Texas Emp. Ins. Ass'n v. Stone
| Decision Date | 26 March 1954 |
| Docket Number | No. 3058,3058 |
| Parties | TEXAS EMPLOYERS' INS. ASS'N v. STONE. |
| Court | Texas Court of Appeals |
John P. Camp, McMahon, Springer, Smart & Walter, Abilene, for appellant.
Jones, Jones & Brian, Marshall, for appellee.
Claimant, Everett C. Stone, and employee of Baker & Taylor Drilling Company, sued Texas Employers' Insurance Association to recover workmen's compensation for injuries sustained in the course of his employment. The Methodist Hospital of Dallas and Drs. Nash and Patterson intervened and sought recovery against defendant for hospital, medical and surgical services rendered plaintiff in connection with said injuries and an operation ordered by the Board. Based on jury findings, the court rendered judgment for total and permanent disability, less a credit of seventy weeks at $25 per week which had been paid plaintiff. The court also rendered judgment for intervenors. The insurer has appealed.
Claimant was a member of a crew employed by Baker & Taylor Drilling Company to drill a well in Scurry County. He was handling tongs which hung from a line in the derrick when the machinery started causing the tongs to strike plaintiff and knock him backward six or eight feet. It is undisputed that claimant sustained a serious injury to his back. Plaintiff was carried to a hospital in Colorado City where he stayed for 27 days. He then went to his home in Douglasville, Texas, where he was under the treatment of a local doctor. He then went to specialists in shreveport and Dallas and, from the tests made by them, it was determined it was necessary to remove the disc and have a fusion of the spine. Claimant made written demand to the Board for such an operation. The Board ordered the operation performed. Thereafter, Drs. Patterson and Loiselle performed said operation. The Board, in ordering the operation, acted under the authority of Vernon's Ann.Civ.St. Article 8306, Section 12e. Said section provides that 'In all cases where liability for compensation exists for an injury* * * and a surgical operation for such injury will effect a cure of the employe , or will materially and beneficially improve his condition' either side may demand an operation. It further provides: 'The results of such operation * * * and the benefits and liabilities arising therefrom shall attach, be treated, handled and determined by the board in the same way as is provided in the case of hernia in this law.'
The jury found the operation was a success. The insurer contends the court erred in rendering judgment for total permanent incapacity because of that finding and that claimant's recovery was thereby limited to twenty-six weeks. A successful operation under the hernia statute is one that effects a cure of the hernia. The operation performed on plaintiff did not effect a cure. The removal of the disc and fusion of the vertebrae, if successful, would leave claimant with a stiff back. There was no evidence which would support a conclusion that the operation would effect a cure. On the contrary, it was, in effect, admitted that claimant was totally disabled at the time of the trial. This was not a specific injury but a general injury. Regardless of whether the hernia statute is applicable, under the undisputed evidence, claimant was entitled to recover because of a general injury for total disability to the time of the trial. Point one is overruled. Texas Employers' Ins. Ass'n v. Williams, Tex.Civ.App., 205 S.W.2d 132, 136 (R.N.R.E.); Southern Casualty Co. v. Fulkerson, Tex.Com.App., Com.App., 45 S.W.2d 152, 155; Royal Indemnity Co. v. Jones, Tex.Civ.App., 201 S.W.2d 129, 132; Texas Employers' Ins. Ass'n v. Tanner, Tex.Civ.App., 218 S.W.2d 277, 281 (R.N.R.E.); Consolidated Underwriters v. Langley, 141 Tex. 78, 170 S.W.2d 463; Consolidated Underwriters v. Lowrie, Tex.Civ.App., 128 S.W.2d 421, 423 (W.R.).
Appellant's second and third points are that the court erred in submitting the issue of partial incapacity conditionally and in refusing to submit its requested issue on partial incapacity. Issue One was: 'Do you find from a preponderance of the evidence the total incapacity of Everett C. Stone will be permanent or temporary?' Total incapacity was then defined and the jury was told that an employee is not entitled to recover for total incapacity merely because he is unable to procure and retain employment in his usual occupation. The jury was informed that partial incapacity meant that the physical condition of an injured employee was such that he was able to both procure and perform work at some occupation suitable to his existing condition but less remunerative, or requiring less physical strength, than the work he was engaged in at the time of his injury. The issues following issue one above and the answers considered pertinent to said points are as follows:
'Answer 'Permanent' or 'Temporary.' Answer: Permanent.
