Linda A. Hazelip v. American Casualty Co. of Reading, PA. ( 2012 )

Opinion issued June 28, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-09-00659-CV
———————————
LINDA A. HAZELIP, Appellant
V.
AMERICAN CASUALTY COMPANY OF READING, PA, Appellee
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2007-20003
MEMORANDUM OPINION ON REHEARING
We originally issued our memorandum opinion in this appeal on March 15,
2012. Appellant, Linda A. Hazelip, has filed a motion for rehearing. We deny the
motion for rehearing, vacate our earlier judgment, withdraw our previous opinion,
and issue this opinion in its place.
Appellant, Linda A. Hazelip, brought suit against appellee, American
Casualty Company of Reading, PA, after American Casualty determined that
compensation for an injury sustained in the work place did not extend to certain
conditions in her spine. The jury determined that the conditions were not
compensable, and Hazelip appealed. In five issues, Hazelip argues the trial court
erred by (1) allowing American Casualty to violate its own motion in limine;
(2) excluding from the evidence a letter from one of Hazelip’s doctors; and
(3) denying some of her proposed instructions for the jury charge.
We affirm.
Background
On March 8, 2005, Hazelip was working as a contractor for Kelly Services.
That day she was working at the facilities of a company called UniCare. While
there, some folders containing paper files fell on the back of her neck, causing her
some injury. The extent of those injuries is the subject of dispute.
Hazelip alleged that the injuries extended to certain spinal conditions that
were subsequently identified. American Casualty, Kelly Services’ workers’
compensation insurance carrier, alleged that compensable injury did not extend to
those conditions.
Hazelip appealed American Casualty’s assertion to the Texas Workers’
Compensation Commission Appeals Panel of the Texas Department of Insurance,
Division of Workers’ Compensation. The appeals panel agreed with American
Casualty, determining that the compensable injury did not extend to the relevant
spinal conditions and that American Casualty did not waive the right to contest
compensability.
Hazelip, acting pro se, sought judicial review of the appeals panel’s
decision, filing suit on March 31, 2007. Trial commenced on March 10, 2009.
The jury also determined that the compensable injury did not extend to the relevant
spinal conditions.
Hazelip now appeals the take-nothing judgment from the trial court.
Motion in Limine
In her second issue, Hazelip argues the trial court erred by allowing
American Casualty to violate its own motion in limine. American Casualty argues
that this issue has not been preserved for appellate review. We agree.
Prior to trial, American Casualty asked the trial court to order all the parties
to refrain from referring to certain matters without first seeking permission from
the court. Hazelip complains about two of the matters for which the trial court
granted American Casualty’s request. The first prevented the parties from making
“[a]ny statement which tends to inform the jury or jury panel of the effect of their
answers to questions or what any party must show in order to recover or must
avoid in order to recover.” The second prevented the parties from introducing
“[a]ny documents or testimony in any form relating to extent of impairment that
was not presented to” the Texas Department of Insurance, Division of Workers’
Compensation.
Hazelip argues that American Casualty violated these two restrictions during
a portion of its cross-examination of her. As American Casualty points out,
however, Hazelip did not raise any objections at the time she answered the
questions that she asserts violate the restrictions.
A trial court’s ruling on a motion in limine is not a final ruling on the
evidence and preserves no error for appellate review. Ulogo v. Villanueva, 177
S.W.3d 496, 500 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing Acord v.
Gen. Motors Corp., 669 S.W.2d 111, 116 (Tex. 1984)). “A motion in limine
merely precludes reference to the subject of the motion without a party’s first
obtaining a ruling on the admissibility of those matters outside the presence of the
jury.” Id. at 500–01. In order to preserve error, the complaining party must make
an objection at the time the evidence is offered. Tex. Capital Sec., Inc. v. Sandefer,
58 S.W.3d 760, 770 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); see also
Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex. 1963).
Hazelip did not object to the line of questioning that she asserts violates the
motion in limine. Accordingly, any error has not been preserved for appeal. Tex.
Capital Sec., 58 S.W.3d at 770; see also Hartford, 369 S.W.2d at 335.
Hazelip asserts in her brief that she did try to raise an objection. She further
asserts that the trial court did not allow her to complete her sentence and told her
she must answer the question. She acknowledges, however, that this is not
reflected in the record. The appellant bears the burden of bringing forward a
sufficient record to show the trial court’s error. See Nicholson v. Fifth Third Bank,
226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also
Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (holding burden is on
appellant to see that sufficient record is presented to show error requiring reversal).
