Continental Casualty Company v. James E. Baker

Opinion issued August 25, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00881-CV

———————————

Continental Casualty Company , Appellant

V.

James E.

Baker , Appellee

On Appeal from the 80th District Court

Harris County, Texas

Trial Court Case No. 2007-10493

OPINION ON REHEARING

Appellee

James E. Baker filed a motion for en banc reconsideration of our May 5, 2011

opinion. We treat the motion for en banc

reconsideration as a motion for rehearing, grant rehearing, withdraw our May 5,

2011 opinion and judgment, and issue this opinion and judgment in their

place. The disposition of the case

remains unchanged.

In this workers’ compensation case,

appellant, Continental Casualty Company (“Continental”), brought suit for

judicial review of the decision of the Texas Department of Insurance, Division

of Workers’ Compensation (“Division”) in favor of Baker. The jury found that Baker’s compensable

injury extended to a left knee meniscus tear identified on an MRI over five

years after his work-related accident.

The trial court entered judgment in favor of Baker and awarded

$134,694.80 in trial-level attorney’s fees and expenses and $33,500 in

conditional appellate attorney’s fees.

In six issues, Continental contends that (1) the trial court erred

in giving a charge that included an instruction on additional injuries, an

instruction on aggravation injuries, and an incorrect instruction on producing

cause; (2) the trial court erroneously allowed Baker to present a PowerPoint

presentation displaying excerpts of evidence during opening statements; (3) the

trial court improperly excluded a medical report made to the Division as

hearsay; (4) the trial court improperly allowed Baker’s treating doctor to

testify as an expert regarding causation of the 2005 meniscus tear because he

was not qualified to render such an opinion and his opinions were not

scientifically reliable; (5) factually insufficient evidence supported the

jury’s verdict; and (6) the trial court erroneously determined the amount of

Baker’s reasonable and necessary attorney’s fees, denying Continental its right

to have a jury determine this issue.

We

reverse the judgment and remand the case for further proceedings.

Background

On

July 12, 2000, James Baker was injured during the course of his employment when

he stepped off a ladder, lost his balance, and twisted his left knee. Baker sought workers’ compensation benefits

from Continental, his employer’s insurance carrier. Continental initially agreed that Baker’s

injury was compensable and accepted the claim; however, it now disputes the

extent of Baker’s injury. Specifically,

Continental disputes whether the compensable injury includes a tear of the

medial meniscus in Baker’s left knee that was identified in 2005.

On

July 26, 2000, Baker underwent a magnetic resonance imaging scan (“MRI”) on his

left knee. The radiologist interpreting

the MRI results preliminarily diagnosed Baker with a “degenerative tear of the

posterior horn of the medial meniscus which reaches both the inferior and

superior articular surfaces.” Shortly

after this MRI, Baker was examined by Dr. William Woods, an orthopedic surgeon

who specializes in knee surgery. Dr.

Woods noted that Baker had pre-existing arthritis, a positive McMurray’s test,

which indicated an injury to the inside part of his knee, swelling, and

“numerous loose bodies” of cartilage in the knee. Before performing arthroscopic surgery on

Baker’s left knee, Dr. Woods tentatively diagnosed Baker with a medial meniscus

tear and articular injury. He had

observed a “large amount of degenerative change in the meniscus,” which he

stated is sometimes interpreted by radiologists as a tear in the meniscus. Dr. Woods opined that the only way to confirm

a meniscus tear, as opposed to a degenerative change in the meniscus, is to

examine and probe the meniscus during arthroscopic surgery.

Dr. Woods performed arthroscopic

surgery on Baker in August 2000, but found no visible tear in the

meniscus. Therefore, he did not operate

on a meniscus tear or perform a partial menisectomy. Instead, he performed arthroscopic

debridement of the patella, arthroscopic removal of loose bodies, and extensive

arthroscopic partial synovectomy, or surgical removal of a synovial membrane.

Baker returned to work in October

2000, and, in November 2000, Dr. Woods believed that Baker had reached maximum

medical improvement. Specifically, Dr.

Woods believed that Baker would never have a normally functioning knee and that

he would continue to have knee problems due to his pre-existing arthritis.

