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

James FRANKLIN, Appellant,

v.

WORKERS’ COMPENSATION DIVISION, Office Of The Attorney General, Appellee.

No. 14-97-01428-CV.

|

April 22, 1999.

YATES, AMIDEI, and FOWLER, Justices.

OPINION

YATES.

*1 Appellant, James Franklin, appeals a judgment denying his workers’ compensation claim, in favor of appellee, the Workers’ Compensation Division. In three points of error, appellant contends that the trial court erred in entering a judgment for appellee because appellant proved that he sustained a mental trauma injury on July 14, 1994 that arose out of and in the course and scope of his employment, and which is traceable to a definite time, place, and cause. Appellant also argues that the trial court erred in ruling in favor of appellee because appellee failed to meet its burden of pleading and proving its “sole cause” defense. We affirm.

BACKGROUND

Appellant was first diagnosed with depression in 1975. In 1992, appellant obtained a position as a vocational rehabilitation counselor for the Texas Rehabilitation Commission (“TRC”). While employed with TRC, in April 1993, appellant was hospitalized for ten days for major depression; from September 1993 to February 1994, appellant took sick leave from TRC due to job-related stress.

On July 14, 1994, appellant approached Sandra Olison, his subordinate, and asked her to come into his office for a counseling conference. Olison did not comply. Later that day, appellant confronted Olison at her cubicle, at which time they engaged in a heated conversation. After work, appellant attended an after care program at West Oaks Hospital, at which he discussed his thoughts of suicide and homicide. He phoned in sick the next day. One week later, appellant met with Dr. Ebaugh, his treating physician; Dr. Ebaugh placed appellant on not-fit-for-duty status beginning on July 14, 1994. Appellant did not return from his sick leave until September 27, 1994.

In June 1995, appellant filed a Notice of Injury and Claim for Compensation for the alleged mental trauma injury he sustained on July 14, 1994. After a contested hearing, a hearing officer ruled that appellant did not suffer a compensable mental trauma injury traceable to one specific event. Consequently, appellant was not disabled from July 15, 1994 to September 27, 1994, and was not entitled to workers’ compensation benefits. An appeals panel of the Texas Workers’ Compensation Commission affirmed this decision. Subsequently, on March 29, 1996, appellant filed this action against appellee. Finding that appellant did not sustain a mental trauma injury traceable to a definite time, place, and cause, the trial court entered final judgment for appellee on September 13, 1997. This appeal follows.

STANDARD OF REVIEW

Appellant attacks the legal sufficiency of findings on an issue upon which he bore the burden of proof at trial. To sustain his challenge, appellant must demonstrate that the evidence conclusively established all vital facts in support of the issue. See Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex.1991). In reviewing a “matter of law” challenge, the reviewing court employs a two prong test. First, the court will examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. See id.

*2 Appellant also challenges the factual sufficiency of the evidence. To sustain such a challenge, appellant must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In reviewing a challenge that the finding is against the great weight and preponderance of the evidence, the reviewing court must first examine the record to determine if there is some evidence to support the finding. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). If such evidence exists, then the court must determine in light of the entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See id. The court may reverse only when it concludes that the finding is against the great weight and preponderance of the evidence. See Ames v. Ames, 776 S.W.2d 154, 158 (Tex.1989).

COMPENSABLE MENTAL TRAUMA INJURY

In his first two points of error, appellant challenges the legal and factual sufficiency of the trial court’s findings. Appellant contends that the argument with Olison was the cause of his injury, and such injury was a producing cause of his incapacity. The trial court, however, failed to find that the injury appellant sustained on July 14, 1994 was caused by one specific event. We agree.

In order to be entitled to workers’ compensation benefits, an employee must sustain an injury that arises out of and in the course and scope of employment. See Tex. Lab.Code Ann. § 401.011(10) (Vernon 1996). The employee bears the burden of proving that the injury he received is the producing cause of his incapacity. See Chavis v. Director, State Workers’ Compensation Division, 924 S.W.2d 439, 445 (Tex.App.-Beaumont 1996, no writ). In order to recover for a mental trauma injury, the employee must show that the injury arose in the course and scope of his employment, and is traceable to a definite time, place, and cause. See Olson v. Hartford Accident & Indem. Co., 477 S.W.2d 859 (Tex.1972); Bailey v. American Gen. Ins. Co., 154 Tex. 430, 279 S.W.2d 315 (Tex.1955); see also Brown v. Texas Employers’ Ins. Ass’n, 635 S.W.2d 415, 417 (Tex.1982) (recognizing that mental trauma can produce an accidental injury if there is proof of a definite time, place, and cause); Shannon v. Texas Gen. Indem. Co., 889 S.W.2d 662, 664 (Tex.App.-Houston [14th Dist.] 1994, no writ) (citing Brown v. Texas Employers’ Ins. Ass’n, 635 S.W.2d 415, 417 (Tex.1982)).

The record shows that appellant had been treated for depression since 1975. Dr. Ebaugh, appellant’s treating physician, testified that throughout his time at TRC, appellant suffered stress and had suicidal and homicidal ideations before and after July 14, 1994. Dr. Ebaugh further stated that the July 14th incident could be viewed as an accumulation of job stress.¹

*3 Appellant testified that in April 1993 he was hospitalized for ten days for depression after conferencing with a supervisor to correct problems with his work. Furthermore, appellant stated that after returning in February 1994 from a five month sick leave caused by job-related stress and frustration, he felt overwhelmed by his duties and by the expectations of his supervisors. Moreover, the record shows that appellant’s stated reason for leaving after July 14 was “job-related frustration with major depression.”

