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State Office of Risk Management v. Escalante2/17/2005
ury 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. ยง 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 fi
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