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City of Fort Worth v. Clark

Court of Appeals of Texas, First District

August 13, 2019


          On Appeal from the 236th District Court Tarrant County, Texas Trial Court Case No. 236-279735-15

          Panel consists of Justices Lloyd, Landau, and Countiss.


          Sarah Beth Landau Justice

         This is a workers' compensation case. Print Earl Clark, Sr. was involved in an on-the-job vehicle collision while working for the City of Fort Worth. He later sought medical treatment for back pain with radiculopathy to his lower extremities. Eventually, he sought lifetime income benefits under a provision for total loss of use of two extremities, specifically, both feet.

         The Texas Department of Insurance, Division of Workers' Compensation denied his claim. Clark sought judicial review, and the case was tried to a Tarrant County jury. The jury found that Clark met his burden for establishing entitlement to lifetime income benefits, and the trial court entered a judgment requiring the City to provide income and medical benefits. The City appeals.

         The City contends the evidence is insufficient to support the jury's finding. It further contends that the trial court erred in limiting questioning of Clark about other jobs he had applied for and excluding certain exhibits related to his job search. Finally, it contends there was reversible error in the court's jury charge.

         We affirm.


         Clark was employed by the City of Fort Worth for 17 years as a roofer. In March 2008, Clark's work truck was stopped at a stoplight when two nearby vehicles collided and one of those vehicles struck Clark's truck. Initially, Clark told medical professionals he was experiencing pain in his lower back that radiated down his right leg with numbness and tingling. Over the next year, Clark saw various medical doctors for testing, treatment, and workers' compensation evaluations. In 2009, Clark began seeking treatment from a chiropractor, Dr. Kenneth Ericksen. Clark described how pain limited his ability to engage in physical activity one year after the collision:

I was limited to the amount of weight that I could pick up . . . [and] I could stand up maybe 10 or 15 minutes at a time, because the longer I stand up, the more the radiating down my leg would get until I had to sit down, and my back just hurt[] all the time.

         Ericksen restricted Clark's work and other activities due to his injury. Clark qualified for Workers' Compensation supplemental income benefits. Clark's pain continued. Ericksen continued to restrict his physical activity.

         In April 2009, the Division of Workers' Compensation referred Clark to a designated doctor, Dr. Melvyn Bernstein. Bernstein ordered an electrodiagnostic test and physically examined Clark. Bernstein's medical conclusion was that Clark had reached maximum medical improvement (known as "MMI") as of April 14, 2009 and had a whole-person impairment rating of 25%.

         Clark eventually sought lifetime income benefits, which are paid until the death of the employee at a rate of 75% of the employee's average weekly rate. See Tex. Lab. Code § 408.161(a), (c). Lifetime income benefits are paid for only seven specific categories of injuries. Id. § 408.161(a)(1-7). The injury specified in Clark's Workers' Compensation claim was loss of use of both feet at or above the ankle. See id. § 408.161(a)(2).

         Under the Labor Code, loss of a body part means "the total and permanent loss of use" of that body part. Id. § 408.161(b). "Total loss of use of a member of the body exists whenever by reason of injury such member no longer possesses any substantial utility as a member of the body or the condition of the injured member is such that the worker cannot get and keep employment requiring the use of such member." Galindo v. Old Republic Ins. Co., 146 S.W.3d 755, 759 (Tex. App.-El Paso 2004, pet. denied) (emphasis added). Clark relied on the second, alternative definition.

         In advance of a contested hearing on Clark's claim for lifetime income benefits, Clark was required to submit to a "carrier required medical examination" by an evaluator selected on behalf of his employer. The City of Fort Worth selected Dr. Donald Mauldin, who examined Clark in February 2015. While Clark's chiropractor, Ericksen, had opined that Clark met the criteria for lifetime income benefits after noting that "extended/prolonged activity causes significant increase in pain and symptoms which necessitate frequent and extended breaks which an Employer will not allow," Mauldin determined that Clark did not. Mauldin opined that Clark "does not have anywhere near total loss of a lower extremity."

         The Division of Workers' Compensation's hearing officer held a contested hearing in April 2015 to decide whether Clark was entitled to lifetime income benefits "based on a total loss of use of both feet." The hearing officer determined that Clark was not. Specifically, the hearing officer determined that Clark had a compensable injury that resulted in physical restrictions but that Clark failed to meet either criterion for "total loss of use." Clark failed to prove that he "no longer possesses any substantial utility of both feet at or above the ankle as a member of the body" or that "his bilateral lower extremity condition is such that he cannot get and keep employment requiring the use of both feet at or above the ankle as a result of the compensable injury." Clark's claim for lifetime income benefits was denied, and Clark sought judicial review through a jury trial.

         The parties entered into various stipulations, which narrowed the scope of the jury trial. In opening statements, Clark's attorney explained that the only issue for the jury to decide was whether Clark sustained a total loss of use of his feet at or above the ankles, as the term "total loss of use" would be defined for the jury, such that Clark would be entitled to lifetime income benefits. Clark's attorney told the jury that the case would not be about whether Clark had been hurt or whether he was permanently impaired because "[n]obody disputes that."

