Robert F. Green v. Fort Bend Independent School District--Appeal from 240th District Court of Fort Bend County

Opinion issued December 20, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01 06 01157 CV

ROBERT F. GREEN, Appellant

V.

FORT BEND INDEPENDENT SCHOOL DISTRICT, Appellee

On Appeal from the 240th District Court

Fort Bend County, Texas

Trial Court Cause No. 03-CV-131585

MEMORANDUM OPINION

This is an appeal from a suit for judicial review of a decision of the Texas Workers Compensation Commission ( TWCC ). // The TWCC determined that appellant, Robert F. Green, suffered a compensable injury while on the job as a school teacher for appellee, Fort Bend Independent School District ( FBISD ), and that Green was disabled for the period of August 17, 2002 to October 3, 2002. Green appealed the determination of the period of disability to the trial court. The trial court affirmed the decision of the TWCC.

On appeal, Green presents four issues. In his first issue, Green contends that the trial court erred by admitting evidence of prior and collateral injuries because compensability was not appealed. In his second issue, Green contends that the trial court erred by failing to give presumptive weight to the findings of the designated doctor. In his third issue, Green contends that the trial court erred in excluding and/or failing to consider evidence of the date of maximum medical improvement. In his fourth issue, Green challenges the factual sufficiency of the evidence to support the trial court s conclusion that Green s period of disability ended October 3, 2002.

We affirm.Background Summary

At the time of his injury, Green was employed as a fifth-grade school teacher for FBISD. On August 16, 2002, during class, Green injured his lower back while moving a desk to plug in an overhead projector. Green was taken to the hospital by ambulance and treated by Dr. Linda Galvan, who prescribed medications and issued a three-day release from work.

On August 19, 2002, Green was examined by his chiropractor, Dr. Brett Garner, who prescribed a treatment plan and ordered that Green remain off of work pending further diagnostics and consultation with a pain management specialist.

On September 10, 2002, Green underwent a functional capacity assessment as a follow up to an unrelated knee injury that he suffered in April 2002. The evaluation is designed to test a patient s ability to lift, push, or pull in various postures and to compare the patient s strength to certain norms. According to the findings, Green demonstrated an ability to perform at a medium-heavy physical demand level. The report reflects that Green expressed feeling pain in his knee during the exercises, but does not mention any back injury or associated pain.

On September 13, 2002, Dr. Garner referred Green to North Houston Imaging, where Green underwent an MRI. The findings of Dr. Francis Lee included that Green had suffered a disc herniation between the fifth lumbar and first sacral vertebrae.

On September 18, 2002, on Dr. Garner s referral, Green was examined by Dr. Ali Mohamed. Dr. Mohamed found severe muscle spasms occurring in Green s back and concluded that Green suffered from, inter alia, lumbar disc syndrome. Dr. Mohammed prescribed pain medications, referred Green back to Dr. Garner for continued rehabilitation of the lumbar spine, and recommended joint injections.

On October 3, 2002, FBISD requested that Green, who was still off of work, see Dr. Charles F. Xeller for an independent evaluation. Dr. Xeller performed a capacity evaluation in which he asked Green to perform a series of exercises to evaluate the range of motion in Green s back. Green was instructed to stand and squat in different positions. On October 17, 2002, Dr. Xeller issued a report and a release for Green to return to work with the restriction that he not lift over 25 pounds. Dr. Xeller found that Green had only residual tightness in his lower back and that he was able to perform his duties as a school teacher.

On October 28, 2002, Dr. Garner referred Green to Diagnostic Radiology of Houston, where Green underwent another MRI. The findings on that date were that there was disc bulging at the fifth lumbar vertebra.

Green received workers compensation benefits // from the week after his August 16, 2002 injury until October 3, 2002, the date that Dr. Xeller determined Green could return to work. Green disputed the cessation of benefits. On January 10, 2003, the TWCC conducted a benefit review conference to mediate resolution of the dispute, but the parties were unable to reach an agreement.

On February 10, 2003, at the request of TWCC, Green was examined by Dr. Suzanne Page. As stated in her report, Dr. Page diagnosed a herniated lumbar disc and opined that Green would reach maximum medical improvement // ( MMI ) on or about April 20, 2003. Dr. Page also concluded in her report that she did not see any reason for Mr. Green to be off work. He passed a [functional capacity exam] on 09-10-2002 that showed he was clearly able to work at his usual job. Appropriate time off or treatment is all that was needed.

On May 1, 2003, TWCC held a benefit contested case hearing to determine whether Green sustained a compensable injury on August 16, 2002, whether he also sustained a disability, and, if so, for what period he was disabled. The TWCC s decision was that [Green] sustained a compensable injury on August 16, 2002 and had resulting disability only for the period August 17, 2002 through October 3, 2002 [the date of Dr. Xeller s capacity evaluation]. Temporary income benefits are payable for all periods of disability through the date of maximum medical improvement. . . .

