Great American Indemnity Co. v. Beaupre , 1945 Tex. App. LEXIS 888 ( 1945 )

This is a workman's compensation case. A. J. Beaupre, referred to herein as plaintiff, was the employe; Lockheed Aircraft Corporation, manufacturer of airplanes, the employer; and Great American Indemnity Company, the insurance carrier. Plaintiff sought compensation for loss of the use of his left leg, due to an injury to his knee, together with certain medical expenses incurred within four weeks following said injury, also the expenses of a surgical operation performed on his knee, at his insistence, after the suit to set aside the award of the Industrial Accident Board was filed. On findings made by the jury, in answer to appropriate issues submitted, judgment was entered in favor of plaintiff for compensation for 200 weeks at $20 per week, for two items of medical expenses — one aggregating $59 for expenses incurred within four weeks after date of injury and the other $293.50 for expenses incurred for the surgical operation.

The suit was begun by an appeal from the award of the Industrial Accident Board filed in the court below by defendant herein; plaintiff answered, and in a cross action alleged at length the essential facts constituting his claim for compensation and, as his claim was not filed with the Accident Board until after the expiration of six months from date of injury, plaintiff made rather lengthy allegations showing good cause for failure to file his claim within the six months period. Aside from certain special exceptions urged, defendant answered by a general denial, and specifically, that plaintiff's alleged disability was not attributable to any injury sustained in course of his employment; but, if mistaken in this, that such disability was confined to his left leg; was partial and temporary in nature, and if it had not at that time ceased to exist, would within a short period; that from February 8, 1943, date of injury, until on or about April 27, 1944, plaintiff remained in his usual employment and received larger wages during such period; that if he had suffered any disability, it was of a minor nature and did not affect plaintiff's ability to retain employment. Defendant further alleged that plaintiff's disability, if any, was the result of an occupational disease, as distinguished from an accident sustained in course of employment.

In answer to special issues the jury found that on February 8, 1943, while working for the employer, plaintiff sustained an accidental injury which, beginning on date of injury, caused plaintiff to sustain total and permanent incapacity to his leg; that same did not result from disease; and on the issue of good cause for failure of plaintiff to file his claim within the six months period from date of injury, the jury found that on or about May 11, 1943 (within the six months period), W. W. Wilson (defendant's adjuster), represented to plaintiff that he, Wilson, would investigate the claim, report the result of such investigation to his company (defendant herein), and advise plaintiff whether or not defendant would allow same, and that plaintiff should leave everything to him (Wilson); that plaintiff believed and relied upon the representations of Wilson and was induced thereby to delay filing his claim for compensation with the Accident Board until it was in fact filed (on or about October 8, 1943). The jury also found that up to the time plaintiff filed his claim with the Board, he didn't believe the injuries sustained by him were serious in nature; and failure to file the claim until it was filed was due to his belief that such injuries were not of a serious nature. The jury further found that on September 23, 1943 (which it seems was the date Wilson informed plaintiff that defendant rejected the claim), Wilson represented to plaintiff that he (Wilson) would endeavor to get his company (defendant herein) to provide plaintiff with a surgical operation and reimburse him for all medical expenses incurred — which the jury found Wilson failed to do. The jury also found that plaintiff believed and relied upon the representations of Wilson in this respect, and was induced thereby to delay filing his claim for compensation with the Board until it was filed; also found that by reason of plaintiff's belief in and reliance upon the several representations made him by Wilson, and plaintiff's belief that his injuries were not of a serious nature, that, in failing to file his claim for compensation with the Accident Board until it was filed, plaintiff acted as an ordinarily prudent person would have acted under the same or similar circumstances.

The findings of the jury, in our opinion, were authorized by both pleadings and evidence, and are adopted as our conclusions on the respective fact issues.

In its Sixth point of error the defendant contends that the evidence was insufficient to show that plaintiff sustained the injury complained of in the course of his employment.

As heretofore stated, the jury found that on February 8, 1943, while working for Lockheed Aircraft Corporation, plaintiff sustained an accidental injury to his left leg. This finding, in our opinion, was authorized by undisputed evidence; in fact, defendant failed to brief the point and referred to it in such manner as to indicate the point was not urged with any thought that it would provoke serious consideration. In its brief the defendant states: "We could admit there is evidence to support the jury's finding to the effect that Beaupre did sustain an injury in the course of his employment as claimed by him, but because we have no faith in such claim, we do not do so." We therefore overrule defendant's Sixth point.

