State Office of Risk Manage. v. Escalante

• Court: Texas Supreme Court
• Writing for the Court: Ann Crawford McClure
• Citation: State Office of Risk Manage. v. Escalante, 162 S.W.3d 619 (Tex. 2005)
• Decision Date: 16 March 2005
• Docket Number: No. 08-03-00436-CV.,08-03-00436-CV.
• Petition History: pet. dism'd
• Parties: STATE OFFICE OF RISK MANAGEMENT, Appellant, v. Hector ESCALANTE, Appellee.

162 S.W.3d 619

STATE OFFICE OF RISK MANAGEMENT, Appellant, v. Hector ESCALANTE, Appellee.

No. 08-03-00436-CV.

Court of Appeals of Texas, El Paso.

February 17, 2005.

Rehearing Overruled March 16, 2005.

COPYRIGHT MATERIAL OMITTED

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Bradley D. McClellan, Office of Atty. Gen., Austin, for Appellant.

Robert E. Riojas, El Paso, for Appellee.

Before Panel No. 4 BARAJAS, C.J., LARSEN, and McCLURE, JJ.

OPINION

ANN CRAWFORD McCLURE, Justice.

This is a workers' compensation case arising out of a vehicle accident involving Hector Escalante. After exhausting his administrative remedies in the Texas Workers' Compensation Commission (TWCC), Escalante appealed the adverse determination in district court. The jury found in favor of Escalante on three of four issues, and the trial court entered judgment reversing in part the determination of the TWCC. The State Office of Risk Management (SORM) appeals. Finding no error, we affirm.

FACTUAL SUMMARY

On August 9, 2000, Escalante was leaving a work-related awards ceremony on his way to a job site when he was involved in a motor vehicle accident. He was struck by a truck as he drove out of the parking lot. The truck dragged his car some forty feet into the street, spun him around, and tore off the front of the car. Escalante refused medical attention at the scene and was later taken back to work by a coworker. Admittedly, he had no bruises, scratches, or bleeding.

After the accident, Escalante complained of having unrelenting headaches and pain in his neck, shoulder, ankle, and back. He also complained of blurred vision but he did not receive medical attention until August 16 when he visited Dr. Michael Boone with whom he already had a follow-up visit for a previous injury.¹ Escalante notified the doctor of his new injury and reported his symptoms.

Dr. Boone ordered x-rays and an MRI of the spine. The MRI results revealed that Escalante had a herniated bulge from disks protruding at two levels in his neck and spine. Escalante was sent for an evaluation of his neck in October 2000. He was referred to physical therapy due to a diagnosis of lumbar radiculopathy and cervical neuropathy. Escalante also received electronic differential stimulation and epidural injections for pain in his neck and lower back. Dr. Boone diagnosed him as having cervical and lumbosacral root lesions and utilized the cervical epidurals to relieve pain.

Escalante returned to work in mid-December 2000. His medical restrictions included no bending, stooping, crawling, or lifting more than twenty pounds. He returned to the same position he held before the accident but was working the help desk. Escalante continued working until February 22, 2001 when his employer sent him home because he could not perform the essential physical job functions for his position. He was offered a demotion by the department for less pay. At this time, Escalante was still receiving therapy for his neck, back, and leg. He was ultimately dismissed from his job on March 29, 2002.

By the time of trial, Escalante had deteriorating vision in his right eye, headaches, numbness and weakness in his arms, and pain in his neck and back. He had never received treatment for a neck condition before the auto accident nor had he suffered from blurred vision. He admitted previous problems with his back, including a herniated disk in his lower back and sciatica pain in 1988-1989. He also had lateral laminectomy surgery in 1991, but had received no treatment for back problems between this surgery and the lifting injury in May 1999.

Escalante filed a workers' compensation claim. He began receiving benefits for the lifting injury in March 2001. He was told that since he could not receive benefits on two claims at once, he would be paid on his old injury until he reached maximum medical improvement, and then he would be paid for his new injury. Escalante stopped receiving payments for his old injury but payments for his new injury never began.

A contested case hearing was held on April 22, 2002. The hearing officer determined that Escalante's compensable injury did not include recovery for injury to the lumbar spine, ethnoid sinusitis, cervical root lesions, neuroforaminal narrowing of C5-6 and C6-7, headaches, and/or blurred vision. The appeals commission affirmed the decision, and Escalante sought review in district court. The jury returned a verdict in favor of Escalante on injury to his lumbar spine and formation of cervical root lesions. It also decided that Escalante's injury in the car accident was the producing cause of his disability from February 23, 2001 to April 22, 2002.

