
                              NO. 07-09-0181-CV

                           IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                 AT AMARILLO

                                   PANEL D

                               AUGUST 19, 2011








          MID-CONTINENT GROUP d/b/a/ MID-CONTINENT CASUALTY & MID-
                       CONTINENT INSURANCE, APPELLANT


                                     V.


                           KENNETH GOODE, APPELLEE





               FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

               NO. 2006-536,112; HONORABLE RUBEN REYES, JUDGE





Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                             MEMORANDUM OPINION


      Appellant, Mid-Continent Group d/b/a  Mid-Continent  Casualty  &  Mid-
Continent Insurance, appeals from a judgment entered in favor  of  Appellee,
Kenneth Goode, in  an  action  to  recover  underinsured/uninsured  motorist
(UIM) benefits.  In support, Mid-Continent broadly  presents  three  issues:
(1) whether Goode's evidence of causation  between  an  automobile  accident
and his cervical injury is legally and  factually  sufficient;  (2)  whether
Goode's evidence of the reasonableness and necessity of his medical care  is
legally  and  factually  sufficient;  and  (3)  whether  legally  sufficient
evidence supports Goode's right to recover under the UIM provisions  of  his
policy with Mid-Continent.  We affirm.

                                 Background

      On April 5, 2003,  Goode's  pickup  was  struck  by  another  vehicle.
After being struck, Goode attempted to  protect  and  stabilize  himself  by
holding onto the steering wheel with his left  hand.   During  the  accident
investigation he told police officers that he was having  trouble  with  his
left arm and shoulder.  His shoulder eventually required  surgery;  however,
his pain persisted and in  2006  a  cervical  injury  was  diagnosed.   Mid-
Continent, Goode's UIM insurance  carrier,  disputed  whether  the  cervical
injury resulted from the 2003 accident.  Unable to reach an agreement as  to
damages, on August 10, 2006, Goode filed this action to  recover  under  the
UIM provisions of an insurance policy issued by Mid-Continent.

      Pretrial Hearings

      There were three pretrial  hearings  in  this  case.   At  a  pretrial
hearing held September 14, 2007, the trial court  proposed  two  methods  of
trying the case.  The first method involved trying  liability  and  damages,
essentially a lawsuit against  an  insurance  company.   The  second  method
involved treating the action like a  regular  automobile  accident  case,  a
lawsuit of one driver against the other.  During  an  exchange  between  the
parties, the following occurred:

      GOODE'S COUNSEL:  And [Mid-Continent's  counsel]  brought  up  a  good
      thing.  I was about to address the Court with regard to  bringing  the
      contract  in,  talking  about  the  permission,  talking   about   the
      underinsured issues.  Do I have the burden of proving that contractual
      relationship, or are  we  just  going  to  go  straight  into  the  PI
      [personal injury] case?

      THE COURT:  Are you contesting that?

      MID-CONTINENT'S COUNSEL:  I am not contesting the contract.  No, I  am
      not contesting  that  coverage  would  lie  under  the  circumstances.
      Basically, we are -- [Goode's counsel] and I agree that it is a pretty
      simple issue.  I am really not contesting liability, other than  I  am
      contesting causation, and we will kind of get  into  that  with  these
      experts.

      THE COURT:  Right.  And it is just like a regular car wreck.  I  mean,
      take the insurance element out of this,  as  far  as  an  underinsured
      claim.  There was an accident.  There was some injury to this part  of
      the body.  We don't think the injury to  this  part  of  the  body  is
      related, and this is why.  The delay in  treatment  --  you  know,  he
      didn't even claim he was injured at that point, whatever.  It  doesn't
      make any difference.


       One  year  later,  during  the  pretrial  hearing  that  occurred  on
September 19, 2008, the parties continued their discussion as to whether  to
try the case as a contract case or a personal injury case:

      THE COURT:  All right.  Anything else  we  need  to  deal  with,  with
      regard to the depositions?  No?  Anything else we need to  deal  with,
      with regard to the Charge?

      MID-CONTINENT'S COUNSEL:  Judge, the only  thing  I  have  a  question
      about is, and, we mentioned it a year ago, and I can't  remember  what
      all we've talked about, about how to try this case, and we have set it
      up in our Court's Charge, to try Kenneth Goode  as  Plaintiff,  versus
      the driver, William Lee Harris, and try the car wreck  case.   We  are
      going to admit liability.  So [Goode's counsel] doesn't have to  prove
      up anything regarding liability. It's just a damage issue case, with a
      credit at the end, with the stipulation  from  [Goode's  counsel].   I
      think we may have done that.  We probably need to do that again.   The
      policy limits were paid at $50,000, on behalf of William  Lee  Harris'
      insurance company for -- to Mr. Goode on the original claim.

      THE COURT:  So you are wanting to try it as -- repeat the  first  part
      of what you told me, to make sure I've understood what you said.

      MID-CONTINENT'S COUNSEL:  That we are  trying  it  as  a  separate  or
      accident case, Mr. Goode against the driver that caused the  accident,
      instead of a contract claim against Mid-Continent  Insurance  Company.



