Metropolitan Transit Authority v. Harris County, Texas

• Court: Court of Appeals of Texas
• Decided: August 26, 2008
• Docket: 14-06-00513-CV
• Status: Published

Opinion

Affirmed in Part and Reversed and Remanded in Part and Memorandum Opinion filed August 26, 2008

Affirmed in Part and Reversed and Remanded in Part and Memorandum Opinion filed August 26, 2008. 

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00513-CV

METROPOLITAN TRANSIT AUTHORITY, Appellant

V.

HARRIS COUNTY, TEXAS, Appellee

On Appeal from the County Civil Court at Law No. 1

Harris County, Texas

Trial Court Cause No. 817,977

M E M O R A N D U M   O P I N I O N

Following a jury trial, the trial court rendered judgment in favor of appellee Harris County, Texas, in the amount of $24,836.79 in its action seeking to recover property damages as well as its statutory subrogation interest based on its payment of workers= compensation benefits to its employee Spencer Townsell and on its payment of Townsell=s medical care expenses after a bus owned by appellant Metropolitan Transit Authority (AMetro@) struck the tractor Townsell was driving.  In three issues, Metro contends that the trial court erred by (1) denying its motion for a directed verdict on the issue of medical expenses, temporary impairment, and permanent impairment; (2) submitting a jury charge that failed to asked the jury to determine whether the medical expenses were reasonable and necessary and whether the alleged damages resulted from Metro=s negligence; and (3) allowing evidence of workers= compensation payments without any evidence of reasonableness, necessity, or causation with respect to those payments.

First, we conclude that the trial court did not err in denying Metro=s motion for directed verdict.  Second, we agree with Metro that, in a subrogation action, a workers= compensation carrier must prove the same elements required of a claimant in a direct suit against the tortfeasor.  As a result of that holding, we conclude that the trial court erred in its submission of the jury charge because it failed to submit the controlling issues to the jury in connection with medical benefits and lost wages.  Accordingly, we affirm the trial court=s uncontested award of $4,140.67 for property damage, reverse the remainder of the judgment, and remand for further proceedings consistent with this opinion.

Factual and Procedural Background

Although this case involves Harris County=s statutory subrogation interest, at its core, this is a negligence case.  Spencer Townsell, a Harris County employee, was operating a tractor owned by Harris County when the tractor was struck by a Metro bus operated by Erick Burton, a Metro employee.  Harris County sued Metro under section 417.001 of the Texas Labor Code seeking to recover the workers= compensation benefits paid to Townsell and to his medical care providers on his behalf through a subrogation action against Metro, an allegedly negligent third party.  Harris County also sought to recover based on the property damage that its tractor sustained.  Harris County asserted that Metro=s negligence caused the accident in question, in which Townsell was injured in the course and scope of his employment with Harris County.  Harris County alleged that, as a self-insured workers= compensation carrier, Harris County paid workers= compensation benefits in the form of medical expenses and income payments totaling $16,423.96.  In addition, Harris County sought to recover based on the damage to its tractor.^[1]

At trial, the parties stipulated that Harris County incurred property damage in the amount of $4,140.67.^[2]  In support of Harris County=s claims, Townsell testified regarding the collision with the Metro bus and his resulting injuries.  Yetta McCutcheon, Harris County=s Claims Administrator, also testified regarding the workers= compensation benefits Harris County paid to Townsell and to his medical care providers.  Finally, Harris County introduced authenticated business records (Athe claims summary@), which itemized the workers= compensation benefits the County paid, as well as billing records and affidavits from four of Townsell=s medical care providers.  The billing records contained itemized statements of the services performed and the charges for each, while the affidavits established the reasonableness and necessity of the services and charges.

