Opinion
01-22-00079-CV
05-09-2023
HARRIS COUNTY (SELF-INSURED), Appellant v. LEVENT DOGAN, Appellee
On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2017-14504
Panel consists of Justices Kelly, Rivas-Molloy, and Guerra.
MEMORANDUM OPINION
Peter Kelly Justice
This is the second appeal in a workers' compensation case. Appellee Levent Dogan suffered a heart attack while training to be a Harris County Sheriff's Office deputy. He sought workers' compensation benefits. A benefit review officer identified two contested issues: (1) whether Dogan sustained a compensable heart attack on March 9, 2016, and (2) whether Dogan sustained a disability from the claimed injury. A contested case hearing officer found that Dogan's heart attack was not caused by a specific event occurring in the course and scope of his employment and, therefore, Dogan's heart attack was not compensable. The hearing officer also found that the heart attack was a cause of Dogan's inability to obtain and retain employment at wages equivalent to his preinjury wage for a period of four months. But because the heart attack was not compensable, the hearing officer concluded that Dogan had not sustained a disability. An administrative appeals panel agreed, and the hearing officer's decision and order became final.
In the district court, Dogan sought judicial review of the determinations that he did not sustain a compensable injury and that he did not have disability from the heart attack. A jury found that he did have a compensable heart attack. The trial court entered judgment in favor of Dogan, based on the jury's verdict and the contested case hearing officer's finding that the heart attack was a cause of Dogan's inability to obtain and retain employment at wages equivalent to his preinjury wage for a period of four months. Harris County appealed.
Initially, this Court found that the trial court's judgment was void because it did not comply with a procedural rule requiring timely notice to the Texas Department of Insurance, Division of Workers' Compensation. See Harris Cty. v. Dogan, No. 01-19-01006-CV, 2021 WL 4202140, at *1 (Tex. App.-Houston [1st Dist.] Sept. 16, 2021, no pet.) (mem. op.). We vacated the trial court's judgment, and, because it retained plenary power, the trial court then entered judgment in favor of Dogan after notice was properly given. This judgment ruled that Dogan's on-the-job heart attack was a compensable injury that resulted in him sustaining a disability from March 10, 2016 to July 10, 2016. Harris County again appealed.
On appeal, Harris County now argues that: (1) the court erred by entering judgment that Dogan suffered a disability because he did not request a jury question on disability, and none was submitted to the jury; and (2) the court erred by submitting a liability question asking whether Dogan suffered an "injury."
We affirm the judgment of the trial court.
Background
On March 9, 2016, Dogan suffered a heart attack after running a mile as part of his training to become a Harris County Sheriff's Office deputy. He was taken by ambulance to an emergency room and later he underwent heart catheterization and the placement of four stents.
Dogan filed a claim for workers' compensation. The parties failed to resolve disputed issues at a benefits review conference. The benefit review officer identified the following two disputed issues:
1. Did the Claimant [Dogan] sustain and compensable heart attack on March 09, 2016?
2. Did the Claimant [Dogan] have disability resulting from the claimed injury?
The County argued that Dogan's on-the-job heart attack "was a result of a pre-existing condition and the natural progression of his pre-existing condition." Dogan argued that the heart attack was caused by physical training at work. Each party relied on the medical opinion of a doctor.
The County argued that Dogan did "not have any disability as he did not suffer from a compensable injury." Dogan argued that he was disabled from March 10, 2016, through July 10, 2016, as shown by his testimony and medical records. Dogan also asserted that he returned to work on July 11, 2016.
A contested case hearing was held regarding the two contested issues. Dogan asserted that the heart attack was caused by the physical stress and exertion during the work-related training exercises, whereas Harris County argued that the heart attack resulted from the natural progression of Dogan's preexisting conditions. Both Dogan and Harris County offered the testimony of expert witnesses in support of their arguments.
