Hartford Acc. & Indem. Co. v. Thurmond

• Decision Date: 22 May 1975
• Docket Number: No. 920,920
• Parties: HARTFORD ACCIDENT & INDEMNITY CO., Appellant, v. Wilburn Phil THURMOND et al., Appellees.
• Court: Texas Court of Appeals

Page 180

527 S.W.2d 180

HARTFORD ACCIDENT & INDEMNITY CO., Appellant, v. Wilburn Phil THURMOND et al., Appellees.

No. 920.

Court of Civil Appeals of Texas,

Corpus Christi.

May 22, 1975.

Rehearing Denied Aug. 29, 1975.

On Rehearing and Filing of Remittitur June 19, 1975.

G. P. Hardy, III, Michael Terry, Vinson, Elkins, Searls, Connally & Smith, Houston, for appellant.

Ernest Cannon and James E. Robinson, Kronzer, Abraham & Watkins, Houston, for appellees.

OPINION

NYE, Chief Justice.

This is a workmen's compensation case. Appellee Wilburn Phil Thurmond alleged that on August 13, 1970, while in the course and scope of his employment he suffered a strain or exertion causing harm or damage to his heart, resulting in total and permanent disability. Trial was before a jury and the case submitted on special issues. The jury returned a verdict for Thurmond and judgment was entered by the trial court accordingly. From this judgment, Hartford Accident and Indemnity Company has perfected its appeal contending primarily that there was insufficient evidence, legally and factually, to support a finding of either accidental injury or that the injury was the producing cause of the disability of Thurmond.

Wilburn Phil Thurmond was a man forty-one (41) years of age at the time of the alleged injury. Having no formal education, he had for the most part of his life undertaken the trade of a mechanic. Beginning in 1962, Thurmond went to work for O'Neal Farm Machinery Company. He was employed as a mechanic and worked on heavy equipment. It was quite common for Thurmond to go out to somebody's field and repair their equipment. On occasions, such work required lifting and straining.

On October 8, 1969, while employed by Mr. O'Neal and doing some heavy lifting, Thurmond suffered a sudden onset of severe chest pains, weakness, sweating and faintness. He was immediately treated by Dr. Joe Cannon and admitted to Matagorda General Hospital's Intensive Care Unit. Dr. Cannon diagnosed Thurmond's condition as an acute myocardial infarction, such diagnosis being based on the history of the attack and the results of an electrocardiogram indicating that injury had occurred to a portion of the heart wall. Thurmond was also found to be suffering from arteriosclerotic disease. He remained in the hospital in Bay City for approximately eight (8) days, then was transferred to Houston at which time a pacemaker was strapped to his arm. The pacemaker was removed prior to being released from the hospital in Houston. He returned to the hospital in Bay City October 28, 1969, for convalescence and observation.

Thurmond was released from the hospital October 30, 1969, and returned to light duty work on November 26, 1969. On December 14, 1969, Dr. Cannon became satisfied that Thurmond had recovered from the heart attack of October 8, 1969, so far as the damage done in that heart attack, and that such would no longer disable him. Thurmond returned to his regular duties working for O'Neal on January 14, 1970. From that point until August of 1970, Dr. Cannon continued treating Thurmond which included exercises and control of wight and diet. Also, during this time he was given some medication to control the angina or chest pain that he periodically experienced .

Thurmond was again hospitalized March 13, 1970, for a case of angina pectoris and released March 15, 1970. His treatment was continued. From that point in time, Thurmond continued his usual duties as a mechanic and appeared to be progressing well according to Dr. Cannon although he was still experiencing angina or chest pain occasionally. During the time Thurmond was employed by O'Neal, and on the day in question (August 13, 1970), O'Neal's insurance carrier was Hartford Accident and Indemnity Company.

On the morning of August 13, 1970, Thurmond had begun repairing a tractor in a field belonging to one of O'Neal's customers. The temperature that day was very hot. In order to repair the tractor, Thurmond had to lift a pump, an extremely heavy piece of equipment. In doing so, he had to strain to lift the pump out. At that time, he began having severe chest pains and experienced dizziness. Thurmond stated such pains were so severe, he thought he was going to die. He stopped and laid down under the tractor and rested. Later, he received help in taking the pump off the tractor. He then drove back to Bay City to see Dr. Cannon. While driving back to Bay City, he had trouble keeping conscious and drove off the road several times. Dr. Cannon immediately placed Thurmond in the hospital in Bay City where he remained for several days. He was then referred to a group of cardiologists in Houston and underwent certain tests which included an arteriogram. It was determined that Thurmond was suffering from severe occlusive disease of both the major systems of arteries in the heart. A coronary bypass operation was recommended by Dr. Howell. Such operation had not been advised nor recommended prior to the August 13, 1970 occurrence. This major surgery was performed on August 25, 1970 by Dr. Howell of Houston. Following the surgery in Houston, Thurmond returned to Bay City and was again treated by Dr. Cannon. The effects of this surgery produced acute complications requiring further surgery in April of 1971.

