Pacific Employers Ins. v. Dayton

• Decision Date: 26 November 1997
• Docket Number: No. 2-96-279-CV,2-96-279-CV
• Citation: 958 S.W.2d 452
• Parties: PACIFIC EMPLOYERS INSURANCE COMPANY, Appellant, v. Ruthann DAYTON, Appellee.
• Court: Texas Court of Appeals

Page 452

958 S.W.2d 452

PACIFIC EMPLOYERS INSURANCE COMPANY, Appellant, v. Ruthann DAYTON, Appellee.

No. 2-96-279-CV.

Court of Appeals of Texas,

Fort Worth.

Nov. 26, 1997.

Rehearing Overruled Feb. 12, 1998.

Scarzafava, Smith, Menke & Suchma, PLLC, Gary A. Scarzafava, Annelie Menke, Houston, Fillmore & Purtle, Mikal S. Lambert, Wichita Falls, for Appellant.

Banner, Briley & White, L.L.P., Steve Briley, Wichita Falls, for Appellee.

Before CAYCE, C.J., and DAUPHINOT and BRIGHAM, JJ.

OPINION

BRIGHAM, Justice.

Appellant Pacific Employers Insurance Company appeals from the jury's finding that appellee Ruthann Dayton had lost the use of her hands as defined by the Texas Workers' Compensation Act (the Act) of 1989 and was therefore entitled to Lifetime Income Benefits (LIBs). On appeal, appellant asserts that: the trial court "failed to acknowledge" and apply the changes to the Act that concern LIBs for total loss of use; the trial court erred in entering judgment for appellee because there was no evidence or insufficient evidence of total loss of use; the trial court failed to properly charge the jury; and the trial court erred in awarding attorney's fees for appellee's attorney. Because we determine that sufficient evidence supported the jury's determination that appellee was entitled to LIBs under the Act, the jury charge was proper, and the trial court did not improperly award attorney's fees to appellee's attorney, we affirm the trial court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellee worked for Levi Strauss as a riveter of clothing beginning in 1981. Her job required repetitive hand movements. Beginning in 1991, she developed problems with her thumb and was found to have carpel tunnel syndrome of her left hand. Her right hand was later found also to have carpel tunnel syndrome. She had surgery on her left hand in 1991 and on her right in 1992. Her first treating physician, Dr. Mark Huff Jr., initially released appellee to return to work on May 18, 1992. She worked from May until July of 1992 at a lighter duty job, but stopped because of recurring problems with her hands. Nerve conduction studies (EMGs) run on appellee's hands in September of 1992 demonstrated that she was still having problems. Therefore, Huff recommended retraining with the Texas Rehabilitation Commission. On January 15, 1993, Huff certified that appellee had reached maximum medical improvement (MMI) with a whole body impairment rating of 58%. In April of 1993, Dr. Paul Renton examined appellee at appellant's request and determined that she had a 20% whole body impairment rating.

On June 14, 1994, the Texas Workers' Compensation Commission held a benefit review conference. The review officer initially found that appellee was not entitled to LIBs because she had "residual use" of both of her hands. A benefit contested case hearing was then held on August 2, 1994. The hearing officer also decided that appellee was not entitled to LIBs. Appellee appealed. A Texas Workers' Compensation Commission Appeals Panel reversed the hearing officer's decision and remanded. In doing so, the appeals panel directed the hearing officer to make findings of fact regarding the definition of total loss of use in prior law. The appeals panel decision stated that the six enumerated losses under the prior law that entitled a claimant to lifetime benefits and the six listed injuries that entitle a claimant to LIBs under section 408.161 of the labor code are practically identical. The appeals panel stated that the question of whether the condition of appellee's hands were such that she could not get and keep employment requiring the use of her hands was a question of fact for the hearing officer to decide. On remand, the hearing officer decided that appellee was entitled to LIBs because she could not "get and keep" employment using her hands. The appeals panel affirmed the hearing officer's decision on January 17, 1995, finding that there was sufficient evidence to support the hearing officer's decision that appellee had total and permanent loss of the use of her hands so as to entitle her to LIBs. ¹ The evidence that the appeals panel relied on in reaching its decision included a letter from Huff to appellee's lawyer that stated that he had talked to a representative of the Texas Rehabilitation Commission about potential employment for appellee and had concluded that she could not get and keep a job because of the injuries to her wrists.

