Opinion issued October 31, 2013




                                  In The

                            Court of Appeals
                                  For The

                        First District of Texas
                          ————————————
                           NO. 01-13-00102-CV
                         ———————————
                    SVETLANA B. POPLIN, Appellant
                                    V.
             AMERISURE INSURANCE COMPANY, Appellee


            On Appeal from the County Civil Court at Law No 2
                          Harris County, Texas
                       Trial Court Case No. 907501


                       MEMORANDUM OPINION

     This is a worker’s compensation case. Appellant Svetlana Poplin appeals

from the trial court’s order granting summary judgment in Appellee Amerisure

Insurance Company’s favor. We affirm.
                                BACKGROUND

      Poplin’s husband, James Poplin, worked as an air conditioning technician

for Air Performance Service, Inc. Poplin’s petition alleges that, on June 25, 2006,

James worked on an air-conditioning tower located atop of a six-story building.

After a few hours, he became ill. Paramedics called to the scene diagnosed James

with heat exhaustion and transported him to the hospital while infusing saline to

replace lost fluids.   Within twenty minutes of reaching the hospital, James’s

condition was downgraded to cardiac arrest and he passed away shortly thereafter.

      A. Administrative Proceedings

      Poplin applied for workers’ compensation benefits from Amerisure, Air

Performance’s provider.    Amerisure denied her claim.      After an unsuccessful

mediation, a Benefit Contested Case Hearing was held to “resolve the following

disputed issue: Whether James Poplin sustained a compensable fatal heart attack

on June 25, 2006.”     Both parties were represented by counsel and presented

evidence.   The hearing officer’s report noted that Poplin “presented several

medical articles to support the proposition that physical stress could constitute a

cause of a heart attack,” but “she offered no medical evidence specific to this case

to indicate to what extent Mr. Poplin’s work activities of June 25, 2006 caused or

contributed to his heart attack.” Amerisure “offered the opinions of Drs. Chu and

Podet, who indicated that [James’] work, rather than the natural [progression] of


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his preexisting heart disease, was not a substantial contributing factor in his heart

attack.” The report contained several express findings, including:

      -“James Poplin’s heart attack on June 25, 2006 occurred at a definite
      time and place.”

      -“James Poplin’s heart attack of June 25, 2006 was not triggered
      solely by emotional stress.”

      -“James Poplin’s heart attack of June 25, 2006 was not caused by a
      specific event occurring within the course and scope of his
      employment.”

      -“James Poplin’s work, rather than the natural progression of his
      preexisting heart condition or disease, was not a substantial
      contributing factor of his heart attack of June 25, 2006.”
      The report concluded that James “did not sustain a compensable fatal heart

attack.” Poplin’s claim was accordingly denied. This decision was affirmed by the

Division of Workers’ Compensation Appeals Panel.

      B. Trial Court Proceedings

      In February 2008, Poplin filed suit in county court, seeking review of the

denial of benefits.1 As the party appealing the final administrative decision on the

compensability of an injury, she bore “the burden of proof by a preponderance of

the evidence.” TEX. LABOR CODE ANN § 410.303 (Vernon 2006); Morales v.

Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007). In July 2012, following


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      “A party that has exhausted its administrative remedies . . . and that is aggrieved
      by a final decision . . . may seek judicial review.” TEX. LAB. CODE § 410.251
      (Vernon 2006).

                                           3
expiration of the discovery period, Amerisure moved for traditional and no-

evidence summary judgment.        The trial court granted summary judgment in

Amerisure’s favor without specifying the grounds. It is from that order that Poplin

now appeals.

