Opinion
No. 08-21-00021-CV
01-30-2023
EL PASO INDEPENDENT SCHOOL DISTRICT, Appellant, v. Alejandro PORTILLO, Appellee.
Bradley Dean McClellan, Austin, Jordan L. Scruggs, Charles L. Scruggs, El Paso, for Appellee. James Feuille, El Paso, for Appellant.
Bradley Dean McClellan, Austin, Jordan L. Scruggs, Charles L. Scruggs, El Paso, for Appellee.
James Feuille, El Paso, for Appellant.
Before Rodriguez, C.J., Palafox, J.
OPINION
YVONNE T. RODRIGUEZ, Chief Justice
This is an appeal from a judgment awarding Appellee Alejandro Portillo lifetime income benefits based on a jury's finding that he suffered a work-related traumatic brain injury. The relevant jury question, based on the archaic wording of a provision adopted more than 100 years ago, was whether the injury resulted in "incurable imbecility." And more specifically, given the "modified de novo" standard for the trials in Texas Labor Code cases, the jury should be asked the same question decided adversely to Portillo by the Department of Insurance-Division of Workers’ Compensation (the Division). Appellant El Paso Independent School District (EPISD), contends that the trial court's judgment should be reversed because: (1) the jury charge contained an erroneous or incomplete definition of the term, "imbecility"; (2) the trial court's charge and evidentiary rulings erroneously allowed the jury to consider evidence of Portillo's condition on the date of trial rather than the date of his administrative hearing; (3) the trial court provided a misleading answer to a jury question; (4) the trial court made several erroneous evidentiary rulings that resulted in an improper verdict; and (5) there was both legally and factually insufficient evidence to support the jury's verdict. For the reasons set forth below, we affirm the jury's verdict.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Portillo's Accident and Medical Treatment
Portillo was employed by EPISD as a heating and air conditioning technician when he was injured on the job on September 13, 2013. The injury occurred when Portillo and his co-worker were working on an air conditioning unit on the roof of a school in El Paso, Texas. Portillo's co-worker became stuck on a ladder, and when Portillo climbed the ladder to assist him, the co-worker fell on top of him, causing injuries to both. Portillo was transported to a hospital, where he was diagnosed with a mild concussion (synonymous with a mild traumatic brain injury ) as well as a cervical sprain or strain. Portillo received medical treatment at a rehabilitation facility from November 2013 until April 2014 for on-going symptoms, including dizziness and headaches. In addition, the record reflects that Portillo was later seen in a local hospital's emergency room on several occasions, complaining of continuing headaches and dizziness, which he reported was causing him to lose his balance and fall. Portillo could not return to work in his former position as an HVAC technician following his accident. In February 2014, his doctor released him to return to work with restrictions and Portillo soon accepted a job assignment at EPISD in a different department and in a semi-sedentary position. He found the assignment unsatisfactory, however, describing it as a "handicap job" and he subsequently chose to retire from the school district.
B. The Workers Compensation Division Proceedings
EPISD, a self-insured workers’ compensation provider, at first accepted and covered Portillo's injury under its workers’ compensation policies. EPISD paid for Portillo's medical treatment and also paid him temporary benefits for 42 weeks. In February 2015, shortly after his temporary benefits ceased, Portillo filed a claim with the Division seeking an award of lifetime income benefits (LIBs), alleging that he had suffered a traumatic brain injury that resulted in "incurable insanity or imbecility" under § 408.161 of the Texas Labor Code. See TEX. LAB. CODE ANN. § 408.161(6) (providing for recovery of lifetime income benefits when a claimant has suffered "a physically traumatic injury to the brain resulting in incurable insanity or imbecility").
The Labor Code provides for two distinct classes of income benefits, temporary benefits and permanent benefits. Liberty Mut. Ins. Co. v. Adcock , 412 S.W.3d 492, 496 (Tex. 2013). A claimant's eligibility for temporary income benefits generally terminates 401 weeks after injury. See Ins. Co. of State of Pennsylvania v. Muro , 347 S.W.3d 268, 271 (Tex. 2011), (citing Tex. Lab. Code Ann. § 408.083(a) ). But the 401-week limitation does not apply to lifetime income benefits, which, as the name implies, are payable until the injured employee's death. Id. , (citing Tex. Lab. Code Ann. § 408.161(a) ).
A Division Hearing Officer conducted a hearing on November 5, 2015, at which Portillo testified to his injuries and medical treatment. The Hearing Officer acknowledged that Portillo had sustained a serious accident on the job, and that he suffered a resulting traumatic brain injury. She concluded, however, that Portillo did not meet his burden of establishing that his injury caused him to suffer from incurable insanity or imbecility under the Labor Code. In part, her decision was based on a determination that Portillo had not established that he was a "mentally deficient" or "feebleminded" person "having a mental age of three to seven years and requiring supervision in the performance of routine daily tasks or caring for himself."
Portillo appealed that decision to an Appeals Panel within the Division as part of the administrative review process. The Appeals Panel agreed with Portillo that the Hearing Officer used the incorrect standard in defining "imbecility" in reaching her determination. In particular, the Panel rejected the use of a "mental-age" standard, which it observed had been rejected by our sister court in Chamul v. Amerisure Mut. Ins. Co. , 486 S.W.3d 116, 124 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). The Panel therefore reversed and remanded the matter to the Hearing Officer, with instructions to "apply the correct legal standard by considering additional factors," such as those discussed in Chamul , as well as in a prior appeals panel decision discussing the issue.
On remand, the Hearing Officer framed and addressed this issue: "Is the Claimant entitled to lifetime income benefits from September 13, 2013 through the present based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility?" The Hearing Officer answered that question no, relying on the same evidence presented at the November hearing. Among other things, she found it significant that Portillo appeared alert and aware during the November hearing, had been able to testify and answer questions without assistance, and had provided detailed and "articulate" testimony, describing his accident and medical condition. She also found it significant that he lived independently with only "some assistance" needed for performing daily tasks, and that and his medical records showed he could perform various daily tasks with "complete independence."
Portillo again appealed the decision to an Appeals Panel, but this time the Panel affirmed the Hearing Officer's decision without a written opinion. Portillo thereafter filed his petition in the district court, seeking judicial review of the Division's decision that he was not entitled to LIBs. See TEX. LAB. CODE ANN. § 410.252 (allowing losing party to seek judicial review of the division's decision).
C. The Trial Court Proceedings
The trial court held a four-day jury trial in January of 2021, almost four years later. At trial, EPISD acknowledged that Portillo was injured on the job and that he suffered a traumatic brain injury as the result of his accident. The only disputed issue at trial was whether he suffered from "incurable imbecility" as the result of his accident. The evidence at trial, as we discuss below, included expert medical testimony, lay witness testimony, and a host of medical records.
At the trial level, Portillo dropped his claim that he suffered from incurable insanity as the result of the accident.
At the close of trial, as required by the Labor Code, the trial court informed the jury that the Appeals Panel had denied Portillo's request for LIBs:
You are instructed that the Texas Department of Insurance Division of Workers’ Compensation Appeals panel determined on July 5th, 2016, plaintiff is not entitled to lifetime income benefits from September 13th, 2013, through the present based on a physically traumatic injury to the brain resulting in incurable imbecility.
See Tex. Lab. Code Ann. § 410.304(a) ("In a jury trial, the court, before submitting the case to the jury, shall inform the jury in the court's instruction's, charge, or questions to the jury of the appeals panel decision on each disputed issue described by Section 410.301(a) that is submitted to the jury.").
The trial court then provided the jury with the following definition of "incurable imbecility," which EPISD objected was incomplete or inaccurate:
A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits.
The jury was then asked this question:
Does Alejandro Portillo suffer from incurable imbecility from September 13, 2013 as a result of a physically traumatic injury to the brain ?"
Based on the jury's "yes" answer, the trial court entered a final judgment finding that Portillo was entitled to LIBs. This appeal followed.
II. ISSUES ON APPEAL
On appeal, EPISD contends that the trial court's judgment should be reversed because the trial court: (1) incorrectly allowed the jury to determine that Portillo suffered from incurable imbecility on the date of trial, rather than the date of his administrative hearing; (2) erred by admitting evidence of his condition after the hearing date; (3) provided the jury with an incorrect definition of the term "incurable imbecility"; (4) erred in responding, when the jury asked for clarification of the definition by referring the jury to the evidence presented at trial, thereby suggesting that the evidence supported a finding of imbecility; (5) erred in allowing two witnesses to testify on Portillo's behalf who were not previously disclosed to EPISD before the administrative hearing; (6) erred in refusing to admit various items of evidence submitted by EPISD; and (7) because there was both legally and factually insufficient evidence to support the jury's verdict. We re-order the issues, but first provide an overview of the modified de novo review of Division decisions.
III. COMMISSION PROCEEDINGS AND MODIFIED DE NOVO REVIEW
The Workers’ Compensation Act provides a three-step administrative process for resolving disputed issues between an injured worker and the insurance carrier (or as here, a self-insured entity). The first step—a benefit review conference—is an informal dispute resolution proceeding. TEX. LAB. CODE ANN. § 410.021. If that process proves unsuccessful, the parties proceed to a contested case hearing. See id. §§ 410.151–.169. The contested case hearing's scope is generally limited to the issues raised at the benefit review conference. Id. § 410.151. A party dissatisfied with the hearing officer's decision can appeal to an appeals panel. See id. § 410.202. This appeal is limited to a review of the contested case hearing record. See id. § 410.203.
A party dissatisfied with a final Division decision may seek judicial review of the decision by filing a petition in the proper district court. See id. §§ 410.251; 410.252. The Labor Code provides for a "modified de novo" standard for conducting trials on petitions for judicial review of Division decisions involving eligibility and compensability issues. See id. § 410.301(a); Texas Workers’ Comp. Comm'n v. Garcia , 893 S.W.2d 504, 530 (Tex. 1995). Under the applicable "de novo" standard, an aggrieved party may only challenge the "issues" decided by the Division, and the party must specify the issues challenged in his petition. In turn, the trial is limited to those specified issues. See TEX. LAB. CODE ANN. § 410.302(b) ("A trial under this subchapter is limited to issues decided by the appeals panel and on which judicial review is sought. The pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved."); see also Ferrell v. Univ. of Texas Sys. , 583 S.W.3d 805, 808 (Tex. App.—El Paso 2019, no pet.).
