Court of Appeals of Texas, Dallas.

Otis GRIFFIN, Appellant,

v.

GENERAL INSURANCE COMPANY OF AMERICA, Appellee.

No. 05-93-00271-CV.

|

March 22, 1994.

Before KINKEADE, MALONEY and ROSENBERG, JJ.

ROSENBERG, Justice.

O P I N I O N

*1 This is a workers’ compensation case. Otis Griffin appeals the trial court’s directed verdict entered in favor of General Insurance Company of America (GICA). In three points of error, Griffin contends that the trial court erred by (1) entering a directed verdict; (2) excluding certain testimony; and (3) not permitting Griffin to reopen the evidence. Because the directed verdict was improper, we sustain Griffin’s first point of error. We reverse the trial court’s judgment and remand the case to the trial court for a new trial.

Griffin alleged that he sustained an accidental injury to his back and body generally while an employee for Furniture Marketing Group. Griffin filed a claim for benefits under the Texas Workers’ Compensation Act (the Act).¹ At the time of Griffin’s injury, GICA was the workers’ compensation carrier for Furniture Marketing Group. After the Industrial Accident Board of Texas² entered its final award concerning Griffin’s claims for compensation, Griffin appealed and filed suit.

Griffin alleged that GICA refused to provide him with adequate and necessary medical care. Griffin also alleged that his injury resulted in a total incapacity to work. GICA filed a verified answer denying (1) the existence of a work-related injury, (2) the average weekly wage rate pleaded by Griffin, and (3) the alleged compensation rate.

At trial, Griffin testified that he was a furniture installer who worked approximately eighty days before his injury and earned approximately $6500. Griffin testified at trial that he “can’t keep a job” because his back hurts, and he cannot do what he’s asked to do on a job. Griffin also testified that he continued to work for about two weeks after the injury. He explained that he did assembly work, but did not lift or drag carts off the truck. Griffin first believed that he had a sprained hip or a pulled muscle, but began losing mobility and range of motion. Griffin testified that he had a herniated disk and needed surgery. Griffin eventually worked for a company called Premiere Asset Management, but the company terminated him when he could not perform his duties.

In response to Griffin’s interrogatories, GICA listed Glenn Sanders as a same or similar 210-day employee who made the highest average daily wage. At trial, Griffin testified that Glenn Sanders was a custodian and not a furniture installer. Griffin concluded that Sanders was not a same or similar employee as Griffin. Griffin testified that Michael Turner was an employee who performed same or similar work during 210 days or more preceding Griffin’s injury. Turner also testified that he was a same or similar 210-day employee as Griffin.

Griffin attempted to introduce testimony from Turner about Turner’s wage rate. GICA objected because Griffin did not, in response to GICA’s interrogatory, identify Turner as a same or similar 210-day employee upon whom Griffin intended to rely at trial. The trial court sustained GICA’s objection and did not allow any testimony about Turner’s wage rate.

*2 At the close of evidence, GICA moved for directed verdict on the ground that there was no evidence about Griffin’s average weekly wage rate. Griffin filed a motion to reopen his case to clear up any discrepancy concerning Turner’s status as a same or similar 210-day employee and to establish the need for Turner’s wage-rate testimony. The trial court overruled Griffin’s motion to reopen and granted GICA’s motion for an instructed verdict. The trial court rendered a verdict on the merits in favor of GICA “for the reason that [Griffin] failed to introduce legally sufficient evidence from which [Griffin’s] wage rate could be determined.” Griffin filed a motion for new trial, which the trial court denied.

In point of error one, Griffin contends that the trial court’s directed verdict was improper. Griffin argues that he presented legally sufficient evidence of his wage rate to warrant submission of the issue to the jury. In the alternative, Griffin asserts that the trial court should have directed the jury to enter judgment for the minimum wage rate provided by the Act.

In reviewing the trial court’s action of granting a directed verdict, it is this Court’s duty to examine the evidence to determine if there is any issue of fact upon which a judgment in favor of the nonmovant could be predicated. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978). A directed verdict can only be justified if no other verdict could have been rendered. In this analysis, all fact issues must be resolved in favor of the nonmovant and against the movant. Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 650 (Tex. 1976); Prather v. McNally, 757 S.W.2d 124, 126 (Tex. App.-Dallas 1988, no writ). The trial court must disregard all contrary evidence and inferences. Henderson, 544 S.W.2d at 650. Where no evidence of probative force on an ultimate fact element exists or where the probative force of the testimony is so weak that only a mere surmise or suspicion is raised as to the existence of the central facts, the trial court has the duty to direct the verdict. University Nat’l Bank v. Ernst & Whinney, 773 S.W.2d 707, 709-10 (Tex. App.-San Antonio 1989, no writ).

