

   11th
Court of Appeals
 Eastland,
Texas
          Opinion
 
Bruce Humphrey
Appellant
Vs.                   No.
11-02-00191-CV B Appeal from Comanche County
American Motorists Insurance Company 
Appellee
 
This is a workers= compensation case.  The parties had a contested case hearing before the Texas Workers= Compensation Commission (Commission) which
determined that Bruce Humphrey, appellant, was not entitled to supplementary
income benefits (SIBs) for the third, fourth, and fifth compensable
quarters.  The decision was affirmed by
the Appeals Panel of the Commission. 
Appellant then filed suit for judicial review in district court.  The jury determined that appellant had the
ability to work during the third, fourth, and fifth compensable quarters; and
the trial court entered a judgment that appellant was not entitled to SIBs for
the three quarters.[1]  We affirm.
Issues Presented
Appellant presents four issues on
appeal.  In his first issue, appellant
claims that the trial court erred in allowing appellee=s witness to testify.  In his second and third issues, appellant
challenges the factual and legal sufficiency of the evidence.  In his fourth issue, appellant contends that
the trial court committed reversible error in the jury charge.
Background Facts




Appellant injured his back in the course and
scope of his employment on June 2, 1994. 
American Motorists Insurance Company, appellee, provided workers= compensation insurance for appellant=s employer. 
After paying appellant SIBs for the first, second, and part of the third
quarter, appellee disputed that appellant was entitled to SIBs for the third,
fourth, and fifth compensable quarters which ended January 28, 1998, April 29,
1998, and July 29, 1998, respectively. 
An employee who is not entitled to SIBs for 12 consecutive months ceases
to be entitled to any additional income benefits for the compensable
injury.  TEX. LAB. CODE ANN. ' 408.146(c) (Vernon 1996).
Legal Sufficiency of the Evidence
In appellant=s third issue, appellant argues that there is no evidence to support
the jury=s verdict. 
To determine the legal sufficiency of the evidence, we consider all the
evidence in the light most favorable to the prevailing party and indulge every
reasonable inference in favor of the prevailing party.  Associated Indemnity Corporation v. CAT
Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex.1998); Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. den=d, 523 U.S. 1119 (1998); Harbin v. Seale, 461 S.W.2d 591, 592
(Tex.1970).   Any evidence supporting
the finding that is of probative value and that is more than a scintilla is
legally sufficient to uphold the finding. 
Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996); see Merrell Dow
Pharmaceuticals, Inc. v. Havner, supra.
The only disputed issue at trial was whether
appellant made a good-faith effort to obtain work.  TEX. LAB. CODE ANN. ' 408.142(a)(4) (Vernon 1996). 
Appellant did not seek employment and attempted to satisfy Section
408.142(a)(4) by claiming that he had no ability to work.[2]  Texas Workers= Compensation Commission, Appeal No. 931147 (1994)(holding that, if
claimant has no ability to work at all during the filing period, then seeking
employment in good faith commensurate with this inability to work would be not
to seek work at all).   Evidence
admitted during trial included a functional capacity evaluation (FCE) which
said that appellant was qualified for the Asedentary@ work
category.  The FCE report is some
evidence that appellant had an ability to work.  Appellant=s third issue is overruled. 
Factual Sufficiency of the Evidence




