source: Caselaw Access Project

license: Public Domain

text:
    AMERICAN ZURICH INSURANCE COMPANY, Appellant, v. Daniel SAMUDIO, Appellee.
    No. 01-08-00233-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 11, 2010.
    Rehearing Overruled June 11, 2010.

      Gregory D. Solcher, Robert D. Stokes, Flahive, Ogden & Latson, Austin, TX, for Appellant.
    Byron C. Keeling, Keeling & Downes, P.C., David Q. Haag II, Michael P. Doyle, Doyle Raizner LLP, Ruth Brett Downes, Keeling & Downes, P.C., Houston, TX, for Appellee.
    Panel consists of Chief Justice RADACK, and Justices ALCALA and HIGLEY.
   OPINION

ELSA ALCALA, Justice.

Appellant, Zurich American Insurance Company (Zurich), a workers’ compensation carrier, appeals from the trial court’s judgment awarding attorney’s fees to Daniel Samudio, appellee, and dismissing its appeal for lack of subject matter jurisdiction. Zurich had filed a petition for judicial review of a final decision by the Texas Department of Insurance Division of Workers’ Compensation (Division) that held Daniel Samudio, appellee, had a 20 percent impairment rating. In three issues, Zurich asserts that (1) the trial court had jurisdiction to determine whether Sa-mudio’s impairment rating complied with the Texas Workers’ Compensation Act, (2) Samudio’s plea to the jurisdiction, taken to its logical extension, would obviate summary judgment practice, and (3) the trial court should not have ordered Zurich to pay Samudio’s attorneys’ fees. We conclude that (1) the trial court properly dismissed Zurich’s judicial review action because it did not have jurisdiction under the Texas Workers Compensation Act to effect the remedies sought by Zurich, (2) a plea to the jurisdiction is a proper procedural vehicle for challenging a trial court’s subject matter jurisdiction, and (3) the trial court properly ordered Zurich to pay Sa-mudio’s reasonable and necessary attorney’s fees because Samudio was the prevailing party in the lawsuit.

We affirm.

Background

While in the course of his employment, Samudio sustained a compensable injury to his back when he fell off a ladder. Samu-dio had four surgeries to repair his back, including a laminectomy and a multilevel spinal fusion. Samudio’s surgeons did not order preoperative flexion or extension x-rays before surgically operating on his back.

His employer carried worker’s compensation insurance coverage through Zurich. After his injury, Samudio filed a workers’ compensation claim with the Division, the Texas administrative agency that administers the Texas Workers’ Compensation Act. Under the Act, an injured worker may become entitled to receive impairment income benefits, which are based on an impairment rating assigned by a physician. In determining the existence and degree of an injured worker’s permanent impairment, the Division is required to use the fourth edition of the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association (AMA).

The principal methodology found in the fourth edition of the Guides is its injury model, which uses objectively verifiable evidence to place patients into one of eight diagnosis-related estimate (DRE) categories. Depending on which DRE category the patient falls into, the examining doctor will assign the patient a particular impairment rating. In cases where spinal fusion surgery is performed, the Guides require the examining doctor to base the rating on pre-operative flexion and extension roent-genograms (x-rays).

Confusion existed in the medical community regarding how to rate claimants who lacked preoperative flexion and extension x-rays. To address this confusion, the Division issued Advisory 2003-10 and Advisory 2003-10B, in 2003 and 2004, respectively. The second advisory added an additional section to the first. The advisories attempted to provide an alternative standard for assessing a DRE category in cases where there are no preoperative x-rays.

The advisories included a controversial provision that stated “[i]f preoperative x-rays were not performed, the rating may be determined using the following criteria: ... b. Multilevel fusion meets the criteria for DRE Category IV, Structural Inclusions, as this multilevel fusion is equivalent to ‘multilevel spine segment structural compromise’ per DRE IV.” In other words, under the Division’s Advisories, an examining doctor could include evidence of a spinal fusion surgery in assessing which DRE category the claimant belonged.

The Division appointed Dr. Gasón Ma-chado, M.D., to act as a designated doctor for assignment of Samudio’s impairment rating. He conducted his examination in 2004. In his “Report of Medical Evaluation” that he distributed to the Division, Dr. Machado stated that used the Guides to calculate Samudio’s impairment rating as 20 percent based on qualifications found in DRE Category IV. In a later “Letter of Clarification,” Dr. Machado clarified that his evaluation was also based upon the Advisories. He stated that he had used the Advisories because the only set of x-rays was a series of lumbar x-rays from 2002 that were inconclusive. As there were no pre-operative flexion or extension x-rays of Samudio, and because Dr. Ma-chado believed the set of x-rays taken of Samudio were inconclusive, in accordance with Advisory 2003-10 and Advisory 2003-10B, the doctor included Samudio’s spinal fusion surgery as a factor in his conclusion that Samudio fell within DRE Category IV. Dr. Machado explained:

TWCC Advisory 2003-10 and Advisory 2003-10b both state that when examining an injured worker who has had spinal surgery, the rating is to be determined by preoperative x-ray tests for motion segment integrity. If those x-rays are not available, the type of surgery can be used to rate the individual. In this case, the pre-operative films do not appear to be motion studies; therefore, I believe I was correct in using the type of surgery to determine the impairment rating.

In November 2005, the Division conducted a benefit contested case hearing (the Hearing) to resolve two issues. The Division ruled in favor of Zurich on the first issue by determining Zurich’s contest of the impairment rating was timely. No one challenges that ruling in this case.

The second issue concerned Samudio’s “impairment rating.” Zurich disputed Dr. Machado’s 20 percent impairment rating on the ground that the doctor used the Division’s Advisories to help formulate his impairment rating. In support of its position, Zurich offered a letter from John Obermiller, M.D., who criticized Dr. Ma-chado’s impairment rating, stating that Dr. Machado’s evaluation was “not in accordance with the AMA Guides” and that Dr. Machado was “confusing the declarations of TWCC advisory 2003-10b...Dr. Obermiller expressly stated in his letter that he was not providing an impairment rating on Samudio, but was instead explaining why, in his opinion, Dr. Machado’s opinion was erroneous. This was the only evidence Zurich provided to the Division to contest Dr. Machado’s impairment rating. Zurich did not present an alternative impairment rating.

After considering all the evidence including Dr. Obermiller’s comments, the Hearing Officer concluded that Samudio’s impairment rating was 20 percent based on Dr. Machado’s 20 percent impairment rating certification. The Hearing Officer issued a written opinion with his findings and one of those findings specifically determined that there was only one impairment rating.

Zurich appealed the decision at the Hearing to the Division’s appeals panel. In February 2006, the Division’s appeals panel notified the parties that the Hearing Officer’s decision was final.

