We will refer to severa l entities throughout this appe al. The “B oard” ref ers to the a g ency ’s 1 board of trustee s , wh i ch h ears appea ls of contested c ases. See Tex. Gov’t Code Ann. § 815.511 (West 2004). The “ Medica l Boa rd” r efe rs to the ag ency ’s medica l board, wh i ch cer tifies 

### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

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NO. 03-04-00220- CV

Br adfo r d E. L ar im or e , A ppe lla nt

v. Em ployees Ret irem ent System of T exas, Appellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 200TH JUDICIAL DISTRICT NO. GN302090 , HO NORAB LE DARLENE B Y RNE, JUDGE P RESIDING

O P I N I O N
W e wi t h d raw the prior opinion and judg ment dated January 20, 2006, and the following opinion is subs tituted.

L arimore appea ls the judgme nt of the district court, whic h aff irmed a f inal order by the Employ ees Retirement Sy stem of Tex as Board of Trustee s (the “Boa rd”) denying his a

pplication for oc cupational disability benef its. I n four issues on a

ppeal, L arimore conte n ds that the Boa rd 1occupational disa bility retire ment claimants as disabled. See id. §§ 814.203 (West 2004) (providing that Medica l Boa

rd issue ce rtification of disability if it “finds that the member is mentally or phy sically

incapa citated f

or the fur ther pe rfor

mance o f d u ty

and that the inca

pacity is likely to be perma nent”) ; 8 1 5 .204(c) (West 2004) (Medic al B oard sha ll report its conclusion and reco m m en d at ion to ex ecutive dir ector ). We will refe r to “ERS staff” to mean the a g ency ’s re pr e se ntativ e s at th e a dmi nis tr a tiv e he ari ngbe fo re the State Of fi c e of Ad min ist rativ e He ari ng s. ERS pr ov ide s fo ur ty

pe s of be ne fi ts fo r e lig ibl e state e mpl oy e e s: servi ce ret ir e me nt, 2 occupational disability

retire ment, nonoccupational disabilit y retire ment, and death benef its. See Tex. Gov’t Code Ann. § 814.001 (West 2004). 2 err ed in a dopting finding s of fac t a nd conclusions of law differ ent from the ones propos ed b y the administrative law judg e (“AL J ”), tha t the Boa rd’s orde r wa s not supported by substantial evidence , and that he is e ntitled to attorney ’s fe es and c osts of co u rt
. W e wi l l aff irm the judg ment of the dis tr ic t c ourt
. BACK GR OUND

L arimore was e mploy ed by the Texas Depa

rtment of C o rr ections as a corr ections office r. In Dec ember

1998, as he w as g oing up a flig ht of stairs in a co rr ec t ions unit, L arimore slipped on the stairs and “ did the splits” but was able to gr ab the ha ndrail and pr event himself f rom fallingdown the stairs. He pulled himself up and cla ims he immediately felt pain in his lower a nd upper ba ck. As a

result of the slip, L arimore sustained an i n jury to his back. L arimore was ultimately

diag nosed as suff

eringfrom ra diculopathy (pain ra diating into his extremities resulting from the ba ck injury

) and f rom disc protrusions or he rniations in his cervica l spine at verte brae C4-5 and in his lumbar spine at ve rtebra e L 3-4 and L 4-5. L arimore applied to the Employ ees Retire ment Sy ste m ( “ ERS ” ) f

or oc c up a tio na l di sabi lity

re tir e me nt b e ne fi ts. See Tex. Gov’t Code Ann. 2 §§ 811.001-815.512 (West 2004).L arimore was involved i n an au tomobile collisi on in 1986. As a re sult of the collision, 3 L arimore had re curr ing pr ob l em s with his neck, which ultimately resulted in L arimore having surg ery on his neck a

nd in the remova l of two herniated discs from his ce rvica l spine.
3 L arimore ’s application for benefits was gove rned by former section 811.001(12) of the g overnme nt c ode, which de fined a n occupational disabilit y

as a disability

arising“fr om an injury or disease that direc tly

results from a specific act or occur renc e determinable by

a def inite time and place and dire ctly

results from a risk or a hazard peculiar to a nd inhere nt in a duty

that arises f

rom and in the cour se of state employ ment.” SeeAct of Ma

y 23, 2 0 01, 77th L eg ., R.S., ch. 1231, § 1, 2 0 0 1 T e x. G e n . L aw s 2827, 2827; Ac t o f M ay 2 4 , 2 0 0 3 , 7 8 th

L e g . , R. S. , c h
. 8 4 2 , § 4 , 2 0 0 3 T e x. Gen. L aws 2633, 2636 (“forme r Tex
. Gov’t C ode § 811.011(12)” ). The Medical B oard c ertified that L ari mor e wa s p e rm ane ntl y imp a ir e d a

nd un a ble to f ur the r p e rf or m hi s jo b r e qu ir e me nts du e to
cer vical, thora cic, a

nd lumbar spondylosis (deg ener ation of the spine)
. See Tex. Gov’t Code Ann. § 814.203. The Medic al B oard a lso concluded that the i njury he sust ained at the S tevenson unit was not the primary

cause of L arimore ’s incapa city . Rather, the Medical B oard c oncluded L arimore ’s incapa city

resulted f

rom a pre -existi ng condition suffer ed in an autom obile collision and fr om 3

art hr iti s. I t c on c lud e d th a t th e mos t re c e nt inj ur y a g g ra vate d the pr e -e xistin g c on dit ion and wo uld not, on its own, have re ndere d L arimore perma nently incapa citated. The ERS Ex ecutive D irec tor denied L ari m o re’ s application for benef its on the g rounds that L arimore ’s injury did not satisfy

