Maryland Am. General Ins. Co. v. Leffingwell

• Citation: 478 S.W.2d 616
• Decision Date: 16 March 1972
• Docket Number: No. 668,668
• Parties: MARYLAND AMERICAN GENERAL INSURANCE COMPANY, Appellant, v. G. T. LEFFINGWELL, Jr., Appellee.
• Court: Texas Court of Appeals

Page 616

478 S.W.2d 616

MARYLAND AMERICAN GENERAL INSURANCE COMPANY, Appellant, v. G. T. LEFFINGWELL, Jr., Appellee.

No. 668.

Court of Civil Appeals of Texas Corpus Christi.

March 16, 1972.

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

Edwards & DeAnda, David L. Perry, Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

Our opinion of January 27, 1972 is withdrawn, and this opinion reaching the same conclusion is substituted therefor.

This is a workman's compensation case. G. T. Leffingwell, Jr., the injured workman, sued Maryland American General Insurance Company, the workmen's compensation insurance carrier, to recover total and permanent disability benefits as a result of injuries sustained by him on February 27, 1970.

Trial was to a jury. In answer to special issues, the jury found that (1) the accidental injury of February 27, 1970 was the producing cause of total incapacity; (2) the beginning date of total incapacity was April 27, 1970; (3) it was permanent; and (4) payment of compensation in weekly installments instead of a lump sum will result in manifest hardship and injury to plaintiff. Based on the jury verdict, the trial court entered judgment that G. T. Leffingwell, Jr. recover workmen's compensation benefits from the insurance carrier in the total sum of $17,236.57 for total and permanent incapacity. Maryland American General Insurance Company has duly and timely perfected its appeal. We affirm.

Appellant, by its first, second and third points of error, challenges the jury findings that appellee sustained total and permanent incapacity after April 27, 1970. These points are 'no evidence', 'factually insufficient evidence' and 'against the great weight and overwhelming preponderance of the evidence' points. The principles of law governing the consideration and disposition of these points are well settled.

In considering the 'no evidence' points, this Court is required to consider only the evidence and the inferences favorable to the jury findings and to disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.Sup.1965); Charles T . Picton Lumber Company v. Redden, 452 S.W.2d 713 (Tex.Civ.App.--Corpus Christi 1970, writ ref'd n.r.e.). We are without authority to disregard the jury findings in response to special issues where there is some evidence of probative value in the record to support them. Singer v. Singer, 150 Tex. 115, 237 S.W .2d 600 (1951); Garza v. Anderson, 417 S.W.2d 368 (Tex.Civ.App.--Corpus Christi 1967, n.w.h.).

In considering the 'factually insufficient evidence' and 'contrary to the great weight and overwhelming preponderance of the evidence' points, we are required to review all the evidence. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). It must clearly appear that the answers by the jury are clearly wrong before an appellate court may set them aside. Missouri-Kansas-Texas R. Co. of Texas v. Anderson, 258 S.W.2d 375 (Tex.Civ.App.--Waco 1953, writ ref'd n.r.e.); State v. Dehnisch, 437 S.W.2d 46 (Tex.Civ.App.--Corpus Christi 1968, n.w.h.).

Appellee, an electrician, was injured on February 27, 1970, when he fell approximately 40 feet from a light pole (on which he was working) to the ground. It was admitted that he was injured in the course of his employment. It was stipulated that he was totally disabled from February 27, 1970 until April 26, 1970.

As a result of the fall, appellee sustained injuries to his chest and back, including fractures of the transverse processes on the right of all five lumbar vertebrae which were displaced from one-quarter to three-quarters inch within his body, and a compression fracture of the fifth lumbar vertebra extending into the joint space. He was hospitalized for 20 days and was in a body cast from his neck to his hips until April 13, 1970, when he was placed in a corset. Although not medically released, he returned to work on April 27, 1970. When queried as to what prompted him to return to work before being released by the doctor and while he was still suffering pain from his injuries, he testified that his family experienced financial difficulties during the two months that he was off from work. During this interval their savings were exhausted. Payments on previously purchased items had to be made and bills were coming due. He further testified that his family could not live on the $49.00 per week compensation benefit that was being paid to him, and that he had to go back to work even though his injuries were still causing him considerable pain.

