Opinion issued March 18, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01105-CV
____________
MARVIN FRANK MOTOR COMPANY, Appellant
V.
HARRIS COUNTY, Appellee
On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2001-32303
MEMORANDUM OPINION
A jury awarded Harris County, appellee, $19,001.22 for damages incurred by its employee, Mark Amato, after the van he was driving was struck by a wrecker truck owned by Marvin Frank Motor Company, appellant.
In six points of error, Marvin Frank Motor Company (MFM) argues that the trial court erred (1) in admitting untimely-filed exhibits, (2) in admitting testimony concerning the reasonableness of Amato’s medical expenditures and the necessity of the treatment, (3) in admitting Harris County’s workers’ compensation payments to and on behalf of Amato, (4) in submitting, over objection, the damages jury question because it was an incorrect statement of the law, and (5) in entering judgment because there was legally and factually insufficient evidence to support the damages awarded.
We affirm.
Factual and Procedural Background
Mark Amato, a county employee, was driving a Harris County van when the van was rear-ended by a wrecker truck owned by MFM and operated by an MFM employee. Harris County sued MFM, asserting its rights under section 417.001 of the Texas Labor Code to sue MFM as subrogee of its injured employee to recover the damages incurred by Amato. Harris County asserted that Amato was injured in the course and scope of his employment with Harris County and that, as a self-insured workers’ compensation carrier, Harris County had paid benefits to Amato consisting of medical expenses and income payments totaling $19,001.22.
A jury found MGM negligent and found that $10,962 would compensate Harris County for reasonable and necessary medical care that Harris County paid to Amato and $8,039.22 would compensate Harris County for loss of wages it paid Amato.
Improperly Admitted Evidence
In points of error one, two, and three, MFM argues that the trial court erred in admitting into evidence (1) untimely-filed affidavits and records from Dr. Leo Grim and Y. Etta McCutcheon, (2) testimony concerning the reasonableness and necessity of medical expenditures, and (3) the county’s workers’ compensation payments.
Standard of Review
Whether to admit or exclude evidence is a matter committed to the trial court’s sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). To reverse a judgment based on a claimed error in admitting or excluding evidence, a party must show that the error probably resulted in an improper judgment. Tex. R. App. P. 61.1; Alvarado, 897 S.W.2d at 753. In determining if the excluded evidence probably resulted in the rendition of an improper judgment, we review the entire record. Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). Typically, a successful challenge to a trial court’s evidentiary rulings requires the complaining party to demonstrate that the judgment turns on the particular evidence excluded or admitted. Texas Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); Alvarado, 897 S.W.2d at 753-54.
Grim’s and McCutcheon’s Exhibits
In point of error one, MFM argues that the trial court erred in admitting into evidence Grim’s and McCutcheon’s affidavits because they were not timely filed and did not comply with the requirements of section 18.001 (affidavit concerning cost and necessity of services) of the Civil Practice and Remedies Code.
Not Timely Filed
Harris County’s exhibit 1 included an affidavit and medical records from Dr. Leo C. Grim, Amato’s designated doctor for Amato’s workers’ compensation claim. Dr. Grim’s affidavit stated that the records were business records, but it does not comment on the reasonableness of the charges or the necessity of the treatment. When Harris County first attempted to admit the exhibit, MFM objected “on the grounds that it’s insufficient.” The trial court sustained the objection. Dr. Grim then testified that he was the custodian for the records, which were kept in the regular course of business. He testified that the records were true and correct copies of records that were kept by an employee with knowledge of the actual event and the records were made at or reasonably near the time that they were created. Harris County again attempted to admit Dr. Grim’s exhibit, and MFM objected “as to improper predicate.” The trial court overruled the objection and admitted the exhibit. MFM lodged an additional objection “on the grounds of 18.001(b) of the Texas Remedies Code, [that] the affidavit is insufficient, and that the predicate was improper as far as reasonable and necessary.” The trial court overruled the objection.
