Extent of Injury Evidence: A Primer

The issue of extent of injury lies at the heart of many workers’ compensation disputes. It always has. Under the old law, the issue was framed as “extend to and affect” while these days it more commonly goes by the moniker of “extent of injury.”

For a long time, the Division took the position that a carrier could become liable for additional injuries or conditions in a compensable claim by failing to dispute those injuries within 60 days from the date the carrier had written notice of them. This became known as “waiver of extent.” By 2010, the Texas Supreme Court had firmly rejected that argument in State Office of Risk Mgmt. v. Lawton, 295 S.W.3d 646 (Tex. 2009) and Zenith Ins. Co. v. Ayala, 325 S.W.3d 176 (Tex. 2010).

Around the same time that extent of injury waiver was rejected by the Supreme Court, the appellate courts and the appeals panel began to recognize that there were certain requirements that must be met for an employee to establish that her injury extended to and included additional diagnoses or conditions. On July 18, 2011, the appeals panel published the first of a long line of decisions holding that an employee’s attempt to link a compensable injury to an injury whose cause fell beyond common knowledge or experience required the presentation of reliable expert medical evidence. Texas Division of Workers’ Compensation Appeals Panel Decision No. 110701, 2011 WL 3663561 (Tex. Div. WC, July 18, 2011)

The appeals panel’s holding rested upon a court of appeals decision in City of Laredo v. Garza, 293 S.W.3d 625 (Tex. App.—San Antonio 2009, no pet.) and the Supreme Court’s decision Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007). The rule requiring expert testimony has been internalized by the Division and is now applied daily by ALJs across the state.

The appellate courts also continue to apply the rule. For example, in Kelley v. Aldine ISD, No. 14-15-00899-CV, decided January 31, 2017, the claimant presented no expert testimony at trial and the trial court granted the school district’s directed verdict. The claimant appealed.

The court of appeals affirmed the trial court’s judgment.

Expert testimony is generally necessary to establish causation of medical conditions that are “outside the common knowledge and experience of jurors.” See Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007). In limited cases, however, lay testimony may support a causation finding that links an event with a person’s physical condition. Id. at 666. This exception applies only in those cases in which general experience and common sense enable a layperson to determine the causal relationship with reasonable probability. See id.; Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984). In such cases, “lay testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation.” Morgan, 675 S.W.2d at 733.

The types of injuries for which Kelley sought compensation––multiple disc herniations, cervical radiculitis, and lumbar radiculopathy—are neither common nor basic. See Guevara, 247 S.W.3d at 669–70; City of Laredo v. Garza, 293 S.W.3d 625, 632–33 (Tex. App.—San Antonio 2009, no pet.) (determining that lay testimony alone was not sufficient to prove medical causation of disc herniations and radiculopathy). Thus, this case is not one in which general experience and common sense enable a layperson to determine the causal relationship with reasonable probability. Kelly needed expert testimony to establish a causal connection between her work-related fall and her additional claimed injuries.3 See Guevara, 247 S.W.3d at 669–70; Garza, 293 S.W.3d at 632–33; cf. Humphrey v. AIG Life Ins. Co., No. 14-08-00793-CV, 2010 WL 2635643, at *5 (Tex. App.— Houston [14th Dist.] Jul. 1, 2010, pet. denied) (concluding that expert testimony was necessary to establish that disc herniations and lumbar radiculopathy were “solely and directly” caused by an on-the-job back injury).

It is undisputed that Kelley presented no expert testimony establishing that her work-related fall was a producing cause of her disc herniations, cervical radiculitis, and lumbar radiculopathy. Thus, Kelley failed to provide evidence of probative value raising a material fact issue that her on-the-job injury was a producing cause of her medical conditions at issue. See Humphrey, 2010 WL 2635643, at *5; Garza, 293 S.W.3d at 632–33. The trial court did not err in directing a verdict in favor of Aldine ISD. See Gomer, 419 S.W.3d at 477.

Claims handlers should become familiar with the rule that most injuries require reliable expert evidence that an injury extends to and includes another body part or diagnosis. This is an important tool that helps focus attention on the injuries that are truly part of the compensable claim.