In

March 2001, Baker, who was experiencing continued pain in his left knee,

visited a chiropractor, Dr. David Durkop, for further treatment and physical therapy. When the pain persisted despite

rehabilitation exercises, Dr. Durkop referred Baker to Dr. Lubor Jarolimek, an

orthopedic surgeon. In light of Baker’s

continued pain, Dr. Jarolimek ordered a second MRI on Baker’s left knee in May

2001. This MRI reflected that: “The anterior horn of the lateral meniscus

has grade II degenerative changes. There

are also prominent grade II degenerative changes in the posterior horn of the

lateral meniscus. The anterior horn of

the medial meniscus shows Grade II degenerative changes. Prominent Grade II changes in the posterior

horn of the medial meniscus.” The

radiologist interpreting this MRI noted degenerative changes and thinning in

both the anterior and posterior horns of the lateral meniscus, but stated that

“[n]o grade III or IV tears [are] demonstrated.”

Dr.

Jarolimek continued to treat Baker over the next five years. Throughout this time period, Baker

continuously displayed pain and tenderness in his left knee. Dr. Jarolimek ordered a third MRI for Baker

in December 2005, five years after Baker’s injury, first MRI, and surgery, and

four and one-half years after Baker’s second MRI. This MRI demonstrated a “complex tear of the

body and posterior horn of the medial meniscus.

No definite lateral meniscal tear is appreciated.”

Continental

disputed Baker’s assertion that his July 2000 workplace accident caused the

meniscus tear seen on the December 2005 MRI, and it denied further workers’

compensation benefits. After Continental

and Baker were unable to resolve the dispute at a Benefits Review Conference, a

contested case hearing was held before the Division on October 10, 2006. The sole issue at the hearing was whether

“the compensable injury extend[ed] to include the left knee meniscus tear

identified on the MRI of December 5, 2005.”

The hearing officer concluded that the compensable injury extended to

include the meniscus tear identified on the December 2005 MRI.

After

the Appeals Panel declined to reverse the decision, Continental brought this

suit for judicial review of the hearing officer’s decision. Baker filed a general denial and asserted a

counterclaim to recover statutory attorney’s fees pursuant to Texas Labor Code

section 408.221(c).

Before

trial, Continental sought to exclude the expert medical testimony of Dr.

Jarolimek on the grounds that (1) he lacked the necessary qualifications to

render an expert opinion on the cause of the 2005 meniscus tear, (2) his

opinion that Baker had had a meniscus tear since July 2000 that developed into

the tear shown on the December 2005 MRI was not based on an accurate and

reliable foundation, and (3) his alternate opinion, that Baker had an

“intrasubstance tear” in the left knee meniscus that developed into a

full-thickness tear, was based purely on speculation and thus was not

reliable. The trial court denied this

motion and allowed Dr. Jarolimek’s testimony.

During

Baker’s opening statement, Baker’s counsel displayed a PowerPoint presentation

that included excerpts from the July 2000 and December 2005 MRI reports, with

the dates of the reports and the radiologist’s interpretations highlighted and

emphasized in boxes on the slides. The

presentation also contained an excerpt of the hearing officer’s decision, with

its ultimate conclusion highlighted in a box.

Baker also included excerpts from the video deposition testimony of Nina

Rose, Continental’s corporate representative, Dr. Woods, Dr. Jarolimek, and Dr.

Marvin Van Hal, Continental’s expert witness, in the presentation.

All

of the doctors testified at trial via video deposition. Dr. Woods testified that there is a

subjective element to interpreting MRI results, as one radiologist might

interpret a meniscus as having “degenerative thinning” and another radiologist

might interpret the results as a “degenerative tear” in the meniscus. Dr. Woods stated that actually examining the

meniscus during surgery was the “only way you can really tell if it’s a tear

versus degenerative change.” When asked

about the three different ways in which Baker’s meniscus was described in the

MRI reports, Dr. Woods opined that they were all different ways of “saying the

same thing.” Dr. Woods testified that,

when he performed arthroscopic surgery on Baker’s left knee in August 2000, he

did not observe any tears in the meniscus.