In March 2005, Zurich appealed the Division’s decision to the trial court. In its original petition, Zurich asked the trial court to either hold Samudio had no impairment rating at all, or determine that Samudio’s impairment rating was 10 percent rather than 20 percent. It also requested that the trial court abate proceedings until the Austin Court of Appeals issued a final ruling in Lumbermens Mut. Co., regarding the validity of Advisories 2003-10 and 2003-10B. In October 26, 2006, the Austin Court of Appeals held that the advisories were invalid and enjoined their continued use by the Division. Following the Texas Supreme Court’s denial of the petition challenging the Lumbermens decision, the Division issued Texas Department of Insurance Commissioners’ Bulletin No. B-0033-07 in July 2007, which provides that Advisories 2003-10 and 2003-10B “shall no longer be used in determining impairment ratings.”

In August 2007, Samudio filed a plea to the jurisdiction with a request that the trial court dismiss Zurich’s lawsuit for lack of subject matter jurisdiction. Samudio contended that Zurich failed to raise a justiciable controversy because the trial court was required to adopt an impairment rating presented to the Division in the underlying proceedings before the agency, and only one rating, the 20 percent rating, had been introduced at the Division level. In October 2007, the trial court granted Samudio’s plea to the jurisdiction and dismissed the case.

In February 2008, Samudio filed an additional motion for attorney’s fees pursuant to section 408.221 of the Labor Code. Soon afterwards, the trial court rendered a final judgment in Samudio’s favor, expressly noting that Samudio was “the prevailing party on all issues” and noting that it would enter a separate order regarding attorney’s fees. In March 2008, the trial court awarded Samudio $29,246 in attorney’s fees through the date of the final judgment, plus appellate fees of up to $42,000 on the condition that Samudio prevail on appeal. Zurich subsequently appealed to this court.

The Trial Court’s Jurisdiction

In Zurich’s first issue, it asserts the trial court erred in granting Samudio’s plea to the jurisdiction because the trial court had subject matter jurisdiction over the lawsuit.

A. Plea to the Jurisdiction

Subject matter jurisdiction requires that the party bringing the suit have standing, that there be a live controversy between the parties, and that the case be justiciable. State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex.1994). If the district court lacks the power to effect a remedy that would resolve the dispute at issue, the case does not present a justicia-ble issue. Di Portanova v. Monroe, 229 S.W.3d 324, 330 (Tex.App.-Houston [1 Dist.] 2006, pet. denied).

“The absence of subject-matter jurisdiction may be raised by a plea to the jurisdiction, as well as by other procedural vehicles, such as a motion for summary judgment.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex.2000) (footnotes omitted); see also Houston Mun. Employees Pension Sys. v. Ferrell, 248 S.W.3d 151, 156 (Tex.2007) (“A party may contest a trial court’s subject matter jurisdiction by filing a plea to the jurisdiction.”). A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Harris County v. Sykes, 136 S.W.3d 635, 638 (Tex.2004); see Bland Indep. Sch. Dist., 34 S.W.3d at 554. The purpose of a dilatory plea is not to force the plaintiff to preview its case on the merits, but to establish a reason why the merits of the case should not be reached. Bland Indep. Sch. Dist., 34 S.W.3d at 554.

A plea to the jurisdiction can challenge either the sufficiency of the plaintiffs pleadings or the existence of jurisdictional facts. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226-27 (Tex.2004). When a plea to the jurisdiction attacks the pleadings, the issue turns on whether the pleader has alleged sufficient facts to demonstrate subject matter jurisdiction. Id. at 226. In such cases, we construe the pleadings liberally in the plaintiffs favor and look for the pleader’s intent. Id. When the pleadings neither allege sufficient facts nor demonstrate incurable defects, the plaintiff should usually be afforded an opportunity to amend. Id. at 226-27. However, if the pleadings affirmatively negate jurisdiction, then the plea to the jurisdiction may be granted without leave to amend. Id. When a plea to the jurisdiction challenges the existence of jurisdictional facts, a court may consider evidence in addressing the jurisdictional issues. Id. at 227. If the evidence reveals a question of fact on the jurisdictional issue, the trial court cannot grant the plea, and the issue must be resolved by a fact finder. Id. at 227-28. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law. Id. at 228.

In reviewing a trial court’s granting of a plea to the jurisdiction, we do not look to the merits of the plaintiffs case, but consider only the pleadings and the evidence pertinent to the jurisdictional inquiry. Id. at 227. The plaintiff bears the burden to allege facts affirmatively demonstrating the trial court’s jurisdiction to hear a case. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993). If a plaintiff pleads facts that affirmatively demonstrate an absence of jurisdiction and the jurisdictional defect is incurable, then the cause is properly dismissed. See Miranda, 133 S.W.3d at 227. However, when the plaintiff fails to plead facts that establish jurisdiction, but the petition does not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency, and the plaintiff should be afforded the opportunity to amend. Id. at 226-27.

This standard of review generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c). Miranda, 133 S.W.3d at 228. To prevail on a plea to the jurisdiction, the party asserting the plea “must show that even if all the allegations in the plaintiffs pleadings are taken as true, there is an incurable jurisdictional defect apparent from the face of the pleadings, rendering it impossible for the plaintiffs petition to confer jurisdiction on the court.” Bland Indep. Sch. Dist., 34 S.W.3d at 554. Whether a court has subject matter jurisdiction over a case is a legal question and, therefore, we review a trial court’s ruling on a plea to the jurisdiction under a de novo standard of review. Miranda, 133 S.W.3d at 226; Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex.1998). A trial court properly dismisses claims over which it has no subject matter jurisdiction. Thomas v. Long, 207 S.W.3d 334, 338 (Tex.2006).

B. Impairment Ratings

A workers’ compensation claimant is eligible to receive impairment income benefits if he continues to have an impairment after reaching maximum medical improvement (MMI). Tex. Lab.Code. Ann. § 408.121. MMI is defined as the earlier of “the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated” or “the expiration of 104 weeks from the date on which income benefits begin to accrue.” Id. § 401.011(30)(A), (B) (Vernon Supp. 2009). In order to obtain impairment benefits, an employee must be certified by a doctor as having reached MMI and must be assigned an impairment rating by a certifying doctor, the percentage of which expresses the extent to which the claimant’s injury permanently impaired his body. Id. §§ 401.011(24) (Vernon Supp. 2009), 408.123(a) (Vernon 2006).

All impairment ratings must be assigned by doctors based on a review of medical records and a certifying physical examination performed explicitly to determine MMI and an impairment rating. See Tex. Lab.Code Ann. § 408.124 (Vernon 2006); 28 Tex. Admin. Code § 130.1(b)(2), (4)(B) (West 2009); Pac. Employers Ins. Co. v. Brown, 86 S.W.3d 353, 360 (Tex.App.-Texarkana 2002, no pet.). The statute appears to contemplate that physicians for the claimant and the carrier may each make an impairment determination. Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 514 (Tex.1995). If their findings conflict, the claimant must be examined by a “designated doctor” selected by mutual agreement of the parties or by the Division. Id. (citing Tex. Lab.Code. Ann. § 408.125 (Vernon 2006)). The designated doctor’s rating is binding on the Division if he or she was selected by the parties, while the rating has presumptive weight if the doctor was selected by the Division. Id. In the latter case, the presumption is overcome only if the great weight of the other medical evidence is to the contrary, in which case the Division must adopt the impairment rating of “one of the other doctors.” Id.

