Court of Appeals of Texas, Houston (14th Dist.).

THE ST. PAUL INSURANCE COMPANY, Appellant

v.

Edward D. HOLLIS and HCA Medical Center Hospital, Appellees,

No. 14-95-00725-CV.

|

Jan. 29, 1998.

Panel consists of Justices LEE, AMIDEI and EDELMAN.

OPINION

EDELMAN, Justice.

*1 In this suit to set aside a worker’s compensation award, the St. Paul Insurance Company (“St. Paul”) appeals a judgment in favor of Edward Hollis on the grounds of: (1) lack of subject matter jurisdiction over HCA Medical Center Hospital (“HCA”); (2) improper exclusion of evidence; (3) insufficiency of the evidence; and (4) incurable jury argument. We affirm.

In November of 1990, Hollis suffered a back injury while performing his duties as a mechanic. In January of 1992, the Industrial Accident Board (the “IAB”)¹ awarded Hollis worker’s compensation benefits and medical expenses. St. Paul and Hollis filed separate suits to set aside the award, and the two actions were later consolidated.

In July of 1993, HCA intervened in the case seeking recovery from St. Paul for medical services HCA provided to Hollis during the summer of 1992, after the IAB award. In March of 1994, the worker’s compensation claims were tried to a jury which answered all questions in favor of Hollis and HCA. In accordance with the jury’s verdict, the trial court entered judgment awarding Hollis compensation and medical expenses totaling $110,591.45, and awarding HCA medical expenses totaling $13,962.67.²

Subject Matter Jurisdiction

The first and second of St. Paul’s seventeen points of error argue that the trial court lacked subject matter jurisdiction over HCA’s claims because HCA did not exhaust its administrative remedies by first seeking relief before the IAB. The version of the Worker’s Compensation Act applicable to this case provides in part:

Notwithstanding any other provision of this law, … no award of the [IAB], and no judgment of the court having jurisdiction of a claim against the [Texas Employers’ Insurance] association … shall include … any cost or expense of any such items not actually furnished to and received by the employee prior to the date of said award or judgment. The first of such final award or judgment rendered on such claim shall be res judicata of the liability of the association for all such cost or expense which could have been claimed up to the date of said award or judgment … but shall not be res judicata of the obligation of the association to furnish or pay for any such items after the date of said award or judgment….

Tex.Rev.Civ. Stat. Ann.. art. 8307 § 5 (Vernon 1967) (repealed 1991).³

The IAB and district court have concurrent jurisdiction over claims for medical expenses incurred between the time of the IAB award and the district court’s entry of judgment in a trial de novo.⁴ Therefore, a party seeking payment of medical expenses incurred on the injured employee’s behalf between the time of the IAB award and the district court’s entry of judgment may, but is not required to, present the claim to the IAB before bringing it to the district court.⁵

In this case, HCA sought recovery of medical services rendered to Hollis after the IAB award but before entry of the trial court’s judgment. Thus, HCA was not required to present its reimbursement claim to the IAB before seeking that relief in the district court.⁶ Accordingly, the trial court had subject matter jurisdiction over HCA’s claim for medical services rendered to Hollis after the IAB award, and points of error one and two are overruled.

Exclusion of Medical Fee Guidelines

*2 St. Paul’s third point of error contends the trial court erred in excluding evidence of the medical fee guidelines applicable to worker’s compensation cases.

Rulings on admissibility of evidence are reviewed for abuse of discretion.⁷ Except as otherwise provided by statute or rule, all relevant evidence is admissible and all irrelevant evidence is inadmissible. See Tex.R. Civ. Evid. 402. All charges for services that are consistent with the medical fee guidelines adopted by the IAB are presumed reasonable as to amount, and those guidelines may be admissible as evidence in any proceeding before a court of competent jurisdiction. See Tex.Rev.Civ. Stat. Ann. art. 8306, § 7b(o) (Vernon 1967) (repealed 1991).

In this case, question 11 of the jury charge asked “What is the amount of the health care reasonably required by [Hollis] from [HCA] as a result of the injury?” The accompanying instruction stated, in part, “Fair and reasonable charges for the health care services required by the employee are to be included in the amount you find.”

