United States Fire Insurance Company v. David W. Langley, Sr.--Appeal from 12th District Court of Madison County

MODIFIED AND AFFIRMED 12 JULY 1990

NO. 10-89-175-CV

Trial Court

# 5859

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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UNITED STATES FIRE INSURANCE COMPANY,

Appellant

v.

DAVID W. LANGLEY, SR.,

Appellee

* * * * * * * * * * * * *

From 12th Judicial District Court

Madison County, Texas

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O P I N I O N

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This is an appeal by defendant insurance company from a judgment for plaintiff Langley awarding him total and permanent disability benefits in a worker's compensation case.

Plaintiff was an employee of L & L Drilling and alleged he was injured while in the course of his employment for L & L Drilling on or about June 20, 1987.

Defendant insurance company contended that plaintiff did not sustain injuries in the course of his employment, that his disability was partial rather than total, and for a limited and short period of time.

The jury found (1) defendant was injured in the course of his employment; (2) that the injury was a producing cause of total incapacity; (3A) that the beginning date of total incapacity was June 20, 1987; and (3B) that the duration of such total incapacity was "permanent".

The trial court rendered judgment on such verdict (after giving defendant a credit of $14,112 for benefits received) for $63,371; and further "decreed the defendant shall pay all outstanding unpaid doctor, hospital, therapy and drug bills provided same were incurred because of plaintiff's on-the-job injury made the basis of this suit and provided same were usual, reasonable and customary. Further it is ordered, adjudged and decreed that defendant shall pay all future charges which are usual, necessary and customary for medical care, hospital care and for drug or pharmaceutical bills for plaintiff's lifetime".

Defendant appeals on 10 points:

Point 1 asserts: "The trial court erred in allowing [plaintiff's] counsel to examine [defendant's] representative concerning the contents of the E-1 because such practice is prohibited by Article 8309, Section 5, V.A.C.S.".

Point 2 asserts: "The trial court erred in allowing [plaintiff's] counsel to examine the [defendant's] representative from a document not admitted into evidence".

Point 3 asserts: "The trial court erred in compelling [defendant's] counsel to remove the E-1 from his file and give it to the [plaintiff's] counsel because such action deprived [the defendant] of its property without due process of law".

Point 4 asserts: "The trial court erred in compelling [defendant's] counsel to give the E-1 to [plaintiff's] counsel because such action created unfair prejudice".

Point 5 asserts: "The trial court erred by refusing to admit the E-1 into evidence in violation of the rule of optional completeness".

Points 1 through 5 all are phases of one basic complaint, i.e., the manner in which the Employer's First Report of Injury [the E-1] was dealt with by the trial court.

Johnny Frazier, the driller and boss of the rig on which plaintiff claimed to have been injured, testified on deposition he was not aware plaintiff was injured on the June 19th-20th shift until the following day; that plaintiff did not report the injury to him until he came to work the next day when plaintiff told him he had hurt his back, gave him no details, and then went home; that he (Frazier) made out an accident report on a L & L Company form about three days after the accident supposedly happened.

Thereafter, Ms. Greenwood, an adjuster for defendant, was called by plaintiff as an adverse witness and was asked the whereabouts of the report made by Mr. Frazier, the driller. She replied, "I'm sure it is in the claim file." Counsel for plaintiff asked to see the report, counsel for defendant objected, which objection was overruled. Counsel for defendant went to his car to get the report made by driller Frazier but instead produced the Employers First Report of Injury [E-1] filed by L & L before the Industrial Accident Board. Counsel for defendant then gave the E-1 to plaintiff's counsel and objected to the introduction of such E-1 into evidence. Plaintiff's counsel said, "I don't intend to introduce it into evidence." Defendant's objection was not ruled on by the trial court but the E-1 was not admitted into evidence. Ms. Greenwood was then asked by counsel for plaintiff about the "driller's report". Ms. Greenwood said the report she had was the first report of injury, or E-1. Counsel for defendant made no objection. At this point counsel for defendant asked that the E-1 be marked and shown to the jury. No ruling was obtained on such request by defendant. Counsel for plaintiff then (speaking of the E-1) asked Ms. Greenwood:

Q.The driller says my name is Johnny Frazier, the foreman of David Langley. However, I can't say I witnessed the accident. Does it say that?

