auto accident litigation. She does not seek any medical treatment for the on-the-job injury until after the settlement.
Byrd saw Dr. Moreno for the first time in January 1998, and was treated in his clinic until May 1998. Dr. Moreno issued a 10 percent spinal impairment rating, the same rating Dr. Hazarian had assigned to the 1995 automobile accident injury. On June 23, 1998, normal results were obtained from an EMG performed to determine fluctuation in Byrd’s nerve conduction velocity in the lumbar spine, specifically L5-S1. Dr. Moreno reviewed the films taken at Beaumont. On the CT scan, he saw impingement on the thecal sac and diagnosed disc herniations. He believed that the work she performed was consistent with discogenic syndrome, bulging discs, and herniated discs. Dr. Moreno also explained that the August 5, 1998 MRI showed a desiccation, which meant the entire disc at the L5-S1 level was drying up. Different impressions were found on the February 28, 1997 CT scan, the March 4, 1997 MRI, and the August 5, 1998 MRI. He believed the doctor reading the film as “normal” was incorrect.
Dr. Moreno offered his opinion that the injuries were not a result of the motor vehicle accidents in 1992 and 1995. The Company objected to this testimony, arguing there were no MRI or CT scans taken after the accidents and therefore Dr. Moreno’s testimony was based on evidence outside the record. The trial court overruled the objection. The Company then objected to Dr. Moreno’s competency to testify as to the causation of the injuries Byrd received in the motor vehicle accidents. On voir dire, Dr. Moreno advised the court that as a doctor of chiropractic, he did not have a medical degree, nor experience in accident reconstruction. The Company renewed its objection. The court sustained the objection and admonished the jury to disregard Dr. Moreno’s last few answers, but overruled the motion for mistrial.
Dr. Moreno then testified regarding the trauma caused to the spine in a rear-end collision, establishing that the trauma sustained is usually inflamation, mild sprain, or strain. The Company unsuccessfully objected yet again, with the trial judge concluding that the testimony went to the weight, and not the admissibility, of the evidence. The court then questioned Dr. Moreno regarding force of impact, the position of a body, whether a person is a driver or passenger, and how these would result in injury. Dr. Moreno indicated the specific incident involving Byrd’s back pain occurred when she placed batteries and tires on shelves on July 11, 1996. Further, he advised that steroids can cause nerve pain and nerve damage, but that these symptoms dissipate in three days.
*6 According to Dr. Moreno, the herniated and bulging discs resulted from Byrd bending down to pick up tires and twisting her back. He had reviewed all of the Beaumont records and was familiar with the problems associated with patients seeing different doctors each time they were examined. This resulted in records containing contradictory opinions. Although his own records expressed confusion about the differing opinions by Beaumont doctors, Dr. Moreno concluded Byrd suffered an on-the-job injury on July 11, 1996. Although Byrd’s conduct and her conflicting testimony can be described as a calculated, scripted strategy designed to maximize financial recovery for each separate injury, we cannot conclude that the jury’s finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. Issue Two is overruled.
Failure to Timely Report
In its third issue, the Company contends that the evidence does not support a finding of good cause for Byrd’s failure to timely report her injury. Byrd alleged she was injured on July 11, 1996. The Texas Labor Code provides that an employee shall notify the employer not later than the thirtieth day after the date on which the injury occurs. See Tex.Lab.Code Ann. § 409.001(a)(1)(Vernon 1996). Although Byrd was required to report the injury on or before August 11, 1996, she did not notify Firestone until March 6, 1997. The failure to timely notify the employer relieves the employer and the employer’s insurance carrier of liability under this subtitle unless the commission determines that good cause exists for failure to provide notice in a timely manner. See Tex.Lab.Code Ann. § 409.002(2). The applicable standard is whether a reasonably prudent person would comply with the notice and filing requirements. See Texas Employer’s Insurance Assoc. v. Leathers, 395 S.W.2d 601-03 (Tex.1965). Good cause must extend until the date the claim is filed. See Anderson v. Hood County, 958 S.W.2d 448, 450 (Tex.App.-Fort Worth 1997, no writ).
The Company argues that Byrd was in a predicament because she was in the middle of a lawsuit against the City of El Paso as a result of the September 1995 accident, and did not want to seek medical treatment from a chiropractor or orthopedic surgeon for her lower back pain until the lawsuit was settled. Byrd testified she did not realize her on-the-job injury was causing the lower back pain. She had been involved in motor vehicle accidents in 1984, 1992, and 1995, and suffered lower back pain as a result. She stopped receiving treatment for injuries received in the 1995 motor vehicle accident when Dr. Hazarian released her from his care in March 1996. The doctor advised her to return to him in the event of uncontrollable symptoms. Although she felt pain in her lower back on July 11, 1996 while working in the Firestone showroom, Byrd did not return to see Dr. Hazarian. She made an appointment at Beaumont’s ob-gyn clinic instead. Byrd had recurrent bladder infections and tests performed at that time confirmed she had another infection. She returned to Beaumont’s emergency room on July 16, 1996, but did not mention the injury to or the pain in her lower back. She continued to complain of lower back pain at her appointments and was ultimately informed by Beaumont doctors in September 1996 that musculoskeletal problems, and not urological difficulties, were the source of her lower back pain. Clearly believing Byrd’s testimony that she did not become aware that her back pain was attributable to her work injury until March 1997, the jury found that good cause existed for her failure to provide timely notice. Because the jury has resolved the conflicting testimony and weighed the credibility of the witnesses in Byrd’s favor, we shall not intercede. Issue Three is overruled.
Disability
*7 In its fourth and final issue, the Company claims that the evidence does not support a finding that Byrd sustained disability on the following dates in 1996: August 1-2; August 12-13; August 19-20; September 17-18; September 25-26; and December 27-28. It further contends that there is no evidence to support the finding that Byrd was unable to obtain her preinjury wage as a result of a compensable injury on those dates. The Texas Labor Code defines disability as the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. See Tex.Lab.Code Ann. § 401.011(16).
The jury heard the evidence regarding Byrd’s urinary tract infections, sarcoidosis, herniated discs, and auto accident injuries. The jury also heard evidence regarding the lawsuits she had filed and her often conflicting testimony at depositions. It nevertheless determined Byrd suffered a compensable on-the-job injury, had good cause for her failure to provide timely notice to Firestone, and had a compensable disability on the dates identified above. We believe a reasonable jury could have so found, although we might not have done so. We overrule the fourth issue and affirm the judgment of the trial court.