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Reversed and Rendered and Memorandum Opinion filed April 12, 2007.

 

In The

 

Fourteenth Court of Appeals

____________

 

NO. 14-06-00592-CV

____________

 

ACE AMERICAN INSURANCE COMPANY, Appellant

 

V.

 

ERASMO MAREZ, Appellee

 

 

On Appeal from the 234th District Court

Harris County, Texas

Trial Court Cause No. C-2005,41629

 

 

M E M O R A N D U M   O P I N I O N

 

In this workers= compensation case, a jury found that Erasmo Marez was not injured in the course and scope of his employment at Trinity Industries, Inc.  The trial court, however, granted Marez=s motion for judgment notwithstanding the verdict (AJNOV@) in Marez=s favor and ordered Ace American Insurance Company (AAce@), Trinity Industries= worker=s compensation insurance carrier and the plaintiff below, to pay Marez=s attorney=s fees.  On appeal, Ace contends the trial court erred in granting the JNOV and awarding attorney=s fees because more than a scintilla of evidence supports the jury=s verdict.  In a cross-point, Marez contends that, if more than a scintilla of evidence supports the jury=s verdict, the verdict was against the great weight and preponderance of the evidence.  We reverse and render.

Procedural Background

Erasmo Marez claimed that, on July 7, 2004, he sustained a compensable injury to his back in the course and scope of his employment as a welder with Trinity Industries.  Following a benefit review conference, the Texas Workers= Compensation Commission (ATWCC@) held a benefit case hearing in which the hearing officer found that, on July 7, 2004, Marez sustained an injury in the course and scope of his employment.  The hearing officer also concluded that, as a result of the injury, Marez had a disability from August 9, 2004, continuing to the date of the hearing, March 28, 2005.  Ace appealed this decision to a TWCC appeals panel, which upheld the hearing officer=s decision.

In June of 2005, Ace appealed the TWCC appeals panel=s decision to the district court, alleging that Marez did not sustain a compensable injury on July 7, 2004, and did not have a disability from August 9, 2004, to March 28, 2005.  The case was tried to a jury, which heard testimony from Marez and two Trinity Industries employees.  After both parties rested and the jury heard closing arguments, the trial court submitted its charge to the jury.  The charge included the following instruction:

You are instructed, as required by the Texas Workers= Compensation Act, that the Texas Workers= Compensation Commission Appeals Panel has previously dealt with the issues you will now decide.  The Appeals Panel found that: Erasmo Marez was injured in the course and scope of his employment on July 7, 2004; and that Erasmo Marez sustained disability from August 9, 2004 to March 28, 2005 as a result of his work-related injury.  You may consider this finding as evidence, although you are not bound by it.

The jury was then instructed to answer AYes@ or ANo@ to the following question:

QUESTION NO. 1

 

Do you find that Erasmo Marez was injured in the course and scope of his employment on July 7, 2004?

AInjury@ means damage or harm to the physical structure of the body and/or a disease or infection naturally resulting from the damage or harm.  This includes an aggravation of a prior injury if the aggravation occurs during the course and scope of employment.

ACompensable Injury@ means an injury that arises out of and In the course and scope of the employment for which compensation is payable.

The jury unanimously answered ANo@ to this question.[1] 

On May 30, 2006, the trial court granted a JNOV and entered a final judgment affirming the TWCC appeals panel=s decision.  By a separate order, the trial court ordered Ace to pay attorney=s fees of $17,042.36 to Marez=s attorneys.  This appeal followed.

Ace=s Issues on Appeal

Ace raises two issues on appeal: (1) the trial court erred in disregarding the jury=s verdict and rendering a JNOV in favor of Marez because there was more than a scintilla of evidence upon which the jury could have returned its ANo@ verdict; and (2) if this court reverses the JNOV, then Marez is no longer the prevailing party, and the trial court=s award of attorney=s fees and expenses is in error and should be reversed.  Central to Ace=s appeal is its contention that Marez=s testimony was inconsistent and conflicted with the testimony of the Trinity Industries employees, and so the juryCas the sole judge of the credibility of the witnessesCwas entitled to resolve the inconsistencies and conflicts against Marez.  Because our resolution of Ace=s issues turns on the standard of review we apply to the JNOV and the testimony and other evidence presented at trial, we discuss both in detail below.