In addition, according to the contested case hearing decision and order, Dogan maintained that he had not previously been diagnosed with heart disease, but he conceded that he had previously been diagnosed with hypertension, Type II diabetes, and high cholesterol. He did not consistently take prescribed medications because he was unable to pay out of pocket and did not know that inexpensive generic medications were available. Also, he said he sometimes simply forgot to take his medicine.
The contested case hearing officer found the following facts: . . . .
3. [Dogan's] heart attack was not caused by a specific event occurring in the course and scope of his employment with Harris County as a corrections officer.
4. The preponderance of the medical evidence regarding the heart attack indicates that [Dogan's] work was not a substantial contributing factor of the attack.
5. The preponderance of the medical evidence regarding the heart attack indicates that [Dogan's] heart attack was a result of a pre-existing condition and the natural progression of that preexisting condition.
6. The heart attack of March 9, 2016 was a cause of [Dogan's] inability to obtain and retain employment at wages equivalent to his preinjury wage during the period in dispute, from March 10, 2016 through July 10, 2016, but at no other times through the date of the contested case hearing in this matter.
The hearing officer concluded that: (1) Dogan "did not sustain a compensable heart attack on March 9, 2016," and (2) "[b]ecause the claimed injury is not compensable, [Dogan] had no disability."
The appeals panel adopted the hearing officer's decision and order in its entirety, and Dogan filed a lawsuit seeking judicial review. In his original petition, Dogan challenged the conclusions that his "injury was not compensable and that he had no disability." He pleaded that he would show that "the determination that he did not sustain a compensable heart attack on March 9, 2016 and a follow-on injury on March 15, 2016; and that he did not sustain disability are in error."
No evidence regarding a follow-on injury was presented at trial in the district court. The parties had a Rule 11 agreement concerning the follow-on injury, which was a second heart attack:
Although it was discussed at the administrative [contested case hearing], the Division [of Workers' Compensation] did not certify a separate issue on follow on injury, and for purposes of this Rule 11 agreement, the current trial court does not have jurisdiction over that dispute.
Accordingly, we have agreed to the issue of follow on injury is not properly before this Court and [Dogan] will agree to your [special] exception. We have further agreed that in the event the injury of 3/9/16 is found to be compensable, the Parties will file a mutual DWC 45 agreeing to a [contested case hearing] on the follow on injury issue-without the necessity of BRC [benefit review conference].
Dogan testified at trial about the heart attack and his medical history before and after the heart attack. He also testified about how the heart attack affected his ability to work. He said that he lost about a month of work after March 9, 2016, before returning to light duty in April 2016. About a month after that he was sent home because Harris County had no suitable replacement work for him. In July 2016, he returned to work, completed the training program, and became a detention officer. He testified that he was placed on medically authorized restriction for a year, which limited his working hours to 40 hours per week with no overtime.
The hearing officer's report was admitted without objection. This report included the following statements about Dogan's disability:
With regard to disability, [Dogan] testified that he was unable to work from March 10, 2016 through July 11, 2016 and did not earn his regular pre-injury wage as a result of the March 9, 2016 alleged injury. [Dogan] testified that he returned to work on July 11, 2016 and has been working light duty with restrictions, including a 40-hour week schedule, earning his regular wages. A careful review of the evidence presented shows that the heart attacks on March 9, 2016 and on March 15, 2016, which prevented him from working, were a cause of [Dogan's] inability to obtain and retain employment at wages equivalent to his pre-injury wage during the period at issue, from March 10, 2016 through July 10, 2016.
Both Dogan and Harris County presented medical expert testimony. Dogan offered the testimony of Dr. Michael Ott, an emergency room physician, who had reviewed Dogan's medical records. Dr. Ott testified that based on a reasonable medical probability that "the precipitating event that led to [Dogan's] heart attack was the training run." On cross examination, Dr. Ott said that "a training run that Mr. Dogan had participated in led to a plaque rupture that led to his acute coronary syndrome [heart attack]." Dr. Ott testified that he saw no evidence in Dogan's medical records that he suffered from coronary heart disease before the heart attack. He testified that the heart attack was not triggered solely by emotional or mental stress factors.
