INA of Texas/now CIGNA Ins. Co. of Texas v. Adams

• Decision Date: 11 January 1990
• Docket Number: No. 09-88-176,09-88-176
• Citation: 793 S.W.2d 265
• Court: Texas Court of Appeals
• Parties: INA OF TEXAS/NOW CIGNA INSURANCE COMPANY OF TEXAS, Appellant, v. James E. ADAMS, Appellee. CV.

Page 265

793 S.W.2d 265

INA OF TEXAS/NOW CIGNA INSURANCE COMPANY OF TEXAS, Appellant, v. James E. ADAMS, Appellee.

No. 09-88-176 CV.

Court of Appeals of Texas Beaumont.

Jan. 11, 1990.

Lori L. Bellows, Hollis Horton, Orgain, Bell & Tucker, Beaumont, for appellant.

Timothy W. Ferguson, Port Arthur, Umphrey, Eddins & Carver, Beaumont, for appellee.

OPINION

BURGESS, Justice.

Workers' compensation carrier INA of Texas, now CIGNA Insurance Company of Texas, appeals from a judgment awarding claimant, James E. Adams, appellee, occupational disease benefits for hearing loss due to repetitious trauma in the course of employment.

The first three points of error urge the evidence is legally and factually insufficient to support jury findings of occupational disease of hearing loss arising in the course of appellee's employment with Texaco, Inc. and urge the trial court erred by denying appellant's motion for directed verdict.

When considering legal sufficiency or "no evidence" points, we consider only the evidence, and reasonable inferences therefrom, which viewed in its most favorable light supports the finding and disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). If there is any probative evidence to support the finding, the point must be overruled. Id. In a factual sufficiency challenge, we consider all of the evidence including that which is contrary to the verdict. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We may sustain a factual insufficiency point only if we determine that the finding of a vital fact is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust.

Appellant argues appellee's hearing loss is not compensable because appellee failed to establish the causal relationship between his hearing loss and his employment. Appellee testified he had worked for Texaco since 1953, mostly in the telephone storeroom, which was described as a 14 by 24 foot uncarpeted room containing various office equipment including telex machines, vacuum tube systems and telephones. He described the noise level in the room when the equipment was in use as louder than a baby crying or a door slamming. The parties established the OSHA standards for maximum noise levels are 80 to 90 decibels for employees exposed over eight-hour days, and continuing exposure to such noise levels may cause hearing loss. Noise levels of 80 to 90 decibels were described as similar to a baby crying or a lawn mower. The only noise level test in the subject environment was performed in December 1987 and concluded noise levels in the 60 decibel range. The person who performed the test denied knowledge of whether or not the equipment in the room was shut off during the test. Appellee testified much of the noise-producing equipment was removed around 1984 or 1985 and described the general noise levels as relatively unchanged between 1985 and 1987. There was an indication Adams was exposed to high noise levels outside his employment.

An otolaryngologist testified appellee exhibited sensorineural hearing loss of 21.8% in 1985. He concluded the loss was permanent and the result of high noise levels over an extended period of time. He concluded from the patient history that the loss was work-related. Appellee's hearing tests in 1971 and 1974 showed no hearing loss. Hearing tests administered by Texaco between 1977 and 1987 yielded hearing loss readings fluctuating from 5% to 26%. Appellee had hypertension, high cholesterol and high triglycerides, which were presented by appellant as possible causes of appellee's hearing loss, as well as advancing age and hereditary predisposition.

First, appellant argues hearing loss is an ordinary disease of life and appellee was therefore required to show he was exposed to more noise than the general population. Appellant argues appellee failed to establish noise levels in excess of 80 decibels and therefore failed to meet his burden of proof. Appellant argues the potential causes of the hearing loss are too complex to be established by lay testimony, the percentage of hearing impairment does not coincide with the change in equipment in the work environment, and the medical testimony on causation was mere speculation. We disagree.

