Court of Appeals of Texas, Houston (1st Dist.).

ST. PAUL FIRE & MARINE INSURANCE COMPANY, Appellant,

v.

Marcelo REYNA, Jr., Appellee.

No. 01-90-00949-CV.

|

Aug. 08, 1991.

Before TREVATHAN, C.J., and DUNN and DUGGAN, JJ.

DUGGAN, Justice.

O P I N I O N

*1 This is an appeal from a claimant’s judgment entered on a jury verdict in a worker’s compensation case. The only dispute concerns the duration of the claimant’s total incapacity. We affirm.

Appellee, Marcelo Reyna, Jr., a laborer whose duties include heavy lifting, worked during 1984 for Williams Brothers Construction Co., Inc. Reyna injured his back on November 12, 1984 while unloading 100-pound cement bags from a truck. He filed a worker’s compensation claim alleging total and permanent incapacity. Appellant, St. Paul Fire & Marine Insurance Co. (”the carrier”), provided worker’s compensation for Williams Brothers. The Industrial Accident Board entered an award in favor of Reyna on May 23, 1988, and the carrier appealed to the district court.

The parties stipulated to Reyna’s injury in the course and scope of his employment on November 12, 1984, coverage, adequate notice of the claim, a compensation rate of $203 per week, and the carrier’s payment of 45 weeks of total temporary disability benefits for which it was entitled to a credit. The parties’ only dispute was the duration of Reyna’s total disability. In response to two questions submitted, the jury found that Reyna’s injuries were a producing cause of total incapacity,¹ and that the total incapacity began November 12, 1984 and ended November 12, 1994. The court entered judgment for Reyna for $75,979.45.² The carrier’s motion for new trial was overruled, and this appeal followed.

In three points of error, the carrier contends that although there may be enough evidence for the jury to conclude that Reyna was partially incapacitated, the jury’s finding that he was totally incapacitated is so against the evidence as to be manifestly unjust.

In point of error one, the carrier asserts the trial court erred in failing to grant its motion for new trial because the jury’s finding in answer to question number one–that Reyna’s injury of November 12, 1984 was a producing cause of total incapacity–was so against the great weight and preponderance of the evidence as to be manifestly unjust.

In reviewing a point of error asserting that a finding is “against the great weight and preponderance” of the evidence, we must consider and weigh all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Shell Pipeline Corp. v. Coastal States Trading, Inc., 788 S.W.2d 837, 844 (Tex. App.–Houston [1st Dist.] 1990, writ denied); Holgin v. Texas Employer’s Ins. Ass’n, 790 S.W.2d 97, 99 (Tex. App.–Fort Worth 1990, writ denied) (applying the standard of review in a worker’s compensation case). Considering all the evidence, if a jury finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the point should be sustained, regardless of whether there is some evidence to support it. Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959); In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951); Holgin, 790 S.W.2d at 99. The burden was on Reyna to persuade the jury by a preponderance of the evidence that he was incapacitated to the degree he claimed. Holgin, 790 S.W.2d at 100.

*2 Because the carrier challenged factual sufficiency, we review all the evidence submitted by the parties. At trial, the carrier introduced the testimony of Dr. William Francis, a board- certified orthopedic surgeon who specializes in spinal surgery, who testified that Reyna complained of lower back pain when he first saw him on January 25, 1985, about two and one-half months after the injury. Dr. Francis treated Reyna from January 1985 until May 1987. Dr. Francis testified that Reyna came to his office on June 5, 1985, and told the doctor that he was steadily improving and that he wished to return to work at that time. Dr. Francis stated that Reyna could return to work on June 10, 1985. Dr. Francis gave his opinion that as of May 1987, Reyna was “a fit individual with a normal back at that time, and there was no reason that he could not return to a laboring position with normal restrictions.” Dr. Francis further testified that, in his opinion, Reyna was able to return to work in November of 1985, and certainly in May of 1987, and that as of May 13, 1987, he concluded Reyna was fit, with a normal back, and should be able to perform the usual and customary duties of a laborer. Dr. Francis stated, “[I]n 1987, [Reyna] should be able to have gone out and continue lifting hundred-pound sacks of cement.”

