Court of Appeals of Texas, Dallas.

THE ST. PAUL INSURANCE COMPANY, Appellant,

v.

Plasido BENITEZ, Appellee,

No. 05-93-01848-CV

|

April 21, 1995.

Before THOMAS¹, C.J., and KINKEADE and MALONEY, JJ.

KINKEADE, Justice.

OPINION

*1 St. Paul Insurance Company (St. Paul) appeals from a judgment in favor of Plasido Benitez in this workers’ compensation case. In nine points of error, St. Paul contends that the trial court erred in: (1) disregarding certain jury findings and in substituting its own findings; (2) failing to credit payments made by St. Paul to the plaintiff; (3) awarding the plaintiff’s attorney twenty-five percent of the benefits from the judgment in disregard of the jury verdict; (4) taxing costs against St. Paul because it was the prevailing party under the jury verdict; and (5) refusing to grant St. Paul’s motion to correct judgment and enter judgment in accordance with the jury verdict. In three crosspoints, Benitez challenges the factual sufficiency of the evidence to support the jury findings that Benitez suffered no total disability and no permanent partial incapacity. Benitez also challenges the factual sufficiency of the evidence to support the jury’s determination of the amount of plaintiff’s weekly wage earning capacity during partial incapacity. Because evidence supports the jury verdict, we reverse the judgment entered by the trial court and reinstate the jury verdict in part. We also sustain Benitez’s second crosspoint, and remand for a new trial on the issue of the duration of Benitez’s injury.

FACTUAL AND PROCEDURAL BACKGROUND

Benitez was injured on November 6, 1990 while working for Dalcon. He appealed his final award from the Texas Workers’ Compensation Commission to the 298th Judicial District Court in Dallas, Texas. He alleged he, or another employee with a similar job description, had been working in the same employment for at least 210 days for the twelve- month period preceding his injury and that he earned a weekly wage of $300.23. He requested compensation at the maximum rate allowed by law and for the maximum number of weeks prescribed by the Texas Workers’ Compensation Act in addition to medical expenses, to be paid in a lump sum.

The case was tried before a jury. Benitez testified he had worked for Dalcon (formerly called Capform) since 1983. The injury on November 6, 1990 occurred as he carried a portion of a scaffold across a muddy floor. He slipped and fell in a seated position. He testified the pain he experienced in his back gradually worsened. He worked the rest of the day, but did not lift any more scaffolds. After November 6, 1990, he did not work again.

Benitez testified the pain in his back caused him to visit the Stolar Chiropractic Clinic about a week after the accident. He began receiving treatments which continued for over a one and one-half year period. On August 29, 1991, he visited Dr. Paul Alan Vaughan, an orthopedic surgeon, who continued seeing Benitez up to the time of trial. In May 1991 and July 1992, another orthopedic surgeon, Dr. George W. Wharton, performed two separate independent medical examinations on Benitez. At trial, both doctors testified by way of deposition. Both doctors described Benitez’s injury as a disk disruption in his back which allowed fluid to leak out and irritate his joints. Although they agreed on the basic diagnosis, the doctors disagreed regarding the severity of the injury and their recommended treatments. Both Benitez and St. Paul introduced medical records at trial, including records from both testifying doctors and from other doctors who had evaluated Benitez.

*2 The jury found Benitez was injured in the course of his employment on November 6, 1990, but his injuries caused only temporary partial incapacity. The jury further found his average weekly earning capacity during such incapacity to be $246, and his average weekly wage as of November 6, 1990 to be $260. Finally, the jury found that payment of compensation to Benitez, if any, in weekly installments instead of a lump sum would not result in manifest hardship and injury to him. The jury award totalled approximately $400.

Benitez filed a motion to disregard jury answers and render verdict, upon which the trial court never ruled. However, the trial court signed a judgment that disregarded some of the jury answers and substituted findings that Benitez had suffered temporary total incapacity and permanent partial incapacity. The trial court further found Benitez’s weekly earning capacity during the partial incapacity period was zero instead of $246, and any benefits should be paid in a lump sum instead of installment payments. The judgment awarded Benitez $52,221.