When HCA offered into evidence the bills for its treatment of Hollis, St. Paul objected on the ground that a proper predicate had not been laid because the witness had not testified “that he knows anything about the fee guidelines under the Texas Worker’s Compensation Act.” HCA’s counsel responded that the fee guidelines were irrelevant because “[t]he standard is fair and reasonable with respect to the charges.”

St. Paul has not cited the portion of the record, if any, where it actually offered a copy of the medical fee guidelines into evidence. However, it later made an offer of proof of the following testimony from Sherry Marie Skinner, the patient account manager for HCA:

Q: Are you aware that the Texas Worker’s Compensation Commission, formerly the [IAB], has promulgated fee guidelines for payment of hospital services rendered to Worker’s Compensation claimants?

A: Yes, I am.

Q: [A]re you aware of the hospital facility ratio for HCA Medical Center Hospital in accordance with the fee guidelines applicable to treatment provided during the time period June 24, 1992 through July 18, 1992?

A: Yes, I am.

Q: [W]hat is the ratio for the HCA Medical Center Hospital here in Houston, Texas?

A: This discount would be a .15.

Q: In other words, we would determine the sum by taking the $15,990.20, multiply that by .85, and that would be the sum under the Texas Worker’s Compensation fee guidelines that the insurance company would pay the hospital, assuming all of the services and charges in there are reasonable and necessary?

A: That’s correct.

(emphasis added). A similar offer of proof elicited from Milka Nicolic Conner, the corporate representative for St. Paul and its adjuster in this case, culminated with the following exchange:

Q: Do you agree with the testimony by Ms. Skinner that the actual amount that should be paid, assuming that all the services provided are reasonable and necessary, would be to take the … $15,990.20 of the bill and multiply that by .85? Is that a correct format?

*3 A: Yes, it is.

(emphasis added). The trial court denied admission of this evidence.

St. Paul complains that this evidence was necessary for the jury to determine (a) the reasonable amount for HCA’s medical care, and (b) whether HCA’s care was reasonable and necessary. However, as reflected in the italicized passages above, the evidence St. Paul offered concerning the fee guidelines pertained only to the discount rate to be applied to charges for which the underlying services and amounts are already deemed reasonable and necessary. Although application of this discount rate might have elevated the status of the charges to that of being presumed reasonable pursuant to section 7b(o), that discount rate was not probative of whether the services or charges were reasonable or necessary in the first place. Therefore, to the extent HCA opted to prove the reasonableness of the un discounted charges, rather than invoking the presumption of reasonableness on the discounted amount, the discount factor giving rise to the presumption was not relevant. Accordingly, the trial court did not err in excluding evidence of the discount rate, and point of error three is overruled.

In points of error four and five, St. Paul contends that Hollis’ witnesses raised the probability that he had sustained a herniated disk or other condition that could require surgery, and that the trial court erred in excluding evidence showing Hollis did not have a condition requiring surgery. In an offer of proof, Dr. Axelrad and St. Paul’s orthopedic expert, Dr. Jack Southern, each testified that surgery was not prescribed for Hollis because there was no finding of a herniated disk.⁸

An error in the exclusion of evidence requires reversal only if the excluded evidence is not cumulative.⁹ In this case, St. Paul’s brief cites no portion of the record in which the evidence suggests Hollis’ condition could require surgery.¹⁰ In addition, as to the severity of Hollis’ condition otherwise: (1) Dr. Axelrad testified that he found no herniated disk or radiculopathy; (2) Dr. Southern testified that he found no evidence of a herniated disk, nerve root entrapment or pinched nerve as a result of a disc problem; (3) Dr. Hansen testified that Hollis’ “low back injury is not available to surgery”; and (4) Dr. Southern testified that he diagnosed Hollis’ condition as a sprain that generally heals itself in four to six weeks, but may have taken longer in Hollis’ case due to degeneration of the disc. In light of this evidence, St. Paul has not demonstrated that the exclusion of any additional evidence showing Hollis did not have a condition requiring surgery was error. Accordingly, points of error four and five are overruled.

