Court of Appeals of Texas, Houston (14th Dist.).

Devin SPILLERS, Appellant

v.

MOVE SOLUTIONS, INC., and Leasing Services, Inc., Appellees.

No. 14-95-00712-CV.

|

Aug. 8, 1996.

OPINION

AMIDEI, Judge.

*1 This appeal is from a take-nothing judgment entered against appellant, Devin Spillers, in his negligence suit against his employers after a work-related injury. Appellee, Leasing Services, Inc. (“LSI”), is a staff leasing company which provided personnel services for the other appellee, Move Solutions, Inc. (“MSI”), whose business includes installation of modular furniture. Spillers raises seventeen points of error challenging the sufficiency of the evidence supporting the trial court’s failure to find in his favor. We affirm.

Background

LSI employed Spillers and assigned him to work for MSI installing modular furniture at the McLane Companies corporate headquarters in Temple, Texas.¹ Spillers, who had previous experience as an installer, worked the night shift from 7:00 p.m. to 7:00 a.m. On May 11, 1992, at approximately 11:30 p.m., Spillers injured his back while attempting to lift, with the help of a co-worker, a fully assembled overhead modular furniture unit which measured 72” x 30” and weighed approximately 150 pounds. Spillers declined medical treatment that night, and his co-worker, Joey Clement, drove him to his home in Houston. Dr. William Francis, a physician selected by appellees, later diagnosed Spillers as having a herniated disk and recommended surgery.

Appellees, nonsubscribers under the workers’ compensation laws, denied Spillers benefits under LSI’s Employee Injury Benefit Plan. Spillers then sued both companies claiming various theories of negligence. After a bench trial, the trial court found no liability on the part of either appellee. In this appeal, Spillers attacks the sufficiency of the evidence supporting the trial court’s findings of fact and conclusions of law.

Standard of Review

Findings of fact in a case tried to the court have the same force and dignity as a jury’s verdict upon jury questions. City of Clute v. City of Lake Jackson, 559 S.W.2d 391, 395 (Tex.Civ.App.-Houston [14th Dist.] 1977, writ ref’d n.r.e.). The trial court’s findings of fact are not conclusive, however, when a complete statement of facts appears in the record, as here. See Middelton v. Kawasaki Steel Corp., 687 S.W.2d 42, 44 (Tex.App.-Houston [14th Dist.], writ ref’d n.r.e. per curiam, 699 S.W.2d 199 (Tex.1985). Findings of facts are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing the evidence supporting a jury’s answer. Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.-Houston [14th Dist.] 1990, no writ). We review the trial court’s conclusions of law drawn from the facts to determine their correctness. Mercer v. Bludworth, 715 S.W.2d 693, 697 (Tex.App.-Houston [1st Dist.] 1986, writ ref’d n.r.e.).

Spillers raises both factual and legal sufficiency of the evidence challenges. Legal sufficiency points of error assert a complete lack of evidence on an issue and are either “no evidence” points or “matter of law” points, depending upon whether the appellant had the burden of proof. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.App.-Amarillo 1988, writ denied).

*2 When an appellant attacks the legal sufficiency of an adverse finding on an issue on which he had the burden of proof, he must demonstrate on appeal that the evidence conclusively established all vital facts in support of the issue. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). In reviewing a “matter of law” challenge, we first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id.

If there is no evidence to support the finding, we then examine the entire record to determine if the contrary proposition is established as a matter of law. Id.

In reviewing a “no evidence” point, we consider only the evidence and inferences that tend to support the finding and disregard all evidence and inferences to the contrary. Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 459 (Tex.1992). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. Southern States Transp., Inc. v. State, 774 S.W.2d 639, 640 (Tex.1989).

If a party attacks the factual sufficiency of an adverse finding on an issue on which he did not have the burden of proof, he must demonstrate that there is insufficient evidence to support the adverse finding. See Hickey v. Couchman, 797 S.W.2d 103, 109-10 (Tex.App.-Corpus Christi 1990, writ denied). The test is whether, after examining all the evidence, the evidence supporting the finding is so slight, or the evidence against it so strong, that the finding is manifestly unjust and clearly wrong. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

When a party attacks a finding concerning an issue upon which he had the burden of proof, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). In our review, we must examine the entire record to determine if there is some evidence to support the finding, if the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust, or if the great preponderance of the evidence supports its nonexistence. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). Whether the great weight challenge is to a finding or a nonfinding, we may reverse and remand the case for a new trial when we conclude that the finding or nonfinding is against the great weight and preponderance of the evidence. Ames v. Ames, 776 S.W .2d 154, 158 (Tex.1989), cert. denied, 494 U.S. 1080 (1990).

