Court of Appeals of Texas, Beaumont.

Dwayne RANDLE, Appellant,

v.

BO-MAC CONTRACTORS, INC., and Loral Construction, Inc., Appellees.

No. 09-98-427 CV.

|

June 10, 1999.

Before WALKER, C.J., BURGESS and STOVER, JJ.

OPINION

PER CURIAM.

*1 Dwayne Randle filed for workers’ compensation benefits for an injury he received while working for Bo-Mac Contractors, inc. and Loral Construction, Inc. Liberty Mutual Fire Insurance began paying him benefits. Bo-Mac/Loral conducted a post-injury drug screen and then contested compensability of the injury on the basis that Randle’s drug test was positive for marijuana. A hearing officer at a contested case haring at the Texas Workers’ Compensation Commission (TWCC) found Randle was intoxicated and denied his benefits. After losing his appeal at the TWCC, Randle filed suit in district court against Bo-Mac/Loral and Liberty Mutual.¹ A jury found Randle was intoxicated the day he was injured. Randle brings six issues on appeal.

In his first issue, Randle complains the trial court erred in failing to grant his motion for summary judgment. An order denying a motion for summary judgment is not a final judgment and therefore not appealable. Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980); Orozco v. Orozco, 917 S.W.2d 70, 72 (Tex.App.-San Antonio 1996, writ denied); Valencia v. Garza, 765 S.W.2d 893, 897 (Tex.App.-San Antonio 1989, no writ). When a trial judge denies a motion for summary judgment, the cause is held for trial on the merits. The denial is not a proper subject for appeal. Orozco, 917 S.W.2d at 72. The point is overruled.

In his second issue, Randle complains the trial court erred in granting defendants’ motion for partial summary judgment, as the defendants “failed to plead waiver, there was a fact question as to whether plaintiff waived his right to contest the employer’s untimely dispute of the claim, and a fact question as to whether the employer used due diligence in filing the controversion.” The trial court granted partial summary judgment for Bo-Mac/Loral holding that Randle could not contest Bo-Mac/Loral’s controversion of his claim.

We review Randle’s complaints under well known summary judgment standards. The movant must show (1) that there are no genuine issues of material fact and (2) that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co. Inc., 690 S.W.2d 546, 548 (Tex.1985). Summary judgment for a defendant is proper if the defendant disproves at least one element of each of the plaintiff’s claims or establishes all elements of an affirmative defense to each claim. American Tobacco Co. Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). In determining whether there is a disputed fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id. Every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in his favor. Id.

*2 Randle’s claim arose out of an accident that occurred on December 20, 1994. Soon after the accident, Randle tested positive for marijuana. Despite the positive marijuana finding, Liberty Mutual failed to contest compensability of the injury and began paying benefits. Bo-Mac/Loral proceeded to contest the compensability of Randle’s injury pursuant to the employer’s rights set forth in Tex.Lab.Code Ann. § 409.011(b)(4) (Vernon 1996).

Randle pursued his claim at the TWCC via a Benefit Review Conference (BRC), a Contested Case Hearing (CCH), and an appeal with only one issue raised: “Did the claimed injury occur while the Claimant was in a state of intoxication … thereby relieving the Carrier of liability for compensation?” The BRC officer recommended that Randle was intoxicated at the time of injury. The CCH officer ruled that Randle was intoxicated at the time of his injury and ordered that Liberty Mutual is not liable for workers’ compensation benefits. The appeals panel affirmed the decision. The appeals panel noted that Randle attempted in a reply brief to assert for the first time that his employers failed to timely contest compensability. The panel ruled that the reply brief was untimely and that Randle had waived the issue of whether his employers failed to contest its compensability because that issue had not been raised at the CCH. Randle appealed to state court where the trial court determined that it did not have jurisdiction over the issue of whether Bo-Mac/Loral failed to timely contest compensability because the issue had not been decided by the appeals panel. Randle then brought an independent proceeding to raise the issue of timeliness of the employer’s defense. At every level, the TWCC held he could not raise the issue in a separate proceeding, inasmuch as it had not been raised at the BRC in the initial proceeding. Randle appealed that decision to the trial court. The trial court found Randle failed to timely assert the issue and thus could not raise it in the current proceeding. The trial court granted Bo-Mac/Loral’s motion for partial summary judgment and the case proceeded to trial on the intoxication issue. The jury found Randle was intoxicated, and judgment for the defendants was issued.

