Court of Appeals of Texas, Dallas.

R.I. PETERSON, Individually and on Behalf of the Estate of Billie Sue Peterson, Deceased, Appellant,

v.

PLANO INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 05-92-02199-CV.

|

June 16, 1993

Before KINKEADE, BURNETT, and MORRIS, JJ.

O P I N I O N

BURNETT, Justice.

*1 This appeal arises from a jury verdict in favor of appellant, R. I. Peterson, in a workers’ compensation case. Originally, this was a limited appeal brought by Peterson concerning only the trial court’s failure to award him lump sum attorney’s fees. Plano Independent School District (“PISD”), appellee, brought a separate appeal complaining of evidentiary matters and of the trial court’s award to Peterson of $2,751.41 in medical expenses. We affirm the jury verdict and reverse the trial court’s award of attorneys’ fees.

FACTUAL AND PROCEDURAL HISTORY

Peterson brought suit against PISD under the Texas Workers’ Compensation Act (the “Act”) because of the death of his wife, Billie Sue Peterson. PISD was self-insured under the Act. Peterson alleged that his deceased wife was injured in the course and scope of her employment with PISD on or about June 29, 1989 when she fell off of a chair and that such injuries were a producing cause of her death. The fall resulted in an injury to Mrs. Peterson’s leg which caused her to stay off of her leg and remain immobile for a couple of days. Several days later, Mrs. Peterson died as the result of a pulmonary embolism which was allegedly the result of the injury and the non-use of the injured leg.

In his lawsuit, Peterson alleged that he was entitled to weekly benefits, the maximum funeral allowance and medical expenses pursuant to the then existing Workers’ Compensation Act of Texas because his wife died as the result of a work related accident. In its answer, PISD denied that Billie Sue Peterson received an injury which was a producing cause of her death. PISD also denied liability in Defendant’s Response to Plaintiff’s Request for Admissions.

The case was tried before a jury, and the sole issue submitted to the jury was, “Did Billie Sue Peterson, on June 29, 1989, receive an injury in the course of her employment that was a producing cause of her death?” The jury answered “yes.” Peterson filed a Motion for Judgment incorporating the finding of the jury and seeking lump sum attorney’s fees pursuant to article 8306 section 8(d) of the Act. The trial court refused to hear evidence on lump sum attorney’s fees and overruled Peterson’s motion for lump sum fees. Judgment was entered on behalf of Peterson with attorney’s fees to be paid on a weekly basis. Peterson filed a Notice of Appeal limiting his appeal solely to the issue of lump sum attorney’s fees. PISD then filed an appeal asserting in four points of error that the trial court erred in: (1) permitting testimony of oral conversations between Christy Lindecker and Mrs. Peterson and between Mr. Peterson and Mrs. Peterson because such evidence violates rule 601(b) of the rules of evidence; (2) permitting Dr. Linda Norton to testify as to “injury” and “cause of death” because opinions were based on incompetent evidence; (3) entering judgment for Peterson because there was no evidence or insufficient evidence to the jury finding of “injury” or “injury in the course and scope of employment” and (4) awarding Peterson $2,751.41 in medical expenses incurred by Mrs. Peterson.

ATTORNEY’S FEES

*2 Because Peterson is the original appellant in this cause, we will address his point of error before we address the points of error asserted by PISD. At the time of the accident in this case, Article 8306 section (8)(d) of the Texas Revised Civil Statutes governed attorney’s fees in workers’ compensation death cases. The statute provided that:

“If the association fails to admit liability prior to the final award, decision, or ruling of the board or disputes liability subsequent to such award, decision, or ruling, the court shall award attorney’s fees, in a lump sum, not to exceed 25 per cent [sic] of the recovery.”

