Court of Appeals of Texas, Dallas.

LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellant,

v.

Tina Spence MOORE, Appellee.

No. 05-90-01510-CV.

|

July 15, 1991.

Before BAKER, LAGARDE and BURNETT, JJ.

OPINION

BURNETT, Justice.

*1 Liberty Mutual Fire Insurance Company appeals an adverse judgment granting Tina Spence Moore lifetime benefits under the Workers’ Compensation Act. After the jury answered special questions, the court granted lifetime benefits to Moore for the total loss of use of both of her feet. In nine points of error, Liberty Mutual asserts that the trial court erred in failing to give the jury instructions on (1) partial loss of use, (2) sole cause, and (3) that occupational disease does not include ordinary diseases of life, (4) that the jury’s finding that a 1980 spinal cord injury contributed “0%” to Moore’s loss of use of her right and (5) left feet is against the great weight and preponderance of the evidence, (6) that the evidence is factually and legally insufficient to support the jury findings that Moore received an injury on or about February 26, 1988 arising out of and in the course of her employment (7) which was a producing cause of the total loss of use of her right and (8) left feet, and (9) that the trial court erred by not granting a mistrial after improper jury argument. We overrule Liberty Mutual’s points of error. We affirm the trial court’s judgment.

FACTS

In April 1980, Moore fell to a concrete floor while painting the wing of an airplane at E-Systems. At the time, she was training a new employee because of her promotion to a supervisory position. She sustained a burst fracture to her spine leaving her a partial paraplegic. Since the 1980 accident, she has been unable to walk without the assistance of leg braces and canes. At that time, she lost the ability to move her feet up and down or from side to side. She returned to work in January of 1981 as a supervisor of an area in the airplane hangar that covers around 100,000 square feet.

The accident altered Moore’s gait so that she walked on the insides of her feet. Over the next seven years, Moore had numerous surgeries to correct developing problems in her feet and knees. After six months of walking, Moore developed ulcers on her feet and pain in her knees. In September of 1982, she had surgery to remove the dead tissue from her feet. In May of 1983, she had surgery on the tendons in her feet. In October 1986, stainless steel pins were inserted in her left great toe to prevent it from curling. In February 1988, she had surgery on her knees. She returned to work, but started using a motorized wheelchair as much as possible. In October 1989, Moore had surgery on both feet. Moore continued to work at E-Systems between each of these surgeries.

In her suit, Moore claimed that she sustained the total loss of her feet at or above the ankle from repetitious physical traumatic activities extending over the period of seven years which culminated on or about February 26, 1988. Liberty Mutual claimed that the 1980 accident was the sole producing cause of Moore’s loss of use of her feet.

JURY INSTRUCTIONS

In its first three points of error, Liberty Mutual asserts that the trial court erred in failing to give jury instructions on certain inferential rebuttal issues. The court’s charge included definitions of “injury”, “injury in the course of employment”, “producing cause”, and “loss of use”, and then asked the jury six special questions using those definitions. The trial court did not submit instructions on partial loss of use, sole cause, or give an instruction that occupational disease does not include ordinary diseases of life.

*2 In its first point of error, Liberty Mutual asserts that the trial court erred in failing to give a proper instruction on partial loss of use. Moore sought workers compensation benefits for the total loss of use of her feet at or above the ankle. Whether partial loss of use is an inferential rebuttal issue or an alternative theory of recovery depends on the pleadings. See Archuleta v. International Ins. Co., 667 S.W.2d 120, 122 (Tex. 1984) (pleaded as alternative theory by claimant); Select Ins. Co. v. Boucher, 561 S.W.2d 474, 477 (Tex. 1978) (pleaded as inferential rebuttal by defendant). Liberty Mutual, in its denial, pleaded that the 1980 accident was the sole cause of Moore’s disability, or that her disabilities were not total and permanent, but temporary and partial, or at most, permanent and partial. As an inferential rebuttal issue, Liberty Mutual requested the following instruction: “partial loss of a particular member means any loss of use less than total loss of use of such member.”

