dissenting.
I respectfully dissent.
By her own admission, Valentina A. Torres was able to obtain and retain employment and ably performed the tasks of her employment during some of the period the jury found she was totally incapacitated. Consequently, within the meaning of the Texas Workers’ Compensation Act, Mrs. Torres was not, and the evidence is factually insufficient to sustain the jury finding that she was, totally incapacitated during those periods of time.
Because constitutionally the judgment of a court of civil appeals is final and binding on the Supreme Court on all questions of fact, Tex.Const. art. V, § 6, it normally serves no useful purpose to record a disagreement with the majority’s determination of the factual sufficiency of the evidence. But inherent in that constitutional command is the essential that the determination be reached under proper rules of law, Hubacek v. Ennis State Bank, 159 Tex. 576, 325 S.W.2d 124, 126 (1959), and a determination reached under a misconception of the law applicable to the facts is error which calls for a consideration of the question under the proper rules of law. Puryear v. Porter, 153 Tex. 82, 264 S.W.2d 689, 690 (1954). Thus, with the belief that the majority has reached its decision under an erroneous view of the law, I enter this dissent.
Within the meaning of the Texas Workers’ Compensation Act, total incapacity, which does not necessarily imply an absolute physical inability to perform any kind of labor, exists when a worker is disabled to the extent that he cannot perform the usual tasks of a workman in such a way as to enable him to obtain and retain employment. Texas Employers’ Ins. Ass’n v. Mallard, 143 Tex. 77, 182 S.W.2d 1000, 1001 (1944). In connection with this standard, it has been recognized that the injured party’s testimony, even though contradicted by medical witnesses, may establish the disability, Texas Employers’ Ins. Ass’n v. Nelson, 534 S.W.2d 150, 152 (Tex.Civ.App.—Amarillo 1976, writ ref’d n. r. e.), and the fact that an employee works and earns money after an injury is not conclusive on the issue of total incapacity, but is an evidentiary factor to be considered with all other facts and circumstances, Aguirre v. Pan American Insurance Company, 417 S.W.2d 900, 902 (Tex.Civ.App.—San Antonio 1967, writ ref’d n. r. e.), particularly where the work is compelled by economic necessity. Texas Employers’Ins. Ass’n v. Pillow, 268 S.W.2d 716, 721 (Tex.Civ.App.—Fort Worth 1954, writ ref’d n. r. e.). Conceiving this law to be applicable to the evidence set forth in its opinion, the majority has determined that the recited evidence is factually sufficient to support the jury finding of total and permanent incapacity, “particularly . when, as here, the claimant continues to work and earn money after her injury out of hardship and economic necessity.”
Yet, a part of the same law is that to recover for total incapacity, the claimant has the burden to prove by a preponderance of all of the evidence that the disability is not merely partial. Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280, 283 (1942). Partial incapacity is defined, in 2 State Bar of Texas, Texas Pattern Jury Charges § 22.02 (1970), in these words:
“PARTIAL INCAPACITY” is any degree of incapacity less than total incapacity, and means that a person’s earning capacity is reduced because he can perform only part of the usual tasks of a workman or can only do lower-paying work than he could do before his injury, but can get and keep employment suitable to his condition.
This definition has been specifically approved by the Supreme Court with the concurrent holding that the definition comports with the intent of the Workers’ Compensation Act. Select Ins. Co. v. Boucher, 561 S.W.2d 474, 479 (Tex.1978).
*869Impliedly, then, the majority has determined that the recited evidence negates partial incapacity. However, omitted from the majority’s recitation of the evidence is that during her testimony, Mrs. Torres unequivocally agreed that she was physically able to do the work at Feather Fabrics, where her intentions to continue at that employment were forestalled when the company went out of business, and at Texas Instruments, where she hopes the employment becomes permanent. There is no other evidence to contradict these statements. Mrs. Torres’ testimonial declarations that she obtained and retained employment which she is physically able to do are clear and unequivocal declarations which relate to facts peculiarly within her own knowledge. Under these circumstances, the declarations are judicial admissions which are conclusive on Mrs. Torres, Gevinson v. Manhattan Construction Co. of Okla., 449 S.W.2d 458, 466 (Tex.1969), and preclude a finding of total permanent incapacity during the periods of such employment. To uphold a recovery for total and permanent incapacity, the evidence must not only show the workman is disabled from performing the usual tasks of a workman, but it must also show the workman is disabled to such an extent that he cannot get and keep employment. Commercial Ins. Co. of Newark, N. J. v. Puente, 535 S.W.2d 948, 952 (Tex.Civ.App.—Corpus Christi 1976, writ ref’d n. r. e.).
The situation pictured by all of the evidence is not one where Mrs. Torres, spurred only by economic necessity, labored when she was not physically able to perform the tasks of the employment she undertook after her injury. Rather, Mrs. Torres’ own testimony depicts the situation where she obtained and retained employment, albeit at a less strenuous job than she had before her injury, and is ably performing the usual tasks of her employment on a full-time basis at a rate of pay in excess of that formerly received. At most, the situation Mrs. Torres described, and corroborated by the medical evidence, is one of partial incapacity; and, in similar situations, a finding of total and permanent incapacity during such period of time has been held to be against the great weight and preponderance of the evidence. Commercial Ins. Co. of Newark, N. J. v. Puente, supra; Texas Employers’ Insurance Ass’n v. Vineyard, 316 S.W.2d 156 (Tex.Civ.App.—Dallas 1958, no writ).
Reaching this result does not conflict with the principles underlying the holdings in the cases cited by the majority in support of their determination of evidential sufficiency. None of those cases, so far as the opinions reveal, confronted a factual situation involving a claimant’s own judicial admission of physical ability to perform the tasks of the post-injury employment. Likewise inapposite is Mrs. Torres’ contention, which coincides with the majority’s holding, that the rule of Texas Employers’ Ins. Ass’n v. Mallard, supra, has been interpreted to mean that disability is total when the employee cannot get and keep employment for physical labor such as he or she had to do to make a living prior to the injury. Although Mrs. Torres cites two cases which contain statements tending to support the contention, the authorities listed in those cases for the statements do not make that interpretation of the rule. Moreover, it is an unwarranted interpretation, for Texas Employers’ Ins. Ass’n v. Mallard, supra, clearly states that total incapacity implies a disability to perform the usual tasks of a workman and not merely the usual tasks of his usual occupation or of any particular one trade or occupation. 182 S.W.2d at 1002.
Therefore, under the proper rules of law applicable to the facts in this cause, the evidence should be held factually insufficient to sustain the jury finding of total and permanent incapacity, the judgment should be reversed, and the cause should be remanded. Because the majority has reached a contrary determination under what I view to be a misconception of the applicable law, I respectfully dissent.