Charter Oak Fire Insurance Company v. Gene Swanigan ( 2012 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00147-CV
CHARTER OAK FIRE INSURANCE APPELLANT
COMPANY
V.
GENE SWANIGAN APPELLEE
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
This is an appeal from a judgment for Appellee Gene Swanigan on his
workers’ compensation claim. Appellant Charter Oak Fire Insurance Company
argues in a single issue that the judgment—which ordered Charter Oak to pay
benefits in accordance with the jury’s finding by a preponderance of the evidence
1
See Tex. R. App. P. 47.4.
that Swanigan’s injury of May 18, 2006, was a producing cause of his reflex
sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS)—is not
supported by the evidence. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
In 2001, Swanigan was working on a barbeque pit at his home, and the lid
shut on his right pinkie finger. He went to the emergency room and later to a
specialist who performed surgery to put hardware in to correct his fracture.
Swanigan did not have any problems following the surgery and was later hired by
CarMax to perform auto reconditioning. He was able to lift 110- to 120-pound
transmissions without pain.
Approximately five years after his initial injury, on May 18, 2006, Swanigan
injured the same right pinkie finger when he turned to grab a wrench as he was
working on an SUV; his finger got caught between the strut, CV axle, and
spindle. Swanigan immediately knew that his finger was injured and went
straight to management to file a report. Swanigan developed swelling and a
large knot from the clear part of his fingernail to his knuckle. Swanigan also
experienced “stabbing, aching pain” that radiated up his arm.
Swanigan tried to work the week after his injury, but the pain forced him to
leave and to go to CareNow for treatment. Swanigan was given a baseball finger
splint, but it did not alleviate the pain. Swanigan said that it hurt him to move his
right pinkie finger. Swanigan went to CareNow weekly after the injury, and the
2
doctor told him that he had a contusion. Swanigan also underwent therapy for
the injury at HealthSouth. Swanigan stated that “the pain just -- it’s something
that never goes away.” Swanigan said that he was getting “a little worse” and
asked to see a specialist. He was referred to Dr. Luiz Toledo.
In September 2006, Dr. Toledo removed from Swanigan’s finger the
hardware that had been inserted years earlier after the incident with the
barbecue pit lid. The surgery did not relieve Swanigan’s pain.
Dr. Toledo performed a second surgery on January 24, 2007, and
removed scar tissue (a neuroma) that was compressing a nerve in Swanigan’s
right pinkie finger. Swanigan said that the procedure went “okay,” but he still
experienced pain. Swanigan stated that his pain level had consisted of “a lot of
10s” and that he had asked Dr. Toledo to take the tip of his right pinkie finger off.
Dr. Toledo said that there was no need for that and also told Swanigan that he
had done all he could for him.
In July 2007, Swanigan started seeing Dr. David B. Graybill, an
anesthesiologist at North Texas Pain Recovery, for help dealing with the pain.
Dr. Graybill’s notes state that Swanigan presented with complaints of pain in the
right upper extremity following a work-related injury dated May 18, 2006. The
notes also state that Swanigan had “complaints of pain in his little finger with
altered sensation, but also complaints of pain radiating up his arm and loss of
use of his arm secondary to his pain.” Swanigan described the feeling in his arm
as a “burning. . . . real hard, high powered” pain that was like someone “had
3
plugged a[n] electric -- a 110 cord in the socket and felt like I had the naked end
on my arm.” Swanigan said that the burning sensation felt like a hot ice pack
was stuck under his armpit all the time and that the sensation radiated up the
side of his head, making him feel like he had a football helmet on or had “been hit
with a few blows upside the head.” Swanigan testified that the medication he
had been prescribed “do all right but it don’t do the best” and that he did not like
the side effects, which included not being able to concentrate, being edgy, and
not being able to sleep.
After Dr. Graybill’s examination, he noted that Swanigan’s
[r]ight upper extremity reveals cool, clammy hand and forearm. He
has altered sensation to light touch of the right finger with some
allodynia noted in the right forearm and hyperalgesia. He has
diminished grip strength, but he is able to fully bend his PIP joint of
his little finger. He has no motion in the DIP joint of his little finger.
Swanigan stated that the summary above was true at the time of Dr. Graybill’s
examination because he could move his finger at the time. By the time of trial,
however, he could not bend his finger at all because it had gotten worse.
Dr. Graybill’s notes further stated, “Impression: Status post crush injury to
the right hand. Chronic pain syndrome secondary to Chronic Regional Pain
Syndrome, Type Two.” Dr. Graybill concluded that Swanigan would benefit from
sympathetic nerve blocks, and Swanigan had four such procedures over a
month-long period.2 Swanigan said that the sympathetic nerve blocks relieved
2
Swanigan explained that the procedures were “more or less like a major
surgery.” He was placed in a small operating room, was administered oxygen,
4
the pain for a short while but did not provide long-term relief. When the pain
returned, it was worse. Swanigan was treated by Dr. Graybill for approximately
five months. Dr. Graybill prescribed a compression glove for Swanigan.
Swanigan said that the glove holds in heat and helps cushion his hand if it gets
bumped.
Dr. Graybill referred Swanigan to Dr. Charles E. Willis, II, an
anesthesiologist, and Swanigan went to see him on March 14, 2008. Dr. Willis’s
notes were admitted into evidence. Dr. Willis had noted,
Dr. Graybill has done stellate ganglion blocks which have helped
[Swanigan] 100 percent for two days. The pain now is about a 6 and
a half out of 10 on a visual scale with numbness and tingling in the
right upper extremity. Pain is associated with changes in his hair
and nail growth. The nails grow very thin and there is also increased
perforation and burning in the right upper extremity as well as
changes with the weather.