 

The Applicable Law and the Standard of Review Applied to a JNOV

The Applicable Law

Under the Texas Workers= Compensation Act, only injuries occurring in the course and scope of employment are compensable.  Payne v. Galen Hosp. Corp., 28 S.W.3d 15, 18 (Tex. 2000).  The Act provides that a party who has exhausted its administrative remedies and is aggrieved by a final decision of the appeals panel may seek judicial review of the appeals panel decision.  Tex. Lab. Code ' 410.251 (Vernon 2006).  Issues regarding compensability or eligibility for benefits may be tried to a jury and are subject to a modified de novo review. See id. ' 410.301 (Vernon 2006); Tex. Workers= Comp. Comm=n v. Garcia, 893 S.W.2d 504, 528 (Tex. 1995).  Review is limited to the issues that were before the TWCC appeals panel.  Tex. Lab. Code ' 410.302(b) (Vernon 2006).  The party appealing the appeals panel=s decision bears the burden of proof by a preponderance of the evidence.  Id.  410.303 (Vernon 2006).  Although the trial court is required to inform the jury of the appeals panel=s decision in the jury charge, the jury is not required to accord that decision any particular weight.  See id. ' 410.304(a) (Vernon 2006); Garcia, 893 S.W.2d at 515.

The Standard of Review Applied to a JNOV

The trial court may disregard a jury=s verdict and render a JNOV if no evidence supports one or more of the jury=s findings or if a directed verdict would have been proper.  See Tex. R. Civ. P. 301; Tiller v. McClure, 121 S.W.3d 709, 713 (Tex. 2003).  To determine whether the trial court erred in rendering a JNOV, we review the entire record, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not.  See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

 

The jury is the sole judge of witnesses= credibility, and it may choose to believe one witness over another; a reviewing court may not impose its own opinion to the contrary.  Id. at 819.  Jurors may disregard even uncontradicted and unimpeached testimony from disinterested witnesses.  Id. at 820.  A[W]henever reasonable jurors could decide what testimony to discard, a reviewing court must assume they did so in favor of their verdict, and disregard it in the course of legal sufficiency review.@  Id.

Circumstantial evidence may prove any material fact, so long as it transcends mere suspicion.  KPH Consolidation, Inc. v. Romero, 102 S.W.3d 135, 145 (Tex. 2003); Lozano v. Lozano, 52 S.W.3d 141, 149 (Tex. 2001) (Phillips, C.J., concurring and dissenting).  The material fact must be reasonably inferred from the known circumstances.  Romero, 102 S.W.3d at 145.  It may not be proved by unreasonable inferences from other facts and circumstances or by piling inference upon inference.  Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex. 1968).  In claims or defenses supported only by meager circumstantial evidence, the evidence is legally insufficient if jurors would have to guess whether a vital fact exists.  City of Keller, 168 S.W.3d at 813.  A>When the circumstances are equally consistent with either of two facts, neither fact may be inferred.=@ Id. (quoting Tubeline, A Div. of Indal, Inc. v. Risica & Sons, Inc., 819 S.W.2d 801, 813B14 (Tex. 1991)).  In such cases, the reviewing court must Aview each piece of circumstantial evidence, not in isolation, but in light of all the known circumstances.@  Id. at 813B14  (quoting Lozano v. Lozano, 52 S.W.3d 141, 167 (Tex. 2001)).

Circumstantial evidence often requires a fact finder to choose among opposing reasonable inferences.  Lozano, 52 S.W.3d at 148.  And this choice, in turn, may be influenced by the fact finder=s views on credibility.  Id. at 148B49.  Thus, a jury is entitled to consider the circumstantial evidence, weigh witnesses= credibility and make reasonable inferences from the evidence it chooses to believe.  Id. at 149.  Because it is the jury=s province to resolve conflicting evidence, we must assume that jurors resolved all conflicts in accordance with their verdict.  See City of Keller, 168 S.W.3d at 820. 

