Court of Appeals of Texas, Dallas.

Cathy Elizabeth LANIER, Appellant,

v.

CITY OF GARLAND, TEXAS, Appellee.

No. 05-91-01380-CV.

|

October 20, 1992.

Before ENOCH, C.J., and KAPLAN and CHADICK¹, JJ.

O P I N I O N

KAPLAN, Justice

*1 This is a worker’s compensation case alleging repetitious physical trauma. Cathy Elizabeth Lanier contends the trial court erred in excluding evidence of similar job-related injuries sustained by her co-workers. Lanier argues that the exclusion of this evidence resulted in a jury finding that she did not suffer from an occupational disease or condition.

We affirm.

FACTS

Lanier filed a worker’s compensation claim against the City of Garland. Lanier alleged that she sustained an occupational injury² from repetitive telephone work and typing on a computer keyboard situated on a desk which was too high for that purpose. The Industrial Accident Board awarded Lanier worker’s compensation benefits. The City filed suit in state district court to set aside the award.

Lanier offered testimony from three co-workers and a supervisor to support her claim that she suffered an occupational injury. This testimony concerned shoulder and neck pain they each experienced when using the phone and computer equipment. The City objected to this testimony as hearsay, immaterial, and irrelevant. The trial court sustained the objection. The excluded testimony was preserved in separate bills of exception. Lanier appeals the trial court’s ruling excluding this evidence.

STANDARD OF REVIEW

Preliminary questions regarding the admissibility of evidence are determined by the trial court. TEX. R. CIV. EVID. 104(a). This determination will not be disturbed absent an abuse of discretion. See Steenbergen v. Ford Motor Co., 814 S.W.2d 755, 760 (Tex. App.-Dallas 1991, writ denied). We do not reverse a judgment because of improperly excluded evidence unless the error was reasonably calculated to cause and probably did cause the rendition of an improper verdict. See TEX. R. APP. P. 81(b)(1).

PRESERVATION OF ERROR

A proponent of excluded evidence must preserve error by making an offer of proof or bill of exception. TEX. R. APP. P. 52; Hartford Ins. Co. v. Jiminez, 814 S.W.2d 551, 552 (Tex. App.-Houston [14th Dist.] 1991, no writ). A proper bill must separate inadmissible evidence from otherwise admissible evidence. See State v. Buckner Const. Co., 704 S.W.2d 837, 847 (Tex. App.-Houston [14th Dist.] 1985, writ ref’d n.r.e.). If a bill of exception contains inadmissible hearsay, the entire bill may be properly excluded. Id.

EXCLUDED TESTIMONY

*2 Lanier offered the testimony of Joan Orenstein, Carolyn Fletcher, Myrna Rose, and Grover Moore to show that other City workers developed neck and shoulder problems from working on the new computer and telephone equipment. Lanier also attempted to testify about complaints made by Orenstein, Rose, and Fletcher. The City objected on the grounds of hearsay and relevancy. The trial court sustained the objection and excluded the testimony. Lanier preserved the testimony in separate bills of exception.

1. Orenstein Bill

Joan Orenstein said that she had pain and swelling in her neck, shoulders, and arms when she started using the new telephone and computer equipment. She began treatment for pain in May 1988. The record shows, however, that the new system was not installed until the fall of 1988. Orenstein testified as follows:

[PLAINTIFF’S ATTORNEY]: Ms. Orenstein, did you ever have any pain or symptoms in your neck when you started using the new computer and telephone equipment in the fall of ’88?

[ORENSTEIN]: Yes, I have.

* * *

[PLAINTIFF’S ATTORNEY]: Have you been to the doctor for that?

[ORENSTEIN]: Yes, I have.

[PLAINTIFF’S ATTORNEY]: When did you go to the doctor for that?

[ORENSTEIN]: Continuously since May of ’88.

Orenstein also said she heard both Fletcher and Rose complain about neck pain after the new system arrived.

2. Fletcher Bill

Carolyn Fletcher said that her shoulder and neck hurt from using the telephone system. She said Orenstein complained of pain in her arm and Rose complained about pain in her neck.

3. Rose Bill

Myrna Rose said that her problems began in August 1988 and were due to telephone use. She had neck pain radiating down her arm. Rose was diagnosed with bone spurs and a pinched nerve. She testified that Fletcher complained of shoulder pain beginning in October 1988. She said that she thought Orenstein’s pain was caused by computer use.

