Gill v. Transamerica Insurance Company
| Decision Date | 23 June 1967 |
| Docket Number | No. 16927,16927 |
| Citation | 417 S.W.2d 720 |
| Parties | Thomas Buford GILL, Appellant, v. TRANSAMERICA INSURANCE COMPANY, Appellee. . Dallas |
| Court | Texas Court of Appeals |
Otto B. Mullinax, of Mullinax, Wells, Mauzy, Levy & Richards, Dallas, for appellant.
Wm. N. Hamilton, of Akin, Vial, Hamilton, Koch & Tubb, Dallas, for appellee.
This is a workmen's compensation case. Alleging that he had sustained an accidental personal injury on January 15, 1965 while engaged within the course of his employment for Henry C. Beck Company in Dallas, Texas, appellant brought this action against his employer's insurer, Transamerica Insurance Company seeking to recover statutory benefits for the disability occasioned thereby. Appellant alleged, inter alia, that 'any weakness, impairment, disease or infection of any kind,' which he may have had prior to the receipt of his injury was dormant and that such injury 'contributed to, aggravated and accelerated such pre-existing condition.'
Appellee insurance company, by way of defense, affirmatively alleged that any disability or loss of wage-earning capacity sustained by appellant was caused solely by 'natural conditions, diseases, prior compensable injuries,' etc. Appellee enumerated such pre-existing conditions to be 'a congenital anomaly of the spine'; 'a condition known as spondylolisthesis'; 'an unknown condition covering a medical classification as 4--F for military service'; and 'an undetermined condition of the spine requiring medical treatment since 1962.'
Following the presentation of voluminous testimony to a jury a special issue verdict was returned in which it was found that appellant had sustained an accidental personal injury on January 15, 1965 while in the course of his employment for Henry C. Beck Company; that he had sustained total incapacity following such injury, such incapacity beginning on February 22, 1965 and ending on March 4, 1965; that appellant did not sustain any partial incapacity following the injury; that appellee insurance company had failed and neglected to furnish proper medical aid for the treatment of the injuries and that the reasonable cost of such medical treatment was $640.95; that the prior injury sustained by appellant in 1962 did not contribute to the incapacity he had following the injury of 1965; that appellant's incapacity was not caused solely by one or any combination of the prior injury of 1962 or 'a condition known as spondylolysis.'
Based upon such verdict the trial court rendered judgment for appellant against appellee for the sum of $58.12 as compensation and the additional sum of $640.95 representing doctor and hospital bills . Appellant, contending that the judgment is wholly inadequate, brings this appeal.
Through the medium of his first four points appellant contends that his rights were prejudicially affected by the failure and refusal of the trial court to heed his objections leveled at the court's definition of the term 'injury' as contained in the main charge to the jury, and in refusing to submit his requested definition of the term 'injury' which incorporated therein the element of aggravation of a pre-existing 'condition'. He further contends that the court erred to his prejudice in denying his motion to further instruct the jury and to enlarge upon the definition of the term 'injury' to include the element of aggravation of 'all bodily infirmities' following a written request from the jury to be given a more complete definition of the word 'injury'.
A proper evaluation of appellant's complaints requires a brief statement. Appellant Gill, 52 years of age, had been employed as an operating engineer for 26 years. He had never sustained an injury to himself prior to 1962 when he sustained an injury to his back. As a result of the 1962 injury he was seen by Dr. Patterson and Dr. Driggs. These doctors differed somewhat in their diagnosis. Dr. Patterson, a neurosurgeon, testified that x-ray and myelogram studies demonstrated a condition known as 'spondylolysis' and that the patient had been born with this condition in his back. Dr. Driggs, an orthopedic surgon, testified that his examination revealed a 'spondylolisthesis'. The testimony reveals that the difference between spondylolysis and spondylolisthesis is that in the latter case there is a degree of forward slipping of the fifth lumbar vertebra on the sacrum. Dr. Driggs testified that the condition he described was congenital, that is, present from birth, and that the injury of 1962 aggravated such pre-existing condition. He said that the man had an unstable back due to such physical impairment.
As a result of the 1962 injury Mr. Gill lost no work time except four days in the hospital. Following the injury in December 1962 until he was injured in January 1965 he had no trouble with his back . During the year preceding January 15, 1965 he worked 227 days for three different companies, and put in considerable overtime. Following his 1965 injury which involved a strain to his back he was seen by Dr. Herrick, an orthopedic specialist, who found muscle spasm in his low back together with numbness of the right thigh. He testified that his x-ray examination revealed the defect in the low back without forward slipping. Dr. Herrick concluded that appellant's problem was secondary to his congenital defect of the spine, superimposed on the strain received while working. He recommended an operation and such operation was performed on March 5, 1965, which consisted of a spinal fusion which had the effect of permanently stiffening the backbone over three vertebrae. Dr. Herrick testified that the history of having hurt himself some six weeks before while trying to climb down from the top of a building would be calculated to aggravate the defect or condition that he had from birth. The doctor testified that his estimate of disability following the operation would be around 15 per cent.
There was no conflict in the testimony that appellant had a pre-existing congenital condition in the lower part of his spine and that such condition could have been aggravated or accelerated by a strain such as that occasioned by him on January 15, 1965.
The trial court defined the term 'injury' in his charge as follows:
"INJURY' means damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom, or the incitement, acceleration or aggravation of any disease previously or subsequently existing by reason of such damage or harm to the physical structure of the body.'
Appellant leveled a timely objection in which he directed the court's attention to the fact that the definition should incorporate the word or words which would give the jury the opportunity of considering aggravation of a pre-existing body condition as well as a pre-existing disease. In addition to the objection to the charge appellant tendered a requested explanatory instruction which included the element of 'excitement, acceleration or aggravation of any disease or condition of the body previously or subsequently existing by reason of such injury to the body.' This requested instruction was refused and the court declined to change the definition given.
After the jury had deliberated for some time it forwarded to the court a note as follows:
'Your Honor
The court responded, in writing, as follows:
'LADIES AND GENTLEMEN OF THE JURY:
'Paul G. Peurifoy, Judge.'
Appellant filed written objections to the instruction of the court to the jury advising them that the definition contained in the charge is the law and that the court cannot enlarge upon it, and also moved the court to give to the jury an additional definition of the word 'injury' including the element of 'the incitement, acceleration, or aggravation of any disease, infirmity, or condition of the body previously or subsequently existing by reason of such damage or harm to the physical structure of the body.'
The court refused such additional instruction.
Having carefully considered this record we are of the opinion, and so hold, that the trial court erred in failing to heed the objections and requests timely and properly made by appellant. We are also convinced that the appellant has maintained his burden of showing that the error of ...
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...Act cannot be defeated by a mere showing that the injured employee was not a well person at the time of the injury. Gill v. Transamerica Insurance Co., 417 S.W .2d 720 (Tex.Civ.App., Callas 1967). However, it is equally well settled that the compensation law does not provide for health insu......
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