Appellees’ Negligence

Because appellees are workers’ compensation nonsubscribers, Spillers must establish their negligence to recover. Werner v. Colwell, 909 S.W.2d 866, 868 (Tex.1995) (citing Sears, Roebuck & Co. v. Robinson, 154 Tex. 336, 280 S.W.2d 238, 239 (1955)). To prove negligence, Spillers must produce evidence to establish a duty, a breach of that duty, and damages proximately caused by the breach. See El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987).

*3 Spillers asserted various acts of negligence by appellees. He claims on appeal that the evidence does not support the trial court’s findings and conclusions that: (1) appellees did not breach their duty to provide Spillers with adequate and/or reasonably competent fellow employees, and appellees did not fail to provide sufficient help to perform his job; (2) appellees did not breach their duty to provide Spillers with reasonably safe and suitable tools, appliances and equipment by failing to provide him with a back support belt; (3) appellees did not breach their duty to establish and enforce safety rules and regulations, and appellees instructed employees to disassemble large units before lifting them; (4) any injury to Spillers was not caused by any negligence by appellees; and (5) Spillers suffered no recoverable damages.

(1) Adequate staffing

In his first and second points of error, Spillers argues there is insufficient evidence to support the trial court’s finding of fact number 35 and conclusions of law numbers 8 and 14, which found that appellees did not breach their duty to provide adequate and/or reasonably competent fellow employees in sufficient numbers to complete the job. While we do not review a trial court’s conclusions of law for factual sufficiency, we may review its conclusions drawn from the facts to determine their correctness. Town of Sunnyvale v. Mayhew, 905 S.W.2d 234, 243 (Tex.App.-Dallas 1994, no writ).

Although an employer is not an insurer of his employees’ safety at work, an employer does have a duty to use ordinary care in providing a safe work place. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993). This duty includes a “nondelegable and continuous” duty to an employee to provide adequate help under the circumstances for the performance of the required work. Western Union Tel. Co. v. Coker, 146 Tex. 190, 204 S.W.2d 977, 978 (1947); Harrison v. Oliver, 545 S.W.2d 229, 230 (Tex.Civ.App.-Houston [1st Dist.] 1976, writ dism’d). The employer is not liable, however, when it has provided help and injury results when the employee voluntarily proceeds to do the work without assistance. Coker, 204 S.W.2d at 979. The same is true when sufficient help is nearby and available and the employee does the work without seeking or asking for assistance. Id.

Our review of the evidence supporting the trial court’s findings as to the adequacy of staffing for the installation job on which Spillers worked when he was injured reveals the following. The project manager, Tim King, testified that on the evening of Spillers’ injury, there were sufficient employees assigned to work the job. Supervisor Mike Armstrong testified that appellees had more people working than needed. There were sixteen men on Spillers’ shift, which included four supervisors, six installers, two movers and four “pickers,” who did light moving and cleaning up of debris. Armstrong testified that at the time of the injury, the crew was on schedule and there was no need to push the employees to work quickly. He further testified that if Spillers needed assistance in performing his duties safely, assistance was available.

*4 Spillers admitted the supervisors did not “ride” the installers and they could always accomplish the tasks assigned to them during the 12-hour shift. He admitted the only reason he felt he was being pushed was because he was instructed to work hard and get the job done. Spillers could not say how many workers manned this job, but he saw about four workers in his area. Spillers testified he had been on the job for several days and had become accustomed to working nights. The injury occurred within a few hours of beginning his shift.

Joey Clement, the co-worker assisting Spillers, admitted that if they had taken the time to disassemble the unit, he and Spillers could have safely lifted it. The evidence showed Clement had numerous years of experience and did not need any additional training to perform his job safely.