Defendant's Second, Fourth, Fifth and Seventh points of error combined, present for our consideration but one question; that is, that plaintiff failed to show good cause for failure to file his claim for compensation with the Accident Board within six months after the occurrence of same.

The evidence bearing upon the above issues is lengthy and it would serve no useful purpose to make quotations therefrom; however, we examined same carefully and reached the conclusion that the findings of the jury on the several questions clustering around the main issues as to whether plaintiff showed good cause, were authorized by the evidence; so we adopt these findings as our conclusions of fact on the question.

It seems that immediately after receiving his injury, plaintiff went to the first aid station and consulted Dr. Carroll, the employer's physician, who seemed to think the injury was trivial and instructed plaintiff to return to his work; again on February 12, a few days after the injury, plaintiff being in Dr. Carroll's office, the lady clerk, Mrs. Williams, filled out a blank to be filed by plaintiff with the Accident Board as his claim for compensation for the injury. On inspection, Dr. Carroll, according to testimony of plaintiff, tore up the report prepared by Mrs. Williams, stating he did not consider that plaintiff's injury constituted an accident claim. And on and on, throughout the year, even up to October 1943, according to testimony of plaintiff, Dr. Carroll discounted the seriousness of plaintiff's injury and continuously advised him that the swelling and pain would depart and that no permanent results would be suffered. About May 1943, plaintiff encountered Mr. Wilson, defendant's adjuster, who assured plaintiff that he (Wilson) would investigate the case, report to the company, and inform plaintiff of the result; and this hope was held out by Wilson to plaintiff until in September 1943, after the expiration of the six months period, when, for the first time, Wilson informed plaintiff that the defendant would not pay the claim. However, at that time and in this connection, assured plaintiff that he (Wilson) would endeavor to secure an agreement from the defendant to give plaintiff a surgical operation and compensation for all medical expenses incurred. Plaintiff had no direct and positive knowledge that defendant would not give him a surgical operation, pay the expenses thereof and compensation for the injury, until October 5, 1943, a few days before his claim was filed. This information was contained in a letter from defendant, presumably to Dr. Carroll, and was read in Dr. Carroll's office. Upon the whole, we think the evidence fully sustained plaintiff's contention that reasonable cause existed for his failure to file the claim earlier than it was filed.

Cases bearing upon the question of good cause are numerous, and only a few of the most pertinent will be cited. The most analogous, we think, are Federal Underwriters Exchange v. McDaniel by the Beaumont Court of Tex. Civ. App. 140 S.W.2d 979 (app. dis. cor. judg.); Consolidated Underwriters v. Pruitt by the Amarillo Court of Civ.App., 180 S.W.2d 461 (app. dis.); Gulf Casualty Co. v. Taylor, Beaumont Court of Civ.App., 67 S.W.2d 415 (app. dis.). In Lacour v. Continental Casualty Co., Tex. Civ. App. 163 S.W.2d 676 (app. dis.), the Galveston Court said that the test for "good cause" of delay in filing a claim before the Board is that of ordinary prudence; that is, whether the injured employe has prosecuted his claim for compensation with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances, and that ordinarily the question as to whether such diligence was used is one of fact.

In Hranicky v. Trojanowsky, Tex. Civ. App. 153 S.W.2d 648 (app. dis.), the Galveston Court said that under a long settled rule of procedure, as against the contention that a finding of fact by the jury is without support in the evidence, the testimony in support of the verdict must be weighed to the exclusion of any evidence of a contrary import. It follows that under this rule plaintiff's evidence must be given exclusive consideration in determining the sufficiency of the evidence to support the verdict. We, therefore, overrule defendant's Second, Fourth, Fifth and Seventh points of error.

Defendant's Third point presents the contention that the finding of the jury to the effect that plaintiff's injury caused total and permanent loss of the use of his left leg, is not supported by competent testimony and is so against the weight of the evidence as to shock the conscience.

