### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00196- CV

Michelle Bubn is, App ellant

v. Leander Independ ent School District, A ppellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GV-0 9-0 0186 8, H ONO RAB LE TIM SULAK , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is an appea l from a district court jud gm en t i n a suit for judicial revie w of a final administrative order in a dispute under the Workers’ Compensation Act. The dispute, which 1 pits a self-insure d g overnme ntal en t i t y , L eande r I ndepende nt School District (L I SD), ag ainst 2

one of its former employ ees, Michell e Bu b n is, cente rs on whether a compensa ble injury incurre d by Bubnis in 2003 extended to her subsequent diag noses of anxiety and depre ssion and the validity of a 30% impairment ra ting pr edica ted on those diag noses. Althoug h Bubnis pre vailed befor e the
Texas Depa

rtmen t o f I nsuranc e Division of Workers’ Compensation (DWC), L I SD won at trial, obtaining a jury

finding that Bubnis’s c ompensable injury did not extend to anxiety or depre ssion.
Ba sed on the jury ’s finding s, the district court rende red judgme nt reve rsing the administrative order ,
See ge nerally Tex. L ab. Code §§ 401.001–419.007 (Worke rs’ Compensation Ac t). 1 As a self-insure d g overnme ntal entity under the Act, L I SD pay s claims as if it was a 2 worke rs’ compensa tion insura nce car rier. See id

. §§ 407.001–.133 (“Self- I nsuranc e Reg ulation”).decla

ring that the Bubnis’s com p e n s a b le in jur y did not extend to anxiety or depre ssion, and assig ning a fina l impairment rating of 0% r eg arding that injury

.

On appeal, Bubnis challeng es t h e s ufficie ncy of t he evidence supporting the jury ’s extent-of-injury finding and the district court’s judgme nt imposing a 0% r a th e r th an 30% impairment rating . For

the re asons we e x plain below, we will affirm the district c ourt’s judg ment.

BACK GR OUND Under the Workers’ Compensation Act, a worke r who sustains a “compe nsable injury ”—i.e, “an injury that arises out of and in the course and scope of employ ment” —is entitled

3

to benef its that incl ude, of rele vance here , “medica l benef its” pay able from the date of injury 4
and “impairment” income benef its to com p e n s a te f o r perma nent loss resulting from the compensa ble injury

. The Act presc ribes intricate pro ce d u re s g overning the repor ting, claiming , and pay ing 5
of worke rs’ compensa t i o n benef its by injured worke rs, employ ers, and worke rs’ compensa tion insurance car

riers. An d when disputes arise within this reg ime, the Act likewise provides 6
administrative resoluti o n me c h a n is ms within the DWC, beg inning with an informal, non-adve rsar ial

See id . § 401.011(10) ( defining “compe nsable injury ”). 3 See id. § 408.021(a) (“A n employ ee who sustains a compensable inj ury is entitl ed t o al l 4 health car e rea sonably require d by the nature of the injury as an d wh en neede d.”); see generally id. §§ 408.021–.032 (medica l benef its). See id. §§ 401.011(23) (def ining “impairment” as “any anatomic or functional abnorma lity 5 or loss exis ting afte r maxi mum medical improvement that results from a compensa ble injury and is rea sonably

presumed to be perma

nent”) , 408.121–.129 (impairment income be nefits). See ge nerally id. §§ 409.001–.024 (compe nsation proce dures)

. 6 2“bene fits revie w conf er en ce ” an d culminating, if neede d, with an appea ls panel whose order s are subject to judicial revie w. 7

The disput e giving rise to this appea l cente rs on t he scope of a compensable injury Bubnis incurre d in May 2003 when she was employ ed as a “cur riculum fac ilitator” by L I SD. After being briefly exposed to chemica l fumes wh i le working in an L I SD middle school scienc e lab, 8
Bubnis was trea ted by a doctor at an urg ent-c are clinic for ey e, throat, and lung irritation and, about

a month later, by an allerg ist for a persistent coug h, sensitivity to fumes, vertig o, and fatig ue. L I SD contempora

neously repor

ted Bu b n i s ’s inhalation injury to the DWC and, in its capa city as a selfinsured g overnme ntal entity , did not dispute the compensab i lity of Bubnis’s injury and paid her medical bi lls as t hose charg es were presented to it. Eventually , in late 2003, afte r t he treatin g phy sician indicated that Bubnis’s trea tment fo r the compensa ble injury was completed and there