Harris County’s exhibit 2 included an affidavit from Y. Etta McCutcheon, the claims administrator for Harris County’s Office of Human Resources and Risk Management. As custodian of records, McCutcheon stated in her affidavit that Harris County paid Amato $19.001.22 in workers’ compensation benefits, which included medical services that were “determined to be consistent with the medical policies and fee guidelines adopted by the Texas Labor Commission.” When Harris County attempted to admit exhibit 2, MFM objected that “it’s irrelevant, it’s collateral source. And I also object to any additional testimony from this witness on both of those grounds as well.”
On appeal, MFM complains that Grim’s and McCutcheon’s affidavits were untimely filed because they were filed only 17 days before trial, not 30 days as is required. See Tex. Civ. Prac. & Rem. Code Ann. § 18.001(d) (Vernon 1997). To preserve an issue for appellate review, it must be raised with the trial court. Tex. R. App. P. 33.1.; Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 127-8 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). MFM did not object to the timeliness of the affidavits at trial; therefore, it has not preserved this challenge for appeal.
Section 18.001
MFM also contends that, pursuant to section 18.001(b), the affidavits were insufficient because they were “improper as to any testimony concerning the reasonableness and necessity of the charges.”
A plaintiff may prove medical expenses are reasonable and necessary either by presenting expert testimony, or by submitting affidavits in compliance with section 18.001 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (Vernon 1997); Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex. App.—Houston [14th Dist.] 2002, no pet.). In its appellate brief, Harris County conceded that it did “not contend that those affidavits satisfy the requirement of section 18.001.”
Although section 18.001 allows a party to prove the reasonableness and necessity of medical expenses through an affidavit of a custodian of medical records, Harris County’s affidavits do not state that the medical expenses were reasonable and necessary. Because Dr. Grim testified that Amato’s medical expenses were reasonable and necessary, Harris County did not need to prove the medical expenses through the affidavits. See Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 673 (Tex. App.—Texarkana 1999, pet. denied). Furthermore, and more importantly, Harris County was not required to prove the “reasonableness and necessity of the charges” in this case, given the fact that it was a subrogation case. Harris County simply had to prove the amount of benefits it had paid Amato. See Tx. Workers’ Comp. Ins. Fund v. Serrano, 962 S.W.2d 536, 537 (Tex. 1998) (per curiam).
We overrule point of error one.
Medical Expenditures
In point of error two, MFM contends that the trial court erred in admitting into evidence Y. Etta McCutcheon’s testimony concerning the reasonableness of Amato’s medical expenditures and the necessity of Amato’s medical treatment.
MFM refers us to two places in the trial testimony where it alleges that McCutcheon improperly testified to the reasonableness and necessity of the treatment. First, during trial, Harris County asked McCutcheon if Harris County was “required by law to pay the reasonable and necessary medical care for Mr. Amato.” MFM objected, stating, “Objection, Your Honor. At this point I think I need to take the witness on voir dire regarding these expert-type questions.” The trial court denied the objection, and MFM stated, “I would object to the further testimony on those grounds as well, Your Honor.” The trial court overruled the second objection, as well.
On appeal, MFM argues that, because McCutcheon testified that she could not give medical opinions, she was unqualified to give live testimony concerning the reasonableness and necessity of Amato’s medical expenditures.
Rule 33.1 requires that an objection be sufficiently specific to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Tex. R. App. P. 33.1. Here, it is unclear whether the “expertise” MFM complained of was that of a medical expert testifying regarding what treatment was reasonable and necessary or that of a legal expert testifying what Harris County is required by law to pay. MFM has not preserved this challenge for review. See id.
The second referenced exchange occurred when, without objection, Harris County asked McCutcheon, “And is (sic) all the payments that were made related to Mr. Mark Amato from the — in the checks that you have in Plaintiff’s Exhibit No. 2, are they related to the accident of July 7th, 1999?” McCutcheon responded, “Yes. They’ve been determined to be reasonable and necessary (sic) related.” Because it failed to object, MFM has preserved nothing for review. See Tex. R. App. P. 33.1.
We overrule point of error two.
Workers’ Compensation Payments
In point of error three, MFM argues that the trial court erred in admitting into evidence Harris County’s workers’ compensation payments to and on behalf of Amato.
