IN THE

TENTH COURT OF APPEALS

No. 10-91-116-CV

        EMPLOYERS INSURANCE OF WAUSAU,

        A MUTUAL COMPANY,

                                                                                       Appellant

        v.

        CALVIN L. HEATH,

                                                                                       Appellee

From the 278th District Court

Leon County, Texas

Trial Court # 10,138

O P I N I O N

          Employers Insurance of Wausau appeals from a judgment awarding worker's compensation benefits to Calvin Heath. In four points, Employers asserts that (1) the court erred in failing to grant it a continuance, (2) the court erred in refusing to allow it to present the testimony of one of its medical witnesses, (3) the evidence is insufficient to support the court's finding of a period of total incapacity, and (4) the weight and preponderance of the evidence supports a different finding of the amount of pre-trial benefits paid to Heath. By cross-point, Heath asserts that the appeal was taken for delay only and that damages should be assessed against Employers. We will affirm the judgment and award damages for the delay.

          In July 1989 Employers filed suit against Heath to appeal an award of the Industrial Accident Board. After Heath filed a counterclaim, the court realigned the parties so that Heath became the plaintiff and Employers the defendant. When the case was called for trial in December 1990, Employers filed a motion for a continuance asserting that it had not been able to take Heath's deposition. At a hearing held on December 1, Employers attempted to show that it had diligently tried to take his deposition. Heath, however, demonstrated that the deposition had not been scheduled prior to Employers' request that the case be set for trial, even though the case had been filed for over a year. Heath also asserted that the real reason Employers wanted the continuance was to amend its discovery response to designate an additional doctor as an expert witness. The court offered Employer's attorney the opportunity to depose Heath on the day of the hearing, but the attorney declined.

          The parties then agreed that the case would be continued until January 14, 1991, that Heath's deposition would be taken by agreement, and that the status of all other discovery would remain unchanged. In short, Employers obtained by agreement the relief it sought from the court. It cannot now complain of a ruling entered under an agreement that it made. See Buck v. Rogers, 709 S.W.2d 283, 287 (Tex. App.—Corpus Christi 1986, no writ). Additionally, the granting or denial of a continuance is a matter within the discretion of the court. See State v. Wood Oil Distributing, Inc., 751 S.W.2d 863, 865 (Tex. 1988). Our review of the record does not reveal that the court abused its discretion in granting a continuance based upon an agreement of the parties. See id. We overrule point three.

          Employers complains that the court refused to allow it to introduce the testimony of Dr. Randall Light because he had not been designated as an expert witness. It contends that, because Heath listed Dr. Light in his answers to interrogatories, it was relieved of the duty to designate Dr. Light as an expert witness. Because the interrogatories are not in the record before us, we cannot determine the context in which Heath used Dr. Light's name in answering an interrogatory. It is an appellant's duty to bring forward a record sufficient for appellate review. Wright v. Wright, 699 S.W.2d 620, 622 (Tex. App.—San Antonio 1985, writ ref. n.r.e.). Employers has not done so. Even if we assume that Heath's answers to the interrogatories named Dr. Light as a doctor he had seen, the answers of another party cannot relieve Employers of the duty to disclose the names of its expert witnesses. See Thompson v. Kawasaki Motors Corp., No. 05-91-00226-CV, slip op. at 10 (Tex. App.—Dallas, December 19, 1991). The record does not reveal "good cause" to admit Dr. Light's testimony. See Tex. R. Civ. P. 215. We overrule point four.

          The case was tried to the court, which made findings of fact and conclusions of law at Employers' request. Employers asserts that the evidence is insufficient to support the finding of total incapacity from April 26, 1988, until January 14, 1991. In evaluating a claim regarding legal sufficiency of the evidence, the same standard is used for a bench trial as for a jury trial. Zieben v. Platt, 786 S.W.2d 797, 799 (Tex. App.—Houston [14th Dist.] 1990, no writ). When the complaining party challenges the factual sufficiency of a finding in favor of the party who had the burden of proof on that finding, the reviewing court must sustain the finding unless all the evidence, both for and against the finding, is so weak or insufficient that the finding is manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

          The evidence reveals that Heath had worked for Nucor Steel Corporation since 1981. His job required lifting cylinders which weighed up to ninety pounds. He was injured in April 1988 while lifting chains. He was treated in Buffalo and referred to Dr. Karl Schmitt in Bryan, who treated him from May 1988 until May 1989. He was also treated by other medical personnel. At the time of trial, he was still under Dr. Schmitt's care.

          The primary medical witness for Heath was Dr. Schmitt, who testified by deposition. His testimony is not in the record. Again, it is an appellant's duty to bring forward a record sufficient for appellate review. See Wright, 699 S.W.2d at 622. Without Dr. Schmitt's testimony, we must presume that the court's finding are supported by the evidence. See id. We overrule point one.

          Finally, Employers complains that the great weight and preponderance of the evidence supports a credit of $14,861, instead of the $13,800 allowed Employers by the court, as a credit for benefits paid prior to trial. Employers directs us to records attached to an affidavit made by the custodian of worker's compensation payment records and medical payment records of Employers. The court did not admit a part of the affidavit that summarized the payments. Employers argues that the records demonstrate that it is entitled to a statutory credit of $14,861. Heath takes the position that the only "credible evidence" of the amount of the credit is the award of the Industrial Accident Board that shows benefits paid prior to June 22, 1989, of $13,800. The "indemnity payments" listed in Employer's payment records contains the notation "final comp paid thru 6-18-89." In addition to the notations of "indemnity payments" and "medical payments," the records contain notations of "other reimbursement" and "returned chk." A fact question was presented on which Employers had the burden of proof. The court resolved it by finding that Employers was entitled to a credit of $13,800. Considering all the evidence both for and against the finding, we do not believe that the finding was so against the weight and preponderance of the evidence as to be manifestly unjust. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). We overrule point two.

          Because we have overruled all of Employers points of error, we affirm the judgment.

          Heath's cross-point urges us to find that Employers has taken this appeal for delay and without sufficient cause. See Tex. R. App. P. 84. We agree. We have overruled one point of error based on a ruling to which Employers agreed, two points because the record is insufficient for us to find error, and a final point that complains of an error within the fact-finding authority of the judge. Thus, we award Heath the sum of $2,500 as damages against Employers, to be included as part of the judgment of this court. See id.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas,

          Justice Cummings, and

          Justice Vance

Affirmed

Opinion delivered and filed March 25, 1992

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