was no additional activity on the fil e, L I SD closed Bubnis’s worke rs’ compensation claim. As of that time, Bubnis had not missed any work for rea sons she attributed to the exposure and injury and, in fac t, she would continue to work f or L I SD into the fall of 2007.
I n September 2007, howeve r, Bubnis notified L I SD that she was claiming additional worke rs’ compensa tion be nefits beca

use she had since develope d a panoply of ailments

See id. §§ 410.021–.034 (bene fit revie w confe renc e), .101–.121 (ar bitration), .151–.169 7 (conte sted-ca se hea

ring ), .201–.209 (a

ppeals pa nel), .251–.308 (judicia l review ). An incident repor

t indicates that Bubnis had been sear ching thro u gh t h e l ab for old or 8 unused chemica ls to remove and encounte red fumes from numerous chemi ca l s that had been stored i n a cl o s ed cabine t. The chemica ls wer e believed to include potassium perma ng anate (KMnO4) , calc ium h y droxi de (Ca(O H)2), potassium hy droxi de (KOH ), ammonium dichromate ((NH 4)2Cr2O7), sodium nitrate (Na NO3), ammonium nitrate (NH4N O3), silver nitrate (Ag NO3), p-dichlorobe nzene, strontium nitrate (SrNO3) , lead nitrate (PbNO3), barium chloride (B aCl2), and Guar g um. 3she attributed to her M ay 2 0 0 3 chemical exposure. These more rec ent problems manifested,

acc ording to Bubnis, i n December 2006, when she experience d an adver se phy sical
react i o n

— co u ghing and throat burning —to a new television set in her home. Although the television was remove d, Bubnis claimed to have there afte r begun experiencing g radua lly incre ased hy perse nsitivi ty both to chemica ls (re flec ted in a sore throat , co u ghing, fatig ue, and difficulty brea thing) and to elec tronics or elec tromag netic fields (re flec ted by coug hing, mouth b u rni ng , tingling sensations, tremo r s , h e a d p a in, fatig ue, jaw pain, metallic taste, nervousne ss, and an inability to think clearly

). By the fall of 2007, Bubnis ins isted, her condition had deteriorate d to the point 9

t h at she had to confine herse lf to her bedroom and could no longe r work at L I S D. Am o n g o t h er medical trea tment Bubnis pursued, she obtained diag noses of “toxi c ence ph al o p at h y ,” which 1 0 1 1
the diag nosing doctor attributed to her 2003 chemica l exposure, wit h ac co m p any ing anxiety

The ter m “elec tromag netic hy

perse nsitivi ty ” has be en used to de scribe adver se re actions 9 attributed to exposure to ele ct ro mag netic fields (EMF ) source s—e.g ., computers and mobile phones—including derma tologica l sy mptoms (re dness, tingling , and burning sensations) as well as neur as t h enic and veg etative sy mptoms (fa tigue , tiredness, conce ntration difficulties, dizz iness, nausea , hear

t palpitation, and dige stive disturbance s). The notion that humans can experience these sorts of adver se rea ctions from exposure to E MF source s is c ontroversia l. See, e.g ., World He alth Org anization, Electromagne t ic Fields and Public Health: Electromagne tic Hype rsensitivity, fact sheet (2005), available at http:// www.who.int/peh- emf/publications/fac ts/fs296/en/ (last vi s i t ed Fe b. 23, 2015) (stating that elec tromag netic hy p er s en s itivit y “has no clea r diag nostic criter ia and there is no scientific basis to link its s y mptoms t o EMF e x posure” ). E.g ., having her dentist repla ce all of her fillings in an eff ort to trea t her claimed jaw pain 1 0 and metallic taste. The dentist indicated that the proce dure alleviated the metallic taste, but not the jaw pain. The term “toxi c ence phalopathy ” is used to indicate brain dy sfunction cause d by t o x i c

1 1 exposure. See J

. Fire stone and W. L ong streng th, Neurologic & Psychiatric Disorders , in Textbook of Cli nical Occ upational & Environmental Me dicine 645 (Rosenstock & Cullen eds., 2004). 4and depre ssion. T re atm ent of her tox ic ence phalopathy , the doctor further indicated, would 1 2 require medications costing approximately $10,000 per month. Bubnis soug ht additional worke rs’
compensa tion benef

its for her losses re l at ed to her “toxi c ence phalopathy ” and rela ted anxiety and depr ession.

