Ideal Mutual Insurance Co. v. Sullivan

678 S.W.2d 98
CourtCourt of Appeals of Texas
DecidedMay 9, 1984
Docket08-82-00352-CV
StatusPublished
Cited by6 cases

This text of 678 S.W.2d 98 (Ideal Mutual Insurance Co. v. Sullivan) 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
Ideal Mutual Insurance Co. v. Sullivan, 678 S.W.2d 98 (Tex. Ct. App. 1984).

Opinions

OPINION

OSBORN, Justice.

Based upon jury findings of total and permanent incapacity, judgment was entered awarding Celia Sullivan maximum benefits under the Worker’s Compensation Act. We affirm.

This is an unusual case in that the claimant, Mrs. Sullivan, who was present during the trial of this case, did not testify either in person or by deposition. The only witness to her fall in August, 1980, Jesus Rodriguez, testified by deposition and said: “I saw her when she fell. I don’t know whether she sustained an injury.” She continued to work, but three days later went to see Dr. Mario Palafox. His examination revealed some tenderness of the patient’s neck and complaints of pain in her neck, back, left shoulder and wrist and severe headaches. Basically, his neurologic and x-ray examinations were within normal limits. He found no muscle spasm and his testing for nerve damage revealed none. He concluded that she had a sprain of the wrist, a tear of the rotator cuff in the left shoulder and a discogenic syndrome. He continued to see her for well over a year. He concluded that she had a twenty percent permanent disability of the body as a whole. She was never hospitalized and never received any physical therapy. Although she had worked at Sun Towers Hospital for about eleven years prior to [100]*100the accident, she had a very limited and menial work record after this accident.

In the first and second points of error, it is asserted that the trial court erred in refusing to submit Appellant’s requested issues regarding injury and course of employment, and that the issue as submitted was a comment on the weight of the evidence. The compensation carrier in its answer denied that Mrs. Sullivan sustained any injury in her fall and it attempted to show that all of her physical problems were related to serious injuries which she received in an automobile accident in 1977. At the conclusion of the evidence, the insurance company requested special issues inquiring whether Mrs. Sullivan received an injury on August 9, 1980, and whether she was injured in the course of her employment. The trial court denied both issues, and by the first special issue inquired if the injury of August 9, 1980, was a producing cause of any total incapacity. The jury answered “yes” and found the duration of the total incapacity was “[p]er-manent.”

The Appellee argues that the Appellant agreed at the pretrial conference that “injury” and “scope of employment” would not be contested issues upon the trial of the case. Appellant asserts that it was agreed only that it would not contest the fall. When the two requested issues were presented to the trial judge at the conclusion of the evidence, he initially ruled that it was stated at the pretrial hearing that these issues would not be raised. After further consideration, the judge said he would submit the two issues. He later changed his mind and refused the issues.

The trial court entered an extensive Order for Pre-Trial Conference which concluded: “[u]pon satisfactory completion of Pre-trial Conference, Court will enter such orders as the case may require for trial or further procedures as indicated.” But, the problem for this Court is that no pretrial order was ever entered to reflect what issues were settled at the pretrial conference. Rule 11, Tex.R.Civ.P., requires agreements be in writing or entered of record. Where there has been no compliance with the rule, any agreement, even if made, is unenforceable. Texas Electric Service Company v. Yater, 494 S.W.2d 271 (Tex.Civ.App.—El Paso 1973, writ ref'd n.r. e.).

In a compensation case, it is necessary that the claimant obtain jury findings of an injury which was sustained in the course of employment in order to recover for any incapacity sustained. In this case, there is no finding on either issue and in the first issue the court actually submitted, it in effect advised the jury that there was an injury on August 9, 1980. In the Appellant’s proposed charge as submitted at the pretrial conference, it was requested that the court assume an injury was received by the claimant while in the course of her employment when inquiring about “producing cause.” By such request, the Appellant requested the court to submit the issue of producing cause without first submitting issues on “injury” and “course of employment.” That is what the trial court did. A party has no right to complain of error which he has invited. Flores v. Texas Employers Insurance Association, 515 S.W.2d 938 (Tex.Civ.App.—El Paso 1974, no writ). Points of Error Nos. One and Two are overruled.

The Appellant complains in Point of Error No. Three that the trial court erred in admitting into evidence over its objection the recorded diagnosis of Dr. Palafox in the medical records which the Appellee offered. Plaintiff’s Exhibit No. 1 consists of eighteen reports written by Dr. Palafox to Underwriters Adjusting Company over a period of eighteen months. Each was written on the day the doctor examined Mrs. Sullivan and they were from one to three and one-half pages long, setting forth his findings on physical, neurologic and x-ray examination. After his first examination on August 12, 1980, he wrote:

A diagnosis of sprain of the left wrist; tear of the rotator cuff, left shoulder, mild; post-traumatic headaches; post-traumatic cervical, thoracic and lumbo-sacral discogenic syndrome was made. [101]*101The patient is being treated conservatively. She will be followed in my office. I anticipate eventual full recovery. She was asked to remain off work for a period of four days. She will be re-evaluated at that time and a determination will be made as to her ability to return to work.

By the end of the year, he wrote that she should attempt to return to work on January 8 or 9, 1981. On April 3, 1981, he reported:

In my opinion, this patient continues to have persistent post traumatic cervical, thoracic and lumbar discogenic syndrome and that the patient will retain a temporary partial impairment of about 20% of the body as a whole. I believe that the patient is capable of performing light duty work, but I do concur with her, that she is unable to return to the type of work she was previously doing. She will require at least another year or two of conservative management with symptomatic treatment before her symptomolo-gy will subside.

On October 2, 1981, he wrote:

Diagnoses of persistent post-traumatic chronic arthralgia of the left shoulder; post-traumatic chronic cervical, thoracic and lumbosacral discogenic syndrome (ruptured disc syndrome) were made.
In my opinion, this patient will retain a 20% permanent disability of the body as a whole, as a result of her injuries.

After the records were identified by the custodian and offered in evidence, counsel for the carrier said: “It’s my objection that there is no evidence in the record that the opinion of the doctor is based on reasonable medical probability.”

Under the holdings in Otis Elevator Company v. Wood, 436 S.W.2d 324 (Tex.1968) and Loper v. Andrews, 404 S.W.2d 300

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Ideal Mutual Insurance Co. v. Sullivan
678 S.W.2d 98 (Court of Appeals of Texas, 1984)

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Bluebook (online)
678 S.W.2d 98, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ideal-mutual-insurance-co-v-sullivan-texapp-1984.