City of Edinburg v. Acuna, Rodolfo--Appeal from 206th District Court of Hidalgo County

NUMBER 13-99-538-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

__________________________________________________________________

CITY OF EDINBURG, Appellant,

v.

RODOLFO ACU A, Appellee.

__________________________________________________________________

On appeal from the 206th District Court of Hidalgo County, Texas.

__________________________________________________________________

O P I N I O N

Before Justices Hinojosa, Ya ez, and Chavez (1)

Opinion by Justice Ya ez

This is a workers' compensation case. (2) A jury awarded judgment in favor of appellee, Rodolfo Acu a, against appellant, the City of Edinburg ("the City"), for total and permanent incapacity. In two issues, the City complains of the legal and factual sufficiency of the evidence supporting the jury's findings that Acu a: (1) was totally and permanently incapacitated as a result of a work-related injury; and (2) was entitled to receive $83,560.50 for medical expenses. We affirm, in part, and reverse, in part.

Background

In 1975, Acu a began working for the City in the garage department washing and greasing cars. He later worked as a mechanic, and eventually became superintendent of the department, in charge of approximately twelve employees. Acu a testified that he had a third-grade education and was unable to read and write in English or Spanish. As superintendent, he continued to perform mechanic work, but not on a regular basis. His job duties included bookkeeping and inventory for the department; his secretary completed the required paperwork and Acu a signed such paperwork as required.

Acu a allegedly suffered a work-related injury to his back on April 18, 1985, while lifting an automobile transmission onto a city truck. On May 3, 1985, Acu a began seeing Dr. Carlson, a local chiropractor, for treatment. On May 31, 1985, Acu a also saw Dr. Keillor, an orthopedic surgeon. Dr. Keillor performed an examination, took X-rays, and recommended whirlpool treatment, muscle relaxants, and wearing a corset for back support. Keillor released him for work on May 31st. Acu a again saw Keillor for a follow-up visit on June 14th and a final time on July 24th. Keillor testified by deposition that by the second visit, Acu a's condition had improved, and on the final visit, Acu a reported he was "all well." Acu a continued to work throughout the period following the injury.

On June 30, 1986, Acu a and several other City employees were laid off due to the closing of the garage department. Two days later, on July 2, 1986, Acu a saw Dr. Krishnan, another orthopedic surgeon. Krishnan testified by deposition that he took X-rays, prescribed medication, and recommended a continuation of exercise. Acu a saw Krishnan for a follow-up visit in August and again in September. Acu a did not return to see Krishnan until four years later, in January 1990, at which time Krishnan recommended an MRI. An MRI of Acu a's spine was taken in February 1990. Krishnan testified that the February 2, 1990 MRI report reflects that Acu a had a "disc problem," which had caused some nerve root compression.

On May 9, 1990, Acu a saw Dr. Tijerina, who prescribed diagnostic tests and physical therapy. Tijerina's records reflect Acu a returned three years later, on April 1, 1993. The records further reflect that the tests earlier recommended by Tijerina apparently were not done and that Acu a had not been seen by any doctor during the intervening three years. Tijerina recommended that Acu a have another MRI taken, which was done in January of 1994. Krishnan testified that the 1994 MRI showed that the disc herniation reflected in the 1990 MRI had become more prominent and that some additional bulging had occurred.

On May 11, 1990, the Worker's Compensation Commission found that Acu a had sustained only four weeks of temporary disability with a compensation rate of $203 per week. The Industrial Accident Board made its final ruling on Acu a's claim on March 29, 1990. Acu a filed suit on June 15, 1990. Following a jury trial, the trial court entered judgment in Acu a's favor. The judgment held Acu a was totally and permanently incapacitated (3) and awarded him $83,560.50 in medical expenses.

