                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-12-00059-CV
        ______________________________


    CHRISTOPHER CASTLEBERRY, Appellant

                          V.

NEW HAMPSHIRE INSURANCE COMPANY, Appellee



   On Appeal from the 76th Judicial District Court
               Morris County, Texas
              Trial Court No. 24,603




     Before Morriss, C.J., Carter and Moseley, JJ.
      Memorandum Opinion by Justice Moseley
                                             MEMORANDUM OPINION

            Christopher Castleberry, acting pro se, has appealed from a no-evidence summary

judgment rendered in favor of New Hampshire Insurance Company (the insurer), a workers’

compensation insurance carrier.

            The context of this proceeding shows that Castleberry sustained back injuries January 20,

2009, which were compensable and for which he received benefits that were paid by the insurer.

Specifically, Castleberry sustained an injury after falling from a ten-foot ladder, landing on his

lower back and hips. He was treated for pain and for other complaints, but evidently showed no

gross physical damage. For some period of time, his prescribed medication included pain

medications, anti-depressants, and Viagra. The insurer eventually contested the applicability of

anti-depressant medications and Viagra to treatment of the injury sustained. A hearing was held

before the Appeals Panel of the Texas Department of Insurance, Division of Workers’

Compensation, and the Panel concluded that Castleberry’s compensable injury did not extend to

or include the diagnosed conditions of erectile dysfunction (the malady for which Viagra was

prescribed), depression, chronic pain syndrome, or chronic myofascial pain syndrome. See TEX.

LABOR CODE ANN. § 410.251 (West 2006). Castleberry sought a judicial review of those rulings

from the trial court.

            In a series of procedural errors, Castleberry only pled for recovery on the extent of injury

determination regarding erectile dysfunction.1 The insurer asserted that Castleberry’s petition

should thus be limited solely to the erectile dysfunction issue, but the trial court instead signed a
1
    It is not unexpected for a pro se litigant to be inadvertently wrapped up in the coils of procedural error.


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judgment that dismissed all claims, including the claim for treatment of erectile dysfunction. We

reversed that determination and remanded this case to the trial court.

         Upon return to the trial court, the insurer took the position in its no-evidence motion for

summary judgment that Castleberry has no medical evidence that the compensable injury was a

cause of his erectile dysfunction. Castleberry filed a timely response which incorporated letters

from treating physicians setting out his treatment regimen and copies of statements for the supply

of the Viagra he believed was required. The trial court granted the insurer’s motion for summary

judgment and Castleberry has appealed from that judgment.

         The insurer contends that it should win on the merits because there is no evidence to

support Castleberry’s claim.2

         A no-evidence summary judgment is essentially a pretrial directed verdict.                               We,

therefore, apply the same legal sufficiency standard in reviewing a no-evidence summary

judgment as we apply in reviewing a directed verdict. Wal-Mart Stores, Inc. v. Rodriguez, 92

S.W.3d 502, 506 (Tex. 2002).

         We must determine whether the nonmovant produced any evidence of probative force to

raise a fact issue on the material questions presented. Id.; Woodruff v. Wright, 51 S.W.3d 727

(Tex. App.—Texarkana 2001, pet. denied). A nonmovant will defeat a no-evidence summary

judgment motion if the nonmovant presents more than a scintilla of probative evidence on each


2
 The insurer also correctly points out on appeal that much of Castleberry’s proferred summary judgment evidence is
not competent evidence. However, one observes that it is questionable whether this objection to the evidence was
properly preserved at trial. Even so, it is not necessary for us to evaluate its admissibility or determine whether the
insurer would have waived any objection to that evidence at the trial level because even if the evidence Castleberry
presented had been properly before the trial court, it would not have impacted the determination we make here.

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element of his claim. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Jackson

v. Fiesta Mart, Inc., 979 S.W.2d 68, 70–71 (Tex. App.—Austin 1998, no pet.). If the evidence

does no more than create a mere surmise or suspicion of fact, less than a scintilla of evidence

exists. Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 282 (Tex. 1995); Macias v. Fiesta Mart,

Inc., 988 S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.] 1999, no pet.).

       To defeat a no-evidence motion for summary judgment, the respondent is not required to

marshal its proof; its response need only point out evidence that raises a fact issue on the

challenged elements. TEX. R. CIV. P. 166a(i) cmt.; Johnson v. Brewer & Pritchard, P.C., 73

S.W.3d 193, 207 (Tex. 2002). In a summary judgment hearing, the trial court’s decision is based

on written pleadings and written evidence rather than live testimony. See TEX. R. CIV. P.

166a(c).

       In our review, we consider all the summary judgment evidence in the light most

favorable to the party against whom the no-evidence summary judgment was rendered,

disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953

S.W.2d 706, 711 (Tex. 1997).