L I SD d is p uted Bubnis’s claim to addit io n a l w o r k e r s ’ c o mp e n s a

ti o n b e n e f it s , a s s e r ti n g there was no causa l link betwee n the May 2003 compensa ble injury and the condition she complained of in 2007. Bubnis then f iled a re quest for compensation. After encounte ring some 1 3
difficulties in locating a doctor who could acc ommodate Bubnis ’s d em an d s for a chemica l- and elec tronics-fr ee e x amining e nvironment, the DW C eventua lly named Fra ncisco Ve lasquez, M.D.,

as the desig nated doctor in the matter. Velasque z examined Bubnis in Fe b ru ar y 2008. He 1 4
prepa red an initial repor

t findin g that Bubnis’s May 2003 compensa ble injury extended to the disputed diag noses of tox ic ence phalopathy , an x i et y , and depre ssion and assig ned a 30% wholeperson impairme nt rating . L I SD then reta ined t ox icolog ist Thomas Kurt, M.D., to conduct a peer

r e v ie w o f th e $ 1 0 , 0 0 0 p e r mo n th p resc ription trea tment rec ommended by Bubnis’s diag nosing doctor for trea ting her tox ic ence phalopathy

. Kurt d et er mined that the only “re asonable and nece ssary ”

Although “ tox ic enc ephalopa thy with resulting anxiety and depre ssion” was the of ficial 1 2 diag nosis repor

ted t o L I SD, Bubnis’s doctor also descr ibed i t as “toxi c encepha lopathy as well as a sensiti zed immune sy stem resulting in hy perse nsitivi ty

to chemica l fumes/odors and intol era nce to electr omag netic fie lds.”

See 28 Tex. Admin. Code § 124.3 (e ) (Texas Dep’ t of I ns., Division of Workers’ 1 3 Compensation, I nvestig ation of an I njury and Notice of De nial/Dispute). Bubnis also ref

used to appea

r for a schedule d examination with a prior desig nated doctor 1 4 beca use of her conce rns that she would be exposed to elec trical transmission lines while trave rsing the route to his offic e. 5trea tment for Bubnis was the anti-depr essant/anti-a nx iety drug Z oloft and that Bubnis’s “per ceive d illness” was not work-r elated. Kurt further condemne d, as “medic a ll y f r a u dulent” and “scie ntifically unsubstantiable in the peer -re viewed medical literature ,” a claim by Bubnis that her sy mptoms had included sensitivity to elec tromag netic forc es. I n re s p onse to Dr. Kurt’s repor t, Velasque z 1 5
declined to comment further “due to the lack of objective documentation since it is mainly subjective information that has been provided,” noted that this was “out of the are a of [ h i s ] ex p er t ise,” and

rec ommended that B ubnis be ref err ed to tox icolog ist P atricia Rosen, M.D.
Be cause Dr. Rosen would not or could not acc ommodate Bubnis’s require ment of a chemica l- and technolog y -fr ee examination environment, Bubnis did not show up for the schedule d appointment, and Rosen proce eded to issue a repor t based solely on her revie w of Bubnis’s medical

rec ords. To summarize, Rosen conclude d that the chemica ls to which Bubnis had been exposed in May 2003 and the duration of that exposure would not likely have resulted in tox ic ence phalopathy

. Rosen also noted that there wer e no repor ts in the peer -re viewed l i t er at u re “that substantiate the possibili ty of being allerg ic or intolerant to elec tromag netic fields,” and opined that Bubnis’s illness

was “psy chosomatic.” Finally , Rosen conclude d that Bubnis’s ong oing illness could not be rela ted
to the May 2003 chemica l exposure and, further , that the exposure itself would not have cause d any pulmonary or other injuries. After revie wing Rosen’s repor t, Velasque z amende d his repor t to defe r to and ag ree with Rosen’s opinion, and “to re flec t a 0% whole person impairme nt rating .”

