Court of Appeals of Texas, Beaumont.

Catarina TIJERINA, Appellant

v.

SPRING BRANCH INDEPENDENT SCHOOL DISTRICT, Appellee.

No. 09-94-071 CV.

|

May 12, 1994.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION

PER CURIAM.

*1 This is a workers’ compensation case. The jury found Catarina Tijerina received an injury in the scope of her employment with Spring Branch Independent School District and that the injury was a producing cause of partial incapacity of approximately three years’ duration. The trial court found the District had paid workers compensation benefits in excess of the amount to which Tijerina was entitled, and entered a take nothing judgment except for reasonable and necessary medical care. Tijerina combines five points of error in a single argument which challenges the jury’s factual findings, as follows:

Point of error one: The jury’s finding that the appellant sustained no period of total incapacity is against the overwhelming weight of the evidence.

Point of error two: There is no evidence to support the jury’s finding that the appellant sustained no period of total incapacity.

Point of error three: The jury’s finding that the ending date of any partial incapacity was February 22, 1993, is against the overwhelming weight of the evidence.

Point of error four: There is no evidence to support the jury’s finding that the ending date of any partial incapacity was February 22, 1993.

Point of error five: There is no evidence to support the jury’s finding that appellant’s wage earning capacity during any period of partial incapacity was $275 per week.

The jury found Tijerina received an injury in the course of her employment. In response to Question 2, the jury found the injury was a producing cause of partial incapacity, but failed to find total incapacity. Point of error two states a “no evidence” standard. This was an issue upon which Tijerina bore the burden of proof. In reviewing legal sufficiency complaints where the appellant had the burden of proof, we first examine the record for evidence supporting the finding, and ignore all evidence to the contrary; if there is no evidence to support the finding, we examine the entire record to determine if appellant’s position was established conclusively as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 686 (Tex.1989); Holley v. Watts, 629 S.W.2d 694 (Tex.1982). The injury occurred February 16, 1990. Tijerina argues she conclusively established total disability because one of the doctors who examined her did not release her to return to work until March 8, 1990. That physician examined Tijerina on March 6, noted “Ms. Tijerina has a normal clinical examination of her back except for a structural congenital scoliosis” which he found to be “grossly abnormal.” He released her to work on a regular duty basis effective March 8. Tijerina had posterior spinal fusion surgery in July 1992. We find evidence in the record from which the jury could have believed Tijerina was not totally disabled, and from which they could have attributed any total disability to her congenital condition and to diagnosed degenerative disc disease rather than to the work related injury. Point of error two is overruled.

*2 Point of error one urges the same finding is contrary to the overwhelming weight and preponderance of the evidence. Appellate complaints directed towards the factual sufficiency, where the appellant bore the burden of proof, will be sustained only if the jury’s finding is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175 (Tex.1986); Dyson v. Olin Corp., 692 S.W.2d 456 (Tex.1985). The jury failed to find Tijerina met her burden of establishing a period of total incapacitation. Tijerina worked for two weeks after the injury. A succession of doctors examined her. Their reports were in evidence, and the jury could have concluded from those reports that Tijerina was not totally disabled. Although one of the doctors expressed the opinion that Tijerina was not able to seek and maintain employment, there is controverting medical opinion in the record. Point of error two is overruled.

Point of error four maintains there is “no evidence” Tijerina’s period of partial incapacity ended February 22, 1993. Since she had the burden of proof, the appropriate standard of review is “matter of law” or “conclusive evidence,” as discussed under point of error two. A physical therapist’s report dated February 22, 1993, indicated Tijerina had completed a work hardening program and recommended she apply for a teacher’s aid or similar position, with restrictions on lifting or carrying 20 pounds. This is some evidence Tijerina’s partial incapacity ended February 22, 1993. Point of error four is overruled.

Point of error three contends the finding discussed in point of error four is against the overwhelming weight and preponderance of the evidence. We disagree. The physical therapist’s report is medical evidence in the record from which the jury could reasonably believe Tijerina’s partial incapacity ended on the date found in response to Question 4. Point of error three is overruled.

Point of error five avers there is “no evidence” to support the jury’s finding that appellant’s wage earning capacity during any period of partial incapacity was $275 per week. We reject appellant’s argument that a lack of evidence compels a finding Tijerina had no earning capacity for the time in question. Tijerina did not work during the period in question. There is evidence in the record that she was capable of working. The judgment recited that plaintiff earned an average $357.69 weekly wage prior to her injury. The jury found a partial disability and a loss of wage earning capacity. Point of error five is overruled. We affirm the judgment.

AFFIRMED.