Court of Appeals of Texas, Dallas.

Miguel O. GARZA, Appellant,

v.

STANDARD FINANCIAL INDEMNITY CORPORATION, Appellee.

No. 05-91-01132-CV.

|

Nov. 15, 1999.

Before Justices LAGARDE, WRIGHT, and MALONEY.¹

OPINION

LAGARDE.

*1 Appellant Miguel O. Garza appeals the trial court’s judgment, based upon a directed verdict, that he take nothing from appellee Standard Financial Indemnity Corporation (“Standard”).² Garza complains in three points of error that the trial court erred in directing a verdict because: (1) Garza’s own testimony provided sufficient evidence to present the case to the jury; (2) the testimony of two other witnesses provided sufficient evidence to present the case to the jury; and, (3) in any event, the parties stipulated to the facts for which the trial court concluded there was no evidence to present to the jury. For reasons given below, we overrule Garza’s three points of error and affirm the trial court’s judgment.

Garza contended that he suffered an on-the-job injury at work on April 28, 1989. He applied for workers’ compensation benefits. Although he was awarded some benefits, he did not receive as much as he thought he was entitled to receive. He sued,³ asserting that the calculation of his average weekly wage at the time of his injury was too low. Specifically, he asserted that:

[Garza] alleges that at the time of this injury, he was earning weekly wages in excess of $357.00 per week and that he had been engaged for the same or another employer at least 210 days in the year immediately preceding his injuries and his average wage during the days actually worked was in excess of $70.00 per day. In the alternative, [Garza] will show that the average weekly wage of any employee working in the same or similar employment as [Garza], in the same place or a neighboring place for at least 210 days immediately preceding [Garza’s] injuries, was in excess of $357.00. In the further alternative, if it is impossible to compute [Garza’s] average weekly wages by either of these calculations, then a just and fair calculation of [Garza’s] average weekly wage at the time of the injury would be $357.00 or more.

Standard filed an answer, in which it specially denied, under oath, that Garza had an average weekly wage of $357 and that the applicable compensation rate for Garza’s claim would be $238 a week.

The case was called to trial, on the jury docket, on April 16, 1991. At that time it had been on file for over six months. The record does not reflect that Garza conducted any discovery.⁴ The trial court offered to continue the case, to allow Garza time for discovery. Garza’s attorney put Garza on the stand, and the following occurred:

[Garza’s attorney]: Miguel, did I explain to you that we have the opportunity to come to court on another day?

[Garza]: Yes.

Q Did you understand what I asked you?

A Yes.

Q And did I tell you that there was some matter, some investigation that I still haven’t done that normally I do before I go to the court? Did I explain that to you?

A Yes.

Q And did I explain that we have an opportunity for a continuance for another day in court and not today that I might be able to get all that stuff before we come to court?

*2 A Yes.

Q And if I got that stuff, we would know what kind of attack the insurance would have?

A Yes.

Q Knowing all that, was it your wish to go ahead with the trial today and not wait?

A Yes.

Q Is that what you want?

A Yes, that’s what I want.

On that basis, Garza’s attorney refused the trial court’s offer of a continuance and elected to go to trial.

Garza testified on the merits. He started working at the shipping and receiving department for Shoney’s, Inc., on May 10, 1988. The job entailed lifting and moving produce packages, some of which weighed as much as fifty pounds. He earned $6.75 an hour. When the accident occurred on April 28, 1989, he had also been working part-time for about four months, as a janitor, for two hours every weeknight. He earned $600 a month on that job.

Garza testified that, on April 28, 1989, he was standing on a platform four or five feet high, lifting some produce, when he lost his balance and started to fall. Not wanting to fall on his back, he spun around and jumped from the platform. Although he landed on his feet, he immediately felt a pain in his back. He went to Joe Mitchell, the director of operations at Shoney’s, to tell him about the accident. Mitchell did not send him to a doctor. Garza tried to continue working for about two weeks, but he claimed that the pain incapacitated him. Mitchell sent him to a company doctor. The doctor restricted him to light duty work. He was advised to lift nothing more than fifteen pounds. Shoney’s told him that it had no light duty work for him to do, so his employment with Shoney’s ended.

