DALLAS NATIONAL INSURANCE COMPANY, Petitioner, v. Gloria DE LA CRUZ, Respondent
No. 13-0814
Supreme Court of Texas.
OPINION DELIVERED: August 28, 2015
470 S.W.3d 56
Robert E. Riojas, The Riojas Law Firm, P.C., El Paso, for Respondent.
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).
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 carried 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 intervertebral disc herniations and underwent back surgery described as a “360 fusion at L4-L5 and L5-S1 with laminectomy and discectomy.” 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.
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.
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.
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:
. . . .
(2) loss of both feet at or above the ankle;
. . . .
(b) For purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of that body part.
[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.”
De La Cruz relies on Hartford Underwriters Insurance Co. v. Burdine, 34 S.W.3d 700 (Tex.App.-Fort Worth 2000, no pet.). In that case, an employee suffered a work-related back injury and LIBs were awarded based on the loss of use of the employee‘s feet. Id. at 706-07. There, a doctor testified that the employee‘s back injury included injury to nerves coming out of her spinal column and running down her legs and into her feet. Id. The doctor elaborated that the injury to the nerve roots in her back resulted in muscular malfunction in the feet and a condition called “footdrop“—the inability of the employee to lift her feet. Id. But neither the doctor who testified in De La Cruz‘s case nor De La Cruz‘s medical records reflects
One medical record indicates that she suffers from “lower extremity problems secondary to radiculopathy and postlaminectomy syndrome” and “dermatomal loss” due to nerve damage in her back. However, the record does not identify what parts of her lower extremities were involved or whether there was any physical damage or harm to them. That is, there is no evidence that those conditions caused or were the result of damage or harm to the physical structure of both her feet at or above the ankle as opposed to reflecting injury to the nerve roots in her back. Another such medical record is from an examination in 2009 where the examining doctor noted that De La Cruz‘s ankle reflexes were absent bilaterally. But the one entry regarding the finding does not identify whether the condition was transient or permanent in both ankles; whether it reflected more than damaged nerve roots in De La Cruz‘s back; whether De La Cruz‘s feet were unable to function properly; or whether the condition was permanent and caused permanent total loss of use of both her feet.
In sum, there is evidence that the injury to De La Cruz‘s back affected her lower extremities, including her feet. But, as we concluded in Muro, absent evidence of damage or harm to the physical structure of the enumerated body part or parts—in this case both feet at or above the ankles—and that the injury to the member or members caused the permanent total loss of use of them, the evidence is legally insufficient to meet statutory requirements for LIBs under Section 408.161. 347 S.W.3d at 275. Here, there is no such evidence.
We reverse the judgment of the court of appeals and render judgment denying De La Cruz‘s claim for LIBs.