Rush v. Ace Am. Ins. Co.

• Decision Date: 09 July 2019
• Docket Number: NO. 01-18-00402-CV,01-18-00402-CV
• Parties: OSIE RUSH, Appellant v. ACE AMERICAN INSURANCE COMPANY, Appellee
• Court: Texas Court of Appeals

OSIE RUSH, Appellant v. ACE AMERICAN INSURANCE COMPANY, Appellee

NO. 01-18-00402-CV

Court of Appeals For The First District of Texas

July 9, 2019

On Appeal from the 12th District Court Grimes County, Texas

Trial Court Case No. 33532

MEMORANDUM OPINION

Appellant, Osie Rush, challenges the trial court's judgment, rendered after a jury trial, in favor of appellee, Ace American Insurance Company ("Ace"), in Rush's suit for judicial review of the decisions of the Texas Department of Insurance, Division of Workers' Compensation ("DWC").¹ In three issues, Rush contends that the trial court erred in granting Ace a directed verdict and excluding certain evidence.

We affirm.

Background

Rush claimed that, on November 4, 2013, he sustained an electrical shock injury in the course and scope of his employment at Trinity Industries, Inc. ("Trinity"). Following a benefit review conference,² the DWC held a contested case hearing on June 25, 2015 (the "June 25, 2015 hearing")³ to determine (1) whether Rush's compensable injury⁴ sustained on November 4, 2013 extended to and included "a cervical strain, [a] right shoulder strain, disc protrusions at C3 through C6, tendinosis and a partial thickness tear of the right shoulder[,] and memory loss"and (2) whether Rush sustained disability⁵ resulting from his November 4, 2013 injury, and if so, for what period of time. The hearing officer found:

1. Rush's "cervical strain, right shoulder strain, disc protrusions at C3 through C6, tendinosis and . . . partial thickness tear of the right shoulder[,] and memory loss were neither caused nor aggravated and did not raise out of or naturally flow from [his] compensable injury of November 4, 2013[]";

2. "The preponderance of the evidence [was] contrary to Dr. Carter's opinion on extent of injury[]"; and

3. Rush "did not establish that he was unable to obtain and retain employment at wages equivalent to his pre-injury wage as a result of [his] compensable injury of November 4, 2013 during the period beginning November 5, 2013 and continuing through the date of the June 25, 2015 hearing."

The hearing officer then concluded that Rush's "compensable injury of November 4, 2013 d[id] not extend to and include a cervical strain, [a right shoulder strain], disc protrusions at C3 through C6, tendinosis and a partial thickness tear of the right shoulder[,] or memory loss" and Rush did not sustain "disability resulting from the November 4, 2013 compensable injury during the period [of time] beginning [on] November 5, 2013 and continuing through the date of the June 25, 2015 hearing."⁶

Rush appealed the hearing officer's decision to an administrative appeals panel.⁷ On September 28, 2015, the appeals panel upheld the hearing officer's decision.

Following a second benefit review conference,⁸ the DWC held another contested case hearing on April 13, 2016 (the "April 13, 2016 hearing")⁹ to determine (1) whether Rush's "compensable injury of November 4, 2013 extend[ed] to and include[d] bilateral carpal tunnel syndrome"; (2) whether Rush had "reached maximum medical improvement,"¹⁰ and if so, when; (3) Rush's impairment rating;¹¹ and (4) whether Rush sustained disability resulting from the November 4, 2013 compensable injury during the period of time beginning on June 26, 2015 and continuing through the date of the April 13, 2016 hearing. The hearing officer found:

1. Rush's "[b]ilateral carpal tunnel syndrome was not caused by, and did not naturally flow from [his] November 4, 2013 compensable injury[]";2. "Dr. Bajwa certified that [Rush] reached maximum medical improvement on April 9, 2014 with a 0% impairment rating; his certification [was] not contrary to the preponderance of the other medical evidence[]"; and

3. Rush's "November 4, 2013 compensable injury was not a cause of [his] inability to obtain and retain employment at wages equivalent to his pre-injury wage during the period from June 26, 2015 through the date of the [April 13, 2016] hearing."

The hearing officer thus concluded that Rush's "compensable injury of November 4, 2013 d[id] not extend to and include bilateral carpal tunnel syndrome"; Rush reached maximum medical improvement on April 9, 2014; Rush's "impairment rating [was] 0%"; and Rush did not sustain disability resulting from the November 4, 2013 compensable injury during the period of time beginning on June 26, 2015 and continuing through the date of the April 16, 2016 hearing.¹² Rush appealed the hearing officer's decision to an administrative appeals panel.¹³ On July 15, 2016, the appeals panel upheld the hearing officer's decision.