Garza’s attorney then asked him, “Would it be safe to say that you worked 250 days in the year before your accident at Shoney’s?” Garza replied, “I can’t tell you exactly the days. That’s more or less.” His attorney then asked, “Okay. So you don’t disagree if your employer says that you worked 250 days.” Standard objected to the question as leading, and the trial court sustained the objection. Garza’s attorney then asked him, “Do you or do you not disagree with your employer if your employer says-,” but Standard objected on the ground that there was no predicate to the question. Shoney’s had provided no testimony and no records. Although Garza’s attorney responded to the objection, he later withdrew the question.

On cross-examination, Standard showed Garza the claim form that he had filled out in June 1989. Garza identified his signature. The claim form stated that Garza’s average weekly wage at the time of the accident was $270.⁵ Garza testified that he signed the form unaware of what he was doing, because the attorney who was assisting him at the time (not his trial counsel) told him to sign. Standard offered the claim form into evidence. The trial court asked Garza if he had any objection. Then:

[Garza’s attorney]: Yes, your Honor. The basis for my objection is that it is a paper produced for the Industrial Accident Board. As such, it is not admissible, there being a specific provision in the workers’ comp act that matters before the Industrial Accident Board are not admissible unless there is a direct impeachment, and I submit to the Court that he was not impeached on this matter.

*3 As a matter of fact, he said that he didn’t fill this up. He didn’t even know what he was signing at the time that he signed it. And I also submit to the Court that that’s a practice of a lot of lawyers to get them to sign, and then they prepare whatever they want to prepare.

THE COURT: You’re not suggesting you know that from personal experience, are you, Counsel?

[Garza’s attorney]: Not on the record, your Honor.

THE COURT: Well, we’re definitely on the record, and you’re testifying, apparently, as an officer of the Court. So I suggest you be most careful.

[Garza’s attorney]: Well, your Honor, I would like to bring this man, if you want me to, and show that he makes people sign like that, because he has already told me about it, but I can’t. In any event, it’s a matter of the Industrial Accident Board.

The trial court initially sustained the objection. But Standard argued that the claim form was admissible to impeach Garza’s testimony. During trial, Garza testified that his weekly earnings included his earnings from his part-time work, as well as benefits from Shoney’s. The claim form, however, did not account for the part-time earnings or any benefits. On reconsideration, the trial court admitted it into evidence.⁶ The court then recessed for the day.

The parties then entered into a stipulation, which Garza’s attorney read into the record: “The stipulation is that Miguel Garza did work for 250 days and his average-well, his earnings were $11,744.06, and this according to the wage statement that was supplied by Shoney’s. Consequently, his average weekly wage back then at Shoney’s was $270.98.”

Within minutes, however, counsel began quarreling about the meaning of the stipulation. Standard’s counsel asserted that they had stipulated to the wage rate, while Garza’s counsel insisted that they had stipulated only to Garza’s average weekly wages. That is, Standard’s counsel took the stipulation to embrace the entire amount of wages Garza was earning at the time of the accident, while Garza’s counsel took the stipulation to cover only the wages Garza was earning at Shoney’s at that time. Garza interpreted the stipulation to mean that he could still present evidence of his part-time earnings. As a result of this disagreement, Standard’s counsel moved to withdraw the stipulation. He specifically requested that it be withdrawn “as to the number of days worked while [Garza] worked at Shoney’s.” The trial court permitted the stipulation to be withdrawn, on the rationale that, if the parties could not agree on what the stipulation was, there was never a stipulation in the first place.

The night before, after the court had recessed, Garza had retrieved his paycheck stubs from Shoney’s and his income tax records and calculated how many days he had worked at Shoney’s. His attorney asked him, “Miguel, can you tell the jury how many days you worked in the year immediately preceding the injury that you suffered at Shoney’s?” Standard objected, on the ground that the question had been asked and answered. The trial court sustained the objection.