In his second issue, appellant claims that
the jury=s verdict is against the great weight of the
evidence.   In determining the factual
sufficiency of the evidence, we consider and weigh all the evidence and 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); In re King's Estate, 244
S.W.2d 660, 661 (Tex.1951).
The relevant evidence at trial consisted of
deposition testimony by Dr. A. J. Morris, who testified that appellant was
unable to work.  Appellee entered
deposition testimony of Dr. Morris from the prior contested case hearing that
contradicted his trial deposition testimony. 
Appellee also attacked Dr. Morris=s credibility by pointing out that Dr. Morris testified under oath at
the contested case hearing in 1998 that he had decided not to do a FCE, but
that Dr. Morris admitted in a later deposition that a FCE had been done prior
to his testimony at the benefit contested case hearing.  The FCE summary concluded that appellant was
capable of  Asedentary@ work.  The fact finder is the
sole judge of the credibility of the witnesses and the weight to be given their
testimony.  TEX.R.CIV.P. 226a(III);
Montgomery Independent School District v. Davis, 34 S.W.3d 559, 567 (Tex.2000);
Jaffe Aircraft Corporation v. Carr, 867 S.W.2d 27, 28 (Tex.1993);  Transmission Exchange Inc. v. Long, 821
S.W.2d 265, 271 (Tex.App. ‑ Houston [1st Dist.] 1991, writ den=d). 
We do not find that the verdict is so contrary to the overwhelming
weight of the evidence as to be clearly wrong and unjust.   Appellant=s second issue is overruled.
Testifying Witness
Appellant complains in his first issue  that the trial court erred in allowing
appellee=s witness, Marilyn Houston, to testify
because her testimony was not relevant and because it was prejudicial.  We disagree. 
The jury was asked to determine only one
issue at trial:  whether or not
appellant had any ability to work. 
Appellant had three witnesses testify: 
Dr. Morris,[3] appellant,
and Patsy Lee Cates. Dr. Morris testified about appellant=s medical condition and expressed the opinion
that appellant could not work. 
Appellant testified about how he was injured, the severity of his
injury, and the amount of pain he suffered because of the injury.  That appellant was severely injured was not
contested by appellee, only that he had some ability to work.  Cates, a licensed nurse who lived with
appellant, testified as a fact witness about her observations of appellant=s injuries.[4]




Appellee read excerpts from Dr. Morris=s testimony in the prior contested case
hearing which included Dr. Morris=s denial that he had ordered a FCE and his statements that indicated
that appellant was capable of some work. 
Houston, a vocation rehabilitation counselor, testified about meeting
with Dr. Morris and discussing the desirability of a FCE exam for
appellant.  Houston pointed out that the
summary section of the FCE report said that appellant was capable of Asedentary@ work.  She then explained the
term Asedentary@ to the jury.  Houston=s direct testimony was limited to explaining
what a FCE is, how the FCE helps a vocation rehabilitation counselor assist a
patient, and what the term Asedentary@ means
to a vocation rehabilitation counselor. 
Her testimony was part of the foundation to impeach Dr. Morris.  Houston=s testimony was relevant.
Appellant also argues that Houston=s testimony was prejudicial because Houston
expressed an opinion on appellant=s ability to work.  This
testimony was elicited on cross-examination by appellant; therefore, appellant
cannot contend that it was error for Houston to have answered.  See Haley v. GPM Gas Corporation, 80 S.W.3d
114 (Tex.App. - Amarillo 2002, no pet=n).  The trial court did not err
in allowing Houston to testify. 
Appellant=s first issue is overruled. 
Jury Charge
The standard of review for charge error is
whether the trial court abused its discretion, and error occurs only when the
trial court acts without reference to any guiding principle.   Texas Department of Human Services v. E.B.,
802 S.W.2d 647, 649 (Tex.1990). 
TEX.R.CIV.P. 277 requires a trial court to submit Asuch instructions and definitions as shall be
proper to enable the jury to render a verdict.@  This rule affords the trial
court considerable discretion in deciding what instructions are necessary and
proper in submitting issues to the jury. 
State Farm Lloyds v. Nicolau, 951 S.W.2d 444, 451 (Tex.1997).  For an instruction to be proper, it
must:  (1) assist the jury, (2) accurately
state the law, and (3) find support in the pleadings and the evidence.  Steak & Ale of Texas, Inc. v. Borneman,
62 S.W.3d 898, 904-05 (Tex.App. B Fort Worth 2001 no pet=n); Owens-Corning Fiberglas Corporation v. Martin, 942 S.W.2d 712, 721
(Tex.App. B Dallas 1997, no writ).
In his fourth issue, appellant contends that
the trial court erred by including the following  instruction in the jury charge:




You are instructed
that the Appeals Panel of the Texas Workers= Compensation Commission affirmed the Contested Case Hearing Officer=s Decision that the Claimant (Bruce Humphrey)
was not entitled to supplemental income benefits for the 3rd, 4th, and 5th
compensable quarters.  The Appeals Panel
found Claimant had some ability to work during each of the 3rd, 4th and 5th
compensable quarters, but failed to make a good faith effort to obtain
employment commensurate with his ability to work.  That finding however is not binding on you as a trier of fact.
 
