John Cox v. Centerpoint Energy, Inc. D/B/A Reliant Energy HL&P, Kenneth Raymond Dubois

Affirmed and Memorandum Opinion filed May 17, 2007 Affirmed and Memorandum Opinion filed May 17, 2007. In The Fourteenth Court of Appeals ____________ NO. 14-05-01130-CV ____________ JOHN COX, Appellant V. CENTERPOINT ENERGY, INC. D/B/A RELIANT ENERGY HL&P, AND KENNETH RAYMOND DUBOIS, Appellees On Appeal from the 280th District Court Harris County, Texas Trial Court Cause No. 03-47013 M E M O R A N D U M   O P I N I O N This is an appeal from a final judgment rendered on a jury=s verdict in favor of appellant, John Cox. Appellant challenges the factual sufficiency of the evidence supporting the jury=s apportionment of liability as well as the jury=s award of no damages for (1) physical impairment in the past and in the future; (2) physical pain and mental anguish in the future; and (3) the loss of future earning capacity. We affirm. Factual and Procedural Background A. Appellant=s Traffic Accident At the time of the events underlying this litigation, appellant was a truck driver operating out of Corpus Christi. On April 25, 2002 appellant was in Houston to pick up a ladder and other items and deliver them to Corpus Christi. On his way to pick up the ladder, appellant was traveling north on Telephone Road when Robert Blair pulled out of a parking lot in front of appellant=s truck to make a left turn to travel south on Telephone Road. Oncoming traffic prevented Blair from completing his left turn and he suddenly stopped his truck and trailer in the narrow painted median of Telephone Road, blocking appellant=s way. Appellant testified that Blair did not stop before pulling out into Telephone Road and that he was surprised when Blair stopped his truck and trailer in the median. Despite his surprise, appellant was able to stop his truck short of Blair. Appellee, Kenneth Raymond DuBois, a Centerpoint Energy, Inc. (ACenterpoint@) employee, was traveling north on Telephone Road behind appellant. A split second after appellant stopped, DuBois, unable to stop his truck in time, collided with the rear end of appellant=s trailer. At impact, appellant testified his body went forward slightly and that his truck tapped the back end of Blair=s trailer. The air bags in appellant=s and DuBois=s trucks did not deploy as a result of the collision. In addition, appellant reported to one of his treating physicians that the accident was a low impact collision. Finally, the front of appellant=s truck was not damaged as a result of the collision with Blair=s trailer. Following the collision, all three drivers pulled their vehicles into nearby parking lots to wait on the police. While they were waiting, appellant told DuBois and Blair that Blair had pulled out in front of him. The police accident report indicated the accident was minor, with no injuries. Once the police had completed their investigation at the scene, appellant continued on to pick up the ladder. From there, because his neck was stiff and his shoulder was bothering him, appellant went to Concentra Medical Clinic in Houston. X-rays taken there revealed no fractures or other injuries and appellant was instructed to follow up with the Concentra clinic in Corpus Christi. Appellant then drove his truck back to Corpus Christi. It was during this return trip to Corpus Christi that appellant began to experience even more pain in his shoulder. B. Appellant=s Neck and Shoulder Surgeries The day after his return home, appellant went to the Corpus Christi Concentra clinic. The Concentra doctors sent appellant to physical therapy, which was unsuccessful in resolving his neck and shoulder pain. Appellant was eventually referred to Dr. Borkowski, an orthopedic surgeon, for his neck pain, and Dr. Breckenridge, another orthopedic surgeon, for his shoulder pain. At that time, while he still had some neck pain, appellant=s chief complaint was his shoulder. When conservative treatment was not successful in relieving appellant=s neck and shoulder issues, both doctors informed appellant the remaining treatment option was surgery. Appellant was unwilling to undergo surgery at that time and he continued receiving conservative treatment. After the accident, appellant did not return to work until November 2002, when he accepted a position as a truck dispatcher. After appellant had worked for approximately a month and a half, the pain in the area between his neck and shoulder became so severe appellant was unable to continue working. As a result of appellant=s continuing neck pain, Dr. Borkowski recommended surgery and on January 23, 2003, Dr. Borkowski performed a diskectomy and fusion on appellant=s neck. Following the neck surgery, appellant was required to wear a neck brace for two weeks, then a soft collar for two months. Dr. Borkowski