Up until December of 1970, Thurmond remained at home convalescing. He went back to work for Mr. O'Neal in December, 1970, and started doing light work but found he was unable to do the job because of chest pains. Not being able to hold down a job doing any bending stooping or lifting, Thurmond went to work as a security guard.

On July 25, 1972, the Industrial Accident Board awarded Thurmond forty-six (46) weeks of temporary total disability at $49.00 per week, three hundred (300) weeks of permanent partial disability at $12.00 per week, and ordered Hartford Accident and Indemnity to pay Thurmond's medical bills. Hartford filed notice of appeal with the Board and thereafter filed suit in the 130th district court of Matagorda County, Texas.

The jury found in answer to special issues that 1) Thurmond had sustained an injury on August 13, 1970; 2) that such injury was a producing cause of the total disability; 3) that such incapacity began August 13, 1970; and that 4) such incapacity was permanent. The jury further found that the prior heart attack sustained by Thurmond on October 8, 1969, did not contribute to any total incapacity; that such total incapacity was not caused solely by atherosclerosis; and that medical care was reasonably required as a result of such injury in the amount of $9,561.00. Judgment was accordingly entered in favor of Thurmond for $29,134.17.

Hartford appeals and in its first and second points of error claims that the trial court erred in submitting to the jury special issue No. 1 that Thurmond sustained an injury on August 13, 1970 because 1) there was no evidence in the record to raise such issue for a determination by the jury, and that 2) the affirmative answer by the jury is against the great weight and preponderance of the evidence.

Hartford contends that in heart attack cases in order to have a 'compensable injury' as defined by Tex.Rev.Civ.Stat.Ann. Art. 8306, Sec. 20 (1967), 'heart attack' must be defined as a 'myocardial infarction' which in medical terms is by definition, damage and/or death to the heart muscle, and there was no evidence that Thurmond suffered a myocardial infarction or that he suffered damage to the heart muscle as a result of his activity on August 13, 1970. Thurmond, on the other hand, contends that such limitation on compensable harm or damage to the physical structure of the body, in heart attack cases, to mean only objectively confirmable cases of death to tissue or muscles of the heart would be an unreasonably restrictive and undesirable rule. The question here is: has Thurmond suffered damage or harm to the physical structure of his body (in particular his heart) as shown by the evidence so as to entitle him to compensation?

In considering Hartford's 'no evidence' point, it is the duty of this Court to review the evidence in the light most favorable to the jury's verdict and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965). Thurmond testified that on August 13, 1970, after straining to lift a hydraulic pump from the motor of a tractor, he suffered severe chest pains, nausea, dizziness, sweating and shortness of breath, and that during his trip to the doctor he had trouble keeping his car on the road because of blackouts. In answer to a hypothetical question propounded to Dr. Cannon in his deposition, which was introduced in evidence, his opinion based on reasonable medical probability was that Thurmond did in fact sustain an injury to his body on August 13, 1970, as a result of the activities he was engaged in. Dr. Cannon testified unequivocably that if you define an injury as damage or harm to the physical structure of the body, Thurmond sustained such an injury on August 13, 1970. He testified that such injury was precipitated by his activity and the conditions under which he was pursuing those activities. It also appears from Dr. Cannon's deposition that an electrocardiogram was performed on Thurmond after the August 13, 1970, occurrence and such showed 'non-specific T-wave changes'. Dr. Cannon stated that the significance of that finding was that it was probably indicative of injury current which is caused by an injury of some kind.

Dr. Cannon further testified that the word 'heart attack' is a broad term used by both medical and lay people to describe several possible situations, most frequent of which would be that of myocardial infarction. He stated, however, that acute coronary insufficiency can be referred to as a heart attack and such is not merely a 'symptom'. Both Dr. Cannon and Dr. Howell agreed that Thurmond at least suffered a coronary insufficiency on August 13, 1970. Dr....