A jury found that Metro=s negligence proximately caused the accident and that Townsell was not negligent.  The jury also found that Harris County paid workers= compensation benefits to Townsell and to his medical care providers in the following amounts:  $4,093.71 for medical treatment, $5,304.32 in temporary income benefits, and $7,025.93 in impairment income benefits.^[3]  Over Metro=s objections, the charge did not ask the jury to determine the amount of reasonable and necessary medical expenses or other damages alleged by Harris County that resulted from the occurrence in question.  In its charge, the trial court apparently accepted Harris County=s argument that, if it proves that Metro=s negligence caused the accident, then Harris County may recover all the benefits that it paid, without proving that any amount of damages resulted from the accident.  The trial court rendered judgment on the jury=s verdict, awarding Harris County the stipulated amount of property damage, the undisputed amount of  workers= compensation benefits paid by Harris County to Townsell and to his medical care providers,^[4] as well as pre-judgment interest on these amounts.  Metro timely filed a motion for a new trial, which the trial court denied.  This appeal followed.

Issues on Appeal

In three issues, Metro contends that the trial court erred by (1) denying its motion for a directed verdict on the issue of medical expenses, temporary impairment, and permanent impairment; (2) submitting a jury charge that failed to asked the jury to determine whether the medical expenses were reasonable and necessary and whether the alleged damages resulted from Metro=s negligence; and (3) allowing evidence of workers= compensation payments without any evidence of reasonableness, necessity, or causation with respect to those payments.

Analysis of Metro=s Issues

I.        As Townsell=s Subrogee Suing a Third-Party Tortfeasor, Harris County Had the Same Burden and Elements of Proof as Would Townsell Had He Sued Metro Directly

As a preliminary matter, we must first address the burden and elements of proof required of a workers= compensation carrier in a subrogation action against a third-party tortfeasor because the parties dispute what Harris County had to prove to recover the payments made to Townsell.  Metro contends that the carrier must prove the exact elements the injured employee would need to prove were the employee to sue the tortfeasor directly.  Metro cites State ex rel. Texas Department Of Transportation v. Esquivel, 92 S.W.3d 17, 20 (Tex. App.CEl Paso 2002, no pet.) as authority for its position.  In contrast, Harris County contends that, when it exercises its right of subrogation as an insurer, its only burden is to show that the tortfeasor=s negligence proximately caused the incident leading to the workers= compensation claim and the amounts it paid on that claim.  Harris County cites the subrogation provisions of the Texas Labor Code, as well as Tex. Workers= Compensation Insurance Fund v. Serrano, 962 S.W.2d 536, 537B38 (Tex. 1998) (per curiam), and Marvin Frank Motor Co. v. Harris County, No. 01-02-01105-CV, 2004 WL 549487, at *1 (Tex. App.CHouston [1st Dist.] Mar. 18, 2004, pet. denied) (mem. op.), as authority for its position.

We agree with Metro.  In a subrogation action, a workers= compensation carrier directly suing the tortfeasor has the same burden and elements of proof as a claimant suing the tortfeasor.  This position is supported by relevant Texas Supreme Court case law, as well as the plain language of the Texas Labor Code.  We examine each in turn.

A.      As Subrogee, Harris County Steps Into Townsell=s Shoes

The Texas Supreme Court has explained that, when a workers= compensation carrier asserts a subrogation claim against a third-party tortfeasor, the carrier asserts a claim that is derivative of the employee=s claim.  See Franks v. Sematech, Inc., 936 S.W.2d 959, 960 (Tex. 1997) (per curiam) (AThere is but one cause of action for an employee=s injuries, and it belongs to the employee.@).  In this situation, the carrier Astands in the shoes@ of the injured employee. Bashara v. Baptist Mem=l Hosp. Sys., 685 S.W.2d 307, 311 (Tex. 1985).  The rights conferred by subrogation are entirely derivative of the subrogor/employee=s interests, to which the carrier/subrogee merely succeeds.  See Mid-Continent Ins. Co. v. Liberty Mut. Ins. Co., 236 S.W.3d 765, 774 (Tex. 2007) (explaining that, in the subrogation context, the subrogor obtains only those rights held by the subrogee against the third party, subject to any defenses held by the third party against the subrogee); see also Guillot v. Hix, 838 S.W.2d 230, 232 (Tex. 1992).

