dissenting.
This is an appeal from a trial court judgment awarding Trinidad S. Banda damages for total and permanent disability under the workers’ compensation statute, TEX. REV.CIV.STAT.ANN. art. 8306 et seq. (Vernon 1967). Appellee, Trinidad Banda, while working for the City of Eagle Pass in the sanitation department, alighted from a truck, but missed the bottom step of the truck and fell to the ground. Five days later, Banda suffered a heart attack, after which he underwent open heart surgery. Banda returned to work, but because the city abolished the sanitation department, he was laid off. Another department of the city hired Banda through a temporary program and, at the time of the trial, he was working on a permanent basis in the city’s animal control department.
Banda brought suit to recover for total and permanent incapacity under the workers’ compensation statute. In response to special issues, the jury found that Banda received an injury on November 9, 1982, during the course of his employment for the City of Eagle Pass, that such injury was a producing cause of total incapacity which began November 14, 1982, and is of permanent duration. Because the jury found the duration of the incapacity to be permanent, the court instructed them not to answer the remaining issues concerning the existence and dates of duration of partial incapacity. The trial court entered judgment in accordance with these findings. I disagree with the holding of the majority that approves the jury findings.
In order for Banda to recover for total incapacity, he must prove by a preponderance of the evidence that his disability is not merely partial. Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280, 282 (1942); Lumbermen’s Mutual Casualty Co. v. Villalpando, 605 S.W.2d 705, 707-08 (Tex.Civ.App. — Corpus Christi 1980, no writ); TEX.REV.CIV.STAT.ANN. art. 8306, § 11a (Vernon 1967). In reviewing the evidence, we must keep in mind that the purpose of the Workers’ Compensation Act is to compensate an injured employee for a loss of earning capacity and not for the loss of earnings or for injuries sustained. Employers Reinsurance Corp. v. Holland, 162 Tex. 394, 347 S.W.2d 605, 606 (1961); Liberty Mutual Fire Insurance Co. v. Lynch, 624 S.W.2d 698, 700 (Tex.App. — El Paso 1981, no writ). The fact that a claimant has returned to work after the injury does not, alone, preclude a finding of total and permanent incapacity. Liberty Mutual Fire Insurance Co. v. Lynch, 624 S.W.2d at 701. This presents a question of fact to be considered by the jury in passing on the extent and the duration of the injury. Select Insurance Co. v. Boncher, 551 S.W.2d 67, 72 (Tex.Civ.App. —Houston [1st Dist.] 1977), aff'd, 561 S.W.2d 474 (Tex.1978).
The jury was charged 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.
This has long been recognized as a legally correct definition in this jurisdiction. Texas Employers’ Insurance Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1002 (1944); City of San Antonio v. Miranda, 683 S.W.2d 517, 520 (Tex.App. — San Antonio 1984, no writ). Under this definition, it is not sufficient to simply show that the worker is disabled or that the disability prevents the worker from performing the usual tasks of a worker. It must be shown that the worker is disabled to such an extent that he cannot get and keep employment. 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.). Banda had the burden of proving that he was totally incapacitated, that the duration of the incapacity was permanent, and that the disability prevents him from getting and keeping employment. I would hold that he did not carry the burden sufficiently.
There is no evidence that Banda is unable to obtain and keep employment. The evidence shows that Banda is now doing a *814job with somewhat lighter duties than that required prior to his accident. Banda has worked continuously since his release from the hospital. He works for the animal control department of the City of Eagle Pass. Among his duties are washing dog pens, picking up animals and placing them in a truck, and sometimes running after an animal to catch it. Banda’s supervisor stated that Banda never complains of chest pains, does his job well, and has been a good employee.
There is no evidence that Banda’s employers are dissatisfied with the job he is doing. There is no evidence that Banda is unable to do the work required on his new job as dog catcher. There is no evidence that Banda retains his job only because others assist him in the performance of his duties or due to the sympathy of his employers. There is no evidence that Banda continues to work out of economic necessity. There is evidence that Banda is unable to do “heavy labor” and that he will never be able to do such work. In short, the evidence establishes that Banda is able to and indeed has procured and retained employment and that he is able to do the usual tasks of a workman. At most, Ban-da’s evidence tends to prove that he suffered a total temporary disability immediately after the fall which subsequently evolved into a permanent partial disability. He is now able to do only lighter work than that which he used to do, but can get and keep employment suitable to his condition. Such evidence is insufficient to support a jury finding of total and permanent incapacity.
Though there is some evidence concerning Banda’s incapacity, I am convinced that it is insufficient, and the jury’s finding of total and permanent incapacity is so against the great weight and preponderance of the evidence as to be manifestly unjust. I therefore would reverse the judgment of the trial court and remand the cause to the trial court for a new trial.