New Hampshire Insurance Company v. Peggy C. Allison , 2013 Tex. App. LEXIS 9604 ( 2013 )

Opinion issued August 1, 2013
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00505-CV
———————————
NEW HAMPSHIRE INSURANCE COMPANY, Appellant
V.
PEGGY C. ALLISON, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Case No. 1050904
OPINION
A jury determined that the fatal heart attack suffered by William Allison was
a compensable injury under the Texas Workers’ Compensation Act. New
Hampshire Insurance Company appeals the judgment based on that determination.
In three issues, New Hampshire Insurance argues (1) the trial court abused its
discretion by admitting the testimony of Peggy C. Allison’s causation expert, (2)
the evidence was legally insufficient to support the jury’s verdict, and (3) the
evidence was factually insufficient to support the jury’s verdict.
We affirm.
Background
William, more commonly known as Bill, had worked at Sterling Chemical
as an operator. On October 23 and 24 of 2008, Bill attended a fire training school
as a requirement for his employment. In the evening of October 25, 2008, Bill
suffered a heart attack, which ultimately caused his death later that evening. The
sole question presented to the jury was whether that heart attack was a
compensable injury under the Texas Workers’ Compensation Act.
There was some dispute in the testimony about the amount of physical
exertion Bill faced in his regular job as an operator. It was agreed that Bill had to
wear fire-retardant clothing, but that consisted of a one-piece coverall that he wore
over his own clothing. The coverall is not any heavier than normal clothing. He
also frequently had to wear goggles, a hard hat, ear protection, and a respirator as
well as rubber boots when it rained. Bill had to periodically use 20 to 50 pounds of
force to push or pull a valve or other devices. The job regularly involved climbing
stairs. It also included lifting heavy bags of different chemicals.
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Sharon Denise Hill, an operator in the same department as Bill at Sterling
Chemical, testified that operators would lift 22-pound bags about eight times per
shift. She also testified that they would lift 30-pounds bags, though the frequency
was not given. On some occasions, they would lift 50-pound bags.
Terry Bellard, another operator at Sterling Chemical, more or less agreed
with the weight of the bags that Bill had to lift. In addition, he testified that, for
heavier bags, they would use a forklift. He explained that, as an operator like Bill,
he spent 75 to 80 percent of his time in the control room.
Terry also testified that he had gone to the fire training school for a number
of years, including the year that Bill went. When presented with the gear that Bill
had worn during the training, Terry explained that the gear was significantly
heavier than anything they had to wear as operators at Sterling Chemical. He also
explained that, while working on the fire drills, the trainees were exposed to very
high heat in the heavy gear, causing them to sweat. He testified that people at the
training for the first time would get scared due to the intensity of the fires.
Bill had bad knees. As a result, he was driven to each of the props—as the
fire training sites were called—on a cart. Nevertheless, Bill was present at each of
the drills. Terry testified that Bill wore his gear at each of the drills and
participated in the drills. Bill worked as one of the men on the fire hose on at least
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one drill. The hose was heavy, was under pressure, and required at least four men
to hold and control.
Some conflicting evidence was presented by Jason Loyd, the trainer that
worked with Sterling Chemical during Bill’s training. The fire training school is a
part of the Texas A&M University system and is located in College Station. It is
the largest “fire field” in the world. Each year, they “train more than 81,000
firefighters and emergency response personnel from all 50 states and more than 50
foreign countries.” Jason trained hundreds, if not over a thousand, people each
year. He testified at his deposition and at trial that he could remember Bill from
the training over two years earlier “because he had a neat attitude.”
Jason testified that, instead of participating in the drills, Bill stayed next to
him during the training. As a result, Bill never operated the fire hose. Jason also
testified that on some of the props, Bill did not wear the heavy gear, though Jason
could not remember which ones. Jason explained during his testimony that, any
time something was different from usual in a class he was teaching, he would note
it on his form. His form included a note that Bill rode from prop to prop in a cart,
but did not mention that Bill did not otherwise participate in the training or that
Bill did not wear full gear at some of the props.