'If you have answered the foregoing question 'Temporary' then answer the following question otherwise do not answer the same.
'Special Issue No. 2
'How many weeks do you find from a preponderance of the evidence such total incapacity will last. Answer in number of weeks. Answer _____ weeks. If you have answered Special Issue No. 2 by giving any number of weeks, answer the following question: otherwise, do not answer the same.
'Special Issue No. 3
'Do you find from a preponderance of the evidence that plaintiff will suffer any partial incapacity, following the end of the number of weeks found by you in answer to Special Issue No. 2? Answer 'Yes' or 'No.' Answer: ___. If you have answered the foregoing Special Issue No. 3 'Yes' then answer the following question, otherwise do not answer the same.
'Special Issue No. 4
'Do you find from a preponderance of the evidence that such partial incapacity, if any, so found by you in answer to Special Issue No. 3 will be 'Permanent' or 'Temporary'? Answer: 'Permanent' or 'Temporary.' Answer: _____. If you have answered the foregoing Special Issue No. 4 'Temporary' then you will answer the following question, otherwise, do not answer the same.
'Special Issue No. 5
'For how many weeks, do you find from a preponderance of the evidence, such partial incapacity has lasted or will last? Answer in number of weeks. Answer: _____ weeks. If you have answered Special Issue No. 3 'Yes' then answer the following question, otherwise do not answer the same.
'Special Issue No. 6
Defendant objected to the conditional submission of the issue of partial incapacity, stating that defendant had pleaded partial incapacity as an affirmative defense and was entitled to an unqualified, unconditional submission of that issue. In addition, it tendered requested submission of the following issue: 'Do you find from a preponderance of the evidence that the plaintiff will not suffer any partial incapacity?'
Claimant contends the issue of partial incapacity was not raised by the evidence. The trial began March 16, 1953. Claimant was injured on March 25, 1951. Issue One assumed that at the time of the trial Stone was totally incapacitated. The insurer did not object to such assumption and the evidence shows it was correct. In this connection, see Texas Employers' Ins. Ass'n v. Patterson, 144 Tex. 573, 192 S.W.2d 255, 257. On July 8, 1952, Mr. Stone was operated at the Methodist Hospital and a ruptured disc was removed from between two vertebrae and a spinal fusion was performed. The removal of the disc was done by Dr. Patterson, a neuro-surgeon, assisted by Loiselle, an orthopedic surgeon, and others, and Dr. Loiselle then performed the fusion operation assisted by Patterson and others. Patterson is a specialist in brain and nerve surgery and Loiselle is a specialist in bone surgery. On January 8, 1953, Dr. Patterson's depositions were taken. He testified that Stone had not then recovered form his injury; that it would require a minimum of twelve months after the operation to determine 'how much and when he will recover'; that when Stone was last examined, on January 7, 1953, he was of the opinion Stone was still totally disabled; that when he last examined Stone, approximately six months after the operation,
He further testified that Stone was severely ill after the operation because he developed a secondary infection, or moniliasis, following surgery and that this had kept him from recovering as rapidly as he normally would; that this infection cleared up in about three weeks; that he was of the opinion the fusion was developing normally; that, in his opinion, it would take at least twelve months after the operation 'before one can tell how much or when he will be able to return to work'; that there was nothing to indicate the bones were not fusing, except that it had not had enough time to fuse properly; that on January 7, 1953, Stone was not able to go back to work.
Mr. Gare testified that Stone drives his automobile some and has walked from his car to Gage's store without a cane.
Mr. Gage testified that Stone drives his automobile some and has walked from his car to Gage's store without a cane.
Dr. Loiselle testified...
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Stone v. Texas Emp. Ins. Ass'n, A-4690
...by the Court of Civil Appeals (with dissent) for refusal of the trial judge to submit unconditionally the issue of partial incapacity. 266 S.W.2d 902. The following issues among others were 1. 'Do you find from a preponderance of the evidence the total incapacity of Everett C. Stone will be......