Opinion issued August 13, 2019




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00430-CV
                           ———————————
                CITY OF FORT WORTH, TEXAS, Appellant
                                        V.
                     PRINT EARL CLARK, SR., Appellee


                   On Appeal from the 236th District Court
                           Tarrant County, Texas
                    Trial Court Case No. 236-279735-15


                         MEMORANDUM OPINION

      This is a workers’ compensation case. Print Earl Clark, Sr. was involved in

an on-the-job vehicle collision while working for the City of Fort Worth. He later

sought medical treatment for back pain with radiculopathy to his lower extremities.
Eventually, he sought lifetime income benefits under a provision for total loss of

use of two extremities, specifically, both feet.

      The Texas Department of Insurance, Division of Workers’ Compensation

denied his claim. Clark sought judicial review, and the case was tried to a Tarrant

County jury. The jury found that Clark met his burden for establishing entitlement

to lifetime income benefits, and the trial court entered a judgment requiring the

City to provide income and medical benefits. The City appeals.

      The City contends the evidence is insufficient to support the jury’s finding.

It further contends that the trial court erred in limiting questioning of Clark about

other jobs he had applied for and excluding certain exhibits related to his job

search. Finally, it contends there was reversible error in the court’s jury charge.

      We affirm.

                                     Background

      Clark was employed by the City of Fort Worth for 17 years as a roofer. In

March 2008, Clark’s work truck was stopped at a stoplight when two nearby

vehicles collided and one of those vehicles struck Clark’s truck. Initially, Clark

told medical professionals he was experiencing pain in his lower back that radiated

down his right leg with numbness and tingling. Over the next year, Clark saw

various medical doctors for testing, treatment, and workers’ compensation

evaluations. In 2009, Clark began seeking treatment from a chiropractor,


                                           2
Dr. Kenneth Ericksen. Clark described how pain limited his ability to engage in

physical activity one year after the collision:

      I was limited to the amount of weight that I could pick up . . . [and] I
      could stand up maybe 10 or 15 minutes at a time, because the longer I
      stand up, the more the radiating down my leg would get until I had to
      sit down, and my back just hurt[] all the time.

Ericksen restricted Clark’s work and other activities due to his injury. Clark

qualified for Workers’ Compensation supplemental income benefits. Clark’s pain

continued. Ericksen continued to restrict his physical activity.

      In April 2009, the Division of Workers’ Compensation referred Clark to a

designated doctor, Dr. Melvyn Bernstein. Bernstein ordered an electrodiagnostic

test and physically examined Clark. Bernstein’s medical conclusion was that Clark

had reached maximum medical improvement (known as “MMI”) as of April 14,

2009 and had a whole-person impairment rating of 25%.

      Clark eventually sought lifetime income benefits, which are paid until the

death of the employee at a rate of 75% of the employee’s average weekly rate. See

TEX. LAB. CODE § 408.161(a), (c). Lifetime income benefits are paid for only

seven specific categories of injuries. Id. § 408.161(a)(1–7). The injury specified in

Clark’s Workers’ Compensation claim was loss of use of both feet at or above the

ankle. See id. § 408.161(a)(2).

      Under the Labor Code, loss of a body part means “the total and permanent

loss of use” of that body part. Id. § 408.161(b). “Total loss of use of a member of

                                           3
the body 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 worker cannot get and keep employment requiring the use of such

member.” Galindo v. Old Republic Ins. Co., 146 S.W.3d 755, 759 (Tex. App.—El

Paso 2004, pet. denied) (emphasis added). Clark relied on the second, alternative

definition.

      In advance of a contested hearing on Clark’s claim for lifetime income

benefits, Clark was required to submit to a “carrier required medical examination”

by an evaluator selected on behalf of his employer. The City of Fort Worth

selected Dr. Donald Mauldin, who examined Clark in February 2015. While

Clark’s chiropractor, Ericksen, had opined that Clark met the criteria for lifetime

income benefits after noting that “extended/prolonged activity causes significant

increase in pain and symptoms which necessitate frequent and extended breaks

which an Employer will not allow,” Mauldin determined that Clark did not.

Mauldin opined that Clark “does not have anywhere near total loss of a lower

extremity.”

      The Division of Workers’ Compensation’s hearing officer held a contested

hearing in April 2015 to decide whether Clark was entitled to lifetime income

benefits “based on a total loss of use of both feet.” The hearing officer determined

that Clark was not. Specifically, the hearing officer determined that Clark had a


                                         4
compensable injury that resulted in physical restrictions but that Clark failed to

meet either criterion for “total loss of use.” Clark failed to prove that he “no longer

possesses any substantial utility of both feet at or above the ankle as a member of

the body” or that “his bilateral lower extremity condition is such that he cannot get

and keep employment requiring the use of both feet at or above the ankle as a

result of the compensable injury.” Clark’s claim for lifetime income benefits was

denied, and Clark sought judicial review through a jury trial.