                                  *   *   *

      THE  COURT:   Let   me   help   you   there.    Normally,   in   these
      underinsured/uninsured cases, the only issue for the jury to establish
      is liability and then the amount of damages.   Here,  the  defense  is
      apparently stipulating to liability.  So the only issue is the  amount
      of damages, okay?

                                       *   *   *

      THE COURT:  Okay.  With regard to the  Charge,  then,  since  you  are
      going to stipulate as to liability, we are simply going to have then a
      question on damages, right, one-question charge on damages?

      GOODE'S COUNSEL:  On past and present.

      MID-CONTINENT'S COUNSEL:  That is right.  I mean,  we  were  going  to
      stipulate, I think -- I mean, just to be consistent, we are  going  to
      go ahead and stipulate anyway.  But we are trying a  car  wreck  case,
      one party against the other.  But I don't think it is going to matter.
       I am not going to try this case on liability.  So  we  are  going  to
      stipulate as to liability.

      THE COURT:  Okay.

      (Emphasis added).

      A third pretrial hearing was held on the day of trial.


      Trial


      A jury trial of Goode's action commenced on September 22,  2008.   The
evidence showed that,  immediately  following  that  April  2003  automobile
accident, Goode complained of pain in his shoulder.[1]  His  physician,  Dr.
Chavez, referred him  to  Dr.  Nordyke,  an  orthopedic  surgeon.   When  he
initially visited  Dr.  Nordyke,  Goode  complained  only  of  pain  in  his
shoulder and denied any pain in his neck.  After  examination,  Dr.  Nordyke
concluded from Goode's MRI scan and symptoms that he was  suffering  from  a
rotator cuff injury and SLAP tear[2] or torn cartilage to his shoulder.

      In September 2003, Goode underwent  surgery  to  repair  his  shoulder
injury.  Dr. Nordyke subsequently described the surgery  as  successful  and
anticipated that Goode's recovery would last four to six weeks.   That  same
month, Goode was diagnosed with prostate  cancer.   In  early  October,  Dr.
Nordyke became concerned because Goode continued to experience pain  in  his
shoulder.  By late October, Goode's shoulder was stiff and  he  was  at  the
lower end of where Dr. Nordyke expected he would be after rehabilitation  or
physical therapy.  Thinking the radiation therapy for  the  prostate  cancer
might be affecting Goode's rehabilitation, Dr. Nordyke  treated  Goode  with
steroids for frozen shoulder or adhesive capsulitis, i.e.,  inflammation  or
tightness in  the  shoulder.   From  November  2003  through  January  2004,
Goode's  symptoms  persisted  and  Dr.  Nordyke  continued  Goode's  steroid
treatment.  In February 2004, Goode was doing much better  and  Dr.  Nordyke
released him while continuing the steroid treatments for a short period.

      Thereafter, Goode continued to work even though  he  was  experiencing
pain in his shoulder.  He did not return to Dr. Nordyke because  he  thought
the pain would eventually go away and there was no one  to  relieve  him  at
work.[3]  In July 2005, Goode again saw his physical  therapist  complaining
of pain in his shoulder.  He also sought an impairment rating.

      In December 2005, he went to see Dr. Chavez for  a  follow-up  on  his
shoulder.  Dr. Chavez diagnosed Goode as  suffering  from  chronic  shoulder
pain and muscle atrophy.  He again referred Goode to Dr.  Nordyke,  and,  in
March 2006, Goode saw Dr. Nordyke complaining, for the first time,  of  neck
pain accompanied by numbness in his left arm with tingling sensations  going
down his arm.  Dr. Nordyke re-evaluated Goode's shoulder and concluded  that
Goode had not progressed as he had expected  after  surgery.   When  Goode's
shoulder x-rays looked good, Dr. Nordyke suspected that Goode's  pain  might
be originating in his neck.  He decided to look at  Goode's  cervical  spine
and ordered a new MRI scan.  This MRI showed some  degenerative  changes  in
the disk and  cervical  spine.   Dr.  Nordyke  put  Goode  on  steroids  and
referred him to Dr. Claude Oliva, a  pain  management  specialist,  and  Dr.
Nevan Baldwin, a neurosurgeon.

       Dr.  Baldwin  saw  Goode  in  early  April  2006.   This  time  Goode
complained of pain in the base of his neck  and,  when  he  was  in  certain
positions, his neck would lock up.   When Dr. Baldwin reviewed  Goode's  MRI
results, he observed a problem at the C-6, C-7 level of Goode's  spine.   He
ordered another MRI which confirmed that there was a narrowing of  the  disk
at that level.  Dr. Baldwin concluded that Goode had a ruptured  or  bulging
cervical disk--cervical radiculitis.

