Court of Appeals of Texas, Houston (14th Dist.).

Maria Reina MAYORGA, Appellant,

v.

CASA ELENA MEXICAN RESTAURANTS, INC., Appellee.

No. 14-94-00394-CV.

|

Dec. 21, 1995.

OPINION

AMIDEI.

*1 This appeal is from a jury verdict in favor of appellant, Maria Reina Mayorga (“Mayorga”), in her suit against her former employer, Casa Elena Mexican Restaurants, Inc. (“Casa Elena”), for damages sustained in a work-related injury. The jury awarded a total of $4,100 in damages: $3,500 for past medical expenses; $500 for loss of earning capacity in the past; and $100 for transportation expenses in the past. On appeal, Mayorga brings forty-one points of error challenging the factual and legal sufficiency of the evidence supporting the jury’s findings on damages. We reverse and remand.

Casa Elena failed to file a brief in this appeal. Therefore, we may accept as true the facts alleged by Mayorga in her brief. Tex.R.App. P. 74(f); Navistar Internat’l Corp. v. Valles, 740 S.W.2d 4, 6 (Tex.App.-El Paso 1987, no writ).

On September 9, 1990, Mayorga was working in the kitchen of the Casa Elena Mexican Restaurant on FM 1960 in Houston. The kitchen was overheated, excessively humid and poorly ventilated. There was an argument between Mayorga and another employee, Marina Rivera. The restaurant manager, Rafael Rivas, came into the kitchen and ordered Mayorga to work at removing the hot plates from the oven. He shouted at Mayorga, threatened to fire her, and used offensive language. She wanted to leave because she did not feel well, but Rivas told her if she left, she should not come back. Mayorga resumed working for a short period of time, then fainted and fell against a rack, injuring her neck, left shoulder, and left arm. An ambulance was called and Mayorga was still unconscious when it arrived at the restaurant. Mayorga was taken to the emergency room for treatment and remained hospitalized for two nights. After her release, she continued medical treatment through the time of trial. At the time of Mayorga’s injury, Casa Elena was a nonsubscriber to the Texas Workers’ Compensation System.

In points of error one through seventeen, Mayorga challenges the legal sufficiency of the evidence supporting the jury’s answers to the questions on damages. To evaluate these points, we must review the record to determine if Mayorga’s damages were proved as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). Because personal injury damages are not capable of measurement by a specific standard, however, these damages are “uniquely within the province of the trier of fact.” Southwestern Bell Tel. Co. v. Wilson, 768 S.W.2d 755, 763 (Tex.App.-Corpus Christi 1988, writ denied). Amounts awarded for physical pain, mental anguish, and future disability are necessarily speculative and are matters for the trier of fact. Perry v. Safeco Ins. Co., 821 S.W.2d 279, 281-82 (Tex.App.-Houston [1st Dist.] 1991, writ denied); Tri-State Motor Transit Co. v. Nicar, 765 S.W.2d 486, 495 (Tex.App.-Houston [14th Dist.] 1989, no writ). Thus, we may not reverse and render on Mayorga’s legal insufficiency points because we are not permitted to furnish an amount for damages and thereby substitute our findings for those of the jury. Sansom v. Pizza Hut of East Texas, Inc., 617 S.W.2d 288, 290 (Tex.Civ.App.-Tyler 1981, no writ). As she is entitled only to remand for a new trial if her points are sustained, we overrule Mayorga’s points of error one through seventeen and consider instead her factual sufficiency points.

*2 When reviewing the adequacy of the damages awarded, we review the entire record to determine whether the jury’s negative finding is against the great weight and preponderance of the evidence. We consider all the evidence, both favorable and contrary to the verdict, and reverse and remand for a new trial only if the verdict is so against the great weight and preponderance of the evidence that it is manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 179 (Tex.1986); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

In point of error eighteen, Mayorga argues that the jury’s failure to award any damages for past pain and suffering or mental anguish is against the great weight and preponderance of the evidence. The jury found that Mayorga was injured and awarded damages for lost earning capacity, transportation costs and medical expenses, yet awarded no damages for pain and suffering. Mayorga raises the same evidentiary sufficiency complaint as to past physical impairment and past disfigurement in points of error twenty-one and twenty-three. She asserts that the jury’s failure to find any damages for these elements is against the great weight and preponderance of the evidence.