Harris County offered the testimony of Dr. Lewis, a cardiologist, who testified that Dogan had preexisting atherosclerotic coronary artery disease, which is a "buildup of cholesterol plaque in any of the seven major arteries that supply the heart muscle with oxygen." He testified that Dogan's heart attack was caused by the natural progression of his atherosclerotic coronary artery disease not by the training run "[b]ecause exercise does not cause plaque rupture in a coronary artery."
Medical records admitted at trial showed that Dr. Domingo Gonzalez, a cardiologist, saw Dogan for a follow up visit regarding his coronary artery disease on March 28, 2016, and Dr. Gonzalez gave Dogan a release to return to work with the restrictions that he not lift anything over 20 pounds and not overexert himself.
The jury was instructed that
the Texas Department of Insurance Division of Workers' Compensation determined that Levent Dogan's heart attack was as a result of a pre-existing condition and the natural progression of that pre-existing condition and, as a result, [Dogan] did not sustain a compensable injury in the form of a heart attack on March 9, 2016.
The jury was asked two questions: the first question inquired whether Dogan had sustained a compensable injury in the form of a heart attack and the second asked whether he had received an injury, generally, in the course and scope of his employment with Harris County. The jury answered "yes" to both questions. No question on disability was requested or submitted to the jury.
QUESTION 1
Did Levent Dogan sustain a compensable injury in the form of a heart attack?
A heart attack is a compensable injury only if
1. The attack can be identified as occurring at a definite time and place caused by a specific event occurring within the course and scope of the employee's employment; and
2. The preponderance of the medical evidence indicates that work, rather than the natural progression of a preexisting heart condition or disease, was a substantial contributing factor of the attack; and
3. The attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus.
Dogan moved for entry of judgment on the verdict and attached a proposed final judgment. Dogan later requested that the trial court make findings of fact and conclusions of law regarding whether he sustained a disability and as authorized by Rule 279 of the Texas Rules of Civil Procedure (Omissions from the Charge).
The trial court later entered findings of fact and conclusions of law regarding disability. These findings and conclusions were based, in part, on the hearing officer's report, which was admitted into evidence at trial. The hearing officer had found that, based on Dogan's testimony in the contested case hearing, Dogan was unable "to obtain and retain employment at wages equivalent to his preinjury wage from March 10, 2016 to July 10, 2016." The trial court made the same finding, and it found that aside from the hearing officer's report "there was no other evidence of disability entered in the trial of this case." The trial court concluded that "[a]s a result of the compensable injury in the form of a heart attack incurred by [Dogan] on March 9, 2016 found by the jury, Mr. Dogan had disability as defined by Tex. Labor Code sec. 401.011(16) from March 10, 2016 to July 10, 2016."
The trial court entered final judgment that Dogan sustained a compensable injury in the form of a heart attack and that he was disabled from March 10, 2016 to July 10, 2016. Harris County appealed. On the first appeal, we concluded that Dogan failed to comply with a procedural rule, which required him to timely file the proposed judgment with the Division. We held that this failure rendered the judgment void, and we dismissed the appeal for lack of jurisdiction.
See Harris Cnty. v. Dogan, No. 01-19-01006-CV, 2021 WL 4202140, at *3 (Tex. App.-Houston [1st Dist.] Sept. 16, 2021, no pet.) (mem. op.).
Id.
Because a void judgment is a legal nullity, the trial court retained plenary power to render a valid final judgment, which it subsequently did in this case. In the final judgment, the trial court restated the jury questions and answers. The final judgment then stated:
See Metro. Transit Auth. v. Jackson, 212 S.W.3d 797, 799 (Tex. App.-Houston [1st Dist.] 2006, pet. denied).
The Court added Question No. 2 based on an argument by the Plaintiff's counsel that an arterial dissection resulting in a heart attack could constitute a compensable injury. The Court need not rely on the answer to Question 2 to enter this judgment however, given the jury's answer to Question 1.
The trial court held that Dogan "sustained a compensable injury in the form of a heart attack." The trial court also found "(as requested under Rule 279) that Mr. Dogan was disabled as defined in [Texas Labor Code section] 401.011(16) from March 10, 2016 to July 10, 2016."