      At trial, Dr. Nordyke opined that Goode injured his neck at  the  same
time he injured his shoulder, i.e., Goode's cervical disk was  also  injured
in the April 2003 accident.  In retrospect, looking back at Goode's  medical
records since the accident, Dr. Nordyke testified that  he  probably  missed
Goode's neck injury because  he  believed  that  Goode's  lack  of  progress
during rehabilitation in 2003 and early 2004 was due to his prostate  cancer
and radiation treatment coupled with the steroid therapy which "calmed  down
[Goode's] cervical radiculitis."  He testified that  Goode's  symptoms  from
May 2003 until April 2006 were  consistent  with  having  a  herniated  disk
because Goode was experiencing shoulder  pain  continuously  throughout  the
period despite a successful operation repairing his rotator  cuff  and  SLAP
tear.  Dr. Nordyke testified  that  an  article  from  a  respected  medical
textbook indicated that  the  condition  of  having  a  frozen  shoulder  or
adhesive capsulitis  was  "highly  associated"  with  also  having  cervical
radiculitis or a herniated disk.  He further testified that  in  his  normal
practice, ten to fifteen percent of his patients experience no pain  with  a
cervical disk problem.[4]

      Dr. Baldwin agreed  with  Dr.  Nordyke  that  Goode's  symptoms  of  a
cervical spine injury arose at the time of the accident and persisted  since
that time.  He also agreed with Dr. Nordyke that Goode  could  have  injured
his  disk  in  the  accident  without  exhibiting  symptoms.   Dr.   Baldwin
testified that one  of  the  very  frequent  presentations  of  a  C-6,  C-7
herniation[5] is that the pain goes  right  along  the  inner  edge  of  the
shoulder blade.  He further stated that "just if you touch  along  the  tips
between the shoulder blade and the spine, they get pain  and  tenderness  in
that area, and sometimes coming  out  toward  the  shoulder.  And  then,  as
things progress, this symptom gets a little worse, and then  they  have  the
tingling in the hand and so forth."

      Dr. Baldwin testified that Goode's cervical disk problems  could  have
been caused by the accident, or they might have  already  been  present  and
merely advanced over the course  of  the  following  years.[6]   He  further
opined that, regardless whether or  not  Goode  suffered  from  degenerative
spine conditions prior to the accident, it was possible the accident  either
exacerbated a pre-existing condition or caused the condition.  He  testified
x-rays and  MRIs  "really  do  not  describe  any  significant  degenerative
changes" and "couldn't say one way or the other whether the spurs  found  in
Goode were caused by the April 2003 auto accident."

      Dr. James Burke, an orthopedic surgeon, testified  as  Mid-Continent's
expert.  According to his testimony he saw nothing  in  Goode's  records  to
indicate that he had problems with his neck at the  time  of  the  accident.
In support, he asserted there was no indication  Goode  complained  of  neck
pain from April 2003 until April 2006 and observed  that,  in  his  opinion,
Goode's degenerative changes would not likely have been  caused  by  trauma.
Rather than suffering from frozen  shoulder  or  adhesive  capsulitis  after
surgery, Dr. Burke opined that Goode suffered from postoperative  stiffness.
 In addition, he testified Goode suffered from spondylosis, a  generic  term
equivalent to degenerative changes in the  spine.   He  disagreed  with  Dr.
Nordyke's opinion tying Goode's  cervical  problems  to  the  2003  accident
because Dr. Nordyke had previously noted that Goode was  negative  for  neck
problems.  He also disagreed whether a C-6, C-7 issue  could  cause  Goode's
shoulder pain because he opined such problems are  usually  associated  with
the C-5 or C-6 nerve root.  He opined that,  had  the  accident  exacerbated
Goode's symptoms, either from a pre-existing neck condition  or  had  caused
the problems that eventually led to the deterioration of Goode's neck,  such
an injury would have been "evidence[d] by the  examination  and  questioning
of Dr. Nordyke at some period more temporal to the injury."   As  a  result,
he concluded that "the car accident of April 5, 2003, did not cause  Goode's
current disc and cervical problems."[7]

      On cross-examination Dr. Burke did  concede  that  it  was  "possible"
that adhesive capsulitis or frozen shoulder could occur as  a  result  of  a
minor trauma to the shoulder.  He further opined that  it  was  unusual  for
Goode to still be having shoulder pain in January 2004, approximately  three
months after surgery.  He testified that, like Dr. Nordyke, he too had  seen
a fair number of patients with shoulder  pain  having  problems  with  their
neck, but complaining of no neck pain.  He had  also  treated  persons  with
ruptured cervical disks that didn't have  neck  pain  and  agreed  with  Dr.
Nordyke that "the two can be confused."  He also agreed that  the  diagnosis
of adhesive capsulitis can be associated with cervical radiculitis; but,  in
his opinion, that this was not the case with Goode.  He testified Goode  had
"a stiff and sore shoulder or  adhesive  capsulitis,  following  a  shoulder
surgery which  is  completely  different  entity  from  frozen  shoulder  or
adhesive capsulitis, as it presents without shoulder surgery."  Finally,  he
testified that it was "possible" that the collision in question  could  have
turned the situation with  regard  to  Goode's  neck  from  asymptomatic  to
symptomatic.