The jury heard extensive testimony as to appellee's work, injuries, disability and work history. Witnesses included appellee, his wife, his immediate supervisor for his employer, and two orthopedic surgeons, Dr. Barnes and Dr. Isensee. Appellee, age 34, had been employed as an electrician since 1955 and had worked as such continuously since that date. After his injury, he continued to be employed by his employer. The evidence conclusively showed that he was an exceptionally good employee whom his employer desired to keep.

The usual and ordinary work that appellee was trained to do and did perform prior to his injury involved hard work. His job required installing heavy electrical equipment, climbing and working on light poles, crawling through attics and under houses, bending metal conduit pipe, pulling wire through conduits, changing heavy motors, getting up on platforms, and carrying heavy loads. Since his return to work following his injury, he has been unable to perform any heavy work that requires extensive stooping, bending, pulling, crawling, climbing or lifting. There are many jobs that he could not perform after his injury that he did perform before he was hurt. He has been relegated to light work only. Oftentimes, a helper is required for appellee to do the work that formerly he did alone. Since the injury, appellee's employer, at appellee's request, has kept him off of the heavy jobs except with the aid of a helper.

Appellee consistently worked overtime before he was injured. In 1969, the year before his injury, he worked overtime in each of 50 weeks in the year. After his return to work on April 27, 1970, until August 3, 1970, he worked overtime only on occasion. Following Hurricane Celia, which struck Corpus Christi on August 3, 1970, he worked extensive overtime for several weeks due to the emergency situation that existed in the Corpus Christi area. The emergency lasted for about three weeks; during this period of time appellee worked twelve hours per day, seven days a week, and, in his words, 'Well, it just about did me in'. His back began to give him so much trouble that he had difficulty in getting out of bed, and his family doctor ordered him to refuse all overtime and strenuous work. In November 1970, appellee stopped most overtime work. During the six months preceding the trial, he worked very little overtime and during several weeks in that interval failed to put in a full 40 hours. Appellee's normal work week was five days, Monday through Friday, eight hours per day. He asked his employer not to work him overtime in a single day because 'if I put in over eight hours a day, by the end of eight hours my pain is increased quite a bit and if I work longer it's just going to get that much worse.' He did, however, agree, if need be, to work up to eight hours on Saturday, which would constitute overtime for the week. He further testified 'There's quite a few things that I don't do anymore that I used to do in routine days', stating these things to be 'climbing poles, working off of poles, like that, installing lights, repairing lights, crawling in through attics, under houses; installing heavy equipment and work requiring heavy equipment, heavy rolls of wire, stuff like that, I have got to have someone with me to do the physical work that I can't do, that I used to but I can't go up poles anymore or repair.' He further stated that he had pain all the time, twenty-four hours a day, the intensity of which builds and decreases, but never quits entirely.

Dr. Barnes, who examined appellee shortly before trial, made objective findings of a persistent muscle spasm in the back which prevented appellee from tilting his spine backward past the vertical position, displaced fractures of the transverse processes, reversal of the lumbar lordotic curve and a compression fracture to the fifth lumbar vertebra. On direct examination, he stated: 'My opinion is that this man very possibly has a ruptured intervertebral disc between the fourth and fifth lumbar vertebra on the left side; in addition to that, I think he has had mechanical damage on the left side to the small joint between the fourth and fifth lumbar vertebra'. On cross-examination, he said: 'I don't really believe that Mr. Leffingwell has yet developed a ruptured intervertebral disc. My contention was that due to the location of the fracture and the type of fracture he has had to damage this annular ligament and I feel that he will eventually develop a ruptured intervertebral disc'. In response to a question by counsel for appellant concerning something that may or may not occur in the future, Dr. Barnes replied: 'I think it's already occurred. I'm afraid I'm not getting my point across to you. This man has had a fracture of the body of the fifth lumbar vertebra with deformity of a lateral nature to the left which is, if you will, either a subluxation or partial dislocation of this small joint is taking place', and 'So every time the man moves his back, he is going to have pain'.

Dr. Barnes diagnosed continuing and permanent disability from the injuries and concluded that appellee is disabled from doing any work involving repetitive bending, stooping or lifting of heavy objects, or working in awkward positions. He further stated that appellee's back injuries had not healed, that the work performed by appellee subsequent to his...