Benitez filed a motion for new trial based on the jury verdict. St. Paul filed a motion to correct judgment based on the judgment signed by the trial court. At the motion for new trial hearing, held more than thirty days after the trial court signed the judgment, the judge admitted he had intended to sign a judgment in accordance with the jury verdict, but had mistakenly signed the wrong judgment. Benitez’s counsel then withdrew his motion for new trial and informed the court that its plenary jurisdiction had expired. Although Benitez’s motion for new trial was withdrawn, St. Paul’s motion to correct judgment acted to extend the appellate deadline. The trial court, mistakenly believing that its plenary power had expired, refused to rule on St. Paul’s motion. St. Paul appealed, complaining that the trial court erred by: (1) disregarding the jury answers; (2) awarding Benitez attorneys’ fees and assessing costs against St. Paul; and (3) refusing to grant St. Paul’s motion to correct judgment and enter a judgment in accordance with the jury verdict.

DISREGARDING JURY ANSWERS

In its first five points of error, St. Paul contends that the trial judge erred in disregarding jury findings relating to the extent and duration of Benitez’s injury, his wage earning capacity during incapacity, and installment instead of lump sum payments. Benitez contends the record contains no evidence to support the disregarded jury findings, and the evidence established the substituted findings as a matter of law.

Standard of Review

A trial judge is authorized, under certain circumstances, to disregard jury findings. Rule 301 of the Texas Rules of Civil Procedure provides that a trial judge may disregard a jury answer to a special issue only when the issue is immaterial to the verdict or has no support in the evidence. Tex. R. Civ. P. 301; C. & R. Transp., Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex. 1966). A judgment n.o.v. occurs when a trial judge disregards an answer or answers the jury has given and enters judgment contrary to the verdict. Artripe v. Hughes, 857 S.W.2d 82, 85 (Tex. App.-Corpus Christi 1993, writ denied). When reviewing a judgment n.o.v., the appellate court must engage in a two-step analysis.

*3 In the first step, the reviewing court must examine the record to determine that no evidence supports the verdict. When reviewing a no evidence point, an appellate court is limited to considering only the evidence tending to support the jury verdict and must disregard all contrary evidence. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990). The appellate court must consider the evidence and inferences that support the jury verdict and disregard the evidence and inferences that support the judgment. Id. at 228. If more than a scintilla of evidence exists in the record, then the trial court improperly disregarded the jury answers. Id.; see also Artripe, 857 S.W.2d at 85.

Conversely, if no evidence exists in the record and the trial court properly disregarded the answers, we move to the second prong of the analysis. If the trial court substituted findings to jury questions on which the plaintiff had the burden of proof, the appellate court must look to the entire record to determine if a directed verdict would have been proper, that is, if the evidence conclusively establishes the contrary answer which the trial court substituted. Artripe, 857 S.W.2d at 85; see also Turner v. State, 850 S.W.2d 210, 212 (Tex. App.-Texarkana 1993, no writ). An issue is conclusively established when the evidence is such that ordinary minds could not differ as to the conclusion to be drawn from it. Oswald v. Texas Employers’ Ins. Ass’n, 789 S.W.2d 636, 637 (Tex. App.-Texarkana 1990, no writ). If the evidence is conclusive in favor of the trial court’s answer, then the jury’s answer was properly set aside, and the contrary answer properly substituted. Artripe, 857 S.W.2d at 86; Turner, 850 S.W.2d at 212 n.1.

In this case, the issues which the trial court disregarded were material to the verdict, as the amount of damages was based on the answers to the disregarded questions. Therefore, the judge was authorized to disregard the jury answers only if the evidence did not support the answers. If the evidence did not support the jury answers, then the judge was authorized to substitute the answers only if the evidence conclusively established the substituted answers as a matter of law.

