Summary
holding evidence legally sufficient that appellee's injury extended to include osteoarthritis and chondromalacia
Summary of this case from Charter Oak Fire Ins. Co. v. SwaniganOpinion
No. 11-07-00183-CV
Opinion filed December 11, 2008.
On Appeal from the 244th District Court Ector County, Texas, Trial Court Cause No. C-118,428.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
This is a workers' compensation case. The hearing officer found that Donna Zachero suffered a compensable injury and had a disability on certain dates as a result of the injury. The Texas Workers' Compensation Commission affirmed the decision of the hearing officer, and American Casualty Company of Reading, PA, appealed that decision to the district court in Ector County. A jury found that the compensable injury to Zachero included osteoarthritis and chondromalacia in the left knee and that Zachero had disability from April 17, 2003, to August 11, 2003, and again from January 21, 2004, to August 2, 2004. The trial court entered judgment in accordance with the jury's findings, and American Casualty appeals. We affirm.
On March 17, 2003, Zachero was injured at work when she fainted and fell. Zachero hit her chin, shoulder, chest, and elbow during the fall and developed bruises on those areas. Zachero also injured her knee when she fell. Zachero went to the emergency room on April 17, 2003, due to the pain and swelling in her knee. The emergency room doctor took X-rays of Zachero's knee and instructed her to see Dr. Richard L. Duke, an orthopedic specialist, for the injury.
After seeing Dr. Duke and having an MRI on her knee, Zachero was diagnosed with a medial meniscus tear in her left knee. The MRI also revealed osteoarthritis and chondromalacia in Zachero's knee. Zachero underwent surgery to remove the torn area of the meniscus. After the arthroscopic surgery, Zachero continued to complain of pain and swelling in the knee. Dr. Duke referred Zachero to another orthopedic surgeon, Dr. William George Reilly. Dr. Reilly determined that Zachero had osteoarthritis of the left knee that was "traumatic in nature" and that Zachero needed a total knee replacement. Zachero underwent knee replacement surgery on November 1, 2004.
American Casualty disputed that the injury to Zachero's knee included osteoarthritis. American Casualty contends that Zachero's osteoarthritis is related to degenerative joint disease, which is an ordinary disease of life. The hearing officer found that Zachero's "compensable injury of March 17, 2003, extends to include osteoarthritis and chondromalacia in the left knee." The appeals panel of the Texas Workers' Compensation Commission affirmed the hearing officer's decision. After an appeal to the trial court, the jury also found that Zachero's compensable injury included osteoarthritis and chondromalacia.
A compensable injury is an "injury that arises out of and in the course and scope of employment for which compensation is payable under [the Texas Workers' Compensation Act, TEX . LAB. CODE ANN. tit. 5, subtit. A (Vernon 2006 Supp. 2008)]." Section 401.011(10). Injury is defined as "damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm." Section 401.011(26). The term "injury" includes an occupational disease. Id. The term "occupational disease" does not include "an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease." Section 401.011(34). The term "injury" also includes the aggravation of preexisting conditions or injuries. Cooper v. St. Paul Fire Marine Ins. Co., 985 S.W.2d 614, 616-18 (Tex.App.-Amarillo 1999, no pet.).
The district court reviews the appeals panel's decision on issues involving the compensability of an injury under a modified de novo review. Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516-18 (Tex. 2007); Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 515 (Tex. 1995). As the party appealing the appeals panel's decision in this case, American Casualty had the burden at trial to prove by a preponderance of the evidence that Zachero's compensable injury did not include the osteoarthritis and chondromalacia. Sections 410.301(a), 410.303; Morales, 241 S.W.3d at 516.
In two issues on appeal, American Casualty argues that the evidence is legally insufficient to support the jury's findings and that Dr. Reilly's testimony was inadmissible. We will first address American Casualty's argument that Dr. Reilly's testimony was inadmissible. Dr. Reilly testified outside the presence of the jury that Zachero's injury to her knee resulted in the osteoarthritis. Dr. Reilly stated that Zachero did have evidence of preexisting arthritis in her knee. Dr. Reilly explained "the work-related injury was to the meniscus, and the meniscus made the arthritic knee symptomatic, and the arthritis progressed due to the fact that that meniscus had to be taken out." Dr. Reilly testified before the jury about his conclusion that Zachero's osteoarthritis was traumatic in nature from the work injury to the meniscus. Dr. Reilly explained to the jury how Zachero's injury to her knee required the removal of the meniscus and caused her arthritis to progress.
