Appeal from the 295th District Court Harris County, Texas
Trial Court Case No. 2013-25098
consists of Chief Justice Radack and Justices Brown and
Radack, Chief Justice
an appeal from an award on a jury verdict in favor of an
employee against his non-workers' compensation subscriber
Julian Guzman went to work as a truck driver for appellant
Amigos Meat Distributors in 2008. As part of his job, he had
to lift and carry frozen animal carcasses. In May 2011,
Guzman was injured lifting a 175-pound frozen cow carcass. He
and his wife, appellee Catherine Montejano, sued Amigos, a
worker's compensation non-subscriber.
jury found that Amigos's negligence proximately caused
Guzman's injury, and awarded to him $287, 809.94 in past
medical expenses, $150, 000 in past pain and mental anguish,
and $150, 000 in past physical impairment. The trial court
entered judgment on that verdict.
does not challenge the jury's negligence finding on
appeal. It challenges the damages findings, however,
contending that (1) the medical expenses awarded are not
supported by legally sufficient evidence of causation, and
(2) Guzman was impermissibly awarded more damages than those
"paid or incurred." Amigos also asserts
Guzman's attorney made improper statements during closing
argument appealing to the jury's prejudices against a
corporate employer in favor of a worker, introducing
incurable error into the trial.
6, 2011, Guzman's supervisor, Humberto Arellano, told
Guzman to unload three frozen cow carcasses from an
18-wheeler truck. Guzman followed the procedure he learned
from watching others at Amigos, i.e., he wrapped his arms
around the carcass, lifted it upward off the hook suspending
it from the ceiling, shifted the carcass onto one shoulder,
walked off the truck, bent over while turning, and laid the
carcass down. Guzman lifted and carried the first two
carcasses without incident. As he started to lift the third
carcass, which bore a tag indicating it weighed 175 pounds,
off the hook, Guzman "felt something like snap, pain and
burning sensation in [his] lower back." He testified
that the pain in his lower back was immediate. He began
walking with the carcass, still feeling a burning sensation
in his lower back. Then his legs started to give way,
"like gelatin or something, " and he dropped the
testified that Arellano had witnessed this incident, and
Guzman told him, "I think I hurt myself. I can't
feel my legs." Guzman dropped to the ground, and
Arellano had to help him load the last carcass onto a pallet.
Despite Guzman telling Arellano that he was injured, and that
he could not shake it off, Arellano told Guzman that he
needed to go make his deliveries. Amigo then assigned Guzman
a helper, a young teenager. The helper was small and unable
to do most of the lifting, so Guzman was expected to continue
doing so himself.
his May 6, 2011 injury, Guzman had never experienced any
problems with his back and had never been injured at work.
Guzman's wife Montejano testified that, on the evening of
May 6, Guzman came home from work in pain. The following day,
he could not get out of bed without his brother's help.
His family took him to see Dr. Arango, a chiropractor.
Arango's records contain the following notes:
During the initial consultation, Mr. Julian Guzman stated
that he injured his low back secondary to a work-related
injury which took place on 5/6/11. The patient reports that
he lifted a steer carcass and experienced low back pain. At
the moment he felt he was going to collapse due to pain, the
patient reported it to his supervisor and was asked to only
drive along with a helper. Mr. Guzman finished the day worse
and went home. Today he decided to seek care in our clinic.
. . . .
From the evaluation of Mr. Guzman's history, subjective
complaints and the objective findings from orthopedic,
neurologic and radiographic examinations, it is evident from
a chiropractic viewpoint, that this type of injury would have
resulted from the type of work related injury this patient
suffered on 05/06/11.
provided Guzman with a disability certificate that day, which
stated he was "totally incapacitated." Guzman
presented that at work. Francisco Moreno, Amigos's
manager or owner, told Guzman to call when he needed
anything, and that he "was one of the best workers there
so they were going to take care of" him. On May 11,
2011, Arango reclassified Guzman as "partially
incapacitated, " and indicated that he was restricted to
Because Arango thought Guzman might recover with conservative
chiropractic care, Guzman had his back injury treated with
physical therapy, chiropractic care, and epidural steroid
injunctions. He did not get better, and began to get
overwhelmed by the constant doctor's appointments. He had
to take pain medications three times a day.
its promise, Amigos paid Guzman's medical bills for the
first three months after his injury. Amigos discontinued
payments in August 2011. Amigos did not let Guzman know, but
refused payment to Dr. Chanani, his pain management doctor
for several scheduled spinal injections.
Guzman visited Amigos's office in August 2011,
Amigos's management showed him a video, obtained by a
private investigator, of Guzman carrying a laundry basket.
Amigos then told him that they would no longer pay his
medical bills and terminated his employment. Both Guzman and
his wife testified that he had carried the laundry basket
because his doctor had ordered him to try walking for five or
ten minutes per day and ease into lifting.
next two years, Guzman regularly went to Ben Taub Hospital
and various doctors. At one point, Ben Taub placed him on
suicide watch after he reported, "I can't bear the
pain. I just want to kill myself." Montejano,
Guzman's wife, testified that Guzman was constantly in
pain after his May 6, 2011 injury. He was diagnosed with
depression, constantly took prescription pain pills, and
ceased his daily involvement with their children.
