Court of Appeals of Texas, Beaumont.
GULF INSURANCE COMPANY, Appellant,
v.
Rose WILEY, Appellee.
No. 09-98-540 CV.
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Submitted Feb. 3, 2000.
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Delivered June 29, 2000.
Before WALKER, C.J., BURGESS and STOVER, JJ.
OPINION
BURGESS.
*1 This is an “old law” workers’ compensation case. A jury found (a) Rose Wiley suffered an injury in the course and scope of her employment on June 10, 1990; (b) that injury was a producing cause of intermittent periods of total and partial incapacity;1 (c) during the periods of partial incapacity, Ms. Wiley had an average weekly earning capacity of $216.00 per week; and (d) a prior compensable injury, in January, 1987, contributed twenty five percent to her incapacity. Based upon the jury’s answers, the trial court entered a judgment. Gulf Insurance Company (Gulf), the carrier at the time of Ms. Wiley’s second injury brings forth two issues.2 Ms Wiley brings one issue.
Ms. Wiley claimed she had suffered a repetitious trauma injury to her right hand in June of 1990 with increased arm/hand problems bilaterally. Ms. Wiley had previously suffered a repetitious trauma injury to her left hand in January 1987, which cumulated in a carpel tunnel release surgery in February 1988. Ms. Wiley returned to work after the 1988 surgery and worked until the June, 1990 injury. She had additional surgeries from that point and never returned to work.
The first issue complains the trial court erred in denying Gulf’s request for credit for the medical payments made by American Insurance Company, the workers’ compensation carrier at the time of the earlier injury. A dispute arose between the two carriers as to which was responsible for the compensation after the June, 1990 injury. In July, 1991, the Workers’ Compensation Commission (previously known as the Industrial Accident Board) entered an interlocutory order requiring both carriers to split any indemnity and medical benefits due Ms. Wiley “until her claims were settled or any other condition was disposed of that would alter the status of these claims.” In February, 1995, the two carriers reached an agreement that modified this order. The carriers agreed that effective January 9, 1995, American Insurance Company would pay the full compensation rate and medical expenses from that date forward and that each company would mutually release each other from any causes of action for any benefits paid by either company to Ms. Wiley. Consequently, American Insurance, not Gulf, ended up paying the majority of the expenses. The question now is whether those payments are to be considered “collateral” under the “collateral source rule.” We hold they are. Gulf had contested, at every level, the issue of injury to Ms. Wiley on June 10, 1990, the time when Gulf was the carrier. Its position was all of Ms. Wiley’s problems stemmed from the January, 1987 injury when American was the carrier.
The rule is well established in worker’s compensation cases that where the claimant’s medical expenses were paid by a third party, the claimant is not deprived of the right to recover the value of such services by the worker’s compensation carrier. Standard Fire Ins. Co. v. Ratcliff, 537 S.W.2d 355, 359 (Tex.Civ.App.-Waco 1976, no writ). The collateral source rule precludes a tortfeasor from obtaining the benefit of payment conferred upon the injured parties from sources other than the tortfeasor. Jones v. Red Arrow Heavy Hauling, Inc., 816 S.W.2d 134, 136 (Tex.App.-Beaumont 1991, writ denied) (citing Restatement (Second) of Torts § 920A). The theory behind the collateral source rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party and to which the wrongdoer was not privy. This general rule has been extended to general fringe benefits received by the plaintiff and to services that are gratuitously given. Texarkana Memorial Hosp., Inc. v. Murdock, 903 S.W.2d 868, 874 (Tex.App.-Texarkana 1995, rev’d on other grounds) (citing Brown v. American Transfer & Storage Co., 601 S.W.2d 931 (Tex.1980), cert. denied, 449 U.S. 1015, 101 S.Ct. 575, 66 L.Ed.2d 474 (1980)); McLemore v. Broussard, 670 S.W.2d 301 (Tex.App.-Houston [1st Dist.] 1983, no writ); Oil Country Haulers v. Griffin, 668 S.W.2d 903 (Tex.App.-Houston [14th Dist.] 1984, no writ) and City of Fort Worth v. Barlow, 313 S.W.2d 906 (Tex.Civ.App.-Fort Worth 1958, writ ref’d n.r.e.).
*2 Gulf argues that denying it credit for the benefits paid to Ms. Wiley by American would result in a double recovery and unjustly enrich Ms. Wiley. Here Gulf and American entered into an agreement where they mutually released each other for payments made to Ms. Wiley. Thus ultimately, because of the jury’s findings, American’s payments were gratuitously made. American waived its rights to proceed against Gulf. Under the jury verdict, Gulf is liable for no more than it would be without the agreement. See Simon v. Chevron U.S.A., Inc., 795 S.W.2d 340, 342 (Tex.App.-Beaumont 1990, rev’d on other grounds). This issue is overruled.
Gulf’s other issue alleges the trial court erred in failing to grant its request to have Ms. Wiley’s recovery for periods of total incapacity reduced by the contribution percentage found by the jury. Ms. Wiley counters, in her appellate issue, there is no evidence or insufficient evidence of any contribution by the prior injury. In Klein Indep. School Dist. v. Wilson, 834 S.W.2d 3, 4 (Tex.1992), the court stated:
We hold that expert medical evidence of a specified range or percentage by which the prior injury or condition contributed to the disability is not required, provided there is detailed evidence which shows in reasonable medical probability the cause of the injury and which concerns how the prior injury contributed or probably contributed to the present disability. Such evidence would allow the jury to assign a percentage of contribution from prior injuries, any percentage expressed by a medical expert being but one possible factor for the fact finder to consider.
