                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00147-CV


CHARTER OAK FIRE INSURANCE                                          APPELLANT
COMPANY

                                       V.

GENE SWANIGAN                                                        APPELLEE


                                    ----------

          FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY

                                    ----------

                        MEMORANDUM OPINION1
                                    ----------

                                I. INTRODUCTION

      This is an appeal from a judgment for Appellee Gene Swanigan on his

workers’ compensation claim. Appellant Charter Oak Fire Insurance Company

argues in a single issue that the judgment—which ordered Charter Oak to pay

benefits in accordance with the jury’s finding by a preponderance of the evidence


      1
       See Tex. R. App. P. 47.4.
that Swanigan’s injury of May 18, 2006, was a producing cause of his reflex

sympathetic dystrophy (RSD)/complex regional pain syndrome (CRPS)—is not

supported by the evidence. We will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

                              A. Factual Background

      In 2001, Swanigan was working on a barbeque pit at his home, and the lid

shut on his right pinkie finger. He went to the emergency room and later to a

specialist who performed surgery to put hardware in to correct his fracture.

Swanigan did not have any problems following the surgery and was later hired by

CarMax to perform auto reconditioning. He was able to lift 110- to 120-pound

transmissions without pain.

      Approximately five years after his initial injury, on May 18, 2006, Swanigan

injured the same right pinkie finger when he turned to grab a wrench as he was

working on an SUV; his finger got caught between the strut, CV axle, and

spindle.   Swanigan immediately knew that his finger was injured and went

straight to management to file a report. Swanigan developed swelling and a

large knot from the clear part of his fingernail to his knuckle. Swanigan also

experienced “stabbing, aching pain” that radiated up his arm.

      Swanigan tried to work the week after his injury, but the pain forced him to

leave and to go to CareNow for treatment. Swanigan was given a baseball finger

splint, but it did not alleviate the pain. Swanigan said that it hurt him to move his

right pinkie finger. Swanigan went to CareNow weekly after the injury, and the


                                         2
doctor told him that he had a contusion. Swanigan also underwent therapy for

the injury at HealthSouth. Swanigan stated that “the pain just -- it’s something

that never goes away.” Swanigan said that he was getting “a little worse” and

asked to see a specialist. He was referred to Dr. Luiz Toledo.

      In September 2006, Dr. Toledo removed from Swanigan’s finger the

hardware that had been inserted years earlier after the incident with the

barbecue pit lid. The surgery did not relieve Swanigan’s pain.

      Dr. Toledo performed a second surgery on January 24, 2007, and

removed scar tissue (a neuroma) that was compressing a nerve in Swanigan’s

right pinkie finger. Swanigan said that the procedure went “okay,” but he still

experienced pain. Swanigan stated that his pain level had consisted of “a lot of

10s” and that he had asked Dr. Toledo to take the tip of his right pinkie finger off.

Dr. Toledo said that there was no need for that and also told Swanigan that he

had done all he could for him.

      In July 2007, Swanigan started seeing Dr. David B. Graybill, an

anesthesiologist at North Texas Pain Recovery, for help dealing with the pain.

Dr. Graybill’s notes state that Swanigan presented with complaints of pain in the

right upper extremity following a work-related injury dated May 18, 2006. The

notes also state that Swanigan had “complaints of pain in his little finger with

altered sensation, but also complaints of pain radiating up his arm and loss of

use of his arm secondary to his pain.” Swanigan described the feeling in his arm

as a “burning. . . . real hard, high powered” pain that was like someone “had


                                         3
plugged a[n] electric -- a 110 cord in the socket and felt like I had the naked end

on my arm.” Swanigan said that the burning sensation felt like a hot ice pack

was stuck under his armpit all the time and that the sensation radiated up the

side of his head, making him feel like he had a football helmet on or had “been hit

with a few blows upside the head.” Swanigan testified that the medication he

had been prescribed “do all right but it don’t do the best” and that he did not like

the side effects, which included not being able to concentrate, being edgy, and

not being able to sleep.

      After Dr. Graybill’s examination, he noted that Swanigan’s

      [r]ight upper extremity reveals cool, clammy hand and forearm. He
      has altered sensation to light touch of the right finger with some
      allodynia noted in the right forearm and hyperalgesia. He has
      diminished grip strength, but he is able to fully bend his PIP joint of
      his little finger. He has no motion in the DIP joint of his little finger.

Swanigan stated that the summary above was true at the time of Dr. Graybill’s

examination because he could move his finger at the time. By the time of trial,

however, he could not bend his finger at all because it had gotten worse.

      Dr. Graybill’s notes further stated, “Impression: Status post crush injury to

the right hand.   Chronic pain syndrome secondary to Chronic Regional Pain

Syndrome, Type Two.” Dr. Graybill concluded that Swanigan would benefit from

sympathetic nerve blocks, and Swanigan had four such procedures over a

month-long period.2 Swanigan said that the sympathetic nerve blocks relieved


      2
       Swanigan explained that the procedures were “more or less like a major
surgery.” He was placed in a small operating room, was administered oxygen,

                                          4
the pain for a short while but did not provide long-term relief. When the pain

returned, it was worse. Swanigan was treated by Dr. Graybill for approximately

five months.    Dr. Graybill prescribed a compression glove for Swanigan.

Swanigan said that the glove holds in heat and helps cushion his hand if it gets

bumped.