The trial court did not err in granting Bo-Mac/Loral’s partial summary judgment motion. Unless the issue of timely dispute of compensability is raised at a BRC, it may not be raised later in the dispute resolution process without the consent of the parties or the Commission determines good cause existed for not raising the issue at the BRC. Tex.Lab.Code Ann. § 410.151(b) (Vernon 1996). The trial court correctly found the issue was waived because Randle did not raise it at the BRC. Issue two is overruled.

In his third issue, Randle complains the trial court erred in “admitting evidence of the results of the SmithKline Beecham drug screen because the documents were hearsay and were not authentic.” The only issue litigated at trial was whether Randle was intoxicated at the time of his injury. Randle argues the only evidence of intoxication came from Dr. Ernest Lykissa’s interpretation of the quantitive results reported by SmithKline Beecham Laboratories. The original records at SmithKline were destroyed. Defendants introduced into evidence documents which it claimed to be copies of the drug screen report. Randle argues the documents are hearsay and are not authentic within the meaning of Tex.R.Evid. 901.

*3 The standard of review for admission and exclusion of evidence is abuse of discretion. E.I. Du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995). “A successful challenge to evidentiary rulings usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted.” City of Brownsville, 897 S.W.2d at 753-54.

The trial court did not abuse its discretion in allowing the documents into evidence. Though hearsay evidence is generally not admissible, records of regularly conducted activities are an exception to the general rule. Tex.R.Evid. 803(6).

The predicate for admissibility under the business records exception is established if the party offering the evidence establishes that the records were generated pursuant to a course of regularly conducted business activity and that the records were created by or from information transmitted by a person with knowledge, at or near the time of the event.

Brooks v. Housing Authority of City of El Paso, 926 S.W.2d 316, 321 (Tex.App.-El Paso 1996, no writ); (citing GT & MC, Inc. v. Texas City Refining, Inc., 822 S.W.2d 252, 257 (Tex.App.-Houston [14th Dist.] 1991, writ denied)).

Jimmie Baldwin, clinical assistant and medical coordinator at Beaumont Industrial Clinic (BIC), testified she had knowledge of the records that are kept in the regular course of business and that it was in the regular practice of BIC to keep records of SmithKline Beecham drug screen results. Baldwin verified that she works at BIC as the recipient of the drug screen results as they are directly transmitted from the laboratory. Additionally, Dr. Mohommad Ghazizadeh, a certified scientist of SmithKline, testified he was responsible for the chain of custody of the drug test results. His name was on the drug screening reports certifying they were correct. He testified he had direct knowledge of the making of the records and that the records were generated pursuant to a course of regularly conducted business activity at or near the time of the making of the test. The trial court correctly found the documents were not excluded by the hearsay rule.

Authentication of documentary evidence is a prerequisite to admissibility. Tex.R.Evid. 901. Testimony by a witness with knowledge that a matter is what it is claimed to be will suffice to establish the item is genuine and thus, admissible. Id. Any dispute as to the authenticity is to be decided by the jury. See United States v. McGlory, 968 F.2d 309, 328-29 (3rd Cir.1992); City of Corsicana v. Herod, 768 S.W.2d 805, 814 (Tex.App.-Waco 1989, no writ). Dr. Lykissa testified that the copies admitted at court were accurate copies of the original drug screen results from SmithKline. Randle put on no evidence to contradict this testimony. For the reasons stated above, Randle’s third point of error is overruled.

*4 In his fourth point of error, Randle alleges the trial court erred in allowing the defendants to cross examine him concerning his prior use of marijuana. During direct examination, Randle denied using marijuana during the time he was working for the defendants and the weeks prior to working for the defendants. The trial court allowed the defendants to question Randle during cross examination concerning his use of marijuana in the past. Randle’s counsel made a running objection to the relevancy of defendants’ line of questioning concerning his prior use of marijuana.

Under the rules of evidence, a party is prohibited from introducing evidence of other wrongs or acts to show that the person acted in conformity therewith. Tex.R.Evid. 404(b); Nix v. H.R. Management Co., 733 S.W.2d 573, 576 (Tex.App.-San Antonio 1987, writ ref’d n.r.e.). Bo-Mac/Loral argues they were entitled to cross examine Randle for impeachment purposes. However, on direct examination, Randle testified he had not used marijuana on the day of the accident or in the five month period prior to the accident. Defense counsel’s questions concerning his use of marijuana throughout his life were not admissible to prove he had used marijuana on the day of the accident. The trial court thus erred in allowing that testimony. However, we find the error not reversible. Randle’s drug test results were admitted into evidence revealing that Randle tested positive for marijuana on the date of the accident. Therefore, we are unable to conclude that evidence of Randle’s prior marijuana use probably caused the rendition of an improper judgment. Tex.R.App.P. 44.1(a)(1). Point of error four is overruled.

