ACE FIRE UNDERWRITERS INSURANCE COMPANY v. Cynthiа SIMPKINS, Beneficiary of Roderick Simpkins, Deceased
No. 02-11-00228-CV
Court of Appeals of Texas, Fort Worth
Aug. 30, 2012
291 S.W.3d 291
This Court is also bound by this Court‘s prior decisions. See Roe, 318 S.W.3d at 510 n. 5. Yet, in spite of our prior decisions in Bledsoe and Stephens, which already addressed the claim at issue, Owen filed this appeal. Owen concedes in his brief that Bledsoe “undoubtedly was ‘negative‘” to Krisle‘s case, and “[Bledsoe] meant she was going to lose in the trial court, lose on appeal, and have to seek relief in Austin.” (Emphasis added). Thus, Owen admits he knew he had no grounds on which to seek a reversal of the trial court‘s decision. See Smith, 51 S.W.3d at 381.
As our sister court has stated:
We will not permit spurious appeals, which unnecessarily burden parties and our already crowded docket, to go unpunished. Such appeals take the court‘s attention from appeals filed in good faith, wasting court time that could and should be devoted to those appeals. No litigant has the right to put a party to needless burden and expense or to waste a court‘s time that would other-wise be spеnt on the sacred task of adjudicating the valid disputes of Texas citizens.
Bradt v. West, 892 S.W.2d 56, 79 (Tex. App.-Houston [1st Dist.] 1994, pet. denied) (citations omitted).
Therefore, from the record and briefs filed with this Court, we conclude Owen‘s appeal is objectively frivolous. See Smith, 51 S.W.3d at 381. The trial court, in its order, conditionally awarded RW $7,500 for an unsuccessful appeal to this Court. RW provided this Court with an affidavit by its appellate counsel, testifying that he “believe[s] the fees incurred and to be incurred by [RW] through oral argument will total $12,000.00 and are reasonable and necessary for the representation of Appellee in this appeal.” RW seeks the aforementioned $12,000.00 in addition to the $7,500.00 in conditional appellate fees awarded below. However, based upon the affidavit of counsel and the entire record before us, we conclude a total award of $7,500 for frivolous apрeal damages to be a just and reasonable amount. See id. We sustain RW‘s cross-point. See
CONCLUSION
Having overruled all of Owen‘s issues on appeal and having sustained RW‘s sole issue, we affirm the judgment of the trial court.
A. Robert Lamb, Jr., Law Office of A. Robert Lamb, Jr., Addison, TX, for Cynthia Simpkins, Beneficiary of Roderick Simpkins, Deceased.
Panel: LIVINGSTON, C.J., GARDNER and GABRIEL, JJ.
OPINION
ANNE GARDNER, Justice.
I. Introduction
Appellant Ace Fire Underwriters Insurance Company (Ace Fire) appeals the trial court‘s judgment following a jury verdict that Roderick Simpkins suffered a compensable injury that was a producing cause of his death. Ace Fire, the party with the burden of proof in the trial court, contends in six points that the evidence establishes as a matter of law that the fall leading to Simpkins‘s death did not originate in or arise out of his employment; that the trial court erred by submitting incorrect and unnecessary questions, definitions, and instructions in the jury charge and by failing to submit additional definitions and instructions; and that the trial court erred by awarding Appellee Cynthia Simpkins attorneys’ fees of $200 per hour when the
II. Background
Simpkins worked at Coca-Cola Enterprises. He fell at work on September 9, 2005, was admitted to the hospital that day, and died seven days later. Simpkins‘s surviving spouse, Cynthia, and their daughters filed a claim for workers’ compensation benefits. Ace Fire denied the claim, and the dispute proceeded through the workers’ compensation hearing process with an appeals panel affirming the hearing officer‘s decision that Simpkins‘s death resulted from a compensable injury. Ace Fire appealed the appеals panel decision by filing suit in Tarrant County District Court.
