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

TRANSPORTATION INSURANCE COMPANY, Appellant,

v.

Terry A. WOOD, Appellee.

No. 01-94-00398-CV.

|

April 11, 1996.

OPINION

MIRABAL.

*1 Appellant, Transportation Insurance Company (TIC), appeals from a judgment rendered in favor of appellee, Terry A. Wood, in a case arising under the pre-1991 Workers’ Compensation Act.¹ We reverse.

Wood worked as a checker at a Kroger food store for 12 years, starting in May 1979. Prior to working for Kroger, she had worked for about 15 years as a checker at other grocery stores. According to Wood’s testimony, she was checking out groceries on October 16, 1990 when she became unable to grasp with her hands, and dropped a one-gallon bottle of apple juice. She experienced a tingling in her fingers and some numbness; the tingling and numbness had started about two weeks earlier when Wood was at home.

Eight questions, along with subparts, were submitted to the jury. Question 1 asked if Wood received an injury to both of her hands on or about October 16, 1990, in the course of her employment. The jury answered yes. Question 1A asked if the injury was the result of an accident, and defined “accident” as “an undesigned or unexpected event that is traceable to a definite time and place.” The jury answered “no” to question 1A. The jury also found that the injury suffered by Wood was a producing cause of a total loss of use of both hands at or above the wrist (question 2); that the loss was permanent (question 2A); and that Wood’s 1988 surgery for carpal tunnel syndrome was not a contributing factor to the loss of the use of her hands (question 7).

Wood filed a motion to disregard the jury’s answer to question 1A. The trial court granted the motion, disregarded the jury’s answer, and entered judgment in favor of Wood. TIC moved to correct, modify, or reform the judgment, for a judgment notwithstanding the verdict, for judgment on the jury’s answer to question 1A, and for a new trial. When the trial court refused to grant its motions, this appeal followed.

In its first point of error, TIC asserts the trial court erred by disregarding the jury’s finding that Wood’s injury was not the result of an accident. According to TIC, the jury’s answer required the trial court to render a take-nothing judgment against Wood.

A trial court may disregard a jury’s answer to a question if no evidence supports the jury’s finding or if the question is immaterial. Spencer v. Eagle Star Ins. Co., 876 S.W.2d 154, 157 (Tex.1994). A question is immaterial when it should not have been submitted, or when it was properly submitted but was rendered immaterial by other findings. Spencer, 876 S.W.2d at 157. Here, the trial court’s order specifically stated that it was disregarding the jury’s answer to question 1A because the answer had been rendered immaterial by other findings.

A question is rendered immaterial by other findings if the jury’s answer to one or more other issues makes the answer to the alleged immaterial issue void of legal significance. Stuebner Realty 19, Ltd. v. Cravens Road 88, Ltd., 817 S.W.2d 160, 165 (Tex.App.-Houston [14th Dist.] 1991, no writ). In other words, the answer to the question can be found elsewhere in the verdict, or it cannot alter the effect of the verdict. City of Brownsville v. Alvarado, 897 S.W.2d 750, 752 (Tex.1995).

*2 Wood maintains that TIC “judicially admitted” that she suffered an injury as a result of an accident that occurred on October 16, 1990, and therefore, question 1A was immaterial. At trial, counsel for Wood read into evidence interrogatory answers of Elsie Smith, the claims adjuster for TIC. The interrogatory answer Wood contends constitutes an admission is as follows:

Interrogatory No. 2: Did the plaintiff receive an accidental injury on or about October 16, 1990 while working for Kroger Company?

Answer: Yes.

(Emphasis added.) The answer to an interrogatory does not function as, or have the effect of, the answer to a request for admission. Oswald v. Texas Employers’ Ins. Assoc., 789 S.W.2d 636, 638 (Tex.App.-Texarkana 1990, no writ); Standard Fire Ins. Co. v. Ratcliff, 537 S.W.2d 355, 359 (Tex.Civ.App.-Waco 1976, no writ); Ford Motor Credit Co. v. Draper, 401 S.W.2d 848, 850 (Tex.Civ.App.-Texarkana 1966, no writ). The interrogatory was merely evidence for the jury to consider, not a judicial admission.

