Texas Emp. Ins. Ass'n v. Smith, 6602

CourtCourt of Appeals of Texas. Court of Civil Appeals of Texas
Writing for the CourtSTEPHENSON
Citation374 S.W.2d 287
Docket NumberNo. 6602,6602
Decision Date12 December 1963

Page 287

374 S.W.2d 287
Clyde SMITH, Appellee.
No. 6602.
Court of Civil Appeals of Texas, Beaumont.
Dec. 12, 1963.
Rehearing Denied Jan. 8, 1964.

Keith, Mehaffy & Weber, Beaumont, for appellant.

Carl Waldman, Beaumont, for appellee.


This is a suit brought under the Workmen's Compensation Law of Texas. Plaintiff recovered judgment, based upon finding of the jury, for total and permanent disability. The parties will be referred to as they were in the trial court.

Defendant contends that there was no evidence to sustain the findings of the jury as to total and permanent disability, that there was insufficient evidence to sustain such findings, and that such findings were against the great weight and preponderance of the evidence. These contentions were raised by 5 separate points which were then briefed and argued together. The defendant treats the legal import of each as being identical to the other, and actually only asks this court to consider the record as a whole and to remand the case for a new trial. The defendant, in effect, abandons the point of 'no evidence' and relies solely on the points of 'insufficient evidence' and 'against the great weight and preponderance of the evidence'.

A consideration of these points necessarily requires a review of the testimony

Page 288

of the witnesses as to the physical condition of the plaintiff. The record shows that plaintiff was injured November 22, 1957. The fact that plaintiff received a serious injury is not controverted. The defendant furnished plaintiff an operation to repair a herniated disc February 25, 1958. Plaintiff returned to work May 12, 1958, and has continued to work for the same employer to the date of the trial, May 22, 1962. That plaintiff was at all material times employed as a vat operator which is a job requiring claimbing and walking. That plaintiff's wage rate was $3.03 per hour on the date of the injury, and $3.33 per hour at the time of trial. Plaintiff had been working 40 hours per week at both times. There is no evidence that plaintiff lost any time from word because of this back injury in 1959, 1960, 1961, or 1962 to the date of trial. Defendant offered evidence that plaintiff was able to do his work as a vat operator, and had been doing it, without complaint. Dr. Earl Rafes, a witness called by defendant, testified as follows:

In reference to a myelogram taken by Dr. Tyner December 16, 1960 he testified:

'* * * In my opinion, this myelogram does not represent in any way a hereination of the disk, but merely represents a thickening of the annulus or covering which the disk had originally, and you see the disk is entered not from here, but from the sides, so this covering remains, or and it represents a little thickening of the edge of the bone in this area and does not represent a herniated disk.'

'Q. The last time you saw him, did you find anything organically wrong with him to justify the complaints that he was having at that time?

'A. No.

'Q. You found nothing wrong with him that was not wholly voluntary?

'A. I would think the basis for his complaints were unfounded the last time I saw him; that he does not have a perfect back; if he attempted to do extremely heavy labor, he might have difficulty and I would say he would; there's no justification for further treatment in this case.'

On the other hand, the plaintiff testified he had a wife and five children, and as follows:

'Q. Now, after you went back to work and up until this time, how have you made out with your work?

'A. Well, I've struggled along with it.

'Q. What difficulty have you had? Let's take in climbing, do you still do climbing?

'A. Yes, sur, it's part of my job.

'Q. Well, how do you make out doing the climbing?

'A. Well, I don't do so well on it. It bothers me a lot when I climb.

'Q. What bothers you?

'A. My legs and back.

'Q. Did you ever have that kind of trouble before this accident happened to you?

'A. No, sir.

'Q. Do you go ahead and do the claimbing anyway?

'A. Yes, sir.

'Q. Do you have to do a little bit of walking?

'A. We do lots of walking.

'Q. You do lots of walking?

'A. Yes, sir.

'Q. How do you make out doing the walking?

'A. It tires me out and bothers me a lot to have to walk. I use my car on the job.

Page 289

'Q. Well, how do you use your car?

'A. From the blending station, we have a place there we work from and we have those tanks we have to read now, keep switching them around, we have to gauge them, and they're a pretty good ways apart, and I use my car.

'Q. You keep your car out there at the plant?

'A. Yes, sir.

'Q. Did you ever have to use your car before out there?

'A. No, I never used it before.'

'Q. How about climbing over those tanks and vats?

'A. We climb, but I don't do too much bending. I can't.