Standard of Review for Sufficiency of the Evidence

St. Paul’s sixth through sixteenth points of error challenge the legal and factual sufficiency of the evidence to support the judgment. In reviewing a legal sufficiency challenge, we consider only the evidence and reasonable inferences supporting the jury’s finding, and overrule the challenge if more than a scintilla of evidence supports the finding. Minnesota Mining and Mfg. Co. v. Nishika Ltd., 953 S.W.2d 733, 738 (Tex.1997). However, an expert’s bare opinion will not suffice; the substance of the testimony must be considered. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997). Thus, for example, a flaw in an expert’s reasoning concerning the underlying data may render the expert’s opinion unreliable and, thus, no evidence. See id. at 714; Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex.1995) (stating that when an expert’s opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment).

*4 In reviewing for factual sufficiency, we weigh all of the evidence in the record and overturn the challenged finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex.1996).

Necessity of Treatment

In points of error six and seven, St. Paul challenges the legal and factual sufficiency of the evidence to support the jury’s finding that Hollis’ treatment at HCA was reasonable and necessary, i.e., “reasonably required” as a result of his injury. In particular, St. Paul challenges Dr. Axelrad’s conclusions that Hollis suffered from such pain and depression to support his admission to the HCA pain center.

Hollis testified that he had been in pain since the date of his injury. He described the pain as being “like somebody is pinching me in my back or sticking an icepick in you. Then when I sit too long, my legs start aching…. [O]ther than that, it just hurts.” He further testified that he was depressed most of the time, and that “I get to a point where I wish I could go to sleep and not wake up and this all be over.”

In the summer of 1992, Hollis was twice admitted to HCA’s pain management program for chronic pain and depression. Dr. Axelrad was Hollis’ admitting physician and supervised his treatment. Dr. Axelrad diagnosed Hollis with: (1) chronic pain syndrome secondary to degenerative disk disease of the lumbar spine; (2) chronic pain syndrome secondary to myofascial pain syndrome; and (3) major depression secondary to chronic pain syndrome. This diagnosis was based on Dr. Axelrad’s review of Hollis’s prior medical history and his treatment of Hollis, which included psychological testing and a psychosocial evaluation. Dr. Axelrad concluded, based on reasonable medical probability, that the services rendered by HCA were reasonably required to treat Hollis’ pain and that the treatment provided at HCA was reasonable and necessary for Hollis’ care.

Hollis also offered into evidence the deposition testimony of Dr. Zvi Kalisky, a board certified physician in the field of physical medicine and rehabilitation who also treated Hollis. Kalisky gave his opinion, based on reasonable medical probability, that Hollis suffered from chronic pain and depression caused by his injury, and that the medical care and treatment received by Hollis at HCA was reasonable and necessary for that injury. The testimony of Hollis, Axelrad, and Kalisky was legally sufficient to support a finding that Hollis suffered from chronic pain and depression and thus that his treatment at HCA was reasonably required as a result of his injury.

As to factual sufficiency, Dr. Perez, who was a Ph.D. in psychology and board certified in pain management, reviewed Hollis’ medical records for St. Paul. Perez testified that Hollis’ neurological exams were normal, his physical examinations and diagnostic tests did not pinpoint an organic cause for his complaints, his psychological tests failed to show depression, and he was on a low dosage of pain medication prior to his admissions. From these findings, Perez concluded, based on reasonable psychological probability, that Hollis’ admission to HCA’s pain management program was neither reasonable nor necessary. Although Perez’s testimony presents a significantly different interpretation of Hollis’ medical history than that of Axelrad and Kalisky, Perez never personally treated or examined Hollis. To the extent he was correct that not all of the data in Hollis’ medical records supported the conclusion that Hollis was depressed or in chronic pain, the jury, as sole judge of the credibility of the witnesses and weight of their testimony,¹¹ was free to resolve such conflicts. Considering the entire record, the evidence cited by St. Paul does not demonstrate that the jury’s finding that Hollis’ treatment at HCA was reasonably required as a result of his injury was so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly, points of error six and seven are overruled.

Total Incapacity

*5 In points of error eight through twelve, St. Paul contends that the jury charge failed to properly distinguish between “total” and “partial incapacity” and that the evidence is legally and factually insufficient to support the jury’s finding that Hollis was “totally and permanently” incapacitated.

As to the alleged charge error, the jury charge contained the following definitions of total and partial incapacity:

The term “TOTAL INCAPACITY” as used in this charge does not mean absolute inability to perform any kind of labor, but means that one is disabled from performing the usual tasks of a workman, not merely the usual tasks of any particular trade or occupation, to such an extent that he cannot get and keep employment.

