Robert Croysdill v. Old Republic Insurance Co.Robert Croysdill v. Old Republic Insurance Co.
Shelly W. Rivas, Kemp Smith LLP, El Paso, TX, for Appellee.
OPINION
STEVEN L. HUGHES, Justice
This is a workers’ compensation case. The injured worker, Robert Croysdill, is appealing a summary judgment granted in favor of the carrier, Old Republic Insurance Company. We affirm in part and reverse in part.
BACKGROUND
Robert Croysdill suffered an on-the-job back injury on October 14, 1997, while unloading a water heater from a trailer. Croysdill challenged the impairment rating in a lawsuit filed in the 34th District Court of El Paso County, Texas.1 In 2003, the parties settled that dispute and entered into a “Release of All Claims and Indemnity Agreement.” The parties agreed that “the 21% impairment rating as diagnosed by Dr. William Leff as resulting from the injury of October 14, 1997 is the impairment rating attributable to the work-related injury of October 14, 1997 and that such impairment rating was made after Robert Croysdill reached maximum medical improvement.” Under the terms of the Release, Croysdill received a lump sum payment of $18,877.98 in compensation benefits, but the parties agreed that the Release did not limit or terminate Croysdill‘s right to medical benefits under
In September 2011, Old Republic notified Croysdill that it was disputing whether his ongoing medical treatment and medication was reasonable, necessary, and related to the compensable injury. The Division of Workers’ Compensation (DWC) conducted a contested case hearing on November 5, 2012 to resolve the following question:
Does the compensable injury sustained on October 14, 1997 extend to and include lumbar disc displacement, chronic lumbar radiculitis, chronic sciatica, Grade I spondylolisthesis at L5, bilateral S1 nerve root irritation, anterior disc herniation at L5-S1, a small broad based disc bulge in combination with facet arthropathy contributing to moderate bilateral neural foraminal stenosis at L5-S1, disc desiccation with loss of disc height present at L4-5, a 2mm anterolisthesis of L4 with respect to L5 in combination with sclerotic changes to the pars interarticularis bilaterally, facet arthropathy in combination with a broad based disc bulge contributing to moderate to severe bilateral neural foraminal stenosis at L4-5?
William Leff, D.C., testified by telephone that he had last treated Croysdill in 2003 and had diagnosed Croysdill with lumbar disc syndrome, lumbar radiculitis, chronic sciatica, and grade 1 spondylolisthesis. Dr. Leff expressed his opinion that Croysdill had suffered a severe injury to his spine and it was “certainly reasonable [for him] to be seeking care at this time.”
In the written decision issued on November 9, 2012, the hearing officer found that Old Republic had accepted a lumbar sprain/strain as a result of the compensable injury, and Croysdill had failed to show that the compensable injury extended to and included the claimed diagnoses. On February 11, 2013, the DWC Appeals Panel allowed the decision to become final.
Croysdill filed a suit for judicial review of the hearing officer‘s decision in the 34th District Court. His pleadings also included a common law claim that Old Republic had breached the Release. Old Republic filed a motion for traditional summary judgment alleging that the hearing officer‘s decision was supported by substantial evidence and that Croysdill did not meet his burden of proof because he failed to offer any expert testimony that the disputed conditions were caused by the compensable injury. Croysdill filed a response to Old Republic‘s motion and also moved for summary judgment on both his judicial review and common law claims.3 Old Republic did not move for summary judgment on Croysdill‘s common law claim, but it argued at the summary judgment hearing that the claim is not viable because the Texas Workers’ Compensation Act provides the exclusive remedy. The trial court granted Old Republic‘s motion for summary judgment, affirmed the decision of the DWC, and denied Croysdill‘s motion for summary judgment.
JURISDICTION
We must address whether the summary judgment order is final and appealable. It is well settled that appellate courts have jurisdiction only over final judgments and interlocutory orders made appealable by statute. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001);
The trial court‘s judgment plainly disposed of the judicial review claim. The only question is whether it also disposed of Croysdill‘s common law breach of contract claim. Old Republic did not move for summary judgment with respect to this claim, but it argued at the hearing that the
EXTENT OF INJURY
In Issues One and Five, Croysdill challenges the trial court‘s decision granting Old Republic‘s motion for summary judgment.4 In this regard, Old Republic contends that this case falls under the substantial evidence rule because it involves a collateral issue.
Substantial Evidence or Modified De Novo Review
A party who has exhausted its administrative remedies and is aggrieved by a final decision of the appeals panel may seek judicial review.
Section 410.301(a) provides that:
Judicial review of a final decision of the appeals panel regarding compensability or eligibility for or the amount of income or death benefits shall be conducted as provided by this subchapter.
