Court of Appeals of Texas,
ACE FIRE UNDERWRITERS INSURANCE COMPANY, Appellant
Cynthia SIMPKINS, Beneficiary of Roderick Simpkins, Deceased, Appellee.
Aug. 30, 2012.
Attorneys & Firms
*294 J. Kevin Thompson, The Silvera Firm, Dallas, TX, for Ace Fire Underwriters Insurance Company.
A. Robert Lamb, Jr., Law Office of A. Robert Lamb, Jr., Addison, TX, for Cynthia Simpkins, Beneficiary of Roderick Simpkins, Deceased.
Panel: GABRIEL, JJ.
ANNE GARDNER, Justice.
Appellant Ace Fire Underwriters Insurance Company (Ace Fire) appeals the trial court’s judgment following a jury verdict that Roderick Simpkins suffered a compensable injury that was a producing cause of his death. Ace Fire, the party with the burden of proof in the trial court, contends in six points that the evidence establishes as a matter of law that the fall leading to Simpkins’s death did not originate in or arise out of his employment; that the trial court erred by submitting incorrect and unnecessary questions, definitions, and instructions in the jury charge and by failing to submit additional definitions and instructions; and that the trial court erred by awarding Appellee Cynthia Simpkins attorneys’ fees of $200 per hour when the Texas Labor Code and workers’ compensation rules allegedly cap attorneys’ fees at $150 per hour. We affirm.
Simpkins worked at Coca–Cola Enterprises. He fell at work on September 9, 2005, was admitted to the hospital that day, and died seven days later. Simpkins’s surviving spouse, Cynthia, and their daughters filed a claim for workers’ compensation benefits. Ace Fire denied the claim, and the dispute proceeded through the workers’ compensation hearing process with an appeals panel affirming the hearing officer’s decision that Simpkins’s death resulted from a compensable injury. Ace Fire appealed the appeals panel decision by filing suit in Tarrant County District Court.
Cynthia, Simpkins’s wife of twenty-three years, received a telephone call on September 9, 2005, from a Coca–Cola employee who told her that Simpkins had fallen. Cynthia arrived at the Coca–Cola office before Simpkins was transported by EMS to the hospital. She was also present when Simpkins was admitted to the hospital. *295 She testified that she does not know what caused Simpkins to fall.
Cynthia testified that Simpkins was diagnosed with stroke before he fell.
Melody Sims is a Coca–Cola employee who worked at the same location as Simpkins. She testified that Simpkins’s job was to collect money and prepare it for deposit in the bank.
Sims testified that she was at work the day of Simpkins’s fall. The jury watched a video recording of Simpkins’s fall during Sims’s testimony, and Sims described for the jury the office areas and persons visible on the video. Sims testified that there were no chemicals, noxious fumes, or anything else connected to Simpkins’s job that would have caused him to fall and that she saw nothing on the floor that would have caused him to slip and fall, trip and fall, or collapse. She admitted, however, that she was focused on Simpkins rather than the floor.3 Sims also agreed that the floor onto which Simpkins fell is a hard surface, that the floor belongs to Coca–Cola, and that Simpkins was performing his regular job duties at the time he fell.
Mike Edwards witnessed Simpkins’s fall. Edwards testified that he was walking through the building toward the cashier’s window and that he saw Simpkins, said hello, and asked him how he was doing. Edwards also testified that Simpkins said he was “fine” but that Simpkins then started shaking and grabbed at the door as he fell. Edwards explained, “His eyes rolled back, and he was shaking. And he just was out.... He collapsed.” Like Sims and the other Coca–Cola employees, Edwards testified that he did not observe anything on the floor before Simpkins’s fall that would have caused him to slip or trip and that there were no chemicals or anything else connected to Simpkins’s job that would have caused him to fall.
On cross-examination, Edwards acknowledged that his written statement, prepared shortly after the incident, does not mention that Simpkins’s eyes rolled back in his head or that he was shaking before he fell. Edwards also agreed that Simpkins was performing his job duties at the time he fell but testified that he does not believe that Simpkins’s job caused his *296 fall. Edwards, although he acknowledged that he has no medical training, also testified that Simpkins was unconscious before his head hit the floor.