Dr. Woods did not believe that a person could have a meniscus “tear”

that was not visible — he would

instead classify that situation as a “degenerative change,” or damage, to the

body of the meniscus. In Dr. Woods’

opinion, the damage caused by Baker’s fall included loose pieces of cartilage

and “visible damage to the bone surface,” which he interpreted as aggravation

of Baker’s pre-existing arthritis. Dr.

Woods agreed that, because he had not seen a meniscus tear when he performed

surgery, there “couldn’t have been a worsening of that tear over time up until

2005.”

Continental

retained Dr. Marvin Van Hal, an orthopedic surgeon, as its medical expert. Dr. Van Hal opined that the visual

examination of the meniscus by a surgeon is more accurate than MRI reports due

to the potential for false findings on the MRI.

Dr. Van Hal testified that based on the subsequent arthroscopic surgery

and the pictures taken during that surgery that demonstrated no meniscus tear, he

believed that the radiologist interpreting the July 2000 MRI made an inaccurate

finding that a meniscus tear existed. According

to Dr. Van Hal, because “there was no meniscal tear that was there to start

with,” a tear could not propagate and recur.

Dr. Van Hal opined that the meniscus tear identified in December 2005

“was due to something different than the on-the-job injury of July 12, 2000.”

On

cross-examination, Dr. Van Hal admitted that he was unable to get access to the

MRI films and that he did not review the pictures taken during the arthroscopic

surgery, although he was able to compare the reports from the three MRIs and

compare the MRI reports to Dr. Woods’s post-operative report. Dr. Van Hal disagreed that the radiologist

actually found a meniscus tear in 2000, and instead stated that the radiologist

“interpreted it as a meniscus tear.” When

asked what mechanism could cause the 2005 meniscus tear, other than the

workplace accident, Dr. Van Hal responded that everyday work and life, as well

as physical therapy for the compensable injury, could possibly have caused the

tear. Dr. Van Hal stated that because it

is unclear what specific exercises Baker did during physical therapy, he could

not rule out the therapy as a cause of the tear.

Baker

called Dr. Jarolimek, his treating doctor for over five years, as an expert

witness. Dr. Jarolimek testified that,

in his opinion, Baker’s current meniscus tear was “directly related to his

work-related injury of 2000.” Dr.

Jarolimek stated that, at the time of the accident, Baker sustained an injury

to his meniscus, and after Dr. Woods performed a partial menisectomy in August

2000, the meniscus tear that existed at that time “continue[d] to propagate”

and developed into the tear identified on the 2005 MRI. According to Dr. Jarolimek, the fact that

Baker continued to have pain and tenderness in his knee well after he had

arthroscopic surgery suggests that “there still is some type of a problem, a

mechanical problem within the knee, persistent pain or perhaps a recurrent

meniscal tear.” He opined that the MRI

reports were consistent with the Division’s ruling that the 2005 meniscus tear

was related to the workplace accident because all of Baker’s symptoms and test

results over the years were “consistent with meniscal-type pathology.”

Dr. Jarolimek further testified

that there are different degrees of meniscus tears, including intrasubstance

tears — a tear within the body of

the meniscus — and a tear “do[es] not

necessarily have to be through and through” to be considered a tear. Baker’s counsel instructed Dr. Jarolimek to

assume that Dr. Woods had not performed a menisectomy in August 2000 and then

asked whether that would change Dr. Jarolimek’s opinion regarding the cause of

the 2005 meniscus tear. Dr. Jarolimek

responded that his opinion would not change because “a meniscal tear could be

an intrasubstance tear and may propagate and become a full thickness tear

later.” Dr. Jarolimek testified that,

although the 2001 MRI does not show a “Grade III or IV tear” in the meniscus,

it does show pathology in the meniscus and this result, coupled with the 2000

and 2005 MRIs showing a tear in the same place in the meniscus, indicates that

the torn meniscus has “always been there” since the accident and has not been

addressed.

On

cross-examination, Dr. Jarolimek admitted that he had taken the board

certification exam in orthopedic surgery twice, but had not passed it. He also admitted that he had not reviewed the

report or the films from the July 2000 MRI.