Bill’s group participated in five drills overall. Four were on Thursday, and
the fifth was on Friday morning. It was undisputed that Bill worked as a
4
dispatcher on the last drill, directing other people where to go with a radio. This
allowed him to be further away from the fire. It was also undisputed that Bill did
not exhibit any signs of distress during the training.
Bill got home in the early afternoon on Friday. He picked up his
granddaughter from school and was home when Peggy, his wife, got home from
work. Peggy testified that she was shocked at Bill’s appearance because he looked
so lifeless. Instead of being his usual energetic self, he sat on the couch the entire
time.
Later that evening, Bill went with his daughter, Sherri, and granddaughter to
see his grandson play football. His daughter testified that, when she saw Bill that
evening, he looked pale. She sat next to him during the game. Sherri explained
that Bill is usually very talkative, but he did not talk much during that evening.
When Bill got home, he went straight to bed, which was also unusual. In the
morning, he told Peggy that he did not have an appetite. His son, Charles, who
was living with Bill and Peggy at the time, saw him in the morning, slouched down
on a bar stool. Charles saw Bill again before Charles left for work in the early
afternoon. It appeared to Charles like something was wrong with Bill because Bill
was not his usual joyful and talkative self.
Peggy had gone to visit her mother in the morning and returned a little after
5:00 that evening. Bill was slouched on the couch watching television. They
5
decided to go visit their son at his work, pick up some food for dinner, and return
home. When they sat down to eat back at home, Bill took one bite of his food,
stood up, and went to the bedroom. When Peggy went to check on him a short
while later, she found him leaning against some furniture and extremely pale.
After consulting with her sister, a registered nurse, Peggy took Bill to the hospital.
During the drive, Bill complained of pain and was sweating profusely. He
also fell over on Peggy. She had to push him back up to resume the drive. By the
time they were at the hospital, Bill could no longer speak and could not get out the
car. He was taken inside, where it was determined that he was having a heart
attack. He died some time later that evening in the hospital.
Sharon, one of the operators that testified, also testified that she had called
Peggy the night of Bill’s death. Sharon and Peggy had never met before, but
Peggy knew about her through Bill and had talked to her briefly on some occasions
when Sharon would call the home to talk to Bill. Sharon stated that Peggy had told
her that Bill was behaving normally the day of the heart attack and had cut the
grass, gotten a haircut, and bought a birthday card that day. Peggy did not recall
talking to Sharon on the telephone, but denied that Bill had mowed the grass or
gotten his hair cut that day.
At the time in question, Bill was 66 years old. He had a number of medical
conditions at the time he was required to go to the fire training school. He had
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type-two diabetes, which placed him at an increased risk for coronary artery
disease. Bill was also hypertensive, which also placed him at increased risk for
coronary artery disease. The record additionally established that Bill did, in fact,
have coronary artery disease. The central dispute at trial was whether Bill’s heart
attack was a result of the natural progression of his coronary artery disease or
whether it was caused by a specific event occurring in the course and scope of his
employment.
There were certain stages that both sides’ experts agreed that Bill went
through that led up to his fatal heart attack. Both experts agreed that Bill had a
buildup of plaque in his arteries. They also agreed that Bill experienced a
“rupture” at the site of one of the plaque buildups. This then caused a clot to form
at the site of the rupture, which led to the artery becoming completely blocked.
Bill suffered a heart attack as a result. The experts did not agree on the likely
timing of each of these stages.
Both sides’ experts also agreed that physical stress beyond a person’s usual
physical activity can increase the risk for a heart attack. They did not agree,
however, on the window of time after the increased physical stress that a heart
attack could occur in order to be correlated to the increased physical stress.
Doctor Randal White, a cardiologist testifying on behalf of New Hampshire
Insurance, opined that Bill’s heart attack was a result of the natural progression of
7
his coronary artery disease. He explained that he was assuming that the physical
stress Bill underwent during the fire training school was no different than his usual
work-related activities. As a result, it was not enough to cause a plaque rupture.
