Appeal from the 236th District Court Tarrant County, Texas
Trial Court Case No. 236-279735-15
consists of Justices Lloyd, Landau, and Countiss.
Beth Landau Justice
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.
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.
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.
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.
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.
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%.
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. §
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,
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."
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.
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."
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."
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.
of Ericksen and Clark
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.
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.
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
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.
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.
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.
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.
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."
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."
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."
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