Court of Appeals of Texas, Dallas.

CITY OF GARLAND (Self–Insured), Appellant,

v.

Leslie KUERBITZ, Appellee.

No. 05–97–01336–CV.

|

Nov. 12, 1999.

Before Justices LAGARDE, WRIGHT, and MALONEY.¹

OPINION

WRIGHT.

*1 City of Garland appeals the judgment, following a trial to the court, in favor of Leslie Kuerbitz on her workers’ compensation claim.² Garland presents three issues: (1) whether Kuerbitz’s injury caused a temporary total loss of earning capacity; (2) whether her injury caused a permanent partial loss of earning capacity; and (3) whether the trial court failed to apply the proper definitions of “total” and “partial” incapacity in making the findings of fact and conclusions of law. We resolve the issues against Garland and affirm the trial court’s judgment.

FACTUAL BACKGROUND

Kuerbitz was a training coordinator with the Garland Police Department. As training coordinator, Kuerbitz taught CPR classes and produced training films. Both of these duties required a great deal of physical activity, including lifting heavy objects, stooping, and bending. On November 14, 1990, she injured her back in the course and scope of her duties. On January 15, 1992, Kuerbitz aggravated her back injury while moving heavy objects as part of her job. She was no longer able to lift heavy objects, but continued with her job in spite of the pain. She tried to get other officers to move heavy equipment for her, but she occasionally had to do so herself in spite of the pain.

In September 1993, Kuerbitz was told she could not keep her job as training coordinator. She spent a month looking for a job outside the Garland Police Department, but she was unable to find work. With the help of a coworker, who contacted the Garland mayor and city manager, Kuerbitz secured another position with the Garland Police Department as a crisis counselor. Although this job required less heavy lifting than the training coordinator position, the pain in her back, neck, shoulders, and arms grew worse. Nonetheless, Kuerbitz continued to work, even on days when she thought she should not. She had to bring ice packs to work to combat the intense pain she suffered. On June 21, 1994, Kuerbitz underwent surgery to correct a disc in her back. Her doctor released her to return to work on August 23, 1994.

Kuerbitz’s doctors advised her not to lift objects weighing more than ten pounds, not to lift any object above the ninety-degree level, not to perform repetitive stooping and bending, and not to sit or stand or work at a computer keyboard for long periods. However, despite her physical limitations, her job as a crisis counselor requires that she occasionally sit for long periods of time, and work extensively at a computer keyboard, all of which intensifies the pain in her back, neck, shoulders, and arms. She has retained her job as a crisis counselor and has received merit raises for her good work. Kuerbitz now makes more money than she did before her injury. Kuerbitz testified that the only work she missed because of the injury was the two months she was undergoing and recovering from surgery in 1994.

After trial, the trial court entered findings of facts and conclusions of law. The trial court found that Kuerbitz was totally incapacitated between January 15, 1992 and August 23, 1994, and that she was permanently partially incapacitated beginning August 23, 1994. At trial, the parties stipulated that Kuerbitz’s hourly wage before her injury was $16.92. At the time of trial, Kuerbitz’s hourly wage had increased to $21.05. Nonetheless, the trial court found that Kuerbitz’s earning capacity had decreased to $300 per week. The trial court awarded her workers’ compensation benefits totaling $92,994.48. This appeal followed.

Standard of Review

*2 Findings of fact in a case tried to the court have the same force and effect as a jury’s verdict on special issues. See Gregory v. Sunbelt Sav., F.S.B., 835 S.W.2d 155, 158 (Tex.App.—Dallas 1992, writ denied); City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.). We review the trial court’s findings of fact by the same standards that are applied in reviewing the evidence supporting a jury’s answers. See Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.—Houston [14th Dist.] 1990, no writ).

In reviewing a no-evidence point of error, we consider only the evidence and inferences that support the challenged finding, disregarding all contrary evidence and inferences. See Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex.1990); Gregory, 835 S.W.2d at 158. We uphold the trial court’s findings if there is more than a scintilla of evidence to support them. See Stedman v. Georgetown Sav. & Loan Ass’n, 595 S.W.2d 486, 488 (Tex.1979).