Swanigan testified that the nail on his right pinkie finger was growing deformed;
was “real, real thin”; and was outgrowing the other nails. Dr. Willis further noted
that Swanigan’s pain was worse in the morning than at night and limited his
ability to work, exercise, have fun, and have sex and that his pain increased with
prolonged driving; Swanigan’s pain decreased with lying down and medication.
Dr. Willis determined from his assessment that Swanigan had RSD, which is
another term for CRPS, of the right upper extremity. Dr. Willis concurred with Dr.
and was monitored with electrical sensors while he was put to sleep. During the
procedure, he received injections in his neck.
5
Graybill that stellate ganglion blocks had been effective and were warranted in
Swanigan’s case.
Swanigan saw Dr. Martin D. Solomon, a neurologist, on September 22,
2008. Dr. Solomon’s progress note, which was admitted into evidence, states
that Swanigan had received nerve blocks and that his hand was discolored;3
Swanigan explained that sometimes his hand was a dull color and that
sometimes it was a shiny color. Dr. Solomon concluded that Swanigan’s
symptoms were consistent with CRPS.
Dr. Mark A. Dirnberger, a pain management doctor, was treating Swanigan
monthly at the time of the trial. Dr. Dirnberger prescribed Lyrica and
hydrocodone for the pain. Dr. Dirnberger and Swanigan discussed a possible
referral to have a spinal stimulator surgically implanted to treat his RSD/CRPS.
Dr. Dirnberger’s notes, which were admitted into evidence, state that he is going
to assume Swanigan’s pain management duties but that the remainder of
Swanigan’s other issues need to be managed by other physicians.
Swanigan testified that his pain affected his ability to live his life, even at
the time of trial. He said that the chronic pain caused him to become easily
irritated and to “snap.” Swanigan said that the pain had affected his ability to
3
The progress note is dated September 22, 2008, but at the bottom it
states that it was dictated “08/08/08.” Swanigan testified that he saw Dr.
Solomon on September 22, 2008, and therefore we use that date.
6
father his children, including being unable to teach his daughter to drive and
unable to play ball with his son.
At the time of the trial, Swanigan’s pain was a six and a half on a scale of
ten, and he was taking Ambien to sleep because the pain interfered with his
ability to sleep. The pain in his dominant hand also affected his ability to grip and
grasp. Swanigan said that he could write but that his handwriting was “awful”
because his hand and whole arm twitched.
B. Procedural Background
Charter Oak accepted the crush injury to Swanigan’s right pinkie finger as
part of his compensable injury, accepted the surgery to remove the previously
inserted hardware from Swanigan’s right pinkie finger as part of his compensable
injury, and accepted the surgery to remove the neuroma from Swanigan’s right
pinkie finger as part of his compensable injury. Following a contested case
hearing on the issue of whether Swanigan’s compensable injury extended to and
included RSD/CRPS, the Division of Workers’ Compensation (DWC) hearing
officer issued a decision that the compensable injury sustained by Swanigan did
not extend to and include RSD/CRPS.
Swanigan appealed the hearing officer’s decision. The DWC Appeals
Panel adopted the hearing officer’s decision and order.
Swanigan then appealed the DWC Appeals Panel’s decision by filing suit
in district court. After a two-day trial, the sole question presented to the jury in
the court’s charge asked:
7
Do you find from a preponderance of the evidence that Gene
Swanigan’s injury of May 18, 2006 was a producing cause of Gene
Swanigan’s reflex sympathetic dystrophy (RSD)/complex regional
pain syndrome (CRPS)?
You are instructed that the Appeals Panel of the Texas
Workers Compensation Commission (TWCC) affirmed the
Contested Case Hearing officer’s determination that Gene
Swanigan’s compensable injury did not extend to and include reflex
sympathetic dystrophy (RSD)/complex regional pain syndrome
(CRPS).
You are further instructed that you are not bound by the
decisions of the Appeals Panel or the Contested Case Hearing
officer. However you may consider their decisions as evidence and
accord them such weight, if any, as you may choose.
Answer Yes or No.
4
Answer: YES
Swanigan moved for judgment on the verdict, and the trial court ordered Charter
Oak to pay benefits in accordance with the jury’s verdict. Charter Oak now
appeals. Charter Oak raises one issue on appeal, challenging various aspects of
the legal and factual sufficiency of the evidence to support the jury’s verdict.
4
Swanigan objected to the charge, stating:
I think that the question should reflect the issue as adopted by
the CCH administrative judge, which includes did the injury extend to
[and] include the CRPS and RSD. I think the extend to and include
need to be included as part of it.
The trial court overruled Swanigan’s objection and submitted the above question.
Charter Oak lodged no objections to the charge.
8
III. CHARTER OAK’S FACTUAL SUFFICIENCY CHALLENGES
To the extent that Charter Oak’s sole issue mounts challenges to various
aspects of the factual sufficiency of the evidence, we hold that Charter Oak did
not preserve any factual sufficiency complaints for our review. See Tex. R. Civ.
P. 324(b)(2) (requiring a motion for new trial be filed to preserve a complaint of
factual sufficiency to support a jury finding); Cecil v. Smith, 804 S.W.2d 509,
510–11 (Tex. 1991) (recognizing motion for new trial raising factual sufficiency
complaint is necessary to preserve that alleged error); In re C.E.M., 64 S.W.3d
425, 427 (Tex. App.––Houston [1st Dist.] 2000, no pet.) (“There is only one way
to preserve a factual sufficiency challenge: include the complaint in a motion for
new trial.”). Charter Oak did not file a motion for new trial; thus, its factual
sufficiency complaints are not preserved for our review. See Tex. R. Civ. P.
