Opinion
No. 04-02-00789-CV.
Delivered and Filed: August 27, 2003.
Appeal from the 198th Judicial District Court, Kerr County, Texas, Trial Court No. 00-687-B, Honorable Emil Karl Prohl, Judge Presiding.
AFFIRMED.
Sitting: Catherine STONE, Justice, Sarah B. DUNCAN, Justice, Karen ANGELINI, Justice.
MEMORANDUM OPINION
Shirley McMullen was injured when her vehicle was struck by another vehicle driven by Mary Katherine Jobes. Jobes stipulated to liability, and the trial proceeded on the issue of damages. The trial court awarded $15,825.24 in damages to McMullen. We affirm.
Background
On January 21, 1999, Shirley McMullen was riding in the passenger side of a vehicle driven by her husband when her car was struck from the side by a vehicle driven by Mary Katherine Jobes. The impact of Jobes' vehicle forced the passenger door of McMullen's vehicle inward. As a result, McMullen was removed from the vehicle on a backboard and was taken to the hospital. At the hospital, she complained of a sharp pain, but refused a shot to alleviate the pain. The emergency room staff took x-rays of McMullen's back and discovered no skeletal trauma. She was discharged from the hospital and advised to make an appointment with her doctor as soon as possible.
A few days after the accident, McMullen visited her physician, Dr. Matlock. She told him that she was still suffering from pain and spasms in her back. Dr. Matlock referred her to Boerne Physical Therapy Institute for physical therapy. However, the recommended exercises hurt her back, so she discontinued the therapy. Not happy with the therapy recommended, McMullen sought out another doctor. In October, she saw Dr. Partalas at Alamo Healthcare Systems. McMullen was also displeased with the results of the treatment, so she stopped seeing Dr. Partalas after a few visits. McMullen then went eighteen months without seeing another physician or therapist.
During this eighteen months, McMullen filed suit against Jobes, alleging negligence by Jobes in the operation of her vehicle. She sought damages for past and future medical expenses, loss of earnings, loss of earning capacity, pain and suffering, mental anguish, and physical impairment. After filing suit, McMullen decided to see another physician, Dr. Jafaar. He collected McMullen's medical history, made an assessment of severe lower back pain, and scheduled an MRI. The MRI revealed some bulging of the lumbar disc.
McMullen's suit went to a bench trial on June 3, 2002. Jobes stipulated to liability, and the trial proceeded on the issue of damages. The court awarded McMullen $15,825.24, the amount of her past medical expenses, plus interest and costs. McMullen moved to modify the judgment, requesting that the court make awards for other elements of damages. The trial court overruled the motion. The only issue McMullen raises on appeal in this case is whether the trial court's refusal to award any damages for pain and suffering, mental anguish, or physical impairment is against the great weight and preponderance of the evidence.
Standard of Review
The standard of review for factual sufficiency claims is well established. When reviewing whether a challenged trial court finding is factually sufficient, we set aside the finding only "if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust." Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Guzman v. Ugly Duckling Car Sales of Tex., L.L.P., 63 S.W.3d 522, 526 (Tex.App.-San Antonio 2001, pet. denied). In determining whether the finding is contrary to the great weight and preponderance of the evidence, an appellate court must defer to the fact-finder, who "is the sole judge of the credibility of the witnesses and weight to be given their testimony." Tex. Dept. of Mental Health Mental Retardation v. Rodriguez, 63 S.W.3d 475, 480 (Tex.App.-San Antonio 2001, pet. denied). In addition, in a factual sufficiency review, the court must weigh all the evidence in the record. See Dow Chem. Co., 46 S.W.3d at 242.
Pain and Suffering
We are not the first appellate court to decide whether a trial court's refusal to award damages for pain and suffering is against the great weight and preponderance of the evidence in cases where liability is conclusively established and medical expenses are awarded. In examining this issue, courts have established three guiding principles. First, "while physical injuries are often accompanied by pain, anguish, and impairment, `the fact of an injury does not prove compensable pain and suffering or impairment.'" Gainsco, 27 S.W.3d at 103, citing Biggs, 8 S.W.3d at 769. Second, "when uncontroverted evidence shows objective injuries, a jury finding that the plaintiff suffered no past pain and suffering may be against the great weight and preponderance of the evidence." Estrada, 44 S.W.3d at 561. Third, when objective injuries are not shown by uncontroverted evidence, as in cases where the objective indicia of injury are less obvious or entirely absent, the fact-finder is entitled to resolve the conflicting evidence. See Dollison, 79 S.W.3d at 250; Blizzard, 756 S.W.2d at 805. When presented with conflicting evidence, the fact-finder's refusal to award damages for pain and suffering, mental anguish, or physical impairment will not be disturbed on appeal. See Gainsco, 27 S.W.3d at 103.
