Aetna Cas. & Sur. Co. v. Scruggs

• Decision Date: 09 March 1967
• Docket Number: No. 266,266
• Citation: 413 S.W.2d 416
• Parties: AETNA CASUALTY & SURETY COMPANY, Appellant, v. T. W. SCRUGGS, Appellee. . Corpus Christi
• Court: Texas Court of Appeals

Page 416

413 S.W.2d 416

AETNA CASUALTY & SURETY COMPANY, Appellant, v. T. W. SCRUGGS, Appellee.

No. 266.

Court of Civil Appeals of Texas Corpus Christi.

March 9, 1967.

Rehearing Denied March 30, 1967.

O. F. Jones, of Guittard, Henderson, Jones & Lewis, Victoria, for appellant.

L. DeWitt Hale, Corpus Christi, for appellee.

OPINION

GREEN, Chief Justice.

This is a workmen's compensation case. Appellee T. W. Scruggs alleged that on February 26, 1960, while engaged in his duties for his employer DuPont in lifting and handling heavy steel reinforcing rods he sustained severe strain and injuries proximately causing serious damage to his heart, and resulting in total and permanent disability.

The jury in answer to special issues Nos. 1, 2, and 3, found that (1) appellee sustained an injury on or about February 26, 1960, (2) which was accidental, and (3) which was received in the course of his employment with DuPont. The jury further found such injury to be the producing cause of temporary total disability for a period of 26 weeks from February 26, 1960, and permanent partial disability thereafter; and that appellee's incapacity was not solely the result of a pre-existing heart trouble and the natural progress thereof.

Based upon the verdict of the jury and certain stipulations of the parties, judgment was entered for appellee for $12,623.81, of which a fee of 30% Was awarded his attorney.

Appellee testified that after having successfully passed a pre-employment medical examination, he went to work for DuPont as an iron worker at its Victoria County plant in early February, 1960. Prior to this occasion, he was in good health, and had never had a heart attack, to his knowledge, and had never been in a hospital. He was at the time 62 years of age. About 2:30 P.M. on Friday, February 26, 1960, he and another employee, Parker, were removing heavy steel reinforcing rods 40 feet long and a little less than one inch thick from a bundle. This bundle of rods had become twisted at one end, making it necessary, in order to extricate an individual rod, to pull at it rather vigorously, jerking and popping it with considerable exertion. As he was pulling and jerking on a rod, he stated, the rod came loose, and something went wrong with him inside . He suddenly felt severe pain in his chest, accompanied by shortness of breath, and he was forced to stop working and sit down. The sharp pains spread into his left arm. He was unable to work, and his foreman took him in a truck to the company first aid station, where he was examined first by a nurse, and then by Dr. McGlothlen, the DuPont doctor. Suspecting heart trouble, he gave appellee an E.K.G., which except for an enlargement on one side of the heart disclosed nothing abnormal. Dr. McGlothlen released him and since appellee was going to his home in Corpus Christi for the weekend, suggested that he see a doctor there.

Appellee was unable to perform any more work that afternoon, and at 4:30 P.M. he and Parker left in the latter's automobile for their homes in Corpus Christi. During this ride appellee continued to suffer severe chest pains, which became more intense as they crossed the high bridge leading into Corpus Christi. He attended a labor union meeting that night, but had to leave early because of pain in his chest. The next morning he was taken to a doctor, who examined him and prescribed medicine for his suffering. That afternoon he had a recurrence of the severe pains, lost consciousness (awakening three days later) and was taken to Thomas-Spann Clinic in Corpus Christi, where he was hospitalized. He remained in the hospital for four weeks under the treatment of Dr. Thomas. He then, for reasons of economy, moved to Nixon to live with his wife's daughter, where he remained to the date of trial. During this period he was under constant care and treatment of Dr. Sam Nixon. He has not been able to obtain and retain employment of any substantial nature since February 26, 1960.