the re quirements spec ified in forme r g overnme nt code section 811.001(12)
. The Ex ecutive Direc tor stated that, based on the conclusions of the Medic al Boa rd, “ERS is unable to conclude that [L arimore ’s] disability direc tly results from a spe cific a ct orSee Tex. Gov’t Code Ann. § 815.511(d) ( West 2004) (authorizing B oard to c hang e or 4 delete f indings of f

act a nd conclusions of lawcont ai n ed i n p ro posal issued by AL J and to make alternative finding s and conc lusion but requiring Boa rd to state in writing its specific re asons for chang es); 34 Tex. Admin. Code § 67.91 (b) (2005) (re quiring written explanation f or cha ng es and limit ing c ircumstance s in which modifications are appropr iate). 4 occur renc e dete rminable by

a def inite time and place ” as require d by statute. L arimore appea led the decision of the E x ecutive D irec tor to the Boa rd, and a hear ing w as held be fore an AL J
. See T e x. Gov’t Code Ann. §§ 815.001, .101 ( stating B oard i s re sponsible for g ener al administration of retire ment sy stem). I n her proposal for decision, the AL J rec ommended that L arimore ’s appe al be g ra nte d, that he sh ou ld b e awa rd e d d isa bil ity be ne fi ts, and th at the e vid e nc e ind ic a te d th a t th e a tw o r k i n j ur y w a s th e p r i m ar

y c a u s e o f L ar i m o r e ’ s d i s a

b i l i ty. After the AL J issued her pr oposal, ERS S taff f iled a list of exceptions to the proposal and subseque ntly

filed alter

native finding s and conclusions, which wer e ultimately adopted by

the B oa rd . T he B oa

rd de te rm ine d that L ari mor e did no t pr ov e that the inj ur y he su sta ine d f

ro m hi s f a ll was the primary

cause of his disability . In its order, the B oard de nied L arimore ’s claim for occupational di s ab i l ity

retire ment benef

its and adopted the a lternate finding s and conc lusions submitt ed by

ERS st aff

. 4 L arimore appea led to the district court, which aff irmed the decision of the Boa rd. See Tex. Gov’t Code Ann. § 815.511(f) (allowing ag g rieve d party to appea l decision t o district court for judicial revie w under

substantial evidence revie w). This appe al followed.

DI SCU SSIO N On appe al, L arimore contends that (1) the B o ar d er re d by adopting the alter

native finding s and conc lusions proposed by ERS st aff

; (2) the Bo ar d ’s order was not supporte d by5

substantial evidence ; (3) the B oard did not have the authority to r ejec t the finding s and conc lusions in the AL J ’s proposal be cause they wer e supported by

substantial evidence ; and (4) the district court
e rr e d b y no t a llo wi nghim

to r e c ov e r atto rn e y ’s fe e s, c os ts o f c ourt , a nd int e re st.
Al te r nat ive F indin gs and C onc lusi ons

I n his first issue on appea l, L arimore contends the B oard e rr ed in adopting the finding s and conc lusions proposed by the ER S staff beca use (1) none of the re quirements of se ction 67.91(b) of

title 34 of the administrative code wer e met; (2) the Boa rd abuse d its discretion; (3) the Boa rd acted arbitrarily and ca priciously ; (4) the B oard br eac hed its fiduciar y and contr actua l duties in lig ht of pr e vio us c a se s be fo re thi s Co ur t; a nd (5 ) t he B oa rd ’s a c tio ns we re le g a lly

re pr e he ns ibl e and ac tionable. L a

r i m o r e c o n t e n d s th a tth e a t
- w o r k i n j ur y w a s th e p r i m ar

y c a u s e o f h i s d i s a b i l i ty; that, prior to his injury , he had be en able t o p er fo rm all of his job responsibiliti es and w as not disabled; and that prior

to the acc ident there was no e vidence of an injury t o h is lumbar spine, particula rly the disc protrusions or he rniations of ver tebra e L 3-4 and L 4-5. The leg islature has limited the discre tion of the Boa rd to modify

rec ommendations of an A L J in a conteste d case h earing by enac ting se ction 815.511 of the g overnme nt code. Although the code specifica lly g rants the Boa rd t he power t o “modify , ref use to ac cept, or

delete a ny proposed f

inding of fac t and conc lusion of law c ontained in a pr oposal for de cision submitt ed by an [AL J ],” the statute require s the Boa rd to state it s rea soning for t he chang es i n writing and allows the Boa rd to adopt rules g overningits review o f co n t ested c ase he aring s. Tex. Gov’t Code Ann.6

§ 815.511(d). The Bo ar d ’s rules fur ther guide the B oard’ s discretion. See 34 Tex. Admin. C ode § 67.91(b). The Rules permit the Boa rd to: modify or delete any

proposed f

inding of fac t or conc lusion of law, or make alternative finding s of fa ct or c onclusions o f l aw, if it dete rmines that the proposa l for de cision submitt ed by the examiner, or a

proposed f

inding of fa ct or c onclusion of law c on ta ine d th e re in, is: (1 ) c le arl y

e rr on e ou s o r i llo g ic a l; (2) is ag ainst the weig ht of the evide nce; (3) is based on misapplication of the rules of evidenc e or insufficie nt reviewof the evidenc e; ( 4 ) i s i n c o n s i s t e n t w i th th e t e r m s o r i n t e n t , a s d e t e r

m i n e d b y th e b o ar d , of

be ne fi t plan or insura

nce policy

provisions; or (5) is not sufficient to prot ec t t h e p u b lic interest, the inter ests of the plans a nd prog rams for

which the boa

rd is trustee, or

the intere sts, as a g roup, of the participa nts covere d by

such p l an s and prog rams. The order shall contain a written statement of

the re ason and leg al basis for e ach c hang e made based on the fore g oing policy

rea sons.
Id. Under these rules, the Boa rd may not modify , delete, or

add finding s of fa ct and c onclusions of law mer ely

beca use the B oard disagr ees with the AL J ; the Boa rd’s c hang es must be justified under the rule w ith its rea sons stated in writing. See id.

