## In the Cour t of Appeals Second Appellate D i strict of Tex as at Fort Worth

___________________________ No. 02

- 19

- 00224

- CV

___________________________

On Appeal from the 48th District Court Tarra nt County, Texas Trial Court No. 048

- 280578

- 15

Before Sudderth, C.J.; Kerr and Wallach, JJ. Memorand um Opinion by Jus tice Kerr 

### J OHN 

### E LLIS 

### , Appellant

V



### . D ALLAS 

### A REA 

### R APID 

### T RANSIT 

### , Appellee2 MEMORANDUM OPINION
I n t his workers ’ com pensation case, John Ellis appeals the trial court ’ s judgment affirming the T e xas Depart ment o f Insurance ’ s de cision regarding the

exten t of Ellis ’ s com pensable injury

. Ellis argue s that th e trial court err ed by requiring expert medical evide nce causally l inking his alleged injuries to his on

- the

- job accident,
and he claims that this e rror re sulted in a legally insufficient jud gment
. We affirm

. I. Background In May 2 014, Ellis was in volved i n a moto r

- vehicl e acci dent w hile driving a bus
for Dallas Area Rapid Transit (DART )

. DART provided workers ’ compensati on coverage for e mployees , so Ellis filed a claim with the Texas D e p art ment of
Insurance ’ s Division of Workers ’ Compen sation ( TDI )

. In the ye a r that followed , El li s visited more than sev en doct or s for pain in his neck, shoulder, arm , hand, and wrist

. Ellis claimed that t he 2 014 c ollision aggravated
preex i sting injuries to his ro t ator cuff and w rist, both of which he traced to a prior on

the

- job accident in 2013. Although the me dical r e co rds presented at trial showed th at
Ellis reporte d a right

- sho uld er ro t ator

- cuff tear and a right

- wris t ganglion cyst as preexisting conditions , none of the medica l records causally link ed the aggravation of
hi s sho ul der or wrist conditio ns to the 2014 c ollision

. A. Medi cal History
Ellis vi sited the emergency room t he night of his on

- the

- j o b accident bu t was discharge d with “ no significant acut e injuries ” othe r than cervical strain, right

-3 shoulder st r ain, a nd ri ght

- wrist strain. The fo llowing day, D r. Lawus

- Scurry examined
Ellis and to ok x
- rays of his should er and wrist

. The d octor found “ no significant acute
i njuries ” diagnosing only a cervica l

- spine muscle s pa sm and a s pr ai ned or strained

ne ck, elbow, forear m, and shoulder.
E llis sought a second o pinion from Dr. Powell , who concluded that El lis had
sho ulde r strain , cervical strain , wri st s p rain , and t rape z ius s t rain

. A pprox imat ely on e month later, Dr. Powell examined Ellis a gain a nd fo und that Ellis had rega ined full
range of motion in his shoulder , wrist, nec k, and spine

. D r. For d then conducted a p eer review o f Ellis ’ s file

. In his report, Dr. Ford aggregated and summarized E llis ’ s then

- current diagnoses : “ a cervical strain, a ganglion cyst of the wrist , a shou lder s train, a tr apezius st rain, a wrist a nd forearm sprain/ strain , mu ltilevel cervical stenosis , shoulder imp ingement, and a rotato r cuff

tear
. ” D r. Ford noted that MRI s conducted in 2013

— before the 2014 collis ion , obviously

— found “ a partial tear of the s upraspinatu s tendon ” in Ellis ’ s right s houl der
and “ questionable te nosynovitis w ithin the ca rpal tunnel ” in his right wrist. Of Ellis ’ s di a gnoses , Dr. Ford conclud ed that “ the alleged work

- related [ incident ] was a sub sta ntial fac tor in bringing about

. . . a cervical strain, a shoulder st r ain, a trapezius strain, and a wrist and forear m strain /s prain ” but that the “ gan glion cys t, cervical

s tenosis , an d a partial rotato r cuff tear with impingement are clearly
docum ented

. . . as pre [] existing conditions which are not a direct result of the ori ginal4 work

- related event of May 18, 2014

. ” Nota bly, Dr. Ford did no t mention a tendi nitis diagnosis ; Ellis ’ s medic al records did not contain s uch a diag no sis at the ti me . Dr. Powell served as El lis ’ s treating doctor and c ontinued see ing Ellis and reviewing his conditio n e very two to four weeks

. S ee Tex. Lab . Code Ann. § 401.011(42) (defining “ treati ng doctor ” as “ the doctor who is prim arily r esponsi bl e for the emplo yee ’ s health care for an injury ” ). Although Ellis ’ s should er and wrist h ad
recovered full range of motion one month after the accident, D r. Powell later noted
new limitations in Ellis ’ s range of motion

