Court of Appeals of Texas, Dallas.

The CITY OF DALLAS, Appellant

v.

Herbert A. BIBLE, Appellee

No. O5–94–01989–CV.

|

April 26, 1996.

Before BARBER¹, JAMER and WRIGHT, JJ.

OPINION

WRIGHT, Justice.

*1 The City of Dallas appeals the trial court’s judgment providing that Bible is entitled to workers’ compensation benefits for a permanent, partial incapacity. In two points of error, the City of Dallas argues: (1) the finding that Bible’s incapacity was permanent was against the great weight and preponderance of the evidence, and (2) the trial court erred in entering judgment because the “evidence was clear that appellant’s incapacity was a continuation of his January 6, 1979 injury.” We overrule the City of Dallas’ points of error and affirm the trial court’s judgment.

BACKGROUND

Bible was a Dallas police officer for twenty-nine years. In January of 1979, Bible slipped and fell on ice while on patrol. He injured is neck and left shoulder in the fall. He was treated for his injuries and returned to work. In the following years, Bible suffered additional neck and shoulder problems. Evidence was presented linking the further problems to the physical demands of Bible’s duties as a police officer. Bible’s neck and shoulder problems required surgery on more than one occasion. Bible’s physical condition deteriorated to the point that he could no longer perform his job duties and he retired in February of 1989. Bible presented expert testimony linking the various physical stresses he suffered in the course of his career to the deterioration of his physical condition which rendered him incapable to perform his duties as a police officer. Bible also presented expert testimony showing that his incapacity was permanent.

In 1992, Bible suffered a stroke. The stroke impaired his speech and his ability to concentrate and respond to questions.

In August of 1990, Bible sued the City of Dallas² seeking workers’ compensation benefits. In his petition, Bible asserted he suffered an occupational injury or disease³ as a result of “[r]epetitious physical traumatic activities.” The case was tried to the court. The trial court entered judgment in Bible’s favor. The trial court also rendered findings of fact and conclusions of law which provided in part as follows:

Herbert Bible sustained repetitious physical traumatic activities while performing his duties as an employee of the City of Dallas.

The repetitious physical traumatic activities sustained by Herbert Bible while in the course and scope of his employment with the City of Dallas is [sic] a producing cause of a partial incapacity, which is permanent.

The cumulative date of the incapacity sustained by Herbert Bible is the 14th day of February, 1989.

The partial permanent incapacity sustained by Herbert Bible resulted in a loss of earning capacity beginning on the 14th day of February, 1989.

LEGAL AND FACTUAL SUFFICIENCY OF THE EVIDENCE

A. Standard of Review

When reviewing no evidence points, we consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Responsive Terminal Sys., Inc. v. Boy Scouts of Am., 774 S.W.2d 666, 668 (Tex.1989); Dupree v. Texas Dep’t of Protective & Regulatory Servs., 907 S.W.2d 81, 83 (Tex.App.—Dallas 1995, no writ). We must consider the evidence in the light most favorable to the verdict. See Havner v. E–Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex.1992). It is not within our power to second guess the fact finder unless only one inference can be drawn from the evidence. Havner, 825 S.W.2d at 461. If there is more than a scintilla⁴ of evidence to support the finding, the no evidence challenge fails. Dupree, 907 S.W.2d at 83; see Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex.1987).

*2 In reviewing factual insufficiency points, we review all of the evidence in the record, including any evidence contrary to the verdict. Plas–Tex., Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Dupree, 907 S.W.2d at 83. We will set aside a jury’s finding on the basis of a factual insufficiency or great weight and preponderance point only if we determine that the evidence is factually insufficient or so against the great weight and preponderance of the evidence as to be manifestly unjust, shocking to the conscience, or clearly demonstrating bias. Ames v. Ames, 776 S.W.2d 154, 159 (Tex.1989); Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 652–53 (Tex.1988); Pool, 715 S.W.2d 629, 635 (Tex.1986); Pilkington v. Kornell, 822 S.W.2d 223, 230–31 (Tex.App.—Dallas 1991, writ denied). If we are inclined to reverse on the basis of factual insufficiency or great weight and preponderance point, we must “detail the relevant evidence and clearly state why the jury’s finding is factually insufficient or is so against the great weight and preponderance as to be manifestly unjust; why it shocks the conscience; or clearly demonstrates bias.” Pool, 715 S.W.2d at 635. Additionally, we must set forth in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Id. If we sustain a factual insufficiency or great weight and preponderance point, we can only remand the case. “Our present Constitution empowers the courts of appeals to ‘unfind’ facts, even if they cannot ‘find’ them.” Pool, 715 S.W.2d at 634. We cannot substitute our interpretation of the evidence for that of the factfinder even if a different answer could be reached on the evidence. See Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988).

