Affirmed and Memorandum Opinion filed May 15,=20
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-05-00819-CV
____________
NORMA=20
HUNT,=20
Appellant
V.
STATE OFFICE=20
OF RISK MANAGEMENT, =
Appellee
On Appeal from the =
55th District Court
Harris County, =
Texas
Trial Court Cause =
No. 2003-31675
M E M O R=20
A N D U M O P I N I O N
This is an=20
appeal from a judgment in a workers=3D =
compensation case in which the jury found that appellant Norma =
Hunt did=20
not sustain a compensable psychological injury. We conclude=20
that the evidence is legally and factually sufficient to =
support the=20
jury=3Ds verdict,=20
and that the trial court did not err in denying Hunt=3Ds motion=20
for directed verdict. Accordingly, we affirm the trial=20
court=3Ds=20
judgment.
I. =20
Factual and Procedural Background
On=20
February 13, 2001, Hunt was working for the Texas Department of=20
Corrections in a picket. A picket is a control room in a=20
correctional facility from which Hunt would control the locking =
and=20
unlocking of prison doors. While working in the picket, Hunt =
began=20
to sit down on a chair with rollers, but the chair rolled =
away. Hunt=20
fell on her buttocks, bracing her fall with her hands and =
sustaining=20
physical injuries (hereinafter the AOccurrence@). =20
As a result of the fall, Hunt was injured in her neck, shoulder, =
and=20
back. Eventually, Hunt underwent shoulder surgery and =
physical=20
therapy. There is no dispute that her original physical =
injuries are=20
compensable under the Texas Workers=3D =
Compensation Act. See Tex. Lab. Code Ann. =
' =
406.031=20
(Vernon 2006).
Hunt=20
continued to complain of chronic pain and had a prolonged recovery =
process. Dr. Yezak, Hunt=3Ds=20
chiropractor, referred Hunt for psychological treatment, and, on =
February=20
20, 2002, Hunt began to receive treatment for depression from =
psychologist=20
Dr. Bricken. Hunt contended that her psychological=20
conditionCsymptoms=20
of depression and panic attacksCis=20
compensable as arising out of the Occurrence. Appellee State =
Office=20
of Risk Management (hereinafter ARisk=20
Management@)=20
countered that Hunt=3Ds=20
psychological condition did not arise out of the Occurrence, and =
Risk=20
Management contested compensability before the Texas =
Workers=3D =
Compensation Commission (hereinafter ACommission@). =20
After both the administrative hearing officer and appeals panel =
determined=20
that Hunt=3Ds=20
psychological condition was compensable, Risk Management filed a =
petition=20
for judicial review in the district court. =
At the=20
trial de novo, Risk Management, as the appealing party, had the =
burden of=20
proving by a preponderance of the evidence that Hunt=3Ds symptoms=20
of depression and panic attacks were not compensable =
injuries. =20
See Tex. Lab. =
Code=20
Ann. '' =
410.301,=20
410.303 (Vernon 2006). The jury found that Hunt=3Ds=20
compensable injury of February 13, 2001 does not include a =
psychological=20
component. Based on this verdict, the trial court rendered =
judgment=20
in favor of Risk Management.
II. =20
Issues Presented
In three=20
issues on appeal, Hunt challenges the legal and factual =
sufficiency of the=20
evidence to support the jury=3Ds finding,=20
and argues that the trial court erred in denying her motion for =
directed=20
verdict.
