Pablo Ramirez v. Sentry Insurance Mutual Company--Appeal from County Court at Law No 7 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

PABLO RAMIREZ, )

) No. 08-02-00266-CV

Appellant, )

) Appeal from the

v. )

) County Court at Law #7

SENTRY INSURANCE MUTUAL )

COMPANY, ) of El Paso County, Texas

)

Appellee. ) (TC# 2000-3678)

)

MEMORANDUM OPINION

Appellant, Pablo Ramirez, appeals from a judgment on the verdict in favor of Appellee, Sentry Insurance Mutual Company. On review, Appellant raises three issues. We will affirm.

BACKGROUND

On December 9, 1999, Appellant was employed by Tropical Sportswear International/ Savane International Corporation as a garment factory worker. While removing a bundle of garments from a conveyor belt and placing them in a box, he injured his right shoulder. Appellant filed timely notice of the injury with the company and also filed a claim for benefits with the Texas Workers= Compensation Commission (TWCC).

In a contested case hearing, a TWCC hearings officer found Appellant had a disability resulting from a compensable injury under the Texas Workers= Compensation Act. Sentry Insurance Mutual Co., the workers= compensation insurance carrier for Savane International Corporation, appealed the decision to the TWCC appeals panel. On September 27, 2000, the TWCC appeals panel rendered a final decision in the matter, finding that Mr. Ramirez failed to prove that he had an inability to obtain and retain employment equivalent to his pre-injury average weekly wage due to his compensable injury. Appellant then filed suit against Sentry Insurance Mutual Co., seeking judicial review of the TWCC=s final decision. See Tex.Lab.Code Ann. '' 410.251-410.308 (Vernon 1996).

Trial was had before a jury, which upheld the decision of the TWCC against Mr. Ramirez. Appellant then timely filed notice of the instant appeal. Appellant now raises three issues on appeal for our review: (1) whether the jury verdict that Appellant=s disability did not result from the work-related shoulder injury was not supported by legally sufficient evidence; (2) whether the trial court abused its discretion in admitting evidence of other health conditions; (3) whether the trial court abused its discretion by refusing to instruct the jury that disability may result from more than one injury or condition.

DISCUSSION

With his first issue, Appellant argues the jury verdict concluding that Appellant=s disability did not result from the work-related shoulder injury was not supported by legally sufficient evidence.[1] Appellant contends there is no evidence of probative force to support the jury=s verdict. To support this view, Appellant points out that Appellee presented no evidence to refute disability or establish that Appellant was able to work.

Legal Sufficiency

When an appellant is attacking the legal sufficiency of an adverse answer to a finding on which the party had the burden of proof, the appellant must, as a matter of law, overcome two hurdles. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex. 1991); Pacific Employers Insurance Co. v. Dayton, 958 S.W.2d 452, 455 (Tex.App.--Fort Worth 1997, pet. denied). First, we must examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Dayton, 958 S.W.2d at 455. If there is any probative evidence to support the jury=s finding, it must be upheld. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex. 1989); Vanliner Insurance Co. v. Ward, 923 S.W.2d 29, 31 (Tex.App.--Texarkana 1996, no pet.). Second, if we find no evidence to support the fact finder=s answer, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Dayton, 958 S.W.2d at 455.

Burden of Proof

In a trial court=s review of a final decision of the TWCC regarding benefits under the Act, the party appealing the decision has the burden of proof by a preponderance of the evidence. Tex.Lab.Code Ann. ' 410.303; Ward, 923 S.W.2d at 31. Therefore, in this case, Appellant had the burden of proof regarding his disability. Id. Appellee was not required to present independent evidence of any kind.

During trial, Appellant=s medical records were entered into evidence. These records indicated Appellant had been treated for approximately fifteen different health problems not related to the work-related injury.[2] In fact, Appellant=s own testimony indicated he was unable to receive treatment for his shoulder because of his other health problems. Also entered into evidence was a letter from one of Appellant=s doctors stating in part, APatient has multiple health problems which keep him from engaging in any gainful employment.@[3] [Emphasis added]. Most of the medical evidence reviewed by the jury related solely to Appellant=s many other health problems rather than the torn rotator cuff in his right shoulder.

If there is more than a scintilla of evidence to support the jury=s finding, it will be upheld on appeal. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987); Ward, 923 S.W.2d at 31. Here, there was evidence to support the jury=s finding that Appellant did not have a disability resulting from his shoulder injury which prevented him from working. The record included evidence indicating Appellant was unable to work due to his other unrelated health conditions. Accordingly, we uphold the jury=s finding. Southern States Transp., Inc., 774 S.W.2d at 640; Ward, 923 S.W.2d at 31. Appellant=s first issue is overruled.