4. Moore Bill

Grover Moore was a work-order supervisor for the City of Garland. Moore said that Orenstein began going to the doctor because of an elbow problem. He said Fletcher complained of shoulder pain due to “getting work orders off the printer.”

5. Lanier Bill

Lanier said Orenstein complained of pain daily. She quoted Orenstein as saying she thought it was caused by the new system. Lanier overheard Orenstein tell others about her pain. Rose and Fletcher also complained of neck pain after the new system was installed.

OBJECTIONS

1. Hearsay

Generally, hearsay is not admissible. TEX. R. CIV. EVID. 802. Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered into evidence to prove the truth of the matter asserted.” TEX. R. CIV. EVID. 801(d).

Rule 803(3) of the Texas Rules of Civil Evidence contains the following exception to the hearsay rule:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

*3 (3) Then existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

TEX. R. CIV. EVID. 803(3).

Lanier attempted to introduce evidence showing the then existing physical condition of Orenstein, Fletcher, and Rose. This excluded testimony falls within an established exception to the hearsay rule. See id. Therefore, the trial court erred in excluding the testimony if it was otherwise relevant and admissible. See Buckner, 704 S.W.2d at 847 (proponent must separate inadmissible evidence from admissible evidence in bill of exception).

2. Relevance

An occupational disease or condition must be indigenous to the workplace or present in an increased degree in the claimant’s work as compared with employment generally. See TEX. REV. CIV. STAT. ANN. art. 8308-1.03(36) (Vernon Supp. 1992); Texas Employers’ Ins. Ass’n v. Schaefer, 598 S.W.2d 924, 928 (Tex. Civ. App.-Eastland 1980), aff’d, 612 S.W.2d 199 (Tex. 1981)

Evidence of injuries sustained by other employees may be relevant to show that the claimant’s condition is present in an increased degree due to the nature of her work. See TEX. R. CIV. EVID. 401; Schaefer, 598 S.W.2d at 928. However, the proponent of such evidence must first establish that the other injuries occurred under “reasonably similar” circumstances. E-Z Mart Stores, Inc. v. Terry, 794 S.W.2d 63, 65 (Tex. App.-Texarkana 1990, writ denied); Davis v. Snider Indus., 604 S.W.2d 341, 344 (Tex. Civ. App.-Texarkana 1980, writ ref’d n.r.e.).

The City argues that the injuries sustained by Orenstein, Fletcher, and Rose did not occur under reasonably similar circumstances and had different causes. The Orenstein bill shows that her physical problems pre-dated the arrival of the new system. Therefore, the trial court could have properly found that her problems did not occur under “reasonably similar” circumstances. Lanier failed to establish the proper predicate for the admissibility of Orenstein’s testimony. See E-Z Mart, 794 S.W.2d at 65.

Orenstein’s physical problems are also mentioned in each of the other bills of exception. The trial court could have properly excluded any testimony pertaining to Orenstein’s neck and arm pain because there was no showing that these problems occurred under circumstances similar to her co-workers. Lanier was required to separate inadmissible evidence concerning Orenstein’s condition from otherwise admissible portions of the Fletcher, Rose, Moore and Lanier bills of exception. See Buckner, 704 S.W.2d at 847. The trial court did not abuse its discretion in refusing the offer of proof and excluding the testimony. See Steenbergen, 814 S.W.2d at 760.

*4 We overrule Lanier’s point of error. The judgment is affirmed.

Do Not Publish

Tex. R. App. P. 90

	Footnotes
1		The Honorable T. C. Chadick, Justice, Supreme Court of Texas, Retired, sitting by assignment.
2		The Workers’ Compensation Act defines “Occupational Disease” as “a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body. The term includes other diseases or infections that naturally result from the work-related disease. The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease.” TEX. REV. CIV. STAT. ANN. art. 8308-1.03(36) (Vernon Supp. 1992). “Injury” is defined as “damage or harm to the physical structure of the body and those diseases or infections naturally resulting from the damage or harm. The term also includes occupational diseases.” TEX. REV. CIV. STAT. ANN. art. 8308-1.03(27) (Vernon Supp. 1992).