Texas Employers' Insurance Association v. Chappell

• Decision Date: 26 October 1972
• Docket Number: No. 712,712
• Citation: 486 S.W.2d 818
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Arthur R. CHAPPELL, Appellee.
• Court: Texas Court of Appeals

Page 818

486 S.W.2d 818

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Arthur R. CHAPPELL, Appellee.

No. 712.

Court of Civil Appeals of Texas Corpus Christi.

Oct. 26, 1972.

Rehearing Denied Nov. 30, 1972.

Dyer, Redford, Burnett, Wray, Woolsey & Dunham, James W. Wray, Jr., Corpus Christi, for appellant.

Edwards & DeAnda, William R. Edwards, Philip Maxwell, Corpus Christi, for appellee.

OPINION

BISSETT, Justice.

This is a workmen's compensation case. The jury, among other findings, found that the plaintiff, Arthur R. Chappell, hereinafter called appellee, was totally and permanently disabled as a result of an injury sustained by him on November 29, 1962, that such total incapacity commenced on May 23, 1963, that the injury suffered by him on November 29, 1962 was a producing cause of such incapacity, that the injury of June 11, 1969 did not contribute to such incapacity, and that the reasonable costs of medical services reasonably required by him in the treatment of his injury, and not theretofore paid by Texas Employers' Insurance Association, were $3,726.75. Judgment allowing a recovery of $19,082.52 ($15,355.77 lump sum for compensation benefits from November 29, 1962 to October 10, 1971 and $3,726.75 for medical services that accrued subsequent to June 11, 1969) was rendered on the verdict. We affirm.

Texas Employers' Insurance Association, hereinafter sometimes called appellant and sometimes called 'TEIA', in its first two points, challenges the jury findings that the appellee was totally disabled. Complaint is made that such findings are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust. We, therefore, review all the evidence in the record.

Appellee was employed by United Carbon Company (later known as Ashland Oil and Chemical Company) in March, 1944 as a 'black puller'. His duties required pulling carbon black from a spout lever into sacks, stacking these sacks on a buggy, and pulling the buggy to the warehouse. The job involved heavy lifting and climbing. He held this job until sometime in 1955, when he injured his leg.

Appellee was unable to work for about a year following his 1955 leg injury. When he did return to work it was for the same employer, United Carbon Company. He did not return to the 'black puller' work he had been doing previous to his leg injury, but was assigned to work in the bathhouse, which work did not require heavy lifting or climbing. This work involved mopping floors, carrying bags of soiled work clothes from the employees' lockers to the laundry in the bathhouse, laundering the clothes, and performing other services in the bathhouse of a janitorial nature. Such duty was considered by his employer to be light duty and was assigned to 'people that can't perform all the duties required in the rest of the plant'. He worked at this job a steady eight hours per day, ten days on and four days off.

On November 29, 1962, appellee, while working in the bathhouse, slipped and fell, hitting his head and shoulder on the side of a door as he went down. He was first treated by Dr. Draper, the company doctor and his family doctor. Dr. Draper sent him to the hospital and called in Dr. Upshaw an orthopedic surgeon, who concluded that appellee had sustained a lumbosacral intervertebral protrusion and an acute cervical strain. Dr. Upshaw operated to remove the protruding disc and to fuse the spine from the fourth lumbar to the sacral.

Appellee returned to his job on May 23, 1963, where he worked steadily until June 11, 1969. He testified that while reaching over to pick up some laundry, he experienced extreme pain from his back to the top of his head. He was hospitalized and Dr. Wilk, an orthopedic surgeon, diagnosed a ruptured disc in his neck. A neck fusion operation was performed. It was not successful. Appellee did not return to work after June 11, 1969.

Appellee was illiterate in that he could not read or write, although he could sign his name. He testified that upon his return to work in May, 1963 for the same employer and while he performed the same duties in the bathhouse that he had previously performed, he suffered pain all the time in his 'head, neck, shoulder and arms'. He took aspirin 'all the time'. When he went home from work, he would take a hot bath and go straight to bed, because 'I was give out'. He had trouble getting out of bed in the mornings because of 'muscle spasms' in his back and left leg. When asked about his problems in performing his duties, he replied: 'I just hurt sometime and I would have to lay down on a bench awhile', and 'I didn't have any grip in my hand. Shoulder and head hurt all the time'. He was asked: 'Did you have anything like that before you fell in 1962?'; he answered: 'No, sir'. Appellee stated that he did not know how to do any work that did not require the use of his back and arms. He further testified that he really did not feel like going back to work after his 1962 injury and that he should have consulted his doctor about his continuing difficulties, but that he had to work as there was no way for him to support himself and his family on $35.00 per week because of his wife's health. Appellee's wife was not employed outside the home and had psychiatric problems that caused her to enter the hospital about once a year. Her condition, however, was not of any great concern to appellee.

