TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00084-CV
State Office of Risk Management, Appellant
v.
Linda L. Ribble, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. D-1-GN-07-003484, HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
MEMORANDUM OPINION
The State Office of Risk Management (SORM) appeals the trial court’s order denying
its motion for judgment notwithstanding the verdict (JNOV) in a worker’s compensation judicial
review. SORM also challenges the trial court’s denial of its plea to the jurisdiction in response
to a counterclaim for attorney’s fees. We will affirm the trial court’s ruling denying the motion for
JNOV. We will reverse the trial court’s ruling denying SORM’s plea to the jurisdiction in response
to Ribble’s counterclaim and render judgment dismissing Ribble’s attorney’s fee claims for want of
subject-matter jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
Linda Ribble alleges that she developed carpal tunnel syndrome (CTS) due to
repetitive computer use while working at the Texas Commission on Environmental Quality (TCEQ).
After allegedly experiencing severe pain and numbness in her hands and arms, Ribble sought care
from a physician. She was diagnosed with CTS and underwent surgery for her condition. Ribble
sought workers’ compensation insurance coverage.
SORM, the state agency tasked with administering workers’ compensation insurance
on behalf of other state entities, see Tex. Lab. Code § 412.011, challenged Ribble’s claims in
a contested administrative hearing before the Division of Workers’ Compensation (DWC). See id.
§§ 410.151-.169. The hearing officer received evidence and determined that Ribble had suffered a
compensable injury, that the date of injury was December 11, 2006, and that SORM was liable. A
DWC appeals panel affirmed the hearing officer’s findings. See id. § 410.204(c). SORM sought
judicial review in the trial court to challenge those findings, arguing that Ribble failed to (1) timely
notify her employer about her injury and (2) establish causation through expert medical opinion
testimony. Ribble filed a counterclaim for attorney’s fees.
Before trial, SORM filed a plea to the jurisdiction in response to Ribble’s
counterclaim, arguing that sovereign immunity barred liability for Ribble’s attorney’s fees. The
trial court denied SORM’s plea, and the case proceeded to trial. A jury found that Ribble did sustain
a compensable repetitive trauma injury and that December 11, 2006 was the date of injury. SORM
moved for JNOV, arguing that Ribble had not met her burden because she failed to present expert
medical evidence that established causation. SORM also re-urged its plea to the jurisdiction. The
trial court denied both motions.
SORM now appeals, arguing that (1) the evidence upon which the jury relied is
legally and factually insufficient because SORM conclusively established that Ribble failed to timely
notify her supervisor of her injury and that there was no causal connection between Ribble’s work
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activities and her injury and (2) liability for Ribble’s attorney’s fee counterclaim is barred by
sovereign immunity, which was not clearly and unambiguously waived by statute.
DISCUSSION
Legal and Factual Sufficiency
SORM contends that the evidence presented during trial is legally insufficient to
support the jury’s verdict, arguing that Ribble presented no evidence, or alternatively, insufficient
evidence to establish that her injuries were caused by her work at TCEQ. SORM also claims that
it conclusively established that Ribble did not timely notify her supervisor of her injury. In the
alternative, SORM argues that the court’s judgment is not supported by factually sufficient evidence.
For legal sufficiency challenges we must review the evidence presented in the light
most favorable to the jury’s verdict, giving credit to evidence favorable to the prevailing party if a
reasonable juror could, and disregarding contrary evidence unless a reasonable juror could not. City
of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Ultimately, the test is “whether the evidence
at trial would enable reasonable and fair-minded people to reach the verdict under review.” Id. If
there is no evidence, we examine the record to determine if “the contrary proposition is established
as a matter of law.” Waldrep v. Texas Emp’rs Ins. Ass’n, 21 S.W.3d 692, 697 (Tex. App.—Austin
2000, pet. denied). In reviewing factual sufficiency challenges, we must consider and weigh all
evidence presented and set aside a jury’s verdict only if it is “so contrary to the overwhelming weight
of the evidence as to be clearly wrong and unjust.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
SORM argues that the jury’s verdict cannot survive a sufficiency challenge because
Ribble failed to provide expert medical testimony. The Labor Code provides that the party seeking
judicial review of an appeals panel decision in workers’ compensation cases “has the burden of proof
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by a preponderance of the evidence.” See Tex. Lab. Code § 410.303. SORM admits that it did have
the initial burden of proof, but because it was establishing “negative causation,” or the lack of a
causal connection between the work activities and injury, SORM contends that the burden shifted
back to Ribble to present expert testimony to contradict the testimony of SORM’s expert witness
and establish a positive causal connection. SORM argues that juries are bound by the unchallenged
opinion of an expert witness when that witness possesses knowledge about a subject which a
layperson does not, such as the cause, diagnosis, and treatment of disease. Thus, without
contradictory expert testimony, SORM argues that its expert witness conclusively established the
lack of causation.