The evidence, in our opinion, authorized the verdict, but is entirely too lengthy to be reproduced here; but it may be summarized. In short, it shows that when stepping up into an aircraft on which he was working, plaintiff became overbalanced; his full weight was thrown on his left leg, twisting the knee and, as later disclosed, rupturing a cartilage that worked in between the knee joint, which at times caused the joint to lock; swelling and pain immediately ensued and grew progressively worse, varying in intensity, dependent upon length of time plaintiff stood on his feet; although the knee was painful and swollen, plaintiff continued to work; several times was given lighter work to lessen the pain; such work, however, required him to stand upon his feet, until in October 1943, he was given a bench job; pain and swelling in his knee required daily treatment, that is, application of hot towels and liniments, and often sleeping powders were taken to produce rest at night; a few days after receiving the injury, plaintiff's leg from foot to hip was put in a cast by Dr. Bywaters, to whom plaintiff was sent by employer's physician, Dr. Carroll. The cast, worn for about two weeks, was painful during the entire time, and when removed plaintiff's knee was badly swollen. After removal of the cast, plaintiff wore an elastic leg support until the surgical operation on his knee was had in April 1944. His left leg is so stiff and rigid that, in walking, plaintiff slings it as he would if wearing a wooden peg. Testified that he realized the seriousness of his injury for the first time in April 1944, and thereupon consulted Dr. Hurt, an osteopath, who testified that at time he examined plaintiff's knee it was badly swollen. Dr. Hurt gave plaintiff no treatment, but referred him to Dr. Gibbons, a surgeon, who advised and performed an immediate operation on the knee. After the operation plaintiff was confined in a hospital for about three months, after which he resumed his work. Testimony shows that the operation relieved plaintiff of some of the pain, but it persisted, nevertheless, and when he stands upon his feet for an hour or hour-and-a-half, pain is more intense and the swelling recurs. At time of the trial, about twenty months after the injury was received, plaintiff's left knee was approximately three times the size of the knee on his right leg; and when his left leg was bent as far as could be, the portion of the leg below the knee and that above formed a right angle. Plaintiff was corroborated, insofar as she testified, by his wife who testified to the daily treatment of plaintiff's knee with hot towels, liniments, etc., and as to his method of walking.

Dr. Hurt, as an expert, testified that plaintiff may regain a small amount of the lost use of his leg, but even that is questionable, as sufficient time since the operation has elapsed for the maximum recovery to manifest itself; that the leg will never have the strength it formerly had, because of the knee operation; that plaintiff's incapacity to labor in the future will depend upon the type of work; in the performance of labor requiring plaintiff to be on his feet for any length of time, or to bend, squat or lift, his capacity would be restricted and such labor would be calculated to cause additional swelling, and such restriction might last the balance of his life. The witness expressed the opinion that plaintiff had lost about 50 per cent of the use of his left leg permanently; stated that he might be able to do something else, but as to labor that would require stooping, bending and lifting, plaintiff might perform same for a little while, but would never be able to do that kind of work and keep it up. As to that type of work, witness expressed the opinion that plaintiff's loss of the use of his limb would exceed 50 per cent; that in time there would be further improvement, but said: "I don't think he could hold a job now that would require him to be on his feet all the time and stooping and bending"; and as to whether he will ever be able to hold a job requiring that, said: "I would hesitate to say; it is possible that he would not ever be able to do it, and again he might receive sufficient amount of improvement in time that would permit him to hold that type of work." The witness said he didn't mean to tell the jury that plaintiff is not now able to work, but said: "I simply stated the type of work that would keep him on his feet or involve his knee — there could be types of work that he could do better than others if he was trained for them; I mean those kinds that would keep him off his feet"; testifying as to whether the percentage of disability was a mere difference of opinion, witness answered "Yes"; was then asked:

"Q. And your opinion may be in accord with or at variance with the next examiner? A. Yes.

"Q. Another doctor may say the man has a one-hundred percent disability? A. Yes.

"Q. Or another may say twenty-five percent? A. Yes."

Testimony in the case shows that plaintiff is not qualified, either from educational training or otherwise, to perform other than manual labor. As before stated, the jury found that incapacity to his left leg was total and that such total incapacity was permanent.

The question under consideration is this: Does the record disclose evidence from which reasonable minds could find that plaintiff's injury was total and permanent in the sense that he was incapacitated to perform the usual and customary work of a manual laborer? See Standard Accident Ins. Co. v. Williams, Tex.Com.App., 14 S.W.2d 1015.

