Wilson v. Klein Independent School District

817 S.W.2d 371, 1991 Tex. App. LEXIS 2178, 1991 WL 166254
CourtCourt of Appeals of Texas
DecidedAugust 29, 1991
DocketNo. 01-89-01025-CV
StatusPublished
Cited by4 cases

This text of 817 S.W.2d 371 (Wilson v. Klein Independent School District) 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
Wilson v. Klein Independent School District, 817 S.W.2d 371, 1991 Tex. App. LEXIS 2178, 1991 WL 166254 (Tex. Ct. App. 1991).

Opinion

OPINION

COHEN, Justice.

A jury found for appellant in this worker’s compensation case, but it also found that 90% of her total and permanent disability was due to three prior work-related injuries. Consequently, the trial court awarded judgment for 10% of damages appellant would have otherwise received.

The main question presented is whether the jury findings that prior injuries contributed 90% of appellant’s disability can be upheld without expert testimony to establish at least a reasonable percentage range within which the prior injury contributed to the disability. We hold that expert testimony fixing a percentage range by which prior injuries contributed to the disability is required to support a reduction of benefits under article 8306, section 12c. Because there was no such evidence in this case, we hold the jury finding on contribution of prior injuries should have been disregarded. Consequently, we reverse and render judgment for appellant for full benefits.

Margaret Wilson worked as a cook for appellee, Klein Independent School District. She twisted her back on October 22, 1985, while working at Doerr Intermediate School, and could no longer work. That injury is the basis for this award.

[373]*373Wilson suffered four back injuries before October 22, 1985, three of which occurred on the job. On February 7, 1983, Wilson “pulled something in her lower back” while at work lifting large pizza pans. She was not hospitalized, was off work a week, and did not file a compensation claim. She injured her back on January 24, 1984 at Kaiser Elementary School. She was hospitalized for 15 days and missed work for three months, and appellee, self-insured under the Workers’ Compensation Act, agreed to pay her medical bills for two years. Appellant continued to receive treatment for that injury. Although appellant returned to work, she stated in answer to an interrogatory that she “did not recover” from her injury of January 24, 1984 and that the October 22,1985 injury “intensified the previous injury.” On November 13, 1984, Wilson was hurt in an off-duty automobile accident and was hospitalized for three days, complaining of back and leg pain. The diagnosis was “acute exacerbation” of her “chronic condition.” On May 29, 1985, she injured her back at work while “stacking materials” and filled out a compensation claim form. She did not report the injury to her doctor, and no claim was filed. The only compensation Wilson received for any of these injuries was the two years of medical payments for the January 1984 injury. She did not miss more than seven days of work at any one time, except in January 1984 and October 1985.

After the last injury, Wilson’s doctor diagnosed her condition as arachnoiditis, scar tissue around nerves in the spinal column. He testified this condition was usually found in post-operative patients and surgery would worsen the scarring. The prognosis was permanent or long-term incapacity. He testified she could not work due to the incapacity, which was “triggered” by the October 22, 1985 injury. That was “the straw that broke the camel’s back,” he stated, which “probably ... triggered arachnoiditis.” The doctor said Wilson could not pass a pre-employment physical.

At trial, Wilson denied injuries other than those of January 24,1984 and October 22, 1985, but this was impeached by her medical records. They showed she had been in pain since the January 1984 injury and mentioned previous injuries and possible arachnoiditis before October 22, 1985. Three doctors examined myelograms of appellant’s back taken before and after October 22, 1985. Dr. Norton found “the sub-arachnoid sac from the L4-5 level ... totally unchanged in appearance in comparison to the exam of 2-13-84.” Dr. Walters concluded the myelograms “revealed the same arachnoiditis changes that were noted before.” Dr. Wendenberg concluded the second myelogram showed the same appearance as the first.

Wilson’s supervisor testified she was an average worker until October 22, 1985. She saw Wilson’s knee buckle and saw her try to catch herself with her other knee when she fell. Appellee’s Food Service Director testified she would not hire anyone in Wilson’s post-October 22,1985 condition.

Appellee’s pleadings contended Wilson’s prior injuries either contributed to or solely caused her incapacity. A jury question, submitted over Wilson’s objection, asked whether “the prior injuries, if any, contributed to the present incapacity and, if so, the percentages of incapacity contributed by each....” The jury found:

(1) the injury of October 22, 1985, was in the course and scope of employment and caused total and permanent incapacity beginning that day;
(2) the injuries at work of February 7, 1983, January 24, 1984, and May 29, 1985, contributed 10%, 60%, and 20%, respectively, to the incapacity, a total of 90%.1

The trial court awarded Wilson 10% of total and permanent disability benefits, in accordance with the jury findings.

Wilson’s first three points of error contend the evidence is legally and factually [374]*374insufficient to support the jury’s three findings of percentage contribution by prior injuries; thus, she contends the trial court should have disregarded those findings.

In reviewing legal sufficiency points, we consider only the evidence and inferences supporting the finding, viewed in the most favorable light, and disregard all conflicting evidence. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965). If there is any probative evidence, more than a scintilla, to support the finding, the point must be overruled. Id. Factual insufficiency exists when the evidence supporting a finding is so weak it should be set aside, or when considered with the evidence opposing the fact, the finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust. Id. Upon review of factual sufficiency, we consider all of the evidence. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

Wilson had to prove 1) an injury, 2) while in the course of employment, and 3) the extent and duration of the injury. Texas Employers’ Ins. Ass’n v. Page, 553 S.W.2d 98 (Tex.1977). A claimant’s recovery can be reduced pursuant to Tex.Rev.Civ.Stat. Ann. art. 8306, section 12c (Vernon Supp. 1991),2 which provides:

(a) If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; ...

Therefore, when a prior compensa-ble injury contributes to a subsequent injury, the insurer owes compensation only for the percentage of incapacity caused by the “new” injury. Hines v. Aetna Casualty & Sur. Co., 754 S.W.2d 803, 805 (Tex.App.— Houston [1st Dist.] 1988, writ denied).

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Bluebook (online)
817 S.W.2d 371, 1991 Tex. App. LEXIS 2178, 1991 WL 166254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-klein-independent-school-district-texapp-1991.