The court must submit the questions, instructions, definitions which are raised by the written pleadings and the evidence. Tex. R. Civ. P. 278. Liberty Mutual pleaded partial loss of use. The issue is whether Liberty Mutual presented evidence which raised an issue of partial loss of use. A total loss of use of a member exists whenever, by reason of injury, such member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the worker cannot procure and retain employment requiring the use of the member. Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex. 1962) (issue on partial loss should have been submitted where pipefitter continued to use hand in pipefitting and welding). If the first exists, namely that the member no longer possesses any substantial utility, the claimant is entitled to recovery for the specific injury without regard to his earning capacity or his ability to secure and retain employment. Texas Gen. Indem. Co. v. Glover, 612 S.W.2d 622, 625 (Tex. Civ. App.-Beaumont 1980), writ refused n.r.e., 619 S.W.2d 400 (Tex. 1981) (per curiam). If, however, the injured worker suffers only impairment in the use of the member, or he can procure and retain employment requiring the use of the member, its loss is only partial and not total. Id.

Margaret Neely, Liberty Mutual’s company representative, testified that Liberty Mutual took the position that Moore had not sustained any loss of use of her feet which culminated in the February 26, 1988 injury. Dr. Lawson, an orthopedic surgeon, testified, on direct examination by Liberty Mutual, that if Moore had not already been employed, she could not have gone out and secured other employment. Even though she continues to work at E-Systems, she does so in a supervisory capacity. Testimony showed that on various occasions she used a bicycle and a wheelchair to maneuver through the work area. Her job does not require the use of her feet. Simply because we can think of mechanical substitutes that allow her to travel the distances across the hangar does not mean that the supervisory job requires the use of her feet. A different situation would exist if she were still painting airplanes, the job she held prior to moving into the supervisory position. It is clear that the painting job actually requires the use of her feet to climb, stoop and maneuver into various positions necessary to paint the airplane. A supervisory position can be handled without feet while a job such as a painter is impossible without feet. Liberty Mutual persistently referred to the fact that Moore had returned to work and was still presently employed with E-Systems. The fact that Moore returned to work and earned money does not preclude her from being totally and permanently disabled for workers’ compensation purposes. See, e.g, Select Ins. Co. v. Boucher, 551 S.W.2d 67, 72 (Tex. Civ. App.-Houston [1st Dist.] 1977), affirmed, 561 S.W.2d 474. The trial court did not abuse its discretion in failing to give the instruction on partial loss of use because Liberty Mutual did not sustain its burden of proof. We overrule Liberty Mutual’s first point of error.

*3 In its second point of error, Liberty Mutual asserts that the trial court erred in failing to give a proper instruction on sole cause. Liberty Mutual claimed that the 1980 accident was the sole cause of Moore’s disabilities and requested the following instruction:

“There may be more than one producing cause of incapacity but there can be only one sole cause of incapacity. If Tina Spence Moore’s incapacity was solely caused by her injury of April 12, 1980, independent of and not aggravated by her injury of February 26, 1988, then her injury of February 26, 1988, cannot be a producing cause of any incapacity.”

Liberty Mutual had the burden of establishing that the 1980 accident was the sole cause of Moore’s loss of use of her feet at or above the ankles. The only evidence adduced by Liberty Mutual was Moore’s inability to move her feet after the 1980 accident and the need for assistance from braces and canes from the time of the accident. However, Moore’s testimony showed that she developed pain in her knees, ulcers on her feet and curling of her toes over a seven-year period. She claims that the repetitious traumatic activity of excessive walking on the concrete floor of an airplane hanger has now caused the total loss of use of her feet at or above the ankle. Dr. Ough, her treating physician, admitted that without the altered gait caused by the spinal cord injury, Moore would not be experiencing the aggravated trauma to her joints and feet. Dr. Lawson, her orthopedic surgeon, testified that if Moore had simply stayed in bed after the 1980 accident she would not be experiencing the problems with her knees and feet. While he could not differentiate between damage caused by walking at home and walking at work, Dr. Lawson testified that the degree of walking and the distances at work accelerated Moore’s deteriorating condition. The evidence did not show that the 1980 accident, without any other activity, caused the extensive damage to Moore’s feet at or above the ankles, which includes her knees. The trial court did not abuse its discretion by refusing Liberty Mutual’s requested instruction on sole cause. We overrule Liberty Mutual’s second point of error.

