(3) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus. Id. New Hampshire Insurance argues in its brief and argued at oral argument that, to be compensable, the heart attack must occur during work hours.
When construing a statute, our primary objective is to ascertain and give effect to the Legislature’s intent. Tex. Gov’t Code Ann. § 312.005 (Vernon 2013); see Harris Cnty. Appraisal Dist. v. Tex. Gas Transmission Corp., 105 S.W.3d 88, 97 (Tex. App.—Houston [1st Dist.] 2003, pet. denied). "Unambiguous statutory language is interpreted according to its plain language unless such an interpretation would lead to absurd results." Hernandez v. Ebrom, 289 S.W.3d 316, 318 (Tex. 2009) (citing Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999)). Finally, we presume that the Legislature chooses a statute’s language with care, including each word chosen for a purpose, while purposefully omitting words not chosen. TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 439 (Tex. 2011).
For a heart attack to be compensable, it must be identified as having "occur[ed] at a definite time and place." Lab. § 408.008(1)(A). It must also be identified as having been "caused by a specific event occurring in the course and scope of the employee’s employment." Id. § 408.008(1)(B). There is nothing in the plain language of the statute to support New Hampshire Insurance’s argument that the statute requires the heart attack to have occurred during work hours.
During oral argument, New Hampshire Insurance argued that, without such an interpretation, "a heart attack occurring at a definite time and place" would be synonymous with "a heart attack, " since all heart attacks occur at a definite time and place. Accordingly, New Hampshire Insurance argues, such an interpretation would render the phrase "occurring at a definite time and place" meaningless.
The statute does not simply require that the heart attack must occur at a specific time and place. Instead, the statute requires a heart attack to be identified as having occurred at a specific time and place. Id. § 408.008(1)(A). From this, it can be reasonably concluded that this subsection excludes from compensability heart attacks that are known to have occurred some time in the past but the specific time and place of the attack cannot be identified. There is no need, then, to take language only present in subsection (1)(B) and insert it into subsection (1)(A) in order to give subsection (1)(A) meaning.
New Hampshire Insurance also relies on Transcontinental Insurance Co. v. Smith, 135 S.W.3d 831 (Tex. App.—San Antonio 2004, no pet.) superseded by statute on other grounds as recognized in Discover Property & Casualty Insurance Co. v. Tate, 298 S.W.3d 249, 257 & n.5 (Tex. App.—San Antonio 2009, pet. denied) to support its contention that the heart attack must occur during work hours. In Smith, the employee began having arm and chest pains at work and was admitted to the hospital a short time later. Id. at 833. The court never held, however, that these facts were necessary to establish compensability. Instead, the issue in Smith was whether evidence of symptoms developing gradually rather than suddenly negated the requirements of subsection (1). Id. at 834. The court held the evidence did not negate the requirements. Id. at 835. Specifically, it held that the evidence was "sufficient to pinpoint the heart attack as [1] occurring during the afternoon of April 17, 1998, and [2] caused by the specific event of driving grade stakes." Id. Contrary to New Hampshire Insurance’s argument, the court’s holding kept the two elements of subsection (1) distinct. Id.
We hold that the statute does not require the employee’s heart attack to occur during work hours to be compensable.
Expert Testimony
In its first issue, New Hampshire Insurance argues the trial court abused its discretion by admitting the testimony of Dr. Sander.
A. Standard of Review
We review the trial court’s ruling on the reliability of expert testimony for an abuse of discretion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006); E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995). Under this standard, the trial court has broad discretion in deciding whether to admit or exclude expert testimony. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998); Wilson v. Shanti, 333 S.W.3d 909, 912 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). We reverse only if the trial court acted arbitrarily, unreasonably, or without reference to any guiding rules or principles. Wilson, 333 S.W.3d at 912.
B. Analysis
For an expert’s testimony to be admissible, the expert must be qualified and the opinion must be relevant and based on a reliable foundation. Tex. R. Evid. 702; Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 628 (Tex. 2002). New Hampshire Insurance argues that Dr. Sander was not qualified to testify as an expert and that his opinion was unreliable.
1. Qualification as an Expert
New Hampshire Insurance argues that Dr. Sander was not qualified to testify as an expert because he was not licensed in Texas. For authority, New Hampshire Insurance relies on chapter 180 of the Texas Administrative Code, concerning the monitoring and enforcement of matters relating to the Workers’ Compensation Act. See 28 Tex. Admin. Code § 180.1–.78 (2013) (Tex. Dep’t of Ins., Monitoring & Enforecement). Specifically, New Hampshire Insurance argues that the Administrative Code requires "physicians who render opinions on the status of a claimant, " medical examination doctors, and peer review doctors to be licensed in Texas. See id. § 180.22(f)(5), (g).