      At the trial's conclusion, a single question on the issue  of  damages
was  submitted  to  the  jury.[8]   In  nine  subquestions   pertaining   to
individual  elements  of  damage,  the  jury  returned  a  verdict  totaling
$289,362.43.[9]  In post-verdict proceedings, the trial  court  denied  Mid-
Continent's motion to disregard the  jury's  findings  and,  after  applying
stipulated  credits  for  sums  previously  paid  and  adding   pre-judgment
interest, entered a judgment in favor of Goode for $244,467.58,  plus  court
costs and post-judgment interest at the rate of 5% compounded annually  from
March 6, 2009.  This appeal followed.

                                 Discussion

       Mid-Continent  asserts  Goode's  evidence  in  support  of  a  causal
connection between the accident and his cervical condition was  legally  and
factually insufficient.  Mid-Continent also asserts  that  Goode's  evidence
in support of his medical expenses is legally insufficient because it  fails
to establish the necessity of the services  or  the  reasonableness  of  the
charges.   Lastly,  Mid-Continent  contends  Goode's  evidence   that   Mid-
Continent  breached  its  insurance  contract   with   Goode   was   legally
insufficient.


              Standard of Review--Legal and Factual Sufficiency

      When both legal and  factual  sufficiency  challenges  are  raised  on
appeal, the reviewing court must first examine the legal sufficiency of  the
evidence.  See Glover v. Tex. Gen. Indemnity Co., 619 S.W.2d 400, 401  (Tex.
1981).  In conducting a legal  sufficiency  review,  we  must  consider  the
evidence in the light most favorable to the challenged finding  and  indulge
every reasonable inference that supports the  verdict,  City  of  Keller  v.
Wilson, 168 S.W.3d 802, 821-22 (Tex. 2005); crediting favorable evidence  if
reasonable  jurors  could,  while  disregarding  contrary  evidence   unless
reasonable jurors could  not.   Id.  at  827.   A  challenge  to  the  legal
sufficiency will be sustained only when (a) there is a complete  absence  of
evidence of a vital fact, (b) the court is barred by  rules  of  law  or  of
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 of evidence, or (d)  the  evidence  conclusively  establishes  the
opposite of the vital fact in question.  Id. at 810;  King  Ranch,  Inc.  v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied,  541  U.S.  1030,124
S.Ct. 2097, 158 L.Ed.2d 711 (2004).  In addition, so long  as  the  evidence
falls within the zone of reasonable disagreement,  we  may  not  invade  the
fact-finding role of the jurors, who  alone  determine  the  credibility  of
witnesses, the weight to be given their testimony, and whether to accept  or
reject all or a part of their testimony.  City  of  Keller,  168  S.W.3d  at
822.


      In reviewing factual sufficiency, the reviewing court  must  consider,
examine, and weigh the entire  record,  considering  both  the  evidence  in
favor of, and contrary  to,  the  challenged  findings.   Maritime  Overseas
Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998), cert. denied,  525  U.S.
1017, 119 S.Ct. 541, 142 L.Ed.2d 450 (1998).  In  doing  so,  the  court  no
longer considers the evidence in the light most favorable  to  the  finding;
instead, the court considers and weighs all the  evidence,  and  sets  aside
the disputed finding only if it is so  contrary  to  the  great  weight  and
preponderance of the evidence as to be clearly wrong and manifestly  unjust.
 Id. at 407; Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996).

                                  Causation

      "[A]t trial the plaintiff must establish two causal nexuses  in  order
to be entitled to recovery:  (a) a  causal  nexus  between  the  defendant's
conduct and the event sued upon; and (b) a causal nexus  between  the  event
sued upon and the plaintiff's injuries."  Morgan v. Compugraphic Corp.,  675
S.W.2d 729, 731 (Tex. 1984).  Only the second nexus is at issue here.

      To meet the legal sufficiency standard  in  a  personal  injury  case,
plaintiffs  are  required  to  adduce  evidence  of  a  "reasonable  medical
probability" or "reasonable probability" that their injuries were caused  by
the negligent act, meaning simply that it is "more  likely  than  not"  that
the ultimate harm or condition resulted from the negligent act.  Jelinek  v.
Casas,  328  S.W.3d  526,  532-33  (Tex.   2010).    "[R]easonable   medical
probability can be based  on  the  evidence  as  a  whole,  and  it  is  not
absolutely necessary that an expert couch his or her  opinion  in  terms  of
'reasonable medical probability.'" Rehabilitative Care  Systems  of  America
v. Davis, 43 S.W.3d 649, 661 (Tex.App.--Texarkana  2001),  pet.  denied,  73
S.W.3d 233 (Tex. 2002) (citing Duff v. Yelin,  751  S.W.2d  175,  176  (Tex.
1988).  Although a medical expert may not base his or her opinion  on  "mere
conjecture, speculation, or possibility," Rehabilitative  Care  Systems,  43
S.W.3d at 663 (citing Bradley v. Rogers, 879 S.W.2d 947, 953-54  (Tex.App.--
Houston [14th Dist.] 1994,  writ  denied)),  the  expert  may  appropriately
testify concerning possible causes of  plaintiff's  condition  in  order  to
assist the jury in evaluating other evidence of causation.  Id.