Cynthia, Simpkins‘s wife of twenty-three years, received a telephone call on September 9, 2005, from a Coca-Cola employee who told her that Simpkins had fallen. Cynthia arrived at the Coca-Cola office before Simpkins was transported by EMS to the hospital. She was also present when Simpkins was admitted to the hospi-
Cynthia testified that Simpkins was diagnosed with Type 2 diabetes in 1991. Simpkins previously smoked, but he stopped in 1982. His diabetes, although normally controlled by oral medications, diet, and exercise, worsened in 2004, and he began receiving daily insulin injections. Cynthia testified that Simpkins had been diagnosed before September 2005 with high cholesterol, but she was not sure if he had been diagnosed with high blood pressure. She also acknowledgеd her deposition testimony, during which she had agreed that Simpkins was predisposed to have a stroke or a transient ischemic attack (TIA)1 because of his diabetes, high blood pressure, high cholesterol, and his weight.2 However, she testified that she had reviewed Simpkins‘s medical records from before and after his fall and that the records do not contain any mention of his predisposition to having a stroke or that he had suffered a stroke before he fell.
Melody Sims is a Coca-Cola employee who worked at the same location as Simpkins. She testified that Simpkins‘s job was to collect money and prepare it for deposit in the bank.
Sims testified that she was at work the day of Simpkins‘s fall. The jury watched a video recording of Simpkins‘s fall during Sims‘s testimony, and Sims described for the jury the office areas and persons visible on the video. Sims testified that there were no chemicals, noxious fumes, or anything else connected to Simpkins‘s job that would have caused him to fall and that she saw nothing on the floor that would have caused him to slip and fall, trip and fall, or collapse. She admitted, however, that she was focused on Simpkins rather than the floor.3 Sims also agreed that the floor onto which Simpkins fell is a hard surface, that the floor belongs to Coca-Cola, and that Simpkins was performing his regular job duties at the time he fell.
Mike Edwards witnessed Simpkins‘s fall. Edwards testified that he was walking through the building toward the cashier‘s window and that he saw Simpkins, said hello, and asked him how he was doing. Edwards also testified that Simpkins said he was “fine” but that Simpkins then started shaking and grabbed at the door as he fell. Edwards explained, “His eyes rolled back, and he was shaking. And he just was out. . . . He collapsed.” Like Sims and the other Coca-Cola employees, Edwards testified that he did not observe anything on the floor before Simpkins‘s fall that would have caused him to slip or trip and that there were no chemicals or any-thing else connected to Simpkins‘s job that would have caused him to fall.
On cross-examination, Edwards acknowledged that his written statement, prepared shortly after the incident, does not mention that Simpkins‘s eyes rolled back in his head or that he was shaking before he fell. Edwards also agreed that Simpkins was performing his job duties at the time he fell but testified that he does not believe that Simpkins‘s job caused his
Dr. Roberto Nieto, a board-certified neurologist, testified as an expert for Ace Fire. He testified that a stroke occurs when a blood clot travels to the brain, becomes lodged in an artery, and cannot pass any further. If the blockage is not relieved, permanent brain damage will result. Dr. Nieto testified that a TIA is a form of a stroke that resolves quickly. Dr. Nieto explained that, with a TIA, there is not “any hard evidence of any damage to the brain,” so a TIA diagnosis is made by looking at the patient‘s medical history for risk factors and the event itself for the patient‘s symptoms. Dr. Nieto testified that Simpkins was at risk for having a stroke because of his age, high blood pressure, diabetes, history of smoking, and elevated cholesterol. Simpkins was also in the “high risk factor category” for having a heart attack.
Describing what he observed on the videotape of Simpkins‘s fall, Dr. Nieto testified that he does not know whether Simpkins lost consciousness or not but that he collapsеd with a “sudden loss of postural tone,” meaning that he lost the ability to keep his body in a vertical position. From his review of the hospital records, Dr. Nieto testified that Simpkins sustained skull fractures from hitting his head on the floor of Coca-Cola‘s premises and that the autopsy report lists Simpkins‘s cause of death as a skull fracture.