As our sister court in Eastland has held, this means that on judicial review, a trial court may only consider whether the claimant was entitled to lifetime income benefits on the day of a contested case hearing; in other words, the trier of fact on judicial review lacks jurisdiction to consider whether he became entitled to benefits after that date. See Texas Dep't of Ins., Div. of Workers’ Comp. v. Jackson , 225 S.W.3d 734, 736–37 (Tex. App.—Eastland 2007, no pet.) (holding that trial court erred in admitting medical evidence of a claimant's disability as of the date of trial, as the only issue to be considered was the claimant's disability on the date of contested case hearing); see also Facility Ins. Corp. v. Gibbs , 298 S.W.3d 791, 792–93 (Tex. App.—Eastland 2009, no pet.) (insurance company was prohibited from presenting evidence that a defendant had improved after the date of the contested case hearing). The Eastland court also noted that if a claimant's condition worsened after the contested case hearing, the remedy would be to "initiate a new administrative proceeding," which—while perhaps "inefficient"—was in line with the legislative intent in providing for a limited de novo review of the Division's decision. Jackson , 225 S.W.3d at 737.
In this unique trial de novo proceeding, the court also must inform the jury of the Division's decision on each disputed issue that is submitted to the jury. See TEX. LAB. CODE ANN. § 410.304(a). The jury, however, is not bound by the Division's decision, and is not required to give the decision any particular weight. See Morales v. Liberty Mut. Ins. Co. , 241 S.W.3d 514, 516 (Tex. 2007) ; Garcia , 893 S.W.2d at 528 (recognizing that "the jury is not required to accord that decision any particular weight[.]"); see also Liberty Mut. Ins. Co. v. Camacho , 228 S.W.3d 453, 462 (Tex. App.—Beaumont 2007, pet. denied) ("the jury was entitled to give the decision of the appeals-panel whatever weight it thought the decision deserved").
IV. THE TRIAL COURT'S INSTRUCTION DEFINING IMBECILITY
In its third issue on appeal—which we consider first given its importance to the case—EPISD contends that the trial court incorrectly instructed the jury on the definition of "incurable imbecility." We break this issue into two distinct arguments. First, we consider whether the instruction that the court gave to the jury was legally correct, and if not, whether it harmed EPISD's case such that reversal is required. And second, we consider whether, as EPISD contends, the trial court was required to give the jury an instruction that precisely mirrored the definition of imbecility used by the Division.
A. Applicable Law and Standard of Review for Charge Errors
A trial court must, when feasible, submit a cause to the jury by broad-form questions, and is also required to give "such instructions and definitions as shall be proper to enable the jury to render a verdict." Columbia Rio Grande Healthcare, L.P. v. Hawley , 284 S.W.3d 851, 855 (Tex. 2009) (citing TEX. R. CIV. P. 277 ). "An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence." Id. at 855–56, (citing Texas Workers’ Comp. Ins. Fund v. Mandlbauer , 34 S.W.3d 909, 912 (Tex. 2000) ). In general, determining necessary and proper jury instructions is a matter within the trial court's discretion, that we review for an abuse of that discretion. Hawley , 284 S.W.3d at 856 ; see also Mandlbauer , 34 S.W.3d at 911 (recognizing that a trial court has "considerable discretion to determine necessary and proper jury instructions"). However, to the extent that a challenge to a jury instruction involves the question of how to define a term used in a statute, we treat the issue as a question of statutory construction that we review de novo. See Chamul , 486 S.W.3d at 121 (treating question of whether the Division used the correct definition of the term "imbecile" in determining claimant's right to recover LIBs as an issue of statutory construction to be reviewed de novo); see also Ferrell , 583 S.W.3d at 808–09 ("We review questions of statutory construction de novo , with our primary objective being to give effect to the Legislature's intent.").
"A judgment will not be reversed for charge error unless the error was harmful because it probably caused the rendition of an improper verdict or probably prevented the [appellant] from properly presenting the case to the appellate courts." Hawley , 284 S.W.3d at 856 ; see also TEX. R. APP. P. 44.1(a) ; Gunn v. McCoy , 554 S.W.3d 645, 675 (Tex. 2018) (same); see also Rhey v. Redic , 408 S.W.3d 440, 463 (Tex. App.—El Paso 2013, no pet.) ("We reverse the trial court only when the error in the charge amounted to such a denial of the rights of the complaining party that it probably caused the rendition of an improper judgment.").
B. The Definition of "Incurable Imbecility"
1. General Principles of Statutory Construction
Section 408.161(a) of the Labor Code provides for the payment of lifetime income benefits under seven circumstances, including situations in which a worker has suffered "a physically traumatic injury to the brain resulting in incurable insanity or imbecility." TEX. LAB. CODE ANN. § 408.161(a)(6). The Code does not, however, provide a definition for either incurable "insanity" or "imbecility," and we must therefore look to general principles of statutory construction to determine the Legislature's intent in using that term in the Labor Code, and in turn, how the term should be defined to a jury. See Chamul , 486 S.W.3d at 125 (recognizing that the term "imbecility" has been in the Labor Code for almost a century, always without an assigned definition).
In construing a statute, our goal is to determine and give effect to the Legislature's intent. Nat'l Liab. & Fire Ins. Co. v. Allen , 15 S.W.3d 525, 527 (Tex. 2000). In determining that intent, a court must first look at the statute's plain, common meaning and presume that the Legislature intended the plain meaning of its chosen words, unless a different meaning is "apparent from the context or the plain meaning leads to absurd or nonsensical results." See Molinet v. Kimbrell , 356 S.W.3d 407, 411 (Tex. 2011) ; Allen , 15 S.W.3d at 527. When, as here, a term is undefined by a statute and its meaning is not otherwise apparent, we typically determine its meaning by first looking to the term's dictionary definitions and then consider the term's usage in other statutes, court decisions, and similar authorities, if any. Texas State Bd. of Exam'rs of Marriage & Fam. Therapists v. Texas Med. Ass'n , 511 S.W.3d 28, 35 (Tex. 2017) ("[W]e consult dictionaries to discern the natural meaning of a common-usage term not defined by contract, statute, or regulation."); see also Chamul , 486 S.W.3d at 125 ("It is appropriate to reference a dictionary to discern the common, ordinary meaning of a statutory term that has been left undefined.").
But as the court in Chamul recognized, dictionary definitions may vary over the years, and therefore, in construing the Legislature's intent in using a statutorily undefined term, it is appropriate to consider how the term was defined in dictionaries published as close in time to the enactment of the statute as possible. Chamul , 486 S.W.3d at 125 ("in the absence of a specific amendment, a statute should be given the meaning which it had when enacted") (citing Taylor v. Firemen's & Policemen's Civ. Serv. Comm'n of City of Lubbock , 616 S.W.2d 187, 189 (Tex. 1981) ).
We agree that words can change meaning over time—a concept that is known as "semantic drift." See Kenneth Bayliss, Semantic Drift in Re: Krogstad and the Changing Meanings of Words , Bench & B. Minn. 24, 25 (2021) ("The tendency of the meaning of words to change over time is known as ‘semantic drift.’ Semantic drift is the reason that when we first read a Shakespearean play, we needed a glossary. It was not just that we came upon words we never knew—‘blisson,’ ‘petard,’ or ‘fardels’—but that we came upon words which we thought we knew the meaning of, but did not: ‘nice,’ meaning ‘precise’; ‘proper,’ meaning ‘handsome’; or ‘silly,’ meaning ‘innocent.’ "). For that reason, we look to the meaning of a word at the time it was used in a statute. See New Prime Inc. v. Oliveira , ––– U.S. ––––, 139 S. Ct. 532, 539, 202 L.Ed.2d 536 (2019) (recognizing that it is a "fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary ... meaning ... at the time Congress enacted the statute, rather than the current meaning of the term[.]"); Cadena Comercial USA Corp. v. Texas Alcoholic Beverage Comm'n , 518 S.W.3d 318, 354 (Tex. 2017) ( "When a statute is silent [as to the meaning of a term], judges often seek guidance in reputable dictionary definitions, particularly legal dictionaries from the enacting era, since semantic usage and nuances can shift over time."); Ex parte Tutt Real Estate, LLC , 334 So. 3d 1249, 1253–54 (Ala. 2021) ("Because (‘[w]ords change meaning over time, and often in unpredictable ways,’ it is important to give words in statutes the meaning they had when they were adopted to avoid changing what the law is.")) (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, § 7, at 78 (Thomson/West 2012)).
2. The Holding in Chamul
Our sister court in Chamul provided an in-depth analysis of how the term "imbecility" should be defined, which the Appeals Panel cited favorably in its first decision reversing the Hearing Officer's decision. In Chamul , the Division denied a worker's claim that he was entitled to LIBs after he suffered a traumatic brain injury that he claimed led to incurable imbecility. 486 S.W.3d at 119–20. On petition for judicial review, the trial court granted summary judgment for an insurance company on that issue, ruling that the worker did not present sufficient evidence to support his claim. Id. at 120–21. In so ruling, the trial court relied on a definition of "imbecility" referring to "individuals with a mental age between three and seven." Id. at 127–28. On appeal, however, the Houston court observed that this "mental-age" based definition came from dictionary definitions that relied on the earlier work of the "now-repudiated eugenics movement of the late-nineteenth to mid-twentieth century." Id. at 117, 121. It rejected that definition, finding it significant that the Texas Legislature first used the term, "imbecility," in the workers’ compensation statutes in 1917, thereby making it appropriate to instead look to dictionary definitions of the term in use at that approximate time, specifically from 1903 to 1923. Id. at 126–28.
We source that mental-age definition to the writing of Henry Herbert Goddard in The Criminal Imbecile, An Analysis of Three Remarkable Murder Cases. Henry Herbert Goddard , The Criminal Imbecile: An Analysis of Three Remarkable Murder Cases 12 (Norwood Press, J.S. Cushing Co.—Berwick & Smith Co. eds., 2nd prtg. 1915), ("We may further designate this type of individual by saying that he has the mentality of a normal child of from three to twelve years of age. These age limits have been determined by examining thousands of the inmates of institutions for the feeble-minded and comparing with normal children.... Careful examination of such persons as have been determined by experience to be incapable of managing themselves shows that they range in intelligence, as before stated, from three to twelve years."). Whether Goddard was relying on eugenics or not, the Chamul court pointed to another problem with this definition: it would lead to an absurd result that a person with an intelligence level less than a three-year old would be denied compensation. Chamul v. Amerisure Mut. Ins. Co. , 486 S.W.3d 116, 127 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).
