Norma Hunt v. State Office of Risk Management

• Court: Court of Appeals of Texas
• Decided: May 15, 2007
• Docket: 14-05-00819-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed May 15, 2007

Affirmed and Memorandum Opinion filed May 15, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00819-CV

NORMA HUNT, Appellant

V.

STATE OFFICE OF RISK MANAGEMENT, Appellee

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Cause No. 2003-31675

M E M O R A N D U M    O P I N I O N

This is an appeal from a judgment in a workers= compensation case in which the jury found that appellant Norma Hunt did not sustain a compensable psychological injury.  We conclude that  the evidence is legally and factually sufficient to support the jury=s verdict, and that the trial court did not err in denying Hunt=s motion for directed verdict.  Accordingly, we affirm the trial court=s judgment.

I.  Factual and Procedural Background

On February 13, 2001, Hunt was working for the Texas Department of Corrections in a picket.  A picket is a control room in a correctional facility from which Hunt would control the locking and unlocking of prison doors.  While working in the picket, Hunt began to sit down on a chair with rollers, but the chair rolled away.  Hunt fell on her buttocks, bracing her fall with her hands and sustaining physical injuries (hereinafter the AOccurrence@).  As a result of the fall, Hunt was injured in her neck, shoulder, and back.  Eventually, Hunt underwent shoulder surgery and physical therapy.  There is no dispute that her original physical injuries are compensable under the Texas Workers= Compensation Act.  See Tex. Lab. Code Ann. ' 406.031 (Vernon 2006). 

Hunt continued to complain of chronic pain and had a prolonged recovery process.  Dr. Yezak, Hunt=s chiropractor, referred Hunt for psychological treatment, and, on February 20, 2002, Hunt began to receive treatment for depression from psychologist Dr. Bricken.  Hunt contended that her psychological conditionCsymptoms of depression and panic attacksCis compensable as arising out of the Occurrence.  Appellee State Office of Risk Management (hereinafter ARisk Management@) countered that Hunt=s psychological condition did not arise out of the Occurrence, and Risk Management contested compensability before the Texas Workers= Compensation Commission (hereinafter ACommission@).  After both the administrative hearing officer and appeals panel determined that Hunt=s psychological condition was compensable, Risk Management filed a petition for judicial review in the district court. 

At the trial de novo, Risk Management, as the appealing party, had the burden of proving by a preponderance of the evidence that Hunt=s symptoms of depression and panic attacks were not compensable injuries.  See Tex. Lab. Code Ann. '' 410.301, 410.303 (Vernon 2006).  The jury found that Hunt=s compensable injury of February 13, 2001 does not include a psychological component.  Based on this verdict, the trial court rendered judgment in favor of Risk Management. 

II.  Issues Presented

In three issues on appeal, Hunt challenges the legal and factual sufficiency of the evidence to support the jury=s finding, and argues that the trial court erred in denying her motion for directed verdict.

                                        III.  Standards of Review

In determining whether legally sufficient evidence supports the finding under review, we must consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it.  See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).  We must credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not.  See id. at 827.  We must determine whether the evidence at trial would enable a reasonable and fair-minded person to find the facts at issue.  See id.

In reviewing the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  After considering and weighing all the evidence, we set aside the fact finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).  In analyzing all three of Hunt=s issues, we must bear in mind that the factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony.  See id. at 819.

IV.  The Jury Charge

The jury charge stated in pertinent part as follows:

YOU ARE INSTRUCTED THAT THERE MAY BE MORE THAN ONE PRODUCING CAUSE OF A COMPENSABLE INJURY, BUT THERE CAN BE ONLY ONE SOLE CAUSE OF A COMPENSABLE INJURY. IF NORMA HUNT=S PSYCHOLOGICAL INJURY WAS SOLELY CAUSED BY SOME INCIDENT OR EVENT OTHER THAN HER COMPENSABLE INJURY OF FEBRUARY 13, 2001, THEN HER COMPENSABLE INJURY OF FEBRUARY 13, 2001 DOES NOT EXTEND TO AND INCLUDE A PSYCHOLOGICAL INJURY.

