Court of Appeals of Texas, Houston (14th Dist.).

UNION STANDARD INSURANCE COMPANY, Appellant,

v.

Martha A. RAMIREZ, Appellee.

No. C14-89-01014-CV.

|

July 5, 1990.

Before PAUL PRESSLER, CANNON and ELLIS, JJ.

OPINION

PAUL PRESSLER, Justice.

*1 This is an appeal of a workers compensation case brought by the appellee. Appellee was a mobile phlebotomist for the Gulf Coast Blood Bank who allegedly injured herself lifting a cooler containing packets of blood. The jury found that her injury was in the course and scope of her employment, and that she was totally and permanently disabled. We affirm.

All four of appellant’s points of error allege either “no evidence” or “insufficient evidence” to support various findings. In reviewing “no evidence”, or legal insufficiency points of error, an appellate court is to consider only the evidence and inferences that tend to support the finding, and disregard all evidence and inferences to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex. 1985); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951). When considering “insufficient evidence”, or factual insufficient points of error, this court must consider and weigh all the evidence both in support of and contrary to the challenged finding. The finding must be upheld unless the evidence is so weak or against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. In re King’s Estate, supra; Sheridan & Son Co. v. Seminole Pipeline Co., 731 S.W.2d 620, 623 (Tex. App.–Houston [1st Dist.] 1987, no writ). When both types of points of error are raised, as here, the “no evidence” point must be examined first. Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981).

In its first point of error, appellant asserts that there is no evidence or insufficient evidence to support the jury’s finding that appellee’s injury was a producing cause of any total incapacity. In a related point of error, number two, appellant asserts a lack of evidence to support the jury’s finding in question number three that the injury suffered on September 30, 1985 was the producing cause of any total or permanent incapacity beginning on October 6, 1985. Testimony was introduced at trial from the orthopedic surgeon who had performed appellee’s two back surgeries. He stated that he had told her to advise any future employer that she was not physically capable of repeated bending, stooping, or lifting over an eight hour day. His prognosis was that appellee’s back condition was “chronic”, meaning that she would have good days and bad days but that her physical condition would remain, on the average, the same. He further stated that a job that required repeated lifting of heavy objects would potentially aggravate her condition. Appellee testified that she is now unable to do household tasks, such as mowing the lawn or vacuuming. Appellee currently works in a physician’s office and is not allowed to do certain duties, such as pushing examining beds or wheelchairs. Appellee also stated that she does not have a lifetime contract with her current employer and that if she has another surgery her job might be terminated.

*2 Appellant argues that since appellee was a phlebotomist at the time of her injury and now has a job which is still in the medical field, the third element required to uphold a finding of total and permanent incapacity under Texas Employer’s Ins. Ass’n v. Bartee, 757 S.W.2d 451 (Tex. App.– Houston [1st Dist.] 1988, writ denied) has not been met. Bartee states that “a person’s disability is total within the meaning of the Compensation Act if he can no longer secure and hold employment for physical labor such as he was required to do prior to his injury. It does not mean that he must be wholly unable to do any work at all”. Bartee at 455 (emphasis in the original). Appellant’s reliance upon Bartee is misplaced. Total incapacity does not imply absolute physical inability to perform any kind of labor. A finding of such disability is not precluded merely because an injured worker must resume work because of economic necessity. Transamerica Insurance Company of Texas v. Hernandez, 769 S.W.2d 608, 613 (Tex. App.–Corpus Christi 1989, writ denied). Commercial Insurance Co. of Newark, N.J. v. Puente, 535 S.W.2d 948, 950 (Tex. Civ. App.–Corpus Christi 1976, writ ref’d n.r.e). Furthermore, an injured worker may be able to earn money at a job not requiring manual labor and still be totally disabled under the Act. Standard Fire Ins. Co. v. Simon, 474 S.W.2d 530 (Tex. Civ. App.–Dallas 1971, no writ). Proof of the duration and extent of a disability is at best an estimate which must be determined by a jury from all the pertinent facts before it. Reina v. General Accident Fire and Life Assurance Corp., Ltd., 611 S.W.2d 415, 416 (Tex. 1981). There is sufficient evidence that appellee is totally and permanently incapacitated within the meaning of the Compensation Act. Appellant’s first and second points of error are overruled.

In its third point of error, appellant asserts that there is no evidence or insufficient evidence that appellee’s injury resulted in a reduction of earning capacity. Appellant relies upon Employers Reinsurance Corp. v. Holland, 347 S.W.2d 605 (Tex. 1961) for the proposition that it was necessary for appellee to introduce evidence of her average weekly wage rate during disability. Employers Reinsurance, and its progeny address situations where the finder of fact held that an on the job injury produced a partial incapacity alone; or a partial incapacity for some time period and then total incapacity. The jury in the instant case found appellant to be totally incapacitated with no period of partial incapacity. Therefore, partial incapacity was not a factor, and appellant’s reliance upon Employers Reinsurance is misplaced. During the trial, interrogatories answered by the appellant were read into the record wherein appellant had agreed that the proper compensation rate for any period of total incapacity was $217 per week. This is sufficient evidence upon which the jury could have based its award. Finally, “no evidence” points of error must be preserved through one of the following procedural steps in the trial court: (1) a motion for instructed verdict; (2) a motion for judgment n.o.v.; (3) objection to the submission of the issue to the jury; (4) a motion to disregard the jury’s answer to a vital fact issue; or, (5) a motion for new trial. Aero Energy, Inc. v. Circle C. Drilling Co., 699 S.W.2d 821, 822 (Tex. 1985). Appellant failed to raise this “no evidence” point in any of these five ways and has failed to preserve error. See Tex. R. App. P. 52. Appellant’s third point of error is overruled.

*3 Appellant asserts under its fourth point of error that there is insufficient evidence that appellee’s injury was in the course and scope of her employment. At trial, there was testimony from the appellee’s supervisor. She testified that she saw appellee lift the cooler filled with packets of blood on September 30, 1985 and carry it into the blood bank’s offices. She further stated that it was within the course and scope of appellee’s employment to carry the cooler. The appellee complained of a pain in her back after lifting the blood, and the supervisor wrote down the incident for later reference. Appellee’s hospital records were introduced at trial to document her treatment and show her doctor’s opinions as to what caused the back pain. One physician stated that appellee had either an aggravation or an onset of a new injury to her lower back related to a lifting episode on or about September 30, 1985. Appellee, herself, testified that she had never had a serious physical injury before, and that she could connect nothing other than the picking up of the cooler to her back pain. The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Rego v. Bannon, 682 S.W.2d 677, 680 (Tex. App.– Houston [14th Dist.] 1984, writ ref’d n.r.e). In light of the evidence introduced, it was reasonable for the jury to attribute appellee’s injury to her employment. Point of error number four is overruled.

The judgment of the trial court is affirmed.

Do Not Publish – TEX. R. APP. P. 90.