(emphasis added). Act of June 19, 1983, 68th Leg., R.S., ch. 602, 1983 Tex. Gen. Laws 3841, repealed by Acts of Dec. 13, 1989, 71st Leg., 2d C.S., ch. 1, 1989 Tex. Gen. Laws 1. Thus, lump sum attorney’s fees were mandatory in cases where liability was disputed. Smith v. City of Austin, 670 S.W.2d 743, 748 n.2 (Tex. App.-Tyler 1984, no writ). In fact, in Wilk & Flint v. Standard Fire Insurance Company, 765 S.W.2d 515, 516 (Tex. App.-Dallas 1989, no writ), this court held that under the provisions of section 8(d) of article 8306, “in all suits filed on or after August 29, 1983, the court is mandated to award lump sum attorney’s fees in death benefit cases if the insurance company disputes the award. (emphasis added).

In this case, as evidenced by the Judgment and the Charge of the Court, PISD disputed liability. In fact, liability was the only issue at trial. Because PISD disputed liability and lost on this issue, lump sum attorney’s fees are mandated as to all benefits, past and future, due and owing to Peterson. Accordingly, we sustain Peterson’s sole point of error.

TESTIMONY OF ORAL CONVERSATIONS

In its first point of error, PISD asserts that the trial court erred in permitting testimony of oral conversations between Mrs. Peterson’s daughter, Christy Lindecker, and Mrs. Peterson and oral conversations between Mr. Peterson and Mrs. Peterson because such oral conversations were incompetent evidence in violation of Rule 601(b) of the rules of evidence. We disagree with PISD and overrule its first point of error.

Rule 601(b) of the rules of civil evidence provides that:

In actions by or against executors, administrators, or guardians, in which judgment may be rendered for or against them as such, neither party shall be allowed to testify against the others as to any oral statement by the testator, intestate or ward, unless that testimony to the oral statement is corroborated or unless the witness is called at the trial to testify thereto by the opposite party; and, the provisions of this article shall extend to and include all actions by or against the heirs or legal representatives of a decedent based in whole or in part on such oral statement. Except for the foregoing, a witness is not precluded from giving evidence of or concerning any transactions with, any conversations with, any admissions of, or statement by, a deceased or insane party or person merely because the witness is a party to the action or a person interested in the event thereof. The trial court shall, in a proper case, where this rule prohibits an interested party or witness from testifying, instruct the jury that such person is not permitted by the law to give evidence relating to any oral statement by the deceased or ward unless the oral statement is corroborated or unless the party or witness is called at the trial by the opposite party.

*3 TEX. R. CIV. EVID. 601(b).

Rule 601(b) does not, however, apply in every situation. For instance, in Turner v. Travelers Insurance Co., 401 S.W.2d 618, 622 (Tex. Civ. App.-Eastland), aff’d, 406 S.W.2d 897 (Tex. 1966), the court held that article 3716 of the Revised Civil Statutes of Texas (the now repealed “Dead Man’s Statute” and the predecessor to rule 601(b) of the Texas Rules of Evidence) did not apply to workers’ compensation cases. The Turner court cited article 8306 § 8a of the Act which provided in part:

Such compensation [death benefits] shall not pass to the estate of the deceased to be administered upon, but shall be paid directly to said beneficiaries when the same are capable of taking, under the laws of this state, or to their guardian or next friend,….

The court then held that the Dead Man’s Statute was inapplicable and that the adult son who was awarded death benefits under the Act was entitled to testify about the transactions between he and his deceased father because the son was a specified, named beneficiary under the Act. 401 S.W.2d at 622. The son was entitled to receive the death benefits because of the Act, not because he was an heir of the deceased. Id.

The same rationale has been applied in wrongful death suits where the courts have allowed testimony of transactions or conversations between the decedent and individuals seeking recovery under the Wrongful Death Statute. See Jordan v. Sheild, 674 S.W.2d 464, 468 (Tex. App.-Beaumont 1984, no writ); Heil Co. v. Grant, 534 S.W.2d 916, 924 (Tex. Civ. App.-Tyler 1976, writ ref’d n.r.e.).