324(b)(2); Cecil, 804 S.W.2d at 510–11; C.E.M., 64 S.W.3d at 427. We overrule
the portions of Charter Oak’s sole issue that challenge the factual sufficiency of
the evidence.
IV. CHARTER OAK’S LEGAL SUFFICIENCY CHALLENGES
A. Standard of Review
We may sustain a legal sufficiency challenge only when (1) the record
discloses a complete absence of evidence 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 evidence offered to prove a vital fact is no more than a
mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital
9
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),
cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and
“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In
determining whether there is legally sufficient evidence to support the finding
under review, we must consider evidence favorable to the finding if a reasonable
factfinder could and disregard evidence contrary to the finding unless a
reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228
S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827
(Tex. 2005).
Anything more than a scintilla of evidence is legally sufficient to support a
jury finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.
1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla
of evidence exists if the evidence furnishes some reasonable basis for differing
conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l,
Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 77 S.W.3d 253, 262 (Tex.
2002). When the evidence offered to prove a vital fact is so weak as to do no
more than create a mere surmise or suspicion of its existence, the evidence is no
more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem,
Inc., 650 S.W.2d 61, 63 (Tex. 1983).
B. Disposition of Charter Oak’s Subissues 1, 3, 4, and 5
As to the legal sufficiency challenges raised by Charter Oak in its sole
issue, Charter Oak argues that legally insufficient evidence exists to “establish
10
that Mr. Swanigan suffered from complex regional pain syndrome and that his
compensable injury was a producing cause of that condition.” Within its sole
issue, Charter Oak raises five subissues, arguing (1) that expert opinion
testimony was required, (2) Swanigan’s expert testimony was conclusory, (3)
Swanigan’s expert opinion testimony contained an analytical gap, (4) Swanigan’s
expert opinion testimony failed to exclude other possible causes, and (5)
Swanigan’s other medical reports were insufficient to establish causation. We
address these subissues as well as Charter Oak’s two overarching legal
sufficiency challenges.
In subissue one, Charter Oak argues that expert testimony is required to
support a diagnosis of CRPS. Case law supports Charter Oak’s argument, see
City of Laredo v. Garza, 293 S.W.3d 625, 632 (Tex. App.—San Antonio 2009, no
pet.) (stating that laypersons do not have the common knowledge and
experience to adequately evaluate the cause of CRPS), and, as set forth below,
Swanigan provided expert testimony concerning his diagnosis of CRPS through
Dr. Graybill’s testimony and through the medical records of Dr. Graybill, Dr.
Toledo, Dr. Willis, and Dr. Solomon. We overrule Charter Oak’s first subissue.
Concerning subissue three, Charter Oak did not object to the expert
opinion testimony presented by Dr. Graybill; thus, on appeal Charter Oak may
challenge only whether Dr. Graybill’s testimony was conclusory and therefore
constituted no evidence. See City of San Antonio v. Pollock, 284 S.W.3d 809,
817 (Tex. 2009) (explaining that an objection is required to preserve an appellate
11
challenge to an expert’s reliability, methodology, technique, or the foundational
data used by the expert); Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
136 S.W.3d 227, 234 (Tex. 2004) (holding that an objection to expert testimony is
not required to preserve a no-evidence challenge to conclusory expert
testimony); In re Conley, No. 09-10-00383-CV, 2011 WL 4537938, at *5 (Tex.
App.—Beaumont Sept. 29, 2011, no pet.) (mem. op.) (holding that reliability
challenge regarding an analytical gap was not preserved for appellate review in
the absence of an objection). Because Charter Oak did not object to Dr.
Graybill’s testimony, we hold that Charter Oak’s analytical-gap complaint
concerning Dr. Graybill’s testimony is not preserved for our review. We overrule
Charter Oak’s third subissue.
Concerning Charter Oak’s fourth subissue––its contention that Swanigan’s
expert opinion testimony is insufficient because it failed to exclude other possible
causes––Charter Oak points to and we have located no evidence in the record of
another cause for Swanigan’s RSD/CRPS. A medical causation expert need not
“disprov[e] or discredit[] every possible cause other than the one espoused by
him.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987). When
evidence of other plausible causes of the injury or condition is admitted, and that
evidence could be negated, then the proponent of expert causation testimony
should offer evidence negating the other plausible causes. See Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997). But here, no evidence
12
was admitted of other plausible causes of Swanigan’s RSD/CRPS.5 Moreover,
the jury question required the jury to find only that Swanigan’s May 18 injury was
a producing cause of his RSD/CRPS, and the jury was specifically instructed that
“[t]here may be more than one producing cause.” Thus, in this case, based on
the record before us and the charge given, the jury was not required to find that
all other possible causes of Swanigan’s RSD/CRPS had been excluded, and
Swanigan’s expert was not required to give testimony excluding all other possible
causes for his RSD/CRPS. We overrule Charter Oak’s fourth subissue.
In its fifth subissue, Charter Oak complains that Swanigan’s other medical
reports were insufficient to establish causation. No requirement exists, however,
that Swanigan’s other medical records independently establish causation.
Moreover, Charter Oak did not object to the admission of the medical
records/reports of Dr. Graybill, Dr. Toledo, Dr. Willis, or Dr. Solomon. These
unobjected-to medical records support Dr. Graybill’s expert causation testimony.