                                  Analysis

      As to Mid-Continent's first issue,  we  must  examine  the  record  to
determine whether Goode presented legally and factually sufficient  evidence
to establish that  "in  reasonable  medical  probability"  the  accident  in
question caused Goode's cervical condition.

      Goode testified at  trial  that  prior  to  the  accident  he  had  no
problems with his neck or his shoulder.  Immediately  after  the  automobile
accident he was diagnosed with a shoulder injury and within three  years  he
was experiencing chronic shoulder pain which continued  to  the  present  at
the time of trial.  Both Drs. Nordyke and Baldwin agreed  that  the  absence
of neck pain at the time of the accident did  not  necessarily  exclude  the
possibility that Goode's neck injury occurred at  that  time.   Furthermore,
Dr. Baldwin testified  that  a  very  common  presentation  of  a  C-6,  C-7
herniation is that the pain runs along the inner edge of the shoulder  blade
which sometimes radiates over the shoulder, indicating  that  neck  injuries
can often present themselves as shoulder pain.

      Both Drs. Nordyke and Burke testified that Goode's frozen shoulder  or
adhesive capsulitis was associated with having  cervical  radiculitis  or  a
herniated disk and Dr. Nordyke relied on an article in  a  medical  textbook
to show that the  medical  community  recognized  these  symptoms  as  being
"highly associated."  While Dr. Nordyke opined that  Goode's  shoulder  pain
following  successful  surgery  indicated  the  possibility  of  a  cervical
injury, Dr. Burke opined that Goode's  stiffness  following  surgery  was  a
postoperative condition caused by the surgery and  not  the  accident.   Dr.
Burke also testified that adhesive capsulitis could occur as the  result  of
minor trauma to the shoulder and that a collision, such as the collision  in
question,  could  have  turned  a  neck   problem   from   asymptomatic   to
symptomatic.

      While Dr. Burke's opinion that Goode's current disk problems were  not
caused by the accident in question was based on  Dr.  Nordyke's  failure  to
identify a neck injury shortly after the  accident,  Dr.  Nordyke  testified
that he may have missed the diagnosis due to  Goode's  prostate  cancer  and
radiation treatment.   Dr.  Nordyke  also  testified  that  Goode's  steroid
therapy would have quieted any cervical issue in addition  to  treating  the
inflammation in his shoulder.  Dr. Nordyke testified that it was  not  until
Goode visited him in April 2006 complaining of a tingling sensation  in  his
fingers and pain in his arm that he came to  suspect  that  Goode  had  also
injured his neck in the accident.

       Mid-Continent  asserts  that  Goode's  evidence   of   causation   is
predicated solely on Dr. Nordyke's reference to  an  article  in  a  medical
textbook.[10]  We disagree.  Reasonable medical probability can be based  on
the evidence as a whole.  Rehabilitative Care  Systems,  43  S.W.3d  at  663
(citing Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988)).

       Mid-Continent  also  contends  that  Dr.  Nordyke's   opinions   lack
probative value because he ignores the fact that Goode's  MRI  evidences  no
abnormalities at C-5 and he disregards the  absence  of  temporal  proximity
between the accident and the onset of  neck  pain.    In  that  regard,  Dr.
Burke testified that neck problems are usually related to  the  C-5  or  C-6
nerve root while Dr. Baldwin testified  that  his  second  MRI  confirmed  a
narrowing of Goode's disc at the C-6, C-7 level.  Furthermore,  Dr.  Baldwin
recognized that Goode had degenerative changes in  his  spine  in  the  2006
MRIs but opined that he believed the accident either caused  or  exacerbated
whatever degenerative processes Goode  was  experiencing  in  the  following
years. Dr. Baldwin also testified that  Goode's  x-rays  and  MRIs  did  not
describe any significant  degenerative  changes  and,  because  the  changes
occurred in a single level, Goode's x-rays and MRIs indicate or  hint  that,
at some point, there was  a  concentration  of  force,  or  injury  at  that
level.[11]   Accordingly,  Dr.  Nordyke  does  not   ignore   the   cervical
abnormalities, he simply disagrees with Dr. Burke that degenerative  changes
were the cause of Goode's  neck  pain  in  2006.   As  to  the  question  of
temporal proximity, although  there  was  a  three  year  span  between  the
accident in 2003 and Goode's complaint of neck pain in 2006,  Dr.  Nordyke's
opinion evidence closed the gap  by  establishing  the  medically-recognized
association between a shoulder and  neck  abnormality,  Goode's  failure  to
fully recover after a successful reparation  of  his  shoulder  issues,  and
Goode's chronic shoulder pain during the entire period.  Both  Drs.  Nordyke
and Baldwin testified that Goode exhibited symptoms of cervical  radiculitis
from the date of the  accident  forward.   Dr.  Nordyke  testified  that  he
failed to diagnose the neck issue earlier because of  Goode's  diagnosis  of
prostate cancer and his steroid  treatment  not  only  masked  the  pain  in
Goode's shoulder but also any issues with his neck.   Although  evidence  of
temporal proximity is relevant to the issue of  causation,  the  absence  of
temporal proximity does not exclude causation any more than the presence  of
temporal proximity, by itself, establishes medical causation.   See  Guevara
v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007).  Thus,  the  fact  that  Goode's
neck  issues  did  not  present  themselves  until  three  years  after  the
accident, by  itself,  does  not  render  Dr.  Nordyke's  or  Dr.  Baldwin's
opinions speculative or conjecture as a matter of law.

