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Garcia v. Allen6/8/2000
determination of whether an individual is disabled is necessarily fact intensive." Primeaux v. Conoco, Inc., 961 S.W.2d 401, 404 (Tex.App.--Houston [1st Dist.] 1997, no writ). In determining if one is substantially limited in a major life activity, we consider:
(i) The nature and severity of the impairment;
(ii) The duration or expected duration of the impairment; and
(iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.
Norwood v. Litwin Engineers & Constructors, Inc., 962 S.W.2d 220, 224 (Tex. App.-Houston [1st Dist.] 1998, pet. denied) (quoting 29 C.F.R. ยง 1630.2(j)(2) (1995)).
The Texas Supreme Court has noted that:
An examination of the entire Act in the Human Resources Code reveals that the legislature was concerned with those physical and mental defects which are serious enough to affect a person's use of public facilities and common carriers, ability to obtain housing, and the ability to cross the street. The intent of the Act was to protect those impaired to the point that they might not be able to participate in the social or economic life of the state, achieve independence, or become gainfully employed, without this protection. The legislature obviously was not concerned with minor physical or mental defects.
Chevron Corp. v. Redmon, 745 S.W.2d 314, 317 (Tex. 1987).
Garcia asserts that the deposition testimony of Dr. Swann establishes that he has a disability that substantially limits his ability to perform a major life activity. The doctor's testimony contained the following colloquy:
Q. I'd like to read you a . . . three part definition. . . .
If you assume with me that a person is considered disabled if he or she has an impairment that substantially limits one or more of the individual's major life activities, and that the major life activities refers to those basic activities that the average person in the general population can perform with little or no difficulty, and then further assume that major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, reading, learning and working, and that major life activities are not limited to those activities, but may include similar activities, and then if you can further assume that by the term the person being substantially limited, that the person is unable to perform a major life activity that can be performed by the average person that's in the population, . . . or else there's a significant restriction on the condition, the manner, the duration which he can perform a particular major life activity compared to the average person in the general population, would you describe Roel's . . . lack of a kneecap . . . would you say that based on this definition . . . . that Roel would be a disabled person under that . . . definition because of his situation in his knee?
A. Well, yes. I certainly have an opinion in this regard. . . And the opinion is . . . going to be that he certainly does not have a normal knee. Okay. And, you know, he is certainly not going to . . . go out there and play in the NFL. . . . And when you compare him to a normal person, he isn't normal, okay, to that extent. Now, I can't say that he is totally and permanently disabled where he can't do anything. I mean. . . of course, his body functions and everything are all working, except his left knee. . . . And in that regard, he cannot perform to the extent of a-of a regular person.
Q. Okay. Could he-if her were attempting to be a lineman for the phone company, climbing telephone poles and kneeling down to i
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