Allen v. Employers Cas. Co.

• Decision Date: 17 November 1994
• Docket Number: No. 07-94-0060-CV,07-94-0060-CV
• Parties: Patsy ALLEN, Individually and as Next Friend of Darin Beau Allen, a Minor, Appellant, v. EMPLOYERS CASUALTY COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 219

888 S.W.2d 219

Patsy ALLEN, Individually and as Next Friend of Darin Beau Allen, a Minor, Appellant, v. EMPLOYERS CASUALTY COMPANY, Appellee.

No. 07-94-0060-CV.

Court of Appeals of Texas,

Amarillo.

Nov. 17, 1994.

John B. Scott, Fort Worth, for appellant.

Gibson, Ochsner & Adkins, L.L.P., Kenneth S. Muncy and Todd O. Lafferty, Amarillo, for appellee.

Before REYNOLDS, C.J., and DODSON and BOYD, JJ.

REYNOLDS, Chief Justice.

Appealing from the take-nothing judgment rendered in her action seeking death benefits under the Texas Workers' Compensation Act (the Act), ¹ Patsy Allen, individually and as next friend of Darin Beau Allen, a minor, contends the jury's failure to find that her deceased husband's fatal heart attack was compensable under the Act was against the great weight and preponderance of the evidence. Allen also makes an appellate contention that section 408.008 of the Act is unconstitutional. ² Based upon the authorities discussed, the trial court's judgment will be affirmed.

The facts leading up to litigation are not disputed, but an overview is appropriate to position the contested expert medical testimony. On 4 April 1991, Allen's husband, Jerry Don Allen (Jerry), the deceased, and his son, Gregory Darin Allen (Darin), were drilling for gold in Truth or Consequences, New Mexico, in the scope of their employment with Burkett Drilling Company. The two men arrived at the drilling site about nine o'clock in the morning and proceeded to drill a hole 200 to 240 feet deep, until the pipe hit water and became twisted and could not pump out the water.

Removing the pipe was made more rigorous due to the twisting, and each twenty-foot section connection had to be straightened by beating it with an eight pound sledge hammer as it was lifted from the hole. Father and son alternated the work, with one pounding the pipe and the other operating the machinery to lift the pipe out of the hole, and then switching jobs on each section of pipe. Resultingly, during the approximately one hour it took the two to accomplish the task, Jerry pounded between five and six sections of pipe, hitting each section approximately ten times with the sledge hammer. Both men exerted energy in this task, but Jerry was not experiencing any stated pain or illness.

After the pipe was out of the ground and the equipment was loaded on the truck, but still in the course of employment, ³ the men decided to walk a half-mile to an old abandoned miner's cabin. They walked at a normal pace, and reached the cabin in twenty-five to thirty minutes, during which time both men became a little out-of-breath, but Jerry was not ill or experiencing any stated pain.

After exploring the cabin, they proceeded toward a windmill, about a quarter-mile away from the cabin, for a drink of water. About half-way there, Jerry laid down on the ground, complaining of chest pains. Darin went to the windmill to get some water for his father, but realized he did not know how to operate it.

Darin went back for his father, and the two went to the windmill together. As Jerry was explaining to Darin how to operate the pump, he "fell over." When Darin's attempts to revive his father failed, he went to find someone to help. By the time Darin returned with help, Jerry was dead.

No autopsy was performed. The cause of death was listed on the death certificate as atherosclerotic cardiovascular disease (ASCVD), commonly known as a heart attack caused by hardening of the arteries. Although Jerry fell within several risk categories for heart disease, prior to his death, he appeared to be healthy and had never exhibited, nor complained of, symptoms associated with heart disease.

Believing the strenuous work of beating the pipe was the major cause of Jerry's heart attack, Allen sought death benefits under the Act from Employers Casualty Company, the workers' compensation insurance carrier for Burkett Drilling Company. The Act's former article 8308-4.15 provided, and its present section 408.008 now provides, that:

A heart attack is a compensable injury under this subtitle only if:

(1) the attack can be identified as:

(A) occurring at a definite time and place; and

(B) caused by a specific event occurring in the course and scope of the employee's employment;

(2) the preponderance of the medical evidence regarding the attack indicates that the employee's work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack; and

(3) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus.

Finding "the evidence insufficient to uphold the conclusions that [t]he preponderance of medical evidence shows that Mr. Allen's work, rather than the natural progression of atherosclerosis, was a substantial contributing factor to his heart attack," the Texas Workers' Compensation Commission denied death benefits to Allen.

Allen appealed from the Commission's decision to the district court, alleging there was sufficient evidence that Jerry's condition was substantially caused by his work and was compensable under the Act. Further, she generally alleged that the then governing article 8308-4.15 of the Act, as it related to heart attack victims, was unconstitutional.

At trial, Darin testified to the events leading up to his father's death, and depositions of two physicians, containing conflicting testimony regarding the contribution of Jerry's work to his death, were presented. The cause was submitted to the jury on the sole question, "Did Jerry Don Allen, on April 4, 1991, receive a compensable heart attack?" By a vote of ten of the twelve jurors, the jury answered "No" to the question, and the trial court rendered a take-nothing judgment against Allen on the verdict.

Allen motioned for a new trial, alleging the jury's finding was against the great weight and preponderance of the evidence and there was sufficient evidence to support her proposition that the work was the substantial cause of the heart attack. Allen did not re-urge her claim of unconstitutionality by the motion for new trial or any other filing.

By this appeal, Allen presents a dichotomy of errors. She first contends the jury's answer to the question presented for her recovery under the Act is against the great weight and preponderance of the evidence. Second, she alleges the section of the Act under which she sought recovery is unconstitutional. Discussing Allen's points of error in reverse order, we first address the contention of the statute's unconstitutionality.

At the outset, we note that Allen initially complained of article 8308-4.15 of the Act as being unconstitutional because it "effectively terminates any rights a beneficiary had to collect death benefits as a result of the criteria for establishing a heart attack." This was the sum total of Allen's complaint in her original petition, and it was not expanded by any further pleadings or any argument at trial, nor was it presented as a basis for the granting of a new trial or in any other post-trial motion.

Allen's appellate complaint is that section 408.008 of the Act, the successor statute to the repealed article 8308-4.15, is unconstitutional in that it violates her rights to open courts, due process of law, and equal protection. The appellate argument is vague in its application of the stated law to the present facts; nevertheless, it is notably different from the complaint alleged in the petition.

Predicates for complaints on appeal must be preserved at the trial court level by motion, exception, objection, or some other vehicle. Tex.R.App.P. 52(a); PGP Gas Products, Inc. v. Fariss, 620 S.W.2d 559, 560 (Tex.1981). Absent certain exceptions not at issue, a party cannot complain on appeal about an error made in the trial court unless the error was called to the trial court's attention. Tex.R.App.P. 52(a); Lewis v. Texas Employers' Ins. Ass'n, 151 Tex. 95, 246 S.W.2d 599, 600 (1952).

The constitutionality of a statute will be considered only when the question is properly raised and a decision becomes necessary and appropriate to the disposal of the case. Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807, 813 (1959). Mere allegations of unconstitutionality such as those proposed by Allen, do not entitle a party to an adjudication of the validity of a statute. Ex parte Southland...