Harris County again appealed.
Analysis
Harris County raises two issues on appeal. In its first issue, the County argues that the trial court erred by entering judgment that Dogan suffered a disability because his failure to request a jury question on disability waived the issue. In its second issue, the County argues that the court erred by submitting to the jury Question No. 2, which inquired whether Dogan sustained an injury without regard to the special statutory requirements for compensability of a heart attack.
I. The trial court correctly found that Dogan sustained a disability.
In its first issue, Harris County argues that disability was an issue distinct from the issue of compensability and that Dogan waived this issue by failing to request a jury question on disability. The County asserts that the trial court erred by applying Rule 279 to find that Dogan had a disability because it was not conclusively established at trial. The County maintains that the trial court impermissibly chose to rely on one of the findings of fact reached by the contested case hearing officer, even though the hearing officer concluded that Dogan did not have a disability.
Dogan argues that under the Labor Code, a disability is comprised of two elements: a compensable injury and an inability to retain employment at preinjury wages. Dogan relies on the jury's finding of a compensable injury in the form of a heart attack and the contested case hearing officer's report, which was introduced into evidence at trial. He maintains that the trial court properly applied Rule 279 to find that he had a disability.
A. Standard of review and Rule 279
The County's first issue relates to the jury charge and formation of the judgment. We review this issue under a harmless error standard of review. See, e.g., Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000) (applying harmless error standard of review to jury-charge issue). Under this standard, we will determine whether the trial court properly applied Rule 279 and whether the error, if any, is reversible. See id. Our standard for reversible error provides:
No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of:
(1) probably caused the rendition of an improper judgment; or
(2) probably prevented the appellant from properly presenting the case to the court of appeals.Tex. R. App. P. 44.1
Texas Rule of Civil Procedure 279, "Omissions From the Charge," provides the basic rule of waiver for failure to submit an independent ground of recovery to the jury: "Upon appeal all independent grounds of recovery or of defense not conclusively established under the evidence and no element of which is submitted or requested are waived." Tex.R.Civ.P. 279. The rule also provides an exception allowing the trial court to make an omitted finding and allowing the appellate court to deem such finding made:
When a ground of recovery or defense consists of more than one element, if one or more of such elements necessary to sustain such ground of recovery or defense, and necessarily referable thereto, are submitted to and found by the jury, and one or more of such elements are omitted from the charge, without request or objection, and there is factually sufficient evidence to support a finding thereon, the trial court, at the request of either party, may after notice and hearing and at any time before the judgment is rendered, make and file written findings on such omitted element or elements in support of the judgment. If no such written findings are made, such omitted element or elements shall be deemed found by the court in such manner as to support the judgment.Id.
B. Texas Workers' Compensation Act
"A primary purpose of the Workers' Compensation Act is to relieve employees injured on the job of the burden of proving their employer's negligence and to provide them prompt remuneration for their on-the-job injuries." Payne v. Galen Hosp. Corp., 28 S.W.3d 15, 17 (Tex. 2000) (applying prior version of the Act). In accordance with this purpose, the Supreme Court of Texas has "liberally construed the Act in the employee's favor." Id. Under the Texas Workers' Compensation Act ("TWCA"), an injured employee may receive compensation only for a "compensable injury," which is defined as "an injury that arises out of and in the course and scope of employment." Tex. Labor Code § 401.011(10).
The TWCA provides a special rule for determining when a heart attack is a compensable injury:
A heart attack is a compensable injury under this subtitle only if:
(1) the attack can be identified as:
(A) occurring at a definite time and place; and
(B) caused by a specific event occurring in the course and scope of the employee's employment;
(2) the preponderance of the medical evidence regarding the attack indicates that the employee's work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack; and
(3) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus.Id. § 408.008 ("Compensability of Heart Attacks").
