Court of Appeals of Texas, Beaumont.
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PENNSYLVANIA, Appellant,
v.
Floyd SMITH, Appellee.
No. 09-92-234 CV.
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Submitted Sept. 22, 1994.
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Decided Dec. 22, 1994.
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Rehearing Overruled Jan. 17, 1995.
Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.
OPINION
WALKER, Chief Justice.
*1 This is a worker’s compensation case wherein the parties dispute whether the worker had been injured on the job. A jury determined that the worker was injured in the course of his employment and determined his average weekly wage during incapacity to be the sum of $320.
Appellant, National Union Fire Insurance Company of Pittsburgh, Pennsylvania, (“National Union”), makes its appeal alleging abuse of discretion by the trial court in excluding National Union’s representative from a portion of the trial; in admitting evidence from the employer’s report of injury (E-1); and the failure of the trial court to grant appellant’s motion for directed verdict regarding the jury’s answer to the wage rate question.
Factually, Floyd Smith, appellee, had been employed as a floor hand at Flint Engineering and Construction Company for approximately two months. Appellee worked eight to ten hours a day, normally five days a week, with a five man crew on oil rigs. Floor hands made $6.80 per hour, according to Bobby Joe Lunceford, Flint Engineering’s district manager.
Appellee testified that he had injured himself while picking up boards from under a rig. Appellee recalled telling Ms. Bagwell, secretary for Flint, of his injury. Appellee also testified that he had mentioned his back pain to a different co-worker, Kenneth Able, about a week after the alleged injury. Appellee agreed that Flint Engineering’s policy required him to report an injury immediately, but explained that he was afraid he would lose his job if he reported the injury.
Appellee, Floyd Smith, had worked in oil fields for thirty-four (34) years and other than a broken arm in 1980, Mr. Smith had never been injured on the job until January 12, 1990. According to the record, Mr. Smith was moving 16-18 foot-long 3 x 12 boards from under a rig in the mud when his injury occurred. Upon his arriving home on the evening of January 12, 1990, Mr. Smith was barely able to walk and told his wife that his back hurt. According to testimony, Mr. Smith did not want to say anything about his injury, thinking it was a pulled muscle that would get better, for fear that he would lose his job. Mr. Smith’s back injury did not improve as the week went on. The pain increased to the point that on January 19, 1990, Mr. Smith reported his injury to his employer. Flint’s district manager, Bobby Joe Lunceford, was not at work on January 19, 1990, thus Mr. Smith reported his injury to Pat Wiggins Bagwell, Mr. Lunceford’s secretary. Ms. Bagwell testified that it was her duty to fill out accident reports, however, “Bobby Joe told me that I didn’t need to do that, because he didn’t want me to fill it out at the time, because he didn’t really think Floyd had gotten hurt on the job.” Later, appellee called Lunceford and told him about his injury in an effort to get Lunceford to help appellee get the company’s authorization to see a doctor. When appellee was to meet with Lunceford to obtain such authorization, Lunceford did not show up for the meeting. According to the record, Lunceford never authorized medical treatment for appellee.
*2 At trial, evidence was offered through a co-worker, Tracy Lynn Hatcher, that appellee attempted to bribe Hatcher into signing an affidavit by offering Hatcher the sum of $600 and an aluminum boat. Mr. Hatcher testified that he was never presented with an affidavit. Appellee denied this bribery accusation testifying that, “[b]ut I couldn’t bribe him with $600. When I seen Tracy, I couldn’t buy a pack of cigarettes. I didn’t have a nickel in my pocket. I hadn’t have for a while. And I had no way to give him six hundred.”
Appellant, National Union, brings three points of error. We shall first address appellant’s point of error three which contends that the trial court erred in overruling appellant’s motion for directed verdict because there is no evidence to support the jury’s answer to Question No. 5.
The inquiry and instructions of Jury Question No. 5 are as follows:
What was Floyd Smith’s average daily wage or average weekly wage during the year immediately preceding the injury in question?
