Court of Appeals of Texas,
Eastland.
Amy Hebert MURDAUGH, Appellant
v.
DIRECTOR, State Employees Workers’ Compensation Division, State of Texas, Appellee.
No. 11-92-203-CV.
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April 29, 1993.
Attorneys & Firms
Nelly R. Herrera, Peter B. Plotts III and Joseph Pitner, for Director, State Employees Work.
OPINION
BOB DICKENSON, Justice.
*1 Amy Hebert Murdaugh sued for workers’ compensation benefits for an injury on April 20, 1986, while she was employed at the Abilene State School. The jury found that she did receive a compensable injury to her left wrist, but the jury rejected her claim of a general injury. Appellee had already paid benefits which exceeded the amount owed for a specific injury to the wrist; consequently, the trial court entered judgment on the jury’s verdict, after credit for payments made, that Murdaugh take nothing and that she “is not entitled to future medical benefits.” Murdaugh appeals. We modify and affirm.
Point of Error
Appellant presents a single point of error in which she argues that the trial court erred in rendering a judgment which denied future medical benefits because the judgment does not conform to the jury’s verdict. We agree.
The Jury’s Verdict
The jury was only required to answer one question. When it found a specific injury, rather than a general injury, the charge instructed the jury not to answer the other six questions. The one question which was answered reads in full as shown:
Did Amy Hebert receive an injury on or about April 20, 1986, in the course of her employment with Abilene State School which included an injury to her left wrist and which included an injury to the discs in her cervical spine, or did she injure her left wrist only?
(If you find such injury included only an injury to her left wrist, you will circle the answer “She injured her left wrist.” If you find such injury included only an injury to her cervical spine, you will circle the answer “She injured her cervical spine.” If you find such injury included both her left wrist and her cervical spine, you will circle both such phrases. If you find she did not receive any injury on or about April 20, 1986, in the course of her employment, then circle “None.”
The jury found that: “She injured her left wrist.”
Final Judgment
The final judgment was signed on July 7, 1992, and it properly found that “Amy D. Hebert recover nothing” and that “no attorneys’ fees be awarded.”1
The judgment improperly found that “Plaintiff is not entitled to future medical benefits.” When the jury found that plaintiff received a compensable injury to her wrist, she became entitled to any future medical benefits which are reasonable and necessary for treatment of the wrist injury.2 To that extent, the judgment does not conform to the jury’s verdict and violates TEX.R.CIV.P. 301.
Appellee’s Position on Appeal
The Attorney General argues that appellant’s point of error:
[W]as not preserved for review because appellant failed to present her complaint to the trial court as required by TEX.R.APP.P. 52(a); in the alternative, there was no error in entering judgment which denied future medical benefits.
TEX.R.APP.P. 52(a) applies to rulings during the course of trial, but it does not bar a complaint about the entry of a judgment which does not conform to the jury’s verdict pursuant to TEX.R.CIV.P. 301. TEX.R.APP.P. 52(d) specifically refers to TEX.R.CIV.P. 324. That rule provides that a motion for new trial is “not a prerequisite to a complaint on appeal” except for five exceptions which are not applicable.
*2 The error did not become apparent until months after completion of the trial. The case was tried on November 25, 26, and 27, 1991; the judgment was signed on July 7, 1992. As this court noted in Employees Retirement System of Texas v. Bass, 840 S.W.2d 710 at 714, ftnt. 1 (Tex.App.-Eastland 1992, no writ):
[I]t does seem inconsistent with TEX.R.APP.P. 52(a) for an appellate court to be required to hold that a trial court [erred] when the complained of error was never called to the trial court’s attention.
See also Cecil v. Smith, 804 S.W.2d 509 at 511 (Tex.1991).
Even though the record does not show that the error was ever brought to the trial court’s attention, we hold that it was preserved for appellate review and that it was error for the trial court’s judgment to cut off future medical benefits which appellant may incur for reasonable and necessary treatment of the compensable wrist injury. Article 83.06, section 7, supra.
This Court’s Ruling
The judgment of the trial court is modified by deleting the following language: “and, 4. Plaintiff is not entitled to future medical benefits.” As modified, the judgment of the trial court is affirmed.
Footnotes |
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1 |
Appellant does not complain of these two orders, and we must presume in the absence of a statement of facts that the evidence showed that appellee had paid all of the benefits due for a specific injury to the wrist. |
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2 |
See TEX.REV.CIV.STAT.ANN. art. 8306, § 7 (Repealed as of January 1, 1991, by Acts 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7) to (9)). |
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