Our re view of the Boa

rd’s finding s of fac t a

nd conclusions of law f

ocuses on whe ther the B oard’ s stated re asons for modify ing the proposal we re c onsis t en t wi th its di scre tion under section 815.511 of the g overnme nt code a nd section 67.91 of title 34 of the administrative code. An A L J’ s f in d in g s o f

f a c t, e v e na d

ju d ic a ti v e f

a c ts , ar e n o t c o mp le te ly

in s u late d f r o m r e v ie w b y

the B oa rd . Wh ile it is not the B oa rd ’s fu nc tio n to re we ig h th e e vid e nc e and c ha ng e a dju dic a tiv e fa c ts7

afte r a he aringbefor e an AL J , the Boa rd may chang e adjudicative fac ts if they are improper unde r rule 67.91(b)
. Flores v. Employ ees Re t. Sys. of Tex. , 74 S.W .3d 532, 551 (Tex. App.—Austin 2002, pet. denied)
. The burden of establishing entitlement to disability benef its is on t he applica

nt. Id. at 550. In descr ibing this burden, this Court has explained: [ A] nem p l o y ee s ee k i n g o cc u p at i o n al d i s ab i l i ty

re t i re m en tb en ef

i t s must establish that a spec ific ac t or occ urre nce determinable by a definite time and plac e is the cause-infact o f h er d isability , namely , that the injury in a natura l and continuous sequenc e produce d the disability , and that without it, the disabilit y would not have oc curr ed. Moreove r, the e mploy ee must prove that the at-work i njury is the primary

cause of the disability . A pre exis ting c ondition that bec omes sy mptomatic only

at the time of tr a uma or that doe s not pr ima ri ly c a us e the dis a

bil ity do e s not br e ak the c a us a l c ha in betwee n the at-w o rk i n

j u ry and the disability . This is true even if a pre exis ting condition makes the injury more difficult to tr eat or more disa bling. A pr eexisti ng condition that substantia l l y contributes to a disability , howeve r, such that the pree x isting condition is the primary cause of the disabili t y , wi l l defe at a c laim for oc c up a tio na l di sa

bil ity re tir e me nt.
Id. (c itatio ns omi tte d) . Wh e n th e re are pr e e xistin g me nta l or phy sic a l c on dit ion s, the c la ima nt m us t establish that the traumatic incident is the primary cause of the disability
. Langford v. Employee s Ret. Sys. of Tex. , 73 S.W .3d 560, 567 (Tex. App.—Aust in 2002, pet. denied) . I f the medic al
e vidence e sta

bli sh e s th a t a

pr e e xistin g c on dit ion

is t he pr ima ry c a us e of inc a pa c ity , th e dis a

bil ity does not direc tly

result from a specific act or occur renc e determinable by

a def inite time and place
. Id. Whil e ac knowledg ing that c laimants car ry the burde n of provingtheir injury was the pr ima ry c a us e of the ir dis a bil ity , L ari mor e c on te nd s th a t th e B oa rd , if it cho os e s to con te st the c la im, has the burde n of provingsomething e lse was the sole cause of the disabili t y . Fu rt her, L arimore8

contends that the e x tent and natur e of a pree x isting condition is irreleva nt and contends that consideration of whether

the injury would have c aused a perma nent disability

in a hea lthy

individual is a lso ir re le va nt. F ina lly , L ari mor e a sse rt s that it do e s not ma tte r if the iss ue is f ra me d a s p ro ximate
cause , direc t cause , or primar y cause ; r ather , all that matters is whether the last injury produce d the disability , in which ca se the c laimant is entitled to whatever “bene fits flow from that injury .” We disa g ree with c ontentions that c halleng e our discussion of the claimant’ s burden in Flor es and Lan gfo rd . T he burd e n is on the c la ima

nt t o pro ve the wo rk

inj ur y is t he pr ima ry c a us e of his injury
. Flores , 74 S.W.3 d at 55 0; Lan gfo rd , 73 S.W .3d at 567. I f the burde n is not met, the cl ai m an ti s n o ten t i t l edt o re ce i v e d i s ab i l i ty b en ef i t s . In a d d i t i o n , d en yi n g a c l ai m an tco v er age be c a us e of a pr e e xi st in g co nditi on

is p ro pe r i f t

he pr e e xistin g c on dit ion , e ve n a n a sy mpt omatic condition, is the primary

cause of the disability
. Flores , 74 S.W .3d at 550. I n su pp or t of he r ult imate re c omm e nd a tio n th a t L ari mor e ’s dis a bil ity dir e c tly re su lts from a spe cific a ct or occu rr en ce d et er minable by a def inite time and place , the AL J ref ers to the testimony of Dr. Swa

nn, a neur osurg eon who tre ated L arimore for y ear s and who pe rfor med surg ery on L arimore ’s nec k afte r L arimore was injured in a n automobile collision in 1988. Dr. Swann te sti fi e d th a t L ari mor e ha d n e ve r h a d lo we r b a c k p ro ble ms n or c omp la ine d o f l ow e r b a c k p ro ble ms pr ior to the a t- wo rk inj ur

y and te sti fi e d that the fa ll wa s the “ pr ima ry pr e c ipi tant of

the sy mpt oms [L arimore ] had in his l ower back.” I n addition, Dr. Swann stated that, we re it not for the at-wor k injury , Mr. L arimore would probably still be able to work as a corr ections off

icer . Dr. Swann f

urther opined that the condition of L arimore ’s lumbar spine would be disabling e ven if L arimore did not have a pree x isting ce rvica l deg ener ation condition. Finally , Dr. Swann te stified that he believe d9

L arimore ’s pre exis ting de g ener ative condition was not the pr imary cause of his disability

but was a “c ontributing fa ctor that made him more susceptible to the injury .”

