Insurance Company of North America v. Kneten

• Decision Date: 22 January 1969
• Docket Number: No. B--1120,B--1120
• Citation: 440 S.W.2d 52
• Parties: INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. W. A. KNETEN, Respondent.
• Court: Texas Supreme Court

Page 52

440 S.W.2d 52

INSURANCE COMPANY OF NORTH AMERICA, Petitioner, v. W. A. KNETEN, Respondent.

No. B--1120.

Supreme Court of Texas.

Jan. 22, 1969.

Rehearing Denied Feb. 19, 1969.

Branscomb, Gary, Thomasson & Hall, Gary Norton, Corpus Christi, for petitioner.

Butler, Schraub & Gandy, Roger Butler, Corpus Christi, for respondent.

REAVLEY, Justice.

This is a workmen's compensation case involving the problem of proof of causal connection between a job connected occurrence and the employee's disability. The occurrence here centers on an electric shock received by the employee, and his subsequent disability is due to a damaged heart.

On the strength of the testimony by the plaintiff and his treating doctor, the jury found that the injury received in the course of employment was a producing cause of total and permanent incapacity. The judgment entered on the verdict for plaintiff was upheld by the Court of Civil Appeals. 430 S.W.2d 565. We affirm.

For several days before his heart attack, W. A. Kneten had felt pain in the lower part of his chest which he attributed to indigestion or gas. After work on July 13 (1965), he even consulted his doctor. But on the following morning Kneten felt no pain and went to work as usual. Between 9 and 10 o'clock, while working in a hot and unventilated room, he was standing on a ladder drilling a hole into an aluminum window frame with an electric drill. A bare wire in the cord to the drill hit his wrist and he felt an electric shock go through his body. Kneten finished drilling the holes through the screen, but in the time that this took--'five or ten minutes'--he 'began to feel bad and kept worsening'. He finally went to Dr. Sloan's office between 11 and 12 o'clock, and as soon as the doctor examined him, an ambulance was called to take him to the hospital. He was there for 45 days and was an extremely sick man under an oxygen tent for four weeks; and he now suffers from an impaired heart.

Dr. Sloan testified that when he examined Kneten on July 13 he did not recognize any heart problem, but as of the time of trial Dr. Sloan was of the opinion that Kneten was predisposed to a heart attack on the 13th and was on that date suffering from coronary arteriosclerosis (hardening of the arteries). When he was asked his opinion as to whether the occurrence on the ladder had precipitated Kneten's heart attack, Dr. Sloan replied that whereas he could not say without medical doubt, it was a 'strong possibility'. Pointing out that he did not know the nature of the electric shock received by his patient, he said that the shock 'could have' been a contributing factor. Dr. Sloan was the only medical expert to testify.

The insurance company now contends that since the doctor failed to say that it was at least reasonably probable that the incident at work was a precipitating cause of the heart attack, the plaintiff thereby failed to discharge his burden of proof. The company cites Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.Sup.1966) and Dotson v. Royal Indemnity Company, 427 S.W.2d 150 (Tex.Civ.App.1968, writ ref'd n.r.e.).

In Myers a bundle of clothes fell against the employee on July 1. On November 20 it was established that she had a malignant brain tumor, which caused her death the following May 21. No layman could relate this incident on the job to the tumor. The court said at 411 S.W.2d 714: 'The nature of the injury suffered by Mrs. Myers and her death over ten months later from a pre-existing brain tumor, particularly in the light of her medical history, is not of sufficient probative force to support the inference of fact that the injury was a concurring, contributing or producing cause of her death.' The doctor who testified for plaintiff could only say that the injury was a possible cause of the course of the cancer. Consequently, there was no evidence in that record that the whiplash neck injury was a producing cause of death from the pre-existing brain tumor. The plaintiffs failed to recover not so much for lack of a certain phrase of testimony from a medical expert as because the total proof was inadequate to support their claim. The court held that it would be sheer speculation, not resting on a preponderance of the evidence, to base a finding on nothing more than a mere possibility.

