Opinion issued=20
December 20, 2007
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
NO.=20
=
01=E2=80=9306=E2=80=9301157=E2=80=93CV
ROBERT =
F. GREEN,=20
Appellant
V.
FORT =
BEND=20
INDEPENDENT SCHOOL DISTRICT, Appellee
On =
Appeal from the=20
240th District Court
Fort =
Bend County,=20
Texas
Trial =
Court Cause=20
No. 03-CV-131585
MEMORANDUM=20
OPINION
<=
/SPAN>This is an appeal =
from a=20
suit for judicial review of a decision of the Texas =
Workers=E2=80=99 Compensation=20
Commission (=E2=80=9CTWCC=E2=80=9D). ![3DFootnote](3D"")
The TWCC =
determined that=20
appellant, Robert F. Green, suffered a compensable injury while on =
the job=20
as a school teacher for appellee, Fort Bend Independent School =
District=20
(=E2=80=9CFBISD=E2=80=9D), and that Green was disabled for the =
period of August 17, 2002=20
to October 3, 2002. Green appealed the determination of the period =
of=20
disability to the trial court. The trial court affirmed the =
decision of=20
the TWCC.
=
On=20
appeal, Green presents four issues. In his first issue, Green =
contends=20
that the trial court erred by admitting evidence of prior and =
collateral=20
injuries because compensability was not appealed. In his second =
issue,=20
Green contends that the trial court erred by failing to give =
presumptive=20
weight to the findings of the =E2=80=9Cdesignated doctor.=E2=80=9D =
In his third issue,=20
Green contends that the =E2=80=9Ctrial court erred in =
excluding and/or=20
failing to consider evidence of the date of maximum medical=20
improvement.=E2=80=9D In his=20
fourth issue, Green challenges the factual sufficiency of the =
evidence to=20
support the trial court=E2=80=99s conclusion that Green=E2=80=99s =
period of disability=20
ended October 3, 2002.
=
We=20
affirm.Background=20
Summary
<=
/SPAN>At=20
the time of his injury, Green was employed as a fifth-grade school =
teacher=20
for FBISD. On August 16, 2002, during class, Green injured his =
lower back=20
while moving a desk to plug in an overhead projector. Green was =
taken to=20
the hospital by ambulance and treated by Dr. Linda Galvan, who =
prescribed=20
medications and issued a three-day release from work.
=
On=20
August 19, 2002, Green was examined by his chiropractor, Dr. Brett =
Garner,=20
who prescribed a treatment plan and ordered that Green remain off =
of work=20
pending further diagnostics and consultation with a pain =
management=20
specialist.
=
On=20
September 10, 2002, Green underwent a functional capacity =
assessment as a=20
follow up to an unrelated knee injury that he suffered in April =
2002.=20
The evaluation is designed to test a patient=E2=80=99s =
ability to lift,=20
push, or pull in various postures and to compare the =
patient=E2=80=99s strength to=20
certain norms. According to the findings, Green demonstrated an =
=E2=80=9Cability=20
to perform at a medium-heavy physical demand level.=E2=80=9D The =
report reflects=20
that Green expressed feeling pain in his knee during the =
exercises, but=20
does not mention any back injury or associated pain.
<=
/SPAN>On September 13, =
2002, Dr.=20
Garner referred Green to North Houston Imaging, where Green =
underwent an=20
MRI. The findings of Dr. Francis Lee included that Green had =
suffered a=20
disc herniation between the fifth lumbar and first sacral=20
vertebrae.
<=
/SPAN>On September 18, =
2002, on=20
Dr. Garner=E2=80=99s referral, Green was examined by Dr. Ali =
Mohamed. Dr.=20
Mohamed found severe muscle spasms occurring in Green=E2=80=99s =
back and concluded=20
that Green suffered from, inter alia, lumbar disc syndrome. Dr. =
Mohammed=20
prescribed pain medications, referred Green back to Dr. Garner for =
continued rehabilitation of the lumbar spine, and recommended =
joint=20
injections.
<=
/SPAN>On=20
October 3, 2002, FBISD requested that Green, who was still off of =
work,=20
see Dr. Charles F. Xeller for an independent evaluation. Dr. =
Xeller=20
performed a capacity evaluation in which he asked Green to perform =
a=20
series of exercises to evaluate the range of motion in =
Green=E2=80=99s back. Green=20
was instructed to stand and squat in different positions. On October =
17, 2002,=20
Dr. Xeller issued a report and a release for Green to return to =
work with=20
the restriction that he not lift over 25 pounds. Dr. Xeller found =
that=20
Green had only residual tightness in his lower back and that he =
was able=20
to perform his duties as a school teacher.
