Court of Appeals of Texas, Houston (1st Dist.).

Nancy WHETSTEIN, Appellant,

v.

TRAVELERS INDEMNITY CO., Appellee.

No. 01-90-0342-CV.

|

Nov. 15, 1990.

Before PRICE¹, DUGGAN and COHEN, JJ.

OPINION

PRICE, Justice.

*1 This is a workers’ compensation case in which the appellant, Nancy Whetstein, sought a finding against the appellee, Travelers Indemnity Company of Rhode Island (Travelers), for the total loss of use of both her right and left hands The jury found that appellant sustained an occupational disease that was a producing cause of a 10% permanent, partial loss of use of both hands. Because Travelers had already paid compensation benefits for the periods of appellant’s incapacity, the trial court entered a take-nothing judgment in favor of Travelers.

The appellant complains, in her sole point of error, that the jury’s failure to find a total loss of use of either her right or left hand is against the great weight and preponderance of the evidence.

We look to the entire record in passing upon “great weight and preponderance of the evidence” points. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). This Court has the power to grant a new trial where the finding by the jury is so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust, but we are not authorized to substitute our judgment for that of the jury simply because we might have reached a different factual conclusion. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988).

Appellant worked for GECO, a seismographic cable company. Her work involved the handling of large sections of heavy cable. The repetitive nature of appellant’s employment caused swelling and numbness in both of her hands. Her condition was diagnosed as carpal tunnel syndrome, a constriction of the main nerve in the wrist. On October 22, 1987, surgery was performed on appellant’s right hand by a physician at the University of Texas Medical Branch in Galveston. A second surgery on appellant’s right hand was performed in Houston by Dr. Michael Epstein on July 5, 1988. Appellant remained under Dr. Epstein’s care until August 15, 1988, when she was released for light work duty with restrictions of no repetitive movement. On August 22, 1988, all restrictions were removed.

Appellant complains of constant pain in her hands. She testified that she has difficulty with any employment that requires lifting, typing, or writing. After her surgeries she attempted jobs as a painter’s helper and as a waitress, but had to quit because of difficulty handling paint brushes and pitchers of beer. While she made applications at various places, such as grocery stores, department stores, dress shops, nurseries and day care centers, she was unable to secure employment.

Ted Jolly, a psychologist-vocational counselor, interviewed and tested appellant. He stated appellant could not manage any employment requiring the use of her hands. During cross-examination, he admitted that his opinion was based primarily on the interview with appellant and that the treating physicians were better qualified to evaluate appellant’s disability.

The appellant’s contention during trial was that she suffered a total loss of use of both hands. The appellant’s evidence consisted of testimony by herself, Ted Jolly, and her physicians. The defense presented no witnesses, but merely cross-examined those witnesses put on by appellant. The credibility of the testimony of appellant and Jolly, as interested witnesses, is a matter for the jury. The jury is free to believe whatever portion of this testimony it desires. Rego Co. v. Brannon, 682 S.W.2d 677, 680 (Tex. App.–Houston [1st Dist.] 1984, writ ref’d n.r.e.).

*2 The trial court instructed the jury regarding the definitions of total loss of use and partial loss of use as follows:

“Total loss of use” of a member of the body exists whenever by reason of injury such member no longer possesses any substantial utility as a member of the body or the condition of the injured member is such that the worker cannot get and keep employment requiring the use of such member. “Partial loss of use” of a particular member means any loss of use less than total loss of use of such member.

It is the claimant’s burden to prove the injury, and the duration and extent of any incapacity. Spillers v. City of Houston, 777 S.W.2d 181, 186 (Tex. App.–Houston [1st Dist.] 1989, writ denied). There is no precise formula by which incapacity can be measured, and the duration and extent of disability is merely an estimate that a jury must determine from the evidence. Id. at 186.

In this case, Dr. Epstein, after the surgery, assigned a disability ratio to appellant of 10% to each hand and wrist, based upon the residual weakness of grip in each hand. He ordered appellant to avoid stressful, repetitive flexion of the hands.

Dr. Sanders, one of appellant’s treating physicians, assigned the same disability ratio to appellant’s hands. In clarifying his opinion, Dr. Sanders stated that appellant’s hands are 90 % as useful as normal hands. He recommended appellant avoid assembly line type work but admitted there were numerous employment opportunities available where appellant could work using her hands.

We have studied the entire record and have concluded that the verdict is not so against the great weight and preponderance of the evidence as to be manifestly unjust. Accordingly, appellant’s sole point of error is overruled and the judgment of the trial court is affirmed.

Do not publish. TEX. R. APP. P. 90.

	Footnotes
1		The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.