The AL J also ref

err ed to var ious medical re ports. Although notingthat the re cord “cle arly documents Mr. L arimore ’s pree x isting cer vical deg ener ation condition,” the AL J stated that there are no treatment r ecor ds or MRI s of L arimore ’s lumbar spine until af ter the acc ident and that a CAT sca

n conducte d after L arimore slipped on the stairs showed disc he rniations in L arimore ’s lumbar s p i n e. W hile acknow ledg ing that L arimore had stated in a medical que stionnaire that he experience d lower ba ck pain in 1996 due to a previous in cident at wor k, the AL J conclude d that L arimore ’s lumbar spine wa s asy mptomatic prior to t h e at- work injury based on L arimore ’s testimony that he wa s mistaken when he filled out the questionnaire an d t h at h e had never
ex p erienced a

ny difficulties in his lower ba ck until the at-wor k injury , based on L arimore ’s
s u p e r v is or’s testimony

that L arimore had neve r complaine d of lower back pa in until after the at-work injury , and base d on L arimore only rec eiving treatment on his cervical s p i n e p rior to the at- work injury . Finall y , t h e AL J ref ere nced the results of an MRI of L arimore ’s ce rvica l spine conducte d
ov e r a y e ar b e fo re the inj ur

y oc c ur re d. Th e MRI

ind ic a te d L ari mor e ha d o nly ve ry mil d to mil d deg ener ation in his spine and did not indicate the pre sence of st enosis (the pre sence of a small ner ve passag ewa

y ). The B oard did not ag ree with the rec ommendation of the AL J and adopte d alternative fi nd ing s and

c on c lus ion s p ro po se d by ERS sta ff
. Th e a lte rn a te fi nd ing s and c on c lus ion s r e fe rr e d to evidenc e pre sented throug h testimony and in L arimore ’s medica l rec ords as j u s t i fi cation for modifications to the AL J ’s finding s and conc lusion s and cited to the specific pr ovisions of the10

g ov e rnme nt c od e and

the a dmi nis tr a tiv e c od e tha t a uth or ize the B oard to make su c h c ha ng e s. Specifica lly , the new f

indings a nd conclusions s tate the modifications wer e made pursuant to sec tion 815.511(a) of the g overnme nt code a nd section 67.91(b) (1), ( 2), and ( 3) of the a dminist rative c ode beca use the orig inal finding s wer e “cle arly err oneous, ag ainst the weig ht of the evidenc e and ba sed on an insuffic ient revie w of the evidenc e.” Similarly , conclusions (4) a nd (7) we re modified unde r section 67.91(b) (4 ) an d(5) of the administrative code beca use the orig inal conclusions wer e “inconsistent with the terms or intent of the occupational disability retire ment plan” a

nd wer e “not sufficie nt to protect the intere sts of the plan or the inter ests of the participa nts who are cover ed by the plan.” The following list conta ins the alternate finding s of fa ct and c onclusions of law that
wer e adopte d by

the B oard. For eac h finding and conc lusion, the stricken languag e shows portions that wer e remove d from the or igina l findings a nd conclusions proposed by the AL J , and the underlined la

ng uag e shows additions that wer e made by the ERS staff: Finding s of Fa ct 10
. As sh ow n b y

a 19 99 My e logra

m/CT e xami natio n, Mr . L ari mor e ha s d isc herniations at the L 3-4 and L 4-5 leve l of the l umbar spine [caused by his at work in ju r y ].

. . . . 14. Prior to the at-wor k injury Mr. L arimore ’s pree x isting conditions w ere [a] sy mptomatic; he [never] ex perie nced [any ] pain in his lumbar spi ne in 1996 which he r eporte d to his treating phy sician, Dr. Swa nn, in wri ting on Oc tober 26 , 1 99 9[, n or

did he re c e ive any

tr e a tme nt] 15. Mr. L arimore ’s pr ee x isting deg ener ative conditions in his lumbar spine wer e substantial contributing factor s in causingAppellant’s inca pacity and wor senedThe B oard a lso adopted additi onal findi ng s and conc lusions relating to the second por tion 5 of the definition of an occupa tional disability listed in former section 811.001(12). To be a war ded benef its, a claimant had to satisfy both pr ong s of former sectio n 8 1 1.001(12). See B roadhurst v. Employe es Ret. Sy

s. of Tex., 83 S.W. 3d

32 0, 32 2 ( Te x. Ap p. —Aus tin 20 02 , pe t. d e nie d) ; Lan gfo rd , 73 S.W .3d at 564. The second prongrequire s that the disability “dire ctly results from a

n inhere nt risk or hazard pe culiar to a duty that arises f

rom and in the c ours e o f s t at e em ploy ment.” F ormer Tex. Gov’t Code Ann. § 811.001(12). Be cause we conclude that the B oard did not er r by chang ing the finding s and conclusions relating to the first prong, we need not a ddress the B oard’ s chang ing of the finding s and conc lusions addressing prongtwo. 11 the e ff e c ts o f t he a t- wo rk

inj ur y on his lu mb ar sp ine[, but w e re no t pr ima ri ly r e s p o n s ib le f

o r h is d is a b il it y ]. 16. Mr. L arimore ’s disability does n o t direc tly

result[s] from a spe cific a ct or occur renc e dete rminable by

a def inite time and place
. Conclusions of L aw 4. Mr. L arimore ’s disa b i l i t y d o es not result[s] from a specific act or occur renc e deter minable by

a def inite time and place
. . . . 5
. T h e a t
- w o r

k i n j ur y w a s n o tth e p r i m ar

y c a u s e o f M r . L ar i m o r e ’ s d i s a

b i l i ty.