In his fifth point of error, Randle complains the trial court erred in permitting defendants to introduce evidence that was not presented to the TWCC. He argues section 410.161 of the Labor Code prohibits a party from introducing any information or documents in the district court that was not presented before the date of the CCH to the TWCC, absent a showing of good cause.² Randle argues the trial court wrongfully allowed certain deposition testimony and lab records into evidence as good cause had not been shown by the defendants. Randle complains of the following evidence: 1) deposition testimony of Dr. Solano, 2) deposition testimony of Mohammad Ghazizadeh, 3) deposition testimony of Dr. Lykissa, 4) deposition testimony of Jimmie Baldwin, 5) deposition testimony of Terry Ibech, 6) records of SmithKline Beecham, and 7) records of Beaumont Industrial Clinic.

The record reflects Randle did not timely object to the admission of the deposition testimony of Solano, Ghazizadeh, Baldwin and Ibech. Consequently, he has waived his complaint on appeal. See Tex.R.App.P. 33.1. Randle’s objections at trial to Lykissa’s testimony and the records of SmithKline and Beaumont Industrial Clinic do not comport with his complaint on appeal. He has thus waived this complaint as well. Phippen v. Deere and Co., 965 S.W.2d 713, 716 (Tex.App.-Texarkana 1998, no pet.); Federal Deposit Ins. Corp. v. Golden Imports, Inc., 859 S.W.2d 635, 641 (Tex.App.-Houston [1st Dist.] 1993, no writ). Randle’s fifth point of error is overruled.

*5 In his sixth point of error, Randle complains “the trial court erred in permitting Dr. Lykissa to testify because his opinions were not supported by reliable scientific testimony under Havner.” Randle cites Merrill Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex.1997) for his proposition that Lykissa’s testimony was unreliable.

We review a trial court’s acceptance of an expert witness’s qualifications under an abuse of discretion standard. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex.1998). The factors a reviewing court should look at in determining the reliability of scientific testimony are as follows: “1) the extent to which the theory has been or can be tested; 2) the extent to which the technique relies upon the subjective interpretation of the expert; 3) whether the theory has been subjected to peer review and/or publication; 4) the technique’s potential rate of error; 5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; 6) the nonjudicial uses which have been made of the theory or technique; and 7) any other factor which is helpful to determine the reliability of the scientific evidence.” Minnesota Min. and Mfg. Co. v. Atterbury, 978 S.W.2d 183, 199-200 (Tex.App.-Texarkana 1998, writ denied) (citing Havner, 953 S.W.2d at 714).

After reviewing the record, we find the trial court did not abuse its discretion in permitting Lykissa to testify. There is ample evidence in the record of the scientific reliability of Lykissa’s testimony concerning the drug screen results. Lykissa testified that the drug test methods used at SmithKline are state of the art. The tests are monitored by the College of American Pathology and by the federal government through the National Institute on Drug Abuse (NIDA), a division of the Department of Health and Human Services. The same testing methods are used by the U.S. Navy. The testing procedures have been published by the American Academy of Forensic Sciences after evaluation at an annual meeting of forensic scientists from across the country.

The record also reflects SmithKline maintains its accreditation through the NIDA by following the standards set by the NIDA for both the initial and confirmatory testing procedures. Therefore, Dr. Lykissa’s testimony does not merely rely upon his subjective interpretation of the data. Because of the strict monitoring of laboratory compliance with federal guidelines, the theory on which Dr. Lykissa based his opinion has been more than adequately scrutinized by the scientific community and is thus reliable.

Randle also argues Lykissa’s testimony is legally insufficient to support the jury’s finding that Randle was intoxicated. We find Lykissa’s testimony amounts to more than a scintilla of evidence to support the jury’s finding. Randle’s sixth point of error is overruled and the judgment of the trial court is AFFIRMED.

	Footnotes
1		Randle does not appeal the trial court’s order dismissing Liberty Mutual from the suit for lack of jurisdiction.
2		“Failure To Disclose Information. A party who fails to disclose information known to the party or documents that are in the party’s possession, custody, or control at the time disclosure is required by Sections 410.158–410.160 may not introduce the evidence at any subsequent proceeding before the commission or in court on the claim unless good cause is shown for not having disclosed the information or documents under those sections.” Tex.Lab.Code Ann. § 410.161 (Vernon 1996).