Gonzalez v. Texas Employers Insurance Ass'n

772 S.W.2d 145, 1989 Tex. App. LEXIS 460, 1989 WL 19802
CourtCourt of Appeals of Texas
DecidedMarch 9, 1989
DocketNo. 13-88-101-CV
StatusPublished
Cited by4 cases

This text of 772 S.W.2d 145 (Gonzalez v. Texas Employers Insurance Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gonzalez v. Texas Employers Insurance Ass'n, 772 S.W.2d 145, 1989 Tex. App. LEXIS 460, 1989 WL 19802 (Tex. Ct. App. 1989).

Opinions

OPINION

DORSEY, Justice.

Appellant, Robert Gonzalez, brought suit against appellee, Texas Employers Insurance Association, for workers’ compensation benefits following a back and shoulder injury which he sustained while in the course of employment with Southwestern Bell Telephone Company. The jury found that appellee furnished, within a reasonable time, all medical care reasonably required as a result of the injury. Accordingly, the trial court ordered that appellant take nothing by his suit. Appellant now complains of the trial court’s judgment by four points of error. We affirm in part and reverse and render in part.

On March 31, 1986, appellant was repairing telephone lines for Southwestern Bell when his truck ran out of gas. After obtaining the help of several passersby, he succeeded in pushing the truck off the road and into a parking lot. According to his testimony, while in the process of moving his vehicle, he “strained” very hard and hurt his back and shoulder.

Appellant subsequently saw Doctor Fuentes, who prescribed pain pills. When the medication failed to offer relief, appellant went to Dr. Douglas Roth, a chiropractor. Dr. Roth treated appellant and then referred him to Dr. Rufino Gonzalez, an orthopedic surgeon. Dr. Gonzalez’ examination revealed that appellant was suffering from arthritis in the shoulder area, a strained shoulder joint, and spondylolisthe-sis of the lower back. Dr. Gonzalez treated appellant and referred him back to Dr. Roth for continued chiropractic therapy.

After Southwestern Bell’s physician asked him to do so and assured Dr. Roth that light duty was available, Dr. Roth released appellant to light-duty on June 23, 1986. Dr. Roth testified that as of June 23, appellant could not do the usual tasks of a workman. Appellant returned to work at Southwestern Bell on June 23 and was immediately terminated.

Dr. Roth then referred appellant to another orthopedic surgeon, Dr. Robert Lewis. Lewis examined appellant and determined that exploratory surgery was necessary. The surgery, which took place on October 22, 1987, revealed signs of an inflamed rotator cuff, as well as arthritis and bursitis of the shoulder. Lewis testified that following the surgery, appellant would suffer a moderate decrease in upper body strength which could create difficulties in obtaining employment.

Appellant asserts by his first point of error that the jury’s response to Special Issue No. 3 is against the great weight and preponderance of the evidence. Special Issue No. 3 and its answer read as follows:

3. Do you find from a preponderance of the evidence that the injury was a producing cause of any total incapacity?
Answer “Yes.”
A. Find the beginning date of total incapacity. Answer “April 1, 1986.”
B. Find the duration of total incapacity. Answer “June 23, 1986.”

Appellant specifically argues that the jury’s limitation of “total incapacity” to the period ending June 23, 1986, was improper in that such period should extend through the date of surgery, October 22, 1987.

[147]*147In reviewing a point of error based upon evidentiary sufficiency, we will follow the well-established test set forth in Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). In that case, the Supreme Court held that an appellate court must “clearly state why the jury’s finding is so factually insufficient or is so against the great weight of the evidence as to be manifestly unjust; why it shocks the conscience.” Id.

“Total incapacity” was defined in the court’s charge as follows:

“TOTAL INCAPACITY” does not imply absolute inability to perform any kind of labor, but means that one is disabled from performing the usual tasks of a workman, not merely the usual tasks of any particular trade or occupation, to such an extent that he cannot get and keep employment.

The foregoing definition was approved by the Supreme Court in Texas Employers Insurance Association v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1002 (1944) and Texas Employers Insurance Association v. Hawkins, 369 S.W.2d 305, 307 (Tex.1963). At issue is whether the great weight of the evidence reflects that appellant was, as he contends, “totally incapacitated” after June 23, 1986.

Appellant directs our attention to the following facts in support of his position. First, appellant’s arm was in a sling at the time of trial. Second, Dr. Roth testified that appellant was going to require continued physical therapy and would not be able to perform the “usual tasks of a worker.” Third, Dr. Lewis stated that appellant would probably have difficulty finding a job as a “heavy manual laborer.”

We note, however, that the record also reflects that Dr. Roth, who originally released appellant to light duty and continued to treat appellant through the time of trial, never rescinded the light-duty release. Dr. Gonzalez also testified that in his opinion appellant could perform the tasks of a “workingman” as long as the job did not require bending or lifting. In addition, appellant took the stand and admitted that he was “ready, willing and able” to perform full-time light duty for Southwestern Bell in the form of centralized automated machine accounting, a computer-related job for which he had prior education and experience. Appellant’s supervisor, Alfonso Champion, further testified that such computer work was available on June 23,1986.

We recognize that it is possible for a claimant to be “totally incapacitated” under the Workers’ Compensation Act even though he is able to perform non-manual labor, if the work causes him serious discomfort or unreasonable risk. See Texas Employers Insurance Association v. Williams, 662 S.W.2d 728, 732 (Tex.App.—Houston [14th Dist.] 1983, no writ); Standard Fire Insurance Co. v. Simon, 474 S.W.2d 530, 534 (Tex.Civ.App.—Dallas 1971, no writ). Appellant, however, presented no evidence to suggest that the performance of light-duty computer operations would in any way cause him to experience pain or become susceptible to further injury.

We refer, in addition, to this Court’s opinion in Commercial Insurance Co. of Newark, New Jersey v. Puente, 535 S.W.2d 948 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n.r.e.). In Puente, the plaintiff/appellee injured his back while performing his duties as a refuse collector. At trial, he testified that while he would not be able to continue those duties, his condition would allow him to work as a truck driver or flagman. The jury found that the plaintiff suffered a total incapacity of a permanent nature. This Court held:

The testimony from this trial is convincing that appellee has suffered some permanent partial incapacity and that he cannot now perform heavy lifting and running such as he was performing when he was injured.

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772 S.W.2d 145, 1989 Tex. App. LEXIS 460, 1989 WL 19802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-texas-employers-insurance-assn-texapp-1989.