Texas Employers Ins. Ass'n v. Loesch

• Decision Date: 13 May 1976
• Docket Number: No. 5524,5524
• Parties: TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Arthur J. LOESCH, Appellee.
• Court: Texas Court of Appeals

Page 435

538 S.W.2d 435

TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Arthur J. LOESCH, Appellee.

No. 5524.

Court of Civil Appeals of Texas Waco.

May 13, 1976.

Rehearing Denied June 3, 1976.

Naman, Howell, Smith & Chase, Louis Muldrow, Waco, for appellant.

Dunnam, Dunnam, & Dunnam, W. V. Dunnam, Jr. and Fred Horner, Waco, for appellee.

OPINION

JAMES, Justice.

This is a workman's compensation case. Pursuant to jury trial the trial court entered judgment in favor of the Plaintiff-Appellee Arthur J. Loesch for total and permanent disability benefits. We affirm.

Plaintiff Loesch was employed at General Tire and Rubber Co., in Waco, Texas. He received an accidental injury while on the job on May 8, 1963.

Trial was to a jury which found:

(1) That Plaintiff Loesch sustained an injury to his body on May 8, 1963;

(2) that such injury was accidental (3) and in the course of employment for General Tire and Rubber Co.;

(4) that such injury resulted in total incapacity;

(5) that such total incapacity began on May 8, 1963; and

(6) that such total incapacity was permanent.

As stated, pursuant to such jury verdict the trial court entered judgment in favor of Plaintiff Loesch against Appellant Texas Employers Insurance Association for total and permanent disability benefits, from which Appellant insurer appeals.

Appellant asserts that there is no evidence, and insufficient evidence, to support the jury's findings that Plaintiff-Appellee Loesch sustained total and permanent incapacity which began on May 8, 1963. We do not agree.

At the time of trial Arthur J. Loesch was forty-two years of age, was married, and the father of three children. He had a tenth grade education. At all times material to this controversy he was employed by General Tire and Rubber Co. at Waco, Texas. At the time of May 8, 1963, he was employed as a truck tire builder. Plaintiff had not acquired any particular skills by way of education, and his work background was such that he was obliged to earn his living by manual work. Plaintiff injured his back on May 8, 1963, while building truck tires, and this is his account of how it happened:

'Well, we were using--we're still using rayon fabric and we had these four-ply rayon bands which were--well, we use a band bar to run those bands on the drums, and you have to bend down and put pressure on them while the drum is spinning and sort of screw them on there, and these bands were unusually still. I mean, they wouldn't stretch very easy, and I got one that was just out of the ordinary, it was real thick stock. I don't why. And heavy, and it wouldn't stretch, and I had the thing about halfway on there and it started to hang the bar, and I don't know whether you know what happens if a bar hangs. Lots of times it will throw you about twenty or thirty feet, and it was about to hang this bar, and there wasn't nothing that I could do except just bear down with all I had, and I did, and I got it on there, but when I raised up it felt like a knife sticking in may back, and I couldn't even walk. They had to carry me to first aid on a little truck--wagon.'

Some co-workers put him on a 'skid' (or small truck that the workers get material on) and carred him about 200 yards to first aid. At the first and station, he was put upon a stretcher, after which he came under the care of Dr. Harry Trippett. Plaintiff was totally disabled for thirteen weeks following this injury, and went back to work sometime the latter part of August, 1963, doing light work.

Dr. Trippett's medical records showed that Plaintiff's back was X-rayed on the date of his injury, May 8, 1963, which X-rays showed 'no evidence of a fracture or dislocation of the visualized bones.' Dr. Trippett saw him on May 13, 1963, June 13, 1963, December 29, 1965, and February 10, 1966. On December 29, 1965, Dr. Trippett X-rayed Plaintiff's back a second time, showing, 'no evidence of a fracture or dislocation of the visualized bones,' and 'no change since 5--8--63.'

Dr. Trippett referred Plaintiff to Dr. Robert Gassler, who first examined Plaintiff on May 21, 1963, and gave Plaintiff an injection. Plaintiff testified that Dr. Gassler told him (Plaintiff) that it was only a 'pulled muscle.' Between May 21, 1963, and August 6, 1963, Dr. Gassler saw Plaintiff seventeen times, at which visits Dr. Gassler observed and gave injections to Plaintiff and caused him to be treated with diathermy. Dr. Gassler examined Plaintiff on March 2, 1965, and saw him again on April 3, 1965, after which said doctor again examined Plaintiff on January 6, 1966. Dr. Gassler's records further showed that he examined and X-rayed Plaintiff on February 8, 1971, examined him again on February 12, 1971, and saw him the last time on February 19, 1971. From the record it appears that neither Dr. Trippett nor Dr. Gassler ever ran a myelogram on Plaintiff's back. After the original injury of May 8, 1963, Plaintiff was sent to Dr. Trippett by his employer, said doctor having been paid by the insurance carrier. In turn, Plaintiff was referred to Dr. Gassler by Dr. Trippett, and Dr. Gassler was paid by the insurance carrier through the 1963 treatments. It was not until after the March 2, 1965, examination that Dr. Gassler began sending statements for his services directly to Plaintiff. Neither Dr. Trippett nor Dr. Gassler testified in the case.