“PARTIAL INCAPACITY” is any degree of incapacity less than total incapacity and means that a person’s earning capacity is reduced because he can perform only part of the usual tasks of a worker or can perform only lower-paying work than he could perform before his injury, but can get and keep employment suitable to his condition.

St. Paul requested the following instruction to be added to the charge near the definitions of total and partial incapacity: “A person who can do some but not all of the usual tasks of a workman is partially disabled.” This request was denied by the trial court. On appeal, St. Paul argues that the failure to submit this instruction was error because the jury should have been instructed that if it found Hollis could do some of the usual tasks of an employee, he was only partially, and not totally, incapacitated.

A trial court should “submit such instructions and definitions as shall be proper to enable the jury to render a verdict.” Tex.R. Civ. P. 277. The trial court has considerable discretion in deciding what instructions are necessary and proper. See State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451 (Tex.1997). However, the jury should not be burdened with surplus instructions. See Accord v. General Motors Corp., 669 S.W.2d 111, 116 (Tex.1984).

Total and partial incapacity are alternative theories of recovery. See Archuleta v. International Ins. Co., 667 S.W.2d 120, 122 (Tex.1984). The term “total incapacity” does not imply absolute disability to perform any kind of labor. See Texas Employers Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1001 (Tex.1944). Nor does it mean inability to perform in the worker’s usual occupation, but only disability to perform the tasks of a workman generally:

An employee is not entitled to recover for total incapacity merely because he is unable to procure and retain employment in his usual occupation. The term implies disability to perform the usual tasks of a workman and not merely the usual tasks of any particular one trade or occupation.

Id. at 1002 (emphasis added); see Texas Employers Ins. Ass’n v. Hawkins, 369 S.W.2d 305, 306 (Tex.1963); see also 2 State Bar of Texas, Texas Pattern Jury Charges PJC 20.02 (1989). In this case, the definitions submitted in the charge sufficiently conveyed these distinctions, including that a person who can do some but not all of the usual tasks of a workman is partially, not totally, disabled. Therefore, the failure to submit an additional instruction to that effect was not an abuse of discretion.

*6 In its challenge to the sufficiency of the evidence of total incapacity,¹² St. Paul contends that Hollis presented evidence only that he could not return to his past employment and no evidence that he could not do the usual tasks of a workman. However, (1) Dr. Axelrad testified that he believed Hollis is “unable to obtain and retain a job doing the usual tasks of a working person”; and (2) Dr. Hansen, a Ph.D. in vocational rehabilitation, testified that, based on reasonable vocational probability, the injury Hollis suffered kept him from “obtaining and maintaining the usual tasks of a workman.” This was legally sufficient evidence of total incapacity.

As to factual sufficiency, St. Paul claims that Hollis was released to return to some form of employment, was capable of working in some capacity, and had been referred for job training and placement through the Texas Rehabilitation Commission. In this regard, Dr. Kalisky testified, for example, that Hollis “may be able to do work that does not entail heavy physical activity, such as lifting, bending, twisting, and … other physical-or climbing….” Kalisky further testified that Hollis’ “work prior to his injury consisted of heavy manual work…. With this kind of pain syndrome, the patient is not capable of heavy work and I strongly recommend that the patient contact the local [Texas Rehabilitation Commission] office and start on vocational rehabilitation and less physically demanding work.”

St. Paul has cited no evidence suggesting that Hollis can do manual work or other usual physical tasks of a workman. If anything, the evidence it cites demonstrates that Hollis cannot do the usual physical tasks of a workman and must therefore seek training and employment in another occupation. Therefore, St. Paul has not demonstrated that the jury finding of total incapacity is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly, points of error eight through twelve are overruled.

Attendant Health Care

St. Paul’s points of error thirteen through fifteen argue that the evidence is legally and factually insufficient to support the jury’s finding that Hollis was entitled to recover for the value of attendant health care provided by Hollis’ wife because: (1) no physician prescribed or recommended attendant health care; and (2) the services provided were only normal marital duties not of the type provided by a hired nurse.