We disagree. Under a sufficiency analysis, SORM’s expert testimony must be
examined in the context of asking whether a reasonable juror could have disregarded it or reached
a contrary result, or whether a reasonable juror could have believed the evidence favorable to
Ribble—medical records, witnesses, and the findings of the DWC commissioners—over SORM’s
hired expert. Neither this analysis nor the Labor Code requires Ribble to present expert medical
evidence to establish causation. Only SORM, as the party that sought judicial review of the appeals
panel decision, bears the burden to prove causation, or a lack thereof.1
SORM presented expert testimony at trial from Dr. Steiner, a neurologist. Dr. Steiner
testified that while he believed that Ribble’s doctors correctly diagnosed her CTS, he did not agree
that her condition was caused by computer use. Rather, he believed that CTS is a “degenerative
1
Indeed, there are circumstances in which even the party that bears the burden of proof is
not required to present expert medical evidence in order to prove causation. See Jelinek v. Casas,
328 S.W.3d 526, 533 (Tex. 2010) (noting that in very limited circumstances lay evidence may be
used to support a finding of causation).
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process” caused by a number of factors, including age, body mass index, and other health conditions.
Dr. Steiner based his opinion on a review of Ribble’s medical records, his own experience and
training as a neurologist, and several studies that questioned the causal connection between computer
use and CTS.
Ribble cross-examined Dr. Steiner, testified on her own behalf, and presented as
witnesses two TCEQ co-workers who testified as to the timing of the onset of her pain. During
Dr. Steiner’s cross-examination, Ribble suggested that the studies upon which Dr. Steiner based
his opinion on the causes of CTS had been refuted by other, more recent studies. Dr. Steiner
admitted that he had not reviewed the contradictory studies and could offer no opinion as to their
methodologies and conclusions. Ribble also suggested that Dr. Steiner failed to review Ribble’s
entire record, particularly those portions that documented the frequency of her computer use at work,
prior to reaching his conclusions about the cause of her CTS. Dr. Steiner claimed that the revelation
of extensive work computer use did not change his opinion about causation. Additionally, Ribble
questioned Dr. Steiner about a letter showing that he was advised about how he should testify before
he even received Ribble’s records to review. Ribble also presented medical records from her doctors
that confirmed her condition and concluded that her work activities could have irritated the nerves
in her arms, leading to the diagnosis of CTS. Her medical records also noted that the timing of the
onset of pain was not clear, but was reported on December 11, 2006. Ribble testified that the timing
of an increase in her pain (which caused her to seek medical help) coincided with an increase in the
keyboarding she did at work, and that she found some relief from her pain when she stopped using
her computer. Ribble placed into evidence medical records confirming her claims.
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SORM had the burden of proof in challenging the DWC’s findings. Dr. Steiner’s
testimony, which was contradicted by Ribble’s medical records, could have been disregarded by
reasonable jurors and did not refute causation as a matter of law. The jury was not required to take
as completely true the expert’s testimony, as it was presented with other evidence that called the
testimony into question.
A reasonable juror could have accepted as credible the medical records and testimonial
evidence presented by Ribble and questioned the reliability of Dr. Steiner’s testimony. A review of
the entire record reveals contradictions and inconsistencies in Dr. Steiner’s testimony that could
support the jury’s conclusions about the cause of Ribble’s CTS. The evidence, including Ribble’s
testimony and her medical records, is legally and factually sufficient to support a finding of
December 11, 2006 as the date of injury, and thus a timely report was made to her TCEQ supervisor.
As such, the evidence presented was legally and factually sufficient to support the jury’s verdict. See
City of Keller, 168 S.W.3d at 827; Cain, 709 S.W.2d at 176.
Attorney’s Fees
SORM argues that as a governmental entity it is protected from liability for
attorney’s fees by sovereign immunity. A plea to the jurisdiction challenges a court’s subject matter
jurisdiction and is a question of law. Texas Natural Res. Conservation Comm’n v. IT-Davy,
74 S.W.3d 849, 855 (Tex. 2002). Sovereign immunity is properly asserted in a plea to the
jurisdiction and serves to defeat a court’s subject-matter jurisdiction. Texas Dep’t of Parks &
Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex. 2004). We review de novo a trial court’s
treatment of a plea to the jurisdiction. Id. at 226.
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SORM urges that the provisions of the Labor Code that govern workers’
compensation suits do not meet the clear and unambiguous standard for waiver of sovereign
immunity as set forth by the Texas Supreme Court. Further, SORM asserts that the State
Applications Act limits causes of action and damages in workers’ compensation suits to those
allowed under the Texas Tort Claims Act, which does not authorize claims for attorney’s fees against
governmental entities. We agree.
