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State Office of Risk Management v Foutz

January 28, 2009 – Case Report           


State Office of Risk Management v. Foutz, No. 11-07-00116-CV (Tex. App. Eastland 2009)


This case stands for the proposition that if your required medical examination (RME) doctor states an injury is compensable, then you are stuck with that opinion and you run the risk of sanctions or bad faith if you try to disprove compensability of that injury and lose.


The Eastland Court of Appeals’ opinion rises out of a sanctions hearing after a jury trial.  The trial court judge on his own motion issued an order requiring the State Office of Risk Management (SORM) and its attorneys to show cause why they should not be sanctioned for filing a frivolous lawsuit.  Following the show cause hearing, the trial court sanctioned SORM $100,000.00 and its lead counsel $5,000.00 and its co-counsel $3,000.00. 


The Eastland Court of Appeals reports the following facts. Shawnae Foutz was a TDCJ corrections officer a/k/a prison guard.  On February 14, 2005, she was working the graveyard shift and was assigned to the control area that opens and closes cell doors.  Her shift was to end at 6:00 a.m.  At about 5:50 a.m., Ms. Foutz heard a banging noise and someone demanding entry.  She turned and saw Inmate Gilbert trying to flee from Inmate Caldwell.  Inmate Caldwell began stabbing Inmate Gilbert.  TDCJ policies forbade Ms. Foutz from opening the door and allowing Inmate Gilbert into the control area.  Instead, Ms. Foutz was required to watch the attack so that she could later identify the participants.  Other inmates distracted Inmate Caldwell, and Inmate Gilbert managed to escape.  Ms. Foutz was relieved from duty at 6:03 a.m. and she was instructed to give a written statement.  Five to ten minutes later, she learned that Gilbert had died.


Ms. Foutz stayed at work participating in the investigation until 1:00 p.m.  She went home and tried to rest but she claimed she was unable to do so because she kept seeing the event over and over.  She called her supervisor and reported having problems.  He gave her the Emergency Assistance Program phone number, and Ms. Foutz scheduled an appointment with Wanda Kendall, a licensed professional counselor.  Ms. Foutz told Ms. Kendall that she was experiencing anxiety and was questioning herself for not preventing Inmate Gilbert’s death.


Ms. Foutz filed a workers’ compensation claim.  SORM disputed her claim.  At SORM’s request, Ms. Foutz saw Dr. Edwin Johnstone, a Board Certified Psychiatrist, for an independent medical exam (IME) or RME.  Dr. Johnstone confirmed that Ms. Foutz suffered from Post Traumatic Stress Disorder (PTSD) and recommended further treatment.  A contested case hearing was held before the Texas Workers’ Compensation Commission (TWCC) and the hearing officer found that Ms. Foutz suffered a compensable mental-trauma injury on February 14, 2005.  The TWCC Appeals Panel affirmed.  SORM filed suit for judicial review because the hearing officer and the appeals panel had failed to address the legal standard for mental-trauma claims.  The hearing officer and Appeals Panel made no finding that Ms. Foutz’s injury was attributable to a specific time, place, and incident.


Repetitive mental trauma resulting in injury is not compensable under the Workers= Compensation Act.  Transp. Ins. Co. v. Maksyn, 580 S.W.2d 334, 337-39 (Tex. 1979).  Mental trauma when there is evidence of an undesigned, untoward event traceable to a definite time, place, and cause is compensable under the Workers’ Compensation Act.  GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 610 (Tex. 1999).


SORM took Dr. Johnstone’s deposition.  Dr. Johnstone also testified at trial as did Ms. Foutz.  Because Dr. Johnstone was present for trial, his deposition testimony was not admitted.  The Court of Appeals sets out some of Dr. Johnstone’s deposition testimony and states his trial testimony was similar.  According to the Court of Appeals, Dr. Johnstone testified during his deposition as follows:


There were really three things going on.  She’s at work at what seems like a routine thing.  The shift is about to end, as a matter of fact.  Much to her surprise, there’s a banging noise and somebody screaming, Let me in. Let me in. Let me in.  She looks and sees that Gilbert is being assaulted by Caldwell.  And, so, she sees that.


The second thing is that she’s got the switch to the door that he is pleading for her to open.  And it’s flashing through her mind, Should I, should I not open B hit the switch to open that so that maybe he could get away from this assault?  And she’s running through, If I were to do that, though, that’s breaking a rule about what I was trained to do and told that I must not open that except under certain kind of requirements.  You know, I’m not sure what they are.  But, anyway, it was a no-no and –


And then the third factor in the thing was the discovery after a bit that the man had died rather than survived the assault. 


            So, there are really three elements in it, it seems to me.


SORM’s counsel later referred to these elements as those three incidents.  Dr. Johnstone agreed that they all resulted in Ms. Foutz’s PTSD diagnosis.  On cross-examination Dr. Johnstone clarified that these three aspects were all part of one event.


            Q.        All right.  [SORM’s counsel] used the . . . words aspects of that event.  Do you feel like that the witnessing of the B as he B I’ll use his words assault, the later discovering of the defendant, which I believe she testified to was fairly quickly a shorter period of time than 30 or 40 minutes, as well as the feelings of helplessness would be one event or three events?


            A.        One event.


According to the Court of Appeals, Dr. Johnstone’s deposition testimony did not establish a reasonable basis for SORM to file suit against Ms. Foutz.  The Court held his testimony disproved that contention because Dr. Johnstone was clear that Ms. Foutz’s PTSD was proximately caused by one work-related event. This testimony was completely consistent with his report.  Dr. Johnstone wrote:


Ms. Foutz was not in mortal danger herself in the event but the ghastly scene of the murder was enough to shock her emotionally.  Her sense of being frozen in a position of potential to save the victim, however unrealistic in practical reality, is deeply disturbing in a tenacious way.  Her symptoms of repercussions after emotional trauma (PTSD, DSM-IV 309.81) are consistent with the event.


The jury found for Ms. Foutz.  The trial court awarded her $50,717.47 in attorney’s fees, costs, and expenses.  The trial court then held the show cause hearing.  At the conclusion of the show cause hearing, the trial court found that SORM’s suit for judicial review was groundless.  The court noted that the determination of compensability could have been made just by examining the facts, that the facts were known, and that Dr. Johnstone opined that this was one event.  SORM argued that it was unfairly punished for losing when frivolous suit sanctions are meant only to punish those who should not have brought a case. 


The Court of Appeals stated that SORM contended that Ms. Foutz’s PTSD was caused by multiple repetitive trauma and therefore was not compensable.  The Court of Appeals held SORM was required by a preponderance of the evidence to prove that Ms. Foutz was exposed to multiple traumatic events.  The only evidence SORM proffered of multiple traumatic events was Dr. Johnstone’s testimony.  The Court of Appeals held that since Dr. Johnstone’s testimony establishes exactly the opposite and because SORM identified no evidence or potential evidence to support its multiple event claim, the trial court did not abuse its discretion by finding that SORM filed a groundless suit.


The Court of Appeals made much of the fact that the litigation had an effect on Ms. Foutz.


I will not address the discussion of what constitutes an event for mental trauma injuries in the opinion.  However, if you wish to read the opinion you may find it (hopefully) through the following link:



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