TEXAS WORKERS COMPENSATION INSURANCE FACILITY v. SERAFIN DE LEON--Appeal from 332nd District Court of Hidalgo County

 NUMBER 13-01-267-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

TEXAS WORKERS COMPENSATION

INSURANCE FACILITY, Appellant,

v.

SERAFIN DE LEON, Appellee.

On appeal from the 332nd District Court of Hidalgo County, Texas.

O P I N I O N

Before Justices Dorsey, Ya ez, and Chavez[1]

Opinion by Justice Chavez

Texas Workers Compensation Insurance Facility appeals from a jury verdict that found Serafin de Leon=s 1993 compensable injury resulted in total and permanent loss of both of his feet. Based upon the jury=s verdict, the trial court entered judgment that de Leon was entitled to lifetime income benefits (LIBS). In seven issues, appellant contends the trial court erred in rendering judgment based on a finding of total and permanent Aloss of both feet@; that the pleadings do not support the judgment; that the court erred in not tracking the statutory language when submitting the jury question; that the evidence was factually and legally insufficient to prove that de Leon sustained a total and permanent loss of use of both feet; that the court abused its discretion in not allowing appellant=s evidence of Aloss of both feet at or above the ankle@; and that the judgment does not specify the amount, timing and frequency of the payments to be made to de Leon.

In 1993, Serafin de Leon suffered a compensable injury to his feet when he fell off a roof while employed as a roofer. At the hearing before the Texas Worker=s Compensation Hearings Division, the hearing officer was asked to decide if appellee was entitled to receive lifetime income benefits based on the total and permanent loss of use of both feet. After reviewing the evidence, the hearing officer concluded that the claimant was not entitled to lifetime benefits based on the total and permanent loss of both feet. De Leon appealed to the Texas Worker=s Compensation Commission Appeals Panel. After summarizing the medical evidence, the appeals panel stated that the A[i]ssue in this case is the claimant=s entitlement to LIBS [Lifetime Income Benefits]. Section 408.161(a)(2)[2] provides that LIBS are paid until the death of the employee for the loss of both feet at or above the ankle. Section 408.161(b) provides that the loss of use of a body part is the loss of that body part for purposes of Subsection (a).@ Conceding that the evidence was conflicting and could support inferences different from those found most reasonable by the hearing officer, the appeals panel found no basis for disturbing the hearing officer=s decision and affirmed his order. De Leon then sought judicial review of his claim.

In its sixth issue, appellant complains that the trial court abused its discretion by not allowing it to present evidence that de Leon did not suffer a loss of both feet at or above the ankle. We review decisions on the admissibility of evidence by the abuse of discretion standard. Tex. Dep=t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). A trial court abuses its discretion only if it acts unreasonably or without reference to any guiding rules or principles. See Downer v. Aquamarine Operations, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We may reverse a trial court=s judgment based on an error in the exclusion of evidence only if we conclude that (1) the trial court did in fact commit error and (2) the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989).

Immediately before jury selection, the court sustained de Leon=s limine motion, in which de Leon sought to preclude appellant from presenting any evidence on claims or defenses that were not raised during the contested case hearing before the Texas Worker=s Compensation Commission. De Leon argued, as he does here, that appellant did not raise at the administrative hearing the defense that de Leon could not recover because the loss to his feet was not at or above the ankle. Appellant did not dispute that it had not raised that defense, but argued that the hearing officer and appeals panel found that the claimant had not suffered a total loss of use of the feet and it was therefore unnecessary to reach the question of whether the loss was at or above the ankle.

Decisions of the appeals panel may be appealed to the trial courts under what the supreme court has described as a modified trial de novo review. Tex. Workers= Compensation Comm=n v. Garcia, 893 S.W.2d 504, 515 (Tex. 1995). This description is due to the various limiting provisions set out in the Act. One of those limiting procedures limits the trial to issues decided by the commission appeals panel. Tex. Lab. Code Ann. 410.302 (Vernon 1996).[3] The appeals panel=s record before us clearly shows that the panel was concerned with the doctors=opinions regarding de Leon=s Atotal loss of use of both feet.@ The report of his treating physician stated that the condition of this injured member (de Leon=s feet) A[i]s such that he can not get and keep employment requiring the use of such extremity.@ Dr. Adobbati, who performed a required medical examination, recommended that de Leon be trained for sedentary type work. Another doctor opined that A[t]he patient=s combined condition of each foot/ankle area is such that the worker cannot get and keep employment requiring the use of such members.@ A doctor who conducted a medical records review for the carrier concluded that de Leon=s injuries caused him to suffer in the neighborhood of 70% loss of functional ability to both lower extremities. No mention was made that the injury was at or above the ankle. The issue to be decided by the appeals panel was de Leon=s entitlement to LIBS. Entitlement to these benefits could be satisfied by proof of loss of both feet at or above the ankle as provided by section 408.161(a)(2), or the loss of use of the body part (both feet) as allowed by section 408.161(b). In his pleadings, de Leon contended that he was entitled to LIBS based upon the total and permanent loss of use of both feet. In its ruling, the appeals panel made it clear that it was making its decision on the loss of use standard. We hold that de Leon=s claim was based on the loss of use of a body part (both feet) under section 408.161(b) and not a loss of both feet at or above the ankle. Even if the trial court wrongly precluded appellant from offering proof that de Leon=s injury did extend to or above the ankle, we fail to see how appellant was harmed since that was never de Leon=s contention. We overrule appellant=s issue number six.