In the alternative, Wood contends that she was not required to secure a jury finding on accidental injury. There are two types of compensable injuries under the Workers’ Compensation Act: (1) an injury resulting from occupational disease; or (2) an accidental injury. Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 336 (Tex.1979). An accidental injury can always be traced to a definite time, place, and cause. Aetna Cas. & Sur. Co. v. Shreve, 551 S.W.2d 79, 81 (Tex.App.-Houston [1st Dist.] 1977, no writ). On the other hand, an occupational disease is an injury that arises as a result of exposure to repetitious traumatic events. It characteristically develops slowly and gradually and its origin may not be capable of being traced to a definite time and place. Id. Here, Wood proceeded on the theory of accidental injury; she did not plead or request an instruction on occupational disease.²

Question 1 asked if Wood received an injury to both of her hands on or about October 16, 1990, in the course of her employment. The following definitions accompanied the question:

“INJURY” means damage or harm to the physical structure of the body and such diseases or infections as naturally result from such damage or harm.

“INJURY” also includes any incitement, precipitation, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing, by reason of such damage or harm.

“INJURY IN THE COURSE OF EMPLOYMENT” means any injury having to do with and originating in the work, business, trade, or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of her employer, whether on the employer’s premises or elsewhere.

The jury found that Wood did suffer an injury to her hands on October 16, 1990, in the course of her employment. Question 1A, which was predicated upon an affirmative answer to question 1, inquired: “Was the injury the result of an accident?” Accident was defined as “an undesigned or unexpected event that is traceable to a definite time and place.” In response to question 1A, the jury found that Wood’s injury was not the result of an accident.

*3 While the Workers’ Compensation Act does not use the word “accident” in relation to compensable injuries, it has long been settled that a disability, except in occupational disease cases, must result from an “undesigned, untoward event traceable to a definite time, place, and cause.” Transportation Ins. Co., 580 S.W.2d at 336 (including legislative history of Tex.Rev.Civ. Stat. Ann. art. 8306, Sec. 20, which is relevant to 1987 amended version of the statute); Olson v. Hartford Accident & Indem. Co., 477 S.W.2d 859, 859-60 (Tex.1972); Texas Employers’ Ins. Assoc., 506 S.W.2d 312, 316 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref’d n.r.e.). When the proof establishes that an on-the-job injury is the result of an event traceable to a definite time, place, and cause, it is not necessary to submit an issue inquiring whether the injury resulted from an accident. See Panola Junior College v. Thompson, 727 S.W.2d 677, 678-79 (Tex.App.-Texarkana 1987, writ ref’d n.r.e.); Texas Employers Insur. Assoc. v. Hayes, 654 S.W.2d 804, 806 (Tex.App.-Houston [14th Dist.] 1983, no writ). However, when there is a question regarding whether the injury resulted from a series of traumas, the jury should decide whether the injury resulted from an undesigned, unexpected event and was traceable to a definite time, place, and cause. See University of Tex. Sys. v. Schieffer, 588 S.W.2d 602, 605-06 (Tex.App.-Austin 1979, writ ref’d n.r.e.); Fidelity & Guar. Ins. Underwriters, Inc. v. La Rochelle, 587 S.W.2d 493, 494-95 (Tex.App.-Dallas 1979, writ dism’d w.o.j.); see also 2 State Bar of Texas, Texas Pattern Jury Charges PJC 18.01, 18.03 & comments (1989).