                           STANDARD OF REVIEW

      An appellate court reviews de novo the trial court’s ruling on a summary

judgment motion. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289

S.W.3d 844, 848 (Tex. 2009); Valence Operating Co. v. Dorsett, 164 S.W.3d 656,

661 (Tex. 2005). When the trial court does not specify the grounds for its grant of

summary judgment, the reviewing court must affirm the summary judgment if any

of the theories presented to the court and preserved for appeal are meritorious. See

Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

When there are multiple grounds for summary judgment and the order does not

specify the ground on which the summary judgment was granted, the appellant

must negate all grounds on appeal. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d

374, 381 (Tex. 1993); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894,

898 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

      Traditional summary judgment is proper only when the movant establishes

that there is no genuine issue of material fact and that the movant is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c). In reviewing a traditional


                                         4
summary judgment, we must indulge every reasonable inference in favor of the

nonmovant, take all evidence favorable to the nonmovant as true, and resolve any

doubts in favor of the nonmovant. Texas Commerce Bank v. Grizzle, 96 S.W.3d

240, 252 (Tex. 2002). A defendant who moves for traditional summary judgment

on the plaintiff’s claims must conclusively disprove at least one element of each of

the plaintiff’s causes of action. Little v. Tex. Dep’t of Criminal Justice, 148 S.W.3d

374, 381 (Tex. 2004).

      A no-evidence motion for summary judgment is essentially a directed

verdict granted before trial, to which we apply a legal sufficiency standard of

review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). In

general, a party seeking a no-evidence summary judgment must assert that no

evidence exists as to one or more of the essential elements of the nonmovant’s

claims on which it would have the burden of proof at trial. Holmstrom v. Lee, 26

S.W.3d 526, 530 (Tex. App.—Austin 2000, no pet.). Once the movant specifies

the elements on which there is no evidence, the burden shifts to the nonmovant to

raise a fact issue on the challenged elements. TEX. R. CIV. P. 166a(i). A no-

evidence summary judgment will be sustained when (1) there is a complete

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

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


                                          5
evidence conclusively establishes the opposite of a vital fact. King Ranch, 118

S.W.3d at 751. We view the evidence in the light most favorable to the nonmovant,

disregarding all contrary evidence and inferences. Id.

      When a summary judgment motion is filed as a hybrid motion based upon

both no-evidence and traditional grounds, we first review the trial court’s judgment

under the no-evidence standard of review. See Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004); All Am. Tel., Inc. v. USLD Commc’ns, Inc., 291

S.W.3d 518, 526 (Tex. App.—Fort Worth 2009, pet. denied). If the movant has

filed a proper no-evidence motion for summary judgment and the non-movant has

failed to produce more than a scintilla of evidence under the standards of Rule

166a(i), there is no need to analyze whether the movant’s summary judgment proof

satisfied the burden set forth for traditional summary judgment under Rule 166a(c).

TEX. R. CIV. P. 166a(c), (i); E. Hill Marine, Inc. v. Rinker Boat Co., 229 S.W.3d

813, 816 (Tex. App.—Fort Worth 2007, pet. denied).

                           COMPENSABLE INJURY

      The Texas Labor Code specifies when a heart attack is considered a

compensable workers’ compensation injury:

      A heart attack is a compensable injury under this subtitle only if:

             (1)   the attack can be identified as:
                   (A)    occurring at a definite time and place; and


                                          6
                   (B) caused by a specific event occurring in the course
                   and scope of the employee’s employment;
             (2) the preponderance of the medical evidence regarding the
             attack indicates that the employee’s work rather than the natural
             progression of a preexisting heart condition or disease was a
             substantial contributing factor of the attack; and
             (3) the attack was not triggered solely by emotional or
             mental stress factors, unless it was precipitated by a sudden
             stimulus.
TEX. LAB. CODE ANN. § 408.008 (Vernon 2006).

A.    Parties’ arguments

      Amerisure’s motion argued that there was no evidence of the following: (1)

“the heart attack occurred at a definite time and place,” (2) “the heart attack was

caused by a specific event occurring in the course and scope of the employee’s

employment,” and (3) “the employee’s work rather than the natural progression of

a preexisting heart condition or disease was a substantial contributing factor of the

attack.” The principle focus of the parties’ arguments in the trial court and here

has been this last factor, i.e., whether work was a “substantial contributing factor”

of James’s heart attack.

