Texas Emp. Ins. Ass'n v. Rogers

• Decision Date: 22 April 1963
• Docket Number: No. 7256,7256
• Citation: 368 S.W.2d 21
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Floyd V. ROGERS, Appellee.
• Court: Texas Court of Appeals

Page 21

368 S.W.2d 21

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Floyd V. ROGERS, Appellee.

No. 7256.

Court of Civil Appeals of Texas, Amarillo.

April 22, 1963.

Rehearing Denied May 20, 1963.

Underwood, wilson, Sutton, Heare & Berry, Amarillo, for appellant.

Merchant, Fitzjarrald, Poole & Merchant, Amarillo, for appellee.

DENTON, Chief Justice.

This is a workmen's compensation case. Appellee, Floyd v. Rogers, sued Texas Employers' Insurance Association for total and permanent disability as a result of an injury sustained on or about December 1, 1960, while in the course of his employment for the M. W. Kellogg Company. The jury found all issues in favor of appellee, and the trial court entered judgment for appellee for total and permanent injuries payable in a lump sum.

In December of 1960 Rogers was employed as a pipe fitter by the Kellogg Company in the construction of a catalyst unit at an oil refinery. Rogers, a sixty year old man, was working on a large tank some sixty to eighty feet above the ground when he slipped on the walkway around the tank. He fell some seven feet and struck his side and rib section against a pipe rail. The injury caused severe pain and affected his breathing. After being sent to the company doctor for treatment, he remained on the job until the Friday before Christmas, but during this time he performed no heavy work. Rogers drove to Oklahoma City for the holidays, and just prior to returning home on December 26 the pain increased. He was then admitted to the Norman Municipal Hospital. Dr. Dycus, who had treated Rogers on prior occasions, was the treating doctor throughout his three weeks stay in the hospital. On December 27 Rogers suffered a heart attack. It is the latter injury which appellee contends is the total and permanent disability injury for which he seeks recovery. The primary question is whether the rib injury of December 1, 1960, was the producing cause of the heart attack.

By points of error one through four appellant raises 'no evidence' questions. These points of error allege errors of the trial court in failing to set aside the jury's finding; failing to grant appellant's motion for directed verdict and its motion for judgment non abstante veredicto; and that certain alleged hearsay testimony could not form the basis of the judgment entered. In considering these points we are required to review the evidence in support of the findings and consider only the evidence and the inferences which support the findings, and reject the evidence and the inferences to the contrary. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660.

Rogers' rib injury of December 1 was confirmed by a fellow employee and the foreman on the job. Dr. Barksdale treated him twice in Borger for this injury prior to the Oklahoma trip. The pain continued to be severe, and his breathing was made difficult. When the pain became more severe on December 26, Rogers' son took him to the hospital. He was then admitted and examined by Dr. Dycus. Dr. Dycus, who testified by deposition, was the only medical witness offered by either party. He testified:

'Of course, I was primarily concerned, since in was on the left side of his chest, of the possibility of heart pain, but the pain turned out to be a superficial pain, due to rib injury, in relation to respiration. It was made much worse by breathing, and this is typical of a fracture of the rib.'

He testified Rogers could hardly breathe because of this pain. His heart was checked with a stethoscope, and his blood pressure was taken. These examinations revealed no abnormalities. According to this record Rogers had had no prior history of heart trouble. He was given medication for pain, and as the hypo would wear off he became very restless, and would 'thrash' about in bed. The doctor further testified:

'In the early a. m., I think it was around 3 a. m. the next morning, he suddenly had severe substernal pain and became shock-like, and had a massive myocardial infarction.'

'Substernal' pain was defined by the doctor as 'a pain caused by injury to heart or blood vessels.' The doctor was asked the following question:

'Q. Doctor, what, if anything, do you attribute the heart attack which he had on December 26?

'A. This man was as uncomfortable as anybody I have ever seen from his rib injury, and rib injuries are notorious for not only causing pain, but by causing so much pain in relationship to breathing that the person breathes improperly. He breathes off the top of his lungsSo to speak, so that the oxygen supply being compromised, together with the strain that comes from that much pain, I think, was a direct precipitating incident or precipitating factor in his heart attack.'

On cross-examination the doctor testified that after the heart attack Rogers suffered from angina pectoris which was described as pain from insufficient blood supply to the heart. He also testified that it was 'possible' that Rogers could have suffered the heart attack without having sustained the prior rib injury; and that it was 'possible' the pain Rogers suffered at the time the doctor first saw him was caused by the myocardial infarction. However, the doctor did not change his opinion as to the cause of the heart attack. As previously notedThe insurance carrier offered no medical testimony.

By brief appellant takes the position that the above quoted testimony of Dr. Dycus might be sufficient to support the verdict, but argues other testimony renders such testimony hearsay and thus not admissible. A transaminase test, an electro cardiogram, and x-rays were taken of Rogers, but the doctor admitted he did not personally conduct such tests. He testified they were taken by the hospital staff. Neither did he testify that the tests were made under his personal supervision and direction. Even though the doctor testified his opinions were based 'in part' on these clinical tests, the record does not reveal the positive opinions quoted above were formed from such reports. As the admitting doctor who actually treated the patient, Dr. Dycus personally made sufficient tests and examinations to qualify himself to make these statements independently of the clinical tests. It has been held that a doctor's diagnosis which is based in part on unsworn reports of tests made by hospital technicians is admissible. Sundquist v. Madison Rys. Co., 197 Wis. 83, 221 N.W. 392. This holding conforms to the general rule that where it appears a witness' testimony is predicated both upon...