Dollison v. Hayes
79 S.W.3d 246
Tex. App.
2002
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OPINION

Opinion by

Justice ROSS.

Jack Dollison sued for injuries he sustained in a motor vehicle accident, alleging negligence against Allen Wayne Hayes. The case was tried before a jury that found each party fifty percent negligent and awarded Dollison damages for medical bills and lost wages. The jury did not award any damages for pain and suffering, mental anguish, or physical impairment. The court rendered judgment in accordance with the verdict. Dollison filed a motion for new trial, which was denied.

Presented for our review is whether a jury can award a plaintiff damages for medical expenses and lost wages while declining to award past and future pain and suffering, mental anguish, or physical impairment. Under the facts of this case, we hold that the judgment of the trial court, awarding specific but not general damages, was not erroneous.

On July 7, 1998, Dollison was employed by Gregg County and was driving a front-end loader on Highway 349 near Kilgore. As Dollison. was crossing a two-lane bridge, a truck driven by Hayes skidded and struck the loader from the rear. Dol-lison testified that the impact jolted him around a little bit in the seat. Other than knocking some paint loose, the accident caused no damage to the loader. Hayes’ truck, however, sustained substantial damage.

Following the accident, Dollison went to the emergency room complaining of low back pain. X-rays were taken, he was given pain medication, and discharged. Three days later, on July 10, Dollison went to see Michael Langford, M.D., an orthopedic surgeon. Langford reviewed Dolli-soris x-rays, noting they revealed mild arthritis but indicated no injury related to the accident. Dollison was placed on a restricted work schedule with no bending, squatting, or heavy lifting. He also received physical therapy for approximately two months. Effective August 31, 1998, Dollison was released to work with no restrictions and zero impairment. He has not seen Langford since that time.

Dollison contends the trial court erred in denying his motion for new trial. That motion relied on the same six points of error now brought before this Court. All six points of error challenge the jury’s award of damages on legal and factual sufficiency grounds. Dollison argues it is reversible error when a jury verdict awards medical bills and lost wages, but does not award 1) past pain and suffering, 2) future pain and suffering, 3) past mental anguish, 4) future mental anguish, 5) past physical impairment, or 6) future physical impairment, when the plaintiff introduces uncontroverted evidence to support them. A challenge to a damages award for these types of unliquidated and intangible injuries is reviewed as any other challenge based on the sufficiency of the evidence. Larson v. Cactus Util. Co., 730 S.W.2d 640, 641 (Tex.1987).

When a party challenges the legal sufficiency of an adverse finding on an issue on *249 which it had the burden of proof, it must demonstrate the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). In reviewing such a legal sufficiency challenge, we must first examine the record for evidence supporting the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, we must then examine the entire record to determine if the contrary proposition is established as a matter of law. Id.

When the party having the burden of proof challenges the factual sufficiency of a finding in the trial court, that party must show the fact-finder’s finding was against the great weight and preponderance of the evidence. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). If a finding is against the great weight and preponderance of the evidence, the inquiry is whether the finding is so contrary to the overwhelming weight of all relevant evidence as-to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We will not reverse the judgment simply because the court concludes the evidence merely preponderates toward an answer more favorable to the appellant. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988). We may only reverse where the great weight of the evidence supports an answer contrary to that given by the jury. Id.

The essence of Dollison’s sufficiency argument is that he offered undisputed evidence he was injured in the accident and was awarded some damages. He argues that the jury’s award of medical bills necessarily implies he also suffered mental and physical pain, and the jury’s award of lost wages necessarily implies he suffered past and future impairment. Therefore, he argues, once the jury awarded compensation for his medical expenses and lost wages, the jury had to also award some amount of general damages in each category. To see why Dollison’s argument fails, we must examine both the nature of the proof offered and the nature of the damages sought.

Dollison’s points of error and underlying arguments regarding past and future pain and suffering, as well as those regarding past and future mental anguish, all rely on the same principles of law. Therefore, we shall jointly address points of error one through four.

The process of awarding damages for amorphous, discretionary injuries such as mental anguish or pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecu-niary loss. Brookshire Bros. v. Wagnon, 979 S.W.2d 343, 354 (Tex.App.-Tyler 1998, pet. denied); see Duron v. Merritt, 846 S.W.2d 23, 26 (Tex.App.-Corpus Christi 1992, no writ). The process is not readily susceptible to objective analysis. LaCoure v. LaCoure, 820 S.W.2d 228, 234 (Tex.App.-El Paso 1991, writ denied). Because there are no objective guidelines to assess the monetary equivalent to such injuries, the jury is given a great deal of discretion in awarding an amount of damages it determines appropriate. Texarkana Mem’l Hosp. v. Murdock, 946 S.W.2d 836, 841 (Tex.1997); Hicks v. Ricardo, 834 S.W.2d 587, 591 (Tex.App.-Houston [1st Dist.] 1992, no writ).

