Alexander v. Foster Wheeler Virgin Islands, Inc.

Court of Appeals of Texas, Beaumont.

Ricky ALEXANDER, Appellant,

v.

FOSTER WHEELER VIRGIN ISLANDS, INC., Appellee.

No. 09-97-469 CV.

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Aug. 26, 1999.

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Rehearing Overruled Oct. 7, 1999.

On Appeal from the 136th District Court, Jefferson County, Texas Trial Cause No. D-148427.

Before STOVER and FARRIS³, JJ.

OPINION

BURGESS.

*1 The issue in this case is whether the trial court erred in sustaining a defendant’s motion for judgment n.o.v. in a wrongful discrimination case under TEX.LAB.CODE ANN. § 451.001 (Vernon 1996). Foster Wheeler’s motion for judgment n.o.v. asserted there is no evidence of any discrimination on the part of Foster Wheeler, no evidence of any mental anguish related to the alleged discrimination and no evidence of any lost wages as a result of any alleged discrimination.

STANDARD OF REVIEW

Regardless of any contrary evidence we must sustain the jury’s findings and reverse the judgment n.o.v. if there was more than a scintilla of competent evidence supporting the verdict. See Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394 (Tex.1991).

UNLAWFUL DISCRIMINATION UNDER § 451.001

It is unlawful for an employer, in any manner, to discriminate against an employee because he has instituted a proceeding under the Texas Worker’s Compensation Act. See § 451.001(3). Id.

EMPLOYEE’S INJURY

Ricky Alexander, while an employee of Foster Wheeler Virgin Islands, Inc., suffered a compensable hernia in July 1993. Alexander’s injury occurred while he was working in the Virgin Islands. Despite his injury Alexander was able to continue working. Alexander missed no time from work, worked overtime, and received an anticipated completion bonus when the job was completed in September, 1993. Alexander returned to Texas in earlier October, consulted with his attorney, and was referred to a doctor.

Alexander filed his notice of injury and claim for compensation on November 8, 1993. Following a benefit review conference Alexander and the worker’s compensation carrier signed a Benefit Review Conference Agreement on April 28, 1994. Alexander’s hernia was surgically repaired a couple of weeks after the agreement was signed, and he was released to return to work eight weeks later. The surgery was successful, and Alexander has returned to the same work.

FOSTER WHEELER’S DISCRIMINATION

*2 Alexander alleged that on or about August 2, 1993 Foster Wheeler denied him medical treatment for his injury. Alexander contended that Foster Wheeler’s safety officer would not allow him to go to a local doctor retained by Foster Wheeler to treat its employees for both occupational and nonoccupational injuries, if Alexander contended the injury was work related. It was company policy for Foster Wheeler to provide medical treatment to its employees, and there was testimony from both Alexander and the safety officer that Alexander was told he would have to pay for his own medical treatment. Alexander testified he only wanted to be examined by a doctor to establish the nature of his injury. This refusal to provide medical treatment, if Alexander claimed it was a work related injury, is some evidence of discrimination under the statute.

ALEXANDER’S DAMAGES

Alexander claims he suffered lost income and mental anguish as a consequence of Foster Wheeler’s discrimination. The only evidence of damages claims was Alexander’s testimony. Alexander complains his return to work was delayed for nine months because his surgery was delayed until May 1994. Part of this delay was Foster Wheeler’s refusal to timely file the First Report of Injury. This refusal prolonged the investigation to determine whether the injury was compensable, thus contributing to the delay in repairing the hernia itself.” Alexander answered, “Just a long time not being able to go to work and just being off of work that long and not being able to provide the way you should.” Alexander testified being off work was a hardship. This is some evidence of lost wages.

To recover mental anguish damages a plaintiff must produce direct evidence of the nature, duration, or severity of his anguish, thus establishing a substantial disruption in his daily routine or other evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex.1995). Alexander testified he was being treated for depression. This is some evidence of mental anguish more than mere worry or anxiety.¹ Thus the trial court erred in granting the judgment n.o.v. Alexander’s issue is sustained.

We must now consider Foster Wheeler’s cross-points. Their first cross-point argues the trial court erred in the submission of jury question one. They specifically point to the instruction included with the question. The instruction stated:

You are instructed that the Texas Workers’ Compensation Act provides that:

*3 An employee who sustains a compensable injury is entitled to all health care reasonable [sic] required by the nature of the injury as and when needed. The employee is specifically entitled to health care by the nature of the injury as and when needed. The employee is specifically entitled to health care that:

1. cures or relieves the effects naturally resulting from the compensable injury;

2. promotes recovery; or

3. enhances the ability of the employee to return to or retain employment

Foster Wheeler complains the instruction constituted a misstatement of the law because it implied the duty to provide medical care is that of the employer when, in fact, such duty specifically rests with the workers’ compensation carrier. Thus the instruction also constituted an improper comment on the weight of the evidence in placing the duty to provide medical care on the employer. We agree.² See TEX.R.APP.P. 44.1. Foster Wheeler’s first cross-point is sustained; it is unnecessary to address the remaining cross-points. The judgment is reversed and remanded for a new trial.

REVERSED AND REMANDED.

FARRIS,⁴ J.

DISSENTING OPINION

*3 I dissent because there is not a scintilla of evidence that the discriminatory act Alexander alleged caused the damages he claims. Indeed, Alexander’s own testimony ascribed his damages to the conduct of Foster Wheeler’s worker’s compensation carrier rather than to anything Foster Wheeler did.

Alexander was injured in July 1993. In August, Alexander asked to be referred to a doctor in the Virgin Islands retained by Foster Wheeler. The safety officer doubted that the injury was job related and refused to make the referral, telling Alexander he would pay for his own treatment. The doctor was ordinarily available to employees regardless of whether or not their illness or injuries were work related. There was no evidence that Foster Wheeler had refused to refer any other employees to the doctor. Apparently the safety officer refused to refer Alexander because of the nature of his injury. Foster Wheeler considered Alexander a good employee, eligible to be employed again.

Alexander only wanted to see the doctor to establish the nature of his injury. Alexander did not trust the quality of medical treatment available in the Virgin Islands and would not submit to treatment there. Alexander returned to Texas in October and six weeks later first saw a doctor was confirmed that he had a hernia was surgically repaired a couple of weeks after the agreement was signed. The surgery was successful and Alexander was released to return to work eight weeks later. Alexander returned to the same work in September. There is no evidence explaining why Alexander waited six weeks to see a doctor, what transpired between the time Alexander filed his claim and the benefit review conference, or why Alexander did not return to work until September.

*4 Among other things, Foster Wheeler’s motion for judgment n.o.v. asserted that Alexander failed to prove any mental anguish related to its discrimination of any causal connection between its failure to send him to a doctor and his lost wage claim. The record supports that assertion. Alexander’s pleadings and evidence pointed only to the refusal to refer him to a doctor as an act of unlawful discrimination.

Alexander pleaded, testified, argued, and still contends that Foster Wheeler discriminated by refusing to refer him to a doctor in August 1993. But Alexander testified that his return to work was delayed and his damages were caused by the failure of “they” to sign the Benefit Review Conference Agreement earlier. Foster Wheeler is a subscriber under the Worker’s Compensation Act and was not a party to the negotiations resolving Alexander’s claim before the Commission. Alexander has never contended that he was damaged because Foster Wheeler refused to timely file a First Report of Injury. Accordingly, the trial court was right in sustaining Foster Wheeler’s motion for judgment n.o.v., and I would affirm the judgment.