      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-10-00472-CV



                                   City of Austin, Appellant

                                                v.

                                   Ronnie Esparza, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
     NO. D-1-GN-05-000132, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING



                            MEMORANDUM OPINION


               In this workers’ compensation case, appellee Ronnie Esparza seeks workers’

compensation benefits for an injury that he allegedly sustained while employed with appellant the

City of Austin. After the Texas Workers’ Compensation Commission denied his claim, Esparza

appealed the determination in district court.1 See Tex. Lab. Code Ann. §§ 410.251, 410.301–.308

(West 2006 & Supp. 2011). A jury found in favor of Esparza, and the trial court rendered judgment

on the jury’s verdict, reversing and remanding the case to the Commission for further proceedings.




       1
         After Esparza filed this suit, the legislature replaced the Texas Workers’ Compensation
Commission with the Division of Workers’ Compensation within the Texas Department of
Insurance. See Act of May 29, 2005, 79th Leg., R.S., ch. 265, § 8.001, 2005 Tex. Gen. Laws 469,
607. For purposes of this appeal, we refer to the agency administering workers’ compensation as
the Commission.
               In two issues, the City appeals the trial court’s judgment. The City challenges the trial

court’s jurisdiction to allow the jury to determine the time period of Esparza’s disability. The City

also challenges the legal and factual sufficiency of the evidence to support the jury’s finding that

Esparza had a disability as a result of his injury. For the reasons that follow, we affirm the trial

court’s judgment.


                                         BACKGROUND

               Esparza worked as a forestry technician for the City beginning in 1982. After he

allegedly was injured at work on June 10, 2003, Esparza sought workers’ compensation benefits.2

He claimed that, on that day, he was cutting some vegetation with a chainsaw when he felt pain “all

the way up to my shoulder[s].” He also claimed that the repetitive nature of his job duties, including

long term chainsaw usage for over twenty years, caused him to suffer bilateral arm and hand pain

and numbness. Esparza filled out an injury report and was examined by a doctor the following day.

The doctor reported to the City that Esparza “cannot return to any type work” (emphasis in original)

and left the date open as to when Esparza would be able to return. Esparza was cleared to return to

work with restrictions approximately two weeks later. One restriction imposed by the doctor

prohibited Esparza from carrying objects that were more than five pounds “to prevent further

aggravation of wk [sic] related injury.” Esparza returned to light-duty work with the City, receiving

full wages through July 18, 2003. After that date, the City, which opposed Esparza’s claim for

workers’ compensation benefits, no longer offered him light-duty work.



       2
         On appeal, the City does not challenge the jury’s finding that Esparza was injured at work
on June 10, 2003.

                                                  2
                 Although he remained employed with the City after July 18, 2003, Esparza did not

receive wages from the City. Esparza continued to receive medical treatment and took personal

leave without pay and unpaid leave under the Family and Medical Leave Act (FMLA). See

29 U.S.C.A. §§ 2601–2654 (West 2009 & Supp. 2011) (allowing up to twelve weeks of unpaid leave

for health problems). On February 5, 2004, Esparza’s treating physician recommended that he

“return back to work, to his old job preferably.” The City, however, did not allow him to return to

work but rather terminated his employment on March 3, 2004.

                 Esparza appealed the denial of his workers’ compensation claim to the Commission.

A contested case hearing before a hearing officer for the Commission was held in September 2004.

See Tex. Lab. Code Ann. § 410.151 (West 2006) (authorizing contested case hearing). In the hearing

officer’s decision and order, she stated the issues addressed at the hearing as follows:


       1.        Did [Esparza] sustain a compensable injury with a date of injury of
                 June 10, 2003?

       2.        Did [Esparza] have disability as a result of the claimed injury, and if so, for
                 what period?


The hearing officer recited the parties’ stipulation that Esparza was an employee of the City on June

10, 2003, and stated that Esparza “asserted disability from June 11, 2003, through February 5, 2004.”

At the time of the hearing, Esparza remained unemployed.

                 In her decision and order, the hearing officer made findings of fact, including

the following:




                                                   3
       5.      The claimant did not sustain an injury as a result of work activities performed
               in the course and scope of employment on June 10, 2003 or over a period
               of time.