AAbility to work@ is defined as the ability to obtain and retain employment.
 
You are instructed
that if the employee has no ability to work that he has no duty to seek
employment during the relevant qualifying periods. 
 
You are instructed
that in determining whether the Plaintiff had any ability to work you are to
consider whether he had any ability to do any job, not just his former
position.  In this respect, you are
instructed that testimony the Plaintiff may not be able to perform Aproductive work,@ or Againful employment@ is insufficient to establish that he had no
ability to work. (Emphasis
added)  
 




During the charge
conference, the trial court overruled appellant=s objection that the underlined instruction did not accurately reflect
the law.[5]  The only issue during the trial was whether
appellant had no ability to work at all.[6]  See TEX. LAB. CODE ANN. ' 408.143 (Vernon 1996)(requiring claimant in
good faith to seek employment commensurate with his ability to work); Texas
Workers= Compensation Commission, Appeal No. 931147
(1994)(if claimant has no ability to work at all during the filing period, then
seeking employment in good faith commensurate with this inability to work would
be not to seek work at all).   The
Commission=s Appeals Board rejected the argument that an
ability to do Aproductive work@ or Againful employment@ is necessary  to have an ability to work. 
Texas Workers=
Compensation Commission, Appeal No. 982745 (1998)(holding that an employee does
not have to be able to perform Aproductive work@ to require him to attempt in good faith to obtain employment
commensurate with his ability to work); Texas Workers= Compensation Commission, Appeal No. 982376
(1998)(stating that Againful
employment@ was not the standard which the 1989 Act
imposes, and an inability to do Againful employment@ did not have to be equated to an inability to do any work).  We note that this standard is also
consistent with Section 130.102(d)(4).[7]  We hold that the jury instruction, as given,
is an accurate reflection of the law.
We also find that the
instruction was helpful to the jury.  At
issue at trial was whether appellant had any ability to work.  Testimony at trial included assertions that
appellant was unable to perform Aproductive work@ or Againful employment.@  The
instruction accurately stated that those standards are insufficient to find that
appellant had no ability to work.  The
trial court did not abuse its discretion in including the instruction.  Appellant=s fourth issue is overruled.
This Court=s Ruling
The judgment of the
trial court is affirmed.
 
TERRY
McCALL
JUSTICE
 
March 27, 2003
Panel consists of: Arnot, C.J., and 
Wright, J., and McCall, J.




[1]At the contested case hearing, the other elements of
TEX. LAB. CODE ANN. ' 408.142(a) (Vernon 1996) were decided in appellant=s favor and were not appealed.


[2]The qualification periods of this suit were prior to
January 31, 1999; therefore  28 TEX.
ADMIN. CODE ' 130.102(d)(4) (2003)(Texas Workers= Compensation Commission, Supplemental Income Benefits)
does not apply.  28 TEX. ADMIN. CODE ' 130.100 (2003)(Texas Workers= Compensation Commission, Supplemental Income
Benefits).


[3]Dr. Morris was unavailable for trial and testified
through videotaped deposition.              


[4]Cates was not designated as an expert witness, and the
trial court properly excluded her from giving an expert opinion.  TEX.R.CIV.P. 193.6(a).


[5]The trial court was not presented with appellant=s argument that the instruction was a comment on the
evidence; thus, that issue was not preserved. 
TEX.R.CIV.P. 274; Wilgus v. Bond, 730 S.W.2d 670, 672 (Tex.1987).


[6]Section 130.102(d)(4) does not apply.  


[7]Section 130.102(d)(4) became effective January 31,
1999, and provides:  
 
An injured
employee has made a good faith effort to obtain employment commensurate with
the employee=s ability to work if the employee has been unable to
perform any type of work in any capacity, has provided a narrative report from
a doctor which specifically explains how the injury causes a total inability to
work, and no other records show that the injured employee is able to return to
work.