Because the action in this case was brought in Peterson’s individual capacity and is not predicated upon the rights inherited from Mrs. Peterson, we find that Rule 601(b) has no application to the testimony of Mr. Peterson. Likewise, we find that Rule 601(b) does not apply to the testimony of Christy Lindecker in that she had no interest in the outcome of the dispute. Christy Lindecker was not a beneficiary under the Act, not a party to the lawsuit, and had no financial interest in the outcome. Therefore, her testimony clearly would not fall within the provisions of rule 601(b). Accordingly, we overrule PISD’s first point of error.

DR. NORTON’S TESTIMONY

In its second point of error, PISD alleges that the trial court erred in permitting Dr. Linda Norton to testify as to injury and cause of death because her opinions were based on incompetent evidence admitted in violation of rule 601(b) of the rules of evidence. We overrule PISD’s second point of error.

PISD’s argument that Norton’s opinions were based on incompetent evidence admitted in violation of rule 601(b) lacks merit in that, as stated above, rule 601(b) does not apply in workers’ compensation cases. Turner, 401 S.W.2d at 622. Moreover, although PISD’s argument under its second point of error is not clear, to the extent that PISD is alleging that Norton’s testimony should not have been admitted because it was based solely on a letter written by Christy Lindecker, the argument also lacks merit. PISD objected to the letter prior to Norton testifying. However, during the direct examination of Norton, Peterson’s attorney never mentioned the letter or offered it into evidence. To the contrary, it was PISD’s attorney who, during his cross-examination of Norton, first mentioned the letter. It was PISD’s attorney who offered the letter into evidence. PISD cannot now complain about the use of an exhibit that it put into evidence itself. See Yarbrough v. Cooper, 559 S.W.2d 917, 919, 920 (Tex. Civ. App.-Houston [14th Dist.] 1977, writ ref’d n.r.e.) (document put into evidence without limitation puts document in evidence for all purposes).

*4 Moreover, even if Norton’s opinions were based solely on the information contained in the letter, and Norton had no personal knowledge as to whether Mrs. Peterson fell on June 29, 1989, Norton’s testimony was properly admitted into evidence and was competent. The entire theory upon which opinions of experts are received into evidence removes the requirement of actual personal knowledge as a basis of their testimony. Classified Parking Sys. v. Kirby, 507 S.W.2d 586, 589 (Tex. Civ. App.-Houston [14th Dist.] 1974, no writ). Also, an expert’s opinion can be based solely upon hearsay. Sharpe v. Safway Scaffolds Co. 687 S.W.2d 386, 392 (Tex. App.-Houston [14th Dist.] 1985, no writ). Finding no merit in PISD’s second point of error, we overrule the point.

SUFFICIENCY THE EVIDENCE

In its third point of error, PISD claims that the trial court erred in entering judgment for Peterson because there was no evidence or insufficient evidence of “injury” or “injury in the course and scope of employment” or “producing cause” or, alternatively, that the jury finding of these elements was against the overwhelming weight of the evidence. More specifically, PISD alleges that the only evidence to support these elements was the incompetent testimony of Christy Lindecker and Peterson.

In determining a “no evidence” point of error, we must consider only the evidence and the inferences tending to support the jury finding and disregard all evidence and inferences to the contrary. Burnett v. Motyka, 610 S.W.2d 735, 736 (Tex. 1980). If there is any evidence of probative force to support the finding, the point of error must be overruled and the finding of the jury upheld. Southern States Transp., Inc., v. State, 774 S.W.2d 639, 640 (Tex. 1989).

In determining an “insufficient evidence” point on the other hand, the court must consider all of the probative evidence in the case. The court should set aside the verdict and remand the cause for a new trial if it concludes that the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Plas Tex., Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).

The instructions given to the jury in this case defined “injury” as being damage or harm to the physical structure of the body, “injury in the course of employment” as being any injury having to do with and originating in the work … and while engaged in or about the furtherance of the affairs or business of the employer … and “producing cause” as a cause … without which cause such death would not occur. The evidence adduced at trial was sufficient to enable the jury to find that Mrs. Peterson suffered an injury in the course and scope of her employment which lead to her death.