B.      The Cited Statutory Language Does Not Support Harris County=s Position

Chapter 417 of the Texas Labor Code covers third party liability in workers= compensation cases.  Harris County contends that the plain language of section 417.001 supports its position that, in order to recover the benefits paid to Townsell and his medical care providers, it must prove only (1) that Metro=s negligence was the proximate cause of the collision with the tractor Townsell was driving and (2) the amounts paid to Townsell or on his behalf.  We find no such support in section 417.001.

Section 417.001 of the chapter is entitled AThird-Party Liability.@  Section 417.001(a) authorizes an employee or legal beneficiary of the employee to sue a third party for damages resulting from an injury compensable under the workers= compensation statute. See Tex. Lab. Code ' 417.001(a).  Paragraph (a) also authorizes the employee or legal beneficiary to pursue a claim for workers= compensation benefits while pursuing a third party claim. See id.

Paragraph (b) of section 417.001 addresses the workers= compensation carrier=s subrogation interests and rights.  First, it sets out the carrier=s subrogation interest:

(b)  If a benefit is claimed by an injured employee or a legal beneficiary of the employee, the insurance carrier is subrogated to the rights of the injured employee . . . .

Id. ' 417.001(b).  Next, paragraph (b) clarifies that a workers= compensation carrier may itself sue the third party:

. . . [the insurance carrier] may enforce the liability of the third party in the name of the injured employee or the legal beneficiary.

Id.

The remainder of paragraph (b) addresses the right of the carrier to reimbursement for paid benefits when the employee or the carrier recover damages from the third party.  This portion of paragraph (b) limits the carrier=s subrogation interest to the total benefits incurred on behalf of the employee and then explains what happens when the employee or carrier recover more than the carrier=s subrogation interest:

The insurance carrier=s subrogation interest is limited to the amount of the total benefits paid or assumed by the carrier to the employee or the legal beneficiary, less the amount by which the court reduces the judgment based on the percentage of responsibility determined by the trier of fact . . . attributable to the employer.  If the recovery is for an amount greater than the amount of the insurance carrier=s subrogation interest, the insurance carrier shall:

(1) reimburse itself and pay the costs from the amount recovered; and

(2) pay the remainder of the amount recovered to the injured employee or the legal beneficiary.

Harris County argues that the following italicized language from paragraph (b) reflects the legislature=s intent that it may recover from a third party tortfeasor the full amount it paid to the injured employee without having to prove the reasonableness of the charges:

The insurance carrier=s subrogation interest is limited to the amount of  the total benefits paid or assumed by the carrier to the employee . . . .

Id. (emphasis added).

We disagree for two reasons.  First, the purpose of section 417.001 is not to set forth burdens of proof or the specifics of what the insurance carrier or the injured employee must prove at trial to recover from a third party.  No burdens, or elements, of proof are mentioned either in the italicized language or in any other part of section 417.001.  Second, we read the italicized language as merely placing a limitCor capCon what the insurance carrier may recover.  It does not state that the carrier shall receive the total benefits paid to or assumed for the injured employee.

For these reasons, we cannot agree that section 417.001(b) alters or otherwise affects the burden or elements of proof required of a workers= compensation carrier in a subrogation action against a third-party tortfeasor.

C.      Harris County=s Case Law is Distinguishable

We also have reviewed the case law cited by Harris County in its brief and conclude that the case law does not support Harris County=s position.  As noted above, Harris County cites two opinionsCone from the Texas Supreme Court, and a memorandum opinion of our sister courtCas authority for a different burden and elements of proof in a subrogation action.  See Serrano, 962 S.W.2d at 537B38; Marvin Frank Motor Co., 2004 WL 549487, at *1.