The evidence contrary to the trial court’s finding includes testimony from Armstrong that Spillers and Clement were working by themselves on the first floor of the building, while all other employees were on the third floor. King testified the men were supposed to be trained in installing these systems so no on-site training was given. Spillers and Clement both testified, however, that they were unfamiliar with this brand of modular system. Clement testified more hands were needed because they were facing a deadline and appellees were pushing them too hard. The men worked 12-hour shifts, and sometimes were required to work an additional hour or two. Clement also testified they needed three men to safely lift the overhead unit into place. He stated there were no movers or extra helpers to call on to help lift the overhead unit. After reviewing all the evidence, both supporting and contrary to the trial court’s finding, we conclude the court’s finding is not against the great weight and preponderance of the evidence.

In an alternative and somewhat contradictory argument, Spillers contends that Clement violated company policy and specific instructions given during safety meetings that the 72-inch overhead unit should be disassembled before being put in place. All parties agree Clement was helping Spillers lift the large overhead unit when Spillers was injured. Therefore, Spillers argues appellees, as Clement’s employers, are responsible for their employee’s negligence, which caused Spillers’ injury. See Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569-70 (Tex.1972).

When an employer is a nonsubscriber under the workers’ compensation laws, common law defenses are not available to the employer in a suit by its employee. See Act effective January 1, 1991, 71st Leg., 2d C.S., ch. 1, § 3.03, 1989 Tex. Gen. Laws 14 (formerly Tex.Rev.Civ. Stat. Ann. art. 8308-3.03), repealed, (current version codified at Tex. Lab.Code Ann. § 406.033 (Vernon 1996)). Specifically, a nonsubscribing employer may not claim the affirmative defenses of assumption of the risk, contributory negligence, and the fellow servant rule. Id.; Harrison v. Harrison, 597 S.W.2d 477, 481 (Tex.Civ.App.-Tyler 1980, writ ref’d n.r.e.). Fellow servants are those workers who serve the same master, work under the same control, derive their authority and compensation from the same common source, and engage in the same general business. Funk Farms, Inc. v. Montoya, 736 S.W.2d 803, 806 (Tex.App.-Corpus Christi 1987, writ ref’d n.r.e.). The general rule under the fellow servant doctrine is that a master is not liable to one servant whose injury was proximately caused by the actions of a fellow servant engaged in the same enterprise. Id.

*5 Appellees complain that Spillers’ contention that they are responsible for the negligence of his co-worker is waived because it is raised for the first time on appeal. However, the record reveals that Spillers requested leave to file his Third Original Amended Petition after the close of evidence, seeking a trial amendment to raise this theory of Clement’s negligence in light of the testimony presented at trial. There is no record of a ruling on Spillers’ request for leave, however.

If a party makes an objection to the introduction of evidence on the ground the evidence is not supported by the pleadings, the other party must amend its pleadings. Bedgood v. Madalin, 600 S.W.2d 773, 775-76 (Tex.1980). A court may not refuse a trial amendment unless (1) the opposing party presents evidence of surprise or prejudice, or (2) the amendment asserts a new cause of action or defense and, thus, is prejudicial on its face. State Bar v. Kilpatrick, 874 S.W.2d 656, 658 (Tex.), cert. denied, 114 S.Ct. 2740 (1994). When an amendment asserts a new cause of action or defense and alters the nature of the trial itself, the trial judge has the discretion to deny leave to amend. Chapin & Chapin, Inc. v. Texas Sand & Gravel Co., 844 S.W.2d 664, 665 (Tex.1992); Hardin v. Hardin, 597 S.W.2d 347, 350 (Tex.1980).

Even if we presume that leave was granted for Spillers’ trial amendment, he may not prevail on his fellow worker’s negligence theory. The trial court made no findings of fact or conclusions of law regarding this theory. Once the trial court files findings of fact, either party may ask the trial court to make specific additional findings within ten days of the date the court files the original findings. Tex.R. Civ. P. 298; McDuffie v. Blassingame, 883 S.W.2d 329, 337 (Tex.App.-Amarillo 1994, writ denied). If the trial court’s original findings do not include any findings on a ground of recovery or defense, then the party relying on the ground of recovery or defense must request additional findings of fact in proper form or the ground is waived. Sears, Roebuck & Co. v. Nichols, 819 S.W.2d 900, 907-08 (Tex.App.-Houston [14th Dist.] 1991, writ denied); Pinnacle Homes, Inc. v. R.C.L. Offshore Engineering Co., 640 S.W.2d 629, 630-31 (Tex.App.-Houston [14th Dist.] 1982, writ ref’d n.r.e.). There is no such request in our record, and we must conclude Spillers waived his ground of recovery on fellow servant negligence.

