Texas Employers Indemnity Co. v. Etie

754 S.W.2d 806, 1988 Tex. App. LEXIS 1663, 1988 WL 72144
CourtCourt of Appeals of Texas
DecidedJuly 14, 1988
DocketNo. 01-87-00723-CV
StatusPublished
Cited by2 cases

This text of 754 S.W.2d 806 (Texas Employers Indemnity Co. v. Etie) 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
Texas Employers Indemnity Co. v. Etie, 754 S.W.2d 806, 1988 Tex. App. LEXIS 1663, 1988 WL 72144 (Tex. Ct. App. 1988).

Opinions

OPINION

SAM BASS, Justice.

This is an appeal from a workers’ compensation suit. A jury found that appellee sustained an injury on November 30, 1984, while in the course of his employment, and that appellee was totally and permanently incapacitated as a result of the injury or the subsequent treatment thereof. The jury also found that appellee became totally incapacitated on April 16, 1988, the date of his surgery. Based upon these jury answers, the trial court entered judgment for appellee in the amount of $67,353.49.

We affirm.

While working as a brick mason, appellee was injured when he picked up the tongue of a cement mixer. Immediately after he picked up the mixer, he noticed a hard pop and felt a tingling sensation down his right arm to his fingers and a pull in his lower neck and shoulder blades. In the following weeks, he developed numbness and weakness in his right arm and hand and progressive pain in his elbow.

Appellee was ultimately referred to Dr. Rose, a neurosurgeon, who believed that appellee had a ruptured disc in his cervical [807]*807spine and ordered a myelogram to determine the specific level. During the myelo-gram procedure, appellee felt three electrical sensations in his lower back and down both legs. Immediately thereafter, he experienced pain in his lower back.

Several weeks later, on April 16, 1985, Doctor Rose, with assistance from Dr. Horton, an orthopedist, removed a disc from appellee’s neck and fused the neighboring vertebrae with a piece of appellee’s hip bone. After the surgery, appellee’s cervical problems progressively improved, but he continued to have numbness in his lower back and pain down his right leg.

In two points of error, appellant argues that the evidence was legally and factually insufficient to support the jury’s answer to special issue no. 3 that appellee was permanently incapacitated as a result of his injury on November 30,1984, or by the reasonable treatment of said injury. Appellant’s basic complaint is that there is no evidence or insufficient evidence to show that appel-lee’s total and permanent disability was caused in whole or in part by the myelo-gram procedure.

In reviewing a no evidence point of error, this Court is required to consider only the evidence and inferences that tend to support the finding, and we disregard all evidence to the contrary. King v. Bauer, 688 S.W.2d 845, 846 (Tex.1985). If there is any evidence of probative force to support the finding, the point must be overruled and the finding upheld. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). In reviewing a factual insufficiency point of error, this Court must consider and weigh all the evidence, both that in support of and contrary to the challenged finding. The finding must be upheld unless we find that the evidence is so weak or the finding is so against the great weight and preponderance of the evidence as to be manifestly erroneous or unjust. Id.

An injury that aggravates a preexisting condition is compensable provided an accident arising out of employment contributed to the incapacity. Baird v. Texas Employers’ Ins. Assoc., 495 S.W.2d 207 (Tex.1973). In this case, appellant does not contest the fact that the myelogram was required to treat appellee’s original neck injury. Thus, if the myelogram, as the necessary treatment for the neck injury, aggravated a pre-existing condition, appel-lee’s injury is compensable. Maryland Casualty Co. v. Sosa, 425 S.W.2d 871, 873 (Tex.Civ.App.—San Antonio 1968), writ ref'd n.r.e. per curiam, 432 S.W.2d 515 (Tex.1968).

The specific question in this appeal is whether the evidence is legally and factually sufficient to support a conclusion that the myelogram caused appellee’s present incapacity by aggravating his pre-existing lower back problems to become symptomatic. Appellee sought to establish causation through his own testimony, as well as through the deposition testimony of Dr. Rose, who ordered the myelogram procedure.

Appellee testified that he was conscious during the myelogram procedure, and he felt the needle and dye fluid when it was inserted into his spine. He testified that toward the end of the procedure, he felt three electrical sensations in his lower back and down both legs. He thought that he had been electrocuted; “it felt like getting hit with 220.” Soon thereafter, he noticed problems in his lower back, and he notified the attending nurse, his physician, Dr. Rose, and “anybody that would listen to me.” Several weeks after his surgery, his neck and arm felt better, but he still had pain in his lower back, similar to that experienced during a laminectomy in 1975. He continued to have pain radiating down his right leg and numbness in his lower back, which affected his walking, lifting, and bending. Appellee consulted with his physician, Dr. Rose, and on the basis of that discussion, he decided not to continue working as a brick mason because he was concerned about being paralyzed.

We conclude that appellee’s testimony constitutes some evidence from which the jury could reasonably have inferred that the myelogram probably aggravated his pre-existing lower back condition and contributed to his incapacity. Appellee’s testimony outlined the nature and seriousness [808]*808of his original injury, described the immediate onset and successive and continuous» development of the symptoms following the myelogram, and indicated the progressive worsening of his condition. We find that appellee’s testimony showed a sufficiently strong, logically traceable connection between cause and result of his disability. See Griffin v. Texas Employers’ Ins. Assoc., 450 S.W.2d 59, 61 (Tex.1969).

Although a myelogram is a complex medical procedure, a lay jury could reasonably infer a causal connection between the injection of the myelogram needle into ap-pellee’s spine and the immediate onset of back pain and numbness. In a workers’ compensation case, expert testimony is generally not required to prove an issue of probability, if the trier of fact has been given sufficient evidence showing the prompt onset of symptoms following a specific event. See Insurance Co. of N. America v. Kneten, 440 S.W.2d 52, 54 (Tex.1969).

The deposition testimony of appellee’s physician, Dr. Rose, further substantiated appellee’s testimony. Dr. Rose testified that the appellee’s lower back problem was “neurogenic claudication,” that is, leg pain caused by the compression of nerves in the lower back area. Dr. Rose further testified that appellee’s disability was related to his injury in the lumbar area, and that this condition permanently restricted appellee's ability to climb stairs, bend, lift, and stoop.

When asked what could have caused or aggravated appellee’s present problems in his low back area, Dr. Rose testified:

Answer: I have an opinion.

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754 S.W.2d 806, 1988 Tex. App. LEXIS 1663, 1988 WL 72144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-employers-indemnity-co-v-etie-texapp-1988.