      With regard to this element, Poplin’s summary-judgment response asserts

that the “preponderance of the medical evidence regarding the attack indicates that

the employee’s work rather than the natural progression of a preexisting heart

condition or disease was a substantial contributing factor of the attack.” Her

response further argued that no expert testimony was required on this element,

                                         7
because the supreme court has held that no expert testimony is necessary to

“decide the probabilities when the trier of the fact is given evidence of prompt

onset of the [heart] attack following an occurrence competent to affect adversely a

defective heart.” Ins. Co. of N. Am. v. Kneten, 440 S.W.2d 52, 54 (Tex. 1969). She

also cites this Court’s opinion in Tex. Employers Indemnity Co v. Etie, 754 S.W.2d

806, 808 (Tex. App.—Houston [1st Dist.] 1988, no writ) for the proposition that,

“[i]n a workers’ compensation case, expert testimony is generally not required to

prove an issue of probability, if the trier of fact has been given sufficient evidence

showing the prompt onset of symptoms following a specific event.”               Poplin

acknowledges that the autopsy reflects that James had a preexisting heart

condition, but she emphasizes that, after “first showing signs of heat exhaustion,

prompt onset of the heart attack occurred and [he] was dead within the hour.”

      B.     Summary-judgment evidence

      Poplin’s summary-judgment response does not provide citations to any

evidence, but attaches the following: (1) paramedic records from Houston Fire

Department, (2) medical records from Christus St. John’s Hospital, (3) deposition

excerpts of Albert Y. Chu, M.D. (assistant medical examiner), and (4) a letter from

Ethan Podet, M.D. (cardiologist).2


22
      In her summary-judgment response, Poplin objected to Amerisure’s reliance upon
      Chu’s testimony as an expert in the absence of a Robinson hearing. She also filed
      additional medical articles as summary-judgment evidence with her “Final
                                          8
Chu’s deposition excerpts contain the following statements about causation:

       A.     Immediate cause of death is ineffectual pumping of the
heart due to cardiac arrhythmia due to lechemia in his heart from
blockages in his heart, coronary arteries, including the thrombus in his
left anterior descending artery; but possibility also the blockages in his
left circumflex artery, his right coronary artery, and the fact that he
had an old myocardial interception and an enlarged heart from his
long-standing hypertension.
      Q.    So you have no – in your last statement you gave, you
had no opinion on what causes plaque to rupture?
      A.    In his specific case, no I don’t know what the inciting
event or combination of events was.
      Q.     Well, what are some risk factors in plaque rupture, if you
know? If you’ve got atherosclerosis, what are some risk factors that
you want to – for example, you want to avoid so that you don’t have
rupture of the plaque?
      A.      As I mentioned earlier, it’s a multi – it’s thought to be a
multifactorial process. So there are certain intrinsic factors, such as
the anatomy of the plaque itself, the anatomy of the heart, of the blood
vessel itself, the person’s underlying medical condition. So certain
health states lead one to be more likely to have plaque rupture.
      There are extrinsic factors, such as changes to blood pressure or
blood flow; of course, whether or not the person is on drugs, such as
cocaine; environmental factors, like heat; physical exertion. So there
[are] many different potential triggers for plaque rupture. It could be
a combination of those different things.
      Q.     Tell us about heat, how heat could apply in this situation
in causing plaque rupture.




Replication to Plaintiff’s Response on its Motion for Summary Judgment” to
respond to some of the evidence Amerisure filed in support of its traditional
motion for summary judgment. We need not address Poplin’s objections to
Amerisure’s evidence or the evidence Poplin filed in response to Amerisure’s
evidence, as both relate to Amerisure’s traditional motion for summary judgment,
and we resolve this appeal on no-evidence grounds.
                                    9
            A.    Presumably, if someone’s hot and dehydrated, increasing
     the blood via – increasing the blood viscosity, that might cause more
     turbulence in the coronary arteries and lead to plaque rupture.
           Q.     In other words, the thickness of the blood would create
     additional stress on the walls of your arteries and possibility cause
     plaque to rupture, couldn’t it?
           A.      Possibly.
           Q.      Did you consider that in Mr. Poplin’s case?
           A.      I considered whether or not his death might have been
     heat related.
           Q.     Did you see from the Houston Fire Department records
     that he was administered saline IV’s on the way to the hospital
     because of fluid loss?
           A.      Yes.
           Q.    Okay, Did you consider that? Did you think that that
     could have been – or did you consider that as a possible cause of the
     plaque rupture in this case?
           A.      No.
           Q.      But it could have been a cause?
           A.     It could – it’s – I would say it could have been a risk
     factor for plaque rupture. However, as I mentioned earlier, I think
     he already had – his plaque had already ruptured by the time he
     went to work that day.
           Q.      Well, how did he – what makes you say that?
           A.     When I looked at the plaque microscopically, I saw
     evidence of inflammatory reaction to that thrombus.
           Q.      Where is that written here in your records?
           A.     It’s not in – it’s not in my report. I reviewed the slides
     this morning in preparing for this deposition.