. . . . 7. Mr. L arimore ’s application for occ upational disabil i t y b en ef i t s should not be g rante d. 5
I n support of the modifications, the propos ed fi n d i ng s and conc lusions adopted by the B oard r efe r to L arimore ’s medica l rec ords and to the de p o s i t i o n s o f L arimore and var ious doctors. F irst, the alternate proposal c ites to statements by Dr. S wann that, in addition to the at-w ork injury , there wer e other cause s of L arimore ’s disability , including pr eexisti ng deg ener ative cha ng es not resulting f

rom the at-w ork i njury and conge nital stenosis, which were ag g ravated by the at-w ork injury and made him more susceptible to disc herniation. Dr. Swann also testified that stenosis canThe Medic al Board a g ree d that, in the absenc e of L arimore ’s pre -existi ng condition, the 6 i n j ury h e s u s t ai n edwo u l d

n o th av e b ee nd i s ab l i n g.

12 make a person more prone to suf fer from ra diculopathy

and adde d that the at-w ork injury would not have rende red L arimore incapa citated in the a bsence of L arimore ’s pre exis ting spinal de g ener ation. 6 Dr. S wa nn testified that L arimore probably had deg ener ation in his lum bar spine befor e being injured at work; that L arimore probably had more deg ener ation than would be e x pecte d for his ag e; and that L arimore ’s deg ener ation made him more susceptible to the injury he sustained. Dr. Swann a lso stated that t he deg ener ation was a signific ant fa ctor c ontributing to L arimore ’s dis a bil ity . D r. Swa

nn fu rt he r o pin e d th a t L ari mor e wa s su ff e ri ngfr om art hri ti c cha

ng e s to his lumbar spi ne, which occur red over a pr olonge d period of time a nd wer e not ca

used by his at-work injury . Finally , Dr. Swann te stified that L arimore ’s i ncapa citating lumbar ra diculopathy was c aused by a number

of fa ctors, includingthe disc her niations, deg ener ative cha ng es, and c ong enital and
a c qu ir e d s te no sis
.

Reg ardingL arimore ’s ce rvica l spine, Dr. Swann testified that the two ce rvica l discs he re moved from L arimore ’s spine in 1988 wer e deg ener ated a nd that a per son with deg ener ation in one par t of his spine commonly

has dege nerative chang es i n other parts of the spine a s well. Dr. Swann furthe r commented that he fused some of t he ver tebra e in L arimore ’s ce rvica l spine in 1988
and that fus ing ve rt e br a e re nd e rs the a dja c e nt v e rt e br a e mor e su sc e pti ble to i nju ry . D r. Swa

nn a lso stated that L arimore had deg ener ation of his c ervic al spine at the time L arimore was injured at work and that deg ener ative cha

ng es in L arimore ’s nec k contributed to L arimore ’s ce rvica l disc herniation sustained af

ter the at-work injury
.Be cause we have conc luded that the B oard c omplied with the require ments of sec tion 7 67.91(b)( 2) of title 34 of the a dminist rative c ode, we need not a ddre s s L arimore ’s claims that the Boa rd’s orde r did not satisfy

subsections (1), ( 3), (4) , and (5)
. See Tex. Admin. C ode § 67.91(b)
.

13 The a lternate proposal also ref ers to L arimore ’s medica l rec ords. Fir st, it cites to the medical que stionnaire filled out by L arimore indicating tha

t h e e xp e r ie n c e d

lower ba ck proble ms two y e ars be fo re his at- wo rk

inj ur y and to t e sti mony

by L ari mo re in whi ch he st a te d th a t he tr ie d to provide c ompl et e and acc urate information on the questionnaire beca use he f illed out the que s ti o n n a ir e f

o r th e p ur p o s e o f o b ta in in g me d ic a l t

r e a tm e n t f

o r h is b a c k
. T h e a lt e r

n a te p r o p o s al also ref ers to medica l reports wr itten before and af ter the 1998 injury

indicating L arimore ’s ce rvica l spine had de g ener ated a

nd to medical re ports and MRI results indicatingL arimore ’s lumbar spine had ar th r it ic c h a n g e s , d e g e n e ration, and mild cong enital stenosis. Finally , the alter nate pr oposal cites to Dr. Swann’s notes taken in 2001 ref err ing to multiple levels of deg ernative chang e in L arimore ’s spine, including his lumbar are a, and to c ong enital stenosis prese nt in L arimore ’s lumbar spine espec ially at ver tebra e L 4-5 and L 3-4. B a se d o n th is e vid e nc e , w e c ann ot co nc lud e that the B oa rd a bu se d its disc re tio n in deter mining that the or igina l findings a nd conclusions wer e ag ainst the weig ht of the evide nce a nd in modify ing the rele vant finding s and conc lusions accor dingly
. See 34 Tex. Admin. C ode § 67.919(b)( 2). In addition, the alternate proposal pr ovided s tatements containing the reasoningand le g a l b a s is u

