Texas Employers' Insurance Ass'n v. Steadman, 7707

• Decision Date: 24 April 1967
• Docket Number: No. 7707,7707
• Citation: 415 S.W.2d 211
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Kenneth Spriggs STEADMAN et al., Appellees. . Amarillo
• Court: Texas Court of Appeals

Page 211

415 S.W.2d 211

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Kenneth Spriggs STEADMAN et al., Appellees.

No. 7707.

Court of Civil Appeals of Texas Amarillo.

April 24, 1967.

Rehearing Denied May 29, 1967.

Underwoos, Wilson, Sutton, Heare & Bery, Amarillo, R. A. Wilson, Amarillo, of counsel, for appellant.

Gordon, Gordon & Buzzard, Pampa, Ross N. Buzzard, Pampa, Gibson, Ochsner, Harlan, Kinney & Morris, J. Hadley Edgar, Jr., Amarillo, of counsel, for appellees.

DENTON, Chief Justice.

This is a workmen's compensation case. Judgment was rendered on the jury verdict in favor of the claimant for total and permanent incapacity benefits and certain medical expenses. The insurance carrier has appealed.

Steadman was employed by Boman-Chase Construction company as a pipe-fitter. On April 5, 1964, while he was bending over a pipe, a grinder 'got away' from him and struck him in the face. He was unconscious for some thirty minutes before being taken to the hospital. The treating doctor diagnosed his injuries as a fractured nose, fracture of the frontal bone and multiple abrasions about the face and neck.

Appellant's first group of points of error urge the law question of 'no evidence' and the sufficienty of the evidence to support the jury's findings that the April 5, 1964 injury was the producing cause of Steadman's total disability; that the date of the injury was the beginning of such total and permanent incapacity; and that such disability was permanent. In addition to the testimony of Mrs. Steadmand and her daughter by a former marriage, and a fellow worker, appellee presented the medical testimony of Dr. Lowery, the original treating doctor, Dr. Wheeler, Dr. Pennal, a psychiatrist who treated Steadman and Dr. Clawson, a psychologist. Steadman remained in the hospital two days after the injury where his fractured nose and frontal bone and lacerations were treated. Immediately upon his release he complained of severe headaches and blurred vision. His wife first noticed he had a 'memory problem' the first night in the hospital. He returned to his job some two days after being released from the hospital, and worked for ten days when his employment was terminated by a reduction of the working force. He worked for three days in May and eight or nine days in June of 1964. In the meantime he complained of severe headaches and was treated by Dr. Hays and Dr. Norman Wright, a nose specialist. He was examined by Dr. Pennal, a psychiatrist on June 18, 1964. Dr. Pennal placed appellee in the hospital on July 6 where he remained approximately one week. He was then transferred to a clinic for mental patients. Over a period of 83 days in the clinic, appellee received 27 shock treatments.

Steadman's wife and step-daughter testified his memory began to worsen after the injury until he was unable to recognize his own children and old friends; and he became belligerent and was sensitive to people. They both testified to the changes in his disposition and outlook. Dr. Pennal, testifying by deposition, told of taking appellee's case history which consisted of complaints of poor memory, severe headaches, loss of feeling in the right leg and failing vision. The doctor's neurological examination was essentially normal except for parathesia of the right calf and a memory disturbance. The psychiatric history revealed much depressive symptomatology, included an incapability to concentrate and make decisions; and 'some hopelessness in facing the future and also much suicidal pre-occupation'. After Steadman was released from the clinic on September 26, 1964, Dr. Pennal continued to see appellee and he continued to have complaints of headaches and faulty memory. It was Dr. Pennal's opinion the depressive disorder was brought on by or precipitated by the April 6 accident. It was his further opinion that if the same symptoms were present at the time of the doctor's deposition, 'he will not make much improvement'. On cross-examination, the doctor testified it was possible to have personality changes, failing memory and headaches from organic brain damage, but he found no such organic brain damage in his tests of appellee. He testified that his findings of appellee's symptoms were consistent with both the injury and brain tumor, but in his opinion, with his knowledge of the case history, the brain tumor was improbable. He conceded shock treatments can and do affect patient's memory, but such memory loss would not continue over so long a period as in the case of appellee. Dr. Clawson, the psychologist who is experienced in psychological testing tested appellee. His tests revealed substantially the same mental symptoms as those found by Dr. Pennal. Although admittedly not a medical doctor, Dr. Clawson testified his tests and observations of appellee indicated a recent brain damage, and at another point he stated appellee's condition was 'probably mental'. Other doctors subsequently treated appellee and their testimony was generally consistent with that of the doctors previously referred to .

Appellant challenges the medical testimony, particularly that of Dr. Pennal, to support the jury findings that the accidental injury was the producing cause of the total disability, its permanency and the finding such disability began on the date of the injury. Appellant does not deny appellee suffered a compensable injury, but the causal connection from the injury of April 6 and the subsequent treatments by Dr. Pennal are urged. The argument is that since the testimony is clear the symptoms of appellee are compatible with both the injury and a brain tumor, the evidence does not support the jury findings. Appellant cites Houston Fire & Casualty Insurance Co. v. Biber (Tex.Civ.App.) 146 S.W.2d 442 (Judgment Correct) among others for the rule '(w)here the evidence shows that a particular result may probably have occurred by reason of several different causes, and it is not more reasonably probable that one of the causes was operative rather than the others, a finding of casual relationship between the result and a particular cause cannot be sustained.'

In determining the 'no evidence' points we must consider the evidence favorable to the issue and disregard all evidence which is adverse and contrary to the favorable evidence. Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 23 A.L.R.2d 1114. Although Dr. Lowery, the original treating doctor, did not detect brain damage during his initial treatment, he testified a severe blow across the face like that received by appellee frequently causes complications to the central nervous system. Both Dr. Pennal and Dr. Wheeler testified that in their opinion appellee's injury was a producing cause of his disability. The wife and step-daughter told of his continuing severe headaches and the drastic change in his personality and behavior as well as his loss of memory some three months prior to the first shock treatments administered by Dr. Pennal. Neither Drs. Pennal nor Wheeler had known of cases where shock treatments had affected loss of memory more than six or seven months. Appellee's headaches and loss of memory and personality changes had extended to the time of the trial, some two years after the accident and nineteen months after the shock treatments were terminated. The wife had known of no previous serious complaints of headaches and no loss of memory prior to the injury. Appellee testified briefly but because of his loss of memory added very little to the evidence. He testified his head 'hurt all the time. I don't know what it is to be without it and * * * excitement or exertion until it is almost unbearable.' In answer to a question if he had a memory problem he replied, 'Well, I could answer that in several ways, if you would like. I don't ever see any old movies on television. I never see anybody I know. It is a complete strange world.' Appellant offered no testimony at the trial. After reviewing the evidence most favorable to the verdict we are of the opinion there is ample evidence to support the findings that the accidental injury was the producing cause of Steadman's total disability, that such disability began on the date of such injury; and such disability is permanent.

There is no fixed rule of evidence by which a claimant is required to establish the fact that he has suffered an injury which caused total and permanent disability. Texas Employers' Insurance Association v. Smith (Tex.Civ.App.) 374 S.W.2d 287. Liberty Universal Insurance Co. v. Gill (Tex.Civ.App.) 401 S.W.2d 339 (Ref. N.R.E.). The duration and extent of disability received from injury is at best an estimate, which must be determined by the trier of the facts from all the pertinent evidence before it. The Insurance Co. of Texas v. Anderson (Tex.Civ.App.) 272 S.W.2d 772. (...