       The insurer argues that summary judgment was proper because Castleberry failed to

produce any summary judgment evidence raising a genuine issue of material fact on the element

challenged in the insurer’s motion.   That is, Castleberry did not establish any “admissible

medical evidence establishing causation between the compensable injury and the disputed

erectile dysfunction condition.”



                                              4
        At the summary judgment stage, the question is not whether evidence may ultimately be

admissible at trial; rather, the question is whether the summary judgment evidence is of such a

nature as to raise the necessary issue of material fact on the element challenged. TEX. R. CIV. P.

166a(i). Causation is such an element. See Springer v. Am. Zurich Ins. Co., 115 S.W.3d 582

(Tex. App.—Waco 2003, pet. denied).

        The standard of review as set out above requires only a scintilla of probative evidence.

Since that standard is quite low, it is reasonable to assume that if a party cannot meet it, the

lawsuit will necessarily fail.

        “Compensable injury” means an injury that naturally arises out of and in the course and

scope of employment for which compensation is payable.                TEX. LABOR CODE ANN.

§ 401.011(10) (West Supp. 2012); see Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 221 (Tex.

2010). Under current law, that definition has been restructured to require the employment to be a

producing cause of the injury.

        Historically, in workers’ compensation cases, “producing cause” did not require the

workplace injury to be a substantial factor in bringing about the employee’s disability. See, e.g.,

Flores v. Emps. Ret. Sys. of Tex., 74 S.W.3d 532, 549 (Tex. App.—Austin 2002, pet. denied).

The Texas Supreme Court recently held in Crump that “[t]he producing cause inquiry in

workers’ compensation cases is conceptually no different from the cause in fact inquiry in

negligence cases and the producing cause inquiry in other substantive contexts.” Crump, 330

S.W.3d at 223; see also Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007) (holding, in

products liability context, that producing cause definition should include “substantial factor” and

                                                5
“but-for” component).    The Texas Supreme Court held that “producing cause in workers’

compensation cases is defined as a substantial factor in bringing about an injury or death, and

without which the injury or death would not have occurred.” Crump, 330 S.W.3d at 223; Cont’l

Cas. Co. v. Baker, 355 S.W.3d 375, 385 (Tex. App.—Houston[1st Dist.] 2011, no pet.).

       Here (for the sake of reducing our analysis to its vital parts), we look at all of the

evidence Castleberry provided without first considering whether it could have been properly

considered by the trial court under the prevailing evidentiary rules. Among the documents he

provided are a number of receipts for drug purchases (including a number of receipts for Viagra

purchases).   There are also physicians’ reports attached, which make reference to sexual

dysfunction or to Viagra as follows:

       We do not have a tox on him at that date. He continues to complain of sexual
       problems. He got the VIAGRA. He says he has tried to relax. I am not sure how
       much of this is really functional. I certainly have my suspicions about him, but
       without direct observation I will probably have to give him the benefit of a doubt.
       I will re-prescribe his XANAX, HYDROCODONE, and low dose SEROQUEL.
       It is the high dose of SEROQUEL that made him over sedated and that
       SUBOXONE was of no benefit. Again, he is on shaky ground, but without clear
       evidence otherwise without being able to see him with direct observation, I am
       going to re-prescribe his medications and give him no second chance or any
       leeway. He says they were significantly helpful in terms of his pain and anxiety.

“Recheck Office Assessment” Howard M. Cohen, M.D. 4/13/10. The report of another

physician reads as follows:

       The patient appears to have received all necessary and appropriate diagnostic
       tests, including x-ray, MRI, electrodiagnostic testing, and Functional Capacity
       Evaluations. No durable medical equipment needs would be anticipated. The
       patient is currently using Hydrocodone, Lexapro, Klonopin, Naprelan, Naproxen
       [illegible] and Viagra as a result of his injury. The Lexapro and Klonopin were
       recently started as a result of a mental health evaluation the patient received

                                               6
       during the multidisciplinary pain management program evaluation. The use of
       these would be supported by the ODG Guidelines for short term use. It would be
       anticipated that the patient would be able to be weaned from all medication as his
       pain management program progresses and further medications would not be
       anticipated upon completion of that program.

Letter of review by Gregory D. Powell, M.D., American Board of Physical Medicine and

Rehabilitation Subspecialty Certification in Pain Medicine. March 17, 2010.

       There is evidence that the Viagra was prescribed for Castleberry and that he did obtain

that drug on numerous occasions. The missing relevant evidence is that which would link the

prescription of that medication to treatment for the on-the-job injury Castleberry sustained or

which would tend to show (either directly or impliedly) that the injury that Castleberry suffered

was a producing cause of his sexual dysfunction. This was necessary for a rebuttal of the request

for the grant of a no-evidence summary judgment. Since there was no such link of that nature

shown, Castleberry failed to interpose at least a scintilla of evidence to defeat the insurer’s no-

evidence motion for summary judgment.

       We affirm the summary judgment.




                                             Bailey C. Moseley
                                             Justice

Date Submitted:       November 7, 2012
Date Decided:         November 14, 2012




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