He also testified that the increased risk for a heart attack lasted for 45 minutes
following increased physical activity and then returned back to that person’s
baseline. After that, he testified, there was no correlation between the increased
activity and the heart attack. Instead, Dr. White explained, Bill’s diabetes put him
at the same risk for a heart attack as a person who has already suffered their first
heart attack.
Doctor Gary Sander, a cardiologist testifying on behalf of Peggy Allison,
opined that Bill’s activity during fire training school caused the rupture that led to
his fatal heart attack. He recognized that Bill had coronary artery disease, diabetes,
and hypertension. He testified that, from a cardiac perspective, Bill had been
stable up until the training. He had even had “major abdominal surgery” for colon
cancer less than a year before his heart attack and had been “asymptomatic” up
until the day after his training. Unlike Dr. White, Dr. Sander viewed Bill’s
physical activity during fire training as significantly higher than his usual physical
activity during work. He testified there was a continuity of symptoms from the
time that Bill left the fire training school until he had his heart attack and that he
8
did not see any significance in the period of time from when he left the training to
when he had his heart attack.
Dr. Sander is a cardiologist with a Ph.D. in biochemistry and is licensed in
the State of Louisiana. He received his medical degree in 1974. He has done
research in cardiology both on animals and in clinical research. He teaches
medical students and fellows at Tulane and Louisiana State University. For a
period of time, he ran the Cardiology Fellowship Training Program at Louisiana
State University. Currently, he teaches as well as maintains an active private
practice.
Statutory Interpretation
Many of New Hampshire Insurance’s arguments are based upon a certain
interpretation of section 408.08 of the Texas Labor Code. Because our
interpretation of section 408.008 influences our determination of a number of
matters, we analyze it separately.
A. Standard of Review
We apply a de novo standard of review to matters of statutory interpretation.
Buck v. Blum, 130 S.W.3d 285, 290 (Tex. App.—Houston [14th Dist.] 2004, no
pet.). A trial court has no discretion in determining what the law is, which law
governs, or how to apply the law. Poland v. Ott, 278 S.W.3d 39, 45 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied).
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B. Analysis
Section 408.008 of the Texas Labor Code establishes the requirements for a
heart attack to be a compensable injury. TEX. LAB. CODE ANN. § 408.008 (Vernon
2006). Specifically, the statute provides,
A heart attack is a compensable injury under this subtitle only if:
(1) the attack can be identified as:
(A) occurring at a definite time and place; and
(B) caused by a specific event occurring in the course and
scope of the employee’s employment;
(2) the preponderance of the medical evidence regarding the attack
indicates that the employee’s work rather than the natural
progression of a preexisting heart condition or disease was a
substantial contributing factor of the attack; and
(3) the attack was not triggered solely by emotional or mental
stress factors, unless it was precipitated by a sudden stimulus.
Id. New Hampshire Insurance argues in its brief and argued at oral argument that,
to be compensable, the heart attack must occur during work hours.
When construing a statute, our primary objective is to ascertain and give
effect to the Legislature’s intent. TEX. GOV’T CODE ANN. § 312.005 (Vernon
2013); see Harris Cnty. Appraisal Dist. v. Tex. Gas Transmission Corp., 105
S.W.3d 88, 97 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). “Unambiguous
statutory language is interpreted according to its plain language unless such an
interpretation would lead to absurd results.” Hernandez v. Ebrom, 289 S.W.3d
10
316, 318 (Tex. 2009) (citing Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d
278, 284 (Tex.1999)). Finally, we presume that the Legislature chooses a statute’s
language with care, including each word chosen for a purpose, while purposefully
omitting words not chosen. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d
432, 439 (Tex. 2011).
For a heart attack to be compensable, it must be identified as having
“occur[ed] at a definite time and place.” LAB. § 408.008(1)(A). It must also be
identified as having been “caused by a specific event occurring in the course and
scope of the employee’s employment.” Id. § 408.008(1)(B). There is nothing in
the plain language of the statute to support New Hampshire Insurance’s argument
that the statute requires the heart attack to have occurred during work hours.
