COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00228-CV
ACE FIRE UNDERWRITERS APPELLANT
INSURANCE COMPANY
V.
CYNTHIA SIMPKINS, APPELLEE
BENEFICIARY OF RODERICK
SIMPKINS, DECEASED
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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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 Texas Labor Code and workers’ compensation rules
allegedly cap attorneys’ fees at $150 per hour. We affirm.
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 appeals 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 hospital. She testified that she does not know what caused
Simpkins to fall.
2
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
acknowledged 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
1
A TIA is a form of a stroke that resolves quickly. Unlike a full stroke, the
blood clot dissolves and blood flow is restored, usually within the first hour,
without damage to the brain.
2
Cynthia testified that she worked for approximately twenty years as an
occupational therapist and that she had evaluated and treated individuals who
had suffered strokes, head injuries, and TIAs.
3
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 anything else connected to Simpkins’s job that would
have caused him to fall.
3
Two other Coca-Cola employees testified that they did not observe
anything on the floor that would have caused Simpkins to slip or trip and that
there were no chemicals or anything else connected to Simpkins’s job that would
have caused him to fall.
4
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 fall. Edwards, although he
acknowledged that he has no medical training, also testified that Simpkins was
unconscious before his head hit the floor.
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 collapsed 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
5
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 intake 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 pathology
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
6
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
conducted the autopsy in this case, testified as an expert for Appellee. Dr.
Krouse conducted the autopsy on September 17, 2005, and dictated the autopsy
report on October 28, 2005. As part of that process, he reviewed the
investigator’s report, information about how Simpkins was injured, and the
videotape of Simpkins’s fall.
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 head
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
7
can affect the person’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 external symptoms exhibited
by persons who have suffered a myocardial infarction, including 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 experienced dizziness or unconsciousness before 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
autopsy. Dr. Krouse also acknowledged that Simpkins was at twice the risk of
the ordinary public for having a stroke or TIA.
8
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 ladies 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 that Simpkins’s fall did not originate in or arise out of his employment
because there was no evidence of a causal connection between his fall and his
employment.
9
A. Standard of Review
We may sustain a legal sufficiency challenge 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 adverse 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 preponderance of the
10
evidence at the trial in district court. Tex. Lab. Code Ann. § 410.303 (West
2006).
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). Tex. Lab. Code Ann.
§ 401.011(10) (West Supp. 2012). Ace Fire does not contest that Simpkins was
in the course and scope of his employment at the time of the fall. Rather, Ace
Fire argues that Simpkins’s fall did not originate in or arise out of his employment
because his employment did not put him in a position that increased his risk of
injury. Ace Fire points to evidence that nothing at Coca-Cola’s premises, such as
a substance on the floor or a noxious chemical, caused Simpkins to fall. Ace Fire
also cites Dr. Nieto’s testimony that there was something going on inside
Simpkins’s body that caused him to fall and that Simpkins’s fall was not caused
by his employment.4
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
4
Ace Fire also states that “Dr. Krouse admitted that Mr. Simpkins’ fall and
resulting injuries were not caused by nor did they originate in his employment.”
To support this statement, Ace Fire relies on the portion of Dr. Krouse’s cross-
examination that is quoted above. While Dr. Krouse did not testify that
Simpkins’s employment caused his fall, we do not read Dr. Krouse’s testimony as
an admission that Simpkins’s fall was not caused by his employment.
11
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 hypertension, not a blow to the head, caused the
hemorrhage. Id. After the jury returned a verdict that included a finding that
Jones was not injured in the scope of her employment, the trial court disregarded
the jury finding and entered judgment for Jones. Id. This court reversed and
rendered judgment in accordance with the jury’s verdict, holding that the
testimony by the state school’s expert witness “constituted some evidence that
Jones’[s] injury was not in the course of her employment.” Id. at 447. Although
Ace Fire argues that we held in Jones that Jones was not injured in the course
and scope of her employment, we did not do so. Rather, we held that the trial
court erred by disregarding the jury’s finding that Jones was not injured in the
scope of her employment because there was “some evidence” to support the
jury’s finding on the disputed fact issue. See id. We rendered judgment because
the jury had already resolved the disputed fact issue when it reached its verdict.