In Serrano, a workers= compensation carrier was reimbursed from damages recovered by the injured employee/claimant. See Serrano, 962 S.W.2d at 537B38.  In that case, an injured employee sued, among others, the third-party tortfeasor.  Id. at 537.  The workers= compensation carrier intervened to assert its subrogation rights to medical benefits paid on behalf of the injured employee.  Id.  After the carrier intervened, the employee settled with the tortfeasor.  Id.  The trial court approved the settlement, but refused to reimburse the carrier for the medical benefits paid because it failed to prove that each amount paid was Areasonable and necessary.@ Id.  The Texas Supreme Court held that, when a carrier is reimbursed from the employee=s recovery, the carrier is entitled to reimbursement without proving that the amounts paid to its injured employee or on his behalf were reasonable and necessary. Id. at 538.  Serrano stands for the proposition that a workers= compensation carrier need not prove the reasonableness and necessity of fees and treatmentCand need only prove the amounts it paidCwhen it is reimbursed from damages the injured worker recovers from a third-party tortfeasor.  See id.; see also Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 37 (Tex. 2008) (citing Serrano for the proposition that carrier is entitled to reimbursement without proof of reasonableness of fees and necessity for treatment when it is reimbursed from damages recovered by its injured worker).  Under Serrano, Harris County does not have to show that the benefits it paid were reasonable and necessary to receive reimbursement of the amount of these benefits from the recovery against a third-party tortfeasor. See Serrano, 962 S.W.2d at 538.  Nonetheless, Serrano does not address what a workers= compensation carrier must do when it seeks to recover against an alleged third-party tortfeasor in the name of the injured employee, and other cases show that the carrier must prove the same damages as the injured employee would, for example, reasonable expenses of necessary medical care in the past actually paid or incurred by or on behalf of Spencer Townsell.  See id. at 537B38; Franks, 936 S.W.2d at 960.

Marvin Frank Motor Co. involved procedural facts similar to this appeal, but the holding was based on proof in the record of the reasonableness and necessity of medical expenses.  In that case, the plaintiff/injured employee was injured when the van he was driving was rear-ended by a truck owned by the defendant and driven by the defendant=s employee. See Marvin Frank Motor Co., 2004 WL 549487, at *1.  Harris County, as the plaintiff=s employer and a self-insured workers= compensation carrier, paid the plaintiff=s medical expenses and lost wages. Id.  The plaintiff did not sue to recover damages. See id.  Harris County then sued the defendant, asserting its subrogation rights under section 417.001 of the Texas Labor Code. Id.  A jury found the defendant negligent, and awarded Harris County the full amount of the medical expenses and lost wages it proved at trial. Id.

On appeal, the defendant claimed, among other things, that Harris County failed to prove the reasonableness and necessity of medical expenses paid on behalf of the injured employee. See id. at *3.  The First Court of Appeals held that the trial record contained medical testimony proving the reasonableness and necessity of the fees and treatment and, for this reason, affirmed the trial court=s judgment. See id.

After relying on the evidence contained in the record to affirm the trial court judgment, the court did state in dicta, and relying on Serrano, that the workers= compensation carrier does not have to prove the reasonableness and necessity of the fees and treatment.  See id.  We decline to follow this dicta and assume that it was stated without the benefit of full briefing on the issue as we have had in this appeal. See Esquivel, 92 S.W.3d at 21B22 (holding that carrier in subrogation action must prove that employee=s medical expenses were reasonable and necessary); see also Torrez v. Sanders, 163 S.W.3d 133, 136 (Tex. App.CSan Antonio 2005, no pet.) (holding that plaintiff must prove that medical benefits were reasonable and necessary).  Therefore, we hold that, in a subrogation action, when a workers= compensation carrier has directly sued the third-party tortfeasor, the carrier has the same burden and elements of proof as  a claimant directly suing the third-party tortfeasor.  In this situation, the carrier Astands in the shoes@ of the injured employee.  See Bashara, 685 S.W.2d at 311.  To successfully recover on the employee=s claim, the carrier must therefore prove the same elements as would a claimant in a direct suit against the tortfeasor.  Nothing in the Texas Labor Code, nor in the case law cited by Harris County, affects the carrier=s burden or elements of proof in a subrogation action against the third-party tortfeasor.

We now examine Metro=s issues.