Rush then appealed the administrative appeals panels' decisions to the trial court.¹⁴ In his first amended petition, Rush alleged that on November 4, 2013, he worked as "a burner" for Trinity at its facility in Navasota, Texas. According toRush, as part of his job, he "operated a computerized machine which fabricated large metal objects" and frequently "use[d] a portable electrical powered magnet to move [the] large metal objects." On November 4, 2013, while making a large metal plate, Rush "needed to move the portable electrical [powered] magnet." He "attempted to cut off the power to the magnet," but, unknown to him, the magnet remained powered. "At some point, [Rush] attempted with both hands to unplug the electrical [powered] magnet," and as he grasped the magnet's plug, he "received a violent electrical shock of 4[4]0 volts." Rush was "stuck to the strong electrical current for at least [ten] seconds," and upon freeing himself, he saw "soot on the tips of his fingers and a burn on his left hand and left arm." Rush then reported his injury to his supervisor and received treatment at a hospital. Upon release from the hospital on the same day of his injury, Rush returned to work at Trinity's facility. According to Rush, the electrical shock injury that he sustained on November 4, 2013 affected his entire body; it injured his left hand, left arm, neck, shoulders, and head and caused memory loss.

Rush further alleged that on June 2, 2014, his treating doctor¹⁵ placed him on "light duty status," but did not restrict the number of hours that Rush could work at Trinity's facility. However, on June 23, 2014, Trinity "began sometimes limiting[Rush]'s light duty hours" to forty hours per week, and Rush began receiving partial temporary income benefits until August 20, 2014. On August 21, 2014, Ace suspended Rush's partial temporary income benefits "based on [its] claim from a peer review report that [Rush]'s compensable injury was limited to an 'electrical shock injury with subsequent redness to [his] left finger' and that [Rush] was not disabled in any respect." Rush continued working his "limit[ed] . . . light duty hours" at Trinity's facility until January 7, 2015. On January 8, 2015, Trinity "effectively laid [Rush] off work and terminated [his] employment." However, Rush "remained [on] either a light duty or total off work status under the care of his treating doctor for the remainder of 2015" and through April 13, 2016.

According to Rush, at some point following his November 4, 2013 electrical shock injury, he requested the appointment of a designated doctor "to address the issues of disability and extent of injury."¹⁶ On January 2, 2015, Ace reinstated Rush's temporary income benefits after the designated doctor "found that [Rush]'s compensable injury extended to and included [a] cervical strain, [a] right shoulder st[r]ain, cervical dis[c] protrusions at C2-3, C4-5, and C5-6, right shoulder tendinosis, [a] partial thickness bursal surface tear of the right shoulder, and memoryloss," that Rush had been disabled since August 21, 2014, and that Rush's "current work status was light duty with restrictions."

Subsequently, Ace sought a post-designated doctor required medical examination report, wherein the doctor opined that Rush's compensable injury was limited to the "electrical shock injury and subsequent redness to [his] left fifth finger" and that Rush had sustained "no disability at any time." (Internal quotations omitted.) The parties then attended a benefit review conference on April 27, 2015 and the June 25, 2015 hearing. Thus, Rush alleged that he had exhausted his administrative remedies and was aggrieved by the administrative appeals panel's confirmation of the June 25, 2015 hearing officer's determination. And Rush sought a judgment setting aside the decision of the appeals panel and "adopting alternate findings," including that Rush's compensable injury of November 4, 2013 extended to and included a cervical strain, a right shoulder strain, disc protrusions at C3 through C6, tendinosis and a partial thickness tear of the right shoulder, and memory loss, and Rush had sustained "disability resulting from [his] November 4, 2013 compensable injury during the period [of time] beginning [on] June 23, 2014 and continuing through" the June 25, 2015 hearing.

Further, according to Rush, the parties attended a second benefit review conference on February 18, 2016 and the April 13, 2016 hearing. Thus, Rush alleged that he had exhausted his administrative remedies and was aggrieved by theadministrative appeals panel's confirmation of the April 13, 2016 hearing officer's determination. And he sought a judgment setting aside the decision of the appeals panel and "adopting alternate findings," including that his compensable injury of November 4, 2013 extended to and included bilateral carpal tunnel syndrome, Rush had not reached maximum medical improvement as of the April 13, 2016 hearing, and Rush had sustained "disability from [his] November 4, 2013 compensable injury during the period [of time] beginning [on] June 26, 2015 [and] continuing through" the April 13, 2013 hearing.

At trial, Rush testified that on November 4, 2013, while working at the Trinity facility as "[a] burner" cutting steel, he received an electrical shock from a portable electrical powered magnet. Rush explained that on that day he needed a...