      In the final analysis, Goode's  experts,  Drs.  Nordyde  and  Baldwin,
simply disagreed with Mid-Continent's expert, Dr.  Burke,  on  a  number  of
issues.  The resolution of conflicts in opinion is best left to the  finders
of fact.  See City of Keller, 168 S.W.3d at 822; Cantu v. Pena,  650  S.W.2d
906, 909-10 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.).  In this  case,
those conflicts were simply resolved by the jury in Goode's favor.     Based
upon the record, we cannot say that  the  evidence  that  Goode  suffered  a
cervical injury as a result of the accident is so weak  as  to  do  no  more
than create a mere surmise or suspicion of fact.  Nor can we say the  jury's
implied  finding  to  that  effect  is  so  against  the  great  weight  and
preponderance of the evidence as to be clearly wrong or  manifestly  unjust.
See generally Rehabilitative Care Systems, 43  S.W.3d  at  663;  Cantu,  650
S.W.2d at 910.  Mid-Continent's first issue is overruled.

                              Medical Expenses

      By its second issue, Mid-Continent challenges a portion of the  jury's
award for past and future medical care.  In  doing  so,  it  challenges  the
legal sufficiency of the evidence establishing the  necessity  of  the  care
and  the  reasonableness  of  the  associated  expense.   Specifically,   it
challenges  $7,474.89  of  the   $37,188.25   awarded   for   past   medical
expenses[12] and all of the $59,094.18 awarded for future medical  expenses.
 Mid-Continent contends the verdict lacks the support of legally  sufficient
evidence because expert proof of reasonableness and  necessity  is  missing.
We disagree.

                            Past Medical Expenses

      As  to  past  medical  expenses,  in  both  the  opening  and  closing
statements to the jury, Mid-Continent's counsel asserted that  past  medical
expenses associated with Goode's shoulder injury were proper and  should  be
awarded.[13]   Immediately  following  opening  statements  Goode's  counsel
tendered  numerous  exhibits,  including  an  exhibit  entitled  Summary  of
Damages, in support of his claim for  damages:  $37,188.25  for  total  past
medical care and $59,094.18 for total future medical care.[14]   When  asked
by the trial court whether Mid-Continent had any objection to the  admission
of these exhibits, Mid-Continent's  counsel  replied,  "No  objection,  Your
Honor."[15]  Although he  does  not  specifically  identify  during  closing
arguments what expenses his $36,000 reference was intended  to  identify,  a
review of the record indicates that the only reasonable reference  would  be
to the $37,188.25 for  past  medical  care  identified  in  the  Summary  of
Damages, previously introduced without objection.

      Thus, having stipulated to the  admission  of  Goode's  trial  exhibit
evidencing his past medical expenses  and  prospective  charges  for  future
medical services; see Tex. R. Civ. P. 11  (providing  that  agreements  made
between parties are enforceable  if  made  in  open  court  and  entered  of
record); Bufkin v. Bufkin, 259 S.W.3d 343, 355 (Tex.App.--Dallas 2008,  pet.
denied), and having agreed that Goode's claim  for  past  medical  care  was
"proper" and "legitimate," Mid-Continent will not now be  heard  to  contest
the jury's finding as to that element of Goode's  damages.   Mid-Continent's
"stipulation is a binding  contract  between  the  parties  and  the  court,
serves as proof on an issue that would otherwise be tried, is conclusive  on
the issue addressed, and estops the parties from claiming to the  contrary."
 Solares v. Solares, 232 S.W.3d 873, 883 (Tex.App.--Dallas  2007,  no  pet.)
(citing Houston Lighting & Power Co. v. City of  Wharton,  101  S.W.3d  633,
641 (Tex.App.--Houston [1st Dist.] 2003, pet.  denied)).   Accordingly,  the
jury's finding as to past medical care is supported  by  legally  sufficient
evidence.