The presence or absence of pain, either physical or mental, is an inherently subjective question. Waltrip v. Bilbon Corp., 38 S.W.3d 873, 881 (Tex.App.-Beaumont 2001, pet. denied). In some instances, the injuries are so substantial and the symptoms are so objective that an award of damages for pain and suffering is clear *250 ly supported. 1 In these instances, the failure to award such damages while simultaneously awarding medical expenses would be erroneous. In other cases, the objective indicia of injury are either less obvious or entirely absent. The jury may deny such damages if the injuries sustained are subjective in nature. See Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 805 (Tex.App.-Dallas 1988, no writ) (jury finding of no damages for pain and suffering not improper where indicia of injury and damages more subjective than objective); McGuffin v. Terrell, 732 S.W.2d 425, 427 (Tex.App.-Fort Worth 1987, no writ) (plaintiff properly denied damages for past medical expenses and past pain and suffering where cumulative evidence reflected no objective symptoms were discovered until substantial time period after accident, no surgical procedure performed, and jury found injury sustained did not require all the examinations and treatments received by plaintiff).

The more evidence of outward signs of pain, the less a finding of damages depends on the claimant’s own feelings and complaints. This principle was succinctly set out in Dupree v. Blackmon, 481 S.W.2d 216 (Tex.Civ.App.-Beaumont 1972, writ ref d n.r.e.):

If the plaintiff has objective symptoms of injury ... and there is readily available testimony which the defendant could offer to refute such fact, plaintiffs evidence cannot be disregarded by the jury when the defendant fails to refute it.
On the other hand, if plaintiffs complaints are subjective in nature ... which the defendant may not readily dispute, then the negative answer of the jury to the damage issue will not be disturbed when it rests upon the testimony of the plaintiff alone.

Id. at 221 (Keith, J., concurring).

Dollison argues the evidence of his injuries was uncontroverted and unre-butted. Therefore, he urges, the only permissible conclusion is that he must have experienced pain as a result of the collision. As restated at oral argument, his position is that any objective symptom of injury, without controverting testimony, automatically entitles a plaintiff to a recovery for pain and suffering, as well as for mental anguish. The mere fact of injury, however, does not prove compensable pain and suffering, nor does it demonstrate the plaintiff suffered either mental anguish or impairment. See Blizzard, 756 S.W.2d at 805. Pain and suffering and mental an *251 guish are separate elements of damage for which the plaintiff bears the burden not only of production, but also of persuasion.

The only testimony regarding the extent of his injuries came from Dolli-son himself and from Langford, the orthopedic surgeon. The general rule, as explained by the Texas Supreme Court, is that opinion testimony, even when uncon-troverted, does not necessarily bind the jury.

[T]he judgments and inferences of experts or skilled witnesses, even when uncontroverted, are not conclusive on the jury or trier of fact, unless the subject is one for experts or skilled witnesses alone, where the jury or court cannot properly be assumed to have or be able to form correct opinions of their own based upon evidence as a whole and aided by their own experience and knowledge of the subject of inquiry.

McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986) (citing Coxson v. Atlanta Life Ins. Co., 142 Tex. 544, 179 S.W.2d 943, 945 (1944)). The presence or absence of pain, based on the subjective complaints of an individual, is not a subject for experts or skilled witnesses alone. See Waltrip, 38 S.W.3d at 882.

The record contains the following objective evidence of pain. The emergency room physician’s evaluation mentions lower spinal muscle cramping. When asked to describe his pain for the jury, Dollison stated, “I started hurting up on the left side of my back; and then the next morning when I put my work boots on, I couldn’t straighten back up.” Dollison received a pain shot and later “some pain pills, which didn’t work.” Then the following exchange took place during Dollison’s direct examination:

Q. During that month or so after the accident, were you hurting at home? I mean, were you in pain?
A. Yes, sir, yeah.
Q. Was it still that sharp, shooting pain in the left side of your back? 2
A. Yeah.
Q. Anything else?
A. No, just my back.

The record also contains Langford’s reference to “tenderness ... around the left paraspinal muscular area,” which Dollison described as an “achy-type pain.” This evidence was repeated in Langford’s deposition testimony. Dollison’s x-rays revealed no accident-related injury, only the early signs of arthritis in his lower back. Dollison did not suffer any bruising as a result of the accident. The orthopedic surgeon determined Dollison sustained a lumbar sprain and strain. The recommended course of treatment included use of a heating pad, pain medication, and physical therapy. “Trigger point” pain injections were also prescribed, but Dollison refused this treatment. Langford also recommended modified work duty to avoid lifting, squatting, or stooping. Dollison did not return to work with Gregg County while on modified work duty. During this time, he worked instead at his brother’s transmission business, answering telephones and running errands. On August 27, Langford released Dollison to return to work with no restrictions and zero impairment. When asked, Langford declined to state an opinion about whether Dollison would have future pain, and he would not comment on the possibility of any potential future medical care related to this injury. *252 Further, Dollison’s testimony was not entirely consistent about the locus of his pain. He testified his back pain was on his left, then on his right, then on his left again. When asked if he had any continuing pain during the year after the accident, Dollison answered, “Not unless I drove a whole lot. Like if I went to Dallas or something....”