New Hampshire Insurance recognizes that "these rules do not expressly apply to physicians selected by a system participant to serve as a testifying expert." Nevertheless, it argues, the rules "do provide a minimum standard of qualification to guide the trial judge." New Hampshire Insurance does not provide any authority for this assertion, however.
To the contrary, section 410.306 of the Texas Labor Code provides that evidence in a trial for a dispute over compensability of an injury "shall be adduced as in other civil trials." Tex. Lab. Code Ann. § 410.306 (Vernon Supp. 2012); see also Tex. Lab. Code Ann. § 410.301 (Vernon 2006) (providing for judicial review of administrative determinations of compensability). Accordingly, there is no basis to rely on the cited sections of the Administrative Code as a basis for the admissibility of an expert at trial.
Instead, "a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." Tex. R. Evid. 702 (emphasis added). "[W]hen there is proof of a physician’s expertise in the particular areas involved in the case, the trial court abuses its discretion by refusing to qualify the physician as an expert witness." Keo v. Vu, 76 S.W.3d 725, 730 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). "The term ‘physician, ‘ as it is ordinarily used, refers to a person who is licensed to practice medicine. It does not impose any geographical limits." TTHR, L.P. v. Guyden, 326 S.W.3d 316, 321 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (internal citations omitted). Neither rule 702 nor chapter 180 of the Texas Administrative Code places any restrictions on what state a doctor must be licensed in to be qualified to testify as an expert.
New Hampshire Insurance also complains of a litany of documents it claims Dr. Sander did not review or alleged facts it claims Dr. Sander did not consider in formulating his opinion. Even accepting these arguments as true, New Hampshire Insurance does not explain how this would establish that Dr. Sander was not qualified to testify as an expert.
In deciding if an expert is qualified, trial courts "must ensure that those who purport to be experts truly have expertise concerning the actual subject about which they are offering an opinion." Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex.1998) (quoting Broders v. Heise, 924 S.W.2d 148, 152 (Tex. 1996)). "The offering party must demonstrate that the witness possesses special knowledge as to the very matter on which the witness proposes to give an opinion." Keo, 76 S.W.3d at 731 (citing Gammill, 972 S.W.2d at 718; Broders, 924 S.W.2d at 152–53).
Dr. Sander is a cardiologist with a Ph.D. in biochemistry and is licensed in the State of Louisiana. He received his medical degree in 1974. He has done research in cardiology both on animals and in clinical research. He teaches medical students and fellows at Tulane and Louisiana State University. For a period of time, he ran the Cardiology Fellowship Training Program at Louisiana State University. Currently, he teaches as well as maintains an active private practice. The trial court did not abuse its discretion in concluding that Dr. Sander was qualified to be an expert witness.
2. Reliability of Dr. Sander’s opinion
New Hampshire Insurance presents a number of arguments for why Dr. Sander’s opinion should be considered unreliable. First, it argues that Dr. Sander’s theory for Bill’s death does not satisfy the Robinson factors. Second, it argues that he could not prove the time of Bill’s plaque rupture. Finally, it argues that there was too great of an analytical gap between the opinion and the applicable facts because Bill only minimally participated in fire training and because there was no proof that Bill suffered a heart attack during the training.
In determining whether expert testimony is reliable, we consider the Robinson factors. Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 215 (Tex. 2010). The Robinson factors are (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert; (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. Robinson, 923 S.W.2d at 557. These factors are not exclusive and not all of them apply in each review. TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 235 (Tex. 2010). We also consider the expert’s experience, knowledge, and training. Crump, 330 S.W.3d at 215–16 (citing Gammill, 972 S.W.2d at 726–27).
New Hampshire Insurance argues that Dr. Sander’s opinion is unreliable because his theory for Bill’s death does not satisfy the Robinson factors. Dr. Sander’s theory for Bill’s cause of death was that Bill experienced a "rupture" at the site of one of the plaque buildups, which caused a clot to form.[1] This, in turn, led to the artery becoming completely blocked. Bill suffered a heart attack as a result, and died.
