This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on November 3, 1997. She (hearing officer) determined that the respondent (claimant) sustained a repetitive trauma injury in the course and scope of his employment; that on ______, the claimant knew or should have known that his left upper extremity condition may be work related; that the claimant reported the injury to the employer on June 24, 1997; and that the claimant had disability from ______, through July 3, 1997, and from July 7, 1997, through July 30, 1997. The appellant (carrier) requested review, summarized the evidence, urged that the determination that the claimant sustained a repetitive trauma injury in the course and scope of his employment is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust; and stated that since the claimant did not sustain a compensable injury, he cannot have disability It also disputed the determinations of the date of the injury and the timely reporting of the injury to the employer on the theory that the claimant did not sustain a compensable injury. The carrier requested that the Appeals Panel reverse the decision of the hearing officer and render a decision that the claimant did not sustain a compensable injury in the form of an occupational disease and did not have disability, and, in the alternative, remand the case to the hearing officer. A response from the claimant has not been received.
DECISION
We affirm in part and reverse and render in part.
The claimant, who worked for an airline company, testified that for about seven years he worked as a fleet service clerk, that that job included handling baggage, that about two years ago he sustained a compensable injury to his right arm handling baggage when a box fell on his arm, that for about seven months he worked as an aircraft cleaner, that in that job he buffed the exterior of airplanes for eight hours a day, and that for four months prior to the date he had the pain, he worked in the coffeemaker and oven shop repairing coffeemakers and ovens. He said that he was on vacation in another state on __________; that he was watching a movie in the house of a friend when he felt the pain; that he flew back to Texas; that he went to an emergency room on Sunday, __________; that he was told to see his primary care physician; that his primary care physician referred him to an orthopedic surgeon; and that the orthopedic surgeon told him that he needed to see a nerve specialist. He testified that he did not do anything away from work that could have caused his condition.
The claimant stated that the buffer vibrates; that sometimes the buffing puts your hands to Asleep; that you have to stop buffing and shake your hands; that while buffing airplanes he sustained wear, tear, and pain that all buffers sustain; and that Dr. B, his treating doctor, treats a lot of the aircraft buffers. He testified that repairing coffeemakers does not involve repetitive work, that he did not have pain while repairing coffeemakers, that he did not think that he injured himself repairing coffemakers, that he had normal pain from holding buffers all day, and that he thought that he injured himself buffing airplanes. The claimant said that MRIs of his neck and left shoulder were normal and that Dr. B told him that he has ulnar nerve impingement. He stated that he told Dr. B that it had been four months since he had buffed airplanes.
Dr. B, a chiropractor, testified and was asked A[d]o you consider [claimant’s] position as a fleet service clerk to be a vocation that could cause the type of injury [claimant] is exhibiting? He answered A[s]ure, yeah. He was also asked [w]ould you also consider the aircraft cleaner position [claimant] served in as a vocation that would cause this type of injury? and after identifyuing that as the job that involved buffing aircraft replied A[y]es, I do. Dr. B stated that it was possible to go some time before the pain of the injury grew to the point that it would require medical attention and that he has approximately 12 patients who buffed aircraft and have job-related injuries from buffing aircraft. An Initial Medical Report (TWCC-61) from Dr. B dated July 2, 1997, states Apt has buffed aircraft for 4 months before all of a sudden at home neck / L arm went numb and both getting worse. Dr. B was questioned about that entry and said that if he remembered right the claimant buffed aircraft from probably February to __________. Dr. B was asked A[d]o you feel [claimant’s] injury is caused by his course of employment? and he responded A[y]es, I do.A Dr. B said that he is still a Acard-holding union member.
In a statement dated September 16, 1996, Mr. B, a coworker, said that he had been cleaning aircraft since August 8, 1996; that he has started feeling pain in his shoulder area; and that on days after buffing aircraft his shoulder starts to make popping sounds when he rotates it. In an undated statement, Mr. C stated that he has been an aircraft cleaner since January 1996, that part of his job is to buff aircraft, that he has started to feel pain in his shoulder, that his shoulder aches after completing buffing, and that the next morning his shoulder will still be sore and his arm will tingle.
An Emergency Department Nursing Record from a hospital dated __________, states that the claimant said that he had left arm pain and numbness for three days, that he woked as a luggage handler, that he has had pain off and on for several years, and that his left hand feels like it is Aasleep. Notes from a doctor state that there was no trauma, that the claimant said that the sensation is in the entire left arm, and that the claimant will follow up with his doctor. In a letter dated June 20, 1997, Dr. F said that the claimant complained of very severe left arm pain, tingling, and numbness; that this keeps him awake at night; that there is no history of injury, acute type of injury, trauma, or accident; that there is mild pain and tenderness consistent with tennis elbow or lateral epicondylitis; and that he recommended a neurology referral for EMG and nerve conduction testing.