       6.      The claimed injury of June 10, 2003 did not cause the claimant to be unable
               to obtain and retain employment at wages equivalent to his pre-injury wage
               from June 11, 2003 through September 21, 2004, the date of the contested
               case hearing.


Based upon her findings of fact, the hearing officer concluded that Esparza “did not sustain a

compensable injury with a date of injury of June 10, 2003” and that he “did not have disability.”

               Esparza appealed the hearing officer’s decision to an appeals panel within the

Commission. See id. § 410.202 (West 2006) (authorizing appeal of hearing officer’s decision to

appeals panel). The appeals panel did not issue its own decision, and the hearing officer’s

determination became the final decision of the Commission. See id. § 410.204(c) (West Supp.

2011). Esparza then brought this suit for judicial review in January 2005. See id. § 410.251

(West 2006).

               Esparza’s case was tried to a jury in January 2010. The witnesses included Esparza,

his supervisor, and a doctor who was an occupational medicine expert. The doctor opined that

Esparza “suffered an occupational injury” and that the injury was “hand-arm vibration syndrome.”

The doctor also testified about Esparza’s diagnosis and treatment for the injury. Esparza, who was

48 years old at the time of trial, testified about his employment history, his injury, his medical

treatment for the injury, and the effect that the injury had on his ability to work. As to his

employment history, he testified that he worked on fields for the City from 1979 to 1982 and then

became a forestry technician for the City in 1982. He testified that: (i) he was making $12.68 per



                                                 4
hour on June 10, 2003, the date of his injury, (ii) the City offered him light duty until July 18, 2003,

(iii) he took unpaid leave after the City stopped offering him light duty, (iv) his employment with

the City was terminated in March 2004, (v) he began looking for another job in July 2004, and

(vi) he was unable to obtain employment until January 2005.

                Esparza’s supervisor on the day of his injury testified on behalf of the City. It was

the City’s position that Esparza filled out the injury report only after learning that his job was

threatened because of issues concerning his commercial driver’s license. The supervisor testified

that he informed Esparza about the problem with his license early in the morning on June 10, 2003,

and that a few hours later Esparza reported that he was injured. The supervisor also provided

testimony as to the amount and extent of Esparza’s chainsaw usage. The supervisor’s testimony

contradicted Esparza’s testimony as to the circumstances surrounding the driver’s license issue and

as to the amount of Esparza’s chainsaw usage, but the supervisor agreed that using a chainsaw was

physically demanding work and that Esparza used the chainsaw frequently as part of his job duties.

Esparza’s medical records, showing his diagnoses and treatment, and documents pertaining to his

employment and the workers’ compensation claim process also were admitted into evidence.

                The jury returned a verdict in favor of Esparza, finding a compensable injury and

disability. The jury, however, determined the period of the disability to be from July 19, 2003, to

February 5, 2004, a shorter period than what Esparza requested. Based upon the jury verdict, the

trial court rendered final judgment in favor of Esparza, reversing the Commission’s decision and

remanding the case to the Commission for further proceedings consistent with the jury’s findings

and the trial court’s judgment. This appeal followed.



                                                   5
                                            ANALYSIS

               “The Commission’s final decision may be appealed to the courts under what might

best be described as modified de novo review.” Texas Workers’ Comp. Comm’n v. Garcia,

893 S.W.2d 504, 515 (Tex. 1995). “For all issues regarding compensability of the injury (for

example, whether it occurred in the course and scope of employment) and eligibility for and the

amount of income and death benefits, there is a right to trial by jury.” Id. (citing Tex. Lab. Code

Ann. § 410.304 (West 2006)). “The party appealing bears the burden of proof by a preponderance

of the evidence.” Id. (citing Tex. Lab. Code Ann. § 410.303 (West 2006)). As the party appealing

the Commission’s decision, Esparza had the burden of proof at trial.

