Ronnie v. E. Foundations, Inc.

• Decision Date: 22 May 2013
• Docket Number: No. 05–11–01257–CV.,05–11–01257–CV.
• Citation: 401 S.W.3d 445
• Court: Texas Court of Appeals
• Parties: Ronnie and Tammy LANIER, Appellants v. EASTERN FOUNDATIONS, INC., David Allen Beavers, & Choice Drivers, Appellees. National Liability and Fire Insurance Company, Appellant v. Ronnie and Tammy Lanier, Eastern Foundations, Inc., David Allen Beavers, & Choice Drivers, and General Insurance Company of America, Appellees.

401 S.W.3d 445

Ronnie and Tammy LANIER, Appellants

v.EASTERN FOUNDATIONS, INC., David Allen Beavers, & Choice Drivers, Appellees.

National Liability and Fire Insurance Company, Appellant

v.Ronnie and Tammy Lanier, Eastern Foundations, Inc., David Allen Beavers, & Choice Drivers, and General Insurance Company of America, Appellees.

No. 05–11–01257–CV.

Court of Appeals of Texas, Dallas.

May 22, 2013.

John David Hart, Law Office of John David Hart, Fort Worth, TX, for Appellants.

Brett Lee Myers, David, Goodman & Madole, PC, Dallas, TX, for Appellees.

Loren R. Smith, Kelly, Smith & Murrah, PC, Houston, TX, for Intervenor.

Before Justices FRANCIS, LANG, and EVANS.

OPINION

MOLLY FRANCIS, Justice.

Ronnie and Tammy Lanier were injured in an on-the-job accident when a dump truck hit their tractor-trailer. The Laniers sued the driver, David Allen Beavers; Beavers's employer, Choice Drivers; and the company Beavers was driving for, Eastern Foundations, Inc. A jury returned a verdict in the Laniers' favor, awarding $131,000 in past damages to Ronnie and $38,550 in past damages to Tammy. The jury, however, awarded “zero damages” for Ronnie's future pain and mental anguish, medical expenses, physical impairment, and loss of earning capacity and Tammy's derivative claims for past and future loss of consortium and loss of household services. The trial court rendered judgment on the jury's verdict, ordered the award to Ronnie be awarded to National Liability and Fire Insurance Company, the worker's compensation carrier for the Laniers' employer, and then be apportioned “in its entirety” to Ronnie's counsel. The Laniers and National separately appealed.

In two issues, the Laniers argue the jury's “zero damage” findings are against the great weight and preponderance of the evidence. In a third issue, they assert their medical expenses were not presented to the jury in compliance with Haygood v. De Escabedo, 356 S.W.3d 390 (Tex.2011). In its appeal, National brings five issues related to its workers' compensation lien. We sustain National's fourth issue related to trial court error in reducing National's subrogation lien by the amount of the Laniers' litigation expenses and reverse that portion of the trial court's judgment. We affirm the judgment in all other respects.

We begin with the Laniers' appeal. The Laniers were husband-and-wife truck drivers for East–West Express, Inc., a Georgia corporation. On January 14, 2007, they were returning to Georgia from a trip to California when they came upon a multiple-vehicle pileup on an icy bridge on Interstate 20 in Tarrant County. Ronnie, who was driving the tractor-trailer, was able to stop without hitting any of the vehicles. A dump truck pulling an excavator was behind the Laniers. The driver of the dump truck, David Allen Beavers, was unable to stop, jackknifed, and collided with the Laniers' rig, knocking it into another vehicle.

Emergency medical technicians checked Ronnie and Tammy at the scene, but neither was transported to the hospital. Three days after Ronnie arrived back in Georgia, he went to a doctor complaining of neck and back pain. The doctor diagnosed him with a neck strain and prescribed pain medication. The medication, however, did not resolve the problem and, in February, Ronnie went to a hospital emergency room, where he was again told he had a strained neck and back. About two months after the accident, Ronnie was referred to Dr. Roy Baker.

Dr. Baker, a neurosurgeon, ordered various tests and told Ronnie he had a cervical and thoracic strain and had arthritis in his neck. At Dr. Baker's recommendation, Ronnie began physical therapy, which helped for a period of time. In fact, by July, Ronnie was doing well enough to return to work, and he and Tammy made a nine-day trip to California in August. During that trip, Ronnie's symptoms returned, and his hands swelled to the point he could not bend or move them and he was having severe neck pain.

Ronnie said he was in “no shape” to drive, so Tammy drove the entire trip back to Georgia. Once there, he went to Dr. Baker, who advised him that surgery was an option but that it was a “gamble.” Ronnie said he “took the gamble and lost.” In November 2007, Ronnie underwent a three-level cervical spine fusion. Although the surgery alleviated the swelling in his hands, he said he continues to have constant pain in his neck and shoulders. Although he “hurts all the time,” the pain is “not near as bad as it was” and is tolerable with pain medication.

