Texas Workers’ Compensation

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Court of Appeals of Texas,

Houston (14th Dist.).

TRANSCONTINENTAL INSURANCE COMPANY, Appellant,

v.

Joyce CRUMP, Appellee.

No. 14–06–00905–CV.

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Aug. 26, 2008.

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Rehearing Overruled Nov. 20, 2008.

Attorneys & Firms

*90 David L. Brenner, Austin, for appellant.

Peter Michael Kelly, Thomas James Barnes, Houston, for appellee.

Panel consists of Justices YATES, BROWN.

OPINION

JOHN S. ANDERSON, Justice.

In this worker’s compensation death benefits judicial review proceeding, appellant, Transcontinental Insurance Company, appeals a judgment in favor of appellee, Joyce Crump. Finding no error, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Appellee was married to Charles Crump, a longtime employee of Frito Lay. Mr. Crump worked in the packaging department at Frito Lay and on May 9, 2000, while training another employee, he struck his right knee on a tape dispensing machine. Because his knee injury was a producing cause of his death.

A. Mr. Crump’s Medical History Prior to May 9, 2000

Mr. Crump received a hepatitis C or any liver or kidney problems. Both medical doctor expert witnesses who testified also confirmed Mr. Crump’s medical records did not reveal, besides his transplanted kidney and immunosuppressant therapy, any medical issues immediately prior to the May 9, 2000 workplace injury.

B. Mr. Crump’s Medical History From May 9, 2000 Until His Death

After striking his right knee on the tape machine, Mr. Crump came home and was in some pain. According to appellee, Mr. Crump complained his leg was bothering him and he laid around more than normal. Because his leg continued to bother him and he was running a fever, Mr. Crump went to Dr. Khalid Chaudhary about his leg injury on May 15, 2000. Dr. Chaudhary diagnosed a contusion to the right knee and a large hematoma1 on the inside area of the knee and lower thigh. Dr. Chaudhary prescribed analgesics and antibiotics. With this initial visit to Dr. Chaudhary, Mr. Crump began an eight month medical odyssey that included at least eighty days in three different hospitals, continuous treatment with antibiotics, and finally ended with his death on January 23, 2001.

Mr. Crump saw Dr. Chaudhary three more times because his knee injury would not resolve. On June 6, 2000, because Mr. Crump was complaining of fever and burning pain in his right leg, Dr. Chaudhary, concerned a secondary infection had developed in the contused area of Mr. Crump’s right leg, referred him to Dr. Camille George, an orthodpedic doctor.

Mr. Crump saw Dr. George the next day. Mr. Crump complained of increased pain, swelling, fever, and warmth in his right leg and ankle. Upon examining Mr. Crump, Dr. George noted extensive swelling and warmth along his inner thigh, calf, and ankle. Her impression was Mr. Crump had blood cultures.

Mr. Crump was admitted to Polly Ryon Hospital on June 14, 2000, where he remained until he was transferred to Memorial Southwest Hospital on June 23, 2000, for additional investigation. At the time he was transferred to Memorial Southwest, the doctors diagnosed Mr. Crump with opportunistic infections tend to develop in people who are immunosuppressed. Organisms such as bacteria, fungi, or viruses that a normal person would not have a *92 problem with, can make an immunosuppressed person very sick. Dr. Daller also explained the fact a person, such as Mr. Crump, is on immunosuppression therapy can delay the proper diagnosis of an infection. According to Dr. Daller, because a person’s immune system is suppressed, the person’s body does not react the way a normal person’s would and it does not immediately produce pus in the infected area. Thus, the immunosuppression drugs can mask not only the existence of an infection, but also the severity of the infection.

On June 26, 2000, Mr. Crump was transferred to the University of Texas Medical Branch, Galveston (“UTMB”) where Dr. Daller had agreed to treat him. At the time he was transferred, the physicians at Memorial Southwest believed Mr. Crump had sepsis or a body-wide infection with persistent fever. The Memorial Southwest doctors believed the source of the sepsis was Mr. Crump’s lungs. On July 3rd, a renal failure and his liver function had deteriorated because of his infection.

Following his discharge on July 13th, Mr. Crump went back to UTMB from July 22 through July 25, 2000, for angina-like chest pain and again from July 28 until August 4, 2000. During the late July hospitalization, Dr. Steve Weinman, a gastroenterologist, examined Mr. Crump. According to Dr. Weinman, Mr. Crump appeared to be a case of decompensation of HCV-associated injured his knee and developed the infection in his leg, this caused a decompensation, or worsening, of his liver disease.

