American Motorists Ins. Co. v. Lynn

• Decision Date: 16 November 1988
• Docket Number: No. 08-88-00155-CV,08-88-00155-CV
• Citation: 762 S.W.2d 229
• Parties: AMERICAN MOTORISTS INSURANCE COMPANY, Appellant, v. Billy R. LYNN, Appellee.
• Court: Texas Court of Appeals

Page 229

762 S.W.2d 229

AMERICAN MOTORISTS INSURANCE COMPANY, Appellant, v. Billy R. LYNN, Appellee.

No. 08-88-00155-CV.

Court of Appeals of Texas El Paso.

Nov. 16, 1988.

Rehearing Denied Dec. 14, 1988.

Connell Ashley, Joel B. Locke, Shafer, Davis, McCollum, Ashley, O'Leary & Stoker, Odessa, for appellant.

Ruff Ahders, Ruff Ahders, Associated Odessa, Michol O'Connor, Houston, for appellee.

Before OSBORN, C.J., and SCHULTE and FULLER, JJ.

OPINION

OSBORN, Chief Justice.

May a doctor who treated a worker's compensation claimant after a prior injury testify as to the percentage of incapacity a worker has which is attributable to the first injury in a case involving a subsequent injury when the doctor did not examine or treat the claimant after the second injury? We conclude that the answer is "yes", and the judgment of the trial court must be reversed because of the failure of the court to submit to the jury contribution issues concerning incapacity resulting from the prior injury. We reverse.

Billy Lynn sustained a back injury on January 25, 1984, while employed by Sharp Drilling. He was treated by Dr. Manicom who subsequently performed a laminectomy. This accident resulted in a compensable injury for which Mr. Lynn was paid worker's compensation benefits.

On September 21, 1986, while working at a 7-Eleven store, he again injured his back. As a result of this injury he was treated by Dr. Hochschuler.

In answer to the plaintiff's petition seeking compensation benefits for the 1986 injury, the compensation carrier alleged that the prior compensable injury contributed to the present disability of the claimant. Dr. Hochschuler's testimony was presented to the jury through answers to written interrogatories in which he stated that Mr. Lynn's prior accidents, including the one in January 1984, and an earlier accident in January 1975, have contributed to Mr. Lynn's present incapacity. He did not testify as to the amount or percentage which such prior injuries contributed to the present incapacity. Dr. Manicom's testimony was also presented through answers to written interrogatories and he testified that following the surgery which he performed after the 1984 injury, that the patient would have some minor amount of disability "being in the 10 to 15 percent range on a permanent basis." There was also offered in evidence as an exhibit attached to his deposition, a letter written by Dr. Manicom following the back surgery in 1985, in which he said "[a]s far as permanent partial disability, I believe we are thinking in the area of 30-40% because of these limitations which are secondary to his lumbar disk disease contributed to or created entirely by his 1-84 accident."

The transcript includes special issues which inquired (1) if the plaintiff sustained an on-the-job compensable injury on January 25, 1984, (2) if that prior injury contributed to any incapacity found by the jury and (3) the percentage, if any, that plaintiff's injury of January 25, 1984, contributed to the incapacity found by the jury as a result of the September 1986 accident. All three issues are marked "denied". The jury, by its verdict, found that Mr. Lynn sustained total and permanent incapacity as the result of his accident while employed by 7-Eleven. Judgment was entered upon that verdict.

By a single point of error, the Appellant asserts the trial court erred in refusing to submit the requested special issues on the contribution defense. In the leading case on this subject, Chief Justice Greenhill in Transport Insurance Company v. Mabra, 487 S.W.2d 704 (Tex.1972), wrote that in order to reduce the recovery of a workman because of a previous injury, "the insurance carrier must prove (1) that the previous injury was compensable (2) contributed to the present incapacity, and (3) the amount or percentage of such contribution." That rule still applies today. Texas Employers' Insurance Association v. Gomez, 756 S.W.2d 80 (Tex.App.--El Paso 1988, no writ).

In this case, there is no dispute about the first two elements. If there is no evidence of the amount or percentage of contribution which a prior injury contributes to a claimant's present incapacity, then there is no need to submit contribution issues. Millers Mutual Fire Insurance Company of Texas v. Monroe, 495 S.W.2d 625 (Tex.Civ.App.--Waco 1973, writ ref'd n.r.e.).

In this case, both the doctor for the claimant and the doctor for the carrier testified that the 1984 injury did contribute to the incapacity of the claimant following his 1986 accident. Only Dr. Manicom placed a percentage on that incapacity. The Appellee asserts that, because Dr. Manicom did not examine the claimant following the 1986 accident, he could not testify as to how much the 1984 injury contributed to his present incapacity. First, we note that there was no objection when the testimony of Dr. Manicom was offered...