State Office of Risk Management v. Belinda Baker ( 2008 )

Opinion filed January 4, 2008

Opinion filed January 4, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-05-00417-CV

                                                    __________

                    STATE OFFICE OF RISK MANAGEMENT, Appellant

                                                             V.

                                        BELINDA BAKER, Appellee

                                  On Appeal from the County Court at Law No. 2

                                                        Midland County, Texas

                                                Trial Court Cause No. CC-11,641

                                              M E M O R A N D U M   O P I N I O N

In this workers= compensation case, the State Office of Risk Management (SORM) appeals an award to Belinda Baker for depression that she asserted was a result of a fall at work.  The Texas Workers= Compensation Commission found that Baker=s compensable injury extended to and included her depression, and SORM sought judicial review.  After SORM presented its case -in-chief to the jury, Baker moved for a directed verdict on the basis that SORM failed to introduce any probative evidence that Baker=s injury did not cause the recurrence of Baker=s depression.  The trial court granted Baker=s motion.  We reverse and remand. 

In its sole issue on appeal, SORM contends that the trial court erred in granting the directed verdict because SORM created fact issues on whether Baker=s injury extended to and included depression.  SORM does not dispute the compensability of Baker=s work-related back injury, just the extension of that injury to include depression.

An employee with a compensable injury is entitled to compensation from SORM as provided for in the Texas Workers= Compensation Act, Tex. Lab. Code Ann. tit. 5, subtit. A (Vernon 2006 & Supp. 2007).  Section 501.021.  A compensable injury is Aan injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.@ Sections 401.011(10), 501.001(2).  Injury is defined as Adamage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm.  The term includes an occupational disease.@ Section 401.011(26).  The term Ainjury@ also includes the aggravation of preexisting conditions or injuries.  Cooper v. St. Paul Fire & Marine Ins. Co., 985 S.W.2d 614, 616-18 (Tex. App.CAmarillo 1999, no pet.). As the party appealing the commission=s decision regarding compensability, SORM had the burden at trial to prove by a preponderance of the evidence that Baker=s depression was not an extension of her work-related back injury and, therefore, was not compensable.  Section 410.301(a), 410.303.

On appeal, we must determine whether the trial court erred in instructing a verdict in favor of Baker.  A directed verdict for a defendant may be proper in two situations.  Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).  First, a trial court may direct a verdict when a plaintiff fails to present evidence raising a fact issue essential to its right of recovery.  Id.; Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994).  Second, a trial court may direct a verdict for the defendant if the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff=s cause of action.  Prudential, 29 S.W.3d 74; Szczepanik, 883 S.W.2d 648.  In reviewing the granting of a directed verdict, we apply the same standard of review as we do when assessing a no-evidence or legal sufficiency challenge.  City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). We may sustain such a challenge or uphold a directed verdict only when (1) the record discloses a complete absence 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 only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact.  Id. at 810 (citing Robert W. Calvert, ANo Evidence@ and AInsufficient Evidence@ Points of Error, 38 Texas L. Rev. 361, 362-63 (1960)). 

The record shows that Baker stumbled over a threshold at her place of employment on June 7, 1999.  Baker fell against the door but did not fall to the floor. Later that morning, she began to feel intense pain in her lower back.  Baker endured various back and spinal surgeries from November 2000 to December 2003 and was about to undergo another surgery at the time of trial in 2005.

Baker went to psychiatrist Dr. Wilbur G. Lineback for treatment of depression on May 31, 2001, and continued until October 2001 when workers= compensation would not approve payment for any further sessions.  Baker testified that she began suffering from depression around April 2, 2001.  Dr. Lineback diagnosed Baker as suffering from major depression, severe without psychotic features, recurrent.  Dr. Lineback subsequently noted on a prescription pad that Baker=s depression was attributable to her back injury.  Baker had been diagnosed by other doctors with recurrent major depression prior to her work-related injury.

Baker=s psychiatric history showed that she had been diagnosed with major depressive disorder, recurring, as far back as the early 1980s when she was a teenager.  Throughout the 1980s, doctors had prescribed various psychotropic medications for Baker=s depression.  She had been hospitalized in a psychiatric institution two or three times.  She had had suicidal thoughts prior to the work-related injury, but none as a result of the injury.  Baker was treated for depression by Dr. Olga Campbell, a psychologist, off and on beginning in 1995.  Baker had also been treated for depression by Dr. Judy C. Googins, in 1998, prior to her work-related injury.  She had been experiencing symptoms of depression for five years off and on prior to seeing Dr. Googins.  She stated that, at the time she sought help from Dr. Googins, her depression had been magnified by the breakup of a relationship.  Dr. Googins prescribed medications B Zoloft and Effexor B that helped.  However, on her own accord, Baker stopped taking the medications prescribed by Dr. Googins for her major depressive disorder, recurrent. In 2000, approximately one year after the injury at work, Baker was evaluated for social security purposes by Dr. John L. Carrick, a psychiatrist.  Dr. Carrick diagnosed Baker as having major depression, severe.