The record also contains the testimony of Dr. Silver, a clinical psychologist hired by appellee to review appellant’s medical records. Dr. Silver testified that appellant’s history “leads me to believe that it is highly unlikely that that single July 14th event would have caused this serious and long-standing disorder ….as a matter of fact, the state of knowledge in our field is not really such that anybody could have confidently pointed to that particular discrete event and said ‘That caused it.’ ” Dr. Silver then proceeded to testify that appellant’s depression was probably the result of a cumulative series of events occurring during the months preceding the July 14th incident and including the years preceding that episode. According to Dr. Silver, appellant’s history reflects a “pattern … of episodic flare-up[s] and incomplete amelioration of the illness.”

Ignoring all contrary evidence and inferences, the record supports the trial court’s findings that appellant’s mental injury was not caused by the July 14th incident. Consequently, appellant’s “matter of law” challenge cannot be sustained. Additionally, this record constitutes “some” evidence to support the court’s findings under a “great weight and preponderance of the evidence” challenge. Although, appellant presented his testimony and that of Dr. Ebaugh to establish a compensable mental trauma injury, viewing the entire record, we cannot conclude that the court’s findings are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust and clearly wrong.

Appellant also contends that the trial court erred in finding that the altercation between appellant and Olison occurred after the work day was complete. The record contains Olison’s deposition testimony regarding the time of the altercation. Olison stated that appellant approached her cubicle after the work day (“Probably 5 o’clock.”). Appellant testified that the argument took place sometime in the afternoon, but during the workday.

Under a legal sufficiency review, Olison’s testimony is sufficient evidence to support the trial court’s finding that the argument occurred after the workday. However, under a factual sufficiency review, we are required to examine the entire record. The conflicting evidence of Olison and appellant would have supported a finding either way. Thus, we conclude that the trial court’s finding against the appellant is not manifestly unjust. See Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 796-97 (Tex.1951); Middleton v. Palmer, 601 S.W.2d 759, 766 (Tex.App.-Dallas 1980, writ ref’d n.r.e.). Consequently, appellant’s first two points of error should be overruled.²

SOLE CAUSE DEFENSE

*4 In his third point of error, appellant contends that the trial court erred in ruling in favor of appellee because appellee failed to plead and prove its “sole cause” defense. According to appellant, appellee has waived its defense and cannot now raise the issue on appeal. However, appellee asserts that, under section 410.302 of the Labor Code, appellant waived his right to raise this issue at the trial court level and on appeal because appellant failed to apprise the commission appeals panel of appellee’s pleading defects.

Section 410.302 provides:

A trial under this subchapter is limited to issues decided by the commission appeals panel and on which judicial review is sought. The pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved.

Tex. Lab.Code Ann. § 410.302 (Vernon 1996). Thus, a party’s failure to obtain an administrative ruling on an issue arising under the worker’s compensation statute prevents the party from later invoking the jurisdiction of the district court to resolve the issue. See Paradissis v. Royal Indem. Co., 496 S.W.2d 146, 150 (Tex.App.-Houston [14th Dist.] 1973), aff’d, 507 S.W.2d 526 (Tex.1974). Appellant did not apprise the commission appeals panel of appellee’s pleading defect; rather, appellant raised the issue for the first time at trial. According to section 410.302, appellant has waived the issue.

Furthermore, appellant misconstrues appellee’s argument. In order to sustain a “sole cause” defense, a defendant has the burden of pleading and proving that the injured party’s incapacity was due solely to former disease or former injury. See Texas Employers Ins. Ass’n v. Page, 553 S.W.2d 98, 100 (Tex.1977). In this case, appellee argued that the July 14th argument between appellant and Olison was not the sole cause of appellant’s injury. Appellee asserted that circumstances (“job related stresses and frustrations) prior to July 14th and the incident occurring on that day were all factors contributing to appellant’s injury. Thus, appellee did not contend that appellant’s injury was due solely to a “former disease or injury” (appellant’s mental depression); rather, appellee argued that appellant’s injury was due to a cumulation of frustrations and stresses appellant was not equipped to handle due to his “ever-present” depression. Accordingly, appellant’s injury was not traceable to a definite place, time, and cause. Therefore, appellant’s argument regarding appellee’s waiver of its “sole cause” defense is without merit. Consequently, we overrule appellant’s third point of error.

The judgment of the trial court is affirmed.

	Footnotes
1		Approximately two months prior to July 14, 1994, Dr. Ebaugh wrote Carole Young, appellant’s supervisor, recommending placing appellant on not-fit-for-duty status, for at least one month. Although appellant was not placed on sick leave following this letter, this letter documents appellant’s mental state two months prior to the incident complained of and supports appellee’s theory that appellant’s incapacity was caused by ongoing depression.
2		Since appellant has failed to establish a compensable mental trauma injury, appellant’s “producing cause” argument is moot. As stated above, in order to be entitled to workers’ compensation benefits, a claimant must prove that he received an injury, on a specific date and in the course of his employment, that was a producing cause of his incapacity. See Chavis, 924 S.W.2d at 439. Producing cause is defined as an injury or condition which either independently or together with one or more other injuries or conditions, results in incapacity, and without which such incapacity would not have occurred when it did. See Oswald v. Texas Employers’ Ins. Ass’n, 789 S.W.2d 636, 642-43 (Tex.App.-Texarkana 1990, no writ). Appellant has failed to trace his injury to a definite time, place, and cause; thus, appellant has not established a compensable mental trauma injury. Absent such injury, appellant cannot now argue that the July 14th incident was a producing cause of his incapacity.