Although the amount of damages is ordinarily left to the discretion of the jury, jurors may not ignore the undisputed facts and arbitrarily deny any recovery. Bazzano v. Ware, 530 S.W.2d 650, 651 (Tex.Civ.App.-Beaumont 1975, writ ref’d n.r.e.). To uphold a jury’s finding that an injured party incurred no damages for past pain and suffering, the jury must have found by a preponderance of the evidence that no pain and suffering accompanied the injury. Monroe v. Grider, 884 S.W.2d 811, 820 (Tex.App.-Dallas 1994, writ denied). When uncontroverted evidence of an objective injury exists, a jury finding that the plaintiff suffered no past pain and suffering is against the great weight and preponderance of the evidence. Id. The rule that a jury may not disregard the plaintiff’s evidence and award no damages applies only where objective signs or symptoms of injury are present. Szmalec v. Madro, 650 S.W.2d 514, 517 (Tex.App.-Houston [14th Dist.] 1983, writ ref’d n.r.e.).

Our review of the record reveals the following evidence of Mayorga’s pain, suffering and mental anguish.

¹ Ernestina Ferreira, Mayorga’s daughter, testified that, after the accident, her mother suffered great pain and complained of the pain. After the accident, Mayorga was very depressed and had trouble sleeping. Mayorga testified she was in pain over her entire body and always suffering. She testified she had trouble walking and had headaches.

On September 13, 1990, four days after the accident, Dr. Jeffrey Lambert, Casa Elena’s expert, observed Mayorga as “generally anxious, fearful” and “complaining of feeling tense and nervous and … having some problems with sleeping” and headaches. He prescribed Atavan, an anti-anxiety medication. On September 19, 1990, Dr. Lambert noted that Mayorga “had diminished range of motion of her left arm.” He prescribed Darvocet for Mayorga’s pain.

*3 Dr. Robert Henley, an osteopath, testified he treated Mayorga from September 1990 until trial in August 1993. He noted on September 29, 1990 that “it was obvious she was in pain. And I remember the look of tightness in her face, the way she was holding her arm.” Mayorga had a restricted range of motion in her left arm. Dr. Henley noted Mayorga “could hardly move the left arm.” She complained of “unrelenting pain” in her neck and shoulder. Dr. Henley testified the physical findings were compatible with her complaints. Dr. Henley noted Mayorga’s pain was so great that she stopped moving her shoulder. On January 31, 1991, Dr. Henley diagnosed the condition as adhesive capsulitis, or “frozen shoulder,” which he considered to be a natural development from Mayorga’s injury. Casa Elena’s expert, Dr. Lambert, confirmed that he also observed Mayorga had a “frozen shoulder” on April 29, 1991.

To be entitled to recover damages for physical impairment, a plaintiff must prove that the effect of her physical impairment extends beyond any impediment to her earning capacity and beyond any pain and suffering to the extent that it produces a separate and distinct loss that is substantial and for which she should be compensated. Allen v. Whisenhunt, 603 S.W.2d 242, 244 (Tex.Civ.App.-Houston [14th Dist.] 1980, writ dism’d). In addition to the evidence already recited, our review reveals the following evidence supporting damages for physical impairment and disfigurement.

John Talamas, the acting general manager for Casa Elena, testified he saw Mayorga when she came to his office approximately ninety days after the accident. When he saw her, she was “slumped over,” “rather sickly,” and needed assistance to walk. After the accident, Mayorga testified she could no longer wear the same clothes because of her physical deformities. Her daughter testified that after the accident, one side of her mother’s body was not normal, affecting the way she walked. Mayorga testified that her shoulder had “dropped.” Dr. Henley noted the change in the elevation of Mayorga’s shoulder, causing her to have a “low shoulder.” Mayorga’s daughter testified her mother had a “lump” on her shoulder after the accident. Testimony from Dr. Lambert and Dr. Henley, however, showed that this “lump” was a lipoma, a non-cancerous fatty tumor, that had probably been present for some time.