In both Panola and Hays, in which the courts held that it was not error to submit a general definition of injury without submitting a definition or question on an accidental injury traceable to a definite time, place, and cause, there was evidence that the plaintiffs’ injuries were triggered by specific events occurring at work. See Panola, 727 S.W.2d at 678 (testimony established plaintiff’s injury caused by definite incident of moving books and boxes in office); Hays, 654 S.W.2d at 805-06 (testimony established claimant’s heart attack was caused by pre-existing heart disease combined with physical exertion while performing work on day of attack). In those cases, whether the plaintiffs’ injuries were triggered by particular work-related events was not in dispute. Compare Brown v. Texas Employers’ Ins. Ass’n, 635 S.W.2d 415, 416-17 (Tex.1982); Olson, 477 S.W.2d at 859-60 (in each case, although worker died of heart attack on the job, there was no evidence of an untoward event traceable to a definite time, place and cause that triggered the heart attack, and therefore the worker did not suffer “compensable accidental injury”).

In the present case, there was evidence that Wood’s injury may have resulted from a series of traumas, raising a fact issue for the jury about whether the injury resulted from “an undesigned, unexpected event traceable to a definite time and place.” Wood testified she had previously experienced similar symptoms and had undergone surgery for carpal tunnel syndrome on both hands in 1988. She said the 1988 carpal tunnel syndrome was not work related. The 1988 surgery and treatment had relieved her symptoms and she had not had any further trouble performing her duties as a Kroger checker until October 16, 1990. On cross-examination, she testified as follows:

*4 Q Mrs. Wood, you told us that you had previous carpal tunnel syndrome in 1988; is that correct?

A Yes, sir.

Q I would like for you to compare for us the pain that you began feeling in 1988 and the pain that you began feeling in 1990. Were the symptoms similar in both instances?

A Yes, sir.

Q Was the onset of those symptoms similar?

A Onset you mean?

Q Started out as maybe a tingling and then a numbness and built and gradually got more severe?

A Yes, sir.

Q So, in October of 1990, as you have just told us, a couple of weeks before October 16th, you began feeling some tingling and is it fair to say that those symptoms got gradually worse over time? A Yes, sir, they did. They weren’t major at that time but, you know, I did have the numbness and tingling.

Q Can you point to any specific event that actually caused the numbness and the tingling to begin in 1990?

A No, sir.

Q And, in fact, the numbness and the tingling began while you were not at work; that’s correct?

A Yes, sir.

Q And it was only as you went to work that you began to notice that you were having a problem with gripping items, correct? A Well, the gripping-well, the gripping of the items, yes; but prior to that I had had the numbness and tingling.

Q That was the same numbness and tingling that you had experienced in your home weeks before October 16 of 1990; is that correct?

A Yes.

Q You say that you initially-the first item you dropped was apple juice; is that correct?

A Yes, sir.

Q Do you remember if the bottle broke?

A Yes, sir, I believe it did.

Q Do you think that picking up that jar of apple juice caused your pain or do you think that picking up the apple juice was just one of the first times you actually dropped something?

A I can’t really answer that. I just reached for it with both hands. It was a gallon and as I reached to bring it over the scanner, something just happened. I could no longer hold it. It just-

Q Do you recall when you and I and Mr. Garza met in May of ’93, for you to give your deposition?

A Yes, sir.

….

Q Do you remember if on May 19th, 1993, I asked you specifically if there was any event that occurred at Kroger that you feel caused or could have caused your injury?

A You asked me if there was a trauma.

Q Any trauma producing event?

A Right.

Q As you sit here today, was there any trauma producing event on October 16, 1990, that you can recall?

A No, sir.

Q You continued to work until April 18, of 1992; is that correct? A April 12th … 1991.

….

Q I’m sorry. April 12, 1991. My notes were written down wrong.

A But you first saw a Dr. Jinkins on October 16, 1990; is that correct?

A Yes, sir.

Q And you saw Dr. Jinkins the same day you dropped the apple juice; is that correct?

A Yes, sir.

Q Do you remember giving Dr. Jinkins an oral history of what problems you were having, telling him what your problems were?

*5 ….

A I don’t remember. I know that I told him I had the burning sensation in the palms of my hands.

Q Do you recall telling him that you had symptoms that were worse at night?