Thus the court further refined the requirements of Transport Ins. Co. v. Mabra, 487 S.W.2d 704, 707 (Tex.1972). See also The Home Ins. Co. v. Hambric, 906 S.W.2d 956, 957 (Tex.App.-Waco 1995, no writ); Harrison v. Texas Employers Ins. Ass’n, 747 S.W.2d 494, 497 (Tex.App.-Beaumont 1988, writ denied). Therefore a review of the evidence on the contribution issue is required.
The jury had many pieces of evidence before it regarding Ms. Wiley’s final medical problem, right and left thoracic outlet syndrome, and her resulting disability. The jury had adequate evidence that related the thoracic outlet syndrome to the June, 1990 repetitious trauma injury to her right hand. However, the evidence relating the thoracic outlet syndrome to the 1987 time frame, and her left hand problems, is less. In the medical records of Dr. Thomas Ford there is the notation: “? Thoracic outlet syndrome; 2/11/88; 11:45 am.” Also in the medical records there is a report from Dr. Michael Epstein with the following; “She states that in 1987 she developed pains in her left and then in her right hands. This pain was associated with numbness and tingling.” There is another report from Dr. Ford, dated June13,1990 that states: “This is a 31-year old woman with approximately two year history of bilateral arm pain and numbness. She underwent a left carpal tunnel release in 1988. Her symptoms have gradually increased on the right side and she is admitted at this time for right carpal tunnel release.” When asked about Dr. Ford’s report, Ms. Wiley agreed she was having “some problems” with her “right”, but “mainly” her hand, “mildly.” Gulf’s counsel, while questioning Ms. Wiley, read the following from a medical report of Dr. David Rosenfield, dated November 15, 1991: “I believe she had this (thoracic outlet syndrome) in 1987. Her continuing to work may have damaged or prohibited healing her earlier injury.” He also read from a Rosenfield report dated January 27th, 1992: “We discussed the fact that her worker’s compensation involvement is querying whether she had two separate injuries. I told her from my viewpoint I can relate everything to her 1987 injury but it may very well be that in 1990 her symptoms became aggravated. I believe this woman has thoracic outlet syndrome.” Dr. Ford testified, through deposition, that the history on his 1990 operative report indicted a two-year history of bilateral arm pain and numbness. He also testified he suspected thoracic outlet syndrome was involved when he first saw Ms. Wiley back in 1987. Dr. Ford testified that Dr. Rosenfield’s statement that Ms. Wiley had thoracic outlet syndrome in 1987 was “not inconsistent” with what he (Dr. Ford) saw in 1987. Dr. Ford also testified that other doctors’ opinions that the thoracic outlet syndrome was present as early as 1987 was “certainly a reasonable assumption.” Clearly the evidence is legally sufficient on the contribution issue.
*3 Ms. Wiley argues the evidence is factually insufficient because Dr. Ford testified he gave Ms. Wiley a two to seven percent disability rating based upon her 1987 carpal tunnel problems in her left hand. Had the evidence concerning problems in 1987 only been about carpal tunnel, then Ms. Wiley would have a stronger argument that the jury finding of a twenty-five percent contribution was not reasonably related to Dr. Ford’s percentage. However, as mentioned above, there was evidence that the thoracic outlet syndrome was present in 1987; therefore, the jury certainly could view all the testimony and conclude the 1987 injury contributed some amount greater than the two to seven percent estimate of Dr. Ford. The jury’s finding of twenty-five percent contribution is not so outside the range of reasonable inference from the evidence that it amounts to conjecture or speculation. The evidence is both legally and factually sufficient.
Gulf’s second issue is sustained and Ms. Wiley’s issue is overruled. The trial court should have reduced all Ms. Wiley’s award by twenty-five percent. The judgment in that regard is reversed and remanded to the trial court for entry of a judgment in accordance with this opinion.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
STOVER.
CONCURRING OPINION
Although I concur with the majority opinion, I do not believe this case fits neatly within the collateral source rule. Strictly speaking, there is no tortfeasor who obtained the benefit of payment conferred upon the injured party from sources other than the tortfeasor. Instead, we have Market Basket’s two compensation carriers, one being a successor to the other, and neither of which is a true “third party,” as contemplated by the collateral source rule.
Evident in the record is the fact of an earlier dispute between the compensation carriers regarding who should pay Wiley’s medical bills and which injury the medical bills related to. Although the IAB at one point ordered the two compensation carriers to spit the medical bills in half, the carriers, as pointed out by the majority, later agreed that American would pay, from January 9, 1995, all the medical expenses related to the 1987 injury. The carriers then included language of mutual release in their agreement for any benefits paid prior to January 9, 1995. Ultimately, the jury, in effect, made the decision as to what effect the 1987 injury had on the 1990 injury by finding the 1987 injury contributed 25% to the 1990 injury. As a result of the jury finding, it became obvious that American had, in a sense, “overpaid.” Normally, American would have had a remedy for its overpayment against Gulf under a theory of unjust enrichment or, perhaps, equitable subrogation, but, because of its agreement with Gulf, American had given up such remedy.
By virtue of the jury verdict, Gulf is obligated to pay the medical expenses at issue; it is not entitled to a credit for the sums paid by American. If the jury verdict has the effect of Wiley’s recovery of Gulf’s payments on the medical expenses, as well as American’s payments on those same expenses, such a result has been obtained because American gave up its right to pursue a recovery against Gulf by entering into the agreement containing the release language and failing to contest that provision.
*4 I, therefore, concur with the result of the opinion.
Footnotes |
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1 |
The periods and type of incapacity found by the jury were:
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2 |
Gulf makes no challenge to any of the jury’s findings. |
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