p o n w h ic h th e mo d if

ic a ti o n s were made. See T e x. G o v ’ t C o d e § 8 1 5
. 5 1 1 ; 3 4 T e x. Ad min . Co de § 6 7. 91 (b ). Ac c or din g ly , w e c on c lud e that th e B oa rd ’s a c tio ns we re wi thi n it s statutory authority and satisf

i ed the statutory

and rule require ments for modification of an AL J ’s pr op os a l. 714 L arimore also contends that the B oard’ s action s d i d not comply with previous decisions issued by

this Court. S pecif

ically , L arimore cites to Flores v. Employ ees Re t. Sys. of Tex. , 74 S.W .3d 532 (Tex. App.—Austin 2002, pet denied) a nd to Langford v. Employee s Ret. Sys. of Tex. , 73 S.W .3d 560 (Tex. App.—Austin 2002, pet. d en i ed), in whic h we c oncluded the B oard improperly

modified the proposals issued by the AL J s. Flore s was per

manently disabled af

ter be ing involved in a motor vehicle collision. Flores , 74 S.W .3d at 537. L ang ford slipped and fell on the kitchen floor of a cor

rec tional fac ility

and wa s permane ntly

disabled. Lan gfo rd , 73 S.W .3d at 563- 64. In both case s, the AL J s rec ommended awa rding disability

benef its, but t he B oard modified the AL J s’ proposals a

nd denied be nefits to both Flore s and L ang ford. Flo res , 74 S.W .3d at 538-39; Lan gfo rd , 73 S.W .3d at 564.

These c ases a

re disting uishable. Althoug h both L ang ford and Flore s suffer ed fr om pre- exis ting spinal de g ener ation that contributed to the ir incapa citation, their doctors te stified that the amount of dege neration they had wa s common in people of their ag e. Flores , 74 S.W .3d at 540- 41 ; Lan gfo rd , 7 3 S. W.3 d at 56 8. Ne ith e r L ang fo rd no r F lor e s h a d r e po rt e d p rob le ms w iththe ir backs prior to the at-wor

k injuries. See F

lores , 7 4 S. W.3 d at 54 1; Lan gfo rd , 73 S.W .3d at 568, 570. Fur ther, L ang ford’ s doctor tes t i fi ed that the injury L ang ford suff

ere d at work w ould have be en disabling e ven without the pre -existi ng deg ener ation. Lan gfo rd , 73 S.W .3d at 568. In addition, the ERS st aff in this ca se cited to e vidence supporting their alternative finding s and conc lusions. See id. at 568, 570 (medic al board did not ref er to e vidence supporting its conc lusion that was differ ent from AL J ’s).15 I n this case , L arimore had reported problems with his lower back prior to the at-wor

k injury , had repe ated problems with his cer vical spine prior to the injury , and had mor e deg ener ation in his spine than would be expected for someone his a g e. Fur ther, both D r. Swann and the Me dical B oa rd a g re e d th a t th e inj ur

y L ari mor e su sta ine d at wo rk wo uld no t have be e n dis a bli ngwi tho ut h is pree x isting condition.

I n addi t i o n , i n Flor es, the B oard did not comply with rule 67.91 bec ause it did not g ive re asons for some of the alterations made to the proposal and bec ause the rea sons give n for other modifications, e.g ., for clarification and because the findingwas irr eleva nt, were not allowed under rule 67.91. Flores , 74 S.W .3d at 542. In the pre sent ca se, t he base s for modification stated by the Boa rd we re a uthorized under rule 67.91 and we re f ully explained. F ur the r, thi s Cour

t’ s app ro va l of the B oa

rd ’s re fu sa l to a do pt the AL J’s p ro po sa l in Broadhurst v. Employees Re t. Sys. of Tex. , 83 S.W .3d 320 (Tex. App.—Austin 2002, pet. denied), is instruc tive. I n that case , the AL J rec ommended aw ardingBr oadhurst re tirement bene fits, but the Boa rd di d not adopt t he AL J ’s proposal and is sued an or der de nying B roadhur st benefits. Id. at 322. T h is Co urt a f

f ir me d th e d e c is io no f

th e B o ar d , f

in d in g th e r e w a s e v id e n c e in th e r e cord demonstratinga re asonable basis for the B oard’ s conclusion that B roadh u rs t d i d n ot qualify for retire ment benef

its. Id. at 325-26. We conclude that the Board’ s actions compli ed with the g overningstatute and rule
. Acc ording ly , we ove rr u le L arimore ’s subissues arguing that the Boa rd’s a ctions were an abuse of dis c re tio n and po we r, arb itr ary a nd c a pr ic iou s, br e a c he s o f f

idu c iary and c on tr a c tua l ob lig a tio ns to employ ees who are members of ERS, and leg ally

actionable
.16 L arimore also argues he was denied due proce ss beca use the B oard w as pre disposed to deny L arimore disability

benef its. I n addition, L arimore contends he wa s impermissibly denied b en ef its because of a pr eexisti ng condition. I n support of this argument, L arimore points to t he
rec ommendation of the Medical Board, the list of exceptions filed by ERS st aff