The carrier next introduced the testimony of Dr. S. Gopal Krishnan, a board-certified orthopedic surgeon. Dr. Krishnan first saw Reyna on December 7, 1987. Dr. Krishnan testified that as of September 7, 1987, Reyna was “neurologically intact” and showed no evidence of a neurological deficit. However, Dr. Krishnan further testified that in December of 1988, he “would not clear [Reyna] for construction work,” that Reyna would not be able to do construction work involving heavy lifting, and that he would place Reyna in jobs that did not involve repeated bending and stooping. Dr. Krishnan stated, “I’ll place no restrictions on the use of his upper extremities for fine manipulation, use of a vehicle, getting in and out of a car or a pickup.” Dr. Krishnan stated that Reyna could return to work in some other field and could work in a different capacity and that he would assign Reyna to jobs that required “less than twenty-five pounds” of lifting.

The carrier concedes that “it is possible that a jury might have found that Reyna was partially incapacitated based upon Dr. Krishnan’s opinion that he should be restricted to lifting no more than 25 pounds, and upon Reyna’s testimony that he could not perform the task of his prior employment . . . .” (Emphasis added.)

The records of the company doctor, Dr. W.M. Palm, were also before the jury. Dr. Palm referred Reyna to Dr. Thomas O. Moore and to Dr. Allen Criswell. In summary, Dr. Palm’s records indicated Reyna had an ability to return to work with no restrictions. Dr. Moore suggested an ability to return to work, and that Reyna should experience no residual disability as of April 16, 1987. Dr. Criswell’s records reflect an ability to return to work with no restrictions.

*3 By contrast, Reyna testified that he felt he could not currently perform the type of work that he was performing immediately before the injury and did not know when he could return to that kind of work. In his experience with several construction companies in the Houston area, Reyna stated that there was no work available that did not involve heavy lifting. He testified that he has attempted to find and apply for light work, but none was available in the Valley, where he lives, and that the Texas Employment Commission has told him that there were no jobs involving light work. Reyna previously picked cotton; harvested tomatoes, cabbage, lettuce, and citrus fruits; worked in a cannery in Illinois; and performed construction work. Reyna testified that he could not perform the type of jobs he was doing before his injury or any of the previous occupations he had engaged in during his entire work life, and that the “pain, weakness, and numbness” to his legs was the same at the time of trial as it was on the date of his injury. He had four years of formal education in Guanajuato, Mexico.

First, the jury’s finding that Reyna’s accident was a producing cause of the total disability is not against the great weight and preponderance of the evidence. The evidence–namely, the reports of examining physicians Thomas O. Moore and Allen Criswell–make clear that the accident of November 12, 1984 injured Reyna to some degree. The question is whether the accident caused Reyna total disability.

“Total incapacity occurs when a workman is disabled by injury to such an extent he cannot procure and retain employment at labor of the class he was performing when injured; the term does not imply absolute physical inability to perform any kind of labor.” Commercial Ins. Co. v. Puente, 535 S.W.2d 948, 950 (Tex. Civ. App.–Corpus Christi 1976, writ ref’d n.r.e.). “Partial incapacity is any degree of incapacity less than total incapacity, and means that a person’s earning capacity is reduced because he can perform only part of the usual tasks of a workman.” Id.

“Proof of the duration and extent of a disability from an injury is, like the assessment of damages in a personal injury action, at best an estimate which must be determined by a jury from all the pertinent facts before it.” Reina v. General Accident Fire & Life Assurance Corp., 611 S.W.2d 415, 416 (Tex. 1981). “A jury may reasonably infer permanent disability from circumstantial evidence produced by lay witnesses. This is true even if such evidence is contradicted by the testimony of medical experts.” Id. at 417; (citing Travelers’ Ins. Co. v. Wade, 373 S.W.2d 881 (Tex. Civ. App.– Dallas 1963, writ ref’d n.r.e.)). “The issue as to disability may be established by the worker alone.” Id., (citing Insurance Co. of Texas v. Anderson, 272 S.W.2d 772 (Tex. Civ. App.–Waco 1954, writ ref’d n.r.e.)).