Total Incapacity

In its first point of error, St. Paul argues the trial court erred in disregarding the jury’s finding that Benitez did not suffer total incapacity and in substituting the finding that Benitez suffered “total temporary incapacity from November 7, 1990 until May 16, 1991.” First, we examine the record to determine if any evidence supports the jury answer. If evidence does exist, St. Paul’s point of error must be sustained.

The trial court instructed the jury that:

“total incapacity” does not imply absolute inability to perform any kind of labor, but means that one is disabled from performing the usual tasks of a worker, not merely the usual tasks of any particular trade or occupation, to such an extent that he cannot get and keep employment, performing the usual tasks of a worker.

*4 Dr. George Wharton testified through deposition that Benitez could perform light duty as of May 16, 1991, lifting 20 pounds regularly and 30 pounds occasionally. He testified Benitez could pick up tools and construction materials. Dr. Wharton also testified Benitez could work light duty doing the usual tasks of a worker lifting 25 pounds frequently and 35 pounds occasionally as of July 18, 1992. He further testified, based on the medical records he reviewed, that he did not believe there was ever a time Benitez could not perform work tasks with the restrictions he had placed on Benitez on May 16, 1991.

Dr. Paul Vaughan testified he had no quarrel with Dr. Wharton’s May 16, 1991 release of Benitez to do light work duty. He testified Benitez was physically able to do light manufacturing, assembly of computer boards, soldering, a cashier’s job, a light janitorial job, cleaning of office buildings, and waiting tables. Dr. Vaughan also testified Benitez could work a light duty job, lifting 10 pounds frequently and 20 pounds maximum with frequent bending, squatting, kneeling, climbing, reaching, climbing of stairs, grasping and doing fine manipulation. He testified nothing in his records indicated Benitez could not have been working with restrictions from the first time he saw Dr. Vaughan.

Dr. Charles Crane performed a functional capacity impairment evaluation on Benitez on June 23, 1992. This evaluation was admitted during trial as Defendant’s Exhibit 7. Dr. Crane wrote, under the “General Performance” category, that Benitez attempted most of the functional activities requested of him. He concluded Benitez could perform sedentary and light work, consisting of lifting 20 pounds maximum with frequent lifting of objects up to 10 pounds and pushing and pulling of arm or leg controls. He also concluded Benitez could bend, squat, kneel, climb, reach, climb stairs, grasp, push and pull, and do fine manipulation. Dr. Crane then released Benitez to work “within the above functional abilities.”

Benitez testified he did housework, including washing dishes, cooking, laundry, and taking care of his wife’s five-year-old child, during the time of alleged “total incapacity.” Benitez further testified he was in the same physical condition during the trial he had been in since the date of the injury.

The testimony of Dr. Wharton, Dr. Vaughan, and Benitez, and Dr. Crane’s report all constitute some evidence from which the jury could have inferred that Benitez could have obtained a job doing the usual tasks of a worker at any time after the injury. Since more than a scintilla of evidence exists in the record to support the jury’s answer that Benitez did not suffer “total incapacity,” the trial court improperly disregarded the jury’s answer to Question No. 2. We sustain St. Paul’s first point of error.

Beginning Date of Partial Incapacity

In its second point of error, St. Paul argues the trial court erred in disregarding the jury’s finding that Benitez suffered partial incapacity beginning on November 7, 1990, and in substituting the finding that Benitez’s partial incapacity began on May 16, 1991. Again, we examine the record to determine if any evidence exists which supports the jury answer. If evidence does exist, we must sustain St. Paul’s point of error.

*5 The trial court instructed the jury that:

“Partial Incapacity” means any degree of incapacity less than total incapacity, whereby a person suffers a reduction [sic] earning capacity.

A person cannot have both total and partial incapacity at the same time.