Evidence of Other Health Conditions

Appellant=s second issue relates to the trial court=s decision to allow evidence of Mr. Ramirez=s other health conditions to come before the jury. He argues the trial court abused its discretion in admitting such evidence. The complained of evidence came in the form of medical records and Appellant=s own testimony. The medical records evidence of which Appellant complains was offered by Appellant=s own counsel.

The admission or exclusion of evidence at trial is a matter within the trial court's discretion. Hill v. Heritage Resources, Inc., 964 S.W.2d 89, 136 (Tex.App.--El Paso 1997, pet. denied); Dudley v. Humana Hosp. Corp., 817 S.W.2d 124, 126 (Tex.App.--Houston [14th Dist.] 1991, no writ). In order to reverse a judgment based upon a trial court=s decision to admit or exclude evidence, an appellant must show: (1) that the trial court abused its discretion in making the decision; and (2) that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989); Hill, 964 S.W.2d at 136. In determining the second prong of this test, a reviewing court must consider the case as a whole. Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 821 (Tex. 1980); Hill, 964 S.W.2d at 136.

Here, Appellant=s trial attorney offered into evidence all of the medical records that were before the jury. Appellant himself testified to both his shoulder injury and all of his other health problems. Appellant did not request a limiting instruction with regard to the medical records. We note that evidence admitted without limitation is before the court for all purposes. Owens-Corning Fiberglas Corp. v. Keeton, 922 S.W.2d 658, 660 (Tex.App.--Austin 1996, pet. denied). Appellant could have sought a limiting instruction or simply admitted only portions of the medical records. See Tex.R.Evid. 105(a); Larson v. Cactus Utility Co., 730 S.W.2d 640, 642 (Tex. 1987). Appellant cannot complain on appeal of evidence he himself offered to the court in the absence of a limiting request. Id. This argument is effectively waived. Id. No abuse of discretion is found. Appellant=s second issue on review is overruled.

Jury Charge

With his third issue, Appellant asserts the trial court abused its discretion by refusing to instruct the jury that Adisability may result from more than one injury or condition.@ A trial court has considerable discretion in determining the necessary and proper jury instructions. Texas Workers= Compensation Insurance Fund v. Mandlbauer, 34 S.W.3d 909, 911 (Tex. 2000); Southwest Airlines Co. v. Jaeger, 867 S.W.2d 824, 832 (Tex.App.--El Paso 1993, writ denied). When a trial court refuses to submit a requested instruction, the issue on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict. Mandlbauer, 34 S.W.3d at 912. A proper instruction must: (1) assist the jury; (2) accurately state the law; and (3) find support in the pleadings and the evidence. Id.

At the charge conference, Appellant requested the following definition be included in the jury charge:

>PRODUCING CAUSE= means an efficient, exciting, or contributing cause from an injury or condition, which in natural sequence, produces incapacity and with out which such incapacity would not have occurred when it did. There may be more than one producing cause of incapacity.

He also requested the following question be submitted to the jury:

Do you find from a preponderance of the evidence that Pablo Ramirez= compensable injury was a producing cause of his disability from December 10, 1999 to the present?

Appellee objected to the inclusion of the definition and the submission of the question to the jury on the basis that Appellant had used the terms Aresulting from@ in his pleadings and the case had been tried on that basis. Appellant later proposed an alternative instruction:

You are instructed that disability may result from more than one injury or condition.

Appellee maintained that they did not rely upon a sole cause defense and Appellant did not try the case on a producing cause theory. Therefore, they argued the proposed instruction was inappropriate. The trial court rejected all three requests.

Having reviewed the pleadings, evidence, and jury charge in full, we are unable to conclude that Appellant successfully plead and tried this case under a Aproducing cause theory.@[4] Moreover, there is little authority to guide this Court or the trial court below in a determination of the proper instruction under the new Texas Workers= Compensation Act. Accordingly, we cannot say that the trial court abused its authority in rejecting Appellant=s requested instructions and questions. Mandlbauer, 34 S.W.3d at 911-12. Appellant=s third appellate issue is overruled.

For the reasons stated above, we affirm the judgment of the trial court.

August 26, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

[1] The jury was asked the following question: ADo you find from a preponderance of the evidence that Pablo Ramirez has a disability resulting from the compensable injury of December 9, 1999?@ They answered in the negative.

[2] The record indicates Appellant was treated for and/or diagnosed with a number of medical problems, including the following ailments: pneumonia, chronic obstructive pulmonary disease, hypertension, sleep apnea, swelling of the ankles, lung defects, and problems with his hip and with his liver.

[3] This letter was dated November 27, 2000, and signed by Dr. Michael H. Annabi

[4] Neither the opening nor closing statements of the attorneys are before us on appeal.