We overrule Charter Oak’s fifth subissue. See generally State Office of Risk
Mgmt. v. Escalante, 162 S.W.3d 619, 625 (Tex. App.—El Paso 2005, pet.
dism’d) (holding evidence, which consisted of claimant’s testimony and medical
records of treating physician, legally sufficient to support jury’s findings on
5
To the extent that Swanigan’s prior injury to his right pinkie finger could be
considered an “other possible cause,” Swanigan did refute this via his testimony
that his right pinkie finger was fine after the barbeque pit injury and that he could
lift 110- to 120-pound transmissions without pain at Carmax prior to the May 18
injury.
13
compensable injuries sustained by Appellee to his lumbar and spine and in the
form of cervical root lesions).
C. Charter Oak Waived its Legal Sufficiency Complaint
Concerning the Evidence that Swanigan Suffered from RSD/CRPS
by Failing to Object to the Charge.
In its sole issue, Charter Oak asserts two overarching legal sufficiency
challenges: first, that the evidence is legally insufficient to establish that
Swanigan suffered from complex regional pain syndrome; and second, that the
evidence is legally insufficient to establish that Swanigan’s compensable injury
was a producing cause of that condition. Concerning Charter Oak’s legal
sufficiency challenge to the evidence that Swanigan suffered from RSD/CRPS,
we note that, as set forth above, the only question submitted to the jury in the
court’s charge was
Do you find from a preponderance of the evidence that Gene
Swanigan’s injury of May 18, 2006 was a producing cause of Gene
Swanigan’s reflex sympathetic dystrophy (RSD)/complex regional
pain syndrome (CRPS)?
Swanigan points out in his brief that this question assumes that Swanigan suffers
from RSD/CRPS.
A jury question is objectionable if it assumes the existence of disputed
facts. See, e.g., UMLIC VP LLC v. T & M Sales & Envtl. Sys., Inc., 176 S.W.3d
595, 608 (Tex. App.—Corpus Christi 2005, pet. denied) (“A submission to the
jury is objectionable if it assumes a disputed fact in issue”). Typically, a jury
question that assumes a disputed fact may be fixed upon objection by inserting
14
the phrase “if any” or by conditioning language at the beginning of the jury
question. But Charter Oak did not assert any objection to the jury question here.
Because Charter Oak did not object to the charge, we are required to
analyze its challenge to the legal sufficiency of the evidence in light of the charge
given without objection. See, e.g., Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d
711, 715 (Tex. 2001) (explaining that Wal-Mart’s no-evidence challenge “must be
made in light of the jury charge that the district court gave without objection”).
And the charge actually given here—which asks only whether Swanigan’s injury
of May 18 was a producing cause of his RSD/CRPS—assumes Swanigan suffers
from RSD/CRPS. The jury was not asked whether Swanigan suffered from
RSD/CRPS; the jury was told that he did and asked only whether the May 18
injury was a producing cause of the RSD/CRPS.
Because the charge told the jury that Swanigan suffered from RSD/CRPS,
and because Charter Oak did not object to the charge, we hold that Charter Oak
has waived its legal sufficiency challenge to the evidence on whether Swanigan
suffered from RSD/CRPS. We overrule Charter Oak’s sole issue, including
subissue two, to the extent that it challenges the legal sufficiency of the evidence
to establish that Swanigan suffered from RSD/CRPS.6
6
Below we nonetheless alternatively examine the legal sufficiency of the
evidence to establish that Swanigan suffers from RSD/CRPS and conclude that
legally sufficient evidence exists to establish that Swanigan suffers from
RSD/CRPS.
15
D. Alternatively, Legally Sufficient Evidence Exists that Swanigan Suffers
From RSD/CRPS, and Legally Sufficient Evidence Supports the Jury’s
Finding that Swanigan’s Injury was a Producing Cause of his RSD/CRPS
We next address Charter Oak’s contention, raised in its sole issue and its
second subissue, that the evidence is legally insufficient to establish that
Swanigan’s May 18 injury was a producing cause of his RSD/CRPS.
We first set forth the expert opinion testimony heard by the jury.
1. Expert Opinion Testimony
Three experts testified: Dr. Graybill for Swanigan and Dr. Mitchell and Dr.
Chandrakar for Charter Oak.
a. Dr. David Bruce Graybill
Dr. Graybill is an anesthesiologist with a subspecialty in pain management.
He has practiced medicine for over twenty-seven years and estimated that he
had treated five to twenty patients per year with CRPS.
When Swanigan first saw Dr. Graybill on July 25, 2007, Swanigan’s right
upper extremity was cool, his hand and forearm were clammy, he had altered
sensation to light touch of his right pinkie finger with some unusual pain
sensations in his right forearm, he had weakened grip strength, and he was
unable to bend the middle joint of his right pinkie finger. Dr. Graybill’s diagnosis
16
was “[h]ealed crush injury to right hand, chronic pain syndrome with Chronic
Regional Pain Syndrome Type II or causalgia.”7
Dr. Graybill testified that the hallmark signs and symptoms of CRPS Type
II are temperature changes, increased perspiration to the hand, color changes to
the hand, and increased sensitivity to types of sensations or feelings that
normally are not painful. Dr. Graybill testified that Swanigan had each of these
specific hallmark symptoms (except color change because Swanigan is African
American). Dr. Graybill explained that Swanigan’s crush injury to his right hand
and the required surgical excision of the neuroma from the nerve at the location
of the crush injury caused Swanigan to establish a sympathetic mediated pain—a
situation where the sympathetic nervous system is involved in creating an
atypical pain pattern; this is Type II CRPS or causalgia. Dr. Graybill testified that
Swanigan’s CRPS was caused by his May 18 on-the-job injury.