We recognize that muscle cramps and spasms can be potentially painful. We also recognize, however, that severe com-pensable pain does not automatically accompany a muscle cramp or spasm in the same way that such pain accompanies a concussion or broken bone. The jury had to rely on Dollison’s testimony regarding the pain associated with his injury and its own evaluation of his credibility as a witness. The jury was free to reject the testimony of both Dollison and his doctor as to the existence, amount, or severity of his pain.

Dollison cites several cases which, he argues, stand for the proposition that some injuries carry with them a presumption of pain and suffering, as well as mental anguish. He first directs us to Robinson v. Minick, 755 S.W.2d 890 (Tex.App.-Houston [1st Dist.] 1988, writ denied). There the jury awarded damages for past pain and mental anguish, loss of past earnings, past medical expenses, past physical disfigurement, and loss of future earning capacity. The jury, however, failed to award damages for past physical impairment and future physical impairment. In reviewing the jury’s findings, the Robinson court found the $0 damage award for past physical impairment was against the great weight and preponderance of the evidence, but upheld the $0 damage award for future physical impairment because it found the evidence on that element to be speculative. The Robinson court characterized the facial fractures, surgery, and lengthy hospitalization as being objective, undisputed evidence of injury and “indications of past physical impairment” that were “independently proved, and did not rely upon appellant’s credibility.” Id. at 893. In Gallegos, several children sustained various injuries including lacerations, bruises, muscle spasm, and fracture. Gallegos v. Clegg, 417 S.W.2d 347, 357 (Tex.Civ.App.-Corpus Christi 1967, writ refd n.r.e.). One of the children was hospitalized for five days. Id. at 355. Dollison’s injuries, however, were neither so objectively nor so extensively supported by evidence.

In Del Carmen Alarcon v. Circe, 704 S.W.2d 520 (Tex.App.-Corpus Christi 1986, no writ), the jury answered each liability question in the appellant’s favor and awarded medical bills and lost wages. Id. at 521. The jury failed to award damages for physical pain or mental anguish. Id. All of the medical experts made medical diagnoses with indications of physical pain, including concussion, reverse curvature of the spine, and cervical and lumbar sprain. The court held the jury’s failure to award damages for physical pain or mental anguish was error. Id. (citing Brown v. Van-derveer, 460 S.W.2d 502, 506 (Tex.Civ.App.-Austin 1970, no writ); Gallegos, 417 S.W.2d at 356). Langford did not express an opinion about the degree of pain Dolli-son may have suffered and expressly refused to speculate about the possibility of future pain. Dollison suffered no concussion, no bruising, and refused pain shots. He described his pain as merely “achy.”

In Brown, 460 S.W.2d at 506, the court stated,

We believe it very far fetched to conclude that Mrs. Brown, shown to be a vigorous, healthy, hardworking woman before the accident would consult doctors time after time for more than a year, incurring large medical, hospital and drug bills, wear a neck brace, lose *253 one hundred days from work and poorly perform her job unless she was suffering discomfort and pain.

Dollison, however, admitted he was getting older and showing signs of arthritis (which could account for his “achy” pain). He missed only one and one-half months’ work, and even worked at his brother’s business during that time. Since returning to work, he has suffered no continuing pain and has not required additional medical treatment.

To the extent the cases to which Dolli-son refers purport to state that it is error to award damages for medical expenses without simultaneously awarding damages for pain and suffering, we disagree. The mere fact of injury does not prove compen-sable pain and suffering, nor does it demonstrate Dollison suffered compensable mental anguish. See Blizzard, 756 S.W.2d at 805. As this Court has long recognized, the jury could reasonably have believed that Dollison should be fairly compensated for seeking medical care related to the accident and for wages not paid while he was on medical leave, but that he suffered no physical or mental injury warranting a monetary award. See Armstead v. Harvey, 390 S.W.2d 871, 872 (Tex.Civ.App.-Texarkana 1965, no writ). The jury was capable of determining the “truth” from the evidence as a whole with regard to the lack of any physical pain and mental anguish suffered by Dollison. We hold that the mere fact of injury alone, without more, is insufficient to establish any right to recover otherwise unproven pain and suffering or mental anguish damages.