<=
/SPAN>On=20
October 28, 2002, Dr. Garner referred Green to Diagnostic =
Radiology of=20
Houston, where Green underwent another MRI. The findings on =
that date=20
were that there was =E2=80=9Cdisc bulging=E2=80=9D at the fifth =
lumbar vertebra.=20
<=
/SPAN>Green=20
received workers=E2=80=99 compensation benefits
from the week after his August =
16, 2002=20
injury until October 3, 2002, the date that Dr. Xeller determined =
Green=20
could return to work. Green disputed the cessation of benefits. On =
January=20
10, 2003, the TWCC conducted a benefit review conference to =
mediate=20
resolution of the dispute, but the parties were unable to reach an =
agreement.
<=
/SPAN>On=20
February 10, 2003, at the request of TWCC, Green was examined by =
Dr.=20
Suzanne Page. As stated in her report, Dr. Page diagnosed a =
=E2=80=9Cherniated=20
lumbar disc=E2=80=9D and opined that Green would reach maximum =
medical=20
improvement
(=E2=80=9CMMI=E2=80=9D) on or =
about April 20, 2003. Dr.=20
Page also concluded in her report that she did =E2=80=9Cnot see =
any reason for Mr.=20
Green to be off work. He passed a [functional capacity exam] on =
09-10-2002=20
that showed he was clearly able to work at his usual job. =
Appropriate time=20
off or treatment is all that was needed.=E2=80=9D
<=
/SPAN>On=20
May 1, 2003, TWCC held a benefit contested case hearing to =
determine=20
whether Green sustained a compensable injury on August 16, 2002, =
whether=20
he also sustained a disability, and, if so, for what period he was =
disabled. The TWCC=E2=80=99s decision was that =E2=80=9C[Green] =
sustained a compensable=20
injury on August 16, 2002 and had resulting disability only for =
the period=20
August 17, 2002 through October 3, 2002 [the date of Dr. =
Xeller=E2=80=99s capacity=20
evaluation]. Temporary income benefits are payable for all periods =
of=20
disability through the date of maximum medical improvement. . .=20
.=E2=80=9D
<=
/SPAN>On=20
June 2, 2003, at the request of the TWCC, Dr. Page examined Green =
again.=20
She concluded that Green =E2=80=9Chad reached MMI and did so =
effective on=20
06-02-2003.=E2=80=9D
<=
/SPAN>Green=20
appealed the TWCC decision to the TWCC appellate panel. =
Specifically, the=20
appellate decision states that =E2=80=9C[t]he hearing =
officer=E2=80=99s determination on=20
the compensable injury has not been appealed and has become final =
pursuant=20
to Section 410.169,=E2=80=9D and the issue before it was =
=E2=80=9Cthe period of=20
disability.=E2=80=9D The appellate panel held that Green=E2=80=99s =
period of disability=20
ended on October 3, 2002, when Dr. Xeller found that Green was =
able to=20
return to performing his duties as a school teacher. The appellate =
panel=20
noted that Green had submitted evidence that, on June 2, 2003, Dr. =
Page=20
had examined him and had concluded that Green =E2=80=9Chad reached =
MMI and did so=20
effective on 06-02-2003,=E2=80=9D but the panel refused to =
consider the evidence=20
because it was brought =E2=80=9Cwell after the time for filing his =
appeal.=E2=80=9D
<=
/SPAN>On=20
August 25, 2003, Green filed a petition for judicial review in the =
240th=20
District Court, alleging that he was entitled to recover a full 41 =
weeks=20
of compensation benefits. Green contends that his benefits should =
have=20
been extended to June 2, 2003, his date of maximum medical=20
improvement.
<=
/SPAN>On=20
September 10, 2003, FBISD answered with a general denial. On =
October 18,=20
2006, the matter was tried to the bench. On December 4, 2006, in =
affirming=20
the decision of the TWCC appellate panel, the trial court =
concluded that=20
Green did not suffer a disability as a result of his compensable =
injury=20
beyond October 3, 2002. In addition, the trial court found that =
the=20
temporary income benefits for the disability Green suffered from =
August=20
17, 2002 to October 3, 2002 have been paid and that no further =
income=20
benefits are owed. This appeal ensued.