, and the a lternative fi nd ing s and

c on c lus ion s p ro po se d b y ERS sta ff

, a ll o f whic h r e c omm e nd e d de nying him be ne fi ts. L arimore contends th at the positions taken in these var ious proposals did not comport with our decisions in Flores , Lan gfo rd , and Br oa dh ur st and did not proper ly

acc ount for the supreme c ourt’s decision to deny

petition for re view in these c ases. Rather, L arimore contends the r ecommendations of the Medic al B oard a

nd the ERS S t af

f were made under the Boa rd’s policy

exis ting pr ior to the Flores decision that re quired a n employ ee to e stablish that “‘an occupational trauma is the dire ct
cause of the [employ ee’ s] di sability without reg ard to a pree x isting m ental or phy sical condition.’” See F lores , 74 S.W .3d at 543. This Court rejec ted the B oard’ s previous policy beca use the policy would prohibit e mploy ees with pr eexisti ng conditions from rec eiving benef its even if the at-work injury is the primary

cause of the disability
. Id. at 548. Th e l i s t o f e xc e p t i o n s f

i l e d b y E R S s t a f

f a s s e rt e d th a t L ar i m o r e d i d n o t s a t i s f y his burden of showing that the at-wor k injury was the primary cause of his disabilit y and asse rted that a cla imant was re quired to prove the disability under the standard a dopted by the B oard pr ior to our decision in Flores . Howeve r, the a lternative f indings a nd conclusions, the B oard’ s order , and the Medica l Boa

rd’s re commendation do not m ention the B oard’ s prior interpr etation of sec tion 811.001(12). F urther, e vidence was re fer ence d in the alternative finding s and conc lusions to s how17

that L ari mor e wa s n ot e nti tle d to be ne fi ts b e c a us e his pr e e xistin g c on dit ion wa s th e pr ima

ry c a us e
o f h i s disability . Finally , the modifications satisfied the statutory and rule require ments and the require ments specifie d in Flores
. See Tex. Gov’ t Code Ann. § 815.511(d); 34 Te x . Admin. Code § 6 7. 91 (b ); Flores , 74 S.W .3d at 551. We conclude L arimore was not de nied due proc ess and wa s not impermissibl y

denied be nefits due to a pree x isting conditi on. There fore , we overrule L arimore ’s fi rs t is su e on

a pp e a l.
The Board’s Order was S upp orte d by S ubs tantial Evid ence

I n his second is sue on appea l, L arimore asser ts the findi ng s and conc lusions adopted by the B oa rd we re no t su

pp or te d b y su bs tanti al evide nc e or

any e vid e nc e a t a ll. In a

su bs tanti a levidenc e re view, we may not substit ute our judg ment for that of the ag ency on matters committed to agency

dis c re tio n. Te x. Go v’ t Co de Ann. § 2 00 1. 17 4 ( Wes t 20 00 ); H

. G

. S le d g e, I nc. v. Prospective Inv. &Trading Co., Ltd. , 36 S.W .3d 597, 602 (Tex. App.—Austin 2000, pet. denied). Under a subst antial-e vidence revie w, we pr esume that the a g ency ’s orde r is supported by substantial evidenc e, and the appellant ha s the burden of overc oming this presumption. Graff Chevrolet Co., Inc. v . Texas Motor Vehic le Bd. , 60 S.W .3d 154, 159 (Tex. A pp.—Austin 2001, pet. denied) . The
a dmi nis tr a tiv e pr oc e dure a c t g ive s r e viewi ng c ou rt s th e a uth or ity to “ te st a

n a g e nc y ’s fi nd ing s, infere nces, c onclusions, and dec i s i ons to determine whe ther they are rea sonably

supported by substantial evidence consideringthe re liable and pr obative evide nce in the rec ord as a whole.” Id. ;
see Te x. Go v’ t Co de Ann. § 2 00 1. 17 4( 2) (E ). Cou rt s mu st affirm adm inistr a tiv e fi nd ing s in contested c ases if the re is more than a sc intill a of evidence to support them. Broadhurst, 83 S.W .3d18

at 324. Even if the rec ord evidenc e preponde rate s ag ainst the ag ency ’s dec ision, the evidence may
s ti ll b e e n o u g h to s a ti s f

y a s u b s ta n ti a l- e v id e n c e r e v ie w. Graff , 60 S.W .3d at 159. Howe ver, the ag ency may not act ar bitrarily and without reg ard to the f acts. H.G. Sledge , 36 S.W .3d at 602. A substantial-evide nce r eview doe s not r equire us to conclude the ag ency rea ched the
c or re c t c on c lus ion ; rathe r, su bs tanti a l- e vid e nc e re vie w i s satis fi e d if “ so me re a so na

ble ba sis e xists in the rec ord for

the ag ency ’s ac tion.” Graff , 60 S.W. 3d

a t 15 9. An

a g e nc y ’s a c tio ns wi ll b e up he ld if “the a g ency ’s ac tion is such that rea sonable mi nds could have rea ched the conclusion the a g ency must have re ache d in order to justify its action.” Id. I f a

fi nd ingis p ro pe rl y

su pp or te d a nd su pp or ts the ag ency ’s ac tion, the court will uphold the age ncy ’s ac tion despite the prese nce of irrele vant or unsupported finding s in the ag ency ’s order
. Texas Rive rs Prot. v. Texas Natural Res. Conservation Comm’n , 910 S.W .2d 147, 155 (Tex. App.—Austin 1995, writ denied).