On September 16, 2000, UTMB admitted Mr. Crump because of swelling in his right lower leg. He would not be discharged until October 3, 2000. During this hospitalization, Dr. Daller determined Mr. Crump had developed an cellulitis can be a side effect of a blood borne infection.

Mr. Crump entered UTMB again between October 13 and October 20, 2000, because of persistent fever and sinus pain. He also went to the Polly Ryon Hospital Emergency Room on October 22, 2000, with a nose bleed. UTMB admitted Mr. Crump again from November 6 until November 18, 2000, because he was experiencing seizures. When UTMB discharged Mr. Crump, his infection had still not resolved as he was taking wound in his leg. Mr. Crump visited a UTMB clinic on January 10, 2001 complaining of back pain.

On January 22, 2001, appellee took Mr. Crump to the Polly Ryon Hospital emergency room. Mr. Crump went to the emergency room with complaints of pain in his right lower back and vomiting. It was also noted Mr. Crump had been running a high fever and was disoriented for several days before coming to the hospital. One of the doctors treating Mr. Crump noted he had been sick since May 2000 with an infection in his right leg. The Polly Ryon medical records also indicate Mr. Crump was experiencing very low blood pressure. While still in the emergency room, Mr. Crump vomited several times and had to be resuscitated. Mr. Crump was transferred to the Intensive Care Unit where he died on January 23, 2001. Mr. Crump was 43 at the time of his death.

Following Mr. Crump’s death, the Harris County Medical Examiner performed an autopsy and found that cirrhosis and ileus.8

C. The Administrative and Trial Proceedings

Contending Mr. Crump’s May 9th injury was a producing cause of his death, appellee sought workers’ compensation death benefits. On July 11, 2002, the Appeals Panel of the Texas Workers’ Compensation Commission (now the Division of Workers’ Compensation of the Texas Department of Insurance) affirmed a contested case hearing officer’s decision that Mr. Crump’s May 9, 2000 work-related injury was a producing cause of his death. Appellant then sought judicial review of the Appeals Panel decision pursuant to chapter 410 of the Texas Labor Code. The party seeking judicial review of the workers’ compensation Appeals Panel decision has the burden of proof by a preponderance of the evidence. Tex. Lab.Code Ann. § 410.303 (Vernon 2006). Thus, in seeking judicial review of the Appeals Panel decision, appellant had the burden to prove, by a preponderance of the evidence, that Mr. Crump’s May 9, 2000 workplace injury was not a producing cause of his injury.

Prior to trial, appellant sought to exclude the testimony of appellee’s medical experts, Dr. Daller. Dr. Daller is a transplant surgeon who treated Mr. Crump during his hospitalizations at UTMB. Appellant argued Dr. Daller’s opinion regarding the role Mr. Crump’s May 9, 2000 knee injury played in his death was not based on a reliable foundation and should be excluded. The trial court denied appellant’s motion.

In addition to appellee, two medical experts testified during the trial: Dr. Daller and Dr. Jason Hunt, appellant’s retained medical expert. Dr. Daller, in addition to testifying on the contents and meaning of Mr. Crump’s medical records, testified Mr. Crump’s work injury was a producing cause of his death because it incited or triggered a series of events that led to his death. In Dr. Daller’s opinion, Mr. Crump’s kidney transplant. Dr. Daller further opined this infection negatively impacted the functioning of his organs, including his liver and kidney, which ultimately caused his death.

On direct examination, Dr. Hunt opined Mr. Crump’s May 9, 2000 propoxyphene found in Mr. Crump’s body during the autopsy; and (6) the death certificate did not include a notation that Mr. Crump’s death was the result of a work-related injury.

Following his direct testimony, Dr. Hunt was extensively cross-examined by appellee. During this cross-examination, Dr. Hunt refused to disavow his deposition testimony in which he stated the wound was a contributing factor to his death.

Finally, both appellant and appellee addressed an error on Dr. Hunt’s November 12, 2001 report. In his report, beneath his signature, Dr. Hunt stated he was a board certified transplant surgeon. Dr. Hunt admitted he was not a transplant surgeon. He also admitted he wrote the report and proofread it. Finally, Dr. Hunt testified he did not know how the assertion made it onto his report.

The case was submitted to the jury with a single issue.9 The jury determined Mr. Crump’s May 9, 2000 knee injury was a producing cause of his death. Appellee did not submit the issue of her attorney’s fees to the jury and instead, over the objection of appellant, submitted the recovery of attorney’s fees to the trial court. The trial court awarded appellee *96 $160,005.23 for attorney’s fees and expenses incurred through the completion of the trial. The trial court also awarded appellee $2,812.50 for attorney’s fees incurred in the preparation for and participation in the hearing on the recovery of attorney’s fees. This appeal followed.

