Court of Appeals of Texas,

Houston (14th Dist.).

Pedro OYOQUE, Appellant

v.

EMPLOYERS INSURANCE of WAUSAU, Appellee

No. 14-94-00991-CV.

|

June 13, 1996.

OPINION

MURPHY.

*1 Appellant, Pedro Oyoque, appeals a final judgment rendered against appellee, Employer’s Insurance of Wausau, for past workers’ compensation benefits. Appellant brings four points of error, contending (1) there was factually insufficient evidence to support the jury’s finding that his hernia surgery was successful; (2) the trial court improperly allowed appellee to file a supplemental answer alleging “injurious practices” by appellant; and (3) there was no evidence, or alternatively, insufficient evidence to support the submission of a question concerning appellant’s alleged “injurious practices.” We affirm.

On March 12, 1990, appellant allegedly suffered an umbilical hernia, a right inguinal hernia, and an injury to his lumbar spine, while acting in the course and scope of his employment for Tex-Tube Division/Cyclops Corporation. Appellant subsequently sought benefits under the Workers Compensation Act (“the Act”).¹

See Tex.Rev.Civ. Stat. Ann. art. 8307a, repealed by Act of December 13, 1989, 71st Leg., 2nd C.S. ch. 1, § 16.01(11), 1989 Tex. Gen. Laws 1, 114 (effective January 1, 1991). Appellant claimed the injuries he sustained rendered him totally and permanently disabled, entitling him to the maximum benefits under the Act. See Tex.Rev.Civ. Stat. Ann. art. 8306, § 10 (repealed 1991). Appellee argued, however, that appellant’s benefits should be limited to a period of twenty-six weeks because the surgery performed by Dr. Zimmerman to repair the hernias was successful. See Tex.Rev.Civ. Stat. Ann. art. 8306, § 12b (repealed 1991). Alternatively, appellee contended that even if the surgery was unsuccessful, appellant’s recurring injuries were caused by his own “injurious practices,” which included smoking and being overweight.

At trial, the jury determined that appellant’s injuries were limited to the two hernias. The jury also found that these hernias were successfully repaired on April 23, 1990. Accordingly, the trial court limited appellant’s award to $136.00, which represented the amount of workers’ compensation benefits not yet paid for the twenty-six week period following appellant’s surgery.

In his first point of error, appellant contends the jury’s answer to Question No. 2, that appellant’s hernias were successfully repaired, was against the great weight and preponderance of the evidence. Appellant, however, chose to file an unagreed, partial statement of facts, which excluded testimony of appellee’s treating physicians. See Tex.R.App. P. 53(d). If an appellant complains of legal or factual insufficiency of the evidence, and fails to file a complete or agreed statement of facts, we will presume that the omitted evidence supports the trial court’s judgment. Schafer v. Conner, 813 S.W.2d 154, 155 (Tex.1991); Englander Co. v. Kennedy, 428 S.W.2d 806, 806 (Tex.1968); Owens-Illinois, Inc. v. Chatham, 899 S.W.2d 722, 735 (Tex.App.-Houston [14th Dist.] 1995, writ dism’d); Superior Packing v. Worldwide Leasing, 880 S.W.2d 67, 70 (Tex.App.-Houston [14th Dist.] 1994, writ denied). Accordingly, appellant failed to discharge his burden of showing error requiring reversal. See Chatham, 899 S.W.2d at 735 (stating that “great-weight-and-preponderance” points require an appellate court to consider the entire record); see also Tex.R.App. P. 50(d). Appellant’s first point is overruled.

*2 In points two through four, appellant essentially contends there was no evidence, or alternatively, insufficient evidence to support the submission of Question No. 13, which asked the jury to determine whether appellant “persist [ed] in an injurious practice … that contributed to his incapacity.” The jury failed to reach this question, however, because it initially found that appellant’s hernia surgery was successful. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex.1995) (stating that “an improper jury question can be harmless error if the jury’s answers to other questions render the improper question immaterial”). Accordingly, because of our disposition of appellant’s first point, we need not address the merits of these points. Appellant’s second, third and fourth points are overruled.

The judgment of the trial court is affirmed.

1. We note the Workers’ Compensation Act has been amended twice since appellant’s injury. See generally Tex.Rev.Civ. Stat. Ann. art. 8308-4.01, Act of December 13, 1989, 71st Leg., 2nd C.S., ch. 1, § 4.01, 1989 Tex. Gen. Laws 1, 32 (effective January 1, 1991), repealed by, Act of September 1, 1993, 73rd Leg., R.S. ch. 269, § 1, 1993 Tex. Gen. Laws 987, 1132-32 (current version at Tex. Lab.Code Ann. Tex. § 401.001–417.004 (Vernon Pamph.1996)).

	Footnotes
1		After the Industrial Accident Board decided the amount of appellant’s benefits, appellant brought this suit to appeal that decision.