*4 Garza then announced that he had issued a subpoena for Joe Mitchell, the director at Shoney’s, whom he wanted to call as a witness. The trial court recessed for an extended lunch break, to give Mitchell time to arrive. Fifteen minutes after the court reconvened, Mitchell still had not arrived. Another witness that Garza wanted to call, however, was in the courtroom, and the trial court told Garza to proceed with her.

The witness was Barbara Jean Worley, a claims examiner for Standard. When Garza’s case went into litigation, she was given charge of his file. Garza asked her if she knew exactly what was contained in the file. Worley replied that she could not know without referring to the file. Garza asked her if she had brought the file with her. She had not. Garza asked her, “So if you didn’t bring it with you, what is it that-what’s the purpose of your showing up here?” Standard objected to the question as an attempt to embarrass the witness. The trial court sustained the objection and, after it did so, Garza withdrew the question.

Garza showed her a wage statement, purportedly prepared by Shoney’s, giving the wages that Garza earned in the year before the accident and the number of days worked. Garza asked her if the wage statement was an accurate copy of the wage statement that was in Garza’s file. Worley replied that she was not even sure there was a wage statement in Garza’s file. She admitted that she had seen a wage statement for the Garza case before. When she looked at Garza’s copy, she said, “I have no particular reason to believe or disbelieve it is [accurate].” She did not prepare the form and had no personal knowledge of the information contained on the form. Specifically, she was not the one who calculated the number of days that Garza worked in the year preceding the accident. Garza attempted to introduce his copy of the wage statement into evidence. The trial court sustained Standard’s objection that Garza had not laid the proper predicate for its admission as a business record.

By the time Worley finished her testimony, Mitchell had arrived, and Garza called him to the stand. He brought along some of Garza’s records from Shoney’s. What he had showed that, at the time of the injury, Garza was making $6.75 an hour.

He had no copy of a wage statement. He did not know the number of days that Garza had worked in the year preceding the injury. If anyone had such a record, it would be in Shoney’s home office in Nashville. Mitchell had Garza’s attendance sheet for 1989. From January 1, 1989, to April 28, 1989 (the date of the injury), Garza called in sick five times. Mitchell had no attendance record for Garza from 1988; he was not even sure that Shoney’s kept attendance records in 1988.

Garza closed his case. Standard moved for a directed verdict. It did so on the basis that Garza had introduced no evidence of the number of days he worked in the 365 days preceding his accident. Garza argued that he did. Alternatively, Garza argued that the jury be permitted to determine what a “just and fair” compensation would be. The trial court granted a directed verdict that Garza take nothing.

*5 When reviewing the grant of a directed verdict, we determine whether any probative evidence exists to raise a fact issue on the material questions presented. Sibai v. Wal-Mart Stores, Inc., 986 S.W.2d 702, 705 (Tex.App.-Dallas 1999, no pet.). We consider all the evidence in the light most favorable to the party against whom the trial court directed a verdict and disregard all contrary evidence and inferences. Id. The trial court properly directs a verdict if: (1) a specifically indicated defect in the opponent’s pleading makes it insufficient to support a judgment; (2) the evidence conclusively proves facts that establish the movant’s right, or negate the nonmovant’s right, to judgment; or (3) the evidence raises no fact issue on any material fact that the nonmovant must establish to prevail. Id. When evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise of suspicion of its existence, the evidence is no more than a scintilla and in legal effect is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983). When no probative evidence exists on an ultimate fact issue, we affirm the directed verdict. Sibai, 986 S.W.2d at 705.

Whether Garza worked more or fewer than 210 days in the 365 days preceding his accident is a material fact in this case. The statute in effect at the time Garza’s claim arose provided that:

“Average weekly wages” shall mean:

(1) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, for at least two hundred ten (210) days of the year immediately preceding the injury, his average weekly wage shall consist of three hundred (300) times the average daily wage or salary which he shall have earned during the days that he actually worked in such year, divided by fifty-two (52).