The jury, having found no total incapacity, found Benitez’s partial incapacity began the day after the accident. The jury’s answer to Question No. 1 established that Benitez suffered an injury on or about November 6, 1990 during the course of his employment. Benitez testified he worked the rest of the day but did not return to work after November 6, 1990 because of the injury. The record reflects Dr. Wharton and Dr. Vaughan agreed Benitez could get and keep a job doing the usual tasks of a worker within certain restrictions as of May 16, 1991. Dr. Wharton further testified nothing in his reports indicated Benitez could not work within certain restrictions at any time after the injury. Benitez testified that after the accident he did housework, including washing dishes, doing laundry and taking care of a small child. This testimony supports the finding that Benitez could work from the date of the accident, but with a reduction in earning capacity. Because the record contains evidence to support the jury’s finding that Benitez suffered partial incapacity beginning on November 7, 1990, the trial court improperly disregarded the jury’s answer to Question No. 6. We sustain St. Paul’s second point of error.

Ending Date of Partial Incapacity

In its third point of error, St. Paul argues that the trial court erred in disregarding the jury finding that the partial incapacity ended on August 29, 1991, and in substituting a finding that Benitez’s partial incapacity was permanent. Benitez argues the record contains no evidence to support the finding that the partial incapacity was not permanent, and the evidence conclusively established the partial incapacity was permanent.

In reviewing the record for evidence to support the jury finding, again we consider only the evidence and reasonable inferences which support the verdict. The only testimony regarding the date of August 29, 1991 came from Benitez and Dr. Vaughan, who both testified Benitez first visited Dr. Vaughan on that date. Dr. Vaughan’s testimony and notes from the August 29, 1991 visit show that he diagnosed a disk disruption and recommended surgery. His records do not show that he released Benitez to work. In fact, in December 1991, Dr. Vaughan again recommended surgery. When Benitez declined the surgery, Dr. Vaughan recommended a work-hardening program to get him back to light-work duties. The testimony and exhibits do not support the finding that Benitez’s partial incapacity ended on August 29, 1991. Having determined that no evidence supported the jury finding, we review the entire record to see if the evidence conclusively established that Benitez’s partial incapacity was permanent.

Dr. Wharton and Dr. Vaughan testified Benitez had a permanent impairment in his lower spine, although they disagreed as to the extent of the impairment. The doctors based their diagnosis on examinations of Benitez, X-rays of the disc, diskograms, and functional capacity evaluations, all of which the trial court admitted into evidence. The diskograms revealed the existence of the ruptures in the disk. Both doctors testified Benitez was not able to return to heavy construction work because of the injury. Dr. Vaughan testified Benitez would never be able to return to heavy construction work. Dr. Wharton testified Benitez’s condition was permanent, but a reconditioning program could rehabilitate Benitez to some extent. He admitted he could not be certain of the extent to which Benitez could be rehabilitated. Dr. Crane’s report concluded Benitez could do only sedentary and light work, but not medium to very heavy work. Benitez testified he was still experiencing pain in his back and legs at the time of trial.

*6 Although the evidence suggests Benitez’s partial incapacity is permanent, we cannot say the evidence conclusively established permanence as a matter of law. The jury heard Benitez testify, they heard the expert testimony that suggested permanence, and they heard Dr. Wharton testify that therapy could possibly rehabilitate Benitez. It was within their province to weigh the evidence. In worker’s compensation cases, the jury must determine, from all the pertinent facts, the extent and duration of the disability resulting from a plaintiff’s injury. Navarette v. Temple Indep. Sch. Dist., 706 S.W.2d 308, 310 (Tex. 1986). Even if the evidence would support a different result, the court may not substitute its opinion for that of the jury. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.-Dallas 1986, writ ref’d n.r.e.). We conclude that the trial judge improperly substituted its finding for that of the jury. We sustain St. Paul’s third point of error.

Weekly Earning Capacity

In its fourth point of error, St. Paul asserts the trial court erred in disregarding the jury’s finding that Benitez’s weekly earning capacity during his partial incapacity was $246, and in substituting the finding that Benitez’s weekly earning capacity during the period of partial incapacity was zero. St. Paul argues that evidence supported the jury answer and, therefore, the trial court erred in disregarding the answer. Benitez argues that no evidence supports the jury’s finding of a $246 weekly earning capacity, and the evidence conclusively established that Benitez’s weekly earning capacity was zero.