Dr. Nieto testified that the hospital in-take notes indicate that Simpkins had left facial droop and that his left leg and left arm were paralyzed, symptoms consistent with Simpkins having suffered a stroke. He also agreed, however, that facial droop and paralysis can result from pressure to the brain, that the pressure could come from bleeding inside the skull, and that Simpkins‘s skull fracture caused him to bleed to the extent that the neurosurgeon had to relieve the resulting pressure. Dr. Nieto testified that he agreed with the pаthology report from Simpkins‘s autopsy that Simpkins did not suffer a massive stroke and that Simpkins indeed died from his head injuries, but he testified that he also felt “that something additional happened just prior to his collapse.” Specifically as to Simpkins‘s cause of death, Dr. Nieto testified that he agreed with Dr. Krouse‘s findings.
Dr. Nieto listed numerous conditions, including an irregular heart rhythm, a TIA, a stroke, and a pulmonary embolism, that could have caused Simpkins‘s fall, and he testified that he “definitely believe[d] that something happened to [Simpkins] that day in his body that caused him to collapse and not brace his fall.” Dr. Nieto testified that “clearly[,] something related to his heart or brain or other organ may have—or likely occurred at that point that caused him to collapse.” But Dr. Nieto also testified that he could not determine whether Simpkins had suffered a stroke, a pulmonary embolism, or any other condition. Regardless, Dr. Nieto testified:
Q. So in—in your opinion, did anything in connection with Mr. Simpkins’ job at Coca-Cola cause him to fall?
A. No.
Q. Do you have an opinion as to whether or not anything at his job, at Mr. Simpkins’ job caused him to fall?
A. I don‘t—
Q. You can answer.
A. I don‘t see any—anything that caused him to fall at work.
Dr. Marc Krouse, the Chief Deputy Medical Examiner in Fort Worth who con-ducted the autopsy in this case, testified as an expert for Appellee. Dr. Krouse con-
Dr. Krouse described the autopsy process to the jury and testified that he found an abrasion, one-inch by one-half-inch, on the back of Simpkins‘s hеad near the center as well as a bruise in the soft tissue under his scalp. Dr. Krouse also described the injuries to Simpkins‘s brain, including bruises to the front and side of the right temporal lobe and death of brain tissue caused by interruption of blood flow. He testified that bleeding on the brain is a sign of tissue death, and any bleeding on the brain is dangerous. The bleeding causes pressure which can affect the per-son‘s motor skills and speech, and Dr. Krouse testified that facial droop and paralysis is consistent with traumatic brain injury with bleeding on the brain.
Dr. Krouse testified that the cause of Simpkins‘s death was blunt force trauma to the head due to a fall. He also testified that he did not find any evidence of a stroke or other tissue damage that was not caused by the primary traumatic injury from the fall. Dr. Krouse listed the exter-nal symptoms exhibited by persons who have suffered a myоcardial infarction, in-cluding pain in the chest, pain radiating into an arm, shortness of breath, chest tightness, and clamminess of the skin, and he testified that the MedStar records state that Simpkins did not exhibit these symptoms.
On cross-examination, Dr. Krouse agreed that he was not giving an opinion as to what caused Simpkins‘s fall. He also agreed that the type of event that Simpkins experienced can occur at places other than a person‘s work and that there is no evidence that Simpkins tripped or hit his head on a sharp object. Dr. Krouse acknowledged that, from his review of the videotape, it is possible that Simpkins ex-perienced dizziness or unconsciousness be-fore falling. He also agreed that it is possible that Simpkins had a TIA that caused him to fall but that there would not be evidence of the TIA on a CT scan, on an MRI, or during the autoрsy. Dr. Krouse also acknowledged that Simpkins was at twice the risk of the ordinary public for having a stroke or TIA.
Dr. Krouse testified that he did not examine Simpkins‘s heart, arteries, pancreas, liver, or lungs during the autopsy and that an embolism in another part of Simpkins‘s body could have caused him to fall. But he also testified that nothing in another part of Simpkins‘s body would have changed his opinion about Simpkins‘s cause of death. Dr. Krouse testified that left-sided facial droop and paralysis could indicate that Simpkins had a stroke and that although a stroke is a possibility and would have been in his differential diagnosis upon presentation to the hospital, he did not believe it likely in this case. However, Dr. Krouse also testified as follows:
Q. You‘re not telling the jury or the judge in this case that Mr. Simpkins’ job or his job duties caused him to pass out and fall, are you?
A. No.
Q. And you‘re not telling the lаdies and gentlemen of the jury that Mr. Simpkins’ fall originated in his job duties or arose out of his job, are you?