=
; =
&=
nbsp; =20
III. Standards =
of=20
Review
In=20
determining whether legally sufficient evidence supports the =
finding under=20
review, we must consider the evidence in the light most favorable =
to the=20
challenged finding and indulge every reasonable inference that =
would=20
support it. See City of Keller v. Wilson, 168 S.W.3d =
802, 822=20
(Tex. 2005). We must credit favorable evidence if a =
reasonable=20
factfinder could and disregard contrary evidence unless a =
reasonable=20
factfinder could not. See id. at 827. We =
must=20
determine whether the evidence at trial would enable a reasonable =
and=20
fair-minded person to find the facts at issue. See =
id.=20
In=20
reviewing the factual sufficiency of the evidence, we examine the =
entire=20
record, considering both the evidence in favor of, and contrary =
to, the=20
challenged finding. Cain v. Bain, 709 S.W.2d 175, 176 =
(Tex.=20
1986). After considering and weighing all the evidence, we =
set aside=20
the fact finding only if it is so contrary to the overwhelming =
weight of=20
the evidence as to be clearly wrong and unjust. Pool v. =
Ford=20
Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). In analyzing =
all=20
three of Hunt=3Ds issues,=20
we must bear in mind that the factfinder is the sole judge of the=20
credibility of the witnesses and the weight to be given their=20
testimony. See id. at 819. =
=
; =
&=
nbsp; &n=
bsp; &nb=
sp; =20
IV. =20
The Jury Charge
The jury=20
charge stated in pertinent part as follows:
YOU ARE INSTRUCTED =
THAT THERE=20
MAY BE MORE THAN ONE PRODUCING CAUSE OF A COMPENSABLE INJURY, BUT =
THERE=20
CAN BE ONLY ONE SOLE CAUSE OF A COMPENSABLE INJURY. IF NORMA=20
HUNT=3DS PSYCHOLOGICAL =
INJURY WAS=20
SOLELY CAUSED BY SOME INCIDENT OR EVENT OTHER THAN HER COMPENSABLE =
INJURY=20
OF FEBRUARY 13, 2001, THEN HER COMPENSABLE INJURY OF FEBRUARY 13, =
2001=20
DOES NOT EXTEND TO AND INCLUDE A PSYCHOLOGICAL INJURY.
Question Number=20
1
Do you find that =
Norma=20
Hunt=3Ds compensable =
injury of=20
February 13, 2001 does not extend to and include a=20
psychological injury?
Answer Ait does not extend=20
to@ or Ait does extend =
to@
Answer: =
___________
AInjury@ means damage or =
harm to the=20
physical structure of the body and such diseases or infections as=20
naturally result therefrom, and includes the excitement, =
acceleration, or=20
aggravation of any disease or condition previously or subsequently =
existing.
ACompensable=20
Injury@ means an injury =
that arises=20
out of and in the course and scope of employment for which =
compensation is=20
payable.
AProducing=20
Cause@ means an efficient, =
exciting,=20
or contributing cause which in a natural and continuous sequence =
produces=20
incapacity. There may be more than one producing cause of an =
incapacity.
YOU ARE=20
INSTRUCTED THAT THE ADMINISTRATIVE LAW JUDGE WITH THE TEXAS=20
WORKERS=3D =
COMPENSATION COMMISSION FOUND THAT NORMA HUNT=3DS=20
COMPENSABLE INJURY OF FEBRUARY 13, 2001 DID EXTEND TO AND INCLUDE =
A=20
PSYCHOLOGICAL INJURY. YOU MAY CONSIDER THIS FINDING AS =
EVIDENCE=20
ALTHOUGH YOU ARE NOT BOUND BY IT.
The jury=20
found, Ait does=20
not extend to[.]@ =20
At trial,=20
no party objected to this charge; therefore, we review the =
sufficiency of=20
the evidence under this charge, without regard to whether it is a =
correct=20
statement of the law. See Osterberg v. Peca, 12 =
S.W.3d 31, 55=20
(Tex. 2000) (holding that court could not review the sufficiency =
of the=20
evidence based on a particular legal standard because that =
standard was=20
not submitted to the jury and no party objected to the charge on =
this=20
ground or requested that the jury be charged using this standard); =
Hirschfeld=20
Steel Co. v. Kellogg Brown & Root, Inc., 201 S.W.3d 272,=20
283B86 (Tex. =
App.CHouston [14th Dist.] =
2006, no.=20
pet.) (reviewing sufficiency of evidence based on unobjected-to =
jury=20
instruction and rejecting various arguments based on different =
legal=20
standards).