In reviewing the applicable dictionary definitions, the court primarily relied on the 1910 edition of Black's Law Dictionary, which provided the following general definition of the term:
A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits ... the test
of legal capacity in this condition, is the stage to which the weakness of mind has advanced, as measured by the degree of reason, judgment, and memory remaining.
Id. at 125, (citing Black's Law Dictionary 632 (2d ed. 1910)). The court noted that this definition remained in effect until the 1951 edition of Black's. Id. (citing Black's Law Dictionary (4th ed. 1951)). The court also recited several other dictionary definitions of "imbecility" that were in effect during the relevant time frame, which included: (1) "weakness of intellect; nearly allied to idiocy"; (2) "a form of mental disease consisting in mental deficiency ... Idiocy." (3) "destitute of strength, either of body or of mind,—weak, feeble, impotent, decrepit" (4) "feebleness of mind[.]" Id. However, other than to review these dictionary definitions, the court in Chamul did not provide any guidance on how a trial court should define the term "imbecility" when instructing the jury. Instead, its holding was limited to finding that the trial court incorrectly applied the "mental-age" based definition in granting the insurance company's motion for summary judgment, and remanding the matter to the trial court for further proceedings. Id. at 128–29.
The Black's Law Dictionary definition finds support from cases decided in that time frame. See Commonwealth v. Colwell , 3 Pa. D. & C. 153, 155 (Pa. Quar. Sess. 1922), quoting definition of imbecility approved in Delaware v. Parish (N. Y.) , 1 Dedf. 1, 115 ("that feebleness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving ideas the more common, and which relates always to physical wants and habits").
3. The Appeals Panel's Decision
When the Appeals Panel in Portillo's case initially remanded the case to the Hearing Officer, it directed the Hearing Officer to consider the various "factors" discussed in Chamul to determine whether Portillo suffered from incurable imbecility, as well as the factors discussed in an earlier Appeals Panel Decision, referred to as APD 121131-s. In that decision, the panel cited two cases. First, it cited Nat'l Union Fire Ins. Co. v. Burnett , 968 S.W.2d 950, 955 (Tex. App.—Texarkana 1998, no pet.), in which the court considered the definition of incurable "insanity," rather than "imbecility." In dicta, however, the court cited a Virginia case that defined the term, "imbecility," under Virginia's workers compensation statutes as "an irreversible brain injury which renders the employee permanently unemployable and so affects the non-vocational quality of his life by eliminating his ability to engage in a range of usual cognitive processes ...." Id. (citing Barnett v. D.L. Bromwell, Inc. , 6 Va.App. 30, 366 S.E.2d 271, 274 (1988) ). The Texarkana court, however, did not state its approval of that definition, or otherwise suggest that it reflected the correct definition of the term as used by the Texas Legislature.
Appeals Panel Decision 121131-s can be found at http://www.tdi.texas.gov/appeals/sig_cases/121131sr.pdf.
Thus, Chamul appears to be the only Texas case that has directly addressed the issue of how to define "imbecility" as that term was used by the Texas Legislature at the time of its adoption in 1917.
Second, the panel cited a Michigan case that defined the term, "imbecility." under its workers compensation statutes as a person who suffers "severe cognitive dysfunction," and added that "[s]ocial or cognitive dysfunction is ‘severe’ if it affects the quality of the worker's personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored." Modreski v. Gen. Motors Corp., Fisher Body Div. , 417 Mich. 323, 337 N.W.2d 231, 236 (1983) (internal quotation marks omitted). Unlike the Virginia court, the Michigan court stated that its focus was not on the person's "ability to work," but on the claimant's "ability to function outside the work setting." Id.
And finally, although Chamul expressly stated that more recent definitions of imbecility should not be used in determining whether a person suffers from imbecility, the panel's decision in APD 121131-s favorably cited the following dictionary definitions of "imbecility" from the 1990's: (1) BLACK'S LAW DICTIONARY (6th ed. 1990), which refers the reader to the definition of "insanity"; (2) DORLAND'S ILLUSTRATED MEDICAL DICTIONARY (28th ed. 1994), which defines imbecility as: "the condition of being an imbecile; moderate or severe mental retardation"; and (3) WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY (1991), which defines an imbecile as being a "mentally deficient person, especially a feebleminded person having a mental age of three to seven years and requiring supervision in the performance of routine daily tasks or caring for himself."
C. The Parties’ Proposed Instructions
At the jury charge conference, the court proposed the following instruction, which it stated was based on the definition of "imbecility" found in the 1910 edition of Black's Law Dictionary, as cited by the court in Chamul :
A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits ... the test of legal capacity in this condition, is the stage to which the weakness of mind has advanced, as measured by the degree of reason, judgment, and memory remaining.
But at Portillo's request, the trial court omitted the last portion of the definition (language relating to the test for "legal capacity"). Over EPISD's objection, the trial court agreed, and, as set forth above, it gave the jury the following definition of the term "incurable imbecility":
A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits.
At the charge conference, EPISD objected to the instruction, asserting that it did not accurately state the law as it did not include enough factors to help the jury determine whether Portillo suffered from incurable imbecility. EPISD instead requested the following instruction, contending that it more accurately reflected the law and included more of the necessary factors to be considered by the jury:
Alejandro Portillo seeks lifetime-income benefits for an injury that he claims has caused him to be an "incurable imbecile."
"Incurable imbecility" occurs when:
1. The person's injury is an irreversible brain injury ; and
2. The person's injury causes him to be permanently unemployable; and
3. The person suffers from severe cognitive dysfunction.
Cognitive dysfunction is "severe" if it so affects a person's personal, non-vocational quality of life such that it eliminates the claimant's ability to perform
most activities of daily living and caring for oneself.
The trial court, however, overruled EPISD's objections, and declined to give its proposed instruction.
D. Error Preservation
As a preliminary matter, Portillo argues that EPISD did not preserve error because it failed to submit a substantially correct instruction in place of the one given to the jury. As part of that argument, Portillo claims that the proposed instruction that EPISD submitted was not substantially correct. We disagree.
Rule 278 only requires a party to submit a "substantially correct" instruction to preserve a complaint of jury charge error when the party is complaining of the trial court's failure to provide any instruction or definition on a particular point. See TEX. R. CIV. P. 278 ("Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment."); see also Yellow Cab & Baggage Co. v. Green , 154 Tex. 330, 277 S.W.2d 92, 93 (1955) ("When the court's charge contains no instruction, the complaining party must accompany his clear and specific objections to such omission with a substantially correct definition or explanatory instruction."). But when a party is complaining that the trial court gave an erroneous instruction or definition to the jury, the complaint is preserved if the appellant objected to the charge by pointing out "distinctly" the basis for its objection to the trial court. See TEX. R. CIV. P. 274 ("A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction ... is waived unless specifically included in the objections."); see also Green , 277 S.W.2d at 93.
Here, EPISD made two distinct objections to the instruction: (1) it was not legally correct because it failed to include the "legal capacity" language found in the 1910 version of Black's Law Dictionary; and (2) it was deficient for failing to include enough factors to guide the jury in making its determination. Because EPISD only preserved error based on these two objections, our review will be similarly limited to the arguments EPISD raised in those objections.
E. Analysis: The Jury Instruction was Legally Correct
We first consider EPISD's argument that the instruction the trial court gave was legally incorrect as it was too "limited," and that it should have included all, or at least more, of the different factors that the Appeals Panel discussed in its decision. We disagree.
First, as explained above, other than its reference to the Chamul opinion, the Appeals Panel's decision provided little guidance on how a Texas court should define the term, "incurable imbecility," as used in our Labor Code, when instructing a jury. And we agree with the court in Chamul that in determining the Legislature's intent in using that term in the Code, we must focus on the definitions of "imbecility" that were in effect from the early 1900's, which in turn all center on two critical factors—a "weakness" of mind and a "feebleness of the intellectual faculties." Id. at 125. And here, the trial court included both factors in its definition of imbecility. In addition, other than omitting the "legal capacity" language, the trial court's instruction defining "imbecility" was a direct quote from the definition of imbecility found in the 1910 edition of Black's Law Dictionary, which the court in Chamul favorably cited. Id. at 125 (citing BLACK'S LAW DICTIONARY (2d ed. 1910)).
That said, even at the turn of the last century and before, courts struggled with the definition of imbecility. See Francke v. His Wife , 29 La. Ann. 302, 304 (La. 1877) ("No cases subjected to legal inquiry are more calculated to puzzle the understandings of courts and juries, to mock the wisdom of the learned and baffle the acuteness of the shrewd, than those connected with questions of imbecility."); State v. Haner , 186 Iowa 1259, 173 N.W. 225, 225 (1919) ("The term ‘imbecility of mind’ is one hardly capable of exact or comprehensive definition."). We urge the Legislature, as did the Chamul court, to update this provision, given the advances in medical science's understanding of traumatic brain injuries. See, e.g. , Center for Disease Control, Get the Facts About TBI | Concussion | Traumatic Brain Injury | CDC Injury Center (found at https://www.cdc.gov/traumaticbraininjury/get_the_facts.html ) (providing links to literature classifying severity of TBI based on symptoms); National Institute of Neurological Disorders and Stroke, (found at https://www.ninds.nih.gov ) (classification based on symptoms).
EPISD nevertheless contends that the trial court's instruction omitted two factors: "permanently unemployable" and "severe cognitive dysfunction." But neither of those factors were required by the Chamul court, nor were they in any of the dictionary definitions cited in its opinion. Chamul , 486 S.W.3d at 125. While the court in Chamul discussed the concept of employability, it did not state that a claimant had to prove that he was "permanently unemployable" in order to establish that he suffered from incurable imbecility. To the contrary, the court in Chamul recognized that the claimant in that case was still employable, although at a lower level than he was before the accident. Id. at 128. We thus do not believe that the trial court abused its discretion in omitting the concept of "permanently unemployable" from the definition of imbecility in the jury charge.
Nor did the court in Chamul state that a claimant had to be diagnosed with "severe cognitive dysfunction" before he could be found to suffer from incurable imbecility. In its opinion, the court referenced the fact that there was conflicting evidence in the record about the claimant's "cognitive problems" and how those problems affected his employability and everyday activities, but it never stated that a diagnosis of "severe cognitive dysfunction" was a necessary factor in determining whether a worker suffered from imbecility. Id. at 118–119, 128. But in any event, the trial court's definition of imbecility in this case did include the concept of "severe cognitive dysfunction," even if it did not use those exact words. As the Appeals Panel noted in its decision, the Michigan Supreme Court, recognized that "[s]ocial or cognitive dysfunction is ‘severe’ if it affects the quality of the worker's personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes ...." Modreski , 337 N.W.2d at 236 (emphasis added). And here, the trial court's jury instruction conveyed this same concept of a significantly diminished quality of life, when it instructed the jury that imbecility required a finding that the claimant suffered from such a "weakness of mind" or "feebleness of the intellectual faculties," that he was left with "only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits."
