Dieter v. Houston Fire & Casualty Insurance Co.
| Decision Date | 25 April 1966 |
| Docket Number | No. 7610,7610 |
| Citation | 403 S.W.2d 222 |
| Parties | Harold G. DIETER, Appellant, v. HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Appellee. . Amarillo |
| Court | Texas Court of Appeals |
Huffaker & Green, Tahoka, for appellant.
Evans, Pharr, Trout & Jones, Lubbock, for appellee.
This is a compensation case. This case was submitted to the trial court upon an agreed statement of facts. The same statement of facts is presented here for our determination of the question involved. Harold G. Dieter will hereafter be referred to as appellant and Houston Fire & Casualty Insurance Company as appellee. The agreed statement is as follows:
'Comes now Harold G. Dieter, the plaintiff in the above-styled and numbered cause, and Houston Fire & Casualty Insurance Company, the defendant in the above-styled and numbered cause, by and through their attorneys of record, and in accordance with the provisions of Rule 263 T.R.C.P., do hereby agree and stipylate the pleadings of the parties and the facts upon which judgment shall be rendered herein, the controversy herein being submitted to the Court upon this agreed statement of facts:
1.
'On the 19th day of June, 1964, the plaintiff suffered and sustained an accidental injury in Lynn County, Texas, while acting within the scope and course of his employment for Joe Howton, D/B/A West Point Gin (hereinafter sometimes referred to as employer) said plaintiff working at said time in the capacity of a ginner. Prior to the date of said injury the defendant had issued to said employer a Policy of Workman's Compensation Insurance under the laws of the State of Texas, and which policy was in full force and effect at all times incident hereto, and which policy covered said employer and the work being done by the plaintiff for said employer at all times incident hereto .
2.
'Generally the injury suffered by the plaintiff was to his back whereby he suffered and sustained a rupture of two (2) of his intervertebral discs among other injuries. The parties agreed that the injury suffered and sustained by the plaintiff is a compensable injury within the meaning and contemplation of the Workman's Compensation Act of the State of Texas, and that the defendant is liable therefor.
3.
'No question is involved concerning the giving of notice, of the filing of claim for compensation with the Industrial Accident Board. Notice of appeal from the decision of the Industrial Accident Board was given within the time provided by law, and this suit was filed within the time provided by law and no issue is involved herein on such grounds.
4.
'The award of the Industrial Accident Board was entered on January 27, 1965. At no time while the plaintiff's claim was pending before the Industrial Accident Board did the defendant admit liability, tender an operation of any nature for the plaintiff, demand the Industrial Accident Board to require the plaintiff to take an examination, or take any step whatsoever to require the plaintiff to submit to an operation, and the plaintiff in no respect refused an operation. The Industrial Accident Board of itself did not make any demands or requests of the plaintiff to submit to an examination or underto any type of surgical operation. After the Industrial Accident Board rendered its decision and this case was properly appealed to this Court, defendant did not at any time thereafter even up until the filing of this agreed statement of facts admit liability, tender such a surgical operation to the plaintiff, or request that an operation be undergone by him. This suit was filed in this court on March 2, 1965.
5.
'On May 19, 1965, on the advise of his personal doctor and at his own expense the plaintiff underwent surgery and a semihemilaminectory at L4--5 and L5--sl interspeaces was performed on the right side, and degenerated disc material was removed by the surgeon. There were protrusions, that is a bulging of both discs, at each level shich apparently caused the trouble from which the plaintiff has complained. The injury received by the plaintiff was the cause of the rupture of the discs, and the protrusions thereof, together with the consequent irritation of the nerve roots, etc.
6.