As stated before, Plaintiff was totally disabled for thirteen weeks after May 8, 1963, after which time he went back to work doing light work as a 'flapper' on the final inspection line during the fall of 1963. Somewhere about January 1, 1964, Plaintiff went back to building truck tires, at which work he remained until 1971, except for about six weeks of lighter work building passenger tires in the interim.

At the time of his injury of May 8, 1963, Plaintiff had a wife and three children at home, the ages of which children at the time were ten, eight, and six. The youngest child was a boy who was a hemophiliac (bleeder) and who also had a deformed left leg and foot. The boy was crippled and had to walk with crutches. Plaintiff testified that treatments for the boy were expensive, and he had a lot of unpaid bills at the time of the 1963 injury, and has continued to have many bills ever since for the boy's medical treatment.

Plaintiff testified that from the time he went back to work in the fall of 1963 and thenceforward he was doing his job but 'was hurting also.' In essence, Plaintiff testified that he was in pain practically all the time, sometimes worse than at other times; moreover, it grew progressively worse as time went on. He further testified that he hurt his back additionally many times both on and off the job during the years from 1963 through 1971. Finally, by the early part of 1971, Plaintiff's condition had reached the point that, as he testified: 'I had got to the point where I coudn't sleep at night, I had to get up and go to the bathroom about every 15 minutes, and my stomach hurt and it was always upset and I was nervous.' He had pain in his left leg and foot that also caused his toes to 'go to sleep.' The treatment that he had received from Drs. Trippett and Gassler had not caused his condition to improve. In an effort to relieve the pain, the upset stomach, and the bladder condition, Plaintiff went on his own to Scott and White Clinic and Hospital at Temple, Texas, beginning on February 23, 1971. The records of Scott and White showed their diagnosis to be a 'herniated nucleus pulposus' in Plaintiff's back between L--4 and L--5, commonly known as a ruptured disc. A myelogram was done by Scott and White upon Plaintiff's back. This diagnosis further showed that the bladder trouble was secondary to his back trouble. On or about May 9, 1971, Plaintiff was operated on at Scott and White for this ruptured disc. In the fall of 1971, Plaintiff re-injured his back and was re-admitted at Scott and White, at which time it was determined that Plaintiff had suffered another ruptured disc.

Dr. Robert L. Stockton, a neurosurgeon, testified that he first saw plaintiff on August 21, 1972. In response to a hypothetical question which fit the facts of Plaintiff's case, Dr. Stockton testified that the injury of May 8, 1963, in reasonable medical probability was the cause of the ruptured disc found in Plaintiff's back in 1971 at Scott and White Hospital. He further testified that medical doctors who conduct pre-employment physical examinations for employers will not pass a man who has a ruptured disc in his spine; that a man with a ruptured disc who stands on his feet and works seven or eight hours every day will aggravate and worsen his physical condition; that a man might have the physical power to work while at the same time he may not be medically able to do so. Dr. Stockton interpreted the Scott and White diagnosis to mean that Plaintiff's ruptured disc was 'so bad that it was compressing on the nerve roots that control the urinary bladder.' Also, that the longer period of time that there is nerve root compression from a ruptured disc, the more likelihood that additional damage will occur; and that a man with a ruptured disc is not medically able to be carrying on work that requires him to be standing on his feet hours at a time and doing lifting, bending, and turning as a part of his job. Dr. Stockton testified that on September 1, 1972, he released Plaintiff to go back to work on September 5, 1972, with the restriction that 'he is not to lift more than ten pounds;' that he placed this restriction on Plaintiff because Plaintiff had a 'significant medical impairment.'

Charles Holley, a general construction contractor, testified that a man with a ruptured disc in his back cannot obtain employment in the construction industry; that a man to perform the usual tasks of a workman has to be able to crawl, bend, stoop and twist his body.

Defendant-Appellant sought to impeach Plaintiff by showing Plaintiff applied for and collected...