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

Opinion issued June 28, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00659-CV

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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.