Hazelip also asks this Court to modify or add “to the Rules and Statutes in
the State of Texas to incorporate rules specific to the needs of self-represented
litigants, especially for those in Workers Compensation Cases.” This is not within
our authority to do. See TEX. CONST. art. II, § 1 (conferring legislative authority on
Texas Legislature), art. V, § 31 (conferring judicial rule-making authority on
Supreme Court of Texas).
We overrule Hazelip’s second issue.
Excluding Evidence
In her third issue, Hazelip argues the trial court erred by excluding from
evidence a letter from one of her doctors.
A. Standard of Review
Evidentiary rulings are committed to the trial court’s sound discretion. Bay
Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). We
review a trial court’s decision to admit or exclude evidence for an abuse of that
discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its
discretion when it acts without reference to any guiding rules and principles.
Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999). We must uphold the trial
court’s evidentiary ruling if there is any legitimate basis for the ruling. Owens–
Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Oyster Creek
Fin. Corp. v. Richwood Invs. II, Inc., 176 S.W.3d 307, 317 (Tex. App.—Houston
[1st Dist.] 2004, pet. denied).
Evidentiary rulings do not usually cause reversible error unless an appellant
can demonstrate that the judgment turns on the particular evidence that was
admitted or excluded. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54
(Tex. 1995); Benavides v. Cushman, Inc., 189 S.W.3d 875, 879 (Tex. App.—
Houston [1st Dist.] 2006, no pet.). An error in the exclusion of evidence requires
reversal if the evidence is both controlling on a material issue and not cumulative.
Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994).
B. Analysis
At trial, Hazelip sought to introduce certain records from her treating
physician, Dr. Timothy McKinley, under the business records exception to the
hearsay rule. See TEX. R. EVID. 803(6). American Casualty objected to one of the
documents, arguing it did not fit the definition of a business record and,
accordingly, was hearsay.
The document in question was a letter from Dr. McKinley that was not
addressed to anyone. The letter asserted that Hazelip’s work place injury caused
two “disc bulge pathologies in areas of degeneration of her cervical spine.” It also
noted that Hazelip “had abnormal finding[s] from an EMG at the C-6 level.”
Hazelip asserted that the document was prepared for American Casualty’s
consideration in its peer review of the extent of her injury.
American Casualty argued that “letters written by doctors trying to address
key issues in the case do not fall under the business record affidavits, they’re not
admissible because . . . they are hearsay.” It also argued that the letter deprived it
of the right to cross-examination on the key issue. The trial court agreed and
excluded the letter from the record.
On appeal, Hazelip argues that the trial court had admitted other reports
from other doctors as business records. She argues that, by extension, this letter
also should have been admitted. Whether other similar documents were admitted
into evidence is not the relevant inquiry, however. Our review concerns whether
the trial court abused its discretion in excluding the evidence in question. See In re
J.P.B., 180 S.W.3d at 575.
A letter from a physician that, on its face, is an attempt to convey an opinion
to an outside interested source does not satisfy the requirements to be admissible as
a business record. Freeman v. Am. Motorists Ins. Co., 53 S.W.3d 710, 715 (Tex.
App.—Houston [1st Dist.] 2001, no pet.); Tex. Employer’s Ins. Ass’n v. Sauceda,
636 S.W.2d 494, 499 (Tex. App.—San Antonio 1982, no writ). Hazelip
acknowledges that the letter was drafted for American Casualty in an attempt to
influence its determination of whether the spinal conditions at issue were
compensable injuries. She also acknowledges that the letter contains opinions
from her physician on whether the spinal conditions were compensable injuries.
We hold that the trial court did not abuse its discretion in determining that the letter
from Dr. McKinley was not admissible under the business records exception.
We overrule Hazelip’s third issue.
Jury Charge
In her first issue, Hazelip argues the trial court erred by refusing to allow an
instruction on the compensability of an aggravation of a pre-existing condition. In
her fourth and fifth issues, she argues that the trial court erred by refusing to allow
instructions on what constitutes waiver of American Casualty’s right to challenge
compensability.
A. Standard of Review
We review a challenge to the trial court’s jury charge under an abuse of
discretion standard. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649
(Tex. 1990); Moss v. Waste Mgmt. of Tex., Inc., 305 S.W.3d 76, 81 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied). The trial court has considerable discretion
in deciding whether a proposed instruction is necessary and proper to submit to the
jury. State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451–52 (Tex. 1997); see also
Bryan v. Watumull, 230 S.W.3d 503, 508 (Tex. App.—Dallas 2007, pet. denied)
(holding trial court is afforded more discretion when submitting instructions than
when submitting questions).
