Texas Employers' Insurance Ass'n v. Thorn

611 S.W.2d 140, 1980 Tex. App. LEXIS 4274
Court of Appeals of Texas·Decided December 31, 1980·No. No. 6240·Published·Cited by 2 cases

Opinion

HALL, Justice.

This is a workers’ compensation case.

Appellee Garry Lee Thorn sustained accidental injuries entitling him to workers’ compensation benefits under a policy issued by appellant Texas Employers’ Insurance Association. He appealed from the award of the Industrial Accident Board. After a trial to a jury, the trial court set aside the Board’s award, and rendered judgment for appellee. This appeal followed. Appellant contends that under the circumstances of this case the court erred in awarding appel-lee separate recoveries for injuries to his right thumb, right index finger, right second finger, and to his right hand for overlapping periods. We agree with appellant.

On June 23,1978, appellee sustained accidental injury in the course of his employment when a piece of industrial equipment broke and fell on his right thumb, severing the tip of the thumb. On July 3, 1978, initial surgery was performed to repair the damage to the thumb. After several checkups by the surgeon, more extensive surgery to repair the damage was performed on September 1, 1978. On this occasion, the surgeon moved certain muscles, ligaments, nerves and blood vessels from parts of the index and second fingers and the palm of appellee’s right hand to the thumb area. Subsequently, appellee received therapy and rehabilitation treatments for six months. At the time of trial, held in November, 1979, appellee still complained of numbness in his hand, through the thumb and index and second fingers, as well as weakness and limited mobility in those parts.

Submission of the case to the jury on special issues produced these findings:

1. Appellee suffered temporary total loss of use of the right thumb from June 23,1978, the day of his injury, to January 2, 1979, followed by permanent partial loss of use of the thumb to the extent of 35%.
2. “Following the surgery that was performed on him [on September 1,1978] as a result of his injury on June 23, 1978,” appellee suffered temporary total loss of use of the right index finger, beginning on the day of the surgery and ending on January 2, 1979, followed by permanent partial loss of use of the finger to the extent of 10%.
3. “Following the surgery that was performed on him [on September 1,1978] as a result of his injury on June 23, 1978,” appellee suffered temporary total loss of use of the right second finger, beginning on the day of the surgery and ending on January 2, 1979, followed by permanent partial loss of use of the finger to the extent of 10%.
4. “Following the surgery that was performed on him [on September 1,1978] as a result of his injury on June 23, 1978,” appellee suffered temporary total loss of use of the right hand, beginning on the day of the surgery and ending on January 2, 1979, followed by permanent partial loss of use of the hand to the extent of 50%.
5. The injury to the thumb on June 23, 1978, extended to and affected the right hand causing temporary total loss of use of the hand beginning on September 1, 1978 (the day of the [142] surgery) and ending on January 2, 1979, followed by permanent partial loss of the use of the hand to the extent of 50%.

These findings are not challenged on appeal.

The schedule of compensation under our workers’ compensation laws for injuries to specific members of the body includes the following periods of benefits: (Vernon’s Tex.Civ.St. article 8306, § 12):

For the loss of a thumb, 60 weeks.
For the loss of an index finger, 45 weeks.
For the loss of a second finger, 30 weeks.
For the loss of a hand, 150 weeks.

Upon this schedule and the verdict, the trial court rendered judgment awarding appellee benefits calculated on the following:

For temporary total loss of use:
For the thumb: 27 weeks.
For the hand: 17 weeks.
For permanent partial loss of use:
For the thumb: 33 weeks.
For the hand: 133 weeks.
For the index finger: 28 weeks.
For the second finger: 13 weeks.

Allowances for attorney’s fees and interest on unpaid accrued benefits, based upon the foregoing awards, were also made by the court.

It will aid an understanding of the judgment and the questions on appeal to notice that the period from June 23,1978, the date of the injury to the thumb, to September 1, 1978, the date of the surgery involving the fingers and the hand, comprises 10 weeks. The period from September 1,1978, to January 2, 1979, when permanent partial loss of use of the thumb, the fingers and the hand began, comprises 17 weeks. The total period from June 23, 1978, to January 2, 1979, thus comprises 27 weeks. The adjudication of 27 weeks of benefits for temporary total loss of use of the thumb included 10 weeks for the thumb alone, from the date of the injury (June 23, 1978) to the date of surgery (September 1, 1978). The surgery involved not only the thumb, but also the index finger, the second finger, and the hand. The jury found appellee suffered temporary total loss of use of all of these members for 17 weeks beginning on the day of surgery. The judgment awarded appel-lee benefits for both the thumb and the hand (but not for the other members) for such temporary total loss of use for the 17 weeks. Appellee’s temporary total loss of use of the thumb and hand (and the fingers) ended on January 2, 1979. On that date, according to the jury’s findings, appel-lee recovered from all total loss of use, and, began suffering permanent partial loss of use of the thumb, the index finger, the second finger, and the hand. The judgment awarded appellee benefits for all of those members separately for such permanent partial loss of use.

Appellant contends that under the circumstances of our case appellee has suffered only one injury to one member of his body, limited for 10 weeks to the thumb and thereafter to the hand, and that the judgment should be reformed to eliminate the multiple concurrent recoveries allowed ap-pellee for his thumb and index finger and second finger and hand. Appellant’s argument is two-fold: It asserts, first, that under our workers’ compensation laws appel-lee has suffered only one injury to his hand, the adverse effects of medical treatment or surgery being included in and proximately caused by the injury itself. Second, appellant contends an injury to the hand is an injury to a specific member of the body for which benefits are allowed in the schedule of compensation, and that the injury cannot be divided into the multiple units of the hand, with resultant recoveries allowed for separate injuries to the thumb, various fingers, and the hand.

We agree with appellant’s contentions.

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Texas Employers' Insurance Ass'n v. Thorn, 611 S.W.2d 140, 1980 Tex. App. LEXIS 4274 (Tex. Ct. App. 1980).

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