First, we examine the record to determine if any evidence supports the jury finding that Benitez’s weekly earning capacity was $246. In Question No. 9, the jury found Benitez’s average weekly wage as of the time of the accident was $260. Dr. Wharton testified Benitez had a seven-percent impairment as a result of the disk disruption. Subtracting seven percent of $260 from $260 yields approximately $246, the amount found by the jury. This testimony, with Dr. Crane’s report and the testimony of Drs. Vaughan and Wharton that Benitez could perform some job duties with restrictions, is evidence to support the jury finding of $246 weekly earning capacity.

Benitez argues that because the jury used an improper method of calculating the $246, Texas Employers’ Insurance Ass’n v. Lara, 711 S.W.2d 224 (Tex. 1986) dictates reversal of the jury verdict. Benitez misreads Lara. In Lara, the jury was asked to find the plaintiff’s percentage of reduction in earning capacity during the partial incapacity period, but was not asked to find the plaintiff’s wage rate at the time of the accident. Lara, 711 S.W.2d at 225. The Court determined that the jury had no basis from which to determine the reduction in earning capacity because it did not know the plaintiff’s wage rate. Therefore, the trial court improperly submitted the question on earning capacity. Id. Here, the jury was asked to find both Benitez’s wage rate and his reduction in earning capacity. The jury questions in this case track the Texas Pattern Jury Charge, expressly approved in Lara, and did not lead to an improper calculation by the jury. We sustain St. Paul’s fourth point of error.

Credits

*7 In its sixth point of error, St. Paul contends the trial court erred in failing to find St. Paul had already paid benefits to Benitez in the amount of $7,312.36, and in failing to credit such amount to the award under the judgment. Both parties agree the credit should be applied. Benitez testified he received weekly checks from November 13, 1990 through August 13, 1991. He testified two of the checks were for $200.01 each, and thirty-seven checks were for $186.82 each. This testimony conclusively established such payments, and St. Paul should receive a credit for this amount. See National Union Fire Ins. Co. v. Wyar, 821 S.W.2d 291, 294 (Tex. App.-Houston [1st Dist.] 1991, no writ).

Benitez argues the court applied the credit. He points to the judgment, which states:

[t]he Court further finds that weekly total, temporary benefits have been paid for a total of 39 weeks, which is to be credited to Defendant for its liability of payment for total, temporary benefits.

Although Benitez correctly recites the court’s finding in the judgment, the decretal portion of the judgment does not contain language applying the credit. “Although reasons and findings are proper inclusions in a judgment, the reasons given form no part of the judgment rendered.” Ellis v. Mortgage & Trust, Inc., 751 S.W.2d 721, 724 (Tex. App.-Fort Worth 1988, no writ). Without language in the judgment ordering the credit, the trial court’s finding has no effect. We therefore hold that a credit in the amount of $7,312.26 should be applied to any amounts awarded under the judgment in this case. We sustain St. Paul’s sixth point of error.

BENITEZ’S CROSSPOINTS

We now turn to Benitez’s crosspoints, which challenge the sufficiency of the evidence to support jury findings 2, 3, 4, 7 and 8. Benitez asserts in three crosspoints the trial court erred in not granting his motion for new trial. The record reflects Benitez filed a motion for new trial complaining of the jury verdict, but he withdrew his motion during the motion for new trial hearing in an attempt to deprive the judge of plenary power. St. Paul argues Benitez cannot now bring his crosspoints, because his withdrawn motion for new trial did not preserve his factual insufficiency complaints.