The plaintiff’s “average daily wage” is what he received if he worked in the employment in which he was working on the date of the injury for at least 210 days in the year immediately preceding the injury, whether for the same employer or not. If he did not, it is the actual daily wage of another employee who worked at least 210 days in the year immediately preceding the injury, doing the same or similar work in the same or a neighboring place. If neither the plaintiff nor another worked in the same or similar employment for 210 days in the year immediately preceding the injury, then you should find plaintiff’s “average weekly wage” or that amount that which would be just and fair to both the plaintiff and the defendant as of the date of the injury.
Answer in dollars and cents.
Answer: $320.00
In considering a no evidence point of error, we consider only the evidence and the inferences that support the jury findings, disregarding all contrary evidence. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925 (Tex.1993). A no evidence point should be sustained when the evidence offered to prove a vital fact is no more than a scintilla, or the evidence establishes the opposite of a vital fact. See Juliette Fowler Homes v. Welch Associates, 793 S.W.2d 660 (Tex.1990).
In workers’ compensation cases the burden is upon the worker to establish average weekly wage. See Crawford v. Standard Fire Ins. Co., 779 S.W.2d 935, 938 (Tex.App.-Beaumont 1989, no writ), citing Texas Employers Insurance Association v. Shannon, 462 S.W.2d 559 (Tex.1970). Under the then applicable Workers’ Compensation Act, the worker had to establish an average weekly wage in one of three ways. First, the employee may use his/her actual wages if he/she has worked at least 210 days in the year preceding injury. Tex.Rev.Civ.Stat.Ann. art. 8309 § 1(1) (Vernon 1967). In our case, it was undisputed that appellant had been employed only two or two and a half months. Secondly, a worker could use the average wage of an employee in the same class that had worked at least 210 days in the year preceding the injury. Id. Article 8309 § 1(2). Third, where a claimant under the Workers’ Compensation Act was unable to show either preceding requirement, then the worker could compute the wage in a manner that was just and fair to both parties. Id. Article 8309 § 1(3). Compare Shannon, 462 S.W.2d at 563.
*3 Appellant, National Union, moved for directed verdict because appellee did not establish the absence of a Flint Engineering employee who had worked 210 days in the year before Smith’s injury. Smith requested permission to re-open, but after debate, decided to withdraw the motion to re-open. The trial court denied National Union’s motion for directed verdict. The following day of trial, Smith again moved to re-open to offer additional evidence on the issue. Counsel for Smith informed the court as follows:
Right now, what we have is an admission denying that anyone worked 210 days in the care of Flint Engineering and Construction versus the testimony of Tracy Hatcher, who claimed to have worked one year before Mr. Smith was injured. We’d like to re-open the evidence and just read that admission in.
Appellee then read to the jury an admission, which National Union had denied, as to whether there was at least one employee in the worker’s class and similar employment who had worked at least 210 days in the year prior to January 12, 1990. Such of course, gained appellee nothing, for an admission denied “is nothing more than a refusal to admit a fact. It is not evidence of any fact except the fact of refusal.” Newman v. Utica Nat. Ins. Co. of Texas, 868 S.W.2d 5 (Tex.App.-Houston [1st Dist.] 1993, writ denied).
Although we agree with appellant that appellee failed to come forward with evidence satisfying the requirement of art. 8309 § 1(1) and (2), we are satisfied that this case was tried pursuant to the just and fair standard set forth in art. 8309(3).
Once the trial court had ruled that Mr. Smith would be allowed to re-open the evidence in order to read National Union’s denial of a request for admission regarding other 210-day employees, National Union’s counsel made the following statement:
Well, Judge, in that event, let’s do this. If you are over our objection, allowing them to re-open the evidence we will in only that event and without waiving our objection, and plaintiff’s having rested and our having moved for instructed verdict on the ground of failure of proof that there is no 210 day employee, we will stipulate that there are, in fact, are no 210 day employees who could apply in this case. Therefore, wage rate would then come down to just and right. That will speed things up. (emphasis added)
National Union never withdrew its stipulation and later affirmed that the jury would calculate Mr. Smith’s wage by a just and fair calculation:
Judge, it goes to the just and right wage statement. If they’re going to start considering what a just and right average weekly wage-I want them to consider his history of employment for at least a year preceding-
National Union does not discuss the foregoing stipulation in its brief but focuses its concern upon the evidentiary incompetence of a denial to a request for admission. We believe and hold that appellant’s argument is moot because of its own stipulation. Appellant’s point of error three is overruled.
