                                  COURT OF APPEALS
                               EIGHTH DISTRICT OF TEXAS
                                    EL PASO, TEXAS

                                               §
 CAROL G. SIMPSON,                                            No. 08-06-00124-CV
                                               §
                       Appellant,                                  Appeal from
                                               §
 v.                                                            168th District Court
                                               §
 STATE OFFICE OF RISK                                       of El Paso County, Texas
 MANAGEMENT,                                   §
                                                                (TC # 2003-4549)
                       Appellee.               §


                                         OPINION

       Carol G. Simpson appeals from a judgment rendered in favor of the State Office of Risk

Management (SORM) on her workers’ compensation claim. We reverse and render.

                                    FACTUAL SUMMARY

       Simpson began working for the Texas Workforce Commission (TWC) in 1987. TWC is the

state agency responsible for handling unemployment claims for the state of Texas. Simpson was

initially employed as an employment interviewer, but in 1998 she transferred to the El Paso

telecenter which is one of six TWC telecenters in Texas. Unemployed persons can call the center

to file an unemployment claim and obtain a determination as to whether they are entitled to

unemployment benefits. In her new job as an adjudicator, Simpson’s duties required her to type on

a computer keyboard for a substantial portion of each work day, ranging from 60 to 95 percent.

Around September 1, 2001, Simpson began experiencing pain in her shoulders, arms, wrists, and

thumbs. Because she had been advised by her employer to report any injury, she filled out a

document entitled, “Employee’s Report of Injury.” Simpson had previously been treated for neck
problems beginning in 1992, and she had been diagnosed with osteoarthritis, osteoarthrosis, and

osteoporosis. In 2002, Simpson developed a trigger thumb. Dr. Robert Bell, a board certified

orthopedic surgeon, performed surgery on October 11, 2002. The surgery relieved the triggering,

but Simpson began to experience pain in the thumb and Dr. Bell diagnosed her with tenosynovitis

on November 6, 2002. He recommended anti-inflammatory medication and a protective splint. One

month later, Simpson had improved. Following an examination on February 5, 2003, Dr. Bell

determined that Simpson had synovitis of the thumb joint and tenosynovitis. He ordered an arthritis

panel to rule out inflammatory arthritis.

       On February 19, 2003, Simpson experienced intense pain in her hand and wrist while typing

on the computer keyboard. She saw Dr. Bell the following day, complaining of pain in the forearm

to the elbow and down to the wrist. The arthritis panel ordered at the previous office visit was

normal. Dr. Bell prescribed a splint and ordered physical therapy. He also recommended that

Simpson get an ergonomic keyboard. That same day, Simpson reported her injury as work-related

and she subsequently filed a claim for worker’s compensation benefits. On April 16, 2003, Simpson

returned to Dr. Bell and he determined that she had work-related tenosynovitis of the hand. He

recommended an ergonomic mouse in addition to the keyboard. On July 16, 2003, Dr. Bell

diagnosed Simpson with carpal tunnel syndrome in addition to tenosynovitis of the hand and wrist.

At this time, Simpson was experiencing mild triggering in her fingers. Dr. Bell stated in one of his

written reports that the carpal tunnel syndrome and trigger fingers had resulted from tenosynovitis

or tendonitis. An EMG/NCV study performed on September 22, 2003 revealed that Simpson had

borderline carpal tunnel syndrome and mild to moderate chronic cubital tunnel syndrome.

Consequently, Dr. Bell determined that he would treat Simpson with anti-inflammatory medication,

a long arm splint and rest with a conservative protocol. He subsequently ordered a work ergonomic
evaluation by an occupational therapist who determined, among other things, that Simpson had

marked instability of the MP joint of both thumbs.

          Following a contested case hearing, the Workers’ Compensation hearing officer determined

that Simpson had suffered a compensable injury with a February 19, 2003 date of injury and that she

timely notified her employer. SORM, which acts as the insurer for the State of Texas, appealed. The

Texas Workers’ Compensation Appeals Panel issued an opinion affirming the decision of the

contested case hearing officer. SORM then appealed to the district court and the case was tried to

a jury. The jury found that SORM had proven by a preponderance of the evidence that Simpson had

not sustained an occupational disease in the form of a repetitive trauma injury in the course and

scope of employment. Accordingly, the trial court reversed the decision of the TWCC Appeals Panel

and rendered judgment in favor of SORM.

                               SUFFICIENCY OF THE EVIDENCE

          In her sole issue for review, Simpson contends that the evidence is legally and factually

insufficient to support the jury’s finding that she did not sustain a compensable repetitive trauma

injury.

