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Travelers Indemnity Co. of Connecticut v. Thompson

Court of Appeals of Texas, Fifth District, Dallas

January 24, 2018


         On Appeal from the 193rd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-00557

          Before Justices Bridges, Myers, and Schenck



         Appellee 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.

         In two 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. We affirm.


         Thompson worked for Allied Fence Company in 1997. Allied Fence carried a worker's compensation policy through Travelers.

         It is 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.

         In 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."

         For the 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 conditions.

         On 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.

          The 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.[1] 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.

         Thompson 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.

         Thompson 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."

         The 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.

         Dr. 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."

         Travelers 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.

         During 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.

         Based on Dr. Bauer's review of Thompson's medical records and the physical ...

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