Dr. Graybill treated Swanigan’s CRPS for over fourteen months; Dr.
Graybill saw Swanigan between twenty-one and thirty times during that time
period. Dr. Graybill felt “fairly confident” about his diagnosis of CRPS and
testified that his diagnosis did not change throughout the time that he treated
Swanigan.
7
Dr. Graybill said that CRPS was also known as Complex Regional Pain
Syndrome. Dr. Graybill further explained that Type I of CRPS is RSD and that
Type II is causalgia.
17
On cross-examination, Dr. Graybill conceded that he was not familiar with
the fourth edition or the fifth edition of the AMA Guides and did not use them or
any peer-reviewed publications to obtain the criteria that he looked for in
diagnosing CRPS; instead, the hallmark signs of CRPS that he testified about
came from his training and experience.
Dr. Graybill assumed that Swanigan had undergone x-rays of his injured
upper extremity and hand but said that he did not review them because it was not
his practice to refer to a patient’s x-rays in trying to determine whether a patient
had CRPS. Dr. Graybill was not sure whether Swanigan had undergone a triple-
phase bone scan and was not aware of what particular findings might be
expected on a triple-phase bone scan of an individual who has CRPS.
Dr. Graybill testified that if an individual has CRPS, he would anticipate
changes in the skin and possibly the hair growth on the affected body part,
possible changes in the coloration in the nail bed, changes in the temperature of
the affected extremity, sweating, and atrophy of the affected musculature.
Regarding circulatory changes, Dr. Graybill would expect to see vasoconstriction,
meaning diminished circulation, and explained that changes in air temperature
may affect the extremity.
Dr. Graybill saw Swanigan a year after the accident, at which time he was
in the chronic phase instead of the acute phase of his CRPS.8 Dr. Graybill
8
Dr. Graybill said that in the acute phase, it is very painful to move the
joints.
18
testified that Swanigan’s sympathetic mediated symptoms were very active but
that they seemed to improve during the treatment with the sympathetic nerve
blocks. For instance, Swanigan returned to work with limitations in July 2008, he
had improved function and less pain, and the signs of the sympathetic mediated
pain had lessened. The signs of the sympathetic mediated pain that had
lessened included that on June 24, 2008, Swanigan’s palm was of normal color,
and the allodynia and hyperalgesia had gone away. However, some of
Swanigan’s symptoms returned after the nerve blocks wore off.
On October 14, 2008, Dr. Graybill wrote that it was necessary for him to
withdraw from further professional attendance or treatment of Swanigan because
Dr. Graybill did not feel like he could provide any further care to Swanigan,
Swanigan desired more care, and Swanigan had asked for another doctor. Dr.
Graybill explained that Swanigan wanted answers and solutions that Dr. Graybill
was not able to provide. At the time that Dr. Graybill discontinued his physician-
patient relationship with Swanigan, he felt that Swanigan was at a point of
maximum medical improvement and that he had done all he could to help
Swanigan. Dr. Graybill’s opinion was that Swanigan still had CRPS on October
14, 2008, and that it was still chronic. Dr. Graybill said that most of his findings
were subjective when he made the diagnosis of CRPS with Swanigan.
On redirect, Dr. Graybill said that no consistent objective findings exist for
the diagnosis of CRPS; instead, some patients have some of the hallmark
objective symptoms while other patients suffer from different hallmark objective
19
symptoms. Dr. Graybill reiterated that he had relied upon his twenty-seven years
of training and experience in diagnosing CRPS.
Although Dr. Graybill was unaware of Swanigan’s prior 2001 injury to his
right pinkie finger, Dr. Graybill testified that if Swanigan had broken his right
pinkie finger in 2001 and had experienced no CRPS symptoms after the 2001
break through the time of the work-related injury, those facts would strengthen
his opinion that Swanigan’s May 18, 2006 work-related injury caused his CRPS.
Assuming that Swanigan did not have any signs or symptoms of CRPS from
2001 to 2007, Dr. Graybill’s opinion would be that Swanigan’s work-related injury
caused his CRPS.
b. Dr. William Horace Mitchell
Dr. William Horace Mitchell, an orthopedic surgeon, saw Swanigan at the
request of the workers’ compensation carrier.9 Dr. Mitchell testified at his
deposition, which was played at trial, that RSD is a “real controversial subject in
medicine.” The exact cause is not known as far as he can tell.
Dr. Mitchell relied on the AMA Guides in stating that the criteria for RSD
are vasomotor changes (e.g., temperature regulation, color, swelling) and
sudomotor changes (e.g. dry skin or increased sweating, decreased range of
motion, atrophy of the skin). Atrophy could be of the hair, skin, or nails. Of the
eight criteria for RSD, five are needed to make that diagnosis. Dr. Mitchell
9
Swanigan testified that Dr. Mitchell’s examination took less than ten
minutes and that Dr. Mitchell did not touch him.
20
testified that the fifth edition of the AMA Guides expands the trophic changes of
the criteria for CRPS, and eight out of eleven signs must be present for a
diagnosis of CRPS. The criteria include color change; temperature change, cold
usually; increased sweating; and dry skin, while the trophic changes include
change in motion, nail changes, atrophy, shiny skin, and decreased range of
motion from stiffness.