*4 Reyna told the jury about his education, employment history, current physical complaints (pain in legs), and his inability to find suitable work. Reyna’s uncontradicted testimony about his current employment situation and physical condition supports the finding of total incapacity. See, e.g., Reina, 611 S.W.2d at 416 (jury finding of total and permanent incapacity sustained against a no evidence challenge, where claimant could not find work and testified she was unable to work because of physical limitations). Had there been evidence in the record that suitable work was available, but Reyna did not accept it, then the jury’s finding could arguably be against the great weight and preponderance of the evidence. Commercial Ins. Co., 535 S.W.2d at 950. The jury finding of total incapacity is not against the great weight and preponderance of the evidence.

Point of error one is overruled.

In point of error two, the carrier asserts the trial court erred in failing to grant its motion for new trial because there was no evidence to support the jury’s finding that the ending date of any total incapacity was November 12, 1994. The carrier’s argument is based on the fact that no one testified as to the exact date found by the jury, November 12, 1994.

As noted above, “Proof of the duration and extent of a disability resulting from an injury is like the assessment of damages in a personal injury action, is at best, an estimate which must be determined by a jury from all the pertinent facts before it. Reina, 611 S.W.2d at 416 (emphasis added); see also INA v. Torres, 808 S.W.2d 291 (Tex. App.–Houston [1st Dist.] 1991, n.w.h.) (rejecting a “no evidence” challenge to a workers’ compensation finding in similar circumstances); Transport Ins. Co. v. Garcia, 580 S.W.2d 96, 98 (Tex. Civ. App.–Houston [1st Dist.] 1979, writ ref’d n.r.e.). If, based on the evidence, the jury’s answer is reasonable, we may not substitute our opinion for that of the jury. Torres, 808 S.W.2d at 298.

Reyna did not provide a precise date on which his disability might end. It is undisputed that he was injured in 1984. He testified at trial in 1990 that he was in pain and that he could not find light duty work. The jury could infer from Reyna’s testimony and estimate that he would be permanently and totally disabled through November 12, 1994, if not longer.

Point of error two is overruled.

In point of error three, the carrier contends that the jury’s finding of total incapacity lasting until November 1994 is against the great weight and preponderance of the evidence. This is basically a repetition of the first point of error, except as to duration.

The same evidence that allowed the jury to infer that Reyna was totally disabled, i.e., Reyna’s testimony about his current physical condition and his current employment situation, allowed it to conclude that the total disability could last until November 1994. See Reina, 611 S.W.2d at 416. In short, Reyna introduced evidence that he is totally disabled for an indefinite period by showing current physical pain, inability to return to his previous job, and his inability to obtain suitable (light duty) alternate employment. The carrier responded with physicians who stated that it is presently physiologically possible for Reyna to perform light duty work. Presented with conflicting evidence about Reyna’s physical complaints and lacking any conflicting evidence of suitable alternate employment, the jury’s finding of total and permanent disability lasting until November 12, 1994 cannot be considered against the great weight and preponderance of the evidence.

*5 Point of error three is overruled.

The judgment is affirmed.

Do not publish. TEX. R. APP. P. 90.

	Footnotes
1		The jury’s charge included the following definitions: “Total incapacity does not mean absolute inability to perform any kind of labor, but means that a person is disabled from performing the usual tasks of a worker, not merely the usual tasks of any particular trade or occupation, to such an extent that he cannot get and keep employment.” “Partial incapacity means any degree of incapacity less than total incapacity, whereby a person suffers a reduction in earning capacity.”
2		$52,883.55 in benefits from the date of the accident, November 12, 1984, until the date of judgment, June 26, 1990, plus $23,095.90 for the present value of total disability benefits from the date of judgment, for a total of 401 weeks of total disability.