Maryland Cas. Co. v. Duke

• Decision Date: 25 February 1992
• Docket Number: No. 6-91-105-CV,6-91-105-CV
• Citation: 825 S.W.2d 232
• Parties: MARYLAND CASUALTY COMPANY, Appellant, v. Crystal D. DUKE, Appellee.
• Court: Texas Court of Appeals

Page 232

825 S.W.2d 232

MARYLAND CASUALTY COMPANY, Appellant, v. Crystal D. DUKE, Appellee.

No. 6-91-105-CV.

Court of Appeals of Texas Texarkana.

Feb. 25, 1992.

Rehearings Denied March 24, 1992.

James Corley Henderson, Henderson, Bryant & Wolfe, Sherman, for appellant.

David C. Turner, Bonham, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

Maryland Casualty's appeal in this workers' compensation case questions the legal and factual sufficiency of the evidence supporting the jury's findings that Crystal Duke was totally and permanently disabled on April 1, 1989. Maryland also contends that the award improperly included benefits beyond 401 weeks from the date of her injury. We find that the evidence is sufficient to support the award, but agree that the award covered an improper interval.

Duke slipped and fell while working part-time as a waitress at the Pizza Hut in Bonham. She was treated briefly at a hospital emergency room and returned to work three days later. She has worked almost continuously since the accident for various employers. Her jobs ranged from waitressing and retail sales to secretarial and newspaper work.

Although Duke's work was not affected by the accident at first, she eventually developed headaches and a "pinch" in her tailbone. She began experiencing nausea, blackouts, and vomiting. In December 1989, she went to see a chiropractor, Dr. Clem Martin, who diagnosed a neck injury and attributed it to trauma. X-rays were taken, but no other tests have been performed. Dr. Martin restricted Duke from work for one month in 1990, but never assigned her a disability rating. Duke was released from treatment in July 1990.

Only Duke and Dr. Martin testified at trial. Maryland called no witnesses. A motion for instructed verdict was overruled, as were motions for judgment non obstante veredicto and for new trial.

Maryland first challenges the legal and factual sufficiency of the evidence supporting the jury's findings that Duke became totally and permanently disabled on April 1, 1989. In reviewing legal sufficiency points, we must consider only the evidence and reasonable inferences supporting the findings, disregarding all evidence and inferences to the contrary. Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex.1988); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965). If there is some probative evidence more than a scintilla supporting the jury's findings, the legal insufficiency point must be overruled. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

Factual insufficiency points require that we consider all the evidence. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); In re King's Estate, 244 S.W.2d at 662. Unless the evidence, as a whole, is clearly insufficient and wrong, the point must be overruled. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). If the verdict is supported by sufficient evidence, we may not substitute our judgment for that of the jury, even if we would have found otherwise if we had been the trier of fact. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 651-52 (Tex.1988); Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988); In re King's Estate, 244 S.W.2d at 662.

Maryland asserts that there is but a scintilla of evidence supporting the jury's finding of total incapacity. Total incapacity occurs when a worker is disabled to the extent that employment at labor of the class performed when injured cannot be procured or retained. Texas Employer's Ins. Ass'n v. Bartee, 757 S.W.2d 451, 454 (Tex.App.--Houston [1st Dist.] 1988, writ denied); Commercial Ins. Co. of Newark v. Puente, 535 S.W.2d 948, 950 (Tex.Civ.App.--Corpus Christi 1976, writ ref'd n.r.e.).

We find evidence and inferences supporting the finding. Duke testified that she could not go back to work full-time as a waitress at one of her prior jobs, the Golden Corral. Although she also testified that the work at the Golden Corral was more physically demanding than that of Pizza Hut, the work was similar. Duke also testified to her difficulties meeting work requirements and to the discomfort she experienced performing several types of work, including waitressing, retail sales, secretarial work, and newspaper distribution. She testified that she had no physical problems before the injury. Her chiropractor, Dr. Martin, testified that Duke's ability to lift was affected, as well as her ability to stand or sit for long periods of time. He testified that Duke's condition prevented her from getting or keeping employment. This evidence constitutes some probative evidence of total disability.

Maryland also asserts that the evidence is factually insufficient to support the jury finding of total incapacity, contending that the evidence of Duke's medical and work history is such that the jury's finding cannot be sustained. There is evidence that Duke has worked at several jobs since her injury. Job application and exit interviews reflect that she did not leave the jobs because of her injury.