                                 Legal Sufficiency Standard of Review

          A “no evidence” or legal insufficiency point is a question of law which challenges the legal

sufficiency of the evidence to support a particular fact finding. Serrano v. Union Planters Bank,

N.A., 162 S.W.3d 576, 579 (Tex.App.--El Paso 2004, pet. denied). There are two separate “no

evidence” claims. Id. When the party having the burden of proof suffers an unfavorable finding,

the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was

established as “a matter of law.” Id. When the party without the burden of proof suffers an

unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” Id.; In
re Estate of Livingston, 999 S.W.2d 874, 879 (Tex.App.--El Paso 1999, no pet.). In this case, SORM

had the burden to prove that Simpson did not have a repetitive trauma injury.

        The Labor Code defines “occupational disease” to mean a disease arising out of and in the

course of employment that causes damage or harm to the physical structure of the body, including

a repetitive trauma injury. TEX .LABOR CODE ANN . § 401.011(34)(Vernon Supp. 2007). The term

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. Id.

“Repetitive trauma injury” means damage or harm to the physical structure of the body occurring

as the result of repetitious, physically traumatic activities that occur over time and arise out of and

in the course and scope of employment. TEX .LABOR CODE ANN . § 401.011(36).

        The charge instructed the jury consistent with these definitions and the jury found that SORM

established by a preponderance of the evidence that Simpson did not sustain an occupational disease

in the form of a repetitive trauma injury in the course and scope of her employment.

        An appellate court will sustain a legal sufficiency or “no-evidence” challenge if the record

shows: (1) the complete absence of a vital fact, (2) the court is barred by rules of law or evidence

from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to

prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite

of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); El Paso Independent

School District v. Pabon, 214 S.W.3d 37, 41 (Tex.App.--El Paso 2006, no pet.). Simpson argues

that there is no evidence that she did not have an injury resulting from repetitious, physically

traumatic activities occurring over time. She specifically takes issue with SORM’s expert witness

who testified that carpal tunnel syndrome does not result from typing because she did not limit her

claim to carpal tunnel syndrome and the jury was not asked to find whether she sustained carpal
tunnel syndrome. We construe these arguments as falling within the first category. Simpson also

asserts that the evidence “overwhelmingly” established she sustained a repetitive trauma injury,

namely, tenosynovitis and tendonitis, as a result of typing on a computer keyboard for the majority

of each work day. This argument falls within the fourth category. In reviewing Simpson’s

sufficiency challenges falling under the first and fourth categories, we are precluded from

automatically disregarding contrary evidence. See City of Keller, 168 S.W.3d at 810-11 (stating that

contrary evidence may not be disregarded in sufficiency reviews under the first, second, and fourth

categories).

       In conducting our review, we consider the evidence in the light most favorable to the verdict

and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822.

Even if evidence is undisputed, it is the province of the trier of fact to draw from it whatever

inferences it wishes so long as more than one inference is possible. Id. at 821. But if the evidence

allows only one inference, neither the trier of fact nor the reviewing court may disregard it. Id. We

are also mindful that the trier of fact is the sole judge of the credibility of the witnesses and the

weight to be given their testimony. Id. at 819. When there is conflicting evidence, it is the province

of the trier of fact to resolve such conflicts. Id. at 820. In every circumstance in which a reasonable

trier of fact could resolve conflicting evidence either way, the reviewing court must presume it did

so in favor of the prevailing party, and disregard the conflicting evidence in its sufficiency review.

Id. at 821. If the evidence at trial would enable reasonable and fair-minded people to differ in their

conclusions, then the trier of fact must be allowed to do so. Id. at 822. So long as the evidence falls

within this zone of reasonable disagreement, we may not substitute our judgment for that of the

trier-of-fact. Id. The ultimate test for legal sufficiency is whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review. Id. at 827.
                                           Legal Sufficiency Analysis

        Simpson’s claim is limited to the problems she has with her hands and wrists resulting from

repetitive typing on a computer keyboard. Dr. Bell determined that she had tenosynovitis1 in her

hands as the result of repetitive typing. The tenosynovial sheath surrounds tendons and makes fluid

for the tendons to glide. Under one theory, repetitive trauma, such as too much typing, leads to

swelling and inflammation of the tenosynovial sheath, which is called tenosynovitis. The swelling

and inflammation of the tenosynovial sheath causes trigger fingers. It can also cause nerve

entrapment at the wrist because it takes up too much space as it enters into the wrist at the carpal

tunnel. Tenosynovitis is a condition which waxes and wanes depending on a person’s level of

activity. The electromyographic study (EMG) and nerve conduction velocity (NCV) testing revealed

that Simpson had mild carpal tunnel syndrome and mild to moderate cubital tunnel syndrome.