Dr. Roberto Nieto, a board-certified neurologist, testified as an expert for Ace Fire. He testified that a heart attack.
Describing what he observed on the videotape of Simpkins’s fall, Dr. Nieto testified that he does not know whether Simpkins lost consciousness or not but that he collapsed with a “sudden loss of postural tone,” meaning that he lost the ability to keep his body in a vertical position. From his review of the hospital records, Dr. Nieto testified that Simpkins sustained skull fracture.
Dr. Nieto testified that the hospital intake notes indicate that Simpkins had left facial droop and that his left leg and left arm were paralyzed, symptoms consistent with Simpkins having suffered a head injuries, but he testified that he also felt “that something additional happened just prior to his collapse.” Specifically as to Simpkins’s cause of death, Dr. Nieto testified that he agreed with Dr. Krouse’s findings.
Dr. Nieto listed numerous conditions, including an irregular heart rhythm, a TIA, a pulmonary embolism, or any other condition. Regardless, Dr. Nieto testified:
Q. So in—in your opinion, did anything in connection with Mr. Simpkins’ job at Coca–Cola cause him to fall?
Q. Do you have an opinion as to whether or not anything at his job, at Mr. Simpkins’ job caused him to fall?
A. I don’t—
Q. You can answer.
A. I don’t see any—anything that caused him to fall at work.
Dr. Marc Krouse, the Chief Deputy Medical Examiner in Fort Worth who conducted the autopsy in this case, testified as an expert for Appellee. Dr. Krouse conducted *297 the autopsy on September 17, 2005, and dictated the autopsy report on October 28, 2005. As part of that process, he reviewed the investigator’s report, information about how Simpkins was injured, and the videotape of Simpkins’s fall.
Dr. Krouse described the autopsy process to the jury and testified that he found an abrasion, one-inch by one-half-inch, on the back of Simpkins’s head near the center as well as a bruise in the soft tissue under his scalp. Dr. Krouse also described the injuries to Simpkins’s brain, including bruises to the front and side of the right temporal lobe and death of brain tissue caused by interruption of blood flow. He testified that bleeding on the brain.
Dr. Krouse testified that the cause of Simpkins’s death was blunt force myocardial infarction, including pain in the chest, pain radiating into an arm, shortness of breath, chest tightness, and clamminess of the skin, and he testified that the MedStar records state that Simpkins did not exhibit these symptoms.
On cross-examination, Dr. Krouse agreed that he was not giving an opinion as to what caused Simpkins’s fall. He also agreed that the type of event that Simpkins experienced can occur at places other than a person’s work and that there is no evidence that Simpkins tripped or hit his head on a sharp object. Dr. Krouse acknowledged that, from his review of the videotape, it is possible that Simpkins experienced dizziness or unconsciousness before falling. He also agreed that it is possible that Simpkins had a TIA that caused him to fall but that there would not be evidence of the TIA on a stroke or TIA.
Dr. Krouse testified that he did not examine Simpkins’s heart, arteries, pancreas, liver, or lungs during the autopsy and that an stroke is a possibility and would have been in his differential diagnosis upon presentation to the hospital, he did not believe it likely in this case. However, Dr. Krouse also testified as follows:
Q. You’re not telling the jury or the judge in this case that Mr. Simpkins’ job or his job duties caused him to pass out and fall, are you?
Q. And you’re not telling the ladies and gentlemen of the jury that Mr. Simpkins’ fall originated in his job duties or arose out of his job, are you?
Finally, Dr. Krouse agreed that he does not know what initiated Simpkins’s fall and that he only knows the result.
III. Legally Sufficient Evidence
Ace Fire argues in its first point that the evidence establishes as a matter of law *298 that Simpkins’s fall did not originate in or arise out of his employment because there was no evidence of a causal connection between his fall and his employment.
A. Standard of Review
We may sustain a legal sufficiency challenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Tex. Lab.Code Ann. § 410.303 (West 2006).