      Dr. Graybill referred Swanigan to Dr. Charles E. Willis, II, an

anesthesiologist, and Swanigan went to see him on March 14, 2008. Dr. Willis’s

notes were admitted into evidence. Dr. Willis had noted,

      Dr. Graybill has done stellate ganglion blocks which have helped
      [Swanigan] 100 percent for two days. The pain now is about a 6 and
      a half out of 10 on a visual scale with numbness and tingling in the
      right upper extremity. Pain is associated with changes in his hair
      and nail growth. The nails grow very thin and there is also increased
      perforation and burning in the right upper extremity as well as
      changes with the weather.

Swanigan testified that the nail on his right pinkie finger was growing deformed;

was “real, real thin”; and was outgrowing the other nails. Dr. Willis further noted

that Swanigan’s pain was worse in the morning than at night and limited his

ability to work, exercise, have fun, and have sex and that his pain increased with

prolonged driving; Swanigan’s pain decreased with lying down and medication.

Dr. Willis determined from his assessment that Swanigan had RSD, which is

another term for CRPS, of the right upper extremity. Dr. Willis concurred with Dr.




and was monitored with electrical sensors while he was put to sleep. During the
procedure, he received injections in his neck.


                                        5
Graybill that stellate ganglion blocks had been effective and were warranted in

Swanigan’s case.

      Swanigan saw Dr. Martin D. Solomon, a neurologist, on September 22,

2008. Dr. Solomon’s progress note, which was admitted into evidence, states

that Swanigan had received nerve blocks and that his hand was discolored;3

Swanigan explained that sometimes his hand was a dull color and that

sometimes it was a shiny color.        Dr. Solomon concluded that Swanigan’s

symptoms were consistent with CRPS.

      Dr. Mark A. Dirnberger, a pain management doctor, was treating Swanigan

monthly at the time of the trial.        Dr. Dirnberger prescribed Lyrica and

hydrocodone for the pain. Dr. Dirnberger and Swanigan discussed a possible

referral to have a spinal stimulator surgically implanted to treat his RSD/CRPS.

Dr. Dirnberger’s notes, which were admitted into evidence, state that he is going

to assume Swanigan’s pain management duties but that the remainder of

Swanigan’s other issues need to be managed by other physicians.

      Swanigan testified that his pain affected his ability to live his life, even at

the time of trial. He said that the chronic pain caused him to become easily

irritated and to “snap.” Swanigan said that the pain had affected his ability to




      3
       The progress note is dated September 22, 2008, but at the bottom it
states that it was dictated “08/08/08.” Swanigan testified that he saw Dr.
Solomon on September 22, 2008, and therefore we use that date.


                                         6
father his children, including being unable to teach his daughter to drive and

unable to play ball with his son.

      At the time of the trial, Swanigan’s pain was a six and a half on a scale of

ten, and he was taking Ambien to sleep because the pain interfered with his

ability to sleep. The pain in his dominant hand also affected his ability to grip and

grasp. Swanigan said that he could write but that his handwriting was “awful”

because his hand and whole arm twitched.

                            B. Procedural Background

      Charter Oak accepted the crush injury to Swanigan’s right pinkie finger as

part of his compensable injury, accepted the surgery to remove the previously

inserted hardware from Swanigan’s right pinkie finger as part of his compensable

injury, and accepted the surgery to remove the neuroma from Swanigan’s right

pinkie finger as part of his compensable injury.      Following a contested case

hearing on the issue of whether Swanigan’s compensable injury extended to and

included RSD/CRPS, the Division of Workers’ Compensation (DWC) hearing

officer issued a decision that the compensable injury sustained by Swanigan did

not extend to and include RSD/CRPS.

      Swanigan appealed the hearing officer’s decision.         The DWC Appeals

Panel adopted the hearing officer’s decision and order.

      Swanigan then appealed the DWC Appeals Panel’s decision by filing suit

in district court. After a two-day trial, the sole question presented to the jury in

the court’s charge asked:


                                         7
            Do you find from a preponderance of the evidence that Gene
      Swanigan’s injury of May 18, 2006 was a producing cause of Gene
      Swanigan’s reflex sympathetic dystrophy (RSD)/complex regional
      pain syndrome (CRPS)?

           You are instructed that the Appeals Panel of the Texas
      Workers Compensation Commission (TWCC) affirmed the
      Contested Case Hearing officer’s determination that Gene
      Swanigan’s compensable injury did not extend to and include reflex
      sympathetic dystrophy (RSD)/complex regional pain syndrome
      (CRPS).

             You are further instructed that you are not bound by the
      decisions of the Appeals Panel or the Contested Case Hearing
      officer. However you may consider their decisions as evidence and
      accord them such weight, if any, as you may choose.

             Answer Yes or No.
                      4
      Answer: YES

Swanigan moved for judgment on the verdict, and the trial court ordered Charter

Oak to pay benefits in accordance with the jury’s verdict. Charter Oak now

appeals. Charter Oak raises one issue on appeal, challenging various aspects of

the legal and factual sufficiency of the evidence to support the jury’s verdict.




      4
       Swanigan objected to the charge, stating:

             I think that the question should reflect the issue as adopted by
      the CCH administrative judge, which includes did the injury extend to
      [and] include the CRPS and RSD. I think the extend to and include
      need to be included as part of it.

The trial court overruled Swanigan’s objection and submitted the above question.
Charter Oak lodged no objections to the charge.


                                          8
                III. CHARTER OAK’S FACTUAL SUFFICIENCY CHALLENGES

      To the extent that Charter Oak’s sole issue mounts challenges to various

aspects of the factual sufficiency of the evidence, we hold that Charter Oak did

not preserve any factual sufficiency complaints for our review. See Tex. R. Civ.