'The surgeon who performed such operation is of the opinion that the plaintiff was totally disabled from the time of his said injury up until the time that the surgery was performed, and that had it not been for such surgery that the plaintiff's condition would have been such that he would have been permanently and totally disabled within the meaning of the Workman's Compensation laws of the State of Texas. Such surgeon is of the further opinion that the surgery performed upon the plaintiff's back will be beneficial to him, and that he will probably be able to return to work by October but certainly by the First of January, 1966, but that he will be comewhat limited in his activities when he returns to work particularly in his activity of doing heavy lifting, but that he would impose restrictions upon the plaintiff whereby he would do no unusual weight lifting or over 50 pounds, or perhaps up to 75 pounds at the most, and that he felt it to be prudent to restrict the plaintiff's activities to such extent in order to avoid or to prevent harm to him because of his slightly weakened condition of his back.
7.
'It is the position of the plaintiff that the defendant would not under the law be permitted to introduce any testimony of any nature whatsoever that would show or tend to show the beneficial effects of the surgery had upon his back, because the defendant did not admit liability while the claim was pending before the Industrial Accident Board, nor did the defendant tender any type of operation to the plaintiff while such claim was so pending before the Board, nor did it make any demand of any nature whatsoever either to the plaintiff or to the Board to require such an examination, and none was ordered or requested by the Industrial Accident Board, and no surgery was performed until after the award of the Industrial Accident Board. It is the plaintiff's position that the Supreme Court case of Hardward (Hardware) Mutual Casualty Co., v. Courtney, 363 S.W.2d 427 (Tex.Sup.Ct.1963) is contrilling hereof, and that under the decision in said case, and that of Truck Insurance Exchange v. Seelbach (161 Tex. 250), 339 S.W.2d 521 (Tex.Sup.Ct.1950) and Texas Employers Insurance Association v. Shelton (161 Tex. 259), 339 S.W.2nd 519 (Tex.Sup.Ct.1960) together with the decisions of the various Courts of Civil Appeals cited therein, that the defendant is not entitled to plead nor prove the possible benefits of a surgical operation. The defendant on the other hand contends that none of said causes are applicable for the reason that it is entitled to show the present physical condition of the plaintiff, and that inasmuch as the operation has already been performed that the rule announced in said cases is not applicable, and that it is entitled to show the possible beneficial effects of the surgical operation that has already been performed.
8.
'It is therefore agreed by and between the parties that the facts herein set out give rise to but one question of law, which said question of law is the sole question submitted to this Court for its determination in this action, to-wit:
QUESTION: Under the agreed facts as set forth above wherein it is shown that the defendant wholly failed to comply with the rules set out in Hardware Mutual Casualty Company v. Courtney 363 S.W.2d 427, supra, wherein certain mandatory steps are set out that must be followed before the compensation carrier would be entitled to make proof of the possible beneficial effects of a surgical operation, that would be performed in the future, is the defendant entitled to prove over the objection of the plaintiff that it has not followed such steps, the possible beneficial effects of the surgical operation that has already been performed as set forth above?
9.
'It is stipulated and agreed by and between the parties that in the event that the Court holds that such testimony is not admissible, the plaintiff is entitled to recover the sum of $10,000.00, and that if such testimony is admissible that the plaintiff is entitled to recover the sum of $6,000.00, each of said sums being in addition to all compensation payments heretofore made by the defendant to the plaintiff. In addition thereto, the defendant shall pay all expenses incident to said operation amounting to $350.00 as the surgeon's fee, and $393.55 to the hospital for hospital charges. All costs of court up through the trial court shall be paid by the defendant. Appellate costs shall be paid by the party against whom the same may be taxed by the appellate court.
10.
'The final award and decision of the Industrial Accident Board in this case should be set aside and held for naught.
11.
'The court should apportion the plaintiff's recovery herein between the plaintiff, Harodl G. Dieter and Huffaker & Green, his attorneys, and award the plaintiff's attorneys such reasonable fees as the Court finds and determines under the compensation laws of the State of Texas, and in this connection the parties represent and...
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Houston Fire & Cas. Ins. Co. v. Dieter
...of civil appeals which reversed the judgment of the trial court and rendered judgment for Respondent in the higher stipulated amount. 403 S.W.2d 222. We reverse the judgment of the court of civil appeals and affirm that of the trial Section 12e of Article 8306 provides in part: 'In all case......