(emphasis added)




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      Podet’s letter stated that he had “reviewed the statements of Dr. Chu and

Dana Andrews, the ER and EMT notes of 6-25-06, the autopsy of 6-27-06, and the

medical records” and concluded the following with regard to causation:

             I agree with Dr. Albert Y. Chu, the assistant medical examiner,
      that the underlying cause of death was atherosclerotic cardiovascular
      disease and that the immediate cause was probably the LAD
      thrombus. The question has been raised as to whether Mr. Poplin’s
      strenuous work caused the heart attack, and cardiac arrest. Studies of
      physical exertion as a trigger of sudden death reveal that vigorous
      exertion multiplies the risk of sudden death 17-fold, compared to rest,
      but that the risk of sudden death for a specific episode of exertion is
      very low, at one excess death per 1.4 million episodes of exertion.
      (Albert CM. et al. Triggering of Sudden Death from Cardiac Causes
      By Vigorous Exertion. New Engl J Med 2000; 343:1355-61.)
            Given these statistical considerations, the nature of his death,
      and the chronic and acute cardiac disease found at autopsy, the cause
      of Mr. Poplin’s death was the natural progression of his underlying
      cardiac disease, rather than a specific episode of exertion during the
      course of his work.

(emphasis added).

C.    Analysis

      The question we must resolve is whether the evidence Poplin proffered is

some “medical evidence . . . indicat[ing] that the employee’s work rather than the

natural progression of a preexisting heart condition or disease was a substantial

contributing factor of the attack.” TEX. LAB. CODE ANN. § 408.008(2). Poplin

relies on the supreme court’s opinion in Kneten, a case holding that medical expert

testimony was not necessary to establish an electric shock at work was a cause of a

heart attack.
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      In the present case the fact finder had direct evidence of the
      occurrence on the job when the employee, while wet with sweat in the
      heat and effort of his work, was shocked throughout his body with an
      electrical current. The fact finder was told of the prompt onset of
      symptoms with the employee feeling bad within a few minutes and his
      distress progressing until he was in a critical state in the hospital
      within a few hours. The doctor testified that this distress was due to a
      heart attack and that the heart is still impaired. Further, the doctor
      testified that what happened on the job could precipitate a heart attack.
      With those facts given, it was not conjecture on the part of the jury to
      conclude that the occurrence on the job was probably a cause of the
      attack and resulting disability.
      Since the question is what precipitated this attack at this time, it
      requires no expert to decide the probabilities when the trier of fact is
      given evidence of prompt onset of the attack following an occurrence
      competent to affect adversely a defective heart. As in all of those
      cases where a back injury promptly follows a lifting strain, or a
      ruptured blood vessel or heart attack promptly follows exertion,
      though there is not definite proof of the mechanical process by which
      the physical structure of the body is damaged, under the
      circumstances it is reasonable to believe that what the employee did
      on the job precipitated physical failure. The courts have often allowed
      this finding and permitted recovery under the Texas Workmen’s
      Compensation Law.
440 S.W.2d at 53–54 (citations omitted).

      According to Poplin, Chu’s statement that dehydration “might cause more

turbulence in the coronary arteries and lead to plaque rupture” combined with

Kneten’s recognition that a fact finder can—without an expert—conclude that an

occurrence preceding a heart attack “was probably a cause of the attack,” id.,

satisfies section 408.008(2)’s requirement that “the preponderance of the medical

evidence regarding the attack indicates that the employee’s work rather than the



                                         12
natural progression of a preexisting heart condition or disease was a substantial

contributing factor of the attack.” We disagree.