Three doctors gave evidence on trial, Dr. Sam Nixon for appellee, and Dr. Hicks and Dr. McGlothlen as defense witnesses. Dr. Nixon testified through deposition taken in April, 1964, by answers to written interrogatories. He started treating appellee on May 25, 1960, in Nixon, Texas, and had been regularly attending to him since that date. The history furnished him was consistent with appellee's testimony outlined above. He ran an E.K.G. on appellee on May 31, 1960. Dr. Nixon expressed the opinion (in answer to interrogatory No. 25) based on his examination and the electro-cardiogram, that appellee had at that time arteriosclerotic heart disease with coronary artery disease manifested by myocardial infarction ¹ and angina pectoris, and that such findings were consistent with the history as given him by appellee. He said that physical effects of a coronary occlusion do not invariably show up on an E.K.G. taken immediately after the occurrence. In his opinion heavy physical exertion can cause or contribute to the onset of a coronary occlusion, (answer to No. 32) and in answer to a lengthy hypothetical question (No. 33) which assumed as true facts taken from the evidence, stated as his opinion that the heavy manual labor being performed probably caused, brought about, triggered or contributed to the coronary occlusion. He testified, based on his opinion from his own examination and treatment of appellee for four years, that appellee would not ever be able to obtain and retain employment requiring heavy manual labor .

In answer to cross-interrogatories, Dr. Nixon expressed the opinion that most coronary occlusions do not occur without any relation to physical activity, nor to his knowledge, do they usually occur while the patient is at rest. We call attention to this, since there appears to be conflict between him and defense medical experts on this point.

We have read and considered the testimony of appellant's medical witnesses, Dr. McGlothlen, DuPont's plant physician and Dr. Hicks, a heart specialist. Both were of the opinion that a coronary occlusion is not usually caused by exertion, but more frequently occurs during rest, although angina is generally the result of effort or exertion. Both testified that the hospital records established that appellee had sustained a coronary occlusion and resulting myocardial infarction, and that this was entirely consistent with his history of an enlarged heart and arteriosclerosis. They did not believe that the coronary occlusion occurred February 26th; however, neither expressed the opinion that the effort and strain of the work appellee was doing in the afternoon of February 26, 1960 was not connected with his subsequent disability; the most either would say was that there was no evidence that such was the case, and no evidence that appellee had suffered a heart attack, as differentiated from an attack of angina, while at work on the job. In this connection Dr. Hicks testified:

'Q If he has a pre-existing condition, if he has some coronary heart disease, even if it's unknown to him, is it your opinion, to recap this, the fact that he is pulling on something and exerting himself is probably not going to have any significance?

A As far as the production of an acute miocardial infarction, this is true. We don't have any medical evidence to really indicate, in thousands of cases, that exertion of this type produces an acute miocardial infarction.

If you are talking about chest pain or angina, that is a different situation. Because here, exertion does produce chest pain. This is when the coronary arteries are narrowed enough, but not closed, so that at rest, the patient's heart functions normally. The heart muscle gets enough blood supply but as he exerts, the heart rate picks up. The heart muscles needs more oxygen supply, but it can't get it.

This will produce what we call angina pectoris. Then it goes away as the patient rests, but that is an entirely different thing than an acute miocardial infarction where there is an actual block of the blood vessels.

It is then deprived of its blood supply and it could come from a couple of things, one is when one of these areas of hardening of the arteries can suddenly close off or actually a hemmorhage can develop in the lining of the blood vessel wall, which would competely close the artery, so the person would develop a heart attack.

We don't have convincing evidence from a medical standpoint that exertion produces miocardial infarctions.

This more often happens at rest.'

He went on to say: 'And in such cases as this, it is hard to tell whether the first episode is what we call angina or whether this was the first part of a heart attack or whether it occurred the next day .' Dr. McGlothlen testified, and we consider this as significant, that when he released appellee from the first aid station after appellee had rested and his blood pressure had dropped to almost normal, he suggested that appellee see a doctor in Corpus Christi, explaining 'that if this was, as I suspected, angina, he should be under treatment To prevent it from going into a coronary occlusion.'

On the trial, the complete hospital records, including a series of cardiograms and reports of Dr. Thomas, were admitted into evidence without objection. All of the medical testimony is to the effect that appellee while in the hospital was suffering from a coronary occlusion ² which led to myocardial infarction. In this regard, we quote from appellant's brief:

'* * * we do not dispute that Appellee Scruggs has, at some prior time, suffered a severe coronary occlusion. We think it was Saturday, February 27, 1960, just before he was hospitalized in Corpus Christi. We also do not dispute that he is presently disabled because of his heart condition. We take no issue whatsoever with Dr. Nixon's testimony concerning Mr. Scruggs' present condition, or even what he found when he first saw Scruggs. We do take exception to Dr. Nixon's attempt to testify on or...