        Dr. Bell testified that the medical literature on repetitive strain disorders or cumulative

trauma disorders indicates that repetitious activity, such as typing, can lead to inflammation of the

tendon sheath, which can in turn lead to the separate medical conditions of trigger fingers and carpal

tunnel. Dr. Bell ruled out other causes of Simpson’s problems with her hands and wrists, including

injury to the neck, osteoarthritis, rheumatoid arthritis, gout, lupus, and other arthropathies. During

cross-examination, Dr. Bell testified that there has been an ongoing debate in the medical community

as to whether heavy keyboard activity causes carpal tunnel syndrome. There are studies showing that

it does not, but other studies support the theory that such repetitive activity causes carpal tunnel

syndrome. In Dr. Bell’s experience, he has seen a much higher incidence of carpal tunnel and wrist

and hand pain in patients who perform heavy repetitive activity than in patients who do not engage

in that type of activity.

        1
            According to Dr. Bell, tenosynovitis is sometimes referred to as tendonitis.
        Dr. Martin Roth Steiner, a board certified neurologist, testified as an expert witness on behalf

of SORM. He based his testimony on a review of Simpson’s medical records. He noted that

Simpson had a thirty-year history of aches and pains. He reviewed the record of the EMG/NCV

testing performed in 2003 and found that it was normal. He did not find any documentation of

clinical factors, such as the patient complaining of numbness and tingling in the fingers, decreased

pinprick sensitivity in the fingers, or thenar atrophy, that would permit a diagnosis of carpal tunnel

syndrome. Even assuming that Simpson had carpal tunnel syndrome, it was Dr. Steiner’s opinion

there is no connection between repetitive typing and carpal tunnel syndrome. He based his opinion

on a paper from the Mayo Clinic and another published in the Journal of the American Medical

Association indicating that computer use is not a cause of carpal tunnel syndrome. Dr. Steiner’s

research of online resources did not yield any studies showing a connection between typing and

tendonitis. Carpal tunnel syndrome develops spontaneously in about 5 percent of the population

because of aging or due to obesity, diabetes, or low thyroid function. It is also seen in patients who

have a specific trauma to the wrist and it is sometimes associated with women in the later stages of

pregnancy. Dr. Steiner testified that Dr. Bell did not evaluate other possible causes of Simpson’s

carpal tunnel syndrome, including a thyroid condition. In Dr. Steiner’s opinion, Simpson’s work did

not cause her to sustain an injury, and he attributed her symptoms to the normal aches and pains of

life.

        A portion of Dr. Steiner’s testimony is inconsistent with Simpson’s medical records. First,

Dr. Steiner stated that the EMG/NCV testing was normal. But Dr. Bell and Dr. Michael Boone, who

performed the electrodiagnostic studies, both concluded that the study showed borderline carpal

tunnel syndrome and mild to moderate chronic cubital tunnel syndrome. Second, Dr. Steiner

testified that the medical records did not show that Simpson had decreased pinprick sensation in the
fingers or other signs that would permit a clinical diagnosis of carpal tunnel syndrome. Yet Dr. Bell

reported on different dates following examination of Simpson in 2003 that she had decreased

pinprick sensitivity and positive Phalen’s and Tinel’s signs over the median and ulnar nerves. Third,

Dr. Steiner testified that Dr. Bell did not consider whether there may have been non-work-related

causes for Simpson’s symptoms. But Dr. Bell ruled out several non-work-related causes, including

osteoarthritis, rheumatoid arthritis, other arthropathies, thyroid conditions, diabetes, gout, and lupus.

        Certainly there is conflicting evidence whether Simpson suffered from carpal tunnel

syndrome. Nevertheless, Dr. Steiner testified that even if Simpson had carpal tunnel syndrome

injury, it was not caused by repetitive typing. He based his opinion on studies in medical literature.

If Simpson had limited her claim to carpal tunnel syndrome, we would conclude our legal sufficiency

analysis and find the evidence legally sufficient to support the jury’s finding. Dr. Bell, however,

diagnosed Simpson with tenosynovitis or tendonitis of the hands which is caused by repetitive

typing. This inflammation had caused Simpson to experience triggering in her fingers. Dr. Steiner

did not address whether Simpson had tendonitis or tenosynovitis, or whether it is caused by repetitive

typing. He testified only that he found no references in his online research to studies showing a

connection between tendonitis and typing. He did not affirmatively testify that tendonitis is not

caused by repetitive work activity such as typing. Under these facts, the evidence admitted at trial

does not permit reasonable and fair-minded jurors to reach the verdict under review. Therefore, we

find the evidence legally insufficient to support the jury’s finding that SORM proved by a

preponderance of the evidence that Simpson did not sustain a repetitive trauma injury in the course

and scope of employment. We sustain Simpson’s sole point, reverse the trial court’s judgment, and

render judgment affirming the decision of the TWCC Appeals Panel.
May 22, 2008
                                            ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.
(Carr, J., not participating)