Dr. Jarolimek stated that his understanding from reading the operative

report following Baker’s arthroscopic surgery was that Dr. Woods performed a

menisectomy. Dr. Jarolimek further

agreed with Continental’s counsel that if a radiologist interpreted an MRI as

showing a meniscus tear, but he did not see a tear while performing

arthroscopic surgery, he would “believe [his] own eyes” over the MRI.

The

jury charge included only one question, Question No. 1: “Do you find that the Plaintiff, Continental,

established by a preponderance of the evidence that the compensable injury of

July 12, 2000 does not extend to or include the left knee meniscus tear

identified on the MRI of December 5, 2005?”

“Compensable injury” was defined as “an injury that arises out of and in

the course and scope of employment for which compensation is payable. The definition of compensable injury includes

extension injuries.” “Extension

Injuries” were defined as “injuries occurring in the probable sequence of

events and arising from the actual compensable injury,” and the jury was

informed, “[a]dditional injuries that result from treatment instituted to

relieve or cure the compensable injury are compensable extension

injuries.” “Injury” was defined as

“damage or harm to the physical structure of the body and a disease or

infection naturally resulting from the damage or harm.” “Injury” was also separately defined as “also

includ[ing] the excitement, acceleration, or aggravation of any injury,

disease, infirmity or condition, previously or subsequently existing, by reason

of such damage or harm.”

The

jury was instructed that “the Appeals Panel of the Texas Department of

Insurance: Division of Workers’ Compensation determined that James Baker’s

compensable injury of July 12, 2000 extends to and includes the left knee

meniscus tear identified on the MRI of December 5, 2005.” It was further instructed that “the burden of

proof is on Continental to prove by a preponderance of evidence that James

Baker’s July 12, 2000 injury was not a producing cause of the meniscus tear

identified on the MRI of December 5, 2005.”

Finally, it was instructed,

Producing cause is an

efficient, exciting, or contributing cause that, in the natural sequence,

produces the injury, disability or illness in question. A workplace accident or disease is considered

a producing cause even if it is not a substantial factor in bringing about the

injury, disability, or illness. In a

workers’ compensation case, there may be more than one producing cause of an

injury.

At the charge conference,

Continental objected to the inclusion of extension injuries in the definition

of compensable injury under Question No. 1.

It proposed that the separate

definition of extension injuries be deleted from the charge and that the

reference to extension injuries be deleted from the definition of compensable

injury. Continental also objected to

“the last phrase [in the definition] about the additional injuries that result

from the treatment instituted to relieve the compensable injury.” It argued that the definition was duplicative

of the burden of proof set out in Question No. 1, which required that

Continental prove “by a preponderance of the evidence that the compensable

injury of July 12, 2000 did not extend to or include the left knee meniscus

tear identified on the MRI of December 5, 2005.” Baker responded, “[T]his is a

proper statement of the law.” The court

overruled Continental’s objection.

Continental also objected to the

inclusion of four definitions of “injury” in the definitions below Question No.

1 and argued that the correct definition was “danger, harm to the physical

structure of the body, a disease or infection naturally resulting from a damage

or harm.” It objected that “it’s

incorrect and prejudicial to also say that an injury also includes excitement,

acceleration or aggravation of any injury, disease or infirmity, or condition

previously or subsequently existing for reasons as danger or harm.” Continental sought a substitute definition,

which would have stated, “The injury also includes the aggravation of any

disease, infirmity or condition previously existing by reason of such damage or

harm.” The court overruled the

objection.

Finally, Continental objected to

the instruction and definition on producing cause in the general instructions

on the basis that it introduced a producing cause definition separate from the

definition of injury and was confusing. It

stated, “The standard is whether there’s a direct and natural progression or

cause, or whether a condition is the direct and natural result of a compensable

injury. The burden is by preponderance

of the evidence.” It contended that

including a separate instruction on producing cause was “redundant and

prejudicial.” The court overruled Continental’s

objection.

The jury answered “No” to Question

No. 1.

