Texas General Indemnity Company v. Hamilton, 14624

• Citation: 420 S.W.2d 735
• Decision Date: 01 November 1967
• Docket Number: No. 14624,14624
• Parties: TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Floyd HAMILTON, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 735

420 S.W.2d 735

TEXAS GENERAL INDEMNITY COMPANY, Appellant, v. Floyd HAMILTON, Appellee.

No. 14624.

Court of Civil Appeals of Texas.

San Antonio.

Nov. 1, 1967.

Clements, Knight, Weiss & Spencer, San Antonio, for appellant.

Carter, Callender, Onion & Branton, Frank C. Rodgers, (Trial Court only) San Antonio, for appellee.

BARROW, Chief Justice.

Appellee recovered judgment for total and permanent disability benefits under the Texas Workmen's Compensation Act, based upon a jury verdict. Appellant carrier has perfected this appeal wherein it asserts that this judgment should be reversed and the cause remanded for a new trial because of prejudicial statements made on two occasions by one of the attorneys for appellee, and because of the trial court's refusal to admit certain evidence to impeach appellee and his medical witness as to who referred appellee to said doctor.

Under the undisputed evidence, appellee sustained an accidental injury in the scope of his employment as a gutter for Roegelein Provision Company on February 4, 1965, when he slipped and fell on his back. The nature of the injury and extent of the disability was the principal issue in dispute in the trial court. Appellee never resumed work for Roegelein, for whom he had worked about five years prior to the accident, and was employed by another employer, doing light work, for only a few days between the accident and trial on January 9, 1967. Four medical witnesses testified and their testimony constitutes 257 of the 407 pages in the statement of facts . In addition, a lay witness corroborated appellee's complaints of back pain subsequent to the accident.

Shortly after the fall, appellee was taken to the Roegelein company doctor, Dr. Beach, for treatment. On February 15, 1965, Dr. Beach referred appellee to Dr. Williamson, a specialist in orthopedic surgery. Dr. Williamson found no evidence of nerve root involvement in appellee's back at that time and prescribed treatment by a physical therapist. Appellee continued to complain of pain in his back. He tried on one occasion, about a month after the accident, to secure light duties from Roegelein, but it had no work of this nature. Dr. Williamson examined appellee again on November 8, 1965, and at that time suspected a herniated disc on the left side at about the L--4 level. Appellee was hospitalized by Dr. Williamson from November 29 to December 6, 1965, and on December 1, a myelogram was performed to confirm this preliminary diagnosis and to specifically locate the herniated disc.

A myelogram is performed by injection of an opaque substance called 'dye' into the spinal canal with a needle, and by means of a fluoroscopic screen the various interspaces of the spine are viewed. This procedure is a widely recognized diagnostic procedure used to aid in confirming and locating a herniated disc, and the evidence shows it is from 75% To 90% Accurate. This myelogram was performed by Dr. Williamson in collaboration with Dr. Elmendorf, a radiological specialist. Each of these doctors testified on behalf of appellant that the myelogram did not demonstrate any abnormality and that the X-ray films of this procedure were essentially negative. Appellee experienced great pain during this procedure and because of his reaction some of the dye was left in his spinal canal. He testified that he even tried to pull the needle from his back. Under the record in this case, it is not unusual to leave a little dye in the canal although it can cause archnoiditis, which condition produces some symptoms similar to those caused by a herniated disc.

Dr. Price, a specialist in neurological surgery, examined appellee at the hospital on December 4, 1965, at the request of Dr. Williamson. Dr. Price testified on behalf of appellant that this neurological examination was essentially normal and that he could find no physical basis for appellee's continued complaints of back pain and limited motion in his back and legs.

Dr. Gregorio Canales, a specialist in orthopedic surgery, testified an behalf of appellant that he had examined appellee on December 17, 1965, and again on March 2, 1966. On each occasion, appellee was complaining of back pain and had a number of subjective symptoms of a herniated disc in the area of L--4, L--5 and S--1 of his spine. On March 2, 1966, these subjective findings were corroborated in part by objective findings. Dr. Canales testified that appellee was totally disabled at the time of these examinations . Insofar as permanency of this condition was concerned, Dr. Canales expressed the opinion on direct evidence that he recommended removal of the dye from appellee's spinal canal and if the symptoms persisted, he would suspect a herniated disc and recommend exploratory surgery. His direct testimony clearly recommended removal of the dye and any subsequent opinion would have to be based on appellee's condition after this was accomplished.

On cross-examination he testified that he made such a recommendation to appellee and hospitalized him for that purpose on March 30, 1966. However, just prior to commencing the procedure, appellee refused to permit Dr. Canales to insert the needle and the procedure was cancelled. Dr. Canales had not seen appellee since this occurrence.

On redirect examination, appellee's attorney inquired as to the cost of surgery and after appellant objected to the materiality of such question, appellee's attorney stated in the presence of the jury that appellant had injected this issue into the case despite appellee's motion in limine to prohibit appellant from showing benefits of surgery. Appellee's attorney...