Evidence of Prior=20
and Collateral Injuries
<=
/SPAN>In=20
his first issue, Green contends that the trial court erred by =
erroneously=20
admitting evidence of his prior back injury and collateral =
evidence of his=20
knee injury. Appellant contends that this evidence goes to the =
issue of=20
compensability of the August 16, 2002 injury and, as such, should =
not have=20
been admitted because the issue of compensability was not=20
appealed.
<=
/SPAN>A=20
party may not raise an issue in the trial court that was not =
raised before=20
the TWCC appeals panel. Tex. Lab.=20
Code Ann. =C2=A7 410.302(b) (Vernon 2006); Alexander v. =
Lockheed=20
Martin Corp., 188 S.W.3d 348, 353 (Tex. App.=E2=80=94Fort =
Worth 2006, pet.=20
denied).
<=
/SPAN>In=20
his petition, Green challenged the period of disability as =
determined by=20
the TWCC appeals panel. FBISD answered with a general denial and =
did not=20
challenge the compensability of Green=E2=80=99s injury. The =
decision of the TWCC=20
appellate panel indicates that =E2=80=9C[t]he hearing =
officer=E2=80=99s determination on=20
the compensable injury has not been appealed and has become final =
pursuant=20
to Section 410.169=E2=80=9D and the only issue it considered was =
=E2=80=9Cthe period of=20
disability.=E2=80=9D
<=
/SPAN>The=20
undisputed issue on appeal is the period of Green=E2=80=99s =
disability. The TWCC=20
determined that Green=E2=80=99s period of disability began on =
August 17, 2002 and=20
concluded on October 3, 2002, the date of Dr. Xeller=E2=80=99s =
evaluation. Green=20
contends that his period of disability extended to the date of his =
maximum=20
medical improvement.
<=
/SPAN>The=20
admission of evidence is =E2=80=9Ccommitted to the trial =
court=E2=80=99s sound=20
discretion.=E2=80=9D Owens-Corning Fiberglas Corp. v. =
Malone, 972 S.W.2d=20
35, 43 (Tex. 1998). A trial court abuses its discretion if it acts =
without=20
guiding rules or principles. Id. We must uphold the trial =
court=E2=80=99s=20
evidentiary ruling if there is any legitimate basis for the =
ruling. See=20
id. We will not reverse a trial court for an erroneous =
evidentiary=20
ruling unless the error probably caused the rendition of an =
improper=20
judgment or probably prevented the appellant from properly =
presenting his=20
case to the court of appeals. See Tex. R. App. P. 44.1(a); =
Malone, 972 S.W.2d at 43; Benavides v. Cushman, =
Inc., 189=20
S.W.3d 875, 879 (Tex. App.=E2=80=94Houston [1st Dist.] 2006, no =
pet.).
<=
/SPAN>Green=20
contends that the trial court erroneously admitted the evidence of =
his=20
September 10, 2002 functional capacity assessment because it =
related to a=20
collateral matter=E2=80=94his prior knee injury. As FBISD points =
out, the record=20
reflects that Green failed to object to the admission of the =
Functional=20
Capacity Assessment, therefore error is not preserved. See =
Tex. R. App. P. 33.1. =
<=
/SPAN>Green=20
next contends that the trial court erroneously admitted the June =
24, 2002=20
report of Dr. Garner because it pertains to matters occurring two =
months=20
prior to the injury at issue. Dr. Garner=E2=80=99s report states =
that Green, at=20
that time, suffered from lower back pain and had been diagnosed =
with a=20
herniated disc between the fourth and fifth lumbar vertebrae and a =
=E2=80=9Cbulge=E2=80=9D=20
between the fifth lumbar vertebra and the first sacral vertebra. =
The trial=20
court overruled Green=E2=80=99s objection to the admission of the=20
report.
<=
/SPAN>A=20
=E2=80=9Cdisability=E2=80=9D is the inability because of a =
compensable injury to=20
obtain and retain employment at wages equivalent to the preinjury =
wage.=20
See Tex. Lab. Code =
Ann. =C2=A7 401.011(16). Evidence is relevant if it =
has any=20
tendency to make the existence of any fact that is of consequence =
to the=20
determination of the action more or less probable than it would be =
without=20
the evidence. Tex. R. =
Evid.=20
401. FBISD does not dispute that Green suffered a compensable =
injury on=20
August 16, 2002; rather, FBISD contends that the length of the =
period of=20
disability that Green asserts is not =E2=80=9Cbecause of a =
compensable injury.=E2=80=9D=20
Dr. Garner=E2=80=99s report of June 24, 2002 establishes that =
Green had suffered a=20
prior herniation at his fifth lumbar vertebra. This evidence bears =
on=20
whether it was more or less probable that Green=E2=80=99s =
inability to retain=20
employment was =E2=80=9Cbecause of=E2=80=9D the compensable injury =
that occurred on August=20
16, 2002. See Tex. =
Lab. Code=20
Ann. =C2=A7 401.011(16); Tex. R. Evid. =
401.