The requirements for assigning an impairment rating include performing a complete medical examination of the employee for the explicit purpose of determining MMI, 28 Tex. Admin. Code § 130.1(b)(4)(B) (West 2009); certifying the employee has reached MMI, 28 Tex. Admin. Code § 130.1(b)(2) (West 2009); identifying, documenting, and analyzing objective clinical or laboratory findings of permanent impairment for the current compensable injury, 28 Tex. Admin. Code § 130.1(c)(3) (West 2009); comparing the results of the analysis with the impairment criteria and providing the following: a description and explanation of specific clinical findings related to each impairment, including zero percent impairment ratings, a description of how the findings relate to and compare with the criteria described in the AMA Guides, and explaining any inability to obtain the required measurements, 28 Tex. Admin. Code § 130.1(c)(3)(D) (West 2009). The doctor assigning the impairment rating shall assign one whole body impairment rating for the current compensable injury. 28 Tex. Admin. Code § 130.1(c)(3)(E) (West 2009).

In addition, in order to certify MMI and assign an impairment rating for the current compensable injury, the certifying doctor is required to complete, sign, and submit the report of medical evaluation and a narrative report to the Division and the parties involved within a certain time frame. Id. § 130.1(d). The narrative report must include the date of the certifying examination; the date of MMI; findings of the certifying examination, including both normal and abnormal findings and an explanation of the analysis performed to find whether MMI was reached; a narrative history of the medical condition that outlines the course of the injury and correlates the injury to the medical treatment; the current clinical status; diagnosis and clinical findings of permanent impairment as stated above; and the edition of the AMA Guides used in assigning the impairment rating. Id.

C. Disputing Impairment Ratings-Administrative Process

The Workers’ Compensation Act vests the Division with exclusive jurisdiction to determine a claimant’s entitlement to medical benefits. In re Liberty Mut. Fire Ins. Co., 295 S.W.3d 327, 328 (Tex.2009). Under the “exclusive jurisdiction doctrine,” the legislature grants the Division the sole authority to make the initial determination in a medical benefit dispute. Subaru of Am. v. David McDavid Nissan, 84 S.W.3d 212, 221 (Tex.2002). If an agency has exclusive jurisdiction, a claimant must exhaust all administrative remedies in the agency before filing a claim in the trial court. See In re Entergy Corp., 142 S.W.3d 316, 321-22 (Tex.2004); Subaru, 84 S.W.3d at 221.

In instances where the parties dispute the impairment rating, the Texas Workers’ Compensation Act provides a three-step administrative process for resolving disputed issues. See Tex. Lab. Code Ann. §§ 410.021-.209 (Vernon 2006 & Vernon Supp. 2009) (first tier: benefit review conference; second tier: contested case hearing; third tier: review by administrative appeals panel); Tex. Dept. of Ins., Div. of Workers’ Comp. v. Jackson, 225 S.W.3d 734, 736 (Tex.App.-Eastland 2007, no pet). Compliance with each step is a prerequisite to participation in the next level, and subsequent proceedings are limited by the scope of the prior proceeding. Jackson, 225 S.W.3d at 736.

The Division’s first tier, the benefit review conference, is an informal dispute resolution proceeding. Tex. Lab.Code Ann. § 410.021. If the conference is unsuccessful, the parties proceed to a contested case hearing administered by a hearing officer. See id. §§ 410.151-.169. The hearing officer is the only individual with the authority to excuse exhaustion of administrative remedies upon a showing of good cause. Jackson, 225 S.W.3d at 736. A party dissatisfied with the hearing officer’s decision can appeal to the Division’s appeals panel, which is the third and final tier in the administrative process. See Tex. Lab.Code Ann. § 410.202 (Vernon 2006); see id. at 737 (noting legislature has made clear that it intended for hearing officer to make initial decision in workers’ compensation dispute and that all subsequent proceedings are limited to review of that decision). The request for appeal and the opposing party’s response must clearly and concisely rebut or support the decision of the hearing officer on each issue on which review is sought. Tex. Lab.Code Ann. § 410.202(c). The Division appeal is not a de novo trial, but rather is limited to a review of the record from the contested case hearing. See id. § 410.203(a). After considering briefs and the record from the contested case hearing, the Division’s appeals panel may affirm the decision of the hearing officer, reverse and render a new decision, or remand no more than one time to the hearing officer for further consideration and development of the record. Id. § 410.208(6)(c); Garcia, 893 S.W.2d at 515. The Texas Workers’ Compensation Act provides that the Division must adopt the impairment rating of one of the doctors, giving the designated doctor’s rating presumptive weight. Tex. Lab.Code Ann. § 408.125(c) (Vernon 2006); Brown, 86 S.W.3d at 359.

D. Trial Court’s Jurisdiction under Texas Workers’ Compensation Act

An agency’s enabling legislation determines the procedures for obtaining review of agency decision. Harris County Emergency Servs. Dist. #1 v. Miller, 122 S.W.3d 218, 222 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (citing Tex. Natural Res. Conservation Comm’n v. Sierra Club, 70 S.W.3d 809, 811 (Tex.2002)). Parties have no absolute right to challenge an administrative order; the right of judicial review arise only when (1) a statute creates it, (2) the order adversely affects a vested property right, or (3) the order otherwise violates a constitutional right. Id.

The legislature, through the Texas Workers’ Compensation Act, requires a modified trial de novo procedure for judicial review of Division actions involving “eligibility for ... income ... benefits.” Tex. Lab.Code Ann. § 410.301(a); Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248, 256 (Tex.1999); Garcia, 893 S.W.2d at 528-30. Modified de novo review means: (1) the trial court is informed of the Division Appeals Panel’s decision; (2) evidence of the extent of impairment is limited to that presented to the Division, unless the court makes a threshold finding that the claimant’s condition has substantially changed; and (3) the court is required to adopt the specific impairment rating arrived at by one of the physicians in the case. Tex. Lab.Code Ann. §§ 410.304, 410.306-.307 (Vernon 2006); Garcia, 893 S.W.2d at 528. Here, because no one claims Samudio’s condition has changed, evidence under the second prong would be limited to that presented to the division. See id.

In a judicial review case, the Texas Workers’ Compensation Act requires that the trial court adopt one of the impairment ratings assigned by the doctors in the case. Tex. Lab.Code Ann. §§ 401.011(15) (Vernon Supp. 2009), 408.125(c), 410.306(c); Garcia, 893 S.W.2d at 528 (trier of fact must adopt specific rating of one of physicians in case); Bell v. Zurich Am. Ins. Co., 311 S.W.3d 507, 511 (Tex.App.-Dallas 2009, no pet.) (“In a judicial review case, the court or jury must adopt the specific impairment rating of one of the physicians in the underlying administrative case.”); Brown, 86 S.W.3d at 360. The party appealing the decision on an issue described in Section 410.301(a) has the burden of proof by a preponderance of the evidence. Tex. Lab. Code Ann. § 410.303 (Vernon 2006); Brown, 86 S.W.3d at 359. Only issues presented and preserved through the Division dispute process under Chapter 410 of the Texas Labor Code may be presented at trial. See Tex. Lab.Code Ann. § 410.302(b) (Vernon 2006).