               Further, pursuant to the statutory scheme, the Commission hearing officer makes “the

initial decision in a workers’ compensation dispute and . . . all subsequent proceedings are limited

to a review of that decision.” See Texas Dep’t of Ins., Div. of Workers’ Comp. v. Jackson,

225 S.W.3d 734, 736–37 (Tex. App.—Eastland 2007, no pet.); see id. at 737 (holding that trial court

lacked jurisdiction to consider claimant’s eligibility for lifetime income benefits “beyond the date

of” the contested case hearing because eligibility after date of contested case hearing not considered

by hearing officer); see also Tex. Lab. Code Ann. §§ 410.203 (addressing powers and duties of

appeals panel), 410.204 (addressing decision of appeals panel) (West Supp. 2011).

               As part of this statutory scheme, section 410.302(b) of the labor code limits judicial

review of the issues from the appeal of a Commission decision:


       A trial under this subchapter is limited to issues decided by the appeals panel and on
       which judicial review is sought. The pleadings must specifically set forth the
       determinations of the appeals panel by which the party is aggrieved.


                                                  6
Tex. Lab. Code Ann. § 410.302(b) (West 2006). With this background, we turn to the City’s issues.


Duration of Disability

                   In its first issue, the City challenges the trial court’s jurisdiction to submit the second

and third questions to the jury. The City does not challenge the trial court’s jurisdiction to submit

Question No. 1, which asked the jury: “Did Ronnie R. Esparza receive an injury on June 10, 2003?”

After the jury answered this question “Yes,” the court’s charge instructed the jury to answer Question

No. 2, which asked: “Did Ronnie Esparza have a disability as a result of his compensable injury,

if any?” The jury also answered Question No. 2 “Yes.” The court’s charge then instructed the jury

to answer Question No. 3, which asked the jury to determine the duration of disability: “State the

length of time Ronnie Esparza was disabled as a result of the injury sustained on June 10, 2003?”

The jury determined the length of time to be from July 19, 2003, to February 5, 2004.

                   As an initial matter, we note that the City preserved this issue for our review. See

Tex. R. Civ. P. 274 (addressing objections and requests to the jury charge), 278 (requiring questions

to be requested in writing and tendered to the court). Before the charge was submitted to the jury,

the City objected to Question Nos. 2 and 3, requested a single question on disability in writing, and

tendered the question to the trial court. The City’s requested question would have asked the jury

whether Esparza had a disability as a result of his compensable injury from June 10, 2003, through

September 21, 2004. The trial court overruled the City’s objections, however, and, as stated above,

submitted for separate determination whether Esparza had a disability and, if so, the duration of

that disability.




                                                       7
                  Relying upon the limitations of judicial review set forth in section 410.302(b) of the

labor code, the City contends that the trial court erred by splitting the disability determination into

two questions and that the open-ended question allowing other than a “yes” or “no” answer on

duration was reversible error. See Tex. Lab. Code Ann. § 410.302(b). The City argues: “[The] trial

court erred in allowing the jury to determine whether [Esparza] was disabled for a period of time

other than the time period considered by the Commission, as the trial court’s jurisdiction is limited

to issues on which the Commission made determinations, and of which [Esparza] complained in

his pleadings.”

                  We review a trial court’s submission of jury questions for abuse of discretion. Moore

v. Kitsmiller, 201 S.W.3d 147, 153 (Tex. App.—Tyler 2006, pet. denied). “The trial court has broad

discretion in submitting questions to the jury, subject only to the requirement that the questions

submitted must (1) control the disposition of the case; (2) be raised by the pleadings and the

evidence; and (3) properly submit the disputed issues for the jury’s determination.” Id. (citing Tex.

R. Civ. P. 277, 278); see also Rosell v. Central W. Motor Stages, Inc., 89 S.W.3d 643, 653 (Tex.

App.—Dallas 2002, pet. denied) (“The trial court has broad discretion in submitting jury questions

so long as the questions submitted fairly place the disputed issues before the jury.” (citation

omitted)). Further, the trial court’s judgment will not be reversed for charge error unless the error

probably caused the rendition of an improper verdict or probably prevented the petitioner from

properly presenting the case to the appellate courts. Tex. R. App. P. 44.1(a).

