Urquidi v. Phelps Dodge Refining Corp.

• Decision Date: 02 July 1998
• Docket Number: No. 08-97-00097-CV,08-97-00097-CV
• Parties: 136 Lab.Cas. P 58,431 Felipe URQUIDI, Appellant, v. PHELPS DODGE REFINING CORPORATION, Appellee.
• Court: Texas Court of Appeals

Page 400

973 S.W.2d 400

136 Lab.Cas. P 58,431

Felipe URQUIDI, Appellant, v. PHELPS DODGE REFINING CORPORATION, Appellee.

No. 08-97-00097-CV.

Court of Appeals of Texas El Paso.

July 2, 1998.

Rehearing Overruled Aug. 12, 1998.

Bruce Yetter, El Paso, for Appellant.

James T. McNutt, Joseph L. Hood, Jr., Benjamin A. Escobar, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C., El Paso, for Appellee.

Before BARAJAS, C.J., and McCLURE and CHEW, JJ.

OPINION

McCLURE, Justice.

Felipe Urquidi (Urquidi) filed suit against his former employer, Phelps Dodge Refining Corporation (Phelps Dodge), alleging that he was terminated in violation of TEX.LAB.CODE ANN. § 451.001 (Vernon 1996). The trial court entered a directed verdict and rendered judgment in favor of Phelps Dodge. Finding no evidence of a causal connection between Urquidi's termination and his claim for workers' compensation benefits, we affirm.

FACTUAL SUMMARY

Beginning in 1968 and continuing until a labor strike in 1983, Urquidi worked in what is known as the yard department at Phelps Dodge. As a result of the strike, Urquidi was off of work until March of 1988, when he returned and was assigned to the tank house. On November 2, 1988, Urquidi was injured on the job when he was struck by heavy copper plates. He suffered a laceration to a finger on his left hand. Following treatment by company doctors, Urquidi was released to go back to work; he was placed in a light duty job until December 27, 1988. Urquidi was unaware that his doctor had released him for full duty work. When he was placed in a full duty assignment which required gripping with his hands, he protested because he did not believe he could perform the job due to his injury. Urquidi was returned to light duty the following day after he visited with the company doctor. He remained in a light duty position until December 27 when his medical restrictions were lifted. He was then reassigned to the position he held prior to his injury and he remained in that job until February or March of 1989.

Urquidi continued to experience pain in his upper arms and wrists. He was referred to another physician in January of 1989, but that doctor did not note any disability or recommend further treatment. On May 8, 1989, Urquidi was examined by Dr. Monsivais, an orthopedic surgeon, who placed both of Urquidi's hands in splints. Urquidi was not permitted to return to work and he filed a workers' compensation claim on that same date. In October of 1989, Urquidi underwent carpal tunnel release surgery on his left arm. He attempted to return to work in April of 1990. On April 18, Urquidi underwent a work tolerance test, also known as a functional capacity assessment, at the request of Dr. Monsivais. That evaluation revealed that he had an impairment rating of 17 percent to his left hand, 31 percent to his upper left extremities, 10 percent to his right hand, and 11 percent to his upper right extremities. The evaluator concluded that Urquidi could return to work only if modifications were made. On June 28, 1990, Dr. Monsivais released Urquidi to work with the limitations that he not lift over fifty pounds, and that he refrain from performing overhead work and repetitive movements. Urquidi presented this release to Dana Wray, the company's personnel director, on June 29, 1990. Wray informed Urquidi that there were no light duty jobs available and he could not return to work with the limitations placed upon him by Dr. Monsivais. However, if the restrictions were removed, he could return to work. As a result, Urquidi consulted Dr. Monsivais and began a work strengthening program. He had a second operation on his left arm on July 10, 1991 and underwent surgery on his right arm on November 2, 1991. Urquidi continued physical therapy in an effort to return to work.

In December of 1991, Urquidi spoke with Dr. Monsivais and requested that he be given a full release to return to work without restrictions. In January of 1992, Urquidi had a second work tolerance test which showed an impairment rating of 17 percent on each hand, 31 percent on his left upper extremity and 27 percent on his right upper extremity. By February, Dr. Monsivais had still not cleared Urquidi to return to work. Urquidi returned to Dr. Monsivais on March 2, 1992 and insisted that he be released. Although Dr. Monsivais was reluctant and did not agree from a medical standpoint, he provided the release to Urquidi. After Urquidi presented the release to Phelps Dodge, he was sent to the company's doctor, Dr. Becker. Pursuant to a company policy, Phelps Dodge required Urquidi to undergo a physical examination and drug test before he could return to work. Dr. Becker did not release Urquidi to return to work because his total body impairment rating of 32 did not allow him to adequately perform the duties of his job.