October 30, 2013, Guzman first visited Doctor Reynolds, a
surgeon Guzman was referred to by another doctor who believed
Guzman might require surgical intervention. Reynolds
discussed with him his options and possible outcomes for
each. Reynolds did not recommend Guzman first pursue more
conservative, non-surgical treatments because Guzman had
already tried the things Reynolds would recommend, i.e.,
physical therapy and steroid injections. Although Guzman was
hesitant, he ultimately opted to have surgery. Reynolds
testified that Guzman and his wife expressed that they were
both concerned about how his pain was affecting his psyche
and life, and he wanted to return to work.
8, 2014, Reynolds performed surgery, described as discectomy
and a fusion with some placement of hardware, at Guzman's
L4-5 disc. When asked about the causal links between
Guzman's workplace injury, his back pain, and the need
for surgery, Reynolds testified-based on a reasonable medical
probability- that the May 6, 2011 injury caused Guzman a
significant amount of pain that persisted. He also testified
that, based on the MRI images he reviewed, Guzman had some
preexisting damage to the L4-5 disc. While it is impossible
to tell from MRI imaging when and how the damage to
Guzman's disc was caused, Reynolds noted that, based on
Guzman's medical history, any preexisting damage was
asymptomatic. Thus, Reynolds opined that the May 6, 2011
lifting injury caused a symptomatic injury and caused the
ongoing pain that persisted after that date.
was told that his activities would be restricted for about
eighteen months, but he testified that he felt better almost
immediately post-surgery. He was able to walk without the
assistance of a cane for the first time since being injured.
Within a month, he went to work at a Subway sandwich
restaurant, which he was still doing at the time of the
September 2015 trial. While he still had lingering issues,
such as not being able to stand for too long and not being
able to bend down to tie his shoes, Guzman testified that his
life was greatly improved.
judgment awards Guzman $287, 809.94 in past medical expenses.
In its first issue, Amigos contends that these expenses were
"unrecoverable as a matter of law" because Guzman
"fail[ed] to provide the requisite causation
Applicable Law and Standard of Review
establish causation in a personal injury case, a plaintiff
must prove the defendant's conduct caused an event, and
that event caused the plaintiff to suffer compensable
damages." Hospadales v. McCoy, No.
01-16-00239-CV, __ S.W.3d __, __, 2017 WL 117327, at *8 (Tex.
App.-Houston [1st Dist.] Jan. 12, 2017, no pet.) (citing
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499
(Tex. 1995)). The causal link between the event sued upon and
the plaintiff's injury must be shown by competent
evidence. Guevara v. Ferrer, 247 S.W.3d 662, 666
(Tex. 2007). "The causal connection between a
defendant's negligence and a plaintiff's injuries
cannot be based on mere conjecture, speculation, or
possibility." Hospadales, __ S.W.3d at __, 2017
WL 117327, at *8 (citing Park Place Hosp. v. Estate of
Milo, 909 S.W.2d 508, 511 (Tex. 1995)). When a plaintiff
claims damages for a medical condition, the cause of which is
not within the common knowledge and experience of jurors,
expert testimony is necessary to show the defendant's
conduct caused that condition. JLG Trucking, LLC v.
Garza, 466 S.W.3d 157, 162 (Tex. 2015).
constitute evidence of causation, a medical expert's
opinion must rest in reasonable medical probability.
Crye, 907 S.W.2d at 500; LMC Complete Auto.,
Inc. v. Burke, 229 S.W.3d 469, 478 (Tex. App.-Houston
[1st Dist.] 2007, pet. denied). However, a plaintiff,
"is not required to establish causation in terms of
medical certainty nor is he . . . required to exclude every
other reasonable hypothesis." Bradley v.
Rogers, 879 S.W.2d 947, 954 (Tex. App.-Houston [14th
Dist.] 1994, writ denied). "Whether expert testimony on
causal connection rests upon reasonable medical probability
must be determined by the substance and context of the
testimony rather than semantics or use of a particular term
or phrase." Thompson v. Stolar, 458 S.W.3d 46,
57 (Tex. App.-El Paso 2014, no pet.) (citing Crye,
907 S.W.2d at 500).
Evidence is legally sufficient if it "would enable
reasonable and fair-minded people to reach the verdict under
review." City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005). We will conclude that the evidence is
legally insufficient to support the finding only if (a) there
is a complete absence of evidence of a vital fact, (b) the
court is barred by rules of law or evidence from giving
weight to the only evidence offered to prove a vital fact,
(c) the evidence offered to prove a vital fact is no more
than a mere scintilla, or (d) the evidence conclusively
establishes the opposite of the vital fact. Id. at
810. When reviewing the legal sufficiency of the evidence, we
consider the evidence in the light most favorable to the
verdict and indulge every reasonable inference to support it.