Griffin has the burden of establishing on appeal that he has presented some evidence on each and every element of his cause of action and that the directed verdict cannot be supported on any grounds set forth in GICA’s motion. Guynn v. Corpus Christi Bank & Trust, 589 S.W.2d 764, 770 (Tex. Civ. App.-Corpus Christi 1979, writ dism’d). GICA moved for directed verdict on the basis that Griffin did not produce legally sufficient evidence from which his wage rate could be determined.

Under the Texas Workers’ Compensation Act,³ an employee injured “in the course of his employment” may seek compensation for his injuries based on his “average weekly wages.” TEX. REV. CIV. STAT. ANN. art. 8306, §§ 6, 10, 11 (Vernon Supp. 1994) (repealed 1989); see TEX. REV. CIV. STAT. ANN. art. 8306 §§ 3, 3b (Vernon Supp. 1994) (repealed 1989); Holliman v. Leander Indep. Sch. Dist., 679 S.W.2d 92, 101 (Tex. App.-Austin 1984, writ ref’d n.r.e.). To obtain compensation, the claimant must establish his average weekly wage rate by one of three methods set forth in article 8309 of the Act.⁴

*3 Each definition or method establishes the base from which an award is calculated. The compensation-claimant must establish that his wages cannot be computed under the first definition or by the “claimant’s own wages” before he may utilize the second or “same or similar 210-day employee” method of wage determination. Holliman, 679 S.W.2d at 102; Texas Employers’ Ins. Ass’n v. Ford, 153 Tex. 470, 271 S.W.2d 397, 399-400 (1954). As a prerequisite to resorting to the third or “just and fair” method of wage computation, the compensation-claimant must prove that his wages cannot be determined under the first and second definitions. Aetna Ins. Co. v. Giddens, 476 S.W.2d 664, 665 (Tex. 1972) (per curiam); Texas Employers’ Ins. Ass’n v. Shannon, 462 S.W.2d 559, 562-63 (Tex. 1970); Ford, 271 S.W.2d at 400.

Where no real contest is made of the wage issue, only slight proof is required to negate the application of methods one and two before resorting to a “just and fair” determination. American Motorists Ins. Co. v. McNiel, 404 S.W.2d 905, 908 (Tex. Civ. App.-Fort Worth 1966, no writ); American Gen. Ins. Co. v. Hightower, 279 S.W.2d 397, 400 (Tex. Civ. App.-Eastland 1955, writ ref’d n.r.e.). In the instant case, however, GICA disputed Griffin’s wage rate and filed a verified denial of the average weekly wage rate that he pleaded.

Griffin is not eligible to use the first method to compute his wage rate because he did not work for his employer for at least 210 days in the preceding year. See Holliman, 679 S.W.2d at 102. Griffin, however, contends that the evidence is legally sufficient to warrant a jury question about his average weekly wage rate based on the second or third methods of calculation.

In support of the second method of calculation of wages, Griffin testified that furniture or systems installers, as a group, earn $7.00 per hour. Griffin stated that he earned $7.00 an hour. Turner testified that he was a furniture installer and had worked at least 210 days in 1988 without taking a vacation. Griffin’s supervisor testified by deposition that Griffin was a furniture installer who also worked as a delivery person.

Griffin and Turner testified that Turner was a same or similar 210-day employee for the purpose of determining Griffin’s average weekly wage rate under method two. Griffin asserts that the jury, taking his and Turner’s testimony together, could have determined that Turner satisfied method two’s requirements for a same or similar 210-day employee. Therefore, Griffin needed to present evidence of Turner’s wage rate. Griffin, however, did not present any competent evidence of Turner’s average weekly wages.⁵ Consequently, Griffin did not establish his average weekly wages under the second definition. See Giddens, 476 S.W.2d at 665; Shannon, 462 S.W.2d at 562-63; Ford, 271 S.W.2d at 400.

*4 Next, he argues that the jury could have found that Griffin’s employment position was unique such that Griffin’s wage rate could be determined by the “just and fair” method. Griffin supports this contention by the supervisor’s testimony that Turner was an installer and part-time supervisor while Griffin was an installer and part-time delivery person. Griffin concludes that the jury, from the evidence, could have determined that no same or similar 210-day employee existed because of the supervisor’s testimony; therefore, Griffin could resort to the just and fair calculation of his wages.