      The parties entered into various stipulations, which narrowed the scope of

the jury trial. In opening statements, Clark’s attorney explained that the only issue

for the jury to decide was whether Clark sustained a total loss of use of his feet at

or above the ankles, as the term “total loss of use” would be defined for the jury,

such that Clark would be entitled to lifetime income benefits. Clark’s attorney told

the jury that the case would not be about whether Clark had been hurt or whether

he was permanently impaired because “[n]obody disputes that.”

      During the City’s opening statement, the City’s attorney previewed its

evidence and told the jury that Clark’s injury was to his back, not his feet. The

attorney stated that, to the extent Clark had any complaints of pain beyond his

lower back, Clark’s only complaint was of pain radiating into his right leg, not

both. The City’s attorney highlighted that “only one doctor in this case gives the




                                          5
opinion that Mr. Clark has permanently lost the use of both feet at or above the

ankle, and that’s his chiropractor, Dr. Ericksen.”

      The jury received testimony from three witnesses: Clark, Ericksen and

Mauldin. Clark testified in person, while Ericksen and Mauldin testified by

deposition. The jury received a large amount of documentary evidence, including

close to 400 pages of medical records, medical reports, and related physician

materials. Then, the jury was asked to determine whether Clark met the burden for

entitlement to lifetime income benefits on the claim of total loss of use of both feet.

We will summarize the testimony and documentary evidence below before

reviewing the jury’s determination.

      Testimony of Ericksen and Clark

      Excerpts of Ericksen’s deposition testimony were read to the jury. Ericksen

testified that he is familiar with the workers’ compensation criteria because, while

his involvement in this case was as a treating chiropractor, the Division of

Workers’ Compensation has qualified him as a designated doctor, and he has

experience opining on impairment ratings and maximum medical improvement

determinations.

      Ericksen opined that the vehicle collision injured Clark’s cervical and

lumbar spine. The lumbar injury caused radiculopathy into the lower extremities.

He explained that radiculopathy involves nerves traveling to a particular part of the


                                          6
body and not functioning properly, thereby producing sensations of pain,

numbness, tingling, and burning. Ericksen diagnosed Clark with radiculopathy

after examining Clark and noting reduced or absent reflexes in both legs and

atrophy in one leg. Ericksen noted that several medical doctors who had evaluated

Clark and performed testing on him also had diagnosed Clark with radiculopathy.

      Ericksen testified that Clark’s electrodiagnostic study “showed evidence of

impairment to multiple motor nerves in both legs.” The impaired nerves innervated

Clark’s feet. Ericksen testified that Clark experienced radiating pain into his legs

and could not stand or sit for more than a few minutes at a time. According to

Ericksen, Clark must “alternate between standing and sitting for a period, but then

he becomes intolerant to that and has to lay down.”

      Ericksen opined that Clark’s car accident caused Clark to suffer a total loss

of use of both his feet. Clark was unable to get and keep employment requiring the

use of both feet because he was unable to stand or sit for more than a few minutes

at a time and required frequent, intermittent breaks to lie down. In Ericksen’s

professional opinion, he testified Clark was not employable.

      Clark testified in person. He explained how the collision occurred, what his

initial pain symptoms were like, and how that pain evolved over the next year and

continued into trial. He testified that the pain began in his lower back but later

began radiating down his right leg. He began to experience numbness in both feet.


                                         7
He also was sensitive to cold temperatures. By trial, his numbness had worsened so

that both big toes were constantly numb. Clark testified that he could stand only for

15 minutes or so, then he had to sit. But he could not sit for long either.

      In addition to the pain and constant numbness Clark experienced in his feet,

Clark also testified to loss of use of both feet. He testified that his “ankles have

given out” several times, causing him to lose his bodily control and fall. In other

words, his feet at the ankles have failed to function and he has fallen as a result.

      Clark was asked about the medical examination performed by the workers’

compensation designated doctor, Bernstein. Clark testified that he told Bernstein

he had pain radiating into his right leg and numbness in his left foot. When he

participated in a functional capacity evaluation test, Clark could stand for only 18

minutes. After medical testing and evaluation of Clark, Bernstein gave Clark a

whole person impairment rating of 25%. Clark testified that he would not be able

to perform any activity that required him to be on his feet for hours at a time. And

he has never been released to return to work.

      Parties’ stipulations

      After Clark testified, the parties’ stipulations were read to the jury, including

that Clark “sustained a compensable injury” on March 18, 2008, when his work

truck was struck, and that he “reached maximum medical improvement on April




                                           8
14, 2009, with a 25 percent impairment rating as certified by designated doctor,

Melvyn Bernstein.”

      Clark’s medical records

      Clark’s medical records provided evidence of the various doctors’

examinations, diagnoses, and impairment determinations. Bernstein’s medical

report stated that he saw Clark at the request of the Texas Department of Insurance,

Division of Workers’ Compensation for a “designated doctor evaluation.” It noted

findings from a 2009 MRI, including disc protrusions. It also noted findings from a

2009 electrodiagnostic study, including “evidence of impairment to multiple motor

nerves in both legs . . . which is consistent with a diagnosis of a moderately severe

mid to low lumbar central spinal stenosis.”