The labor code defines “compensable injury” as “an injury that arises out of and in the course and scope of employment for which compensation is payable” under the Texas Workers’ Compensation Act (the Act). Tex. Lab.Code Ann. § 401.011(10) (West Supp.2012). Ace Fire does not contest that Simpkins was in the course and scope of his employment at the time of the fall. Rather, Ace Fire argues that Simpkins’s fall did not originate in or arise out of his employment because his employment did not put him in a position that increased his risk of injury. Ace Fire points to evidence that nothing at Coca–Cola’s premises, such as a substance on the floor or a noxious chemical, caused Simpkins to fall. Ace Fire also cites Dr. Nieto’s testimony that there was something going on inside Simpkins’s body that caused him to fall and that Simpkins’s fall was not caused by his employment.4
Ace Fire refers us to id.
Ace Fire also relies on N. River Ins. Co. v. Purdy, 733 S.W.2d 630, 633 (Tex.App.-San Antonio 1987, no writ)). Holding that the trial court should have granted the carrier’s motion for summary judgment, the court explained,
[Mr. Bratcher’s] aneurysm could have burst at any time. The injury did not arise but for him being at work, rather it was due to a personal defect which proved to be fatal from a strain totally unrelated to the deceased’s employment. It cannot be said that but for Mr. Bratcher being assigned to a rig as a toolpusher he would not have gone to the bathroom on the occasion in question. Instead the risk was one Mr. Bratcher would have confronted irrespective of any type of employment.
Id. at 722. Relying on Bratcher and Jones, Ace Fire argues that the evidence is legally insufficient because there is no evidence that Simpkins’s fall and resulting injury arose out of his employment.
Appellee responds that more than a scintilla of evidence supports the jury’s finding that Simpkins suffered a compensable injury that was a producing cause of his death, and she primarily relies on four cases. See Gen. Ins. Corp. v. Wickersham, 235 S.W.2d 215, 219 (Tex.Civ.App.-Fort Worth 1950, writ ref’d n.r.e.).
In Garcia, Garcia had an Id. at 418–19, 209 S.W.2d at 336. The court continued,
The post with the sharp corners, which resulted from measures taken to protect the post, was a condition attached to the place of Garcia’s employment; more than that, it was an instrumentality essential to the work he was waiting to do. Since his duties required him to be near the post at that time, the danger of falling against it was a hazard to which he was exposed because of his employment; and injury and death from a crushed temple suffered when he did fall against it came to him because he was then acting in the course of his employment and under the conditions of his employment. If he had not been working he might have suffered the epileptic stroke anyhow and he might have fallen just as he did fall, but he certainly would not have fallen against this post with its sharp edges to fracture his temple and die. Danger of injury from a fall at some other place might have been no less, but it certainly was not the same.
Id. at 419, 209 S.W.2d at 337 (citations omitted).
In Page, the supreme court held that the evidence “presented a fact issue of whether the injury originated out of Page’s employment, that is whether there was a sufficient causal connection between the conditions under which his work was required to be performed and his resulting injury.” Id.
The evidence at trial reflected that Page had Id.
In Wickersham, this court held that sufficient evidence supported the trial court’s judgment awarding death benefits. See Id. at 219.
The Dallas Court of Appeals held in Bush that sufficient evidence supported the jury’s finding that Bush was injured in the course and scope of her employment. See Id.
The court reviewed the Id.
The evidence in this case lies somewhere between that in Bratcher, which involved a noncompensable death from a Sterner, 767 S.W.2d at 690.
Reviewing the record for evidence favorable to the jury’s finding that Simpkins suffered a compensable injury that was a producing cause of his death, we note that there is evidence that Simpkins was performing his regular job duties at the time of his fall, that the floor on which he hit his head was at Coca–Cola’s premises and was an instrumentality of his employer, that Simpkins suffered a Wickersham, 235 S.W.2d at 217, 219.
Moreover, we hold that Ace Fire, as the party with the burden of proof, did not conclusively establish that Simpkins’s fall and resulting injury did not arise out of his employment. Ace Fire certainly presented evidence that nothing in connection with Simpkins’s employment caused him to fall, but its medical expert was unable to identify why Simpkins fell. Instead, Dr. Nieto testified that “something related to [Simpkins’s] heart or brain or other organ may have-or likely occurred at that point that caused him to collapse” but that he could not determine whether Simpkins had suffered a 823 S.W.2d 719, 721–22. Here, Simpkins’s death was caused by the blow to his head upon falling onto Coca–Cola’s floor, a fact not in dispute between the testifying experts.
