Highlands Underwriters Ins. Co. v. Carabajal
| Decision Date | 30 November 1973 |
| Docket Number | No. 801,801 |
| Citation | 503 S.W.2d 336 |
| Parties | HIGHLANDS UNDERWRITERS INSURANCE COMPANY, Appellant, v. Jacinto R. CARABAJAL, Appellee. |
| Court | Texas Court of Appeals |
Jack Fields, Port Lavaca, Emmett Cole, Jr ., Kilgore, Cole & Garrett, Victoria, for appellant.
O. F. Jones, Victoria, for appellee.
This is a workman's compensation case. Following a jury trial, Jacinto R. Carabajal, plaintiff, recovered judgment for total and permanent disability and for medical expenses which the jury found that Highlands Underwriters Insurance Company, defendant compensation insurance carrier, failed to provide. Defendant has duly perfected its appeal. We affirm on condition of remittitur.
Among other findings, the jury found that plaintiff was totally and permanently disabled, that defendant failed to furnish plaintiff 'within a reasonable time medical care reasonably required as a result of such injury', and that the reasonable cost expended or incurred by plaintiff for such 'reasonably required medical care' was $4,001.68. Those findings are challenged by defendant on the grounds of 'no evidence', 'factually insufficient evidence' and 'against the great weight and preponderance of the evidence' points. We have, therefore, examined all of the evidence here presented.
Plaintiff was injured on September 3, 1971, when a metal scaffold fell on top of him. He was employed at that time as a construction worker by Drexler Construction Company. Following the accident, plaintiff was sent by his employer to Dr. Reagan, Beeville, Texas, who upon examination, found that plaintiff had sustained a bruised muscle in his shoulder. He gave plaintiff a shot and sent him home with instructions to rest, to apply heat applications to his shoulder, and to come back in several days. Plaintiff saw Dr. Reagan again on September 7th, and was told to go back to work the next day. Dr. Reagan testified that plaintiff never voiced any complaint which indicated a back injury. The doctor's final report to defendant, dated September 15, 1971, stated that plaintiff was able to resume work as of September 8, 1971, and that no permanent disability was anticipated.
On October 1, 1971, plaintiff, of his own accord, went to see Dr. Puentes in Goliad, Texas. Dr. Puentes said that plaintiff complained to him of pain in the back of his neck, that he examined plaintiff thoroughly, and that all of his findings were negative. Plaintiff was requested to call again in about a week. He complied, and Dr. Puentes stated that plaintiff then told him that he didn't have any pain and was feeling all right . Plaintiff did not see Dr. Puentes again.
Plaintiff contacted Dr. Jerome C. Hohf, of Victoria, Texas, on November 20, 1971, who, after an examination of plaintiff, told him to quit work. Plaintiff was treated by Dr. Hohf from November 29, 1971 until October 18, 1972. He was hospitalized on three occasions during that time at the Hohf Clinic and Hospital, Victoria, Texas, which was owned by Dr. Hohf and his associates. The initial treatment was not successful and plaintiff was hospitalized on January 8, 1972; Dr. Hohf performed an occipital neurectomy on plaintiff on January 19, 1972. Plaintiff was released from the hospital about a week later. Dr. Hohf did his first neurological testing of plaintiff on March 6th; plaintiff was hospitalized again on March 17th, and was discharged from the hospital on March 21st. On July 19, 1972, Dr. Hohf operated on plaintiff, and removed the 3rd, 4th and 5th lumbar intervertebral discs from plaintiff's back.
Plaintiff testified that he had worked as a laborer in the construction business for many years before the accident of September 3, 1971. Drexler ceased work on the job where plaintiff was employed on September 4, 1971; As a result, all of its employees, including plaintiff, were laid off. Work was resumed about a month later, but plaintiff did not go back to work for Drexler. Instead, he went to work for B. A. Box Tank & Supply Company as a laborer sometime in October, where he worked for about two weeks; he had to quit because his back was bothering him. He then obtained work as a carpenter's helper and worked at that job for about two months; he was still having trouble with his back and neck. He quit the carpenter work and got a job running a scraper because he thought it would be easier on him; however, he quit running the scraper after a short time because his legs and back were bothering him.