We also are not troubled by the fact that the trial court chose to omit the second portion of the definition of imbecility included in the 1910 version of Black's Law Dictionary, which stated that the "test of legal capacity in this condition, is the stage to which the weakness of mind has advanced, as measured by the degree of reason, judgment, and memory remaining." Although EPISD recognizes that this portion of the definition was not a model of "clarity," it nevertheless contends that it "would have provided more guidance to the jury," and would have at least alerted the jury that imbecility included a weakness of mind with respect to a person's "reason, judgment and memory." As explained above, however, the trial expressly instructed the jury that the definition of imbecility included a "weakness of mind" and a "feebleness of the intellectual faculties." And as a person's intellectual faculties includes his reason, judgment and memory, we find that the trial court's instruction clearly alerted the jury that Portillo's brain injury had to impact his abilities in those respects.
We also find that—rather than clarifying the matter for the jury—using the term, "legal capacity," may have had the opposite effect of confusing the jury. As the Texas Supreme Court has recognized, the test for legal capacity—such as a person's capacity to sign a will—"involves a legal definition and a legal test," and is distinct from the issue of a person's mental condition. See generally Carr v. Radkey , 393 S.W.2d 806, 810, 813 (Tex. 1965) (recognizing the need in will contest case to distinguishing between "(1) testimony relating purely to legal capacity, a question involving legal definitions, and (2) testimony relating to mental condition"). We therefore find no error in the trial court's decision to omit this language from the definition of imbecility in instructing the jury.
Accordingly, we conclude that the trial court provided the jury with a legally correct and sufficiently inclusive definition of "incurable imbecility," as that term was used in the Texas Labor Code.
F. The Disputed Issue on Appeal was Portillo's Entitlement to LIBs
We next consider EPISD's argument that the trial court's definition of "incurable imbecility" deviated from the definition given by the Appeals Panel in its decision, and that this constituted an impermissible "change" to the "issues" presented to the Division. In making this argument, EPISD correctly points out that in its petition for judicial review of a Division decision, an aggrieved party may only challenge the "issues" decided by the Division, and in turn, the trial in the district court is limited to those specified issues. See TEX. LAB. CODE ANN. § 410.302(b) (providing that on judicial review of issues of compensability and eligibility, a trial is "limited to issues decided by the commission appeals panel and on which judicial review is sought"). From this, EPISD asserts that the only "issue" to be considered by the jury was whether—under the same "definition" used by the Division—Portillo suffered from "incurable imbecility." According to EPISD, the trial court therefore exceeded its jurisdiction by submitting a different definition than the one used by the Division, which it contends had the effect of "moving the goalposts" in Portillo's favor, making it easier for him to meet his burden of proof at trial.
We disagree with EPISD's argument for several reasons. First, as we have previously recognized, a trial court has the authority to consider legal errors committed by the Division on judicial review. See Region XIX Serv. Ctr. v. Banda , 343 S.W.3d 480, 487 (Tex. App.—El Paso 2011, pet. denied) (issue of whether expert testimony was needed to establish a loss was a "legal question which is reviewed de novo" ). And, as explained above, the question of whether a trial court erred in defining a term used in a statute is a question of statutory construction that a court reviews de novo in a judicial review proceeding. See Chamul , 486 S.W.3d at 121. Thus, to require a trial court to use an Appeals Panel's definition of a term used in the Labor Code—even if the trial court believed the definition to be erroneous—would take away the court's authority to consider legal errors of this nature on judicial review and could lead to the absurd result of requiring a trial court to give a legally incorrect definition of a term to a jury. And as explained above, even if its definition differed from the one used by the Appeals Panel, we find that the trial court's definition was the legally correct one to use.
Equally important, we do not believe that using a different definition of the term "imbecility" somehow changed the "issue" to be decided by the jury. The trial court was ultimately charged with deciding whether the "final decision" of the Appeals Panel on compensability or eligibility was correct. See State Off. of Risk Mgmt. v. Martinez , 539 S.W.3d 266, 272–73 (Tex. 2017) (recognizing that the "issue eligible for judicial review is ‘a final decision of the appeals panel regarding compensability or eligibility’ ") (quoting TEX. LAB. CODE ANN. § 410.301(a) ). The Hearing Officer's final ruling, as affirmed by the Appeals Panel, was that: "Complainant is not entitled to Lifetime Income Benefits from September 13, 2013 through the present on a physical traumatic injury to the brain resulting in incurable insanity or imbecility." Accordingly, the "issue" on judicial review in Portillo's case was whether the Division erred in making this determination—the very question that the jury was asked to answer in the jury charge. See Pac. Employers Ins. Co. v. Dayton , 958 S.W.2d 452, 456 (Tex. App.—Fort Worth 1997, pet. denied) (recognizing that the disputed issue in employer's appeal was "whether the workers’ compensation panel correctly decided that appellee was entitled to LIBs."); Gibbs , 298 S.W.3d at 792–93 (issue presented to the hearing officer was whether claimant was entitled to lifetime income benefits).
And finally, even if we were to treat the question of how to define "imbecility," as an "issue" that the Division needed to decide in the administrative proceedings before Portillo could raise the issue in the trial court, the Division directly addressed how to define that term in the first decision that the Appeals Panel issued. We therefore conclude that the parties were free to argue over what they believed was the legally correct definition of that term in the judicial review proceedings, and in turn, the trial court was free to adopt what it believed was the correct definition of that term in instructing the jury.
Accordingly, for the reasons set forth above, we find no error in the trial court's instruction defining imbecility.
EPISD's Issue Three is overruled.
V. THE TRIAL COURT'S RESPONSE TO THE JURY'S QUESTION
In Issue Four, EPISD contends that the trial court gave an erroneous response to a note that the jury sent to the court during its deliberations, asking for "clarification or simplification of the definition of incurable imbecility." In response, the trial court instructed the jury: "Do not look up more definitions of words other than what is in the jury charge.... Use your recollection from the witnesses testimony and/or use what is in the exhibits of the trial records." EPISD objected to the second portion of the instruction, asserting that "there was no definition in the testimony or exhibits," and that it would be "confusing" to the jury to look to the record in answering the question, as it implied that the jury could "find" evidence of Portillo's imbecility there.
On appeal, EPISD raises a different challenge to the jury's response, arguing that it constituted an "improper comment on the weight of the evidence." When raising an issue on appeal, a "party is confined to the grounds of [its] objection as stated in the trial court." Knight v. Knight , 131 S.W.3d 535, 539 (Tex. App.—El Paso 2004, no pet.) ; see also Texas Dep't of Transp. v. Flores , 576 S.W.3d 782, 795 (Tex. App.—El Paso 2019, pet. denied) (recognizing that objections to a jury charge and requests for instructions "must comport with the arguments made on appeal"). Here, EPISD is raising an entirely new theory for why the response was erroneous, and we would be "hard pressed to fault" a trial court for overlooking a theory that was not presented to it. Knight , 131 S.W.3d at 539 ; see generally 4 TEX. JUR. 3D Appellate Review § 94 (2023). Accordingly, by failing to make the trial court aware of this challenge to the response, EPISD failed to preserve this issue for our review. Knight , 131 S.W.3d at 539 (citing TEX. R. APP. P. 33.1(a)(1)(A) ).
Moreover, even if we were to consider this newly-raised theory, we would not find that the trial court's response constituted an improper comment on the weight of the evidence. A trial court impermissibly comments on the weight of the evidence when it "indicate[s] the opinion of the trial judge as to the verity or accuracy of the facts in inquiry." In re M.S. , 115 S.W.3d 534, 538 (Tex. 2003). By example, if a trial court directs the jury to consider a particular item of evidence, it risks making an impermissible comment on the evidence. See Bartlett v. State , 270 S.W.3d 147, 151–52 (Tex. Crim. App. 2008) (a judicial instruction that singles out a particular piece of evidence may constitute an impermissible comment on the weight of the evidence because such an instruction "singles out that particular piece of evidence for special attention"). Here, however, the trial court did not direct the jury to consider one particular piece of evidence, and instead directed the jury to consider the entire record, which as explained below, contained conflicting evidence on whether Portillo suffered from incurable imbecility. Thus, the judge's response did not suggest that it had formed an opinion that the facts presented at trial were in Portillo's favor, or that it had otherwise formed an opinion of the merits of Portillo's case.
EPISD's Issue Four is overruled.
VI. THE ULTIMATE QUESTION TO THE JURY
In Issue One, EPISD argues that the trial court erred in asking the jury to answer the following question: "Does Alejandro Portillo suffer from incurable imbecility from September 13, 2013, as a result of a physically traumatic injury to the brain ?" In the trial court, EPISD objected that the phrasing framed the question in the present tense by using the term "does," asserting that the question in effect asked the jury whether it believed Portillo suffered from incurable imbecility at the time of trial, rather than at the time of his contested case hearing. In its place, EPISD proposed the following question: "Do you find that Alejandro Portillo sustained an injury to his brain that caused him to be an "incurable imbecile," on or before July 5, 2016, the date of the Texas Workers’ Compensation Commission's decision?"
On appeal, EPISD renews its argument, and contends that the trial court lacked jurisdiction to ask the jury about Portillo's condition at the time of trial, instead of at the time of the administrative hearing. EPISD relies on the principle, as described above, that on judicial review a trial court may only consider whether the claimant was entitled to lifetime income benefits at the time of the administrative proceedings, rather than at the time of trial. See Jackson , 225 S.W.3d at 736 ; Gibbs , 298 S.W.3d at 792–93 (reaffirming that a trial court's jurisdiction on judicial review is limited to the worker's entitlement to lifetime benefits as of the date of the contested case hearing). Although we agree with EPISD's view of the law, we find no reversible error in the question the trial court asked the jury to answer.
We note that in the trial court, EPISD suggested that the correct date for the jury's consideration was the date of the second Appeals Panel decision (July 5, 2016), while on appeal, it suggests that the correct date was November 5, 2015, the date of the contested case hearing. Given our resolution of the issue, we need not determine which was the correct date.