I n addition to the evidence listed under issue one, the re w as ad d i tional testimony g iven by Dr. Swann suppor

t i n g t h e B oard’ s position. Dr. Swann testified that L arimore had an ong oing, de g ener ative condition prior to the 1998 fall. In addition, Dr. S wann state d that L arimore
wa s su ff e ri ngfr om l ig ame ntum f

lavum hy pe rt ro phy , w hic h oc c ur s ov e r a su bs tanti a l pe ri od

of tim e and can narr ow the spinal ca nal and r esult in radiculopathy . Finally , Dr. Swann note d that L arimore had a c alcium build up, or an osteophy te, in his cer

vical spine in 1988 cause d by deg ener ation, that the pr e se nc e of

on e os te op hy

te in o ne pa

rt of the sp ine ind ic a te s th e re mig ht b e oth e rs in o the r p art s of the sp ine , a

nd that os te op hy

te s c an c a

us e ra dic ulo pathy

if the y oc c ur in c e rt ain l oc a tio ns . Simi larl y , a

CA T s c an c on du c te d o n L ari mor e in 1 99 9 in dic a te d th e pr e se nc e of os te op hy te s in hisL ari mor e c on ten ds th at th e op ini on of the Me dic a l B oa

rd , to the e xten t th a t it

is a 8 conclusion of law

rathe r t h an a m ed i cal opinion, should be ig nored be cause it was not based on a revie w of L arimore ’s m edica l rec ords or on persona l knowledg e. The opinion of the Medica l Boa rd is not bindi ng or entitled to defer en ce , b u t the opinion may be conside red in our r eview of the evidenc e supportingthe dec ision of the Boa rd as it is releva

nt. See Tex. Gov’t Code Ann. §§ 815.511(f) (allowing judicial revie w of Boa rd’s decision under substantial evi d en ce review); 2001.174(E) ( West 2000) (allowingrevie wing court to re verse finding or conc lusion of ag ency if not supported by

substantial evidence consideringevidenc e in re cord a s a whole)
. 19 cer vical spine. F inally , the Medica l Boa rd conc luded that L arimore ’s disability was c aused by

the ag g ravation of pree x isting spinal deg ener ation. 8

We conclude that a re asonable basis exis ted in the rec ord for the B oard’ s conclusion that L arimore ’s at-w ork injury was not the p ri m ary

cause of his disability , that the finding s and conclusions re gar d i n g the first prongof for mer sec tion 811.001(12) prope rly support the B oard’ s action, and that the Boa

rd’s orde r and the rele vant finding s and conc lusions were suppor ted by
su bs tanti a l e vid e nc e . T he re fo re , w e ov e rr ule L ari mor e ’s se c on d is su e on a pp e a l.
The AL J’ s F indin gs and C onc lusi ons

I n his third issue, L arimore asser ts that the finding s and conclusions of the AL J wer e supported by

substantial evidenc e, and, there fore , the Board did not have the authority to rejec t the AL J ’s finding s and conc lusions. I n support of t his argument, L arimore cites to Montgomery Indep. Sc h. Di st. v . D av is , 34 S.W .3d 559 (Tex. 2000). In Mo ntgom e ry , th e sc ho ol d istri c t de c ide d n ot t o
rene w Davis’s te aching

contra ct. Id. at 560. An i ndepende nt hear ing examiner hear d Davis’s a ppeal
an d co n cl uded the district fa iled to prove the r easons f or nonre newa l. Id. a t 5 6 1
. T h e B o ar d of Education rejec ted the conc lusion of the hearing examiner and made additional finding s of fa ct. Id.20

at 562. The g overningstatute allowed the Boa rd to reje ct or chang e the he aringexaminer’s finding of fac t only if the finding was not supported by substantial evidence
. Id. at 563. The c ourt noted that the g overningstatute imposed stricter r equire ments on the Bo ar d o f Education than the Administrative Procedur e Ac t imposes on other state ag encie s. Id. at 565.

Under th is s tatute , th e B o ar d ’ s a b il it y to mo d if y , c h an g e , o r

p r o p o s e a lt e r

n a tive finding s and conclusions is not restric ted to c ircumstance s where the finding s and conc lusions are not supported by substantial evidenc e. See Tex. Gov’ t Code Ann. § 815.511; 34 Tex. Admin. C ode 67 .9 1( b) ; Flores , 74 S.W .3d at 541-42. Section 67.91 of title 34 of the administrative code allows the B oa rd to mod if

y , c ha ng e , or a lte r the fi nd ing s of the AL J if a t le a st on e of fi ve cri ter ia i s m e t. 34 Tex. Admin. C ode § 67.91(b) . We have alre ady conclude d that the B oard’ s actions in modifying the AL J ’s finding s and conclusions complied with the gove rning statute and rule . Acc ording ly , we
ov e rr ule L ari mor e ’s thi rd

iss ue on a pp e a l.
Sanc ti ons I n his final issue o n ap p ea l , L arimore asser ts that the district court er red by not allowing him to recove r attorne y ’s fe es, cour t costs, a nd interest. Specifica lly , L arimore contends that, beca use the B oard f

ailed to comply with its statutorily imposed duties, he is entitled to sanctions fo r t he B oa rd ’s a bu se of its dis c re tio n. Ho we ve r, be c a us e we have c on c lud e d th at th e B oa rd pr op e rl y mod if ie d th e AL J’s f

ind ing s and

c on c lus ion s and

pr op e rl y de te rm ine d L ari mor e wa s n ot e nti tle d to disability benef its, we nee d not addre ss L arimore ’s final issue. Acc ording ly , we ove rrule his fina l iss ue on a pp e a l.21 CO NC LU SION Be cause we ha

ve over ruled a ll of L arimore’s i ssues on appe al, we w ill affirm the judgme nt of the trial cour t affir ming the or der of

the B oard.

David Pury ear , J ustice Be fore Chief J ustice L aw, Justi ces Kidd, B. A. Smith, Patterson, Pury ear , Pemberton and Waldrop; J ustice Kidd Not Participating Affir med Filed: Mar ch 24, 2006