A. No.
Finally, Dr. Krouse agreed that he does not know what initiated Simpkins‘s fall and that he only knows the result.
III. Legally Sufficient Evidence
Ace Fire argues in its first point that the evidence establishes as a matter of law
A. Standard of Review
We may sustain a legal sufficiency chal-lenge only when (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary to the finding unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005). If a party is attacking the legal sufficiency of an ad-verse finding on an issue on which the party had the burden of proof, and there is no evidence to support the finding, we review all the evidence to determine whether the contrary proposition is established as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). As the party appealing the agency decision to award death benefits to Appellee, Ace Fire bore the burden of proof by a prеponderance of the evidence at the trial in district court.
B. Discussion
The labor code defines “compensable injury” as “an injury that arises out of and in the course and scope of employment for which compensation is payable” under the Texas Workers’ Compensation Act (the Act).
Ace Fire refers us to Fort Worth State School v. Jones, 756 S.W.2d 445, 446-47 (Tex. App.-Fort Worth 1988, no writ). In that case, Jones suffered a cerebral hemorrhage while at work. Id. at 446. Jones presented evidence at trial that she fell on the job and that the fall caused her hemorrhage. Id. The state school countered with evidence that Jones suffered from preexisting hypertension and that her hy-
Ace Fire also relies on Employers’ Casualty Company v. Bratcher, 823 S.W.2d 719 (Tex. App.-El Paso 1992, writ denied). There, Bratcher collapsed in the lavatory of a work-site trailer, and coworkers were unable to resuscitate him. Id. at 719-20. The summary judgment evidence included an expert witness affidavit that stated that Bratcher died from a ruptured berry aneurysm in his brain and that “the most likely precipitating cause for rupture of the aneurysm was straining during defecation.” Id. at 720. The trial court granted summary judgment for Bratcher‘s widow and minor son and denied the carrier‘s motion for summary judgment. Id. at 720. The appellate court applied the “рositional risk” or “but for” test, which it described as “focus[ing] the court‘s inquiry upon whether the injury would have occurred if the conditions and obligations of employment had not placed the claimant in harm‘s way.” Id. at 721 (citing Walters v. Am. States Ins. Co., 654 S.W.2d 423, 426 (Tex. 1983), and N. River Ins. Co. v. Purdy, 733 S.W.2d 630, 633 (Tex. App.-San Antonio 1987, no writ)). Holding that the trial court should have granted the carrier‘s motion for summary judgment, the court explained,
[Mr. Bratcher‘s] aneurysm could have burst at any time. The injury did not arise but for him being at work, rather it was due to a personal defect which proved to be fatal from a strain totally unrelated to the deceased‘s employment. It cannot be said that but for Mr. Bratcher being assigned to a rig as a toolpusher he would not have gone to the bathroom on the occasion in question. Instead the risk was one Mr. Bratcher would have confronted irrespective of any type of employment.
Id. at 722. Relying on Bratcher and Jones, Ace Fire argues that the evidence is legally insufficient because there is no evidence that Simpkins‘s fall and resulting injury arose out of his employment.
Appellee responds that more than a scintilla of evidence supports the jury‘s finding that Simpkins suffered a compensable injury that was a producing cause of his death, and she primarily relies on four cases. See Tex. Emp‘rs Ins. Ass‘n v. Page, 553 S.W.2d 98, 102 (Tex. 1977); Garcia v. Tex. Indem. Ins. Co., 146 Tex. 413, 419, 209 S.W.2d 333, 337 (1948); Dir., State Emps. Workers’ Comp. Div. v. Bush, 667 S.W.2d 559, 561-62 (Tex. App.-Dallas 1983, no writ); Gen. Ins. Corp. v. Wickersham, 235 S.W.2d 215, 219 (Tex. Civ. App.-Fort Worth 1950, writ ref‘d n.r.e.).
