Court of Appeals of Texas,

Houston (1st Dist.).

CIGNA INSURANCE COMPANY OF TEXAS, Appellant,

v.

Sylvia L. PALACIOS, Appellee.

No. 01-93-00079-CV.

|

November 24, 1993.

Before DUGGAN, HUTSON-DUNN and ANDELL, JJ.

HUTSON-DUNN, Justice.

O P I N I O N

*1 This is a workers’ compensation case. On May 7, 1989, appellee, Sylvia Palacios, suffered an accidental injury during the course and scope of her employment with Rainbow Baking Company. Palacios sued Cigna Insurance Company of Texas, the workers’ compensation carrier, and alleged injuries to her right wrist, arm, and back. She further alleged that she was totally or partially incapacitated as the result of such injuries, and that she was entitled to recover benefits limited to a maximum of 401 weeks. Such pleadings are consistent with those for a general injury under former TEX. REV. CIV. STAT. ANN. art. 8306, § 11.¹

After a bench trial, judgment was rendered in favor of Palacios in the amount of $55,420.68. In his findings of fact and conclusions of law, the trial judge found that Palacios suffered a general injury, and that her injury was the producing cause of her total and permanent incapacity. It is from these findings of fact that appellant, Cigna, appeals.

In two related points of error, Cigna contends that there was no evidence, or alternatively, insufficient evidence, to support the trial court’s finding that Palacios suffered a general injury. Cigna further contends that the trial court erred in awarding benefits consistent with a general injury.

Cigna argues that Palacios suffered a specific injury to her right wrist, and that her award should be limited to that amount authorized by former TEX. REV. CIV. STAT. ANN. art. 8306, § 12.² Cigna contends that the only evidence to show that Palacios’ injuries extended to her back from her injured right wrist is her own testimony, and that such subjective complaints of pain are insufficient to show an extension of a specific injury to the body generally.

Cigna correctly states the law regarding the proof required to show an extension of a specific injury to the body generally. See Western Casualty & Sur. Co. v. Gonzales, 518 S.W.2d 524, 525 (Tex. 1975). Generally, some expert testimony is required to show that an injury to a specific part of the body has caused damage to other unrelated portions of the body. Houston Indep. Sch. Dist. v. Harrison, 744 S.W.2d 298, 300 (Tex. App.-Houston [1st Dist.] 1987, no writ).

However, we do not agree with Cigna’s assumption that this is a case involving the extension of a specific injury to the body generally. Palacios has plead that she suffered a general injury because of injuries sustained to her wrist, arm, and back. She does not claim that the injury to her wrist extended to her back. She is claiming as the direct result of her accident, she suffered a general injury to her back.

*2 Therefore, the issue before this Court is whether there was legally and factually sufficient evidence for the trial judge to find that Palacios suffered a general injury, not whether a specific injury to her wrist extended to her back.

In reviewing legal insufficiency or “no evidence” points, we must consider only the evidence tending to support the finding, viewing it in the light most favorable to the finding, giving effect to all reasonable inferences that may be properly drawn from the evidence, and disregarding all evidence or inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Texaco, Inc. v. Pennzoil, Co., 729 S.W.2d 768, 787 (Tex. App.-Houston [1st Dist.] 1987, writ ref’d n.r.e.).

The evidence favorable to the finding of a general injury is as follows. Palacios testified that when she fell at the bakery, both of her hands were swollen and she had pain and discomfort in her arms, shoulders, and neck. She further testified that she has had continued pain in both hands, arms, shoulders, and her neck. She is able to lift only five pounds with her right arm, and 25 pounds if she uses both arms. When she attempts to lift more, she has pain in her shoulders and neck. When Palacios first sought treatment by Dr. Jesus E. Garcia, a chiropractor, after her injury, she reported shoulder pain and stiffness, in addition the complaints associated with her right hand. Dr. Garcia noted in his records that Palacios had areas of anesthesia in the dermatome areas corresponding to the nerve roots levels of the sixth and eighth cervical vertebrae on her right side. She also had sensitivity of the dermatome areas corresponding to the nerve root levels of the seventh cervical and first thoracic vertebrae on her right side. We find this to be more than a scintilla of evidence that Palacios has suffered a general injury, and overrule Cigna’s challenge to the legal sufficiency of the evidence.

We turn now to Cigna’s claim that the evidence is factually insufficient to support the finding of a general injury. In reviewing factual sufficiency points, we must consider all of the evidence in the record that is relevant to the challenged finding of fact. In re King’s Estate, 244 S.W.2d 660, 661 (Tex. 1951); Texas Employer’s Ins. Ass’n v. Bartee, 757 S.W.2d 451, 453 (Tex. App.-Houston [1st Dist.] 1988, writ denied). After considering all of the evidence, the verdict will be set aside only if the evidence is so weak or the finding is so against the great weight and proponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

Cigna contends that the evidence introduced at trial shows only an injury to Palacios’ right wrist, and that all of her other complaints are indicative of pain originating in that extremity and travelling to other parts of her body. According to Gonzales, 518 S.W.2d at 525-26, such complaints of pain would not constitute an extension of a specific injury to a general injury. However, as noted earlier, this case does not involve the extension of a specific injury to a general injury.

*3 This Court has examined the medical records and notes that the records do deal almost exclusively with the injury, and subsequent fusion, of Palacios’ right wrist. The records also indicate that she has a normal range of motion in her back, neck, and shoulders. Palacios has seen several doctors with her complaints, and none of the doctors has assigned a disability rating to her back, neck, or shoulders. However, in a workers’ compensation case, the issue of disability may be based solely on the testimony of the injured worker. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 397 (Tex. 1989); Reina v. General Accident Fire & Life Assur. Corp., 611 S.W.2d 415, 417 (Tex. 1981).

In Insurance Company of Texas v. Anderson, 272 S.W.2d 772, 773 (Tex. Civ. App.-Waco 1954, writ ref’d n.r.e.) the worker plead injuries to his left arm and shoulders. The insurance carrier contended that the undisputed evidence showed that the worker’s injuries were confined to his left hand and did not extend to his body generally. The worker testified that he broke his hand, and pulled his shoulder and neck. He received treatment only for his hand, but he testified that he still suffered from shoulder pain. The court concluded that a question of fact existed about whether the worker’s shoulder and neck were injured in the accident, and that the worker’s testimony alone was sufficient evidence for the jury to conclude that he had suffered a general injury.

We find this case to be squarely on point with the present case. Palacios plead that she injured her back in the accident. She then testified that in addition to her hand injuries, she also suffered from neck and shoulder pain. The fact that almost all of her treatment was for her hand injury does not mean that she did not also injure her back in the accident. The evidence in the case, consisting mostly of Palacios’ own testimony, is sufficient for the trial court to have found that a general injury existed.

Because we find the evidence both legally and factually sufficient to support the trial court’s finding of general injury, the judgment of the trial court is affirmed.

DO NOT PUBLISH-TEX. R. APP. P. 90.

	Footnotes
1		See Act of May 10, 1973, 63rd Leg., R.S., ch. 88, § 6, 1973 Tex. Gen. Laws 187, repealed by Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 1, 114.
2		See Act of May 10, 1973, 63rd Leg., R.S., ch. 88, § 7, 1973 Tex. Gen. Laws 187, 190, repealed by Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 1, 114.