II.       The Motion For Directed Verdict

In its first issue, Metro contends that the trial court erred by denying its motion for a directed verdict on the issue of medical expenses, temporary impairment, and permanent impairment.  Under its first issue, Metro also asserts that the trial court erred in overruling its motion for directed verdict because there is no evidence that the medical expenses were   reasonable, necessary, and related to the occurrence in question or that Townsell had a temporary or permanent impairment.^[5]

A.      Standard of Review and Applicable Law

We review the denial of a motion for directed verdict by a legal sufficiency or Ano evidence@ standard of review. Prestige Ford Co. Ltd. P=ship v. Gilmore, 56 S.W.3d 73, 81 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to Harris County and indulge every reasonable inference in Harris County=s favor. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).  We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not.  See id. at 827.  We must determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue.  See id.  The factfinder is the only judge of witness credibility and the weight to give their testimony. See id. at 819.  Furthermore, statutory construction is a legal question we review de novo. City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008).  In construing a statute, our objective is to determine and give effect to the Legislature=s intent. See Nat=l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). If possible, we must ascertain that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id.  If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision=s words.  St. Luke=s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997).

B.      Townsell=s Medical Expenses

1.       Harris County Had the Burden of Proving that Townsell=s Medical Expenses Were Reasonable and Necessary

Metro argues that Harris County was required to prove that Townsell=s medical expenses were reasonable and necessary, and that Harris County failed to do so.  While we agree with Metro that Harris County was required to prove that Townsell=s medical expenses were reasonable and necessary, we disagree that Harris County failed to do so in this case.^[6]

To recover medical expenses, a claimant must prove that the charges incurred were reasonable and necessary. Nat=l Union Fire Ins. Co. v. Wyar, 821 S.W.2d 291, 297 (Tex. App.CHouston [1st Dist.] 1991, no writ).  A plaintiff may prove that medical expenses are reasonable and necessary either by presenting expert testimony, or by submitting affidavits in compliance with section 18.001 of the Civil Practices and Remedies Code. Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex. App.CHouston [14th Dist.] 2002, no pet.); see Tex. Civ. Prac. & Rem. Code _ 18.001(b).  Moreover, hospital bills introduced into evidence are sufficient to support an award of past medical expenses. Nat=l Union Fire Ins. Co., 821 S.W.2d at 297.  Proof of amounts charged or paid is not proof of reasonableness, and the recovery of medical expenses will be denied in the absence of evidence showing the charges were reasonable and necessary. See Jackson, 77 S.W.3d at 902B03; see also Six Flags of Tex., Inc. v. Parker, 759 S.W.2d 758, 760 (Tex. App.CFort Worth 1988, no writ).

With this in mind, we must now examine whether Harris County presented legally sufficient evidence of the reasonableness and necessity of Townsell=s medical expenses.

2.       Harris County Presented Legally Sufficient Evidence That Townsell=s Medical Expenses Were Reasonable and Necessary

Based on our review of the record, we conclude that Harris County presented legally sufficient evidence that the medical expenses paid on Townsell=s behalf were reasonable and necessary.  As noted above, a plaintiff may prove that medical expenses are reasonable and necessary by submitting affidavits in compliance with section 18.001 of the Civil Practices and Remedies Code.^[7] See Jackson, 77 S.W.3d at 902; Tex. Civ. Prac. & Rem. Code _ 18.001(b).  That section provides:

Unless a controverting affidavit is filed as provided by this section, an affidavit that the amount a person is charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.

Tex. Civ. Prac. & Rem. Code _ 18.001(b).  In order to be sufficient, the affidavit must (1) be taken before an officer with authority to administer oaths; (2) be made by the person in charge of records showing the service provided and the charge made; and (3) include an itemized statement of the service and charge. See id. _ 18.001(c).

At trial, Harris County presented the billing records of four of Townsell=s medical care providers, along with the sworn affidavits of the records custodian for each provider.  The billing records provided itemized statements of the amounts charged and the medical services performed on Townsell, while the affidavits contained the custodians= respective averments that the services provided were necessary and that the amounts charged for the services were reasonable.^[8]  In addition, each of the affidavits were properly sworn to before a notary public.  Metro failed to file any controverting affidavits at trial.