A.It does say that.

Q.Says how it did happen. Says I don't know how employee was injured. There were only three connections made on his last day of employment. Would you agree with me that it says that?

AYes sir.

No objection was made by defendant to the foregoing, and thus has waived any objection to same. Rule of Appellate Procedure 52(a).

Moreover, the foregoing fails to demonstrate any harm to defendant. We are of the opinion that the asserted errors complained of in points 1 through 5 did not amount to such a denial of the rights of the defendant as was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case, nor did such probably prevent the defendant from making a proper presentation of the case in this court. Rule of Appellate Procedure 81(b)(1).

The trial court did not compel defendant to give plaintiff a copy of the E-1. Plaintiff requested and the trial court required defendant to give plaintiff a copy of the driller's report made by Mr. Frazier and, rather than furnish the driller's report, defendant provided the E-1.

Introduction of the E-1 into evidence as requested by defendant is made inadmissible by Article 8309, Section 5, V.A.T.S.; Texas Employers Ins. Assn v. Henson, CA (Beaumont) NWH, 569 S.W.2d 516.

Points 1 through 5 are without merit and are overruled.

Point 6 asserts: "The trial court erred in entering the judgment that it did because the award of future medical costs and expenses is expressly prohibited by Article 8307, Section 5, V.A.T.S.".

Point 7 asserts: "The trial court erred in entering the judgment that it did because that judgment allows [plaintiff] to recover medical costs and expenses not related to the injury made the basis of this suit.

Points 6 and 7 involve that portion of the judgment which awards future medical to plaintiff. The judgment as to future medical provides:

. . . further ordered, adjudged and decreed that defendant pay all future charges which are usual, necessary and customary for medical care, hospital care and for drug or pharmaceutical bills for plaintiff's lifetime."

Point 6 asserted the court erred in awarding same because they are prohibited by Article 8307, Section 5. The Texas Administrative Code governs this situation. Section 42.15 of the Administrative Code provides: "Accrual of Medical Benefits. The right to medical benefits for a compensable injury accrues as of the date of the injury and continues for the life of the injured worker, until terminated by agreement between the injured worker and carrier, and is limited in amount only according to the reasonableness of the expense and the necessity of the treatment."

Point 7 asserts the judgment would award future medical treatment for conditions not related to the injury made the basis of this suit.

That portion of the judgment above quoted and related to future medical is modified by adding thereto: "provided such future medical charges are for medical care related to or caused by plaintiff's injury of June 20, 1987."

Point 6 is overruled and point 7 is granted to the extent that the judgment is modified as noted.

Point 8 asserts: "The trial court erred in entering the judgment that it did because the judgment is not definite or certain".

Point 9 asserts: "The trial court erred in entering the judgment that it did because it purports to award relief not supported by the jury verdict".

Point 10 asserts: "The trial court erred in entering the judgment that it did because it is based in part on unspecified findings of fact on the part of the trial court".

Points 8, 9 and 10 relate to that portion of the judgment which provides:

. . . It is further ordered, adjudged and decreed that the defendant shall pay all outstanding unpaid doctor, hospital, therapy and drug bills provided same were incurred because of plaintiff's on-the-job injury made the basis of this suit and provided same were usual, reasonable and necessary."

Plaintiff did not ask for, and the trial court did not submit, a jury issue on the past medical expenses related to this case. The amount of past medical cannot be determined from the judgment herein and a final judgment must be definite and certain and must dispose of all the issues involved so that no further action by the court is necessary to determine the controversy. Roberts v. Brittain, CCA (Tyler) NWH, 659 S.W.2d 750; Jones v. Liberty Mutual Ins. Co., CCA (El Paso), 733 S.W.2d 249.

Points 8, 9 and 10 are sustained. This requires that the judgment be further modified by deleting therefrom the above quoted portion of the judgment.

As modified under points 7, 8, 9 and 10, the judgment of the trial court is affirmed.

FRANK G. McDONALD

DO NOT PUBLISHChief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means, and Chief Justice Frank G. McDonald (Retired)]