=
; =
&=
nbsp; &n=
bsp; =20
V. =20
Analysis
Under the=20
charge submitted, the jury could have reached its conclusion by =
deciding=20
either that (1) Hunt=3Ds injury=20
arising out of and in the course and scope of her employment on =
February=20
13, 2001 does not include a psychological injury, or (2) =
Hunt=3Ds=20
psychological injury was solely caused by some incident or event =
other=20
than Hunt=3Ds injury=20
arising out of and in the course and scope of her employment on =
February=20
13, 2001. In reaching its verdict, the jury considered the =
testimony=20
of Dr. Sandra Hotz, who has a doctorate in counseling psychology =
and a=20
master=3Ds degree=20
in clinical psychology. Dr. Hotz based her opinions on =
reasonable=20
psychological probability. We summarize her testimony =
relevant as=20
follows:
$ =
; =20
Hunt had=20
depression that preexisted her fall and physical injury. =
$ =
; =20
After=20
conducting her review, Dr. Hotz does not believe Hunt=3Ds physical injury =
caused her=20
depression.
$ =
; =20
As a=20
result of the fall, Hunt sustained acute physical injuries to her =
back,=20
her hip, and her shoulder. Hunt=3Ds physical-therapy =
records=20
indicate that she had pain following her fall but that she was =
reporting=20
more pain that she was actually experiencing.
$ =
; =20
Hunt also=20
indicated that she has cardiac issues, and Dr. Hotz testified that =
these=20
may cause physical symptoms that look very much like a panic=20
attack.
$ =
; =20
People=20
dealing with chronic pain sometimes develop significant anxiety, =
which=20
they sometimes label a panic attack.
$ =
; =20
According=20
to Dr. Hotz, there are multiple Apotential =
progenerators of=20
what=3Ds being described =
as a=20
>panic =
attack.=3D@ Hunt=3Ds medical records =
contain=20
indications that her panic attacks are a result of her injury and =
pain,=20
but the records also indicate that Hunt was attending classes that =
caused=20
a panic attack. There are also indications that hormones may =
have=20
caused Hunt to have a panic attack.
$ =
; =20
Hunt=20
initially reported a variety of stressors to Dr. Bricken, =
including stress=20
related to (a) the possible need to return to work when she felt =
that she=20
was not physically capable of doing so, (b) her own lack of =
assertiveness,=20
(c) her attempts to reconcile with her ex-husband, (d) her =
efforts to=20
lose weight, (e) her diabetes, (f) caring for a grandchild =
whom Hunt=20
was physically unable to lift, (g) her sister=3Ds death from a =
heart attack,=20
and (h) Hunt=3Ds fear that she =
would have a=20
heart attack.
$ =
; =20
When=20
people suffer a psychological injury as a result of their chronic =
pain,=20
they are very often able to identify the chronic pain as a source =
of their=20
psychological injury.
$ =
; =20
Personality factors =
unrelated=20
to Hunt=3Ds work injury are =
causing=20
Hunt to over-report her symptoms.
$ =
; =20
Although=20
anxiety frequently occurs with depression, Dr. Hotz does not =
consider the=20
symptoms described in Hunt=3Ds medical records =
to be the=20
kind of anxiety that typically coexists with =
depression.
$ =
; =20
Hunt=3Ds symptoms of =
depression=20
appear highly correlated with psychosocial stressors.
$ =
; =20
Frequently, in his =
records,=20
Dr. Bricken makes no reference to Hunt suffering any pain, =
indicating he=20
did not see anything that caused him to decide he needed to write =
about=20
any pain suffered by Hunt in that session.
$ =
; =20
Although=20
Dr. Hotz testified that Hunt=3Ds symptoms =
Aare consistent with =
major=20
depression and pain disorder with psychological factors and a =
general=20
medical condition,@ Dr. Hotz =
identified this=20
Ageneral medical=20
condition@ as degenerative =
disc disease=20
unrelated to an acute injury. Dr. Hotz noted that =
Hunt=3Ds primary =
orthopedic doctor=20
observed Aa degenerative =
change at=20
L4-5@ and another doctor =
diagnosed=20
Hunt with spondylosis.
$ =
; =20
According=20
to Dr. Hotz, Hunt=3Ds psychosocial=20
issuesCnot her chronic=20
painChad a correlation =
to=20
Hunt=3Ds symptoms of =
depression one=20
year after her fall.
