Pro Se Appeal Fails for Lack of Facts or Evidence
When dealing with a court it should be axiomatic that the party seeking relief have sufficient skills with the presentation of evidence and recitation of legal precedent if he or she wishes a successful result. Although retaining an attorney does not guarantee a favorable result failure to retain an attorney will invariably guarantee an unfavorable result.
In Alvy Childress v. Texas Mutual Insurance Company, NO. 03-19-00284-CV, Texas Court Of Appeals, Third District, At Austin (August 27, 2020) the ancient maxim that a person representing himself in a court proceeding will almost always lose.
Alvy Childress claimed he suffered an on-the-job injury in 2015. Texas Mutual Insurance Company, his workers’ compensation carrier, determined that a torn tendon in his shoulder was not compensable. An administrative law judge (ALJ) with the Texas Department of Insurance, Division of Workers’ Compensation (the Division), held a contested case hearing and agreed with Texas Mutual; her decision was upheld by an Appeals Panel. Childress, acting as his own attorney, sought judicial review and the trial court granted summary judgment in favor of Texas Mutual.
Childress owns a steel-fabrication-and-erection business called ACE Fab, and in May 2015, while moving an iron beam weighing between 2,000 and 3,000 pounds, he ruptured his right bicep tendon. Texas Mutual accepted the bicep injury as compensable but determined that a “full thickness tear of his distal supraspinatus tendon” in his right shoulder was “degenerative in nature and not caused or aggravated by the work place injury.”
In her Decision and Order, the ALJ stated that she had considered Childress’s proffered “letters of causation” from multiple physicians including and also reviewed the opinion of an expert provided by Texas Mutual. The ALJ noted there was no explanation how Childress was able to continue working for 3 months after his date of injury, nor persuasively explain how, if the tear was a pre-existing condition aggravated by the workplace injury, the condition was enhanced, accelerated, or worsened.
The ALJ summarized Childress’s medical records as starting more than three months after the date of injury and as stating that Childress uses arm normally—concerned about further damage. She said the first record diagnosed only a non-traumatic rupture of the bicep tendon and stated that Childress’s symptoms and pain levels were “mild”; that at the time, Childress told medical staff that he had “full range of motion”; and that an exam confirmed that his range of motion was “intact in all extremities.” The ALJ concluded the injury was not compensable.
Texas Mutual filed a motion for summary judgment, arguing first that Childress had not stated a claim on which relief can be granted because his amended petition only leveled claims for negligence and violations of various statutes and rules, rather than seeking judicial review of the appeals panel’s final decision.
The trial court signed an order granting Texas Mutual’s motion for summary judgment.
The court, being kind to a non-lawyer, stated that: “Although it is not entirely clear, it appears that Childress is arguing that the underlying administrative record was wrongfully excluded from evidence. However Childress failed to have the record filed in accordance with the rules” so the court was unable to consider the record.
Childress’ amended petition seems only to assert a claim for negligence, contending that Texas Mutual knowingly violated provisions of the insurance code, labor code, and administrative code and that as a result, Childress suffered an under treated, under diagnosed, under documented biceps and shoulder injury which produced by causation the manifestly unjust ALJ’s Decision and Order, Independent Injury actual damages, Physical harm a new injury as a direct result of one or more of the above stated violations. Construing his pleadings liberally and in the interest of justice, the appellate court considered whether Texas Mutual showed itself entitled to a summary judgment affirming the Appeals Panel’s order and eventually concluded that Texas Mutual was entitled to summary judgment.
Childress, as the party challenging the decision, had the burden of proving by a preponderance of the evidence that the decision should be overturned. The issues before the trial court were whether Childress’s supraspinatus tear was part of his compensable injury. Texas Mutual’s no-evidence motion required Childress to put on evidence to rebut the Appeals Panel’s decision on those issues. He did not do so.
The appellate court found that a party, when faced with a no-evidence motion for summary judgment, Childress, as the nonmovant, cannot avoid judgment by simply filing voluminous evidence and stating generally that a genuine fact issue has been raised. The non-movant bears the burden to file a written response that raises issues preventing summary judgment, and that points to evidence supporting those issues. Where the nonmovant fails to meet that burden, the trial court is not required to supply the deficiency, but instead must grant the motion.
Although the appellate court attempted to read Childress’s pleadings liberally and with patience, it was unable to grant him so much leeway as to give him a procedural advantage it would not extend to a party represented by counsel.
Childress did not present understandable argument as to how there was a genuine issue of material fact, nor did he point to evidence or authority to support any such argument. Therefore, the appellate court held that Childress did not meet his burden to explain to the trial court how his attached evidence raised a fact issue as to each element challenged by Texas Mutual. Since the trial court did not err in granting Texas Mutual’s motion for no-evidence summary judgment, and the appellate court overruled Childress’s arguments to the contrary and affirmed the trial court decision.
Any non-lawyer believing he or she can argue a case without a lawyer should take heed of this case. Childress attempted to get workers’ compensation benefits from an injury he claimed he incurred more than three moths before he sought medical attention and whose claims for the tendon tear were not supported by medical evidence, even medical evidence he presented with his retained experts. He may have had a compensable injury – he will never know – but was unable as a pro se plaintiff to prove the entitlement.
© 2020 – Barry Zalma
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 52 years in the insurance business. He is available at http://www.zalma.com and email@example.com.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 52 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.
Read posts from Barry Zalma at https://parler.com/profile/Zalma/posts