. But a n MRI of Elli s ’ s shoulder revealed
that his ri ght

- shoulder rota tor cuf f

— w hich wa s allegedly torn due to a p re existing injury

— w as fully intact

. Moreover , the new range

- of

- motion limitation s in Ellis ’ s wrist

were inc onsistent with th e 201 4 injury. Dr. Powell thus refer red Ellis to a specialist for
his wrist , but h er overall a ssess ment of Ellis ’ s conditi on re main ed u nc h ange d.
The wrist spec i ali st El lis visited was Dr. Zehr , a hand surgeon

. D r. Zehr diag nose d Ellis with “ [t]endinitis right wrist mainly firs t dorsa l c ompar tment ” and

c o nclude d that th e te ndini tis

— rather t h an the ganglion cyst

— was the primary cause of Ellis ’ s wrist pain

. Dr. Zehr recommended cortisone injections and a thumb s plint
but note d that surgery was an option if nec essar y . When Ellis conti nued to experience
pa in , Dr . Zehr sche duled Ellis for s urgery for the ten di nitis. B ut Ellis cancele d the

su rgery after learning that it would no t be covered by w o r kers ’ compensat ion

.5 TD I then appointed a designated doctor 1

— Dr. Clenne y
— to examine Ellis and impartially determine the extent of h is compensable injury

. Id. § 401.011 (1 0) (defining

“ comp ensab le injury ” ). D r. Clen ne y noted significant limitations in t he range of
motion o f Ell is ’ s right wrist and right shoulder “ fa r in e x cess of tha t b ased o n the inju ry and the MRI. ” D r . C l e n n e y identified five pote ntially compensable con ditions : (1) cervical s p rain/ stra in ; (2) righ t shou ld er sp rain / st rain ; (3) right wrist sprain/ strai n ; (4) right trape zi a l strai n ; and (5) right forearm strain. But Dr. Clenney indicated t h at
Ellis had not ye t reache d his date of maxi mum medical im pro vem ent (MMI)

. 2 Meanwhile, Ellis visited yet another hand surgeo n : Dr. Monte jo

. A lthough Dr. Montejo noted many of the same s p r ains and stra ins di agn osed by Ell is ’ s other

1 A designa ted doctor is “ a doc tor a ppo inted by mut ual a greeme nt of the parties or by th e division t o recom mend a resol ution of a dispute a s to the medical condition of an i njured employee. ” Te x. Lab

. Code Ann. § 401.011 ( 15) ; see also 28 Tex. Admi n. Code ch. 127 (202 0) (Tex. D ep ’ t of In s., Designate d Dr

. P r oced ures & Requirements)

. The empl oye r , the empl oye e, o r TDI may or der a me dical exam i n a tio n b y the des ignated doctor to determine the extent o f the emplo ye e ’ s comp en s able injury, among other issues. See Te x. Lab

. C ode Ann. § 408.0041 ( a )

. TDI give s the de signa ted doctor ’ s rep ort “ presumptive w eight unle ss the prepon deranc e of the evid ence is to th e contrary
. ” Id . § 408.0041 ( e)

.

2 The date of “ m aximum medica l improvement ” i n a case not involving spinal surgery is “ the earlier of (A) the e arliest date afte r which, based on reasonable medical proba bility, fu rther materi al rec overy fro m or lastin g improvement to an injury can no l onger reasonably be anticipated ; [ or ] (B) the expiration of 104 weeks from the date on which income benefits begin to accrue
. ” Id. § 401.011 (30)

.6 doctors , he a ttributed Elli s ’ s wrist pain to de Quervain ’ s tenosynovitis and epicondyliti s . 3 Dr. Montejo did no t opine about the cause of these new diagnose s . T DI th en referred Ellis to Dr . Doores fo r yet another medical o pinion

. 4 Dr.
Doores examined E llis and his me dical fi le , noting Ellis ’ s preexist ing ga nglion cyst and

rotator

- cuff tear as well as Dr. Zehr ’ s findin gs and D r. Monte jo ’ s de Quervain ’ s

ten o synovi tis diagnosis

. But Ellis ’ s presen tation of hi s symptoms contradicted many of Dr. Doores ’ s own observa tions ; f or example, Ellis cl aim ed to ha ve cer vical

- spine
rang e

- of

- motion limit ations bu t Dr. Doores inf ormally observed E llis us ing a greater
range of motion than he claimed