 

AThe final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair‑minded people to reach the verdict under review.@  Id. at 827.  If the evidence Awould enable reasonable and fair‑minded people to differ in their conclusions, then jurors must be allowed to do so.@  Id. at 822.  We do not substitute our judgment for that of the trier‑of‑fact if the evidence falls within this zone of reasonable disagreement.  Id.

The Testimony and Evidence at Trial

At trial, the jury heard testimony from Marez and two Trinity Industries employees.  The two Trinity Industries employees were Jerry Peters, Marez=s immediate supervisor, and Kevin Klubertanz, the plant manager.  As discussed below, Marez=s testimony concerning his injury and the surrounding circumstances was at times inconsistent and often controverted by that of Peters and Klubertanz.

Through an interpreter, Marez testified that he worked for nearly 30 years as a welder for Trinity Industries, and the last five of those years were spent in the same shop.  On July 7, 2004,while working for Trinity Industries, Marez was pushing a welding gantry by himself when it fell off its rail, causing him to slip and injure his back.  Immediately after the incident, Marez told his supervisor, Jerry Peters, about his injury.  Marez also testified that there was a witness who saw him get hurt, but the witness would not come forward because Ahe didn=t want to get into any trouble.@  Marez testified that he told Peters about this witness.  However, Marez admitted that when an adjustor for Ace called him on August 4, 2004, to interview him concerning the incident, he did not tell her that there were any witnesses. 

Peters denied that Marez told him on July 7, 2004, he had been injured while at work or that there was a witness to the incident.  According to Peters, the first time he heard about Marez=s claimed injury was when Marez told him about it during a meeting on August 3, 2004.[2]  Further, Peters testified that he had not heard anything about a witness to the incident until he was asked about it at trial.  However, Peters admitted that he had no reason to believe Marez was not injured while pushing a welding gantry as he claimed.  

 

The events that transpired at the August 3 meeting, which took place in the safety and human resources office of Trinity Industries, were also disputed.  Marez and Peters attended the meeting along with Kevin Marks, the shop foreman, and Quentin Oropeza, the human resources manager.  Kevin Klubertanz, the plant manager, joined the meeting later.  Peters testified that the purpose of the meeting was to discuss Marez=s unhappiness with the hours he was working and with being sent home due to a work slow down at the company.  According to Peters, August 3 was not the first time Marez had been sent home from work.  He also testified that, during the slow period, Marez and other workers had been moved around to different jobs to keep them employed.  Similarly, Klubertanz testified that when he entered the meeting, he asked what was going on, and was told that Marez was upset because he was being sent home.  Klubertanz testified the ensuing discussion concerned man hours and workers being sent home from work because the company was between projects.

Marez=s account of the of the meeting differed substantially from that of Peters and Klubertanz.  Marez testified the purpose of the meeting was to discuss his complaint that he was being switched to a different department.  He denied that the reason for the meeting was to discuss a complaint that he was not getting enough hours to work.  He also stated that the problem started that day, and he denied ever having been sent home from work previously due to a lack of work.  Marez also denied being told at the meeting that there was a slow down in work at Trinity Industries.

 

The parties also disputed whether Marez quit or was fired during the August 3 meeting.  Peters testified that Marez was not satisfied with the company=s explanation for the reduction in work hours and that Marez first asked to be laid off and then threatened to quit.  After Marez threatened to quit his job, he said, AOh, yes, what about my on-the-job injury?@  Marez was then asked if he had reported the injury, andCin front of PetersChe said he had reported it to Peters.  Peters denied that Marez had reported it to him.[3]  According to Peters, Klubertanz then asked Marez if he were quitting, and Marez said he was.  Peters testified that Marez=s employment was not terminated by anyone in the meeting.  After Marez quit, Peters testified, a report was filled out concerning the injury Marez had reported at the meeting.