testified the one hour surgery was successful and appellant had no complications arising out of the surgery. Following the neck surgery, appellant still had pain in his left shoulder. Appellant returned to Dr. Breckenridge, who diagnosed appellant with rotator cuff tendinitis in his left shoulder. In July 2003 Dr. Breckenridge performed an arthroscopic procedure on appellant=s left shoulder. During the thirty minute operation, Dr. Breckenridge noted and repaired a small, partial tearing in appellant=s rotator cuff that had not been previously discovered. According to Dr. Breckenridge, the shoulder surgery was successful with no complications. Appellant had to wear a sling on his left arm for about a week following the surgery. C. Appellant=s Post-Surgery Condition Dr. Borkowski testified that, in his opinion, he did not expect appellant to experience chronic pain following the neck surgery. Despite Dr. Borkowski=s prognosis, following his neck surgery, appellant continued to report neck pain. Dr. Borkowski testified appellant had poor posture and he recommended rehabilitation to improve appellant=s posture and neck alignment. Dr. Borkowski also testified regarding his post-surgery recommendations for appellant. Dr. Borkowski recommended that (1) while appellant did not need any future medical treatment, he should still receive an annual examination of his neck, at a cost between $50 and $100; (2) appellant should use proper neck posture; and, (3) while he would not place any specific lifting restrictions on appellant, appellant should be careful when lifting. In the fall of 2003, appellant complained to Dr. Breckenridge that his left shoulder pain had gotten worse. Dr. Breckenridge testified he had no medical explanation for appellant=s continuing shoulder pain following the successful shoulder surgery. By September 30, 2003, Dr. Breckenridge was recommending that appellant take anti-inflammatories as needed for his left shoulder pain. Dr. Breckenridge performed an impairment rating on appellant and determined appellant has a 19% permanent impairment rating. In November 2003 Dr. Breckenridge released appellant for work with restrictions against heavy or repetitive overhead lifting. As for any potential future medical treatment, Dr. Breckenridge opined that appellant may require an occasional cortisone injection in addition to over-the-counter anti-inflammatories. In October 2004 appellant saw Dr. John Obermiller, who is board certified in physical medicine rehabilitation, for an independent medical examination. Dr. Obermiller agreed with Dr. Breckenridge=s 19% impairment rating and the restriction against heavy or repetitive overhead lifting. Dr. Obermiller also testified that appellant=s post surgery pain could be caused by scar tissue. Dr. Obermiller testified the appropriate remedy for appellant=s continuing complaints of pain would be anti-inflammatory medications, possibly cortisone injections, and therapeutic exercise. During trial appellant testified he still drives the same standard transmission truck for personal use that was involved in the April 2002 accident. Appellant also testified that his only non-work activity that was impacted by the April 2002 accident was fishing. Appellant testified that he could still fish, it is just not as easy as before. Finally, at the time of trial, appellant was still not working, but he was training for a new career as a licensed home inspector. Dr. Breckenridge had referred appellant to the Texas Rehabilitation Commission, which recommended home inspection because it offered appellant the opportunity to earn approximately the same amount of money as trucking. Appellant testified he would complete the training within a few months of the trial. D. Trial Testimony Regarding Appellant=s Pre-Accident Condition and Vehicle Damage During his deposition in this litigation, appellant testified he had never had any type of pain or problems with his neck, left shoulder, or left arm. Appellant also did not disclose any prior complaints about neck and left shoulder pain to the surgeons treating him. During trial, doctors Borkowski, Breckenridge, and Obermiller all initially opined that the problems that led to appellant=s surgeries were related to appellant=s April 2002 accident. However, evidence introduced during trial revealed that in November 1999 appellant saw his family physician, Dr. Castro, for neck and left shoulder pain that radiated into his arm and that Dr. Castro diagnosed appellant with a neck spasm and left shoulder tendinitis. When he learned of the prior complaints, Dr. Borkowski testified that appellant had a pre-existing condition in his neck and that, at a minimum, this condition was contributing to appellant=s symptoms. Dr. Breckenridge testified that appellant=s symptoms in November 1999 were virtually identical to the symptoms that he treated in 2002 and 2003. In addition, Dr. Breckenridge testified that, more often than not, rotator cuff damage, which includes partial tearing, does not occur from trauma, but instead happens gradually from aging, continued overuse, repetitive activity, or a combination of those factors.