. Dr. Door es determined that Ellis had only three compensable conditions substantially caused by the 2014 accident : ( 1) “ cervical
strain ” ; (2) “ rig ht sho ulder strain ” ; and ( 3) “ right wrist stra in. ” He opi ned that Ellis
h ad rea ched hi s MMI when he recov ered full range of motion in his shoulder , wris t,

nec k, and spin e one month after the injury , stating “ [s] ub sequen t complaints ar e inc onsistent with the injury and the physiologic response e x pected foll o wing th is injury. [R ange

- of

- mo tion] limitations recor ded subseq uentl y have no o bjective
p hys iologic basis. ”

3 Neither Ellis nor DA RT off ere d e vi dence a t tr ia l expl aini ng the meaning o f

“ de Quervain ’s ten osynovi tis ” or “ epicondy li ti s . ”

4 Dr. Doores conducted the “ required medical ex aminatio n . ” See Tex

. Lab. Code Ann. § 408.0 04; 28 Tex. Admi n. C od e § 126. 6 (2020) (Tex. Dep ’ t of Ins. , Re quired Med

. Exam

. )

.7 S oon after, D r. Powell fi led a repo r t a g r e e i n g w i t h D r . D o o r e s regarding Ellis ’ s
MMI da t e . Dr. Powel l identified four relevant diagnoses : a neck sprain, wrist pain,

m edi al epic ond ylitis, and lateral epicondylitis. 5 Dr. Powell doc umented Ellis ’ s claim
that hi s conditio n s stemmed from the 2014 on

- the

- job a c cident , but Dr. Powell did

not herse lf opine about the c ause of those co nditions

. Elli s ’ s medical visit s continue d in to 2 015. In Ja nuary

— mor e t han sev en

mon ths after the accident

— Dr. Cle n ney ex amined Elli s for a second time and
reevaluated his earl ier concl usion s regarding the exten t of Ellis ’ s injury an d his MMI
date

. As pa rt of th e reevalua tion , D r . Clen n ey re v i e w e d o ver one hundred relevant
docu ments and m edical records , incl uding the clinic al findings of the physicians Ellis
ha d visited since his acciden t
. Ult im ate ly , Dr . C lenney conclud ed tha t El lis had only
three com pensable in ju ri es caused or a ggravat ed by the 2014 collisi on : (1) “ ce rvical

s prai n/s train ” ; (2) “ right should er sprain/ strain ” ; and (3) “ right wrist sprain/ s train. ”
Dr. Clenney a lso modified his earlier assessment of Ellis ’ s MMI date and agree d with
D r. Doores and Dr. Powell t hat Ellis had r eached MMI approxim ately on e mon th
after the accident when he regained full range of motion in his s houlder, wris t, neck, and spine

. Und eterred , Ellis sought a d ia g nosis from anoth er hand su rgeon: Dr. Ogunro

. Ellis told Dr. Ogu n ro that he had been diagnos e d wi th and was receiving inject ions

5 Neither Ellis nor DA RT offe red evide nce at trial explain ing the m ean ing of

“ m edi al epic ondylitis ” or “ lateral epicondyli tis

. ”8 fr om Dr. Zehr for d e Quervain ’ s teno synovitis

. After examining Elli s, Dr . Ogunr o concluded th at t h e pri m ary cause of Elli s ’ s right

- wr i st pai n was intersection syndrome
but noted tha t Ellis ’ s g anglion c yst was contr ibutin g to hi s pain as well

. 6 Like Dr s . Montejo and Powell, Dr. Ogunro di d n ot opine about the ca use of any of Ellis ’ s wrist

co nditions , apart from documenting Ellis ’ s d escri ption of events

. Ultimately, DART agree d to cover three com pen sable in juries as part of Ellis ’ s worke rs ’ com pensation clai m : (1) “ c ervical s prai n / s tra in ” ; (2) “ right should er sprain/ strain ” ; and (3) “ right wr ist sprain/ strain. ” This coverage aligned with the
compens able in juri es identifi ed by Dr. Clenney a nd Dr . Doores

. But Elli s claimed that
the 2014 accident also cause d or a ggravated his right

- sho u ld er rotator

- cuff tear and rig ht

- wrist ten diniti s . The parties could not resolve their dispute in formally or t hrough
a TDI benefit

- review conference

. See Te x. Lab. Code Ann. § § 4 10.021

– 34 ( d is cussi ng benefit

- rev iew conference requirements a nd procedures )

. B. TDI Heari ng T DI h eld a contested he aring to det ermine , amon g other things, w h ether “ the
compensa ble injury of M a y 18, 2014 , . . . extend [ed] to and include [ d ] right should er
pa rtial rotator cu f f tear an d right wrist tendo nitis

. ” T he heari ng offi cer fo und that the
d isputed condi tions “ did n ot arise out of or naturally f low from the compen sa ble

6 Neither Ell is nor DART offe red evi dence at trial ex plaining what “ in tersection syn dr ome ” m eans.9 injury, nor wer e thes e conditions worsened, enhanced or accelerated by t he
compensa ble injury. ” The hear ing officer explained his rationa le : As for the i ssue of exten t of injury, the cause and ex istence of the di sputed conditions are m att ers beyond common exp erience a n d medical evidence ne eds to b e subm itted whic h esta blishes the c ausa l connec ti on as a matte r of reas onab le medic a l prob ability

. . . .

