Houston Fire & Cas. Ins. Co. v. Dieter

• Decision Date: 31 December 1966
• Docket Number: No. A--11569,A--11569
• Parties: HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Petitioner, v. Harold G. DIETER, Respondent.
• Court: Texas Supreme Court

Page 838

409 S.W.2d 838

HOUSTON FIRE & CASUALTY INSURANCE COMPANY, Petitioner, v. Harold G. DIETER, Respondent.

No. A--11569.

Supreme Court of Texas.

Dec. 31, 1966.

Evans, Pharr, Trout & Jones, Charles B. Jones and Carlton B. Dodson, Lubbock, for petitioner.

Huffaker & Green, Harold Green, Tahoka, for respondent.

STEAKLEY, Justice.

This is an agreed workmen's compensation case submitted in accordance with Rule 262, Texas Rules of Civil Procedure. Petitioner is the compensation carrier; Respondent is the injured employee and claimant. The one question presented for decision is whether Petitioner, who had not invoked the provisions of Section 12e of Article 8306 ¹, was entitled in the trial of the case to make proof of the possible beneficial effects of pre-trial surgery voluntarily undertaken by Respondent at the hands of his personal physician. The agreed statement of facts submitted to the trial court is quoted in the opinion of the court of civil appeals. It appears therefrom that on June 19, 1964, Respondent suffered a compensable injury to his back consisting of a rupture of two intervertebral discs and other related injuries. An award was entered by the Industrial Accident Board on January 27, 1965. An appeal was timely filed on March 2, 1965. On May 19, 1965, Respondent voluntarily and at his own expense submitted to surgery at the hands of his personal doctor to correct the results of the injury. A semihemilaminectory at L4--5 and L5--s1 interspaces was performed on the right side, and degenerated disc material was removed. The injury was the cause of the rupture of the discs and consequential protrusions and irritation of the nerve roots. Respondent's surgeon was of the medical opinion that the Respondent was totally incapacitated at the time of the surgery which incapacity would have continued as a permanent condition; but he was of the further medical opinion that the surgery was beneficial in partially restoring Respondent's capacity to work. It was stipulated that if this testimony of the surgeon is admissible, Respondent is entitled to recover the sum of $6,000; but if inadmissible, he is entitled to recover the sum of $10,000. The trial court ruled the evidence admissible and entered judgment for Respondent in the lesser stipulated amount; this was held to be error by the court 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 court.

Section 12e of Article 8306 provides in part:

'In all cases where liability for compensation exists for an injury sustained by an employe in the course of his employment and a surgical operation for such injury will effect a cure of the employe or will materially and beneficially improve his condition, the association or the employe may demand that a surgical operation be had upon the employe as herein provided, and the association shall provide and pay for all necessary surgical treatment, medicines and hospital services incident to the performance of said operation, provided the same is had. In case either of said parties demands in writing to the board such operation, the board shall immediately order a medical examination of the employe in the same manner as is provided for in the section of this law relating to hernia. If it be shown by the examination, report of facts and opinions of experts, all reduced to writing and filed with the board, that such operation is advisable and will relieve the condition of the injured employe or will materially benefit him, the board shall so state in writing and upon unanimous order of said board in writing, a copy of which shall be delivered to the employe and the association, shall direct the employe at a time and place therein stated to submit himself to an operation for said injury. * * *'

Petitioner's points, in summary, are that failure to invoke the provisions of Section 12e does not preclude proof of the possible beneficial effects of surgery actually performed prior to trial, Petitioner asserting that in such situation 'the insurer is entitled to show the effect of the surgery, be it good or bad, and the claimant is entitled to show the effects of surgery, good or bad, since all of such testimony is material as bearing on the actual condition of the (claimant) at the time of trial.' While agreeing that the question before us is one of first impression, Respondent argues that we have said, in effect, particularly referring to Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 (1960), that in order for the compensation carrier 'to reap any benefits from any testimony concerning the beneficial effects of surgery' the carrier 'must do certain things at certain times and that it is too late to reap the benefits of any such testimony after a compensation claim has been decided by the Industrial Accident Board.' The underlying reasoning of Respondent is that 'whether the surgery is performed or not, the testimony concerning its beneficial effects will be merely expressions of medical opinion as to 'probabilities' which is sometime fraught with extreme frailties.' From this, Respon...