*4 Point of error two contends that the trial court abused its discretion in permitting appellee to offer evidence from the Employer’s Report of Injury, which error probably led to the rendition of an improper verdict.
Article 8308-5.05(2)(b) provides:
This report and any report made under Section 7.03(b) of this Act may not be considered admissions or evidence against the employer or the insurance carrier in any proceeding before the commission or a court in which the facts set out in that report are contradicted by the employer or insurance carrier.
In Texas Emp. Ins. Ass’n v. Henson, 569 S.W.2d 516 (Tex.Civ.App.-Beaumont 1978, no writ), this Court set forth policy reasons governing inadmissibility of Employer’s Report of Injury or Illness (E-1). This Court held:
In requiring the employer to file this report with the Industrial Accident Board, the Legislature realized an employer would be reluctant to disclose all the facts he had, if the report could later be used as an admission to corroborate evidence of a disputed fact or facts. See Liberty Mut. Ins. Co. v. Boggs, 66 S.W.2d 787, 795 (Tex.Civ.App.-Eastland 1933, writ dism’d); Maryland Casualty Co. v. Davis, 181 S.W.2d 107 (Tex.Civ.App.-Galveston 1944, no writ); Texas Employers Ins. Ass’n v. Shiflet, 276 S.W.2d 942 (Tex.Civ.App.-Texarkana 1955, writ ref’d n.r.e.).
In Henson, we held it to be reversible error for the trial court to allow Henson (appellee) to read from the E-1 since such document was made inadmissible by Tex.Rev.Civ.Stat.Ann. art. 8309 § 5 (Vernon 1967). In Henson, like the case before us, appellee attempted to introduce the E-1 Report into evidence. We set forth the following colloquy of appellee’s counsel’s use of the E-1:
MR. WADDELL: My question, sir is, when Mr. Smith called on the 20th or the 21st, it doesn’t seem real important, but on one of those days when he called, you said he said he had gone to see a doctor on his own and that he had hurt himself somewhere else? Is that right?
MR. LUNCEFORD: He called me and said he had gone to the doctor. And I said for what? He said I hurt my back. I said where did you hurt your back? I don’t know. He said we were in Wal-Mart and my back started hurting real bad, so I went to the doctor. I said why didn’t you report it? Why did you go to the doctor on your own? He said I didn’t know where I hurt my back.
MR. WADDELL: Have you ever said anything to the contrary sir, have you ever made any notes to the contrary? Have you ever made up a report that said something different than what you just told us?
MR. LUNCEFORD: Yeah, I made out an accident report.
MR. WADDELL: And it didn’t say that, did it? Do you remember?
MR. LUNCEFORD: Yeah, I remember.
MR. WADDELL: Did it say on that accident report the first report of injury or illness that you have to fill out for your company, did it say in there that he had hurt himself somewhere else, or did it say he hurt himself on the job?
*5 MR. LUNCEFORD: He didn’t say.
MR. WADDELL: May I approach the witness, Your Honor.
THE COURT: Yes, sir.
MR. WADDELL: You have an objection?
MR. GRIFFEY: Yes. That’s the-I mean, this is the E-1 which specifically under the Worker’s Compensation Statute cannot be introduced into evidence at this subsequent trial.
MR. WADDELL: I don’t intend to introduce it into evidence, Your Honor. Only for impeachment purposes. The jury will never see it.
THE COURT: Let’s mark it. I want to mark it first.
MR. WADDELL: If the Court wants to give me some guidance on how to do this so I don’t do something objectionable, I’d be more than willing to listen.
THE COURT: Ten or eleven, Dan? Okay.
COURT REPORTER: It’s ten.
THE COURT: Alright. This is marked as plaintiff’s exhibit number ten. The report of injury is-appears to have been made by Mr. Lunceford, because it appears to be his signature at the bottom.