. . . .

. . . This is a case based up on the legal sufficienc y of the exp ert med ical evidence. Claimant simpl y does not have a medica l ex pert explaining how h is compe nsable i njury incl udes the disputed condi tions

. A TDI a ppeals p a nel review e d t he hearing of fi cer ’ s decision and allow ed it to be come fin al. See id

. § 4 10.204 (c)

. C. Tria l in District Court
Ellis then sought judicial review by filing sui t in di strict court chall engin g TDI ’ s dec i s ion on all c o n tested is sues. See id

. §§ 410.30 1 ( providing judi cial review of compensability issues , among other issues ) , 410.302 (b) ( limiting the issues to those decided by the TDI a ppeals panel and on which judicial review is sought)

. Ellis
appear ed p ro s e at the bench trial , where he test ifi ed about the 20 14 collision , his
variou s medi cal e xaminations and t ests , and hi s con cern t h at DART had tampered
with the bus surve illance

- vi deo rec ordings that ca ptured the ac cide nt
. Ellis en tered
four exhibits into evidence , 7 b ut Ellis requested that t w o of these

— a 2013 report

7 The re c ord r eflects express ruli ngs admitting on ly th ree of Ellis ’ s exhibits into
e v id ence. B ut t h e fourth admitted exhibit

— a CD containing DART ’ s surveillance

video recordings

— was p resent ed to the trial court wi th out objection an d is i ncluded10 from Dr. Ford and a co py of requests for productio n

— be omitted from the appellat e record

. The reco rd thus contains onl y tw o exhibits from Ellis : (1 ) a partial , un signed
medical re c ord from the Lankford Hand Surgery Ass ociat ion

— wh ere Dr. Zehr practice d

— indicating the physician ’ s impression t h at Ell is ha d “ [t] endinitis righ t
wris t ” ; 8 and (2 ) DART ’ s s urve illa nce

- vi deo record ings showin g po rtion s of the in side
of Ellis ’ s bus at the ti me of the accid ent. DART c alled no witnesses b ut off ere d t en exhib it s in to evidence , including t he
T DI hearing office r ’ s decision, the TDI a ppeal s

- p anel decision , repor t s from Dr s . Clenney , Doores, and Pow ell regardin g the ext ent of Ellis ’ s in jur y and his MMI da te ,

in the report er ’ s record

. Both DART and Ellis have recogni zed the CD as an exhibit in their filings with us

. The record is thus cl ear th at the CD was implicitly admitted int o evide nce . See Tex. R. App. P. 33.1 (a)(2)(A) ( stating trial court may rule on a request expressly o r implicitly) ; Seim v. Alls tate T ex. Ll oyds , 551 S.W.3d 161 , 166 (Tex. 2018 ) ( quoting In re Z.L .T. , 124 S.W.3d 163, 165 (Tex. 2003) , and recognizing that “an implicit rulin g may be suff icient to preserve an issu e for appel late review , ” but cautioning that an implied ruling must be “ cle ar ” from th e record ); Residen tial Dynamics, LLC v. Loveless , 1 86 S.W.3d 192, 195 (Tex. A pp.

— Fort Worth 2 006, no pet.) (holding tha t trial cour t implicitly overruled o bjections and a d mitted app ellees ’ summary judgment evidence by stating in its judgment tha t it cons idered s uch evidence )

. E l lis claims

— without argument or explanation

— that the tr ial court admitt ed all nine of his offered exhibits in to evidence

. B ut th e record reflects clea r rulin gs from the trial court excluding five of t hem

. Regar d less, Ellis directed the court reporter to omit his five excluded exhibits fr om the appel late rec ord

.
8 The par tial medical re co r d bears what appe ars to be a yellow sticky note with the wo r ds “ Dr Zehr Find ings. ” A longer version of the s ame doc ument was att ached to Ellis ’ s summary

- judgment response and co nfirms that the exh ibit was a record from Dr. Zehr

.11 a n d Dr. Ford ’ s peer

- review report
. D ART also entered a co py of the TD I hearing
officer ’ s d e c ision from a s eparate w or kers ’ compen sation case r elated to Ellis ’ s 2013 work