The issue before us is whether an extent of injury dispute is one regarding compensability or eligibility for benefits which is reviewed under the modified de novo standard or whether it is a collateral issue subject to review under the substantial evidence rule. The Act does not define “compensability,” but it defines “compensable injury” as “an injury that arises out
Issues which concern or implicate compensability or eligibility for benefits are reviewed under the modified de novo standard. See Morales, 241 S.W.3d at 519; Texas Prop. & Cas. Guar. Ass‘n, 208 S.W.3d at 538; Sec. Nat‘l Ins. Co. v. Farmer, 89 S.W.3d 197, 201 (Tex. App.-Fort Worth 2002, pet. denied). Collateral issues such as disputes over medical benefits, attorney‘s fees, and administrative sanctions presumably do not concern compensability and are subject to substantial evidence review under Section 410.255. See Morales, 241 S.W.3d at 519; Texas Workers’ Comp. Comm‘n v. Garcia, 893 S.W.2d 504, 530 n. 27 (Tex. 1995).
Old Republic maintains this case falls under the substantial evidence rule because it involves a collateral issue. We disagree. The dispute is whether the compensable injury suffered by Croysdill in 1997 extends to and includes the claimed diagnoses as set forth in the issue identified by the hearing officer. This dispute implicates both compensability and Croysdill‘s eligibility for benefits. If the compensable injury extends to one or more of the claimed diagnoses, Croysdill could be entitled to additional workers’ compensation benefits. On the other hand, if the claimed diagnoses were more likely a result of preexisting degenerative disc disease, and the preexisting conditions were not accelerated, worsened, or enhanced as a result of the compensable injury, then Croysdill may not be entitled to additional benefits.
We conclude that the dispute is not a collateral issue, but rather is one regarding compensability and eligibility for benefits, and that the modified de novo review standard applies. See Farmer, 89 S.W.3d at 201-02. Accordingly, contrary to Old Republic‘s contention, Croysdill did not have the burden in the trial court to show that the DWC decision was not supported by substantial evidence. Rather, he had the normal burden of most plaintiffs: to produce more than a scintilla of evidence to support each element of his claims in order to get to the jury.
Standard of Review
Old Republic moved for traditional summary judgment under
Necessity for Expert Testimony
Old Republic contends that it is entitled to summary judgment because it introduced expert testimony showing the compensable injury was not a producing cause of the claimed diagnoses, but they were more likely the result of a degenerative disc disease, and Croysdill‘s expert did not offer any opinion on this issue. As a general rule, 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, 665 (Tex. 2007). An exception to the expert testimony requirement exists where lay testimony establishes a sequence of events that provides a strong, logically traceable connection between the event and the condition. Id. at 666.
The DWC was required to determine whether several diagnoses—including lumbar disc displacement, chronic lumbar radiculitis, chronic sciatica, spondylolisthesis, bilateral nerve root irritation, anterior disc herniation, foraminal stenosis, facet arthropathy, and a broad-based disc bulge contributing to moderate to severe bilateral neural foraminal stenosis—were causally related to the October 14, 1997 compensable back injury. There is no lay testimony in the record establishing a strong, logically traceable connection between the original back injury and these conditions. Consequently, we conclude that expert testimony was necessary.
Old Republic‘s expert witness, Dr. Doyne, testified that the claimed diagnoses were not a producing cause of the compensable injury but were more likely a result of preexisting degenerative disc disease, and the preexisting conditions were not accelerated, worsened, or enhanced as a result of the compensable injury. Based on this evidence, Old Republic carried its initial burden of showing that it is entitled to summary judgment. The only question is whether there is any contrary evidence raising a fact issue.
Croysdill‘s expert, Dr. Leff, testified that Croysdill had suffered a severe back injury and it was reasonable for him to seek medical treatment for that injury. In his testimony before the hearing officer, Dr. Leff did not address whether the October 1997 compensable injury extended to the claimed diagnoses, but his written SOAP notes from 1998-2000 were made part of the hearing record, as well as the summary judgment record. In those notes, Dr. Leff specifically stated that the diagnoses of lumbar disc syndrome, lumbar radiculitis, and chronic sciatica complicated by lumbar L-5 spondylolisthesis were “in direct relationship to his injury . . . sustained at work on October 14, 1997.” Croysdill‘s supplemental response to Old Republic‘s motion for summary judgment also included an affidavit from Dr. Leff dated December 4, 2013, prepared after the contested case hearing. In the affidavit, Dr. Leff averred that he had consistently diagnosed Croysdill since 1998 with lumbar disc syndrome, lumbar radiculitis, chronic sciatica, and lumbar L-5 spondylolisthesis. He did not directly address whether the compensable injury was the producing cause of these conditions, but he averred that his impairment rating of 21% included the disorder “Disc with Radiculitis.” The summary judgment evidence includes the Release in which the parties agreed that “the 21% impairment rating as diagnosed by Dr. William Leff as resulting from the injury of October 14, 1997 is the impairment rating attributable to the work-related injury of October 14, 1997[.]”