Baker=s records show that she misinformed Dr. Lineback by telling him that she had been Adepression-free@ for three or four years. Baker also reported to Dr. Lineback that, right after the accident at work, she had depression; however, she testified at trial that Ait wasn=t impairing@ her.  Baker testified that her symptoms Afor that episode,@ the one for which she sought compensation from SORM and treatment from Dr. Lineback, did not start until April 2001.  The record shows that, about the same time that this episode of depression began, Baker was having marital difficulties very early in her marriage and her husband was abusing drugs.

SORM called Dr. Michael D. Jenkins to testify about Baker=s psychiatric condition. Dr. Jenkins reviewed a large stack of Baker=s records, going back into the 1980s, from six or seven different doctors.  When asked whether Baker=s physical work-related injury extended to and included depression, Dr. Jenkins testified that, based on reasonable medical probability, Baker=s work-related injury did not cause her major depressive disorder.  Dr. Jenkins testified that major depressive disorder is different from just feeling down: it includes a depressed mood and disturbances in sleep, appetite, energy, concentration, hopelessness, helplessness, worthlessness, and possibly suicidal thoughts. Furthermore, Dr. Jenkins stated that Baker=s major depressive disorder, recurrent, began when she was seventeen and would continue throughout her life.

Dr. Jenkins noted that Baker=s psychiatric history began around the age of eighteen with an episode of major depressive disorder and that, since that time, she had been hospitalized two or three times for major depressive disorder B with the hospitalization extending over a period of six weeks on two separate occasions.  According to Dr. Jenkins, prescribed medications were mandatory for Baker=s condition. Baker=s return to a doctor in 1998 did not surprise Dr. Jenkins because major depressive disorder Ais a relapsing, reoccurring disease process or illness@ that needs to be treated continuously with a lifetime medication.  Dr. Jenkins noted that Baker, however, did not continue taking her antidepressant medications.  Therefore, the relapse or recurrence of Baker=s depressive symptoms would be expected by Dr. Jenkins.  According to Dr. Jenkins, someone suffering from Baker=s condition could expect a future relapse, regardless of life circumstances, Ato the tune of about 85 percent plus.@ According to Dr. Jenkins, that percentage is drastically reduced by actively taking regular antidepressant medications; otherwise, Ait=s really not a matter of -- of if, but when@ someone with this disorder will have a recurrence.  At the time of her first visit to Dr. Lineback, Baker had not been taking her antidepressant medications even though she admitted they helped her depression.  She was again started on Zoloft, and Dr. Lineback reported: ALess depression with Zoloft.@

According to Dr. Jenkins, Baker merely had a Aremanifestation of a preexisting condition.@ Dr. Jenkins testified that a stressor may or may not cause the symptoms of depression to return and that A[t]here is no way for anyone to know@ whether a specific stressor was the source of Baker=s recurrent episode of her major depressive disorder.  Baker experienced various stressors and had a preexisting chemical imbalance in her brain, which may have been triggered by these stressors. Thus, the recurrence may have been due to problems related to Baker=s back injury.  However, Baker=s relapse could also have been caused by other stressors that occurred around the time of the onset of this episode, such as performing CPR in April 2001 on her soon-to-be father-in-law after he was already dead, learning of her own father=s terminal lung disease, dealing with her husband=s drug abuse, or experiencing marital difficulties soon after the date of her marriage.  Baker also had other physical ailments or possible stressors prior to seeing Dr. Lineback that could have been a stressor leading to the relapse, including stomach problems and gallbladder surgery unrelated to her back injury.  Furthermore, sometimes relapses occur without any stressors.

Though Dr. Jenkins could not definitively pinpoint the reason or reasons, if any, for the recurrence of Baker=s depression and, therefore, could not determine that Baker=s back Ainjury and surgery and condition after the surgeries@ were not reasons for the recurrence, there was probative evidence from which the jury could have found that Baker=s work-related injury did not extend to and include depression.  See, e.g., Wootan v. Am. Motorist Ins. Co., 570 S.W.2d 572 (Tex. Civ. App.CCorpus Christi 1978, no writ); Hunt v. State Office of Risk Mgmt., No. 14-05-00819-CV, 2007 WL 1412102 (Tex. App.CHouston [14th Dist.] May 15, 2007, no pet.) (mem. op.).  The record contained ample evidence of other reasons for Baker=s recurrence.  We note also that, even though SORM had the burden of proof, SORM was not required to prove its case conclusively.  Because SORM did not fail to present evidence raising a fact issue and because the evidence did not conclusively establish that Baker=s work-related injury extended to and included depression, the trial court erred in granting Baker=s motion for a directed verdict.  SORM=s issue is sustained.

The judgment of the trial court is reversed, and the cause is remanded for further proceedings.

JIM R. WRIGHT

CHIEF JUSTICE

January 4, 2008

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.