- related accident

. Th at decision showed that Ellis had un success fully
claimed that the 2013 accid ent caused a r ight

- should e r rot ator

- cuff tear and r ight

- wrist

ten d initis as well

. DAR T consisten tly ar gue d th at exp ert me dical e vidence causally linking Ellis ’ s alle ged injuries to th e 2014 accident was require d an d that Elli s failed to carry his
bur den by not present ing s u c h evi d ence . Ellis di s agreed , arguing t ha t the bus
surveillanc e v i deo s showe d the cause and exten t of his injuri es and tha t inconsistencies within the vide os indicated they had been tam per e d with. The trial

cou rt did not state wheth er it consi dered exper t medical evi dence legally nece ssary to
prove cau sation , and nei ther party expressl y req uested a ruling on the iss ue . After ta king the case under advisem ent, t h e t rial court issued a judgmen t i n DART ’ s f avor . The judgment pr ovides, in re levant part : THE C OURT HEREB Y ORDERS, AD JUDG ES, AND DECR EES that the compensable in jury of M ay 18, 20 1 4, does no t exte nd to and inclu de right shou lder partial r ot ator cuff tear and right wrist tendon itis; Cl aimant did not ha ve d isability resul ting f rom a c ompensable injury sustained on May 18, 2 014, from June 2 0, 2014, to the date of the contes te d case he a ring; Clai mant r eached maximum me dical impro vement on June 1 9, 20 14; and Claimant ’ s impairment ra ting is 0%, and the Texas Dep artment of Insu rance Divisio n of Workers Compe nsation De cision & Or der # FW

- l 4252313

- 0 1

- CC

- FW48, and Appeals Pa nel Dec is ion, Appea l #151131, be up held and affirme d in all
res pects.12 El lis filed a tim ely appeal indic ating that he “ disagree[d ] w ith [the] findi ngs bas ed on
th e hearing ” and “ di sagree[d] with Judge W eeks being assig ned to [the] case. ” He di d

not requ es t f indings o f fact or conclusio n s of law

. See Tex. R. Civ. P . 296

. I I. Discussion On appeal, Elli s argue s that the trial court erroneously r equir ed expert medical
evide nce t o prove that his 2014 on

- t he

- j ob accid ent w as a producin g cause o f his alleged rota to r

- cuff tear and tendinitis

. Ellis furth e r argu es that this e rror resulted in a legally insufficient judgment

. 9

9 Ellis also con tend s that th e trial cou rt ’ s all egedly erroneous causation f inding produced three ad dit i onal erroneous finding s re gar d ing ( 1) th e existence o f a disabi l ity re sulting from Ellis ’ s compensa ble injury ; (2) Ellis ’ s MMI da t e ; and (3) Ellis ’ s impairment rating. But E llis does not e xplain why , ho w, or to what degree these findings depended on the t r i a l c o ur t ’ s ca usation fi ndi ng . Rather , E llis mere ly states in
a single sent ence of argument that the trial court ’ s alleged ly erro neous causati on f inding “ a dditional ly produced the [se] ancillary findings. ” Ellis has waived his challeng es to the “ ancil lary f indin gs ” due to inadequate brie fing. See Tex. R. App. P. 38.1( i ) ( “ The br ief must contain a clea r and concise a rgument for t he co ntentions made, with ap propriate citations to author ities and to the record. ”); Wise Cnty. v. Ma s tropiero , N o. 02

- 18

- 00378

- CV, 2019 WL 3755766, at *8 (Tex. Ap p.

— Fort Worth Aug. 8, 2019 , no pet.) ( mem. o p
. ) ( holding compla in t waived where appellants pr ovide d a sing l e

- sente nce a rgument with no citation s to the record or to legal authority) ; Martinez v. El Paso Cnt y. , 218 S .W. 3d 841 , 84 4 (Tex. App.

— El Paso 2007 , p et. struck) (noting th at R ule 38.1 “ is not satisfied by merely ut tering brief co nclusory stat eme nt s, unsupported by legal cit ations , ” and that “[f] ai lure to cite legal authority or provide su bst a ntive an aly sis of an is sue wa i ves the complai nt ”)

. Regardl ess , Ellis ’ s challenges to th e “ ancillary fin dings ” are premised on the allegedly e rroneous natu re of the trial court ’ s causation finding. B ecause we affirm th e trial court ’ s c a usation fin ding , Ellis would not prevail on his dep endent cha llenges to the trial court ’ s “ ancillary fi ndings