      Bernstein’s report included his medical opinion that, at the time of the

evaluation in April 2009, Clark was “still symptomatic” and had “reached

Maximum Medical Improvement.” Further, based on “the medical record as

developed and on the entire examination detailed” in the report, Bernstein assigned

Clark a “25% Whole Person Impairment” rating, noting, among other findings:

(1) Lumbosacral spine impairment and spondylosis; (2) DRE lumbosacral category

V: radiculopathy and loss of motion segment integrity; (3) a 4 to 5 mm anterior

displacement of L5 over S1; and (4) “moderately severe impairment to multiple

motor nerves in both legs . . . which supports and correlates with the physical


                                         9
examination which demonstrated decreased deep tendon reflexes in both lower

extremities combined with a bilateral, symmetric motor/strength deficit ranging

from L2 through S1 or lower.”

      The medical records revealed that Dr. Gregory Ward had conducted a

neurosurgical evaluation of Clark in March 2009, at which Clark reported

numbness and tingling in his left foot and leg. Ward recommended a lumbar

laminectomy at L4–L5 and L5–S1.

      An April 2009 EMG report, included in the trial exhibits, stated abnormal

findings, including “bilateral tibial and peroneal motor nerve conduction

velocities” that are “mildly slowed below the knees,” as well as “moderate to

severely prolonged” “long wave studies (F- and H-waves).” Dr. Stoll’s medical

conclusion was that these findings revealed “evidence of impairment to multiple

motor nerves in both legs . . . consistent with a diagnosis of a moderately severe

mid to low lumbar central spinal stenosis.”

      Dr. Carla Michaels evaluated Clark in 2014. According to Michaels’s notes,

Clark reported that his “feet and toes are tingling,” and he “continues to have

numbness in both great toes due to L5 radiculopathy.” Clark described his

“radiating pain” as “burning, dull aching type pain.” Additionally, Clark “has

difficulty performing activities of daily living.”




                                           10
      The City’s motion for directed verdict is denied

      At the conclusion of Clark’s presentation of evidence, the City moved for a

directed verdict, arguing that Clark’s only injury was to his back and he could not

meet the standard for injury to his feet to qualify for lifetime income benefits based

on a total loss of use of both feet. Clark responded that, under Texas law, the

qualifying injury could be direct or indirect, and, because he presented evidence

that an injury to his back caused subsequent damage and indirect injury to his feet,

he had sufficient evidence to preclude a directed verdict. Clark pointed to evidence

that electrodiagnostic testing revealed impairment to multiple motor nerves in both

his legs, as well as noted muscle atrophy and decreased strength in his legs. The

City responded that any leg issues Clark had experienced originated at the site of

injury to his lower back, not an injury to his feet. The trial court denied the City’s

motion for directed verdict.

      Testimony of Mauldin

      The City presented its only witness, Dr. Mauldin, by reading excerpts from

his deposition testimony. Mauldin testified that he previously had a private practice

in the Dallas area that focused on foot and ankle surgical care. In 2014, he closed

his practice and began working exclusively within the workers’ compensation area

in the role of a designated doctor who evaluates workers’ injury and determines

any impairment rating or a medical examiner who evaluates workers and their


                                         11
medical records to prepare reports on behalf of employers from whom the workers

seeks compensation.

      Mauldin was hired by the City to evaluate Clark. He testified that, during his

evaluation, Clark discussed pain in his back and right leg but did not complain of

pain in his left leg. Mauldin stated that Clark had a normal electrodiagnostic test

which, in Mauldin’s medical opinion, “pretty much rules out that there’s any

radiculopathy associated with this injury.” Mauldin reiterated that, during his

physical exam of Clark, Clark’s “left leg never had any symptoms.” Mauldin

subsequently broadened his statement and testified that, on Clark’s last exam,

Clark “didn’t even have any leg pain or any foot pain or any problems. . . . So

there’s—there would be no loss of use of those feet.”

      Clark’s attorney read excerpts from Mauldin’s deposition in which Mauldin

agreed that multiple other doctors who had examined Clark or performed testing

on him during the workers’ compensation proceedings had concluded there was

evidence of symptoms and injury to Clark’s feet. Mauldin agreed that Dr. Mike

Shah noted lumbar radiculopathy, weakness in the left leg, and numbness in the

toes. He agreed that Dr. Mark Morris, Dr. Francisco Batlle, Dr. John Milani, and

Dr. Carla Michaels had all noted lumbar radiculopathy in their medical

assessments of Clark. Mauldin further agreed that another doctor, Dr. Ranil Ninala,




                                        12
who had evaluated Clark and reviewed Clark’s electrodiagnostic testing, concluded

that Clark suffered from radiculopathy.

      Mauldin acknowledged that the workers’ compensation designated doctor,

Dr. Bernstein, had determined Clark had a permanent whole person impairment

rating of 25%, which was based, in part, on an electrodiagnostic study. While

Bernstein had described the study as disclosing evidence of radiculopathy and

“impairment to multiple motor nerves in both legs,” Mauldin maintained that it

was “normal.” Mauldin conceded that a 25% impairment rating is a “high” level of

impairment that is “generally” consistent with a “significant injury.”