E. No Jurisdiction to Effect Remedies Sought

In its first issue, Zurich asserts the trial court had jurisdiction to determine whether Samudio’s impairment rating complied with the Texas Workers’ Compensation Act. The only issue disputed between the parties to be resolved by the trial court through judicial review was the extent of impairment suffered by Samudio. A dispute regarding the extent of impairment suffered by Samudio goes directly to the issue of Samudio’s eligibility for income benefits. The trial court or jury, therefore, must review the Division’s decision regarding Samudio’s impairment rating under a modified de novo review, and only has jurisdiction to adopt an impairment rating assigned by a doctor in the underlying administrative case. See Tex. Lab. Code Ann. §§ 410.301(a), 410.306(c); Rodriguez, 997 S.W.2d at 256; Garcia, 893 S.W.2d at 528; Bell, 311 S.W.3d at 511; Brown, 86 S.W.3d at 360. The requirement that the impairment rating match a physician’s findings is part of the substantive statutory scheme. Garcia, 893 S.W.2d at 528 (“Because the ultimate impairment rating must match one of the doctor’s findings, the disputed question of fact on appeal can only be which doctors’ rating should prevail.”); Fin. Ins. Co. v. Ragsdale, 166 S.W.3d 922, 928 (Tex.App.-El Paso 2005, no pet.) (“It is clear from the facts presented to us that the only issue under dispute between the parties and to be resolved by the jury was the extent of impairment suffered by Appellee. The jury was required to adopt the specific rating of one of the physicians in the case.”); Bell, 311 S.W.3d at 511 (“In other words, the requirement that the impairment rating match one of the physicians’ findings is part of the substantive statutory scheme.”).

In its original petition, Zurich asked that the court either adopt the 10 percent rating based upon Dr. Obermiller’s report, or adopt a zero percent rating by holding Dr. Machado’s rating “be set aside and held for not [sic].” On appeal, Zurich suggests as a remedy that the court could also use an expert witness, or Dr. Machado himself, to help the fact finder calculate an entirely new impairment rating. The trial court does not have the jurisdiction to effect any of these remedies.

First, the trial court does not have the jurisdiction to select the 10 percent rating suggested by Dr. Obermiller in his report. Dr. Obermiller’s letter does not meet the requirements that an impairment rating be assigned by doctors based on a review of medical records, a certifying physical examination, and be performed explicitly to determine MMI and an impairment rating. See Tex. Lab.Code. Ann. § 408.124; 28 Tex. Admin Code § 130.1(b)(4); Brown, 86 S.W.3d at 360 (where doctor only intended to express concern regarding doctors’ ratings and did not intend to assign rating himself, no evidence that doctor met requirements for assigning claimant impairment rating). Perhaps more importantly than the fact that Dr. Obermiller’s opinion did not comply with the code, it is undisputed that Dr. Obermiller was not attempting to provide evidence of Samudio’s impairment rating. Dr. Obermiller wrote:

I am not providing an impairment rating on this individual. This review has been conducted to determine, in my opinion that the process set forth in the [Guides ] was followed. I have not seen or examined this claimant. I have relied solely on information provided by [Zurich] in presenting my opinion.

Dr. Obermiller’s letter specifically stated that he was “not providing an impairment rating,” that he had “not seen or examined [Samudio],” and that he had “relied solely on information provided by [Zurich].” Dr. Obermiller himself characterized his role as impeachment evidence only in that he was determining whether Dr. Machado followed the proper process set forth in the Guides.

In contrast, it is undisputed that Dr. Machado was providing an impairment rating under the Division’s then existing requirements. When the 2005 contested case hearing took place between Samudio and Zurich, the Austin Court of Appeals had not yet issued its decision in Lumber-mens, and Advisories 2003-10 and 2003-10b were still in effect. Lumbermens was not decided, and the Bulletin was not released, until after Zurich exhausted its administrative remedies in the Division. Until it released Bulletin No. B-0033-07, the Division required certifying physicians to consider the effect of the Advisories in calculating an impairment rating for a claimant who had undergone a multilevel spinal fusion. See, e.g., Div. Workers’ Comp., Appeal No. 061940, 2006 WL 3187285, *2 (Oct. 25, 2006) (examining doctor was “forced to adhere to Advisory 2003-10”); Div. Workers’ Comp., Appeal No. 061713-s, 2006 WL 3064080, *5 (Oct. 20, 2006) (noting that “the Division Advisories must be considered as part of the certifying doctor’s process in determining the appropriate [impairment rating]”); Tex. Workers’ Comp. Comm’n, Appeal No. 051587, 2005 WL 2507672, *1 (Aug. 22, 2005) (noting the Division “advisories must be considered as part of the certifying doctor’s process in determining the appropriate [impairment rating]”).

Unlike Dr. Obermiller, Dr. Ma-chado was appointed as the designated doctor to provide an impairment rating; he examined Samudio; he examined Sa-mudio’s medical records; and he did provide an impairment rating for Samudio, albeit one that was later determined by the Lumbermens decision to lack conformity with the Guides. See Lumbermens, 212 S.W.3d at 876-77. As Dr. Obermil-ler’s opinion undisputedly was impeachment evidence only and did not constitute an impairment rating, the only impairment rating presented to the Division was Dr. Machado’s 20 percent rating. As Dr. Ma-chado’s impairment rating was the only rating in evidence before the Division, evidence of Samudio’s impairment rating was limited to Dr. Machado’s impairment rating on judicial review and the trial court could adopt only Dr. Machado’s rating. See Tex. Lab.Code Ann. § 410.306(c) (evidence of extent of impairment rating limited to that presented to Division); see also Garcia, 893 S.W.2d at 528 (fact finder may not find impairment rating other than one of percentages in evidence before Division); Ausaf v. Highlands Ins. Co., 2 S.W.3d 363, 367 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (amended certification of maximum medical improvement inadmissible in district court because it was not first presented to Division).