Dr. Mitchell testified that the objective tests that are recommended when
attempting to diagnose or rule out RSD and CRPS are x-rays and triple-phase
bone scans. An x-ray would show generalized osteoporosis or loss of bone
substance (calcium) from the bones, while a triple-phase bone scan would show
increased uptake by the radioactive dye around the joints of the extremity and
would show periarticular changes. Dr. Mitchell testified that an x-ray or a triple-
bone scan, in and of itself, is insufficient to diagnose RSD or CRPS.
Dr. Mitchell explained that stellate ganglion blocks may relieve pain in a
patient who has the cardinal signs for RSD/CRPS. But he testified that even if a
patient receives relief from the ganglion blocks, that is not enough to diagnose
RSD/CRPS without the vasomotor, sudomotor, and trophic changes.
Dr. Mitchell examined Swanigan on January 7, 2009. Dr. Mitchell testified
that Swanigan complained of pain in his right arm, which would be consistent
with RSD/CRPS. But Dr. Mitchell’s opinion, which was based on his examination
of Swanigan and his review of the triple-phase bone scan, was that Swanigan did
not have any of the objective findings or criteria to make a diagnosis of RSD. Dr.
21
Mitchell examined Swanigan’s hand and found no vasomotor, sudomotor, or
trophic changes. Dr. Mitchell testified that the triple-phase bone scan showed
findings consistent with arthritis and trauma, not findings that would typically be
seen with RSD. Dr. Mitchell testified that the x-ray showed evidence of old
trauma involving the fifth finger, as well as some screws broken off in the middle
bone of the finger. The radiology report indicated that the bone density was
adequate; it did not mention any decreased bone density or diffuse osteoporosis.
Dr. Mitchell did not believe that the work-related injury caused RSD or CRPS
because he concluded that Swanigan did not have RSD or CRPS.
On cross-examination, Dr. Mitchell conceded that a crush injury is the type
of injury that can lead to CRPS or RSD, though sometimes the CRPS or RSD
does not set in immediately. Dr. Mitchell also agreed that the hallmark complaint
of RSD is a burning sensation that is not explainable through the original injury.
Dr. Mitchell testified that RSD would not occur immediately because the turnover
in bone is slow, and it would take a while to appear. If Dr. Mitchell suspected that
a patient had RSD, he would not treat the condition but would refer the patient to
a pain management specialist or a neurologist.
Although Dr. Solomon had noted that Swanigan’s finger was cool to the
touch with edema, Dr. Mitchell did not feel any difference in temperature in
Swanigan’s finger and reported that Swanigan’s nails were normal. Additionally,
Dr. Mitchell was not aware that Dr. Willis, who was board certified in
22
anesthesiology, had noted on March 14, 2008, that Swanigan had positive
trophic changes of the nail bed.
On redirect, Dr. Mitchell said that if he was trying to rule out RSD, then he
would use the findings and signs in the AMA Guides. Dr. Mitchell testified that
when he examined Swanigan, “[t]here were no objective findings on the physical
examination that met any of those criteria [from the AMA Guides].”
Dr. Mitchell testified that any physician who runs a clinical practice should
be able to diagnose CRPS or RSD. Thus, Dr. Mitchell testified that if a patient
presented with no signs of RSD or CRPS but had subjective complaints of
subjective symptoms, he would refer the patient to a neurologist because he
could not make a diagnosis and that “[m]aybe it’s something else.”
Dr. Mitchell testified that Dr. Solomon’s report and Dr. Willis’s report
concerning their examinations of Swanigan did not change his opinion because
each report contained “isolated” findings—one documented swelling, coolness to
the touch, edema, and subjective complaints of burning; the other documented
pain and a trophic nail change—but not the “whole constellation” of findings for a
diagnosis of RSD or CRPS.
c. Dr. Kunjeelal Chandrakar
Dr. Kunjeelal Chandrakar, who is board certified in general surgery and
runs a family practice part-time, examined Swanigan as a designated doctor. 10
10
Swanigan testified that Dr. Chandrakar’s examination consisted of only
questions and lasted less than ten minutes. Dr. Chandrakar told Swanigan as
23
Dr. Chandrakar testified that he did not have a lot of experience with patients
who had signs of CRPS because he usually refers them to hand surgeons or to
pain management if chronic pain develops. Dr. Chandrakar testified that he did
not continue treating patients with chronic pain who were likely to develop
serious problems.
Dr. Chandrakar examined Swanigan for the first time on September 21,
2007, as a designated doctor in order to address maximum medical improvement
and impairment rating. During Dr. Chandrakar’s examination of Swanigan, he
did not notice (1) any change in skin color on the finger or hand, (2) any change
in skin temperature, (3) any swelling or edema, (4) any skin dryness, (5) any
changes in the skin texture, (6) any atrophy, or (7) any changes in the nails, but
he did note that Swanigan had stiffness in the joint due to flexion deformity of the
finger as a result of the injury. Page four of Dr. Chandrakar’s report notes under
“Neurological Examination” that Swanigan’s “[s]ensation to pinprick and light
touch was decreased in the right little finger, medial and lateral aspects.” Dr.
Chandrakar testified that he performed the pinprick test to check sensation and
to identify whether there was a digital nerve injury. Dr. Chandrakar noted that
Swanigan had hypersensitivity in his fingers on either side of the distal joint. Dr.
Chandrakar found that Swanigan had no pain when his elbows, wrists, or hands
soon as he walked into the examining room that the insurance company did not
recognize CRPS. Swanigan did not feel confident in Dr. Chandrakar’s grasp of
RSD/CRPS.