DISCUSSION

Appellant raises seven issues on appeal which can be divided into three general categories. Issues one and three address the sufficiency of the evidence. In issue two, appellant contends the trial court improperly instructed the jury on producing cause. In issues four through seven, asserting various arguments, appellant challenges the trial court’s award of attorney’s fees to appellee. We address each category in turn.

I. Was Dr. Daller’s Opinion Reliable?

In its first issue, appellant argues the evidence is legally and factually insufficient to support the jury’s verdict. However, appellant’s sufficiency challenge is based on the premise Dr. Daller’s testimony constitutes no evidence because it was not based on a reliable foundation and was inadmissible, thus making Dr. Hunt’s testimony uncontroverted. Therefore, before addressing appellant’s first issue, we examine the third issue challenging the reliability of Dr. Daller’s expert testimony.

A. The Standard of Review

While evidentiary rulings, including rulings on expert testimony, are normally reviewed for an abuse of discretion, when the trial court admits expert testimony and an appellant challenges the expert testimony as no evidence, we consider whether the expert testimony is reliable under a de novo standard of review. Mo. Pac. R.R. Co. v. Navarro, 90 S.W.3d 747, 750 (Tex.App.–San Antonio 2002, no pet.).

B. Dr. Daller’s Causation Opinion Was Based on a Reliable Foundation

Appellant argues Dr. Daller’s expert testimony connecting Mr. Crump’s May 9, 2000 E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995).10 We disagree.11

*97 Instead of applying the six Robinson factors, in this case, where Dr. Daller’s opinion was based on his experience and training in his field, we consider whether there is an “analytical gap” between the expert’s opinion and the bases on which the opinion was founded. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex.1998)).

Dr. Daller utilized a differential diagnosis in reaching his conclusions regarding the connection between Mr. Crump’s Id. We agree with the First Court of Appeals and hold Dr. Daller’s causation opinion, developed through a differential diagnosis while treating Mr. Crump, does not contain an “analytical gap” between his opinion and the bases on which his opinion was founded. Therefore, we hold Dr. Daller’s opinion was based on a reliable foundation and was properly admitted into evidence. We overrule appellant’s third issue.

II. Was the Evidence Legally and Factually Sufficient?

In appellant’s first issue, appellant contends (1) Dr. Daller’s opinion was not based on a reliable foundation and therefore legally constitutes no evidence; (2) making Dr. Hunt’s opinion testimony uncontroverted; (3) which makes the evidence legally and factually insufficient to support the jury’s verdict.

A. The Standard of Review

In this judicial review proceeding, appellant, as the party appealing from the workers’ compensation Appeals Panel decision, had the burden of proof to establish that *98 Mr. Crump’s May 9, 2000 Tex. Lab.Code Ann. § 410.303.

In a legal sufficiency review, we view the evidence in the light most favorable to the verdict and indulge every reasonable inference that supports the verdict. City of Keller, 168 S.W.3d at 819.

In a factual sufficiency review, we consider and weigh all the evidence supporting and contradicting the finding. Gonzalez v. McAllen Med. Ctr., Inc., 195 S.W.3d 680, 681 (Tex.2006) (per curiam).

B. The Evidence is Legally and Factually Sufficient

*99 The entire foundation of both appellant’s legal and factual sufficiency arguments rests upon the contention Dr. Daller’s expert testimony was not reliable, was inadmissible, and therefore constitutes no evidence. However, we have already determined Dr. Daller’s expert opinion was reliable and was properly admitted by the trial court. Therefore, it must be considered in our sufficiency review.

Since appellant had the burden of proof at trial, in our legal sufficiency review, we first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. knee injury contributed to his death. This constitutes some evidence supporting the jury’s finding. We hold the evidence is legally sufficient. For the same reason, we determine the jury’s finding is not against the great weight and preponderance of the evidence. Accordingly, the evidence is factually sufficient. We overrule appellant’s first issue.

III. Did the Trial Court Improperly Instruct the Jury on Producing Cause?

In its second issue, appellant contends the trial court improperly defined “producing cause”12 in the jury charge. We disagree.

A. The Standard of Review

A trial court must submit “such instructions and definitions as shall be proper to enable the jury to render a verdict.” Kiefer v. Cont’l Airlines, Inc., 10 S.W.3d 34, 37 (Tex.App.–Houston [14th Dist.] 1999, pet. denied). To determine whether an improper jury charge constitutes reversible error, we consider the pleadings, the evidence, and the charge in its entirety. Id.