'Q. Why can't you?

'A. If I done much bending, I believe it would put me in the bed.

'Q. Did you have any trouble like that before this accident?

'A. No, sir.

'Q. Can you do any lifting or anything like that without it hurting you a great deal, Clyde?

'A. Well, I haven't tried too much lifting since I had my operation, but it bothers me to lift.

'Q. Have you ever gone out and taking a physical to go to work any place other than Texas Gulf Sulphur since you went out?

'A. No, sir.

'Q. You've been working there for them?

'A. Yes, sir.

'Q. Have you ever taken a physical before for other work?

'A. Yes, sir.

'Q. Clyde, what is your situation now? How do you feel, how do you get along?

'A. I hurt all the time. I mean, I'm in misery all the time.

'Q. Are you the same all the time?

'A. Well, it bothers me at times worse than it does other times.

'Q. Are you really able to do this work you're doing out there, Clyde?

'A. Well, I wouldn't think so.

'Q. Why aren't you able to do it?

'A. Well, it's just too much walking and climbing.

'Q. And do you do it in a lot of pain?

'A. Yes, sir.

'Q. Do you feel that you're getting better or worse?

'A. I'm about the same.

'Q. You mentioned your legs. What kind of trouble are you having with your legs?

'A. Well, I have trouble with my legs. My right leg and hip bothers me a lot when I do walking and climbing.

'Q. Can you describe the pain to the jury?

'A. Well, it goes down in my legs, plumb down to my ankles.

'Q. Did you have that same type of pain before the operation?

'A. Before the operation, no, sir.

'Q. You had some leg pain before the operation, didn't you?

'A. Before the operation, I had a little pain in my leg.

Page 290

'Q. Is the pain worse in your leg since the operation than it was before?

'A. Yes, sir.'

'Q. Clyde, which man told you to do what that you couldn't do?

'A. Mr. Rudin, Bobby Rudin.

'Q. What did he tell you to do that you couldn't do?

'A. He wants us to change those lines and change those ropes on the tanks.

'Q. On the tank or on the vat?

'A. On the tanks and the lights on the vats.

'Q. The rope on the tank, the thing that holds that measuring stick?

'A. Yes, sir, it's on a little track you have to climb up.

'Q. Did you change it?

'A. No, sir.

'Q. Why didn't you?

'A. I didn't feel like it.

'Q. What do you mean?

'A. I didn't want to climb up there.

'Q. Why didn't you want to climb up there?

'A. I wasn't able to.

'Q. Did he ever jump on you about it?

'A. No, sir, he never said anything to me.

'Q. Who ended up changing that rope?

'A. The one that relieved me. Adair, I believe, changed it the last time.

'Q. At any time you have to change them, it's when they're being used?

'A. That sulphur rots them out.

'Q. And the lights were on the vat?

'A. Yes, sir.

'Q. Where were those lights on the vat?

'A. The lights on a vat is on the top of those ladders, that deal he's drawed off; the side of the vat that goes up above the vat. They go higher, where the pipe can hang out over the forms and the lights are up above that.

'Q. You'd have to climb way up?

'A. You have to go up higher to get to the lights.

'Q. Did you change those lights?

'A. No, sir, I don't change no lights.

'Q. They go out from time to time?

'A. Yes, sir.

'Q. And you don't change those?

'A. No, sir.

'Q. Why not?

'A. Because I'm not able to climb. I'm scared to climb up there.'

Dr. Furman H. Tyner, a witness called by plaintiff, testified he was a radiologist, and took a myelogram of plaintiff's back December 16, 1960, and as follows:

'Our positive finding was the protrusion of some of the fourth disk up to produce a knot in the column. The opaque column as it lies down envelopes at the protrusion and produces this knot going up into the vertebral canal and thus displacing that much of the opaque oil. That was the positive finding at four.'

'Q. Doctor, I have just a couple of questions. First of all, based upon

Page 291

your myelogram, your myelogram report there, is it your conclusion or opinion the defect you found there, the notches, are compatible with a ruptured disk at that level?

'A. At the fourth disk level, yes, sir.

'Q. Now, Doctor, is that the same disk level that was operated on?

'A. Yes, sir.

'Q. Is it your opinion that there is still some material left there or has come our somewhere that has protruded into the intervertebral canal and the paramedian?

'A. Into the intervertebral canal, whether or not there's any in the foramina you couldn't tell from an x-ray picture or myelogram. There is extraneous or disk...

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