Consolidated Underwriters v. Whittaker, 268

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Writing for the CourtDUNAGAN
Citation413 S.W.2d 709
PartiesCONSOLIDATED UNDERWRITERS, Appellant, v. Joe WHITTAKER, Appellee. . Tyler
Docket NumberNo. 268,268
Decision Date16 March 1967

Page 709

413 S.W.2d 709
Joe WHITTAKER, Appellee.
No. 268.
Court of Civil Appeals of Texas.
March 16, 1967.
Rehearing Denied April 13, 1967.

Fairchild & Hunt, Billy Hunt, Center, for appellant.

R. W. Fairchild, Vernis Fulmer, Nacogdoches, for appellee.

DUNAGAN, Chief Justice.

This suit was brought by appellee for workmen's compensation benefits for an injury alleged to have occurred on July 30, 1964. A jury trial was had in the 123rd Judicial District Court of Shelby County, Texas, in March, 1966. Judgment was entered for appellee for 401 weeks of compensation at the rate of $35.00 per week, in a lump sum, and for $612.50 for hospital and medical care. The court overruled defendant's (appellant) amended motion for new trial and it has perfected its appeal to this court.

The appellant has brought forward 24 points of error. The points of error will be discussed in an order different from that followed by the appellant.

The appellant in its points of error 7 through 14 complains that the answers of the jury to each of the first four issues are based upon insufficient evidence, as a question of fact, and that each such answer is against the overwhelming preponderance of the evidence. Such issues, and the answers thereto, were as follows:


'Do you find from a preponderance of the evidence that the injury sustained by the Plaintiff, Joe Whittaker, on or about the 30th day of July, 1964, was a producing cause of any total incapacity, as that term has been defined herein?


'Answer: Yes--We do

'If you have answered Special Issue No. 1 'WE DO', and only in that event, then answer this issue:


'When do you find from a preponderance of the evidence that such total incapacity, if any, began?

'Answer by stating the date, if any.

'ANSWER: July 30, 1964.

'If you have answered Special Issue No. 1 'WE DO', and only in that event, then answer this issue:


'How long do you find from a preponderance of the evidence that such total incapacity, if any, has continued or will continue from the date of its beginning, if any?

'Answer by stating the period of time, if any.

'ANSWER: Permanent


'Do you find from a preponderance of the evidence that plaintiff sustained any partial incapacity as a result of the injury, sustained by him on the occasion in question?

'Answer: 'WE DO' or 'WE DO NOT'

'Answer: We do not'

The appellee was an employee of L. D. Tyer Lumber Company doing sawmill work. This work required him to do lumber stacking, trip logs, tail the saw, set trimmers, work on the skid-weight and roll logs. His work involved heavy lifting,

Page 712

stooping and bending. At the time of his injury on July 30, 1964, he was running trimmers. While so engaged, a two-by-six piece of lumber got caught in a chain that carried it across the trimmer and allegedly struck him in the right lower abdomen in about the area of the groin, knocking him down, injuring his lower abdomen, hips and low back; and it is further alleged that he sustained immediate total and permanent disability by reason of such injury.

It was admitted by Leonard Tyer, the owner of L. D. Tyer Lumber Company, upon direct examination, that the appellee did receive an accidental injury while in the course and scope of his employment with his company on the date alleged.

Appellee, Joe Whittaker, testified that he was 46 years of age; that he had done manual labor all of his life; that he had never had any back trouble before July of 1964; that he was injured on July 30, 1964, when a board struck him in the groin on the right side; that the blow knocked him down; that he immediately began hurting in the lower abdomen and back and has not been free of pain in either place since the accident; that pain radiated down his back and left leg; that he was taken by the foreman to Dr. Conway H. Mallery; that Dr. Mallery x-rayed his side and back and gave him a prescription; that he went back to Dr. Mallery the following day but was not able to see him because the office was closed; that he went to Dr. Hooker, Dr. Mallery's associate, three or four days later; that he went to Dr. Glen R. Johnson sometime later when his employer told him he could see any doctor he wished to see; that he saw Dr. Johnson about three weeks after the accident; that Dr. Johnson finally put him in the hospital for three days and allowed him to go home on Sunday of that week; that Dr. Johnson operated on him (for removal of his appendix) and he was released from the hospital September 2, 1964; that he remained off work until some time in February, 1965; that when he first saw Dr. Mallery the doctor told him that if he felt like it, he might 'work tomorrow but don't work this afternoon;' that he has made complaints of his back hurting him to his employer; that he was employed by the Tyer Lumber Company at the time of the trial as a night watchman, and had to use a stick to make his rounds to punch the clock; that he works with a back brace prescribed by Dr. Mallery; that he is not able to work, but does it anyway with pain because he needs the money as he has no other way to feed his family.