Kurt’s re p ort revie wed eac h of the substances presc ribed for Bubnis, opined why the 1 5 substance w as not rea sonable a nd nece ssary

for he r t rea tment and, re g arding one substance , noted that it had not been approve d as a drug by the FDA

. Kurt’s repor t also sug g ested that Bubnis’s trea tment might subject he r doctor to pr ofessional disciplinary action. 6The pa rties proc eede d to a DW C contested- case hear ing. The Administrative L aw J udg e adopted Velasque z’s initial 30% impairment rating and deter mined that Bubnis’s May 2003
compensa ble injury was a producing cause of B ubnis’s anxi ety and depr ession, but that it was not

a producing cause of her tox ic ence phalopathy

. Bubnis did not challeng e these deter minations, but
L I SD did. After unsucce ssfully seeking re l i ef b efore the appea ls panel, L I SD broug ht suit for judicial revie w of the 30% impairment rating and the extent-of-injury deter minations that included anxiety and depr ession.
A jury returne d a v er d i ct in favor of L I SD, finding that Bubnis’s compensa ble injury did not extend to anxiety and depre ssion. The district court rende red judgme nt acc ording ly ,

reve rs i n g t h e appeals panel decision, decla ring that “the injury at issue did not extend to include the diag noses of anxiety and depre ssion,” and assig ning a fin al i m p ai rm en t rating of 0% for that
compensa ble injury . I t is from the district court’s f inal judgme nt that Bubnis now appe als.

DISCUSSIO N Bubnis challeng es the district court’s judgme nt in two issues. I n her first issue, Bubnis insists that the jury ’s finding s that her compensa ble injury did not extend to anxiety or depre ssion wer e not supported by leg ally or fac tually sufficient medical evidenc e. I n her second issue, Bubnis arg ues that the district court err ed in assig ning her a 0% impairment rating instead of the 30% impairment r ating initially assig ned by

Dr. Ve lasquez.

Stand ard of review

The issues prese nted on appea l arise in the c o ntext of the judicial-re view mecha nisms the L eg islature has presc ribed in Subchapter G of Chapter 410 of the Act, which g overns revie w “of
7a final decision of the appea ls panel reg arding compensa bility or elig ibi l i t y fo r or the amount of income or death benef

its.” Subchapter G presc ribes a “modified de novo” revie w proce ss wher eby 1 6
the t rial court informs the j ury of t h e ap p eals panel decision on eac h disputed issue, and evidence
reg arding eac h d i s p u ted issue is limit ed to that prese nted to the DWC, unless the court makes

a threshold finding that the claimant’s condition ha s “substantially chang ed.” Fur thermore , with 1 7
respe ct to a dispute reg arding an impairment rating , the trial court is to adopt the specific rating

arr ived at by one of the phy sician s i n the case . The party appea ling the administrative decision 1 8 (her e, L I SD) has the bur den of pr oof by a pre pondera

nce of the evidenc e. 1 9
We may sustain a challeng e to the leg al sufficie ncy o f evidenc e only if the rec ord discloses one of the following situations: (a) a complete absenc e of evidenc e of a vital fac t; (b) the
court is barr ed by rul es of law or of evidenc e from g iving weig ht to the only evidenc e offe red to
prove a vital fac t; (c) the evidence offer ed to prove a vital fac t is no more than a mer e scintilla; or (d) the evidenc e establishes conclusively the opposite of the vital fac t. I n deter mining whe ther a 2 0

T ex . L ab

. Code § 410.301; see Rodriguez v. Servic e Lloyds Ins. Co. , 997 S.W .2d 248, 1 6 2 5 3

– 5 5 (Tex. 1999) (holding t hat i ssues conce rning impairment rating fall under section 4 1 0

. 3 0 1 beca use their resolution ultimately impacts the claimant’s elig ibilit y fo r o r amount of income benef its). See Tex. L ab. Code §§ 410.304(a) (re quiring jury be informed of appea ls panel decision 1 7 on eac h disputed issue), .306–.307 (a dmissibl e evide nce)

. See id

. § 306(c) (re quiring court or jury to adopt cer tain impairment rating ); see also Texas 1 8 W orkers’ Comp. Comm’n v. Garcia , 893 S.W .2d 504, 528 (Tex. 1995) (desc ribing modified de novo revie w of such r ating s). Tex. L ab. Code § 410.303. 1 9 City of Keller v. W

ilson , 168 S.W .3d 802, 810 (Tex. 2005) (quoting Robert W . Calvert, 2 0 “No Evidenc e” and “Insufficient Evidenc e” Points of Error , 38 Tex. L

. Rev. 361, 362–63 (1960))