A review of the record reveals that Benitez was not complaining of the judgment the trial court actually entered, but the disregarded jury verdict. The rules do not require Benitez to file a motion for new trial because he received the relief he wanted under the judgment n.o.v. Rule 342(c) of the Texas Rules of Civil Procedure allows an appellee to advance by crosspoint any ground that would have vitiated the verdict when the trial court rendered judgment n.o.v. Tex. R. Civ. P. 342(c); see also Thomas v. Service Lloyds Ins. Co., 860 S.W.2d 245, 248 n.3 (Tex.App.-Austin), rev’d on other grounds, 866 S.W.2d 606 (Tex. 1993) (Supreme Court set aside judgments of courts below and remanded without reference to merits, pursuant to a settlement agreement of parties). Even though Benitez incorrectly words his crosspoints to complain of trial court error in not granting his motion for new trial, the substance of his arguments complains that the jury verdict is against the great weight and preponderance of the evidence. Appellate courts should liberally construe points of error, looking to the argument under an incorrectly worded point in order to adjudicate the issue. See Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990); see also Pool v. Ford Motor Co., 715 S.W.2d 629, 632-33 (Tex. 1986). We will view Benitez’s crosspoints as sufficiency challenges.

*8 Because our disposition of St. Paul’s points of error reinstates the jury verdict in part, we now reach Benitez’s crosspoints regarding the sufficiency of the evidence to support the verdict.

Standard of Review

In deciding a “factual sufficiency” point, we review all of the evidence, including any evidence contrary to the jury verdict, and decide whether the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); 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.). Since an appellate court is not a fact finder, it may not pass upon the credibility of the witnesses or substitute its judgment for that of the trier of fact, even if the evidence would support a different result. Clancy, 705 S.W.2d at 826.

In worker’s compensation cases, the extent and duration of the disability resulting from a plaintiff’s injury must be determined by a jury from all of the pertinent facts. Navarette, 706 S.W. 2d at 310. Jurors are the exclusive judges of the weight and credibility of witnesses. Harvey v. Stanley, 803 S.W.2d 721, 724 (Tex. App.-Fort Worth 1990, writ denied). In cases involving conflicting evidence, the jury is the sole arbiter of which evidence should be believed. Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 401 (Tex. App.-Houston [1st. Dist.] 1993, writ dism’d w.o.j.). When presented with conflicting evidence, the trier of fact may believe one witness and disbelieve others, resolve inconsistencies in testimony, and accept lay testimony over that of an expert. Harvey, 803 S.W.2d at 724. Furthermore, this court may not substitute its opinion for that of the jury in reviewing a disputed fact issue. Id.

Total Disability

In his first crosspoint, Benitez contends the jury’s answers to Questions No. 2, 3, and 4, that Benitez suffered no total incapacity, were so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. He argues the evidence is overwhelming that Benitez suffered some period of total disability. We disagree.

Both Drs. Vaughan and Wharton testified Benitez could perform certain work duties with some restrictions, and he could perform light work duty from the first time they saw him. Dr. Wharton testified that nothing in his records indicated Benitez could not have worked with some restrictions from the date of the accident. This evidence was contradicted by Benitez’s own testimony that he had not been able to work from the date of the accident until he was returned to light duty by his own physician on July 22, 1992. However, Benitez also testified he was able to work around the house during this time period, washing dishes, doing laundry and taking care of a young child. He further testified he was in the same physical condition at the time of trial that he had been in since the date of the injury.

*9 The evidence does not overwhelmingly support a finding that Benitez suffered some period of total incapacity. Because the testimony was disputed, the jury was entitled to pass on the credibility of the witnesses and resolve inconsistencies in the testimony. We will not substitute our opinion for that of the jury. The jury finding that Benitez did not suffer some period of total incapacity is not so against the great weight and preponderance of the evidence as to be manifestly unjust. We overrule Benitez’s first crosspoint.

Ending Date of Partial Incapacity

In his second crosspoint, Benitez contends the jury’s answer to Question No. 7, that Benitez’s partial incapacity ended on August 29, 1991, was so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. He argues the evidence is overwhelming that Benitez suffered permanent partial incapacity. We agree the jury finding that Benitez’s partial incapacity ended on August 29, 1991 is against the great weight and preponderance of the evidence.