Standard of Review

A "no evidence" standard of review is applied when the party without the burden of proof challenges a finding of fact by arguing that the evidence is legally insufficient to support the finding. Hickey v. Couchman, 797 S.W.2d 103, 109 (Tex. App.-Corpus Christi 1990, writ denied) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)). When we review a legal sufficiency of the evidence point of error, we must consider all the evidence in a light favorable to the party in whose favor the verdict was rendered, and every reasonable inference raised by the evidence is to be indulged in that party's favor. Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998); Hines v. Comm'n for Lawyer Discipline, 28 S.W.3d 697, 701 (Tex. App.-Corpus Christi 2000, no pet.). A legal sufficiency point may only be sustained when the record discloses: (1) 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; and (4) the evidence established conclusively the opposite of the vital fact. Juliette Fowler Homes, Inc. v. Welch Assoc., 793 S.W.2d 660, 666 n. 9 (Tex. 1990). If there is more than a scintilla of evidence to support the finding, the legal sufficiency challenge fails. Formosa, 960 S.W.2d at 48; Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is not more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). The test for the application of the no evidence rule is: if reasonable minds cannot differ from the conclusion, then the evidence offered to support the existence of a vital fact lacks probative force, and it will be held to be the legal equivalent of no evidence. Id.; Hines, 28 S.W.3d at 701.

When we review the factual sufficiency of the evidence, we consider, weigh and examine all of the evidence which supports or undermines the finding of the trier of fact. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442. 445 (Tex. 1989). We review the evidence, keeping in mind that it is the fact finder's role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses' testimony. Corpus Christi Teachers' Credit Union v. Hernandez, 814 S.W.2d 195, 197 (Tex. App.-San Antonio 1991, no writ). We then overturn findings only if they are 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).

Analysis

By its first issue, the City contends that the evidence was both legally and factually insufficient to support the jury's finding that Acu a was totally and permanently incapacitated. The City argues that the evidence is insufficient to support the jury's finding because Acu a was released to return to work by every doctor he saw for five years following the accident.

There is no fixed rule of evidence by which to prove disability. Farmland Mut. Ins. Co. v. Alvarez, 803 S.W.2d 841, 847 (Tex. App.-Corpus Christi 1991, no writ). The fact finder must determine the extent and duration of a disability based on all the pertinent facts. See Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 310 (Tex. 1986); Alvarez, 803 S.W.2d at 847; Texas Employers' Ins. Ass'n v. Ramirez, 770 S.W.2d 896, 901 (Tex. App.- Corpus Christi 1989, writ denied). A return to work is some evidence that the factfinder may consider when making a disability determination; however, this evidence is not conclusive. Navarette, 706 S.W.2d at 310; Alvarez, 803 S.W.2d at 847; Ramirez, 770 S.W.2d 896, 901. The mere fact that a claimant has returned to work after his injury does not, in and of itself, preclude a finding of total and permanent incapacity. City of McAllen v. Alvarado, 718 S.W.2d 903, 906 (Tex. App.-Corpus Christi 1986, no writ);Lumbermen's Mut. Casualty Co. v. Villalpondo, 605 S.W.2d 705, 707 (Tex. App.-Corpus Christi 1980, no writ). This principle is particularly true where the claimant returned to work after an injury out of hardship and economic necessity. Alvarado, 718 S.W.2d at 907.

"Total incapacity" does not mean absolute inability to perform any kind of labor; rather, it means that a person is disabled from performing the usual tasks of a workman, not merely the usual tasks of any particular trade, to such an extent that he cannot get and keep employment. Texas Employers Ins. Ass'n v. Hawkins, 369 S.W.2d 305, 306-07 (Tex. 1963); Alvarez, 803 S.W.2d at 847; Gonzalez v. Texas Employers Ins. Ass'n, 772 S.W.2d 145, 147 (Tex. App.-Corpus Christi 1989, writ denied).

Here, there is some evidence of probative value that Acu a was totally and permanently incapacitated by the work-related injury. Acu a testified that as a result of the injury, he has suffered pain in his back and leg, and that the pain has worsened since the injury. He testified that he has never "gotten well" or recovered to a point that he was free from pain. He denied that he told Dr. Keillor that he had fully recovered from the injury. He testified that he was unable to perform mechanic work after the injury. Prior to working for the City, he performed migrant field work, painted houses, and did cement foundation work. He testified that since the injury, he is unable to do any heavy lifting, and because of the pain, cannot do any of the jobs he was able to do before the injury. He stated that during the year following the injury, he was able to continue to work for the City by taking frequent rest breaks and performing stretching exercises to alleviate the pain. He testified that his wife works and he stays at home and does minor household chores.

