Service Lloyds Ins. Co. v. Martin

• Decision Date: 13 May 1993
• Docket Number: No. 05-92-01405-CV,05-92-01405-CV
• Citation: 855 S.W.2d 816
• Parties: SERVICE LLOYDS INSURANCE COMPANY, Appellant, v. Rory Dell MARTIN, Appellee.
• Court: Texas Court of Appeals

Page 816

855 S.W.2d 816

SERVICE LLOYDS INSURANCE COMPANY, Appellant, v. Rory Dell MARTIN, Appellee.

No. 05-92-01405-CV.

Court of Appeals of Texas Dallas.

May 13, 1993.

Robert B. Galbreath and D. Bradley Dixon, Dallas, for appellant.

Wayne R. Shahan, Dallas, for appellee.

Before THOMAS, MALONEY, and BARBER, JJ.

OPINION

THOMAS, Justice.

In this workers' compensation case, Service Lloyds Insurance Company (the carrier) appeals from a judgment rendered in favor of Rory Dell Martin. In three points of error, the carrier challenges the factual sufficiency of the evidence to support the jury's findings on the elements of Martin's claim. In three additional points of error, the carrier complains that the trial court erred in excluding certain testimonial and documentary evidence that related to Martin's credibility and his practice of filing claims for injuries. We overrule all points of error. Accordingly, we affirm the trial court's judgment.

FACTUAL BACKGROUND

Martin worked in various unskilled laborer positions. At the time of the incident in question, he was working as a porter at a car dealership. Martin's duties included mowing the lawn, washing cars, and cleaning buildings. On October 19, 1989, he was instructed to mow the lawn. According to Martin, he injured his left shoulder while trying to start the lawn mower. When Martin tried to get medical treatment on the day of the incident, the hospital refused to treat him after being informed by the employer that this was not an on-the-job injury. Martin returned to work and was able to perform his duties.

Martin received the first medical treatment for his shoulder on October 25, 1989, the day that he was fired from the dealership. At that time, he began a treatment program with Dr. Pablo Xiques. Martin received a total of forty-seven treatments from Dr. Xiques. After being released by Dr. Xiques, Martin obtained additional treatments at Parkland Memorial Hospital.

CONTESTED ELEMENTS OF THE WORKERS' COMPENSATION CLAIM AND

THE EVIDENCE ADDUCED AT TRIAL

In the first three points of error, the carrier challenges the factual sufficiency of the evidence to support the jury's findings that Martin was injured on the date alleged in the scope of his employment and that he suffered permanent partial incapacity as a result of the injury.

A. Standard of Review

In reviewing factual-sufficiency points, we consider all of the evidence including any evidence contrary to the judgment. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). This Court must consider, weigh, and compare all of the evidence in the record pertinent to the issue under consideration. Sosa v. City of Balch Springs, 772 S.W.2d 71, 72 (Tex.1989) (per curiam); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). After we have considered and weighed all of the evidence, we may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam).

In making its findings, the jury weighs the evidence, assesses the credibility of witnesses, and resolves conflicts and inconsistencies. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex.1986). The jurors are the judges of the facts proved and of the reasonable inferences to be drawn therefrom. Lockley v. Page, 142 Tex. 594, 598, 180 S.W.2d 616, 618 (1944). We are mindful that this Court is not a fact finder, and we cannot substitute our judgment for that of the jury, even if a different finding could be reached on the evidence. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex.App.--Dallas 1986, writ ref'd n.r.e.).

B. Required Elements to Sustain a Claim

A claimant must establish his entitlement to benefits under the Workers' Compensation Act (the Act). ¹ Sifuentes v. Texas Employers' Ins. Ass'n, 754 S.W.2d 784, 786 (Tex.App.--Dallas 1988, no writ). It is the claimant's burden to establish that an injury occurred in the course of employment. Texas Employers' Ins. Ass'n v. Page, 553 S.W.2d 98, 99 (Tex.1977). The claimant also must establish that the injury produced total or partial disability. Garcia v. Aetna Casualty & Sur. Co., 542 S.W.2d 477, 479 (Tex.Civ.App.--Tyler 1976, no writ). The claimant also must prove the duration of any incapacity. Texas Employers' Ins. Ass'n v. Thames, 236 S.W.2d 203, 205 (Tex.Civ.App.--Fort Worth 1951, writ ref'd).

C. The Carrier's Contentions

The thrust of the carrier's argument is that there was no compensable on-the-job injury on the date alleged. In support of this position, the carrier argues that Martin had a history of left shoulder ailments. Further, the carrier points out that Martin reinjured his shoulder a few weeks before this incident, which necessitated his wearing a sling. The carrier contends that assuming there was some type of injury on the date in question, Martin did not suffer any change in condition because there was no reduction in his earning capacity.

