As we all know, the 1989 reforms of the Texas Workers’ Compensation Act (TWCA), among other things, modified the old law trial de novo system credited with creating a cash cow for attorneys and bankrupting the system. Ever since then, workers’ compensation insurance has been both generally available and affordable for Texas employers. But we should avoid taking this situation for granted. Proponents of changes in the system, such as reverting to lump sum rather than scheduled benefits, would have us return to the bad old days of runaway comp costs and fat settlements that take no heed of carefully worked out medical guidelines and return to work requirements. The modified trial de novo standard is another critical piece of the puzzle that, if removed or watered down, would have catastrophic effects on both cost and access.
Just in case we needed a reminder about the fundamental importance of maintaining the reforms, however, the Houston [14th] Court of Appeals has given us one. Bertoldo Balderas, As Next Friend of Rigoverto Balderas v. Zurich American Insurance Company (No. 14-20-00262-CV) arose from a workplace injury suffered by the employee of a business insured by Zurich. Both the ALJ and the Division of Workers’ Compensation (DWC) appeals panel determined that that Balderas’s employer was covered by workers’ compensation insurance and that Balderas was intoxicated when he was injured. The panel barred recovery as provided by the statute. Balderas appealed to district court, which granted Zurich’s partial summary judgment on both the coverage and intoxication issues. Balderas appealed.
In an opinion by Justice Poissant, the court of appeals affirmed. Balderas raised a number of issues, including an improper jury charge, the trial court’s judgment gave improper deference to the administrative law judge, legal insufficiency of evidence, error in the jury charge, and violation of constitutional rights). The court went through the issues one by one, but for our purposes the opinion’s most significant holdings are:
- When a trial court enters summary judgment, the issue for appellate review is whether the trial court’s judgment is based on the appropriate standard of review. In a workers’ compensation context, “the propriety of the ALJ’s decision itself or of the evidence considered by the ALJ are immaterial to our determination of whether reversible error exists in the trial court’s judgment.” So much for the issue of “deference.” Here Zurich demonstrated that it was entitled to summary judgment as a matter of law.
- A person challenging “the legal sufficiency of an adverse finding on an issue on which he has the burden of proof . . . must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.” The appellate court must therefore “first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary.” If the court’s examination finds no supporting evidence, the court will examine the entire record to determine if the contrary proposition is established as a matter of law” (emphasis added). Only if the contrary proposition is “conclusively established” may the court sustain the point of error. Here the court found sufficient evidence upon which the jury could find that the employee was intoxicated.
- The employee argued that the blood test taken at the hospital when he arrived for treatment should have been excluded, while a later blood test showing that he was not intoxicated should have been the only evidence admitted. He also argued that a “retrograde extrapolation” conducted by Zurich’s expert, which likewise showed that the employee’s BAC was over the legal limit, was “junk science” and should have been excluded. The court of appeals disagreed. Since the TWCA refers to the Penal Code’s DWI standard, that standard refers only to “blood,” not to a specific type of blood test (the employee argued that a serum blood test, as the hospital likely performed, was legally invalid). Moreover, whether a retrograde extrapolation analysis is appropriate in a given case is up to the trial court pursuant to the appropriate evidentiary standards for scientific evidence. There is nothing special about a retrograde extrapolation test.
- Finally, the employee argued that since he did not consent to the serum blood test, the admission of the results violated his constitutional privacy and due process rights. Noting that the authority cited by the employee applies only to criminal trials, the court concluded that the employee had waived his admissibility complaints because the employee himself introduced the evidence during his expert’s testimony.
Here the trial and appellate courts did yeoman’s work in following the law and protecting the integrity of the TWCA. We sound like a broken record, but we simply cannot overstate the importance of good judges. And every time we applaud courts for doing the right thing, we run into cases where that might not have occurred. We will continue to seek improvements to the judicial selection system for as long as it takes to make sure the latter cases don’t happen. Our citizens, not to mention the litigants, deserve no less.