In reviewing a factual sufficiency point of error, we consider all of the evidence. We set aside a finding only if the evidence is so weak or the finding is so against the great weight and preponderance of the evidence that it is wrong and manifestly unjust. See Gregory, 835 S.W.2d at 158.

Challenges to the trial court’s conclusions of law are reviewed as a matter of law, not on sufficiency of the evidence grounds. See McLendon v. McLendon, 862 S.W.2d 662, 674 (Tex.App.—Dallas 1993, writ denied); Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex.App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.), overruled on other grounds by Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 894 (Tex.1991). An erroneous conclusion of law is not binding on this Court. See Bantuelle v. Williams, 667 S.W.2d 810, 818 (Tex.App.—Dallas 1983, writ ref’d n.r.e.) (per curiam). When a party attacks conclusions of law on appeal, we have the power and the duty to independently evaluate those conclusions. See MJR Corp. v. B & B Vending Co., 760 S.W.2d 4, 10 (Tex.App.—Dallas 1988, writ denied). A trial court’s application of law to facts is accorded limited deference. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992, orig.proceeding). A failure of the trial court to analyze or apply the law correctly is an abuse of discretion. See Walker, 827 S.W.2d at 840.

Total Incapacity

In its first issue, Garland questions whether Kuerbitz’s November 14, 1990 injury caused a total loss of earning capacity from January 15, 1992 to August 23, 1994. “Total incapacity” does not mean absolute inability to perform any kind of labor; rather, it means that a person is disabled from performing the usual tasks of a workman, not merely the usual tasks of any particular trade, to such an extent that he cannot get and keep employment.³ Texas Employers’ Ins. Ass’n v. Hawkins, 369 S.W.2d 305, 306–07 (Tex.1963); Gonzalez v. Texas Employers’ Ins. Ass’n, 772 S.W.2d 145, 147 (Tex.App.—Corpus Christi 1989, writ denied); Ramirez, 770 S.W.2d at 901.

*3 There is no fixed rule of evidence by which to prove disability. The factfinder must determine the extent and duration of a disability based on all the pertinent facts. See Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 310 (Tex.1986); Texas Employers’ Ins. Ass’n v. Ramirez, 770 S.W.2d 896, 901 (Tex.App.—Corpus Christi 1989, writ denied). A return to work is some evidence that the factfinder may consider when making a disability determination; however, this evidence is not conclusive. Navarette, 706 S.W.2d at 310; Farmland Mut. Ins. Co. v. Alvarez, 803 S.W.2d 841, 847 (Tex.App.—Corpus Christi 1991, no writ); Gonzalez, 772 S.W.2d at 147. The courts permit workers’ compensation awards for total incapacity even though the person continues to work after being injured and earns a higher salary than before his injury. See Maryland Cas. Co. v. Duke, 825 S.W.2d 232, 234 (Tex.App.—Texarkana 1992, writ denied); see also Commercial Ins. Co. v. Kempe, 440 S.W.2d 919, 921 (Tex.Civ.App.—Dallas 1969, no writ) (evidence was factually insufficient to support jury finding of permanent total incapacity, but would support temporary total incapacity followed by permanent partial incapacity).

To support its position that Kuerbitz did not suffer a temporary total loss of earning capacity, Garland relies on a series of cases reversing jury findings of permanent total incapacity because the person continued to work. See, e.g., Kempe, 440 S.W.2d at 921; Texas Employers’ Ins. Ass’n v. Vineyard, 316 S.W.2d 156, 160 (Tex.Civ.App.—Dallas 1958, no writ); Texas Employers Ins. Ass’n v. Booth, 113 S.W.2d 231, 235–36 (Tex.Civ.App.—Dallas 1938), rev’d on other grounds, 132 Tex. 237, 123 S.W.2d 322 (Tex.1938).⁴ These cases, however, are distinguishable because the trial court did not find Kuerbitz suffered permanent total incapacitation.

