Texas Employers' Insurance Association v. Polasek

• Decision Date: 19 February 1970
• Docket Number: No. 15580,15580
• Citation: 451 S.W.2d 260
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Raymond John POLASEK, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 260

451 S.W.2d 260

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Raymond John POLASEK, Appellee.

No. 15580.

Court of Civil Appeals of Texas Houston (1st Dist.).

Feb. 19, 1970.

Rehearing Denied March 12, 1970.

Tom M. Davis, Jr., Wm. M. Holland, Jr., Houston, for appellant; Butler, Binion, Rice, Cook & Knapp, Houston, of counsel.

Krist & McConnico, Kenneth D. McConnico, Houston, for appellee.

COLEMAN, Justice.

This is a workman's compensation case. A trial before a jury resulted in a judgment awarding appellee benefits for total and permanent disability.

Appellant contends that the court erred in failing to include in his charge an issue designed to establish that appellee sustained a general injury since it was undisputed that he had sustained the loss of an eye.

Appellee alleged that he sustained injuries to his right eye, left eye, and arm; that he sustained an injury to his head, including the brain, nerves, nerve supply and supporting attachments. He alleged that the injury resulted in total disability as that term is defined in the Workmen's Compensation Act, as well as in the loss of his right eye.

Appellant plead a general denial, followed by the allegation that appellee has suffered no incapacity or disability except for loss of vision of the right eye, and that any other alleged incapacity or disability of appellee is caused solely by the loss of vision of the right eye. Appellant also alleged that it had paid appellee workmen's compensation benefits and that such payments would continue until appellee had received the benefits provided by law for the total and permanent loss of use of the right eye.

The record reflects that on October 6, 1969, an instrument was filed in the cause reading:

NO. 753,644

RAYMOND JOHN POLASEK

VS.

TEXAS EMPLOYERS' INSURANCE ASSOCIATION

IN THE DISTRICT COURT OF HARRIS COUNTY, TEXAS 152ND JUDICIAL DISTRICT

'BE IT REMEMBERED that on the 25th day of March, 1969, in open court, the following stipulations were tendered by the Defendant and accepted by the Court.

STIPULATIONS

'(1) Wage rate of $145.00 per week

(2) Course and scope of employment

(3) Accidental injury

(4) Lump sum

Approved:

/s/ John Snell, Jr.

Judge Presiding'

While appellant's suggested stipulations are not precisely worded, they establish that appellee received harm or damage to the physical structure of the body by reason of an undesigned, unforeseen, or unexpected occurrence or mishap. It is undisputed that while appellee was looking through a glass window into a pressurized tank, the window blew out. Pieces of glass hit him in and around the right eye. The back of his head hit a liner. He was not knocked down or rendered unconscious. He was taken to a doctor, who sent him to a hospital. There an ophthalmologist removed his right eye and the pieces of glass. He remained in the hospital for ten days. Later he was fitted with an artificial eye.

Appellant contends that neither the stipulations nor the testimony established that appellee received a general injury in addition to the specific injury to the eye.

In answer to the special issues submitted the jury found that 'the injury' was a producing cause of the total incapacity, which began on August 30, 1967, and was permanent. They found that the incapacity was not caused solely by the loss of use of the right eye. The court instructed the jury that in determining whether or not appellee 'has sustained any disability, partial or total, as those terms have been herein defined, you are not to take into consideration the affects of Mr. Polasek's loss of vision in his right eye or base any finding on such loss of vision.' There was no definition of 'partial disability,' 'total disability,' or 'disability.' Definitions of the terms 'partial incapacity' and 'total incapacity' were included in the charge.

Appellant objected to the charge for the failure to submit an issue for the purpose of determining whether appellee had sustained an injury to a portion of his body other than the eye. While the court instructed the jury that in determining whether appellee had sustained any disability they should not consider the loss of vision, and had required appellee to establish that his incapacity was not caused solely by the loss of use of the right eye, no issue was submitted to establish the part or parts of the body injured.

Appellee alleged that he received a general injury. He also alleged an injury resulting in the loss of his right eye. Appellant has admitted loss of the right eye and has voluntarily paid the compensation provided by the Workmen's Compensation Act for such an injury. The parties did not stipulate that appellee had received a 'general injury' rather than a 'specific injury.'

