Dickey v. Travelers Insurance Co.

356 S.W.2d 156, 1962 Tex. App. LEXIS 2342
CourtCourt of Appeals of Texas
DecidedMarch 29, 1962
DocketNo. 13903
StatusPublished
Cited by6 cases

This text of 356 S.W.2d 156 (Dickey v. Travelers Insurance Co.) 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
Dickey v. Travelers Insurance Co., 356 S.W.2d 156, 1962 Tex. App. LEXIS 2342 (Tex. Ct. App. 1962).

Opinion

COLEMAN, Justice.

This is a Workmen’s Compensation Insurance case.

Appellant recovered a judgment for eleven days total disability and 216 weeks temporary partial disability. On computation the jury’s award amounted to $532.55.

Appellant contends that this award was totally inadequate and manifestly unjust and inequitable considering his injuries and the extent of his incapacity to labor. He also contends that the answer made by the jury to the issue inquiring as to his wage earning capacity while temporarily disabled was contrary to the great preponderance of' the evidence.

Appellant has been in the employ of Rath Packing Company for about twelve years, and at the time of the injury made the basis of this suit was working as a meat grinder. This involved lifting heavy chunks of frozen meat with a shovel. Immediately after the injury to his back, he was seen by his supervisor in a stooped-over position. Appellant reported an injury to his back, but finished the day’s work. The next day he went to Dr. Young, who, after treating him for some time, sent him to Dr. Palm where he was examined, x-rayed and treated by conservative methods. While being treated by Dr. Young [157]*157and Dr. Palm, appellant continued working except for the first eleven days. He was on light duty for about one month and then went back to his regular job for a month or a month and a half, when at his own request he was returned to light duty. He continued to work for the company and, according to the testimony of his supervisor, his job in the reduced classification of laborer is secure. He did not do all of the work usually required of men classified as laborers. His supervisor testified that he did his work well, though he was a little slow even before the injury. While working as a grinder after the injury complained of, he had some falls and was involved in an automobile accident but he denied that these incidents adversely affected his condition. Appellant testified that he had suffered pain ever since the accident and that it had not gotten better. His supervisor, Mr. Cordes, testified that appellant was not a “complainer” and was a conscientious worker. He testified that appellant had told him that his back was not exactly the way it was before the accident. He further testified that appellant could not stay in the cooler for long periods without complaint. He testified concerning the work appellant was doing as a laborer and that it was work that would cause back pain in a man not used to it.

Dr. Young testified that when he first examined appellant he was of the opinion that he had a mild lumbo sacral strain, which produced little or no pain, and that when he released him for regular work after about two months he found no physical reason why appellant couldn’t do his regular work and that he found no symptoms whatever of a ruptured disc, but he advised appellant not to do anything foolish like trying to “juggle a big, heavy thing up on your shoulders.”

Dr. Palm testified that appellant’s physical findings were not consistent and that some definitely were not anatomical; that since he would not admit to any improvement in his condition from .rest, light duty or being relieved from work in the cold storage vaults, which, he complained, aggravated his condition, he saw no point in continuing treatments. He testified that while there was room for error, he did not believe it possible that appellant had any ruptured intervertebral discs.

Dr. Donovan testified that he examined appellant some nine months after the accident and found nothing wrong with his back and no condition that could be producing any pain; that if he had sustained an injury, it had completely cleared up at the time he saw him.

About thirteen months after the accident appellant went to Dr. Markewich, who, on examination, found slight muscle spasm, slightly limited motion and some tenderness, but found no evidence of nerve pressure, sensory or reflex changes. On a subsequent examination a week later he found slight evidence of radiating pain with probability of some nerve irritation. About two weeks later he found muscle spasm, limited motion of back, tenderness, evidence of nerve root pressure or irritation, and some evidence of sensory change. He sent appellant to Dr. Tyner for a myelogram. Dr. Tyner testified that this test demonstrated large protrusions at discs three and four. Both Dr. Tyner and Dr. Markewich gave a diagnosis of herniations at the third and fourth discs. Dr. Donovan testified after looking at the myelographic films that it was possible that they showed protrusions and that considering the myelograms together with his clinical findings, he would not be able to .reach a diagnosis because his clinical findings revealed nothing to indicate disc pathology in the back.

While appellant and his wife testified that he suffered pain and he complained to the doctors about pain, he received only one prescription for medication and one refill. James Forrester, a fellow employee, testified that at times he looked like he felt bad, but that he would not ask for help and didn’t go home.

The testimony shows that he has been able to do the work assigned him and has [158]*158been paid $90.50 per week, the regular rate for laborers, since he dropped back to that classification. Appellant’s position at the trial was that he was totally and permanently disabled under the terms of the Workmen’s Compensation Act and he introduced no testimony concerning occupations or jobs which he might be able to secure or the wages ordinarily paid in any job other than in the two classifications at which he had worked at Rath Packing Company. His wage rate as a grinder was stipulated to be $94.15 per week.

Appellant does not complain of that part of the jury’s verdict finding that his incapacity was partial and that its duration was 216 weeks. The amount of the judgment was correctly determined by a mathematical calculation from the answers to the special issues, only one of which is attacked.

The point complaining that the judgment was inadequate, unjust, and inequitable is too general to point out any specific error in a case arising under the Workmen’s Compensation Act. The scope of this point is defined by the statement and argument under the point in appellant’s brief. An award made by the court as required by the applicable law cannot be said inadequate, unjust or inequitable. Saldana v. Garcia, 155 Tex. 242, 285 S.W.2d 197; Miguez v. Miguez, Tex.Civ.App., 221 S.W.2d 293; Insurance Investment Corp. v. Hargrove, Inc., Tex.Civ.App., 179 S.W.2d 383; Musick v. Pogue, Tex.Civ.App., 330 S.W.2d 696.

The tests to be applied in considering assignments of error relating to the preponderance of the evidence have been considered by this Court frequently (Continental Bus System, Inc. v. Biggers, Tex.Civ.App., 322 S.W.2d 1, ref., n. r. e.; Bardwell v. Anderson, Tex.Civ.App., 325 S.W.2d 929, ref., n. r. e.; Donnell v. Acker, Tex.Civ.App., 343 S.W.2d 718), and will be applied in this case.

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Bluebook (online)
356 S.W.2d 156, 1962 Tex. App. LEXIS 2342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dickey-v-travelers-insurance-co-texapp-1962.