(2) If the injured employee shall not have worked in the employment in which he was working at the time of the injury, whether for the same employer or not, for at least two hundred ten (210) days of the year immediately preceding the injury, his average weekly wage shall consist of three hundred (300) times the average daily wage or salary which an employee of the same class, working at least two hundred ten (210) days of such immediately preceding year, in the same or in a similar employment, in the same or a neighboring place, shall have earned during the days that he actually worked in such year, divided by fifty-two (52).

(3) When by the reason of the shortness of the time of the employment of the employee, or other employee engaged in the same class of work in the manner and for the length of time specified in the above Subsections 1 and 2, or other good and sufficient reasons, it is impracticable to compute the average weekly wages as above defined, it shall be computed by the Board in any manner which may seem just and fair to both parties, as of the date of the injury.

*6 Act of June 1, 1959, 56th Leg., R.S., ch. 355, § 1, 1959 Tex.Gen. Laws 778, 779-80.⁷ Thus, there were three separate methods by which an employee’s average weekly wages could be determined. When a workers’ compensation claim is made, the compensation rate cannot be computed until the worker establishes a weekly wage rate in accordance with the statute. Aetna Ins. Co. v. Giddens, 476 S.W.2d 664, 665 (Tex.1972) (per curiam).

Yet these three methods of determining a worker’s average weekly wages are interdependent. Allied Underwriters v. Spillman, 145 S.W.2d 703, 705 (Tex.Civ.App.-Dallas 1940, writ ref’d). A claimant is placed under an election to rely upon one and not upon all of them. Id. In fact, the Texas Supreme Court has described the three subsections of the statute as “steps.” A claimant must prove that subsection 1 applies, if he can. If he proves that subsection 1 does not apply, he must prove that subsection 2 applies, if he can. If he proves that subsection 2 does not apply, then, and only then, can he rely upon subsection 3. Giddens, 476 S.W.2d at 665. As we stated in Spillman:

Our courts have repeatedly held that subd[ivisions] 2 and 3 of the [a]ct cannot be resorted to for determining the average weekly wages of an employee, if the proof shows, or the record shows proof can be made, that the average weekly wage or salary of such employee can be computed under subd[ivision] 1.

Spillman, 145 S.W.2d at 705 (emphasis added). If in doubt as to which of the three methods should be sustained by proof on trial of the cause, a claimant may plead the three methods in the alternative. Id. at 705-06. Nonetheless, the proof adduced at trial must establish which one of the three methods is applicable. See id. at 706 (although a worker can plead in the alternative, the allegations determining which method of computation must be used must be “sustained by proof”).

The question then becomes whether Garza could have proved that subsection 1 should apply. The record amply demonstrates that he could have proved how many days he worked in the year preceding the accident and the number would have been more than 210. Garza himself had his paycheck stubs and income tax records and was prohibited from producing them only because he had earlier testified that he did not know how many days he had worked. Worley had access to Garza’s file and did not bring it because she evidently was not asked to do so. Indeed, counsel’s exasperated remark to her suggests that counsel merely assumed that Worley would know to bring the file with her. Mitchell did not have Garza’s attendance records, but he told counsel that they might be located in Nashville. In short, Garza could have established how many days he had worked in the year preceding the accident, but he simply failed to do so. Thus he did not enable the jury to determine whether subsection 1 applied. See Texas Employers’ Ins. Ass’n v. Ford, 153 Tex. 470, 271 S.W.2d 397, 399 (Tex.1954). As the supreme court there said,

*7 It is important that the provisions of these various subsections be followed. The Workmen’s Compensation Law arbitrarily sets up standards by which compensation is to be paid. The spirit of the law is to apply that standard to all employees alike and not to leave it to the discretion of the jury to determine what in its opinion would be just and fair.

Ford, 271 S.W.2d at 399-400.

