*2 C.J., PRESLAR, Before STEPHEN F. OSBORN, and WARD and JJ.
OPINION OSBORN, Justice. upon jury findings
Based of total and permanent en- incapacity, judgment was awarding tered Celia Sullivan maximum Compensation benefits under the Worker’s We Act. affirm.
This is an unusual case in that the claim- ant, Sullivan, present during Mrs. who was testify the trial of this not did either deposition. person only wit- in August, ness to her fall Jesus Rodriguez, by deposition testified and said: “I she I saw when fell. don’t know injury.” She whether she sustained an work, days continued later but three went see Dr. Mario Palafox. His exami- pa- nation revealed some tenderness of the complaints pain tient’s neck and in her neck, back, left shoulder wrist neurolog- Basically, severe headaches. his x-ray ic nor- examinations were within spasm mal limits. He found no muscle testing damage his for nerve revealed He sprain none. concluded that she had a wrist, rotator cuff in tear syn- discogenic the left shoulder and a drome. He continued to see her for well year. over a He concluded that she had a twenty percent permanent disability of the body hospital- as a whole. She never physical any ized and never received thera- py. Although she had worked at Sun Tow- years Hospital prior for about ers eleven accident, very compli she had a limited and record. Where there has been rule, agreement, after this accident. ance with even menial work record made, is unenforceable. Texas Electric error, points of In the first and second Yater, Company v. Service the trial court erred is asserted (Tex.Civ.App. ref 'dn.r. Paso writ — El refusing Appellant’s requested to submit e.). regarding injury and course of em- *3 case, and that the issue as submitted ployment, compensation In a it is nec weight of the evi- was a comment on the jury essary that the claimant obtain find compensation an- The carrier in its dence. ings in injury of an which was sustained denied that Mrs. Sullivan sustained swer employment of in to recov the course order any injury attempted in her fall and it any In incapacity er for sustained. this physical problems that all of her were show finding on either issue and there no injuries related to serious which she actually in first the court sub the issue in 1977. ceived in an automobile accident mitted, jury it in advised the effect evidence, in- At the conclusion of the the 9, injury August an on 1980. In there was company requested special surance issues Appellant’s proposed charge as sub the inquiring whether Mrs. received conference, Sullivan it pretrial mitted at the was 9, 1980, August injury on and whether an requested assume an that the court injured in the of her em- she was course by the claimant while the was received is- The trial court denied both ployment. inquiring her course of when sues, special inquired the first issue and such re “producing By cause.” about 9, 1980, August of was a if the quest, court to Appellant requested the incapacity. cause total producing of producing submit the issue of cause with jury “yes” The answered and found submitting “injury” on out first issues incapacity “[p]er- the total was duration of employment.” That is what the “course of manent.” right A has no trial court did. complain he has invited. of error which Appellee argues Appellant that the As Employers Flores v. Texas Insurance “in- agreed conference that sociation, (Tex.Civ.App.— jury” “scope employment” of would 1974, writ). Points of Error El Paso upon the of not be contested issues Nos. and Two are overruled. One was Appellant asserts that case. agreed only that it would not contest complains in of Er- Point requested fall. When the two issues ror Three that the trial court erred No. presented judge to the trial at the conclu- objection admitting into evidence over its evidence, initially of the he ruled that sion Palafox in diagnosis of Dr. the recorded pretrial hearing at the it was stated Appellee of- the medical records which After issues would not be raised. No. 1 consists of fered. Plaintiff’s Exhibit consideration, he judge said further Palafox to eighteen reports by Dr. written He later submit the two issues. would Company over a Adjusting Underwriters issues. changed his mind and refused the period eighteen months. Each writ- examined Mrs. day ten on the the doctor The trial court entered an extensive were from one three they Sullivan con for Pre-Trial Conference which Order forth long, setting his pages and one-half completion of “[u]pon satisfactory cluded: neurologic x-ray findings physical, on Conference, will enter such Pre-trial Court first After his examination examination. may require for trial or the case orders as 1980, 12, August he wrote: procedures further as indicated.” wrist; sprain of left diagnosis A this is that no problem for Court cuff, shoulder, left tear the rotator to reflect what order was ever entered headaches; post- mild; post-traumatic pretrial confer were settled at the cervical, Tex.R.Civ.P., thoracic and lumbo- 11, requires traumatic Rule ence. was made. discogenic syndrome sacral agreements writing be in or entered
101 being patient America, treated conservative- Company North 565 S.W.2d ly. 1978, will be followed in office. I my (Tex.Civ.App. She writ ref’d — Amarillo anticipate recovery. eventual full n.r.e.). Williams, She In v. Martinez peri- was asked to remain off work for a (Tex.Civ.App. S.W.2d 742 at 749 — Houston days. four writ), od of She will be re-evaluated 1958, no said: court at that time and a determination will be [Wjhere physician the statement of the ability made as to to return to work. opinion consists of an or a conclusion diagnosis By end based his medical year, he wrote that she findings examination or of conditions not attempt should to return work on Janu- ary 3, patently per- April 8 or 1981. On obvious observable to he generally, the reported: sons same should be ex- cluded. In such ease the doctor should In my opinion, patient continues to brought he might be into court where be persistent cervical, have post traumatic *4 by cross-examined opposing counsel. discogenic syndrome thoracic and lumbar patient tempo- and that the a will retain diagnosis discogenic We the believe of a rary partial impairment of about of syndrome (ruptured 20% syndrome) disc falls in body the aas whole. I believe that the category that findings of which is not obvi- patient capable light is of performing patently ous or it observable and was sub- work, duty her, Ibut do concur with ject objection. to she is type unable to return to the of But, general in this case the ob work she previously doing. was She will jection 1, to Plaintiff’s Exhibit which exhib require year at least another of two it twenty-five consisted of pages, was not management sympto- conservative with preserve any sufficient to error. Where a matic treatment symptomolo- before her party offers several items as a unit and the gy will subside. opponent merely objects offer, to the whole 2, 1981, On October he wrote: parts of the are offer admissible there is Diagnoses persistent of post-traumatic overruling no error in general objection the chronic arthralgia shoulder; of the left specify which does not specific part the to post-traumatic cervical, chronic thoracic objection which a valid could be made. and discogenic syndrome lumbosacral Haddad, 624, Brown & Root v. 142 Tex. (ruptured syndrome) disc were made. (1944); 180 339 1 Ray, S.W.2d R. Texas Evidence,
In my opinion, (Texas patient Law of sec. 25 will retain a Practice 1980). permanent 3rd ed. disability body 20% trial court was not as whole, a required as a injuries. might result of to seek out what her have been expressed opinion as an in twenty-five a After the records by were identified page easily exhibit. Counsel could have evidence, custodian and offered in counsel part noted that of record where the for the my carrier said: “It’s objection that diagnosis opinion doctor’s and was con there is no in evidence record that tained, but no such effort was made. Point opinion of the doctor is based on reasonable of is Error No. Three overruled. probability.” medical points The next are an two attack holdings Under the in Otis Elevator upon sufficiency Company Wood, (Tex. the evidence. We v. 436 324 S.W.2d 1968) pass upon great Andrews, the no and Loper evidence v. 404 S.W.2d weight points (Tex.1966), of error under 300 the standard which re lies, Alviar, set in diagnosis a forth v. 395 based reasonable Garza S.W.2d (Tex.1965) Estate, certainty medical 821 King’s is and In re admissible. (1951). Tex. diagnosis disputed where the is and neces There sarily largely upon expert opinion, only rests was substantial evidence not from the Thus, not diagnosis treating admissible. a doctor but also from friends and ruptured herniated or support disc would fall in the associates to the verdict. The evi category. latter Bishop person v. Insurance dence a had reflects who been a years, during the course of many evidence adduced employee and reliable good de- shortly Having after sustain- trial. observed evidence returned work who velop trial, noting as injuries in an automobile acci- at the Court ing serious dent, but who has been unable to obtain Appeals did that the claimant had chosen proper- fall. The testify, Appellant’s retain since this counsel not jury obviously rejected the contention that ly requested special issues the fact prior injuries the cause of her employ- in the course of of Error Nos. present disabilities. Points ment.
Five and Six are overruled. original opinion should not be con- Our every a holding as that in case last contention is that strued conclusively special excluding testimony regard in bound court erred in conference. ing passenger the death of a the automo submitted a exception recog- argument by Appellant in 1977. A bill of made fails bile accident in perfected the accident Mrs. Sullivan perhaps to show that nize that reason was seriously in testify in Mrs. which Sullivan not was because determination did jured personal in friend was a close conference had been made at accident, she re Following “injury” killed. be no issue on that there would apparently no seri to work and had turned those employment” and with “course problems or mental which ous emotional counsel made issues out way being good disabled her from plaintiff as a wit- not use the decision excluding *5 employee. We find no error tactical reason. Had ness some Error No. proffered evidence. Point of pre- court entered an order after trial Seven overruled. have, conference, as it should that injury course of parties stipulated as trial court is af- judgment The certainly employment, those issues could firmed. jury to the after not have been submitted her case without testi- plaintiff FOR rested OPINION ON MOTION on those offering other evidence fying REHEARING issues. very has filed a forceful Appellant urges rehearing which it motion for in this we are Based the facts preserved complaint its about properly persuaded that the court’s error still charge and contends that it did the court’s failing requested issues to submit in our any error as we concluded not invite employment was invit- injury and course of notes: original opinion. The motion Appellant ed the issues which properly notes that Appeals Court Those quested at the conference. Appellant pre-trial requested were not conditioned issues conference special issues which assumed submitted case and plaintiff testifying in this in the course the fact of the trial court that representation employment. were not course of injury and again in the case. We contested argument states: could have been problem note strenuously that it in contends entry proper by the avoided injury, way admitted the fact order. employment by injury in the course of jury charge at preliminarily proposing a rehearing Appellant’s motion assuming pre-trial overruled. conference opinion of the Court two facts. The to indicate Appeals herein would seem preliminarily had sub-
that once requested special issues
mitted its before trial, change or withdraw it could never heard the requests it had
those after