This was Dr. White’s theory as well. Both sides’ experts agreed that this is a well-accepted explanation for the progression of a heart attack. Both sides’ experts also agreed that physical stress beyond a person’s usual physical activity can increase the risk for a heart attack. The only portion of their theories for Bill’s cause of death that the experts did not agree on was the window of time after the increased physical stress that a heart attack could occur in order to be correlated to the increased physical stress.
Given that both well-qualified experts agreed on the overall theory of how Bill died and that higher-than-normal activity can increase the risk for a heart attack, the trial court reasonably could have concluded that these theories have been tested, have been subjected to peer review and/or publication, have been generally accepted as valid by the relevant scientific community, and there are non-judicial uses which have been made of the theories. See Robinson, 923 S.W.2d at 557. Accordingly, the general theory of Bill’s cause of death, agreed to by both experts, satisfied the Robinson requirements. See id.
For the dispute between the experts over the window of time after the increased physical stress that a heart attack could occur in order to be correlated, New Hampshire Insurance argues that, because the risk for a heart attack returns to the baseline level of risk 45 minutes after strenuous activity, Dr. Sander’s theory that Bill’s heart attack was a result of his training must be unreliable. The testimony that the risk for a heart attack returns to the baseline level of risk 45 minutes after strenuous activity came from New Hampshire Insurance’s expert, Dr. White. Dr. White testified that medical literature supported this theory.
Dr. Sander testified that it was Bill’s activity during fire training school that caused the rupture. He testified that, from a cardiac perspective, Bill had been stable up until the training. He had even had "major abdominal surgery" for colon cancer less than a year before his heart attack and had been "asymptomatic" up until the day after his training. Dr. Sander viewed Bill’s physical activity during fire training as significantly higher than his usual physical activity during work. He testified there was a continuity of symptoms from the time that Bill left the fire training school until he had his heart attack and that he did not see any significance in the period of time from when he left the training to when he had his heart attack.
Essentially, New Hampshire Insurance is asking us to presume that its expert’s theory is reliable in order to determine that Peggy Allison’s expert’s theory is unreliable. Conflicting theories between experts, however, do not automatically render one unreliable. See Thota v. Young, 366 S.W.3d 678, 695 (Tex. 2012) (holding conflict between experts’ theories is matter to be resolved by jury). The trial court could rely on Dr. Sander’s expertise and experience as a cardiologist with an active practice that also continues to teach medical students and fellows on cardiological matters as support for the theory that it was possible for a person to experience increased physical stress, have a continuity of symptoms following that increased physical stress, and have a heart attack over 30 hours later. See Crump, 330 S.W.3d at 215–16 (citing Gammill, 972 S.W.2d at 726–27) (holding expert’s experience, knowledge, and training is considered in determining reliability).
When an expert’s experience and training is a basis for a reliability determination, the opinion becomes unreliable if there is too great of an analytical gap between the evidence considered by the expert and the opinion offered. Gammill, 972 S.W.2d at 726–27; Tamez, 206 S.W.3d at 579. New Hampshire Insurance argues that there is too great of an analytical gap because "the evidence established that [Bill] only minimally participated in the . . . training." While there was evidence to support its claim that Bill only minimally participated in the training, New Hampshire Insurance overlooks the fact that there was also evidence that Dr. Sander reviewed to support the argument that Bill’s physical exertion during the training was far greater than Bill’s physical exertion in his regular work duties. Bellard testified that Bill wore heavier clothing, was exposed to greater heat, and engaged in greater physical activity during the training than what Bill normally experienced at work.
New Hampshire Insurance complains that Dr. Sander "could not test, prove, or demonstrate any evidence of a plaque rupture beyond the six hours preceding the heart attack." Both experts agreed that, absent active testing with use of a catheter on a patient at the specific time, there was no way to test when a plaque rupture specifically occurs. It could only be inferred by the circumstances surrounding the heart attack.[2] The undisputed testimony, however, was that Bill did have a plaque rupture and died from a later-resulting heart attack.
We hold the trial court was within its discretion to admit Dr. Sander’s opinion. Accordingly, we overrule New Hampshire Insurance’s first issue.
Legal and Factual Sufficiency
In its second and third issues, New Hampshire Insurance argues that the evidence was legally and factually insufficient to support the jury’s determination that Bill suffered a compensable heart attack.
