Northeast Independent School District v. Hayes

[26] OPINION REEVES, Justice. This is an appeal from a worker’s compensation case. A jury found that appellee was totally and permanently disabled as a result of a job related injury. We affirm the judgment of the trial court. Appellant raises two points of error, both contesting the factual sufficiency of the evidence to support the jury findings that: (1) the injury was a producing cause of total incapacity, and (2) the total incapacity was of permanent duration. In reviewing the sufficiency of the evidence, we are guided by the rule set out in In re Kings Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Appellee was injured while driving a tractor mower for the school district. His condition has been diagnosed as spinal stenosis. At the time of trial he had worked for the school district 13 years, was 58 years of age, and had a fourth grade education. Prior to his employment with the school district he had worked as a caddy. Three witnesses testified at the trial: the appellee, his physician Dr. Robert Fitzgerald, and Weldon Poppe, supervisor of ground maintenance for the school district and appellee’s boss. Appellee testified about the changes in his ability to work as a result of the accident. He stated that although his job calls for an eight hour day, he is unable to work on the mower more than five hours a day. The mower’s constant jostling and bouncing causes him pain which necessitates that he stop frequently. He must take medication to ease the pain. Occasionally wire will become entangled with the blades of the mower and it is necessary for him to clear the wire from the blades. Appellee complained that he is unable to stoop or bend without pain, and that he is unable to lift heavy objects. At the time of trial appellee opined that, due to the pain, he is now unable to work. Appellee further testified that he has no alternative but to work at this job to earn a living. Initially, he did not complain to his supervisor or tell him of his pain for fear that something might happen to him. He did the work the best he could and then took off work early, without permission. However, as time passed and the pain increased, he was compelled to inform his supervisor he was taking off early because of the pain. Dr. Fitzgerald diagnosed appellee’s ailment as spinal stenosis. He estimated ap-pellee’s disability was approximately 30 percent based on the whole man concept, that his disability was permanent, and, as to appellee’s back, total. He further testified that appellee’s medical symptoms, including back pain, and difficulty in bending and in lifting heavy objects, would continue if he kept his present employment. As to the advisability of appellee continuing in his present employment, the doctor testified, I discussed his occupation with Alfred, and I believe he’s worked for the North East School District for quite sometime and he really feels pretty insecure about trying to change jobs. He stated that the type of work he did out there, particularly to drive a lawn tractor and that sort of thing would tend to make him more symptomatic but he still was able to do it with the use of medication. And I felt since he was motivated to continue to work, that it was best to let him go ahead and work, particularly since he was uneasy about trying to change occupations at his age, realizing that, again, he was having some problem. If we could control his symptoms with medication and the use of a corset or support, if he could tolerate it, then I encouraged him to do so. Mr. Poppe testified that appellee was a good worker and outperformed by 25% another employee who did similar work and who was approximately 31 years of age. Further, appellee had received three raises since the accident and was considered a good worker. He acknowledged that he could not perform the usual tasks of a workman in the marketplace such as heavy lifting, prolonged bending, stooping, and lifting. He also testified that appellee has [27] never been required to lift heavy objects as part of his mowing duties. The gravamen of this appeal is that for two years after his injury, appellee worked at the same job and essentially performed the same type of work, received three increases in his salary, and was awarded judgment for total and permanent disability. There are a legion of cases in this State finding that a worker who continued to work due to economic necessity was nevertheless totally and permanently disabled under the Worker’s Compensation Act. The worker’s continued employment is merely an evidentiary factor to be considered by the fact finder in making its determination. See e.g., Texas Employers Insurance Association v. Draper, 658 S.W.2d 202, 207 (Tex.App.—Houston [1st Dist.] 1983, no writ); International Insurance Co. v. Torres, 576 S.W.2d 862, 867 (Tex.Civ.App.—Amarillo 1978, writ ref’d n.r.e.); Texas General Indemnity Co. v. Cox, 544 S.W.2d 766, 768 (Tex.Civ.App.—Dallas 1976, no writ). Here we have a 58-year old man with a fourth grade education whose job experience is limited to carrying golf clubs and mowing grass. He is qualified for only the most menial type of labor which usually requires bending, stooping and lifting objects both light and heavy. It is common knowledge that his age would be considered an adverse factor by most employers. The fact that he is only able to work five or six hours of an 8 hour day certainly limits his employment with the Northeast Independent School District. In view of his need for continued employment it is understandable that appellee continued to work without complaining to his supervisor until recently. A person is totally incapacitated when he is disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment. Select Insurance Co. v. Boucher, 551 S.W.2d 67, 72 (Tex.Civ.App.—Houston [1st Dist.] 1977), aff'd on other grounds, 561 S.W.2d 474 (Tex.1978). Our review of the entire record has brought us to the conclusion that the evidence is sufficient for the jury to have found appellee totally and permanently disabled as defined by the Worker’s Compensation Act and the decisions of the courts of Texas. The judgment of the trial court is affirmed.