In Garcia, Garcia had an epileptic seizure while standing on a loading dock at work. 146 Tex. at 414-16, 209 S.W.2d at 334-35. Because of the seizure, Garcia fell to the sidewalk, and the evidence reflected
The post with the sharp corners, which resulted from measures taken to protect the post, was a condition attached to the place of Garcia‘s employment; more than that, it was an instrumentality essential to the work he was waiting to do. Since his duties required him to be near the post at that time, the danger of falling against it was a hazard to which he was exposed because of his employment; and injury and death from a crushed temple suffered when he did fall against it came to him because he was then acting in the course of his employment and under the conditions of his employment. If he had not been working he might have suffered the epileptic stroke anyhow and he might have fallen just as he did fall, but he certainly would not have fallen against this post with its sharp edges to fracture his temple and die. Danger of injury from a fall at some other place might have been no less, but it certainly was not the same.
Id. at 419, 209 S.W.2d at 337 (citations omitted).
In Page, the supreme court held that the evidence “presented a fact issue of whether the injury originated out of Page‘s employment, that is whether there was a sufficient causal connection between the conditions under which his work was required to be performed and his resulting injury.” 553 S.W.2d at 102. Page was working as a bank security guard and was walking across the bank рarking lot when his knee “buckled.” Id. at 99. Page eventually underwent a knee implant operation after initial treatment attempts failed. Id. The trial court granted the carrier‘s motion for directed verdict, but the intermediate appellate court reversed and remand-ed for a new trial. Id. The carrier sought review by the supreme court. Id.
The evidence at trial reflected that Page had injured his knee three years earlier, but the supreme court held that the evidence did not support a conclusion that Page‘s preexisting injury was the sole cause of his fall. Id. at 100. The carrier also argued that Page‘s injury was not compensable because idiopathic falls to level ground are not compensable. Id. However, the court held that “a fall due to an idiopathic origin will not necessarily preclude recovery” and that a fact issue remained as to whether Page‘s injury “originated out of [his] employment.” Id. at 102. Thus, the court remanded for a new trial. Id.
In Wickersham, this court held that sufficient evidence supported the trial court‘s judgment awarding death benefits. See 235 S.W.2d at 219. Wickersham was a restaurant janitor, and the evidence reflected that he fell at his employer‘s prem-
The Dallas Court of Appeals held in Bush that sufficient evidence supported the jury‘s finding that Bush was injured in the course and scope of her employment. See 667 S.W.2d at 562. Bush, a food service worker at Terrell State Hospital, felt faint, was placed on a stretcher, and was taken to the emergency dock. Id. at 560. At the emergency dock, a set of the stretcher‘s wheels failed to lock, and Bush fell toward the ground, injuring her head and neck. Id. at 560-61. The parties agreed that high blood pressure was the underlying cause of Bush‘s fainting and that the fall on the stretcher was the source of the injury to her head and neck. Id. at 561. The State argued on appeal that “because no evidence was presented to connect the fainting to any conditions of the work place, the fall from the stretcher was nоt within the scope and course of employment.” Id.
The court reviewed the Page, Garcia, and Wickersham cases and stated that “if Bush had fallen at the time of her initial fainting and had been injured by hitting the floor or any other instrumentality of her employer‘s business, her injury would clearly lie within the criteria of Garcia and its progeny.” Id. But the court noted that Bush‘s situation differed because her high blood pressure caused her to be on the stretcher but did not directly cause her injury. Id. at 561-62. Even so, the court held that Bush did not leave the course and scope of her employment by accepting medical assistance from her employer and that “a defective instrumentality of Bush‘s employer (the stretcher) caused the accident and resulting injuries to her head and neck for which compensation [was] sought.” Id. at 562. The court thus held that sufficient evidence supported the jury‘s determination that Bush was injured in the course and scope of her employment. Id.
The evidence in this case lies somewhere between that in Bratcher, which involved a noncompensable death from a ruptured aneurysm, and that in Wickersham, which involved a compensable death from an unexplained fall and fatal blow to the head. See Bratcher, 823 S.W.2d at 722; Wickersham, 235 S.W.2d at 219. But we need not choose between Bratcher and Wickersham because Ace Fire‘s first point fails in light of the procedural posture of this case and the applicable standard of review on appeal. As the party appealing the administrative decision to award death benefits, Ace Fire bore the burden of proving by a preponderance of the evidence at trial that Simpkins did not suffer a compensable injury.
