Cisneros v. Insurance Company of North America

• Decision Date: 10 June 1966
• Docket Number: Civ. A. No. 65-C-83.
• Citation: 254 F. Supp. 864
• Parties: Cruz CISNEROS v. INSURANCE COMPANY OF NORTH AMERICA.
• Court: U.S. District Court — Southern District of Texas

254 F. Supp. 864

Cruz CISNEROS v. INSURANCE COMPANY OF NORTH AMERICA.

Civ. A. No. 65-C-83.

United States District Court S. D. Texas, Corpus Christi Division.

June 10, 1966.

John J. Pichinson and Hubert L. Stone, Jr., Corpus Christi, Tex., for plaintiff.

Branscomb, Gary, Thomasson & Hall, Richard A. Hall, Corpus Christi, Tex., for defendant.

MEMORANDUM

GARZA, District Judge.

The Plaintiff brings this action for workmen's compensation benefits, suing for total and permanent disability and for medical benefits under a voluntary workmen's compensation policy issued by Defendant to Plaintiff's employer, King Ranch. Plaintiff alleges that he suffered a compensable injury in the course of his employment, resulting in his permanent and total incapacity, and that he is entitled to medical benefits under the Workmen's Compensation Laws of Texas.

The Defendant contends that Plaintiff did not suffer a compensable injury in the course of his employment; that if he did, it was not disabling, or that any disability was temporary, or that any permanent disability was partial; and that Plaintiff is not entitled to medical treatment.

The case has been set for trial by jury and the parties have filed a pretrial stipulation which contains the Plaintiff's motion in limine that the Court instruct Defendant's counsel and all witnesses not to mention in any manner the effect of medical treatment and/or surgery upon Plaintiff's disability.

The Defendant opposes this motion, and both parties have filed briefs, requesting a ruling by the Court in advance of trial on what is apparently a novel question.

The voluntary compensation policy provides coverage to employees not covered by the Workmen's Compensation Law, but makes such law applicable to the extent that it measures the amount of compensation and other benefits payable where the employee's injuries were such that he would be entitled to compensation under the Workmen's Compensation Law had he been covered by it. It is purely a matter of contract, and the Texas Workmen's Compensation Law has no governing effect as to voluntary compensation except insofar as it is made applicable by the policy. United States F. & G. Co. v. Valdez, 390 S.W.2d 485, CCA Houston, 1965, Ref. n. r. e.

The question here is one of admissibility of evidence: Whether to allow Defendant to adduce evidence of the benefits of surgery in a voluntary workmen's compensation case.

Neither the parties nor the Court have found a case on this point. It is, of course, well settled in Texas that in a trial de novo under the Texas Workmen's Compensation Law, the insurer must first admit liability and tender an operation which must be unanimously ordered by the Industrial Accident Board and refused by the claimant before testimony as to the beneficial effects of surgery is admissible. Truck Ins. Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521, 1960; also, 63 T.J.2d, Workmen's Compensation, § 437, and cases cited.

Defendant argues that the procedures outlined in §§ 12b and 12e, Article 8306, Vernon's Ann.Tex.Civ.St., which must be strictly complied with by the insurer, do...