This is unquestionably a close case, but considering the evidence favorable to the finding if a reasonable factfinder could and disregarding evidence contrary to the finding unless a reasonable factfinder could not, we hold that legally sufficient evidence supports the jury’s determination that Simpkins’s death arose out of his employment. See Wickersham, 235 S.W.2d at 217, 219. We therefore overrule Ace Fire’s first point.
IV. Producing Cause in the Jury Charge
Ace Fire complains in its second and third points that the trial court should not have submitted a producing cause definition in the jury charge and that the submitted producing cause definition was legally incorrect.
The court’s charge included the following question and definition:
Do you find by a preponderance of the evidence that Roderick Simpkins did not suffer a compensable injury on September 9, 2005, that was a producing cause of his death?
“Producing cause” means an efficient, exciting, or contributing cause that, in a natural sequence, produces the death in *303 question. There may be more than one producing cause.
A. Submitting Producing Cause
Ace Fire argues in its second point that the trial court erred by submitting a producing cause definition and instruction in the jury charge because producing cause was not at issue before the appeals panel or as part of Ace Fire’s appeal to district court. “We review a trial court’s decision to submit or refuse a particular instruction under an abuse of discretion standard of review.” La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex.1998)). “The trial court has considerable discretion to determine necessary and proper jury instructions.” Id.
Ace Fire relies on Id. at 910–12. Even so, we agree that it was not necessary for the trial court to submit producing cause to the jury in this case, but we do so for a different reason.
Ace Fire argues that the inclusion of producing cause was harmful because it required Ace Fire “to, in essence, negate a producing cause issue which was not an issue before the [appeals panel].” But Ace Fire did not attempt to negate producing cause at trial and instead sponsored an expert witness who concurred with the medical examiner’s cause of death opinion. The remainder of Ace Fire’s evidence was designed to convince the jury that Simpkins’s fall did not result in a compensable injury because the fall did not arise out of his employment, and Ace Fire would have prevailed in the trial court if it had convinced the jury of its position. The trial court’s unnecessary inclusion of producing cause did not create a higher or more *304 onerous burden for Ace Fire because producing cause was superfluous language concerning an undisputed fact. See Trice, 712 S.W.2d at 850 (“[T]he submission of undisputed facts does not ordinarily result in reversible error.”).
“Charge error is generally considered harmful if it relates to a contested, critical issue.” Steel v. Wheeler, 993 S.W.2d 376, 381 (Tex.App.-Tyler 1999, pet. denied) (holding failure to submit question and instruction harmless because evidence on the point was conclusive). We therefore overrule Ace Fire’s second point.
B. Incorrect Producing Cause Jury Instruction
Ace Fire contends in its third point that the trial court erred by submitting an incorrect definition of “producing cause” in the jury charge. Assuming without deciding that Ace Fire preserved this point for appeal, we hold that although the trial court submitted a legally incorrect definition of producing cause in the jury charge, the trial court’s error was harmless.
After the trial in this case, the supreme court issued an opinion disapproving of a producing cause definition identical to the definition submitted by the trial court in this case. See Cont’l Cas. Co. v. Baker, 355 S.W.3d 375, 386 (Tex.App.-Houston [1st Dist.] 2011, no pet.) (op. on reh’g).
The incorrect definition was not, however, harmful error because producing cause was not contested in this case. See Baker, 355 S.W.3d at 383–87.
In Crump, the evidence reflected that Crump struck his knee while at work, that the injury caused a contusion and Id. at 226.
The Baker court also held that an incorrect producing cause definition was harmful. *305 Id. at 377. Explaining that the incorrect definition required reversal for a new trial, the court held,
As in Crump, the ‘but-for’ or ‘substantial factor’ aspect of causation was squarely at issue, and the charge error related to the sole issue in the case, that of causation. Also as in Crump, the evidence in this case included conflicting expert testimony regarding whether the accident caused the meniscus tear, which was the sole question before the jury.
Id. at 386 (citations omitted).
The evidence in this case is different because the parties disputed whether Simpkins’s injury arose out of his employment, not whether the blow to his head caused his death. Ace Fire attempted to prove that Simpkins could have fallen anywhere because something happened to his body that caused him to fall, but it did not dispute that Simpkins died from the traumatic Trice, 712 S.W.2d at 850. We therefore overrule Ace Fire’s third point.
