Smith v. Harford Underwriters Ins. Co. (Tex.App.- Houston [14th Dist.] Oct. 6,
2009)(Frost)
(
workers compensation appeal by both sides, compensable injury)
The jury, as the sole judge of the credibility of the parties' witnesses and the
weight to be given to their testimony, determined that Smith did not sustain a
compensable injury on May 12, 2003.
AFFIRMED: Opinion by Justice Frost  
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00133-CV  Janice Smith v. Hartford Underwriters Insurance Company   
Appeal from 234th District Court of Harris County
Trial Court Judge:
Reese Rondon

M E M O R A N D U M   O P I N I O N

This appeal arises from the trial court's judgment affirming in part and reversing in part a
decision made by the Texas Workers' Compensation Commission regarding a benefits claim
made by an employee asserting that she was injured in the course of her work.  The employer's
insurance carrier denied benefits, and the employee sought relief from the Texas Workers'
Compensation Commission, which determined that the employee sustained a compensable
injury, but had no disability resulting from the injury.  The employee and the insurance carrier
both sought judicial review of the decision, and the employer was added as a party.  

The trial court determined that the employee had no compensable injury.  

We affirm.

I.  Factual and Procedural Background

Appellant Janice Smith was employed by KS Management Services, LLP.[1]  According to the
record, Smith was diagnosed with de Quervain's tenosynovitis, which she claims to have
sustained in the course of her work.  Appellee Hartford Underwriters Insurance Company denied
Smith's claims.

Smith sought review of her denied claims with the Texas Workers' Compensation Commission[2]
(“the Commission").  Following a hearing on the matter, the Commission rendered a decision,
making the following pertinent findings of fact and conclusions of law:

*        Smith sustained a compensable injury, de Quervain's tenosynovitis, on May 12, 2003,
which was causally related to her employment.

*        Smith has no disability resulting from the compensable injury.

The Commission ordered Hartford to pay Smith's benefits.

Hartford sought judicial review as to the Commission's determination that Smith sustained a
compensable injury.  Smith sought judicial review of the Commission's decision and joined KS
Management Services as a party to the suit.  In her live petition, Smith, acting pro se, alleged bad
faith claims against both Hartford and KS Management Services.  Smith also claimed that the
evidence presented at the Commission's hearing was insufficient to support the Commission's
findings that Smith did not have a disability resulting from the compensable injury.

Hartford's claims against Smith were consolidated with Smith's claims against Hartford and KS
Management Services.  The trial court granted partial summary judgment as to Smith's claims
against Hartford for bad faith.  The trial court granted interlocutory summary judgment as to
Smith's sole claim of bad faith against KS Management Services and ordered that Smith take
nothing on these claims against KS Management Services.

Following a trial, in which both Smith and Hartford presented evidence, the trial court submitted
three questions to the jury.  In answering the first question, the jury found that Smith did not
sustain a compensable injury on May 12, 2003, in the form of de Quervain's tenosynovitis.  
Because the jury answered the first question in this manner, the jury was not required to answer
the other two jury questions pertaining to disability.

Based on the jury's verdict, the evidence presented, and the applicable law, the trial court
affirmed the Commission's decision in part and reversed the decision in part.  The trial court
entered a final judgment that Smith did not sustain a compensable injury in the form of de
Quervain's tenosynovitis and that Smith did not have a disability resulting from the alleged injury.  
The trial court assessed all costs against Smith.  Smith brings this appeal seeking reversal of the
trial court's judgment.

II.  Analysis

Smith, acting pro se,[3] presents five issues for appellate review:

(1)     “Did the District Court issue of allowing the breach of good faith and fair dealing for an
interlocutory summary judgment on April 3, 2006 correctly represent the true issue of whether
Hartford did not know of the injury until December 2004 when the injury occurred May 12, 2003?"

(2)     “Did the District Court and Jury consider the issue that surgery was performed by Dr.
Varon on the left hand on December 2, 2004 for De Quervains Tenosynovitis followed by
physical therapy, steroid injections and pain management?  Did they consider the surgery still
needs to be performed on the right side and disability continues?"

