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

Karl W. GAITAN, Appellant,

v.

THE ST. PAUL INSURANCE COMPANY, Appellee.

No. C14-89-00561-CV.

|

April 5, 1990.

Before PAUL PRESSLER, CANNON, and ELLIS, JJ.

OPINION

ELLIS, Justice.

*1 This is an appeal of a workers’ compensation case tried to a jury. Karl W. Gaitan (appellant) filed suit against The St. Paul Insurance Company (appellee) for total and permanent disability resulting from an injury sustained while in the course and scope of his employment. The jury answered special issues on total and permanent incapacity and partial incapacity and judgment was rendered in favor of appellee. We affirm as modified.

Appellant, Gaitan, assigns two points of error on appeal. In his first point of error, appellant complains that the trial court erred in overruling plaintiff’s Motion for New Trial or in the alternative Motion for Judgment Non Obstante Veredicto on the grounds that as a matter of law plaintiff’s total incapacity began on January 27, 1981, or in the alternative, as a matter of law, plaintiff’s total incapacity began sometime before October 4, 1988, the answer given by the jury as the beginning date of total incapacity in its answer to Special Issue No. 2(a). In his second point of error, appellant asserts the trial court erred in not granting plaintiff’s Motion for a New Trial for the reason that the jury’s finding on Special Issue No. 2(a) which stated that the beginning date of total incapacity was October 4, 1988 was against the overwhelming weight of the evidence presented at trial.

On January 27, 1981, Gaitan was the operator of a steam roller for the Jones T. Finke Company when a piece of heavy machinery fell on his right leg. Gaitan was hospitalized and placed in skeletal traction for eight weeks. Dr. John Perkins was the attending physician. On March 30, 1981, Dr. Perkins placed Gaitan in a leg cast brace and discharged him from hospital. On June 17, 1981, Dr. Perkins, MD, removed Gaitan’s cast and brace, ordering crutches for Gaitan whose leg muscles were very weak due to his right leg’s five months of immobilization. In addition, these muscles had atrophied and Gaitan’s right leg was smaller than his left. Dr. Perkins sent Gaitan to physical therapy to rebuild the muscles. On September 1, 1981, Dr. Perkins released Gaitan back to light duty work. Gaitan drove a truck back and forth between two flagmen. In February of 1982, Dr. Perkins authorized Gaitan’s return to full duty work.

Gaitan was subsequently seen by Dr. Perkins periodically until June of 1984. At no time during these two and one-half years did Dr. Perkins find that Gaitan was not able to return to full work duty. On March 17 and 18, 1986 Gaitan complained to Dr. Perkins of leg and back pain. Dr. Perkins prescribed motrin and told Gaitan to return to work.

In our treatment of this case we consolidate appellant’s two assignments of error which both focus on the issue of the beginning date of Gaitan’s total incapacity.

It is uncontested that the injury Gaitan sustained on January 27, 1981 was a broken right leg. In this case, the jury was required to determine the extent and duration of incapacity incurred by Gaitan as the result of the extension of his leg injury to his back. The jury found that Gaitan became totally incapacitated from such extension to the back on October 4, 1988 which was the second day of trial.

*2 The scope of review for a “matter of law” point is generally treated like a “no evidence” point. Holley v. Watts, 629 S.W.2d 694, 696-97 (Tex. 1982). See also McGalliard v. Kuhlmann, 722 S.W.2d 694, 696-97 (Tex. 1986). In evaluating a “no evidence” point, an appellate court is limited to reviewing only the evidence tending to support the jury findings. Shermann v. First Nat’l Bank, 760 S.W.2d 240, 242 (Tex.1988). If there is any evidence to support the finding, the point must be overruled. If there is no evidence to support the finding, the reviewing court then examines the entire record to determine if the contrary proposition is established as a matter of law. Holley v. Watts, 629 at 696-97.

With this standard of review in mind we note that the jury had before it the following evidence; both Gaitan and also his treating physician, Dr. Perkins, testified Gaitan’s complaints from the date of his accident until his return to full duties were limited exclusively to his broken right leg; Gaitan had worked continuously from September of 1981 until the time of trial; Gaitan had resumed working at his pre-accident position as a heavy equipment operator in February of 1982 virtually every day, twelve hours a day; at the time of his accident, Gaitan was earning between $4.00 and $5.00 dollars an hour whereas, at the time of trial, Gaitan was earning $8.25 an hour; Gaitan’s supervisor, Mart Hammond, testified Gaitan was capable of operating a steam roller and that Hammond had no plan to recommend termination of Gaitan; Gaitan, himself, testified at trial that he intended to keep his job; Dr. Perkins stated that Gaitan was then able to continue working full duty, but that Gaitan would probably have disc problems in the future due to the extension of his leg injury to his back.

Clearly this evidence is sufficient to support the jury’s finding that Gaitan was not totally incapacitated from the date of his return to work until the second day of trial, October 4, 1988. Sifuentes v. Texas Employers’ Ins. Ass’n, 754 S.W.2d 784, (Tex. App.–Dallas 1988, no writ). Further, as to Gaitan’s challenge to the sufficiency of the evidence, our review of the entire record reveals evidence of probative force to support the jury’s finding that the beginning date of Gaitan’s total incapacity was October 4, 1988 and, further, that the jury’s finding is not against the great weight or preponderance of the evidence that it is clearly wrong or unjust. Appellant’s points of error one and two are overruled.

Finally, we note that appellee conceded at oral argument that the credit to appellee of $4,256 as recited in the trial court’s Judgment was improper. We will delete from the judgment the $4,256 credit given to appellee by the trial court.

Accordingly, the judgment of the trial court is affirmed as modified.

Do Not Publish – TEX. R. APP. P. 90.