Soto v. Texas Employers' Insurance Ass'n

598 S.W.2d 45, 1980 Tex. App. LEXIS 3322
CourtCourt of Appeals of Texas
DecidedApril 16, 1980
DocketNo. 9106
StatusPublished
Cited by3 cases

This text of 598 S.W.2d 45 (Soto 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
Soto v. Texas Employers' Insurance Ass'n, 598 S.W.2d 45, 1980 Tex. App. LEXIS 3322 (Tex. Ct. App. 1980).

Opinion

COUNTISS, Justice.

This worker’s compensation case requires us to determine whether (1) the trial court correctly calculated the amount due the worker and (2) the worker is entitled to compensation for more than one injury. Finding no reversible error, we affirm the judgment of the trial court.

On September 7, 1977 appellant, Tom Soto, Jr. (hereafter “Soto”), was cutting a piece of metal on a shearer machine when the stop on the machine came down and caught his right thumb. Soto filed a worker’s compensation claim for the injury and, being dissatisfied with the award of the Industrial Accident Board, filed this suit against appellee, Texas Employers’ Insurance Association. In his petition, Soto described his injuries as “damage to the soft tissues, muscles, ligaments, tendons, and skeletal structure of his right thumb and surrounding hand area”.

The case was tried before a jury which found the following facts pertinent to this appeal:

1. The injury was a producing cause of a total loss of use of the right thumb.
2. The total loss of use of the right thumb began on September 7, 1977.
3. The total loss of use of the right thumb ended on August 24, 1978.
4. The injury was a producing cause of a partial loss of use of the right thumb.
5. The partial loss of use of the right thumb began on August 25, 1978.
6. The partial loss of use of the right thumb is permanent.
7. The degree of partial loss of use of the right thumb is sixty percent.
8. The injury to the right thumb extended to and affected the right hand.
9. [The jury failed to find the extended injury was a producing cause of any total loss of use of the right hand.]
10. The extended injury was a producing cause of a partial loss of use of the right hand.
11. The partial loss of use of the right hand began on September 7, 1977.
12. The partial loss of use of the right hand is permanent.
13. The degree of partial loss of use of the right hand is twenty-five percent.

The trial court then entered judgment for Soto in the sum of $3,790.17 “being the amount of compensation due Plaintiff for disability to the thumb as found by the jury, less proper credits and off sets to Defendant for compensation heretofore paid to Plaintiff.”

Soto attacks the judgment of the trial court by six points of error. Under points one, three and five, presented collectively, [47]*47Soto argues that the trial court incorrectly calculated the recovery due him under the verdict. Under points two, four and six, presented collectively, Soto argues that the trial court erred in refusing to cumulate the time allowed for injuries to the thumb and the hand. We will consider the points in the order and manner presented by Soto.

On the incomplete record before us,1 it is impossible to ascertain how the trial court computed the award. The judgment contains a net figure after credits and offsets. It does not reflect the method of computation used by the trial court, the average weekly wage proven by the employee or other facts necessary to demonstrate the error advanced by Soto. For that reason alone, points one, three and five must be overruled. Tex.R.Civ.P. 418(d), (e), 434.

Regardless of the method of computation used by the trial court, we are satisfied the computation desired by Soto is incorrect. Relying on article 8306, section 12 of the Texas Revised Civil Statutes Annotated and Texas Employers’ Ins. Ass’n v. Holmes, 145 Tex. 158, 196 S.W.2d 390 (1946), he contends the trial court should have ascertained the amount due for partial incapacity by multiplying the average weekly wage of the employee by the statutory percentage of sixty-six and two-thirds percent, then multiplying that result by the percentage of partial disability found by the jury (sixty percent to the thumb and twenty-five percent to the hand). The resulting figure, up to a maximum of $91.00 per week,2 is the amount Soto alleges he should be awarded. The Holmes case supports the method of computation sought by Soto. Texas Employers’ Ins. Ass’n v. Holmes, supra, 196 S.W.2d at 390. The pertinent portion of section 12 was amended, however, after the Holmes decision but prior to this case. It presently reads:

The compensation paid therefor shall be calculated by first determining a basic figure amounting to sixty-six and two-thirds per cent (66⅜%) of the average weekly wages of the employee, but which basic figure shall not exceed the maximum weekly benefit set forth in Section 29 of this article ; such basic figure shall then be multiplied by the percentage of incapacity caused by the injury, and the result shall be the weekly compensation which shall be paid for such period not exceeding three hundred (300) weeks as the Board may determine (emphasis added).

Tex.Rev.Civ.Stat.Ann. art. 8306, § 12 (Vernon Supp.1980).

Under the present statute,3 assuming sixty-six and two-thirds percent of Soto’s average weekly wage was in excess of the $91.00 maximum weekly benefit then in effect,4 his award for a partial permanent incapacity is determined by multiplying $91.00 by the percentage of incapacity found by the jury and multiplying the result by the number of weeks of benefit allowed for permanent loss of use of the member. Fidelity & Casualty Company of New York v. Shores, 329 S.W.2d 911, 913 (Tex.Civ.App. — Fort Worth 1959, writ ref’d). We assume, because the record does not demonstrate otherwise, that the trial court used the foregoing method of computation. In any event, the method urged by Soto is no longer the law of this state. Brisco v. Travelers Insurance Company, 342 S.W.2d 602, 603 (Tex.Civ.App. — Dallas 1961, no writ). Soto’s points of error one, three and five are overruled.

By his second, fourth and sixth points of error, Soto attacks the failure of the trial court to allow him any recovery for the [48]*48twenty-five percent permanent disability to the hand as found by the jury. As in the preceding points, the record does not clearly reflect the action taken by the trial court. We assume, however, that the trial court based its judgment on the award for the thumb and denied all recovery for the hand.

Soto’s argument is two-fold. He contends, first, that the trial court should have cumulated the times allowed under the statute for the injuries to the thumb and the hand.5 Alternatively, he contends “that the period of time should have been allowed for the longest period of incapacity with the maximum weekly recovery for each week within that period.”6

The pertinent provisions of section 12 are as follows:

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Bluebook (online)
598 S.W.2d 45, 1980 Tex. App. LEXIS 3322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/soto-v-texas-employers-insurance-assn-texapp-1980.