Reviewing the record for evidence favorable to the jury‘s finding that Simpkins suffered a compensable injury that was a producing cause of his death, we note that there is evidence that Simpkins was performing his regular job duties at the time of his fall, that the floor on which he hit his head was at Coca-Cola‘s premises and was an instrumentality of his employer, that Simpkins suffered a skull fracture from striking his head on the floor, and that the skull fracture caused his death. Comparing this evidence to that which we held to be legally sufficient in Wickersham and to that which our sister court stated would be sufficient in Bush, we hold that there is more than a scintilla of evidence to support the jury‘s finding that Simpkins‘s death arose out of his employment. See Bush, 667 S.W.2d at 561; Wickersham, 235 S.W.2d at 217, 219.
Moreover, we hold that Ace Fire, as the party with the burden of proоf, did not conclusively establish that Simpkins‘s fall and resulting injury did not arise out of his employment. Ace Fire certainly presented evidence that nothing in connection with Simpkins‘s employment caused him to fall, but its medical expert was unable to identify why Simpkins fell. Instead, Dr. Nieto testified that “something related to [Simpkins‘s] heart or brain or other organ may have—or likely occurred at that point that caused him to collapse” but that he could not determine whether Simpkins had suffered a stroke, a pulmonary embolism, or any other condition. And it is undisputed that Simpkins‘s death was caused by the skull fracture sustained as a result of blunt force trauma to the head. See Page, 553 S.W.2d at 102 (stating that “a fall due to an idiopathic origin will not necessarily preclude recovery” and holding that there was a fact issue as to whether Page‘s injury following a level-surface fall originated out of his employment). Ace Fire‘s evidence thus fell short of the summary judgment evidence presented in Bratcher, a case in which the medical experts agreed that the employee‘s death was caused by a ruptured aneurysm. See 823 S.W.2d at 719, 721-22. Here, Simpkins‘s death was caused by the blow to his head upon falling onto Coca-Cola‘s floor, a fact not in dispute between the testifying experts.
This is unquestionably a close case, but considering the evidence favorable to the finding if a reasonable factfinder could and disregarding evidence contrary to the finding unless a reasonable factfinder could not, we hold that legally sufficient evidence supports the jury‘s determination that Simpkins‘s death arose out of his employment. See Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005); see also Wickersham, 235 S.W.2d at 217, 219. We therefore overrule Ace Fire‘s first point.
IV. Producing Cause in the Jury Charge
Ace Fire complains in its second and third points that the trial court should not have submitted a producing cause definition in thе jury charge and that the submitted producing cause definition was legally incorrect.
The court‘s charge included the following question and definition:
Do you find by a preponderance of the evidence that Roderick Simpkins did not suffer a compensable injury on September 9, 2005, that was a producing cause of his death?
“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.
A. Submitting Producing Cause
Ace Fire argues in its second point that the trial court erred by submitting a producing cause definition and instruction in the jury charge because producing cause was not at issue before the appeals panel or as part of Ace Fire‘s appeal to district court. “We review a trial court‘s decision to submit or refuse a particular instruction under an abuse of discretion standard оf review.” In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000) (citing La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998)). “The trial court has consider-able discretion to determine necessary and proper jury instructions.” Id.
Ace Fire relies on Texas Workers’ Compensation Insurance Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000) (per curiam) (op. on reh‘g), a case in which the supreme court held that the injured employee was not entitled to submission of an instruction on producing cause. Mandlbauer is distinguishable because it concerned the failure to submit additional instructions concerning producing cause (as opposed to the improper submission of an unnecessary in-struction) and because the factual dispute was whether a compensable back injury extended to further injuries that manifest-ed at a later date. Id. at 910-12. Even so, we agree that it was not necessary for the trial court to submit producing cause to the jury in this case, but we do so for a different reason.