The only testimony regarding the date of August 29, 1991 came from Benitez and Dr. Vaughan, who both testified Benitez first visited Dr. Vaughan on that date. Dr. Vaughan’s testimony and notes from the visit show he diagnosed a disk disruption and recommended surgery on that date. His records do not show he released Benitez to work. In fact, Dr. Vaughan again recommended surgery in December 1991. When Benitez declined the surgery, Dr. Vaughan recommended a work-hardening program to get him back to light- work duties. Dr. Wharton’s testimony and Dr. Crane’s reports provide further evidence that Benitez was not able to work without restrictions as of August 29, 1991.

Because the expert testimony indicated Benitez was disabled on August 29, 1991, and because no evidence suggests his disability ended on that date, the jury’s finding that Benitez’s partial incapacity ended on August 29, 1991 is against the great weight and preponderance of the evidence. We sustain Benitez’s second crosspoint.

Wage Earning Capacity

In his third crosspoint, Benitez asserts the jury’s answer to Question No. 8, that Benitez’s weekly wage earning capacity was $246, was so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. He argues the answer produced a loss of wage earning capacity of only fourteen dollars weekly (for a total award of approximately $391), and such a small recovery was contrary to the overwhelming evidence. We disagree.

The jury found Benitez was injured and his injuries caused a partial reduction in his earning capacity. The medical experts’ testimony regarding the severity of his injury was disputed. Dr. Wharton testified Benitez had a seven-percent impairment rating because of the injury. Although Benitez testified he was unable to work for twenty months after the accident, he also testified he was in the same condition at trial as he was at the time of the accident. The jury saw Benitez at trial and was competent to assess his credibility.

*10 Because the evidence was disputed, it was within the province of the jury to determine the extent of Benitez’s injury. See Navarette, 706 S.W.2d at 310; see also Gardiner, 859 S.W. at 401. Once the jury had determined the extent of the injury, it could make a determination of how much the injury had reduced Benitez’s earning capacity. This court cannot substitute its opinion for that of the jury. Based on the evidence presented at trial, the jury’s finding that Benitez suffered a fourteen dollar per week reduction in earning capacity was not so against the great weight and preponderance of the evidence as to be manifestly unjust.

Benitez asserts the jury’s award, which amounted to $378 in total damages for Benitez, was so small as to amount to a finding of no incapacity. Benitez argues a finding of partial incapacity with no corresponding reduction in earning capacity is reversible error, citing Lozano v. Vigilant Insurance Co., 721 S.W.2d 285 (Tex. 1986); Employers Reinsurance Corp. v. Holland, 162 Tex. 394, 347 S.W.2d 605 (1961) and Winters v. Highland Underwriters Insurance Co., 693 S.W.2d 729 (Tex. App.-Houston [14th Dist.] 1985, no writ). Although Benitez correctly articulates the principle that a fatal conflict exists between a finding of partial incapacity and an earning capacity finding during such period of partial incapacity equal to or greater than the pre-injury wage rate, such a conflict does not exist here. The jury found a reduction in earning capacity of fourteen dollars per week. Although small, the amount was a reduction and did not result in an earning capacity finding equal to or greater than the pre-injury wage rate. We overrule Benitez’s third crosspoint.

ATTORNEY’S FEES AND LUMP SUM AWARD

Because of our disposition of this case, we need not decide St. Paul’s points of error numbers five and seven. In point of error number five, St. Paul contends the trial court erred in disregarding the jury finding that Benitez’s award should be paid in installments and in substituting the finding that it should be paid in a lump sum. In its seventh point of error, St. Paul contends the trial court erred in awarding Benitez’s attorney twenty-five percent of the award under the judgment. Although we remand this case to the trial court for a partial retrial, both issues are moot.