Garza cites two cases for the principle that a liberal construction of the workers’ compensation act requires but slight proof of the applicable wage rate where there is no real controversy. Holliman v. Leander I.S.D., 679 S.W.2d 92, 95 (Tex.App.-Austin 1984, writ ref’d n.r.e.); Argonaut Southwest Ins. Co. v. Morris, 420 S.W.2d 760, 766 (Tex.Civ.App.-Austin 1967, writ ref’d n.r.e.). Garza then argues that it is evident from the record that he was a 210-day employee, as attested by Standard’s original willingness to stipulate that he had worked 250 days at Shoney’s. His argument entirely overlooks the fact that Standard filed a verified answer denying the wage rate Garza claimed. See Tex.R.Civ.P. 93(13)(h); see also Martinez v. Home Indem. Co.,647 S.W.2d 102, 104 (Tex.App.-Fort Worth 1983, writ ref’d n.r.e.) (the claimant bears the burden of showing good cause for not timely filing the claim once the insurer has filed a verified pleading that good cause did not exist). By filing the verified answer, Standard put Garza’s wage rate at issue.

We have reviewed the entire record, and we find no evidence of the number of days that Garza worked in the 365 days preceding his injury. Garza himself testified that he did not know the number of days he had worked before his injury. Although his attorney attempted to get him to testify as to the number after he had reviewed his financial records, Standard objected to the question as having been asked and answered. The trial court sustained the objection.⁸ Therefore, nothing in Garza’s testimony established the number of days he had worked in the 365 days preceding his injury. We overrule appellant’s first point of error.

Garza argues that the testimony of Worley and Mitchell provided sufficient evidence to warrant the submission of his wage rate to the jury. Although Worley had some familiarity with Garza’s file, she was not even sure that it contained a wage statement. She testified that she had seen a wage statement for Garza, but she steadfastly refused to say whether Garza’s copy of his wage statement was accurate. She had no personal knowledge of the information contained in Garza’s copy. Specifically, she did not calculate the number of days that Garza had worked in the year preceding the accident.

Mitchell proved no better witness on Garza’s behalf. He had Garza’s attendance record from January 1, 1989, until April 29, 1989, showing that Garza called in sick five times during that period. Mitchell had no idea about how often Garza might have called in sick in 1988; therefore, he had no idea how many days Garza might actually have worked in 1988. Mitchell was not sure that a 1988 attendance record for Garza even existed. Mitchell testified, in general, that an employee would work fifty weeks a year and receive two weeks’ vacation. But he did not, and could not, specify the number of days that Garza had worked in 1988. We overrule appellant’s second point of error.

*8 Finally, Garza argues that counsel’s stipulation was sufficient evidence to warrant the submission of his wage rate to the jury. The argument completely ignores the fact that the trial court permitted Standard to withdraw the stipulation (to the extent there ever was a stipulation). Once the stipulation was withdrawn, it was in effect no evidence at all. We overrule Garza’s third point of error.

We affirm the trial court’s judgment.

	Footnotes
1		The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
2		On October 3, 1997, this Court permitted The Texas Property and Casualty Insurance Guaranty Association, as successor-in-interest to Standard, to substitute as appellee in Standard’s place. Because Standard was the party to the entire litigation below, we refer to it, for purposes of this opinion, as the appellee.
3		Standard initiated the suit by filing a petition requesting the trial court to set aside the award of the Texas Worker’s Compensation Commission in its entirety. Garza answered and filed a petition as counter plaintiff, asserting that he was entitled to more than he was awarded. The trial court signed an order aligning the parties so that Garza was designated plaintiff and Standard was designated defendant.
4		Indeed, there are indications in the record that Garza had conducted no discovery whatsoever.
5		Garza remarked that this figure resulted from multiplying his hourly wage of $6.75 a week by forty hours a week.
6		The record before us contains no exhibits whatsoever. None is needed, however, for the disposition of this appeal.
7		Repealed effective Jan. 1, 1991, Workers’ Compensation Act, 71st Leg., 2nd C.S., ch. 1, § 17.18, 1989 Tex.Gen. Laws 1, 122. The successor statute is now codified at Tex. Labor Code Ann. § 408.041 (Vernon 1996).
8		Garza does not complain of the trial court’s ruling on Standard’s objection. He complains only that his testimony presented sufficient evidence to warrant the submission of his wage rate issue to the jury.