      Mauldin acknowledged all these other doctors’ opinions and then testified

that he, nonetheless, holds the opposite opinion. In Mauldin’s opinion, Clark did

not suffer a severe injury; Clark had an “absolutely normal lower extremity exam”;

Clark had no radiculopathy; and Clark had “no loss of use of those feet.” Mauldin

testified that, even though six other doctors had diagnosed radiculopathy and two

doctors who evaluated Clark on behalf of his employer had found permanent

impairment, in Mauldin’s opinion, “there is not any objective evidence that this

individual should not be capable of returning back to full function of whatever he

was doing at the time of the injury based on the injury.”




                                          13
      Charge conference

      At the close of evidence, the court conducted a charge conference. The City

objected to the wording of the single question to be asked of the jury. The City

noted that the pattern jury charge does not discuss injury in terms of being “direct

or indirect” and argued that the question to the jury should not discuss injury in

those terms because it impermissibly comments on the weight of the evidence. The

City also objected to the definition of “total loss of use,” arguing that the phrase

“by reason of such injury” should modify both parts of the definition but, as

written, only modified one part. The trial overruled both objections.

      The court’s charge to the jury

      The jury charge asked a single question after providing the jury four

definitions/instructions. The question was as follows:

      Did PRINT CLARK suffer a direct or indirect injury to both feet at or
      above the ankles as a result of the accident of March 18, 2008, that
      was a producing cause of permanent and total loss of use of both feet
      at or above the ankles beginning on August 29, 2014?

      Answer “Yes” or “No”

The definitions/instructions all related to terms used in the single question. The two

definitions/instructions relevant to this appeal are as follows:

      “Injury” means damage or harm to the physical structure of the body
      and such diseases or infections as naturally result from such damage
      or harm.



                                          14
      “Total loss of use” of a member of the body exists whenever . . . [t]he
      condition of the injured member is such that the worker cannot get
      and keep employment requiring the use of such member.

The jury answered “Yes” to the single question, and the trial court entered a final

judgment requiring the City to pay lifetime income benefits. The City appealed.

                            Sufficiency of the Evidence

      In its first issue, the City contends there is legally and factually insufficient

evidence to support the jury’s verdict because there is insufficient evidence that

Clark suffered damage or harm to the physical structure of both feet or that he lost

the use of both feet at or above the ankle.

A.    Standard of review

      Evidence is legally sufficient if it “would enable reasonable and fair-minded

people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d

802, 827 (Tex. 2005). Evidence is legally insufficient to support a finding only if

(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by

rules of law or 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 conclusively establishes the opposite of the vital fact.

Id. at 810. When reviewing the legal sufficiency of the evidence, we consider the

evidence in the light most favorable to the verdict and indulge every reasonable

inference to support it. Id. at 822. We credit favorable evidence if reasonable jurors


                                          15
could and disregard contrary evidence unless reasonable jurors could not. Id. at

827.

       In a factual sufficiency review, we consider and weigh all the evidence. See

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam). When a party

challenges an adverse finding on an issue on which it did not have the burden of

proof at trial, like here, we conclude there is factually insufficient evidence only if

the evidence supporting the finding is so weak as to make the verdict clearly wrong

and manifestly unjust. See Cain, 709 S.W.2d at 176; Choice! Power, L.P. v.

Feeley, 501 S.W.3d 199, 209 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

       We may not substitute our own judgment for that of the factfinder or pass

upon the credibility of witnesses. Maritime Overseas Corp. v. Ellis, 971 S.W.2d

402, 406–07 (Tex. 1998). The amount of evidence necessary to affirm the

factfinder’s judgment is far less than the amount necessary to reverse. Levco

Constr., Inc. v. Whole Foods Mkt. Rocky Mountain/Sw. L.P., 549 S.W.3d 618, 632

(Tex. App.—Houston [1st Dist.] 2017, no pet.) (citing GTE Mobilnet of S. Tex. v.

Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet.

denied)).

B.     Injury to feet versus injury to other body structures, which then affects
       the feet

       Clark contends he suffered an indirect injury to his feet. The City contends

Clark’s only injury is to his back and what Clark experiences in his feet is simply

                                          16
radicular symptoms. In distinguishing between injury to the feet and injury to other

body structures which then affects the feet, the parties focus on three workers’

compensation cases. These are Insurance Company of the State of Pennsylvania v.

Muro, 347 S.W.3d 268 (Tex. 2011), Dallas National Insurance Company v. De La

Cruz, 470 S.W.3d 56 (Tex. 2015), and Travelers Indemnity Company of

Connecticut v. Thompson, No. 05-16-00816-CV, 2018 WL 524860 (Tex. App.—

Dallas Jan. 24, 2018, pet. denied) (mem. op.). We discuss each in the order they

were decided.

