Court of Appeals of Texas,

Eastland.

CITY OF GRAND PRAIRIE, Appellant

v.

Roger David MILLS, Appellee.

No. 11-93-185-CV.

|

Feb. 10, 1994.

Attorneys & Firms

John M. Skrhak, for City of Grand Prairie.

Kim R. Thorne and John Alan Goren, for Roger David Mills.

OPINION

BOB DICKENSON, Justice.

*1 The City of Grand Prairie, which is self-insured, appeals a judgment ordering it to pay $72,890.05 to Roger David Mills for workers’ compensation benefits. The jury found that Mills was totally incapacitated as a result of a back injury sustained while he was acting within the course of his employment as a fireman for the City of Grand Prairie. The jury also found that Mills had good cause for failing to timely file his claim for compensation. We affirm.¹

Points of Error

The City asserts seven points of error. In the first four points, the City contends that the trial court erred in entering judgment for Mills because: (Point 1) there was no evidence to support the jury’s finding of good cause for the delay in filing a claim with the Industrial Accident Board; (Point 2) there was insufficient evidence to support that finding; (Point 3) the jury’s finding of good cause was against the overwhelming weight of the evidence; and (Point 4) as a matter of law, Mills failed to establish good cause. In the fifth point, the City argues that the trial court erred in allowing hearsay testimony. In the sixth point, the City argues that the trial court erred in allowing the hearsay testimony because it was unfairly prejudicial. In the final point, the City argues that the jury’s finding that the injury was a producing cause of any total and permanent incapacity was contrary to the overwhelming weight of the evidence.

Good Cause

In order to receive workers’ compensation benefits, a claimant must file his claim with the Industrial Accident Board (now the Texas Workers’ Compensation Commission) within one year of the date of his injury.² If the claimant fails to timely file his claim, he may still receive benefits if he shows continuous “good cause” for his delay. “Good cause” exists if the claimant prosecuted his claim with the degree of diligence that a person of ordinary prudence would have exercised under the same circumstances. Lee v. Houston Fire and Casualty Insurance Company, 530 S.W.2d 294 at 296 (Tex.1975). The existence of good cause is a question of fact if there is any evidence of care and prudence. Lee v. Houston Fire and Casualty Insurance Company, supra at 296.

In the first four points of error, the City contends that the jury’s finding that Mills had good cause for failing to timely file his claim was not supported by the evidence. We disagree. In order to review the no evidence point, we must consider only the evidence and inferences that tend to support the verdict and disregard any evidence or inferences to the contrary. If there is any evidence of probative force to support the verdict, the no evidence point must be overruled. Juliette Fowler Homes, Inc. v. Welch Associates, Inc ., 793 S.W.2d 660 at 666 (Tex.1990); In re King’s Estate, 244 S .W.2d 660 (Tex.1951). In order to review the insufficient evidence points, we must review all of the evidence and determine whether the verdict is so contrary to the overwhelming weight of the evidence as to be “clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175 at 176 (Tex.1986); In re King’s Estate, supra.

*2 The record shows that Mills, who had been employed as a fireman for Grand Prairie since 1971, suffered a back injury that occurred during the course of his employment in May of 1986. In January of 1987, Mills had surgery to repair the herniated disc in his back. In August of that year, he returned to his regular duties at the fire station. He continued to have pain in his lower back and hips, and he took various drugs to help relieve the pain. While fighting a fire on February 16, 1990, Mills slipped on a wet floor and twisted his back as he reached out to catch the wall to keep himself from falling. He felt a sharp pain in his lower back and thought to himself: “[W]ell, here I’ve gone and aggravated the old injury; I’ve messed it up.” Mills immediately reported the incident to his chief. Upon returning to the station, Mills filled out an accident report. Mills was absent from work for three weeks due to the February 16 injury, and he reported the incident to his doctors. Mills returned to work with his doctor’s permission in early March of 1990, but he continued to experience pain in his back. On April 8, 1991, Mills’ doctor sent him to have an MRI³ taken because Mills had begun to experience bilateral leg pain. The MRI showed that Mills had a “new injury,” another herniated disc; however, the exploratory surgery performed on April 23, 1991, showed that Mills had a “bulging boggy dis[c] and scar tissue,” not a herniated disc. Also during April of 1991, Mills was informed by the workers’ compensation claims examiner that the expense of the diagnostic scan was not covered because it related to the new injury which Mills had sustained in February of 1990. On April 19, 1991, the attorney who was representing Mills in his claim for workers’ compensation from the first back injury filed a claim for workers’ compensation regarding the injury of February 16, 1990.