P. 324(b)(2) (requiring a motion for new trial be filed to preserve a complaint of

factual sufficiency to support a jury finding); Cecil v. Smith, 804 S.W.2d 509,

510–11 (Tex. 1991) (recognizing motion for new trial raising factual sufficiency

complaint is necessary to preserve that alleged error); In re C.E.M., 64 S.W.3d

425, 427 (Tex. App.––Houston [1st Dist.] 2000, no pet.) (“There is only one way

to preserve a factual sufficiency challenge: include the complaint in a motion for

new trial.”).   Charter Oak did not file a motion for new trial; thus, its factual

sufficiency complaints are not preserved for our review. See Tex. R. Civ. P.

324(b)(2); Cecil, 804 S.W.2d at 510–11; C.E.M., 64 S.W.3d at 427. We overrule

the portions of Charter Oak’s sole issue that challenge the factual sufficiency of

the evidence.

                IV. CHARTER OAK’S LEGAL SUFFICIENCY CHALLENGES

                                 A. Standard of Review

      We may sustain a legal sufficiency challenge only when (1) the record

discloses 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

mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital


                                         9
fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

      Anything more than a scintilla of evidence is legally sufficient to support a

jury finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex.

1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). More than a scintilla

of evidence exists if the evidence furnishes some reasonable basis for differing

conclusions by reasonable minds about the existence of a vital fact. Rocor Int’l,

Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 77 S.W.3d 253, 262 (Tex.

2002). When the evidence offered to prove a vital fact is so weak as to do no

more than create a mere surmise or suspicion of its existence, the evidence is no

more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem,

Inc., 650 S.W.2d 61, 63 (Tex. 1983).

          B. Disposition of Charter Oak’s Subissues 1, 3, 4, and 5

      As to the legal sufficiency challenges raised by Charter Oak in its sole

issue, Charter Oak argues that legally insufficient evidence exists to “establish


                                        10
that Mr. Swanigan suffered from complex regional pain syndrome and that his

compensable injury was a producing cause of that condition.” Within its sole

issue, Charter Oak raises five subissues, arguing (1) that expert opinion

testimony was required, (2) Swanigan’s expert testimony was conclusory, (3)

Swanigan’s expert opinion testimony contained an analytical gap, (4) Swanigan’s

expert opinion testimony failed to exclude other possible causes, and (5)

Swanigan’s other medical reports were insufficient to establish causation. We

address these subissues as well as Charter Oak’s two overarching legal

sufficiency challenges.

      In subissue one, Charter Oak argues that expert testimony is required to

support a diagnosis of CRPS. Case law supports Charter Oak’s argument, see

City of Laredo v. Garza, 293 S.W.3d 625, 632 (Tex. App.—San Antonio 2009, no

pet.) (stating that laypersons do not have the common knowledge and

experience to adequately evaluate the cause of CRPS), and, as set forth below,

Swanigan provided expert testimony concerning his diagnosis of CRPS through

Dr. Graybill’s testimony and through the medical records of Dr. Graybill, Dr.

Toledo, Dr. Willis, and Dr. Solomon. We overrule Charter Oak’s first subissue.

      Concerning subissue three, Charter Oak did not object to the expert

opinion testimony presented by Dr. Graybill; thus, on appeal Charter Oak may

challenge only whether Dr. Graybill’s testimony was conclusory and therefore

constituted no evidence. See City of San Antonio v. Pollock, 284 S.W.3d 809,

817 (Tex. 2009) (explaining that an objection is required to preserve an appellate


                                       11
challenge to an expert’s reliability, methodology, technique, or the foundational

data used by the expert); Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,

136 S.W.3d 227, 234 (Tex. 2004) (holding that an objection to expert testimony is

not required to preserve a no-evidence challenge to conclusory expert

testimony); In re Conley, No. 09-10-00383-CV, 2011 WL 4537938, at *5 (Tex.

App.—Beaumont Sept. 29, 2011, no pet.) (mem. op.) (holding that reliability

challenge regarding an analytical gap was not preserved for appellate review in

the absence of an objection).      Because Charter Oak did not object to Dr.

Graybill’s testimony, we hold that Charter Oak’s analytical-gap complaint

concerning Dr. Graybill’s testimony is not preserved for our review. We overrule

Charter Oak’s third subissue.

      Concerning Charter Oak’s fourth subissue––its contention that Swanigan’s

expert opinion testimony is insufficient because it failed to exclude other possible

causes––Charter Oak points to and we have located no evidence in the record of

another cause for Swanigan’s RSD/CRPS. A medical causation expert need not

“disprov[e] or discredit[] every possible cause other than the one espoused by

him.” Viterbo v. Dow Chem. Co., 826 F.2d 420, 424 (5th Cir. 1987). When

evidence of other plausible causes of the injury or condition is admitted, and that

evidence could be negated, then the proponent of expert causation testimony

should offer evidence negating the other plausible causes. See Merrell Dow

Pharm., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997). But here, no evidence




                                        12
was admitted of other plausible causes of Swanigan’s RSD/CRPS.5 Moreover,

the jury question required the jury to find only that Swanigan’s May 18 injury was

a producing cause of his RSD/CRPS, and the jury was specifically instructed that

“[t]here may be more than one producing cause.” Thus, in this case, based on

the record before us and the charge given, the jury was not required to find that

all other possible causes of Swanigan’s RSD/CRPS had been excluded, and

Swanigan’s expert was not required to give testimony excluding all other possible

causes for his RSD/CRPS. We overrule Charter Oak’s fourth subissue.

      In its fifth subissue, Charter Oak complains that Swanigan’s other medical

reports were insufficient to establish causation. No requirement exists, however,

that Swanigan’s other medical records independently establish causation.

Moreover, Charter Oak did not object to the admission of the medical

records/reports of Dr. Graybill, Dr. Toledo, Dr. Willis, or Dr. Solomon. These

unobjected-to medical records support Dr. Graybill’s expert causation testimony.