"Disability" is defined in reference to a compensable injury and means "the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage." Id. § 401.011(16). In general, an employee who sustains a compensable injury is entitled to medical benefits, see id. § 408.021, and an employee who sustains an injury that results in disability for at least one week is entitled to income benefits. See id. § 408.082.
The TWCA "provides a four-tier system for the disposition of claims, with each step being a prerequisite to the succeeding one." Rush v. Ace Am. Ins. Co., No. 01-18-00402-CV, 2019 WL 2932846, at *7 (Tex. App.-Houston [1st Dist.] July 9, 2019, pet. denied) (mem. op.); see Subsequent Injury Fund v. Serv. Lloyds Ins. Co., 961 S.W.2d 673, 675 (Tex. App.-Houston [1st Dist.] 1998, pet. denied); see generally Tex. Lab. Code §§ 410.002-410.308. "The first tier is a benefit review conference conducted by a benefit review officer." Rush, 2019 WL 2932846, at *7; see generally Tex. Lab. Code §§ 410.021-.034 ("Benefit Review Conference"). The second tier is arbitration, but if the parties do not agree to arbitrate, the aggrieved party may proceed to the third tier, a contested case hearing with an opportunity for an administrative appeal. Rush, 2019 WL 2932846, at *7; see generally Tex. Lab. Code §§ 410.101-.121 ("Arbitration"), §§ 410.151-.169 ("Contested Case Hearing"). The contested case hearing officer's decision is final in the absence of an appeal. Tex. Lab. Code § 410.169. A party may appeal the contested case hearing officer's decision to an administrative appeals panel. See Tex. Lab. Code § 410.202. The first three tiers constitute the "administrative phase." See State Office of Risk Mgmt. v. Martinez, 539 S.W.3d 266, 269 (Tex. 2017).
"Finally, in the fourth tier, a party aggrieved by a final decision of the administrative appeals panel has the right to seek judicial review of the appeals panel's decision." Rush, 2019 WL 2932846, at *7; see generally Tex. Lab. Code §§ 410.251-.308. The TWCA "divides judicial review of workers' compensation appeals by drawing a distinction between issues that concern compensability and those that do not." Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007). An appeal from "a final decision of the appeals panel regarding compensability or eligibility for or the amount of income or death benefits," Tex. Lab. Code § 401.301(a), is subject to a "modified de novo review." Morales, 241 S.W.3d at 516. In a modified de novo review, the issues are "tried to the court or a jury, and the appealing party bears the burden of proof by a preponderance of the evidence." Morales, 241 S.W.3d at 516 (citing Tex. Lab. Code § 410.304). For the purposes of this type of judicial review, "issues" refer to the "'disputed issues' that the review officer identifies at the benefit review conference." Martinez, 539 S.W.3d at 271. "The factfinder may consider, but is not bound by, the appeals panel's decision." Morales, 241 S.W.3d at 516.
C. Martinez
In Martinez, the Supreme Court of Texas considered the difference between an issue for the purposes of judicial review under the TWCA and an issue for the purpose of preservation of error in an appeal from a summary judgment. 539 S.W.3dat 268-77. Martinez, an employee of a state agency, was working from home, at her kitchen table, on a Saturday. Id. at 268. When she got up from the table either to get a pen or a cup of coffee, she slipped and fell, breaking a shoulder and injuring her head. Id. at 268 & n.2. After the contested case hearing, the hearing officer found that Martinez was "'furthering the business and affairs of her employer when the fall occurred . . . [but] that Martinez's injury 'did not involve any instrumentality of the [e]mployer.'" Id. at 269. Thus, the hearing officer concluded that Martinez did not sustain a compensable injury because it did not "arise out of" or "occur in the course and scope of her employment." Id. The administrative appeals panel reversed, finding that Martinez had sustained a compensable injury. Id.
