Supreme Court of Texas.
DALLAS NATIONAL INSURANCE COMPANY, Petitioner,
Gloria DE LA CRUZ, Respondent
OPINION DELIVERED: August 28, 2015
*57 ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE EIGHTH DISTRICT OF TEXAS
Attorneys & Firms
Phillip L. Wray, The Silvera Firm, Dallas, for Petitioner.
Robert E. Riojas, The Riojas Law Firm, P.C., El Paso, for Respondent.
In this workers’ compensation case, the trial court awarded Gloria De La Cruz lifetime income benefits (LIBs) pursuant to Section 408.161 of the Texas Workers’ Compensation Act (the Act). TEX. LAB. CODE § 408.161. The award was based on De La Cruz’s claim that an injury to her back extended to and affected both her feet at or above the ankle, causing permanent, total loss of use of them. The court of appeals affirmed. We reverse and render.
De La Cruz was working as a cook for Kona Kreek restaurant on February 18, 2004, when she fell, injuring her left knee and back. Kona Kreek carried workers’ compensation insurance with Dallas National Insurance Company, and it is undisputed that her injuries were compensable.
De La Cruz was released to return to light duty work in March 2004. However, she could not perform light duties and was again taken off work by her doctors. She was eventually diagnosed with discectomy.” Later she had anthroscopic surgery on her left knee. Despite these surgeries, De La Cruz continued to experience pain and numbness in her legs and continued to seek treatment for back and knee pain.
In 2009, De La Cruz filed a claim for LIBs with the Division of Workers’ Compensation. She claimed her 2004 injury caused the total loss of use of both her feet at or above the ankle, the loss of use was permanent, and she was entitled to LIBs pursuant to Section 408.161 of the Act. See TEX. LAB. CODE § 408.161. A contested case hearing was held, and the hearing officer determined that she was not entitled to LIBs. De La Cruz appealed. An appeals panel of the Division affirmed, and De La Cruz appealed to the district court. See id. §§ 410.252, 410.301. Following a non-jury trial, the court found that her injury resulted in the total and permanent loss of use of both her feet at or above the ankle and awarded LIBs.
Dallas National appealed, challenging both the legal and factual sufficiency of the evidence to support the judgment. The court of appeals affirmed. Id. at 43.
In this Court, Dallas National challenges the court of appeals’ determination that the evidence was sufficient to support the trial court’s judgment.
A challenge to the legal sufficiency of the evidence will be sustained only if (a) [there is] a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; [or] (d) the evidence establishes conclusively the opposite of the vital fact.
*58 Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 115 (Tex.2009)).
Section 408.161 of the Texas Workers’ Compensation Act enumerates seven types of injuries that entitle an employee to LIBs. The Act, as relevant to this case, provides that
(a) Lifetime income benefits are paid until the death of the employee for:
(2) loss of both feet at or above the ankle;
(b) For purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of that body part.
(b). “Total loss of use” is not defined in the statute, but we have determined that
[a] total loss of the use of a member exists whenever by reason of injury, such member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.
De La Cruz relies on Id. But neither the doctor who testified in De La Cruz’s case nor De La Cruz’s medical records reflects *59 such a situation. The closest the evidence comes to proving damage or harm to the physical structure of De La Cruz’s feet are piecemeal, unexplained statements in various medical records.
One medical record indicates that she suffers from “postlaminectomy syndrome” and “dermatomal loss” due to nerve damage in her back. However, the record does not identify what parts of her lower extremities were involved or whether there was any physical damage or harm to them. That is, there is no evidence that those conditions caused or were the result of damage or harm to the physical structure of both her feet at or above the ankle as opposed to reflecting injury to the nerve roots in her back. Another such medical record is from an examination in 2009 where the examining doctor noted that De La Cruz’s ankle reflexes were absent bilaterally. But the one entry regarding the finding does not identify whether the condition was transient or permanent in both ankles; whether it reflected more than damaged nerve roots in De La Cruz’s back; whether De La Cruz’s feet were unable to function properly; or whether the condition was permanent and caused permanent total loss of use of both her feet.
In sum, there is evidence that the injury to De La Cruz’s back affected her lower extremities, including her feet. But, as we concluded in 347 S.W.3d at 275. Here, there is no such evidence.
We reverse the judgment of the court of appeals and render judgment denying De La Cruz’s claim for LIBs.