Stan Fallett, a co-employee of Mrs. Peterson, testified that he heard a noise and turned and saw Mrs. Peterson on the floor and being hit by a chair. He believes that when he turned around and saw Mrs. Peterson, she was in a position of trying to get up. Mr. Fallett also testified that as a result of the fall, Mrs. Peterson had to have had some bruises. Additionally, the accident report filled out with Mr. Fallett’s help stated that Mrs. Peterson was unable to work the day after the accident as a result of the injury she received in the fall.

*5 Mr. William Frazier, M.D. testified that he was the emergency doctor at North Texas Medical Center who attended to Mrs. Peterson. He further stated that he would not expect the nurses to make any notations of minor indications of trauma or minor bruises on Mrs. Peterson’s leg. Mrs. Peterson’s funeral home records did indicate bruises and scrapes on the right calf area. Dr. Frazier said that when a person has a sore leg, the normal reaction is to stay off of that leg which then compounds the type of problem which Mrs. Peterson was having.

Christy Lindecker testified that she saw her mother three days after the accident. Mrs. Peterson was not feeling well and told Ms. Lindecker that she had fallen at work. Mrs. Peterson then showed Ms. Lindecker the bruise on the lower part of her right leg. Ms. Lindecker further testified that her mother was slow getting around and was favoring her right leg. After arriving at Ms. Lindecker’s home three days after the accident, Mrs. Peterson did not go anywhere and stayed at home in bed the whole time she was visiting her daughter.

Dr. Linda Norton testified that there are five conditions that are most closely linked to the formation of blood clots in legs which can cause pulmonary embolisms, and those include: cancer, heart failure, pregnancy, surgery and immobilization. Of the five categories, Mrs. Peterson only fell within the “immobilization” category. Mrs. Peterson had varicose veins, was obese, and a smoker; all of which predisposed her to blood clotting in the legs. If a person has predispositions to clotting and deep vein thrombosis, not using a leg because it has been hurt can create a very serious hazard. Dr. Norton testified that but for the disuse of the leg caused by the injury, the clots would not have formed in Mrs. Peterson’s leg at that time. Dr. Norton testified that Mrs. Peterson’s accident on June 29, 1989 was a producing cause of the pulmonary embolism that killed Mrs. Peterson.

Linda Chisolm, a daughter of Mrs. Peterson, testified that prior to Mrs. Peterson’s death, she would see her at least five days a week. During the week before the Thursday that she was injured, Mrs. Peterson never made any complaints to her daughter about her right leg. Ms. Peterson told her that she had hurt her head and her right leg when she had fallen to the floor at work.

Mr. Peterson testified that his wife had never complained of leg pain to him during the week before the accident. He stated that his wife’s health was fine when she left for work the day of the accident. He also testified that when Mrs. Peterson returned home from work at approximately 4:00 p.m. on the date of the accident, she told him that she had fallen at work. She then complained that she had hurt her leg and her head. She showed him a bruise on her right leg, and she was limping and favoring the leg with the bruise on it.

Dr. James Wilson, Mrs. Peterson’s family physician, after being presented with a hypothetical question recapping the evidence that the jury had heard, was asked whether the immobilization of Mrs. Peterson’s leg after her injury was a contributing cause of the thrombophlebitis and pulmonary embolism. The doctor replied, “I would have to say yes but qualify it.” All of the above testimony taken together is sufficient to support the jury verdict.

*6 We also note that PISD argues that the evidence is insufficient to support the jury verdict because Mrs. Peterson died as a result of an ordinary disease of life which is not compensable under the Act. We disagree. In Bewley v. Texas Employer’s Ins. Ass’n, 568 S.W.2d 208, 209 (Tex. Civ. App.-Waco 1978, writ ref’d n.r.e.), the court stated that “ordinary diseases of life” to which the general public is exposed outside of the employment are not compensable except where they follow as an incident to an occupational disease or accidental injury as defined in the statute.” In the present case, the evidence establishes that Mrs. Peterson injured her leg while in the scope of her employment and that the injury was a proximate cause of her death. Moreover, the evidence also establishes that Mrs. Peterson’s death was a result of the particular injury she received when she fell off of the chair at work as opposed to an ordinary disease of life, in that if the leg had not been injured and thus immobilized, the pulmonary embolism would not have occurred at that time. Because the evidence was sufficient to support the jury verdict in Peterson’s behalf, we overrule PISD’s third point of error.