Joe Whittaker testified further that the nightwatching work he does involves exertion that hurts him; that after working, his back hurts worse; that he has to take medicine on the job to ease his pain enough so that he can continue working; that the work he was doing after his injury and until he was hospitalized was hard work, and he was doing it in pain; that everything he has done since he was hurt has been with pain and suffering and he has not felt able to do it; that he has complained to Mr. Tyer that he couldn't do the work and Tyer told him he'd just have to do the work; that there wasn't any easy work at the sawmill and he couldn't put him on a pension; and that he has complained to Mr. Tyer many times about his back giving him trouble. He told Mr. Tyer he was wearing a back brace.

Dr. Mallery, the treating physician, testified that he first saw Joe Whittaker July 30, 1964; that he was bruised and there was some swelling present in the right groin; that there was some muscle spasm in the back and pain on percussion; that x-rays were normal except for arthritic spurring in the area of the fourth and fifth vertebrae; that an injury can aggravate an arthritic condition and a person is more likely to have pain when an injury occurs in the area of the arthritis; that he did not feel that Whittaker had been able to do hard physical work at any time since he first saw him; that Whittaker's condition had stabilized, sometimes better, sometimes worse; that lifting, bending, pulling or other heavy work is going to cause him to

Page 713

have pain; that the pain has been reported to be worse after bending and sweeping; that on July 30, 1964, he complained not only of his right groin where he was struck, but also of pain in the lumbar region of his back. On examination, he found muscle spasm and pain in the back. Pain causes muscle spasm, and the existence of arthritis in the back does not mean that the person suffers pain from it; an injury to the area may cause pain in itself, and may aggravate the arthritis and cause it to become painful; if the pain still continues after a year and a half or two years, most likely it is going to be permanent. Whittaker has continued to have pain which varies in intensity; he is still seeing Whittaker; from the time he first saw Whittaker on the day of the injury, while the intervals between have varied, he has seen Whittaker on the average of every two weeks; Whittaker has consistently complained of pain in the low back, and the muscle spasm present in his back varies with the amount of pain; if Whittaker does much work, he is going to have pain; if Whittaker does heavy physical work, like lifting, bending, pulling and walking, he will have pain permanently; Whittaker told him his work was harder than he really felt like he could do, but he had to work; most every time Whittaker saw him, he would complain of pain in the back, though occasionally he would not. He was hospitalized in November, 1964, because of the persistence of the pain; Whittaker's pain was related to the intensity of the treatment and amount of work he did; after hospitalizing him and giving him intensive treatment, he was relatively free of pain in January, 1965, but after he started back to work, he started having pain again. If Whittaker could stay at rest and have intensive therapy, he might be free of pain, but if he continues doing heavy work, he won't improve .

Dr. Glen R. Johnson, who was called as a witness by appellant, testified that on his examination of Whittaker on August 17, 1964, his impression was that he had received a severe forceful injury to the right inguinal area; that on August 20, 1964, Whittaker returned with quite severe abdominal pain, and he suspected appendicitis and hospitalized Whittaker for three days for observation. He discharged him from the hospital to go home. In less than two hours after he discharged him, Whittaker came in and he and Dr. Phillips thought he had appendicitis, hospitalized him, and operated and removed the appendix, which was not diseased. He was not suffering with appendicitis. Considering the injury, the most likely thing would be that he was suffering from the injury. He actually doesn't treat enough arthritis to be able to give an opinion as to the severity of the arthritis of Whittaker. Whether a man with arthritis which is painful would work despite the pain is...

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