After the appeals panel issued its decision, appellee was examined by Dr. David Huang at appellant's request. Huang performed tests that indicated that appellee's condition had improved and that she was able to do light to medium work. Because Huff, appellee's treating physician had retired, she requested and received a change of treating physicians from Huff to Dr. Danny Bartel, a neurologist. Bartel examined her on March 7, 1995 and ordered tests that indicated that another surgery would not be beneficial. Based on those tests and his examination, Bartel agreed that appellee could "try" to return to work at a light duty job. Dr. Huang noted that it would be expected that appellee's condition would improve while she was off work but would worsen when she returned to work. At the time of trial, appellee had returned to work at Levi Strauss attaching labels to garments. She had been working for about two months and had progressively increased her work schedule. She testified that she was experiencing tingling, numbness, and burning in her hands. At trial, the jury determined that appellee had lost the use of her hands as defined by the Act and was entitled to LIBs.

COMPLAINTS ON APPEAL

Appellant first contends that the trial court "failed to acknowledge and apply the changes" in the Act that concern LIBs for total loss of use. As a general rule, we are bound to consider a point on appeal, even though not technically properly briefed, if our attention is directed to a specific error of the trial court. See TEX.R.APP. P. 38.1(e); Champion v. Wright, 740 S.W.2d 848, 850-51 (Tex.App.--San Antonio 1987, writ denied). However, a point that is merely an abstract proposition of law, or a general complaint about the trial court's actions is too general and indefinite to merit our review. See Superior Packing, Inc. v. Worldwide Leasing & Fin., Inc., 880 S.W.2d 67, 69 (Tex.App.--Houston [14th Dist.] 1994, writ denied); Pope v. Darcey, 667 S.W.2d 270, 272-73 (Tex.App.--Houston [14th Dist.] 1984, writ ref'd n.r.e.); see also John Hill Cayce, Jr., Preserving Error on Appeal: A Practical Guide for Civil Appeals in Texas, 23 ST. MARY'S L.J. 15, 72 (1991). Because we are unable to discern any specific complaint regarding any action, inaction, or ruling of the trial court, we overrule appellant's first point. ²

Appellant complains, in the next two points, that the trial court erred in entering judgment for appellee because there was no evidence, or in the alternative, insufficient evidence to support the jury's finding that appellee had total loss of the use of her hands so as to qualify for LIBs under the Act. We note at the outset that appellant misstates the applicable standards of review of the evidence. Because appellant had the burden of proof at trial, we will construe these complaints as a challenge to the legal sufficiency of the evidence and a complaint that the jury's finding is against the great weight and preponderance of the evidence. See W. Wendell Hall, Revisiting Standards of Review in Civil Cases, 24 ST. MARY'S L.J. 1045, 1135-36 & 1138-39 (1993); see also Gooch v. American Sling Co., 902 S.W.2d 181, 183-84 (Tex.App.--Fort Worth 1995, no writ).

STANDARDS OF REVIEW

As a Matter of Law

When an appellant is attacking the legal sufficiency of an adverse answer to a finding on which the party had the burden of proof, the Texas Supreme Court has stated that the appellant must, as a matter of law, overcome two hurdles. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991). First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Second, if there is no evidence to support the fact finder's answer, then the entire record must be examined to see if the contrary proposition is established as a matter of law. See id.; Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989).

Great Weight and Preponderance

In reviewing an issue asserting that an answer is "against the great weight and preponderance" of the evidence, we must consider and weigh all of the evidence, both the evidence that tends to prove the existence of a vital fact as well as evidence that tends to disprove its existence. See Ames v. Ames, 776 S.W.2d 154, 158-59 (Tex.1989), cert. denied, 494 U.S. 1080, 110 S.Ct. 1809, 108 L.Ed.2d 939 (1990); Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). So considering all of the evidence, if a finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the issue should be sustained, regardless of whether there is some evidence to support it. See Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

District Court Review of Workers' Compensation Commission

Panel Decision

The workers' compensation statutes provide that, in a review by a district court of a final decision of a commission appeals panel regarding compensability, eligibility, death benefits, or income benefits, the party appealing a decision of the appeals panel has the burden of proof by a preponderance of the evidence. See TEX. LAB.CODE ANN. § 410.303 (Vernon 1996); Texas Workers' Compensation Com'n v. Garcia, 893 S.W.2d 504, 515 (Tex.1995); Vanliner Ins. Co. v. Ward, 923 S.W.2d 29, 31 (Tex.App.--Texarkana 1996, no writ). In a review regarding issues other than compensability, eligibility, death benefits, or income benefits, the trial court reviews the...