Mr. Pitts, appellee's supervisor, testified that he did not note any difference in the way or manner that appellee performed his duties after the 1962 injury from his performance before that incident. However, he did not see appellee but once every week or so when he made periodic checks of the bathhouse. He did not know of appellee's problems, but he did say that if appellee had not been working for Ashland Chemical at the time of his injury in 1962 that he would not have been hired to work in the bathhouse following his back operation in 1963. He also testified that his company did not, as a general rule, hire anyone over thirty. Appellee was about fifty-two years of age in 1963.

Dr. Upshaw testified (a) that in April, 1963, appellee was still complaining of pain in his neck and on into his left shoulder; (b) the cervical strain he (Dr. Upshaw) diagnosed in 1962 could be a 'contributing cause' to appellee's present incapacity, although he diagnosed degenerative arthritis in appellee's neck upon examination of x-rays that were taken subsequent to June 11, 1969; (c) an injury to the neck can cause pain in the shoulder; (d) the mere fact that a man uses his neck in his work does not mean that it does not hurt him; (e) appellee had a certain 'residual', 'persistent' and 'permanent' disability caused by his lower back condition, limited motion because of the fused joints, and muscular weakness in the low back region; (f) that the limited motion in the low back caused by the fusion increased the stress and degeneration of the spine above the fusion; and (g) that from a medical standpoint it would be better for a man with a lumbosacral fusion and an acute cervical strain not to perform any work involving repetitive lifting, stooping, or twisting. He further testified that a number of companies would not hire a man in appellee's physical condition as it existed in April, 1963, when he cleared appellee as being able to go back to work. He concluded that in view of appellee's complaints and of his (Dr. Upshaw's) objective findings, that appellee's consideration of retirement following the 1969 injury was probably a good one.

Dr. Wilk stated that appellee did not give him a history of any neck problem when he first examined him following the 1969 injury, nor did he complain of soreness in his neck during the initial examination. The x-rays of October, 1969 showed a degeneration in the neck spinal area, which, according to Dr. Wilk, could have been caused by either an injury or by old age. Appellee was referred to Dr. Norstrum who performed a spina myelogram which revealed external pressure on the spinal canal. Dr. Wilk further testified (a) that plaintiff's low back problems probably began in 1962 when he was injured; (b) that the back condition was probably 'reexacerbated' by the 1969 injury, although the 1962 injury was the most important factor contributing to this condition; (c) that there was nothing in the history given him by appellee to indicate that the 1969 injury contributed in any way to the condition in which he found appellee's neck in October, 1969; and (d) that assuming a diagnosis of acute cervical strain in 1962, that this condition could have contributed to the neck condition in 1969. He described the neck fusion operated as a failure, said that appellee was permanently disabled from doing most anything, and, further, that there was nothing more that he could do to help him.

In a workmen's compensation case, the rule seems to be that where it can reasonably be inferred from the evidence that the claimant's injuries are permanent and totally disable him from performing his usual task as a workman in such a way as to enable him to obtain and retain employment, a verdict in his favor on the issue of total and permanent disability will be affirmed. Texas Employers' Ins. Assn. v. Mallard, 143 Tex. 77, 182 S.W.2d 1000 1944); Traders & General Ins. Co. v. Daniel, 131 S.W.2d 276 (Tex.Civ.App.--El Paso 1939, writ dism'd, judg. corr.); Liberty Mutual Insurance Company v. Parrish, 469 S.W.2d 620 (Tex.Civ.App.--Waco 1971, n.w.h.); Texas Employers Insurance Association v. Smith, 374 S.W.2d 287 (Tex.Civ.App.--Beaumont 1963, n.w.h.).

Any doubt as to whether the evidence supports the jury finding of total and permanent disability must be resolved in favor of the injured workman. Bailey v. American General Insurance Company, 154 Tex. 430, 279 S.W.2d 315, 318 (1955); Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73 (1953).

Appellant, in support of its position, relies heavily...