Significantly, the trial court did not ask the jury to consider whether Portillo first became entitled to LIBs after the date of the contested case hearing. Instead, it required the jury to find that Portillo suffered from incurable imbecility before that date—from the date of his accident on September 13, 2013, and, as Portillo points out, this placed a more onerous burden on him than the law required. By asking the jury whether Portillo "does" suffer from incurable imbecility "from" the date of his accident, the question required the jury to determine whether Portillo continuously suffered from "incurable imbecility" beginning on the date of his accident to the present. And, as Portillo points out, this directly corresponds with the notion that his condition was in fact "incurable," or in other words, that it began in 2013 and that it never resolved after that time.
We therefore conclude that any error in the trial court's question to the jury worked in EPISD's favor, as it placed a higher burden on Portillo to establish an earlier eligibility date than required by the Labor Code, and therefore did not lead to an improper judgment. Accordingly, we do not find this to be grounds for reversal of the jury's verdict. See Gunn , 554 S.W.3d at 675.
EPISD's Issue One is overruled.
VII. SUFFICIENCY OF THE EVIDENCE
In Issue Seven, EPISD contends that the evidence submitted at trial was both "legally and factually insufficient" to support the jury's finding that Portillo suffered from that condition. For the reasons set forth below, we disagree.
A. Standard of Review
In determining whether evidence is legally sufficient to support a jury finding we consider all evidence favorable to the finding if a reasonable fact finder could, and disregard all evidence contrary to the finding unless a reasonable fact finder could not. City of Keller v. Wilson , 168 S.W.3d 802, 810 (Tex. 2005) ; E. Texas Educ. Ins. Ass'n v. Ramirez , 631 S.W.3d 908, 918 (Tex. App.—El Paso 2021, pet. denied). Evidence is legally insufficient 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. City of Keller , 168 S.W.3d at 810. If more than a scintilla of evidence supports the questioned finding, the "no evidence" point fails. State Office of Risk Mgmt. v. Escalante , 162 S.W.3d 619, 624 (Tex. App.—El Paso 2005, pet. dism'd). The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. City of Keller , 168 S.W.3d at 827 ; Banda , 343 S.W.3d at 484–85.
In reviewing a challenge to the factual sufficiency of the evidence supporting a vital fact, we consider, weigh, and examine all the evidence in the record, both supporting and against the finding, to decide whether the verdict should be set aside. Banda , 343 S.W.3d at 489 (citing Plas–Tex, Inc. v. U.S. Steel Corp. , 772 S.W.2d 442, 445 (Tex. 1989) ). When a party attacks the factual sufficiency of an adverse finding on an issue on which the opposing party has the burden of proof, we should set aside the verdict only if the evidence supporting the jury finding is so weak as to be clearly wrong and manifestly unjust. Id. (citing Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986) ); see also Ramirez , 631 S.W.3d at 918 ("When reviewing the factual sufficiency of evidence, we examine all the evidence and set aside a finding only if the evidence supporting the jury finding is so weak as to be clearly wrong and manifestly unjust."). In conducting our review of either factual or legal sufficiency, we keep in mind that the fact finder is the sole judge of the credibility of witnesses and the weight to be given their testimony, and we therefore cannot substitute our judgment for that of the jury. Ramirez , 631 S.W.3d at 918.
In reviewing the sufficiency of the evidence, we will not consider the evidence that EPISD contends was wrongfully admitted at trial, and we will instead address the admissibility of such evidence—and whether its admission harmed EPISD's case—in a separate discussion below.
B. The Evidence was Legally Sufficient to Support the Jury's Verdict
We first consider the legal sufficiency of the evidence and conclude that Portillo provided more than a "scintilla" of evidence from which a jury could have found that Portillo suffered from incurable imbecility as the result of his traumatic brain injury.
1. The Need for Expert Medical Testimony and Evidence
As a general proposition, expert witness testimony or other medical evidence is required in a workers compensation case "to establish the nature of an injury, whether it is temporary or permanent, and the extent of disability or incapacity resulting from the injury." Banda , 343 S.W.3d at 487 (citing Mendoza v. Fidelity & Guaranty Ins. Underwriters, Inc. , 606 S.W.2d 692, 695 (Tex. 1980) ). Such evidence is needed on those factors as they are generally considered to be factors that are "beyond the knowledge or experience of the layperson." Id. , (citing FFE Transp. Services, Inc. v. Fulgham , 154 S.W.3d 84, 89–90 (Tex. 2004) ). But once those questions have been answered, the ultimate question of whether the injury left the claimant in the condition required to receive an award of LIBs—in this case, incurable imbecility as defined in the jury charge—does not require expert testimony, as the answer to that question is not beyond the knowledge and experience of the jurors. Id. at 487–88 (recognizing that the ultimate question of whether the claimant's injuries to her hand and feet rendered them of no "substantial utility" to her was a question the jury could answer without expert testimony). We therefore review the record to determine whether there is sufficient medical evidence to support the jury's finding of the necessary factors, and conclude that there was.
a. The Nature of the Injury
First, as the parties appear to agree, the record contains sufficient medical evidence to establish the nature of Portillo's injury—that he suffered from a traumatic brain injury resulting from his fall. Drs. Cavaretta and Spier both diagnosed Portillo with this condition based on their review of his medical records and their own physical examinations of him. And while EPISD may disagree with how severe that injury was, or the nature of the symptoms that Portillo suffered as its result, EPISD does not point to anything in the record to suggest that Portillo did not suffer from any such injury.
Dr. Feldman also stated in his report that he believed, "based on reasonable medical probability, that Mr. Portillo suffered a [physically] traumatic injury to the brain on 9/13/2013, when he fell 40 feet down a ladder and struck his head." And while EPISD is correct that Dr. Feldman may not have been qualified to diagnose Portillo with a brain injury, as he was not a medical doctor, he testified at trial that he based his conclusion on the medical records he reviewed in forming his opinion. In any event, even discounting Dr. Feldman's testimony, there is sufficient other evidence in the record from Drs. Spier and Cavaretta—both of whom are medical doctors—to support a finding that Portillo did in fact suffer a traumatic brain injury as the result of his fall.
b. The Extent of Disability Resulting from the Injury
Next, we consider whether the record contains sufficient medical evidence to support a finding that Portillo suffered a "disability" as the result of his injury, i.e., that he suffered from "incurable imbecility." EPISD contends that there was no direct testimony to support this factor, apparently because, in describing Portillo's condition, none of the doctors who examined Portillo used the exact language set forth in the jury charge to define incurable imbecility; in other words, they did not state that Portillo suffered from an "advanced decay and feebleness of the intellectual faculties," or that he suffered from a "weakness of mind" that left him with "only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to the physical wants and habits." While none of the doctors parroted the exact language found in the jury charge, as explained below, at least three of the doctors who examined Portillo (Feldman, Cavaretta, and Spier), all reported that Portillo suffered from symptoms that would support a finding that he did in fact suffer from a feebleness of his intellect and a weakness of mind—which we conclude was sufficient to support the jury's finding on the ultimate issue of whether Portillo suffered from incurable imbecility. See Banda , 343 S.W.3d at 487–88 (recognizing that claimant need not provide expert witness evidence on the "ultimate issue" to be answered by the jury).
First, Portillo submitted Dr. Feldman's reports in which he expressed his belief that Portillo's brain injury had caused him to suffer both "social dysfunction" and "cognitive dysfunction," which affected the quality of his personal life, had rendered him "permanently unemployable," and had ultimately caused him to suffer from "incurable imbecility." And at trial, Dr. Feldman further explained that "cognitive dysfunction" relates to "confusion"—which he believed Portillo exhibited—as well as "thought processing" and "memory recall," which he described in Portillo's case as being "very poor." And he concluded his testimony by observing that Portillo's "cognitive and psychological functioning" were "severely affected" by his traumatic brain injury [.] In addition, the Division's doctor, Dr. Cavaretta, stated in his report that, based on his review of Portillo's medical records and his physical examination of him, Portillo suffered from "significant cognitive and emotional deficits," as well as "significant impairment in his mental status," resulting from his head injury. Dr. Cavaretta also expressed his opinion that Portillo's symptoms, which included "significant difficulty with balance," attention deficits, anxiety, depression, and "impaired executive function, concentration, recent memory, poor judgment, poor abstract thinking, and emotional instability[,]" were the result of his head injury. Although he noted that Portillo was "able to carry out most of the activities of daily living," he nevertheless concluded that Portillo was "markedly limited" in engaging in "more complex activities," such as driving and following directions. And he concluded that Portillo's deficiencies affected his "ability to fully take care of himself [and] to pursue his previous occupation."
In its reply brief, EPISD adds a challenge to Dr. Feldman's qualifications to provide evidence on this issue, pointing out that he was not a medical doctor, and EPISD further challenges the methods that Dr. Feldman used to reach his conclusions. EPISD, however, did not raise these issues in its opening brief, and we will not consider new issues raised for the first time in a reply brief. Watret v. Watret , 623 S.W.3d 555, 563–64 (Tex. App.—El Paso 2021, no pet.) (citing Tex. R. App. P. 38.3 ); In Interest of M.D.G. , 527 S.W.3d 299, 302–303 (Tex. App.—El Paso 2017, no pet.). Moreover, even if we were to exclude Dr. Feldman's findings from our analysis, the findings of Drs. Cavaretta and Spier—both of whom were medical doctors—would be sufficient to establish that Portillo suffered from symptoms that would support the jury's finding of imbecility.
EPISD also finds it significant that Dr. Cavaretta gave Portillo a 14% impairment rating, and that there was nothing in Dr. Cavaretta's report to suggest that Portillo's "mental state [was] worse than the fourteen (14%) impairment rating[.]" As EPISD acknowledges in its brief, however, the impairment rating was made to set the amount of Portillo's temporary benefits, and as its own claims adjustor explained at trial, impairment ratings of this nature are not relevant to the question of whether a person is entitled to LIBs. See Am. Zurich Ins. Co. v. Samudio , 370 S.W.3d 363, 365 (Tex. 2012) (recognizing that an impairment rating is necessary to determine the amount and duration a worker may receive impairment benefits under the Labor Code)
And finally, Dr. Spier reported that, based on his examination of Portillo in December 2013, he concluded that Portillo was suffering from confusion, headaches, dizziness and "decreased balance [and] attention" as the result of his traumatic brain injury. He also reported that Portillo had "concussive symptoms," despite negative imaging, and had "[c]hanges in balance, cognition and poor headache control." And over a year after his accident, Dr. Spier reported that Portillo continued to suffer from "post concussive symptoms" as the result of his "previous mild, but complicated traumatic brain injury [.]"