Baker did not request, and the

charge did not include, a question asking the jury to determine the amount of

his reasonable and necessary attorney’s fees.

However, after the jury found in favor of Baker, Baker moved for entry

of judgment and for $149,047.16 in trial attorney’s fees and expenses, $1,600

for post-verdict fees and expenses, and $64,000 in conditional appellate fees

to be awarded by the trial court. Continental

objected to Baker’s recovery of attorney’s fees, contending that he waived such

recovery by failing either to request a jury question on reasonable and

necessary fees or to object to the omission of such a question. Continental also objected to the trial

court’s determining the amount of attorney’s fees solely by written evidence,

contending that it was entitled to either a jury determination or, at least, a

bench trial on the issue of reasonable and necessary fees. The trial court overruled both objections,

and after multiple hearings and supplemental motions, ultimately awarded Baker

$134,694.80 for trial attorney’s fees and expenses, $6,071.25 for post-trial

fees, and $33,500 in conditional appellate fees.

Jury Charge Errors

In

its first issue, Continental contends that the trial court erred in

(1) including an instruction that Baker’s compensable injury encompassed

“extension injuries” resulting from treatment of the original injury because

the issue of extension injuries was not raised by the pleadings or the evidence

and improperly increased its burden of proof; (2) including an instruction that

compensable injury includes the aggravation of a pre- or subsequently-existing

injury because the issue was not raised by the pleadings or the evidence and

including “subsequently existing” was not a proper statement of the law; and

(3) including an instruction on producing cause because producing cause is

irrelevant to disputes over the extent of an injury, producing cause was not

raised by the pleadings, and the trial court’s definition of producing cause

was legally incorrect.

A.

Standard of Review

The trial court “shall submit such

instructions and definitions as shall be proper to enable the jury to render a

verdict.” Tex. R. Civ. P. 277.

An instruction is proper if it (1) assists the jury, (2) accurately

states the law, and (3) finds support in the pleadings and evidence. Transcon.

Ins. Co. v. Crump , 330 S.W.3d 211, 221 (Tex. 2010) (quoting Union Pac. R.R. Co. v. Williams , 85

S.W.3d 162, 166 (Tex. 2002)). Generally,

we review the trial court’s decisions on how to charge the jury for an abuse of

discretion; however, when the appellant challenges a definition as legally

incorrect, we review the definition de novo.

Id. ; St. Joseph Hosp. v. Wolff , 94 S.W.3d 513, 525 (Tex. 2002). If the charge is legally correct, the trial

court has broad discretion regarding the submission of questions, definitions,

and instructions. Hyundai Motor Co. v. Rodriguez , 995 S.W.2d 661, 664 (Tex.

1999). We therefore review the trial

court’s legally correct definitions and instructions for an abuse of

discretion. Tex. Workers’ Comp. Ins. Fund v. Mandlbauer , 34 S.W.3d 909, 912

(Tex. 2000).

We will not reverse a judgment for

charge error “unless the error was harmful because it probably caused the

rendition of an improper verdict. . . .” Crump ,

330 S.W.3d at 225 (quoting Columbia Rio

Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 856 (Tex. 2009)). Charge error is “generally considered harmful

if it relates to a contested, critical issue.”

Id. (quoting Hawley , 284 S.W.3d at 856 ). When determining whether an erroneous

instruction or definition probably caused an improper judgment, we examine the

entire record. Id. (quoting Quantum Chem.

Corp. v. Toennies , 47 S.W.3d 473, 480 (Tex. 2001)).

To preserve a charge error

complaint for appellate review, a party must “point out distinctly the

objectionable matter and the grounds of the objection.” Tex.

R. Civ. P. 274. “Any complaint as

to a question, definition, or instruction, on account of any defect, omission,

or fault in pleading, is waived unless specifically included in the

objections.” Id. An objection does not

meet Rule 274’s requirements unless “the defect relied upon by the objecting

party and the grounds of the objection are stated specifically enough to

support the conclusion that [the] trial court was fully cognizant of the ground

of complaint and deliberately chose to overrule it.” Carousel’s

Creamery, L.L.C. v. Marble Slab Creamery, Inc. , 134 S.W.3d 385, 404 (Tex.

