Court of Appeals of Texas,

Houston (1st Dist.).

Velia PEREZ, Appellant,

v.

PACIFIC EMPLOYERS INSURANCE COMPANY, Appellee.

No. 01-96-00200-CV.

|

Jan. 23, 1997.

OPINION

COHEN, Justice.

*1 Appellant, Velia Perez, sued Pacific Employers Insurance Company, appellee, for workers’ compensation benefits. Based on an adverse jury verdict, the trial judge rendered judgment that appellant take nothing. We affirm.

Appellant worked in the housekeeping department for the Inn On the Park Hotel. She allegedly injured her back on August 2, 1990, while picking up towels. She was then eight months pregnant and had worked for the hotel approximately three months.

Appellant sued Pacific Employer Insurance Company, the hotel’s workers’ compensation carrier. The jury found appellant was not injured on August 2, 1990. Appellant moved for a new trial, arguing the jury’s answer was against the great weight and preponderance of the evidence. The trial judge denied the motion.

In her sole point of error, appellant contends the jury’s answer was against the weight and preponderance of the evidence. The standard of review for the denial of a motion for new trial is abuse of discretion. Champion Int’l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex.1988) (orig.proceeding). When a jury negatively answers a question on which the appellant has the burden of proof, the proper standard of review for a factual sufficiency point is “great weight and preponderance,” and the courts of appeals exercise their fact jurisdiction only to prevent a manifestly unjust result. Roy v. Howard-Glendale Funeral Home, 820 S.W.2d 844, 850 (Tex.App.-Houston [1st Dist.] 1991, writ denied). We consider all the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986).

The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex.App.-Houston [1st Dist.] 1984, writ ref’d n.r.e.). We may not substitute our opinion for the jury’s merely because we might have reached a different fact conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988).

Appellant contends her testimony and medical evidence sustain the burden of proof on question number one of the court’s charge:

Did [appellant] receive an injury on August 2, 1990? Answer: No.

Appellant’s testimony at trial was arguably inconsistent with her prior sworn deposition. For example, conflict existed on whether she had to bend down to retrieve linens from the storage room and when she first experienced pain. Additionally, appellant stated she thought the pain “was something from [her] pregnancy,” not “something major.”

Regarding the medical evidence, the Hermann Hospital Emergency Room records of August 4, two days after the alleged injury, indicate that appellant’s low back pain and cramps resulted from her pregnancy. Neither the hospital records nor the MRI report show an on-the-job injury. The disability certificate by Dr. Siegler, dated September 27, 1990, is the only record stating appellant was injured on the job. This certificate, however, was prepared almost two months after the alleged injury and after she gave birth to her son. Moreover, the same doctor who wrote the certificate had previously diagnosed appellant on August 16, 1990, for “eight months gestation and chronic lumbosacragia,” not an on-the-job injury.

*2 The evidence in this case was subject to different interpretations. In light of appellant’s conflicting responses and her late stage of pregnancy, the jury was free to believe she was not injured on August 2, 1990. The jury’s verdict was not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Thus, the denial of the motion for new trial was not an abuse of discretion.

We overrule the sole point of error.

The judgment is affirmed.

Justices ANDELL and TAFT also sitting.