Ordinary diseases of life to which the general public is exposed outside the employment are not compensable except where incident to an occupational disease or injury. TEX.REV.CIV.STAT.ANN. art. 8306 sec. 20 (Vernon Supp.1989). To establish an occupational disease, there must be probative evidence of a causal connection between the claimant's employment and the disease, i.e., the disease is indigenous thereto or present in an increased degree. Home Insurance Co. v. Davis, 642 S.W.2d 268, 269 (Tex.App.--Texarkana 1982, no writ). Causation may be established where general experience or common sense dictates that reasonable men know, or can anticipate, that an event is generally followed by another event; where there is a scientific generalization, a sharp categorical law, which theorizes that a result is always directly traceable to a cause, forming a sequence of events from a harmful consequence to the act itself; or by probabilities of causation articulated by scientific experts. Parker v. Employers Mutual Liability Insurance Co. of Wisconsin, 440 S.W.2d 43 (Tex.1969). There was sufficient testimony of the noise levels in the workplace and sufficient expert testimony of noise rather than high blood pressure or age being the probable cause of the hearing loss for the jury to infer the employment caused the sensorineural hearing loss. Appellant's first, second and third points of error are overruled.

In its fourth point of error, appellant complains of the compensation rate applied by the trial court. The fifth point of error complains the incorrect compensation rate was applied to the attorney's fees award. The jury found the date of cumulative injury was December 9, 1977, the date of first distinct manifestation was October 9, 1985, and the date of last injurious exposure was December 1987. The trial commenced January 4, 1988. The trial court applied the maximum rate in effect for injuries occurring after September 1, 1987. Appellant argues the correct rate is the maximum rate in effect on the date of cumulative injury. Appellee argues in occupational disease cases the basis for the rate should be the later of the date of cumulative injury or first distinct manifestation.

An occupational disease includes damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment; provided, the date of the cumulative injury is the date disability was caused thereby. TEX.REV.CIV.STAT.ANN. art. 8306 sec. 20 (Vernon Supp.1989). Benefits accrue at the date of incapacity or disability, and at the wage rate as of that day. United States Fire Insurance Co. v. Alvarez, 657 S.W.2d 463 (Tex.App.--San Antonio 1983, no writ). The date of cumulative injury has been held to be the date any compensable disability was caused by the occupational disease. Fidelity and Casualty Co. of New York v. Shubert, 646 S.W.2d 270 (Tex.App.--Tyler 1983, writ ref'd n.r.e.); Home Insurance Co. v. DeAnda, 599 S.W.2d 124 (Tex.Civ.App.--Eastland), rev'd on other grounds, 618 S.W.2d 529 (Tex.1980). Appellee's reliance upon Aetna Casualty and Surety Co. v. Haik, 442 S.W.2d 836 (Tex.Civ.App.--Waco 1969, rev'd and rem'd by agr't), is misplaced because, although that case held compensation should run from the date of total incapacity, the compensation date approved by the court was the cumulative injury date rather than the date of first manifestation and partial disability was not an issue in the case. Here, the jury was asked to find "the date of the cumulative injury to James Adams' hearing." The jury was instructed " 'Cumulative Injury' means the date disability was caused by an occupational disease, if any." No complaint of the date found by the jury in answer to this issue has been presented to this court. Workers' compensation benefits accrue from the date of cumulative injury and at the rate then in effect. Appellant's statement that this rate is $91 is not contested by appellee. Appellant's fourth and fifth points of error are sustained.

Appellant's sixth and seventh points of error complain of special issues submitted by the trial court. Appellant claims the inquiries whether the injury was a producing cause, and the duration, of any total loss of use of Adams' work-related hearing loss was an improper comment on the weight of the evidence. Its eighth and ninth points of error complain there was no finding of producing cause of loss of use of Adams' hearing and no finding of its duration. The special issues were predicated upon affirmative findings that James Adams suffered an occupational disease of hearing loss and the hearing loss arose out of and in the course of his employment with Texaco. The jury would only reach these issues if it already found a work-related hearing loss. See Coronado Transmission Co. v. O'Shea, 703 S.W.2d 731, 736 (Tex.App.--Corpus Christi 1985, writ ref'd n.r.e.)...