B. The Trial Court Properly Defined “Producing Cause”

Courts liberally construe workers’ compensation legislation to carry out its purpose of compensating injured workers and their dependents. Tex. Employers’ Ins. Assoc. v. Charles, 381 S.W.2d 664, 668 (Tex.Civ.App.–Texarkana 1964, writ ref’d n.r.e.).

Here, the trial court defined “producing cause” as “an efficient, exciting, or contributing cause that, in a natural sequence, produces the death in question. There may be more than one producing cause.” We conclude this definition accurately states the law as applied to “producing cause” in a workers’ compensation case and the trial court did not abuse its discretion when it defined “producing cause” in this manner and rejected appellant’s proposed definition.13 See Tex. Employers’ Ins. Assoc. v. Fuentes, 597 S.W.2d 811, 812 (Tex.Civ.App.–Eastland 1980, writ ref’d n.r.e.) (approving identical language as an accurate definition of “producing cause” in a workers’ compensation case). We overrule appellant’s second issue.

IV. The Texas Constitution Does Not Guarantee a Jury Trial on the Issue of Attorney’s Fees in a Workers’ Compensation Case

The Texas Constitution provides two guarantees of the right to trial by jury. article V, section 10 of the Texas Constitution. We disagree.

A. The Standard of Review

When reviewing the constitutionality of a statute, we begin with the presumption that the statute is constitutional. Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 520 (Tex.1995).

The party challenging a statute’s constitutionality has the burden of proving the statute fails to meet constitutional requirements. Id. at 518.

B. Does Article I, Section 15 of the Texas Constitution?

At trial, appellee argued, and the trial court accepted, that Section 408.221, provides, in pertinent part:

(b) Except as otherwise provided, an attorney’s fee under this section is based on the attorney’s time and expenses according to written evidence presented to the division or court.

(c) An insurance carrier that seeks judicial review … of a final decision of the appeals panel regarding compensability or eligibility for, or the amount of, … death benefits is liable for reasonable and necessary attorney’s fees … incurred by the claimant as a result of the insurance carrier’s appeal if the claimant prevails on an issue on which judicial review is sought…. If the carrier appeals multiple issues and the claimant prevails on some, but not all, of the issues appealed, the court shall apportion and award fees to the claimant’s attorney only for the issues on which the claimant prevails. In making that apportionment, the court shall consider the factors prescribed by Subsection (d).

Tex. Lab.Code Ann. § 408.221 (Vernon 2006).

Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 527 (Tex.1995). Therefore, at least with regard to the recovery of income and death benefits, the Workers’ Compensation Act is analogous to a claim for which the right to a jury trial is constitutionally preserved. Id. However, the Supreme Court did not *102 address the issue of attorney’s fees in Garcia.

Attorney’s fees are not recoverable in a negligence suit. article I, section 15 does not apply to appellee’s action to recover attorney’s fees.

C. Does Article V, Section 10 of the Texas Constitution?

Garcia, 893 S.W.2d at 527.

Because section 408.221, the trial court’s denial of appellant’s request for a jury trial cannot violate those constitutional provisions. We overrule appellant’s fourth issue.

V. Appellee Did Not Waive Her Claim for Attorney’s Fees

In issue five, appellant contends appellee waived her claim for attorney’s fees when she failed to submit the issue of her reasonable and necessary attorney’s fees to the jury for resolution. Once again, we disagree.

A. The Standard of Review

The availability of attorney’s fees under a particular statute is a question of law for the court. El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex.1999).

We construe statutory provisions to ascertain and effectuate legislative intent, and we ascertain that intent by first looking to the plain and common meaning of the statute’s words. Carson v. Hudson, 398 S.W.2d 321, 323 (Tex.Civ.App.-Austin 1966, no writ).

*103 B. Because Section 408.221 States the Trial Court Will Determine the Amount of Attorney’s Fees, Appellee Did Not Waive Her Claim

By its plain language, section 408.221 to the jury, we would render a large portion of the statute’s language meaningless. Therefore, because appellee was not required to submit the issue of her reasonable and necessary attorney’s fees to the jury for resolution, she did not waive her claim for attorney’s fees when she did not do so. We overrule appellant’s fifth issue.

VI. Appellant Waived Its Issue On Appeal Contending It Was Entitled to a Plenary Hearing on Appellee’s Attorney’s Fees

In its sixth issue, appellant argues appellee waived her claim for attorney’s fees because she did not present live testimony at a plenary hearing. We do not reach the merits of this issue because appellant waived its claim of waiver.

