Court of Appeals of Texas,

Dallas.

ROYAL INDEMNITY COMPANY, Appellant,

v.

Michelle MATLOCK, Appellee.

No. 05-01-01196-CV.

|

April 16, 2002.

Before Justices JAMES, O’NEILL, and FRANCIS.

OPINION

Opinion By Justice JAMES.

*1 Royal Indemnity Company (RIC) appeals the trial court’s denial of its motion for new trial. In a single issue, RIC contends the trial court erred because the evidence is factually insufficient to support the jury’s finding that Michelle Matlock’s injury to her lumbar spine/lower back was part of her compensable claim. We disagree. Accordingly, we affirm the trial court’s judgment.

Matlock worked at a plant where one of her job duties required her to lift mandrels of material weighing between fifty and two-hundred fifty pounds a piece. Matlock and her co-worker used a hoist to move the mandrels; however, it was not uncommon for employees to move the mandrels by hand when they were busy. On January 27, 1999, after lifting approximately fifty mandrels during her ten hour shift, Matlock felt a “warming sensation” centered in her neck and shoulder and going to her head. The next morning, Matlock told her supervisor about her injury and was sent to Charlton Methodist Hospital.

Matlock brought a claim before the Texas Workers’ Compensation Commission (TWCC) asserting her compensable injuries included injury to her neck, shoulder, head, and lumbar spine/lower back. After the TWCC concluded the injury did not include her lumbar spine/lower back, Matlock filed suit to set aside the TWCC’s finding.

At trial, Matlock stated she stayed in the hospital for three to four days and was heavily sedated with morphine. Matlock’s supervisor, Roland Givens, visited her in the hospital and he testified Matlock never complained of lower back pain. Givens also stated he played pool with Matlock after her injury; however, Matlock denied she had played any pool since her injury. Matlock’s general manager, Robert C. Waggoner, testified he talked with Matlock after her hospitalization and she failed to mention any pain associated with her lower back. On the other hand, Waggoner did state Matlock could have told him about the pain but he did not recall. Upon discharge from the hospital, Matlock obtained follow-up treatment from Dr. James Looney. She visited Looney on five separate occasions, yet none of Looney’s medical records documented Matlock’s lower back pain. Matlock testified she felt pain in her lower back approximately two to three weeks after her initial injury, she informed Looney about the pain, and inquired about seeing a different doctor. Looney subsequently referred Matlock to Dr. Stephen Ozanne. On the first visit to Ozanne, approximately two months after the initial injury, Matlock complained of “tingling” in her lower back. Ozanne sent her to a specialist who performed a magnetic resonance image (MRI) and determined Matlock had “two or three bulging discs” in her neck and a “herniated disk” in her lower back. Matlock further testified her lower back injury was a result of her initial injury and she had neither been involved in any automobile accidents nor had she been injured subsequent to her injury on January 27.

*2 A jury found Matlock’s compensable injury did include an injury to her lumbar spine/lower back and in accordance with the jury’s finding, the trial court signed a judgment in favor of Matlock. RIC timely filed a motion for new trial which was overruled by operation of law.¹ This appeal ensued.

In its sole issue, RIC argues the trial court erred in denying its motion for new trial because the evidence is factually insufficient to uphold the jury’s finding. We disagree. This court reviews factual sufficiency challenges by considering all of the evidence in the record, both in support of and contrary to the judgment. Plas Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989). Findings of fact are the exclusive province of the jury. Bellefonte Underwriters Ins. Co. v. Brown, 704 S.W.2d 742, 744 (Tex.1986); Dallas County v. Holmes, 62 S.W.3d 326, 329 (Tex.App.-Dallas 2001, no pet.). However, this court will set aside the findings if the evidence is so weak that the findings are clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Holmes, 62 S.W.3d at 329. If there is sufficient competent evidence of probative force to support the finding, it must be sustained. Holmes, 62 S.W.3d at 329.

In this case, Matlock testified she had lower back pains resulting from her injury. She stated she told Looney about the back pain a few weeks after her injury and also testified she told Ozanne about the pain on her first visit. Matlock further stated the cause of her back pain was discovered after her first MRI session, and she had not suffered any other injury since her on-the-job injury in January. Although Looney’s notes fail to indicate lower back pain, the jury was free to discount that evidence and believe Matlock’s testimony that she informed Looney of the lower back injury. See Brown, 704 S.W.2d at 744; Holmes, 62 S.W.3d at 329. After reviewing all of the evidence, we conclude the jury’s verdict is not so weak as to be clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176; Holmes, 62 S.W.3d at 329. Because we conclude the evidence is factually sufficient to support the trial court’s denial of RIC’s motion for new trial, we overrule RIC’s sole issue.

Accordingly, we affirm the trial court’s judgment.

	Footnotes
1		The trial court signed the order denying the motion on July 25, 2001.