Urquidi obtained another release from Dr. Monsivais on March 26, 1992, which he gave to Phelps Dodge in August of 1992. The company again required him to take a physical examination and drug test. Dr. Becker referred Urquidi to Dr. Cavaretta for conductive testing. The results were abnormal. On February 5, 1993, Urquidi took a second work tolerance test at the request of Dr. Monsivais. Although Urquidi testified that he "passed" the test, the test itself reflects that Urquidi could not perform all of the critical demands of his job due to an inability to grasp with his left hand or lift more than 73 pounds. On February 26, 1993, Dr. Monsivais issued a full release for Urquidi to return to work without limitations. Urquidi took the release to the company nurse. As the nurse spoke with Urquidi, the company's safety director, Bill McInnes, walked in and the nurse advised him that Urquidi was returning to work. McInnes reminded the nurse that company procedures had to be followed. McInnes walked out of the nurse's office, called her on the telephone, and informed her that Urquidi had to undergo a physical and drug test before he could return to work. Those tests were performed on March 2, 1993. Urquidi was also required to perform a work tolerance test which was conducted on May 4, 1993. That evaluation revealed that Urquidi's tolerance to activities did not match the critical demands of his job. Because Urquidi experienced an elevated heart rate during part of the test, Dr. Becker referred him to a cardiologist for evaluation. That exam was performed on July 8, 1993 and revealed no evidence of heart disease but indicated that Urquidi was deconditioned. On July 16, 1993, Dr. Becker determined that Urquidi could not return to work based on the results of the work tolerance test. Further on July 21, 1993, Dana Wray wrote Urquidi and informed him that it was "difficult if not impossible" to consider returning him to work in light of Dr. Monsivais' June 17 determination in a medical report filed with the Workers' Compensation Commission that Urquidi would "never" return to full-time work.

Urquidi filed suit on November 15, 1993, alleging that Phelps Dodge had terminated him in violation of Section 451.001 of the Texas Labor Code. The trial court granted Phelps Dodge's motion for directed verdict on the ground that Urquidi had not established the requisite causal connection between his filing of a workers' compensation claim and his discharge.

DIRECTED VERDICT

By three points of error, Urquidi challenges the granting of a directed verdict in favor of Phelps Dodge on the issue of causation. A directed verdict is proper: (1) when a defect in the opponent's pleadings makes them insufficient to support a judgment; (2) when the evidence conclusively proves a fact that establishes a party's right to judgment as a matter of law; or (3) when the evidence offered on a cause of action is insufficient to raise an issue of fact. ITT Consumer Financial Corp. v. Tovar, 932 S.W.2d 147, 159 (Tex.App.--El Paso 1996, writ denied). In reviewing the granting of a directed verdict by the trial court on an evidentiary basis, we determine whether there is any evidence of probative force to raise fact issues on the material questions presented. Id. at 159, citing Collora v. Navarro, 574 S.W.2d 65, 68 (Tex.1978). We consider all of the evidence in a light most favorable to the party against whom the verdict was instructed and disregard all contrary evidence and inferences arising therefrom. White v. Southwestern Bell Telephone Co., Inc., 651 S.W.2d 260, 262 (Tex.1983); ITT Consumer Financial Corp., 932 S.W.2d at 159-60. If there is any conflicting evidence of probative force on any theory of recovery, the issue is for the jury; an instructed verdict is improper and the case must be reversed and remanded for the jury's determination on that issue. White, 651 S.W.2d at 262; ITT Consumer Financial Corp., 932 S.W.2d at 160. Where no evidence of probative force on an ultimate fact element exists or where the probative force of the testimony is so weak that only a mere surmise or suspicion is raised as to the existence of essential facts, the trial court has the duty to instruct the verdict. Id.

CAUSAL CONNECTION

This Court has previously held that in an Article 8307c case, the employee has the burden of establishing a causal connection between the termination and his claim for workers' compensation benefits. Investment Properties Management, Inc. v. Montes, 821 S.W.2d 691, 694 (Tex.App.--El Paso 1991, no writ); Paragon Hotel Corp. v. Ramirez, 783 S.W.2d 654, 658 (Tex.App.--El Paso 1990, writ denied). We also concluded in Montes that the employee need not prove that the compensation claim was the sole cause of the termination; he merely has to show that it contributed to the employer's decision to terminate him. Montes, 821 S.W.2d at 694; Mid-South Bottling Co. v. Cigainero, 799 S.W.2d 385, 390 (Tex.App.--Texarkana 1990, writ denied). Agreeing that the plaintiff need not prove that his filing of a workers' compensation claim was the sole cause of his termination, the...