Texas Employers' Ins. Ass'n v. Ramirez, 13-87-476-CV

• Decision Date: 04 May 1989
• Docket Number: No. 13-87-476-CV,13-87-476-CV
• Citation: 770 S.W.2d 896
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Belen RAMIREZ, Appellee.
• Court: Texas Court of Appeals

Page 896

770 S.W.2d 896

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Belen RAMIREZ, Appellee.

No. 13-87-476-CV.

Court of Appeals of Texas Corpus Christi.

May 4, 1989.

Rehearing Denied June 1, 1989.

Roger W. Hughes, Ferriel C. Hamby, Jr., Adams & Graham, Harlingen, for appellant.

Randall P. Crane, San Benito, for appellee.

Before NYE, C.J., and SEERDEN and UTTER, JJ.

OPINION

SEERDEN, Justice.

This is a workers' compensation case. A jury found that appellee received an injury in the course and scope of her employment which was a producing cause of total and permanent disability. Appeal is from a judgment based upon the verdict. After reviewing appellant's nine points of error, we affirm the trial court's judgment.

Points one through six assert that the trial court erred in overruling appellant's motions to disregard the verdict and for a new trial, and erroneously granted judgment for appellee. A judgment n.o.v. can only be entered if a directed verdict would have been proper. Tex.R.Civ.P. 301. The test is whether any evidence of probative force raised fact issues on the material questions presented. Duff v. Yelin, 751 S.W.2d 175, 176 (Tex.1988); see Sullivan v. Methodist Hospitals, 699 S.W.2d 265, 274 (Tex.App.--Corpus Christi 1985), writ ref'd n.r.e., 714 S.W.2d 302 (Tex.1986). We consider all of the evidence in the light most favorable to the verdict, and disregard all contrary evidence. Berlow v. Sheraton Dallas Corp., 629 S.W.2d 818, 821 (Tex.App.--Dallas 1982, writ ref'd n.r.e.). In other words, complaints that the trial court refused to render judgment n.o.v. raise "no evidence" questions. Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.); see Cadengo v. Compass Insurance Co., 721 S.W.2d 415, 416 (Tex.App.--Corpus Christi 1986, no writ).

By points one, two, five, and six, appellant challenges the legal and factual sufficiency of the evidence to support the verdict. Point one attacks the finding that appellee's incapacity is total, point two, that her incapacity is or was permanent, point five, that appellee suffered an "injury" within the meaning of the Workers' Compensation Act, and point six, that she suffered harm or incapacity from an "occupational disease" as defined by the Act.

By points three and four, appellant claims to have shown as a matter of law that any total incapacity ended when appellee returned to work, that any incapacity thereafter was only partial, and that any contrary findings are against the great weight and preponderance of the evidence.

When the party having the burden of proof on a special issue appeals from an adverse fact finding, the point of error challenging the legal sufficiency of the evidence should be that the matter was established "as a matter of law," or that the finding was "against the great weight and preponderance of the evidence." Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In this case, appellant did not have the burden of proof on the issues it contests. Thus, we must construe points three and four as redundant with the correctly phrased "no evidence" and "insufficient evidence" claims points one and two raise. See Croucher, 660 S.W.2d at 58.

In ruling on a "no evidence" point, we consider only the evidence and inferences supporting the jury's finding and disregard all contrary evidence and inferences. Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985), on remand, 700 S.W.2d 231 (Tex.App.--Dallas 1985, writ ref'd n.r.e.); International Armament Corp. v. King, 686 S.W.2d 595, 597 (Tex.1985); In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). If any evidence of probative force supports the jury's finding, we must overrule the point and uphold the finding. In re King's Estate, 244 S.W.2d at 661-62.

An assertion that the evidence is "insufficient" to support a finding of fact can mean that the supporting evidence is so weak or that the contrary evidence is so overwhelming that we should set it aside and order a new trial. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). We consider all of the evidence in ruling on questions of weight and sufficiency. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986), on remand, 751 S.W.2d 197 (Tex.App.--Houston [14th Dist.] 1988, writ granted).

The jury determines the credibility of the witnesses and weighs the evidence. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547, 549 (1962); Tenngasco Gas Gathering Co. v. Fischer, 624 S.W.2d 301, 305 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.).