[1] Finally, Dr. Breckenridge conceded that he could not say whether the small, partial tear he had repaired in appellant=s left rotator cuff existed prior to the April 2002 accident. During trial appellant introduced into evidence a receipt showing work done on appellant=s truck following the accident, implying the damage was caused by the accident. However, during cross examination, appellant admitted items on the receipt should not have been included as the work performed was not related to the accident. E. The Jury=s Verdict The case was submitted to the jury and the jury awarded appellant: (1) $31,865.96 for past medical expenses; (2) $1,000.00 for future medical expenses; (3) $36,000.00 for loss of earning capacity in the past; and (4) $15,000.00 for physical pain and mental suffering in the past. The jury did not award appellant any damages for: (1) past or future impairment; (2) loss of earning capacity in the future; and physical pain and mental suffering in the future. Finally, the jury determined that Blair was 75% responsible for the accident while DuBois was only 25% responsible. Based on the jury=s answers, the trial court entered judgment in favor of appellant and against DuBois and Centerpoint, for $20,966.49. This appeal followed. Discussion In four issues, appellant challenges the factual sufficiency of the evidence supporting the jury=s apportionment of liability as well as the jury=s award of no damages for (1) physical impairment in the past and in the future; (2) physical pain and mental anguish in the future; and (3) the loss of future earning capacity. We address the damages issues first. A. Damages 1. Standard of Review To sustain a challenge to the factual sufficiency of a jury=s failure to award damages, we consider and weigh all of the evidence, both in support of and against the findings, in order to decide whether the verdict should be set aside. Doctor v. Pardue, 186 S.W.3d 4, 17 (Tex. App.CHouston [1st Dist.] 2006, pet. denied) (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). We will uphold the jury=s verdict unless it is so against the great weight and preponderance of the evidence as to be manifestly unjust or shocking to the conscience. Id. We may not substitute our judgment for that of the jury, even if the evidence would clearly support a different result. Nip v. Checkpoint Systems, Inc., 154 S.W.3d 767, 769 (Tex. App.CHouston [14th Dist.] 2004, no pet.). The jury is the sole judge of the credibility of the witnesses and the weight to the given to their testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). When someone suffers personal injuries, the damages fall within two broad categories: economic and non-economic damages. Id. at 763. Texas recognizes the following categories of non-economic damages: pain, suffering, mental anguish, disfigurement, and physical impairment. Id. at 769. These categories of non-economic damages may overlap. Id. at 770. When, as in this case, the jury=s failure to award damages in more than one overlapping category is challenged, we must first determine if the evidence unique to each category is factually sufficient. Id. at 775. If it is not, we must then consider all of the overlapping evidence, together with the evidence unique to each category, to determine if the total amount awarded in the overlapping categories is factually sufficient. Id. This standard of review gives due regard to a jury=s choice of whether to award damages and if so, how to categorize those damages that could reasonably fall into more than one category of damages. Id. In the damages question in this case, the jury had eight blanks to fill in: (1) past physical pain and mental anguish; (2) future physical pain and mental anguish; (3) past loss of earning capacity; (4) future loss of earning capacity; (5) past physical impairment; (6) future physical impairment; (7) past medical expenses; and (8) future medical expenses. None of the damages categories were defined. The jury was instructed to consider each element separately and to not include damages for one element in any other element. We must presume the jury followed this instruction unless the record demonstrates otherwise. Id. at 771. 