We overrule Charter Oak’s fifth subissue. See generally State Office of Risk

Mgmt. v. Escalante, 162 S.W.3d 619, 625 (Tex. App.—El Paso 2005, pet.

dism’d) (holding evidence, which consisted of claimant’s testimony and medical

records of treating physician, legally sufficient to support jury’s findings on


      5
        To the extent that Swanigan’s prior injury to his right pinkie finger could be
considered an “other possible cause,” Swanigan did refute this via his testimony
that his right pinkie finger was fine after the barbeque pit injury and that he could
lift 110- to 120-pound transmissions without pain at Carmax prior to the May 18
injury.


                                         13
compensable injuries sustained by Appellee to his lumbar and spine and in the

form of cervical root lesions).

             C. Charter Oak Waived its Legal Sufficiency Complaint
         Concerning the Evidence that Swanigan Suffered from RSD/CRPS
                        by Failing to Object to the Charge.

      In its sole issue, Charter Oak asserts two overarching legal sufficiency

challenges:    first, that the evidence is legally insufficient to establish that

Swanigan suffered from complex regional pain syndrome; and second, that the

evidence is legally insufficient to establish that Swanigan’s compensable injury

was a producing cause of that condition.       Concerning Charter Oak’s legal

sufficiency challenge to the evidence that Swanigan suffered from RSD/CRPS,

we note that, as set forth above, the only question submitted to the jury in the

court’s charge was

      Do you find from a preponderance of the evidence that Gene
      Swanigan’s injury of May 18, 2006 was a producing cause of Gene
      Swanigan’s reflex sympathetic dystrophy (RSD)/complex regional
      pain syndrome (CRPS)?

Swanigan points out in his brief that this question assumes that Swanigan suffers

from RSD/CRPS.

      A jury question is objectionable if it assumes the existence of disputed

facts. See, e.g., UMLIC VP LLC v. T & M Sales & Envtl. Sys., Inc., 176 S.W.3d

595, 608 (Tex. App.—Corpus Christi 2005, pet. denied) (“A submission to the

jury is objectionable if it assumes a disputed fact in issue”). Typically, a jury

question that assumes a disputed fact may be fixed upon objection by inserting



                                       14
the phrase “if any” or by conditioning language at the beginning of the jury

question. But Charter Oak did not assert any objection to the jury question here.

      Because Charter Oak did not object to the charge, we are required to

analyze its challenge to the legal sufficiency of the evidence in light of the charge

given without objection. See, e.g., Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d

711, 715 (Tex. 2001) (explaining that Wal-Mart’s no-evidence challenge “must be

made in light of the jury charge that the district court gave without objection”).

And the charge actually given here—which asks only whether Swanigan’s injury

of May 18 was a producing cause of his RSD/CRPS—assumes Swanigan suffers

from RSD/CRPS.       The jury was not asked whether Swanigan suffered from

RSD/CRPS; the jury was told that he did and asked only whether the May 18

injury was a producing cause of the RSD/CRPS.

      Because the charge told the jury that Swanigan suffered from RSD/CRPS,

and because Charter Oak did not object to the charge, we hold that Charter Oak

has waived its legal sufficiency challenge to the evidence on whether Swanigan

suffered from RSD/CRPS.        We overrule Charter Oak’s sole issue, including

subissue two, to the extent that it challenges the legal sufficiency of the evidence

to establish that Swanigan suffered from RSD/CRPS.6



      6
       Below we nonetheless alternatively examine the legal sufficiency of the
evidence to establish that Swanigan suffers from RSD/CRPS and conclude that
legally sufficient evidence exists to establish that Swanigan suffers from
RSD/CRPS.


                                         15
 D. Alternatively, Legally Sufficient Evidence Exists that Swanigan Suffers
   From RSD/CRPS, and Legally Sufficient Evidence Supports the Jury’s
 Finding that Swanigan’s Injury was a Producing Cause of his RSD/CRPS

      We next address Charter Oak’s contention, raised in its sole issue and its

second subissue, that the evidence is legally insufficient to establish that

Swanigan’s May 18 injury was a producing cause of his RSD/CRPS.

      We first set forth the expert opinion testimony heard by the jury.

                             1. Expert Opinion Testimony

      Three experts testified: Dr. Graybill for Swanigan and Dr. Mitchell and Dr.

Chandrakar for Charter Oak.

                          a. Dr. David Bruce Graybill

      Dr. Graybill is an anesthesiologist with a subspecialty in pain management.

He has practiced medicine for over twenty-seven years and estimated that he

had treated five to twenty patients per year with CRPS.

      When Swanigan first saw Dr. Graybill on July 25, 2007, Swanigan’s right

upper extremity was cool, his hand and forearm were clammy, he had altered

sensation to light touch of his right pinkie finger with some unusual pain

sensations in his right forearm, he had weakened grip strength, and he was

unable to bend the middle joint of his right pinkie finger. Dr. Graybill’s diagnosis




                                        16
was “[h]ealed crush injury to right hand, chronic pain syndrome with Chronic

Regional Pain Syndrome Type II or causalgia.”7

      Dr. Graybill testified that the hallmark signs and symptoms of CRPS Type

II are temperature changes, increased perspiration to the hand, color changes to

the hand, and increased sensitivity to types of sensations or feelings that

normally are not painful. Dr. Graybill testified that Swanigan had each of these

specific hallmark symptoms (except color change because Swanigan is African

American). Dr. Graybill explained that Swanigan’s crush injury to his right hand

and the required surgical excision of the neuroma from the nerve at the location

of the crush injury caused Swanigan to establish a sympathetic mediated pain—a

situation where the sympathetic nervous system is involved in creating an

atypical pain pattern; this is Type II CRPS or causalgia. Dr. Graybill testified that

Swanigan’s CRPS was caused by his May 18 on-the-job injury.