See, e.g., Estrada v. Dillon, 44 S.W.3d 558, 560-61 (Tex. 2001); Dollison v. Hayes, 79 S.W.3d 246, 250 (Tex.App.-Texarkana 2002, no pet.); Gainsco County Mut. Ins. Co. v. Martinez, 27 S.W.3d 97, 103 (Tex.App.-San Antonio 2000, pet. dism'd by agr.); Biggs v. GSC Enter., Inc., 8 S.W.3d 765, 769 (Tex.App.-Fort Worth 1999, no pet.); Lamb v. Franklin, 976 S.W.2d 339, 342-43 (Tex.App.-Amarillo 1998, no pet.); Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex.App.-Dallas 1998, no pet.); Monroe v. Grider, 884 S.W.2d 811 (Tex.App.-Dallas 1994, writ denied); Pilkington v. Kornell, 822 S.W.2d 223, 225 (Tex.App.-Dallas 1991, writ denied); Hammett v. Zimmerman, 804 S.W.2d 663, 664 (Tex.App.-Fort Worth 1991, no writ).
In this case, the evidence regarding the nature or the cause of the injury is in substantial conflict. McMullen claims that she showed objective evidence of injury that entitled her to an award of pain and suffering damages. To support this view, she points to Dr. Jafaar's testimony that she suffered an acute strain or exacerbation of the lumbar spine as a result of the collision, the MRI showing of a bulging lumbar disc, and testimony from her friends and neighbors about changes in her mental state after the accident. However, the record also shows that emergency room X-rays indicated the absence of skeletal trauma; that McMullen did not report any numbness or tightness in her legs, which led Dr. Jafaar to conclude that McMullen had not suffered any nerve damage; that McMullen had a degenerative joint disease of the lumbar spine, which may have contributed to the pain; and that McMullen went long periods of time without seeing a doctor. From this conflicting evidence, the trial court could have found that damages to compensate McMullen for medical treatment sought after the accident were warranted and also that "any pain and suffering resulting from the accident was too minimal to warrant a monetary award." Gainsco, 27 S.W.3d at 103. In addition, the trial court could have also resolved this conflict by finding that McMullen's pain resulted from a degenerative joint disease and not the accident. See Id. The fact-finder was entitled to resolve the conflicting evidence about the nature and cause of the injury as well as the pain resulting from the injury. See Wal-Mart Stores, Inc. v. Garcia, 30 S.W.3d 19, 21 (Tex.App.-San Antonio 2000, no pet.). As such, the finding of the trial court should not be disturbed by this court.
Physical Impairment
To recover physical impairment damages, the "plaintiff must sustain the burden of proving that the effect of his physical impairment extends beyond any impediment to his earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which he should be compensated." Lawson-Avila Constr., Inc. v. Stoutamire,791 S.W.2d 584, 589 (Tex.App.-San Antonio 1990, writ denied), citing Green v. Baldree, 497 S.W.2d 342, 350 (Tex.App.-Houston [14th Dist.] 1973, no writ). Like the evidence relating to pain and suffering, there is conflicting evidence about the existence or cause of the physical impairment alleged by McMullen. McMullen introduced evidence showing that before the accident she would do work in her house and yard, go shopping, and help care for her grandchildren. After the accident, she asserted that she could no longer perform housework or go shopping, she had difficulty getting out of bed, and had trouble putting on her clothes. However, there was also testimony that she cleaned her house and mowed her lawn after the accident. In addition, there was evidence that McMullen failed to perform the physical therapy recommended by her physician, that her diet and lack of exercise contributed to her inability to perform certain functions, and that a degenerative joint condition may have caused the impairment. Thus, there is substantial conflict in the evidence. As a result, the trial court's finding is conclusive on this issue. Wal-Mart Stores, Inc., 30 S.W.3d at 21.
Mental Anguish
In order to award mental anguish damages, there must be either "`direct evidence of the nature, duration, or severity of [plaintiff's] anguish, thus establishing a substantial disruption in the plaintiffs' daily routine', or other evidence of `a high degree of mental pain and distress' that is `more than mere worry, anxiety, vexation, embarrassment, or anger.'" Sanez v. Fidelity Guar. Ins. Underwriters, 925 S.W.2d 607, 614 (Tex. 1999), quoting Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995). McMullen testified that she is less tolerant of people since the accident and takes out her discomfort on her husband. She also testified that she started taking antidepressants after the accident and has trouble sleeping at night. However, there was also testimony from McMullen's son-in-law that McMullen was not "suffering from anything, you know, unliveable, but you can tell something's bothering her" and that she was "not really down and depressed." A neighbor testified that she was "mean and ornery" before the accident and "now she's meaner and ornerier." There was also testimony that she "changed a little bit." From this evidence, the finder of fact could have concluded that McMullen's mental anguish claims were not credible or too minimal to compensate. This type of question should be resolved by a fact-finder. See Wal-Mart Stores, Inc., 30 S.W.3d at 21. Therefore, we conclude that the trial court's disposition of this issue should not be disturbed by this court.
Conclusion
Having overruled McMullen's sole issue, the judgment of the trial court is affirmed.