$ =
; =20
Dr.=20
Hotz=3Ds opinion regarding =
the=20
causation of Hunt=3Ds psychological =
injury is=20
strengthened by statements in Dr. Schoonmaker=3Ds records =
indicating that=20
Hunt suffers from mood swings, bipolar disorder, and manic =
symptoms, which=20
frequently have a genetic basis. Dr. Hotz finds these =
symptoms=20
incompatible with a major depressive disorder.
$ =
; =20
According=20
to Dr. Hotz, Dr. Bricken incorrectly concluded that there is a =
causal=20
connection between Hunt=3Ds=20
psychological condition and the compensable injury that she=20
sustained.
Hunt=20
argues that the evidence is legally insufficient because some of =
Dr.=20
Hotz=3Ds=20
testimony contradicts the testimony summarized above and does not =
support=20
the jury=3Ds=20
verdict. This argument lacks merit. As the trier of =
fact, the=20
jury is the sole judge of the credibility of the witnesses and the =
weight=20
to be given to their testimony. See GTE Mobilnet of S. =
Tex. v.=20
Pascouet, 61 S.W.3d 599, 615B16 (Tex.=20
App.CHouston=20
[14th Dist.] 2001, pet. denied). Given this conflicting =
testimony,=20
the jury was entitled to believe only the part of Dr. =
Hotz=3Ds=20
testimony that supported a finding that Hunt=3Ds=20
compensable injury of February 13, 2001 does not include any =
psychological=20
injury. See Crnic v. Vision Metals, Inc., No. =
14-03-01307-CV,=20
2005 WL 81629 , at *3 (Tex. App.CHouston=20
[14th Dist.] Jan. 6, 2005, no pet.) (mem. op.). While Hunt =
focuses=20
on testimony indicating that Hunt=3Ds fall=20
aggravated her pre-existing depression, the above testimony is =
legally=20
sufficient evidence to the contrary.
Hunt also=20
argues that Dr. Hotz=3Ds=20
testimony did not address her panic attacks in a way that would =
support=20
the jury=3Ds=20
verdict. We disagree. Dr. Hotz testified that Dr. =
Bricken was=20
incorrect in his diagnosis that there was a causal connection =
between=20
Hunt=3Ds=20
Apsychological=20
condition@ =
and the=20
compensable injury she sustained. Under the applicable =
standard of=20
review, this testimony would include Hunt=3Ds panic=20
attacks as well as her symptoms of anxiety and depression.=20
In sum, we=20
conclude that the evidence summarized above would enable =
fair‑minded=20
people to reach the verdict under review in this case. =
Therefore,=20
the evidence is legally sufficient. See City of Keller, 168 =
S.W.3d=20
at 827. Consequently, the trial court did not err in denying =
Hunt=3Ds motion=20
for directed verdict.
In=20
addressing Hunt=3Ds=20
factual-sufficiency challenge, this court may not substitute its =
own=20
judgment for that of the trier of fact, even if this court would =
reach a=20
different answer on the evidence. Mar. Overseas Corp. v.=20
Ellis, 971 S.W.2d 402, 407 (Tex. 1998). The jury is the =
sole=20
judge of the credibility of the witnesses and the weight to be =
given to=20
their testimony. See GTE Mobilnet of S. Tex. v. =
Pascouet, 61=20
S.W.3d 599, 615B16 (Tex.=20
App.CHouston=20
[14th Dist.] 2001, pet. denied). The amount of evidence =
necessary to=20
affirm a judgment is far less than that necessary to reverse a=20
judgment. Pascouet, 61 S.W.3d at 616. Although =
the=20
testimony of Dr. Hotz is not particularly forceful, after =
considering and=20
weighing all the evidence, we conclude that the jury=3Ds verdict=20
is not so contrary to the overwhelming weight of the evidence as =
to be=20
clearly wrong and unjust. See Pool v. Ford Motor Co., =
715=20
S.W.2d 629, 635 (Tex. 1986). Thus, under the applicable =
standard of=20
review, the evidence is factually sufficient to support the=20
jury=3Ds=20
verdict.
We=20
overrule each of the issues presented on appeal and affirm the =
trial=20
court=3Ds=20
judgment.
/s/ =20
Eva M. Guzman
Justice
Judgment=20
rendered and Memorandum Opinion filed May 15, 2007.
Panel=20
consists of Justices Frost, Seymore, and=20
Guzman. |