(3)     “Did the District Court and Jury point out that Sharon Pacamo did report the injury to Royal
Sun and Alliance Corporate name Fire and Casualty Insurance?"

(4)     “Can the District Court and Jury surmise that I spoke without thinking and suffer from
memory loss and panic attacks when I made the statement 'I don't' care and I could not
remember due to stress?"

(5)     “Could the District court and Jury not see the point that Dr. Likeover did not examine me or
read my medical records and the diagnosis of 'Poor Protoplasm' was a joke?"

As to Smith's third issue, the record does not reflect, and Smith has not shown, that issues
involving actions taken by Sharon Pacamo, a KS Management Services employee, were
presented in the trial court nor does Smith point this court to any error committed by the trial
court.  Rather, the only issues before the trial court were whether Smith sustained a
compensable injury and whether disability resulted from the injury.  To preserve a complaint for
appellate review, a party must present the issue to the trial court and obtain an adverse ruling.  
See Tex. R. App. P. 33.1(a); GTE Mobilnet of S. Tex. Ltd. v. Pascouet, 61 S.W.3d 599, 620 (Tex.
App.- Houston [14th Dist.] 2001, pet. denied) (involving party who did not demonstrate
application of certain law to claims until party filed post-verdict motions, and thereby did not
preserve error because it failed to voice complaint to the trial court).  The record does not reflect
that the trial court or the jury considered any evidence of conduct by KS Management Services
as Smith now asserts on appeal.  We cannot reverse the trial court's judgment based on
complaints that Smith never raised at trial.  See Pascouet, 61 S.W.3d at 620.  Because Smith
failed to preserve error on her third issue, she has waived appellate review of this issue.  See
Tex. R. App. P. 33.1(a); Pascouet, 61 S.W.3d at 620.

We construe Smith's second issue as a challenge to the factual sufficiency of the evidence to
support the trial court's judgment that Smith did not sustain a compensable injury in the form of
de Quervain's tenosynovitis on May 12, 2003.[4]  When reviewing a challenge to the factual
sufficiency of the evidence, we examine the entire record, considering both the evidence in favor
of, and contrary to, the challenged finding.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  
After considering and weighing all the evidence, we set aside the fact finding only if it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.  Pool v.
Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).  The trier of fact is the sole judge of the
credibility of the witnesses and the weight to be given to their testimony.  GTE Mobilnet of S. Tex.
v. Pascouet, 61 S.W.3d 599, 615-16 (Tex. App.- Houston [14th Dist.] 2001, pet. denied).  We
may not substitute our own judgment for that of the trier of fact, even if we would reach a different
answer on the evidence.  Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998).  
The amount of evidence necessary to affirm a judgment is far less than that necessary to
reverse a judgment.  Pascouet, 61 S.W.3d at 616.

A “compensable injury" is defined as "an injury that arises out of and in the course and scope of
employment for which compensation is payable under this subtitle."  Tex. Labor Code Ann. §
401.011(10) (Vernon 2006); see Payne v. Galen Hosp. Corp., 28 S.W.3d 15, 17-18 (Tex. 2000).  
Any injury is considered to have been sustained in the “course and scope of employment" if the
injury results from “activity of any kind or character that has to do with and originates in the work,
business, trade, or profession of the employer and that is performed by the employee while
engaged in or about the furtherance of the affairs or business of the employer."  See Tex. Labor
Code Ann. § 401.011(12); see Payne, 28 S.W.3d at 18.  Because Hartford appealed the
Commission's decision as to a compensable injury, it had the burden to prove by a
preponderance of the evidence that Smith did not suffer a compensable injury on May 12, 2003.  
See Tex. Labor Code Ann. § 410.033 (Vernon 2006); City of Pasadena v. Olvera, 95 S.W.3d
494, 498 (Tex. App.- Houston [1st Dist.] 2002, no pet.).

