Reset A A Font size: Print

Court of Appeals of Texas, Houston (14th Dist.).


NO. 14-15-00899-CV

Decided: January 31, 2017

Panel consists of Justices Jamison, Wise, and Jewell.


In this appeal from a trial de novo following a worker's compensation contested case hearing, appellant Lucille Kelley challenges the trial court's judgment in favor of appellee Aldine Independent School District (“Aldine ISD”). Kelley asserts that she presented evidence to support her claim; thus, the trial court erred in directing a verdict in favor of Aldine ISD. Because Kelley failed to present expert testimony that her asserted injuries were caused by her on-the-job fall, we affirm.


While working as a substitute teacher in the Aldine ISD, Kelley slipped and fell on a piece of fruit in the hallway of a school. After the fall, Kelley sought treatment and was diagnosed with various injuries to her neck, back, knees, and ankles. Aldine ISD, a self-insured worker's compensation employer, compensated her for these injuries.

Later, Kelley sought compensation for additional injuries she claimed were caused by the fall. These included numerous disc herniations, cervical radiculitis, and lumbar radiculopathy. A doctor designated by the Texas Department of Insurance – Division of Worker's Compensation (“TDI-DWC”) determined that these additional injuries were not caused by her work-related fall. Also, Kelley challenged the impairment rating a TDI-DWC doctor assigned to her. After a contested case hearing, a hearing officer for the TDI-DWC concluded that Kelley's disc herniation, cervical radiculitis, and lumbar radiculopathy were not compensable injuries. The hearing officer also confirmed Kelley's impairment rating. Kelley's administrative appeal was denied, and she appealed the decision to district court. See Tex. Lab. Code Ann. § 410.301(a) (West 2015).

At Kelley's jury trial de novo in the district court, she represented herself and was the only person to testify. She briefly described the circumstances of her on-the-job fall. She also described the effect her injuries have had on her life, testifying that she suffers from pain and has to walk with a cane. She rested her case without introducing any exhibits into evidence. Aldine ISD offered into evidence the report from the TDI-DWC doctor who opined that Kelley's disc herniations, cervical radiculitis, and lumber radiculopathy were not caused by her on-the-job fall. Aldine ISD then rested its case and, outside the presence of the jury, moved for a directed verdict based on Kelley's failure to introduce any expert evidence to support her claim. Relying on Transcontinental Insurance Co. v. Crump,1 Aldine ISD argued that Kelley's failure to introduce expert causation evidence in support of her claim, coupled with the TDI-DWC doctor's uncontroverted opinions, compelled a directed verdict in its favor.

Kelley responded that she did not understand why TDI-DWC had not accepted the opinions of her own doctors and stated that she had some of her doctor's records, which the trial judge could review if he desired. The trial judge responded,

I have read [your doctor]'s paperwork, ma'am. The first thing before the trial began this morning, however, those were excluded from the evidence; and because there is no evidence that is contrary to the findings of the Workers' Compensation Division, I feel like I must grant the motion and enter judgment that will sustain the findings of the Workers' Compensation Division based on what the evidence is here today in that it is not sufficient to place the case in the hands of the jury.

The trial judge dismissed the jury and directed a verdict in favor of Aldine ISD. Kelley filed a motion for new trial in which she acknowledged that she did not present expert testimony to support her claims, although she stated that she was “her own expert witness.” The trial court denied Kelley's motion, and Kelley timely appealed.

Standard of Review

A court may direct a verdict if no evidence of probative force raises a fact issue on the material questions presented. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). A trial court properly directs a verdict when a plaintiff fails to present evidence raising a fact issue essential to her right of recovery or the evidence conclusively establishes the movant's right to judgment as a matter of law. Gomer v. Davis, 419 S.W.3d 470, 475 (Tex. App.—Houston [1st Dist.] 2013, no pet.). In reviewing a directed verdict, we analyze the legal sufficiency of the evidence; we must determine if there is any conflicting evidence of probative value that raises a material fact issue. Id.


In a single issue, Kelley asserts that the trial court erred in directing a verdict in favor of Aldine ISD because her medical records were “available to” the trial court and to Aldine ISD's counsel. She acknowledges in her brief that she rested her case without presenting any evidence, including a doctor's expert opinions, related to her allegedly compensable injuries.2

“The party appealing [an Appeals Panel decision] has the burden of proof by a preponderance of the evidence.” Tex. Lab. Code Ann. § 410.303 (West 2015). Thus, Kelley bore the burden of proving by a preponderance of the evidence that her work-related fall was a producing cause of her herniation of multiple discs, cervical radiculitis, and lumbar radiculopathy. See City of Laredo v. Garza, 293 S.W.3d 625, 629 (Tex. App.—San Antonio 2009, no pet.). A “producing cause in workers' compensation cases is defined as a substantial factor in bringing about an injury or death, and without which the injury or death would not have occurred.” Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 223 (Tex. 2010).

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.

We overrule Kelley's issue.


Having overruled Kelley's sole appellate issue, we affirm the trial court's judgment.


1.   330 S.W.3d 211 (Tex. 2010).

2.   Though Kelley filed her appellate briefs pro se, she is held to the same standards as a licensed attorney and must comply with all applicable rules of procedure. Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 930 (Tex. App.—Houston [14th Dist.] 2008, no pet.). A pro se litigant must properly present her case on appeal; if this were not the rule, pro se litigants would benefit from an unfair advantage over those parties not represented by counsel. Id. We do not apply different standards simply because a case is presented by a pro se litigant. Id.

3.   Moreover, assuming lay testimony were sufficient to link Kelley's conditions at issue and her on-the-job injury, Kelley's testimony did not establish a sequence of events providing a strong, logically traceable connection between her medical conditions and her injury. See Morgan, 675 S.W.2d at 733. She testified merely that she fell on “hard, concrete floors,” landing “in a split.” She stated that she has had to alter her lifestyle and suffers from pain. According to Kelley, her doctors suggested steroid shots or surgery to address her pain, but she refused these treatments. She explained that she has herniated discs and pain in her back and neck, which she asserted had been confirmed by various doctors: “They verified their statement by what they had observed on MRIs and x-rays, plus examinations, plus examinations from other doctors, plus MRIs that were taken at other places.” Finally, she stated, “I didn't have to use a cane before my injury. Now I'm supported by it. I stumble. If I don't, I will topple over; so this is why I use a cane.” Assuming the truth of her statements, she did not offer any strong, logically traceable connection between her medical conditions and her on-the-job injury. See id.

Kevin Jewell Justice

Copied to clipboard