         During the City's opening statement, the City's attorney previewed its evidence and told the jury that Clark's injury was to his back, not his feet. The attorney stated that, to the extent Clark had any complaints of pain beyond his lower back, Clark's only complaint was of pain radiating into his right leg, not both. The City's attorney highlighted that "only one doctor in this case gives the opinion that Mr. Clark has permanently lost the use of both feet at or above the ankle, and that's his chiropractor, Dr. Ericksen."

         The jury received testimony from three witnesses: Clark, Ericksen and Mauldin. Clark testified in person, while Ericksen and Mauldin testified by deposition. The jury received a large amount of documentary evidence, including close to 400 pages of medical records, medical reports, and related physician materials. Then, the jury was asked to determine whether Clark met the burden for entitlement to lifetime income benefits on the claim of total loss of use of both feet. We will summarize the testimony and documentary evidence below before reviewing the jury's determination.

         Testimony of Ericksen and Clark

         Excerpts of Ericksen's deposition testimony were read to the jury. Ericksen testified that he is familiar with the workers' compensation criteria because, while his involvement in this case was as a treating chiropractor, the Division of Workers' Compensation has qualified him as a designated doctor, and he has experience opining on impairment ratings and maximum medical improvement determinations.

         Ericksen opined that the vehicle collision injured Clark's cervical and lumbar spine. The lumbar injury caused radiculopathy into the lower extremities. He explained that radiculopathy involves nerves traveling to a particular part of the body and not functioning properly, thereby producing sensations of pain, numbness, tingling, and burning. Ericksen diagnosed Clark with radiculopathy after examining Clark and noting reduced or absent reflexes in both legs and atrophy in one leg. Ericksen noted that several medical doctors who had evaluated Clark and performed testing on him also had diagnosed Clark with radiculopathy.

         Ericksen testified that Clark's electrodiagnostic study "showed evidence of impairment to multiple motor nerves in both legs." The impaired nerves innervated Clark's feet. Ericksen testified that Clark experienced radiating pain into his legs and could not stand or sit for more than a few minutes at a time. According to Ericksen, Clark must "alternate between standing and sitting for a period, but then he becomes intolerant to that and has to lay down."

         Ericksen opined that Clark's car accident caused Clark to suffer a total loss of use of both his feet. Clark was unable to get and keep employment requiring the use of both feet because he was unable to stand or sit for more than a few minutes at a time and required frequent, intermittent breaks to lie down. In Ericksen's professional opinion, he testified Clark was not employable.

         Clark testified in person. He explained how the collision occurred, what his initial pain symptoms were like, and how that pain evolved over the next year and continued into trial. He testified that the pain began in his lower back but later began radiating down his right leg. He began to experience numbness in both feet. He also was sensitive to cold temperatures. By trial, his numbness had worsened so that both big toes were constantly numb. Clark testified that he could stand only for 15 minutes or so, then he had to sit. But he could not sit for long either.

         In addition to the pain and constant numbness Clark experienced in his feet, Clark also testified to loss of use of both feet. He testified that his "ankles have given out" several times, causing him to lose his bodily control and fall. In other words, his feet at the ankles have failed to function and he has fallen as a result.

         Clark was asked about the medical examination performed by the workers' compensation designated doctor, Bernstein. Clark testified that he told Bernstein he had pain radiating into his right leg and numbness in his left foot. When he participated in a functional capacity evaluation test, Clark could stand for only 18 minutes. After medical testing and evaluation of Clark, Bernstein gave Clark a whole person impairment rating of 25%. Clark testified that he would not be able to perform any activity that required him to be on his feet for hours at a time. And he has never been released to return to work.

         Parties' stipulations

         After Clark testified, the parties' stipulations were read to the jury, including that Clark "sustained a compensable injury" on March 18, 2008, when his work truck was struck, and that he "reached maximum medical improvement on April 14, 2009, with a 25 percent impairment rating as certified by designated doctor, Melvyn Bernstein."

         Clark's medical records

         Clark's medical records provided evidence of the various doctors' examinations, diagnoses, and impairment determinations. Bernstein's medical report stated that he saw Clark at the request of the Texas Department of Insurance, Division of Workers' Compensation for a "designated doctor evaluation." It noted findings from a 2009 MRI, including disc protrusions. It also noted findings from a 2009 electrodiagnostic study, including "evidence of impairment to multiple motor nerves in both legs . . . which is consistent with a diagnosis of a moderately severe mid to low lumbar central spinal stenosis."

         Bernstein's report included his medical opinion that, at the time of the evaluation in April 2009, Clark was "still symptomatic" and had "reached Maximum Medical Improvement." Further, based on "the medical record as developed and on the entire examination detailed" in the report, Bernstein assigned Clark a "25% Whole Person Impairment" rating, noting, among other findings: (1) Lumbosacral spine impairment and spondylosis; (2) DRE lumbosacral category V: radiculopathy and loss of motion segment integrity; (3) a 4 to 5 mm anterior displacement of L5 over S1; and (4) "moderately severe impairment to multiple motor nerves in both legs . . . which supports and correlates with the physical examination which demonstrated decreased deep tendon reflexes in both lower extremities combined with a bilateral, symmetric motor/strength deficit ranging from L2 through S1 or lower."

         The medical records revealed that Dr. Gregory Ward had conducted a neurosurgical evaluation of Clark in March 2009, at which Clark reported numbness and tingling in his left foot and leg. ...

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