By points five and six, appellant challenges the jury's answer to Special Issue No. 1, finding that appellee suffered an injury within the course and scope of her employment. Appellant argues that the evidence is legally and factually insufficient to show that appellee suffered either a traumatic injury or an occupational disease within the meaning of the Workers' Compensation Act.

The charge defines "injury" to include "damage or harm to the physical structure of the body occurring as the result of a repititious (sic) physical traumatic activities extending over a period of time and such diseases or infections as naturally result therefrom, or the incitement, acceleration or aggravation of any disease, or condition, previously or subsequently existing, by reason of damage or harm." See Davis v. Employers Insurance of Wausau, 694 S.W.2d 105, 107 (Tex.App.--Houston [14th Dist.] 1985, writ ref'd n.r.e.); Tex.Rev.Civ.Stat.Ann. art. 8306, § 20 (Vernon Supp.1989). Appellant does not complain of the correctness of this definition.

Appellee does not contend that her "injury" could be traced to any one specific time, place, or event, but she claims that it was the result of repeated traumatic activities extending over a period of time. To recover for an injury or disease of this type, one must not only prove that repetitious physical traumatic activities occurred on the job, but must also show that a causal link existed between the traumatic activity and the incapacity; that is, the disease must be inherent in the type of employment as compared with employment generally. Davis, 694 S.W.2d at 107.

All of the evidence in this case was presented by witnesses called by appellee. They consisted of appellee, three co-workers, an insurance adjuster and a physician who treated appellee.

Appellee testified that she is a widow, was born in Mexico, has a third grade education, was married in Harlingen, Texas, in 1955, and has four grown children. Her husband died in 1959. She began her first job in 1955, and worked cleaning homes, doing maid work and working for a shrimp company. She did not work out of the home after getting married, but became employed again after her husband died. She went to work for Levi-Straus, the employer in this case, in 1972. She stated she never had problems with her back on any of the jobs she held, including with Levi-Straus, until about 1980 when she was moved to a low metal ironing board to iron blouses. She had been ironing blouses on a higher board previously for about three years without difficulty. She demonstrated to the court and jury the differences in the physical activities required while working on the high and low boards. When she went to work on the lower board, she began to feel pain in her lower back. She asked to be changed back to the higher board but was refused. The pain kept getting worse until she finally went to the doctor. She showed him the way she had to work on the low board, just as she showed the jury, and he told her to stay home a few days. When she stayed home she felt better, but when she went back to work on the low board she had the same problems as before. She continued working and then went to see Dr. Eric Six, who told her one of the discs was pinching a nerve. He sent a letter to her employer and they changed her job back to the higher board, but this time her back problems were not relieved. She described her pain, "If I was standing up I couldn't stand up. If I was sitting down, I couldn't sit down. And in bed I had difficulty turning." Finally, on or about October 12, 1985, Dr. Six performed surgery on her back.

Maria Reyes, Rosa Ruiz, and Nina Salazar were appellee's co-workers. They testified generally that appellee never complained of back problems before being put to work on the low board and that she had always been physically active. They described the bending, twisting, and other types of maneuvers required to operate the low board and observed that appellee was taller than others using the low board. They advised that the work on the low board caused problems because of the manner in which appellee had to operate the pedal and twist to hang blouses. They confirmed that from the time she began working on the low board she began having trouble with her back, which restricted her activities, and she complained of pain.

Dr. Eric G. Six, a board certified neurosurgeon, testified that he had examined and treated appellee. After running a myelogram on appellee which proved positive, he performed surgery on her back. He confirmed that activities such as she performed at work could cause a ruptured disc and aggravate such a condition if such a condition existed unrelated to the workplace.

Appellant points out the distinction in Tex.Rev.Civ.Stat.Ann. art. 8306, § 20 (Vernon Supp.1989) between "injury" which can be traced to a definite time, place, and cause, and "occupational disease" which includes damage or harm to the physical structure of the body occurring as a result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment. Prior to the 1971 amendment of Section 20, only those specific diseases and illnesses listed in the statute qualified as "occupational disease." In 1971, the legislature abandoned the listing of specific occupational diseases and expanded the concept to include damage or harm to...