      Dr. Graybill treated Swanigan’s CRPS for over fourteen months; Dr.

Graybill saw Swanigan between twenty-one and thirty times during that time

period.   Dr. Graybill felt “fairly confident” about his diagnosis of CRPS and

testified that his diagnosis did not change throughout the time that he treated

Swanigan.




      7
       Dr. Graybill said that CRPS was also known as Complex Regional Pain
Syndrome. Dr. Graybill further explained that Type I of CRPS is RSD and that
Type II is causalgia.


                                         17
          On cross-examination, Dr. Graybill conceded that he was not familiar with

the fourth edition or the fifth edition of the AMA Guides and did not use them or

any peer-reviewed publications to obtain the criteria that he looked for in

diagnosing CRPS; instead, the hallmark signs of CRPS that he testified about

came from his training and experience.

          Dr. Graybill assumed that Swanigan had undergone x-rays of his injured

upper extremity and hand but said that he did not review them because it was not

his practice to refer to a patient’s x-rays in trying to determine whether a patient

had CRPS. Dr. Graybill was not sure whether Swanigan had undergone a triple-

phase bone scan and was not aware of what particular findings might be

expected on a triple-phase bone scan of an individual who has CRPS.

          Dr. Graybill testified that if an individual has CRPS, he would anticipate

changes in the skin and possibly the hair growth on the affected body part,

possible changes in the coloration in the nail bed, changes in the temperature of

the affected extremity, sweating, and atrophy of the affected musculature.

Regarding circulatory changes, Dr. Graybill would expect to see vasoconstriction,

meaning diminished circulation, and explained that changes in air temperature

may affect the extremity.

          Dr. Graybill saw Swanigan a year after the accident, at which time he was

in the chronic phase instead of the acute phase of his CRPS.8 Dr. Graybill

          8
          Dr. Graybill said that in the acute phase, it is very painful to move the
joints.


                                          18
testified that Swanigan’s sympathetic mediated symptoms were very active but

that they seemed to improve during the treatment with the sympathetic nerve

blocks. For instance, Swanigan returned to work with limitations in July 2008, he

had improved function and less pain, and the signs of the sympathetic mediated

pain had lessened.     The signs of the sympathetic mediated pain that had

lessened included that on June 24, 2008, Swanigan’s palm was of normal color,

and the allodynia and hyperalgesia had gone away.              However, some of

Swanigan’s symptoms returned after the nerve blocks wore off.

      On October 14, 2008, Dr. Graybill wrote that it was necessary for him to

withdraw from further professional attendance or treatment of Swanigan because

Dr. Graybill did not feel like he could provide any further care to Swanigan,

Swanigan desired more care, and Swanigan had asked for another doctor. Dr.

Graybill explained that Swanigan wanted answers and solutions that Dr. Graybill

was not able to provide. At the time that Dr. Graybill discontinued his physician-

patient relationship with Swanigan, he felt that Swanigan was at a point of

maximum medical improvement and that he had done all he could to help

Swanigan. Dr. Graybill’s opinion was that Swanigan still had CRPS on October

14, 2008, and that it was still chronic. Dr. Graybill said that most of his findings

were subjective when he made the diagnosis of CRPS with Swanigan.

      On redirect, Dr. Graybill said that no consistent objective findings exist for

the diagnosis of CRPS; instead, some patients have some of the hallmark

objective symptoms while other patients suffer from different hallmark objective


                                        19
symptoms. Dr. Graybill reiterated that he had relied upon his twenty-seven years

of training and experience in diagnosing CRPS.

      Although Dr. Graybill was unaware of Swanigan’s prior 2001 injury to his

right pinkie finger, Dr. Graybill testified that if Swanigan had broken his right

pinkie finger in 2001 and had experienced no CRPS symptoms after the 2001

break through the time of the work-related injury, those facts would strengthen

his opinion that Swanigan’s May 18, 2006 work-related injury caused his CRPS.

Assuming that Swanigan did not have any signs or symptoms of CRPS from

2001 to 2007, Dr. Graybill’s opinion would be that Swanigan’s work-related injury

caused his CRPS.

                         b. Dr. William Horace Mitchell

      Dr. William Horace Mitchell, an orthopedic surgeon, saw Swanigan at the

request of the workers’ compensation carrier.9       Dr. Mitchell testified at his

deposition, which was played at trial, that RSD is a “real controversial subject in

medicine.” The exact cause is not known as far as he can tell.

      Dr. Mitchell relied on the AMA Guides in stating that the criteria for RSD

are vasomotor changes (e.g., temperature regulation, color, swelling) and

sudomotor changes (e.g. dry skin or increased sweating, decreased range of

motion, atrophy of the skin). Atrophy could be of the hair, skin, or nails. Of the

eight criteria for RSD, five are needed to make that diagnosis.       Dr. Mitchell

      9
      Swanigan testified that Dr. Mitchell’s examination took less than ten
minutes and that Dr. Mitchell did not touch him.


                                        20
testified that the fifth edition of the AMA Guides expands the trophic changes of

the criteria for CRPS, and eight out of eleven signs must be present for a

diagnosis of CRPS. The criteria include color change; temperature change, cold

usually; increased sweating; and dry skin, while the trophic changes include

change in motion, nail changes, atrophy, shiny skin, and decreased range of

motion from stiffness.