When facts are undisputed or conclusively established, there is no need to submit those issues to the jury. Sullivan v. Barnett, 471 S.W.2d 39, 44 (Tex. 1971); see XCO Prod. Co. v. Jamison, 194 S.W.3d 622, 633 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (op. on reh‘g). Here, there was no dispute that Simpkins‘s fall was a producing cause of his death. Both experts agreed that he died from a skull fracture sustained as a result of blunt force trauma to his head. Instead, the dispute centered on the issue of whether Simpkins‘s death resulted from a compensable injury, and the trial court instructed the jury in relevant part that a “compensable injury” is one that “arose out of [Simpkins‘s] employment.” As discussed above, Ace Fire argued and presented evidence that nothing connected with Simpkins‘s employment caused him to fall, meaning that his injury and resulting death did not arise out of his employment. But Ace Fire did not contest whether Simpkins‘s death was caused by the blunt force trauma to his head, and Ace Fire‘s expert readily agreed with the medical examiner‘s opinion concerning Simpkins‘s cause of death. Thus, because whether the fall was a pro-ducing cause of Simpkins‘s death was not in dispute at trial, it was unnecessary for the trial court to submit it to the jury. See Sullivan, 471 S.W.2d at 44; XCO Prod. Co., 194 S.W.3d at 633; Trice v. State, 712 S.W.2d 842, 850 (Tex. App.-Waco 1986, writ ref‘d n.r.e.).
Ace Fire argues that the inclusion of producing cause was harmful because it required Ace Fire “to, in essence, negate a producing cause issue which was not an issue before the [appeals panel].” But Ace Fire did not attempt to negate producing cause at trial and instead sponsored an expert witness who concurred with the medical examiner‘s cause of death opinion. The remainder of Ace Fire‘s evidence was designed to convince the jury that Simpkins‘s fall did not result in a compensable injury because the fall did not arise out of his employment, and Ace Fire would have prevailed in the trial court if it had convinced the jury of its position. The trial court‘s unnecessary inclusion of producing cause did not create a higher or more
“Charge error is generally considered harmful if it relates to a contested, critical issue.” Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 225 (Tex. 2010) (quoting Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009)). Unless the appellate court is reasonably certain that the jury was not significantly influenced by issues errone-ously submitted to it, the error is reversible. Romero v. KPH Consol., Inc., 166 S.W.3d 212, 227-28 (Tex. 2005). However, because producing cause was not disputed in this case, its inclusion in the charge was harmless. See Trice, 712 S.W.2d at 850; see also
B. Incorrect Producing Cause Jury Instruction
Ace Fire contends in its third point that the trial court erred by submitting an in-correct definition of “producing cause” in the jury charge. Assuming without deciding that Ace Fire preserved this point for appeal, we hold that although the trial court submitted a legally incorrect definition of producing cause in the jury charge, the trial court‘s error was harmless.
After the trial in this case, the supreme court issued an opinion disapprov-ing of a producing cause definition identi-cal to the definition submitted by the trial court in this case. See Crump, 330 S.W.3d at 220, 223-25. The 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 nоt have occurred.” Id. at 223. The producing cause definition in this case did not include the “without which” language and was therefore incorrect. Id. at 223-26; see Cont‘l Cas. Co. v. Baker, 355 S.W.3d 375, 386 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (op. on reh‘g).
The incorrect definition was not, however, harmful error because producing cause was not contested in this case. See Steel, 993 S.W.2d at 381; Trice, 712 S.W.2d at 850. This case is therefore distinguishable from two recent opinions in which it was held that a legally incorrect definition of producing cause required reversal for a new trial. See Crump, 330 S.W.3d at 226; Baker, 355 S.W.3d at 383-87.
In Crump, the evidence reflected that Crump struck his knee while at work, that the injury caused a contusion and hemato-ma, that increasingly serious complications arose, and that Crump died about eight months after his initial injury. 330 S.W.3d at 214. The knee injury was determined to be a compensable injury, but the dis-pute centered on whether the knee injury was a producing cause of Crump‘s deаth eight months later. Id. Producing cause was the only issue that the trial court submitted to the jury in that case. Id. at 215. Holding that the incorrect definition of producing cause was harmful, the su-preme court stated, “The but-for aspect of causation was squarely at issue in this case, and the sole question before the jury was whether the May 2000 injury was a producing cause of Crump‘s death.” Id. at 226.
The Baker court also held that an incorrect producing cause definition was harm-
As in Crump, the ‘but-for’ or ‘substantial factor’ aspect of causаtion was squarely at issue, and the charge error related to the sole issue in the case, that of causa-tion. 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.
