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American Cas. Co. of Reading, PA. v. Zachero
December 11, 2008
Unpublished Opinion

American Cas. Co. of Reading, PA. v. Zachero

Court of Appeals of Texas,




Donna ZACHERO, Appellee.

No. 11–07–00183–CV.


Dec. 11, 2008.

On Appeal from the 244th District Court, Ector County, Texas, Trial Court Cause No. C–118,428.

Attorneys & Firms

Jane Lipscomb Stone, for American Casualty Company of Reading, PA.

Mark A. Cevallos, for Donna Zachero.

Panel consists of: STRANGE, J.


JIM R. WRIGHT, Chief Justice.

*1 This is a workers’ compensation case. The hearing officer found that Donna Zachero suffered a compensable injury and had a disability on certain dates as a result of the injury. The Texas Workers’ Compensation Commission affirmed the decision of the hearing officer, and American Casualty Company of Reading, PA, appealed that decision to the district court in Ector County. A jury found that the compensable injury to Zachero included chondromalacia in the left knee and that Zachero had disability from April 17, 2003, to August 11, 2003, and again from January 21, 2004, to August 2, 2004. The trial court entered judgment in accordance with the jury’s findings, and American Casualty appeals. We affirm.

On March 17, 2003, Zachero was injured at work when she fainted and fell. Zachero hit her chin, shoulder, chest, and elbow during the fall and developed bruises on those areas. Zachero also injured her knee when she fell. Zachero went to the emergency room on April 17, 2003, due to the pain and swelling in her knee. The emergency room doctor took X-rays of Zachero’s knee and instructed her to see Dr. Richard L. Duke, an orthopedic specialist, for the injury.

After seeing Dr. Duke and having an total knee replacement. Zachero underwent knee replacement surgery on November 1, 2004.

American Casualty disputed that the injury to Zachero’s knee included chondromalacia.

A compensable injury is an “injury that arises out of and in the course and scope of employment for which compensation is payable under [the Texas Workers’ Compensation Act, TEX. LAB.CODE ANN. tit. 5, subtit. A (Vernon 2006 & Supp.2008) ].” Section 401.011(10). Injury is defined as “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm.” Section 401.011(26). The term “injury” includes an occupational disease. Id. The term “occupational disease” does not include “an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease.” Section 401.011(34). The term “injury” also includes the aggravation of preexisting conditions or injuries. Cooper v. St. Paul Fire & Marine Ins. Co., 985 S.W.2d 614, 616–18 (Tex.App.-Amarillo 1999, no pet.).

*2 The district court reviews the appeals panel’s decision on issues involving the compensability of an injury under a modified de novo review. Morales, 241 S.W.3d at 516.

In two issues on appeal, American Casualty argues that the evidence is legally insufficient to support the jury’s findings and that Dr. Reilly’s testimony was inadmissible. We will first address American Casualty’s argument that Dr. Reilly’s testimony was inadmissible. Dr. Reilly testified outside the presence of the jury that Zachero’s arthritis to progress.

American Casualty specifically argues that Dr. Reilly was not qualified as an expert regarding the cause of the chondromalacia. American Casualty complains that Dr. Reilly was not qualified to give expert testimony on causation, that his testimony was not reliable, and that his testimony was not based upon reasonable medical probability.

The general rule is that expert testimony is necessary to establish causation as to medical conditions outside the common knowledge and experience of jurors. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Expert testimony is admissible if (1) the expert is qualified and (2) the testimony is relevant and based on a reliable foundation. Robinson, 923 S.W.2d at 558.

*3 The party offering the expert’s testimony bears the burden of establishing that the witness is qualified as an expert. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex.1998).

In determining whether expert testimony is reliable, we review an expert’s testimony in its entirety and will not accept the expert’s opinion as some evidence “simply because he used the magic words.” Mendez, 204 S.W.3d at 801.

To constitute evidence of causation, a medical expert’s opinion must rest in reasonable medical probability. Crye, 907 S.W.2d at 500.

Dr. Reilly graduated cum laude from Georgetown University Medical School and trained at Cleveland Clinic Foundation. Dr. Reilly has been an orthopedic surgeon for seventeen years and is board certified for total joint replacement. Dr. Reilly is a partner with Basin Orthopedic Surgical Specialists. Dr. Reilly performs approximately 200 total knee replacements per year. Dr. Reilly stated that he had not previously testified on the causation of an injury. Dr. Reilly further stated he had not published any articles on causation of injuries or attended any seminars on determining causation of injuries.

*4 Dr. Reilly testified that he was Zachero’s treating physician after his partner, Dr. Duke, referred Zachero to him. Zachero’s medical history was in her chart maintained by the Basin Orthopedic Surgical Specialists. Dr. Reilly conducted a physical examination of Zachero, reviewed her X-rays, and reviewed her previous treatment. Dr. Reilly testified that, in his opinion, Zachero had arthritis and the pain symptoms were present in the left knee that was injured.

Dr. Reilly testified that “when you talk about what caused this, to me there’s only one thing that happened to her different than that right knee, which she twisted, tore the meniscus in the left knee. So now she’s got arthritis.... She’s been on everything she can. We injected steroid in her knee. That didn’t relieve her pain.” Dr. Reilly told Zachero that, if she could no longer tolerate the pain, knee replacement was her other option.

Dr. Reilly testified that, in his opinion, the injury resulting in the osteoarthritis. Dr. Reilly was not disqualified from testifying on causation because he had not previously testified as an expert on causation.

Dr. Reilly’s testimony was based upon his review of Zachero’s medical records, the physical examination he performed on Zachero, and the objective data showing the progression of the knee injuries. His testimony demonstrated that his opinion was based upon a number of factors and that his opinion was based on reasonable medical probability and not possibility, speculation, or surmise. The trial court did not err in admitting Dr. Reilly’s expert testimony. American Casualty’s second issue on appeal is overruled.

*5 In the first issue on appeal, American Casualty argues that the evidence is legally insufficient to support the jury’s finding that Zachero’s injury extended to include the ).

American Casualty specifically argues that, “where expert medical testimony is required to establish a causal relationship between the compensable injury and the claimed condition, a jury is not free to disregard undisputed expert testimony establishing that the condition was not caused by the injury.” American Casualty offered the expert testimony of Dr. Van Hal who testified that he reviewed all of Zachero’s medical records but did not conduct a physical examination of Zachero. Dr. Van Hal stated that Zachero’s traumatic arthritis. American Casualty contends that, because Dr. Reilly’s testimony was not admissible, the jury could not disregard the undisputed testimony of Dr. Van Hal.

Dr. Reilly’s testimony disputed the opinion of Dr. Van Hal. We have already held that the trial court did not err in admitting Dr. Reilly’s testimony that Zachero’s injury resulted in the progression of her chondromalacia. American Casualty’s first issue on appeal is overruled.

*6 The judgment of the trial court is affirmed.

End of Document