      Dr. Mitchell testified that the objective tests that are recommended when

attempting to diagnose or rule out RSD and CRPS are x-rays and triple-phase

bone scans.    An x-ray would show generalized osteoporosis or loss of bone

substance (calcium) from the bones, while a triple-phase bone scan would show

increased uptake by the radioactive dye around the joints of the extremity and

would show periarticular changes. Dr. Mitchell testified that an x-ray or a triple-

bone scan, in and of itself, is insufficient to diagnose RSD or CRPS.

      Dr. Mitchell explained that stellate ganglion blocks may relieve pain in a

patient who has the cardinal signs for RSD/CRPS. But he testified that even if a

patient receives relief from the ganglion blocks, that is not enough to diagnose

RSD/CRPS without the vasomotor, sudomotor, and trophic changes.

      Dr. Mitchell examined Swanigan on January 7, 2009. Dr. Mitchell testified

that Swanigan complained of pain in his right arm, which would be consistent

with RSD/CRPS. But Dr. Mitchell’s opinion, which was based on his examination

of Swanigan and his review of the triple-phase bone scan, was that Swanigan did

not have any of the objective findings or criteria to make a diagnosis of RSD. Dr.


                                        21
Mitchell examined Swanigan’s hand and found no vasomotor, sudomotor, or

trophic changes. Dr. Mitchell testified that the triple-phase bone scan showed

findings consistent with arthritis and trauma, not findings that would typically be

seen with RSD.     Dr. Mitchell testified that the x-ray showed evidence of old

trauma involving the fifth finger, as well as some screws broken off in the middle

bone of the finger. The radiology report indicated that the bone density was

adequate; it did not mention any decreased bone density or diffuse osteoporosis.

Dr. Mitchell did not believe that the work-related injury caused RSD or CRPS

because he concluded that Swanigan did not have RSD or CRPS.

      On cross-examination, Dr. Mitchell conceded that a crush injury is the type

of injury that can lead to CRPS or RSD, though sometimes the CRPS or RSD

does not set in immediately. Dr. Mitchell also agreed that the hallmark complaint

of RSD is a burning sensation that is not explainable through the original injury.

Dr. Mitchell testified that RSD would not occur immediately because the turnover

in bone is slow, and it would take a while to appear. If Dr. Mitchell suspected that

a patient had RSD, he would not treat the condition but would refer the patient to

a pain management specialist or a neurologist.

      Although Dr. Solomon had noted that Swanigan’s finger was cool to the

touch with edema, Dr. Mitchell did not feel any difference in temperature in

Swanigan’s finger and reported that Swanigan’s nails were normal. Additionally,

Dr. Mitchell was not aware that Dr. Willis, who was board certified in




                                        22
anesthesiology, had noted on March 14, 2008, that Swanigan had positive

trophic changes of the nail bed.

      On redirect, Dr. Mitchell said that if he was trying to rule out RSD, then he

would use the findings and signs in the AMA Guides. Dr. Mitchell testified that

when he examined Swanigan, “[t]here were no objective findings on the physical

examination that met any of those criteria [from the AMA Guides].”

      Dr. Mitchell testified that any physician who runs a clinical practice should

be able to diagnose CRPS or RSD. Thus, Dr. Mitchell testified that if a patient

presented with no signs of RSD or CRPS but had subjective complaints of

subjective symptoms, he would refer the patient to a neurologist because he

could not make a diagnosis and that “[m]aybe it’s something else.”

      Dr. Mitchell testified that Dr. Solomon’s report and Dr. Willis’s report

concerning their examinations of Swanigan did not change his opinion because

each report contained “isolated” findings—one documented swelling, coolness to

the touch, edema, and subjective complaints of burning; the other documented

pain and a trophic nail change—but not the “whole constellation” of findings for a

diagnosis of RSD or CRPS.

                          c. Dr. Kunjeelal Chandrakar

      Dr. Kunjeelal Chandrakar, who is board certified in general surgery and

runs a family practice part-time, examined Swanigan as a designated doctor. 10


      10
       Swanigan testified that Dr. Chandrakar’s examination consisted of only
questions and lasted less than ten minutes. Dr. Chandrakar told Swanigan as

                                        23
Dr. Chandrakar testified that he did not have a lot of experience with patients

who had signs of CRPS because he usually refers them to hand surgeons or to

pain management if chronic pain develops. Dr. Chandrakar testified that he did

not continue treating patients with chronic pain who were likely to develop

serious problems.

      Dr. Chandrakar examined Swanigan for the first time on September 21,

2007, as a designated doctor in order to address maximum medical improvement

and impairment rating. During Dr. Chandrakar’s examination of Swanigan, he

did not notice (1) any change in skin color on the finger or hand, (2) any change

in skin temperature, (3) any swelling or edema, (4) any skin dryness, (5) any

changes in the skin texture, (6) any atrophy, or (7) any changes in the nails, but

he did note that Swanigan had stiffness in the joint due to flexion deformity of the

finger as a result of the injury. Page four of Dr. Chandrakar’s report notes under

“Neurological Examination” that Swanigan’s “[s]ensation to pinprick and light

touch was decreased in the right little finger, medial and lateral aspects.” Dr.

Chandrakar testified that he performed the pinprick test to check sensation and

to identify whether there was a digital nerve injury. Dr. Chandrakar noted that

Swanigan had hypersensitivity in his fingers on either side of the distal joint. Dr.

Chandrakar found that Swanigan had no pain when his elbows, wrists, or hands


soon as he walked into the examining room that the insurance company did not
recognize CRPS. Swanigan did not feel confident in Dr. Chandrakar’s grasp of
RSD/CRPS.


