Bad Faith and Texas Mutual Insurance: Doctored Documents

Juan Narvaez was working as a Sheetrock framer for Greater Metroplex Interiors near Dallas when he said he injured his back on August 29, 2003, at work, while lifting a heavy metal stud.

Texas Mutual disputed the claim, saying that his back problem was a pre-­existing condition and not work-related and that, in fact, he'd told other workers it was not work-related. The owner had claimed Narvaez told his immediate supervisor it was not a work injury. Texas Mutual offered a statement to that effect signed by the supervisor.

However, according to hearing documents, the supervisor testified that it was the owner, not he, who had typed up the statement, and that he himself spoke Spanish and read only a little English. This, in turn, cast doubt over the owner's testimony and statement, the hearing documents state.

Narvaez won at every hearing in the workers' comp process, and Texas Mutual filed a motion for judicial review. At the trial, the firm of Doyle Raizner challenged a copy of the doctor's notes on which someone had written "mos." next to a word that was hard to decipher. This document had been offered into evidence, although another copy — the original — did not contain the word "mos." Presumably this showed that Narvaez had back problems for months before the day of the work incident.

Judge Martin Hoffman called this fraud, saying that TMI had done this to gain an advantage in this suit. The hearing ended in a mistrial, but later, at the request of the Doyle Raizner firm, Hoffman granted summary judgment to Narvaez and awarded him $203,113 in trial fees and costs, $153,391 of that to Doyle Raizner. As part of his sanctions, he ordered payment to Narvaez of $30,000 and the posting of his order on the TMI Web site. To date, Texas Mutual has paid $83,260 in medical benefits to Narvaez.

Texas Mutual's latest appeal, filed on October 23 to the Court of Appeals for the 5th District in Dallas, argues that the Doyle Raizner firm had both the annotated and unannotated report for two years before the trial and only waited till the last minute to bring up the discrepancy; the appeal says that perhaps its lawyers should be sanctioned for not bringing up the difference sooner.

Texas Mutual also argues that even if "mos." was added, it only clarifies what Narvaez was saying, which is that Narvaez's back had been bothering him for months and that saying so was true — so how can this be called fraud? It also says that Narvaez only filed for workers' comp after seeing a chiropractor.

Narvaez testified that the kind of back pain he had on August 29 was worse than anything he'd had previously. A doctor who examined him found that Narvaez probably had a basic condition and then aggravated it on the job by lifting.

Texas Mutual has never been able to clear up who wrote on the medical record, but insists there was no malice in doing so. At most, it argues, "the trial court could properly have declared a mistrial, based on the failure of the lawyers for both sides to sort out the annotation before trial."