We conclude that this medical evidence was sufficient to support a finding on the nature of Portillo's "disability, and the cause of that disability, i.e., that his brain injury had caused him so suffer the type of "weakness of mind" or "feebleness of [his] intellectual faculties" as described in the jury charge.
c. The Permanency of Portillo's Condition
We also conclude that the record contained sufficient medical evidence that Portillo's condition was permanent, or in the words of the statute, that his condition was "incurable." In his report, Dr. Feldman expressed his opinion that by the time he evaluated Portillo in June 2014, almost a year after his accident, Portillo's symptoms were "worsening," and he then stated: "In my opinion, based on reasonable medical probability and my evaluation, it appears unlikely that Mr. Portillo's cognitive and social functions will be restored" even with cognitive therapy. As well, he reported that he believed Portillo's condition had rendered him "permanently unemployable." Dr. Feldman confirmed this diagnosis at trial, adding his opinion that "[t]o have such a fall in such a situation and hitting your head and not having permanent brain damage would be beyond unusual." As well, Dr. Cavaretta also provided a similar diagnosis, stating that although he believed that "mild improvement" could be expected from receiving physical therapy, he believed that "[a]dditional therapies would not significantly result in any major improvement in [Portillo's] mental or physical condition[.]" In addition, as set forth above, Dr. Spier reported that Portillo's diagnosis remained the same over a year after his accident. Importantly, we note that EPISD provided no medical evidence to support a contrary finding that Portillo's symptoms had improved, or could improve, with any type of therapy or medical treatment. We therefore conclude that there was sufficient medical evidence to support a finding that Portillo's condition was permanent.
Accordingly, we conclude that Portillo presented more than a "scintilla" of evidence at trial to establish that he suffered from incurable imbecility as the result of his traumatic brain injury, which was legally sufficient to support the jury's verdict. See Ramirez , 631 S.W.3d at 925 (finding that appellee's testimony about her condition, together with that of her treating physician, provided more than a scintilla of evidence that her injury to her feet—which resulted from a fall at work—was the producing cause of her total loss of use of both feet at or above the ankles, and her consequent inability to walk).
C. The Evidence was Factually Sufficient to Support the Verdict
We also conclude that the evidence was factually sufficient to support the jury's verdict. As explained above, in a factual sufficiency review, we review not only the evidence that Portillo presented at trial to support his claim that he suffered from incurable imbecility, but the conflicting evidence that EPISD presented to support its claim that he did not, to determine whether the jury's verdict was "clearly wrong and manifestly unjust." See Banda , 343 S.W.3d at 489.
EPISD contends that the record contains overwhelming evidence that Portillo did not suffer from imbecility such that the jury's verdict was in fact clearly wrong and unjust. In particular, EPISD contends that several of the doctors who examined Portillo stated that in general, they found his mental status was normal, that "he was able to follow commands, he was lucid, he did not have consistent symptoms of problems with cognition, and his comprehension was normal[.]" Yet a closer look at the evidence to which EPISD refers reveals that it is conflicting at best. First, EPISD refers to the reports made by Drs. Kwasi Adzotor and Ajai Agarwal at Sierra Providence East Medical Center, who examined Portillo on April 16, 2015, contending that both doctors found Portillo's mental condition to be normal. These two doctors, however, provided conflicting reports on Portillo's mental condition. For example, while Dr. Agarwal described Portillo as being "alert, oriented [and] interactive," Dr. Adzotor provided the following statement about Portillo: "Patient was somnolent, poorly arouses. Soft speech, tangential language, fund of knowledge, affect impaired." Dr. Adzotor also stated that Portillo was "encephalopathic and a very poor historian."
According to the National Institute of Neurological Disorders and Stroke, "Encephalopathy is a term for any disease of the brain that alters brain function or structure." See https://www.ninds.nih.gov/health-information/disorders/encephalopathy
EPISD also points to a report that Dr. Spier made, in which he stated that on one visit, Portillo's "speech is clear" and he was "alert [and] oriented." As even EPISD points out, however, Dr. Spier also reported that Portillo suffered from "confusion," had "[d]ecreased balance [and] attention," had changes in "cognition," and had a "complicated traumatic brain injury consistent with post concussive symptoms" that still existed over a year and a half after his accident. And finally, EPISD also finds it significant that another doctor, Dr. Javed Iqbal, who examined Portillo in June 2015, reported that during his exam, Portillo demonstrated that his speech was fluent and could follow commands; however, we note that Dr. Iqbal also stated that his neurological examination revealed that Portillo suffered from dizziness, fainting, headaches and numbness, and that Portillo had complaints of other neurological symptoms.
One of the medical records to which EPISD refers is a record from Dr. Zoraya Parrilla, who administered a Botox shot to Portillo due to his ongoing headaches in November 2017. But based on EPISD's own argument, this record would not be relevant to Portillo's condition, as Dr. Parrilla treated Portillo two years after the contested case hearing concluded. Moreover, Dr. Parrilla's treatment of Portillo was limited to administering Botox injections for his migraine headaches, and nothing more.
Accordingly, while there may have been some inconsistencies in the medical records that were presented at trial, they are not so significant that they render the jury's verdict factually insufficient. To the contrary, as discussed above, the medical records contained ample information from which a jury could conclude that Portillo did in fact suffer from incurable imbecility as the result of his traumatic brain injury. And along with the medical evidence, Portillo himself testified at trial regarding his symptoms and condition after the accident, describing his dizziness, his inability to work in his chosen field or engage in his former hobbies, his need for assistance with everyday tasks, his inability to safely drive a car, and his general struggles and frustration with the limitations he faced.
Accordingly, while there are conflicts in the record, our review of the record as a whole, reveals that they are not so overwhelming or of such significance to warrant a finding that the jury's verdict was against the great weight of the evidence or that it was otherwise clearly wrong or manifestly unjust. See Ramirez , 631 S.W.3d at 926 (finding that—despite conflicts in the evidence—the record contained factually sufficient evidence to uphold jury's verdict finding claimant to have suffered the permanent loss of her ability to walk resulting from a fall at work).
EPISD's Issue Seven is overruled.
VIII. THE TRIAL COURT'S RULINGS ADMITTING PORTILLO'S EVIDENCE
In Issues Two and Five, EPISD contends that the trial court erroneously admitted the testimony of Portillo's brother, Hector Portillo, and his daughter, Roxanne Portillo, for two separate reasons. First, EPISD contends that neither witness was disclosed at the administrative hearing level as a potential witness, and that the trial court was therefore required to exclude their testimony from evidence. And second, EPISD contends that the trial court erred in allowing Roxanne to testify about Portillo's worsening condition after the date of the administrative hearing, and her perception that it was necessary to move him to live with her in San Diego in 2018 due to his deteriorating condition. As explained below, we conclude that, even assuming that the admission of their testimony was error, any such error was harmless given the cumulative nature of their testimony. A. Standard of Review
We review a trial court's decision to admit or exclude evidence in a judicial review proceeding for an abuse of discretion. See Allen , 15 S.W.3d at 528 ; Escalante , 162 S.W.3d at 626. A trial court abuses its discretion when it acts without reference to any guiding rules or principles, or when it acts in an "arbitrary or unreasonable" manner. See also Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241–42 (Tex. 1985).
However, even when a trial court abuses its discretion in admitting certain evidence, reversal is appropriate only if the error was harmful—that is, if it "probably resulted in an improper judgment." U-Haul Intern., Inc. v. Waldrip , 380 S.W.3d 118, 132 (Tex. 2012) ; TEX. R. APP. P. 44.1. "Probable error is not subject to precise measurement [and] is something less than certitude," and is instead "a matter of judgment drawn from an evaluation of the whole case from voir dire to closing argument, considering the state of the evidence, the strength and weakness of the case, and the verdict." TXI Transp. Co. v. Hughes , 306 S.W.3d 230, 242–43 (Tex. 2010) (quoting Reliance Steel & Aluminum Co. v. Sevcik , 267 S.W.3d 867, 871 (Tex. 2008) ) (internal quotation marks omitted). A successful challenge to an evidentiary ruling usually requires the complaining party to demonstrate that the judgment turns on the evidence excluded or admitted. Flores , 576 S.W.3d at 798 (citing City of Brownsville v. Alvarado , 897 S.W.2d 750, 753–54 (Tex. 1995) ). And when the wrongful admission of evidence is merely cumulative of other properly-admitted evidence on the same issue, it will typically be considered harmless error. See Thornhill v. Ronnie's I-45 Truck Stop, Inc. , 944 S.W.2d 780, 793 (Tex. App.—Beaumont 1997, writ vacated) (any error in admitting witness's testimony was harmless where the testimony was merely cumulative of other evidence, the admission of which appellant did not challenge on appeal), (citing Mancorp., Inc. v. Culpepper , 802 S.W.2d 226, 230 (Tex. 1990) ) (finding no harm in the erroneous admission of evidence, where party presented other sufficient evidence to establish critical issue in the case).
B. Did the Trial Court Err in Admitting Witness Testimony that may not have been Fully Disclosed?
The first question presented in EPISD's complaint is whether the trial court erred in admitting the testimony of Hector and Roxanne due to Portillo's alleged failure to disclose them as potential witnesses with knowledge of his condition prior to his contested case hearing, as required by the Labor Code.
1. Applicable Law
Specifically, § 410.160 of the Labor Code provides that prior to a contested case hearing, the parties are required to exchange information within the time prescribed by commission rules, to include: "the identity and location of any witness known to the parties to have knowledge of relevant facts[.]" TEX. LAB. CODE ANN. § 410.160(3), (4). And the Labor Code further provides that a "party who fails to disclose information known to the party or documents that are in the party's possession, custody, or control at the time disclosure is required ... may not introduce the evidence at any subsequent proceeding before the commission or in court on the claim unless good cause is shown for not having disclosed the information or documents ..." Id. § 410.161 (emphasis supplied). As our supreme court has written, "[t]his procedural limitation is akin to those in the rules of civil procedure requiring litigants to disclose witnesses and information at a particular time or be barred from offering that evidence at trial [and] encourages parties to present relevant evidence during administrative proceedings, thus increasing the accuracy and efficiency of those proceedings." Garcia , 893 S.W.2d at 528. An objection based on § 410.161 involves a two-step process. First, the party seeking to exclude the witness must show that the other party knew about the witness and did not disclose their identity or location before the Division. See State Off. of Risk Mgmt. v. Trujillo , 267 S.W.3d 349, 353 (Tex. App.—Corpus Christi 2008, no pet.). Second, if that showing is made, the burden shifts to the witness's sponsor to show good cause for failing to timely disclose the witness. Id.