Mills testified that he did not know that he had a “new injury” for workers’ compensation purposes until he was notified by his doctor and by the claims examiner in April of 1991. He thought that he had simply aggravated the first back injury and that it would be covered under his first claim. That claim was not settled until late in 1990. It is apparent from the record that neither Mills nor his doctor knew that the second injury was serious until the MRI was taken in April of 1991.

We hold that there is some evidence to support the jury’s finding of good cause; and, after considering all of the evidence, we also hold that the evidence is factually sufficient to support that finding. See and compare Continental Casualty Company v. Cook, 515 S.W.2d 261 at 262 (Tex.1974); Hawkins v. Safety Casualty Co., 207 S.W.2d 370 at 372 (Tex.1948); Farmland Mutual Insurance Company v. Alvarez, 803 S.W.2d 841 at 843 (Tex.App.-Corpus Christi 1991, no writ). The first four points of error are overruled.

Hearsay

In the fifth and sixth points of error, the City contends that the trial court erred in allowing Mills to testify concerning a conversation that he had with his doctor. The City objected when Mills was asked about the discussion that he had with his doctor concerning the results of the MRI taken in April of 1991. Mills testified that the doctor apologized, showed him the X-ray, told Mills that he had a herniated disc, and told him that it was definitely a new injury.

*3 The City objected that the testimony was hearsay. The City argues on appeal that the hearsay was not admissible pursuant to the “state of mind” exception because Mills’ state of mind had already been established. The trial court did not admit this testimony under the “state of mind” exception. See TEX.R.CIV.EVID. 803(3). The court said that the objection was overruled because it was the court’s “under-standing that [Mills] is offering this not for the truthfulness of the statement but merely to show why Mr. Mills acted upon such information.” This was relevant to the issue of good cause for late filing of the claim. See TEX.R.CIV.EVID. 801(d). The jury was instructed that this testimony “is only to go to the issue of good cause on the filing of the claim.” The fifth point of error is overruled.

The City also objected at trial that the probative value of the hearsay testimony was substantially outweighed by its prejudicial value because the doctor testified by deposition and was not present at the trial to acknowledge that he made those statements. On appeal, the City argues that Mills’ testimony concerning the herniated disc was unfairly prejudicial because it created confusion in the minds of the jury as to whether the February 1990 injury was a producing cause of Mills’ disability. Appellant has failed to preserve this contention for review. First, we note that the City’s reason regarding why the evidence was unfairly prejudicial is different on appeal than it was at trial. Second, we note that the same evidence was later introduced during the doctor’s deposition testimony. The doctor testified twice without objection that the MRI taken in April of 1991 suggested a disc herniation. Moreover, we note that any confusion was cleared up when the doctor testified that the MRI showed a possible disc herniation but that the resulting surgery revealed a bulging boggy disc. The doctor testified that, in order to enlarge the opening for the nerve root, he shaved the joint where the bulging boggy disc was found. The doctor further testified that the bulging boggy disc was the result of Mills aggravating his 1986 back injury when he slipped in February of 1990. The sixth point of error is overruled.

Producing Cause

The City argues in its final point of error that the finding that the February 1990 injury was a producing cause of any total and permanent incapacity was contrary to the overwhelming weight of the evidence. We disagree. The record shows that Mills’ doctor testified that the February 1990 injury caused the bulging boggy disc that necessitated the April 1991 surgery. Both Mills and his doctor testified that Mills had been in more pain since the date of the second injury and that he began to complain of pain radiating into both legs. Mills’ doctor attributed this to the incident when Mills slipped while fighting a fire on February 16, 1990. Furthermore, immediately after Mills slipped, he felt a sharp pain in his back and did not return to work for three weeks. Co-workers testified that they noticed that, after Mills slipped in February of 1990, he was in more pain and was less capable of performing his job. After the second surgery, Mills was unable to return to work, and his doctor testified that he was totally and permanently incapacitated from his usual job duties as a fireman. The doctor attributed only 20 percent of Mills’ incapacity to the first injury. The record supports the jury’s finding that the February 1990 injury was a producing cause of Mills’ incapacity. The seventh point of error is overruled.

*4 The judgment of the trial court is affirmed.

	Footnotes
1		This appeal was transferred from the Dallas Court of Appeals to this court pursuant to TEX. GOV’T CODE ANN. § 73.001 (Vernon 1988).
2		At the time of Mills’ injury, TEX.REV.CIV.STAT. art. 8307, § 4a was in effect. That statute was repealed as of January 1, 1991, by TEX.REV.CIV.STAT. art. 8308-5.01, and that statute has now been replaced by TEX. LABOR CODE ANN. §§ 409.003 and 409.004 (Vernon Pamph.1994).
3		This is a diagnostic test which makes a magnetic scan and creates an image of a portion of the patient’s anatomy.