B. Application of Law to Facts

The gravamen of the City of Dallas’ sufficiency claim is that Bible’s stroke, not what happened to him on the job, was the cause of his disability after December, 1992. The record does not support the City of Dallas’ position.

As noted above, Bible presented expert testimony showing that he suffered a permanent, partial incapacity as a result of repetitive traumas suffered while in the course and scope of his employment. The trial court found that the permanent, partial incapacity started on February 14, 1989. The City of Dallas does not challenge this finding directly. Rather, it asserts that Bible should not recover for his permanent, partial incapacity after the date Bible suffered the stroke.

The evidence shows that Bible’s occupational injury resulted in the deterioration of his physical condition and retirement on February 14, 1989. The fact that Bible’s physical condition may have worsened as a consequence of a subsequent stroke is irrelevant to his entitlement to compensation benefits for his earlier occupational injury or disease.⁵ Bible proved he suffered a compensable occupational injury or disease prior to his stroke. Further, the City of Dallas failed to prove the extent of the disability caused by the stroke. Bible testified that the stroke affected his speech and his ability to think. However, the record before us shows that Bible was able to testify and communicate effectively. Bible’s testimony was coherent and grammatically correct. There is little evidence showing that Bible suffered significant, permanent incapacity as a consequence of the stroke.

*3 There was legally and factually sufficient evidence to support the trial court’s findings that the repetitious, traumatic, physical activities experienced by Herbert A. Bible, while in the course and scope of his employment with the City of Dallas, was the producing cause of a partial incapacity, which was permanent. The trial court’s findings were not against the great weight and preponderance of the evidence. We overrule the City of Dallas’ first point of error.

THE EARLIER COMPENSATION CLAIM

In its second point of error, the City of Dallas argues that the trial court erred in entering judgment for Bible because he had filed a compensation claim on the January, 1979 injury. We do not reach the merits of the City of Dallas’ argument under its second point of error. The City of Dallas has not cited any authority supporting its second point of error. Therefore, it has waived it on appeal. See Tex.R.App. P. 74(f); New York Underwriters Ins. Co. v. State Farm Mut. Automobile Ins. Co., 856 S.W.2d 194, 204 (Tex.App.—Dallas 1993, no writ); Mayfield v. Dean Witter Fin. Servs., Inc., 894 S.W.2d 502, 506 n. 1 (Tex.App.—Austin 1995, writ denied). We overrule the City of Dallas’ second point of error.

We affirm the trial court’s judgment.

	Footnotes
1		The Honorable Will Barber participated in the submission of this case but did not participate in the issuance of this opinion.
2		The City of Dallas self-insures for workers’ compensation purposes.
3		We note that repetitive, physical trauma conditions such as Bible’s are generally characterized as occupational diseases. See Service Lloyds Ins.l Co. v. Bowser, 837 S.W.2d 749, 755 (Tex.App.—Fort Worth 1992, no writ); Texas Employers’ Ins. Ass’n v. Ramirez, 770 S.W.2d 896, 899 (Tex.App.—Corpus Christi 1989, writ denied); Davis v. Employers Ins. of Wausau, 694 S.W.2d 105, 107 (Tex.App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.). As the classification of Bible’s condition as an injury or disease is irrelevant to our disposition of this appeal, we do not address the issue.
4		“When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, no evidence…. However, there is some evidence, more than a scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact.” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983).
5		The death of a workers’ compensation claimant will terminate the claimant’s entitlement to benefits if the injury is general and the claim has not been reduced to final judgment. Antwine v. Dallas Indep. Sch. Dist., 698 S.W.2d 226, 228 (Tex.App.—Dallas 1985, writ ref’d n.r.e.). However, the City of Dallas has provided us with no authority that subsequent deterioration of a claimant’s physical condition, short of death, impairs the claimant’s entitlement to compensation for an occupational injury or disease previously suffered. We are unable to find any such authority.