On June 2, 2003, at the request of the TWCC, Dr. Page examined Green again. She concluded that Green had reached MMI and did so effective on 06-02-2003.

Green appealed the TWCC decision to the TWCC appellate panel. Specifically, the appellate decision states that [t]he hearing officer s determination on the compensable injury has not been appealed and has become final pursuant to Section 410.169, and the issue before it was the period of disability. The appellate panel held that Green s period of disability ended on October 3, 2002, when Dr. Xeller found that Green was able to return to performing his duties as a school teacher. The appellate panel noted that Green had submitted evidence that, on June 2, 2003, Dr. Page had examined him and had concluded that Green had reached MMI and did so effective on 06-02-2003, but the panel refused to consider the evidence because it was brought well after the time for filing his appeal.

On August 25, 2003, Green filed a petition for judicial review in the 240th District Court, alleging that he was entitled to recover a full 41 weeks of compensation benefits. Green contends that his benefits should have been extended to June 2, 2003, his date of maximum medical improvement. //

On September 10, 2003, FBISD answered with a general denial. On October 18, 2006, the matter was tried to the bench. On December 4, 2006, in affirming the decision of the TWCC appellate panel, the trial court concluded that Green did not suffer a disability as a result of his compensable injury beyond October 3, 2002. In addition, the trial court found that the temporary income benefits for the disability Green suffered from August 17, 2002 to October 3, 2002 have been paid and that no further income benefits are owed. This appeal ensued.

Evidence of Prior and Collateral Injuries

In his first issue, Green contends that the trial court erred by erroneously admitting evidence of his prior back injury and collateral evidence of his knee injury. Appellant contends that this evidence goes to the issue of compensability of the August 16, 2002 injury and, as such, should not have been admitted because the issue of compensability was not appealed.

A party may not raise an issue in the trial court that was not raised before the TWCC appeals panel. Tex. Lab. Code Ann. 410.302(b) (Vernon 2006); Alexander v. Lockheed Martin Corp., 188 S.W.3d 348, 353 (Tex. App. Fort Worth 2006, pet. denied).

In his petition, Green challenged the period of disability as determined by the TWCC appeals panel. FBISD answered with a general denial and did not challenge the compensability of Green s injury. The decision of the TWCC appellate panel indicates that [t]he hearing officer s determination on the compensable injury has not been appealed and has become final pursuant to Section 410.169 and the only issue it considered was the period of disability.

The undisputed issue on appeal is the period of Green s disability. The TWCC determined that Green s period of disability began on August 17, 2002 and concluded on October 3, 2002, the date of Dr. Xeller s evaluation. Green contends that his period of disability extended to the date of his maximum medical improvement.

The admission of evidence is committed to the trial court s sound discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion if it acts without guiding rules or principles. Id. We must uphold the trial court s evidentiary ruling if there is any legitimate basis for the ruling. See id. We will not reverse a trial court for an erroneous evidentiary ruling unless the error probably caused the rendition of an improper judgment or probably prevented the appellant from properly presenting his case to the court of appeals. SeeTex. R. App. P. 44.1(a); Malone, 972 S.W.2d at 43; Benavides v. Cushman, Inc., 189 S.W.3d 875, 879 (Tex. App. Houston [1st Dist.] 2006, no pet.).

Green contends that the trial court erroneously admitted the evidence of his September 10, 2002 functional capacity assessment because it related to a collateral matter his prior knee injury. As FBISD points out, the record reflects that Green failed to object to the admission of the Functional Capacity Assessment, therefore error is not preserved. See Tex. R. App. P. 33.1.

Green next contends that the trial court erroneously admitted the June 24, 2002 report of Dr. Garner because it pertains to matters occurring two months prior to the injury at issue. Dr. Garner s report states that Green, at that time, suffered from lower back pain and had been diagnosed with a herniated disc between the fourth and fifth lumbar vertebrae and a bulge between the fifth lumbar vertebra and the first sacral vertebra. The trial court overruled Green s objection to the admission of the report.

A disability is the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. See Tex. Lab. Code Ann. 401.011(16). Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Tex. R. Evid. 401. FBISD does not dispute that Green suffered a compensable injury on August 16, 2002; rather, FBISD contends that the length of the period of disability that Green asserts is not because of a compensable injury. Dr. Garner s report of June 24, 2002 establishes that Green had suffered a prior herniation at his fifth lumbar vertebra. This evidence bears on whether it was more or less probable that Green s inability to retain employment was because of the compensable injury that occurred on August 16, 2002. See Tex. Lab. Code Ann. 401.011(16); Tex. R. Evid. 401.

In addition, Green testified at trial that he had never experienced back pain or a herniated disk prior to his August 16, 2002 injury. As such, Dr. Garner s report was probative of Green s credibility. See Tex. R. Evid. 401.