During oral argument, New Hampshire Insurance argued that, without such
an interpretation, “a heart attack occurring at a definite time and place” would be
synonymous with “a heart attack,” since all heart attacks occur at a definite time
and place. Accordingly, New Hampshire Insurance argues, such an interpretation
would render the phrase “occurring at a definite time and place” meaningless.
The statute does not simply require that the heart attack must occur at a
specific time and place. Instead, the statute requires a heart attack to be identified
as having occurred at a specific time and place. Id. § 408.008(1)(A). From this, it
can be reasonably concluded that this subsection excludes from compensability
11
heart attacks that are known to have occurred some time in the past but the specific
time and place of the attack cannot be identified. There is no need, then, to take
language only present in subsection (1)(B) and insert it into subsection (1)(A) in
order to give subsection (1)(A) meaning.
New Hampshire Insurance also relies on Transcontinental Insurance Co. v.
Smith, 135 S.W.3d 831 (Tex. App.—San Antonio 2004, no pet.) superseded by
statute on other grounds as recognized in Discover Property & Casualty Insurance
Co. v. Tate, 298 S.W.3d 249, 257 & n.5 (Tex. App.—San Antonio 2009, pet.
denied) to support its contention that the heart attack must occur during work
hours. In Smith, the employee began having arm and chest pains at work and was
admitted to the hospital a short time later. Id. at 833. The court never held,
however, that these facts were necessary to establish compensability. Instead, the
issue in Smith was whether evidence of symptoms developing gradually rather than
suddenly negated the requirements of subsection (1). Id. at 834. The court held
the evidence did not negate the requirements. Id. at 835. Specifically, it held that
the evidence was “sufficient to pinpoint the heart attack as [1] occurring during the
afternoon of April 17, 1998, and [2] caused by the specific event of driving grade
stakes.” Id. Contrary to New Hampshire Insurance’s argument, the court’s
holding kept the two elements of subsection (1) distinct. Id.
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We hold that the statute does not require the employee’s heart attack to
occur during work hours to be compensable.
Expert Testimony
In its first issue, New Hampshire Insurance argues the trial court abused its
discretion by admitting the testimony of Dr. Sander.
A. Standard of Review
We review the trial court’s ruling on the reliability of expert testimony for an
abuse of discretion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex.
2006); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.
1995). Under this standard, the trial court has broad discretion in deciding whether
to admit or exclude expert testimony. Gammill v. Jack Williams Chevrolet, Inc.,
972 S.W.2d 713, 719 (Tex. 1998); Wilson v. Shanti, 333 S.W.3d 909, 912 (Tex.
App.—Houston [1st Dist.] 2011, pet. denied). We reverse only if the trial court
acted arbitrarily, unreasonably, or without reference to any guiding rules or
principles. Wilson, 333 S.W.3d at 912.
B. Analysis
For an expert’s testimony to be admissible, the expert must be qualified and
the opinion must be relevant and based on a reliable foundation. TEX. R. EVID.
702; Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex. 2002). New
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Hampshire Insurance argues that Dr. Sander was not qualified to testify as an
expert and that his opinion was unreliable.
1. Qualification as an Expert
New Hampshire Insurance argues that Dr. Sander was not qualified to testify
as an expert because he was not licensed in Texas. For authority, New Hampshire
Insurance relies on chapter 180 of the Texas Administrative Code, concerning the
monitoring and enforcement of matters relating to the Workers’ Compensation
Act. See 28 TEX. ADMIN. CODE § 180.1–.78 (2013) (Tex. Dep’t of Ins., Monitoring
& Enforecement). Specifically, New Hampshire Insurance argues that the
Administrative Code requires “physicians who render opinions on the status of a
claimant,” medical examination doctors, and peer review doctors to be licensed in
Texas. See id. § 180.22(f)(5), (g).
New Hampshire Insurance recognizes that “these rules do not expressly
apply to physicians selected by a system participant to serve as a testifying expert.”
Nevertheless, it argues, the rules “do provide a minimum standard of qualification
to guide the trial judge.” New Hampshire Insurance does not provide any authority
for this assertion, however.