      In Muro, the Texas Supreme Court held that a worker’s loss of use of her

feet did not qualify for lifetime income benefits under Section 408.161 absent

“evidence of an injury to that body part.” 347 S.W.3d at 270. The worker presented

evidence that she injured her hips, lower back, right shoulder, and neck, as well as

evidence that her injuries made it difficult for her to walk. Id. But other evidence

indicated that functioning test results revealed “near normal function” and “normal

sensation” in her feet. Id. at 270–71. While the hip injury impaired the use of her

feet, there was no evidence of injury to the feet themselves. Id. at 270–71, 275–76

(distinguishing facts of Muro’s injury from those detailed in Hartford

Underwriters Insurance Company v. Burdine, 34 S.W.3d 700 (Tex. App.—Fort

Worth 2000, no pet.), in which a worker had presented evidence of a back injury

with radiculopathy that led to “muscular malfunction” and “footdrop,” rendering


                                        17
that worker unable to lift her feet, and concluding that, while the worker in Burdine

presented evidence of indirect injury that had “extended” to the feet themselves,

Muro had not). The Court concluded that Muro was not entitled to lifetime income

benefits because she had not demonstrated an injury to her feet. Id. at 276.

      The Texas Supreme Court decided De La Cruz four years later. There, a

worker injured her back and knee. 470 S.W.3d at 57. After various medical

interventions, she sought lifetime income benefits for total loss of use of both feet.

Id. at 58. The Court reversed judgment in her favor, holding that her evidence of

radiculopathy and “dermatomal loss” due to nerve damage in her back presented

no evidence of damage or harm to the physical structure of her feet. Id. at 59.

There was a single reference in her medical evidence to bilateral absence of ankle

reflexes, but the court held that the evidence could not support a determination that

the worker suffered a total loss of use of both feet because the record did not

“identify whether the condition was transient or permanent in both ankles; whether

it reflected more than damaged nerve roots in [her] back; whether [her] feet were

unable to function properly; or whether the condition was permanent and caused

permanent total loss of use of both feet.” Id. The trial court rendered judgment

denying the worker’s claim for lifetime income benefits because her evidence was

legally insufficient to meet the statutory requirements under Section 408.161. Id.




                                         18
      Three years later, the Dallas Court of Appeals distinguished Muro and De La

Cruz to hold that an injured worker had presented sufficient evidence of “indirect

physical damage and harm to his feet.” Thompson, 2018 WL 524860, at *6

(affirming judgment awarding worker lifetime income benefits). Noting that

evidence of radicular pain in the feet would be insufficient to establish an injury to

the feet, the court noted additional evidence of injury, including evidence that the

worker had “endured swelling, numbness, tingling, foot flare, decreased ankle

reflexes, [and] sensitivity to hot and cold temperatures” in his feet. Id. The court

held that this additional evidence provided legally sufficient evidence of symptoms

of physical damage and harm to the feet.1 Id.

      While the damage may have been indirect and caused by the lengthy

episodes of radiculopathy, that aspect of the injury did not affect eligibility for

lifetime income benefits. See id. (holding that worker presented legally sufficient

evidence that his “radiculopathy caused indirect physical damage and harm to his

feet at or above the ankles . . . to support the jury’s [lifetime income benefits]



1
      Thompson is procedurally similar to this case. The Division of Workers’
      Compensation determined that the worker did not qualify for lifetime income
      benefits, the worker filed a claim in district court, a jury returned a verdict in his
      favor that awarded lifetime income benefits, and the payor appealed. Travelers
      Indem. Co. of Connecticut v. Thompson, No. 05-16-00816-CV, 2018 WL 524860,
      at *1 (Tex. App.—Dallas Jan. 24, 2018, pet. denied) (mem. op.). Where the cases
      differ is that the payor in Thompson challenged only the legal sufficiency of the
      evidence that the worker suffered an injury to his feet, while, here, the City
      challenges both the legal and factual sufficiency of the evidence. See id.
                                            19
award”). The Dallas court affirmed the trial court’s judgment, and the Texas

Supreme Court denied review of that decision. Id.

      Combined, these cases establish that radicular pain is not evidence of an

injury to the feet, themselves; however, radiculopathy can, over time, lead to

indirect injury to the feet, which may be established through evidence of loss of

ankle reflexes, sensitivity to hot and cold temperatures, permanent loss of

functionality of the feet, or other damage to the feet.

C.    Clark’s evidence is legally and factually sufficient

      Medical evidence was admitted for the jury’s consideration. The jury was

presented two opposite interpretations of that medical evidence by the parties’

experts. Clark’s treating provider, Ericksen, testified that Clark had lost the use of

both feet due to injury and met the criteria for lifetime income benefits. The City’s

selected expert, Mauldin, testified that Clark’s feet were not injured, he did not

have radiculopathy, he did not suffer a permanent injury, and he was physically

capable of working. Mauldin did not merely disagree with Ericksen’s ultimate

conclusions in this case; he disputed the existence of any permanent injury.

      Against these two competing medical opinions, the jury received evidence

that several other physicians had diagnosed Clark with an injury to his back and

radiculopathy symptoms into his legs. Some of these physicians noted atrophy in

one of Clark’s legs, numbness in both his feet, and other foot symptoms. Mauldin


                                          20
testified that he disagreed with the medical opinions and diagnoses of all these

physicians. Mauldin also disagreed with these physician’s interpretations of

objective medical tests.

         Mauldin stood alone in concluding that Clark was not permanently injured.

