Court of Appeals of Texas,

Eastland.

Daxa SHAH, Appellant

v.

GREAT STATES INSURANCE COMPANY, Appellee.

No. 11–00–00081–CV.

|

May 17, 2001.

Attorneys & Firms

Michael C. Engelhart and Kelly A. Greenwood, for Daxa P. Shah.

William Mitchell King, for Great States Insurance Company.

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.

OPINION

W.G. ARNOT, III, Chief Justice.

*1 This is an appeal from the denial of workers’ compensation death benefits. Daxa Shah’s husband, Pankaj Shah, had been installing computer cable at his place of employment, Piping Technology & Products, Inc., when coworkers discovered him lying on the floor. Pankaj was taken to the hospital and died shortly thereafter. The cause of death was cardiac dysrhythmia. Daxa and her minor daughter filed a workers’ compensation claim for death benefits. Daxa properly pursued her claim through the Texas Workers’ Compensation Commission, but her claim was denied at each level because Pankaj had not suffered a compensable injury. Daxa then sued in district court, and the trial court granted a summary judgment in favor of Piping’s workers’ compensation carrier, Great States Insurance Company. Daxa appeals. We affirm.

In her sole point of error, Daxa contends that summary judgment was erroneously granted because genuine issues of material fact exist as to whether Pankaj’s death was caused by a fall from a ladder. In the trial court, Great States filed one motion requesting both a traditional summary judgment and a no-evidence summary judgment under TEX.R.CIV.P. 166a(c) and (i). The grounds asserted in the motion were that Pankaj sustained no compensable injury, that no evidence existed as to an element of the claim because the medical evidence showed no link between Pankaj’s heart failure and his employment, and that the medical evidence failed to show that the death was work-related. Daxa responded to the motion by urging that summary judgment was improper because a genuine issue of material fact existed as to whether her husband fell off a ladder causing his heart failure. We need only address the no-evidence issue.

In reviewing the propriety of summary judgment in this workers’ compensation case, we must apply the same, well-recognized standards of review that are appropriate in other civil cases. Safford v. Cigna Insurance Company of Texas, 983 S.W.2d 317, 319 (Tex.App.-Fort Worth 1998, pet’n den’d). In order to review a no-evidence summary judgment, we must review evidence presented in opposition to the no-evidence motion just as we do evidence offered in support of, or in response to, a traditional motion for summary judgment: we accept as true evidence favorable to the non-movant and indulge every reasonable inference and resolve all doubts in favor of the non-movant. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex.App.-Eastland 2000, pet’n den’d); see Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). However, we review only the evidence presented by the non-movant. Rule 166a(i); Hight v. Dublin Veterinary Clinic, supra at 618–19. A trial court must grant a properly requested no-evidence summary judgment unless the non-movant brings forth more than a mere scintilla of probative evidence to raise a genuine issue of material fact. Rule 166a(i); Hight v. Dublin Veterinary Clinic, supra at 619. Less than a mere scintilla of evidence exists when the evidence is “so weak as to do no more than create a mere surmise or suspicion” of a fact, so that the legal effect is that there is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983); Hight v. Dublin Veterinary Clinic, supra; Denton v. Big Spring Hospital Corporation, 998 S.W.2d 294, 298 (Tex.App.-Eastland 1999, no pet’n).

*2 Under TEX. LAB. CODE ANN. § 408.008 (Vernon 1996), a “heart attack”¹ is a compensable injury 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. (Emphasis added)

In response to the motion for summary judgment, Daxa attached summary judgment evidence showing that her husband was at work when his heart failed. The day of his death and the day before his death, Pankaj had been installing computer cable in the acoustical tile ceiling in one of Piping’s buildings. To do this job, Pankaj had been climbing up and down a six-foot stepladder. No one saw what Pankaj was doing immediately prior to his fall.