Second, the trial court does not have the jurisdiction to craft a new impairment rating, based upon an expert’s testimony, or testimony by Dr. Machado. The impairment rating imposed by the trial court must be one of the percentages in evidence before the Division, unless the trial court makes a threshold finding that the claimant’s condition has substantially changed, or there was a clerical error made in the determination of the impairment rating. See Tex. Lab.Code. Ann. §§ 410.306(c), 410.307(a); Garcia, 893 S.W.2d at 528 (holding fact finder or trial court may not craft its own impairment rating; noting that jury, presented with assigned ratings of 10, 14, and 20, would have to return one of those numbers, not 16 percent as crafted by the jury); see also, e.g., Old Republic Ins. Co. v. Rodriguez, 966 S.W.2d 208 (Tex.App.-El Paso 1998, no pet.) (finding that example provided in Garcia addressed compromise verdicts and was not intended to prohibit fact finder from accepting doctor’s findings with correction for minor clerical error for which evidence was presented). Because none of the parties here contend that Sa-mudio’s condition changed or that Dr. Ma-chado made a clerical error, the trial court did not have the jurisdiction to allow the fact finder to craft a new impairment rating, nor did it have the jurisdiction to remand it to the Division. See Bell, 311 S.W.3d at 511 (labor code does not permit reconsideration or reopening of evidence of claimant’s impairment rating); Tex. Workers’ Comp. Comm’n v. Harris County, 132 S.W.3d 139, 146 (Tex.App.-Houston [1st Dist.] 2004, no pet.) (“Although we can understand why it might seem appropriate to remand the issue of appellant’s impairment rating to the appeals panel, no mechanism in the labor code allows for such a remand.”); Tex. Workers’ Comp. Comm’n v. Tex. Mut. Ins. Co., 119 S.W.3d 886, 887 (Tex.App.-Dallas 2003, no pet.) (“[N]othing in the labor code allows the trial court to send matters back to the appeals panel.”).

Finally, the trial court does not have the jurisdiction to “set aside” Dr. Machado’s impairment rating and find Sa-mudio is entitled to no benefits by giving him a zero percent rating. It only has the jurisdiction to allow a fact finder to choose either .Dr. Machado’s rating, or an alternative rating that was presented to the Division. See Tex. Lab.Code Ann. §§ 410.301(a), 410.306(c); Garcia, 893 S.W.2d at 528; Bell, 311 S.W.3d at 511; Brown, 86 S.W.3d at 360.

Although Lumbermens held the Advisories were invalid, the decision does not affect our jurisdictional analysis here, but instead would become pertinent on the merits if the trial court had two or more ratings from which to choose. See Lamar Univ. v. Doe, 971 S.W.2d 191, 195 (Tex.App.-Beaumont 1998, no pet.) (“When confronted with a plea to the jurisdiction which contends that the trial court is without power to proceed on the subject matter in question, the question of whether a genuine issue of material fact exists as to the merits of plaintiffs lawsuit is immaterial. The merits of plaintiffs’ suit only become ripe for consideration after the trial court determines subject matter jurisdiction.”) (emphasis in original); see also Bell, 311 S.W.3d at 509 (holding trial court that had two alternative ratings from which to choose properly reversed Division’s impairment rating because Division’s rating was decided using Advisories, as compared to alternative impairment rating that did not use the Advisories as guidance).

By requesting a zero rating, Zurich’s pleadings ask the trial court to craft or select an impairment rating not in evidence before the Division, which it cannot do. See Tex. Lab.Code Ann. §§ 410.301(a), 410.306(c); Garcia, 893 S.W.2d at 528; Bell, 311 S.W.3d at 511; Brown, 86 S.W.3d at 360. Because the trial court does not have jurisdiction to effect any of the remedies sought by Zurich, we hold that the trial court properly granted Samudio’s plea to the jurisdiction.

We overrule Zurich’s first issue.

Plea to the Jurisdiction as a Procedural Mechanism

In its second issue, Zurich contends “[Samudio’s] argument, taken to its logical extension, would obviate summary judgment practice.” It asserts that in instances where the “court can reach only one result in a case, the case is ripe for summary judgment.” Having held the trial court properly resolved the dispute as a plea to the jurisdiction, we overrule Zurich’s second issue.

Attorney’s Fees

In its third issue, Zurich contends the trial court erred in ordering it to pay Samudio’s attorney’s fees. Zurich asserts that Samudio “is not entitled to recover attorney’s fees in this case because he has not proved that he is a prevailing party under the act.”

The availability of attorney’s fees under a particular statute is a question of law for the court. Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex.1999). Therefore, we review this issue de novo. El Paso Natural Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex.1999). A trial court’s dismissal for lack of subject matter jurisdiction does not prevent the concurrent award of attorney’s fees under a mandatory award provision. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 257 (Tex.App.-Dallas 2005, no pet.).

Zurich’s lawsuit is the appeal of a decision by an appeals panel of the Division, which is authorized by Chapter 410, Subchapter G of the Texas Labor Code. Tex. Lab.Code. Ann. §§ 410.301-.308 (Vernon 2006). The Texas Workers’ Compensation Act provides that in a suit for “judicial review under Subchapter G, Chapter 410, of a final decision of the appeals panel regarding compensability ... or the amount of, income ... benefits,” an insurance carrier “is liable for reasonable and necessary attorney’s fees ... as a result of the insurance carrier’s appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier....” Id. § 408.221(c) (Vernon 2006). Otherwise, the claimant’s attorney’s fees are to be paid from the claimant’s recovery. Id. § 408.221(b) (Vernon 2006). In either circumstance, “[a]n attorney’s fee ... for representing a claimant before the ... court under this subtitle must be approved by the ... court.” Id. § 408.221(a).

The Texas Workers’ Compensation Act does not define “prevailing party.” See Tex. Lab.Code. Ann. §§ 401.001-506.002 (Vernon 2006). Cases construing “prevailing party” under Civil Practice and Remedies Code chapter 38 and under Texas Rule of Civil Procedure 131 have consistently applied the same definition and analysis to the phrase. A prevailing party is one who is vindicated by the trial court’s judgment. Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 564-65 (Tex.App.-Texarkana 2003, pet. denied) (construing Chapter 38); Scholl v. Home Owners Warranty Corp., 810 S.W.2d 464, 468-69 (Tex.App.-San Antonio 1991, no writ) (construing Rule 131); see also Hagberg v. City of Pasadena, 224 S.W.3d 477, 484-85 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (claimant is prevailing party entitled to attorney’s fees where claimant began with final Division decision in his favor and after lawsuit is filed, parties are put back in same position as before carrier filed judicial review).

Section 408.147(c) requires that the claimant prevail “on any disputed issue,” and § 408.221(c) requires that the claimant “prevail on an issue on which judicial review is sought by the insurance carrier.” See Tex. Lab.Code Ann. §§ 408.147(c), 408.221(c) (Vernon 2006). Here, Samudio sought and obtained dismissal of Zurich’s claim. When the trial court granted Sa-mudio’s plea to the jurisdiction, Zurich’s claim was disposed of and Samudio was in the same position he would be in if he had prevailed after a trial on the matter. The dismissal of Zurich’s claim made Samudio a prevailing party for the purposes of §§ 408.147 and 408.221. See Ins. Co. of State of Pa. v. Orosco, 170 S.W.3d 129, 134 (Tex.App.-San Antonio 2005, no pet.) (holding that claimant who sought and obtained dismissal of carrier’s judicial review challenge of Division decision through plea to jurisdiction, was prevailing party for purposes of § 408.147); see also Weng Enter., Inc. v. Embassy World Travel, Inc., 837 S.W.2d 217, 222-23 (Tex.App.-Houston [1st Dist.] 1992, no writ) (term “prevailing party” refers to party who successfully prosecutes action or successfully defends against action on main issue). We hold the trial court properly awarded attorney’s fees to Samudio, the prevailing party in this appeal from the Division’s decision.