Because Harris County filed affidavits in compliance with section 18.001 of the Civil Practices and Remedies Code, and because Metro failed to file any controverting affidavits, the evidence is legally sufficient to prove that Townsell=s medical expenses were reasonable and necessary.  For this reason, the trial court did not err in denying Metro=s motion for directed verdict on the issue of whether Townsell=s medical expenses were reasonable and necessary.

C.      Causal Relationship

Metro also argues that the trial court erred in overruling its motion for directed verdict because there is no evidence that the medical expenses were related to the occurrence in question.  This argument lacks merit.  The causal nexus between the event sued upon and the plaintiff=s injuries must be shown by competent evidence. See Guevara v. Ferrer, 247 S.W.3d 662, 666 (Tex. 2007); Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984).  Non-expert evidence, including lay witness testimony, alone is sufficient to support a finding of causation in circumstances where both the occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence.  See Guevara, 247 S.W.3d at 668.  The Texas Supreme Court has acknowledged that Acausation as to certain types of pain, bone fractures, and similar basic conditions following an automobile collision can be within the common experience of lay jurors.@ Id.

Based on our review of the record, we hold that Harris County presented legally sufficient evidence showing a causal relationship between the collision and Townsell=s medical expenses. Townsell=s testimony was not refuted or otherwise controverted by Metro at trial.  His testimony establishes a sequence of events from which the jury could properly infer, without the aid of expert medical testimony, that the collision with the Metro bus caused Townsell to suffer injury, and that his medical expenses were causally related to this accident.^[9] See Morgan, 675 S.W.2d at 733 (AGenerally, lay witness testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation.@); see also Guevara, 247 S.W.3d at 669 (concluding that lay witness testimony of circumstances surrounding an automobile accident and the plaintiff=s complaints are sufficient to allow a layperson of common knowledge and experience to determine that the plaintiff=s immediate post-accident condition which resulted in his transportation to and examination in the emergency room, as well as the medical expenses for his examination and treatment, were causally related to the accident).

D.      Temporary or Permanent Impairment

Metro also contends on appeal that the trial court erred in denying its directed verdict, in which it asserted that there is no evidence that Townsell had a temporary or permanent impairment.  This argument fails for several reasons.  First, Metro did not assert this argument in its motion for directed verdict.  Second, although Metro did assert this argument in its motion for new trial, in its opening appellate brief, Metro never asserts that the trial court erred in denying its motion for new trial.  In any event, even if Metro had made this argument, it would lack merit.  As to its claim against Metro as an alleged third-party tortfeasor in the name of the injured employee, Harris County must prove up common law damages, which do not include statutory temporary income benefits or impairment income benefits^[10] based on temporary or permanent impairment.  See, e.g., Strauss v. Cont=l Airlines, Inc., 67 S.W.3d 428, 435 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (explaining Apast lost earnings@ and Aloss of earning capacity@ in personal injury case).  Even if there were legally insufficient evidence that Townsell had a temporary or permanent impairment, that would be irrelevant to the subrogation claim against Metro.^[11]

For the reasons stated above, we overrule Metro=s first issue.

