Consolidated Cas. Ins. Co. v. Smith

• Decision Date: 09 January 1958
• Docket Number: No. 13130,13130
• Citation: Consolidated Cas. Ins. Co. v. Smith, 309 S.W.2d 80 (Tex. Ct. App. 1958)
• Parties: CONSOLIDATED CASUALTY INSURANCE COMPANY, Appellant, v. Emmett F. SMITH, Appellee.
• Court: Texas Civil Court of Appeals

Page 80

309 S.W.2d 80

CONSOLIDATED CASUALTY INSURANCE COMPANY, Appellant, v.Emmett F. SMITH, Appellee.

No. 13130.

Court of Civil Appeals of Texas, Houston.

Jan. 9, 1958.

Rehearing Denied Jan. 30, 1958.

Frank G. Harmon, Paul W. Persons, Houston, Baker, Botts, Andrews & Shepherd, Houston, of counsel, for appellant.

Dixie, Ryan & Schulman, Smith & Lehmann, M. A. Lehmann, Houston, for appellee.

BELL, Chief Justice.

Appellee, as plaintiff, brought this suit to recover compensation for permanent partial disability alleged to have resulted from an injury received by him as an employee of the Sinclair Refining Company.

This is the second appeal of this case.On the first trial the trial court instructed a verdict against appellee on the theory that since he had returned to work he had earned more weekly wages than previous to his injury and, therefore, as a matter of law, his capacity to work and earn money had not been lessened.This Court reversed and remanded the case, holding that testimony concerning earnings was merely evidentiary on the issue of earning capacity within the meaning of the Workmen's Compensation Law, Vernon's Ann.Civ.St. art. 8306 et seq., 290 S.W.2d 589(ref.n.r.e.).On trial after remand, the jury found that his earning capacity had been impaired 12 1/2 per cent. and the trial court rendered judgment on such verdict in favor of appellee.

On September 24, 1953, appellee stuck a nail in his foot and was immediately given a tetanus shot at the employer's first aid station.

About a week after the accident, plaintiff developed a severe reaction, with severe pain all over his body, his joints ached and he had muscle spasms and was very nervous.The day following the accident he went to see Dr. Mock, who lived at La Porte, where plaintiff lived.Dr. Mock, after giving him a treatment, got in touch with the Sinclair Refining Company's physician to see if he wanted to take over, but since Dr. Mock had started the treatment and since plaintiff lived in the same town with Dr. Mock, the company's physician suggested that Dr. Mock continue to act as plaintiff's physician.After laying off from work for some seven weeks, for which period the defendant paid the full compensation benefits for which it was liable, the plaintiff returned to work.Plaintiff had a relapse in January, 1954, with great pain, and was unable to control his muscles.Again hives broke out on his body.Plaintiff had another reaction in March, 1954, and remained under his doctor's care until May, 1954.Plaintiff has been taking the medicine prescribed by his doctor every day since the early part of October when the reaction developed, and among the medicines he takes is codeine for relief of his pain.Plaintiff testified that his condition still bothered him at the time of the trial and since May, 1954, there had been no improvement in his condition.

Plaintiff's job does not require much physical exertion for the most part, but when he has a task which calls for unusual strain, his co-employees assist him.Plaintiff testified that he could move empty barrels but he had to get someone else to move the full ones because he knew that when he undertook to do any heavy work he would cause the pain in his muscles to start up and he would be unable to work.With evident purpose to qualify under the 'whiplash of economic necessity' decisions he testified: 'A.I have been able to take care of my job, and I do it, I guess, to the satisfaction of the foreman, although I have help on my job, and it is in great pain that I do it and under stress or strain, and like I say, I have to take my medicine out there to keep going.The reason I do this, it is not only me, I probably could lay off when I get into it, but I have a wife and three kids to take care of and it is not me I am thinking about.'

It was plaintiff's doctor's opinion that it would take a long time for a complete recovery from the fibromyositis, arthritis, and bursitis which he was suffering from at the time of the trial.It was plaintiff's doctor's further opinion that plaintiff had permanent scar tissue in the soft tissue and around the joints and capsules, and that plaintiff has arthritis that impairs the motion and limits the usefulness of the joints.His physician would not pass him to do hard manual labor.

Defendant acknowledged that plaintiff had received a compensable injury and that in connection with it he had suffered a reaction from the tetanus treatment.It was defendant's contention that the evidence showed without dispute that plaintiff's employment has been reasonably suited to his physical condition and capacity down to the present time and that the evidence further shows that plaintiff will be able to continue in such employment.The evidence undoubtedly shows that plaintiff was being paid at the same rate of pay as he received prior to the accident and that he has earned the same or greater wages as he earned before the accident; and defendant strongly urges that the evidence shows that he had been paid during the seven weeks all of the benefits he was entitled to under the Workmen's Compensation Law.The evidence did undoubtedly show that plaintiff had recovered from the reaction from the tetanus shot and was suffering at the time of the trial from arthritis, bursitis or fibromyositis.Plaintiff's physician agreed that such conditions could have developed without the occurrence of the tetanus shot, if it were assumed that plaintiff had a history of having hypertrophic arthritis before receiving the shot.It is unquestionably true that the evidence shows without dispute that plaintiff did have such arthritis in his right knee prior to the accident in question; however, the doctor stated that the severe reaction aggravated plaintiff's condition.

The above facts are exactly the same as developed on the first trial, the statement of facts on this appeal, except as specifically noticed below, being a copy of the statement of facts filed on the previous appeal.A very short supplemental statement of facts is also filed.It contains testimony of appellee dealing with his weekly earnings since his return to work.This is the additional testimony brought forward in the short supplemental statement of facts.

'Q.All right, sir, so that in spite of the aches and pains you have had you have been capable of performing, so far as this job, for producing earnings which have run anywhere from $120.00 to $132.00 a week on the average, isn't that right?A.Yes, I worked this job.I think we have proved that.We have showed you I made these hours.They paid you for the number of hours you work on your job; your time card.I have been in the refinery all those hours.As far as that is concerned, I think that the disability is not pertaining to this type job because I was a whole lot better man before I had that infection than I am now, and I have had to withdraw from a lot of things.My condition has been changed.I have to watch my diet and things like that.I have to eat the right things.If I happen to get hold of some horse meat sometime it will hit it off again.

'Q.You remember when we were in here yesterday and Mr. Lehman was examining the Jury panelhe asked them that merely the fact a man received wages,--A.(interr...