In January 1991, Dr. Henley diagnosed Mayorga’s condition as adhesive capsulitis, which he described as “a change in some of the structures within the joint and it’s no longer just pain, but there’s a mechanical change.” In a follow-up visit to Dr. Lambert on April 29, 1991, the doctor noted Mayorga “almost cannot move left arm,” and “the left shoulder [was] frozen with very poor range of motion.” According to Dr. Henley, at the time of trial, she “has practically [no motion] in what is called abduction or raising her arm up. She can’t do that.” She also “has [no motion] in what is called hyperextension or putting your arm behind you. She has none in bringing the arm up like this.”

*4 The testimony further showed that at time of trial, Mayorga could not move her shoulder normally, could not lift anything over her head, and experienced difficulty in turning her head. Mayorga testified that, before the accident, she used her shoulders at work to carry boxes of lettuce and trays of cheese and felt no discomfort. After the accident, she struggled to lift anything with her left arm, and was only able to do so with considerable pain. She had problems walking after the accident. In Dr. Henley’s medical opinion, Mayorga would never be able to lift anything over her shoulders with her left arm. Before the accident, Mayorga was active and worked at two jobs. She did not work at all after the accident.

Mayorga’s daughter testified that before the accident, Mayorga could “clean the house, iron, wash, all the regular things you have to do,” but after the accident she could no longer do anything around the house. For most of the year that her daughter lived with her after the accident, she had to help Mayorga dress and picked her up and carried her when she needed to get around. According to Dr. Henley, Mayorga cannot comb her hair, shampoo her hair, and probably has difficulty in washing her back, putting her shoes on, and fastening her brassiere strap.

Casa Elena did not dispute Mayorga’s evidence of her pain and diminished range of motion in her left arm. Instead, at trial, Casa Elena argued that Mayorga’s injuries were not caused by the conditions at its restaurant or by any actions of its employees. It attempted to establish that Mayorga’s problems were caused by the lipoma on her shoulder. The jury rejected these contentions, and found Casa Elena liable for Mayorga’s injuries.

While much of the evidence tending to show pain and suffering is based on Mayorga’s subjective feelings, there is some uncontroverted objective evidence of her restricted range of motion and diagnosis of adhesive capsulitis, supporting her complaints of pain. Therefore, we find that the jury’s award of no damages for past pain and suffering is against the great weight and preponderance of the evidence in the record and sustain Mayorga’s point of error eighteen.

Casa Elena also failed to controvert Mayorga’s evidence of disfigurement and impairment. We conclude that the jury’s failure to award damages for Mayorga’s physical impairment and disfigurement is against the great weight of the evidence in the record. See Cornelison v. Aggregate Haulers, Inc., 777 S.W.2d 542 (Tex.App.-Fort Worth 1989, writ denied) (reversing zero damages award for disfigurement and impairment where uncontroverted evidence established memory deficits, nerve damage, slow and uncoordinated movements); Robinson v. Minick, 755 S.W.2d 890 (Tex.App.-Houston [1st Dist.] 1988, writ denied) (reversing where jury’s failure to award any damages for past physical impairment apart from past pain and suffering and disfigurement was against the great weight and preponderance of the evidence). We therefore sustain points of error twenty-one and twenty-three.

*5 Having found error requiring reversal of the trial court’s judgment,² we need not address Mayorga’s remaining points of error. We reverse the trial court’s judgment and remand this cause for a new trial.

	Footnotes
1		Uncontroverted evidence of an objective injury does not always require mental anguish damages. See Elliot v. Dow, 818 S.W.2d 222, 224-25 (Tex.App.-Houston [14th Dist.] 1991, no writ). In this case, the trial court submitted damages for past physical pain and mental anguish as one element. Therefore, if there is sufficient evidence of either element, we will sustain point eighteen.
2		Even though Casa Elena has not contested the jury’s liability finding on appeal, we must reverse the entire judgment entered below. See Tex.R. Civ. P. 320, Tex.R.App. P. 81(b)(1) (both providing that a separate trial on unliquidated damages alone shall not be ordered where liability is contested).