American Home Assur. Co. v. George

Court of Appeals of Texas,

San Antonio.

AMERICAN HOME ASSURANCE CO., Appellant,

v.

John GEORGE, Appellee.

No. 04-01-00541-CV.

|

June 12, 2002.

*1 This appeal is from a no-evidence summary judgment granted in favor of John George (“George”) against American Home Assurance Company (“American Home”). American Home filed suit seeking review of the Texas Workers’ Compensation Commission’s decision that George was disabled from an injury he sustained during the course and scope of his employment. George filed a no-evidence motion for summary judgment arguing that American Home had no evidence that George did not sustain a compensable injury. The trial court granted George’s motion. On appeal, American Home contends that there is a genuine issue of material fact to dispute that George’s disease was caused by exposure to toxins during the course and scope of his employment. Because we find that American Home’s evidence does raise a material fact issue, we reverse the trial court’s summary judgment and remand for further proceedings.

STATEMENT OF FACTS

George, an electrician, was employed with N.H. Electric. American Home provided workers’ compensation coverage to N.H. Electric on behalf of its employees. On January 7, 1998, George was rewiring an older home, and while crawling in the attic, he accidently dropped his flashlight into a pile of what he later described as animal excrement. This created a cloud of dust that George inhaled. He quickly left the attic, but almost immediately after this exposure, George began to complain of respiratory problems. After seeking medical attention, he was diagnosed with interstitial lung disease, which has progressively worsened. George learned that the home had been sprayed two weeks prior to the incident with cypermethrin, a pesticide.

Because of the development of his lung disease, George eventually filed a claim for workers’ compensation benefits. A benefit review conference was conducted, and the review officer found that George had not sustained his injury while at work. However, following a contested case, the hearing officer determined that George had been injured on January 7, 1998, during the course of his employment and that he had been disabled since February 17, 1998. The Texas Workers’ Compensation Commission affirmed this finding. American Home appealed to the district court. George then filed a no-evidence motion for summary judgment alleging American Home has not produced any evidence that George did not sustain a compensable injury. The trial court granted the motion and American Home now appeals.

STANDARD OF REVIEW

The purpose of a no-evidence summary judgment motion is to “pierce the pleadings and to assess the proof to determine whether there is a genuine need for trial.” Gomez, 4 S.W.3d at 283. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Id. However, less than a scintilla of evidence exists when the evidence is “so weak as to do no more than create mere surmise or suspicion.” Id.

DISCUSSION

*2 American Home contends that it has presented more than a scintilla of evidence to raise a genuine issue of material fact as to whether George was injured during the course and scope of his employment. Under the Texas Workers’ Compensation Act, an employee may receive compensation if he is sustains a compensable injury during the course and scope of his employment. See ESIS, Inc., Servicing Contractor v. Johnson, 908 S.W.2d 554, 557 (Tex.App.-Fort Worth 1995, writ denied). An injury originates from the employment when it results from a risk or hazard that is reasonably inherent or incident to the work or business. Id.

In his motion for summary judgment, George presented deposition testimony from his treating physician, Dr. Charles Andrews and testimony from Dr. Douglas Jenkins, one of American Home’s experts. Dr. Andrews testified that he had no doubt that George’s injury was caused by exposure to a toxin in the attic.¹ Dr. Douglas Jenkins concluded that George sustained a lung injury while in the attic.

In response to George’s motion, American Home provided additional excerpts from Dr. Andrews’s deposition and the affidavits of two toxicologists, Noel Funderburk, Ph.D. and Gary Wimbish, Ph.D. In Dr. Andrews’s deposition, he admitted that no tests were performed to confirm that excrement, dust, bacterial contamination, or any other toxin actually existed in the attic at the time George was there. Dr. Andrews also conceded that even though he has conducted medical tests, he is unable to specifically identify what caused George’s disease. Dr. Andrews admitted that he had no objective scientific evidence to prove that George’s disease was caused by exposure to a toxin in the attic. Rather, he based his conclusion on George’s medical history because prior to entering the attic he was healthy, but he became ill shortly after working in that environment.

Dr. Funderburk reviewed George’s medical records and stated that the testing to determine the cause of George’s interstitial lung disease is incomplete. Dr. Funderburk stated that an “Alfa-1-antitrypain test” should be performed to determine if George’s disease is hereditary. Furthermore, Dr. Funderburk testified that after reviewing all of the records, in his opinion “there does not exist any evidence of an infectious process or exposure inhalant as a result of an exposure in an attic on or about January 7, 1998.” He concluded that the cause of George’s disease was “unknown and unknowable.”

*3 Finally, the affidavit of Dr. Wimbish states that cypermethrin is a safe pesticide for human exposure and is not considered “carcinogenic or mutagenic.” He also testified there are no reports in the literature that document that humans can be poisoned from casual exposure to cypermethrin, and there are no reports of respiratory effects from work related exposure. Dr. Wimbish concluded that within all reasonable scientific probability, George’s lung disease was not related to the pesticide.

Viewing this evidence in the light most favorable to American Home and disregarding all contrary evidence and inferences, we believe reasonable and fair-minded people could differ in their conclusions on whether George sustained a compensable injury on the job. American Home presented evidence which raises factual questions concerning the cause of interstitial lung disease in general and the cause of George’s disease specifically. Therefore, we find that American Home has provided more than a scintilla of evidence to raise a genuine issue of material fact on whether there is a causal connection between George’s disease and the job related exposure which he claims caused his disease. Accordingly, we sustain American Home’s issue.

CONCLUSION

Accordingly, we reverse the trial court’s summary judgment order in favor of George and remand this case for further proceedings.