For the purposes of our analysis, we will assume, without deciding, the trial court erred in allowing Hector and Roxanne to testify in contravention of § 410.161. Next, we turn to the testimony to determine if the error resulted in harm.
2. Hector and Roxanne's Testimony
Hector and Roxanne were permitted to testify regarding their observations of how the accident had changed Portillo. In particular, Hector described Portillo prior to the accident as a "hard worker," and a very active and social individual who was highly involved with his family and hobbies; however, he recalled that after the accident, Portillo was no longer able to work in his chosen field or participate in his hobbies, could no longer drive, became easily confused and frustrated, was more withdrawn, and needed assistance with everyday tasks, such as showering and buying groceries. Roxanne painted a similar picture of the changes in Portillo, also recalling that prior to the accident, Portillo was a very social individual, who was actively involved with his family and hobbies, but that after the accident he was a "completely different man," who became very confused, needed assistance with everyday tasks, and could no longer engage in his chose vocation or the other activities he previously enjoyed.
3. Analysis
EPISD has failed to convince us that it was harmed by the admission of Hector and Roxanne's testimony. EPISD argues that it was "highly prejudiced" by the admission of their testimony, contending that these two witnesses provided the "only evidence ... that Portillo was unable to care for himself, unable to live alone, and unable to perform routine daily tasks without assistance." As set forth above, however, Roxanne and Hector were not the only witnesses who testified on these subjects, as Portillo himself testified that he needed assistance with everyday tasks, such as showering, and that he often had individuals stay with him to help him with such tasks. In addition, Dr. Cavaretta's records indicated that although Portillo was able to "perform satisfactorily most activities of daily living," he had "definite deficiencies in his ability to fully take care of himself," and his ability to perform more "complex activities," such as driving, was "markedly limited." Accordingly, we conclude that Hector and Roxanne's testimony on the issue of whether Portillo was able to live independently and tend to his everyday physical needs was merely cumulative of other properly-admitted evidence.
More importantly, we note that under the Chamul standard as set forth in the jury charge, the question of whether Portillo was able to perform everyday physical tasks or was otherwise able to live independently was not critical to a finding that he suffered from incurable imbecility; instead, as explained above, the key question was whether Portillo's higher intellectual reasoning was compromised, and whether he was reduced to the "most common and ordinary ideas [that] relate almost always to physical wants and habits." Chamul , 486 S.W.3d at 125. Thus, by its very nature, this standard does not rule out the possibility that Portillo had the capacity to address his everyday "physical" needs, yet was still suffering from imbecility due to his inability to perform tasks that required a higher level of intellectual abilities. And, as explained above, there was ample evidence presented to the jury to support a finding that Portillo's ability to perform such higher-level tasks was in fact significantly impaired.
Accordingly, we conclude that EPISD failed to establish that the trial court's decision to allow Hector and Roxanne to testify at trial probably resulted in an improper verdict.
EPISD's Issue Five is Overruled.
C. Roxanne's Testimony Regarding Portillo's Current Condition
In Issue Two, EPISD argues that the trial court erred by allowing Portillo to introduce evidence of his condition after the Division's decision. At trial, EPISD lodged a running objection to the admission of any evidence of Portillo's condition after the hearing date, contending that any such evidence was inadmissible as it was beyond the permissible inquiry in a modified de novo proceeding. On appeal, EPISD limits its challenge to whether the trial court erroneously allowed Roxanne to testify to Portillo's worsening condition after the contested case hearing, and that it was necessary to move him to live with her in San Diego in 2018 due to his deteriorating condition.
EPISD relies primarily on Gibbs and Jackson , which as explained above, provide that on judicial review of an administrative decision either granting or denying a request for LIBs, a trial court may only consider whether a claimant was entitled to LIBs as of the date of the contested case hearing and "lack[s] jurisdiction to consider [a claimant's] eligibility for LIBs beyond [that] date." Jackson , 225 S.W.3d at 736–37 ; see also Gibbs , 298 S.W.3d at 792. We need not decide, however, whether the admission of Roxanne's testimony violated this rule, as we once again conclude that EPISD has not demonstrated that it was harmed by the admission of her testimony.
Portillo contends that Jackson and Gibbs are no longer good law following the Texas Supreme Court's opinion in Liberty Mut. Ins. Co. v. Adcock , 412 S.W.3d 492, 494–95, 497–98 (Tex. 2013). We disagree. In Adcock , the court held that once a final decision has been made that a claimant is permanently disabled and is entitled to an award of LIBs, the Division may not later "reopen" the case if it believes the claimant's condition improved. Id. at 494–95, 497–98, (citing Tex. Lab. Code Ann. § 408.161(a)(4), (b) ). But the court explicitly states that the converse is not true—if a claimant was first denied LIBs at a contested case hearing, but his condition later deteriorated, his recourse would be to initiate a new administrative proceeding. Id.
In support of its harm analysis, EPISD once again contends that Roxanne was the only witness to testify about certain facts, including Portillo's inability to live alone, his inability to handle his finances, his inability to drive a car, his tendency to become very confused, and her general observation that he is a "completely different man now." And EPISD further contends that Roxanne's testimony was "wholly based on Portillo's condition after [he] moved to San Diego to live with [her] in 2018." Neither argument, however, accurately reflects the state of the record.
First, although at least a portion of Roxanne's testimony related to her observations of Portillo after he moved to her home in 2018, she also provided a general description of her father before his accident—when he was active and involved in his work, hobbies and family life—and a general description of how the injury had changed him and how it had limited his ability to take care of himself, without reference to any particular date. Similarly, as explained above, Portillo provided similar testimony regarding how the injury had changed him and the limitations he faced, without providing an exact timeline of when each of his symptoms began or when they worsened. And on cross-examination, EPISD did not attempt to develop a more distinct timeline regarding the development of Portillo's symptoms.
More importantly, as was also explained above, Portillo was evaluated prior to the contested case hearing by Drs. Cavaretta, Spier, and Feldman, all of whom concluded that Portillo suffered from the same or similar symptoms as Roxanne described, such as exhibiting signs of confusion, attention deficits, memory issues, and his inability to perform any complex tasks, such as driving. And as EPISD itself appears to recognize, the medical records were of primary importance in determining whether Portillo suffered from incurable imbecility as the result of his traumatic brain injury, making the testimony of any factual witnesses, such as Roxanne, of far less importance to the question of whether Portillo suffered from incurable imbecility. See generally Banda , 343 S.W.3d at 487 (recognizing the need for expert testimony or other medical evidence in a workers’ compensation case to establish the existence and nature of a disability).
Accordingly, in reviewing the record as a whole, we conclude that EPISD failed to meet its burden of establishing that any error in admitting Roxanne's testimony regarding Portillo's condition after the contested case hearing probably resulted in an improper verdict. See Lopez-Juarez v. Kelly , 348 S.W.3d 10, 26 (Tex. App.—Texarkana 2011, pet. denied) (where admitted testimony was "brief" and where other witnesses properly testified to the critical issue in the case in much more detail, the admission of the erroneously admitted testimony did not cause the rendition of an improper judgment).
EPISD's Issue Two is overruled.
IX. THE TRIAL COURT'S EXCLUSION OF EPISD'S EVIDENCE
In Issue Six, EPISD contends that the trial court committed cumulative error by excluding four different items of evidence that it sought to introduce at trial. We examine each item of excluded evidence separately, applying the same abuse-of-discretion standard of review set forth above in determining whether the trial court erred in excluding the evidence, and the same harmless-error standard discussed above that requires us to determine whether any error in excluding the evidence probably resulted in an "improper judgment" that requires reversal. Gunn , 554 S.W.3d at 658. And in conducting our harm analysis, we will again review the entire record to determine whether the excluded evidence was crucial to a key issue in the case, or whether it was cumulative of other evidence in the record. Id. (recognizing that the "[e]xclusion of evidence is likely harmless if the evidence was cumulative" of other evidence in the record); see also Loftin v. Loftin , 630 S.W.3d 369, 373 (Tex. App.—El Paso 2021, no pet.) (citing JBS Carriers, Inc. v. Washington , 564 S.W.3d 830, 840 (Tex. 2018) ).
A. The Certified Copy of the Hearing Officer's Decision and Order
EPISD first contends that the trial court erred by refusing to admit a certified copy of the Hearing Officer's decision and order denying Portillo's request for LIBs, as permitted under § 410.306 of the Labor Code. In support of its argument, EPISD points out that § 410.306 provides that a certified copy of the Division's records is admissible at trial "to the extent allowed under the Texas Rules of Evidence." TEX. LAB. CODE ANN. § 410.306(b) ; see also Garcia , 893 S.W.2d at 515 n.11 (recognizing the admissibility of Division records under § 410.306(b) ). And it further points out that the Labor Code also provides that the records of a contested case hearing is deemed admissible at trial. See TEX. LAB. CODE ANN. § 410.302(a) ("The records of a contested case hearing conducted under this chapter are admissible in a trial under this subchapter in accordance with the Texas Rules of Evidence.").
At trial, Portillo's attorney objected to the admission of the Hearing Officer's decision and order on two grounds. First, she pointed out that it contained findings of fact, which she argued was simply a summary of Portillo's testimony, and in effect was merely the Hearing Officer's opinion of what he testified to at the hearing. Second, Portillo's attorney objected that the decision contained "legal opinion[s] and conclusions," which would be improper for the jury to consider. EPISD then offered to redact the legal conclusions and to focus solely on the section of the decision in which the Hearing Officer summarized Portillo's testimony, contending that Portillo's "testimony" was admissible as an exception to the hearsay rule for statements made by a party-opponent. See TEX. R. EVID. 801(2) (excluding an "opposing party's statement" from the rule against hearsay). In addition, during its formal offer of proof, EPISD argued that the decision was admissible "under the public records exception to hearsay [in] Rule 803," as well as under the Labor Code as a certified record of the administrative proceedings. See id. 803(8)(A)(III), (B) (excluding from the hearsay rule certain public records and statements, including "factual findings from a legally authorized investigation" unless the opposing party establishes that the record or statements "indicate a lack of trustworthiness"). We need not, however, decide whether the trial court erred in refusing to admit the Hearing Officer's decision, as EPISD has failed to convince us that excluding the decision probably resulted in an improper verdict.
In arguing that it was harmed by the exclusion of the decision, EPISD focuses solely on the Hearing Officer's finding that Portillo had testified at the hearing that "he lives by himself and takes care of the majority of his needs, although there are times that a friend assists him while he showers." EPISD again contends Portillo's ability to live alone was a critical factor in determining whether Portillo suffered from imbecility. And EPISD contends that because Portillo testified at trial that he did not live alone after his accident, its inability to impeach Portillo with the Hearing Officer's finding caused it significant harm. We disagree for several reasons.