Marez testified that he did not threaten to quit, but was fired.  He testified that he then told the attendees at the meeting about his injury at work.  When asked whether the people in the meeting were surprised to learn that Marez was claiming an on-the-job injury, he responded, AIt=s possible.  I just told them.@  Marez further testified that when the plant manager, Klubertanz, came into the meeting and was told that Marez had an injury and wanted to see a doctor, Klubertanz said they were not sending anyone to the doctor and that if Marez was unhappy he should just leave.

Klubertanz testified, like Peters, that Marez first asked to be laid off because of the lack of work, and then threatened to quit.  Klubertanz also testified that when he asked Marez if he were quitting his job, Marez said, Ayes.@  After this exchange, Marez said, ABy the way, I was hurt on the job.  What are you going to do about that?@  Klubertanz further testified that Marez claimed in the meeting that he had reported the injury to Peters, but Peters disputed this.  Klubertanz denied that Marez ever told him that he needed to go to a doctor, and he denied that he would try to prevent his employees from seeking medical attention after making a worker=s compensation claim.

Klubertanz also testified that, prior to that meeting, he did not know Marez was claiming an on-the-job injury.  However, on cross-examination, he admitted that he did not witness Marez=s fall and he could not tell the jury Marez was not injured as he said he was.

 

Marez=s conversation with Ace=s adjuster the day after the meeting, August 4, also differed from his trial testimony.  Although Marez testified that he was fired at the August 3 meeting, he told the adjuster he had quit.  Marez explained that he did so because Oropeza, the human resources manager, Alied@ and said that he was Agoing to write on the application@ that Marez had quit.  And, as noted above, although Marez testified that there was a witness to the alleged incident, he admitted he did not tell the adjustor that there were any witnesses.

Marez also admitted that he never saw a doctor or sought medical attention for his alleged injury between July 7, 2004, and August 3, 2004.  He testified that he wanted to see a doctor but could not because he did not have any money.  However, he told the adjustor on August 4, that he had not yet made up his mind whether he was going to see a doctor.  When he did finally see a doctor, on August 9, 2004, it was a doctor to which his attorney referred him. 

Marez said that every doctor that he had seen had indicated to him that he was Ain fact@ injured on the job.  Various medical records concerning Marez=s treatment for his injury were also submitted into evidence.  However, Marez agreed that he told every doctor he saw how he was injured, and all the information about how his accident occurred came from him and his doctor=s records.

Marez also testified that, in February 2005, he went to work for three weeks as a welder for McGuire and Smith.  He testified that, before being hired by McGuire and Smith, he had to take a pre-employment physical examination.  Marez admitted that, between the time he worked for Trinity Industries and McGuire and Smith, he held himself out as being ready, willing, and able to work.  However, Marez testified that he had to do so because he was not receiving benefits at the time.

The Law Applied to the Facts

Ace contends the jury was entirely within its sole province to discredit Marez=s trial testimony and to resolve the conflicting testimony in Ace=s favor.  Thus, Ace maintains the record contains more than a scintilla of evidence to support the jury=s verdict.  We agree.

 

The record reflects that Marez=s testimony was internally inconsistent and in conflict with the testimony of Peters and Klubertanz concerning the circumstances surrounding the alleged injury and Marez=s subsequent actions.  The jury could have resolved the conflicting testimony to determined that Marez did not sustain a compensable injury on July 7, 2004, because he (1) had no witness to the incident, (2) did not report an injury to his supervisor on the day it allegedly occurred, (3) only mentioned his alleged injury after he became dissatisfied and quit his job, (4) did not seek medical attention until a month later and only after his attorney referred him to a doctor, (5) later passed a physical examination and took another job as welder.  Given the amount of conflicting testimony, the jury could have determined that Marez simply was not credible when he testified about his injury.  On this record, therefore, the jury was entitled, in the exercise of its role as the sole judge of the credibility of the witnesses and the weight to be given their testimony, to disbelieve Marez=s account of his injury and to believe Peters and Klubertanz.  See City of Keller, 168 S.W.3d at 819. 