In the Statement of the Evidence in her Decision and Order, the hearing officer stated that Dr. B offered his medical testimony relating the claimant’s left upper extremity injury to his repetitive work activites. She made the following finding of fact:
4.On ______, Claimant sustained a work-related injury to his left upper extremity due to the repetitve nature of work activities that he had been performing for at least 7 years first as a baggage handler and then for 7 months as an aircraft buffer which required the use of a hand-held vibrator all day long.
The carrier stated the the claimant had not performed repetitive activity at work during the four months prior to the date of the claimed injury; that the decision and order of the hearing officer rests upon the medical opinion of a doctor whose understanding of the facts is demonstrably flawed; that, because of the passage of time after the repetitive activity stopped until the pain appeared, medical evidence is required to prove that the injury was caused by the work; and that the medical evidence is not sufficient to do so.
In Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) a child was born with defects, the plaintiffs contended that the defects were caused by a prescription drug ingested by the mother during pregnancy, and the trial court rendered a judgment in their favor. The Supreme Court stated that Rule 702 of the Texas Rules of Civil Evidence permits a witness qualified as an expert to testify in the form of an opinion; that the issue before it was whether the evidence was scientifically reliable and thus some evidence to support the judgment; that an expert’s bare opinion will not suffice; that the substance of the testimony must be considered; that the underlying data should be independently evaluated in determining if the opinion itself is reliable; that if the foundational data underlying opinion testimony are unreliable, an expert will not be permitted to base an opinion on that data because any opinion drawn from that data is likewise unreliable; and that an expert’s testimony is unreliable even when the underlying data are sound if the expert draws conclusions from that data based on flawed methodology. The Supreme Court cited several cases, including Burroughs Wellcome Company v. Crye, 907 S.W.2d 497 (Tex. 1995), in which the Supreme Court stated that when an expert’s opinion is based on assumed facts that vary materially from the actual, undisputed facts, the opinion is without probative value and cannot support a verdict or judgment. We are aware that section 410.165(a) provides that in a contested case hearing, conformity to the legal rules of evidence is not necessary.
At the hearing, Dr. B testified that if he remembered right, the claimant was buffing aircraft since February 1997, until the time he noticed the pain in his left upper extremity. He was asked if he considered if the work would cause the type of injury the claimant had and responded yes. He was asked if he considered the position of a fleet service clerk to be a vocation that could cause the type of injury the claimant exhibited and answered yes. Dr. B was asked if it would be possible for the claimant to go some time before the pain of his injury would grow to a point that it would require medical attention and responded that it was possible. Questions relating to the time of the two jobs and the claimant’s condition in June 1997 were not asked.
The burden is on the claimant to prove by a preponderance of the evidence that an injury occurred in the course and scope of employment. Texas Workers’ Compensation Commission Appeal No. 91028, decided October 23, 1991. Where the subject of an injury is not so scientific or technical in nature as to require expert testimony, lay testimony or circumstantial evidence may be sufficient to establish causation. Texas Workers’ Compensation Commission Appeal No. 92187, decided June 29, 1992. Stated another way, lay testimony is generally sufficient to establish causation where, based upon common knowledge, a fact finder could understand causal connection between the employment and the injury. Expert evidence may be required where such common knowledge does not exist. Texas Workers’ Compensation Commission Appeal No. 941464, decided January 9, 1995. Such causal connection must be established by reasonable medical probability; otherwise, the inference of causation Aamounts to no more than conjecture or speculation. Appeal No. 941464; Schaefer v. Texas Employers= Insurance Association , 612 S.W.2d 199 (Tex. 1980).
In the case before us, the evidence does not establish causation by reasonable medical probability. Finding of Fact No. 4 set forth earlier in this decision and the determinations that the claimant sustained a compensable injury and had disability are so against the great weight and preponderance of the evidence as to be clealy wrong and unjust. Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986); In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We affirm the determinations concerning the date of the claimed injury and the date the claimant notified the employer of the claimed injury. We reverse the determinations of the the hearing officer that the claimant sustained an injury in the course and scope of his employment with a date of injury of ______, and that he had disability and render a decision that the claimant did not sustain a compensable injury with a date of injury of ______, and that, since he did not sustain a compensable injury, he did not have disability.
Tommy W. Lueders – Appeals Judge
CONCUR:
Stark O. Sanders, Jr. – Chief Appeals Judge
Christopher L. Rhodes – Appeals Judge