      Preliminarily, we note that Kneten—decided in 1969—predates the current,

applicable statutory standard for determining when a heart attack is a compensable

injury under the worker’s compensation laws.        As the San Antonio Court of

Appeals has explained, “[p]rior to 1989, there was no specific statute dealing with

the compensability of heart attacks.” Transcon. Ins. Co. v. Smith, 135 S.W.3d 831,

836 (Tex. App.—San Antonio 2004, no pet.). “The case law that developed before

1989 focused on the issue of whether an employee’s strenuous work activities

caused the heart attack even though the employee had a pre-existing heart

condition.” Id. “[C]ourts only required that the job-related strain be at least a

contributing cause of the heart attack.”     Id.   “Therefore, if the work incited,

accelerated, or aggravated the claimant’s underlying heart condition, it was a

sufficient cause of the resulting heart attack for the purposes of recovering

workers’ compensation benefits.” Id. In contrast, the current statute requires “the

employee’s work rather than the natural progression of a preexisting heart

condition or disease [be] a substantial contributing factor of the attack.” TEX.

LABOR CODE ANN. § 408.008(2) (emphasis added).

      “Additionally, before 1989, medical testimony was not required on whether

an occurrence caused a heart attack.” Transcontinental Ins. Co., 135 S.W.2d at


                                        13
836. Now the Labor Code requires us look to the “the preponderance of the

medical evidence regarding the attack” in determining whether the employee’s

work was a substantial contributing factor. TEX. LABOR CODE ANN. § 408.008(2)

(emphasis added).

      For these same reasons, the Fourteenth Court of Appeals has questioned

Kneten’s continued viability in the worker’s compensation context. See Choice v.

Gibbs, 222 S.W.3d 832, 837 n.5 (Tex. App.—Houston [14th Dist.] 2007, no pet.)

(“In workers’ compensation cases, a question might arise regarding the extent to

which the Kneten opinion has survived the enactment of this statute.”).

      By the plain language of the statute, to survive Amerisure’s no-evidence

motion for summary judgment, Poplin was required to proffer in response

“medical evidence regarding the attack indicat[ing] that the employee’s work

rather than the natural progression of a pre-existing heart condition or disease was

a substantial contributing factor.” TEX. LAB. CODE § 408.008(2). We have found

this standard satisfied by expert physician testimony that (1) “higher-than-normal

activity can increase the risk for a heart attack,” (2) the day before an employee’s

heart attack, he engaged in physical activity that was “significantly higher” than

usual, (4) “from a cardiac perspective, [the employee] had been stable up until” the

strenuous work activity, (4) the employee suffered plaque rupture, causing his

heart attack and death, and (5) “it was [the employee’s] activity [at work] that


                                        14
caused the rupture.” New Hampshire Ins. Co. v. Allison, No. 01-12-00505-CV, __

S.W.3d __, 2013 WL 3947822, at *4, 9 (Tex. App.—Houston [1st Dist.] Aug. 1,

2013, no pet. h.).

      Poplin’s evidence falls short of what we have previously held sufficient

under section 408.008(2). Her summary-judgment evidence here consists of: (1)

medical records reflecting that James suffered dehydration at work, (2) medical

records reflecting that shortly after suffering dehydration, James had a heart attack,

(3) Chu’s deposition testimony that heat and dehydration can “possibly” cause

plaque to rupture, (4) Chu’s deposition testimony that he did not consider heat or

fluid loss to be a possible cause of James’s plaque rupture because “his plaque had

already ruptured by the time he went to work that day,” and (5) Podet’s opinion

that “the cause of [James’s] death was the natural progression of his underlying

cardiac disease, rather than a specific episode of exertion during the course of his

work.” Because Poplin did not proffer evidence that James’s “work rather than the

natural progression of a pre-existing heart condition or disease was a substantial

contributing factor” his heart attack, the trial court did not err in granting

Amerisure’s no-evidence motion for summary judgment.




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                                CONCLUSION

      We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.




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