THE COURT: It states (indiscernible). Describe how accident occurred and state what employee was doing when injured. It says unknown. 1/20/90-Floyd Smith warned us he could not work. He alleged he had hurt himself 1/12/90. He went to Doctor (indiscernible) for exam himself because he did not know what the problem was. For impeachment purposes, I will allow that (indiscernible) Mr. Griffey what I strongly suggest that you do is to excise any portion other than question 24 and I will allow the bottom portion, date of this request 2/6/90 Flint Engineering and then Mr. Lunceford’s name. So I will not let the report in in total but I will allow those portions I have just described.
MR. WADDELL: Your Honor,-for purposes of keeping everything going pretty smoothly can I use this exhibit and just not publish it to the jury until after we have had a chance to didact it after we’ve rested our case.-That we can-
THE COURT: I’m not going to admit it until it is properly taken care of (indiscernible)
MR. WADDELL: There is another line (indiscernible) where he indicates (indiscernible)
MR. GRIFFEY: Your Honor, here is-
THE COURT: Well, let’s talk about the foreman. Is that Mr. Lunceford?
MR. GRIFFEY: circled (indiscernible) is our objection. So I’ve got to object on the basis of-I think that it’s very clear-I don’t think it’s curable there but if that’s what they want to do in light of that very clear mandate-
THE COURT: Alright. What I’ll do and I’ll instruct the jury-is they’re to consider this only for impeachment purposes-
MR. GRIFFEY: Let me get my full objection.
THE COURT: Sure, sure.
MR. GRIFFEY: Can I? Defendant objects to the use of the E-1 in this suit based on section 5.05, Employer Report of Injury, under the Texas Worker’s Compensation Act, which specifically states that that report may not be considered as evidence against the employer or the insurance carrier in any proceeding in a court in which the facts set out in that report are contradicted by the employer or the insurance carrier.
*6 MS. MAGAN: What section is that?
THE COURT: Keep in mind, the plaintiff in this case, if allowed, it could constitute error. However, I’m only allowing it in for impeachment purposes.
MR. GRIFFEY: Or evidence.
MR. WADDELL: Your Honor, anything can be introduced-an exhibit can be hearsay, it can be circumscribed by law, as long as it’s prior state and-I would suggest I read it rather than have the exhibit admitted into evidence. I can read it to him, if you deny that (indiscernible).
THE COURT: I’ll allow you to do that. Mr. Griffey?
MR. GRIFFEY: Same objection.
THE COURT: Yeah, you still have your objection. That would save some time. Okay.
At this juncture, counsel for appellee began questioning Lunceford regarding the E-1 as follows:
MR. WADDELL: Mr. Lunceford, I’m going to hand you what’s been marked for identification as plaintiff’s exhibit number ten. Do you recognize that?
MR. LUNCEFORD: Sure.
MR. WADDELL: Is that your signature at the bottom?
MR. LUNCEFORD: Sure.
MR. WADDELL: I’d like you to briefly look over this section here that I’m point to.
THE COURT: Mr. Waddell? We-at the bench, I have admitted plaintiff’s exhibit ten for impeachment purposes only, and only as to those portions that-
MR. WADDELL: Yes, Your Honor. I want him to identify this as his writing.
THE COURT: Alright. Go ahead.
MR. WADDELL: That is the form you filled out, sir?
MR. LUNCEFORD: A clerk filled it out, I signed it.
MR. WADDELL: Sir, isn’t it true when you signed this report, what it said was in fact, that Mr. Smith told you he got hurt on the job? Isn’t that what it says?
MR. LUNCEFORD: Did it say that? I thought it said it was unknown. You didn’t give me a chance to read it.
MR. WADDELL: I’m sorry. May I approach again, Your Honor?
THE COURT: Yes, sir. Just read the sentence, Mr. Waddell.
MR. WADDELL: Describe fully how accident occurred. State what employee was doing when injured. Unknown 1/20/90. Floyd Smith informed us he could not work. He alleged he hurt himself 1/12/90, went to doctor and paid for exam himself because he did not know what his problem was. Is that right?
MR. LUNCEFORD: That’s right.
MR. WADDELL: You didn’t put in here, and you haven’t explained to us, why you didn’t put on this report that Floyd Smith said he got hurt somewhere else.