In addition, Spillers does not challenge the trial court’s finding number 34, which states that his fellow employees and supervisors on the job site, including Clement, were experienced and reasonably competent in their job responsibilities. Unless the trial court’s findings are challenged by a point of error on appeal, they are binding upon this court. Cohen v. Sims, 830 S.W.2d 285, 287-88 (Tex.App.-Houston [14th Dist.] 1992, writ denied); Wade v. Anderson, 602 S.W.2d 347, 349 (Tex.App.-Beaumont 1980, writ ref’d n.r.e.). Thus, we are bound by this finding, which contradicts Spillers’ theory that Clement was negligent.

*6 We hold the evidence is sufficient to support the trial court’s findings of fact as to the adequacy of the staffing for the work involved. The court’s conclusions of law based on those findings are therefore correct. We overrule Spillers’ first two points of error.

(2) Equipment

In point of error twelve, Spillers contends the evidence is factually insufficient to support the trial court’s finding of fact number 33 and conclusion of law number 6, which found appellees did not breach their duty to furnish Spillers with reasonably safe and suitable tools, appliances and equipment with which to work. The basis of Spillers’ theory under this point is that appellees were negligent in failing to provide him with a back support belt to use while lifting the heavy overhead units.

All witnesses agreed appellees did not provide back support belts at this installation job. An employer has a duty to provide the employee with safe instrumentalities and tools. Harrison, 545 S.W.2d at 230. An employee’s back injury after lifting a heavy object has been found to be foreseeable and caused by the negligence of the employer where the employee had repeatedly requested lifting belts be provided before the injury. Leitch v. Hornsby, 885 S.W.2d 243, 248 (Tex.App.-San Antonio 1994, writ granted). There is no evidence Spillers requested a lifting belt before his injury.

Both Armstrong and King testified back support belts do not necessarily prevent injuries. King testified some injuries may actually be caused by wearing a back support belt because workers have a false sense of security and attempt to lift more than they are able. He testified it is not common in the industry for installers to wear support belts. Spillers admitted that he had all the tools he needed when he went to work for appellees.

The contrary evidence consists of the following testimony. Spillers testified his back injury could have been caused by appellees’ failure to provide a back support belt. He stated that the injury “might not have happened” if he had worn the belt, and that he probably would not have hurt his back as severely if he had worn a belt. Clement testified he had been in the industry for eight to ten years and over 70% of the companies he worked with used back support belts. Clement testified wearing a belt at this job would have helped prevent injury. Joe Torres, MSI’s general manager, filed an incident report indicating support belts would be required in the future when employees lifted excessive weight.

After examining the entire record, we conclude that the trial court’s finding that the employers did not fail to furnish proper tools and equipment is not against the great weight and preponderance of the evidence. Point of error twelve is overruled.

(3) Safety Rules

In his points of error thirteen and fifteen, Spillers contends the trial court’s finding of fact number 16 and the court’s conclusion of law number 12 are against the great weight and preponderance of the evidence. Finding 16 stated that after another employee was injured the night of Spillers’ accident, Armstrong instructed and reminded all employees, including Spillers, that they were prohibited from lifting fully assembled overhead modular furniture units in excess of 60 inches in length without first disassembling the units. Conclusion number 12 found appellees did not breach their duty to establish and enforce reasonable safety rules and regulations to perform the work.

*7 Both King and Armstrong testified safety meetings were held on this job. King testified it was standard procedure for LSI to conduct safety meetings at the beginning of a project. King testified that LSI’s safety policy was for the supervisor to go over the work order before each shift and workers were advised to seek help if needed and not to use their backs in lifting. It was a basic rule to “de-install” units larger than 60 inches, both for the workers’ safety and to protect the units. King testified he was present during a safety training session where both Clement and Spillers were present. King testified Armstrong instructed all installers to disassemble the large overhead units before installing them. Armstrong testified he was instructed to conduct a safety meeting with all installers on the evening of Spillers’ accident. Before Spillers’ injury, another employee, Tracy Saunders, injured his foot when he dropped a large unit. Following that accident, Armstrong held a safety meeting for all employees about thirty minutes before Spillers’ injury. Armstrong testified he specifically instructed the employees to disassemble any overhead unit over 60 inches long. Both Spillers and Clement were present.