App.—Houston [1st Dist.] 2004, pet. dism’d).

To preserve charge error, the appellant must “clearly designate the

alleged error and specifically explain the basis of its complaint in its

objection to the charge.” Id. at 404–05; C.M. Asfahl Agency v. Tensor, Inc. , 135 S.W.3d 768, 793 (Tex.

App.—Houston [1st Dist.] 2004, no pet.) (“To be sufficiently specific, the

party’s objection must identify the claimed error and explain the basis of the

party’s complaint.”). We determine

whether a party has preserved a complaint of charge error by “inquiring whether

the party made the trial court aware of the complaint, timely and plainly, and

obtained a ruling.” C.M. Asfahl Agency , 135 S.W.3d at 793 (citing State Dep’t of Highways & Pub. Transp. v. Payne , 838 S.W.2d

235, 241 (Tex. 1992)). Objections to the

charge and requests for instructions must comport with the arguments made on

appeal. Wackenhut Corrections Corp. v. De La Rosa , 305 S.W.3d 594, 616

(Tex. App.—Corpus Christi 2009, no pet.).

B.

Instruction on Producing Cause

Continental contends that the trial

court erred in including an instruction on producing cause because (1)

producing cause is inapplicable in disputes over the extent of a compensable

injury, (2) a producing cause theory was not raised by the pleadings, and (3) the

definition of producing cause did not contain a “substantial cause” or

“but-for” element and was therefore legally incorrect. Baker responds that Continental’s issue on

producing cause was not preserved.

The trial court included the

following instruction and definition relating to producing cause in the charge:

You are instructed that the burden of proof

is on Continental to prove by a preponderance of evidence that James Baker’s

July 12, 2000 injury was not a producing cause of the meniscus tear identified

on the MRI of December 5, 2005.

Producing

cause is an efficient, exciting, or contributing cause that, in the natural

sequence, produces the injury, disability or illness in question. A workplace accident or disease is considered

a producing cause even if it is not a substantial factor in bringing about the

injury disability or illness. In a

workers’ compensation case, there may be more than one producing cause of an

injury.

(Emphasis added.)

The charge also included the following definitions related to “injury”:

“Compensable injury” means

an injury that arises out of and in the course and scope of employment for

which compensation is payable. The

definition of compensable injury includes extension injuries.

“Extension Injuries” means injuries occurring

in the probable sequence of events and arising from the actual compensable

injury. Additional injuries that result

from treatment instituted to relieve or cure the compensable injury are

compensable extension injuries.

“Injury” means

damage or harm to the physical structure of the body and a disease or infection

naturally resulting from the damage or harm.

“Injury” also includes the excitement,

acceleration, or aggravation of any injury, disease, infirmity or condition,

previously or subsequently existing, by reason of such damage or harm.

(Emphasis

added.)

At the charge conference,

Continental made the following objection to the producing-cause instruction and

definition:

Continental: And the objection, Your Honor, is to

the inclusion of a definition of producing cause. We believe, to be specific, that including a

producing cause definition is confusing.

The standard is whether there’s a direct and natural progression or cause,

or whether a condition is the direct and natural result of a compensable injury. The burden is by a preponderance of the

evidence. Our objection is inclusion of

a producing cause definition separate from the definition of injury. And since I’m not proposing an alternate

instruction, I’m not giving you something written to reject, but I’d like the

ruling on the record, please.

The

Court: You say your objection is because

it’s separate from the definition of injury?

Continental: No, because I believe that is inclusive

within the definition of injury and inclusive within other definitions in the

charge, such as the extension definition and the aggravation definition. I think it’s redundant and prejudicial,

that’s all.

Continental thus objected to the

instruction and definition on producing cause on the basis that it was confusing

because “[t]he standard is whether there’s a direct and natural progression or

cause, or whether a condition is the direct and natural result of a compensable

injury,” and that particular standard was already included in the definition of

injury in the charge, so that the additional instruction was redundant and

prejudicial. It contended, “The correct

definition [of injury] is danger, harm to the physical structure of the body, a

disease or infection naturally resulting from a damage or harm.”

