Hartford Underwriters Insurance Company v. Billy J. Nors--Appeal from 66th District Court of Hill County

IN THE

TENTH COURT OF APPEALS

No. 10-95-287-CV

HARTFORD UNDERWRITERS INSURANCE COMPANY,

Appellant

v.

BILLY J. NORS,

Appellee

From the 66th District Court

Hill County, Texas

Trial Court # 32,782

O P I N I O N

In this appeal from a workers' compensation judgment, we decide that the evidence is legally and factually sufficient to support the jury's finding. We also decide that the court correctly informed the jury that a Texas Worker's Compensation Commission appeals panel had denied the claim. Accordingly, we affirm the judgment.

Billy J. Nors sued Hartford Underwriters Insurance Company under the workers' compensation act for benefits for an occupational disease that he allegedly suffered as a result of driving a propane delivery truck for Star-Tex Propane, Inc. Both the administrative hearing officer and a Commission appeals panel concluded that Nors had not sustained an occupational disease, but a jury, in answer to a single question in the charge, found that he had.

Hartford's appeal presents three points of error: the evidence of a causal relationship between Nors' employment and any occupational disease is (1) legally insufficient and (2) factually insufficient; and (3) the court erred in refusing to include in the charge an instruction that would have required the jury to consider the decision of the appeals panel.

Hartford's first point asserts that the evidence is legally insufficient to support the jury's finding of a causal relationship between Nors' employment and any occupational disease. We must sustain the jury's finding if, considering only the evidence and inferences which support the finding in the light most favorable to the finding and disregarding evidence and inferences to the contrary, any probative evidence supports it. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex. 1993).

Star-Tex hired Nors in 1979 to deliver propane to household accounts, using a three-ton truck carrying a 2,500 gallon tank. In 1984, he began driving a similar truck which ran on propane. In 1988, he was involved in an incident while working under a customer's home. When he attempted to shut off the propane, a pipe broke, allowing propane to escape and a pilot light to catch it on fire. He strained his back while exiting from under the house and was later diagnosed as having post-traumatic stress disorder. He missed three months work. After he returned, he suffered from confusion, dizziness, and shortness of breath. His claim for those injuries was resolved by the Commission.

After the 1988 incident, Nors began complaining of exhaust leaks in the truck he was driving. On August 7, 1991, he complained of several symptoms while driving and said that he had to pull off the road. Nors voiced complaints about the truck to his employer on several occasions. He testified that he could smell propane in the truck's cab, as did his wife, Nina. He said that the cab had cracks in the floorboard and that the manifold on the truck kept working loose and had to be continually tightened. When he was out of the truck for extended periods, he got better, and long periods in the truck made him feel worse to the point of having to take medication. In July of 1991, he took a full two-week vacation and "all my problems seemed to clear up." He stopped working for Star-Tex in May of 1992. Nors said he also used propane in his home, had a tractor that ran on it, and had owned a pickup that used propane.

Dr. Michael G. Samuels testified that his practice relates to "environmental medicine and chronic degenerative diseases." He holds a degree in chemistry from Texas Tech University and a D.O. degree from the Texas College of Osteopathic Medicine in Fort Worth. He was an intern in Dallas and began practice there in 1983. He was a member of and had completed the course work of the American Academy of Environmental Medicine, but had not become a "fellow."

Dr. Samuels described how foreign chemicals affect the human body and its five detoxification systems. He said that he reviewed Nors' "brain SPECT scan" a test for neurotoxicity, of function of the brain and blood flow which revealed a "moderately severe neurotoxic process," a mismatch of function and flow. He said that the scan, used by the Environmental Protection Agency, is highly reliable. Dr. Samuels said that his physical examination of Nors resulted in "limited findings." He related the medical history that Nors had given him and said that the test showed dysfunction of the left temporal lobe that might affect short-term memory and "problems" with the right frontal region of a type associated with people who have depressive-type symptoms. He expressed the opinion that Nors' disease was caused by his exposure to propane over a period of time while riding in the truck.