Question Number 1

Do you find that Norma Hunt=s compensable injury of February 13, 2001 does not extend to and include a psychological injury?

Answer Ait does not extend to@ or Ait does extend to@

Answer:   ___________

AInjury@ means damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom, and includes the excitement, acceleration, or aggravation of any disease or condition previously or subsequently existing.

ACompensable Injury@ means an injury that arises out of and in the course and scope of employment for which compensation is payable.

AProducing Cause@ means an efficient, exciting, or contributing cause which in a natural and continuous sequence produces incapacity.  There may be more than one producing cause of an incapacity.

YOU ARE INSTRUCTED THAT THE ADMINISTRATIVE LAW JUDGE WITH THE TEXAS WORKERS= COMPENSATION COMMISSION FOUND THAT NORMA HUNT=S COMPENSABLE INJURY OF FEBRUARY 13, 2001 DID EXTEND TO AND INCLUDE A PSYCHOLOGICAL INJURY.  YOU MAY CONSIDER THIS FINDING AS EVIDENCE ALTHOUGH YOU ARE NOT BOUND BY IT.

The jury found, Ait does not extend to[.]@ 

At trial, no party objected to this charge; therefore, we review the sufficiency of the evidence under this charge, without regard to whether it is a correct statement of the law.  See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that court could not review the sufficiency of the evidence based on a particular legal standard because that standard was not submitted to the jury and no party objected to the charge on this ground or requested that the jury be charged using this standard); Hirschfeld Steel Co. v. Kellogg Brown & Root, Inc., 201 S.W.3d 272, 283B86 (Tex. App.CHouston [14th Dist.] 2006, no. pet.) (reviewing sufficiency of evidence based on unobjected-to jury instruction and rejecting various arguments based on different legal standards). 

                                                    V.  Analysis

Under the charge submitted, the jury could have reached its conclusion by deciding either that (1) Hunt=s injury arising out of and in the course and scope of her employment on February 13, 2001 does not include a psychological injury, or (2) Hunt=s psychological injury was solely caused by some incident or event other than Hunt=s injury arising out of and in the course and scope of her employment on February 13, 2001.  In reaching its verdict, the jury considered the testimony of Dr. Sandra Hotz, who has a doctorate in counseling psychology and a master=s degree in clinical psychology.  Dr. Hotz based her opinions on reasonable psychological probability.  We summarize her testimony relevant as follows: 

$                   Hunt had depression that preexisted her fall and physical injury. 

$                   After conducting her review, Dr. Hotz does not believe Hunt=s physical injury caused her depression.

$                   As a result of the fall, Hunt sustained acute physical injuries to her back, her hip, and her shoulder. Hunt=s physical-therapy records indicate that she had pain following her fall but that she was reporting more pain that she was actually experiencing.

$                   Hunt also indicated that she has cardiac issues, and Dr. Hotz testified that these may cause physical symptoms that look very much like a panic attack.

$                   People dealing with chronic pain sometimes develop significant anxiety, which they sometimes label a panic attack.

$                   According to Dr. Hotz, there are multiple Apotential progenerators of what=s being described as a >panic attack.=@ Hunt=s medical records contain indications that her panic attacks are a result of her injury and pain, but the records also indicate that Hunt was attending classes that caused a panic attack.  There are also indications that hormones may have caused Hunt to have a panic attack.

$                   Hunt initially reported a variety of stressors to Dr. Bricken, including stress related to (a) the possible need to return to work when she felt that she was not physically capable of doing so, (b) her own lack of assertiveness, (c) her attempts to reconcile with her ex-husband, (d) her efforts to lose weight, (e) her diabetes, (f) caring for a grandchild whom Hunt was physically unable to lift, (g) her sister=s death from a heart attack, and (h) Hunt=s fear that she would have a heart attack.