To preserve error, a timely, specific objection must be made. Wohlfahrt v. Holloway, 172 S.W.3d 630, 639–40 (Tex.App.–Houston [14th Dist.] 2005, pet. denied).

In this issue, appellant argues it was entitled to a plenary hearing where the trial court would hear live testimony on the issue of attorney’s fees. See Wohlfahrt, 172 S.W.3d at 639–40. We overrule appellant’s sixth issue.

VII. Appellee Could Recover Attorney’s Fees Incurred Preparing For and Attending the Hearing on Appellee’s Attorney’s Fees

In issue seven, appellant contends section 408.221 of the Texas Labor Code does not permit appellee to recover the attorney’s fees incurred in preparing for and attending the trial court’s hearing on appellee’s reasonable and necessary attorney’s fees. In response, appellee asserts she is entitled to recovery of those fees *104 and appellant’s argument is based on a improper rewording of the statute. We agree with appellee.

A. The Standard of Review

Because this issue addresses the availability of attorney’s fees under a particular statute, the standard of review is the same as that stated in section V of this opinion.

B. Under Section 408.221 Appellee is Entitled to Recover Those Attorney’s Fees Incurred as a Result of Appellant’s Appeal

Tex. Mun. League Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806, 819–20 (Tex.App.–Fort Worth 2006, no pet.) (affirming award of post-trial attorney’s fees incurred by claimant as a result of worker’s compensation insurance carrier’s appeal).

In her brief, appellee candidly brought the Dallas court of appeals opinion in Id. at 765. We overrule appellant’s seventh issue.

CONCLUSION

Having overruled all of appellant’s issues on appeal, we affirm the trial court’s final judgment.

Footnotes

1

A hematoma is a bruise where you have bleeding into soft tissue.

2

Cellulitis is a skin inflammatory infectious disease process.

3

Hepatitis C is a viral infection that primarily affects the liver. It is a very indolent, chronic infection that can be quiescent and not cause any clinical problems in some people, but in others it can be a slowly progressive disorder that leads to scarring of the liver and cirrhosis. Hepatitis C can be lethal.

4

Hemochromatosis is an iron storage disease in the liver.

5

A potential side effect of amphotericin B is renal toxicity.

6

Cirrhosis of the liver is a process where an agent, which can be viral in nature, drugs, or autoimmune processes, damages the liver. The end result of cirrhosis is a scarring of the normal liver tissue, which reduces its proper functioning. Cirrhosis is a process that usually develops over a long period of time.

7

Propoxyphene is a component of the painkiller Darvocet, which Mr. Crump was receiving.

8

An ileus is a blockage of the intestine.

9

The jury question reads:

QUESTION NO. 1

You are instructed that the Texas Workers’ Compensation Commission found that Charles Crump’s compensable right knee injury of May 9, 2000 resulted in his death on January 23, 2001.

“Injury” means damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm.

“Producing Cause” means an efficient, exciting, or contributing cause that, in a natural sequence, produces the death in question. There may be more than one producing cause.

WAS CHARLES CRUMP’S MAY 9, 2000 INJURY A PRODUCING CAUSE OF HIS DEATH?

Answer “Yes” or “No.”

Answer: Yes

10

The six Robinson factors include: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 557 (Tex.1995).

11

Appellant, citing to the Navarro case, contends Dr. Daller was required to exclude other plausible causes of Mr. Crump’s death with reasonable certainty. Flores v. Employees Ret. Sys. of Tex., 74 S.W.3d 532, 549 (Tex.App.–Austin 2002, pet. denied).

12

Appellant submitted, and the trial court rejected, the following proposed instruction: “ ‘Producing cause’ means that cause, which in a natural and continuous sequence, produces death and without which, the death would not have occurred.”

13

After the parties submitted their briefs in this matter, the Texas Supreme Court decided Ledesma, 242 S.W.3d at 46. We find Ledesma distinguishable and inapplicable to this appeal because it is a products liability case which requires the cause to be a substantial factor of the event in issue, a requirement absent from a workers’ compensation case.

14

In its brief, appellant referenced a single page in the clerk’s record and a small section of the reporter’s record when addressing preservation of this issue. The clerk’s record citation was to an exhibit cover sheet. The reporter’s record citation was to a portion of the hearing on appellee’s motion for new trial following the trial court granting appellant’s motion for summary judgment based on deemed admissions. Neither record citation has any connection with appellant’s plenary hearing issue.

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At a Glance:

Title:

Transcontinental Ins. Co. v. Crump

Court:

14th COA – Houston

Citation:

274 S.W.3d 86

Date:

August 26, 2008

Status:

Published Opinion
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