If we determine that the jury charge was erroneous, we must then consider
whether the error requires reversal. See Transcon. Ins. Co. v. Crump, 330 S.W.3d
211, 225 (Tex. 2010). Generally, charge error requires reversal of a judgment only
where the error was harmful in the sense that it probably caused rendition of an
improper verdict. Id.
B. Compensable Injury
The first question submitted to the jury consisted of the following question
and instructions:
Did the compensable injury of March 8, 2005 extend to include disc
bulges at C5-6 and C6-7, degenerative joint [disc] disease and
spondylosis at C4-7?
You are instructed that the decision of the Texas Workers’
Compensation Commission Appeals Panel determined that the
compensable injury of March 8, 2005 does not extend to include disc
bulges at C5-6 and C6-7, degenerative joint [disc] disease, and
spondylosis at C4-7.
The term “compensable injury” means an injury or disease arising out
of and in the course of employment for which compensation is
payable.
Hazelip argues in her first issue that the trial court should have included an
instruction on aggravation of a pre-existing condition in the jury charge. American
Casualty objected on the grounds that Hazelip had not pleaded the issue and it had
not been raised at trial. The trial court agreed.
“A trial court cannot enter judgment on a theory of recovery not sufficiently
set forth in the pleadings or otherwise tried by consent.” Hartford Fire Ins. Co. v.
C. Springs 300, Ltd., 287 S.W.3d 771, 779 (Tex. App.—Houston [1st Dist.] 2009,
pet. denied); see also TEX. R. CIV. P. 301 (providing that the “judgment of the
court shall conform to the pleadings”); Stoner v. Thompson, 578 S.W.2d 679, 682
(Tex. 1979) (holding judgment must be based upon pleadings, and plaintiff may
not obtain favorable judgment on unpleaded cause of action in absence of trial by
consent).
Hazelip argues in her brief that American Casualty had notice of her claim
of aggravation of a pre-existing injury. For proof, she attaches to her brief her
response to American Casualty’s requests for disclosure. This document is not a
part of the record and, accordingly, cannot be considered on appeal. See Sowell v.
Kroger Co., 263 S.W.3d 36, 38 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(holding that requests for disclosure filed as an appendix to appellate brief could
not be considered because they were not made part of the record); Till v. Thomas,
10 S.W.3d 730, 733–34 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (holding
“[w]e cannot consider documents attached to an appellate brief that do not appear
in the record.”). Without any evidence in the record that American Casualty had
notice that Hazelip was seeking to use aggravation of a pre-existing injury as a
basis for recovery, we must affirm the trial court’s ruling.
Hazelip also argues in her first issue that the following instruction should
also have been included in the jury charge: “You are further instructed that the
issue before this Court is not whether the compensable injury was a ‘producing
cause’, but whether the injury ‘extended to include’ the above referenced.”
“The court shall submit [to the jury] such instructions and definitions as
shall be proper to enable the jury to render a verdict.” TEX. R. CIV. P. 277. “When
a trial court refuses to submit a requested instruction, the question on appeal is
whether the request was reasonably necessary to enable the jury to render a proper
verdict.” Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912
(Tex. 2000). An instruction is proper if it (1) assists the jury; (2) accurately states
the law; and (3) finds support in the pleadings and the evidence. Id.
In Flieshman, the proposed instruction told jurors that, in considering a
question on defective design, they “shall not consider any evidence of negligence
on the part of [plaintiff], if any, in climbing the ladder in question on the occasion
in question.” Fleishman v. Guadiano, 651 S.W.2d 730, 731 (Tex. 1983). The
Supreme Court of Texas noted that the jury had been properly given a broad form
question on defective design and a definition of defective design. Id. The court
held that the requested instruction was improper because it “would have deflected
the jury’s attention to [the plaintiff’s] contributory negligence, when it was
considering whether the ladder was defectively designed.” Id.
The same is true here. The question already asked whether the compensable
injury “extended to include” certain other conditions. An instruction not to
consider whether the compensable injury was a producing cause would not have
assisted the jury and would have deflected the jury’s attention from the relevant
matter. We hold the trial court did not abuse its discretion in denying this request.
We overrule Hazelip’s first issue.
C. Factors for Waiver
The second question submitted to the jury consisted of the following
question, instructions, and statutory provisions:
Has the Defendant waived the right to contest compensability of the
claimed injury by not timely contesting the injury in accordance with
Texas Labor Code sections 409.021 and 409.022?