                                        24
were palpitated. Dr. Chandrakar did not find anything in his evaluation that would

lead him to conclude that Swanigan had CRPS.11 Dr. Chandrakar’s diagnosis of

Swanigan was “[i]njury to the right little finger, crush injury; and a second

diagnosis, excision of neuroma, right little finger.”

      Dr. Chandrakar examined Swanigan again on January 18, 2008, and

found no changes from the previous exam. Dr. Chandrakar found no atrophy;

the skin texture was normal; the sweat patterns, color, and temperature of the

hand were normal; the venous circulation and capillary profusion were within

normal limits; and there was no pain in response to palpitation of the elbows,

wrists, and hands. The nails and hair growth on the hand were not mentioned in

the report. Dr. Chandrakar testified that the hyperesthesia that Swanigan had on

the initial examination could have been related to his initial nerve injury or to the

neuroma that was excised. As of the second examination, it appeared that the

hyperesthesia in the IP joint had resolved.

      On cross-examination, Dr. Chandrakar agreed that hypersensitivity to

stimuli is a hallmark sign of CRPS and that CRPS or RSD is difficult to diagnose.

Dr. Chandrakar testified that in his normal practice, he does not make a

diagnosis of RSD or CRPS; he refers out patients to get such diagnosis.




      11
        Dr. Chandrakar was not aware that Swanigan had undergone a triple-
phase bone scan, but he was aware that such scans are useful in diagnosing or
ruling out CRPS.


                                          25
             2. Dr. Graybill’s Testimony That Swanigan Suffered
                    From RSD/CRPS Was Not Conclusory

      Charter Oak argues in its second subissue that Dr. Graybill’s testimony

was conclusory and thus constitutes no evidence that Swanigan suffered from

RSD/CRPS.      We have previously held that Charter Oak waived any legal

sufficiency complaint concerning whether Swanigan suffered from RSD/CRPS by

failing to object to the jury question on the ground that it assumed this disputed

fact. We nonetheless alternatively hold here that, in any event, Dr. Graybill’s

testimony that Swanigan suffered from RSD/CRPS was not conclusory but was

based on the facts he discerned and documented during his fourteen-month

treatment of Swanigan.

      Specifically, Charter Oak contends that because Dr. Graybill was not

familiar with the fourth and fifth editions of the AMA Guides and because he

relied on his training and experience, rather than on x-rays or triple-phase bone

scans, his diagnosis that Swanigan had CRPS and his opinion that the May 18

injury caused Swanigan’s CRPS were conclusory.

      As set forth above, Dr. Graybill did rely on his training and experience in

diagnosing Swanigan with CRPS, but the criteria, the “hallmark symptoms,” that

Dr. Graybill discerned through his training and experience and that supported a

diagnosis of CRPS were the same as most of the “clinical findings” set forth in

the AMA Guides.      Dr. Graybill’s testimony, as well as his notes that were

admitted into evidence without objection, reveal that in making the diagnosis that



                                       26
Swanigan suffered from RSD/CRPS, he considered skin temperature changes,

skin color changes, sweating, atrophy, changes in the nail bed, changes in the

skin, range of motion limitations, and transient responses to stellate ganglion

blocks. These considerations parallel the “clinical findings” that Charter Oak’s

expert Dr. Mitchell testified were required in order for someone to have a correct

diagnosis of RSD/CRPS per the AMA Guides. Dr. Mitchell testified:

             The cardinal signs [of RSD per the AMA Guides] are what are
      called vasomotor changes and sudomotor changes. Vasomotor
      being temperature regulation, color, may cause swelling. Sudomotor
      is dry skin or increased sweating, decreased range of motion, atrophy
      of the skin are the sort of physical findings.

      Q. Okay. What is a trophic change?

      A. Trophic is really atrophy or wasting. It could be the hair or the
      skin, the nails, as far as this particular syndrome is concerned.

            ....

      Q. Are all of those signs necessary or are only some of them
      necessary to be present?

      A. Usually some of them. The criteria for RSD, there are eight. And if
      you have five, you can make the diagnosis.

            ....

      Q. Okay. What about complex regional pain syndrome, what are the
      signs or findings that are required in order to have that diagnosis?

      A. Well, in the 5th edition, it expands it a little. The guide to
      impairment expands it a little bit. It’s pretty much the same,
      vasomotor and sudomotor, but it expands the trophic changes --

      Q. Okay.




                                       27
      A.    -- a little bit. So it’s color change; temperature, cold usually;
      increased sweating; dry skin. And then the trophic changes can
      cause change in motion, nail changes, atrophy, shiny skin, decreased
      range of motion by getting stiff. That’s pretty much it.

      Thus, we cannot say that Dr. Graybill’s testimony based on his training and

experience––using the same factors as Dr. Mitchell testified were used in the

AMA Guide––was conclusory. In fact, Dr. Graybill’s testimony and the medical

records in evidence from Dr. Graybill, Dr. Toledo, Dr. Willis, and Dr. Solomon

document that Swanigan exhibited the very “clinical findings” that Dr. Mitchell

testified were necessary to support a diagnosis of RSD/CRPS under the AMA

Guide. The record reflects that Dr. Graybill and Dr. Mitchell reached different

conclusions as to whether Swanigan suffered from RSD/CRPS after looking at

the same criteria.

      An expert opinion is conclusory when it offers an opinion with no factual

substantiation. See generally Coastal Transp. Co., 136 S.W.3d at 232; Burrow v.

Arce, 997 S.W.2d 229, 236 (Tex. 1999).        Here, Dr. Graybill’s opinions that

Swanigan suffered from RSD/CRPS are not conclusory; the opinions are based

on facts and criteria in the record documenting Dr. Graybill’s fourteen-month

treatment of Swanigan.