III.      Questions 3 and 4 of the Jury Charge Were Improperly Submitted

We now turn to Metro=s second issue, in which Metro contends that the trial court erred by overruling its objections that the jury charge failed to ask the jury to determine whether the medical expenses were reasonable and necessary, and whether the alleged damages resulted from Metro=s negligence.  We review alleged jury charge error for an abuse of discretion. Holeman v. Landmark Chevrolet Corp., 989 S.W.2d 395, 397 (Tex. App.CHouston [14th Dist.] 1999, pet. denied) (citing Tex. Dep=t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990)).  A trial court abuses its discretion if it fails to analyze or apply the law correctly. In re Sw. Bell Tel. Co., 226 S.W.3d 400, 403 (Tex. 2007).  If we find error in the charge, we must determine whether it is reversible by reviewing the pleadings of the parties, the evidence presented at trial, and the charge in its entirety. See Island Recreational Dev. Corp. v. Republic of Tex. Savings Ass=n, 710 S.W.2d 551, 555 (Tex. 1986).  We will reverse only if the error, viewed in light of the totality of the circumstances, amounted to a denial of the rights of the complaining party that probably caused the rendition of an improper judgment. Id.; Tex. R. App. P. 44.1(a)(1).  However, whether the charge has submitted the controlling issues in the case, in terms of theories of recovery or defense, is a question of law that we review de novo. De Leon v. Furr=s Supermarkets, Inc., 31 S.W.3d 297, 300 (Tex. App.CEl Paso 2000, no pet.).

In its charge, the trial court apparently accepted Harris County=s argument that, if it proves that Metro=s negligence caused the accident, then Harris County may recover all the benefits that it paid, without proving that any amount of damages resulted from the accident.  However, as stated above, the trial court should have charged the jury the same as in a negligence claim by Townsell, including standard damage questions regarding reasonable expenses of necessary medical care in the past actually paid or incurred by or on behalf of Spencer Townsell and past lost earnings or loss of earning capacity sustained in the past.  See Serrano, 962 S.W.2d at 537B38; Franks, 936 S.W.2d at 960; Bashara, 685 S.W.2d at 311.  We conclude that the trial court erred by overruling Metro=s objections.  Under the charge submitted to the jury, the trial court did not  require findings on these controlling issues. See Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 43-44 (Tex. 2007) (holding that it is reversible error when a charge omits essential elements of a claim over the objection of the defendant); see also Sw. Bell Tel. Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992) (reversing and remanding cause of action because the trial court failed to submit question requiring jury to make finding on controlling issue). Metro asserts that this error requires reversal.  We agree.

We conclude that this error is reversible.^[12]  See Ledesma, 242 S.W.3d at 43B44; see also John Carlo Tex., Inc., 843 S.W.2d at 472.  We therefore sustain Metro=s second issue.^[13]

Conclusion

We affirm that portion of the judgment awarding Harris County property damages in the amount of $4,140.67.  We reverse the remainder of the judgment and remand for further proceedings in accordance with this opinion.

/s/      Wanda McKee Fowler

Justice

Judgment rendered and Memorandum Opinion filed August 26, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.

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^[1]  According to the parties= briefs, Townsell intervened in the suit, seeking to recover for pain and suffering and mental anguish.  The jury did not award Townsell any damages for pain and suffering or mental anguish, although the trial court ordered that Penny White, Townsell=s attorney, be awarded $1,000 from the jury=s award to Harris County.  No party has appealed this award of attorney=s fees to White, and we do not address that award here.

^[2]  Neither Metro nor Harris County has appealed the property damage award.

^[3]  Though Metro disputed that Harris County could recover these amounts against Metro in the subrogation action, the parties did not dispute that Harris County had paid these amounts. 

^[4]  In its judgment, the trial court actually awarded Harris County $20 less than this amount, but this discrepancy is not relevant to the appellate issues in this case.

^[5]  Harris County contends that Metro failed to preserve error on all of these grounds in the trial court.  We conclude that Metro voiced in its motion for directed verdict the complaint that there is no evidence that the medical expenses were reasonable, necessary, and related to the occurrence in question.  Contrary to Metro=s assertion in its appellate brief, Metro did not argue in its motion for directed verdict that there is no evidence that Townsell had a temporary or permanent impairment.  Metro did preserve this argument in its motion for new trial; however, Metro has not challenged the denial of that motion in its opening brief on appeal, and this argument fails for the reasons mentioned below.

^[6]  We review the legal sufficiency of the evidence in this regard even though the jury charge did not ask the jury to determine whether the medical expenses were reasonable and necessary because this determination is required under Texas law and because Metro objected to this omission in the jury charge. See Tractebel Energy Mtkg., Inc. v. E.I. DuPont DeNemours & Co., 118 S.W.3d 60, 68B69 (Tex. App.C Houston [14th Dist.] 2003, pet. denied).