American Casualty specifically argues that Dr. Reilly was not qualified as an expert regarding the cause of the osteoarthritis and chondromalacia. American Casualty complains that Dr. Reilly was not qualified to give expert testimony on causation, that his testimony was not reliable, and that his testimony was not based upon reasonable medical probability.
The general rule is that expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors. Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007). In the absence of expert medical testimony, laypersons do not have the common knowledge and experience to adequately evaluate the cause of the osteoarthritis and chondromalacia. Therefore, expert medical testimony was required to establish causation of the osteoarthritis and chondromalacia. Rule 702 of the Texas Rules of Evidence governs the admissibility of expert testimony. TEX. R. EVID. 702; E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 554 (Tex. 1995). Rule 702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
Expert testimony is admissible if (1) the expert is qualified and (2) the testimony is relevant and based on a reliable foundation. Cooper Tire Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); Robinson, 923 S.W.2d at 556. The trial court makes the initial determination about whether the expert and the proffered testimony meet these requirements. Wilkins, 47 S.W.3d at 499. The trial court has broad discretion to determine admissibility, and we will reverse only if there is an abuse of that discretion. Id.; see also Larson v. Downing, 197 S.W.3d 303, 304-05 (Tex. 2006); Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). A trial court abuses its discretion if it acts without reference to any guiding rules or principles. Robinson, 923 S.W.2d at 558.
The party offering the expert's testimony bears the burden of establishing that the witness is qualified as an expert. Broders, 924 S.W.2d at 151. The offering party must show that the expert has knowledge, skill, experience, training, or education regarding the specific issue before the court that would qualify the expert to give an opinion on the particular subject. Id. at 153. In deciding whether an expert is qualified, the trial court must ensure that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion. Mendez, 204 S.W.3d at 800; Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998).
In determining whether expert testimony is reliable, we review an expert's testimony in its entirety and will not accept the expert's opinion as some evidence "simply because he used the magic words." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711-12 (Tex. 1997) (quoting Schaefer v. Tex. Employers' Ins. Ass'n, 612 S.W.2d 199, 202-04 (Tex. 1980)). In Robinson, the court identified six factors that trial courts may consider in determining whether expert testimony is reliable: (1) the extent to which the expert's theory has been or can be tested; (2) the extent to which the expert's technique relies upon his own subjective interpretation; (3) whether the expert's theory has been subjected to peer review and publication; (4) the potential rate of error of the theory; (5) whether the expert's theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the nonjudicial uses that have been made of the expert's theory or technique. Robinson, 923 S.W.2d at 557. The factors in Robinson are nonexclusive, and Rule 702 contemplates a flexible inquiry. Mendez, 204 S.W.3d at 801. The Robinson factors cannot always be used in assessing an expert's reliability, but "there must be some basis for the opinion offered to show its reliability." Mendez, 204 S.W.3d at 801; Gammill, 972 S.W.2d at 726. The Robinson relevance and reliability requirements apply to all expert testimony. Mendez, 204 S.W.3d at 801.
To constitute evidence of causation, a medical expert's opinion must rest in reasonable medical probability. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995); LMC Complete Auto., Inc. v. Burke, 229 S.W.3d 469, 478 (Tex.App.-Houston [1st Dist.] 2007, pet. denied). Thus, expert testimony that is not based on reasonable medical probability but instead relies on possibility, speculation, or surmise provides no evidence of causation. Havner, 953 S.W.2d at 712; Schaefer, 612 S.W.2d at 204-05. Reasonable probability is determined by the substance and context of the opinion and does not turn on semantics or the use of a particular term or phrase. Crye, 907 S.W.2d at 500.
Dr. Reilly graduated cum laude from Georgetown University Medical School and trained at Cleveland Clinic Foundation. Dr. Reilly has been an orthopedic surgeon for seventeen years and is board certified for total joint replacement. Dr. Reilly is a partner with Basin Orthopedic Surgical Specialists. Dr. Reilly performs approximately 200 total knee replacements per year. Dr. Reilly stated that he had not previously testified on the causation of an injury. Dr. Reilly further stated he had not published any articles on causation of injuries or attended any seminars on determining causation of injuries.
Dr. Reilly testified that he was Zachero's treating physician after his partner, Dr. Duke, referred Zachero to him. Zachero's medical history was in her chart maintained by the Basin Orthopedic Surgical Specialists. Dr. Reilly conducted a physical examination of Zachero, reviewed her X-rays, and reviewed her previous treatment. Dr. Reilly testified that, in his opinion, Zachero had osteoarthritis that was "traumatic in nature." Dr. Reilly stated that, after his examination of Zachero, he tried to treat her "conservatively" with medications. Dr. Reilly discussed Zachero's series of X-rays with the jury and explained the progression of Zachero's arthritis after the injury and removal of the meniscus. Dr. Reilly testified that the series of X-rays showed both of Zachero's knees were predisposed for arthritis, but the progression of the arthritis and the pain symptoms were present in the left knee that was injured.