. 8finding is supported by leg ally sufficie nt evidenc e, we view the evidenc e in the light most favor able

t o t h e fi nding, “cr editing favora ble evidence if rea sonable jurors could, and disreg arding contrary evidenc e unless rea sonable jurors could not.” We indulge ever y rea sonable infere nce that would 2 1 support the finding

. I n revie wing the fa ctual sufficie ncy of the evidenc e, we consider and we igh 2 2
all the evidenc e prese nted at trial, including any evidenc e contra ry to the judgme nt. We set aside 2 3 a finding for fac tual insufficienc y if it is “so contrary to the over whelming weig ht of the evide nce as to be c lear ly

wrong and unjust.” 2 4

Extent of in jury

The starting point for our analy sis of Bubnis’s challeng e to the jury ’s extent-of-injury finding is the char g e as submitt ed. Reflec ting L I SD’s burden at trial, Question 1 o f t h e ch ar g e 2 5 inquired, “Doe s Michelle Bubnis’ compensa ble injury not extend to and include the following conditions: anxiety and depre ssion? ” The jury was instructed that compensa ble injury means “ an injury that arises out o f an d i n t he course and scope of employ ment for which compensa tion is
pay able under t he Tex as L abor Code.” Wit h respe ct t o both anxiety and d ep re s s i o n , the j ury was asked to selec t from the following alterna tives “Ye s, it does not extend to and include [t he ailment]”

Id . at 807. 2 1 Id . at 822. 2 2 Plas-Tex, Inc. v. U.S. S t ee l C o r p ., 772 S.W .2d 442, 445 (Tex. 1989); Cain v. Bain , 2 3 709 S.W .2d 175, 176 (Tex. 1986).

Cain , 709 S.W .2d at 176. 2 4 S ee Go lden Eagl e Archery, Inc. v. Jack son , 116 S.W .3d 757, 762 (Tex. 2003) (factua l- 2 5 sufficie ncy

revie w); Osterberg v . Pec a , 12 S.W .3d 31, 55 (Tex. 2000) (leg al-suff iciency revie w). 9or “No, it doe s extend to and include [t he ailment].” The jury opted for the “Ye s” alterna tive with

respe ct to both anxiety and depression. I n other words, the jury found that Bubnis’s anxiety and depre ssion wer e not rela ted to the May 2003 chemica l exposure. On appea l, Bubnis arg ues there is neither le g ally

nor fa ctually

sufficie nt medical evide nce to support these finding s. We disagr ee. L I SD’s theory at trial, simply put, w as that even if the 2003 chemica l e x posure had

cause d Bubnis anxiety and depre ssion, that particula r bout with anxiety and depre ssion had resolved by 2005 at the latest—i.e., prior to the Dec ember 2006 exposure to a televisi o n t h at p u rp ortedly trig g ere d the ailments, including anxiety and depre ssion, t h at we re t he basis for her claim for additional benef

its. Bubnis’s curr ent anxiety and depre ssion, L I SD’s t h eory continued, wer e not

cause d by the 2003 chemica l exposure, but by her 2007 diag nosis of tox ic ence phalopathy or by the isolation cre ated throug h her eff orts to avoid EMF exposure. There fore , L I SD conclude d, beca use the DWC found and Bubnis did not cont es t that her diag nosed tox ic ence phalopathy had been unrela ted to the 2003 chemica l exposure, it followed that the resulting anxiety and depre ssion wer e likewise unre lated.

The evidenc e rela ting to the exis tence and cause of Bubnis’s claimed anxiety and depre ssion is rela tively straig htforwa rd and, for the most part, undisputed. Bubnis’s medical rec ords ref lect that she soug ht trea tment in J anuar y 2004 for anxiety from the doctor she char acte rized as her “primar y car e” phy sician, J ames Merr y man, D.O. Dr. Merr

y man’s rec ords indicate that Bubnis told him she was strug g ling with the injury from the chemica l exposure and had started behaving
in an “obsessive- compulsive manner about being around any kind of chemi ca l s , or any thing that could be construed as some kind of inhalation such as g lue, or paint, etc.” Concluding that Bubnis
h ad “[g]ener alized anxiety with some depre ssion and some obsessive-c ompulsive compo n en t , ”
10Merr

y man presc ribed Z oloft for four wee ks. He later authorized ref ills in Fe bruar

y and May 2004 afte r examining her and concluding that she had “g ener alized anxiety ” that is “[c]o n t rol led by
Z oloft.” Although Bubnis m ade o t h er v i s its to Dr. Merry man, no other mention of anx iety , depre ssion, or medications for such conditions appea rs in any of Bubnis’s pre- 2007 medical rec ords
in evidenc e here