On the contrary, Griffin must affirmatively negate method two before he may resort to the just and fair determination. Giddens, 476 S.W.2d at 665; Shannon, 462 S.W.2d at 562-63; Ford, 271 S.W.2d at 400. Griffin did not produce sufficient evidence that would negate the definition’s applicability. Consequently, Griffin could not resort to the third definition.

Therefore, the jury could neither determine Griffin’s wage rate under the “same or similar 210-day employee” method nor apply the “just and fair” method of calculation. Ford, 271 S.W.2d at 400; Griffin v. Superior Ins. Co., 161 Tex. 195, 338 S.W.2d 415, 418 (1960). We conclude that the trial court did not err in finding that Griffin did not discharge his burden to establish, by legal and competent evidence, his average weekly wage rate by one of the three methods set forth in section 1 of article 8309. TEX. REV. CIV. STAT. ANN. art. 8309, § 1(1),(2), & (3) (Vernon Pamph. 1994) (repealed 1989).

Griffin’s final contention is that the trial court should not have entered a directed verdict, but should have entered judgment for the statutory minimum wage rate. See Pan American Fire & Casualty Co. v. Hill, 586 S.W.2d 187 (Tex. Civ. App.-El Paso 1979, writ ref’d n.r.e.); Garrard v. Texas Employers’ Insurance Association, 423 S.W.2d 93 (Tex. Civ. App.-Amarillo 1967, no writ) (where there is insufficient evidence to sustain a proper finding on wage rate, the court may enter judgment for the minimum amount provided by the statute).

GICA maintains that a claimant cannot recover any benefits under the Act without complying with the substantive requirement of establishing the applicable wage rate. See Giddens, 476 S.W.2d at 665; Shannon, 462 S.W.2d at 562-63.

Neither Giddens nor Shannon hold that a compensation-claimant cannot recover benefits under any circumstances if he does not prove the applicable wage rate, and therefore, a directed verdict against the claimant would be proper.⁶ More importantly, we have found no case law indicating that the supreme court impliedly overruled Federal Underwriters Exchange v. Cost, 123 S.W.2d 332 (Tex. 1938), where the Commission of Appeals of the Texas Supreme Court held that section 10 of article 8306 of the Act provides a statutory minimum wage rate which may be used where the compensation-claimant did not establish his average weekly wage rate. 123 S.W.2d at 336-37.

*5 In Federal Underwriters, the trial court did not submit a jury issue on the question of wage rate, and none was requested. 123 S.W.2d at 333. The trial court determined the appellee’s average wages to be such as to entitle him to compensation based on the statutory minimum rate. Id. On appeal, the insurer argued that compensation, based on the statutory minimum wage rate, was improper. The insurer argued that the employee-claimant must request a jury issue and secure a finding as to his average weekly wage rate. The commission of appeals held that had the issue been submitted, the award could not have been less than the minimum fixed by statute;⁷ therefore, the insurer was not injured by the absence of the jury finding. Federal Underwriters, 123 S.W.2d at 337.

In Pan American, Garrard, and Sonnier v. Texas Employers’ Insurance Association, the courts of appeals interpreted the version of the Act applicable to the present case and held that section 10 of article 8306 provides for a minimum wage rate in the case of a claimant’s total incapacity to work. See Pan American, 586 S.W.2d at 189; Garrard, 423 S.W.2d at 95; Sonnier v. Texas Employers’ Ins. Ass’n, 417 S.W.2d 433, 435 (Tex. Civ. App.-Houston 1967, no writ). Section 10 of article 8306 provides:

Sec. 10. Total Incapacity. (a) While the incapacity for work resulting from the injury is total, the association shall pay the injured employee a weekly compensation equal to sixty-six and two-thirds per cent (662/3%) of his average weekly wages, but not more than the maximum weekly benefit nor less than the minimum weekly benefit set forth in Section 29 of this article.

TEX. REV. CIV. STAT. ANN. art. 8306, § 10 (Vernon Supp. 1994) (repealed 1989) (emphasis added).