Dr. Reilly testified that "when you talk about caused this, to me there's only one thing that happened to her different than that right knee, which she twisted, tore the meniscus in the left knee. So now she's got arthritis. . . . She's been on everything she can. We injected steroid in her knee. That didn't relieve her pain." Dr. Reilly told Zachero that, if she could no longer tolerate the pain, knee replacement was her other option.
Dr. Reilly testified that, in his opinion, the injury resulting in the torn meniscus caused the progression of Zachero's arthritis. Dr. Reilly explained the objective data supporting his opinion by reviewing the X-rays showing the progression of the arthritis. Dr. Reilly's testimony showed that he had knowledge, skill, experience, and training that qualified him to give an opinion on the causation of Zachero's chondromalacia and osteoarthritis. Dr. Reilly was not disqualified from testifying on causation because he had not previously testified as an expert on causation.
Dr. Reilly's testimony was based upon his review of Zachero's medical records, the physical examination he performed on Zachero, and the objective data showing the progression of the osteoarthritis and chondromalacia. American Casualty offered the expert testimony of Dr. Marvin Van Hal, which conflicted with that of Dr. Reilly. A trial court's gatekeeping function under Rule 702 is not to determine whether an expert's conclusions are correct but only whether the analysis used to reach them was reliable. Gammill, 972 S.W.2d at 728. The trial court did not abuse its discretion in concluding that Dr. Reilly's testimony was sufficiently reliable to be admitted into evidence. See Burke, 229 S.W.3d at 478-79. The evidence showed that Dr. Reilly was an experienced orthopedic surgeon and that he regularly treated knee injuries. His testimony demonstrated that his opinion was based upon a number of factors and that his opinion was based on reasonable medical probability and not possibility, speculation, or surmise. The trial court did not err in admitting Dr. Reilly's expert testimony. American Casualty's second issue on appeal is overruled.
In the first issue on appeal, American Casualty argues that the evidence is legally insufficient to support the jury's finding that Zachero's injury extended to include the osteoarthritis and chondromalacia. To analyze a legal sufficiency challenge, we must determine whether the evidence at trial 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 must review the evidence in the light most favorable to the verdict, crediting any favorable evidence if a reasonable factfinder could and disregarding any contrary evidence unless a reasonable factfinder could not. Id. at 821-22, 827. We may sustain a no-evidence or legal sufficiency challenge only when (1) the record discloses a complete absence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more that a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810 (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEXAS L.REV. 361, 362-63 (1960)).
American Casualty specifically argues that, "where expert medical testimony is required to establish a causal relationship between the compensable injury and the claimed condition, a jury is not free to disregard undisputed expert testimony establishing that the condition was not caused by the injury." American Casualty offered the expert testimony of Dr. Van Hal who testified that he reviewed all of Zachero's medical records but did not conduct a physical examination of Zachero. Dr. Van Hal stated that Zachero's osteoarthritis and chondromalacia were not caused by her work injury. Dr. Van Hal testified that Zachero's chondromalacia was caused by an ongoing degenerative preexisting condition, that the injury did not aggravate her arthritis, and that the type of injury Zachero had does not lead to traumatic arthritis. American Casualty contends that, because Dr. Reilly's testimony was not admissible, the jury could not disregard the undisputed testimony of Dr. Van Hal.
Dr. Reilly's testimony disputed the opinion of Dr. Van Hal. We have already held that the trial court did not err in admitting Dr. Reilly's testimony that Zachero's injury resulted in the progression of her osteoarthritis and chondromalacia. Moreover, Zachero presented as evidence a report from Dr. Duke in which he responded to questions from the Texas Workers' Compensation Commission on whether the work injury aggravated the preexisting osteoarthritis and chondromalacia. Dr. Duke responded that "the science of the situation does fit the claim that a job incident could aggravate, enhance, accelerate, or worsen any preexisting chondromalacia or osteoarthritis in the left knee that was subjected to a twisting or shearing type of damage." Zachero also introduced the report of Dr. Charles George, who examined Zachero at the request of American Casualty. Dr. George stated in his report that the work injury was the producing cause of the medical condition and treatment of Zachero's left knee. We find that the evidence is legally sufficient to support the jury's finding that Zachero's injury extended to include osteoarthritis and chondromalacia. American Casualty's first issue on appeal is overruled.
The judgment of the trial court is affirmed.