We construe Continental’s objection

to be that the instruction was improper because it did not assist the jury and it

inaccurately stated the law by giving an instruction on producing cause that

conflicted with the definition of a compensable injury as one “naturally

resulting” from a harm. See Crump , 330 S.W.3d at 221 . Baker

contends, however, that because Continental did not complain at trial regarding

the lack of a substantial factor or but-for component in the producing cause

definition and stated that it was not proposing an alternative definition,

Continental failed to preserve error regarding this definition. See

Tex. R. Civ. P. 278 (“Failure to

submit a definition or instruction shall not be deemed a ground for reversal of

the judgment unless a substantially correct definition or instruction has been

requested in writing and tendered by the party complaining of the judgment.”).

First, because Continental’s

objection to the producing cause definition was that it should not have been

included at all because it confused an otherwise correct instruction, we

conclude that Continental satisfied its burden of proffering an alternative

charge — one that omitted the

defective definition of producing cause.

Therefore, we hold that Continental did not fail to preserve error

merely by failing to proffer an alternative definition of producing cause. We therefore address whether the definition

of producing cause included in the charge was legally incorrect.

Historically, in workers’

compensation cases, “producing cause” did not require the workplace injury to

be a substantial factor in bringing about the employee’s disability. See,

e.g. , Flores v. Emps. Ret. Sys. of

Tex. , 74 S.W.3d 532, 549 (Tex. App.—Austin 2002, pet. denied). While this case was pending on appeal,

however, the Texas Supreme Court, in Crump ,

concluded that “[t]he producing cause inquiry in workers’ compensation cases is

conceptually no different from the cause in fact inquiry in negligence cases

and the producing cause inquiry in other substantive contexts.” 330 S.W.3d at 223 ; see also Ford Motor Co. v. Ledesma , 242 S.W.3d 32, 46 (Tex. 2007)

(holding, in products liability context, that producing cause definition should

include “substantial factor” and “but-for” component). The supreme court held that “producing cause

in workers’ compensation cases is defined as a substantial factor in bringing

about an injury or death, and without which the injury or death would not have

occurred.” Crump , 330 S.W.3d at 223 .

The court held that the omission of “but-for” language in the charge

rendered the definition of producing cause submitted to the jury incomplete and

legally incorrect. Id. at 224–25. The court

further observed that, because the parties’ respective medical experts

disagreed regarding whether Crump’s workplace accident caused his death, “[t]he

but-for aspect of causation was squarely at issue in [the] case” and the charge

error “‘relate[d] to a contested, critical issue’ — indeed, the sole issue — that of

causation.” Id. at 226 . Because

including a “but-for” component in the producing cause definition “would have

assisted the jury in resolving the disputed expert testimony at the crux of the

case and, more importantly, would have stated the law accurately,” the court

held that the incorrect definition probably resulted in an improper judgment

and, therefore, constituted reversible error.

Id.

Here, the definition of “producing

cause” in the charge, which Continental sought to have removed, expressly

stated, “A workplace accident or disease is considered a producing cause even

if it is not a substantial factor in

bringing about the injury, disability, or illness” in question in the case. (Emphasis added.) This is a legally incorrect definition of

“producing cause” under Crump . See id.

Both parties acknowledge that, at

the time of the trial, the Texas Supreme Court had not yet issued its opinion

in Crump , and therefore the governing

law was the Fourteenth Court of Appeals’ decision in Crump , which specifically approved of a definition of producing

cause that was similar to the one the trial court submitted here. [1] See Transcon.

Ins. Co. v. Crump , 274 S.W.3d 86, 100 (Tex. App.—Houston [14th Dist.]

2008), rev’d , 330 S.W.3d 211 (Tex.

2010); see also INA of Tex. v. Howeth ,

755 S.W.2d 534, 537 (Tex. App.—Houston [1st Dist.] 1988, no writ) (“It is

enough if [the injury] is ‘a’ cause, even though there were other

causes.”). Generally, however, a supreme

court decision operates retroactively unless the court exercises its discretion

to provide otherwise. Bowen v. Aetna Cas. & Sur. Co. , 837

S.W.2d 99, 100 (Tex. 1992) (per curiam).

