Texas General Indem. Co. v. Glover, 8567

• Decision Date: 31 December 1980
• Docket Number: No. 8567,8567
• Citation: 612 S.W.2d 622
• Parties: TEXAS GENERAL INDEMNITY CO., Appellant, v. James L. GLOVER, Appellee.
• Court: Texas Court of Appeals

Page 622

612 S.W.2d 622

TEXAS GENERAL INDEMNITY CO., Appellant, v. James L. GLOVER, Appellee.

No. 8567.

Court of Civil Appeals of Texas, Beaumont.

Dec. 31, 1980.

Rehearing Denied Feb. 26, 1981.

James J. Zeleskey, Lufkin, for appellant.

George Chandler, Lufkin, for appellee.

KEITH, Justice.

Defendant below appeals from an adverse judgment entered after a jury trial of a claim for worker's compensation benefits. Plaintiff below suffered a broken bone in his left ring finger in an on-the-job accident while working for Louisiana Pacific Corporation.

The jury found that such injury resulted in the total and permanent loss of use of the ring finger; that the injury extended to and affected the middle finger, the little finger, and the left hand resulting in the total and permanent loss of use of each of such members.

Defendant has appealed assigning forty-one points of error, most of which attack the legal and factual sufficiency of the evidence to support a recovery of more than the total and permanent loss of use of the ring finger on the left hand. We commend diligent counsel for presenting this massed attack in the form of two relatively short arguments.

The first attack proceeds upon the premise that the only specific injury was the broken bone in the ring finger on the left hand; consequently, it is argued that there was no evidence or insufficient evidence to support the jury findings that the injury extended to and affected any other specific member. ^*

A subsidiary claim is that the findings are contrary to the great weight and preponderance of the evidence. We will follow the usual rules in addressing the points challenging the legal and factual sufficiency of the evidence. See, e. g., Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

Plaintiff testified that while he lost only about three weeks from his job when he was hurt, that he does not have any "grip" in his left hand because it is weak; that he has extreme pain in his hand during cold weather; that while he can drive a truck, he has difficulty doing even that. We note in passing that he obtained a new job with another employer after his injury and has been able to discharge his duties as a truck driver for the new employer.

Dr. Ronald Corley, the orthopedic surgeon who operated upon the ligament in the injured ring finger, testified that the weakness in plaintiff's left hand was attributable to the injury to the finger and the weakness in the hand would be permanent; that in his opinion the injury to the ring finger extended to the hand resulting in his inability to engage in strong gripping with his left hand.

The original treating doctor, Frank Eddins, testified that the injury to the ring finger actually involved two tendons which served all four fingers on the left hand that the nerve supplies and muscles of the hand are so interrelated that the injury affects the other fingers; that the injury extended to and affected the functions of the other fingers and the hand itself.

Garland Picou, a physical therapist engaged in rehabilitative treatment of injured persons, testified that an injury to the tendon of the ring finger resulted in damage to the whole hand; that the injury caused inability of the plaintiff to perform such work tasks as lifting, pulling, climbing, gripping, or grasping objects.

Although defendant engaged in extensive cross-examination of the witnesses, the essential details were not changed thereby. Defendant did not offer medical testimony refuting that offered by the plaintiff.

The jury was instructed properly on the law relating to the extension of an injury to a specific member of the body to another member. See American Motorists Ins. Co. v. McMullen, 598 S.W.2d 386 (Tex.Civ.App. Beaumont 1980, no writ), wherein we quoted the instruction suggested in 2 Texas Pattern Jury Charges, § 26.26, at 169 (1970). Thus, plaintiff secured jury findings supporting his right to recover the benefits for the extension under the rationale of Travelers Ins. Co. v. Marmolejo, 383 S.W.2d 380, 382 (Tex.1964).

Defendant also calls our attention to Texas Employers' Insurance Ass'n v. Espinosa, 367 S.W.2d 667, 669 (Tex.1963), enunciating the now well-established rule that mere proof of pain is insufficient to show an extension of a specific injury.

The third case relied upon by defendant in support of assault upon the factual base of the jury verdict is Gallegos v. Truck Ins. Exchange, 546 S.W.2d 667, 669-670 (Tex.Civ.App. San Antonio 1977, writ ref'd n.r.e.), discussing and following Espinosa, supra.

Espinosa and other cases were discussed and harmonized in Western Cas. & Sur. Co. v. Gonzales, 518 S.W.2d 524, 525-526 (Tex.1975). Indeed, the rules governing the dispute we now review are firmly established, and the parties do not differ thereon. As might be expected, the difference is in the evaluation of the weight and legal effect of the testimony offered at the trial.

The courts of Texas have long been plagued with the problem of evaluating incapacity in claims for worker's compensation when the employee has procured and retained other employment. As this court said in Transport Ins. Co. v. Kennon, 485 S.W.2d 598, 600 (Tex.Civ.App. Beaumont 1972, writ ref'd n.r.e.), citing many cases:

"It is not possible to reconcile all of the decisions of the Court of Civil Appeals passing upon the sufficiency and great weight questions arising as to total and permanent disability findings in...