2. The Jury=s Award of Zero Damages for Past and Future Physical Impairment is Not Against the Great Weight and Preponderance of the Evidence The jury awarded appellant zero damages for past and future physical impairment. Physical impairment, sometimes called loss of enjoyment of life, encompasses the loss of the injured party=s former lifestyle. General Motors Corp. v. Burry, 203 S.W.3d 514, 554 (Tex. App.CFort Worth 2006, pet. filed). In his first issue, appellant argues the objective evidence of his physical impairment is so overwhelming that the jury=s decision to award no damages is clearly wrong and unjust. In support of this argument, appellant points out that following the April 2002 accident: (1) he underwent physical therapy; (2) he had shoulder injections as a result of the pain he was experiencing; (3) he experienced numbness; (4) he underwent a nerve conduction study that demonstrated his nerve conduction was being affected by pressure on the nerve; (5) he underwent neck and shoulder surgery; (6) following the neck surgery he was required to first wear a neck brace and then a soft collar; (7) following the shoulder surgery he was required to wear a sling; (8) his surgeons identified objective physical injuries that were related to the April 2002 accident; (9) several doctors determined that he had a 19% whole body impairment; and (10) his ability to fish was impacted. Initially, while appellant emphasizes the objective evidence of his injury, the Texas Supreme Court has determined that a reviewing court should not conclude that a jury=s failure to award any damages for physical impairment is against the great weight and preponderance of the evidence simply because there is objective evidence of an injury. Golden Eagle Archery, Inc., 116 S.W.3d at 774. This is so because the determination that a plaintiff has not and will not suffer physical impairment apart from that already compensated in other categories of damages is uniquely within the jury=s province. Id. Here, without a definition of Aphysical impairment@ to guide it, the jury could have decided to compensate appellant for each of the items he identified above, with the exception of the impact on his fishing, under multiple categories, including past pain and mental suffering, past medical expenses, and past loss of earning capacity. Id. at 773. Accordingly, the only item of damage unique to physical impairment damages identified by appellant was the impact on his ability to engage in fishing. See id. at 772 (stating that if other elements such as pain, suffering, mental anguish, and disfigurement are submitted, there is little left for the category of physical impairment other than loss of enjoyment of life). With regard to fishing, appellant testified he could still fish, it was just more difficult than before the accident. The jury could have discredited appellant=s testimony in its entirety and decided his ability to fish was not impacted by the accident. See Peter v. Ogden Ground Servs., Inc., 915 S.W.2d 648, 650 (Tex. App.CHouston [14th Dist.] 1996, no writ) (holding if a plaintiff=s complaints are subjective in nature and incapable of direct proof, the trier of fact may award zero damages). Or, the jury could have credited appellant=s testimony and decided appellant should not receive any compensation for his alleged loss of lifestyle. Golden Eagle Archery, Inc., 116 S.W.3d at 773. As the evidence supporting the jury=s decision is not so against the great weight and preponderance of the evidence as to be manifestly unjust or shocking to the conscience, we overrule appellant=s first issue. 3. The Jury=s Award of Zero Damages for Future Pain and Mental Anguish is Not Against the Great Weight and Preponderance of the Evidence In his third issue, appellant argues the jury=s refusal to award damages for future pain and mental anguish is against the great weight and preponderance of the evidence. In support of his argument, appellant points out his own testimony, as well as that of his doctors, that he continued to have neck and shoulder pain following his two surgeries. Based on appellant=s continuing reports of pain, each of appellant=s doctors testified regarding appellant=s post-surgery pain. Dr. Borkowski, appellant=s neck surgeon, testified that (1) appellant=s neck surgery was successful, (2) he did not recommend any future medical treatment for appellant, (3) he would not impose any restrictions on appellant other than an admonition that he should be careful when lifting, (4) he did not anticipate that, following his neck surgery, appellant would experience chronic pain, and (5) that appellant had poor posture and that was a reason he prescribed physical therapy for appellant. Dr. Breckenridge, appellant=s shoulder surgeon, testified that (1) appellant=s shoulder surgery was successful, (2) there was no medical explanation for appellant=s continued reports of pain, (3) his only recommendations for appellant=s pain were anti-inflammatories as needed, and possibly cortisone injections. Finally, Dr. Obermiller, who saw appellant only one