Given Mauldin’s disparate position, it is not unreasonable that, if the jury weighed

the medical evidence and testimony with an eye toward rejecting one view as less

credible, the jury might have found Mauldin’s position to be the less credible. The

determination of witness credibility, including expert witness credibility, is the

jury’s alone to make and will not be second guessed on appeal. See Quiroz ex rel.

Quiroz v. Covenant Health Sys., 234 S.W.3d 74, 84 (Tex. App.—El Paso 2007,

pet. denied) (stating that jury is free to believe or disbelieve all or part of any

witness’s testimony, including expert witnesses, and that, in face of conflicting

expert testimony, appellate court cannot substitute its own judgment for that of

jury).

         Compounding Mauldin’s susceptibility to a negative credibility finding was

his own testimony demonstrating unfamiliarity with the standard for qualifying for

lifetime income benefits due to loss of use of both feet. Mauldin testified that both

subparts of the definition of “total loss of use” had to be met for a worker to

qualify for benefits. In other words, according to Mauldin, a worker had to

experience loss of substantial utility of the feet and not be able to get and keep


                                         21
employment using the feet. Afterward, Mauldin was shown that the standard is

stated in the disjunctive. See Galindo, 146 S.W.3d at 759 (“Total loss of use of a

member of the body 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 worker cannot get and keep employment requiring

the use of such member.”). Mauldin was then asked whether he remembered that it

was a disjunctive test, and he replied, “Okay. If you say so.” At the conclusion of

the exchange, Mauldin stated that his ultimate conclusion remained the same

regardless if the standard was disjunctive or otherwise. A jury reasonably could

have factored this exchange into its credibility determination.

      The evidence was not limited to medical records and competing expert

testimony though. Clark provided direct testimony about his accident, pain, and

resulting physical limitations. Clark testified that his condition worsened over time.

What began as back pain, led to radiculopathy symptoms in his legs and,

eventually, worsened to the point that his ankles would give out, causing him to

fall. Additionally, his feet became sensitive to cold.

      Clark’s testimony went beyond complaints of radicular pain. Cf. Muro, 347

S.W.3d at 270. He detailed permanent symptoms and loss of functionality in his

feet. Cf. De La Cruz, 470 S.W.3d at 59 (concluding that evidence was legally

insufficient to support lifetime income benefits because record did not “identify


                                          22
whether the condition was transient or permanent in both ankles; whether it

reflected more than damaged nerve roots in [her] back; whether [her] feet were

unable to function properly; or whether the condition was permanent and caused

permanent total loss of use of both feet.”). At least two physicians, including the

designated doctor for workers’ compensation benefits, had told him that he had

reached maximum medical improvement years before trial. Clark’s injuries were

permanent: he would not improve. And Clark presented evidence that, at the time

of trial, he had no tendon reflexes in his ankles and had repeatedly fallen because

his ankles had given out. Thus, Clark presented evidence of injury to his feet that

was permanent.

      The injury to Clark’s feet may have been indirect, in that it resulted from

prolonged radiculopathy, but the indirect nature of his injury does not preclude

recovery. See Thompson, 2018 WL 524860, at *6 (holding that worker presented

legally sufficient evidence that his “radiculopathy caused indirect physical damage

and harm to his feet at or above the ankles . . . to support the jury’s [lifetime

income benefits] award”).

      In sum, Clark testified that the integrity of his ankles was so compromised

that he had spontaneously fallen more than once. A jury could have reasonably

determined that having a body part repeatedly fail to function exceeded mere

radiculopathy complaints and satisfied Clark’s burden to present evidence of injury


                                        23
to the body part and total loss of use of that body part. See Dallas Nat’l Ins. Co. v.

Morales, 394 S.W.3d 826, 829–36 (Tex. App.—El Paso 2012, no pet.) (concluding

that there was legally and factually sufficient evidence to sustain judgment that

worker was entitled to lifetime income benefits on evidence worker had “difficulty

walking, bending, stooping, squatting, and has a tendency to fall as his right knee

gives way.”).

      The medical evidence, including the medical records and the testimony of

Ericksen—who the City did not challenge on reliability, methodology, or any other

ground—coupled with Clark’s own testimony about the loss of use of his feet at or

above the ankles met the threshold for factual and legal sufficiency. See Thompson,

2018 WL 524860, at *6 (legal sufficiency); see Morales, 394 S.W.3d at 829–36.

The evidence supporting the jury’s verdict is not so weak as to make its verdict

clearly wrong or manifestly unjust. See Cain, 709 S.W.2d at 176; Choice! Power,

L.P., 501 S.W.3d at 209.

      We overrule the City’s first issue.

                                Excluded Evidence

      Before applying for lifetime income benefits, Clark obtained workers’

compensation benefits under a “supplemental income benefits” plan. According to

the City’s attorney at trial, the supplemental income benefits plan required Clark to

submit job applications to qualify for that type of benefit. Clark did so. The City


                                            24
sought to admit evidence of Clark’s job applications, arguing that the evidence

supported a reasonable determination that Clark believed he was physically able to

work after his injury.