Id. at 822. We credit favorable evidence if a
reasonable juror could and disregard contrary evidence if a
reasonable juror could not. Id. at 827.
argues that Guzman "failed to supply the evidence
necessary to create the required causal connection between
those surgery-related, 2014 medical expenses awarded, and the
2011 incident sued upon." It focuses on excerpts from
Dr. Reynolds's deposition, which was not introduced into
evidence but attached to Amigo's motion for new trial,
stating that Guzman likely had a preexisting back condition
that necessitated surgery.
Preliminarily, Guzman responds with the observation that
excerpts from Reynolds's deposition upon which Amigos
relies upon was not entered into evidence, and that Amigos
has not complained about its exclusion on appeal. Guzman also
contends that Amigos's causation argument does not
comport with the applicable standard of review, as Amigo
ignores Reynolds's trial testimony that sufficiently
demonstrated a causal link between Guzman's 2011 injury
and his 2014 surgery. Finally, Guzman points out that (1)
Reynolds operated to address Guzman's pain, not his
preexisting asymptomatic disc degeneration, (2) Reynolds
testified that Guzman's back pain was caused by his
workplace lifting injury, and (3) under Texas law, medical
expenses caused by injury aggravation of a preexisting
condition are compensable. We agree with Guzman that he
presented sufficient evidence of causation.
Guzman notes, Amigos's brief focuses on Reynolds's
statements about MRI film of Guzman's back from different
periods indicating that Reynolds could not determine when
Guzman's disc degeneration had taken place. Importantly,
though, Reynolds testified that Guzman's medical history
largely informed his causation opinion that whatever
preexisting condition existed before May 6, 2011 was
asymptomatic, and that, immediately after the May 6, 2011
injury, Guzman suffered constant and severe pain until it was
remedied by his back surgery.
recently considered, and rejected, a causation argument
similar to Amigos's. In Hospadales v. McCoy, the
defendant argued that the evidence was insufficient to
establish that plaintiff's back and neck injuries were
caused by a 2013 automobile accident at issue rather than by
a 2010 automobile accident. __ S.W.3d at __, 2017 WL 117327,
at *3-4. The defendant relied heavily on the fact that the
"MRIs taken of [plaintiff's] back and neck,
following the 2010 accident, showed essentially the same
injuries as those indicated in the MRIs taken following this
 accident." Id. The plaintiff, however,
testified that he had recovered from his injuries from the
2010 accident before the 2013 accident, and that it was the
2013 accident that caused the pain that caused him to have
expert in Hospadales, Dr. Rodriguez, testified that,
"based on a reasonable degree of medical probability,
the 2013 accident aggravated [plaintiff's] preexisting
injuries in his lower back and neck." Id. We
concluded that Rodriguez's causation opinion, based
largely on the asymptomatic nature of plaintiff's
preexisting condition prior to the 2013 accident-in
conjunction with plaintiff's testimony about the 2013
accident and the pain he suffered only afterwards-was
sufficient to establish causation:
Rodriguez reviewed [plaintiff's] past medical records
relating to his back and neck injuries. These included the
MRI report related to the back and neck injuries [plaintiff]
sustained in the 2010 accident. Dr. Rodriguez acknowledged
that the MRI findings from 2013 indicated nearly the same
injuries as the 2010 MRI. However, Dr. Rodriguez explained
that "we don't treat MRIs." He continued,
"The MRIs are done to help us rule out problems or be
assertive of diagnosis, but we always treat the
patient." Dr. Rodriguez testified that [plaintiff] was
"asymptomatic before this accident and his symptoms are
the ones that objectively indicates that he has an
aggravation of a previous injury based on the MRIs." In
other words, Dr. Rodriguez testified that, while MRIs are
used as a diagnostic tool, what the patient reports is also
important in diagnosing and treating a patient.
Here, [plaintiff] reported that, before the 2013 accident, he
was no longer experiencing any back or neck problems from the
2010 accident. However, after the 2013 accident, McCoy
reported experiencing back and neck pain. This indicated to
Dr. Rodriguez that the report of new symptoms following the
2013 accident supports the conclusion that the accident
aggravated McCoy's previous injuries from 2010.
. . . .
We therefore hold that Dr. Rodriguez's causation
testimony was legally sufficient.
Fourteenth Court of Appeals also recently considered, and
rejected, an argument essentially identical to Amigos's
here. In Katy Springs & Manufacturing, Inc. v.
Favalora, the plaintiff suffered an on-the-job injury
that he testified caused long-term chronic neck pain and
numbness in his arm. 476 S.W.3d 579, 587 (Tex. App.-Houston
[14th Dist.] 2015, pet. denied). Similar to Guzman's
testimony here, the plaintiff in Favalora explored
conservative treatments for his pain, including epidural
steroid injections, and prescription pain medications. See
id. Finally, almost three years after the injury,
the plaintiff in Favalora had back surgery. See
id. A jury awarded him damages from his employer, a
non-subscriber to workers' compensation insurance.
Id. On appeal, his employer argued that the evidence
of causation was legally insufficient and that the
plaintiff's injuries were preexisting. Id. at
587, 591-92. The Fourteenth Court of Appeals disagreed,