To the contrary, section 410.306 of the Texas Labor Code provides that
evidence in a trial for a dispute over compensability of an injury “shall be adduced
as in other civil trials.” TEX. LAB. CODE ANN. § 410.306 (Vernon Supp. 2012); see
14
also TEX. LAB. CODE ANN. § 410.301 (Vernon 2006) (providing for judicial review
of administrative determinations of compensability). Accordingly, there is no
basis to rely on the cited sections of the Administrative Code as a basis for the
admissibility of an expert at trial.
Instead, “a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify thereto in the form of an opinion or otherwise.”
TEX. R. EVID. 702 (emphasis added). “[W]hen there is proof of a physician’s
expertise in the particular areas involved in the case, the trial court abuses its
discretion by refusing to qualify the physician as an expert witness.” Keo v. Vu, 76
S.W.3d 725, 730 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “The term
‘physician,’ as it is ordinarily used, refers to a person who is licensed to practice
medicine. It does not impose any geographical limits.” TTHR, L.P. v. Guyden,
326 S.W.3d 316, 321 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (internal
citations omitted). Neither rule 702 nor chapter 180 of the Texas Administrative
Code places any restrictions on what state a doctor must be licensed in to be
qualified to testify as an expert.
New Hampshire Insurance also complains of a litany of documents it claims
Dr. Sander did not review or alleged facts it claims Dr. Sander did not consider in
formulating his opinion. Even accepting these arguments as true, New Hampshire
15
Insurance does not explain how this would establish that Dr. Sander was not
qualified to testify as an expert.
In deciding if an expert is qualified, trial courts “must ensure that those who
purport to be experts truly have expertise concerning the actual subject about
which they are offering an opinion.” Gammill v. Jack Williams Chevrolet, Inc.,
972 S.W.2d 713, 719 (Tex.1998) (quoting Broders v. Heise, 924 S.W.2d 148, 152
(Tex. 1996)). “The offering party must demonstrate that the witness possesses
special knowledge as to the very matter on which the witness proposes to give an
opinion.” Keo, 76 S.W.3d at 731 (citing Gammill, 972 S.W.2d at 718; Broders,
924 S.W.2d at 152–53).
Dr. Sander is a cardiologist with a Ph.D. in biochemistry and is licensed in
the State of Louisiana. He received his medical degree in 1974. He has done
research in cardiology both on animals and in clinical research. He teaches
medical students and fellows at Tulane and Louisiana State University. For a
period of time, he ran the Cardiology Fellowship Training Program at Louisiana
State University. Currently, he teaches as well as maintains an active private
practice. The trial court did not abuse its discretion in concluding that Dr. Sander
was qualified to be an expert witness.
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2. Reliability of Dr. Sander’s opinion
New Hampshire Insurance presents a number of arguments for why Dr.
Sander’s opinion should be considered unreliable. First, it argues that Dr. Sander’s
theory for Bill’s death does not satisfy the Robinson factors. Second, it argues that
he could not prove the time of Bill’s plaque rupture. Finally, it argues that there
was too great of an analytical gap between the opinion and the applicable facts
because Bill only minimally participated in fire training and because there was no
proof that Bill suffered a heart attack during the training.
In determining whether expert testimony is reliable, we consider the
Robinson factors. Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 215 (Tex. 2010).
The Robinson factors are (1) the extent to which the theory has been or can be
tested; (2) the extent to which the technique relies upon the subjective
interpretation of the expert; (3) whether the theory has been subjected to peer
review and/or publication; (4) the technique’s potential rate of error; (5) whether
the underlying theory or technique has been generally accepted as valid by the
relevant scientific community; and (6) the non-judicial uses which have been made
of the theory or technique. Robinson, 923 S.W.2d at 557. These factors are not
exclusive and not all of them apply in each review. TXI Transp. Co. v. Hughes,
306 S.W.3d 230, 235 (Tex. 2010). We also consider the expert’s experience,
17
knowledge, and training. Crump, 330 S.W.3d at 215–16 (citing Gammill, 972
S.W.2d at 726–27).