Thus, when the applicable law changes during the pendency of an appeal,

we must render our decision in light of the change in the law. Blair

v. Fletcher , 849 S.W.2d 344, 345 (Tex. 1993) (per curiam).

Considering that the parties lacked

the benefit of the supreme court’s decision in Crump at the time of trial, we hold that Continental’s objection to

the definition of producing cause adequately preserved error. See

Lubbock Cnty. v. Strube , 953 S.W.2d 847, 858 (Tex. App.—Austin 1997, pet.

denied) (holding general objection to submission of question asking jury to

determine attorney’s fees as percentage of recovery sufficient to preserve

error when Arthur Andersen v. Perry Equipment

Corp. , prohibiting juries from determining attorney’s fees by awarding

percentage of recovery, was decided during pendency of appeal).

Continental bore the burden of

proving, by a preponderance of the evidence, that Baker’s workplace accident in

2000 was not a producing cause of the left knee meniscus tear observed in

2005. See Tex. Labor Code Ann. § 410.303

(Vernon 2006); Morales v. Liberty Mut.

Ins. Co. , 241 S.W.3d 514, 516 (Tex. 2007) (“[T]he appealing party bears the

burden of proof by a preponderance of the evidence.”). It is undisputed that the definition of

producing cause submitted to the jury did not include the “but-for” or

“substantial factor” component set out as the standard in Crump . See 330 S.W.3d at 223–25. To

the contrary, it correctly instructed the jury that Continental’s burden was

“to prove by a preponderance of evidence that James Baker’s July 12, 2000

injury was not a producing cause of the meniscus tear identified on the MRI of

December 5, 2005.” But, it then erroneously

instructed the jury that “[a] workplace accident or disease is considered a

producing cause even if it is not a

substantial factor in bringing about the injury, disability or

illness.” (Emphasis added.) The Crump

opinion makes it clear that these two standards of proof are in conflict and

that “producing cause in workers’ compensation cases is defined as a

substantial factor in bringing about an injury or death, and without which the

injury or death would not have occurred.”

330 S.W.3d at 223 . Thus, the

instruction on producing cause was erroneous and confusing to the jury rather

than of assistance to it, and it was, therefore, improper. See id.

at 221 .

As in Crump , the “but-for” or “substantial factor” aspect of causation

was squarely at issue, and the charge error related to the sole issue in the

case, that of causation. See id. at 226. Also as in Crump , the evidence in this case included conflicting expert

testimony regarding whether the accident caused the meniscus tear, which was

the sole question before the jury. See Hawley , 284 S.W.3d at 856 (holding

that charge error is “generally considered harmful if it relates to a

contested, critical issue”); Toennies ,

47 S.W.3d at 480 (“An improper instruction is especially likely to cause an

unfair trial when the trial is contested and the evidence sharply conflicting,

as it was in the present case [when the trial court gave an incorrect causation

standard].”). Because the erroneous and

confusing instruction related to a contested critical issue, it was harmful and

probably caused the rendition of an improper verdict. See id .

at 226.

Accordingly, we hold that inclusion

of the incorrect producing cause definition in the charge constituted

reversible error.

We

sustain Continental’s first issue.

Because

our disposition of this issue is dispositive of the merits of this appeal, we

do not address Continental’s two additional complaints regarding the jury

charge, nor do we reach Continental’s second, third, fourth, fifth, and sixth

issues.

Conclusion

We

reverse the judgment and remand the case to the trial court for further

proceedings consistent with this opinion.

All pending motions are denied as moot.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Sharp, and Massengale.

Justice Sharp, concurring without opinion.

[1]

The trial court submitted the

following definition of producing cause in Crump : “‘Producing cause’ means an efficient,

exciting, or contributing cause that, in a natural sequence, produces the death

in question. There may be more than one

producing cause.” Transcon. Ins. Co. v. Crump , 274 S.W.3d 86 , 95 n.9 (Tex.

App.—Houston [14th Dist.] 2008), rev’d ,

330 S.W.3d 211 (Tex. 2010).