      Clark objected to the job-application evidence, arguing, among other things,

that the standards for supplemental income benefits and lifetime income benefits

were not the same. The sole issue for the jury was whether Clark suffered an injury

to his feet that resulted in loss of use of both feet. Whether Clark turned in job

applications to meet supplemental-income benefit requirements and, as a separate

question, whether Clark believed he would be physically able to do a job in the

event he were hired, Clark argued, would not resolve the issue of whether he had

lost the use of his feet. Moreover, there was evidence that Clark’s condition had

deteriorated since submitting at least some of the job applications, thereby further

diminishing the probative force of the evidence.

      Clark argued the evidence would confuse the issues for the jury and

potentially prejudice Clark to a greater extent than the probative force of the

evidence. See TEX. R. EVID. 403 (providing that trial court may exclude relevant

evidence if its probative value is substantially outweighed by danger of, among

other things, confusion of issues and misleading of jury).

      The trial court sustained the objections for “numerous reasons . . . including,

but not limited to jury confusion, Rule 403.” In three issues, the City contends the


                                         25
trial court erred in excluding evidence of Clark’s job applications from the jury’s

consideration.

A.    Standard of review

      The trial court has broad discretion to determine admissibility of evidence;

as such, a reviewing court will reverse only if there is an abuse of that discretion.

Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001); Perez v. DNT

Glob. Star, L.L.C., 339 S.W.3d 692, 706 (Tex. App.—Houston [1st Dist.] 2011, no

pet.). A trial court abuses its discretion only when it acts in an unreasonable and

arbitrary manner, or when it acts without reference to any guiding principles.

Perez, 339 S.W.3d at 706; Strauss v. Cont’l Airlines, Inc., 67 S.W.3d 428, 449

(Tex. App.—Houston [14th Dist.] 2002, no pet.). We must uphold the trial court’s

evidentiary ruling if there is any legitimate basis for it. Owens–Corning Fiberglas

Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

B.    Trial court did not abuse its discretion

      Outside the presence of the jury, the City conducted a voir dire examination

of Clark focused on his various job applications while seeking supplemental

income benefits. Clark agreed that he was required to apply for jobs to qualify for

that type of benefit. The City posited that it would be “dishonest” to apply for jobs

that an applicant did not believe he could do and asked Clark whether he intended




                                         26
to “waste” the employers’ time by applying for jobs that he did not think he could

physically do or did not have any intention of keeping. Clark responded:

      No. I applied for jobs that were accepting applications . . . whether I
      intended on keeping them or not, . . . it wasn’t never thought. I was
      applying for whoever were taking applications. Those are the people
      that I applied to. . . . My intentions were if they were to call me for an
      interview and . . . if they were to hire me, I would try to do the job. . . .
      And if I couldn’t, I couldn’t . . . those were my intentions. . . . I was
      told that I had to seek employment.

(Emphasis added.) He later added that he “intended to get a job” but whether he

“could keep it or not” was unknown; he “would have found out” once he tried the

work. (Emphasis added.)

      The City acknowledged that Clark had been required to seek employment to

qualify for supplemental income benefits before transitioning to a claim for

lifetime income benefits. Nonetheless, the City sought to present the job-

application evidence to the jury to support an inference that Clark applied for the

jobs because he believed he was physically able to do those jobs. Clark’s voir dire

testimony rejected that inference, explaining that he applied for jobs because he

was required to submit application and that, if he were given a job—which never

occurred—he might not be able to do it: “And if I couldn’t, I couldn’t.”

      This case presented a limited issue to the jury: whether Clark had lost the

use of both his feet at or above the ankles such that he could not get and keep

employment that required the use of his feet. See TEX. LAB. CODE § 408.161(a)(2).


                                           27
Clark’s testimony that he had applied for jobs because he was required to and that

he did not know if he could do the work undercut the inference the City sought to

draw from this job-applications evidence. Evidence of earlier actions taken by

Clark while interacting with the workers’ compensation system under a separate

benefits scheme with a different standard of eligibility had the potential to confuse

the issues before the jury. See Serv. Lloyds Ins. Co. v. Martin, 855 S.W.2d 816,

826 (Tex. App.—Dallas 1993, no writ) (affirming evidentiary ruling to exclude

evidence related to prior workers’ compensation claims, reasoning that, “because

the incidents involve bodily injury and . . . filing of claims, it is likely that the

introduction of this evidence would confuse the issues and might lead the jury into

drawing incorrect inferences about the issues at hand. . . . [Moreover,] these

dangers substantially outweigh the probative value of the evidence.”). The

probative value of the excluded evidence was further diminished when Clark

testified that his physical condition deteriorated between when he had sought

supplemental income benefits and when he later sought lifetime income benefits.

Thus, his ability to do the work when he applied did not mean he could perform the

work at the time of trial.




                                         28
      We conclude the trial court did not abuse its discretion in excluding

evidence related to Clark’s past efforts to apply for jobs while seeking a different

type of workers’ compensation benefit.2

                                    Jury Charge

      The City’s last issue concerns the single question in the court’s charge. The

City argues that the trial court erred by including additional words not found in the

Pattern Jury Charge in that the additional words functioned as a comment on the

weight of the evidence and misled the jury. The City concedes, though, that the

jury charge question provided an accurate statement of the law.