The carrier further asserts that the testimony of Dr. Xiques is insufficient to support the jury's finding of a permanent partial incapacity. In support of this argument, the carrier points out that the diagnosis and treatment was based upon an inaccurate patient history and no objective tests support the doctor's opinions. Finally, the carrier claims that Martin's testimony is not sufficient to support the verdict.

D. Preexisting Injury

The fact that a claimant has a preexisting injury, which enhances or aggravates the injury complained of, does not of itself defeat a right of recovery under the Act. See Page, 553 S.W.2d at 100; Sowell v. Travelers Ins. Co., 374 S.W.2d 412, 414 (Tex.1963). In order to defeat a claim because of a preexisting injury, the carrier had to show that the prior injury was the sole cause of Martin's present incapacity. Page, 553 S.W.2d at 100.

E. Partial Incapacity

Partial incapacity means that a person is disqualified from performing the usual tasks of his or her job, although still capable of performing labor of a less remunerative class than before the injury. Thus, the person suffers a reduction in earning capacity. Texas Employers' Ins. Ass'n v. Lara, 711 S.W.2d 224, 225 (Tex.1986); 75 TEX.JUR.3d Work Injury Compensation § 254 (1991). The purpose of the Act is to compensate an injured employee, not for the loss of earning nor for the injury itself, but for loss of earning capacity. Employers Reinsurance Corp. v. Holland, 162 Tex. 394, 396, 347 S.W.2d 605, 606 (1961).

Generally, the duration and extent of an incapacity resulting from an injury is at best a reasonable estimate that must be determined by a jury from all pertinent facts before it. Texas Employers' Ins. Ass'n v. Washington, 437 S.W.2d 340, 346 (Tex.Civ.App.--Dallas 1969, writ ref'd n.r.e.). The issue as to incapacity may be established by the testimony of the worker alone. Reina v. General Accident Fire & Life Assurance, 611 S.W.2d 415, 417 (Tex.1981).

Evidence that a claimant is working and earning money does not conclusively establish that a worker's disability is neither total nor permanent; it is merely factual evidence to be taken into consideration by the jury along with the other evidence in the case. See Texas Employers' Ins. Ass'n v. Draper, 658 S.W.2d 202, 207 (Tex.App.--Houston [1st Dist.] 1983 no writ); Trinity Universal Ins. Co. v. Scott, 342 S.W.2d 348, 349-50 (Tex.Civ.App.--Fort Worth 1961, writ ref'd n.r.e.).

F. Application of Facts to Law

The following summary represents the evidence in favor of and contrary to the jury's verdict.

Martin's lengthy history of medical problems relative to his left shoulder began in 1985 as a result of an accident. There were a number of instances in which Martin dislocated his shoulder.

In 1988, Martin underwent surgery on his left shoulder. The shoulder had not fully recovered from the surgery at the time of the October 19 incident.

During the first week of October 1989, Martin was involved in a fight where he again sustained an injury to his left shoulder. As a result of this altercation, he began wearing the arm in a sling for support.

Because of the sling, Martin's job duties were limited to those which could be performed with his right hand. ² After the October 19 incident, Martin could perform these same duties. In fact, Martin performed his assigned duties until he was fired on October 25.

The day Martin was fired, he went to see Dr. Xiques. ³

Before the October 19 incident, Martin worked forty to fifty hours per week. His salary was five dollars per hour with time-and-a-half for overtime.

Before the incident, Martin often worked on the weekends for his supervisor's father. He decided not to do this after October 19 because he thought that it would work against him in this lawsuit.

After being released by Dr. Xiques, Martin held only two jobs. The first was a laborer position with Gifford-Hill for two and one-half months. The second was a position with a temporary agency where he worked in a warehouse. The shoulder injury did not have anything to do with Martin's termination from these positions.

Martin falsified his job application with Gifford-Hill when he indicated that he had never been injured on the job. He did this because he needed money and thus wanted the job.

Martin continued to experience pain, and his shoulder continued to "pop out of place." However, by the time of the trial, Martin's arm felt better than it did before the October 19 incident.

Dr. Xiques determined that Martin was incapable of working from October 25 until March 12, 1990.

The doctor's diagnosis was based upon the medical history he received, his physical examination of the shoulder, and the observation of Martin's progress under the treatment plan. No objective diagnostic tests were performed.

Martin did not provide a complete medical history. On the first visit, he told the doctor that he had injured his...