24
were palpitated. Dr. Chandrakar did not find anything in his evaluation that would
lead him to conclude that Swanigan had CRPS.11 Dr. Chandrakar’s diagnosis of
Swanigan was “[i]njury to the right little finger, crush injury; and a second
diagnosis, excision of neuroma, right little finger.”
Dr. Chandrakar examined Swanigan again on January 18, 2008, and
found no changes from the previous exam. Dr. Chandrakar found no atrophy;
the skin texture was normal; the sweat patterns, color, and temperature of the
hand were normal; the venous circulation and capillary profusion were within
normal limits; and there was no pain in response to palpitation of the elbows,
wrists, and hands. The nails and hair growth on the hand were not mentioned in
the report. Dr. Chandrakar testified that the hyperesthesia that Swanigan had on
the initial examination could have been related to his initial nerve injury or to the
neuroma that was excised. As of the second examination, it appeared that the
hyperesthesia in the IP joint had resolved.
On cross-examination, Dr. Chandrakar agreed that hypersensitivity to
stimuli is a hallmark sign of CRPS and that CRPS or RSD is difficult to diagnose.
Dr. Chandrakar testified that in his normal practice, he does not make a
diagnosis of RSD or CRPS; he refers out patients to get such diagnosis.
11
Dr. Chandrakar was not aware that Swanigan had undergone a triple-
phase bone scan, but he was aware that such scans are useful in diagnosing or
ruling out CRPS.
25
2. Dr. Graybill’s Testimony That Swanigan Suffered
From RSD/CRPS Was Not Conclusory
Charter Oak argues in its second subissue that Dr. Graybill’s testimony
was conclusory and thus constitutes no evidence that Swanigan suffered from
RSD/CRPS. We have previously held that Charter Oak waived any legal
sufficiency complaint concerning whether Swanigan suffered from RSD/CRPS by
failing to object to the jury question on the ground that it assumed this disputed
fact. We nonetheless alternatively hold here that, in any event, Dr. Graybill’s
testimony that Swanigan suffered from RSD/CRPS was not conclusory but was
based on the facts he discerned and documented during his fourteen-month
treatment of Swanigan.
Specifically, Charter Oak contends that because Dr. Graybill was not
familiar with the fourth and fifth editions of the AMA Guides and because he
relied on his training and experience, rather than on x-rays or triple-phase bone
scans, his diagnosis that Swanigan had CRPS and his opinion that the May 18
injury caused Swanigan’s CRPS were conclusory.
As set forth above, Dr. Graybill did rely on his training and experience in
diagnosing Swanigan with CRPS, but the criteria, the “hallmark symptoms,” that
Dr. Graybill discerned through his training and experience and that supported a
diagnosis of CRPS were the same as most of the “clinical findings” set forth in
the AMA Guides. Dr. Graybill’s testimony, as well as his notes that were
admitted into evidence without objection, reveal that in making the diagnosis that
26
Swanigan suffered from RSD/CRPS, he considered skin temperature changes,
skin color changes, sweating, atrophy, changes in the nail bed, changes in the
skin, range of motion limitations, and transient responses to stellate ganglion
blocks. These considerations parallel the “clinical findings” that Charter Oak’s
expert Dr. Mitchell testified were required in order for someone to have a correct
diagnosis of RSD/CRPS per the AMA Guides. Dr. Mitchell testified:
The cardinal signs [of RSD per the AMA Guides] are what are
called vasomotor changes and sudomotor changes. Vasomotor
being temperature regulation, color, may cause swelling. Sudomotor
is dry skin or increased sweating, decreased range of motion, atrophy
of the skin are the sort of physical findings.
Q. Okay. What is a trophic change?
A. Trophic is really atrophy or wasting. It could be the hair or the
skin, the nails, as far as this particular syndrome is concerned.
....
Q. Are all of those signs necessary or are only some of them
necessary to be present?
A. Usually some of them. The criteria for RSD, there are eight. And if
you have five, you can make the diagnosis.
....
Q. Okay. What about complex regional pain syndrome, what are the
signs or findings that are required in order to have that diagnosis?
A. Well, in the 5th edition, it expands it a little. The guide to
impairment expands it a little bit. It’s pretty much the same,
vasomotor and sudomotor, but it expands the trophic changes --
Q. Okay.
27
A. -- a little bit. So it’s color change; temperature, cold usually;
increased sweating; dry skin. And then the trophic changes can
cause change in motion, nail changes, atrophy, shiny skin, decreased
range of motion by getting stiff. That’s pretty much it.
Thus, we cannot say that Dr. Graybill’s testimony based on his training and
experience––using the same factors as Dr. Mitchell testified were used in the
AMA Guide––was conclusory. In fact, Dr. Graybill’s testimony and the medical
records in evidence from Dr. Graybill, Dr. Toledo, Dr. Willis, and Dr. Solomon
document that Swanigan exhibited the very “clinical findings” that Dr. Mitchell
testified were necessary to support a diagnosis of RSD/CRPS under the AMA
Guide. The record reflects that Dr. Graybill and Dr. Mitchell reached different
conclusions as to whether Swanigan suffered from RSD/CRPS after looking at
the same criteria.
An expert opinion is conclusory when it offers an opinion with no factual
substantiation. See generally Coastal Transp. Co., 136 S.W.3d at 232; Burrow v.
Arce, 997 S.W.2d 229, 236 (Tex. 1999). Here, Dr. Graybill’s opinions that
Swanigan suffered from RSD/CRPS are not conclusory; the opinions are based
on facts and criteria in the record documenting Dr. Graybill’s fourteen-month
treatment of Swanigan.
