Harker v. Paul Revere Life Ins. Co.

• Decision Date: 02 November 1965
• Citation: 28 Wis.2d 537,137 N.W.2d 395
• Parties: Robert J. HARKER, Respondent, v. PAUL REVERE LIFE INSURANCE COMPANY, Appellant.
• Court: Wisconsin Supreme Court

Page 395

137 N.W.2d 395

28 Wis.2d 537

Robert J. HARKER, Respondent, v. PAUL REVERE LIFE INSURANCE COMPANY, Appellant.

Supreme Court of Wisconsin.

Nov. 2, 1965.

Action by plaintiff Robert J. Harker against defendant insurance company to recover total disability payments claimed to be due him under a policy of health and accident insurance issued by defendant.

The policy was issued August 7, 1955, and provided for total disability benefits of $150 a month from accident or sickness for a period of 30 months. There were also partial and recurrent disability benefit provisions. An extended benefit rider for accident provided lifetime benefits of $150 a month if plaintiff suffered continuous total disability from the time of the accident. Plaintiff seeks recovery under this rider for lifetime benefits. While employed as an ironworker by the Tomaro Construction Company, on October 23, 1959, he fell six feet to a concrete floor and sustained a fractured left wrist. The writ did not heal correctly, but was fixed in a down position and he could not straighten it up or bend it back. Rotation of the wrist was limited, and the gripping power of the left hand was considerably weakened. Plaintiff also experienced extreme and constant pain if he bumped or vibrated his wrist. Therapy treatments proved unsuccessful. An orthopedic surgeon treating plaintiff recommended that he return to work to see what he could do and see if the condition would improve so he could handle tools. Plaintiff is right handed.

Plaintiff returned to work for Tomaro Construction Company on April 11, 1960, on a full-time basis and received full pay for a period of approximately 10 months. However, he testified that he could not perform many of the duties his job required. He was unable to do any climbing and could not lift or grasp anything with his left hand. Plaintiff's work was restricted to working on the ground and running errands. He had formerly done considerable burning torch and welding work, but now found that his burning torch work was severely restricted and he needed assistance in getting welding cables in position. Without help from his fellow employees he could not have done welding.

He quit his employment because of constant pain in order to have corrective surgery performed on February 16, 1961. This operation consisted of taking a bone chip out of the upper part of plaintiff's forearm and grafting it to the bone in his wrist thereby permanently immobilizing the wrist in a straight position. Plaintiff has continued to experience extreme pain in the wrist and rotation of the wrist has been severely restricted. It was the opinion of an orthopedic surgeon who had examined plaintiff on a number of occasions that the condition of plaintiff's wrist is permanent and progressively deteriorating. The doctor also testified that plaintiff was developing a traumatic arthritic condition at the wrist joint. A final examination of plaintiff before the commencement of this action revealed that the outward rotation of plaintiff's wrist had decreased to only 30~ and his gripping power was 4 as compared to 20 on his right hand. In June of 1962 plaintiff was employed as a general maintenance man at St. Mary's Hospital in Madison. He left this work in September of 1962 because of constant pain and inability to do the required work. Plaintiff then worked for over a year selling welding equipment. He was discharged from this position because of an inability to sell. Plaintiff's income tax returns show an income of $5,097 for 1960, $894 for 1961, $950 for 1962, and $477 for 1963. Plaintiff has attempted only various odd jobs from the time of his being discharged as a welding salesman.

Defendant paid plaintiff $850 under the policy for the period of disability from the date of accident to April 11, 1960, and the additional sum of $2,300 for the period from February 16, 1961, to May 11, 1962.

Trial was had to the court and a jury. A special verdict was submitted to the jury consisting of these two questions:

'1. Since his accident of October 23, 1959, has the plaintiff, Robert J. Harker, been continuously and completely unable to engage in gainful occupations for which he is reasonably fitted by education, training and experience?

'2. Since his accident of October 23, 1959, has the plaintiff, Robert J. Harker's injuries required the regular and personal attendance of a licensed physician?'

The jury answered both questions 'Yes.'