LEGAL SUFFICIENCY

In Point of Error No. One, SORM argues that Escalante failed to present legally sufficient or necessary expert evidence on the extent of his injuries. In Point of Error No. Seven, it claims that Escalante failed to produce legally sufficient evidence of disability.

Standard of Review

In considering a no evidence point, we consider only the evidence and inferences tending to support the jury's findings and disregard all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Texas Tech University Health Sciences Center v. Apodaca, 876 S.W.2d 402, 411-12 (Tex.App.-El Paso 1994, writ denied). If more than a scintilla of evidence supports the questioned finding, the "no evidence" point fails. See Tseo v. Midland Am. Bank, 893 S.W.2d 23, 25 (Tex.App.-El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex.App.-El Paso 1994, writ denied).

Challenged Findings

The jury found that the compensable injury sustained by Escalante on August 9, 2000(1) extended to include a compensable injury to his lumbar spine; (2) extended to include a compensable injury in the form of cervical root lesions; (3) did not extend to include a compensable injury in the form of blurred vision; (4) was a producing cause of disability; and (5) the disability existed from February 23, 2001 to April 22, 2002. SORM challenges the jury's findings of injury to the lumbar spine and the cervical root lesions as well as the disability findings.

Necessity of Expert Testimony?

The Workers' Compensation Act defines a compensable injury as "damage or harm to the physical structure of the body." Tex. Lab.Code Ann. § 401.011(26)(Vernon Supp.2004-05). As a matter of law, pain alone cannot be considered damage to the body. Saldana v. Houston General Ins. Co., 610 S.W.2d 807, 811 (Tex.Civ.App.-Houston [1st Dist.] 1980, writ ref'd n.r.e.). However, the aggravation of a pre-existing condition is a compensable injury for purposes of the Act. See Peterson v. Continental Cas. Co., 997 S.W.2d 893, 895 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Cooper v. St. Paul Fire & Marine Ins. Co., 985 S.W.2d 614, 616-18 (Tex.App.-Amarillo 1999, no pet.).

SORM complains that Escalante's injuries resulted in no visible changes to his body such that Escalante had to present expert medical evidence on his injuries since they were not those that a layman could reasonably understand. It directs us to four cases in support of this proposition. First, it draws upon Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370, 373 (1948) for its holding that where a claimant suffered injury to the joints of his knee, shoulder, and spine, the severity and true character were to be revealed only by the most minute, technical, and scientific examinations by medical experts. Id. at 373. Hawkins was a workers' compensation suit in which the trial court instructed a verdict for the insurance company on the sole ground that the claimant had failed to raise a fact issue as to good cause for not filing his claim within statutory guidelines. Id. at 371. In other words, the court was examining whether the claimant had used due diligence in filing his claim. Id. at 372. It does not stand for the proposition that Escalante had to offer medical evidence to show the extent of his injuries.

Next, SORM relies upon Broders v. Heise, 924 S.W.2d 148, 152 (Tex.1996) for its holding that given the increasingly specialized and technical nature of medicine, there is no validity to the notion that every licensed medical doctor should automatically be qualified to testify as an expert on every medical question. But Broders involved the question of whether a witness was qualified to testify as an expert on a particular issue. A doctor is not qualified as an expert merely because he is a medical doctor. Id. at 152. Dr. Boone, as Escalante's treating orthpaedic surgeon, does not fall within the Broders analysis.

Third, SORM contends that Escalante relied upon conclusory medical reports which were not business records and did not prove causation. It cites Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex.1995) for the premise that in order to constitute evidence of causation, an expert opinion must rest on reasonable medical probability. There, the court concluded that when an expert's opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict. Id. at 499-500; see Schaefer v. Texas Employers' Ins. Ass'n, 612 S.W.2d 199, 202-05 (Tex.1980)(reviewing substance of medical expert's testimony and holding that this testimony constituted no evidence of causation, as it was based on assumptions, possibility, speculation, and surmise). Here, SORM has never contended that Dr. Boone's opinion was based on facts that vary materially from those established by the evidence. Consequently, Burroughs is distinguishable.

Finally, SORM references Barraza v. Eureka Co., 25 S.W.3d 225, 230 (Tex.App.-El Paso 2000, pet. denied). There, the plaintiff sued her employer claiming that she suffered injury to her hands and wrists as a result of repetitive movements during the...