. ”13 A
. Expert Testimon y First, Ellis ’ s c laim that the trial court erroneou sly required expert medical
evi dence of causation is neither preserved no r dispos itive

. T he record d oes not indicat e tha t the tr ial c ourt conside red expert medical evidence legal ly necessa r y to establish causation

. Ell is dedicate s a sign ificant p ortion of his brie fi ng to thi s is su e , but h i s a rguments attack statem ent s from the T DI hearing officer ’ s decisio n

— n ot the
trial court ’ s judgment

. Alth ough the tri al court “ upheld and aff irm ed ” TDI ’ s decision
and order “ in all respect s, ” the court did not adopt the hearing office r ’ s de cision as a

s ubstit ute for its own findings of fact and conclu sions of law

. S ee Tex. R. Civ. P. 296 , 299a ( “ Findings of f act shall no t be recited in a judgment. ” ). In de ed, no fi ndings of
fact o r conclusions of law w e re re quested o r f iled. See Tex . R. Civ. P. 296 , 299a

. Conse quently , the tr ial court ’ s judgm e nt implie s all findin gs ne cess ary to s upport it

. Shi elds Ltd. P ’ ship v. Bradberry , 526 S.W.3d 4 71, 480 (Tex. 20 17) ( “ When neither party requests findings of fact and conclusions of law following a nonjury trial, all fact
fi ndings necessar y to support the t rial cour t ’ s judgment are implied. ” ) ; see also In re W.E.R. , 669 S.W.2d 716 , 716

– 17 ( Tex. 1984) ( per curiam)

. Absent conclus ions of law to the contrary, we presume the trial court knew and correctly appli ed the law to the
facts

. See Bucke ye Ret. Co. v. Ban k of Am. , 239 S.W.3d 394, 402 (T ex. Ap p.

— Dallas 2007, no pet.) ( applying r ule t o pr es ume that tri al court knew and correctly applied law regarding spoliation ) ; see also Jackson v. Gould , No. 01

- 16

- 00203

- C V,
2016 WL 5957214 , at *5 (Tex. Ap p.

— Houston [1st Di st.] Oct. 13, 2016, no p e t .)14 (me m. o p. ) ( rejecting cl aim that tr ial court alle g edly applied an ab olished legal doctrine
because the doctrine was not in the court ’ s conclusion s of law )

. W e thus over rule
El lis ’ s challenge to the trial court ’ s alleged error

. Regard les s, e ven if Ellis could show tha t the trial court erred, he would still

ne ed to prevail on his legal

- suff iciency challenge to obtain reversal

. If a trial court err s
in applying the law but non ethe less render s the pr oper judgment, the error alone d oes

not wa rrant revers a l. BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789 , 79 4 (Tex. 2002) ; City o f Forest Hill v. Benson , 55 5 S.W.3d 284, 289 (Tex. App.

— Fort Worth 2018, no pet.)

. Rather , we mus t af firm the judgment i f we can upho l d it o n any legal theory s up ported by th e re cord. Rosemo nd v. Al

- Lahiq , 331 S.W.3d 764, 766 (T ex. 2011); Li berty Mut. I ns. v. Bur k , 295 S.W.3d 771 , 777 (Tex. App.

— Fort Worth 2009, no pet.)

. We thus turn to Elli s ’ s di s positi ve challenge : that regarding t h e legal sufficien cy of th e judgment

. Se e Te x. R . App. P . 47.1

. B
. Legal Sufficiency
Ellis cha ll enge s the legal sufficien cy of the trial cou rt ’ s fin ding that “ the

co mpensable in jury of M ay 18, 2014, does no t exte nd to and incl ude right sho u lder partial ro tator cuff tear an d right w ri st tendonit i s . ” A s the party seeking jud icia l review
of a TDI app ea ls

- panel decisi on , Ellis had the burden to prove thi s is sue at trial

. Tex.
Lab

. Code Ann. § 410 .303 ; Morales v. Libe rty Mut. Ins. , 2 41 S.W.3d 51 4, 516 (Tex. 2007)

.15 When a n app ellant at tac ks th e legal suf ficiency of an adverse fi ndin g on an issue he had t he burden to prove, t he appellant must de mo nstrate that (1) there is n o t
more than a scintil la of evidence supporting the adverse fin ding ; and (2) the evidence conclusively e sta blishes all vi tal facts i n support of the issue as a matt er of law , leavi ng

“ n o room for ordi nary mi nds to differ

. ” In t ’ l Bus . Mach

. Co rp. v. Lufkin Indus., L LC , 573 S. W.3d 224, 235 (Tex. 2019) ( quoting Triton Oi l & Gas Corp. v. Marine Contractors & Supply, Inc ., 644 S. W.2d 443, 446 (Tex. 1982) ) ; Dow Chem. Co. v. Francis , 46 S. W.3d 237, 241 (Tex . 20 0 1 )