New Hampshire Insurance argues that Dr. Sander’s opinion is unreliable
because his theory for Bill’s death does not satisfy the Robinson factors. Dr.
Sander’s theory for Bill’s cause of death was that Bill experienced a “rupture” at
the site of one of the plaque buildups, which caused a clot to form. 1 This, in turn,
led to the artery becoming completely blocked. Bill suffered a heart attack as a
result, and died.
This was Dr. White’s theory as well. Both sides’ experts agreed that this is a
well-accepted explanation for the progression of a heart attack. Both sides’ experts
also agreed that physical stress beyond a person’s usual physical activity can
increase the risk for a heart attack. The only portion of their theories for Bill’s
1
The parties dispute whether Dr. Sander’s opinion was based on a “differential
diagnosis.” Both parties appear to agree that Dr. Sander performed a differential
diagnosis, but New Hampshire Insurance argues that he could not use it because
he was not a treating physician. See Transcon. Ins. Co. v. Crump, 330 S.W.3d
211, 216 (Tex. 2010) (defining “differential diagnosis” as a diagnostic method
where “a treating physician formulates a hypothesis as to likely causes of a
patient’s presented symptoms and eliminates unlikely causes by a deductive
process of elimination” (emphasis added)); Coastal Tankships, U.S.A., Inc. v.
Anderson, 87 S.W.3d 591, 604 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)
(defining “differential diagnosis” as a clinical process used to form a final
diagnosis for proper treatment). If a differential diagnosis, by definition, is limited
to treating physicians, then Dr. Sander did not perform a differential diagnosis. If
it is not limited to treating physicians, then Dr. Sander’s analysis may have been a
differential diagnosis. Even if he formed his opinion by use of a differential
diagnosis, this does not “exempt the foundation of a treating physician’s expert
opinion from scrutiny.” Crump, 330 S.W.3d at 217. Accordingly, resolving this
dispute would not have any effect upon our analysis.
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cause of death that the experts did not agree on was the window of time after the
increased physical stress that a heart attack could occur in order to be correlated to
the increased physical stress.
Given that both well-qualified experts agreed on the overall theory of how
Bill died and that higher-than-normal activity can increase the risk for a heart
attack, the trial court reasonably could have concluded that these theories have
been tested, have been subjected to peer review and/or publication, have been
generally accepted as valid by the relevant scientific community, and there are
non-judicial uses which have been made of the theories. See Robinson, 923
S.W.2d at 557. Accordingly, the general theory of Bill’s cause of death, agreed to
by both experts, satisfied the Robinson requirements. See id.
For the dispute between the experts over the window of time after the
increased physical stress that a heart attack could occur in order to be correlated,
New Hampshire Insurance argues that, because the risk for a heart attack returns to
the baseline level of risk 45 minutes after strenuous activity, Dr. Sander’s theory
that Bill’s heart attack was a result of his training must be unreliable. The
testimony that the risk for a heart attack returns to the baseline level of risk 45
minutes after strenuous activity came from New Hampshire Insurance’s expert, Dr.
White. Dr. White testified that medical literature supported this theory.
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Dr. Sander testified that it was Bill’s activity during fire training school that
caused the rupture. He testified that, from a cardiac perspective, Bill had been
stable up until the training. He had even had “major abdominal surgery” for colon
cancer less than a year before his heart attack and had been “asymptomatic” up
until the day after his training. Dr. Sander viewed Bill’s physical activity during
fire training as significantly higher than his usual physical activity during work.
He testified there was a continuity of symptoms from the time that Bill left the fire
training school until he had his heart attack and that he did not see any significance
in the period of time from when he left the training to when he had his heart attack.
