Court of Appeals of Texas, Dallas.

TRANSPORTATION INSURANCE COMPANY, Appellant,

v.

Harold B. MEAD, Appellee.

No. 05-94-00015-CV.

|

July 27, 1994

Before KINKEADE, MALONEY and BARBER, JJ.

Opinion

KINKEADE, Justice

*1 Transportation Insurance Company appeals a judgment in favor of Harold B. Mead in this workers’ compensation case. In three points of error, Transportation Insurance contends that (1) the evidence established as a matter of law that it was entitled to a credit of $27,899.59 against the award to Mead and that the trial court erred in crediting only $9460, (2) the trial court’s finding of fact that it was entitled to a credit of only $9460 against the award to Mead was against the great weight and preponderance of the evidence, and (3) there was no evidence or insufficient evidence to support the weekly wage rate of $238 awarded to Mead. In one cross point of error, Mead contends that the trial court erred in admitting an affidavit that showed Transportation Insurance paid him benefits for a subsequent injury. Because the evidence was factually insufficient to support the $238 weekly wage rate awarded to Mead, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Mead was injured on July 3, 1990, while working for Langford Roofing Company. He appealed his final award from the Texas Workers’ Compensation Commission to the district court in Grayson County. He alleged that he was employed by Langford Roofing for 210 days in the twelve months preceding his injury and that he earned a weekly wage of $706.02. He requested compensation in the maximum amount of $238 per week for 401 weeks.

The case was tried before the court. Mead testified that he had worked for Langford Roofing for thirty-three years. He sustained an injury on July 3, 1990 while working for Langford Roofing. He received medical treatment, and his doctor gave him a full release to return to work on April 1, 1991. Mead stated that he worked between forty-six and forty-seven hours from April 1, 1991 to April 19, 1991. After April 19, Mead did not work again.

At the time of his July 3, 1990 injury, Mead was classified as a sheet metal worker and was earning $16.90 per hour. Mead testified that he loved his job and that he worked all the hours his employer would let him work. He went to work every day at 7:00 a.m. and took only one vacation in thirty-three years. He had worked 210 days during the year immediately preceding his injury.

The trial court entered judgment for Mead. It awarded Mead compensation for 401 weeks at the wage rate of $238 per week to be paid in a lump sum. The trial court entered findings of fact that (1) Mead suffered an injury at work on July 3, 1990 that left him totally and permanently disabled, (2) Mead was entitled to weekly benefits of $238 for 401 weeks, and (3) Mead worked the same job for more than 210 days within the twelve month period before his injury.

STANDARD OF REVIEW

Transportation Insurance’s points of error raise both no evidence and factual insufficiency arguments. In deciding a “no evidence” point, we consider only the evidence and reasonable inferences from that evidence which viewed in its most favorable light support the trial court’s finding and reject all evidence or reasonable inferences to the contrary. See Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); 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, Shumway v. Horizon Credit Corp., 801 S.W.2d 890, 894 (Tex. 1991). In deciding a “factual insufficiency” point, we review all the evidence, including any evidence contrary to the trial court’s finding, and decide whether the trial court’s judgment is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pfeffer v. Southern Tex. Laborers’ Pension Trust Fund, 679 S.W.2d 691, 694 (Tex. App.-Houston [1st Dist.] 1984, writ ref’d n.r.e.); Mercer, 715 S.W.2d at 697.

*2 When a party raises both no evidence and insufficient evidence points of error, we rule on the no evidence point first. Glover, 619 S.W.2d at 401; Mercer, 715 S.W.2d at 697. If there is more than a scintilla of probative evidence to support the trial court’s finding, we overrule the no evidence point and affirm the judgment unless a factual insufficiency point was also raised and we sustain it on the basis of a full review of the evidence. Mercer, 715 S.W.2d at 697.

WAGE RATE

In its third point of error, Transportation Insurance contends that there is no evidence or insufficient evidence to support the trial court’s finding that Mead was entitled to workers’ compensation benefits at the wage rate of $238 per week. It argues that there was no evidence of the number of hours Mead worked per day or his total earnings and, therefore, the trial court could not have calculated the wage rate.

We address Transportation Insurance’s no evidence point first. Considering only the evidence and reasonable inferences from that evidence which viewed in its most favorable light supports the trial court’s finding about the wage rate and rejecting all evidence or reasonable inferences to the contrary, we conclude that there was more than a scintilla of evidence from which to determine Mead’s wage rate. Mead testified that he worked for Langford Roofing for thirty-three years and that he had only one vacation during that time. At the time of his injury, he was a sheet metal worker earning $16.90 per hour. He worked as much as the company would let him and went to work at 7:00 a.m. every day. He worked 210 days in the year prior to his injury. Between April 1 and April 19, 1991, he worked between forty-six and forty-seven hours. We hold that this is more than a scintilla of evidence from which the trial court could have determined Mead’s weekly wage rate. We overrule Transportation Insurance’s third point of error to the extent that it complains there was no evidence to support the trial court’s wage rate finding.

Reviewing all the evidence, we conclude, however, that the trial court’s finding about Mead’s wage rate is so against the great weight and preponderance of the evidence as to be manifestly unjust. There was no evidence of the number of hours Mead worked or his total earnings in the twelve months before his injury. We, therefore, sustain Transportation Insurance’s third point of error to the extent it complains that the evidence was factually insufficient to support the trial court’s wage rate finding. Because of our disposition of Transportation Insurance’s third point of error, we need not reach its first two points of error or Mead’s cross point of error.

We reverse the trial court’s judgment and remand this case to the trial court for a new trial. See Tex. R. App. P. 81(b)(1); Glover, 619 S.W.2d at 402.