Commercial Insurance Co. of Newark, NJ v. Wright

457 S.W.2d 141, 1970 Tex. App. LEXIS 2435
CourtCourt of Appeals of Texas
DecidedJune 23, 1970
Docket7977
StatusPublished

This text of 457 S.W.2d 141 (Commercial Insurance Co. of Newark, NJ v. Wright) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commercial Insurance Co. of Newark, NJ v. Wright, 457 S.W.2d 141, 1970 Tex. App. LEXIS 2435 (Tex. Ct. App. 1970).

Opinion

DAVIS, Justice.

A Workmen’s Compensation case. Ap-pellee fell from a jeep vehicle on May 27, 1966, while in the course of his employment at Trans-Texas Airways in Dallas, Texas, landing or falling on concrete, or black asphalt, striking the same with his left wrist, forearm and elbow. Appellee did not see a doctor that day. The next day, he went to see the company physician, Dr. George Launey. A history of the injury was given to Dr. Launey. The heel of his left hand was skinned, there was a swelling inside his left arm about two inches above his watch band, his left wrist was sprained and swollen and there was an undisplaced fracture at the head of the radius of the left elbow. The fracture was discovered by x-ray. The fracture was treated with a binder and his left arm was put in a sling. He was given heat treatment and physical therapy. Dr. Launey *142 testified that: “There was an object or prominence in front of his wrist above the wrist joint”. This was noticed the next day after the injury. Appellee was complaining of the swelling in his left wrist.

There had never been any pain or swelling of appellee’s left arm at any time prior to the injury.

The history appellee gave Dr. Launey was that he was unable to flex or straighten his left elbow because of pain. Dr. Launey testified in reply to a question about “bruising or abrasions” as follows:

“A. Well, this was in 1966. I have no note in my notes that there was an abrasion, but there was swelling and tenderness, and he couldn’t move his elbow”.

Appellee returned to work in about three weeks, but his left arm continued to be painful. On April 24, 1967, the pain in his left elbow, the swelling in his arm and wrist became so severe that he had to return to Dr. Launey. At that time he gave Dr. Launey the following history according to the Statement of Facts:

“Q. Will you read to the jury the first two paragraphs, please sir ?
A. The above thirty year old, white male reported today, April 24, 1967 for an examination and opinion with particular reference to pain in his left elbow and wrist, which he alleged has been present since an injury to his left elbow received May 27, 1966.
Q. Let me ask you one question about that, Doctor, if I interpret that correctly, does that mean that he complained to you, or told you at any rate, that since May 1966 and up until April 24, 1967, he had had pain in this left elbow and wrist ?
A. Yes, that’s right.
* * ⅜ «- ⅜ *
Q. Now, I’ll ask you to go to the bottom of the page on ‘Interval History’, will you kindly read that paragraph, please.
A. The patient states that off and on since this time he has had an aching pain in his left elbow and left wrist. This is not present at all times, but at times keeps him awake at night. He also states that the swelling has been present in the front side of the left forearm, just above the wrist joint.
Q. Now, you’re talking here about from the time of the accident up until the time you saw him again on April the 24th, (1967), are you not, Doctor?
A. That’s right.”
Dr. Launey further testified:
“Q. Now, you have indicated that there was a bruise there; does that indicate that maybe he might have also struck it ? (meaning the wrist)
A. It could have been just a bad sprain along with the fracture trauma.” (Emphasis added.)

Appellee was referred to Dr. Marvin Knight, an orthopedic surgeon who specializes in the treatment of the skeletal system, muscles, ligaments, nerves, and blood vessels pertaining thereto. He testified:

“Q. Do you consider yourself qualified insofar as the treatment and diagnosis of cancer with regards to these structures of the body is concerned ?
A. No, sir, because I don’t know anybody is.”

Dr. Knight did a biopsy on the swelling area and discovered that it was a malignant cancerous trauma. He then amputated his left arm just above the elbow because of the malignant trauma. The tumor was classified as Rhabdomyosarcoma cancer of the skeletal muscle.

The appellant denied that the injury that occurred during the course of his employment was the cause of the cancer, or the trauma, and did not severely aggravate a *143 dormant existing condition that caused the appellee to lose his left arm.

The case was tried before a jury. There was only one Special Issue submitted:

“Do you find from a preponderance of the evidence that the plaintiff’s injury on May 27, 1966, was a producing cause of the loss of plaintiff’s left arm in May of 1967?”

The jury answered the special issue “yes”. Judgment was entered in favor of appellee. Appellant has perfected its appeal and brings forward five points of error.

Appellant’s points of error are multifarious and contain some statements of fact; but, we can construe the meaning of the points of error. They could be amended. Rule 431 Vernon’s Ann.Tex.Rules of Civil Procedure. Actually, the points of error contend that the trial court erred in: (1) there is no competent expert medical testimony to support the jury’s finding in answer to the special issue; (2) there was no expert medical testimony of a reasonable medical probability of a causal connection between the injury and the cancer; (3) the evidence failed to establish two of the seven criteria necessary to show a probable causal connection between trauma and cancer; (4) the evidence was insufficient to show a probative value to support the jury’s finding that the injury on May 27, 1966, was a producing cause of the loss of the left arm in May 1967; and (5) the jury’s answer is against the great weight and preponderance of the evidence to be manifestly wrong and unjust.

By points of error, appellant says in the first two points that there is no expert evidence to support the jury’s findings and no expert medical evidence that there was a reasonable medical probability of a causal connection between the injury and the cancer. We must consider the evidence in the light most favorable to the jury’s findings. The law is so clear on that that it is not necessary to cite authority. As pointed out in the foregoing history, appellee fell off of a jeep vehicle, landed on his left side either on concrete or black asphalt. He could not fully explain the way he fell but he described his injuries that the heel of his hand was skinned, the left wrist was sprained and it jammed his left arm into his elbow and fractured the head of the radius. He did not see a doctor that day. The fall occurred about three o’clock in the afternoon. He went to see the company doctor the next day. The next morning there was swelling in his elbow, a knot was protruding on the inside (belly) of his left arm about two or three inches above his watch band. His left wrist was swelling and he could not flex his left elbow. He further testified that Dr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Insurance Company of North America v. Myers
411 S.W.2d 710 (Texas Supreme Court, 1966)
Aetna Casualty & Surety Company v. Scruggs
413 S.W.2d 416 (Court of Appeals of Texas, 1967)
Insurance Company of North America v. Kneten
440 S.W.2d 52 (Texas Supreme Court, 1969)
Texas Employers' Insurance Ass'n v. Steadman
415 S.W.2d 211 (Court of Appeals of Texas, 1967)

Cite This Page — Counsel Stack

Bluebook (online)
457 S.W.2d 141, 1970 Tex. App. LEXIS 2435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commercial-insurance-co-of-newark-nj-v-wright-texapp-1970.