Both before and during trial, MFM objected to the admission of such evidence based on the collateral source rule. The collateral source rule is defined as “the doctrine that, if an injured party receives compensation for its injuries from a source independent of the tortfeasor, the payment should not be deducted from the damages that the tortfeasor must pay. Black’s Law Dictionary (7th ed. 1999). The theory behind the collateral source rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party, and to which the wrongdoer was not privy. Brown v. Am. Transfer & Storage Co., 601 S.W.2d 931, 934 (Tex. 1980); Finger v. S. Refrigeration Servs., Inc., 881 S.W.2d 890, 893-94 (Tex. App.—Houston [1st Dist.] 1994, writ denied).
Here, for liability purposes, Harris County stepped into Amato’s shoes and had to prove that MFM’s negligence proximately caused Amato’s injuries. Harris County had the burden of proving its damages, and its damages, pursuant to section 417.001, were limited to the benefits it paid or assumed. See Tex. Lab. Code Ann. § 417.001(b). In the present case, it is evident that, by the admission of such evidence, MFM could not reap a benefit to which it was not entitled. Thus, the collateral source rule does not apply to this case. Additionally, the workers’ compensation benefits paid to Amato were not “collateral” to the damages Harris County had the burden of proving.
We hold that the trial court did not abuse its discretion in overruling MFM’s objection to the admission of the workers’ compensation benefits paid by Harris County.
We overrule point of error three.
Improper Jury Question
In point of error four, MFM argues that the trial court erred in submitting the jury question relating to damages because the question, as submitted, was an incorrect statement of the law.
The standard of review for charge error is whether the trial court abused its discretion. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). Our review requires that we consider the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. Island Recreational Dev. Corp. v. Republic of Tex. Sav. Ass’n, 710 S.W.2d 551, 555 (Tex. 1986). We may not reverse unless the error, when viewed in light of the totality of the circumstances, amounted to such a denial of the rights of the complaining party as was reasonably calculated and probably did cause rendition of an improper judgment. Id. However, whether the charge has submitted the controlling issues in the case, in terms of theories of recovery or defense, is a question of law that we review de novo. Cont’l Cas. Co. v. Street, 379 S.W.2d 648, 651 (Tex. 1964).
Here, MFM complains that jury question 2 improperly referenced the compensation paid to Amato by Harris County, a collateral source. The question stated:
What sum of money, if paid now in cash, would fairly and reasonably compensate Harris County for Mark Amato’s injuries, if any, that resulted from the occurrence in question and were compensated by Harris County under its workers compensation plan?
Consider the elements of damages listed below and none other. Consider each element separately. Do not include damages for one element in any other element. Do not include interest on any amount of damages you find. Do not reduce the amounts, if any, in your answer because of the negligence, if any, of Mark Amato. Do not reduce amounts, if any, for any pre-existing injury that is aggravated by the negligence of Marvin Frank Motor Company.
Answer in dollars and cents for damages, if any, for the following:
a. Reasonable and necessary medical care for Mark Amato that was paid by Harris County.
___($10,962.00)_______
b. Loss of wages for Mark Amato that were paid by Harris County.
___($8,039.22)________
(Emphasis added.) Again, MFM objected to the jury charge based on the collateral source rule. As previously stated, Harris County’s subrogation interest was limited to the amount of the total benefits it paid or assumed. See Tex. Lab. Code Ann. § 417.001(b). We have already held that the collateral source rule does not apply to this case. Accordingly, we hold that the trial court did not abuse its discretion by submitting jury question 2.
We overrule point of error four.
Sufficiency
In points of error five and six, Marvin Frank argues that the evidence was legally insufficient to support the jury’s finding that Harris County paid $10,962 for Amato’s medical care and factually insufficient to support the jury’s finding that Harris County paid Amato $8,039.22 in lost wages.
Medical Care
In reviewing a legal-sufficiency challenge, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex. 1992). If more than a scintilla of evidence exists, the evidence is legally sufficient. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993). To rise above a scintilla, the evidence offered to prove a vital fact must do more than create a mere surmise or suspicion of its existence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). In determining legal sufficiency, we consider whether the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994).