A.    Standard of review

      If a jury charge is legally correct, the trial court has broad discretion

regarding how to submit the issues, including the wording of questions, definitions,

and instructions. Cont’l Cas. Co. v. Baker, 355 S.W.3d 375, 382 (Tex. App.—

Houston [1st Dist.] 2011, no pet.) (op. on reh’g). We therefore review the City’s


2
      The City also argues that the trial court erred by “effectively shutting down the
      City’s cross examination of Mr. Clark.” But the record does not support the City’s
      contention. The City asked Clark a specific question on whether he would be able
      to do a hypothetical job that did not require him to stand for more than 30 minutes
      at a time or walk long distances. Clark objected that the question called for
      speculation, had no foundation, and was improper because Clark “is not a
      vocational expert.” The trial court sustained Clark’s objection. The City did not
      seek to question Clark further on the topic by narrowing its question, providing
      additional facts to its hypothetical, or otherwise addressing the bases for Clark’s
      objection. Instead, the City switched to a different line of questioning. We reject
      the City’s contention that the trial court prevented further cross-examination of
      Clark.
                                          29
challenge to the trial court’s jury charge under an abuse of discretion standard. Tex.

Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (op. on reh’g);

McFarland v. Boisseau, 365 S.W.3d 449, 452 (Tex. App.—Houston [1st Dist.]

2011, no pet.). A trial court abuses its discretion when it acts in an arbitrary or

unreasonable manner, or if it acts without reference to any guiding rules or

principles. E.B., 802 S.W.2d at 649; McFarland, 365 S.W.3d at 452. A trial court

has wide discretion in submitting instructions and jury questions.

B.    Trial court did not abuse its discretion

      Lifetime income benefits for the loss of use of both feet can be based on

either a direct or indirect injury to the feet. See Muro, 347 S.W.3d at 275–76

(discussing facts of Burdine, 34 S.W.3d at 706). The question presented to the jury

allowed for either form of injury:

      Did Print Clark suffer a direct or indirect injury to both feet at or
      above the ankles as a result of the accident of March 18, 2008, that
      was a producing cause of permanent and total loss of use of both feet
      at or above the ankles beginning on August 29, 2014?

The jury question the City proposed and the trial court rejected asked if Clark

suffered “an injury” to both feet. Thus, the claim of error is the inclusion of the

phrase “direct or indirect” to describe the injury. Yet, the City concedes the jury

question provided a correct statement of law.

      We conclude it was neither arbitrary nor unreasonable to include the phrase

“direct or indirect” in the jury question to accurately convey the correct legal

                                         30
standard for recovery. See McFaland, 365 S.W.3d at 452 (stating that trial courts

have wide discretion in submitting jury questions); Dabney v. Wexler-McCoy, Inc.,

953 S.W.2d 533, 536 (Tex. App.—Texarkana 1997, pet. denied) (instruction was

correct statement of law and did not refer to specific facts of case to directly

comment on weight of evidence; therefore, instruction was not error).

      The City argues that the inclusion of the phrase “direct or indirect” required

“further lengthy instructions explaining that radiculopathy and post laminectomy

syndrome do not constitute damage or harm to the physical structure of both feet.”

The City’s argument does not support a conclusion that the trial court abused its

discretion for two reasons.

      First, the City did not request an instruction that radiculopathy would not,

standing alone, qualify as an injury. The City cannot contend on appeal that the

trial court erred in failing to include an instruction it never requested. See Bayer

Corp. v. DX Terminals, Ltd., 214 S.W.3d 586, 602–03 (Tex. App.—Houston [14th

Dist.] 2006, pet. denied); TEX. R. EVID. 278 (“Failure to submit a definition or

instruction shall not be deemed a ground for reversal of the judgment unless a

substantially correct definition or instruction has been requested in writing and

tendered by the party complaining of the judgment.”).

      Second, the definitions that were included in the jury charge informed the

jury that an “injury” meant “damage or harm to the physical structure of the body”


                                        31
and that “total loss of use of a member of the body” meant, in the context of this

case, that the “condition of the injured member is such that the worker cannot get

and keep employment requiring the use of such member.” Combined, these

instructions informed the jury that Clark’s feet must have been damaged or harmed

and it would be insufficient if his back injury caused him to not use his feet. See

Chesser v. LifeCare Mgmt. Servs., L.L.C., 356 S.W.3d 613, 637 (Tex. App.—Fort

Worth 2011, pet. denied) (concluding trial court did not err in refusing additional

instructions given instruction already included in charge adequately informed jury

of theories). To the extent there was any doubt on this issue, the City explicitly told

the jury, without objection, during closing argument, that the injury had to be to

Clark’s feet and that radicular pain was not within the definition of an injury.

      We conclude the trial court did not abuse its discretion in its phrasing of the

jury question.

                                     Conclusion

      We affirm the trial court’s judgment.




                                               Sarah Beth Landau
                                               Justice

Panel consists of Justices Lloyd, Landau, and Countiss.



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