MEDICAL EXPENSES

In its final point of error, PISD argues that the trial court erred in awarding Peterson $2,751.41 in medical expenses incurred by Mrs. Peterson. We disagree and overrule this point of error.

PISD claims that because the hospital was not a party to the lawsuit and there was no evidence that the hospital bill was unpaid, that Peterson had paid the bill or that Peterson had personal liability for the bill, recovery of the medical expenses is not permitted. PISD fails to mention, however, that it entered into a stipulation before the trial court pertaining to the medical bills in question. The stipulation went as follows:

MR. JOHNSON: And also, we have filed Affidavits proving up the funeral bill, Your Honor, as well as the medical bills. I think as opposed to us having to go ahead and offer them, I believe Mr. Henderson has agreed to stipulate to the funeral bill up to the maximum amount allowed by law of $2,500.00 plus the medical bills that we have filed would be reasonably related to the treatment of Billie Peterson for the incident which is alleged in this lawsuit.

Therefore I believe the stipulation would be that should a jury find that Mrs. Peterson sustained an on-the-job injury on June 29, 1989, which was a producing cause of her death, then the medical bills and the funeral bills up to the statutory limit would be awarded to the Plaintiff. Is that correct?

MR. HENDERSON: That’s correct, with the understanding that stipulation is that those bills are reasonable and necessary for the treatment without any admission that they were casually related to the incident on June 29th. But as stated by you, Gary, that’s correct.

The record establishes that the stipulated medical bills were $2,751.45. The stipulation, as a matter of law, is binding on PISD.

PETERSON’S CROSS-POINT

*7 In a single cross-point, Peterson asserts that PISD’s appeal is frivolous and brought for the purpose of delay. Peterson seeks to recover delay damages pursuant to Rule 84 of the Texas Rules of Appellate Procedure. We overrule the cross point and decline to award delay damages to Peterson.

Rule 84 provides in pertinent part:

In civil cases where the court of appeals shall determine that an appellant has taken an appeal for delay and without sufficient cause, then the court may, as part of its judgment, award each prevailing appellee an amount not to exceed 10% of the amount of damages awarded to such appellee as damages against such appellant.

TEX. R. APP. P. 84. A court of appeals will not impose a penalty for a frivolous appeal unless the record clearly shows that appellant had no reasonable expectation that the judgment would be reversed, and appellant has not pursued the appeal in good faith. McGuire v. Post Oak Lane Townhome Owner’s Ass’n, 794 S.W.2d 66, 68 (Tex. App.-Houston [1st Dist.] 1990, writ denied). In those cases where an appellant has been assessed with delay damages for bringing a frivolous appeal, the appellant did not file a statement of facts with the court of appeals, did not appeal with sufficient arguments or citations of authority, or did not request findings of fact and conclusions of law. McGuire, 794 S.W.2d at 68; Rodriguez v. Ruben, 731 S.W.2d 141, 143 (Tex. App.-Houston [1st Dist.] 1987, writ ref’d n.r.e.).

In the present case, a statement of facts was filed with the court, and appellant appealed with sufficient arguments and authority. Consequently, we cannot say that this appeal was wholly without merit. We overrule Peterson’s sole cross-point of error.

CONCLUSION

Having sustained Peterson’s sole point of error, overruled PISD’s points of error, and denied Peterson’s cross-point of error, we affirm in part and reverse in part the trial court’s judgment. We affirm the entire judgment of the trial court with the exception of that portion of the judgment relating to lump sum attorney’s fees which is reversed and remanded to the trial court for further proceedings consistent with this opinion.