. To the contra ry , rec ords from an ear ly 2006 visit by Bubnis to Michae l Floy d, M.D., for trea tment of urinary trac t infec tions indicate that Bubnis was not taking any medications
at t hat time. At trial, Bubnis confirmed that the records had acc urate ly ref lected the course of her medical trea tments for anxiety or depre ssion prior to the late 2006 television incident, testify ing that
Dr. Merr y man had presc ribed Z oloft for he r only in J anuar y , Fe bruar

y , and May

2004, and that he had bee n the only

provider to do so prior

to 2007. The evidenc e also ref

lected that Bubnis soug ht psy cholog ical counseling from social worke r L ee Fox Marley betwee n September 2003 and J anuar y 2004 for “proble ms associate d with a chemical acc ident on the job site in May 2003,” and from psy cholog ist Bonny Gar dner from J uly 2004 throug h Aug ust 1, 2005 for the “ong o i n g anxiety about the eff ects of the chemica l exposure.” Howeve r, Bubnis had not prese nted any of the bills from these visits to L I SD for r emuner ation under he r worke rs’ c ompensation claim.

Following the conclusion of her counseling with Gar dner in Aug ust 2005, there was

no evidenc e that Bubnis soug ht trea tment reg arding anxiety and depre ssion until afte r (or in response to) the i ncident with the t elevision in Dec ember 2006. Specifica lly , Bu b n i s testified t hat s he first
soug ht “counse ling” ab out a tingling sensation she experience d in her leg s afte r her rea ction to the new television and, then, in Fe bruar y 2007, she saw Dr. Merr

y man ag ain for an “aller g y or some 11ty

pe of adver se rea ction to elec tronics.” Bubnis attributed her elec tronic sensitivity to the May 2003 chemica l exposure, but she also told Dr. Merry man, acc ording to his patient notes from that visit, that she had “fina lly g ot over that.” Dr. Merry man prescribed Zolof

t after t h i s v i s i t “for the
g ener al anxiety .”

I n J uly 2007, Alfre d J o h n s o n, D.O., the doctor who had diag nosed her tox ic

ence phalopathy (as well as her purported hy perse nsitivi ty to chemica ls and elec tromag netic fields) with resulting anxiety and depre ssion ear lier that y ear , ref err ed Bubnis to health and behavior al scientist Nanc y Didriksen, Ph.D., for a neuropsy cholog ical consultation. Didriksen’s repor t opined that Bubnis’s repor

ted psy cholog ical problems stem mostly from the social isolation and withdrawa l

nece ssary to protec t herse lf from exposure to EMFs, and she diag nosed Bubnis as having an adjustment disorder with anxiety and depr ession. The jury was also prese nted with Dr. Rosen’s analy sis of Bubnis’s diag nosis, briefly summarized above, a

nd specific ally

her c onclusion that—

There is no data to support that the pa tient[ ’]s ongoing illness[ es] a re rela ted to he r exposure to chemica ls acc ording to the m ater ial s p ro v i d ed. There is evidenc e that this patient likely has an aff ective disorder which would be comp l etely unrela ted to her work, workplac e or any repor ted exposures. Thera

py within the first day with humidified air would have been a ppropriate . The data supports that the patient did not suffer any pulmonary

or other injury

.

L ikewise, the jury was provided with D r. Velasque z’s r eports, including the addendum to his own
repor t, also summarized above, whic h he adde d afte r re viewing Dr. Rosen’s r eport:
[A] fter car eful revie w and consideration on the medical fac ts, I would have to defe r to Dr. Rosen’s opinion and ag ree with her impression. There fore , Ms. Bubnis would not have any perma

nent impairment as rela ted to her work exposure. I have attache d

12an Amended DWC 69 to ref lect a 0% whole person impairment rating and I have also attache d Dr. Rosen’s r eport.