After the surgery, Dr. Baker referred Ronnie to physical therapy, but Ronnie said the treatment did not help. Dr. Baker then referred him to a pain management specialist, Dr. Keith Kirby. Ronnie said Dr. Kirby has performed “radio frequency” treatments and injections to treat the pain, and the procedures have provided temporary relief for a few months at a time.

Ronnie testified he understood from Dr. Baker that he had arthritis in his neck. However, he said he had never had any problems with his neck, shoulder, or arms before the accident and had been in “good health.” He said he did not go to the hospital at the scene of the accident because he did not realize he was hurt.

Because of his physical condition, Ronnie testified he can no longer do long-haul truck driving because his body cannot “take it” and because he cannot drive while taking pain medications. He said he reads at a third- or fourth-grade level and, with his physical problems, did not know of any job he could do. At the time of trial, Ronnie remained under Dr. Kirby's care. He last saw Dr. Baker a year-and-a-half before trial.

Since the crash, Ronnie's activities have been limited by his pain. Tammy testified Ronnie cannot ride for any length of time in a car, walk for very long, or work in the yard raking leaves or chopping wood. He can ride a lawn mower, but for no longer than two to three laps. He has difficulty sitting or standing for any length of time and basically has difficulty getting comfortable without hurting. She said she and Ronnie have “no intimacy” at all.

The jury also heard from Ronnie's doctors. Dr. Baker testified he first saw Ronnie in March 2007. He performed a neurologic examination and ordered x-rays, an MRI, and a myelogram. The neurologic examination tested Ronnie's strength, sensation, and reflexes in his arms and legs, and the results were normal. The MRI showed degenerative, or arthritic, changes in his cervical spine, and in particular, “some stenosis or narrowing, bone spurring” between the fifth and sixth vertebrae and between the sixth and seventh vertebrae. As Dr. Baker explained, the bottom two disks in Ronnie's neck were “pretty well worn out” and he had a “good bit of arthritic change there.” The myelogram showed some bone spurs, particularly at the fifth and sixth vertebrae, with a “little bit of nerve root compression.” After completing all the tests, Dr. Baker diagnosed Ronnie as have cervical spondylosis, which he described as arthritis or arthritic changes, probably aggravated by the trauma of the accident. Dr. Baker acknowledged the accident did not cause the arthritis. Dr. Baker did not observe any acute or gross injury or trauma related to the accident on the images.

Dr. Baker said he recommended physical therapy and, by July 2007, Ronnie was doing “amazingly well.” Ronnie had full range of motion in his neck, had excellent strength in his arms and legs, and had only “a little twinge of pain” in his right shoulder blade. Ronnie told Dr. Baker he “wanted to go back to work the next day,” and Dr. Baker said there was no physical reason that could be objectively verified to prevent Ronnie from returning to work.

Late the following month, Ronnie returned to him and said he was trying to go back to work as a truck driver but was starting to have more pain in his neck, radiating down into his arm, and was losing the use of his fingers. Dr. Baker ordered another MRI, which showed multiple-level degenerative disk changes, particularly at C5–C6, a bulging disk at C4–C5, and degenerative changes at C6–C7. At that point, Dr. Baker diagnosed three-level disk disease. Dr. Baker said the options were surgery or continuing medical treatment with arthritis pills, therapy, and “that sort of thing.” Ronnie opted to have surgery, and in November 2007, Dr. Baker performed a three-level spinal fusion.

The surgery showed all three levels—C4–C5, C5–C6, and C6–C7—had some bone spurring, which Dr. Baker said “implies that whatever is going on there had been there for some time,” and a small amount of disk herniation. The goal of the surgery was to relieve pain by decompressing the nerves and stabilizing the bones of Ronnie's cervical spine. About two weeks after the surgery, Dr. Baker said Ronnie was “doing great” and was “healing well.” He told Dr. Baker that he was feeling “a lot better than he did before the surgery.” A couple of weeks later, Ronnie was “doing pretty well,” although he had “some complaints” of pain in the muscle that goes between the neck and shoulders. Dr. Baker recommended post-surgery physical therapy so that Ronnie could increase his strength and flexibility of his muscles. Dr. Baker testified that, after the surgery, Ronnie “did very well all things considered.” Although he was not entirely pain-free, his pain “seemed to be at a far lower level post-op.” But because of Ronnie's “ongoing discomfort,” he referred him to Dr. Kirby in June 2008.

Dr. Baker testified that during his treatment of Ronnie, Ronnie told him he had never had neck problems before the accident and had nothing but pain since then. Based on Ronnie's reported history, he believed that while the accident did not cause the arthritic changes in Ronnie's neck or his bone spurs, it clearly aggravated Ronnie's pre-existing degenerative condition. In other words, Dr. Baker said the accident “turned a problem which was not causing him problems into one which was causing him pain.”

Upon questioning...