$                   When people suffer a psychological injury as a result of their chronic pain, they are very often able to identify the chronic pain as a source of their psychological injury.

$                   Personality factors unrelated to Hunt=s work injury are causing Hunt to over-report her symptoms.

$                   Although anxiety frequently occurs with depression, Dr. Hotz does not consider the symptoms described in Hunt=s medical records to be the kind of anxiety that typically coexists with depression.

$                   Hunt=s symptoms of depression appear highly correlated with psychosocial stressors.

$                   Frequently, in his records, Dr. Bricken makes no reference to Hunt suffering any pain, indicating he did not see anything that caused him to decide he needed to write about any pain suffered by Hunt in that session.

$                   Although Dr. Hotz testified that Hunt=s symptoms Aare consistent with major depression and pain disorder with psychological factors and a general medical condition,@ Dr. Hotz identified this Ageneral medical condition@ as degenerative disc disease unrelated to an acute injury.  Dr. Hotz noted that Hunt=s primary orthopedic doctor observed Aa degenerative change at L4-5@ and another doctor diagnosed Hunt with spondylosis.

$                   According to Dr. Hotz, Hunt=s psychosocial issuesCnot her chronic painChad a correlation to Hunt=s symptoms of depression one year after her fall.

$                   Dr. Hotz=s opinion regarding the causation of Hunt=s psychological injury is strengthened by statements in Dr. Schoonmaker=s records indicating that Hunt suffers from mood swings, bipolar disorder, and manic symptoms, which frequently have a genetic basis.  Dr. Hotz finds these symptoms incompatible with a major depressive disorder.

$                   According to Dr. Hotz, Dr. Bricken incorrectly concluded that there is a causal connection between Hunt=s psychological condition and the compensable injury that she sustained. 

Hunt argues that the evidence is legally insufficient because some of Dr. Hotz=s testimony contradicts the testimony summarized above and does not support the jury=s verdict.  This argument lacks merit.  As the trier of fact, the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.  See GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615B16 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  Given this conflicting testimony, the jury was entitled to believe only the part of Dr. Hotz=s testimony that supported a finding that Hunt=s compensable injury of February 13, 2001 does not include any psychological injury.  See Crnic v. Vision Metals, Inc., No. 14-03-01307-CV, 2005 WL 81629 , at *3 (Tex. App.CHouston [14th Dist.] Jan. 6, 2005, no pet.) (mem. op.).  While Hunt focuses on testimony indicating that Hunt=s fall aggravated her pre-existing depression, the above testimony is legally sufficient evidence to the contrary.

Hunt also argues that Dr. Hotz=s testimony did not address her panic attacks in a way that would support the jury=s verdict.  We disagree.  Dr. Hotz testified that Dr. Bricken was incorrect in his diagnosis that there was a causal connection between Hunt=s Apsychological condition@ and the compensable injury she sustained.  Under the applicable standard of review, this testimony would include Hunt=s panic attacks as well as her symptoms of anxiety and depression.

In sum, we conclude that the evidence summarized above would enable fair‑minded people to reach the verdict under review in this case.  Therefore, the evidence is legally sufficient. See City of Keller, 168 S.W.3d at 827.  Consequently, the trial court did not err in denying Hunt=s motion for directed verdict.

In addressing Hunt=s factual-sufficiency challenge, this court may not substitute its own judgment for that of the trier of fact, even if this court would reach a different answer on the evidence.  Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).  The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.  See GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615B16 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).  The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment.  Pascouet, 61 S.W.3d at 616.  Although the testimony of Dr. Hotz is not particularly forceful, after considering and weighing all the evidence, we conclude that the jury=s verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  See Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).  Thus, under the applicable standard of review, the evidence is factually sufficient to support the jury=s verdict.

We overrule each of the issues presented on appeal and affirm the trial court=s judgment.

/s/      Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed May 15, 2007.

Panel consists of Justices Frost, Seymore, and Guzman.