An injured employee has the right to select the persons who furnish his nursing care. See Tex.Rev.Civ. Stat. Ann. art. 8306, § 7 (Vernon 1967) (repealed 1991). Nursing services may be provided to an employee by his wife, but are recoverable only to the extent they consist of the type of extraordinary services ordinarily performed by a hired nurse, and not the usual domestic services contemplated by the marital relationship, i.e., those provided to an able-bodied husband. See Transport Ins., 400 S.W.2d at 883-84.

*7 In support of its argument that nursing services must be prescribed by a physician, St. Paul cites section 42.20(c) of the Texas Administrative Code, which provides “Treating doctors may prescribe nursing care to be rendered by unlicensed persons, including but not limited to members of the injured worker’s family.” See 28 Tex. Admin. Code § 42.20(c) (West 1997). Although section 42.20(c) allows a treating doctor to prescribe nursing care by unlicensed family members, i.e., in lieu of or in addition to that provided by licensed nurses, it does not address nursing care not prescribed by a doctor. Similarly, the opinion in Transport Insurance states that there was medical testimony in the case that the employee required constant attention and aid, and that three doctors said the services provided by the employee’s wife were necessary. However, these statements simply refer to evidence offered after the fact at trial to demonstrate the need for the services, and do not suggest that the services had been prescribed by a doctor. Neither Transport Insurance nor any other case we have been cited or found has denied recovery of nursing services because the services were not prescribed by a doctor. To the extent the need for such services is established by reliable evidence, we see no useful purpose in creating such a restriction and decline to do so.

Regarding whether Mrs. Hollis’ services were of a type ordinarily provided by a licensed nurse, Hollis testified that, at times since the injury, his wife has had to help him bath and dress. Hollis’ physical therapist, Garland Picou, testified that, depending on the acuteness of Hollis’ condition at a given time, Hollis sometimes needed, and his wife provided, therapy such as putting hot packs on his back, massage, and stretching. Mrs. Hollis further testified that she had been trained as a nurse’s aid and, among other services, provided Hollis meals and transportation and kept account of his medicine. This was legally sufficient evidence that Hollis needed, and Mrs. Hollis provided, nursing services beyond those ordinarily performed by a wife for an able-bodied husband.

In challenging factual sufficiency, St. Paul cites the testimony of Dr. Axelrad, Millie Conner, and St. Paul’s expert, Dr. Southern, respectively, that: (1) Axelrad did not prescribe attendant health care for Hollis; (2) St. Paul never received a request for attendant care for Hollis; and (3) Hollis had enough range of motion to bathe himself, get out of bed, and fix a sandwich. In addition, St. Paul contends that because Picou was not a licensed physician, he was not qualified to determine the need for nursing services.

However, the fact that attendant care was not requested or prescribed does not establish that it was not needed or provided. Nor are we persuaded that the jury needed the opinion testimony of a doctor to understand whether the character of Mrs. Hollis’ services was household or nursing in nature. Lastly, although Dr. Southern’s testimony controverted the need for nursing services, we cannot say that the trial court’s award for attendant health care is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly, points of error thirteen through fifteen are overruled.

Lump Sum Benefits

*8 St. Paul’s sixteenth point of error challenges the legal sufficiency¹³ of the evidence of “hardship” to support the award of indemnity benefits to Hollis in a lump sum rather than in weekly installments. Jury question 7 asked “Will payment of compensation, if any, in weekly installments instead of a lump sum result in manifest hardship and injury to [Hollis]?¹⁴ The jury answered “yes.”

The evidence supporting this finding included the testimony of Hollis that he has endured financial hardship as a result of his injury, his in-laws have paid their bills, and his wife has been forced to work full-time. Mrs. Hollis also testified that she and her husband depended on her parents “to pay our bills and put food on the table and just anything we wanted to do.” Because this constitutes some evidence of hardship, St. Paul’s legal sufficiency challenge cannot be sustained, and point of error sixteen is overruled.

Incurable Jury Argument

In point of error seventeen, St. Paul complains that Hollis’ counsel made incurable jury arguments that invoked the jury’s bias by presenting Hollis as the poor, hard working, patriotic Vietnam veteran and by portraying St. Paul as part of the system that is out to get people like Hollis unless the jury prevents it from doing so.