In contrast to the evidence supporting the trial court’s finding, both Spillers and Clement testified they had no safety meetings, and received no literature or manuals. They specifically denied Armstrong conducted a safety meeting and instructed disassembly of large units. King had testified he was present at the meeting before Spillers’ injury, but admitted he was asleep in his hotel during the time period Armstrong said the meeting occurred. King testified there were no written instructions to disassemble overhead units over 60 inches in length. King further testified that because these employees were supposed to be experienced installers, no on-site instructions were given. Spillers and Clement both testified they were unfamiliar with the particular brand of modular system used at the McLane job. Armstrong admitted that until Saunders was injured, the workers had not been taking the large units apart before moving them.

We conclude the trial court’s finding concerning safety rules is not against the great weight and preponderance of the evidence. Consequently, the court’s conclusion of law based on that finding is not erroneous. In addition, Spillers fails to attack finding of fact 36, which stated appellees had well established safety rules and regulations and reminded employees of these rules at daily safety meetings. This unchallenged finding is supported by the evidence and is binding on this court. See Cohen, 830 S.W.2d at 287-88. Therefore, we overrule points of error thirteen and fifteen.

(4) Causation

In his third point of error, Spillers argues the trial court’s conclusion of law number 15, which determined that any injury suffered by Spillers while in appellees’ employ was not caused by any negligence on appellees’ part, is wrong because it is against the great weight and preponderance of the evidence in the record. We have already found the evidence sufficient to support the court’s failure to find the specific acts of negligence alleged by Spillers. In addition, there is ample evidence in the record to support the court’s finding of no causation.

*8 The employee must prove that the employer’s negligence was the proximate cause of his injuries, which includes proof of cause in fact and foreseeability. See Farley v. M M Cattle Co., 529 S.W.2d 751, 755 (Tex.1975). The foreseeability of a back injury in connection with the regular lifting of heavy objects must be judged by a reasonable person standard. See Exxon Corp. v. Roberts, 724 S.W.2d 863, 867 (Tex.App.-Texarkana 1986, writ ref’d n.r.e.).

When an employer has provided a safe means of accomplishing a task, it is unreasonable to foresee that an employee will choose to perform the task in an unsafe manner. See Fields v. Burlison Packing Co., 405 S.W.2d 105, 109-10 (Tex.Civ.App.-Fort Worth 1966, writ ref’d n.r.e) (employer found not negligent where employee chose to move a heavy tub of meat in an unsafe manner when it could have been moved safely); Great Atlantic & Pac. Tea Co. v. Lang, 291 S.W.2d 366, 368 (Tex.Civ.App.-Eastland 1956, writ ref’d n.r.e.) (injured employee denied recovery where safe way to move items existed, but employee chose unsafe manner of loading too many items on buggy).

The evidence at trial demonstrated there was a safe means available to move the large overhead units. Clement testified that if he and Spillers had taken the time to disassemble the overhead unit, the two of them could have safely lifted it. Armstrong testified that help was available if Spillers needed it to perform his job duties. Spillers admitted that the incident was not foreseeable to either appellees or himself. King also testified that a back injury from lifting the 72-inch overhead unit was not foreseeable. He stated LSI had only one case of a back injury from the time of Spillers’ injury to the time of trial. As to Spillers’ contention that the lack of a support belt caused his injury, both Armstrong and King expressed the opinion that appellees’ failure to provide a back support belt did not contribute to Spillers’ injury.

The evidence contrary to the court’s conclusion that appellees did not cause Spillers’ injury is slight. Spillers testified he was being pushed and was required to work twelve-hour night shifts. However, he later admitted none of his supervisors were rushing him. Spillers also testified his injury “might not have happened” if he had worn a back support belt.

After reviewing all of the evidence in the record, we conclude that trial court’s conclusion of law is correctly based on a finding that appellees did not cause Spillers’ injury, which finding is not against the great weight and preponderance of the evidence. Therefore, we overrule Spillers’ third point of error.

