Dallas National Insurance Company v. Gloria De La Cruz

470 S.W.3d 56, 58 Tex. Sup. Ct. J. 1584, 2015 Tex. LEXIS 760, 2015 WL 5053812
CourtTexas Supreme Court
DecidedAugust 28, 2015
Docket13-0814
StatusPublished
Cited by17 cases

This text of 470 S.W.3d 56 (Dallas National Insurance Company v. Gloria De La Cruz) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dallas National Insurance Company v. Gloria De La Cruz, 470 S.W.3d 56, 58 Tex. Sup. Ct. J. 1584, 2015 Tex. LEXIS 760, 2015 WL 5053812 (Tex. 2015).

Opinion

PER CURIAM

In this workers’ compensation case, the trial court awarded Gloria De La Cruz lifetime income benefits (LIBs) pursuant to Section 408.161 of the Texas Workers’ Compensation Act (the Act). Tex. Lab. Code § 408.161. The award was based on De La Cruz’s claim that an injury to her back extended to and affected both her feet at or above the ankle, causing permanent, total loss of use of them. The court of appeals affirmed. We reverse and render.

De La Cruz was working as a cook for Kona Kreek restaurant on February 18, 2004, when she fell, injuring her left knee and back. Kona Kreek earned workers’ compensation insurance with Dallas National Insurance Company, and it is undisputed that her injuries were compensable.

De La Cruz was released to return to light duty work in March 2004. However, she could not perform light duties and was again taken off work by her doctors. She was eventually diagnosed with interverte-bral disc herniations and underwent back surgery described as a “360 fusion at L4-L5 and L5-S1 with laminectomy and dis-cectomy.” Later she had anthroscopic surgery on her left knee. Despite these surgeries, De La Cruz continued to experience pain and numbness in her legs and continued to seek treatment for back and knee pain.

In 2009, De La Cruz filed a claim for LIBs with the Division of Workers’ Compensation. She claimed her 2004 injury caused the total loss of use of both her feet at or above the ankle, the loss of use was permanent, and she was entitled to LIBs pursuant to Section 408.161 of the Act. See Tex. Lab. Code § 408.161. A contested case hearing was held, and the hearing officer determined that she was not entitled to LIBs. De La Cruz appealed. An appeals panel of the Division affirmed, and De La Cruz appealed to the district court. See id. §§ 410.252, 410.301. Following a ' non-jury trial, the court found that her injury resulted in the total and permanent loss of use of both her feet at or above the ankle and awarded LIBs.

Dallas National appealed, challenging both the legal and factual sufficiency of the evidence to support the judgment. The court of appeals affirmed. Dall. Nat’l Ins. Co. v. De La Cruz, 412 S.W.3d 36 (Tex. App.-El Paso 2013). In doing so, it noted references in the medical records to objective signs of radiculopathy, an impairment rating for radiculopathy, records demonstrating a “dermatomal loss on right side of L2 and left side L3,” De La Cruz’s use of a cane, and her complaints of pain radiating to her toes. Id. at 43.

In this Court, Dallas National challenges the court of appeals’ determination that the evidence was sufficient to support the trial court’s judgment. *58 City of Keller v. Wilson; 168 S.W.3d 802, 810 (Tex.2005) (quoting Robert W. Calvert, “No Evidence” & “Insufficient Evidence” Points of Error, 38 Tex.-L. Rev. 361, 362-63 (1960)). In reviewing the evidence for legal sufficiency, “we credit evidence that supports the verdict if [a reasonable fact-finder] could have done so and disregard contrary evidence unless [a reasonable factfinder] could not have done so.” Graham Cent. Station, Inc. v. Peña, 442 S.W.3d 261, 263 (Tex.2014) (quoting Akin, Gump, Strauss, Hauer & Feld, L.L.P. v.. NatTDev. & Research Corp., 299 S.W.3d 106,115 (Tex.2009)).

*57 A challenge to the legal sufficiency of the evidence will be sustained only if (a) [there is] a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; [or] (d) the evidence establishes conclusively the opposite of the vital fact.

*58 Section 408.161 of the Texas Workers’ Compensation Act enumerates seven types of injuries that entitle an employee to LIBs. The Act,' as relevant to this case, provides that'

(a) Lifetime income benefits are paid until the death of the employee for:
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(2) loss of both feet at or above the ankle; .
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(b) For purposes'of Subsection (a), the ■total and permanent loss of use of a body part is the loss of that body part.

Tex. Lab. Code § 408.161(a)-(b). “Total .loss of use” is not defined in the statute, but we have 'determined that.

[a] total loss of the use of a member 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 workman cannot procure and retain employment requiring the use of the member.

Ins. Co. of State of Pa. v. Muro, 347 S.W.3d 268, 272 (Tex.2011) (quoting Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex.1962)). The Act defines injury as “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm.” Tex. Lab. Code §'401.011(26). For total loss of use of a member to be compensable, the loss of use must have resulted from injury to the member itself, as opposed to the loss of use resulting from injury to another part of the body. Further, pain alone is not an injury under the Act because, it is not damage pr harm to the physical structure of the body. See, e.g., Mendoza v. Old Republic Ins. Co., 333 S.W.3d 183, 187 (Tex.App.-El Paso 2010, pet. denied); Peterson v. Cont’l Cas. Co., 997 S.W.2d 893, 895 (Tex.App.-Houston [1st Dist.] 1999, no pet.); cf. Tex. Emp’rs’ Ins. Ass’ n Shannon, 462 S.W.2d 559, 562 (Tex.1970) (“The fact that pain alone (as distinguished from an extension of the injury) extends from an injury to a specific member of the body into the body does not make the injury a general one and will not support⅛ finding of general incapacity”). An.

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470 S.W.3d 56, 58 Tex. Sup. Ct. J. 1584, 2015 Tex. LEXIS 760, 2015 WL 5053812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dallas-national-insurance-company-v-gloria-de-la-cruz-tex-2015.