Houston Independent School District v. Harrison

744 S.W.2d 298, 1987 WL 29275
CourtCourt of Appeals of Texas
DecidedDecember 31, 1987
DocketNo. 01-86-00878-CV
StatusPublished
Cited by3 cases

This text of 744 S.W.2d 298 (Houston Independent School District v. Harrison) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Houston Independent School District v. Harrison, 744 S.W.2d 298, 1987 WL 29275 (Tex. Ct. App. 1987).

Opinion

LEVY, Justice.

This is an appeal from a judgment awarding worker’s compensation benefits to Marva L. Harrison, appellee, arising from a disability caused by an electrical shock.

Harrison was a school cafeteria worker for appellant, Houston Independent School District, (“HISD”), and on April 28, 1983, was at work preparing gravy in the Whid-by Elementary School cafeteria. While so engaged, she reached for some scraps of meat that were on a metal table on her left. Harrison was holding a metal pitcher of hot water in her right hand. When her left hand touched the metal table bearing the meat scraps, she received an electrical shock and dropped the pitcher of water she held in her right hand. The school nurse took Harrison to the hospital emergency room for treatment. Numerous medical tests were run, and she was diagnosed as having hypertension, accidental electric [299]*299shock, carpal tunnel syndrome in her right hand, and asymetic septal hypertrophy.

We are concerned with the diagnosis of carpal tunnel syndrome, a condition resulting from something squeezing the median nerve in the middle of the wrist. As a result of this condition, appellee was unable to work. Appellee sought to prove at trial that the electrical shock she received at work was the producing cause of injury to her right hand that resulted in the loss of use thereof.

Upon the jury finding that Harrison had suffered an injury to her right hand, the court ordered that Harrison recover against HISD the sum of $10,905.06 for compensation benefits together with 4% interest compounded per annum from the date of judgment until paid, as well as attorney’s fees in the amount of 25% of the compensation benefits. The court further ordered the sum of $924.90 be paid to Harrison by HISD for past medical services provided.

In its first point of error, HISD contends that the trial court erred in failing to instruct the jury as to the difference between medical “possibility” and medical “probability,” and that they were to consider only testimony based on reasonable medical probability. This error was compounded because, during their deliberations, the jury requested “any testimony related to the possible causes of carpal tunnel syndrome and a definition of ‘syndrome’.” (Emphasis added.)

HISD properly objected pursuant to Tex. R.Civ.P. 272, prior to the submission of the charge, but failed to preserve error because it did not tender “a substantially correct definition or explanatory instruc-tion_” Tex.R.Civ.P. 279. A request for an instruction, definition, or explanatory instruction must be made separate and apart from such party’s objection to the charge. Tex.R.Civ.P. 273; see also Szmalec v. Madro, 650 S.W.2d 514, 518 (Tex.App.—Houston [14th Dist.] 1983, writ ref’d n.r.e.).

Point of error one is overruled.

In its second and third points of error, HISD contends that the trial court erred in rendering judgment for Harrison and in overruling HISD’s motion for new trial because there was legally and factually insufficient evidence to support the jury’s responses to special issues one and two.

Special issue one inquired:

Do you find from a preponderance of the evidence that plaintiff [Harrison] received an injury to her right hand on or about April 28, 1983?
ANSWER: We do.

Special issue two inquired:

Do you find from a preponderance of the evidence that such injury was a producing cause of any total loss of use of plaintiff’s right hand?
ANSWER: We do.

In determining “no evidence” or legal insufficiency points, we are required to consider only the evidence and inferences that tend to support the finding, and we disregard all evidence and inferences to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

In reviewing all questions of “factual insufficiency,” we must consider and weigh all the evidence, both in support of and contrary to the challenged finding. The finding must be upheld unless we find that the evidence is so weak, or the finding is so against the great weight and preponderance of the evidence, as to be manifestly erroneous or unjust. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661; Ritchey v. Crawford, 734 S.W.2d 85, 86 (Tex.App.—Houston [1st Dist.] 1987, no writ); Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex.App.—Houston [1st Dist.] 1987, no writ).

Generally, the issues of injury and disability in a worker’s compensation case may be established by testimony of the claimant and by other lay witnesses. Texas Employers Ins. Ass’n v. Thompson, 610 S.W.2d 208, 209 (Tex.App.—Houston [1st [300]*300Dist.] 1980, writ ref’d n.r.e.). This rule applies even where such lay testimony is contradicted by the unanimous opinions of medical experts. Id. An exception to the general rule exists where the subject is scientific or technical in nature such that jurors cannot form opinions based on the evidence as a whole and aided by their own experience and knowledge. Houston Gen. Ins. Co. v. Pegues, 514 S.W.2d 492, 495 (Tex.Civ.App.—Texarkana 1974, writ ref’d n.r.e.). This exception applies when an injury or disability to a specific part of the body is alleged to have caused damage or infirmity to other unrelated portions of the body. Id.

HISD urges that Harrison’s testimony is legally and factually insufficient to support the jury’s answers to special issues because expert testimony is required to establish a causal connection between the shock to the left hand and the resulting injury to the right hand, and the testimony of the experts in this case did not establish that connection.

The exception requiring expert testimony described in Pegues is a narrow one and is not to be applied unless the facts come strictly within it. Texas Employers Ins. Ass’n v. Thompson, 610 S.W.2d at 210; Preferred Life Ins. Co. v. Dark, 307 S.W. 2d 814 (Tex.Civ.App.—Texarkana 1957, writ ref’d n.r.e.) (emphasis added). This exception applies only when an “injury or disability to a specific part of the body is alleged to have caused damage or infirmity to other, unrelated portions of the body.” Pegues, 514 S.W.2d at 495.

The facts of this case do not fall squarely within the exception set forth in Pegues. Harrison is not alleging that an injury to her left hand caused damage to her right hand. Although the electrical current entered her body through her left hand, her left hand did not sustain any injury, and she does not allege that it was injured.

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744 S.W.2d 298, 1987 WL 29275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/houston-independent-school-district-v-harrison-texapp-1987.