(5) Damages

In point of error nine, Spillers asserts that the trial court’s finding of fact number 38, which found Spillers failed to produce evidence he suffered damages as a result of his injury, is against the great weight and preponderance of the evidence. Spillers asserts in point ten that conclusion of law number 17, which found he suffered no compensable injury, is wrong. In his eleventh point, Spillers argues the trial court’s conclusion of law number 18 is erroneous. The court concluded Spillers was not entitled to recover any damages from appellees as a result of the May 11, 1992 injury.

*9 Appellees concede Spillers introduced evidence of medical expenses and lost wages.² However, the court found appellees were not negligent. Therefore, Spillers is not entitled to damages. We have reviewed all of appellants’ challenges to the court’s findings that appellees committed no negligence and determined these findings and conclusions are supported by the record. Therefore, the trial court did not err in its finding and conclusions denying damages. See Corpus Christi Nat’l Bank v. Gerdes, 551 S.W.2d 521, 525 (Tex.Civ.App.-Corpus Christi 1977, writ ref’d n.r.e.) (holding that in the absence of liability findings, damages issues are immaterial). We overrule points of error nine, ten and eleven.

Spillers’ Negligence

In point five, Spillers challenges the trial court’s conclusion of law number 16 that his injury was solely caused by his own negligence. He raises both legal and factual sufficiency challenges to the evidence supporting this conclusion.

In a negligence action brought against a nonsubscribing employer, the only common law defenses available to the employer are to show that it was not guilty of negligence proximately causing the injury, or conversely, that the employee was guilty of some act that was the sole proximate cause of the injuries.³ Texas Farm Products Co. v. Stock, 657 S.W.2d 494, 502 (Tex.App.-Tyler 1983, writ ref’d n.r.e.).

In Spillers’ arguments to this court, he admits that his action in trying to lift the 72-inch overhead unit was negligent. He contends however, he was aided by Clement, whose negligence is imputed to appellees. He asserts that this negligence and appellees’ other acts of negligence discussed above were contributing factors to his injury.

The evidence of appellees’ non-negligence has already been reviewed and found sufficient. Spillers’ waived his contention as to Clement’s negligence. Therefore, the trial court did not err in concluding Spillers’ negligence was the sole cause of any injury. Spillers admitted that if he and Clement had taken the time to disassemble the overhead unit, they could have lifted it safely. After reviewing all the evidence, we hold that there is legally and factually sufficient evidence to support the trial court’s conclusion that Spillers’ negligence was the sole cause of his injury. We overrule point of error five.

Pre-existing Condition

In point of error four, Spillers asserts there is no evidence supporting the trial court’s finding of fact number 30 that any injury was the result of a pre-existing condition. In point seven, he attacks the legal sufficiency of the evidence supporting finding number 27 that his back complaint was a continuation of a prior injury suffered in 1991.

Whether Spillers’ injury was the result of a pre-existing condition is irrelevant in the absence of any negligence by appellees. In any event, there is more than a scintilla of evidence to support the trial court’s findings. As noted earlier, we consider only the evidence supporting the trial court’s findings in reviewing “no evidence” challenges. T.O. Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex.1992).

*10 Spillers’ prior medical records show he suffered back injuries on two prior occasions. First, Spillers sought medical treatment at Ben Taub Hospital Emergency Room in September 1989 for recurring back pain. While working for another installation company, Veristar, Inc., in September 1991, Spillers injured his back lifting a 200-pound panel. The medical report indicated when he lifted the panel, he felt a sharp pain in his right hip and down his leg, exactly the same description given for the May 1992 injury. He was diagnosed as having a lumbar strain. Spillers’ medical records indicate he was referred to Dr. Dozier for orthopedic evaluation, but Spillers did not comply with this recommendation. Records from Dr. Howard, Spillers’ initial treating physician for his current injury, note that he presented a similar complaint in September, 1991. His initial diagnosis was “lumbosacral strain.” When Spillers was injured in May 1992, he told Armstrong that the same thing had happened before and he had hurt his back before. He told Armstrong he did not need to go to the doctor, but just needed to relax.

Thus, we conclude there is some probative evidence supporting a finding that Spillers’ injury was the result of a pre-existing condition. We overrule points of error four and seven.