                  A challenge to the trial court’s subject matter jurisdiction, however, is a question of

law that we review de novo. See Jackson, 225 S.W.3d at 736 (citing Texas Dep’t of Parks & Wildlife



                                                    8
v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)). The City argues that the trial court lacked

jurisdiction in this regard because June 10, 2003, through September 21, 2004, was the only duration

period presented to or considered by the Commission. But, in her decision and order, the hearing

officer states that Esparza “asserted disability from June 11, 2003 through February 5, 2004.” We

fail to see how a claimant’s request for a particular disability period deprives a trial court of

jurisdiction to determine disability for only a portion of the requested period or why the only

available choice must be between the entire period requested or none of it. Although Esparza sought

benefits through the date of the contested case hearing, this time period subsumed the disability time

period found by the jury.

                Further, the trial court’s questions to the jury conform with the issues identified by

the hearing officer in her decision and order. The hearing officer stated the disability issue as

follows: “Did the claimant have a disability as a result of the claimed injury, and if so, for what

period.” The trial court’s disability questions match the hearing officer’s statement of the issues.

The jury was asked to determine whether Esparza had a disability as a result of his injury and, if it

determined that Esparza had a disability, to determine the period of disability. Esparza’s pleadings

also “specifically set forth the determinations . . . by which [Esparza] was aggrieved.” See Tex. Lab.

Code Ann. § 410.302(b). In his pleadings, Esparza quoted the issues from the hearing officer’s

decision and order and the relevant findings of fact and conclusions of law, challenging the decision

of no injury or disability.

                The City analogizes this case to cases addressing the scope of judicial review of

impairment ratings to support its position that the trial court did not have jurisdiction to allow



                                                  9
the jury to determine the duration of disability. See, e.g., American Zurich Ins. Co. v. Samudio,

317 S.W.3d 336, 349 (Tex. App.—Houston [1st Dist.] 2010), rev’d, 2012 Tex. App. LEXIS 554

(Tex. June 29, 2012) (trial court “only has the jurisdiction to allow a fact finder to choose” one

of impairment ratings presented in administrative case); State Office of Risk Mgmt. v. Ramirez,

No. 04-09-00541-CV, 2010 Tex. App. LEXIS 4956, at *10 (Tex. App.—San Antonio June 30, 2010,

pet. denied) (mem. op.) (“[U]nless an exception applies, a trial court has no jurisdiction to allow the

trier of fact to craft a new impairment rating based on expert testimony presented at trial.”).

               But section 410.306 of the labor code expressly limits the fact finder’s determination

of an impairment rating. See Tex. Lab. Code Ann. § 410.306(c) (reviewing “court or jury, in its

determination of the extent of impairment, shall adopt one of the impairment ratings” established

during administrative process); Garcia, 893 S.W.2d at 515 (“In determinating the extent of

impairment, . . . the jury must adopt the specific rating of one of the physicians in the case.”).

“Because the ultimate impairment rating must match one of the doctors’ findings, the disputed

question of fact on appeal can only be which doctor’s rating should prevail.” Garcia, 893 S.W.2d

at 528; see Tex. Lab. Code Ann. § 408.125(c) (West 2006) (Commission required to adopt

impairment rating provided by one of the examining doctors). In the context of impairment ratings,

“[t]he Act simply does not contemplate or allow any other rating; e.g., one ‘in between’ the

physicians’ findings.” Garcia, 893 S.W.2d at 528. “In other words, the requirement that the

impairment rating match one of the physicians’ findings is part of the substantive statutory

scheme.” Id.




                                                  10
               Unlike impairment ratings, there is no comparable statutory directive limiting the fact

finder’s determination of the disability period. See State Office of Risk Mgmt. v. Escalante,

162 S.W.3d 619, 626 (Tex. App.—El Paso 2005, pet. dism’d) (“The duration and extent of

a disability is best left to the determination of the jury.”); see also id. (concluding that “the jury

could have reasonably determined that [the claimant]’s injuries . . . resulted in his disability from

February 23, 2001 to April 22, 2002”); Truck Ins. Exch. v. Smetak, 102 S.W.3d 851, 853–54 (Tex.