Counsel are required to confine argument strictly to the evidence and arguments of opposing counsel. Tex.R. Civ. P. 269(e). Among other things, argument should not invite the jury to answer the questions submitted based on sympathy rather than an analysis of the evidence presented at trial. See Fidelity and Casualty Co. v. Johnson, 419 S.W.2d 352, 355 (Tex.1967).

The Texas Supreme Court has distinguished between curable and incurable jury argument as follows:

Improper jury arguments are usually referred to as one of two types: ‘curable’ or ‘incurable.’ A jury argument is ‘curable’ when the harmful effect of the argument can be eliminated by a trial judge’s instruction to the jury to disregard what they have just heard. The error is ‘cured’ and rendered harmless by the instruction. On the other hand, an argument may be so inflammatory that its harmfulness could not be eliminated by an instruction to the jury to disregard it. The prejudicial nature of the argument is so acute that it is ‘incurable.’

If the argument is of a ‘curable’ nature, an objection to it must be promptly made and an instruction requested or the error is waived. But if the argument is ‘incurable,’ the failure to object does not result in a waiver. The reasoning is that ‘counsel making the argument is the offender so the law will not require opposing counsel to take a chance on prejudicing his cause with the jury by making the objection.’

Otis Elevator Co. v. Wood, 436 S.W.2d 324, 333 (Tex.1968). The Court has described the burden to obtain reversal of a judgment for improper jury argument as follows:

*9 In the case of improper jury argument, the complainant must prove a number of things. He has the burden to prove (1) an error (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial,^[15] and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. There are only rare instances of incurable harm from improper argument. The complainant has the further burden to prove (5) that the argument by its nature, degree and extent constituted reversibly harmful error. How long the argument continued, whether it was repeated or abandoned and whether there was cumulative error are proper inquiries. All of the evidence must be closely examined to determine (6) the argument’s probable effect on a material finding. (7) Importantly, a reversal must come from an evaluation of the whole case, which begins with the voir dire and ends with the closing argument. The record may show that the cause is weak, strong, or very close. From all of these factors, the complainant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence.

Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839-40 (Tex.1979) (citations omitted).

In this case, St. Paul complains of the following portions of the argument of Hollis’ attorney:

This case represents every reason that I wanted to be a lawyer: The Ed and Teresa Hollises of the world. The only thing they have to protect them from wrongdoing by big business and insurance companies are American juries.

….

This case … represents … complete frivolity by an insurance company of trying to think of a reason not to honor their obligations.

….

The record will show that since he was nine years old he did one thing good, and one thing only, that he stood above the crowd. And that was his ability to work. Since he was nine years old. Ed didn’t know Boy Scouts. Ed didn’t know a relationship with a father. Ed didn’t have a normal childhood, because he worked all the time.

….

Never once-and, believe me, if it had been, this insurance company, with its resources, would have brought it to you-never once did [Hollis] fail on his responsibility to his family, to himself, to his dreams.

And he has dreams, just like you and I. Teresa had dreams, just like you and I. Until he got hurt.

….

The only reason Dr. Southern got in this case was to cut this man off comp. That’s the only reason.

….

Dr. Jack Southern, according to my calculations, had 15 depositions a year, ranging from two to four thousand dollars. And three so-called independent medical evaluations a day, three days a week, for insurance companies. That comes to about $248,000 that he made helping out insurance companies.

*10 ….

Why did Dr. Southern write-if he was so busy-five separate reports between June the 10th and June the 13th if he was not trying to assist Edwina Walsh in coming up with some way to cut Ed off comp?

….

[W]hat clarification did he provide, except the rewrite of the report-five times-that was used to cut Ed Hollis off Worker’s Compensation[?]

….

And I’m touched by the fact that … all of his life somebody has depended on Ed. He was the father-head of the family; nine years old.

He went off and protected me and you in Vietnam. He protected his family.

For the first time in his life, he is asking for something back from the system. And he kept those flags flying. He is entitled to your verdict, because he is right.