time for an independent medical examination, recommended that appellant use therapeutic exercise and anti-inflammatories to address his continued pain. Dr. Obermiller also testified that appellant might need occasional cortisone injections as well. The measure of damages in a personal injury case is not subject to precise mathematical calculation. Weidner v. Sanchez, 14 S.W.3d 353, 372 (Tex. App.CHouston [14th Dist.] 2000, no pet.). Each case must be measured by its own facts, and considerable discretion and latitude are given to the jury. Id. It is the jury=s unique province to resolve the speculative matters of future pain and mental anguish and the amount of damages attributable thereto. Id. As long as sufficient probative evidence exists to support the jury=s verdict, we will not substitute our judgment for that of the jury. Id. Here, appellant=s challenge to the jury=s refusal to award damages for future pain and mental anguish is based entirely on either his subjective testimony that he continues to experience pain, or the testimony of his doctors, which, in turn, was based entirely on appellant=s subjective reports that he continues to experience pain. Based on appellant=s inconsistent testimony regarding his pre-accident reports of similar pain, the jury was free to disbelieve appellant=s testimony regarding his continued pain and the doctor=s testimony based on appellant=s subjective reports. See Gonzalez v. Wal-Mart Stores, Inc., 143 S.W.3d 118, 123 (Tex. App.CSan Antonio 2004, no pet.) (holding a jury may ignore a complaining party=s subjective evidence); Waltrip v. Bilborn Corp., 38 S.W.3d 873, 880 n.1 (Tex. App.CBeaumont 2001, pet. denied) (stating the jury is free to believe or disbelieve the plaintiff=s subjective complaints of pain or the testimony of any other witness, including the plaintiff=s doctor, who testified he was relying on what the plaintiff told him); Rivas v. Garibay, 974 S.W.2d 93, 96 (Tex. App.CSan Antonio 1998, pet. denied) (holding a jury may disbelieve any witness, including a physician, even though that witness=s testimony is not contradicted). In addition, the jury could have decided appellant=s current pain was the result of pre-existing conditions or other causes, such as his poor posture. Gonzalez, 143 S.W.3d at 123. As stated above, the factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Id. at 124. The factfinder may believe one witness and disbelieve another, and resolve inconsistencies in testimony. Id. Keeping this in mind, we find the evidence is factually sufficient to sustain the jury=s finding of zero damages for future pain and mental anguish. We overrule appellant=s third issue. 4. The Jury=s Award of Zero Damages for Future Loss of Earning Capacity is Not Against the Great Weight and Preponderance of the Evidence In his fourth issue, appellant complains of the jury=s decision to award zero damages for future loss of earning capacity. In support of this issue, appellant cites his own testimony that he was no longer able to work as a truck driver due to his injuries from the April 2002 accident, as well as the testimony of Dr. Breckenridge and Dr. Obermiller that appellant would have permanent lifting restrictions and could no longer work as a truck driver for that reason. The proof of future loss of earning capacity is always uncertain and must be left largely to the discretion of the jury. Strauss v. Continental Airlines, Inc., 67 S.W.3d 428, 435 n.1 (Tex. App.CHouston [14th Dist.] 2002, no pet.). The measure of this type of damages is the plaintiff=s diminished earning capacity in the future directly resulting from the injuries he has sustained. Id. at 435. Recovery for loss of earning capacity is not based on actual earnings lost, but rather on the loss of the capacity to earn money. Id. In other words, loss of earning capacity encompasses the plaintiff=s ability to work after the date of trial. Metropolitan Life Ins. Co. v. Haney, 987 S.W.2d 236, 244 (Tex. App.CHouston [14th Dist.] 1999, pet. denied). Damages for loss of earning capacity do not have to be based on any specific degree of physical impairment, but can be based on a composite of all of the factors affecting earning capacity. Id. However, to recover for loss of earning capacity, a plaintiff must show that he has a physical impairment that affects his ability to earn a living. Id. at 245. In addressing this issue, appellant overlooks Dr. Borkowski=s testimony that he would not impose any specific restrictions on appellant=s work activity. The jury could have disbelieved the testimony highlighted by appellant and instead believed Dr. Borkowski=s and concluded that appellant did not have a physical impairment affecting his ability to earn a living. Gonzalez, 143 S.W.3d at 123. Appellant also does not address Dr. Breckenridge=s