Dr. Krishnan testified that Acu a's 1991 MRI shows that he had a disc problem with nerve root compression, and the 1994 MRI shows that the herniation had become more severe. He testified that in all reasonable probability, Acu a's herniated disc was a result of the 1985 work-related injury. Krishnan testified that because of the injury, Acu a was unable to do any heavy-duty mechanic work or any other heavy-duty work. He further testified that Acu a is totally incapacitated based on the definition of "total incapacity" under the workers' compensation statute.

Keillor testified that over the two-month period that he treated Acu a, Acu a got "completely well" and did not suffer any permanent impairment or disability. He also testified that based on his examination, in all medical probability, Acu a did not have a herniated disc in 1985. He also stated that Acu a had reported that he was "all well."

We hold that the evidence is legally and factually sufficient to support the jury's finding that Acu a was totally and permanently incapacitated as a result of his work-related injury. We overrule the City's first issue.

Medical Expenses

By its second issue, the City contends there is no evidence, or factually insufficient evidence, to support the jury's finding that Acu a was entitled to $83,560.50 in reasonable medical expenses. Acu a concedes that he is only entitled to recover for medical expenses accrued at the time of trial and not for future medical expenses. He argues that the amount awarded by the jury is not for future medical expenses, but rather, was awarded by the jury because of the City's failure to "provide any medical benefits to their injured employee." He argues that the jury awarded more money than was requested to compensate for the medical treatment that he should have been provided and was wrongfully denied. In his brief, Acu a asserts that his choice of a medical provider was Dr. Carlson, and that an unpaid balance of $8,335.00 is owed to Carlson for medical services. In support of his allegation, Acu a offers a handwritten note, (4) purportedly from the City's records, which includes the notation, "never knew if DAC paid" and "$8,335 bal at DAC." In addition, Manuel Davila, personnel director for the City, testified as follows concerning the note:

Q [by counsel]: Don't those notes from the City that were provided to us reflect that over eight thousand dollars was owed to Dr. Carlson?

A: Yeah. These are some notes by Dee Decker. (5)

Except for the handwritten note described above, Acu a offers no evidence in support of his claim for medical expenses owed to Carlson. He also asserts that additional medical expenses, for the MRIs and the services of Drs. Krishnan and Tijerina, total $9,056.85; however, Acu a cites no reference to the record in support of this claim and we find no evidence in the record to support it. During Krishnan's videotaped deposition testimony, Acu a's counsel asks, "[d]octor, do you have a reference as to the amount of medical charges that he has incurred for treatment with you?" Krishnan responds, "I can get it for you." However, no affidavit or other supporting documentation appears in the record. The record contains copies of three invoices from Krishnan's office: 1) an invoice dated March 9, 1990 for $76.35; 2) a second invoice dated January 23, 1990 for $520.50; and 3) a third dated February 3, 1994 for $125.00. (6) The third invoice for $125.00 is marked "paid." We find no evidence in the record, and Acu a cites us to none, establishing that the amounts reflected in the invoices were not paid.

With regard to his medical expenses, Acu a testified as follows:

Q [by counsel]: As far as you know, sir, did the City of Edinburg ever offer to pay any of the medical bills of Dr. Krishnan after 1986?

A: No.

Q: As far as you know, did they ever offer to pay Dr. Tijerina for any of the visits that you had from the time of the injury up until 1993?

[Counsel for City]: Excuse me. There is -- I'll object to that line of questioning. There is no evidence regarding Dr. Tijerina.

[Court]: Overruled. Overruled.

[City]: I would also voice the objection that it's a leading question.

[Court]: All right. That's overruled as well.

Q [Acu a's counsel]: As far as you know, did they ever offer?

A: No, sir.

Q: As far as you know, did they ever offer to pay Dr. Carlson the balance that was owed?

A: No, sir.

[City]: The Court, please, I'll object to that and ask that that be stricken. There is no evidence regarding Dr. Carlson with regards to any bills and certainly any balance.

[Acu a's counsel]: The only reason there wasn't, Your Honor, is because I was --

[Court]: At this point sustained.

[Acu a's counsel]: All right.

Q [Acu a's counsel]: Do you know whether or not --

May I inquire as to his knowledge about any prior balance, Your Honor?

