I concur in part and dissent in part.
The claimant plead an injury to his left hand, left arm, neck and body as a whole. He did not plead that any specific injury extended to and affected the body as a whole as to make a specific injury into a general injury. The record reflects that he only proved a specific injury to his left hand and wrist. If that injury did not extend to and affect the body as a whole, there was no issue for the jury as to a general injury. Mr. Mayes' testimony with regard to the injury was as follows:
'A. They were shoving at me and I still had a hold of his shirt. That is when the door got shut on my wrist.
'Q. That would be your left wrist?
'A. Left wrist, yes, sir. About that time I heard some officers come up behind me and with their help and mine, I was able to extricate myself from the door.
'Q. But they actually slammed the door on your hand?
'A. Yes, sir.
. . . . .
'Q. Okay. Now, it was about the 7th of January when you got your hand mashed in the door; right?
'A. Yes, sir.
. . . . .
'Q. Your hand was injured. You agree with me there?
'A. Yes.
. . . . .
'Q. But for a year and a half — I want to try to understand the pain. As far as you know, the pain for the first year and a half, if you moved your finger, it would bother you up to about mid forearm area; is that right?
'A. Up to my elbow, yes.
'Q. All right. Just below your elbow?
'A. Yes.'
He then testified that after a year and one-half when he moved his hand, the pain would radiate on up into his arm and the side of his neck.
The report from Dr. Younger, which claimant's counsel read to the jury, reflected a diagnosis of reflex sympathetic dystrophy which the doctor said: "I felt his injury is mostly likely related to his original wrist injury. . . ."
The testimony which the claimant offered from Dr. Finn, a neurosurgeon in Dallas was as follows:
*Page 909'Q. Have your reviewed your file before the deposition today?
'A. Yeah.
'Q. Do you recall specifically Mr. Mayes giving his history to you, what his complain [sic] was?
'A. Pain in the left upper extremity.
'Q. When you say left upper extremity, what do you recall?
'A. His left arm.
'Q. Left arm?
'Q. Arm and hand.
. . . . .
'Q. What were his primary complaints to you at the time that you saw Mr. Mayes?
'A. He was complaining of numbness in his left hand and left arm, especially between the ring and middle finger, and also pains of a burning nature radiating from his hand to his arm.
'Q. Up his arm?
'A. Up his arm. And also says he has some pain in the left side of his neck.
'Q. On evaluation or on your examination of him, did you find that his neck had a full range of motion?
'A. Yes.
'Q. And it was essentially non tender?'A. Correct.
'Q. So if there was any problem with his neck it was very minor?
'A. Right.'
Dr. Finn also made a diagnosis of reflex sympathetic dystrophy. And when asked about that diagnosis on the second deposition said:
'Q. So there is still a question today whether or not he has RSD?
'A. That's correct.
'Q. All right. And did I gather whether his symptoms are related to his initial hand injury in 1986?
'A. I remain fairly convinced that his symptoms are secondary to his injury.'
. . . . .
'Q. Doctor, that's assuming again that there is no intervening incident that he may have caused other damage to his arm or neck; is that right?
'A. That's correct.
'Q. I mean all you've been given is one set of facts, is that I've had that hand injury and therefore pain developed eventually?
'A. Right.'
In considering these facts, we must necessarily recognize that an injured worker does not establish his right to a judgment for a general incapacity by merely showing that a specific injury has affected the body generally and thereby caused incapacity. He must go further and obtain a finding that his incapacity was caused by an extension of the injury to some part of the body other than a specific member.Travelers Insurance Company v. Marmolejo, 383 S.W.2d 380 (Tex. 1964). Justice Norvell writing for the court inTexas Employers' Insurance Association v. Espinosa,367 S.W.2d 667 (Tex. 1963) said: "Specific injuries like all bodily injuries have their painful aftermaths and like undesirable consequences, but mere proof of this is insufficient in law to show an extension of a specific injury." The opinion notes that subjective complaints of pain and headaches following a specific injury do not establish an extension of the specific injury so as to affect the body generally. More recent cases also hold that pain alone from a specific member of the body extending to other areas of the body does not change the injury from a specific injury to a general injury. Western Casualty and Surety Company v.Gonzales, 518 S.W.2d 524 (Tex. 1975); Gallegos v.Truck Insurance Exchange, 546 S.W.2d 667 (Tex.Civ.App. — San Antonio 1977, writ ref'd n.r.e.).
The only trauma which Mr. Mayes sustained was to his hand and wrist. All of his complaints to the various doctors were with regard to the injury to his hand and wrist and the pain which radiated from that injury. The diagnosis of reflex sympathetic dystrophy is one of a condition marked by pain and swelling in a limb. 3 Schmidt, Attorney's Dictionary of Medicine, at R-50 (1989). There is no proof of a general injury and since the claimant did not plead that any specific injury extended to and affected the body generally, I find no harm in a question to the jury which inquired about a general injury. Without proof to raise an issue about a general injury, any error in the first series of issues was harmless error. Therefore, I dissent from that part of the majority opinion which sustains Points of Error Nos. One, Two, Three and Six.
I concur in that part of the majority opinion which holds that the court should not have submitted inferential rebuttal issues, and if such issues were raised, the trial court should have followed the holding in Burns v. Standard InsuranceCompany, 593 S.W.2d 309 (Tex. 1980), and submitted disjunctive issue. But, again I conclude that any error was harmless, just as the court did in Burns. The only difference being that in this case, the claimant had already been paid more in weekly compensation than he was entitled to recover under the jury's verdict.
I would affirm the judgment of the trial court. *Page 910