Dr. Grim testified that he was familiar with the usual and customary charges in Harris County and that Amato’s treatment that he “saw was reasonable.” He further testified that the treatment was necessary “from a treating doctor’s standpoint, as well as a designated doctor.” Dr. Grim testified that he had “no dispute” with the treatments or the payments associated with those treatments. McCutcheon testified that Harris County paid $10,962 in medical payments for Amato, and she testified that benefits were “determined to be consistent with the medical policies and fee guidelines adopted by the Texas Labor Commission.” Medical services are presumed reasonable if consistent with the medical policies and fee guidelines adopted by the commission. Tex. Lab. Code Ann. § 413.017 (Vernon 1996); Serrano, 962 S.W.2d at 538.
We hold that the evidence was legally sufficient to support the jury’s award of medical damages. We overrule point of error five.
Lost Wages
MFM argues that the proper measure of damages in a personal injury case is “loss of earning capacity,” not “loss of wages” and the record does not reflect any admissible evidence of Amato’s earnings from his employment with Harris County.
The Texas Supreme Court has held that there is only one test for determining if a party has preserved error in the jury charge, and that is whether the party made the trial court aware of the complaint, timely and plainly, and obtained a ruling. State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241 (Tex. 1992). MFM objected to jury question 2 on the basis of the collateral source rule. MFM never objected to the terms “loss of wages” versus “loss of earning capacity” as it does on appeal. In fact, MFM submitted a proposed jury question with the alleged “collateral source” reference omitted, but it kept the term “loss of wages.” MFM has not preserved this complaint for review.
MFM next complains that the record does not reflect any admissible evidence of Amato’s earnings from his employment with Harris County; therefore, any award of damages for lost wages is not supported by the record. We disagree.
In reviewing the factual sufficiency of an issue on which the challenging party did not have the burden of proof, we consider and weigh all of the evidence; we will set aside the verdict only if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). We will not substitute our opinion for that of the trier of fact. Id.
MFM, referring us to two personal injury, non-subrogation cases, contends that Harris County was required to introduce evidence from which a jury may reasonably measure in monetary terms the plaintiff’s earning capacity prior to injury. See Bonney v. San Antonio Transit Co., 325 S.W.2d 117, 121 (Tex. 1959). While this is an accurate recitation of the burden in some non-section 417.001 cases, it is not applicable here.
Section 417.001(b) provides that Harris County’s subrogation interest is limited to the amount of the total benefits paid that it assumed. Tex. Lab. Code Ann. § 417.001. McCutcheon testified that Harris County paid Amato “indemnity payments for lost time and injuries or permanency. We paid a total of $8,039.22.” Further, McCutcheon submitted business records showing the benefits Harris County paid Amato.
In Serrano, the Texas Supreme Court illustrated that the courts of appeals have consistently held that a carrier is entitled to reimbursement from third-party recovery for amounts paid. 962 S.W.2d at 538; see, e.g., Foster v. Truck Ins. Exch., 933 S.W.2d 207, 211 (Tex. App.—Dallas 1996, writ denied) (stating that third-party recovery must be used to reimburse the carrier “for benefits [the carrier] has paid”); Lege v. Jones, 919 S.W.2d 870, 874 (Tex. App.—Houston [14th Dist.] 1996, no writ) (stating that the carrier had “the burden of proving the benefits it paid”); Liberty Mut. Fire Ins. Co. v. Schrull, 905 S.W.2d 12, 13 (Tex. App.—Houston [14th Dist.] 1995, writ denied) (stating that subrogation recovery includes “amount[s] paid”); Duke v. Wilson, 900 S.W.2d 881, 886 (Tex. App.—El Paso 1995, writ denied) (noting that the carrier need only establish “the amount of benefits paid out”).
We hold that the evidence of workers’ compensation benefits for loss of wages expenses was not so weak or the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Cain, 709 S.W.2d at 176.
We overrule point of error six.
Conclusion
We affirm the judgment.
George C. Hanks, Jr.
Justice
Panel consists of Justices Nuchia, Alcala, and Hanks.