Judgment was entered on the verdict on April 21, 1965, for the recovery by plaintiff from defendant of $6,385 (this representing $150 per month from October 23, 1959, to February 10, 1965, less credit for the $3,155 previously paid by defendant) together with costs and disbursements. Defendant has appealed.

Stafford, Rosenbaum, Rieser & Hansen, Madison, for appellant.

Thomas W. Pierce, Riley, Pierce & Lynch, Madison, for respondent.

CURRIE, Chief Justice.

Defendant advances these contentions on this appeal:

(1) The fact that plaintiff worked for a period of 10 months after the accident at the same job at which he was employed prior to the accident conclusively establishes as a matter of law that his disability was not continuous from the date of accident.

(2) The stiff left wrist and aubstantial loss of grasp in plaintiff's left hand does not qualify him as a person totally disabled within the definition of total disability set forth in the policy.

(3) Partial disability and total disability as defined by the policy are mutually exclusive, and, therefore, the trial court committed prejudicial error in refusing to instruct the jury as to the meaning of partial disability.

(4) The trial court further erred in failing to include welding as a former occupation of plaintiff's when the court enumerated such former occupation in its instructions.

The pertinent policy provisions are as follows:

'DEFINITIONS OF DISABILITY: The term 'total disability' whenever used in this policy, shall mean complete inability of the insured to engage in gainful occupations for which he is reasonably fitted by education, training and experience. The term 'partial disability' whether used in this policy, shall mean the inability of the insured to perform one or more of his important regular business duties.

'A. TOTAL DISABILITY--ACCIDENT: If such injuries result in continuous total disability within ninety days from the date of the accident, requiring the regular and personal attendance of a licensed physician, the Company will pay the Monthly Indemnity during the continuance of such total disability, commencing on the first day thereof and for a period not exceeding thirty months for any one continuous disability. * * *

'EXTENDED BENEFIT RIDER--ACCIDENT: The Monthly Indemnity provided in Clause A of the attached policy for total disability from accidental bodily injuries shall continue beyond the period provided in such Clause so long as the insured lives and suffers continuous total disability, as defined in such policy from the date of the accident. * * *'

Keeping in mind these policy provisions we will consider each of the four issues raised by defendant.

Effect of 10 Months Full-time Employment Subsequent to Accident.

As defendant points out, in order for plaintiff to recover under the extended benefit rider of the policy, he must establish that he has been continuously totally disabled from the date of the accident, within the meaning of the policy definition of total disability. Even if plaintiff has been totally disabled since completion of his period of employment from April 11, 1960, to February 16, 1961, he cannot now recover total disability payments if he was not totally disabled during this period of employment.

Defendant cited DeBonville v. Travelers Insurance Co. ¹ and Bader v. Travelers Insurance Co. ² as holding that this 10-month period of full employment of plaintiff conclusively establishes as a matter of law that he was not totally disabled during such period.

The material facts in DeBonville are these: Plaintiff insured, while employed in a consulting capacity by National Pressure Cooker Company, suffered a heart attack on November 6, 1951. He was insured by defendant insurance company under a group policy with his employer that provided certain benefits if he became "wholly disabled by bodily injuries or disease, and will be permanently, continuously and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit * * *." ³ On or about October 1, 1953, the insured took employment as the salaried manager of another corporation, the Aloa Corporation, and continued in such employment until February 16, 1954, when he suffered a second heart attack. For reasons not here material his claim for total disability benefits had to be grounded on the first heart attack of November 6, 1951. This court held that the insured's employment by Aloa Corporation on a salary for several months after such first heart attack prevented the insured from claiming physical inability for life to engage in any occupation for wage or profit.

The DeBonville case is clearly distinguishable from the instant case even if it be assumed that difference in wording of the total disability clauses of the two policies is not material. There was no showing made in DeBonville that the insured was unable to perform the managerial duties for which he was paid a salary while in the instant case there is testimony that plaintiff was unable to perform a substantial part of the duties of his job and it was necessary for other employees to assist him.

Bader v. Travelers Ins. Co., supra, involved an action to recover premiums paid on two life insurance policies which provided for waiver of premiums during the total disability of the insured. The policies defined total disability in terms of the language used in the DeBonville case. Two of the years during which plaintiff insured claimed he was totally disabled...