In its fourth issue, appellant complains that there was legally and factually insufficient evidence to prove that de Leon sustained a total and permanent loss of use of both feet, and in issue five, that the evidence was legally and factually insufficient to sustain a judgment for loss of both feet at or above the ankle. In conducting a legal-sufficiency review, we review the evidence in a light that tends to support the finding of the disputed facts and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). If more than a scintilla of evidence exists, it is legally sufficient. Lozano v. Lozano, 52 S.W.3d 141, 166 (Tex. 2001). More than a scintilla of evidence exists if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds about a vital fact=s existence. Id.

In reviewing a factual insufficiency point of error, we consider, weigh, and examine all of the evidence which supports or undermines the jury=s finding. Plas-Tex, Inc. v. United States Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We review the evidence, keeping in mind that it is the jury=s role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses= testimony. Corpus Christi Teachers= Credit Union v. Hernandez, 814 S.W.2d 195, 197 (Tex. App.BSan Antonio 1991, no writ). We then set aside the jury=s finding only when we find that the evidence standing alone is too weak to support the finding or that the finding is so against the overwhelming weight of the evidence that it is manifestly unjust and clearly wrong. Ortiz v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). In so doing, the court of appeals must Adetail the evidence relevant to the issue@ and Astate in what regard the contrary evidence greatly outweighs the evidence in support of the verdict.@ Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).

Serafin de Leon lost his balance while cutting some insulation material near the edge of a two-story building. De Leon fell off the building and struck a canopy covering a window. The contact with the canopy caused de Leon to flip over and land on his feet on a concrete surface. He was taken to a local hospital where he underwent surgery, had both feet casted, and was hospitalized for several days. De Leon testified that he has had great difficulty walking ever since. He uses a cane for support and is unable to walk on uneven surfaces or for any prolonged period of time. When he walks for more than fifteen minutes, his feet swell up and he is constantly in pain. He is unable to stand for more than five minutes. De Leon also testified that he is unable to climb stairs or a ladder and has to use tennis shoes all the time. He testified that he has no feeling in his right foot and that his toes are misshaped.

Dr. Miguel Hernandez began treating de Leon when he returned to the Valley. Dr. Hernandez described de Leon=s injury to the left foot as a fracture, dislocation of the talus (ankle bone) and navicular bone. The fracture changed some of the anatomy between the navicular and the talus. After removing the splints, Dr. Hernandez discovered that the os calcis in the right foot had been so severely comminuted that it had changed the anatomy between the navicular and the talus. The joint between the talus and the os calcis had been changed tremendously by arthritis such that it caused de Leon great pain to ambulate. In order to reduce the pain, Dr. Hernandez performed a subtalar arthrodesis to fuse the two bones. Dr. Hernandez testified that because of the change in the anatomies of the feet, both now were flatter and wider and de Leon would have chronic swelling. On the right foot, the os calcis had changed so much that a bone had formed in the bottom and caused a huge callus. The bone was surgically removed by Dr. Hernandez during the surgery. Dr. Hernandez testified that the injury to the right foot had been so severe that it had created a rockerbottom deformity, a total reversal of the normal anatomy. Finally, Dr. Hernandez testified that he did not think de Leon would be able to resume gainful employment that would require him to walk or stand. Dr. Ricardo Adobatti, another orthopaedic surgeon saw de Leon and performed a medical evaluation. Although Dr. Adobatti testified that de Leon had not suffered a total loss, he nonetheless described the fractures as deceiving fractures because no matter how good they are fixed, the patient will continue with pain. Dr. Adobatti testified that the surgery had improved de Leon=s condition, but he was still disabled. While he had functional use of his feet, the pain would always be there. We hold, based on the evidence submitted, there was legally and factually sufficient evidence to support the verdict.

We overrule appellant=s fourth and fifth issues.

In its first and second issues, appellant complains that the court erred in entering judgment (1) based on a finding of total and permanent loss of both feet, and (2) in view of the fact that de Leon=s pleading requested LIBS based on the loss of use of both feet. Appellant argues that the question should have asked the jury if it found de Leon had suffered a loss of both feet at or above the ankle. We overrule appellant=s issues one and two because we have already held that this was a Aloss of use of both feet@ claim as allowed under section 408.161(b). While de Leon=s pleadings do not specifically allege that the loss of use of his feet was loss of a body part for purposes of subsection (a), appellant does not complain about this possible defect. For the same reason, we overrule issue three where appellant complains that the trial court abused its discretion by not tracking the statutory language in formulating the question submitted to the jury. The issue submitted by the trial court was supported by the pleadings and the evidence. Triplex Comm., Inc. v. Riley, 900 S.W.2d 716, 718 (Tex. 1995).

Finally, appellant in issue seven contends that the trial court erred in not specifiying the amount, timing and frequency of the benefits to be paid to de Leon. This is a worker=s compensation case. Appellant is a worker=s compensation insurance carrier and is knowledgeable in computing the rate and frequency of compensation due any claimant for any specific or general injury. There is some evidence that de Leon had received $280.00 per week in compensation benefits. If this is the correct rate, then we are confident that appellant and appellee can determine the amount and frequency of the benefits due de Leon under the judgment rendered by the trial court. Should the parties be unable to agree on such amounts, on motion for rehearing we will reverse on this portion of the judgment and remand it to the trial court for determination of the amount and frequency of the benefits due de Leon.

The judgment of the trial court is affirmed.

MELCHOR CHAVEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this the

27th day of June, 2002.

[1] Retired Justice Melchor Chavez, assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to Tex. Gov=t Code Ann. '75.002 (Vernon 1998).

[2] Tex. Lab. Code Ann. ' 408.161 (Vernon Supp. 2002).

[3] Labor Code, section 410.302 reads as follows: ALimitation of Issues. Trial under this subchapter is limited to the issues decided by the commission appeals panel and on which judicial review is sought. Pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved.@ Tex. Lab. Code Ann. ' 410.302 (Vernon 1996).