We overrule Zurich’s third issue.

Conclusion

We affirm the judgment of the trial court.

      . Effective September 1, 2005 the legislature abolished the Texas Workers’ Compensation Commission (the Commission), and transferred its responsibilities to the Texas Department of Insurance, Division of Workers’ Compensation (the Division). Act of May 29, 2005, 79th Leg. R.S., ch. 265 §§ 8.001(b), 8.004(a), 2005 Tex. Sess. Law Serv. 608. Although both the Commission and the Division were in operation during the time relevant to this dispute, for consistency we will refer to the Commission and the Division as the Division only.

      . See Tex. Lab.Code Ann. § 408.121 (Vernon 2006); Tex. Dep’t of Ins., Div. Of Workers’ Comp. v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870, 872 (Tex.App.-Austin 2006, pet. denied).

      . Id. § 408.124(b) (Vernon 2006); 28 Tex. Admin. Code § 130.1(c)(2)(B)(I) (West 2009) (The fourth edition of the Guides must be used for impairment ratings issued on or after October 15, 2001).

      . Lumbermens Mut. Cas. Co., 212 S.W.3d at 872 (Tex.App.-Austin 2006, pet. denied).

      . Id.

        . Id. at 873.

      . Id. at 876-77.

      . Tex. Dep’t of Ins. Commissioners' Bulletin, No. B-0033-07 (July 18, 2007).

      . See Tex. Lab.Code Ann. § 408.221 (Vernon 2006).


author: ELSA ALCALA, Justice.

text:
    Ralph CLARK, Appellant, v. RANDALLS FOOD, Appellee.

    No. 01-08-00732-CV.
    Court of Appeals of Texas, Houston (1st Dist.).
    Feb. 25, 2010.

      Christopher Bradshaw-Hull, Attorney at Law, Houston, TX, for appellant.
    Bart Walter Basden, Johanson & Fair-less, Sugar Land, TX, for appellee.
    Panel consists of Chief Justice RADACK, and Justices ALCALA and HIGLEY.

      . Appellee’s counsel informed the court that appellee's proper name is Randalls Food & Drug, L.P., not Randalls Food.

   OPINION

ELSA ALCALA, Justice.

Appellant, Ralph Clark, appeals a final judgment ordering he take nothing from appellee, Randalls Food (Randalls). In his sole issue, Clark contends the trial court erred by granting Randalls’s summary judgment motion because he established that Randalls spoliated evidence. We conclude that the trial court did not abuse its discretion by determining as a matter of law that evidence was not spoliated, and that it properly rendered summary judgment in favor of Randalls because Clark presented no evidence raising an issue of fact on the elements for premises liability. We affirm the trial court’s judgment.

Background

In March 2005, Clark fell while walking away from a pharmacy counter at a Randalls grocery store in Kingwood, Texas. Clark slipped on liquid detergent that had leaked from a broken container in another customer’s basket. Clark landed on his right arm and torso. He did not receive medical care at the scene but sought medical attention the next day. Store employees filled out an accident report and notified Randalls’s claims department. The forms indicated the surveillance footage taken at the time of the fall was preserved at the manager’s station.

Less than a week after the incident, communication with Clark indicated he might hire an attorney. Matthew Johnston, a senior claims adjuster for Randalls, acknowledged the company was aware soon after the accident occurred that Clark might sue because there is always a substantial chance of a claim when a customer has an accident.

Although no one had requested preservation of the videotape of Clark’s fall, Johnston left a message with the King-wood store asking them to preserve the surveillance video. Johnston also informed the Kingwood store that if the store was not aware of the detergent or if the spill had not been there a long time prior to the fall, Randalls would not be liable. An employee from Randalls loss prevention went to the Kingwood location to assist the store in making a copy of the video.

When the copy of the surveillance video was made, only a portion of the surveillance video was copied. It is unclear who determined how much footage to preserve and why the specific times were chosen. The tape preserved by Randalls included footage from 2:59 p.m. until 3:05 p.m., with the fall occurring 45 seconds after 8:00 p.m. The footage started when Clark approached the counter and ended a short time after the fall.

Over four months after the accident, Clark’s attorney first contacted Randalls and requested a settlement. Randalls had deemed the incident closed because Clark had failed to respond to Randalls’s attempts at communication. By the time Clark’s attorney contacted Randalls, any footage not previously saved had been erased by the store pursuant to Randalls’s normal procedure to preserve tapes for 60 to 90 days only. After Clark requested the settlement, the claims department reopened the case and it viewed the video for the first time.

Eighteen months after the fall, and after Randalls’s denial of Clark’s settlement request, Clark filed suit against Randalls. Denying it had prior knowledge of the liquid on the floor, Randalls responded to the lawsuit with a matter-of-law and no-evidence motion for summary judgment. In its motion for summary judgment, Randalls presented an interrogatory response given by Clark, an affidavit of a pharmacy technician present at the time of the incident, and an affidavit of the service manager on duty at the time Clark fell. Both affidavits stated that Randalls employees had not been informed of the liquid by customers nor had they seen liquids on the floor prior to the incident. The affidavit of the store service manager stated that a walk-through of the store to check for hazards was conducted about an hour prior to the incident, and no substances or spills were found.

Along with his response to the summary judgment motion, Clark filed a motion for sanctions for spoliation for footage missing from the surveillance video showing more of the time preceding Clark’s fall. Clark requested the court grant a default judgment against Randalls, or declare the video as presumptively adverse and unfavorable to Clark so as to defeat Randalls’s motion for summary judgment. Clark’s motion for a spoliation finding asserts that the failure to preserve footage prior to one minute and 46 seconds before Clark fell means that Randalls destroyed evidence that may have been favorable to Clark’s premises liability claim. For example, Clark contends the missing footage may have shown an employee walking down the aisle and observing the liquid or have shown that an employee performed the hourly walk-through of the store to check for hazards on the selling floor. Clark also asserts the footage may have shown the time the customer pushing the detergent-leaking cart walked past the counter, which would give an idea about how long the spill was present.

The video of Clark’s fall was included as part of the record presented to the trial court. The video appeared to have been captured by a stationary camera mounted behind the pharmacy counter, which blocked the view of most of the floor where Clark stood. The video showed Clark as he engaged in a transaction at the counter before he turned away from the counter and fell. The only parts of the floor that were visible on the tape were the parts further away from the counter and just beyond where Clark fell. Due to the tape’s quality, no liquid was visible anywhere on the tape.

The trial court denied Clark’s motions for sanctions due to spoliation of evidence, granted Randalls’s no-evidence and matter-of-law motion for summary judgment, ordered Clark take-nothing, and dismissed all causes of action with prejudice.

Analysis

In his sole issue, Clark asserts he was entitled to either spoliation sanctions or a spoliation presumption against Randalls as a result of its failure to preserve portions of the surveillance video footage. Clark contends that since he was entitled to sanctions or a presumption, the trial court erred in granting Randalls’s no-evidence and traditional motion for summary judgment.

