Maryland Casualty Company v. Sosa

425 S.W.2d 871, 1968 Tex. App. LEXIS 2309
CourtCourt of Appeals of Texas
DecidedJanuary 31, 1968
Docket14644
StatusPublished
Cited by8 cases

This text of 425 S.W.2d 871 (Maryland Casualty Company v. Sosa) 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
Maryland Casualty Company v. Sosa, 425 S.W.2d 871, 1968 Tex. App. LEXIS 2309 (Tex. Ct. App. 1968).

Opinion

KLINGEMAN, Justice.

This is a workman’s compensation case. Based upon jury findings, the trial court rendered judgment for plaintiff, Manuel Sosa, for total and permanent disability under Art. 8306, Vernon’s Ann.Civ.St. The parties will be herein referred to as designated in the trial coúrt.

The jury in answer to special issues submitted to them found, among other things, that plaintiff suffered an injury to his left hand on or about December 27, 1965, which resulted in six months total loss of use of the left hand, followed by fifty per cent permanent loss of use; that plaintiff did not sustain an injury to his left shoulder on that date but the injury and the effects thereof to his left hand extended to and affected plaintiff’s left shoulder, which caused or contributed to his incapacity to work; that such incapacity was total and permanent; *873 that such total incapacity began on February 15, 1966, and that the incapacity to plaintiff’s left shoulder was not solely caused by his voluntary non-use of such shoulder.

Defendant, by its first and second points of error, asserts that there was no evidence and insufficient evidence to support the jury’s findings that the injury and the effects thereof to plaintiff’s left hand extended to and affected plaintiff’s left shoulder (Special Issue No. 31), and that the jury’s finding on such issue is against the overwhelming weight and preponderance of the evidence. By its fifth and sixth points of error, defendant asserts that the evidence showed as a matter of law that the disability to plaintiff’s left shoulder was solely caused by plaintiff’s voluntary non-use of his shoulder, and that the evidence to support the jury’s finding that it was not solely caused by such voluntary non-use was insufficient and against the overwhelming weight and preponderance of the evidence.

The plaintiff while working in the course of his employment on December 27, 1965, fell from a six-foot scaffold. He was immediately taken to the Santa Rosa Medical Center where he was first seen by Dr. Sullivan. Dr. Sullivan testified that at such time the plaintiff had a laceration on his forehead approximately 1 ½ inches deep, and that he had an injured left wrist. An X-ray examination disclosed a comminuted fracture of the distal radius of the left arm, and then Dr. Klecka, an orthopedic surgeon, was called into the case. Under Dr. Klec-ka’s supervision the fracture was treated in traction, with a pin through the thumb and a cast applied from the knuckles to above the elbow. This cast remained on plaintiff until about January 17, 1966, when such cast and traction were removed and a “short arm cast,” which extended from below the elbow to the back of the knuckles, was placed on plaintiff’s arm. This cast remained on plaintiff for an extended period of time. During the course of treatment, plaintiff complained of pain in his shoulder, and at one time was sent to Barnett Therapy Laboratories by Dr. Klecka for shoulder and arm exercises. He was also given eight ultrasonic treatments in Dr. Klecka’s office for his left shoulder. On April 27, 1967, he was re-admitted to Santa Rosa Medical Center, where he remained until May 7, 1967. During that period, Dr. Klecka manipulated plaintiff’s left shoulder and finger joints under general anesthetic. Dr. Klecka testified that he could find no objective evidence of traumatic injury to plaintiff’s left shoulder and that the stiffness of the shoulder was caused by lack of use. Dr. Klecka, however, testified that plaintiff had some disability in his left shoulder, and that from his examination he could not say that plaintiff had not been using his arm, and that he was of the opinion that plaintiff had been using his arm and exercising it.

Plaintiff was also treated by Dr. Albert Sanders, an orthopedic surgeon, who saw plaintiff on five occasions between October 10, 1966, and January 30, 1967. Dr. Sanders testified that plaintiff had developed adhe-sions in his shoulder joints and that such adhesions prevented plaintiff’s arm from being moved sideways more than 85°, when the movement in a normal person is 150°, and that there was other limitation of motion. Dr. Sanders further testified that the adhesions were caused from lack of use of such shoulder, that the cast on plaintiff’s arm caused plaintiff not to exercise his shoulder, and that the cast on his arm was necessary to treat the fracture of the wrist. Plaintiff testified of pain and disability in his shoulder, arm and hand, and that because of such disability he could no longer do his work and was unable to get a job.

The law is well settled that where an employee sustains a specific compensable injury, he is not limited to compensation allowed for that specific injury if such injury, or proper or necessary treatment therefor, causes other injuries which render the employee incapable of work. Zurich General Accident & Liability Ins. Co. v. Daffern, 81 F.2d 179, 5th Cir. 1936, cert. den., 298 U.S. 667, 56 S.Ct. 751, 80 L.Ed. 1391; McAdams *874 v. Fidelity and Casualty Co. of New York, 406 S.W.2d 518, (Tex.Civ.App.—Houston 1966, writ ref’d n.r.e.); United Employers Casualty Co. v. Marr, 144 S.W.2d 973 (Tex.Civ.App.—Galveston 1940, writ dism’d jdgmt. cor.); 62 Tex.Jur.2d, Workmen’s Compensation, § 68; 58 Am.Jur., Workmen’s Compensation, § 279.

Defendant contends that under the evidence and the law any recovery of plaintiff should be limited to the injury to a specific member — plaintiff’s left hand. The case before us is distinguishable on its facts from Texas Employers’ Insurance Association v. Hartel, 289 S.W.2d 380 (Tex.Civ.App.—Amarillo 1956, writ dism’d), and Casualty Reciprocal Exchange v. Rodriguez, 415 S.W.2d 236 (Tex.Civ.App.—Amarillo 1967, no writ), relied upon by defendant, in that in our case there is medical testimony of a disabling injury (adhesions) to the affected area. — plaintiff’s left shoulder.

There is medical testimony in the record that in order to treat plaintiff’s injury to his wrist it was necessary to place plaintiff’s arm in a cast, that such cast caused plaintiff not to exercise his arm and restricted movement of the shoulder joint, and that as a result of such non-use plaintiff developed adhesions in his shoulder which resulted in disability. The jury findings as to the special issues complained of by defendant in its first, second, fifth and sixth points of error, are sufficiently supported by the evidence, and such points of error are overruled.

Defendant also complains as to the manner in which Special Issue No. 31 was submitted, and in particular to the use of the words “injury and the effects thereof,” in regard to the hand injury, asserting that there were no pleadings to support such submission, and that the issue as submitted was duplicitous, misleading and nebulous. Plaintiff by a trial amendment plead in part that “such injuries to his left hand extended to and affected his left shoulder and body generally and causing or contributing to cause his total and permanent incapacity to work.”

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Bluebook (online)
425 S.W.2d 871, 1968 Tex. App. LEXIS 2309, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maryland-casualty-company-v-sosa-texapp-1968.