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Continental Casualty Company v. James E. Baker

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OPINION ON REHEARING

Appellee James E. Baker filed a motion for en banc reconsideration of our May 5, 2011 opinion. We treat the motion for en banc reconsideration as a motion for rehearing, grant rehearing, withdraw our May 5, 2011 opinion and judgment, and issue this opinion and judgment in their place. The disposition of the case remains unchanged.

In this workers’ compensation case, appellant, Continental Casualty Company (“Continental”), brought suit for judicial review of the decision of the Texas Department of Insurance, Division of Workers’ Compensation (“Division”) in favor of Baker. The jury found that Baker’s compensable injury extended to a left knee meniscus tear identified on an MRI over five years after his work-related accident. The trial court entered judgment in favor of Baker and awarded $134,694.80 in trial-level attorney’s fees and expenses and $33,500 in conditional appellate attorney’s fees. In six issues, Continental contends that (1) the trial court erred in giving a charge that included an instruction on additional injuries, an instruction on aggravation injuries, and an incorrect instruction on producing cause; (2) the trial court erroneously allowed Baker to present a PowerPoint presentation displaying excerpts of evidence during opening statements; (3) the trial court improperly excluded a medical report made to the Division as hearsay; (4) the trial court improperly allowed Baker’s treating doctor to testify as an expert regarding causation of the 2005 meniscus tear because he was not qualified to render such an opinion and his opinions were not scientifically reliable; (5) factually insufficient evidence supported the jury’s verdict; and (6) the trial court erroneously determined the amount of Baker’s reasonable and necessary attorney’s fees, denying Continental its right to have a jury determine this issue.

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