A I mentioned the tingling and the numbness, yes, and kept me awake, woke me at night and it kept me awake.

….

Q Did your problems get progressively worse after October 16 of ’90 until April 12 of 1991?

A They did progress, yes, but I was able to-with medication I continued to work.

Q But you did notice the symptoms and problems increasing on basically a daily basis?

A Well, they did increase.

On redirect examination, Wood testified:

Q At the time that you experienced and dropped this jug, did you bang your hands on anything?

A No, sir.

Q Did you hit your back on anything?

A No, sir.

Q Did you strike any object-

A No, sir.

Q -with your hands at the time that you reached and got the one gallon jug container and moved it and dropped it?

A No, sir.

Q With regards to the numbness and tingling in your fingers, do you know or can you remember if you first started experiencing these problems at home or on the job or can you say?

A I can’t really say. I know that I had the numbness and the tingling at night. That’s what had woke me up, and they would continue on the job.

On re-cross examination, Wood testified:

Q Your first carpal tunnel syndrome in 1988, everybody involved with that carpal tunnel syndrome agreed that that was not work related, correct?

A Yes, sir.

Drs. Masel and Epstein, hand specialists, testified that Wood’s symptoms were not referable to carpal tunnel syndrome.

Dr. Kearney, Wood’s physician at the time of trial, testified that although he had not treated her at the time of her injury, he had questioned her many times since she had become his patient. Dr. Kearney testified that there were significant symptoms of Wood’s pain that could not be connected to carpal tunnel syndrome. For example, X-rays showed that there were degenerative arthritic changes in Wood’s cervical spine and some narrowing of the disc space in her neck. In Kearney’s opinion, these changes were contributing to Woods’ pain in her cervical area and in her neck, shoulders, arms and elbows. In his opinion, the cause of Woods’ pain in her wrist and elsewhere could be arthritis. The degenerative changes he observed are not related to an injury.

We hold that, under the evidence, the issue of whether Wood’s injury was the result of an event traceable to a definite time, place, and cause, was for a jury to determine. See Schieffer, 588 S.W.2d at 605-06; La Rochelle, 587 S.W.2d at 494-95; 2 State Bar of Texas, Texas Pattern Jury Charges PJC 18.01, 18.03 & comments (1989). The jury’s negative answer to question 1A was supported by the evidence and was not immaterial. Accordingly, the trial court erred by disregarding the answer.

We sustain TIC’s first point of error. Due to our holding on this point of error, it is unnecessary to consider TIC’s remaining points of error.

*6 We reverse and render judgment that Wood take nothing, in accordance with the jury verdict.³

	Footnotes
1		Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, Sec. 5, 1917 Tex. Gen. Laws 269, 271, repealed by Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch. 1, Sec. 16.01(7)-(9), 1989 Tex. Gen. Laws 1, 114, repealed by Act of Sept. 12, 1993, 73d Leg., R.S., ch. 269, Sec. 5(2), 1993 Tex. Gen. Laws 987, 1273 (current version at Tex. Lab.Code Ann. § 408.001).
2		An “occupational disease” does not include ordinary diseases or conditions of life to which the general public is exposed outside the plaintiff’s employment, except when an ordinary disease or condition of life, or the hazards thereof, is characteristic of the plaintiff’s work or is present in an increased degree in the plaintiff’s work, or except when an ordinary disease or condition of life incidentally follows or naturally results from an occupational disease. 2 State Bar of Texas, Texas Pattern Jury Charges PJC 27.01 (1989).
3		We note that we do not believe Wood proceeded to trial on the wrong theory. Wood did not plead or request an instruction on occupational disease, but rather purposefully proceeded on the theory of accidental injury. Based on the evidence that her prior carpal tunnel syndrome was not work-related, that her current condition was not referable to carpal tunnel syndrome, and that she was suffering from a degenerative arthritic condition, we conclude the best theory to proceed on was that of accidental injury. Accordingly, a remand for retrial would not be appropriate. See Schieffer, 588 S.W.2d at 606-07.