Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 193rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-14-00557
Justices Bridges, Myers, and Schenck
L. BRIDGES JUSTICE
Billy Thompson sustained a compensable injury on May 7, 1997
and received worker's compensation benefits from
appellant Travelers Indemnity Company of Connecticut
(Travelers). Thompson later sought Lifetime Income Benefits
(LIBs) for injuries and diagnoses that arose out of or
naturally flowed from the compensable injury. After the Texas
Department of Insurance, Division of Workers'
Compensation (the Division) determined Thompson's
compensable injury was not the producing cause of his other
injuries and diagnoses, it denied LIBs. Thereafter, Thompson
filed his claims in the district court. A jury returned a
verdict in his favor and awarded LIBs.
issues, Travelers argues the evidence is legally insufficient
to support both the jury's finding that the 1997
compensable injury extended to and included thirteen other
injuries or diagnoses and that Thompson is entitled to LIBs.
worked for Allied Fence Company in 1997. Allied Fence carried
a worker's compensation policy through Travelers.
undisputed that on May 7, 1997, Thompson fell approximately
six feet off a ladder in the course and scope of his
employment and injured his back, right elbow, head, and neck
on some pipes. Thompson underwent four back surgeries between
1999 and 2004, none of which provided long-term relief.
2004, Thompson saw Dr. James Key, who diagnosed him with
cervical disc disorder, radiculopathy, and lumbar disc
disorder with radiculopathy. Dr. Key's notes indicated
Thompson was "a train wreck, a disaster" and
"at first glance, this is obviously one of the worse
cases of failed back syndrome that I've ever seen."
next several years, Thompson continued to see various doctors
and underwent various treatments such as injections, physical
therapy, and pain management to treat his injuries and
February 4, 2016, nearly sixteen years after the injury,
Thompson saw Dr. Tuan Trinh, a doctor of osteopathy who
reviewed his past medical records. Dr. Trinh determined
additional medical conditions resulted from the original 1997
injury that should be "added on" and that Thompson
should receive LIBs from Travelers.
Division determined Thompson's compensable injury on May
7, 1997 extended to include a right elbow contusion but did
not extend to include his others injuries. It further
concluded Thompson's injury was not a producing cause of
the total loss of use of either hand at or above the wrist or
either foot at or above the ankle. Thus, the Division
determined he was not entitled to LIBs.
appealed the decision to the Division Appeals Panel, which
declared the order final for purposes of judicial review
without issuing a separate opinion. Thompson then filed an
original petition in district court and sought a jury trial.
The case went to trial on February 16, 2016.
testified he currently suffers from bilateral leg pain that
travels all the way down to his feet. The surgeries did not
alleviate the pain, and he still hurt at the time of trial.
He described the pain as "numbness and tingling."
He testified his feet often swell and he cannot wear normal
shoes, but instead wears house shoes. He described difficulty
holding hot beverages and often losing his grip and droppimg
cups. He requires a cane to walk. He cannot perform any job
that requires use of both feet or both hands-"I
can't do any job now."
jury heard testimony from Dr. Trinh through deposition by
written questions. Dr. Trinh's background included
evaluating orthopedic injuries in general and lower back
injuries in particular. His training and experience also
included the effect and treatment of radiculopathy as related
to spinal injuries.
Trinh first examined Mr. Thompson on February 14, 2013. After
reviewing Thompson's medical history, Dr. Trinh's
initial diagnosis included cervical IVD displacement, 722.0;
lumbar IVD displacement, 722.10; and radiculitis, neuralgia,
neuritis, 724.2. He opined that "falling off a pallet
onto the concrete, landing on his back, hitting his neck on a
bronze pipe and his elbow hitting the concrete at work on May
7th, 1997 caused a serious direct impact force to at least
his cervical spine, lumbar spine, and right shoulder which
stressed the joint structures of his spine and right shoulder
and produced" the injuries. The fall "resulted in
the lumbar disc protruding into an area where it does not
belong, resulting in the effacement of the interior thecal
sack with abutment of the descending nerve roots which
produced Mr. Thompson's" injuries and causes him
"to experience pain and physical limitations that
produced the adjustment disorder with depressed mood and pain
disorder associated with both psychological factors and a
general medical condition."
presented the videotaped deposition of Dr. David Bauer, a
board-certified orthopedic surgeon specializing in spinal
injuries and diseases. Dr. Bauer performed an independent
medical exam of Thompson. He saw Thompson only once.
Dr. Bauer's physical exam of Thompson, he did not observe
any acute distress. Thompson appeared to sit comfortably and
walked without assistance. He had a normal swing and stance
phase unlike someone suffering significant changes in his
spine, knees, hips, or legs. Dr. Bauer did not observe any
muscle atrophy, which indicated Thompson's nerves and
muscles were working normally. Although Thompson exhibited
diminished range of motion with his arms and legs, Dr. Bauer
said this appeared to be from lack of cooperation rather than
injury or spinal disease. Dr. Bauer admitted Thompson
exhibited weakness in multiple muscles that could not be
explained by any anatomic or neurologic bases.
on Dr. Bauer's review of Thompson's medical records
and the physical ...