Lucas v. Hartford Acc. & Indem. Co.

• Decision Date: 08 June 1977
• Docket Number: No. B-6635,B-6635
• Citation: 552 S.W.2d 796
• Parties: Leonard T. LUCAS, Petitioner, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY and/or New York Underwriters Insurance Company, Respondents.
• Court: Texas Supreme Court

Page 796

552 S.W.2d 796

Leonard T. LUCAS, Petitioner, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY and/or New York Underwriters Insurance Company, Respondents.

No. B-6635.

Supreme Court of Texas.

June 8, 1977.

Rehearing Denied July 6, 1977.

Granberry & Hines, F. P. Granberry, Crockett, for petitioner.

William Drew Perkins, Lufkin, for respondents.

POPE, Justice.

The sole question presented in this worker's compensation case is whether the court of civil appeals erred in its holding that there was no evidence of a causal connection between the injury that Leonard T. Lucas received in the course of his employment and the disability. Upon the basis of a favorable jury verdict, Lucas obtained a judgment for total and permanent incapacity, but the court of civil appeals reversed the judgment and rendered judgment that he take nothing. 547 S.W.2d 386. We reverse the judgment of the court of civil appeals and remand the cause to that court.

On August 24, 1974, Lucas, while searching for some items which his employer needed, caught the toe of his shoe under an angle iron, lost his balance and cut his left ankle. Five days later, Dr. Nathan Caldwell examined the ankle and found it infected, with red swollen areas around the lower left leg. About two weeks later Lucas developed thrombophlebitis in both legs. He had not previously suffered from phlebitis, but he had other ailments. He was diabetic, had a chronic ulcer on his toe, and varicose veins. He had also been recently treated for an inflammation of the intestines and was doing light work on advice of his doctor.

The defendant, insurer, argues that there is no evidence that in reasonable medical probability the cut was the producing cause of the incapacity. Lenger v. Physician's General Hospital, Inc., 455 S.W.2d 703 (Tex.1970); Insurance Co. of North America v. Myers, 411 S.W.2d 710 (Tex.1966).

There is direct evidence of the vital fact in the record before us, and for that reason we need not concern ourselves with the scintilla rule nor with inferences. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898); Calvert, No Evidence and Insufficient Evidence, 38 Tex.L.Rev. 361, 362-365 (1960). Dr. Caldwell testified with respect to the incapacity:

Q What, in your opinion, caused that situation to occur?

A I think that the thrombophlebitis was the cause of the pain in his legs. I think the thrombophlebitis was probably at least started at that time by the superficial injury that he received which became infected which is not an uncommon problem in diabetics.

Q But for the cut that he had received back in August of '75, would he have developed this severe thrombophlebitis?

A In all likelihood he would not have. It's possible, who knows?

Q Now, and you said you cannot tell whether he would or would not have had the thrombophlebitis with or without this superficial injury to his ankle.

A No, sir, I can't really say that he would or wouldn't have. I think that that injury did predispose to this episode.

A All I could tell, there was an ankle that had been scratched and was infected which was immediately adjacent to the veins that became involved. That's the reason I thought there was a relationship.

Q There does not necessarily have to be a relationship, does there?

A Not necessarily but probably.

Dr. Caldwell concluded his direct examination by stating that his records reflect that on August 29, 1974, he told Mr. Lucas not to go back to work. He...