<=
/SPAN>In=20
addition, Green testified at trial that he had never experienced =
back pain=20
or a herniated disk prior to his August 16, 2002 injury. As such, =
Dr.=20
Garner=E2=80=99s report was probative of Green=E2=80=99s =
credibility. See Tex. R. Evid. 401. =
<=
/SPAN>We=20
conclude that there exists a legitimate basis for the trial =
court=E2=80=99s=20
admission of the evidence and, therefore, we must uphold it. =
See=20
Malone, 972 S.W.2d at 43. We hold that the trial court did not =
abuse=20
its discretion by admitting the Functional Capacity Assessment and =
the=20
June 24, 2002 report by Dr. Garner.
<=
/SPAN>Accordingly,=20
Green=E2=80=99s first issue is overruled.
The =
Opinion of the=20
Designated Doctor
<=
/SPAN>In=20
his second issue, Green contends that the trial court
erred by failing to grant =
presumptive=20
weight to the opinion of the =E2=80=9Cdesignated doctor.=E2=80=9D =
Specifically, Green=20
contends that the opinion of Dr. Page, the doctor designated by =
TWCC to=20
render an independent evaluation of Green=E2=80=99s medical =
status, that maximum=20
medical improvement was not attained until June 2, 2003,
should have been granted more =
weight than=20
the opinion of Dr. Xeller, that Green could return to work on =
October 3,=20
2002. Green contends that, by concluding that Green=E2=80=99s =
period of disability=20
ended on October 3, 2002, the trial court gave more weight to Dr. =
Xeller=E2=80=99s=20
report.
<=
/SPAN>Pursuant=20
to the Labor Code, a claimant=E2=80=99s entitlement to temporary =
income benefits=20
is dependent upon a finding that the claimant (1) is disabled and =
(2) has=20
not reached maximum medical improvement. Tex. Lab. Code Ann. =
=C2=A7=C2=A7 408.101,=20
408.102. Hence, Green was not entitled to temporary income =
benefits unless=20
he was deemed as both disabled and having not reached his maximum =
medical=20
improvement. Because Green was deemed no longer =
=E2=80=9Cdisabled=E2=80=9D as of October=20
3, 2002, he was not entitled to benefits, without regard to =
whether he had=20
reached his maximum medical improvement after that date. As FBISD=20
contends, Green=E2=80=99s date of maximum medical improvement is =
not at issue in=20
this appeal. At issue is the period of disability.
<=
/SPAN>Again,=20
a =E2=80=9Cdisability=E2=80=9D is the inability because of a =
compensable injury to obtain=20
and retain employment at wages equivalent to the preinjury wage. =
See=20
Tex. Lab. Code =
Ann.=20
=C2=A7 401.011(16). With regard to Green=E2=80=99s status as =
a =E2=80=9Cdisabled=E2=80=9D person,=20
Dr. Page concluded in her February 10, 2002 report, she did =
=E2=80=9Cnot see any=20
reason for Mr. Green to be off work. He passed a [functional =
capacity=20
exam] on 09-10-2002 that showed he was clearly able to work at his =
usual=20
job. Appropriate time off or treatment is all that was =
needed.=E2=80=9D Hence, the=20
substance of the evidence on which Green relies does not support =
his=20
contention; rather, it supports the trial court=E2=80=99s =
conclusion that Green=20
was not entitled to benefits after October 3, 2002. See =
Tex. Lab. Code Ann. =
=C2=A7=C2=A7 408.101,=20
408.102.
<=
/SPAN>Accordingly,=20
Green=E2=80=99s second issue is overruled.
After-acquired=20
Evidence
<=
/SPAN>In=20
his third issue, Green contends that =E2=80=9Cthe trial =
court
erred in excluding and/or failing =
to=20
consider evidence of the date of maximum medical =
improvement.=E2=80=9D Green=20
contends that Dr. Page=E2=80=99s report from his June 2, 2003 =
visit, in which Dr.=20
Page certifies his date of maximum medical improvement, should not =
have=20
been excluded by the TWCC appellate panel. We concluded above that =
Green=E2=80=99s=20
date of maximum medical improvement is not at issue in this =
appeal.=20
<=
/SPAN>Accordingly,=20
Green=E2=80=99s third issue is overruled.