Hartford correctly points out that the burden of establishing a causal connection between employment and an occupational disease rests with the employee. Schaefer v. Texas Employers' Ins. Ass'n, 612 S.W.2d 199, 202 (Tex. 1980). Causation may be established by expert medical testimony. Id. Hartford points out that the only medical testimony at trial establishing any relationship between Nors' symptoms and his employment was that of Dr. Samuels. It then asserts that Dr. Samuels' testimony is legally insufficient as evidence of causation for two reasons: his assumptions were "contradicted" by undisputed evidence and it was "unreliable and speculative."

Viewing the evidence, as we must, in the light most favorable to the verdict, we reject Hartford's first reason. Browning-Ferris, 865 S.W.2d at 928. In reviewing a "no evidence" point, it matters not that evidence is "contradicted." See id. And, we disagree with Hartford's contention that its evidence about the absence of propane in Nors' work environment was undisputed both Nors and his wife testified that the smell of propane was present in the cab of the truck which Nors drove for about eight years. We must likewise reject Hartford's second reason, that Dr. Samuels' opinion was unreliable and speculative, because Hartford waived that assertion by failing to object to the testimony at trial. Tex. R. App. P. 52(a); Tex. R. Civ. Evid. 103(a).

Relying on Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 2796, 125 L. Ed. 2d 469 (1993), and E.I. du Pont de Nemours & Co. v. Robinson, 38 Tex. Sup. Ct. J. 852, 858 (June 15, 1995), Hartford attempts to link the standards for admissibility of expert testimony enunciated by the U.S. Supreme Court and the Texas Supreme Court // with the "no-evidence" standard of review of expert testimony described by our Supreme Court in Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988), and Schaefer, 612 S.W.2d at 202. In Schaefer, the Court held that expert testimony was not based on reasonable medical probability when the opinion relied on mere possibility, speculation, and surmise. 612 S.W.2d at 204 (no evidence of bacteria in soil where employee worked; expert assumed its presence). In Duff, a medical malpractice case in which an instructed verdict was granted against plaintiff, the Court affirmed the judgment after an expert testified only that there were two possible causes of the injury and twice refused to say that either was within a reasonable medical probability. 751 S.W.2d at 176. Having found some evidence that propane was present in the cab of the truck that Nors drove, we cannot say that Dr. Samuels' testimony is based upon speculation and conjecture. We overrule point one.

Hartford's second point is that the evidence of causation is factually insufficient to support the jury's finding. We will set aside the finding only if a review of all the evidence, both for and against the finding, demonstrates that the finding is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Reversal could occur because the finding was based on weak or insufficient evidence or because the proponent's proof, although adequate if taken alone, is overwhelmed by the opponent's contrary proof. William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 519 n.11 (1991).

In support of this assertion, Hartford points to the testimony of two other doctors whose tests did not reveal a chemical exposure to propane and to an "elementary mistake" in Dr. Samuels' deposition that he admitted at trial.

Dr. Thomas Kurt, a physician who is a medical toxicologist, testified that he had dealt with hundreds of propane exposures and thousands of inhalation gas exposures. He said that the North Texas Poison Center at Parkland Hospital in Dallas, which he helped found, deals with about 60,000 calls a year. He said that propane is "essentially nontoxic" and must be present in sufficient quantities to displace the available oxygen in the air to be hazardous, a condition that would usually result in an explosion. Dr. Kurt said that he had not seen Nors but had discussed the SPECT test given to Nors with Dr. Frederick Bonte, a former dean of the Southwestern Medical School who had reviewed the test. In Dr. Kurt's opinion, the test was normal. He said that propane does not cross into the blood stream and bind to hemoglobin, as does carbon monoxide, so it diffuses like an ordinary gas. He said that the American Academy of Environmental Medicine is "sort of considered a cult by other physicians."

Dr. W. G. Mannax has been a general surgeon in West, Texas, since 1979. He had been seeing Nors in the early 1980's. During the early years, his diagnoses were sinusitis, pharyngitis, and bronchitis. He said that Nors told him he thought his problems were a result of "fumes from a truck." In 1992, Mannax noted in his records: "[Nors] has a strange odor in his mouth and has the taste of steel or metal of some variety. He has been depressed lately and actually had seen a psychiatrist. At times he can hardly write or talk or make a complete sentence." Dr. Mannax treated Nors after the 1988 incident, including a "cat scan," a thyroid test, blood tests, and an EKG, all of which were "essentially normal." He also treated an "unrelated health problem" in which he did an endoscopy. He stopped seeing Nors in 1992.