Essentially, New Hampshire Insurance is asking us to presume that its
expert’s theory is reliable in order to determine that Peggy Allison’s expert’s
theory is unreliable. Conflicting theories between experts, however, do not
automatically render one unreliable. See Thota v. Young, 366 S.W.3d 678, 695
(Tex. 2012) (holding conflict between experts’ theories is matter to be resolved by
jury). The trial court could rely on Dr. Sander’s expertise and experience as a
cardiologist with an active practice that also continues to teach medical students
and fellows on cardiological matters as support for the theory that it was possible
for a person to experience increased physical stress, have a continuity of symptoms
following that increased physical stress, and have a heart attack over 30 hours later.
See Crump, 330 S.W.3d at 215–16 (citing Gammill, 972 S.W.2d at 726–27)
20
(holding expert’s experience, knowledge, and training is considered in determining
reliability).
When an expert’s experience and training is a basis for a reliability
determination, the opinion becomes unreliable if there is too great of an analytical
gap between the evidence considered by the expert and the opinion offered.
Gammill, 972 S.W.2d at 726–27; Tamez, 206 S.W.3d at 579. New Hampshire
Insurance argues that there is too great of an analytical gap because “the evidence
established that [Bill] only minimally participated in the . . . training.” While there
was evidence to support its claim that Bill only minimally participated in the
training, New Hampshire Insurance overlooks the fact that there was also evidence
that Dr. Sander reviewed to support the argument that Bill’s physical exertion
during the training was far greater than Bill’s physical exertion in his regular work
duties. Bellard testified that Bill wore heavier clothing, was exposed to greater
heat, and engaged in greater physical activity during the training than what Bill
normally experienced at work.
New Hampshire Insurance complains that Dr. Sander “could not test, prove,
or demonstrate any evidence of a plaque rupture beyond the six hours preceding
the heart attack.” Both experts agreed that, absent active testing with use of a
catheter on a patient at the specific time, there was no way to test when a plaque
rupture specifically occurs. It could only be inferred by the circumstances
21
surrounding the heart attack. 2 The undisputed testimony, however, was that Bill
did have a plaque rupture and died from a later-resulting heart attack.
We hold the trial court was within its discretion to admit Dr. Sander’s
opinion. Accordingly, we overrule New Hampshire Insurance’s first issue.
Legal and Factual Sufficiency
In its second and third issues, New Hampshire Insurance argues that the
evidence was legally and factually insufficient to support the jury’s determination
that Bill suffered a compensable heart attack.
A. Standard of Review
“The final test for legal sufficiency must always be whether the evidence at
trial would enable reasonable and fair-minded people to reach the verdict under
review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In
performing a legal-sufficiency review, we must credit favorable evidence if
reasonable fact finders could credit it and disregard contrary evidence unless
reasonable fact finders could not disregard it. Id. “If the evidence . . . would
enable reasonable and fair-minded people to differ in their conclusions, then [fact
2
Related to this complaint that Dr. Sander could not prove that the plaque rupture
occurred more than six hours preceding the heart attack, New Hampshire
Insurance complains about Dr. Sander’s dispute during his testimony about
whether Bill’s troponin levels were abnormal during the time of his admission to
the hospital. As New Hampshire Insurance’s expert explained, when troponin is
found in the bloodstream, that is considered proof that a heart attack has occurred
within the preceding four to six hours. The timing of Bill’s heart attack is well
documented in the record. Accordingly, reviewing Dr. Sander’s opinion on the
level of troponin in Bill’s bloodstream would have no effect upon our analysis.
22
finders] must be allowed to do so.” Id. at 822. “A reviewing court cannot
substitute its judgment for that of the trier-of-fact, so long as the evidence falls
within this zone of reasonable disagreement.” Id. Although the reviewing court
must consider evidence in the light most favorable to the verdict, and indulge every
reasonable inference that would support the verdict, if the evidence allows only
one inference, neither fact finder nor the reviewing court may disregard the
inference. Id.
To determine whether the evidence is factually sufficient to support a
finding, an appellate court considers and weighs all evidence that was before the
trial court. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When an appellant
attacks the factual sufficiency of an adverse finding on an issue on which he did
not have the burden of proof, the appellant must demonstrate the finding is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
manifestly unjust. See id. As the reviewing court, we may not act as fact finder
and may not pass judgment on the credibility of witnesses or substitute our
judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116
S.W.3d 757, 761 (Tex. 2003).