A. Standard of Review
"The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In performing a legal-sufficiency review, we must credit favorable evidence if reasonable fact finders could credit it and disregard contrary evidence unless reasonable fact finders could not disregard it. Id. "If the evidence . . . would enable reasonable and fair-minded people to differ in their conclusions, then [fact finders] must be allowed to do so." Id. at 822. "A reviewing court cannot substitute its judgment for that of the trier-of-fact, so long as the evidence falls within this zone of reasonable disagreement." Id. Although the reviewing court must consider evidence in the light most favorable to the verdict, and indulge every reasonable inference that would support the verdict, if the evidence allows only one inference, neither fact finder nor the reviewing court may disregard the inference. Id.
To determine whether the evidence is factually sufficient to support a finding, an appellate court considers and weighs all evidence that was before the trial court. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When an appellant attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, the appellant must demonstrate the finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See id. As the reviewing court, we may not act as fact finder and may not pass judgment on the credibility of witnesses or substitute our judgment for that of the trier of fact. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The party appealing the final administrative decision on the compensability of an injury bears the burden of proof by a preponderance of the evidence. Tex. Lab. Code Ann. § 410.303 (Vernon 2006); Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007). Because Peggy was the party appealing the final determination of compensability of the heart attack, she bore the burden of proof at trial. See Lab. § 410.303.
B. Analysis
In its legal-sufficiency issue, New Hampshire again argues that there was no evidence to establish the heart attack occurred at a definite time and place and was caused by a specific event occurring in the course and scope of Bill’s employment. See Lab. § 408.008(1). It argues, "There was no evidence that William Allison had an onset of symptoms while participating in fire training." There is nothing in the statute, however, that requires an employee to display an onset of symptoms of a heart attack at the time of work. Instead, the heart attack must "be identified as (A) occurring at a definite time and place; and (B) caused by a specific event occurring in the course and scope of the employee’s employment." Id.
Both sides’ experts agreed that Bill’s heart attack began in the late afternoon or early evening on October 25, 2008. This satisfies subsection (1)(A) of the statute. See id. § 408.008(1)(A). Dr. Sander testified that it was his opinion that the heart attack was caused by a plaque rupture, which occurred during the course and scope of Bill’s employment while he was at the training. This satisfies subsection (1)(B) of the statute. See id. § 408.008(1)(B) (requiring heart attack be identified as "caused by a specific event occurring in the course and scope of the employee’s employment").
Even if continuity of symptoms from the time of work to the time of the heart attack were required under the statute, such proof is present here. Specfically, Dr. Sander testified,
[T]here is nothing in his history from November of 2007 through the beginning of fire training school that suggest[s] any destabilization of his condition. He then undergoes a very stressful situation. . . . And in the context of that, begins having fatigue, nausea, malaise, diaphoresis, indigestion, and then progresses to acute myocardial infarction with rhythm disturbance and is unresuscitatable when he gets to the emergency room because of myocardial infarction. He dies because he develops basically ventricular fibrillation because of myocardial injury due to a buildup of plaque precipitated by his fire training school.
He later testified, "There is a continuity of symptomatology not existing before fire training; beginning within; and after that, culminates in his" heart attack.
New Hampshire Insurance argues that the evidence disproves that Bill was displaying any symptoms even when he was home. It argues, instead, that Bill was behaving normally and engaging in activity such as mowing the yard and having his hair cut. In making this argument, New Hampshire Insurance overlooks the evidence to the contrary. Peggy, her daughter, and her son each testified that Bill was not behaving normally after returning from the training to the time of his heart attack. Their description of Bill’s behavior is in line with Dr. Sander’s description of the continuity of symptoms.
New Hampshire Insurance similarly overlooks other evidence in arguing that there was no evidence that Bill exerted himself any more during his training than he did during work. There was ample evidence in the record, however, to support the contention that, during the training, Bill wore heavier clothing, was exposed to greater heat, underwent greater exertion, and was presented with more stressful than usual circumstances than he experienced during his regular work.
In presenting its factual-sufficiency evidence, New Hampshire Insurance relies on the same evidence to argue that Bill did not exhibit a continuity of symptoms from the time of work to the time of heart attack and that Bill’s exertion during training was not any greater than his regular exertion at work. While there was conflicting evidence on these matters at trial, these conflicts are factual disputes to be resolved by the jury. See Golden Eagle Archery, 116 S.W.3d at 761 (holding appellate court should not impinge on fact finders’ role of judging credibility of witnesses and resolving factual disputes). Nothing in the record suggests that the evidence upon which the jury relied is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176.
We overrule New Hampshire Insurance’s second and third issues.
Conclusion
We affirm the judgment of the trial court.
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