Worker's Compensation Division v. Cavazos, Maria ( 2000 )

NUMBER 13-99-379-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

WORKERS' COMPENSATION

DIVISION

, Appellant,

v.

MARIA CAVAZOS

, Appellee.

___________________________________________________________________

On appeal from the 357th District Court of Willacy County, Texas.

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O P I N I O N

Before Chief Justice Seerden and Justices Dorsey and Cantu⁽¹⁾

Opinion by Justice Dorsey

This is a workers' compensation case that is governed by the "old" Workers' Compensation Act. See Act of May 15, 1973, ch. 88, 1973 Tex.Gen.Laws 187, 193, amended by ch. 326, section 1, 1985 Tex.Gen.Laws 1387, 1388 repealed by ch. 1, section 4.05, 1989 Tex.Gen.Laws 33 (effective January 1, 1991) (current Act at Tex. Lab. Code Ann. § 401.001­451.003).⁽²⁾

Maria Cavazos was injured while on the job at the Rio Grande State Center. She was attempting to assist a very large patient when the patient fell. Cavazos jammed her thumb and strained her back. After a trial on the merits in district court, a jury found that Cavazos was totally and permanently incapacitated as a result of the injury.

Appellant, the Workers' Compensation Division of the Attorney General's Office, appeals the judgment of the trial court. It contends that the evidence adduced at trial was both legally and factually insufficient to sustain the jury's finding that Cavazos was totally and permanently incapacitated. We disagree.

"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); Gonzalez v. Texas Employers' Ins. Ass'n, 772 S.W.2d 145, 147 (Tex. App.--Corpus Christi 1989, writ denied). To uphold a recovery for total and permanent incapacity, the evidence must show that the worker is disabled to such an extent that he cannot get and keep employment. Lumbermens Mut. Cas. Co. v. Garcia, 758 S.W.2d 893, 895 (Tex. App.--Corpus Christi 1988, writ denied).

However, there is no fixed rule of evidence by which to prove permanent disability. Proof of the extent and duration of a disability must be determined by a jury based on all the pertinent facts. Navarette v. Temple Independent School District, 706 S.W.2d 308, 310 (Tex. 1986); City of McAllen v. Alvarado, 718 S.W.2d 903, 906 (Tex. App.--Corpus Christi 1986, no writ).

It has long been held that evidence that a claimant continued to work and earn money after an injury does not conclusively establish that the claimant is not totally and permanently disabled, and such a fact will not bar recovery if the evidence otherwise supports a total and permanent disability finding. This principle applies even if the claimant returns to the same job and receives an increase in pay, because these factors are only a part of the evidence a jury may consider in determining capacity and disability, and do not preclude an award for total and permanent incapacity. This is particularly true where the claimant returned to work after an injury out of hardship and economic necessity.

Alvarado, 718 S.W.2d at 906­07.

Here, there is some evidence of probative value that Cavazos was totally and permanently incapacitated by the work-related injury. Both Dr. Mireles, who treated Cavazos for injuries stemming from the accident at the State Center, and Cavazos herself testified that she was permanently and totally incapacitated in that incident. Moreover, the law is clear that the issue of incapacity may be established by the testimony of the worker alone, and expert medical testimony is not even required. Reina v. General Accident Fire & Life Assurance, 611 S.W.2d 415, 417 (Tex. 1981). At best, a disability's duration is an estimate that the jury makes based on consideration of all the pertinent facts. Lumbermen's Mut. Casualty Co. v. Villalpando, 605 S.W.2d 705, 707 (Tex. Civ. App.--Corpus Christi 1980, no writ). We hold the evidence is sufficient to establish that Cavazos was permanently and totally incapacitated in the State Center incident.

Next, the appellant contends that the trial court erred in ordering it to pay for the doctor's fees associated with taking the deposition of Dr. Mireles on January 7, 1999. Dr. Mireles testified on behalf of Cavazos regarding the nature and extent of her injuries. His deposition was originally scheduled to be taken on December 10, 1998. At that time, the trial was set to begin on December 14, 1998.

The Deputy Attorney General moved to quash the deposition, arguing that she could not appear at the deposition because she had a schedule conflict. On December 9, the trial court granted the motion to quash. Apparently, though, neither party was aware of the order quashing the deposition, and it went forward. However, the attorney from the Attorney General's office did not attend due to the conflict in her schedule requiring her to be at in court in another county at that time.

The day after the deposition was taken, the Attorney General filed a motion to suppress the deposition. Apparently, a hearing was held, and while the deposition was not suppressed, the trial was continued in order to allow the Attorney General to take Mireles' deposition. The second deposition was noticed for January 7, 1999.

The Attorney General's office again moved for protection from having to pay the expert fees for Dr. Mireles' deposition. On January 8, the trial court granted their motion for protection. Cavazos moved to set that order aside. The trial court took up the matter after the trial was completed. At that time, the trial court granted the motion to set aside its order requiring Cavazos to pay for Dr. Mireles' fees for the second deposition. Rather, the Attorney General was required to pay those fees.

The rule regarding payment of fees of retained experts changed on January 1, 1999. Before then, the only authority a trial court had for protecting a party in this manner was pursuant to rule 166b(5), which allowed the court to protect a party from "undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights." Tex. R. Civ. P. 166b(5). However, rule 195.7 became effective on January 1, 1999, and states: "When a party takes the oral deposition of an expert witness retained by the opposing party, all reasonable fees charged by the expert for time spent in preparing for, giving, reviewing, and correcting the deposition must be paid by the party that retained the expert." Tex. R. Civ. P. 195.7(5). The supreme court's order enacting the new rules stated:

Rule 195 is effective January 1, 1999, except that: . . . the rule should not be applied to disrupt expert discovery that is in progress or impending, or that has been scheduled by order or by agreement of the parties.

Order of Approval of the Revisions to the Texas Rules of Civil Procedure, Misc. Docket No. 98-9196 (Tex. Nov. 9, 1998), printed in 61 Tex. Bar J. 1140 (Dec. 1998).

We hold that applying rule 195.7 to the second deposition of Dr. Mireles would not "disrupt expert discovery that is in progress or impending." Because that deposition was taken on January 8, 1999, we hold that rule 195.7 applies and requires that Cavazos pay Dr. Mireles' fees.

We AFFIRM the judgment entered on the jury's verdict, but REVERSE the trial court's order setting aside its prior order protecting the defendant from having to pay the expenses of the plaintiff's retained expert, signed on January 8, 1998.

______________________________

J. BONNER DORSEY,

Justice

Do not publish

.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 30th day of November, 2000.

1. Retired Justice Antonio Cantu 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. The law of workers' compensation was completely revamped in 1991; thus, cases involving injuries that occurred prior to the effective date of the new law are referred to as "old law" cases.