[Court]: Yes.

[Acu a's counsel]: Thank you.

Q [Acu a's counsel]: Do you know whether or not there was a balance owed to Dr. Carlson for the services he provided to you?

Let me rephrase that. Do you know whether or not Dr. Carlson was owed money for the treatments that he gave you?

A: Yes, sir.

Q: And was there, in fact, money owed to him?

A: Yes, sir.

Q: As far as you know, did the City ever offer to pay that?

A: No, sir.

Q: You had an MRI in 1990 and in 1993. As far as you know, did the City ever offer to pay for those?

A: No.

Section 7 of former article 8306 requires an insurer to furnish all medical services as may reasonably be required to cure and relieve an employee from the effects naturally resulting from his injury, but section 5 of former article 8307 prohibits the rendition of an award of judgment for future medical expenses in a workers' compensation case. Hartford Underwriters Ins. Co. v. Burdine, 34 S.W.3d 700, 708 (Tex. App.-Fort Worth 2000, no pet.) (citing Employers Mut. Cas. Co. v. Poorman, 428 S.W.2d 698, 701 (Tex. App.-San Antonio 1968, writ ref'd n.r.e.)). Specifically, section 5 states that no award or judgment against an insurer may include any medical cost or expense that has not been actually furnished to and received by the employee prior to the date of the judgment. Id.

To recover medical expenses, a claimant must prove the charges incurred were "reasonable and necessary." National Union Fire Ins. Co. v. Wyar, 821 S.W.2d 291, 297 (Tex. App.-Houston [1st Dist.] 1991, no writ). An affidavit may serve as sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable and necessary. Id.

Testimony of an injured party concerning medical expenses incurred or paid is admissible. Home Indem. Co. v. Eason, 635 S.W.2d 593, 595 (Tex. App.-Houston [14th Dist.] 1982, no writ). However, such testimony, alone, does not establish the expense is reasonable and necessary. Id. Without such a showing, there can be no recovery. Id. (citing Gerland's Food Fair, Inc. v. Hare, 611 S.W.2d 113, 117 (Tex. App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.)).

Here, the record contains no affidavits or other evidence establishing that the amounts claimed as owing to Drs. Carlson, Krishnan and Tijerina were for reasonable and necessary medical expenses. We conclude there is no evidence to support the jury's award of $83,560.50 as reasonable charges for health care services. We sustain the City's second issue.

We REVERSE the trial court's judgment, in part, as to the award of $83,560.50 in accrued medical expenses; RENDER judgment, in part, that appellee be awarded no accrued medical expenses; and otherwise AFFIRM the judgment. See Tex. R. App. P. 43.2.

LINDA REYNA YA EZ

Justice

Do not publish. Tex. R. App. P. 47.3.

Opinion delivered and filed this the

12th day of July, 2001.

1. Retired Justice Melchor Chavez assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov't Code Ann. 74.003(Vernon 1998).

2. Because Acu a's injury occurred in 1985, this case is under the "old" workers' compensation act. See Act of May 26, 1981, 67th Leg., R.S., ch. 324, 1, 1981 Tex. Gen. Laws 3290, 3290 (Tex. Rev. Civ. Stat. Ann. art. 8306, 10), repealed by Act of Dec. 12, 1989, 71st Leg., 2nd C.S., ch. 1, 16.01(7), 1989 Tex. Gen. Laws 1, 114; Act of Mar. 6, 1969, 61st Leg., R.S., ch. 18, 4, 1969 Tex. Gen. Laws 48, 49 (Tex. Rev. Civ. Stat. Ann. art. 8306, 11), repealed by Act. of Dec. 12, 1989, 71st Leg., 2nd C.S., ch. 1, 16.01(7), 1989 Tex. Gen. Laws 1, 114.

3. The judgment awarded Acu a $81,403.00 of accrued benefits of 401 weeks from April 18, 1995 and $42,584.48 in accrued interest at 4% per annum.

4. The note is identified in the record as Plaintiff's Exhibit No. 20.

5. Dee Decker was personnel coordinator for the City at the time of Acu a's injury.

6. The invoices are designated as Plaintiff's Exhibits 8, 9, and 10 respectively.