MR. LUNCEFORD: I didn’t say that he said he got somewhere else-hurt somewhere else. I said he said he didn’t know where he got hurt.
MR. WADDELL: It says here he got hurt on the job.
MR. LUNCEFORD: It does?
MR. WADDELL: That he says he got hurt on the job, sir. Doesn’t it say that?
MR. LUNCEFORD: He told me on the phone he didn’t know where he got hurt.
MR. WADDELL: But you put on the report and signed it that he said he got hurt on the job, didn’t you?
MR. LUNCEFORD: Doesn’t it say on there it was unknown where he got hurt?
*7 MR. WADDELL: Sir, no, sir. It doesn’t say that it was unknown. If you would like me to come up and show it to you again, I’ll show it to you.
MR. LUNCEFORD: Okay. Show it to me again. Okay, where?
MR. WADDELL: Right here, sir.
MR. LUNCEFORD: Okay.
MR. WADDELL: Sir, if he had told you that he didn’t know where he got hurt, you would have put it on that report, wouldn’t you?
THE COURT: Mr. Waddell, I need that exhibit, please.
MR. LUNCEFORD: Not necessarily.
MR. WADDELL: You would have kept that to yourself?
MR. LUNCEFORD: No, everyone in the-Pat Wiggins knew that also. She typed the report.
MR. WADDELL: That wasn’t the question, sir. You signed it, you read it, didn’t you?
MR. LUNCEFORD: That’s correct.
MR. WADDELL: Now, if he had of said-if Floyd Smith had said that he had gotten hurt somewhere else, or if he had said he didn’t know where he got hurt, that would have been pretty important information to put on that kind of report, wouldn’t it?
MR. LUNCEFORD: I put it there. Unknown where he got hurt.
MR. WADDELL: You put on the report, unknown where he got hurt.
MR. LUNCEFORD: That’s right.
MR. WADDELL: On that report that I just showed you.
MR. LUNCEFORD: That’s right.
MR. WADDELL: In that section I just showed you.
MR. LUNCEFORD: That’s right.
MR. WADDELL: Did you say that Floyd Smith said he didn’t know where he got hurt?
MR. LUNCEFORD: No, I didn’t say that.
MR. WADDELL: If Floyd Smith had told you, you would have put it on the report, wouldn’t you, sir?
MR. LUNCEFORD: Not necessarily.
MR. WADDELL: That’s right, because you didn’t know it was going to be important back then, did you?
MR. LUNCEFORD: It’s always important when you fill out those forms.
MR. WADDELL: That’s right. So if it had actually happened, you would have put it on the report. You would have fully described, as it says. Correct?
MR. LUNCEFORD: Not necessarily.
Even though appellee attempts to depict the use of the E-1 as proper impeachment, we perceive appellee’s use of same as merely an effort to circumvent the intent and purpose of art. 8309(5) 2(b). We find nothing in the colloquy between Lunceford and appellee’s attorney going to impeachment of Lunceford’s testimony. Counsel for appellee even attempts to misuse or misquote the content of the E-1 by suggesting, “Sir, isn’t it true when you signed this report, what it said was in fact, that Mr. Smith told you he got hurt on the job? Isn’t that what it says?” Such is a bold misstatement regarding the content of the E-1, for nowhere does this exhibit show that “Mr. Smith told you he got hurt on the job.”
We do not perceive appellee’s address to the E-1 as impeachment but rather an effort to get before the jury inadmissible evidence.
The trial court obviously saw the danger of allowing the E-1 into evidence, however the trial court did not go far enough to prevent an improper use of the Employer’s First Report of Injury or Illness. We hold that the trial court abused its discretion in permitting the impermissible use of the E-1 and that such error probably led to the rendition of an improper jury verdict. Tex.R.App.P. 81(b)(1). Appellant’s point of error two is sustained.
*8 Since the sustaining of appellant’s point of error two requires a reversal and remand of the judgment entered by the trial court, we forego, with reluctance, a discussion of possible trial court error in excluding appellant’s trial representative from the courtroom during testimony.
REVERSED AND REMANDED.
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