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
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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. 
3

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 

 

2The 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.” 
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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 
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“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 
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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 noevidence motion for summary judgment. 

We affirm the summary judgment.

Bailey C. Moseley

Justice

Date Submitted: November 7, 2012

Date Decided: November 14, 2012