Fidelity & Casualty Company of New York v. Burrows

404 S.W.2d 353, 1966 Tex. App. LEXIS 2116

• Court: Court of Appeals of Texas
• Decided: May 25, 1966
• Docket: 14466
• Status: Published

Opinions

MURRAY, Chief Justice.

This is a Workmen’s Compensation case. Joseph E. Burrows is the claimant, Braniff Airways, Inc., is the employer, and The Fidelity & Casualty Company of New York is the insurance carrier. The trial was to a jury and resulted in findings of total and permanent incapacity, and a lump sum judgment in favor of Joseph E. Burrows, from which the insurance carrier has prosecuted this appeal.

Appellee was employed by Braniff Airways, Inc., as a cargo serviceman. His duties consisted of loading and unloading airplanes. On April 1, 1964, he and other employees of Braniff were unloading a piece of freight weighing about 700 pounds when he twisted and injured his back. His supervisor sent him to the hospital where he was confined until Saturday, April 4 under the care of a Dr. Nixon. After the doctor examined Burrows in his office on Monday, April 6, the doctor told him he was all right and could go back to work the next day. He tried it for one day but had too much pain in his back, so the next day he went to his family doctor, E. P. McCabe. Under Dr. McCabe, Burrows remained off work until June 1, 1964, at which time he returned to his job wearing a corset, which he has worn ever since. He worked steadily until about June 1, 1965, one week before this trial began, with the exception of three days around October 23, 1964.

Dr. McCabe testified that he was a general practitioner; that he first examined appellee on April 8, 1964, and examined and treated him from then on until July 8, 1964, when he released him from further treatment. On May 22, 1964, he told appellee that he could go back to work; that he should wear a corset and do only light work. He saw appellee again on July 8, and appel-lee told the doctor his back was feeling a great deal better. The doctor saw him again on October 9, 1964, and he told the doctor that with the coming of cool weather he had more stiffness and pain when he exercised. On October 23, appellee returned to the doctor and told him he had another accident and reinjured his back unloading a plane that day or “last Thursday,” the doctor was not sure which date. Upon examination the doctor found tenderness and spasm on the right side of the lumbosacral part of the back, whereas on April 8 he had them on the left side of his back. On his initial examination he diagnosed the injury as a low back strain and treated appellee accordingly. During the course of his treatment he arrived at the diagnosis of a herniated or protruded intervertebral disc between the fifth lumbar vertebra and the first sacral vertebra.

The jury found in answer to special issues Nos. 1, 2, 3, 4 and 5, in effect, that appellee sustained an injury on April 1, 1964, while working for Braniff Airways, which caused or contributed to cause incapacity to work beginning April 1, 1964, which incapacity was total and permanent.

The evidence set out above is some evidence to support these jury findings.

Appellant contends that the jury findings were so against the overwhelming weight and preponderance of the evidence as to be clearly wrong. This contention requires that we consider all of the evidence.

Doctor Newsom Stool, an orthopedic surgeon called by appellant testified that he examined appellee on two occasions, April 17, 1964, and May 3, 1965. The examinations included the review of X-rays taken in September, 1963, April, 1964, and May, 1965. They also included neurological examinations. His diagnosis after the examination in April was low back strain. After his examination in May, 1965, his diagnosis was low back pain without objective damage; meaning no disease or injury or lack of function that he could determine by examination or X-ray. After his examination of May 3, he was of the opinion that appellee could perform the usual tasks of a working man. He was also of the opinion that appellee did not have a protruding or herniated intervertebral disc. On May 2, 1965, Dr. Stool wrote a letter for appellee in connection with his military duty or reserve training. This letter was addressed “To Whom It May Concern” and stated, in effect, that on April 17, 1964, there were signs and symptoms of a subsiding lumbosacral strain, that all factors pointed to a temporary condition which should subside spontaneously without permanent impairment and he believed that appellee would be able to perform manual labor or military duty as soon as the present episode subsided. Dr. McCabe had appellee examined by Dr. Heifer after the October, 1964, incident. Dr. Heifer did not testify, however, the treatment he prescribed was that which Dr. McCabe had previously prescribed for treatment of a low back strain.

The evidence shows that appellee had a splendid work record with almost no loss of time from June 1, 1964, until June 1, 1965, one week before the trial. He worked at the same job as before his injury. He actually made more money than before the injury, due to a general increase in wages. It is true that two of his fellow workers testified they carried him on the job by taking the heavier packages and leaving him the light ones. Moving pictures were taken and shown of him at work with no apparent handicap. His immediate supervisor did not notice anything wrong with his work. Appellee was a single man, living with his parents. There is no evidence of hardship which would compel him to work in spite of incapacity. In fact, in March, 1965, appellee and his mother took a ten to twelve-day vacation trip to New York and Washington.

We feel that the jury’s finding that appellee was totally and permanently incapacitated due to his injury of April 1, 1964, is so against the great weight and preponderance of the evidence as to be clearly wrong.

The court correctly defined total and permanent incapacity as follows:

“The term, ‘total incapacity,’ as used in this charge, does not mean an absolute inability to do any kind of work, but means one must be so disabled that he cannot perform the usual tasks of a workman to the extent that he can obtain and retain employment.”

It would be wrong to say that appellee cannot obtain and retain employment when he has been doing so since June 1, 1964. It is difficult to find any two cases that are exactly the same, and quite often each workman’s compensation case must be decided upon its own peculiar facts, but the following authorities are very persuasive here. Texas General Indemnity Co. v. Hernandez, Tex.Civ.App., 388 S.W.2d 334; Texas Emp. Ins. Ass’n v. Moran, Tex.Civ.App., 261 S.W.2d 855.

The jury found in answer to Questions Nos. 16 and 17, in effect, that appel-lee’s present incapacity is caused 100% by his injury of October 23, 1964. This finding is also so against the overwhelming weight and preponderance of the evidence as to be clearly wrong. Inasmuch as the judgment must be reversed as pointed out above, we will not discuss this matter further.

The judgment is reversed and the cause remanded.