See id.
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
12
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 “positional 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
13
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 that Garcia likely hit his
head on a post while falling. Id. at 415, 209 S.W.2d at 334. The jury found that
Garcia had sustained an injury in the course and scope of his employment, but
the trial court disregarded the jury’s verdict and rendered judgment for the carrier.
Id. at 415–16, 209 S.W.2d at 334–35. The intermediate appellate court affirmed.
Id. at 414, 209 S.W.2d at 333. The supreme court framed the issue as follows:
“Since Garcia’s fall was due to his epilepsy[,] did his injury arise out of his
employment? In other words, was there a causal connection between the
conditions under which his work was required to be performed and his resulting
injury[?]” Id. at 416, 209 S.W.2d at 335. As part of its holding that Garcia’s
injuries arose out of his employment because they were causally connected to
his employment, the court stated that the only reasonable conclusion to be made
from the evidence was that Garcia struck his head on a sharp corner as he fell to
the ground. Id. at 418–19, 209 S.W.2d at 336. The court continued,
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
14
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 parking
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 remanded 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
15
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
premises, striking his head and causing fatal injuries. Id. at 217. We assumed
for purposes of our opinion that Wickersham’s fall was caused by a dizzy spell,
and we noted the trial court’s findings of fact that Wickersham’s head “certainly
struck the tile floor,” that his head may have struck a door hinge or cigar counter,
that he suffered a fractured skull from the blow to one of those objects, and that
the fracture caused his death. Id. After considering cases from other
jurisdictions, we stated, “We can find no sound reason for denying a recovery
where the fall is to the floor, when recovery is allowed where the fall is from a
ladder, or platform or similar place, or into a hole, or against some object such as
a table, machine, or post.” Id. at 219.
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
16
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 not 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
17
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. Tex. Lab. Code Ann. § 410.303. Moreover, because Ace
Fire is challenging an adverse finding on an issue for which it had the burden of
proof, we “first examine the record for evidence that supports the finding, while
ignoring all evidence to the contrary.” Francis, 46 S.W.3d at 241; see Sterner,
767 S.W.2d at 690. Only then do we review the record to determine whether Ace
Fire proved as a matter of law that Simpkins did not suffer a compensable injury.
See Francis, 46 S.W.3d at 241; Sterner, 767 S.W.2d at 690.
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
18
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 proof, 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
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.
19
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., 228
S.W.3d at 651; City of Keller, 168 S.W.3d at 807, 827; 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 the 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 of review.” In re
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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 considerable 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
instruction) and because the factual dispute was whether a compensable back
injury extended to further injuries that manifested 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
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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 producing 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 onerous burden for Ace Fire
because producing cause was superfluous language concerning an undisputed
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fact. See Trice, 712 S.W.2d at 850 (“[T]he submission of undisputed facts does
not ordinarily result in reversible error.”).
“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 erroneously 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 Tex. R. App.
P. 44.1(a)(1) (defining reversible error to include an error that “probably caused
the rendition of an improper judgment”); Steel v. Wheeler, 993 S.W.2d 376, 381
(Tex. App.—Tyler 1999, pet. denied) (holding failure to submit question and
instruction harmless because evidence on the point was conclusive). We
therefore overrule Ace Fire’s second point.
B. Incorrect Producing Cause Jury Instruction
Ace Fire contends in its third point that the trial court erred by submitting
an incorrect 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.
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After the trial in this case, the supreme court issued an opinion
disapproving of a producing cause definition identical 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 not 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 hematoma, 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 dispute centered on whether the knee injury was a
producing cause of Crump’s death eight months later. Id. Producing cause was
the only issue that the trial court submitted to the jury in that case. Id. at 215.