App.—Dallas 2003, no pet.) (affirming jury verdict that claimant injured and disabled due to injury

from “December 14, 1999 through January 5, 2001”). We, therefore, find the cases addressing

impairment rating determinations on appeal not to be instructive here. See also Insurance Co. of Pa.

v. Muro, 347 S.W.3d 268, 275 (Tex. 2011) (noting that “impairment” and “disability” refer to

different concepts).

               On this record, in which the disability period found by the jury fell within the

disability period considered by the Commission, we conclude that the trial court had jurisdiction and

did not abuse its discretion by submitting separate questions to the jury asking whether Esparza had

a disability and, if so, what the period of disability was. See Kitsmiller, 201 S.W.3d at 153;

Escalante, 162 S.W.3d at 626; Smetak, 102 S.W.3d at 853–54. We overrule the City’s first issue.


Sufficiency of Evidence

               In its second issue, the City challenges the legal and factual sufficiency of the

evidence to support the jury’s finding that Esparza had a disability as a result of his injury. As

previously stated, Question No. 2 inquired of the jury: “Did Ronnie Esparza have a disability as a

result of his compensable injury, if any?” The jury was instructed: “‘Disability’ means the inability


                                                 11
because of a compensable injury to obtain or retain employment at wages equivalent to the pre-injury

wage.” This instruction tracks the definition of “disability” in the labor code. See Tex. Lab. Code

Ann. § 401.011(16) (West Supp. 2011) (defining disability). The jury also was instructed that a fact

could be established by direct or circumstantial evidence and that a fact was established by

circumstantial evidence “when it may be fairly and reasonably inferred from other facts proved.”

               In reviewing the legal sufficiency of the evidence, we view the evidence in the light

most favorable to the judgment, crediting favorable evidence if a reasonable fact finder could, and

disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson,

168 S.W.3d 802, 807 (Tex. 2005). The test is “whether the evidence at trial would enable reasonable

and fair-minded people to reach the verdict under review.” Id. at 827. In reviewing factual

sufficiency of the evidence, we consider and weigh all of the evidence in the record, and 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).

               The City contends that there was a lack of evidence of Esparza’s wage-earning ability

after his injury or that any inability that he did have was caused by his injury. The City urges that

Esparza’s testimony provided the only evidence of wages and that there was no evidence of other

jobs that were or were not available for workers in Esparza’s position or of any pay rates for any jobs

other than what Esparza made as a forestry technician. The City also points to evidence that supports

a finding that Esparza claimed that he was injured in response to notice from the City that his job

was threatened by a change in policy as to his commercial driver’s license.




                                                  12
               The City, however, does not challenge the sufficiency of the evidence to support the

jury’s findings that Esparza sustained an injury on June 10, 2003, and that, assuming he had a

disability from the injury, he was disabled from July 19, 2003, to February 5, 2004. The City also

does not challenge the trial court’s instructions to the jury defining “disability” and “circumstantial

evidence.” See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 762 (Tex. 2003)

(sufficiency of evidence generally reviewed based upon charge as given the jury when opposing party

does not object to charge); Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (same). In this context,

the dispositive issue is whether the evidence was sufficient to support an inference “from other facts

proved” that Esparza’s injury caused him for a period of time to be unable “to obtain or retain

employment at wages equivalent to the pre-injury wage.” Jackson, 116 S.W.3d at 762; Peca,

12 S.W.3d at 55.

               Viewing the evidence in the light most favorable to the verdict, the evidence showed

that Esparza was employed with the City as a forestry technician for over twenty years at the time

of his injury, that he remained employed by the City for approximately 9 months after his injury, but

that the City did not offer him light-duty work and did not pay him wages after July 18, 2003.

Esparza also testified to his attempts to find another job after he was terminated by the City. He was

able to obtain employment in January 2005 but unable to earn his pre-injury wage even at the time

of trial.3


         3
          Esparza testified that he began looking for employment in July 2004, applied for jobs with
the City and other entities, including positions as a heavy equipment operator and truck driver, and
started working again in January 2005. He also testified that he had been unable to earn $12.68 per
hour, his pre-injury wage. Esparza answered “No” when asked if he was “ever able to do any work
that would earn you $12.68 an hour or more” between the date of his injury and the date of the
contested case hearing. He also answered “No” when asked if he “ever made more than $12.68.”