Whether Pankaj was on the ladder and fell to the ground or whether Pankaj was standing on the ground when he fell was in dispute. The depositions of the witnesses who came to the aid of Pankaj immediately after he fell indicated that Pankaj did not fall from the ladder. However, Daxa presented some evidence that Pankaj fell from the ladder. An employee at Piping called Daxa shortly after the incident and reported that her husband had fallen off a ladder and injured his head and that he had been taken to the hospital. The EMS record also indicated that Pankaj had fallen from a ladder and hit his head.

Consequently, viewing the evidence in the light most favorable to Daxa, we must determine if more than a scintilla of summary judgment evidence was presented to show that the fall from the ladder caused Pankaj’s death. The only medical evidence presented by Daxa was the transcript of the testimony of Dr. Paul Wayne Schrode from the contested case hearing. Dr. Schrode performed the autopsy on Pankaj. He indicated that Pankaj had a small, non-perforating laceration or contusion on the back of his head but that the cause of Pankaj’s death was cardiac dysrhythmia of undetermined etiology. Although Dr. Schrode found nothing indicating that Pankaj had a preexisting heart condition or disease, he repeatedly refused to state with reasonable medical probability that Pankaj’s death was work-related. Dr. Schrode answered affirmatively when Daxa’s counsel asked whether he had checked all the “possibilities and probabilities”:

And the one that you came up with, the only one that made sense, if Mr. Shah fell from the ladder, was the hyperextension of his neck?

Dr. Schrode further stated, however, that the hyperextension theory was advanced only as “a possibility” and that it was equally as possible that Pankaj suffered the coronary event first and then fell from the ladder. In summary, Dr. Schrode opined that there were numerous possibilities and that he did not know the probable cause of the cardiac dysrhythmia in this case.

*3 We hold that the medical evidence presented by Daxa in response to the motion for summary judgment constitutes no more than a scintilla of evidence that a fall from the ladder caused Pankaj’s cardiac dysrhythmia. In a workers’ compensation case where expert medical evidence is relied upon to show causation, the expert’s testimony can create an issue for the jury if there is some evidence of a “reasonable probability” of a causal connection between the employment and the present injury. Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199, 202 (Tex.1980)(no evidence of reasonable probability); Stodghill v. Texas Employers Insurance Association, 582 S.W.2d 102, 104–05 (Tex.1979); Parker v. Employers Mutual Liability Insurance Company of Wisconsin, 440 S.W .2d 43, 46 (Tex.1969). In the absence of a reasonable probability, the inference of causation amounts to no more than speculation and conjecture. Schaefer v. Texas Employers’ Insurance Association, supra; Insurance Company of North America v. Myers, 411 S.W.2d 710, 713 (Tex.1966). Reasonable probability is determined by the substance of the expert’s testimony and does not require the use of any particular phrase. Schaefer v. Texas Employers’ Insurance Association, supra; Insurance Company of North America v. Myers, supra. In this case, the substance of Dr. Schrode’s testimony indicates that a fall from the ladder was only a possible cause of Pankaj’s cardiac dysrhythmia. Furthermore, the issue of whether a fall from a six-foot stepladder probably caused the cardiac dysrhythmia is not one that can be inferred from general experience and common sense or from a scientific generalization. See Stodghill v. Texas Employers Insurance Association, supra at 105; Parker v. Employers Mutual Liability Insurance Company of Wisconsin, supra. Therefore, the trial court properly granted a no-evidence summary judgment regarding the causal link between Pankaj’s employment and his death. Daxa’s sole point of error is overruled.

The judgment of the trial court is affirmed.

	Footnotes
1		Although the term cardiac dysrhythmia is medically distinguishable from a myocardial infarction, which is known in lay terms as a “heart attack,” the dysrhythmia is treated as a heart attack for purposes of Section 408.008 and was frequently referred to as a heart attack in the summary judgment evidence in this case. We also note that Daxa asserts in her brief that Section 408.008 does not apply in this case. However, Daxa did not raise this issue in the trial court and cannot raise it for the first time on appeal. TEX.R.APP.P. 33.1(a).