First, as explained above, Portillo's ability to live alone was not a critical factor in determining whether Portillo suffered from imbecility, as it did not directly reflect on whether his brain injury affected his "intellectual faculties," as opposed to his ability to address his everyday physical needs. Second, we agree with Portillo that simply introducing the Hearing Officer's finding on this issue could have been misleading to the jury, as EPISD did not attempt to submit the transcript from the hearing to verify exactly what Portillo said at the hearing. And the nuances of his testimony were important, as his testimony at trial was less than clear about what he meant when he testified that he did not live alone after the accident. While Portillo did testify at trial that he lived alone, he also testified that a friend moved in with him after the accident to assist him, that he lived with his sister in El Paso for "most of the time" after his accident, and that his family and friends came over regularly to "stay" with him and help him with various everyday tasks, such as showering. Further, when EPISD's attorney cross-examined him about whether he testified differently at the contested case hearing, Portillo again responded that he did not live alone, as he had "people staying there with [him"] to assist him with his various needs. It is therefore unclear whether Portillo's testimony at the hearing did in fact differ from his trial testimony, or whether the Hearing Officer may have made an overly-broad generalization in summarizing his hearing testimony, which may have failed to reflect its exact nature.
In any event, EPISD was able to impeach Portillo's testimony on the issue of whether he was inconsistent in claiming that he was unable to live alone by pointing to Portillo's medical records reflecting that he reported to various doctors who treated him from November 2013 through June 2015, including Dr. Feldman, that he lived alone and that he managed to perform at least some everyday tasks without assistance. In fact, EPISD put the record of Portillo's March 2015 office visit at Sierra Providence East Medical Center on the screen while cross-examining Portillo at trial, and while Portillo still denied that he lived alone, he admitted that the record reflected that he had in fact told his doctor otherwise. In addition, EPISD's counsel again put this same record on the screen when questioning one of its own witnesses, and at counsel's request, the witness read from the portion of the record containing this same information.
We thus conclude that any error in excluding the Hearing Officer's findings on the issue of whether Portillo lived alone after his accident did not harm EPISD's case given its insignificance to the case and its cumulative nature. See generally Gunn , 554 S.W.3d at 668.
B. Portillo's Medical Records
EPISD next argues that the trial court erred in excluding copies of Portillo's medical records from three providers. However, we once again find that any error in excluding these records did not harm EPISD's case, as they were all cumulative of other records introduced into evidence.
1. EPISD's Arguments
At trial, EPISD sought to introduce the records of the following: (1) Portillo's initial visit at Sierra Medical Center on September 13, 2013, the day of his accident; (2) his visit with the El Paso Orthopedic Surgery Group on September 29, 2013; and (3) his visit at Sierra Providence East Medical Center on March 26, 2015. EPISD, however, did not provide an affidavit from the custodian of records of any of the medical facilities, and did not have the custodian of records from any of the facilities present at trial to testify to the authenticity of any of these records. Instead, EPISD sought their admission through witness Jesse Velasquez, a senior claims administrator for Athens Administrators, which served as the third-party claims administration company for EPISD. Portillo, however, objected that the records were not properly authenticated, and were hearsay that did not come within the business records exception to the hearsay rule. On voir dire, Velasquez acknowledged he did not create the records and was unaware of the medical facilities’ record-keeping procedures or the manner in which the records were prepared. He also testified, however, that he had received the records from Portillo's medical providers in the regular course of his business in handling Portillo's claim, had incorporated them into his files, and had he relied on them as being trustworthy. Nonetheless, the trial court ruled that the records were inadmissible because EPISD had failed to provide an affidavit from the custodian of the medical facilities that initially prepared the records, and because Velasquez lacked sufficient knowledge of how they were prepared or maintained.
We need not, however, resolve the question of whether Velasquez was qualified to authenticate the records, as we reject EPISD's argument that the exclusion of the records resulted in reversible error.
2. Any Error in Excluding the Records was Harmless Given Their Cumulative Nature
EPISD contends that excluding the medical records was harmful as the records contained two items of evidence crucial to its case: (1) medical evidence showing that the CT Scans of Portillo's brain, including the one taken on the day of his accident, were all normal; and (2) evidence that Portillo did not report having any "neurological complaints" during a visit with a doctor at El Paso Orthopedic Surgeons on September 19, 2013, six days after his accident. For the reasons set forth below, we disagree.
a. Evidence of Portillo's CT Scans
First, the fact Portillo underwent five CT scans to his brain, all of which were read as normal, was well-documented in various other medical records that were admitted at trial. And at least two witnesses, including Velasquez and Portillo's own daughter, Roxanne, testified they had reviewed Portillo's medical records and both agreed that all of Portillo's CT scans had been read as normal or "unremarkable." As well, EPISD's attorney argued to the jury that all of Portillo's CT scans were read as normal, and Portillo never tried to contradict that fact. Thus, the admission of other records reflecting that Portillo had normal CT scans did not result in any harm to EPISD, given the cumulative nature of the records.
b. Evidence of the Lack of Neurological Complaints
We similarly conclude that EPISD has failed to establish that the exclusion of the record of Portillo's visit with a doctor at the El Paso Orthopedic Surgeons resulted in any harm to its case, or that it was even relevant to the issue of whether Portillo suffered from imbecility. In fact, the admission of that record may have been misleading to the jury, as Portillo was not being evaluated during that visit for any issues related to his traumatic brain injury, and was instead being seen for acute pain in his legs, buttocks and arms related to his accident. In addition, the record contained conflicting entries, as one portion of the record—under the heading labeled as "neurologic"—indicated that Portillo denied having any "muscular weakness, incoordination, or loss of balance," while another portion of the record indicated that Portillo reported having a "sense of unsteadiness." And finally, to the extent that EPISD sought to admit this record to establish that Portillo did not suffer from any neurological complaints after his accident, it would have been cumulative of other medical records that were admitted into evidence in which Portillo's doctors reported that he had a "normal" neurological exam on other occasions. And in fact, EPISD's attorney pointed to those normal neurological exams during his closing argument in arguing that Portillo did not suffer from incurable imbecility. Accordingly, we conclude that EPISD has failed to establish that the exclusion of this evidence probably resulted in an improper verdict. C. The Opinion Testimony of Helen Garcia, EPISD's Former Claims Adjustor
EPISD next contends that the trial court erred in refusing to allow Helen Garcia, its former claims adjustor, who was present at Portillo's contested case hearing, to testify at trial that she believed Portillo had been able to testify coherently at the hearing. EPISD contends that the trial court erred in excluding her testimony, contending that it would have been "relevant" to "contradict" Portillo's testimony at trial that he was easily confused and could not concentrate, and that its exclusion requires reversal of the judgment. EPISD, however, provides no citation to legal authority to support its argument that Garcia's testimony of her opinion on this subject was admissible for this purpose, and it therefore did not preserve this issue for our review.
At trial, EPISD made an offer of proof in which Garcia testified that Portillo "appeared to testify coherently and clearly" at the contested case hearing. Further, that Portillo could recall and describe his accident with specificity, that his memory appeared intact, he was articulating well, and he appeared aware of the nature of the proceedings.
To preserve error on appeal, the Texas Rules of Appellate Procedure require adequate briefing, which includes making a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. See ERI Consulting Engineers, Inc. v. Swinnea , 318 S.W.3d 867, 880–81 (Tex. 2010) (citing TEX. R. APP. P. 38.1(i) ). In reviewing for briefing waiver, we are required to construe briefs liberally so that the right to appellate review is not lost by waiver, and we keep in mind that substantial compliance with the rules is sufficient to preserve error. Robb v. Horizon Communities Improvement Ass'n, Inc. , 417 S.W.3d 585, 590 (Tex. App.—El Paso 2013, no pet.) (citing Perry v. Cohen , 272 S.W.3d 585, 587 (Tex. 2008) ; TEX. R. APP. P. 38.9 ) Here, we find no such substantial compliance, and we will not make EPISD's argument for it.
D. The Evidence of Licensing Requirements for HVAC Technicians
In its final argument on this issue, EPISD contends that the trial court erred in excluding evidence of the State of Texas's licensing requirements for HVAC technicians, which it believed required technicians to complete eight hours of continuing education each year to renew their licenses. EPISD contends that this information was relevant for two purposes. First, to impeach Portillo's testimony that when he renewed his license in 2016, three years after his accident, he was not required to take any classes, and that he renewed his license (with his son's assistance) simply by paying a fee. And second, EPISD contends that the information would have also established Portillo had sufficient intellectual abilities to complete the classes upon renewing his license.
But the licensing requirements EPISD offered as an exhibit did not relate to the type of license Portillo held, which EPISD's own proffered evidence demonstrated was an "A/C technician" license, while the exhibit set forth the continuing education requirements for an "air conditioning and refrigeration contractor license." And the Texas Occupational Code provides that these are two distinct types of licenses, with different renewal requirements. TEX. OCC. CODE ANN. § 1302.002(4), (5-a). While the Code provides that a "contractor" must complete eight hours of continuing education to renew his license, as Portillo testified at trial, there is no similar requirement in the Code for a technician to renew his license. Compare 16 TEX. ADMIN. CODE § 75.25(b) (2022) (Texas Dep't of Licensing & Regulation, Air Conditioning & Refrigation) ("To renew an air conditioning and refrigeration contractor license ... a licensee must complete eight hours of continuing education in courses approved by the department, including one hour of instruction in Texas state law and rules that regulate the conduct of licensees.") with 16 TEX. ADMIN. CODE § 75.29 (2011) (Texas Dep't of Licensing & Regulation, Air Conditioning & Refrigation) ("To renew a technician registration or air conditioning and refrigeration technician certification, a person must: (1) submit a completed renewal application on a department-approved form; and (2) submit the required fees."). Accordingly, because the proffered evidence had no relevance to Portillo's situation, it was properly excluded. See generally TEX. R. EVID. 401(a) (evidence is relevant if it has a "tendency to make a fact more or less probable than it would be without the evidence").
Accordingly, for the reasons set forth above, we conclude that EPISD has failed to establish that any of the trial court's evidentiary rulings—even if made in error—probably resulted in an improper verdict or were otherwise unfairly prejudiced its case.
EPISD's Issue Six is overruled.
X. CONCLUSION
The trial court's judgment is affirmed.
( Alley, J., not participating)