The evidence in this case supports the trial court’s finding that Kuerbitz suffered temporary total incapacitation between the aggravation of her back injury on January 15, 1992 and her release to return to work following surgery on August 23, 1994. During the time preceding her surgery, Kuerbitz continued to work, but she was physically unable to perform much of her job as training coordinator due to the heavy lifting. Kuerbitz testified to the intense pain she suffered working as a crisis counselor prior to her operation. During a period of time when Kuerbitz was told her employment with the Garland Police Department would end, she was unable to secure other employment. We hold the trial court did not err in determining Kuerbitz suffered temporary total incapacitation. We resolve the first issue against Garland.

Partial Incapacity

*4 In its second issue, Garland contends the trial court erred in determining that Kuerbitz’s injury caused a permanent partial incapacity. Partial loss of earning capacity under the Workers’ Compensation Act results when the employee suffers a physical incapacity less than total and a reduction in earning capacity. See Lozano v. Vigilant Ins. Co., 721 S.W.2d 285, 286 (Tex.1986) (per curiam); Select Ins. Co. v. Boucher, 561 S.W.2d 474, 478–79 (Tex.1978). A person’s actual wages are not the same as earning capacity. See Boucher, 561 S.W.2d at 479; Texas Employers’ Ins. Ass’n v. Frankum, 145 Tex. 658, 201 S.W.2d 800, 802 (Tex.1947); Travelers Ins. Co. v. Walkovak, 390 S.W.2d 75, 79–80 (Tex.Civ.App.—Houston 1965, writ ref’d n.r.e.). If a worker’s capacity and efficiency to work are not the same as before the injury, the worker is entitled to compensation, regardless of the fact that he continues to work and is paid as much or more than he earned prior to or at the time of the injury. Spillers v. City of Houston, 777 S.W.2d 181, 185 (Tex.App.—Houston [1st Dist.] 1989, writ denied). Thus, a person can earn more following an injury yet still suffer a loss of earning capacity. See Walkovak, 390 S.W.2d at 79–80. There is no precise formula to determine a claimant’s future ability to earn wages. The fact finder reviews all of the circumstances presented to it, and from those circumstances deduces a reasonable estimate of a claimant’s future ability to earn wages. See INA of Texas v. Torres, 808 S.W.2d 291, 297 (Tex.App.—Houston [1st Dist.] 1991, no writ).

Although Garland contends there is no evidence to support the trial court’s finding that Kuerbitz’s earning capacity was decreased following her injury, we disagree. Dr. Daughety testified that he agreed with Kuerbitz’s doctors’ recommendations that she not lift objects weighing more than ten pounds, not lift any object above the ninety-degree level, not perform repetitive stooping and bending, and not sit, stand, or work at a computer keyboard for long periods. In Dr. Daughety’s opinion, even if Kuerbitz followed these recommendations, she would continue to have symptoms and the symptoms would become worse. Dr. Daughety also believed that she was not physically qualified for her present job because it sometimes requires her to sit for long periods of time and to lift objects. Dr. Daughety further testified that Kuerbitz’s condition disqualified her from eighty-five to ninety percent of the jobs in the workplace. Kuerbitz testified that because of her physical condition, she did not believe that she would be able to find employment. She also testified that in September 1993, after Kuerbitz was told she could not keep her job as training coordinator, she spent a month looking for a job outside the Garland Police Department, but she was unable to find work.

*5 Considering the evidence regarding Kuerbitz’s physical limitations and her employability should she lose her current job with Garland, we conclude that there is legally and factually sufficient evidence to support the trial court’s finding that Kuerbitz’s earning capacity was decreased following her injury. See Navarette, 706 S.W.2d at 309 (evidence supported finding of total loss of use of claimant’s leg where she was working under restrictions but would have difficulty procuring or retaining employment); Kempe, 440 S.W.2d at 921; Torres, 808 S.W.2d at 297–98; Spillers, 777 S.W.2d at 186–87. We resolve the second issue against Garland.