Maryland points to evidence that Duke did not seek treatment for fourteen months after her release from the emergency room the night of the accident. Her doctor did not advise her against seeking any type of employment. She was released from her doctor's care in July 1990, having been restricted from work for only one month. Dr. Martin testified that Duke was employable when not in pain.

On the other hand, Dr. Martin testified to Duke's total incapacity and to the physical effects of the injury. He also testified to Duke's inability to work at jobs requiring her to sit or stand for long periods of time. Duke testified to several types of duties she could no longer perform, such as lifting, pulling and pushing. She also testified that she could not sit and sew or type for more than a few hours per day, nor could she work as a waitress full-time. Duke testified that she "fudged" concerning her injury on one application in order to get the job. She also testified that she worked out of economic necessity, which is an important factor for the jury to consider. Liberty Mutual Fire Ins. Co. v. Lynch, 624 S.W.2d 698, 701 (Tex.App.--El Paso 1981, no writ). Considering all the evidence, we conclude that the jury's finding of total incapacity is supported by factually sufficient evidence.

Maryland also asserts that the evidence is legally and factually insufficient to support the jury finding that Duke's injury was permanent. Duke testified that she believed her problems were permanent. Although jury findings of permanent incapacity may be based solely on the plaintiff's testimony, see e.g., American Home Assurance Co. v. Burnett, 585 S.W.2d 793, 795 (Tex.Civ.App.--Texarkana 1979, no writ); Rowland v. Standard Fire Ins. Co., 489 S.W.2d 151 (Tex.Civ.App.--Houston [14th Dist.] 1972, writ ref'd n.r.e.), in this case Dr. Martin also testified that Duke's injury was chronic and progressively degenerative. Thus, there is some evidence that this disability is permanent.

Maryland contends that the evidence of Duke's subsequent work history undermines this jury finding. Work history is merely one factor for the jury to consider in determining the extent and duration of the disability. Liberty Mutual Fire Ins. Co. v. Lynch, 624 S.W.2d at 701. We do not view this evidence as conclusive against permanent incapacity.

Maryland also argues that since Duke was pursuing a formal education, she should not be compensated for her inability to perform manual labor. Maryland relies on Lumbermen's Mutual Casualty Co. v. Villalpando, 605 S.W.2d 705, 709 (Tex.Civ.App.--Corpus Christi 1980, no writ), where the court reasoned that since the worker's earning capacity was not diminished, the injury was not compensable, even though it prevented any heavy work. In Villalpando, the worker graduated from a technical school after his injury and obtained a less strenuous job at a higher wage.

In the present case, Duke had not received a degree by the time of trial. She was not employed full-time, and testified she could not work full-time. Dr. Martin and Duke testified that she could not perform jobs that would require her to sit or stand in one place for long periods of time. Such a disability could have an adverse effect on Duke's earning capacity. We find the evidence, as a whole, factually sufficient to support the jury finding that Duke's earning capacity was permanently diminished.

Maryland also asserts that the evidence is not legally or factually sufficient to support the jury's finding that Duke's incapacity occurred on April 1, 1989.

The evidence supporting this finding is indirect, as there was no testimony concerning the precise date the disability arose. Duke testified that she began having bad headaches and that the "pinch" in her tailbone developed two or three months after she started a new job in October 1988. Dr. Martin testified that Duke was incapacitated, but did not testify as to a specific date that the incapacity began. He did testify that this incapacity was caused, to a reasonable medical probability, by Duke's fall in October 1988. This is some evidence that Duke's injury did not totally disable her until after her injury.

There is no evidence directly controverting the April 1, 1989, date. Maryland asserts that this date, being eight months prior to Duke's first chiropractic appointment, is speculative. However, the extent and duration of disability is an estimate the jury must often make. See Reina v. General Accident Fire & Life Assurance Corp., 611 S.W.2d 415, 417 (Tex.1981); American Home Assurance Co. v. Coronado, 628 S.W.2d 818, 822 (Tex.App.--Amarillo 1981, writ ref'd n.r.e.); Rendon v. Texas Employers' Ins. Ass'n, 599 S.W.2d 890, 894 (Tex.Civ.App.--Amarillo 1980, writ ref'd n.r.e.). A worker's disability need not commence on the date of injury. See Houston General Ins. Co. v. Vera, 638 S.W.2d 102, 106 (Tex.App.--Corpus Christi 1982, writ...