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Holding that the incorrect definition of producing cause was harmful, the supreme
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
harmful. 355 S.W.3d at 386–87. The evidence showed that Baker injured his
knee in July 2000 when stepping off a ladder, that the carrier accepted the claim,
but that the carrier later disputed whether Baker’s original knee injury included a
medial meniscus tear that was first identified five years later. Id. at 377.
Explaining that the incorrect definition required reversal for a new trial, the court
held,
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. 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 employment, not whether the blow to his head
caused his death. Ace Fire attempted to prove that Simpkins could have fallen
anywhere because something happened to his body that caused him to fall, but it
did not dispute that Simpkins died from the traumatic head injury. Moreover, Ace
Fire argued in its second point that producing cause should not have been
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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 improper 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 discretion
by failing to submit additional instructions and definitions concerning course and
scope of employment and compensable injury because those definitions and
instructions “are more closely aligned to the evidence produced at trial.”
Although Ace Fire does not cite any authority that would have required the trial
court to submit the additional instructions and definitions under 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 proposed instruction came from part
of the definition of “occupational diseases” and because occupational diseases
are not at issue in this case. See Tex. Lab. Code Ann. § 401.011(34) (West
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Supp. 2012). From the explanations provided by the trial court on the record at
the charge conference, we cannot say that the trial court abused its discretion by
failing to submit these definitions and instructions. See Crowson v. Bowen, 320
S.W.3d 486, 488 (Tex. App.—Fort Worth 2010, no pet.) (“We review claimed
error in the jury charge under an abuse of discretion standard.”). To the extent
Ace Fire complains of other proposed definitions and instructions, it has not
identified them in its brief, explained why it was entitled to their submission, or
described why the failure to submit them was reversible error. We thus overrule
Ace Fire’s fourth point.
VI. Alleged Improper Burden of Proof
Ace Fire contends in part of its fifth point that the trial court erred by
submitting Question No. 1 to the jury because there was no evidence or legally
insufficient evidence to support the submission. We overrule this part of Ace
Fire’s fifth point for the same reasons that we overruled its first point.
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
comment on the weight of the evidence because it required Ace Fire to prove a
negative. The court’s charge asked the jury to answer “yes” or “no” to the
following question: “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?” The jury answered “no,” meaning that
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it found that Simpkins “did suffer a compensable injury on September 9, 2005,
that was a producing 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
statement from an easily distinguishable dram shop liability case that states that
“proving a negative is always difficult and frequently 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 required that Ace Fire prove by a preponderance of the
evidence that Simpkins did not suffer a compensable injury that was a producing
cause of his death. See Tex. Lab. Code Ann. § 410.303; Crump, 330 S.W.3d at
226 (“Transcontinental bore the burden of proving, by a preponderance of the
evidence, the negative proposition that the May 2000 injury was not a producing
cause of Crump’s death.”). We also note that the trial court included two
instructions along with Question No. 1 that advised the jury to answer “Yes” if it
found that “Simpkins did not suffer a compensable injury on September 9, 2005,
that was a producing cause of his death” or to answer “No” if it found that
“Simpkins did suffer a compensable injury on September 9, 2005, that was a
producing cause of his death.” Thus, we cannot say that the trial court abused its
discretion by submitting Question No. 1 as phrased, and we overrule the
remainder of Ace Fire’s fifth point.
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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 unsuccessfully appeals the appeals panel decision 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 maximum attorney’s fees are applicable only to
legal fees generated by proceedings before the commission.” Id. (citing 28 Tex.
Admin. Code § 152.4(a) (2011) (last amended 1994) (Tex. Dep’t of Ins., Div. of
Workers’ Comp.). We thus overrule Ace Fire’s sixth point.
VIII. Conclusion
Having overruled each of Ace Fire’s points, we affirm the trial court’s
judgment.
ANNE GARDNER
JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and GABRIEL, JJ.
DELIVERED: August 30, 2012
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