Id. at 386 (citations omitted).
The evidence in this case is different because the parties disputed whether Simpkins‘s injury arose out of his employ-ment, not whether the blow to his head caused his death. Ace Fire attempted to prove that Simpkins could have fallen any-where because something happened to his body that caused him to fall, but it did not dispute that Simpkins died from the trau-matic head injury. Moreover, Ace Fire argued in its second point that producing cause should not have been included in the jury charge at all because it was not at issue in the case. Thus, because the trial court‘s charge error did not relate to a disputed factor in the case and instead involved an issue of undisputed fact, we cannot say that the trial court‘s error probably caused the rendition of an im-proper verdict because we are reasonably certain that the jury was not significantly influenced by the trial court‘s erroneous instruction. See Romero, 166 S.W.3d at 227-28 (reciting standard of review); see also Steel, 993 S.W.2d at 381; Trice, 712 S.W.2d at 850. We therefore overrule Ace Fire‘s third point.
V. Failure to Submit Additional Instructions and Definitions
Ace Fire argues in its fourth point that the trial court abused its discre-tion by failing to submit additional instruc-tions and definitions concerning course and scope of employment and compensable in-jury because those definitions and instruc-tions “are more closely aligned to the evi-dence produced at trial.” Although Ace Fire does not cite any authority that would have required the trial court to submit the additional instructions and dеfinitions un-der the circumstances of this case, we note that the trial court refused to submit some of Ace Fire‘s proposed instructions and definitions because it was concerned that doing so would comment on the weight of the evidence by highlighting Dr. Nieto‘s testimony. The trial court also refused an instruction that an injury does not include ordinary diseases of life because the pro-posed instruction came from part of the definition of “occupational diseases” and because occupational diseases are not at issue in this case. See
VI. Alleged Improper Burden of Proof
Ace Fire contends in part of its fifth point that the trial court erred by submit-
In the remainder of its fifth point, Ace Fire argues that Question No. 1, as submitted, imposed an improper burden of proof on Ace Fire and constituted a com-ment on the weight of the evidence be-cause it required Ace Fire to prove a negative. The court‘s charge asked the jury to answer “yes” оr “no” to the follow-ing question: “Do you find by a prepon-derance of the evidence that Roderick Simpkins did not suffer a compensable in-jury on September 9, 2005, that was a producing cause of his death?” The jury answered “no,” meaning that it found that Simpkins “did suffer a compensable injury on September 9, 2005, that was a produc-ing cause of his death.”
Although Ace Fire contends that the trial court‘s phrasing of Question No. 1 was in error, it does not cite any authority to support its position outside of a state-ment from an easily distinguishable dram shop liability case that states that “proving a negative is always difficult and frequent-ly impossible.” 20801, Inc. v. Parker, 249 S.W.3d 392, 397 (Tex. 2008) (quoting State Farm Mut. Auto. Ins. Co. v. Matlock, 462 S.W.2d 277, 278 (Tex. 1970)). Moreover, because Ace Fire was the party appealing the adverse decision by the appeals panel, the procedural posture of this case re-quired that Ace Fire prove by a preрon-derance of the evidence that Simpkins did not suffer a compensable injury that was a producing cause of his death. See
VII. Attorney‘s Fees
Ace Fire argues in its sixth point that the trial court erred by awarding attorney fees to Appellee at an hourly rate in excess of $150 per hour. However, in response to an identical argument, this court held just last year that commission rules capping attorney‘s fees at $150 per hour do not apply when the carrier unsuc-cessfully appeals the appeals panel deci-sion to district court and fees are awarded to the claimant pursuant to labor code section 408.221(c). See Cont‘l Cas. Ins. Co. v. Lavender, No. 02-10-00399-CV, 2011 WL 2306832, at *3 (Tex. App.-Fort Worth June 9, 2011, pet. denied) (mem. op.). “The commissioner‘s guidelines for maxi-mum attorney‘s fees are applicable only to legal fees generated by proceedings before the commission.” Id. (citing
VIII. Conclusion
Having overruled each of Ace Fire‘s points, we affirm the trial court‘s judg-ment.
ANNE GARDNER
JUSTICE