                           Future Medical Expenses

       As  to  future  medical  expenses,  Texas  follows  the   "reasonable
probability" rule.  Fisher v. Coastal Transport Co., 149 Tex.  224,  228-29,
230 S.W.2d 522, 524 (1950); Bituminous Cas. Corp., 223 S.W.3d 485 (Tex.App.-
-Amarillo 2006, no pet.); Hughett  v.  Dwyre,  625  S.W.2d  401  (Tex.App.--
Amarillo 1981, writ ref'd n.r.e.).  Adhering  to  that  rule,  Texas  courts
have consistently held that the  award  of  future  medical  expenses  is  a
matter primarily  for  the  jury  to  determine.   No  precise  evidence  is
required and the jury may base its award upon the nature and extent  of  the
injuries, the progress toward  recovery  of  the  injured  party  under  the
treatment already provided, the reasonable cost of medical care rendered  in
the past, and the physical condition of the injured party  at  the  time  of
trial.  Edens-Birch Lumber v. Wood,  139  S.W.2d  881,  887  (Tex.Civ.App.--
Beaumont 1940, dism'd judg. corr).  See also Ibrahim v.  Young,  253  S.W.3d
790, 808-09 (Tex.App.-Eastland 2008, pet. denied);  Bituminous  Cas.  Corp.,
223 S.W.3d at 490-91.  Nonetheless, a plaintiff seeking recovery for  future
medical expenses must show there is a reasonable  probability  that  medical
expenses resulting from the injury will be incurred in the  future  and  the
reasonable costs of such care.  Bituminous Cas. Corp., 223  S.W.3d  at  490.
Here, Dr. Baldwin, the neurosurgeon, testified of Goode's need for  surgery,
and Goode introduced evidence of its likely cost.

      Under the record in this case,  we  conclude  that  the  evidence  was
legally sufficient to support the submission  of  the  issue  regarding  the
amount of medical expenses that,  in  reasonable  probability,  Goode  would
incur in the future.  Furthermore, we conclude that the evidence is  legally
sufficient to support the jury's answer to that  issue.   Accordingly,  Mid-
Continent's second issue is overruled.

                             Breach of Contract

      Mid-Continent next asserts that the record is devoid of  any  evidence
in support of a requisite  element  of  Goode's  breach  of  contract  claim
because  Goode  failed  to  proffer  evidence  of   Mid-Continent's   policy
provisions permitting recovery.  A plaintiff  seeking  recovery  against  an
insurance  company  for  injuries  resulting  from  the  negligence  of   an
uninsured/underinsured motorist must plead and prove that, at  the  time  of
the accident, the plaintiff was  protected  by  UIM  coverage.   Mid-Century
Ins. Co. v. McLain, No. 11-08-0097-CV,  2010  Tex.App.  LEXIS  1719,  at  *5
(Tex.App.--Eastland March 11, 2010, no pet.) (mem.  op.).   Having  reviewed
the record, supra,  we  find  that  Mid-Continent  stipulated  to  liability
during pretrial proceedings. See  Tex.  R.  Civ.  P.  11.   Furthermore,  by
agreement, the case was tried as an automobile accident case with  a  single
issue pertaining to damages caused by the accident.   Because  Mid-Continent
stipulated to liability on the insurance contract, Goode  was  not  required
to offer proof on that issue, and Mid-Continent  is  barred  from  disputing
it.  Solares, 232 S.W.3d at 883; Hansen v. Academy Corp.,  961  S.W.2d  329,
335 (Tex.App.--Houston [1st Dist.] 1997,  pet.  denied).   Accordingly,  the
parties' stipulation is sufficient  evidence  of  Mid-Continent's  liability
pursuant  to  its  insurance  contract.   Mid-Continent's  third  issue   is
overruled.

                                 Conclusion

      The trial court's judgment is affirmed.



                                        Patrick A. Pirtle
                                              Justice
-----------------------
[1]Goode testified that he had no problems with his shoulder or  neck  prior
to the accident,.

[2]A SLAP tear is an injury to a part of  the  shoulder  joint.   It  is  an
acronym for Superior Labrum from Anterior to Posterior.

[3]Goode is a contract lease operator for a petroleum company.  As such,  he
was required to single-handedly take care of production  and  perform  minor
maintenance on numerous oil wells.

[4]Dr. Nordyke practices  arthroscopic  and  sports  medicine  surgery.   He
specializes in upper extremity issues and does  "quite  a  bit  of  shoulder
work."

[5]Dr. Baldwin described Goode's ruptured or bulging  disk  as  a  condition
that develops over a long period of time.  He testified that, when the  disk
is injured, "if it's torn, for example, and  ruptures  over  the  course  of
time, typically, the disk will lose its water content, and as  it  does  so,
the water keeps it kind of spongy and soft and lets  the  disk  perform  its
natural function to be our body's shock absorber.  When the disk  loses  its
water content, it becomes more firm, it loses its sponginess and  will  lose
its height.  The bones come closer together as  the  disc  height  is  lost.
And associated with that, usually, is some  bone  spur  formation  and  some
other changes which were seen in Mr. Goode's MRI."   He  testified  "[t]hose
changes [in Goode's spine] oftentimes are long--long-standing, and  so  they
could have actually been there at the time of the accident. And, because  it
was after the accident, when we first saw the  patient,  and  it  was  years
before they first--to my knowledge, anyway,  the  first  MRI  was  obtained,
those changes could have been initiated at the time  of  the  accident,  and
they could have advanced over the course of the following years. . . ."

[6]Dr. Baldwin testified that Goode's  second  MRI  confirmed  there  was  a
narrowing of the disk at the C-6, C-7 level at the opening on  the  side  of
the spine where the nerve exits to go down the arm, the seventh root  coming
down from the top of the left side of the spine.

[7]Dr. Burke did agree that Goode's shoulder was injured in the  April  2003
automobile accident.