In this case, Dollison’s own testimony and exhibits provided an alternate explanation for his back pain. His x-rays revealed lesions symptomatic of arthritis in his lower back. This fact, combined with advancing age, 3 could also account for Dol-lison’s “achy-type” pain. There appears to be no evidence whatsoever of mental anguish, and Dollison has not directed the Court to any testimony on that issue. We cannot say that the jury’s award of $0 for past and future physical pain and mental anguish was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Points of error one through four are overruled.

Physical impairment is an element of damages that extends beyond loss of earning capacity and beyond any pain and suffering, to the extent that it produces a separate loss that is substantial or extremely disabling. Blankenship v. Mirick, 984 S.W.2d 771, 777 (Tex.App.-Waco 1999, pet. denied). Therefore, even proof that one is entitled to compensatory damages for pain and suffering, or for lost wages, does not automatically entitle one to compensation for physical impairment. The party claiming such damages bears the burden of proving a compensable injury.

The evidence showed Dollison did not return to his regular job with Gregg County while completing his prescribed course of physical therapy. During this time, Dollison worked at his brother’s transmission business. On August 27, Langford released Dollison to return to work with no restrictions and zero impairment. In light of this evidence, it was not improper for the jury to determine that the fact Dollison did not work for his regular employer entitled him to lost wages. Because he did other work during this time, it was not error for the jury to determine Dollison suffered no compensable physical impairment. See Landacre v. Armstrong Bldg. Maint. Co., 725 S.W.2d 323, 325 (Tex.App. *254 Corpus Christi 1986, writ refd n.r.e.) (jury properly denied damages for past physical impairment where plaintiff testified she was permitted to return to work without restrictions from her physician, she returned to her other activities, she was able to participate in her former hobbies, and she was able to do everything she could before her accident despite her injury). With respect to future impairment, Dolli-son’s own doctor testified he was released for full duty with neither restrictions nor impairment. Here, the evidence is conclusive, and it is contrary to Dollison’s position on appeal.

We cannot say the jury’s award of $0 for past and future physical impairment was so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Points of error five and six are overruled.

At oral argument, Dollison also argued that the jury’s award of $0 indicates the jurors improperly failed to consider evidence related to pain and suffering, mental anguish, and impairment. We disagree. Question three of the jury instructions divided the damages issue into eight distinct parts:

1) Physical pain in the past;
2) Physical pain that in reasonable probability will be sustained in the future;
3) Mental anguish in the past;
4) Mental anguish that in reasonable probability will be sustained in the future;
5) Medical care in the past;
6) Loss of earning capacity in the past;
7) Physical impairment in the past;
8) Physical impairment that in reasonable probability will be sustained in the future.

The jury filled in zeros for each part except medical care in the past and loss of earning capacity in the past. The jury form was signed by the presiding juror and indicated a unanimous decision. We believe that, by affirmatively entering zero as an amount, the jury demonstrated it considered each element of damages and rejected Dollison’s proof with respect to all but two of those elements.

We affirm the judgment of the trial court.

Notes

1

. Examples of objective evidence of injury supporting an award of damages for pain and suffering include:

organic brain syndrome and nerve damage (Cornelison v. Aggregate Haulers, Inc., 777 S.W.2d 542 (Tex.App.-Fort Worth 1989, writ denied));
linear fracture of the foot (Russell v. Hankerson, 771 S.W.2d 650 (Tex.App.-Corpus Christi 1989, writ denied));
broken hip (Johnson v. Tom Thumb Stores, Inc., 771 S.W.2d 582 (Tex.App.-Dallas 1989, writ denied));
severe electrical burns (Loyd Elec. Co. v. Millett, 767 S.W.2d 476 (Tex.App.-San Antonio 1989, no writ));
skull and facial fractures, accompanied by the dripping of spinal fluid from the nose (Robinson v. Minick, 755 S.W.2d 890 (Tex.App.-Houston [1st Dist.] 1988, writ denied));
cut (Porter v. Gen. Tel. Co., 736 S.W.2d 204 (Tex.App.-Corpus Christi 1987, no writ)); lacerations, tendinitis, and tom muscles requiring surgery (Crowe v. Gulf Packing Co., 716 S.W.2d 623 (Tex.App.-Corpus Christi 1986, no writ));
reverse cwvature of the spine, concussion, and lumbar sprains (Del Carmen Alarcon v. Circe, 704 S.W.2d 520, 521 (Tex.App.-Corpus Christi 1986, no writ)); and
broken ankle requiring full cast (Fuller v. Flanagan, 468 S.W.2d 171 (Tex.Civ.App.-Fort Worth 1971, writ ref’d n.r.e.)).
2

. There was no prior testimony about a sharp, shooting pain in the left side of Dollison’s back.

3

. Dollison testified that he was bothered about not being able to lift as much as he used to, but that, as he aged, there were things he could not do.