Although St. Paul did not object to these arguments at trial, it objects to them on appeal because, in summary, they: (1) invited the jury to stand in the shoes of the plaintiffs as their dreams were shattered by Hollis’ injury; (2) referred to facts outside the record concerning Hollis’ childhood and military experiences and Dr. Southern’s involvement and motivations; (3) disparaged the insurance company and its expert, Dr. Southern; (4) violated the prohibition against discussing the financial status of the parties; (5) tried to portray the case as a “David against Goliath” struggle; and (6) improperly appealed to the sympathies and prejudices of the jurors. We agree with St. Paul that many of the complained-of arguments were directed to considerations outside the jury charge. However, we are not persuaded that these arguments were of such an improper and inflammatory nature and magnitude that (a) they could not have been cured by instructions to disregard or (b) their cumulative effect amounted to reversible error. Accordingly, point of error seventeen is overruled and the trial court’s judgment is affirmed.

	Footnotes
1		The IAB is now the Texas Workers Compensation Commission. See generally Tex. Lab.Code Ann. §§ 402.001–402.092 (Vernon 1996).
2		The judgment became final in March of 1995 when the worker’s compensation claims were severed from the remainder of the case.
3		St. Paul cites various other provisions of the Worker’s Compensation Act and Texas Administrative Code which allow the IAB to resolve disputes between the insurance carrier and medical provider. See Tex.Rev.Civ. Stat. Ann. art. 8306 § 7 (repealed 1991); see also Tex. Admin. Code §§ 42.305, 42.310 (West 1997). However, none of those provisions mandates bringing such disputes before the IAB as a prerequisite to conferring jurisdiction on the district court.
4		See Transport Ins. Co. v. Polk, 400 S.W.2d 881, 882-83 (Tex.1966) (holding that worker’s compensation claimant could recover for nursing services rendered between dates of IAB award and trial court judgment); Highlands Ins. Co. v. Martinez, 638 S.W.2d 507, 509 (Tex.App.-Houston [1st Dist.] ), writ ref’d n.r.e. per curiam, 644 S.W.2d 442, 442 (Tex.1982) (holding that jurisdictional rule of Transport Ins. applies to successive IAB awards); Western Alliance Ins. Co. v. Tubbs, 400 S.W.2d 850, 852-53 (Tex.App.-Waco 1966, writ ref’d n.r.e.) (holding that worker’s compensation claimant could recover medical expenses incurred after IAB award and before judgment).
5		See Transport Ins., 400 S.W.2d at 882-83; Highlands Ins., 638 S.W.2d at 509; Western Alliance, 400 S.W.2d at 852.
6		See Transport Ins., 400 S.W.2d at 882-83; Highlands Ins., 638 S.W.2d at 509; Western Alliance, 400 S.W.2d at 852-53.
7		See E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.1995).
8		Although St. Paul obtained a ruling only on the offer of proof by Dr. Southern, this was sufficient to preserve error on this point of error.
9		See Williams Distrib. Co. v. Franklin, 898 S.W.2d 816, 817 (Tex.1995); Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 230 (Tex.1990).
10		Of the two record references cited by St. Paul, (1) “3 S.F. 45” does not refer to an existing page of the record because volume three begins with page 545; and (2) we do not find in the record Plaintiff’s Exhibit 16 or any reference to surgery in the testimony pertaining to that exhibit. Moreover, the reference at which St. Paul claims “Mrs. Hollis testified that her husband was fearful of his future surgery” instead contains only Mrs. Hollis’ statement that Hollis was “concerned whether it was operable or not.”
11		See Tex.R. Civ. P. 226a(III); Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796 (1951).
12		Although St. Paul’s point of error challenges the evidence of permanent, as well as total, incapacity, its brief provides no argument on the permanence element and thus presents nothing for our review on that issue. See Tex.R.App. P. 74(f).
13		Although point of error sixteen also purports to challenge the factual sufficiency of the evidence of hardship, it cites no evidence controverting the existence of hardship. It thus presents no factual sufficiency challenge.
14		See City of McAllen v. Alvarado, 718 S.W.2d 903, 907 (Tex.App.-Corpus Christi 1986, no writ); Tex.Rev.Civ. Stat. Ann. art. 8306, § 15(a) (Vernon Supp.1990) (repealed 1991).
15		This requirement to preserve error is somewhat inconsistent with the language of Rule 269(g): The court will not be required to wait for objections to be made when the rules as to arguments are violated; but should they not be noticed and corrected by the court, opposing counsel may ask leave of the court to rise and present his point of objection. Tex.R. Civ. P. 269(g).