You are instructed that the decision of the Texas Workers’
Compensation Commission Appeals Panel determined that the Carrier
did not waive the right to contest compensability of the claimed
injury.
Texas Labor Code section 409.021 states, in relevant part:
(c) If an insurance carrier does not contest the compensability
of an injury on or before the 60th day after the date on which
the insurance carrier is notified of the injury, the insurance
carrier waives its right to contest compensability. The initiation
of payments by an insurance carrier does not affect the right of
the insurance carrier to continue to investigate or deny the
compensability of an injury during the 60-day period.
Texas Labor Code section 409.022 states, in relevant part:
(a) An insurance carrier’s notice of refusal to pay benefits under
Section 409.021 must specify the grounds for the refusal.
Hazelip argues in her fourth issue that the following instruction should also
have been included in the jury charge:
You are further instructed that in order to determine if Defendant
waived the right to contest compensability of the claimed injury, there
are several factors to consider. 1) You must first determine on what
date Defendant received written notice of Plaintiff’s injury. Then, you
must determine if Defendant filed TWCC PLN-11 (Notice of
Disputed Issues and Refusal to Pay Benefits) within the sixty-day
period that is established by the governing rules of the Texas
Department of Insurance - Division of Workers Compensation.
2) If the TWCC PLN-11 is not properly worded. It stated “Per the
Peer Review dated April 14, 2005, effects of the compensable injury,
soft tissue injury to the cervical spine injury have resolved. The
Degenerative Disc Disease and Spondylosis are not causally related to
the WC injury. Based on this, it is the Carrier’s position that any
current medical condition alleged to be suffered by the employee is
not related to the compensable injury.” The jury must determine
whether the disc bulges were specifically addressed in the disputed
issues. If not specifically addressed, the Defendant waived the right
to contest compensability of the disc bulges, which may or may not be
pre-existing.
3) And, if the disc bulges and / or other conditions were pre-existing,
the Jury must determine if the work-related accident aggravated and /
or exacerbated the pre-existing conditions. If the answer is “Yes” to
aggravation and / or exacerbation, then Defendant waived the right to
contest compensability of the claimed injury.
If the answer of waiver to any of these three factors listed is “Yes”,
then Defendant waived the right to contest compensability of the
claimed injury.
To obtain reversal on a jury instruction, the instruction must have been in
substantially correct form. Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 169
(Tex. 2002). A jury instruction is improper if it comments on the weight of the
evidence or “nudge[s]” or “tilt[s]” the jury. Wal–Mart Stores, Inc. v. Johnson, 106
S.W.3d 718, 724 (Tex. 2003); see also Torres v. Caterpillar, Inc., 928 S.W.2d 233,
241 (Tex. App.—San Antonio 1996, writ denied). It can be error for a trial court
to give the jury an instruction even when it is a substantially correct statement of
the law. Liberty Mut. Ins. Co. v. Camacho, 228 S.W.3d 453, 460 (Tex. App.—
Beaumont 2007, pet. denied).
Assuming without deciding that the proposed instruction is a substantially
correct statement of the law, it is nevertheless an improper comment on the weight
of the evidence. For example, the second paragraph asks the jury to determine if
the TWCC PLN-11 was properly worded. It then quotes certain language of the
letter, focusing the jury on that language specifically.
The proposed instruction also repeatedly informs the jury that answering
“yes” to any of her proposed factors results in American Casualty’s right to contest
compensability. It is not necessary to emphasize this point multiple times, and
repetition suggests to the jury what the answer should be. See Johnson, 106
S.W.3d at 724 (holding jury instruction is improper if it nudges or tilts the jury).
We hold that the proposed instruction contains multiple comments on the
weight of the evidence. Accordingly, it was not in substantially correct form, and
the trial court was within its discretion to exclude the proposed instruction.
We overrule Hazelip’s fourth issue.
D. Legal Authority on Waiver
Hazelip filed a document containing over five pages of summaries of the law
she considered relevant to the issue of waiver and asking that they “be considered
for inclusion in the jury charge.” On appeal, she argues that the trial court erred in
excluding certain portions of the summaries of the law. There is no indication in
the record, however, that these requested portions were raised or ruled upon by the
trial court during the charge conference.
To preserve error for exclusion of a jury instruction, the complaining party
must present the written proposed instruction to the trial court and obtain a ruling.
Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 27 (Tex. App.—Houston
[14th Dist.] 2006, no pet.). Because there is no evidence that these proposed
instructions were presented to or ruled upon by the trial court, this issue has not
been preserved for appellate review.
We overrule Hazelip’s fifth issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.