In its third point of error, Liberty Mutual asserts that the trial court erred in failing to give a proper instruction that occupational disease does not include ordinary diseases of life. An injury due to repetitious traumatic activity is classified as an occupational disease. The pertinent statute provides:

“an ‘occupational disease’ shall also include damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment; provided that the date of the cumulative injury shall be the date disability was caused thereby. Ordinary diseases of life to which the general public is exposed shall not be compensable, except where such diseases follow as an incident to an ‘Occupational Disease’ or ‘Injury’ defined in this section.CC

*4 Tex. Rev. Civ. Stat. Ann. art. 8306 § 20 (Vernon 1967) (now codified as Tex. Rev. Civ. Stat. Ann. art. 8308-1.03(36) (Vernon Supp. 1991)).

The court submitted the following definitions to the jury:

“INJURY” means damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and such injuries, diseases, or infection as naturally result therefrom, or the incitement, acceleration, or aggravation of any injury, disease, infirmity, or condition, previously or subsequently existing, by reason of such damage or harm. You are instructed that the date of such injury is the date of cumulative injury, that is to say the date that disability was caused thereby.

“INJURY IN COURSE OF EMPLOYMENT” means any injury having to do with and originating in the work, business, trade, or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of her employer, whether upon the employer’s premises or elsewhere.

Liberty Mutual maintains that it was entitled to the requested definition because medical testimony raised a question concerning whether Moore’s condition was an ordinary disease of life. Dr. Lawson testified that Moore will experience trauma to her feet from walking, whether at home or work. The doctor testified that the extent and degree of walking affected Moore’s condition. Moore pleaded that her injury was caused by repetitious physical traumatic activity which took place in the course of her employment. She introduced evidence of the necessity of travelling excessive distances on a concrete floor after the spinal cord injury. The evidence showed that Moore walked very little at home compared to the distances required at work. Texas Rule of Civil Procedure 277 provides that the court shall submit such explanatory instructions and definitions as shall be proper to enable the jury to render a verdict. In light of the evidence presented, the court’s instruction adequately submitted the question of whether Moore suffered injury in the course of her employment. Lubbock Ind. School Dist. v. Bradley, 579 S.W.2d 78, 81-82 (Tex. Civ. App.-Amarillo 1979, writ ref’d n.r.e.) (total incapacity due to back injury). The trial court did not abuse its discretion by refusing to submit Liberty Mutual’s requested instruction on occupational disease. We overrule Liberty Mutual’s third point of error.

CONTRIBUTION OF 1980 INJURY

In its fourth and fifth points of error, Liberty Mutual asserts that the jury’s findings that the 1980 injury contributed “0%” to Moore’s total loss of her feet is against the great weight and preponderance of the evidence. Jury question number five asked about contribution to loss of use of the right foot at or above the knee and jury question number six asked about the left foot. The question properly stated that Liberty Mutual had the burden of proof on this issue.

*5 Liberty Mutual pleaded entitlement to a percentage credit reduction based on Moore’s injury and disability after the spinal cord injury of April 1980. An insurance carrier must prove three things in order to obtain a reduction of benefits based on a prior injury:

1) that the previous injury was compensable;

2) that it contributed to the present incapacity; and

3) the amount or percentage of such contribution.