We remand for a retrial of the sole issue of when Benitez’s partial incapacity ended. Even if a new jury found Benitez’s injuries were permanent, the worker’s compensation statute will operate to cap the period of disability at 300 weeks. See Act of May 10, 1973, 63rd Leg., R.S., ch. 88, § 6, 1973 Tex. Gen Laws 187, 189-90 (formerly Tex. Rev. Civ. Stat. Ann. art. 8306, § 11 (Vernon 1987), repealed by Act of December 12, 1989, 71st Leg., 2nd C.S., ch 1, § 16.01(7), 1989 Tex. Gen. Laws 1, 114). The jury found the value of Benitez’s partial incapacity at fourteen dollars per week. Applying the calculation set out in the worker’s compensation statute, the most Benitez could recover would be approximately $3000. See Act of May 10, 1973, 63rd Leg., R.S., ch. 88, § 6, 1973 Tex. Gen. Laws 187, 189-90 (formerly Tex. Rev. Civ. Stat. Ann. art. 8306, § 11 (Vernon 1987) (repealed 1989)). This award would be completely offset by the $7,312.26 credit to be given to St. Paul. Therefore, Benitez would not be entitled to any award to be paid in either a lump sum or installment payments. Further, since the judgment would result in a zero award to Benitez, Benitez’s attorney’s would have no basis for a twenty-five percent contingent fee award. Accordingly, the questions regarding lump sum versus installment payments and attorney’s fees as a percentage of Benitez’s future recovery are moot.

Costs

*11 In its eighth point of error, St. Paul argues the trial court erred in taxing costs against St. Paul Insurance Company. St. Paul contends the jury verdict resulting in a net award of zero for Benitez was equivalent to a take-nothing verdict. Therefore, the trial court should have assessed costs against Benitez. Because a new judgment on remand will result in a net award of zero for Benitez, we address St. Paul’s eighth point of error.

Rule 131 of the Texas Rules of Civil Procedure provides that a successful party to a suit shall recover from his adversary all the costs of the suit, except where otherwise provided. Tex R. Civ. P. 131. A “successful party” is one who obtains a judgment of a competent court vindicating a civil claim of right. Mixon v. National Union Fire Ins. Co., 806 S.W.2d 332 (Tex. App.-Fort Worth 1991, writ denied).

Several Texas courts have dealt with the issue of whether a plaintiff in a worker’s compensation case whose monetary award under the judgment is offset by benefits paid by the defendant insurance company is a “successful plaintiff.” See Mixon, 806 S.W.2d at 335- 36; see also Bullard v. Universal Underwriters Ins. Co., 609 S.W.2d 621, 626 (Tex. Civ. App.-Amarillo 1980, no writ). These courts concluded the plaintiffs were “successful plaintiffs” under Rule 131 because the judgments awarded both compensation benefits and medical expenses. As the Bullard court explained, benefits already paid by the insurance company offset only compensation benefits, not liability for medical expenses. See Bullard, 609 S.W.2d at 626. Therefore, the plaintiffs would recover their medical expenses under the judgment, even though the compensation benefits had already been paid in full. Since the plaintiffs would recover under the judgment, they were “successful plaintiffs” entitled to costs. See Mixon, 609 S.W.2d at 336; see also Bullard, 609 S.W.2d at 626. Cf. Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 806 (Tex. App.-Dallas 1988, no writ) (court did not allow successful worker’s compensation plaintiff whose claims were paid in full by defendant insurance company before trial to recover attorney’s fees because she did not “prevail” on her claim at trial).

Here, the jury awarded only compensation benefits. Because the benefits already paid by St. Paul completely offset the jury award, Benitez is not a “successful plaintiff” under Rule 131. Further, St. Paul, having received a take-nothing judgment pursuant to the jury verdict, is the “successful party” and is entitled to recover its costs. See Collerain v. City of Grandbury, 760 S.W.2d 364, 368 (Tex. App.-Fort Worth 1988, no writ). The trial court erred in taxing costs against St. Paul. We sustain St. Paul’s eighth point of error.

Because of our disposition of this case, we need not reach St. Paul’s ninth point of error.

For these reasons, we reverse the trial court’s judgment n.o.v. and reinstate the jury verdict in part. We remand this case to the trial court for a new trial in accordance with this opinion.

	Footnotes
1		The Honorable Linda Thomas was on the original panel at the time this cause was submitted for decision. Justice Thomas was sworn in as Chief Justice on January 1, 1995.