The agency sought judicial review, and both Martinez and the agency moved for summary judgment. Id. In the administrative phase, the agency had argued that Martinez's injury was not compensable because by working from home she violated an agency policy. Id. at 269. In its motion for summary judgment in the district court, the agency raised a new ground, arguing that Martinez's injury was not compensable because she had violated a statute-not just an agency policy- by working from home. Id. In her motion for summary judgment, Martinez argued that the contested case hearing officer's findings of fact that she was "furthering the business and affairs of her employer" conclusively proved that she had sustained a compensable injury, despite the hearing officer's conclusions to the contrary. Id. at 275. The trial court denied Martinez's motion and granted the agency's motion. Id. at 269. Martinez then appealed the trial court's ruling to the court of appeals. Id.
On appeal, Martinez challenged the trial court's grant of the agency's motion and denial of her motion for summary judgment. Id. The court of appeals held that the trial court lacked jurisdiction over the agency's appeal because judicial review is limited to issues decided by the administrative appeals panel, and the agency appealed on a ground that was not presented to the administrative appeals panel. Id. The court of appeals also affirmed the trial court's denial of Martinez's motion for summary judgment. Id. at 275. Both parties then appealed to the Supreme Court of Texas. See id. at 270.
The Supreme Court of Texas considered the TWCA and concluded that for the purposes of judicial review under the TWCA, an issue includes any disputed issue identified by the review officer at the benefit review conference, but a party is not limited to making the same arguments it made during the administrative phase. Id. at 274. As to Martinez's summary-judgment motion, the Supreme Court of Texas explained that the TWCA defines a compensable injury as "an injury that arises out of and in the course and scope of employment." Id. at 276 (quoting Tex. Labor Code § 401.011(10)). The Court explained that the first part of the definition, that the injury arises out of the claimant's employment, means that "the injury must 'relate to or originate in . . .the employer's business." Id. (quoting SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 642 (Tex. 2015)). The Court further explained that the second part of the definition, that "the injury occurred in the course and scope of employment, means that the injury must 'occur in the furtherance of[] the employer's business.'" Id. (quoting SeaBright Ins. Co., 465 S.W.3d at 642).
The Supreme Court agreed with the court of appeals that the contested case hearing officer's findings related only to one of the two elements, that the injury occurred within the course and scope of the employer's business. Id. The Supreme Court concluded that the hearing officer's finding did not support an inference that Martinez's injury arose out of her employment, particularly since the hearing officer expressly found that the injury "did not involve any instrumentality" of her employer. Id. The Supreme Court noted that "[i]njuries that involve an employer's instrumentality are more likely to arise out of employment than to arise by chance." Id. Thus, the Supreme Court affirmed the court of appeals and the trial court, which both had held that Martinez did not show she was entitled to summary judgment. Id.
In dicta, the Court added:
Martinez is not free to pick and choose among the hearing officer's findings of fact. . . . This is especially true when the conclusion she asks us to draw is contrary to some of the report's findings of fact, to its main conclusion of law, and to the very decision that the hearing officer used the findings to support.Id. at 277.
D. The trial court correctly found that Dogan sustained a disability.
In this case, the jury was instructed that the Division of Workers' Compensation had found that Dogan's heart attack was the result of a preexisting condition and was not a compensable injury. But the jury disagreed, and it found that Dogan suffered a compensable injury in the form of a heart attack. See Tex. Lab. Code § 408.008. Dogan did not submit a jury question on disability or object to the trial court's omission of such a question from the charge. However, since the inception of this case, there was no evidence proffered to rebut the evidence supporting the second element of disability under the statute. The TWCA definition of disability includes two elements: (1) the existence of a compensable injury, and (2) the inability to obtain and retain employment at wages equivalent to the preinjury wage because of that compensable injury. Id. § 401.011(16). Because the first element of disability is the existence of a compensable injury, the jury verdict finding that Dogan suffered a compensable heart attack also satisfied the first element of disability.