Transport Co. v. Mabra, 487 S.W.2d 704, 707 (Tex. 1972). When a party challenges the factual sufficiency of a jury finding, the court must consider all the evidence in the case, both that in support of and that contrary to the finding to determine if the challenged finding is so against the great weight and preponderance of that evidence as to be manifestly unjust or erroneous. In re King’s Estate, 244 S.W.2d 660, 661 (Tex. 1951).

Neither party questions that the initial spinal cord injury occurred as a direct result of Moore’s employment with E-Systems, and so the initial injury was compensable. Dr. Ough testified that, without the initial injury and altered gait, Moore would not be experiencing the progressive degeneration of her feet. Moore testified that the ulcers on her feet and the pain in her knees disappeared if she stayed off her feet and did not walk. Dr. Lawson testified that if Moore had simply stayed in bed after the 1980 injury the problems with her feet, ankles and knees would not have developed. However, the evidence shows a percentage of contribution caused by the spinal cord injury of 0% or 100%. Liberty Mutual took the position that the 1980 injury was the sole producing cause. Moore took the position that the spinal cord injury did not cause the total loss of use of her feet at or above the ankle. She testified that she could not move her feet from side to side or up and down after the 1980 injury. However, she had no ulcers, pronation (turning of her feet inward), or problems with her knees after the 1980 injury. The evidence supports the jury finding that the 1980 spinal cord injury contributed nothing to Moore’s total loss of use of her feet at or above the ankle. We overrule Liberty Mutual’s fourth and fifth points of error.

CAUSATION

In its sixth, seventh and eighth points of error, Liberty Mutual challenges the factual and legal sufficiency of the evidence to support the jury findings on jury questions one, two, and three. In jury question one, the jury found that Moore received an injury arising out of and in the course of her employment with E-Systems on or about February 26, 1988. In questions two and three, the jury found that the injury was a producing cause of total permanent loss of use to her right and left feet at or above the ankle, and set February 26, 1988 as the beginning date of the total loss of use.

When a party challenges the legal sufficiency of the evidence, we must examine only the evidence in support of the jury’s findings, ignoring any evidence to the contrary. Glover v. Texas Gen. Indem., 619 S.W.2d 400, 401 (Tex. 1981) (per curiam). When a party challenges the factual sufficiency of a jury finding, the court must consider all the evidence in the case, both that in support of and that contrary to the finding to determine if the challenged finding is so against the great weight and preponderance of that evidence as to be manifestly unjust or erroneous. In re King’s Estate, 244 S.W.2d 660, 661 Tex. 1951). When an appellant brings both legal insufficiency and factual insufficiency points of error, we must rule on the legal sufficiency point first. Glover, 619 S.W.2d at 401.

*6 In jury question one, the jury found that Moore received an injury on February 26, 1988 in the course of her employment. The definition of injury includes aggravation of a previous condition over time. The date of injury, February 26, 1988, is actually the date of cumulative injury that results in the disability. Moore was able to walk with canes and braces after the 1980 injury. She then developed ulcers and other problems that required successive surgeries over the next eight years. The evidence showed progressive deterioration of Moore’s ability to use her feet for mobility from six months after the spinal cord injury up to the day of trial. That shows legally sufficient evidence for the jury’s answer to jury issue number one. In reviewing factual sufficiency, we must consider all evidence to the contrary as well. The only controverting evidence is that Moore had impaired movement of her feet after the 1980 accident and that she continued to work. This would support a partial disability finding if the claim for benefits had been brought for partial loss of use soon after the spinal cord injury. However, the evidence showed the progression of Moore’s loss of use from 1981 through 1989. The evidence is factually sufficient to support the jury’s answer. We overrule Liberty Mutual’s sixth point of error.