      We therefore, in the alternative to our holding that Charter Oak waived its

legal sufficiency challenge to whether Swanigan suffers from RSD/CRPS by

failing to object to the charge, hold that the evidence is legally sufficient to

support the jury’s finding that Swanigan suffered from RSD/CRPS.



                                       28
3. Dr. Graybill’s Testimony that Swanigan’s May 18 Injury Was a Producing
                Cause of His RSD/CRPS Was Not Conclusory

      As set forth above, Dr. Graybill repeatedly testified that Swanigan’s

RSD/CRPS was caused by his May 18 on-the-job injury. Charter Oak offered no

controverting evidence or testimony; Charter Oak’s position was that Swanigan

did not suffer from RSD/CRPS. We hold that Dr. Graybill’s testimony and opinion

that Swanigan’s May 18, 2006 injury was a producing cause of his RSD/CRPS

was not conclusory but was grounded in the facts he ascertained and

documented in his medical records concerning Swanigan’s symptoms and

treatment. See Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 220 (Tex. 2010)

(holding that expert medical causation testimony was based on reliable

foundation and was admissible to prove that May 2000 injury was producing

cause of appellee’s death and further holding that “we cannot disturb the jury’s

finding against [insurer] on the issue of producing cause”).

          4. Legal Sufficiency of All the Evidence to Establish
    Swanigan’s May 18 Injury Was a Producing Cause of His RSD/CRPS

      Because there was no objection to the jury charge, we review all of the

evidence in the light most favorable to the verdict to determine whether a

reasonable trier of fact could have formed a firm belief or conviction that

Swanigan’s injury of May 18 was a producing cause of his RSD/CRPS. See

Sturges, 52 S.W.3d at 715.

      Swanigan testified that his right pinkie finger was fine after the barbeque

pit injury; he said he could lift 110- to 120-pound transmissions without pain at


                                        29
Carmax. He said that after the crush injury to his right pinkie finger at Carmax,

he could not bend his finger. This affected his ability to grip and grasp; his hand

and whole arm twitched; his pain level was at a six and a half out of ten; the

chronic pain interfered with his ability to sleep and caused him to become easily

irritated and to “snap”; and the pain had affected his ability to be a father to his

children.

      Three experts (Dr. Graybill via his testimony and Drs. Willis and Solomon

via Swanigan’s medical records from their offices––all treating medical doctors of

Swanigan) concluded that Swanigan had RSD/CRPS following the May 18, 2006

on-the-job crush injury to his right pinkie finger.       The record contains no

controverting   evidence   on   any   other   producing    cause   of   Swanigan’s

RSD/CRPS.12 Dr. Mitchell testified that he found no findings consistent with

RSD/CRPS, but he admitted that a crush injury can lead to RSD/CRPS and that

a burning sensation, like Swanigan had, that is not explainable by the injury is a

hallmark sign of RSD/CRPS.

      We hold that viewing all of the evidence—Swanigan’s testimony, Dr.

Graybill’s testimony, as well as the unobjected-to medical records and reports

from Dr. Graybill, Dr. Toledo, Dr. Willis, and Dr. Solomon (which document


      12
        Two experts (Dr. Mitchell and Dr. Chandrakar—both doctors hired by
Charter Oak who spent less than ten minutes each with Swanigan and did not
touch his hand or arm) concluded that Swanigan did not have RSD/CRPS, but no
controverting producing cause evidence exists (as opposed to evidence that
Swanigan did not suffer from RSD/CRPS).


                                        30
Swanigan’s exhibition of various signs of RSD/CRPS to various doctors following

the May 18 on-the-job crush injury to his right pinkie finger), and the testimony of

Drs. Mitchell and Chandrakar—in the light most favorable to the jury’s finding that

Swanigan’s May 18 injury was a producing cause of his RSD/CRPS (because a

reasonable factfinder could) and disregarding the contrary evidence—we have

located none in the record—more than a scintilla of evidence exists that

Swanigan’s May 18 injury was a producing cause of his RSD/CRPS. See, e.g.,

Cent. Ready Mix Concrete Co., 228 S.W.3d at 651; Liberty Mut. Ins. Co. v. Burk,

295 S.W.3d 771, 780 (Tex. App.—Fort Worth 2009, no pet.) (holding evidence

legally sufficient to support finding that appellee’s work-related injury caused his

polyneuropathy and foot ulceration); Hartford Underwriters Ins. Co. v. Burdine, 34

S.W.3d 700, 707 (Tex. App.—Fort Worth 2000, no pet.) (holding evidence legally

sufficient to support finding that appellee’s injury to legs and/or feet was

producing cause of the total and permanent loss of use of both legs and/or feet at

or above the ankles); Escalante, 162 S.W.3d at 625; Am. Cas. Co. of Reading,

PA v. Zachero, No. 11-07-00183-CV, 2008 WL 5205642, at *5 (Tex. App.—

Eastland Dec. 11, 2008, no pet.) (mem. op.) (holding evidence legally sufficient

that appellee’s injury extended to include osteoarthritis and chondromalacia);

Fidelity & Cas. Co. of NY v. Rust, No. 05-97-001509-CV, 2001 WL 51066, at *4

(Tex. App.—Dallas Jan. 23, 2001, pet. denied) (not designated for publication)

(holding evidence legally sufficient to support trial court’s judgment because the




                                        31
jury could have determined from the evidence that appellee’s head injury was the

producing cause of his mental illness). We overrule Charter Oak’s sole issue.

                                V. CONCLUSION

      Having overruled Charter Oak’s sole issue, we affirm the trial court’s

judgment.


                                                 SUE WALKER
                                                 JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: April 26, 2012




                                       32