V. Failure to Submit Additional Instructions and Definitions
Ace Fire argues in its fourth point that the trial court abused its discretion by failing to submit additional instructions and definitions concerning course and scope of employment and compensable injury because those definitions and instructions “are more closely aligned to the evidence produced at trial.” Although Ace Fire does not cite any authority that would have required the trial court to submit the additional instructions and definitions under the circumstances of this case, we note that the trial court refused to submit some of Ace Fire’s proposed instructions and definitions because it was concerned that doing so would comment on the weight of the evidence by highlighting Dr. Nieto’s testimony. The trial court also refused an instruction that an injury does not include ordinary diseases of life because the proposed instruction came from part of the definition of “occupational diseases” and because occupational diseases are not at issue in this case. See Crowson v. Bowen, 320 S.W.3d 486, 488 (Tex.App.-Fort Worth 2010, no pet.) (“We review claimed error in the jury charge under an abuse of discretion standard.”). To the extent Ace Fire complains of other proposed definitions and instructions, it has not identified them in its brief, explained why it was entitled to their submission, or described why the failure to submit them was reversible error. We thus overrule Ace Fire’s fourth point.
VI. Alleged Improper Burden of Proof
Ace Fire contends in part of its fifth point that the trial court erred by submitting *306 Question No. 1 to the jury because there was no evidence or legally insufficient evidence to support the submission. We overrule this part of Ace Fire’s fifth point for the same reasons that we overruled its first point.
In the remainder of its fifth point, Ace Fire argues that Question No. 1, as submitted, imposed an improper burden of proof on Ace Fire and constituted a comment on the weight of the evidence because it required Ace Fire to prove a negative. The court’s charge asked the jury to answer “yes” or “no” to the following question: “Do you find by a preponderance of the evidence that Roderick Simpkins did not suffer a compensable injury on September 9, 2005, that was a producing cause of his death?” The jury answered “no,” meaning that it found that Simpkins “did suffer a compensable injury on September 9, 2005, that was a producing cause of his death.”
Although Ace Fire contends that the trial court’s phrasing of Question No. 1 was in error, it does not cite any authority to support its position outside of a statement from an easily distinguishable dram shop liability case that states that “proving a negative is always difficult and frequently impossible.” didsuffer a compensable injury on September 9, 2005, that was a producing cause of his death.” Thus, we cannot say that the trial court abused its discretion by submitting Question No. 1 as phrased, and we overrule the remainder of Ace Fire’s fifth point.
VII. Attorney’s Fees
Ace Fire argues in its sixth point that the trial court erred by awarding attorney fees to Appellee at an hourly rate in excess of $150 per hour. However, in response to an identical argument, this court held just last year that commission rules capping attorney’s fees at $150 per hour do not apply when the carrier unsuccessfully appeals the appeals panel decision to district court and fees are awarded to the claimant pursuant to 28 Tex. Admin. Code § 152.4(a) (2011) (last amended 1994) (Tex. Dep’t of Ins., Div. of Workers’ Comp.)). We thus overrule Ace Fire’s sixth point.
Having overruled each of Ace Fire’s points, we affirm the trial court’s judgment.
A TIA is a form of a stroke that resolves quickly. Unlike a full stroke, the blood clot dissolves and blood flow is restored, usually within the first hour, without damage to the brain.
Cynthia testified that she worked for approximately twenty years as an occupational therapist and that she had evaluated and treated individuals who had suffered strokes, head injuries, and TIAs.
Two other Coca–Cola employees testified that they did not observe anything on the floor that would have caused Simpkins to slip or trip and that there were no chemicals or anything else connected to Simpkins’s job that would have caused him to fall.
Ace Fire also states that “Dr. Krouse admitted that Mr. Simpkins’ fall and resulting injuries were not caused by nor did they originate in his employment.” To support this statement, Ace Fire relies on the portion of Dr. Krouse’s cross-examination that is quoted above. While Dr. Krouse did not testify that Simpkins’s employment caused his fall, we do not read Dr. Krouse’s testimony as an admission that Simpkins’s fall was not caused by his employment.