George Nixon, Jr., a clinical psychologist, said that he treated Nors for post-traumatic stress disorder after the 1988 incident. He said that Nors initial response to treatment was good but became "erratic." Nors' description of the conditions in the truck he was driving caused Nixon to believe that they were contributing to his problems, but when he discussed obtaining a different vehicle with Star-Tex, his suggestion "was not received favorably." He said that he provided Nors as much service as he could and discontinued treatments, even though he thought Nors needed additional treatment. He knew that Nors was also seeing Dr. Wentworth, a psychiatrist, at that time.

Tim Jander, General Manager of Star-Tex, testified that Nors complained about the truck he was driving and that the company's mechanic attempted to find anything that might be causing the complaints. They found no problems with the exhaust system. He acknowledged that a Commission inspector found that carbon monoxide was present in the cab of the truck on August 30, 1991. //

Raymond Lucien worked as a mechanic for Star-Tex. He testified that he worked on the manifold of Nors' truck in July and December of 1987, February, March and November of 1988, January and March of 1991, and February of 1992. In August of 1992, he repaired holes and cracks in the floor of the cab. He said that he was with the inspector when the tests were done for carbon monoxide and propane. They tested it "all kinds of different ways" but never found anything over the legal amount. He said that propane is a "real clean burning fuel" and that he had never detected any exhaust smell in the cab of that truck.

Walter Brannum, a field representative of the Commission's Waco office, testified that he ran tests on the truck Nors was driving, using a "grab sample color detector tube" which detects air contaminants such as carbon monoxide and propane. In the cab, he found levels of fifty parts per million of each of those substances. He said that these results were within acceptable limits "for a grab sample situation" and that better, more comprehensive tests were available. He described a "grab sample" as "a test to determine if further testing needs to be done." The symptoms that Nors complained of dizziness, disorientation, and excitability were listed in Brannum's "field operations manual" among symptoms for carbon monoxide and propane exposure.

The essential question for the jury was whether Nors was exposed to a foreign substance while working for Star-Tex. The jury obviously decided that he was. Having so decided, the jury was faced with the question of whether that exposure resulted in an occupational disease. Based on all of the evidence in the record, we believe that the jury acted within its province when it determined that it did. In other words, we do not find that the evidence in Nors' favor is so weak or insufficient or so overwhelmed by Hartford's contrary proof that the jury's determination can be said to be clearly wrong and unjust. Cain, 709 S.W.2d at 176; William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515, 519 n.11 (1991).

Hartford's final point asserts that the court should have attached to the charge the decision of the Commission appeals panel denying Nors' claim for benefits. Because, it says, the legislature intended to "provide a meaningful restraint on the prior wide-open trial de novo system utilized in workers' compensation cases," section 410.304 of the Labor Code should be interpreted as requiring that "the actual decision [of the appeals panel] in writing must be submitted with the [court's] charge [to the jury]." Tex. Labor Code Ann. 410.304(a) (Vernon 1996). We disagree.

The court included the following paragraph it its charge:

You are advised that Appeals Panel No. 13 of the Texas Workers' Compensation Commission has heretofore found that Billy J. Nors did not sustain an occupational disease which arose out of and in the course and scope of his employment with Star-Tex Propane on August 7, 1991.

Section 410.304(a) directs the court to "inform the jury in the court's instructions, charge, or questions to the jury of the commission appeals panel decision on each disputed issue . . . ." Id. The court followed the plain language of the statute, and we decline to interpret that language so as to require that the actual written decision of the appeals panel be provided to the jury. Monsanto Co. v. Cornerstones Mun. Util. Dist., 865 S.W.2d 937, 939 (Tex. 1993) (Unless a statute is ambiguous, we must follow its clear language and seek the intent of the legislature as found in the plain and common meaning of the words and terms used.). We overrule point three.

Having overruled all of Hartford's points of error, we affirm the judgment.

BILL VANCE

Justice

Before Justice Cummings

Justice Vance, and

Justice James (Retired)

Affirmed

Opinion delivered and filed August 7, 1996

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