The party appealing the final administrative decision on the compensability
of an injury bears the burden of proof by a preponderance of the evidence. TEX.
LAB. CODE ANN. § 410.303 (Vernon 2006); Morales v. Liberty Mut. Ins. Co., 241
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S.W.3d 514, 516 (Tex. 2007). Because Peggy was the party appealing the final
determination of compensability of the heart attack, she bore the burden of proof at
trial. See LAB. § 410.303.
B. Analysis
In its legal-sufficiency issue, New Hampshire again argues that there was no
evidence to establish the heart attack occurred at a definite time and place and was
caused by a specific event occurring in the course and scope of Bill’s employment.
See LAB. § 408.008(1). It argues, “There was no evidence that William Allison
had an onset of symptoms while participating in fire training.” There is nothing in
the statute, however, that requires an employee to display an onset of symptoms of
a heart attack at the time of work. Instead, the heart attack must “be identified as
(A) occurring at a definite time and place; and (B) caused by a specific event
occurring in the course and scope of the employee’s employment.” Id.
Both sides’ experts agreed that Bill’s heart attack began in the late afternoon
or early evening on October 25, 2008. This satisfies subsection (1)(A) of the
statute. See id. § 408.008(1)(A). Dr. Sander testified that it was his opinion that
the heart attack was caused by a plaque rupture, which occurred during the course
and scope of Bill’s employment while he was at the training. This satisfies
subsection (1)(B) of the statute. See id. § 408.008(1)(B) (requiring heart attack be
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identified as “caused by a specific event occurring in the course and scope of the
employee’s employment”).
Even if continuity of symptoms from the time of work to the time of the
heart attack were required under the statute, such proof is present here.
Specfically, Dr. Sander testified,
[T]here is nothing in his history from November of 2007 through the
beginning of fire training school that suggest[s] any destabilization of
his condition. He then undergoes a very stressful situation. . . . And
in the context of that, begins having fatigue, nausea, malaise,
diaphoresis, indigestion, and then progresses to acute myocardial
infarction with rhythm disturbance and is unresuscitatable when he
gets to the emergency room because of myocardial infarction. He dies
because he develops basically ventricular fibrillation because of
myocardial injury due to a buildup of plaque precipitated by his fire
training school.
He later testified, “There is a continuity of symptomatology not existing before fire
training; beginning within; and after that, culminates in his” heart attack.
New Hampshire Insurance argues that the evidence disproves that Bill was
displaying any symptoms even when he was home. It argues, instead, that Bill was
behaving normally and engaging in activity such as mowing the yard and having
his hair cut. In making this argument, New Hampshire Insurance overlooks the
evidence to the contrary. Peggy, her daughter, and her son each testified that Bill
was not behaving normally after returning from the training to the time of his heart
attack. Their description of Bill’s behavior is in line with Dr. Sander’s description
of the continuity of symptoms.
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New Hampshire Insurance similarly overlooks other evidence in arguing that
there was no evidence that Bill exerted himself any more during his training than
he did during work. There was ample evidence in the record, however, to support
the contention that, during the training, Bill wore heavier clothing, was exposed to
greater heat, underwent greater exertion, and was presented with more stressful
than usual circumstances than he experienced during his regular work.
In presenting its factual-sufficiency evidence, New Hampshire Insurance
relies on the same evidence to argue that Bill did not exhibit a continuity of
symptoms from the time of work to the time of heart attack and that Bill’s exertion
during training was not any greater than his regular exertion at work. While there
was conflicting evidence on these matters at trial, these conflicts are factual
disputes to be resolved by the jury. See Golden Eagle Archery, 116 S.W.3d at 761
(holding appellate court should not impinge on fact finders’ role of judging
credibility of witnesses and resolving factual disputes). Nothing in the record
suggests that the evidence upon which the jury relied is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.
See Cain, 709 S.W.2d at 176.
We overrule New Hampshire Insurance’s second and third issues.
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Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Bland.
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