Definitions

In its third issue, Garland contends the trial court erred by applying incorrect definitions of “partial incapacity” and “total incapacity” in its findings of fact and conclusions of law. Garland asserts the trial court used Kuerbitz’s definitions. However, the record does not show which definitions the trial court used. The findings of fact and conclusions of law do not contain the definitions used by the trial court, and Garland did not request the trial court to make a finding of fact or conclusion of law stating the definitions of total and partial incapacity used to determine Kuerbitz’s incapacity. In the absence of any showing to the contrary, we presume the trial court applied the correct law. See Esparza v. Scott & White Health Plan, 909 S.W.2d 548, 553 (Tex.App.—Austin 1995, writ denied); State Nat’l Bank v. Academia, Inc., 802 S.W.2d 282, 290 (Tex.App.—Corpus Christi 1990, writ denied). Accordingly, Garland’s argument lacks merit. We resolve the third issue against Garland.

Accordingly, we affirm the trial court’s judgment.

	Footnotes
1		Honorable Frances Maloney, Retired Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
2		Because Kuerbitz’s injury occurred in 1990, this case is under the “old” workers’ compensation act. See Act of May 26, 1981, 67th Leg., R.S., ch. 324, § 1, 1981 Tex. Gen. Laws 3290, 3290 (Tex.Rev.Civ.Stat.Ann. art.8306, § 10), repealed by Act of Dec. 12, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 1, 114; Act of Mar. 6, 1969, 61st Leg., R.S., ch. 18, § 4, 1969 Tex. Gen. Laws 48, 49 (Tex.Rev.Civ.Stat.Ann. art.8306, § 11), repealed by Act. of Dec. 12, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 1, 114.
3		There is some disagreement concerning the definition of “total incapacity.” Some courts define the term thus: “Total incapacity occurs when a worker is disabled to the extent that employment at labor of the class performed when injured cannot be procured or retained.” See Maryland Cas. Co. v. Duke, 825 S.W.2d 232, 234 (Tex.App.—Texarkana 1992, writ denied).
4		Other cases cited by Garland include, National Union Fire Ins. Co. v. Soto, 819 S.W.2d 619, 623 (Tex.App.—El Paso 1991, writ denied); Texas Employers’ Ins. Ass’n v. Terry, 656 S.W.2d 233, 235 (Tex.App.—El Paso 1983, no writ); Liberty Mut. Fire Ins. Co. v. Lynch, 624 S.W.2d 698, 700–01 (Tex.App.—El Paso 1981, no writ); Liberty Mut. Fire Ins. Co. v. Applewhite, 612 S.W.2d 281, 282 (Tex.App.—El Paso 1981, writ ref’d n.r.e.); Lumberman’s Mut. Cas. Co. v. Villalpando, 605 S.W.2d 705, 709 (Tex.Civ.App.—Corpus Christi 1980, no writ); Texas Employers’ Ins. Ass’n v. Flores, 603 S.W.2d 330, 333 (Tex.Civ.App.—El Paso 1980, no writ); Texas Employers’ Ins. Ass’n v. Ontiveros, 570 S.W.2d 98, 100–01 (Tex.Civ.App.—El Paso 1978, no writ); Commercial Ins. Co. v. Puente, 535 S.W.2d 948, 952–53 (Tex.Civ.App.—Corpus Christi 1981, writ ref’d n.r.e.); Texas Employers’ Ins. Ass’n v. McClellan, 490 S.W.2d 946, 949–50 (Tex.Civ.App.—Amarillo 1973, writ ref’d n.r.e.); Travelers Ins. Co. v. Smith, 435 S.W.2d 248, 251–52 (Tex.Civ.App.—Texarkana 1968, writ dism’d w.o.j.); Fidelity & Cas. Co. v. Burrows, 404 S.W.2d 353, 355 (Tex.Civ.App.—San Antonio 1966, writ ref’d n.r.e.); Texas Employers’ Ins. Ass’n v. Hawkins, 387 S.W.2d 469, 471–72 (Tex.Civ.App.—Amarillo 1965, writ ref’d n.r.e.); Indemnity Ins. Co. of N. Am. v. Cady, 356 S.W.2d 323, 324–25 (Tex.Civ.App.—San Antonio 1962, no writ); Texas Employers’ Ins. Ass’n v. Norton, 278 S.W.2d 287, 288 (Tex.Civ.App.—Amarillo 1955, writ dism’d w.o.j.); American General Ins. Co. v. Amerson, 187 S.W.2d 912, 916 (Tex.Civ.App.—Galveston 1945, writ ref’d w.o.m.).