I n testimony befor e the jury , Dr. Velasque z acknow ledg ed that Bubnis had been d i agn o s ed with anxiety and presc ribed with Z oloft in 2004 and opined that Bubnis was then suffe ring from anxiety and depre ssion. He also stated unequivoca lly that the May 2003 ch emical exposure was not the

cause of the more rec ent anxiety and depre ssion. As to those conditions, he opined that Bubnis had been traumatized by the sheer number of doctors she had seen following the 2006 television incident and the r ece ipt of so many diag noses. Finally , the evidenc e also includes a letter from Bubnis’s husband in which he offe rs his opinion reg arding her health status following the May 2003 chemica l exposure. I n the letter, her husband explains that Bubnis had been in “major distress” afte r the chemica l exposure an d h ad
eventua ll y become sensitive to chemica ls and smells, but that afte r they had chang ed their lives drama tical l y , s h e had been “back to 85 to 90%” of her former self” before the TV incident i n late
2006. Somewhat rela tedly , a colleag ue of Bubnis, who happens to be an L I SD nurse, but who was 2 5
not testify ing in an expert capa city , rec ounted an Oc t o b er 2 006 camping trip that she, Bubnis, and eig hteen other women attended. The colleag ue testified that Bubnis had exhibi ted no sy mptoms during the trip and that Bubnis never mentioned any thing about suffe ring from anxiety or depre ssion. The colleag ue also noted that Bubnis had seeme d healthy during the trip, but acknow ledg ed that the camping trip took place out in the c ountry

.

Bubnis disputes her husband’s opinion of her cha ng e in health betwee n the chemica l 2 5 exposure and television incident. 13Viewing the fore g oing evidenc e in the ligh t most favor able to the verdic t, and

cre diting the favor able evidenc e that the jury rea sonably could have and disreg ardin g co n t ra ry

ev i dence unless the jury rea sonably could not have, the jury could have rea sonably inferr ed t h at (1) Bubnis had suffe red anxiety and depre ssion as a result of her May 2003 compensa ble injury for which she soug ht treatment fr om Dr. Mer ry man; (2) the anxiety and depre ssion r esulting from the May 2003 chemica l exposure had resolved, either from trea tment or on its own, at some time befor e the television incident or the tox ic-e ncepha lopathy diag nosis; a n d ( 3 ) B u b n is had develope d a second bout of anxiety and depre ssion in 2007 as a result of the tox ic-e ncepha lopathy diag nosis or from the isolation require d by her environmenta l restric tions. As such, the evidenc e was leg ally sufficie nt to support the jury ’s finding that the May 2003 compensa ble injury did not extend to Bubnis’s anxiety and depr ession.

Fur ther, considering both the evidenc e supporting the finding and the contra ry

ev idence on which Bubnis relies on appea l, we conclude that the contra ry evidenc e is not so

overw helming as to rende r t he jury ’s findi ng clea rly wrong an d manifestly unjust. The contrary 2 6
evidenc e her e lies m ainly in Bubnis’s own testimony reg arding the per ceive d cause of her anxiety and depre ssion and Dr. Velasque z’s initial impairment rating

. Such inconsistencies mere l y go t o the weig ht or cre dibilit y of the evidenc e, and wer e within the sole province of the jury to r esolve. 2 7
Acc ording ly , we hold that the evidenc e was fac tually sufficie nt to support the jury ’s finding that the
compensa ble injury did not ex tend to Bubnis’s a nx iety and depr ession.

See Cain , 709 S.W .2d at 176. 2 6 Golden Eagle Arc hery , 116 S.W .3d at 761. 2 7 14I n arg uing the contra ry , Bubnis insists that L I SD failed to meet its evidentiar y burden beca use—

1. L I SD and its third-par ty administrat o r conceded that Bubnis suffe red from anxiety and depr ession as a r esult of the compe nsable injury ; 2. Dr. Velasque z ag ree d that Bubnis suffe red from anxiety and depre ssion as a result of the May 2003 exposure and also that Bubnis curr ently suffe rs from anxiety and depr ession;
3. Records of other doct o rs acknow ledg e her prior and curr ent anxiety and depre ssion;
4. There is no medical evidenc e that she does not curr ently suffe r from anxiety and depr ession.

