Liberty Mutual Insurance Company v. Parrish, 5022

• Decision Date: 03 June 1971
• Docket Number: No. 5022,5022
• Citation: 469 S.W.2d 620
• Parties: LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. David PARRISH, Appellee.
• Court: Texas Court of Appeals

Page 620

469 S.W.2d 620

LIBERTY MUTUAL INSURANCE COMPANY, Appellant, v. David PARRISH, Appellee.

No. 5022.

Court of Civil Appeals of Texas Waco.

June 3, 1971.

Brown, Crowley, Simon & Peebles, Ft. Worth, for appellant.

Edwin G. Bell, Ft. Worth, for appellee.

OPINION

HALL, Justice.

This is an appeal by the insurance carrier in a workmen's compensation case.

Without dispute in the record, appellee sustained an injury to his bank on June 1, 1962, while in the course of his employment. The injury resulted in the removal of the fifth lumbar disc and a spinal fusion. Appellee's claim for compensation was not acted upon by the Industrial Accident Board until February 3, 1970. Appellant initiated the trial de novo from the award of the Board.

Trial was to a jury which made findings that total disability sustained by appellee as a result of the injury on June 1, 1962, was 'permanent;' and that appellee did not sustain a new injury on or about November 1, 1969. In its two points of error, appellant attacks these findings as being so against the overwhelming weight and preponderance of the evidence as to be manifestly wrong and unjust.

The disc damage caused severe pain in appellee's right hip and leg, with occasional numbness in his right leg and foot. The severity of the pain increased daily. After more conservative medical treatment failed to give appellee any relief, the disc removal and fusion were performed on July 3, 1962. Appellee was released from the hospital on July 13th.

There is evidence in the record that appellee's post-operative care was uneventful; that he returned to work on a light duty basis in early September, 1962; that on December 10, 1962, appellee's physician dismissed him and expressed the opinion that appellee 'will have 10% Permanent partial disability to the body as a whole;' that from the time of his return to work until the date of trial appellee did not miss any work because of the condition of his back except for occasional check-up visits to the doctor; that there was a period of time of five to six years between the date of surgery and the date of trial when appellee did not see any doctor regarding his back; that, other than immediately after his return to work, the jobs assigned to appellee since his operation have all been regular job assignments; that since returning to work, appellee has voluntarily worked many hours of overtime; that he worked on a camper on his own time at the plant; that on his own time he has performed refrigeration repair work for private income; that he has taken courses in electricity and refrigeration which lasted from four to five months, and which required him to drive from Cleburne to Fort Worth and back once each week for twohour class sessions; that in January, 1964, an extensive medical re-evaluation of appellee's back, including X-rays, showed a solid lumbosacral fusion with no narrowing of any disc spaces or other evidence of bone or joint pathology, and a confirmation of the 'previous estimate that this patient will have 10% Permanent partial disability.'

Additionally, the record contains testimony from appellee, his wife, and a co-worker, that appellee is 40 years of age; that he has a tenth-grade education; that his duties prior to his injury required extensive lifting of sheetmetal; that when he returned to work he had pain in his back and leg and was in a back brace, but he returned because he didn't have any income and 'the bills kept coming in,' and he had to provide a living for his wife and four children; that prior to his injury he was 'real strong' and 'could lift anything that was required to be lifted * * * a hundred and fifty pounds;' that since his return to work he cannot lift over 25 to 30 pounds 'without lots of extra pain,' and is unable to move, bend, and walk as before and must avoid all heavy lifting and bending and stooping, all of which restricts him in his work and other activities; that after walking a short distance his right leg 'just wants to fold up;' that his back is now partially stiff and it cramps him and hurts him 'to even get down to perform a stooping job like it ought to be done;' that his present duties involve service work on airconditioning systems, and he often must ask a co-worker to set in a motor or compressor because he cannot lift it; that he suffers continuous pain in his back and leg which gets progressively worse during the day, and that as early...