A. Standard of Review for Summary Judgment

Although it expressly rejected Clark’s request for spoliation sanctions, the trial court also implicitly denied the request by granting Randalls’s motion for summary judgment. See Adobe Land Corp. v. Griffin, L.L.C., 236 S.W.3d 351, 356-57 (Tex.App.-Fort Worth 2007, pet. denied) (citing Aguirre v. S. Tex. Blood & Tissue Ctr., 2 S.W.3d 454, 457 (Tex.App.-San Antonio 1999, pet. denied)); Sowell v. The Kroger Co., 263 S.W.3d 36, 37-38 (Tex.App.-Houston [1st Dist.] 2006, no pet.) (citing Aguirre, 2 S.W.3d at 457). We, therefore, must first review whether the trial court abused its discretion by denying the motion for a finding of spoliation. Adobe Land Corp., 236 S.W.3d at 357 (citing Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 722 (Tex.2003)); Sowell, 263 S.W.3d at 38. If the trial court did abuse its discretion by denying the spoliation finding, then summary judgment would be improper. Adobe Land Corp., 236 S.W.3d at 360-61. If, however, we determine the trial court did not abuse its discretion by denying a spoliation finding, we do not consider any presumptions related to spoliation of evidence and review the no-evidence and traditional summary judgment by examining whether there is more than a scintilla of evidence to preclude summary judgment. Id. at 357 (citing Aguirre, 2 S.W.3d at 457); Sowell, 263 S.W.3d at 38. Here, Clark’s sole challenge to the motion for summary judgment concerns the trial court’s refusal to make a spoliation finding; he does not contend that without the finding there is more than a scintilla of evidence to preclude summary judgment.

To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.1996). An abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex.1998). However, a trial court has no discretion in determining what the law is or in applying the law to the facts. Adobe Land Corp., 236 S.W.3d at 357.

B. Applicable Law Concerning Spoliation

The act of spoliation refers to destruction of evidence relevant to a case. Buckeye Ret. Co. v. Bank of Am., N.A., 239 S.W.3d 394, 401 (Tex.App.-Dallas 2007, no pet.). Trial courts have broad discretion in taking measures to address spoliation of evidence that include “measures ranging from a jury instruction on the spoliation presumption to, in the most egregious cases, death penalty sanctions.” Trevino v. Ortega, 969 S.W.2d 950, 953 (Tex.1998). “As with any discovery abuse or evidentiary issue, there is no one remedy that is appropriate for every incidence of spoliation; the trial court must respond appropriately based upon the particular facts of each individual case.” Id.

The inquiry as to whether a spoliation sanction or presumption is justified requires a court to consider (1) whether there was a duty to preserve evidence, (2) whether the alleged spoliator breached that duty; and (3) whether the spoliation prejudiced the non-spoliator’s ability to present its case or defense. Adobe Land Corp., 236 S.W.3d at 357; Offshore Pipelines, Inc. v. Schooley, 984 S.W.2d 654, 666 (Tex.App.-Houston [1st Dist.] 1998, no pet.).

1. Duty to Preserve Evidence

The duty to preserve evidence is not raised unless (a) a party knows or reasonably should know that there is a substantial chance a claim will be filed, and (b) evidence is relevant and material. See Johnson, 106 S.W.Bd at 722.

a. Knowledge of Claim

To prevail on the first prong, Clark suggests he has shown Randalls knew or reasonably should have known there was a substantial chance that Clark would file a premises liability claim. See id. A party can anticipate litigation before it receives actual notice of potential litigation. Nat’l. Tank Co. v. Brotherton, 851 S.W.2d 193, 204 (Tex.1993). “[CJommon sense dictates that a party may reasonably anticipate suit being filed ... [even] before the Plaintiff manifests an intent to sue.” Id. Clark points to Randalls’s answer to the following interrogatory, which asks “when did Randalls first believe that there was a substantial chance that Mr. Clark would file a claim?” Randalls answered, “[a]fter [Clark] fell, it was known that he might pursue a claim or file a lawsuit as in Randalls’s business, customer accidents result in the substantial chance of a claim in each occurrence.” Because Randalls acknowledged it knew there was a “substantial chance” a claim would be filed, we conclude the undisputed evidence shows Clark established the first prong. See Johnson, 106 S.W.3d at 722.

b. Relevance of Material

To prevail on the second prong, Clark must show that Randalls knew or should have reasonably known that the footage would be relevant to the action. See id. A party must preserve what it knows, or reasonably should know is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, or is the subject of a pending discovery sanction. Trevino, 969 S.W.2d at 957 (Baker, J., concurring). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex.R. Evid. 401. If there is some logical connection either directly or by inference between the evidence and a fact to be proved, the evidence is relevant. See Serv. Lloyds Ins. Co. v. Martin, 855 S.W.2d 816, 822 (Tex.App.-Dallas 1993, no writ). The four elements of a premises liability cause of action are:

(1) the owner had actual or constructive knowledge of some condition on the premises;
(2) the condition posed an unreasonable risk of harm;
(3) the owner did not exercise reasonable care to reduce or eliminate the risk of harm; and
(4) the owner’s failure to use such care proximately caused the plaintiffs injuries.

LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex.2006). Randalls’s motion for summary judgment challenges the first, third, and fourth of these elements.

Temporal evidence is also relevant to premises liability claims. See Wal-Mart Stores, Inc. v. Reece, 81 S.W.3d 812, 815 (Tex.2002). If evidence does not show actual knowledge of a dangerous condition, we require proof that a dangerous condition existed for some length of time before a premises owner may be charged with constructive notice. See id. This so called “time-notice rule” is based on the premise that temporal evidence best indicates whether the owner had a reasonable opportunity to discover and remedy a dangerous condition. Id. at 816. Even if an employee had proximity to the hazard, without some temporal evidence, there is no basis upon which the fact finder can reasonably assess the opportunity the premises owner had to discover the dangerous condition. Id.

Clark points out that Johnston told the store management, “[u]nless we were aware of the spilled detergent or it had been there a long time we are not liable.” The record undisputedly shows, therefore, that Randalls was aware of the importance of the temporal element of Clark’s claim, and that their actual or constructive awareness of the spill would be material to Clark’s claim. See Moreno, 201 S.W.3d at 688.

Randalls contends the tape lacked relevance because it does not show the floor where Clark fell. Randalls’s response to the motion for sanctions for spoliation states,

The video camera angle does not show the floor directly in front of the pharmacy because the floor is blocked by the pharmacy counter. Although the video camera may have captured people that walk by in front of the pharmacy, it is apparent from the angle of the video camera, that there would have been no way to tell whether any particular person’s cart was leaking any liquid.... Furthermore, even if the video footage that was destroyed did not show any employees walking in front of the pharmacy counter, that is not proof that Defendant’s employees did not perform the hourly walkthrough of the Defendant’s premises.