Rule 279 allows a trial court to find an omitted element of a ground of recovery when at least one element of that ground of recovery has been submitted to and found by the jury. Tex.R.Civ.P. 279. Here, one of the two elements of disability, which is a ground of recovery, was submitted to and found by the jury. Dogan requested that the court make a finding on the second element and find that he sustained a disability. The hearing officer's report was admitted into evidence at trial by the County, without objection or limitation. The hearing officer's report and Dogan's testimony about his inability to work after the March 9, 2016 heart attack support the trial court's finding that he was unable to obtain and retain employment at wages equivalent to the preinjury wage because of the heart attack. The contested case hearing officer's report, which was adopted in full by the administrative appeals panel, expressly found:
The heart attack of March 9, 2016 was a cause of Claimant's inability to obtain and retain employment at wages equivalent to his preinjury wage during the period in dispute, from March 10, 2016 through July 10, 2016, but at no other times through the date of the contested case hearing in this matter.
This uncontroverted evidence is factually sufficient to support the second element of the TWCA definition of disability. See In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (holding that evidence is factually sufficient when it enables factfinder to form firm belief or conviction about truth of pleaded allegations); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (holding that evidence is factually sufficient when judgment is not so contrary to overwhelming weight of evidence as to be clearly wrong and unjust).
See also In re J.F.C., 96 S.W.3d 256, 276 n.69 (Tex. 2002) ("From 1941 until 1988, Rule 279 provided that if 'there is evidence to support a finding,' omitted findings would be 'deemed as found by the court in such manner as to support the judgment.' When that rule was amended in 1988, there was no indication in the record of the rules proceedings that revised Rule 279 was meant to change the prerequisite of "evidence," which was maintained in Rule 299, to 'factually sufficient' evidence with respect to deemed findings. But see Kilgarlin, Practicing Law in the "New Age": The 1988 Amendments to the Texas Rules of Civil Procedure , 19 Tex. Tech. L. Rev. 881, 916 (1988)).
The County, however, asserts that the hearing officer's report is not legally competent evidence because in Martinez, the Supreme Court of Texas held that the summary-judgment movant could not pick and choose findings from the contested case hearing officer's report. This case is distinguishable from Martinez.
First, Martinez was an appeal from a summary judgment. In a traditional summary-judgment motion, the movant has the burden to show that no genuine issue of material fact exists and that the trial court should grant summary judgment as a matter of law. Tex.R.Civ.P. 166a(c); Hillis v. McCall, 602 S.W.3d 436, 439- 40 (Tex. 2020). When a party moves for summary judgment on her own claim, she must conclusively prove all essential elements of the claim. See Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). In Martinez, the hearing officer's report included two statements that supported one element of compensability and one statement that negated the other element of compensability. 539 S.W.3d at 276. The Martinez court cautioned that the summary-judgment movant could not pick and choose which statements to rely on when the evidence showed that she had not conclusively proved all essential elements of her claim. Id. at 277.
In this case, the hearing officer's report concluded that Dogan's March 9, 2016 heart attack was not a compensable injury because the hearing officer reached a different fact finding than the jury did. The hearing officer found that the specific requirements for a heart attack to be a compensable injury were not met.The jury charge included the same statutory definition of a compensable heart attack, but the jury found in Dogan's favor, reaching a fact finding directly in opposition to the that of the hearing officer. The court was bound by the jury finding. Unlike Martinez, there was no statement in the hearing officer's report that negated the other element of disability. To the contrary, the hearing officer's report expressly stated that Dogan's March 9, 2016 heart attack satisfied the second element of the statutory definition of a disability. And the hearing officer's report was admitted into evidence, without objection or limitation. The County has not shown why this evidence, which it offered at trial, is incompetent.
The hearing officer's report found:
3. [Dogan's] heart attack was not caused by a specific event occurring in the course and scope of his employment with Harris County as a corrections officer.
4. The preponderance of the medical evidence regarding the heart attack indicates that [Dogan's] work was not a substantial contributing factor of the attack.
5. The preponderance of the medical evidence regarding the heart attack indicates that [Dogan's] heart attack was a result of a preexisting condition and the natural progression of that pre-existing condition.
The hearing officer's report found:
6. The heart attack of March 9, 2016 was a cause of [Dogan's] inability to obtain and retain employment at wages equivalent to his preinjury wage during the period in dispute, from March 10, 2016 through July 10, 2016, but at no other times through the date of the contested case hearing in this matter.