. I n reviewing su ch a challenge, we begin by examin ing the rec o rd
for evi dence supporting the tri al co urt ’ s findi n g while ig noring all ev idence to the
contrary. Dow Chem. C o ., 46 S.W.3d at 241

. If no evidence supports the finding, then
we will examine th e e ntire record to determine if the contrary position is establi shed

as a m atter of law. Id . We wil l sus tain the i ss ue only if the contrary position is conclusively esta blish e d. Id

. But anything more than a scintilla of evidence is l egally
sufficient to su p po rt the trial cou rt ’ s finding , ending our analys is at s tep one
. Cont ’ l
Co ffee Prods. Co . v. Caza r ez

, 9 37 S.W.2d 44 4, 45 0 (Tex. 1996); Lei tch v. H ornsby , 935 S.W.2d 114 , 118 (Tex. 199 6 )

. H ere , Ellis had to show t hat h is May 2014 co llision was a “ produ cing c ause ” of right

- w ris t tendonitis and a rig ht

- shoulder r otator

- cu ff tear
. See Transcon. Ins. v . Cr ump , 330 S.W.3d 21 1, 2 15

– 2 4 (Tex. 2010)

. An event is a “ produci ng cause ” of an injury if it
is a substantial factor in b ringing about t he injury , wi thout whi ch th e injury woul d not have occurred. Id. at 22 3

. In oth er wo rd s, the act “ must be

. . . actua lly responsible for16 th e ultimate harm ”

— not merely “ one of the count less ubiquito us and insignifica nt
causes that in some rem ote sense may have contri bu t ed to a give n effect

. ” Id. a t 224

. The questi on pre se nted o n appe al i s t hus whether the record contains mor e th an a scintilla of evidence to support the trial cou rt ’ s finding that Elli s ’ s 2014 on

- the

job accident wa s not a subs tan tial factor in bringin g about his all eged right

- w rist
tendonitis or right

- shoulder rotator

- cu f f te ar , and that these injuries

— to the extent
th ey exist ed

— would have occurred without the accident

. The record cont ains fa r

more than a scintilla of evidence sup porting thi s f inding

. First , the re ar e omis sions in t he appellate rec ord that we must pre su m e are legally sufficient to suppo rt t he j udgment

. S pecifical ly, Ellis instructed the court reporter to omit from the r ecord two of his exhibits that the trial co urt had admitted into evidence, along with instructing t he court reporter to leave out five other (un admitted) exhibits. One of the two admitted

- but

- omitte d exhibits was a 2013 pre

accident report from Dr. Ford

. B ecause w e “ must presume the omit ted items
suppor t ed the trial court ’ s j udgment , ” an appellant raising a legal

- suff ici ency challenge cannot discharge his b urden to s how tha t the jud g ment is erroneou s without a
comp lete or agreed record. Bennett v. Cochran , 96 S.W.3d 227, 230 (Tex. 2002) (per curiam) (quoting Gallagher v. Fire Ins. Exch ., 950 S.W.2d 370, 371 (Tex. 1997) ( p er curiam)) ; Schafer v. Conn er , 813 S.W.2 d 154, 155 (T ex. 1991) (per curiam) ; Chr istians en v. Prezelski , 782 S.W.2d 842, 843

– 44 (Tex. 1990) (per curiam) ; see also Pye ’ s Au to Sales, Inc. v. Gulf State s Fin. Co ., No. 0 1

- 05

- 00670

- CV, 20 07 WL 1559933, at * 2

– 3 (Tex. App.

—17 Houston [ 1 st D ist.] May 31, 2007, no pet.) (mem. o p. on reh ’ g ) (overru ling legal

su fficiency challenge due to appellant ’ s failure to i nclude trial exhibits in the appellat e record ) ; A d ams v. Transp. Ins. , 845 S.W.2d 323, 326

– 27 (Tex. Ap p.

— Da l las 19 92, no writ) ( h old ing that app e l lant was prevented from presenting f actual

- suf fic iency
challen g e on appeal w here multiple trial exhibits were los t or destroyed)

. A party may avoid th e presump tion t hat omitted p ortions of th e record support the judgme nt if
the appellate recor d i nclud es ( 1) the a ppel lant ’ s request for a part ial report er ’ s record ;

an d (2) a statement from the appellant limiting th e p oints to be pr esented on a ppeal

. Tex. R. App. P. 34.6 (c) ; CMM Grai n Co. v. Ozgunduz , 991 S.W.2d 437, 439

– 40 ( Tex

. App.