testimony that, if he had known about appellant=s history of shoulder tendinitis and degenerative changes in appellant=s cervical spine prior to the April 2002 accident, he would have cautioned appellant about continuing in a line of work that involved overhead lifting. The jury thus could have concluded that any physical restrictions on appellant=s ability to earn a living in the future were the result of pre-existing conditions and not the April 2002 accident. Id. Finally, appellant ignores his own testimony that he was receiving re-training for a career as a home inspector, a career that, within a short time after trial, would enable him to earn approximately the same income as his trucking business. Thus, the jury could have concluded that even if appellant was physically unable to continue working as a truck driver as a result of the April 2002 accident, his ability to earn the same income was not impacted. Strauss, 67 S.W.3d at 435. Because the evidence is factually sufficient to sustain the jury=s finding of zero damages for future loss of earning capacity, we overrule appellant=s fourth issue. B. Apportionment of Responsibility In his second issue, appellant challenges the jury=s apportionment of responsibility for the April 2002 accident between Blair and DuBois. 1. Standard of Review The jury is given wide latitude in performing its sworn duty to serve as the factfinder in allocating responsibility for an accident pursuant to section 33.003 of the Civil Practices and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ' 33.003 (Vernon 1997); Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 659 (Tex. App.CDallas 2002, pet. denied). When reviewing a factual sufficiency challenge, we consider, weigh, and examine all of the evidence, and sustain the challenge only if the evidence is so weak as to render the jury=s finding clearly wrong and manifestly unjust. Rosell, 89 S.W.3d at 659. Even if a different percentage allocation could be supported by the evidence, an appellate court may not substitute its judgment for that of the jury. Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex. App.CHouston [14th Dist.] 1998, pet. denied). 2. The Jury=s Allocation of Responsibility is Not Against the Great Weight and Preponderance of the Evidence Appellant argues the jury=s decision to assign 75% of the responsibility to Blair and only 25% to DuBois is against the great weight and preponderance of the evidence. In support, he cites his own testimony that (1) he saw Blair and had time to bring his truck to a stop; and (2) he heard DuBois state after the accident that, prior to the accident, he was looking out the window and did not see appellant=s brake lights. Appellant also cites DuBois=s testimony that, prior to the accident, he saw Blair preparing to make his turn across Telephone Road. In his recital of the evidence supporting his challenge, appellant overlooks other evidence also considered by the jury. This evidence includes the following: (1) Blair pulled out of a parking lot and across two lanes of Telephone Road without stopping first to check for traffic; (2) as oncoming southbound traffic on Telephone Road prevented his completion of his turn, Blair suddenly stopped in the narrow median, blocking appellant=s path; (3) appellant=s testimony that he would not have stopped at the point in Telephone Road where Blair stopped; (4) appellant=s testimony that he was surprised by Blair=s maneuver, had to stop suddenly, and was immediately struck from behind by DuBois; and (5) DuBois=s testimony that he had some responsibility for the accident as he was unable to stop quickly enough, but that Blair caused the accident by pulling into the narrow median and suddenly stopping his vehicle. The evidence recounted above, constitutes factually sufficient evidence that both Blair and DuBois were at fault. As there is factually sufficient evidence that both Blair and DuBois were at fault, we find no basis for interfering with the jury=s allocation of responsibility. Accordingly, we overrule appellant=s second issue. Conclusion Having overruled all of appellant=s issues on appeal, we affirm the trial court=s final judgment. /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed May 17, 2007. Panel consists of Justices Yates, Anderson, and Hudson. [1] Appellant=s work history reveals that prior to becoming a truck driver, he worked for eight or nine years at an auto parts warehouse that required over the head work loading parts onto and taking parts off storage shelves. In addition, as a truck driver, appellant was required to do frequent over the head work when he secured his loads onto his trailer. Dr. Borkowski testified that someone whose job involved frequent overhead use of their arms might be at an increased risk of contracting tendinitis.