We conclude that there exists a legitimate basis for the trial court s admission of the evidence and, therefore, we must uphold it. See Malone, 972 S.W.2d at 43. We hold that the trial court did not abuse its discretion by admitting the Functional Capacity Assessment and the June 24, 2002 report by Dr. Garner.

Accordingly, Green s first issue is overruled.

The Opinion of the Designated Doctor

In his second issue, Green contends that the trial court // erred by failing to grant presumptive weight to the opinion of the designated doctor. Specifically, Green contends that the opinion of Dr. Page, the doctor designated by TWCC to render an independent evaluation of Green s medical status, that maximum medical improvement was not attained until June 2, 2003, // should have been granted more weight than the opinion of Dr. Xeller, that Green could return to work on October 3, 2002. Green contends that, by concluding that Green s period of disability ended on October 3, 2002, the trial court gave more weight to Dr. Xeller s report.

Pursuant to the Labor Code, a claimant s entitlement to temporary income benefits is dependent upon a finding that the claimant (1) is disabled and (2) has not reached maximum medical improvement. Tex. Lab. Code Ann. 408.101, 408.102. Hence, Green was not entitled to temporary income benefits unless he was deemed as both disabled and having not reached his maximum medical improvement. Because Green was deemed no longer disabled as of October 3, 2002, he was not entitled to benefits, without regard to whether he had reached his maximum medical improvement after that date. As FBISD contends, Green s date of maximum medical improvement is not at issue in this appeal. At issue is the period of disability.

Again, a disability is the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage. See Tex. Lab. Code Ann. 401.011(16). With regard to Green s status as a disabled person, Dr. Page concluded in her February 10, 2002 report, she did not see any reason for Mr. Green to be off work. He passed a [functional capacity exam] on 09-10-2002 that showed he was clearly able to work at his usual job. Appropriate time off or treatment is all that was needed. Hence, the substance of the evidence on which Green relies does not support his contention; rather, it supports the trial court s conclusion that Green was not entitled to benefits after October 3, 2002. See Tex. Lab. Code Ann. 408.101, 408.102.

Accordingly, Green s second issue is overruled.

After-acquired Evidence

In his third issue, Green contends that the trial court // erred in excluding and/or failing to consider evidence of the date of maximum medical improvement. Green contends that Dr. Page s report from his June 2, 2003 visit, in which Dr. Page certifies his date of maximum medical improvement, should not have been excluded by the TWCC appellate panel. We concluded above that Green s date of maximum medical improvement is not at issue in this appeal.

Accordingly, Green s third issue is overruled.

Factual SufficiencyIn his fourth issue, Green contends that the trial court erred by concluding that Green s temporary income benefits period concluded October 3, 2002. We construe Green s contention to be a challenge to the factual sufficiency of the evidence to support the trial court s conclusion.

A. Standard of Review

When a party challenges the factual sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). As the reviewing court, we may not act as factfinder and may not pass judgment on the credibility of witnesses or substitute our judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). We consider and weigh all of the evidence and set aside the verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Francis, 46 S.W.3d at 242.

B. Analysis

Here, Green contends that he was entitled to additional (weeks of) compensation.

Once again, a claimant s entitlement to temporary income benefits is dependent upon a finding that the claimant (1) is disabled and (2) has not reached maximum medical improvement. Tex. Lab. Code Ann. 408.101, 408.102.

It is undisputed that Green suffered a compensable injury on August 16, 2002. The record shows that, on October 3, 2002, Dr. Xeller examined Green, conducted a capacity evaluation, and concluded that Green had only residual tightness in his lower back and that he was able to perform the duties of a school teacher as required in Green s job description, which is contained in the record. Green received workers compensation benefits from the week after his injury until October 3, 2002.

In addition, the record shows that Dr. Page concluded in her February 10, 2002 report, she did not see any reason for Mr. Green to be off work. He passed a [functional capacity exam] on 09-10-2002 that showed he was clearly able to work at his usual job. Appropriate time off or treatment is all that was needed.

Green presented evidence that Dr. Garner and Dr. Mohamed also recommended further rehabilitative treatment. Green s evidence that he was disabled, or unable to return to work, after October 3, 2002 because of the August 16, 2002 injury was his testimony that he was unable to teach because of his pain medications. The trial court was the sole judge of the weight of the evidence and the credibility of witnesses. See Jackson, 116 S.W.3d at 761.

Green s entitlement to temporary income benefits is dependent upon a finding that he was both disabled and had not reached maximum medical improvement. SeeTex. Lab. Code Ann. 408.101, 408.102. The evidence supports the trial court s conclusion that Green was not entitled to benefits because he failed to show that his period of disability extended beyond October 3, 2002. Hence, even if Green showed that he had not achieved maximum medical improvement until after October 3, 2002, he is not entitled to benefits because the evidence shows that he was not disabled beyond October 3, 2002.

We cannot conclude that the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Francis, 46 S.W.3d at 242. We hold that the evidence is factually sufficient.

Accordingly, we overrule Green s fourth issue.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Taft, Hanks, and Higley.