The second reason why this case is unlike Martinez is that, in Martinez, the claimant had to adduce conclusive proof, but here Dogan needed only factually sufficient evidence to uphold the trial court's Rule 279 finding. Considering the uncontroverted evidence about Dogan's inability to obtain and retain employment at wages equivalent to his preinjury wage during the disputed period-which consisted of both the hearing officer's report and Dogan's testimony-we have concluded that the evidence was factually sufficient here, whereas in Martinez there was an open question of fact precluding summary judgment.
We overrule the County's first issue.
III. The jury question about "injury" is immaterial.
In its second issue, Harris County argues that the trial court erred by submitting the second jury question, which asked whether Dogan received an injury in the course and scope of his employment with Harris County on March 9, 2016.
We review a challenge to the trial court's jury charge under an abuse of discretion standard. Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); Hazelip v. Am. Cas. Co. of Reading, PA, No. 01-09-00659-CV, 2012 WL 2453716, at *4 (Tex. App.-Houston [1st Dist.] June 28, 2012, pet. denied) (mem. op.). If we determine that the jury charge was erroneous, we must then consider whether the error requires reversal. See Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 225 (Tex. 2010). Charge error requires reversal of a judgment only when the error probably caused rendition of an improper judgment or prevented the appellant from properly presenting the case to the court of appeals. Tex.R.App.P. 44.1(a); see Thota v. Young, 366 S.W.3d 678, 693 (Tex. 2012). "Charge error is generally considered harmful if it relates to a contested, critical issue." Glenn v. Leal, 596 S.W.3d 769, 772 (Tex. 2020) (quoting Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009)). But a trial court may disregard an immaterial question, such as a question that should not have been submitted. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994).
Harris County argues that there was no issue about a compensable injury other than a heart attack that occurred on March 9, 2016 that was raised in the benefit review conference, contested case hearing, or appeals panel and therefore no issue regarding an injury other than a heart attack that occurred on March 9, 2016 in the trial court on judicial review. The County argued that the submission of the second question to the jury, which inquired whether Dogan was injured "in the course and scope of his employment," tracked the statutory language applicable to worker's compensation claims that do not involve a heart attack.
The only issues raised during the administrative process were whether Dogan's heart attack of March 9, 2016 was a compensable injury and whether he had disability as a result. See Martinez, 539 S.W.3d at 274 (explaining disputed issues under Labor Code). Dogan pleaded those issues in his original petition. We agree that the trial court's submission of a question regarding an injury other than the March 9, 2016 heart attack was error. But the trial court could-and did- disregard the jury's answer to Question No. 2 because it was immaterial. The court rendered judgment based only on the jury's answer to Question No. 1. See Spencer, 876 S.W.2d at 157.
The County maintained that the erroneous submission of the second question was reversible because its presence on the jury charge would have confused the jurors. In other words, the County argued in favor of a presumption of harm. The Supreme Court of Texas has presumed harm in the jury charge in cases in which a broad form question improperly submits valid and invalid legal theories or elements of damages. See Harris Cnty. v. Smith, 96 S.W.3d 230, 235 (Tex. 2002); Casteel, 22 S.W.3d at 389. Even when harm is presumed, a court will not reverse unless the error probably prevented the petitioner from properly presenting the case to the appellate court. Smith, 96 S.W.3d at 235. This case is not like Casteel and its progeny. We do not presume harm from the submission of an immaterial question. See Matter of Estate of Poe, 648 S.W.3d 277, 285 (Tex. 2022) ("[E]ven if a trial court errs in submitting a jury question or instruction, we cannot revere a judgment for charge error unless that error was harmful."); Thota, 366 S.W.3d at 687 (applying harmless error rule instead of presuming harm). Because the court did not rely on the jury's answer to Question No. 2, we conclude that its inclusion did not probably cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). Accordingly, we hold that the erroneous submission of Question No. 2 was harmless.
We overrule Harris County's second issue.
Conclusion
We affirm the judgment of the trial court.