Plaintiff further testified that he experienced pain in his back from the date of injury until the time of back surgery, and that the pain made it difficult for him to do manual labor. He could not bend his back or lift heavy objects without suffering pain, discomfort and losing sleep. Sometimes standing or walking bothered him, and sometimes it didn't. He had never found a job that did not require some lifting. He stated that he could not, at the time of trial, do the work that he had previously done.
Plaintiff's wife said that plaintiff had never had any back trouble before he was injured on September 3, 1971, and that, following the accident, plaintiff had trouble getting around and 'he continued to suffer with his back troubles and neck problems'. Other witnesses who were experienced in the construction field testified that they would not hire a man as a laborer who either had a bad back or who could not lift more than twenty-five pounds, or who could not stoop or bend over.
Dr. Hohf testified that the disability sustained by plaintiff was total and permanent. He was of the opinion that plaintiff's disability resulted from the injury that he sustained on September 3, 1971. He further testified that plaintiff should avoid 'strenuous manual labor', which meant that he should avoid 'heavy lifting, bending or stooping'. He stated that plaintiff should not lift anything which weighed more than twenty-five pounds. He said that he would not pass plaintiff in a pre-employment physical examination for construction work, oil field work, or welding work, except with restrictions that would limit plaintiff so that he could only perform part of the tasks incident to such type of work.
There is no fixed rule of evidence by which a claimant is required to establish the fact that he has suffered an injury which has caused total and permanent disability. Liberty Universal Insurance Company v. Gill, 401 S.W.2d 339 (Tex.Civ.App.--Houston 1966, writ ref'd n.r.e.). 'The duration and extent of disability resulting from injury is at best an estimate which must be determined by a jury from all the pertinent facts before it'. Employers Reinsurance Corporation v. Jones, 195 S.W.2d 810 (Tex.Civ.App.--Beaumont 1946, writ ref'd n.r.e.); Olivarez v. Texas Employers' Insurance Ass'n, 486 S.W.2d 884 (Tex.Civ.App.--Corpus Christi 1972, n.w.h.).
In our opinion, there is ample evidence to support the findings of the jury that plaintiff sustained total and permanent incapacity by reason of his injury of September 3, 1971. Any inconsistencies or conflicts in the testimony of the medical witnesses were resolved by the jury in plaintiff's favor, as was its privilege.
In November, 1971, plaintiff employed Honorable Jack Fields, an attorney, to represent him in connection with his injury. A notice of injury and claim for compensation was signed by plaintiff on November 24, 1972, which was received by the Industrial Accident Board on November 29, 1972. The notice and claim showed on its face that plaintiff was injured on September 3, 1971, when a 'metal scaffold came apart striking the back of my neck, injuring my neck, back and body generally'.
On January 10, 1972, defendant's representative wrote Mr. Fields, as follows:
Mr. Fields, in his reply letter, stated:
Then, by letter that was apparently written on January 12, 1972, defendant's representative again wrote to Mr. Fields and advised him that Dr. Reagan had discharged plaintiff on September 8, 1971 and that no disability was anticipated. A copy of Dr. Reagan's final report was attached to the letter. Mr. Fields was told 'this is the only medical we have concerning this claimant'.
Mr. Fields testified that the defendant insurance company, in the due course of business, received a copy of the notice and claim that was filed with the Board; that defendant's representatives, after notice that plaintiff was claiming injury to his head, neck and back, got in touch with him and 'denied any medical coverage'. He further stated that those representatives said 'they' were not going to pay for plaintiff's 'medical care'; that 'they refused to furnish any medical treatment whatsoever' and that such had been defendant's position since he started representing plaintiff in November, 1971.
Dr. Frank A. Luckay, of Corpus Christi, Texas, at the request of defendant, examined plaintiff on April 27, 1972. Defendant did not ask Dr. Luckay to offer plaintiff any treatment, but simply requested an examination and report. The doctor testified that he made a through orthopedic examination relating to plaintiff's complaints of...
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Employers Reinsurance Corp. v. Ryne, 16559
...furnish medical treatment and services, within the meaning of the statute, unless there is notice of such need. Highlands Underwriters Insurance Co. v. Carabajal, 503 S.W.2d 336 (Tex.Civ.App.1973, no writ), citing Few v. Charter Oak Fire Insurance Co., 463 S.W.2d 424 (Tex.1971). Ryne's test......