Dr. Leff‘s affidavit must be considered in light of the Texas Labor Code‘s definitions of “impairment” and “impairment rating.”
When Dr. Leff‘s affidavit is construed favorably, he effectively testified that the chronic lumbar radiculitis condition resulted from the compensable injury because it formed part of the impairment rating. This created a fact issue which precludes the granting of summary judgment in part at least as to the condition of “chronic lumbar radiculitis.” To that limited extent, Issues One and Five are sustained. Otherwise, they are overruled.
RES JUDICATA AND COLLATERAL ESTOPPEL
In Issues Two, Three, and Four, Croysdill challenges the order granting summary judgment in favor of Old Republic and denying his summary judgment motion, on the grounds of res judicata and collateral estoppel. More specifically, he contends that Old Republic‘s extent of injury dispute is barred by the parties’ agreement that the Release did not terminate or limit Croysdill‘s right to medical benefits as provided by
Res Judicata
The party asserting an affirmative defense has the burden of pleading and proving its elements. See Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000). Res judicata, or claim preclusion, bars the relitigation of claims that have been finally adjudicated or that could have been litigated in the prior action. See Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992). For res judicata to apply, the defendant must prove: (1) there is a prior final judgment on the merits by a court of competent jurisdiction; (2) the parties in the second action are the same or in privity with those in the first action; and (3) the second action is based on claims that were or could have been raised in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). The summary judgment evidence does not include any pleadings from the prior impairment-rating lawsuit, or any evidence of a judgment on the merits that would support a claim of res judicata. Rather, Croysdill based his res judicata argument entirely on the Release entered into by the parties in 2003. While the summary judgment evidence shows that the parties entered into the Release which resolved the dispute over the impairment rating, Croysdill failed to show that the extent of injury dispute at issue in the present case was or could have been resolved in the prior suit. Consequently, the trial court did not err by denying Croysdill‘s motion for summary judgment on the res judicata ground.
Collateral Estoppel
Collateral estoppel, or issue preclusion, prevents relitigation of particular issues already resolved in a prior suit. Barr, 837 S.W.2d at 628. The elements of collateral estoppel are: (1) the facts sought to be litigated in the second action were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. See Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).
As was the case with his res judicata argument, Croysdill relies exclusively on
BREACH OF THE RELEASE
In Issue Six, Croysdill argues that the trial court erred in granting summary judgment in favor of Old Republic on his breach of the Release claim. Citing American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801 (Tex. 2001), Old Republic responds that the trial court lacked subject matter jurisdiction of this claim because Croysdill has not exhausted his administrative remedies. We first note that the Texas Supreme Court has indicated that Fodge may not control when the claim is one for breach of a settlement agreement. See City of Houston v. Rhule, 417 S.W.3d 440, 443 n. 2 (Tex. 2013) (declining to entertain the defendant‘s argument under Fodge, because the old workers’ compensation statute applicable to the case required the DWC to first address claims for breach of settlement agreements, but noting “however, that Fodge did not address the issue presented in this case, but rather mandated exhaustion of administrative remedies where a claimant sued for delay of medical payments despite entitlement only to temporary income benefits“).
In any event, Old Republic did not move for summary judgment on the ground that the trial court lacked jurisdiction of this claim.7 It is well-settled that a party may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment motion. Chessher v. Southwestern Bell Tel. Co., 658 S.W.2d 563, 564 (Tex. 1983).
We recognize that exhaustion of administrative remedies is an issue of subject-matter jurisdiction and that challenges to subject-matter jurisdiction can be raised for the first time on appeal. Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d 538, 558 (Tex. 2016); Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849, 851 (Tex. 2000) (“[B]ecause subject matter jurisdiction is essential to the authority of a court to decide a case, it cannot be waived and may be raised for the first time on appeal.“). But, the record must affirmatively reflect that Croysdill failed to exhaust his administrative remedies. The record before us does not make this showing. In fact, the record reveals that Croysdill argued vigorously to the DWC hearing officer below that Old Republic was barred by the prior settlement agreement from contesting the extent of injury. While the hearing officer did not make specific findings or conclusions on the effect of the settlement agreement, she impliedly rejected Croysdill‘s claim by ultimately ruling against him. Consequently, we conclude that the trial court erred by granting summary judgment on the breach of the Release claim. Issue Six is sustained.
Having sustained Issues One and Five in part, we reverse the portion of the trial