Court Finds Claimant Entitled to LIBs
The Houston First Court of Appeals has concluded that an employee established that he was entitled to Lifetime Income Benefits in a case in which there was no direct injury to either of the employee’s feet. The case, City of Fort Worth v. Clark. No. 01-18-00430-CV (Houston [1st Dist.], August 13, 2019), was decided after a jury found LIBs entitlement and the self-insured city that employed the claimant appealed.
Print Earl Clark, Sr. was involved in an on-the-job vehicle collision while working for the City of Fort Worth. He later sought medical treatment for back pain with radiculopathy to his lower extremities. Eventually, he sought lifetime income benefits under a provision for total loss of use of two extremities, specifically, both feet. The Division had found previously that Clark was not entitled to LIBs.
LIBs are payable for only seven specific categories of injuries. The injury specified in Clark’s Workers’ Compensation claim was total and permanent loss of use of both feet at or above the ankle. Under the Labor Code, loss of a body part means “the total and permanent loss of use” of that body part “Total loss of use of a member of the body exists whenever by reason of injury such member no longer possesses any substantial utility as a member of the body or the condition of the injured member is such that the worker cannot get and keep employment requiring the use of such member.” Galindo v. Old Republic Ins. Co., 146 S.W.3d 755, 759 (Tex. App.—El Paso 2004, pet. denied) (emphasis added). Clark relied on the second, alternative definition.
Claimant’s treating chiropractor testified that his electrodiagnostic study “showed evidence of impairment to multiple motor nerves in both legs.” The impaired nerves innervated Clark’s feet. The doctor testified that Clark experienced radiating pain into his legs and could not stand or sit for more than a few minutes at a time. According to this doctor, Clark must “alternate between standing and sitting for a period, but then he becomes intolerant to that and has to lay down.” The treating doctor also opined that Clark’s accident caused him to suffer a total loss of use of both his feet. Clark was unable to get and keep employment requiring the use of both feet because he was unable to stand or sit for more than a few minutes at a time and required frequent, intermittent breaks to lie down. In the treating chiropractor’s professional opinion, Clark was not employable.
The City presented its only witness, an orthopedic surgeon, who testified that he previously had a private practice in the Dallas area that focused on foot and ankle surgical care. In 2014, he closed his practice and began working exclusively within the workers’ compensation area in the role of a designated doctor who evaluates workers’ injury and determines any impairment rating or an RME physician on behalf of carriers.
The City’s doctor testified that Clark had not suffered a severe injury; Clark had an “absolutely normal lower extremity exam”; Clark had no radiculopathy; and Clark had “no loss of use of those feet.” He also testified that, even though six other doctors had diagnosed radiculopathy and two doctors who evaluated Clark on behalf of his employer had found permanent impairment, “there is not any objective evidence that this individual should not be capable of returning back to full function of whatever he was doing at the time of the injury based on the injury.”
The court reviewed the controlling authorities and held that they established the following:
Combined, these cases establish that radicular pain is not evidence of an injury to the feet, themselves; however, radiculopathy can, over time, lead to indirect injury to the feet, which may be established through evidence of loss of ankle reflexes, sensitivity to hot and cold temperatures, permanent loss of functionality of the feet, or other damage to the feet.
The court wrote that the opinion of the city’s doctor “stood alone in concluding that Clark was not permanently injured.” Given this disparate position, the court wrote “it is not unreasonable that, if the jury weighed the medical evidence and testimony with an eye toward rejecting one view as less credible, the jury might have found [the city’s] position to be the less credible. The determination of witness credibility, including expert witness credibility, is the jury’s alone to make and will not be second guessed on appeal.”
The court addressed a second issue involving the exclusion of evidence. The claimant had applied for supplemental income benefits and, as a part of those applications, had made numerous job applications with many different employers. The city sought to introduce those job applications to impeach the claimant’s credibility. The trial court excluded the city’s offer of this evidence. The court of appeals affirmed, writing: “Evidence of earlier actions taken by Clark while interacting with the workers’ compensation system under a separate benefits scheme with a different standard of eligibility had the potential to confuse the issues before the jury.”
The court of appeals affirmed the judgment of the trial court.
FOLIO