— Fort Wort h 1999, n o pet.)

. The record in this c ase contains n eit her

. We
therefo re pre sume that the o mitted ex hibits s upport the tria l cour t ’ s judgment

. This

a lone is f atal to Ellis ’ s leg al

- suf ficiency challenge

. Bennett , 96 S.W.3d at
2 29 ( recognizing that, abs ent a statement con fining the appeal to specific points or
issues i n compliance with Rule 34.6, “ [t] here is no question that

. . . Rule 34.6 would require the appellate court to affirm the [legal and factual sufficien cy of the] trial

cour t ’ s judgme nt ” ) ; Sc hafer , 813 S .W. 2d at 15 5 ; CMM Grai n Co. , 991 S.W.2d at 4 40

. B ut ev e n with out the o mitted exhibits , the appell ate record contains more t han
a scin tilla of evidence to su ppo rt the trial court ’ s c hal le nged finding

. Dr. Clenn ey and
Dr. Do ores b ot h concluded that Ell is had only three com pensabl e in ju ries c aused or
ag gravated b y the 20 14 acci dent

— t o the exclus ion of Ellis ’ s other conditions a nd diagnoses

. The docto rs ’ shar ed conc lusion w as co nsis tent with Ellis ’ s emerge ncy

-18 ro om rec ords on the night of the accident , c onsistent with the clinical findings
d o cumen ted by Dr. Lawus

- Sc urry and Dr. P ow ell in the days following the accident , and consistent with Dr. F or d ’ s fi ndings up on p eer

- review

. Dr. Clenney and Dr.
Doores further noted th at Ell is ’ s r ight shou ld er and ri ght wrist rega in ed full range of
motion roughly a mont h after the a ccid e nt, and Ellis ’ s later diagnos es, complaints, and
repor ted range

- of

- motion limitations were i ncon s isten t wit h the injury.
Reco rd evidence also draws into question t he existence of El lis ’ s rotat or

- cuff
tear and tendinitis

. Although Ellis had a partial r otator

- cuf f tear in hi s me dical history ,

an MRI taken approxi mately two mon t hs aft er the accid ent reve a led an inta ct right

sho ulde r rotator cuf f. And E l lis ’ s tendinitis diagnosis was one of numerous alterna tive

assess ment s of his wri st pain

. Plus, the tend initis assessment came two m onths after
the a c cident while Ellis ’ s wrist was exhibit in g new range

- of

- motion l imitations

“ inco n s istent with the inju ry . ”
The reco rd contain s yet another pi ece of evidence : the TDI app eals

- panel
decis ion

. T he trial court w as s tat utor ily required to “ c ons ider the decision of the appeals pane l ” in render ing its j udgmen t , and the decisi on w as admitted i nt o evidence
at trial

. See Tex. Lab

. Code An n. § 410.304 (b)

. The court was “ free to give the appea ls

panel decision no weight, som e w e ight, or significant wei ght, depe nding o n [the

c ourt ’ s ] view of the e vidence. ” L i berty Mut. Ins. v. Camacho , 228 S.W.3d 453, 460 (Tex. App.

— Beaumon t 2007, pet. denied)

. T h e appeals

- panel decision its elf thus serve d as

ev idence i n support of the tri al c our t ’ s causation finding

. Burk , 295 S .W.3d at19 779 ( “ Onc e t he tri al court took jud ici al notice of the appeals panel decision, it was

e vid en ce in the cas e that could potentially suppo rt the trial court ’ s judgment

. ” ); see also ESIS, Inc. v. Johnson , 908 S .W. 2 d 55 4, 5 58

– 61 (Tex. App.

— F ort Worth 1 995, writ
denie d) (ho lding that a n appeals

- pane l d ecisi on is ad missible as part of the T DI recor d

u nd er Tex

. Lab

. Code Ann. § 4 10.306(b) ).
Given the presumption arising from El lis ’ s omitt ed exhibits , the medic al

rec or d s ent ered into e vidence at trial , and the appeals

- pan el dec ision , more than a
scintil la of evidence e xists to support the t rial court ’ s f in ding that Ell is ’ s 2014 on

- the

job accid ent was not a pro ducing cause of hi s right

- wrist t en dinitis or r ight

- should er

rot at or

- cuf f tear. W e overrule Ellis ’ s legal

- s uffici e ncy ch alleng e . I I I. Conclusion
H aving over rule d both of Ellis ’ s iss ue s , we a f f irm t he trial court ’ s judgment.

/s/ Elizabeth Kerr Elizabeth Kerr Justice
Del ivered: January 14, 2021