                                                  13
                Esparza further testified and provided medical records and other documents regarding

his physical condition, including symptoms that he was experiencing as a result of his injury, his

post-injury medical treatment, and the impact that his injury had on his ability to work.4 His

symptoms included pain, numbness, and tingling in his arms and hands after his injury.5 The

documentary evidence showed that Esparza was released to light duty a few weeks after his injury

but that one of his treating physicians did not recommend that he return to full duty until

February 5, 2004.6



As of the time of the trial, he still did not make $12.68 per hour. His expert’s testimony was
consistent as to his employability after his injury:

        Q:      . . . [W]hat kind of work is a person who has a 10th grade education, no
                GED, and has been doing nothing but forestry work for 20 to 22 years, what
                kind of work is that person qualified to do?

        A.      His options are very limited. Just offhand, for example, I could—he could
                work in an auto parts store, assuming that type of work would be available to
                him. I, unfortunately, run into this a lot with people who have been manual
                workers their whole lives and have now suffered some sort of injury.
        4
         For example, on cross-examination, Esparza answered “Yes” when asked if it was “the
June 10th, 2003 injury that caused [him] to be off work for the entire 15-month period and not
anything else.”
        5
          At the time of trial, Esparza testified that he did not believe that his hands and arms would
ever fully recover.
        6
           Other documentary evidence included a “Medical Order/Duty Status Form” and FMLA
certification of health care provider forms. The “Medical Order/Duty Status Form” signed by a
doctor and dated July 17, 2003, released Esparza to return to work but restricted him to limited duty.
On the FMLA certification form from August 2003, the doctor who signed the form answered “yes”
in response to the question “Will it be necessary for the employee to work only intermittently or to
work on a less than full schedule as a result of the condition (including the treatment described in
Item 6, below)?” The doctor then stated the probable duration: “At least through 9-8-03 No work
at all until after that date. Will require re-eval. by specialist prior to return to work.” Similarly, on
the FMLA certification form from October 2003, the doctor answered “yes” that it would be

                                                   14
               The jury reasonably could have credited Esparza’s testimony as to his physical

condition and employment history, as well as the testimony from his expert and the medical records

and other documents, to find that he was unable because of his injury to “obtain or retain

employment at wages equivalent to the pre-injury wage” at least for some period of time after his

injury. See City of Keller, 168 S.W.3d at 807 (legal sufficiency standard of review); Escalante,

162 S.W.3d at 626 (injured employees’ testimony alone may establish disability); see id. at 625

(“Proof of the duration and extent of a disability resulting from an injury is . . . at best an estimate

which must be determined by a jury from all pertinent facts before it.” (citation omitted)); Smetak,

102 S.W.3d at 856–57 (evidence that pain “severe” and that employee did not report to work “some

evidence to support jury’s finding” that employee “was unable to obtain and retain equivalent

employment” on certain date).7 At a minimum, this evidence supports a reasonable inference “from


necessary for Esparza to work only intermittently or less than his full schedule because of his
treatment, and the doctor stated that he could not say the probable duration but estimated 2 to 3
months from October 7, 2003, and stated that Esparza needed “treatment.”
       7
          According to the Commission, a light-duty release is evidence of disability and a claimant
under a conditional medical release or who is unable to work does not have to present evidence that
he or she sought other employment or that other work was unavailable to prove disability during the
relevant time period. See, e.g., TWCC Appeal No. 091260, 2009 TX Wrk. Comp. LEXIS 93, at *8
(“The Appeals Panel has frequently cited the proposition that a light duty release is evidence that
disability continues.”); TWCC Appeal No. 081886, 2009 TX Wrk. Comp. LEXIS 39, at *3–4
(claimant “under a conditional medical release [does] not have to show that work was not
available” during relevant time period to establish disability); TWCC Appeal No. 081081,
2008 TX Wrk. Comp. LEXIS 68, at *13–14 (reversing hearing officer’s determination of no
disability based upon evidence from medical report and work status report that claimant “unable to
work”); TWCC Appeal No. 071650, 2007 TX Wrk. Comp. LEXIS 79, at *6 (“If the claimant has
been returned to work with restrictions, he does not have to prove that there is no work available
which would fit his or her restrictions in order to establish disability.”); TWCC Appeal No. 070005,
2007 TX Wrk. Comp. LEXIS 15, at *3–4 (“The Appeals Panel has said that a light-duty or
conditional work release is evidence that disability continues. . . . We have also held that a
claimant under a light-duty work release does not have an obligation to look for work or show