The trial court did not err in failing to submit an issue to determine what part of appellee's body was injured. The purpose of the trial is to determine whether the employee sustained an accidental injury to his body in the course of his employment and the extent of the incapacity resulting therefrom. Maston v. Texas Employers' Insurance Ass'n, 331 S.W.2d 907 (Tex.1960); Employees Lloyds v. Schott, 183 S.W.2d 262 (Tex.Civ.App.--Dallas 1944, error ref.). Since accidental injury in the course of employment is stipulated, appellee's primary burden is to establish general incapacity resulting therefrom.

The stipulation dispensed with the necessity of producing evidence that appellee's scalp was lacerated or that a swelling immediately resulted, or some other such circumstances which might have shown clearly that damage or harm to the physical structure of the body resulted from the blow to his head.

There is evidence that when the window blew out pieces of glass hit appellee in or around his right eye. The pieces of glass and the right eye were removed shortly after the accident. There was no direct testimony that the blow to the back of appellee's head caused harm or damage to the physical structure of his body. Appellee testified that after the accident he was semiconscious and bleeding. He remembered going to the first aid station, the Wayside Clinic, and finally to the hospital. He did not describe his symptoms during that period of time. About six hours after the accident he was taken to surgery and thereafter remembered nothing until the next morning.

On the second or third day after surgery his left hand and two fingers began hurting and felt numb. The pain extended into his arm and felt like someone was sticking him with a pin. He had headaches which he attributed to the surgery. He had stitches in his nose and around his eye. He was in the hospital ten days. He had 'awful headaches' when he got home. His eye was draining. His hand and arm continued to hurt. Two of his fingers are still numb. He still has headaches. When he has headaches he gets dizzy and has a ringing sensation in his ears. This occurs once or more a week depending on the whether. Every time the weather changes his head swells up. He gets tired quicker now than before the accident. His condition is not improving.

In explaining the difficulties he experienced when he returned to work, appellee testified:

'Oh, it happens, you know, with one eye--like you are around something--in a real tight place you Bumb your head because you can't see and with one eye--especially you are going to have to--you are welding and you look at it one way and you can't judge the distance and say, I am drilling a hole in some metal, and I might be a half inch off where I drill my hole from where I have it center punched and I think I am far enough away from something but I just might touch it.'

He did not become tired before the injury while working an eight hour day, nor did he have headaches or trouble with his hand and arm. Nevertheless he returned to work about two and a half months after the accident. One of his fellow employees assists him with heavy work. He is a millwright and his work involves such things as moving and installing machinery, welding and running pipe, making ducts and installing them in the ceilings. He had no trouble doing this work before the accident, but has experienced difficulty in doing it since the accident. He can't sit down and rest while at work. His pay has increased from $3.71 an hour at the time of the accident to $4.17 an hour at the time of the trial. He does some overtime work, usually on Saturday.

Billy Umfried, a fellow employee of the appellee, testified that appellee was injured in the accident. He saw blood all over appellee's face. He testified that appellee was a good worker and never made any complaints about his physical condition before the accident. He was able to do high work, close work, and heavy work before the accident. He has observed that since the accident appellee 'seems to give out pretty easy.' He can't do close work. Umfried testified that he was afraid for appellee to do high work for fear of another accident. He explained that he had tried walking down the hall with one eye closed and that he 'wouldn't want to get up in a situation and walk around with one eye.' He testified that appellee is not as good a millwright as he was before the accident and in explanation of his statement testified:

'He can't weld like he used to; he can't see--he can't run no air hammer very long, he can't do no climbing--we build lots of Shoots for ink to run into out there are they are real thin and he used to be good at that but he can't build one now--it has to be real close.'

Appellee's wife testified that when she arrived at the hospital his Hand was bandaged up and his eye was bleeding--just soaking through.' When he was able to return home he was 'real upset and nervous--very timid and wouldn't even go outside and speak to the neighbors--his head was ringing and had dizziness and his hand hurted him and everything hurt him * * *' After he returned to work he had similar complaints. His condition does not seem to have improved. He appears to be...