No provision of the Act ensures a minimum compensation amount unless the injury produces a total incapacity to work. Sonnier, 417 S.W.2d at 435. As a general rule, the question of the extent and duration of the disability or incapacity resulting from an injury is one for the jury. Texas Employers’ Ins. Ass’n v. Scott, 233 S.W.2d 171, 174 (Tex. Civ. App. Amarillo-1950, writ ref’d n.r.e.). Further, there is no fixed evidence by which a claimant is required to establish the existence of an injury causing total incapacity to work. Liberty Universal Ins. Co. v. Gill, 401 S.W.2d 339, 343 (Tex. Civ. App.-Houston [1st Dist.] 1966, writ ref’d n.r.e.).

In his original petition, Griffin alleged that he suffered a total incapacity to work. Griffin testified at trial that he “can’t keep a job” because his back hurts, and he cannot do what he’s asked to do on a job. Griffin also testified that he continued to work for about two weeks after the injury. He explained that he did assembly work, but did not lift or drag carts off the truck. Griffin stated that he believed he had a sprained hip or a pulled muscle, but began losing mobility and range of motion. According to Griffin, he could not sit for long periods of time. Griffin testified that he had a herniated disk. He presented affidavits from several physicians that he needed surgery. Griffin testified that he eventually worked for a company called Premiere Asset Management and that he was terminated when he could not perform the duties requested of him.

*6 A claimant’s testimony alone may be sufficient to support a jury finding of total or permanent disability. Scott, 233 S.W.2d at 174 (citing Traders & Gen. Ins. Co. v. Diebel, 188 S.W.2d 411, 413 (Tex. Civ. App.-Dallas 1945, writ ref’d w.o.m.). Furthermore, continuing to work after the injury does not negate the possibility of a jury finding in favor of a total incapacity to do labor. See Zurich Ins. Co. v. Graham, 335 S.W.2d 673, 674 (Tex. Civ. App.-1960, writ ref’d n.r.e.).

GICA elicited controverting testimony that Griffin did not suffer a total incapacity to work. Nevertheless, all contrary evidence and inferences are disregarded in determining the propriety of a directed verdict. Henderson, 544 S.W.2d at 650. Notwithstanding evidence that militates a finding of Griffin’s total incapacity to do labor, the record contains more than a scintilla of evidence that Griffin’s injury disabled him to the point where he could not perform the usual tasks of a worker. Consequently, the evidence precludes the trial court from entering a directed verdict against Griffin on the ground that he did not introduce legally sufficient evidence from which his wage rate could be determined.

A directed verdict can be justified only if no other verdict could have been rendered. Henderson, 544 S.W.2d at 650; Prather, 757 S.W.2d at 126. The trial court erred in granting a take-nothing directed verdict and in refusing to submit to the jury the issue of whether Griffin suffered a total incapacity to work making him eligible for compensation based on the statutory minimum wage rate. See Sonnier, 417 S.W.2d at 435. Accordingly, we sustain point of error one.

Because of our disposition of point of error one, we do not address Griffin’s remaining points of error. See TEX. R. APP. P. 90(a). We reverse the trial court’s judgment and remand the case to the trial court for a new trial.

	Footnotes
1		The injury here occurred before the effective date of the new workers’ compensation law.
2		Now the Texas Workers’ Compensation Commission.
3		Repealed by Acts of 1989, 71st Leg., 2d C.S., Ch. 1, § 16.01(7)-16.01(18), effective January 1, 1991, now codified as TEX. REV. CIV. STAT. ANN. arts. 8306 8309 (Vernon Supp. & Pamph. 1994).
4		Article 8309, section 1 of the Texas Revised Civil Statutes Annotated provides in part: “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 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 injury.
5		The trial court excluded Turner’s wage-rate testimony as a sanction under rule 215 of the rules of civil procedure. TEX. R. CIV. P. 215(5). Griffin complains of the trial court’s decision in his second point of error.
6		In Ford and Shannon, the supreme court reversed and remanded the case where the plaintiff’s compensation was computed under the just and fair method without eliminating the second method. Ford, 271 S.W.2d at 400; Shannon, 462 S.W.2d at 562-63. In Giddens, the supreme court reasoned that if it was mistaken in holding that appellee’s “slight” evidence was sufficient to negate method two, the trial court’s resort to method three was harmless because the result would have been the same under definition two or three. 476 S.W.2d at 665.
7		Interpreting the 1929 version of the Workers’ Compensation Act, the supreme court explained that section 10 of article 8306 provides that an insurer “shall pay the injured employee a weekly compensation equal to sixty percent of his average weekly wages, but not more than $20 nor less than $7.” 123 S.W.2d at 337 (emphasis in original).