In Dotson, the plaintiff experienced chest pains while on the job on November 6. After several additional episodes during November and December, he suffered a coronary thrombosis at midnight on January 10. Those bare circumstances did not show probable causal connection between the work experience on November 6 and plaintiff's condition on January 10. In the absence of findings or opinion from an expert who would either be familiar with additional facts or trained to read further significance in the circumstances, there was no proof that the plaintiff sustained an injury or damage to his heart on November 6.

Just as there was no proof that an injury caused death or disability in Myers and Dotson, there was no proof that the plaintiff's back strain precipitated the advanced stage of syphilis in American Surety Company v. Semmons, 413 S.W.2d 732 (Tex.Civ.App.1967, writ ref'd n.r.e.), there was no proof that something blown into the eye of the plaintiff caused the tumor two years later in Scott v. Liberty Mutual Insurance Company, 204 S.W.2d 16 (Tex.Civ.App.1947, writ ref'd n.r.e.), and there was no proof that a blow on the head caused the employee's death of typhoid fever over a year later in Texas Employers' Insurance Association v. Burnett, 129 Tex. 407, 105 S.W.2d 200 (Tex.Sup.1937).

In the present case the fact finder had direct evidence of the occurrence on the job when the employee, while wet with sweat in the heat and effort of his work, was shocked throughout his body with an electrical current. The fact finder was told of the prompt onset of symptoms with the employee feeling bad within a few minutes and his distress progressing until he was in a critical state in the hospital within a few hours. The doctor testified that this distress was due to a heart attack and that the heart is still impaired. Further, the doctor testified that what happened on the job could precipitate a heart attack. With those facts given, it was not conjecture on the part of the jury to conclude that the occurrence on the job was probably a cause of the attack and resulting disability.

Since the question is what precipitated This attack at this time, it requires no expert to decide the probabilities when the trier of fact is given evidence of prompt onset of the attack following an occurrence competent to affect adversely a defective heart. As in all of those cases where a back injury promptly follows a lifting strain, or a ruptured blood vessel or heart attack promptly follows exertion, though there is not definite proof of the mechanical process by which the physical structure of the body is damaged, under the circumstances it is reasonable to believe that what the employee did on the job precipitated physical failure. The courts have often allowed this finding and permitted recovery under the Texas Workmen's Compensation Law. Carter v. Travelers Insurance Company, 132 Tex. 288, 120 S.W.2d 581 (Tex.Sup.1938); Texas Employers' Insurance Association v. Hamilton, 430 S.W.2d 285 (Tex.Civ.App.1968, writ ref'd n.r.e.); Lambert v. Houston Fire & Casualty Ins. Co., 260 S.W.2d 691 (Tex.Civ.App.1953, writ ref'd n.r.e.).

However, we must now consider the effect of the doctor's testimony on this issue of causal connection. In doing so, we must recognize that there are areas for jury and judge to construe the testimony of the doctor. As the court said in the Myers opinion at 411 S.W.2d 713: 'Reasonable probability * * * is determinable by consideration of the substance of the testimony of the expert witness and does not turn on semantics or on the use by the witness of any particular term or phrase.' Furthermore, we must distinguish the question as to the legal sufficiency of expert testimony standing alone on the issue of cause, from the question of the effect of that testimony upon other evidence which would itself be sufficient proof on that issue. The question for us is whether the testimony of the doctor is so adverse to the existence of probable cause as to overcome the weight of the circumstantial evidence.

When defense counsel asked Dr. Sloan if he could put his finger on the cause of the attack, he replied: 'I can't say that did have, and I certainly can't say it didn't have something to do with it.' But he did say: 'I think that the chronological events that have happened makes it a strong possibility that this could help precipitate a heart attack.' And when he was asked to look at the question from the standpoint of circumstantial evidence and say if medical probability was reasonable in this case, he answered: 'Well, circumstantially, I would say, yes, strong possibility.'

While the doctor's testimony was not as responsive and explicit as it could have been, he has said nothing to rule out a medical relation between the work...