Because it relies on the hourly walk though to show it did not know about the spill, at least one hour of the footage of the events preceding Clark’s fall was relevant, and that portion of tape should have been preserved. Although the video does not show the floor where Clark fell, it would, for example, show whether someone else slipped or almost slipped at the same location in the hour before Clark fell. If someone had previously slipped there, then that would show how long the substance had been there. If someone had not previously slipped there, then that would suggest the substance was not there long before Clark fell. The footage of the one hour preceding Clark’s fall, therefore, has a “tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” See Tex.R. Evid. 401. We hold Randalls knew the events for the one hour preceding Clark’s fall were relevant. See Trevino, 969 S.W.2d at 957 (Baker, J., concurring) (noting that party should preserve what it reasonably should know is likely to be requested during discovery).

The record conclusively shows that Randalls knew of an impending claim, and was aware that footage of events preceding Clark’s fall was relevant to Clark’s claim. We, therefore, hold Randalls had a duty to preserve the footage preceding Clark’s fall.

2. Breach of Duty

Having concluding that Randalls had a duty to preserve the video footage, we must now determine whether Randalls breached that duty. See id.; Adobe Land Corp., 236 S.W.3d at 359. While parties need not take extraordinary measures to preserve evidence, they have a duty to exercise reasonable care in preserving potentially relevant evidence. Id. The burden of the prejudicial effects associated with the failure to preserve evidence is placed on the culpable spoliating party rather than the innocent non-spoliating party. Id. A spoliator, however, can defend against an assertion of negligent or intentional destruction by providing other explanations to justify its failure to preserve evidence. Id.

As discussed above, the record shows that Randalls knew it had a duty to preserve relevant footage preceding Clark’s fall within five days after Clark fell. When the entire video of events preceding the fall was still available for preservation, Randalls only preserved footage that captures Clark as he first approaches the counter, his fall, and the minutes that followed. In this case, Randalls’s duty to preserve arose well before it destroyed the relevant footage pursuant to its retention policy to keep tapes for 60 to 90 days only. Because Randalls had a duty to preserve the footage before it destroyed the footage, we hold Randalls breached its duty to exercise reasonable care in preserving evidence. Id. at 360.

3. Prejudice

The final step of our inquiry focuses on whether Randalls’s spoliation prejudiced Clark’s ability to present his case. See Schooley, 984 S.W.2d at 666 (citing Trevino, 969 S.W.2d at 954-55) (Baker, J., concurring); Adobe Land Corp., 236 S.W.3d at 360. “[T]he spoliat-ing party is [ ] free to attempt to show that ... no prejudice” resulted from the “negligently destroyed evidence.” Trevino, 969 S.W.2d at 958 (Baker, J., concurring). In making this determination, we look to a variety of circumstances such as (a) the harmful effect of the missing evidence, and (b) the availability of other evidence to take the place of the missing information. Adobe Land Corp., 236 S.W.3d at 360; Schooley, 984 S.W.2d at 667.

a. Harmful Effect of Missing Evidence

Having already determined the footage not preserved by Randalls was relevant to the premises liability lawsuit, we must address how the failure to preserve it has prejudiced Clark’s lawsuit. In determining whether a party was harmed by spoliated evidence, we consider “whether the destroyed evidence supports key issues in the case.” Trevino, 969 S.W.2d at 958 (Baker, J., concurring).

The trial court could reasonably have determined that the missing videotape footage was not evidence that supports key issues in the case because the key issue here is whether there was liquid on the floor, and the camera was unable to capture whether there was liquid on the floor and when it may have gotten there. For example, if the tape showed an employee performing a walk-though one hour before the event, that would not reveal whether the employee saw the liquid because the tape of Clark’s fall does not show any visible liquid. Similarly, if the tape showed no employee was seen performing a walk-through one hour before the event, a walk-though could still have occurred at that area with the employee standing nearby but outside of the camera range. The trial court could have reasonably determined that because the counter blocks the camera’s visibility of the floor where Clark fell, the camera would not have captured the liquid falling on the floor. Although the tape is relevant, the trial court could have reasonably determined it had limited value in the case because the tape is unclear, it does not show any liquid on the part of the floor that can be seen on the tape, and due to the angle of the camera and the height of the counter, it does not show the part of the floor where Clark fell.

As noted above, the primary significance of this tape is that it would show whether another person at this location slipped pri- or to Clark at the same location. But nothing in our record suggests that another person slipped there before Clark. The pharmacist, the other people working at the pharmacy counter, and the store manager do not mention any other complaints about people slipping there. The trial court could reasonably have determined that the tape would not show anyone else slipping at the location before Clark because the other evidence in the case fails to suggest that occurred.

b. Availability of Other Evidence

As Randalls points out, there was evidence other than the tape to show the condition of the floor. The pharmacist and Clark could each testify about the condition of the floor when Clark fell. The store manager described the walk-through procedures to check the condition of the floor in the hour preceding the fall. Even if the tape had been produced and the walk through was not visible on the tape, the walk though could have been conducted outside of camera range, given that the stationary camera captured only a limited range. As noted above, the primary significance of this tape is that it would show whether another person at this location slipped prior to Clark at the same location, but the tape is not the only evidence that would show that, and the people working in that area did not mention any complaints about people slipping there. The trial court, therefore, could have reasonably determined the unavailable footage was cumulative of other competent evidence that Clark could use in place of the destroyed evidence. See Trevino, 969 S.W.2d at 958 (Baker, J., concurring).

The trial court could have reasonably determined Randalls was not negligent in its failure to preserve more of the tape of the events preceding the fall. Importantly, Clark never asked Randalls to preserve the tape until after the tapes had been destroyed pursuant to Randalls policy. Randalls, sua sponte, preserved the tape in the anticipation of litigation by Clark. Randalls had to independently surmise how much of the footage Clark would want, without the benefit of any instructions or request from Clark.

We conclude that based on the arguments and evidence presented, the trial court could have reasonably determined the videotaped footage would not show whether liquid was on the floor, how long it was on the floor, whether the walk through was done, and when it was done. Based on the arguments and evidence presented in this case, we hold the trial court did not abuse its discretion by finding no prejudice resulted from Randalls’s failure to preserve the footage of events preceding the fall. See, e.g., Ordonez v. M.W. McCurdy & Co., 984 S.W.2d 264, 274 n. 13 (Tex.App.-Houston [1st Dist.] 1998, no pet.) (discretion not abused in denying spoliation instruction where evidence showed log books were disposed of pursuant to company policy and missing data not shown to be harmful).

We hold the trial court did not abuse its discretion in refusing to grant a spoliation finding. Because the challenge to the spoliation finding is the sole ground presented in this appeal to challenge the summary judgment ruling, we affirm the trial court’s take-nothing summary judgment. See Adobe Land Corp., 236 S.W.3d at 357 (citing Aguirre, 2 S.W.3d at 457); Sowell, 263 S.W.3d at 38.

We overrule Clark’s sole issue.

Conclusion

We affirm the judgment of the trial court.

      . See Tex.R. Civ. P. 166a(c), 166a(i).