Marez contends that the burden was on Ace to prove by a preponderance of the evidence that Marez did not suffer a compensable injury on July 7, 2004, and it failed to carry its burden because the evidence Ace presented consisted solely of speculation that is no evidence to support the jury=s verdict.  According to Marez, the testimony concerning the unidentified witness, the reasons for Marez=s departure from Trinity Industries, and when Marez informed his employer of his injury is meager circumstantial evidence from which equally plausible but opposite inferences could be drawn.  Marez claims these issues are Amere conjecture@ and are legally insufficient to support the jury=s finding.  Thus, Marez argues, one Acannot fairly infer@ from the testimony presented by Ace that Marez did not suffer a compensable injury on July 7, 2004, or that Marez did not have a disability from August 9, 2004, to March 28, 2005, as a result of his injury.

 

Marez=s argument appears to be that the jury was not entitled to infer from the circumstantial evidence presented that he did not suffer a compensable injury on July 7, 2004.  However, we disagree that this fact could not be reasonably inferred from the known circumstances.  As outlined above, Ace presented testimony that conflicted with Marez=s on several issues relating to his alleged injury and his subsequent actions.  The jury was entitled to believe one witness and disbelieve another when resolving these issues.  Moreover, the evidence was not merely conflicting between Marez and the Trinity Industries employees; Marez=s own testimony was internally inconsistent.  As City of Keller instructs, because most credibility questions are Aimplicit rather than explicit@ in a jury=s verdict, we Amust assume jurors decided all of them in favor of the verdict if reasonable human beings could do so.@  City of Keller, 168 S.W.3d at 819.  Reviewing the evidence in this light, we cannot say that the jury=s resolution of the credibility issues, or its determination of the ultimate fact based on its resolution of the credibility issues, was unreasonable.

Moreover, we disagree that this evidence amounts to no more than Ameager circumstantial evidence from which equally plausible but opposite inferences could be drawn.@  As outlined above, the jury had much more before it from which it could determine the ultimate fact against Marez without resorting to guesswork.  At a minimum, the evidence presented at trial was sufficient to enable reasonable and fair‑minded people to differ in their conclusions.  See id. at 827.  Because this evidence falls within the zone of reasonable disagreement, we decline to substitute our judgment for that of the jury.  See id.  We therefore sustain Ace=s first issue and hold that the trial court erred in disregarding the jury=s verdict and rendering a JNOV in favor of Marez.

Having sustained Ace=s first issue, we also sustain Ace=s second issue and reverse the trial court=s award of attorney=s fees and expenses.  See Tex. Lab. Code ' 408.221(c) (Vernon 2006) (providing that an insurance carrier that seeks judicial review of a final decision of the appeals panel is liable for reasonable and necessary attorney=s fees if the claimant prevails on an issue on which judicial review is sought by the insurance carrier). 

 

Erasmo Marez=s Cross-Point

In a cross-point, Marez contends that, if there was more than a scintilla of evidence to support the jury=s verdict, it was against the great weight and preponderance of the evidence, and this court should reverse the jury=s verdict and remand the case to the trial court for a new trial.  By this cross-point, we understand Marez to be challenging the factual sufficiency of the evidence.

Standard of Review

In conducting a factual sufficiency review, we consider and weigh all of the evidence in the case, including the evidence contrary to the jury=s verdict.  See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406B07 (Tex. 1998); Plas-Tex., Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).  However, we must be mindful that jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony, and we may not substitute our judgment for that of the jury.  See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Maritime Overseas Corp., 971 S.W.2d at 407.  We set aside a finding for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

Analysis of Marez=s Cross-Point

Marez contends the jury=s verdict is against the great weight and preponderance of the evidence because (1) he provided credible testimony that he was injured in the course and scope of his employment on July 7, 2004, (2) every doctor from whom he sought medical care indicated that he was in fact injured on the job, and (3) Peters and Klubertanz were both unable to testify that he was not injured on the job as he testified he was.  We address each of these arguments in turn.