The record reflects that Dr. Likeover, Hartford's only witness, opined at trial that Smith's condition
of de Quervain's tenosynovitis was not related to her work.  Dr. Likeover testified that Smith's
condition may have occurred as a “disease of life."  Dr. Likeover testified that he reviewed
Smith's medical records and Smith's deposition testimony.  Dr. Likeover offered his opinion that
Smith has multiple conditions that are diseases of life attributable to aging.  He testified that
because patients like Smith present with multiple medical problems, physicians refer to such
patients as having “poor protoplasm."  Dr. Likeover explained that with “poor protoplasm," Smith's
body is breaking down for various reasons.

Smith indicates in her fifth issue that Dr. Likeover's explanation for Smith's diagnosis of de
Quervain's tenosynovitis, attributing the condition to “poor protoplasm," was a joke.[5]  However,
at trial, Smith did not cross-examine Dr. Likeover or present evidence to support this contention.  
None of Smith's witnesses recalled that Smith sustained any work-related injury on May 12, 2003.

The jury, as the sole judge of the credibility of the parties' witnesses and the weight to be given
to their testimony, determined that Smith did not sustain a compensable injury on May 12, 2003.  
See GTE Mobilnet of S. Tex., 61 S.W.3d at 615-16.  Having considered all of the evidence in
favor of, and contrary to, the challenged finding, we cannot say that the evidence supporting the
jury's finding is so weak, or against the great weight and preponderance of the evidence, that the
jury's verdict should be set aside.  See generally Cain, 709 S.W.2d at 176; see also Lyons v.
State Office of Risk Management, No. 13-07-00449-CV, 2009 WL 2596053, at *6 (Tex. App.-
Corpus Christi Aug. 25, 2009, no pet.) (mem. op.) (concluding evidence was factually sufficient to
support finding that person did not sustain a compensable injury).  Therefore, we overrule
Smith's second issue.

Having overruled all of Smith's issues presented on appeal, we affirm the trial court's judgment.

/s/               
Kem Thompson Frost

Justice

Panel consists of Chief Justice Hedges, and Justices Yates and Frost.

[1]  Throughout the record, Smith's employer is referred to as Kelsey-Seybold Management Services, LLP or
Kelsey-Seybold Clinic.  However, we refer to this party by its correct name:  KS Management Services, LLP.

[2]  The Commission is now known as the Texas Department of Insurance, Division of Workers' Compensation.  
See Tex. Labor Code Ann. § 402.001(b) (Vernon 2006).  We refer to that authority as it existed during the time
period relevant to this case.

[3]  Though Smith is a pro se litigant, she is held to the same standards as licensed attorneys and must comply
with applicable substantive laws and rules of procedure.  See Mansfield State Bank v. Cohn, 573 S.W.2d 181,
184 (Tex. 1978); LaGoye v. Victoria Wood Condominium Ass'n, 112 S.W.3d 777, 787 (Tex. App.- Houston [14th
Dist.] 2003, no pet.).  Any other rule would give the pro se litigant an unfair advantage over a litigant who is
represented by trial counsel.  See Mansfield State Bank, 573 S.W.2d at 184; LaGoye, 112 S.W.3d at 787.

[4]  Although we construe Smith's second issue as a challenge to the sufficiency of the evidence, to the extent
that Smith has presented other issues in her appellate brief, Smith has failed to provide analysis or citations to
the record or legal authorities.  As a result of the inadequate briefing, Smith's remaining issues are waived.  See
Tex. R. App. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.- Houston [14 Dist.]
2005, no pet.) (holding that, even though courts interpret briefing requirements reasonably and liberally, parties
asserting error on appeal still must put forth some specific argument and analysis citing the record and
authorities in support of the arguments).

[5]  Although Smith presents this argument as part of her fifth issue in her appellate brief, she has waived this
argument because she has failed to adequately brief the issue and has provided no argument, citations to the
record, or any legal authority to support her contention.  See Tex. R. App. P. 38.1(h); San Saba Energy, L.P., 171 S.
W.3d at 338