In its seventh and eighth points of error, Liberty Mutual challenges the jury’s findings that the February 26, 1988 injury was a producing cause of permanent total loss of use of both of her feet. Dr. Ough and Dr. Lawson gave medical opinions that Moore sustained an injury on or about February 26, 1988 which was a producing cause of total permanent loss of use of her feet at or above the ankle. Dr. Lawson testified that Moore had not sustained a total loss of use of her feet after the 1980 accident, but that movement was impaired. Dr. Ough had no opinion. Dr. Lawson did testify that Moore could not have gone out and procured employment if she had not been previously employed at ESystems after the 1980 accident. Such testimony could support a total loss of use finding after the 1980 accident which would preclude the jury from finding total loss of use after February 26, 1988. See Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex. 1962). However, in light of all other testimony previously discussed, the jury findings that the February 26, 1988 injury was a producing cause of the total loss of use of both her feet is not against the great weight and preponderance of the evidence. We overrule Liberty Mutual’s seventh and eighth points of error.

JURY ARGUMENT

In its ninth point of error, Liberty Mutual asserts that the trial court erred by not granting its motion for mistrial after improper jury argument by Moore’s counsel. Liberty Mutual complains about the following argument made by Moore’s counsel in rebuttal:

“Ten years lost salary making $31,000.00 a year. That is over $300,000 she has lost. Can’t get a penny for pain and suffering. Can’t get a penny for loss of wages in this case.”

*7 Liberty Mutual must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence. Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 840 (Tex. 1979). To do this, Liberty Mutual has the burden on seven factors, including showing that the error was not invited or provoked.

The question of lost wages and pain and suffering can not be properly considered in a workers’ compensation case. Tex. Rev. Civ. Stat. Ann. art. 8306 § 3 (Vernon 1967) (now codified as Tex. Rev. Civ. Stat. Ann. art. 8308-4.01 (Vernon Supp. 1991)). The argument by Moore’s counsel is clearly erroneous. However, Liberty Mutual’s counsel continually referred to Moore’s ability to work and her promotions as a supervisor. Counsel made the following comments during argument:

Ladies and gentleman, last Friday Tina Spence Moore worked at E-Systems. Same job and in the same capacity as she has since February the 26th, 1988. Monday, Tuesday and today, Wednesday, she has stood before you and told you she has total loss os use of her feet and can’t work. Tomorrow she will go back to work. When she gets her paycheck at E-Systems she is not going to tell them, I don’t want the paycheck, I have total loss of use of my feet and can’t work….

When she gets her promotion, ladies and gentlemen, supervisor, level two, do you believe that she is going to refuse that promotion and everything that goes with it and tell E-Systems, I have total loss of use of my feet since February 26th, 1988 I can’t accept it. Do you think that the worker’s compensation system was designed to give aid to someone who has worked everyday and who earns $31,000 per year? … … the proof in the pudding is her work. Her evaluation test and her ability to work by her supervisors-excellent. Never a black mark in the same period that she claims she had total loss of use. Recommended for promotion because of her ability to work …

That if she has total loss of use, ladies and gentlemen, to the extent that it effects her ability to work, and that is the question here, her ability to work, the loss occurred on April 12, 1980.

Moore’s counsel responded in rebuttal:

She worked when she didn’t feel like working. She worked when she knew it was going to hurt or damage or do harm to her. She did what we all want her to do. She worked. And Liberty says because she did that, penalize her. Nothing could be further from the truth. She is 38 years old. Even if she worked until normal retirement age at 65, that is 27 more years. 27 more years. She has had nine surgeries in the first ten years … let’s just say that she managed to hobble out there for 17 years. Ten years lost salary making $31,000 a year. That is over $300,000 she has lost. Can’t get a penny for pain and suffering. Can’t get a penny for loss of wages in this case.

Liberty Mutual’s constant emphasis on Moore’s continued employment invited her counsel to respond. As previously discussed, once a member no longer possesses substantial utility, employment and earning capacity are irrelevant. Liberty Mutual failed to show how it was more probable that the jury based its decision on the improper argument than all the proper evidence before it concerning her accident, injury and progressive disability. Standard Fire Ins., 584 S.W.2d at 839-40. We overrule Liberty Mutual’s ninth point of error.

*8 We affirm the trial court’s judgment.

Do Not Publish

Tex. R. App. P. 90