Mayes v. City of Midland

780 S.W.2d 903, 1989 Tex. App. LEXIS 2808, 1989 WL 136427
CourtCourt of Appeals of Texas
DecidedNovember 15, 1989
DocketNo. 08-89-00017-CV
StatusPublished

This text of 780 S.W.2d 903 (Mayes v. City of Midland) 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
Mayes v. City of Midland, 780 S.W.2d 903, 1989 Tex. App. LEXIS 2808, 1989 WL 136427 (Tex. Ct. App. 1989).

Opinions

OPINION

FULLER, Justice.

In a Worker’s Compensation Act case, the jury returned a verdict failing to find a general injury but did find the worker suffered a permanent partial loss of the use of his left hand. We reverse and remand for a new trial.

The Appellant was a Midland City police officer at the time of the injury. The fact that he was injured in the course and scope of his employment was not contested but only the nature and extent of the injury.

PLEADINGS

The Appellant’s pleadings asserted that due to the injury, he suffered disabling injuries to his body which included: (1) injury and damage to the bones, nerves and soft tissues in his left hand, left arm, neck and body as a whole, leaving him totally and permanently disabled, (2) if not totally and permanently disabled, Appellant then claimed some total disability for a time and, then, partial permanent disability for the remainder of the time.

Appellee answered by pleading a general denial and then pled the injury was limited to a specific injury because: (1) it was limited to a partial loss of the use of a metacarpal of the second and/or third finger, or in the alternative, that (2) it was limited to a partial loss of the use of plaintiff’s left hand.

Appellee then denied that any injury to the left hand extended to the arm, thereby denying any loss of use of the next greater member.

In the alternative, the Appellee then denied that any specific injury that might be found extended to and affected the body generally.

We, therefore, have a case where the worker is asserting only a general injury, and the insurance company defended on the basis that the injury was not a general injury but was limited to a specific injury.

The jury found no general injury but found a specific injury by finding the Appellant was permanently partially disabled as a result of the loss of the use of his left hand. The trial court entered judgment according to the jury verdict and then overruled Appellant’s Motion for Judgment N.O.V. and Motion for New Trial.

FACTS

Appellant was a Midland City policeman and was in the course and scope of his employment while trying to effect an arrest. The suspect ran into a house and with assistance slammed the door on the hand and/or wrist of the Appellant. Other officers came to Appellant’s aid pulling him free but causing injury. Appellant was approximately thirty-six years old at the time of the incident and had been in the law enforcement field some eleven and one-half years. Appellant underwent considerable medical care including therapy. Medical records were introduced showing various entries such as probable compressive neuritis at the wrist, neuritis secondary nerve contusion and neuropraxia. Dr. Younger felt that Appellant had “a reflex sympathetic dystrophy.” Three stellate ganglion blocks were performed by infections at the bottom of the neck on the left side, with little relief. Stellate ganglion was described by one doctor as “a relay station in [905]*905the sympathetic nerves.” The evidence showed that the Appellant also complained of stiffness in the neck radiating “to the wrist and hand.” Dr. Mallams found restricted range of motion in the neck and recommended cervical traction which was done. Some consideration was given to performing a sympathectomy which involves cutting out a sympathetic nerve that is responsible for reflex sympathetic dystrophy. Dr. Finn also diagnosed Appellant as having reflex sympathetic dystrophy (RSD) with probable involvement of the seventh and eighth cervical nerve roots. Dr. Finn was a neurosurgeon specializing in surgery of the central nervous system and a minor specialty in complex disorders of the spine. He stated that a nerve is “a bundle of prolongations of nerve roots.” He stated that nerve root seven out of the cervical goes to the middle finger and the tricep muscle. Nerve root eight goes to the little finger. He stated that nerve root eight comes out of each side of the spinal cord and those on the left side serve the left side of the body. Dr. Finn found decreased sensation in the left sixth, seventh and eighth cervical and the first thorasic nerve root distribution. His impression was that Appellant may have had a dysfunction of one or more cervical nerve roots; either cervical disk herniation or some kind of reflex sympathetic dystrophy. Testimony was also that RSD usually follows a nerve injury and that Appellant’s symptoms were related to his injury.

POINTS OF ERROR

Appellant’s brief asserts nineteen points of error but are simplified by lumping the first six points together for argument.

Points of Error Nos. One through Six assert the trial court committed error in its charge to the jury in regard to the existence of the general injury claimed by the Appellant.

Appellant’s whole case rested on the fact that his injury resulted in damage to his sympathetic nervous system. The Appellant pleaded and sought only a general injury recovery. It differs from the situation found in Texas Employers’ Insurance Association v. Espinosa, 367 S.W.2d 667 (Tex.1963), where the court stated the injured worker’s “pleaded theory ... of compensation for a total and permanent incapacity to work was not that he had originally received an injury affecting his body generally,” but that his loss of use of his eye extended to and affected his right eye and body generally. [Emphasis added].

There was evidence, if believed, that Appellant’s condition was a result of the accident and had affected his neck, shoulder, arm, hand and fingers, not by the loss of use of his hand but by damage to his reflex sympathetic nerves. In addition, the site of the trauma and its immediate effects are not, however, necessarily determinative of the nature and extent of the compensable injury. Western Casualty and Surety Company v. Gonzales, 518 S.W.2d 524 (Tex.1975). Since the Workers’ Compensation Act is a remedial statute, it has long been held that it should be liberally construed in favor of the worker. American Mut. Liability Ins. Co. v. Parker, 191 S.W.2d 844 (Tex.1945).

THE COURT’S CHARGE

We set out verbatim the trial court’s issues as submitted to the jury:

JURY QUESTIONS ANSWERS
1. Did plaintiff receive a general injury on or about January 7, 1986?
(Answer “Yes” or “No”)
“General Injury” means an injury, as previously defined, to the left hand, arm, neck and body as a whole. If plaintiff’s injury is confined to his left hand below the elbow, it cannot be a general injury.
1. No
If he did, answer No. 2 and 3
2. Was the injury a producing cause of any total incapacity?
(Answer “Yes” or “No”)
2.
If it was, answer No. 2A and 2B
2A. Find the beginning date of total incapacity. (By stating month, day, and year) 2A.
2B.

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Bluebook (online)
780 S.W.2d 903, 1989 Tex. App. LEXIS 2808, 1989 WL 136427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mayes-v-city-of-midland-texapp-1989.