[8]Question 1 stated "[w]hat sum of  money,  if  paid  now  in  cash,  would
fairly and reasonably compensate Kenneth Goode for  his  injuries,  if  any,
that resulted from the occurrence in question?"

[9]The jury's award included:  $25,000 for past physical pain,  $25,000  for
future physical pain, $58,080 for future loss of  earning  capacity,  $4,000
for  disfigurement,  $6,000  for  future  disfigurement,  $25,000  for  past
physical impairment, $50,000 for future physical impairment, $37,188.25  for
past medical expenses, and $59,094.18 for future medical expenses.

[10]To  the  extent  Mid-Contintent  challenges  the  reliability   of   Dr.
Nordyke's textbook reference as  a  basis  for  his  opinion,  Mid-Continent
failed to object to  the  evidence  when  it  was  offered  at  trial.   See
Maritime Overseas Corp. v. Ellis, 971  S.W.2d  402,  410  (Tex.  1998)  ("To
preserve a complaint that scientific evidence is  unreliable  and  thus,  no
evidence, a party must object to the  evidence  before  trial  or  when  the
evidence was offered.")  "Without a timely objection to the  reliability  of
the scientific evidence, the offering party is not given an  opportunity  to
cure any defect that may exist, and will be subject to trial and  appeal  by
ambush."  Id. at 409 (citing Marbled Murrelet  v.  Babbitt,  83  F.3d  1060,
1066-67 (9th Cir. 1996), cert. denied, 519 U.S. 1108,  117  S.Ct.  942,  136
L.Ed.2d  831  (1997)).   Although   Mid-Continent   tested   Dr.   Nordyke's
credentials as an expert by objection prior to trial, Mid-Continent did  not
object to this evidence at trial.

[11]Dr. Baldwin  also  testified  that  he  had  no  basis  to  dispute  Dr.
Nordyke's opinion that Goode had cervical spine and shoulder problems  since
the accident and Goode's cervical spine abnormality was  largely  masked  by
his shoulder symptoms.  Dr. Baldwin  testified  that,  given  Dr.  Nordyke's
expertise on shoulder  issues,  he  completely  deferred  to  Dr.  Nordyke's
opinion on the matter.

[12]Mid-Continent  challenges  the  past  medical  expenses   for   services
provided  by  Dr.  Nordyke  ($4,968.89),  ASLAN   ($156.00),   Dr.   Strahan
($1,230.00),  Dr.  Mould  ($780.00),  and  NWTX  Imaging  Associates,   P.A.
($340.00).  Although acknowledging  that  evidence  of  these  amounts  were
introduced into evidence, Mid-Continent argues that "none of  the  foregoing
exhibits [are] probative of reasonable and  necessary  medical-care  expense
because such statements, standing alone,  do  not  'constitute  evidence  of
probative force that the charges are  reasonable.'"  (Citation  to  internal
quotation omitted).

[13]In his opening statement, Mid-Continent's counsel said,  "It's  not  the
damages to the shoulder.  Doesn't have anything to do - those  -  those  are
proper damages."  In his closing statement he said, "I will tell  you  right
now that the 36,000 for the shoulder repair is  absolutely  legitimate,  and
we have no objection to that.  We told you very early on that that  was  not
a problem, and you should award that, because that is legitimate."

[14]Ultimately, the jury accepted this summary and awarded these damages -
to the penny.

[15]At the September 19, 2008,  pretrial  hearing  held  less  than  a  week
before  trial,  Mid-Continent's  counsel  represented   that   Mid-Continent
stipulated to the admissibility of all plaintiff's trial exhibits  with  the
exception of a  letter  from  Dr.  Baldwin  to  Goode's  counsel.   At  that
hearing, the following exchange occurred:

      GOODE'S COUNSEL:  I believe this is the same issue that was brought up
      in their Daubert challenge, and that you have  already  ruled  on  the
      contents of the letter and deemed  it  admissible.   Beyond  that  one
      issue, I think we are in agreement on  everything  else  that  I  have
      proffered as evidence.  Is that correct?

      MID-CONTINENT'S COUNSEL:  Yes, sir.   That  is  our  understanding  as
      well.

      GOODE'S COUNSEL:  Which  is  inclusive  of  past  medical  and  future
      medical and the manner  in  which  they  will  be  introduced  through
      exhibits.

      THE COURT:  Okay.  With regard to your exhibits, do we have an exhibit
      list?  Is that in one of these books?

                                     *     *     *

      THE COURT:  [Mid-Continent's counsel], when [Goode's  counsel]  refers
      to all exhibits, except one, it appears that you-all have an agreement
      as to the admissibility thereof.  Do  you  know  what  he  is  talking
      about?  Is that accurate?  Can I accept that as a stipulation?

      MID-CONTINENT'S COUNSEL:  Yes, sir; as far  as  the  medical  that  he
      referred to earlier, the medical affidavits, medical  records,  so  on
      and so forth, I believe that those are essentially the  exhibits  that
      we are talking about and the exhibits that  we  would  use  at  trial,
      which we have stipulated as to admissibility.