Two recent cases guide our decision on this issue. In Manbeck v. Austin Independent
School District, 381 S.W.3d 528, 529 (Tex. 2012) (per curiam), Manbeck sought workers’
compensation coverage from the Austin Independent School District (AISD) following an on-the-
job injury. After a hearing officer and administrative review panel found that Manbeck did suffer
compensable injuries for which AISD was liable, AISD sought judicial review. Id. Manbeck filed
a counterclaim seeking attorney’s fees, which a jury awarded. Id. at 529-30. AISD appealed the
decision, arguing for the first time at the supreme court that governmental immunity barred liability
for attorney’s fees.2 Manbeck asserted that AISD waived the immunity defense by failing to raise
it in the trial court or court of appeals. Id. at 530.
The Texas Supreme Court held that the defense of governmental immunity from
suit can be raised for the first time on appeal. Id. (citing Rusk State Hosp. v. Black, 392 S.W.3d 88,
94-95 (Tex. 2012)). Further, the court determined that governmental immunity from liability for
attorney’s fees had not been clearly and unambiguously waived by the Political Subdivisions Law,
2
AISD initially challenged the attorney’s fees award on the grounds that (1) the evidence
to support the award was legally and factually insufficient and (2) the applicable statute did not
allow for attorney’s fees incurred in the pursuit of fees. See Austin Indep. Sch. Dist. v. Manbeck,
338 S.W.3d 147, 148-49 (Tex. App.—Austin 2011), aff’d in part and rev’d in part, 381 S.W.3d 528
(Tex. 2012).
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despite the inclusion of an attorney’s fees provision among the adopted provisions of the statute.3
Id. at 530-31; see Tex. Lab. Code § 504.002(a)(6) (applying attorney’s fees provisions of Workers’
Compensation Act to entities subject to Political Subdivisions Law). Finally, the Court held that
AISD’s initiation of the suit did not preclude it from arguing that liability for attorney’s fees was
barred by governmental immunity. Manbeck, 381 S.W.3d at 532-33 (reasoning that AISD did not
waive immunity because it was not seeking affirmative relief, but merely availing itself of right to
challenge administrative decision in court).
In University of Texas System v. Ochoa, 413 S.W.3d 769, 770 (Tex. App.—Austin
2012, pet. denied) the University of Texas System (University) sought judicial review after a hearing
officer found Ochoa disabled. Ochoa moved to recover attorney’s fees and the University filed a
plea to the jurisdiction, arguing that sovereign immunity barred Ochoa’s claim. Id. Ochoa countered
that the governing statutes waived sovereign immunity, which, in any event, could not be raised
because the University initiated the suit. Id. at 771. The trial court denied the University’s plea.
Id. at 770. This court reversed the trial court’s ruling in Ochoa shortly after Ribble filed briefs in this
case. We found that although Manbeck relied on the Political Subdivisions Law, the supreme court’s
reasoning in that case was nonetheless applicable to the question of how the provisions of the
Labor Code and the Texas Tort Claims Act4 should impact the question of sovereign immunity in
3
The adopted provisions of the Political Subdivisions Law list those portions of the
Workers’ Compensation Act that are applicable to certain political subdivisions, including school
districts. See Tex. Lab. Code §§ 504.001-.002. Political subdivisions are considered “employers”
according to the statute. Id. § 504.002(b).
4
See Tex. Lab. Code § 503.002(c) (“Neither this chapter nor Subtitle A authorizes a
cause of action or damages against the state, a state agency, or an employee of the state beyond
the actions and damages authorized by Chapter 101, Civil Practice and Remedies Code.”); Tex. Civ.
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Ochoa. Id. at 772. We determined that the University’s plea to the jurisdiction was not impacted
by the fact that it initiated the suit against Ochoa and that sovereign immunity barred Ochoa’s claims
for attorney’s fees. Id. at 773-74.
In light of Manbeck and Ochoa, we find that sovereign immunity deprives
this court of jurisdiction to award attorney’s fees. The provisions of the Labor Code that apply to
the case before us contain liability-limiting language identical to that in Ochoa. See Tex. Lab. Code
§ 501.002(c) (“Neither this chapter nor Subtitle A authorizes a cause of action or damages against
the state, a state agency, or an employee of the state beyond the actions and damages authorized by
Chapter 101, Civil Practice and Remedies Code.”). As the University did in Ochoa, SORM properly
asserted sovereign immunity through a plea to the jurisdiction, and its initiation of the suit against
Ribble does not preclude it from arguing that sovereign immunity bars liability. Accordingly, we
reverse the trial court’s order as it relates to attorney’s fees and render judgment dismissing Ribble’s
counterclaim for attorney’s fees for want of subject-matter jurisdiction.
CONCLUSION
We affirm the trial court’s ruling denying the motion for judgment notwithstanding
the verdict. We reverse the trial court’s ruling denying SORM’s plea to the jurisdiction and
render judgment dismissing Ribble’s counterclaim for attorney’s fees for want of subject-matter
jurisdiction.
Prac. & Rem. Code § 101 (providing no authorization for liability for attorney’s fees for
governmental entities).
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__________________________________________
Jeff Rose, Justice
Before Justices Puryear, Pemberton, and Rose
Affirmed in part; Reversed and Rendered in part
Filed: August 13, 2014
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