^[7]  Affidavits complying with section 18.001(b) do not, in and of themselves, establish a causal nexus between the collision and Townsell=s medial expenses. See Owens v. Perez, 158 S.W.3d 96, 110 (Tex. App.CCorpus Christi 2005, no pet.).  However, as we discuss below, Harris County presented legally sufficient evidence that Townsell=s injuries were caused by the collision with the Metro bus.  Furthermore, Metro stipulated to the amount of property damage incurred by Harris County.  Thus, Metro does not contest that the negligence of the Metro bus driver caused the collision with the tractor Townsell drove.

^[8]  Specifically, Harris County submitted billing records and affidavits for Churchill Evaluation Centers, Mana MRI, Medical Evaluation Specialists, and United Neurology.  The records custodian for Churchill Evaluation Centers averred in her affidavit that the charges for Townsell=s treatment were Areasonable for like or similar services rendered in the vicinity in which they were incurred,@ and that Athese charges were necessary in connection with the treatment of the above-named person.@  Although these statements do not directly track the statutory language of section 18.001(b), we find that they satisfy the requirements of that subsection. See Tex. Civ. Prac. & Rem. Code _ 18.001(b).

^[9]  The facts of this appeal fall within the type of testimony the Texas Supreme Court contemplated in Guevara, where the Court stated that lay witness testimony alone could support a finding of causation under Alimited circumstances.@ See Guevara, 247 S.W.3d at 667.  There, Justice Johnson explained:

The record before us contains lay testimony about [the plaintiff=s] pre-accident physical condition, his activities and other events leading up to the accident, the accident, an investigating police officer=s report, and post-accident events including medical treatments.  This type of evidence Aestablishing a sequence of events which provides a strong, logically traceable connection between the event and the condition@ could suffice to support a causation finding between the automobile accident and basic physical conditions which (1) are within the common knowledge and experience of laypersons, (2) did not exist before the accident, (3) appeared after and close in time to the accident, and (4) are within the common knowledge and experience of laypersons, caused by automobile accidents.  For example, if [the plaintiff] had been pulled from a damaged automobile with overt injuries such as broken bones or lacerations, and undisputed evidence which reasonable jurors could not disbelieve showed that he did not have such injuries before the accident, then the physical conditions and causal relationship between the accident and the conditions would ordinarily be within the general experience and common knowledge of laypersons.

^[10]  As stated above, Harris County only has to prove that it paid these benefits to receive reimbursement of the amount of these benefits from the recovery against a third-party tortfeasor. See Serrano, 962 S.W.2d at 538.  The amount of these payments was not disputed at trial.

^[11]  Furthermore, even if Metro had preserved error and argued on appeal that there is no evidence that the occurrence in question caused lost earnings or lost earning capacity, this argument would lack merit because there is legally sufficient evidence in this regard.  Townsell testified that (1) he missed sixteen weeks of work as a result of the accident, (2) he experienced lower back and neck pain during those sixteen weeks, and (3) he did not receive his full income during this period.

^[12]  Although Harris County met the requirements of section 18.001(b) of the Civil Practice and Remedies Code through the medical expenses affidavits, the affidavits were not proof as a matter of law of the reasonableness and necessity of the expenses they discussed. See Tex. Civ. Prac. & Rem. Code ' 18.001(b); see also Beauchamp v. Hambrick, 901 S.W.2d 747, 749 (Tex. App.CEastland 1995, no writ).  Section 18.001(b) states only that the affidavits are Asufficient evidence to support a finding of fact by judge or jury that the amount charged was reasonable or that the service was necessary.@  Tex. Civ. Prac. & Rem. Code ' 18.001(b).  Thus, without a finding that the services were necessary and the charges reasonable, pursuant to Ledesma, we must reverse and remand. Ledesma, 242 S.W.3d at 43B44.

^[13]  Because we reverse and remand based on Metro=s second issue, we need not and do not address Metro=s third issue.