Factual=20
SufficiencyIn his fourth =
issue, Green=20
contends that the trial court erred by concluding that =
Green=E2=80=99s temporary=20
income benefits period concluded October 3, 2002. We construe =
Green=E2=80=99s=20
contention to be a challenge to the factual sufficiency of the =
evidence to=20
support the trial court=E2=80=99s conclusion.
A. Standard=20
of Review
<=
/SPAN>When=20
a party challenges the factual sufficiency of an adverse finding =
on an=20
issue on which he has the burden of proof, he must demonstrate on =
appeal=20
that the adverse finding is against the great weight and =
preponderance of=20
the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 =
(Tex.=20
2001). As the reviewing court, we may not act as factfinder and =
may not=20
pass judgment on the credibility of witnesses or substitute our =
judgment=20
for that of the trier of fact. Golden Eagle Archery, Inc. v.=20
Jackson, 116 S.W.3d 757, 761 (Tex. 2003). We consider and =
weigh all of=20
the evidence and set aside the verdict only if the evidence is so =
weak or=20
if the finding is so against the great weight and preponderance of =
the=20
evidence that it is clearly wrong and unjust. Francis, 46 =
S.W.3d at=20
242.
B. Analysis<=
/SPAN>
=
Here,=20
Green contends that he =E2=80=9Cwas entitled to additional (weeks =
of)=20
compensation.=E2=80=9D
=
Once=20
again, a claimant=E2=80=99s entitlement to temporary income =
benefits is=20
dependent upon a finding that the claimant (1) is disabled and =
(2)=20
has not reached maximum medical improvement. Tex. Lab. Code Ann. =
=C2=A7=C2=A7 408.101,=20
408.102.
=
It is undisputed =
that Green=20
suffered a compensable injury on August 16, 2002. The record shows =
that,=20
on October 3, 2002, Dr. Xeller examined Green, conducted a =
capacity=20
evaluation, and concluded that Green had only residual =
tightness in=20
his lower back and that he was able to perform the duties of a =
school=20
teacher as required in Green=E2=80=99s job description, which is =
contained in the=20
record. =
Green received=20
workers=E2=80=99 compensation benefits =E2=80=9Cfrom the week =
after his injury until=20
October 3, 2002.=E2=80=9D
=
In=20
addition, the record shows that Dr. Page concluded in her February =
10,=20
2002 report, she did =E2=80=9Cnot see any reason for Mr. Green to =
be off work. He=20
passed a [functional capacity exam] on 09-10-2002 that showed he =
was=20
clearly able to work at his usual job. Appropriate time off or =
treatment=20
is all that was needed.=E2=80=9D
<=
/SPAN>Green=20
presented evidence that Dr. Garner and Dr. Mohamed also =
recommended=20
further rehabilitative treatment. Green=E2=80=99s evidence that he =
was disabled,=20
or unable to return to work, after October 3, 2002 because of the =
August=20
16, 2002 injury was his testimony that he was unable to teach =
because of=20
his pain medications. The trial court =
was the sole=20
judge of the weight of the evidence and the credibility of =
witnesses.=20
See Jackson, 116 S.W.3d at 761.
=
Green=E2=80=99s=20
entitlement to temporary income benefits is dependent upon =
a=20
finding that he was both disabled and had not reached =
maximum=20
medical improvement. See Tex. Lab. Code Ann. =
=C2=A7=C2=A7 408.101,=20
408.102. The =
evidence=20
supports the trial court=E2=80=99s conclusion that Green was not =
entitled to=20
benefits because he failed to show that his period of disability =
extended=20
beyond October 3, 2002. Hence, even if Green showed that he had =
not=20
achieved maximum medical improvement until after October 3, 2002, =
he is=20
not entitled to benefits because the evidence shows that he was =
not=20
disabled beyond October 3, 2002.
=
We=20
cannot conclude that the evidence is so weak or the finding is so =
against=20
the great weight and preponderance of the evidence that it is =
clearly=20
wrong and unjust. Francis, 46 S.W.3d at 242. We hold that the =
evidence=20
is factually sufficient.
=
Accordingly,=20
we overrule Green=E2=80=99s fourth issue.
Conclusion
We affirm the =
judgment of=20
the trial court.
Laura Carter=20
Higley
Justice
Panel consists of =
Justices=20
Taft, Hanks, and=20
Higley. |