 

First, Marez contends he provided credible testimony which established that he sustained a compensable injury on July 7, 2004.  However, it is not for MarezCor this courtCto determine whether his testimony was credible.  It was the jury=s sole province to determine Marez=s credibility and the weight to be given his testimony; therefore, the jury was entitled to resolve this issue against Marez.  We also  note that, in the court=s charge, the trial court informed the jury of the appeals panel=s previous decision in favor of Marez, as it was required to do.  However, as the Texas Supreme Court instructs in Texas Workers= Compensation Commission v. Garcia, the jury was not required to accord that decision any particular weight.  See Garcia, 893 S.W.2d at 515, 528.  Similarly, the jury was instructed that it may consider the appeals panel=s decision as evidence, but it was Anot bound by it.@

Second, Marez asserts that every doctor he saw indicated he was injured on the job.  However, Marez admitted that he told every doctor how he was injured; thus, all of the information the jury had before it concerning how his accident occurredCincluding his medical recordsCcame from Marez.   Thus, the jury could have discounted the weight of this testimony and the medical records.

 

Finally, Marez points to the testimony of Peters and Klubertanz, who were both unable to testify that Marez was not injured on the job as he said he was.  Because these witnesses were unable to refute Marez=s claim that he suffered a compensable injury, Marez claims their testimony was Aspeculative and circumstantial from which [an] equally plausible but opposite inference could be drawn,@ and thus insufficient.  However, this testimony of Peters and Klubertanz was not the only testimony or evidence the jury had before it when it reached its verdict.  As discussed above, the jury also considered, among other things, whether Marez timely reported his alleged injury, whether there was a witness to the injury, why Marez failed to seek medical care for approximately a month after he was allegedly injured (and then only after he was referred to a doctor by his attorney), and whether Marez quit or was fired from Trinity Industries before he informed its employees of his injury.  These issues turn on the jury=s resolution of the witnesses=s credibility, and on this record we decline to substitute our judgment for that of the jury.  See Golden Eagle Archery, 116 S.W.3d at 761; Maritime Overseas Corp., 971 S.W.2d at 407.

Thus, after considering and weighing all of the evidence, both supporting and conflicting with the jury=s finding that Marez was not injured in the course and scope of his employment on July 7, 2004, we conclude the jury=s verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  We therefore hold that the evidence is factually sufficient to support the jury=s verdict and overrule Marez=s cross-point.

Conclusion

We reverse the trial court=s judgment and order awarding attorney=s fees and render judgment in favor of Ace American Insurance Company. 

 

 

 

/s/      J. Harvey Hudson

Justice

 

 

 

Judgment rendered and Memorandum Opinion filed April 12, 2007.

Panel consists of Chief Justice Hedges and Justices Hudson and Edelman.



[1]  The jury did not answer Question 2, which was conditioned on a AYes@ answer to Question 1.  Question 2 asked, ADo you find that Erasmo Marez had disability from August 9, 2004 to March 28, 2005 as a result of his compensable injury?@  ADisability@ was defined to mean Athe inability, as a result of a compensable injury, to obtain and retain employment at wages equivalent to the pre-injury wage.@

 

[2]  A Trinity Industries accident report also reflects Marez reported his injury on August 3, 2004.

[3]  Peters also testified that, when an employee reports an injury, he is responsible for filling out the proper forms at that time.  Marez=s counsel sought to demonstrate that Peters was motivated to conceal Marez=s injury report because the Trinity Industries safety program includes bonuses that are tied to the number of incidents that occur.  However, Peters also testified that he could be reprimanded if he failed to report an injury that was reported to him by a worker.  On redirect examination, Peters testified that he had never been reprimanded for not reporting a worker=s injury, and he did not fail to report Marez=s injury in order to get a bonus.