Bubnis’s arg uments o v er look that the issue submitt ed to the jury —“Doe s Bubnis’s compensa ble injury not extend to and include

. . . anxi et y an d d ep ression? ”—foc used on the exis tence (or not) of a causa l link betwee n Bubnis’s c ompensable injury and her current anxiety

and depr ession that is made the basis of her claim for additional worke rs’ compensa tion benef its—not, as she
sug g ests, whether she might ever have experience d anxiety or depre ssion i n the past rela ting to her compensa

ble i n j u ry . T h e evidenc e, ag ain, permitted the jury to find that no such causa l link

ex i sted—i.e., that Bubnis’s curr ent anxiety and depre ssion resulted from the 2007 tox icence phalopathy diag nosis or the rela ted isolation require d to avoid EMF exp o s u re , n ot from the inhalation injury

suffe red in May

2003. Acc ording ly , we ove rrule B ubnis’s first issue.

Im pairm ent rat ing

I n her second issue, Bubnis challeng es the district court’s finding of a 0% impairment rating , arg uing essentially that Dr. Velasque z’s initial 30% rating is the sole impairment rating that
15can be validly assig ned in this case . We disag ree , and would add that any err or would be harmless

or immaterial in lig ht of the jury ’s finding reg arding extent-of-injury

. 2 8

As mentioned, the Ac t provides re munera tion to employ ees w ho are injured on the job, including impairment income to any employ ee who sustains a perma nent loss resulting 2 9
from a compensa

ble injury

. I n fac t, the Act require s that an employ ee with a compensa ble injury 3 0
be assig ned an impairment rating for that purpose. But just as the Act require s an injury be a work- 3 1
rela ted injury

—i.e., a compensa

ble injury —its definitions of “impairment” and “impairment rating ” als o s p ecif

y that the impairment must “re sult[ ] from a compensa ble injury .” Thus, only

3 2 impairments that result from a compensa ble injury are entitled to impairment income under the Act.
Her e, the jury found, and we upheld above, that Bubnis’s compensa ble injury was not a produc ing c ause of

Bubnis’s a

nx iety and depr ession or, stated in ter ms of the Act’s definition of impairment, the jury found that Bubnis’s anxiety and depre ssion did not r esult from the May 2003

See Tex. R. App. P. 44.1(a) (re versible err or); G & H Towi ng Co. v. Magee , 347 S.W .3d 2 8 293, 297 (Tex. 2011) (discussing harmless-e rror rule). See Hulshouser v. Texas W orkers’ Com

p
. In s
. Fund , 139 S.W .3d 789, 791 2 9 (T ex . Ap p.—Dallas 2004, no pet.) (“A primary purpose of the Workers’ Compensation Act is t o relieve employ ees injured on the job of the b u rd en o f proving their employ er’ s neg lige nce and to provide them prompt remune ration for their on-the-job inju r ie s . ” ( c it in g P a

y n e v. Galen Hosp. Corp ., 28 S.W .3d 15, 17 (Tex. 2000)). See Tex. L ab. Code §§ 408.121–.129 (impair ment income bene fits). 3 0 See id. § 408.123; see also id. § 410.307(f) (re quiring court or jury “in its determination 3 1 of impairment” to a dopt impairment rating s as set for th in section 408.123). See id. § 401.011(23) (def ining “impairment” as “any anatomic or functional abnorma lity 3 2 or l oss exis ting aft er maxi mum medical improvement that results from a compe nsable injury and is rea sonably presumed to be perma nent”) (empha sis added) , (24) (def ining “impairment rating ” as “the perc entag e of perma

nent impairment of the whole body resulting from a compe nsable injury ”) (empha sis added). 16chemica l exposure. Bu b n i s ’s anxiety and depre ssion, on the other hand, wer e the sole bases for

Dr. Velasque z’s initial 30% impairment rating

. Thus, Bubnis’s anxiety and depre ssi o n , wh et h er assig ned a 0%, 30%, or 100% impairment rating , would not qualify for impairme nt income under the Act beca

use it is not an “impairment” as that term is define d under the Act. I n other words, even if we wer e to acc ept Bubnis’s arg ument that Dr. Velasque z’s since-r ejec ted 30% impairment rating is the only valid impairment rating for her anxiety and depre ssion, that rating would be immaterial to, and would not establish, Bubnis’s ultimate entitlement to worke rs’ co m p en s at ion benef its.
Acc ording ly , having overr uled Bubnis’s first issue reg arding t h e extent of her injury , we likewise

overr ule her challeng e to the impairment rating.

CONCLUSION Having overr

uled Bubnis’s issues on appea l, we aff irm the district court’s judgme nt in favor of

L I SD.

__________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Pemberton, F ield, and B ourland
Affir med Filed: Mar ch 25, 2015

17