We therefore, in the alternative to our holding that Charter Oak waived its
legal sufficiency challenge to whether Swanigan suffers from RSD/CRPS by
failing to object to the charge, hold that the evidence is legally sufficient to
support the jury’s finding that Swanigan suffered from RSD/CRPS.
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3. Dr. Graybill’s Testimony that Swanigan’s May 18 Injury Was a Producing
Cause of His RSD/CRPS Was Not Conclusory
As set forth above, Dr. Graybill repeatedly testified that Swanigan’s
RSD/CRPS was caused by his May 18 on-the-job injury. Charter Oak offered no
controverting evidence or testimony; Charter Oak’s position was that Swanigan
did not suffer from RSD/CRPS. We hold that Dr. Graybill’s testimony and opinion
that Swanigan’s May 18, 2006 injury was a producing cause of his RSD/CRPS
was not conclusory but was grounded in the facts he ascertained and
documented in his medical records concerning Swanigan’s symptoms and
treatment. See Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 220 (Tex. 2010)
(holding that expert medical causation testimony was based on reliable
foundation and was admissible to prove that May 2000 injury was producing
cause of appellee’s death and further holding that “we cannot disturb the jury’s
finding against [insurer] on the issue of producing cause”).
4. Legal Sufficiency of All the Evidence to Establish
Swanigan’s May 18 Injury Was a Producing Cause of His RSD/CRPS
Because there was no objection to the jury charge, we review all of the
evidence in the light most favorable to the verdict to determine whether a
reasonable trier of fact could have formed a firm belief or conviction that
Swanigan’s injury of May 18 was a producing cause of his RSD/CRPS. See
Sturges, 52 S.W.3d at 715.
Swanigan testified that his right pinkie finger was fine after the barbeque
pit injury; he said he could lift 110- to 120-pound transmissions without pain at
29
Carmax. He said that after the crush injury to his right pinkie finger at Carmax,
he could not bend his finger. This affected his ability to grip and grasp; his hand
and whole arm twitched; his pain level was at a six and a half out of ten; the
chronic pain interfered with his ability to sleep and caused him to become easily
irritated and to “snap”; and the pain had affected his ability to be a father to his
children.
Three experts (Dr. Graybill via his testimony and Drs. Willis and Solomon
via Swanigan’s medical records from their offices––all treating medical doctors of
Swanigan) concluded that Swanigan had RSD/CRPS following the May 18, 2006
on-the-job crush injury to his right pinkie finger. The record contains no
controverting evidence on any other producing cause of Swanigan’s
RSD/CRPS.12 Dr. Mitchell testified that he found no findings consistent with
RSD/CRPS, but he admitted that a crush injury can lead to RSD/CRPS and that
a burning sensation, like Swanigan had, that is not explainable by the injury is a
hallmark sign of RSD/CRPS.
We hold that viewing all of the evidence—Swanigan’s testimony, Dr.
Graybill’s testimony, as well as the unobjected-to medical records and reports
from Dr. Graybill, Dr. Toledo, Dr. Willis, and Dr. Solomon (which document
12
Two experts (Dr. Mitchell and Dr. Chandrakar—both doctors hired by
Charter Oak who spent less than ten minutes each with Swanigan and did not
touch his hand or arm) concluded that Swanigan did not have RSD/CRPS, but no
controverting producing cause evidence exists (as opposed to evidence that
Swanigan did not suffer from RSD/CRPS).
30
Swanigan’s exhibition of various signs of RSD/CRPS to various doctors following
the May 18 on-the-job crush injury to his right pinkie finger), and the testimony of
Drs. Mitchell and Chandrakar—in the light most favorable to the jury’s finding that
Swanigan’s May 18 injury was a producing cause of his RSD/CRPS (because a
reasonable factfinder could) and disregarding the contrary evidence—we have
located none in the record—more than a scintilla of evidence exists that
Swanigan’s May 18 injury was a producing cause of his RSD/CRPS. See, e.g.,
Cent. Ready Mix Concrete Co., 228 S.W.3d at 651; Liberty Mut. Ins. Co. v. Burk,
295 S.W.3d 771, 780 (Tex. App.—Fort Worth 2009, no pet.) (holding evidence
legally sufficient to support finding that appellee’s work-related injury caused his
polyneuropathy and foot ulceration); Hartford Underwriters Ins. Co. v. Burdine, 34
S.W.3d 700, 707 (Tex. App.—Fort Worth 2000, no pet.) (holding evidence legally
sufficient to support finding that appellee’s injury to legs and/or feet was
producing cause of the total and permanent loss of use of both legs and/or feet at
or above the ankles); Escalante, 162 S.W.3d at 625; Am. Cas. Co. of Reading,
PA v. Zachero, No. 11-07-00183-CV, 2008 WL 5205642, at *5 (Tex. App.—
Eastland Dec. 11, 2008, no pet.) (mem. op.) (holding evidence legally sufficient
that appellee’s injury extended to include osteoarthritis and chondromalacia);
Fidelity & Cas. Co. of NY v. Rust, No. 05-97-001509-CV, 2001 WL 51066, at *4
(Tex. App.—Dallas Jan. 23, 2001, pet. denied) (not designated for publication)
(holding evidence legally sufficient to support trial court’s judgment because the
31
jury could have determined from the evidence that appellee’s head injury was the
producing cause of his mental illness). We overrule Charter Oak’s sole issue.
V. CONCLUSION
Having overruled Charter Oak’s sole issue, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: WALKER, MCCOY, and MEIER, JJ.
DELIVERED: April 26, 2012
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