Jami Kreinik v. Northeast Independent School District--Appeal from 73rd Judicial District Court of Bexar County

MEMORANDUM OPINION

 
No. 04-06-00079-CV
Jami KREINIK,
Appellant
v.
NORTHEAST INDEPENDENT SCHOOL DISTRICT,
Appellee
From the 73rd District Court, Bexar County, Texas
Trial Court No. 2002-CI-16061
Honorable Michael Peden, Judge Presiding (1)

Opinion by: Sandee Bryan Marion, Justice

 

Sitting: Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Rebecca Simmons, Justice

Delivered and Filed: February 28, 2008

 

AFFIRMED

 

This is an appeal arising out of a workers' compensation claim made by appellant, Jami Kreinik, after she was injured while at work as a school teacher for Northeast Independent School District (NEISD). Kreinik complains of the trial court's judgment in three issues on appeal. We affirm.

BACKGROUND

Jami Kreinik worked as a school teacher for NEISD and was injured on January 31, 2002 when a student jumped on her back. As a result, Kreinik claimed she sustained an injury to her lumbar spine and right knee. After the incident, Kreinik's attorney filed a workers' compensation claim with NEISD for both her knee and lumbar spine injuries. NEISD accepted the claim for her knee injury, but denied the claim for the alleged injury to her lumbar spine. A contested case hearing was held and a hearing officer from the Texas Workers' Compensation Commission ("TWCC") determined Kreinik's compensable injury did not extend to her lumbar spine. The hearing officer based the decision on the following: (1) Kreinik's ten year history of low back problems stemming from a prior motor vehicle accident that occurred in 1991; (2) a January 8, 2002 injury to her back after lifting a crate of books, for which Kreinik was receiving treatment when the alleged new injury occurred; (3) MRI reports before and after the January 31, 2002 incident showing no difference in the structural condition of the lumbar spine; (4) lack of evidence of a new strain or more serious injury or re-injury to the lumbar spine; and (5) appearance of a new occurrence of pain from the preexisting back condition, but not a compensable aggravation or new injury.

Kreinik appealed the hearing officer's decision to the TWCC appeals panel, but the panel determined the appeal was untimely filed. Therefore, the TWCC appeals panel did not consider the merits of Kreinik's claim that her compensable injury extended to her lumbar spine. Kreinik then sought review in the district court. The jury returned a verdict in favor of NEISD, finding Kreinik's appeal was untimely filed and her compensable injury did not extend to her lumbar spine.LEGAL AND FACTUAL SUFFICIENCY

We construe Kreinik's second issue on appeal as a complaint based on the legal and factual sufficiency of the evidence. We review the sufficiency of the evidence under the well-established standards of review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).

Kreinik had the burden of proof at trial on the issue of whether she had a compensable injury extending to her lumbar spine. Kreinik concedes she had a preexisting lumbar spine injury prior to the January 31, 2002 incident, but argues it was aggravated when the student jumped on her back while she was at work. According to the Texas Workers' Compensation Act, an "injury" is defined as "damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm." Tex. Lab. Code Ann. 401.011(26) (Vernon 2006). While the Act does not specifically address the aggravation of an injury, numerous courts have construed the term "injury" to include the aggravation of a preexisting injury. See State Office of Risk Mgmt. v. Escalante, 162 S.W.3d 619, 624 (Tex. App.--El Paso 2005, pet. dism'd); Peterson v. Cont'l 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.). "[T]o the extent that the aggravation of a prior injury caused damage or harm to the physical structure of the employee, it can reasonably be said that the resulting condition fell within the literal and plain meaning of 'injury.'" Cooper, 985 S.W.2d at 617. However, pain alone is not considered damage to the body under the Act. See Peterson, 997 S.W.2d at 893.

At trial, Kreinik testified she suffered from a preexisting lumbar spine injury as a result of a 1991 motor vehicle accident. From 1991 up until the January 31, 2002 incident, Kreinik was treated by numerous doctors for her back pain, underwent physical therapy, and was on various prescription pain medications. However, Kreinik described her back pain during this time as only occurring intermittently. In addition to the 1991 incident, Kreinik testified that on January 8, 2002 she was injured when lifting a crate of books. After January 8, 2002, Kreinik was on leave from work, taking between twelve and sixteen pain pills per day, and undergoing physical therapy. On January 28, 2002, Kreinik returned to work at NEISD, even though she was still "uncomfortable," having mild back pain, taking one or two pain pills a day, and undergoing physical therapy. It was on January 31, 2002, when the incident with the fourth grade student occurred.

The jury also considered various medical records from doctors who saw Kreinik before and after the incident. One physician who treated Kreinik reported "Jami has a pain management problem without evidence of clear neurosurgical indications." Kreinik had an MRI less than two weeks prior to the alleged compensable injury and then again on April 2, 2002. The MRI reports conclude there was no objective change between the MRIs before and after the incident at issue.

Finally, the jury considered the testimony of Dr. Robert Lowry, who testified on behalf of Kreinik. His testimony was based solely on a review of a portion of Kreinik's medical records, and did not involve a physical examination of Kreinik. Dr. Lowry testified that Kreinik sustained a "severe back strain with some radiculopathy;" however, he agreed there was no change between the MRI prior to the January 31, 2002 incident and the MRI following the incident. Based on a review of the record, we conclude the evidence is legally and factually sufficient to support the finding that a compensable injury did not exist. CONCLUSION

Accordingly, we overrule Kreinik's challenge to the sufficiency of the evidence and affirm the trial court's judgment. (2)

Sandee Bryan Marion, Justice

 

1. The Honorable Andy Mireles, the presiding judge of the 73rd Judicial District Court, Bexar County, Texas, presided over the jury trial in this case. However, the Honorable Michael Peden, presiding judge of the 285th Judicial District Court, Bexar County, Texas, signed the judgment that is at issue in this appeal.

2. Because our resolution of Kreinik's legal and factual insufficiency complaint is dispositive of this appeal, we do not address Kreinik's two remaining issues. Tex. R. App. P. 47.1.