Rangel v. Nueces County
| Decision Date | 10 March 2011 |
| Docket Number | NUMBER 13-09-00610-CV |
| Parties | HUMBERTO A. RANGEL,Appellant, v. NUECES COUNTY,Appellee. |
| Court | Texas Court of Appeals |
On appeal from the County Court at Law No. 2
Before Chief Justice Valdez and Justices Garza and Benavides
By two issues, appellant, Humberto A. Rangel, challenges the trial court's summary judgment in favor of appellee, Nueces County, and its denial of his cross-motion for summary judgment. We affirm in part and reverse in part and remand.
On December 16, 2003, Rangel sustained an injury to his lower back while working for Nueces County as a mechanic's assistant.2 On December 23, 2003, Rangel went to the emergency room at Christus Spohn Shoreline Hospital complaining of severe pain in his lower back.3 Eisen Espina, M.D., the attending physician at Spohn, ordered an MRI of Rangel's lower back. Kenneth Vanexan generated a radiology report on December 29, 2003, documenting that Rangel suffered from the following:
John M. Borkowski, M.D. reviewed Rangel's MRI and concluded that it "revealed multilevel lumbar degenerative disc disease with a right sided disc protrusion at L5-S1 and evidence of [an] annular tear with disc bulge changes at L4-5 with facet arthropathy and also a disc herniation with extrusion centrally to the right of midline at L3-4." Dr. Borkowski recommended a pain management consultation, consideration of epidural steroid injection with medication, and physical therapy as tolerated.6
Ryan N. Potter, M.D. administered a lumbar epidural steroid injection on Rangel's back "at the lowest level possible... aim[ing] for the L5-S1 area...." Dr.
Potter noted that he would follow up with Rangel after forty-eight to seventy-two hours and that if Rangel did not improve after one or two epidurals, Rangel "would be a good candidate for a discogram to further elucidate what disc level is actually causing his pathology and then treatment as such, depending on the results, either an intradiscal procedure or invasive surgical procedure...."
On October 4, 2004, Rangel went to the emergency room complaining of muscle spasms and severe back pain, which began after he exited a swimming pool while performing exercises as part of his treatment plan for his back injury. Rangel was prescribed additional physical therapy and "received treatment, as an exacerbation of the original injury" sustained on December 16, 2003.7
On May 26, 2006, Rangel went to the emergency room and stated that when he stood up from the commode, he felt an unbearable lower back pain. Dr. ThomasChodosh, D.O., Rangel's treating physician, reported in the hospital's admitting notes, that Rangel was admitted for acute lumbosacral pain.8 Dr. Chodosh noted that he had last seen Rangel for a lumbosacral strain in October 2004. According to Dr. Chodosh, Rangel had "been having lumbosacral spine discomforts bothering him off and on periodically" and had "gone to the emergency room one time since 10/04 for a pain injection." Dr. Chodosh scheduled a follow-up examination with Rangel on May 30, 2006, in order to reevaluate Rangel's condition and "schedule a possible MRI of the lumbosacral spine on an outpatient basis."
In a report responding to an inquiry from Nueces County personnel dated June 19, 2006, Dr. Chodosh opined that the May 26, 2006 back pain was not related to the injury Rangel sustained on December 23, 2003. Dr. Chodosh stated that the basis for his opinion was that Rangel "had no medical care since his dismissal and full release on October 25, 2004," and that Rangel said his emergency room visit made after October 2004, "was not considered to be work related and was not reported to be work related to his employer or to the emergency room personnel."
Jairo Puentes, M.D. examined Rangel on July 17, 2006.9 Dr. Puentes generated a report stating:
[Rangel] states he initially developed low back pain after he checked the air filter on a vehicle. He states he closed the hood and felt stabbing back pain to his lower back which he states took his breath away. He was evaluated at Christus Spohn [H]ospital where he was admitted from 12/26/2003 through 01/02/2003. He was given an epidural steroid injection. While he was in the hospital he had a series of x-rays and MRI scans. He was released and received two additional epidural steroidinjections by Dr. Potter. He says he received five months [of] physical therapy and returned back to work. He says he has had flare ups of low back pain since. His last flare up was on 05/26/2006, where again he ended up in the hospital.... His claim [to his insurance company] is being disputed because insurance company says this is not related to the injury of 12/16/2003.
Dr. Puentes further stated:
On March 24, 2008, Rangel had lumbar surgery at L2-L3, L4-L5, and L5-S1. His doctor reported that Rangel stated that he "is doing better" after the surgery.
On September 26, 2006, the Texas Department of Insurance Division of Workers' Compensation ("DWC") held a contested benefit case hearing to decide whether "the compensable injury of December 16, 2003, include[d] an injury consisting of a muscle ligamentous strain of the lumbar spine, myofascitis[10] of the lumbar spine, herniated nucleus pulposus[11] at the L3-L4 level of the lumbar spine and L4 radiculpathy[12] after May 26, 2006." After considering reports and opinions from Dr. Chodosh, and Dr. Puentes, the DWC found that: Rangel sustained a low back strain and herniated nucleus pulposus at the L3-L4 level as a result of the compensable injury of December 16, 2003; Rangel did not seek medical treatment for the compensable injury of December 16, 2003 after October 25, 2004; Rangel sustained a new injury to the low back on May 26, 2006; and Rangel's "muscle ligamentous strain of the lumbar spine, myofascitis of the lumbar spine, herniated nucleus pulposus at the L3-L4 level of the lumbar spine and L4 radiculopathy after May 26, 2006, is not a result of the work related injury sustained on December 16, 2003." The DWC ruled that Nueces County was not liable for providing benefits regarding Rangel's May 26, 2006 injury.13
Rangel filed his original petition on February 7, 2007 in the trial court challenging the DWC's decision and claiming that Nueces County was liable for providing medical benefits for treatment on and after May 26, 2006. See Tex. Lab. Code Ann. § 410.251 (Vernon 2006) (). The parties agreed to submit the matter to the trial court on cross-motions for summary judgment based on an agreed statement offacts.14 Nueces County filed a motion for summary judgment contending that the injury was not compensable as a matter of law. Nueces County argued that the May 26, 2006 incident constituted a "new injury" or aggravation of an injury; Rangel sustained the new injury or aggravation of a prior injury while at his home; and any medical treatment provided after May 26, 2006, was required only as a result of the new injury or aggravation.
Rangel filed a response to Nueces County's motion for summary judgment and a cross-motion for summary judgment. Rangel contended that no genuine issue of material fact existed that his "continuing medical expenses can only be attributed to his compensable injury sustained in [December 2003] while working for Nueces County." Specifically, Rangel pointed to, among other things, the reports written by Michael J. Pendleton, M.D., Dr. Chodosh, and Dr. Puentes.15 Rangel argued Dr. Chodosh's opinion was unreliable because it was not supported by any clinical or diagnostic exams; it was contradictory; and Dr. Chodosh ignored the objective diagnostic exams and other physicians' findings. Therefore, he argued that Dr. Chodosh's reports were "insufficient to raise any genuine issue of material fact on the existence of a 'new' injury or aggravation as defined in workers' compensation law."
On August 3, 2009, the trial court denied Rangel's motion for summary judgment finding "that the evidence establishes that there are material and disputed fact issues...." On the same day, the trial court, in its final take-nothing judgment, granted Nueces County's motion for summary judgment. This appeal ensued.
In a traditional motion for summary judgment, the movant has the burden to establish that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing Tex. R. Civ. P. 166a(c)); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d...
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