Remaining Points

Spillers’ remaining points of error attack specific factual findings made by the trial court which are not essential to the judgment. For example, he attacks the trial court’s finding that another worker, Saunders, was injured early in the evening of May 11, 1992, and was taken to the hospital. He also contests the court’s findings that despite the fact that the hotel was no more than a fifteen-minute drive from the work site, appellees’ supervisors were unable to reach him at his hotel for several hours until Clement called the job site at approximately 3:00 a.m. and informed them he was taking Spillers to his home in Houston. He denies there is evidence supporting the court’s finding he was denied benefits because his original treating physician, Dr. Howard, found his injury resulted from a pre-existing condition. He also denies there is any evidence to support the court’s finding that he was discharged by a previous employer for poor performance. None of these findings are essential to the court’s judgment. Even the trial court’s finding as to the reason appellees denied Spillers benefits is immaterial when the evidence supports the findings of their non-negligence.

Findings are required only when they relate to ultimate or controlling issues, and not when they are merely evidentiary issues. Dura-Stilts v. Zachry, 697 S.W.2d 658, 661 (Tex.App.-Houston [1st Dist.] 1985, writ ref’d n.r.e.). An erroneous finding of fact or conclusion of law does not require a judgment to be reversed if the judgment is otherwise correct on the merits. Able v. Able, 725 S.W.2d 778, 780 (Tex.App.-Houston [14th Dist.] 1987, writ ref’d n.r.e.). If there are other findings and conclusions supporting the judgment, an erroneous finding is not essential to the disposition of the case and does not constitute reversible error. Schismatic and Purported Casa Linda Presbyterian Church in Am. v. Grace Union Presbytery, Inc., 710 S.W.2d 700, 708 (Tex.App.-Dallas 1986, writ ref’d n.r.e.), cert. denied, 484 U.S. 823 (1987). We hold the trial court’s judgment has support in its findings, and any error in the court’s evidentiary findings is not reversible. Therefore, we overrule points of error six, eight, fourteen, sixteen and seventeen.

*11 In conclusion, after examining the entire record, we determine that Spillers’ challenges to the sufficiency of the evidence supporting the controlling issues must fail. In making this determination, we note that most of the evidence contrary to the court’s findings is provided by Spillers and his friend, Clement. Spillers’ credibility was seriously undermined by appellees’ admission into evidence of a videotape showing Spillers performing strenuous activity while he claims he is too severely injured to carry on normal activities or do any work involving lifting, bending, stooping or heavy physical exertion. In addition, the trial court heard evidence of Spillers’ drug and alcohol use, including allegations of drinking while at work on a previous job. Spillers’ trial testimony was also impeached by inconsistent statements made during his deposition. In a bench trial, the trial court, as the fact finder, is the sole judge of the credibility of the witnesses. Hudson v. Winn, 859 S.W.2d 504, 508 (Tex.App.-Houston [1st Dist.] 1993, writ denied). The trial judge may accept or reject the testimony of any witness in whole or in part, and while and we may not have reached the same findings, we may not substitute our judgment for that of the trial court. Forscan Corp. v. Dresser Indus., Inc., 789 S.W.2d 389, 394 (Tex.App.-Houston [14th Dist.] 1990, writ denied).

We affirm the judgment of the trial court.

	Footnotes
1		The parties treat both appellees as Spillers’ employer in this appeal. For purposes of workers’ compensation insurance, including those situations where an employer elects not to subscribe, the Labor Code now recognizes co-employer relationships in staff leasing arrangements such as this one. See Tex. Lab.Code Ann. § 91.042(c), (d) (Vernon 1996). See also Restatement (Second) of Agency, § 226 (recognizing joint employment) and Brown v. Aztec Rig Equip., Inc., 921 S.W.2d 835, 844 (Tex.App.-Houston [14th Dist.] 1996, writ requested) (holding staff leasing company and client company were joint employers).
2		The parties stipulated that appellees paid Spillers wage replacement benefits of $1,206.50 and medical expenses of $1,722.53.
3		The statute provides that an employer may also defend a negligence action on the ground that the injury was caused by an intentional act of the employee or was the result of the employee’s intoxication. See former Tex.Rev.Civ. Stat. Ann. art. 8308-3.03(c) (now codified at Tex. Lab.Code Ann. § 406.033(c) (Vernon 1996)).