                                                  15
other facts proved” that, at least for a period of time, Esparza’s injury caused him not to be able to

work at all. That was all that was required here. We conclude that the evidence was legally

sufficient to support the jury’s finding of disability. See City of Keller, 168 S.W.3d at 827.

               The record does contain some evidence that Esparza was able to work after the injury.

For example, Esparza testified that he could have returned to his job in January 2004 if the City had

provided him with gloves to diminish the vibratory effects of using a chainsaw. The City also points

to inconsistencies in Esparza’s testimony concerning the extent of his injury and his ability to work

and argues that the issue surrounding his commercial driver’s license was the real reason for his loss

of wages. But it was for the jury to resolve conflicts in the evidence and to determine the credibility

of the witnesses and the weight to be given to their testimony. See City of Keller, 168 S.W.3d at

819–20 (jury sole judge of credibility of witnesses and weight to be given to their testimony and they

“may choose to believe one witness and disbelieve another”). Considering all of the evidence, we

cannot conclude that the jury’s finding of disability was so contrary to the overwhelming weight of

the evidence as to be clearly wrong and unjust. See Cain, 709 S.W.2d at 176. We, therefore,




that work was not available within his or her restrictions.”); TWCC Appeal No. 981568,
1998 TX Wrk. Comp. LEXIS 5567, at *12–13 (noting that restricted release to work is evidence of
disability under statutory definition, rejecting contention that claimant, who was under a conditional
work release, was obligated to seek other light-duty work such as in telephone sales, and noting prior
holdings that “where claimant is released to return to light duty, there is no requirement that the
claimant look for work” and “an employee under a conditional medical release [does] not have to
show that work was not available”); TWCC Appeal No. 94820, 1994 TX Wrk. Comp. LEXIS 5982,
at *8, 11 (upholding finding of disability based upon medical evidence and concluding that claimant
not required to seek employment during period he had “full duty excuse” and citing prior holding
that “an employee under a conditional medical release does not have to show that work is not
available and that, under these circumstances, disability had not ended unless the claimant in fact is
able to obtain and retain employment”).

                                                  16
conclude then that the evidence was factually sufficient to support the jury’s finding of disability.

We overrule the City’s second issue.8


                                          CONCLUSION

               For these reasons, we affirm the trial court’s judgment.



                                        __________________________________________

                                        Melissa Goodwin, Justice

Before Justices Puryear, Rose and Goodwin
  Concurring and Dissenting Opinion by Justice Puryear

Affirmed

Filed: August 10, 2012




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           The dissent asserts that “the City’s second issue is more fairly read as asserting that there
is insufficient evidence showing that Esparza was disabled for the period of time found by the jury.”
We normally may not reverse a trial court “for a reason not raised in a point of error.” Walling
v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993). Further, even if we expand the City’s sufficiency
challenge as the dissent advocates to include a challenge to the jury’s separate determination of the
period of disability, we would conclude, at a minimum, that the evidence was sufficient to support
an inference by the jury “from other facts proved” that Esparza was unable “to obtain or retain
employment at wages equivalent to the pre-injury wage” from July 19, 2003, to February 5, 2004.
The City did not challenge the jury’s finding that Esparza was injured while working for the City,
and the evidence at trial conclusively showed that he remained employed with the City without pay
during the period of disability found by the jury, his treating doctor did not recommend that he return
to work with the City until February 5, 2004, and he had been unable to obtain employment at wages
equivalent to his pre-injury wage even at the time of trial.

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