It is undisputed that plaintiff was not qualified, either from education or training, to perform other than the usual tasks of a manual laborer. As before stated, the jury found his injury both total and permanent, and the evidence, in our opinion, was sufficient to support that finding.

However, it is contended by the defendant that as Dr. Hurt, plaintiff's witness, testified he had suffered only a 50 per cent loss of the use of his leg, the same was conclusive on that issue; hence the finding of the jury to the contrary was unauthorized by the evidence.

It is true Dr. Hurt expressed the opinion that plaintiff had lost "about 50 percent of the use of his leg" and that this loss would be permanent; but that was not all the witness said in that connection. He stated that, in his opinion, plaintiff would never be able to perform for any length of time, or keep it up, labor requiring him to be on his feet, to lift, stoop or bend; that as to such types of work, plaintiff's loss of the use of his limb would exceed 50 per cent; and as to whether plaintiff would ever be able to hold a job requiring such work, witness said: "I would hesitate to say; it is possible that he would not ever be able to do it, and again he might receive sufficient amount of improvement in time that would permit him to hold that type of work." The witness also said that the percentage of disability suffered by plaintiff was a matter of opinion; that another doctor may say the loss sustained was 100 percent, still another only 25 percent, etc.

However, if it be assumed that Dr. Hurt testified unqualifiedly that plaintiff had suffered only a 50 per cent loss of capacity, yet that would not be conclusive, as the jury, notwithstanding, would have the right to conclude from other evidence that the loss of capacity was total and permanent. In Southern Underwriters v. Sanders, Tex. Civ. App.110 S.W.2d 1258, 1260, where the only physician expert to testify said that in his opinion plaintiff had suffered only 50 per cent loss of the use of his foot, whereas the jury found he has sustained a loss of 60 per cent, the court, answering a contention similar to the one in the instant case, said: "Even though this is the only opinion in the statement of facts as to the percentage of partial loss of the use of the foot, we do not think it is conclusive and binding on the jury. The jury would be entitled to form their own conclusions from all the evidence in the case, and this would be more particularly true when the expert witness himself admits that the percentage is a mere difference of opinion. We think the testimony as a whole supports the jury finding of 60 per cent. partial loss of the use of plaintiff's foot." Also see El Paso Electric Co. v. De Garcia, Tex. Civ. App. 10 S.W.2d 426; Lott v. American Surety Co., Tex. Civ. App. 140 S.W.2d 928. Other pertinent authorities are Traders General Ins. Co. v. Maxwell, Tex. Civ. App. 142 S.W.2d 685; Texas Employers Ins. Assn. v. Hevolow, Tex. Civ. App. 136 S.W.2d 931; Texas Employers Ins. Assn. v. Long, Tex. Civ. App. 180 S.W.2d 629. Therefore, appellant's Third point of error urged for reversal is overruled.

In its First point of error defendant contends that the court erred in permitting plaintiff to recover $293.50 expenses incurred incident to a surgical operation he caused to be performed on his left knee about April 27, 1944, during pendency of the suit.

Defendant contends that, as the surgical operation was performed at the insistence of plaintiff after the suit to set aside the award of the Accident Board was filed, without having been previously presented to the Accident Board, the court was without original jurisdiction to entertain the claim. The facts bearing upon this point of error are as contended by the defendant; but, even so, we think the court had jurisdiction to adjudicate the validity whether or not of the claim for expenses incident to the surgical operation. Suit having been filed by defendant to set aside the award of the Board, and plaintiff having filed answer thereto, the Accident Board lost jurisdiction of the matter. The right of plaintiff to be reimbursed for expenses incurred for the operation, was an incident to and a part of compensation the statute gives an injured employe and, in our opinion, was recoverable, regardless of the fact that it was never asserted before the Accident Board. See authorities in point, Aetna Life Ins. Co. v. Culvahouse, Tex. Civ. App. 10 S.W.2d 803, 805, and authorities cited; Traders General Ins. Co. v. Huntsman, Tex. Civ. App. 125 S.W.2d 431, 435, 437 (app. dis.); 45 Tex.Jur., p. 779, sec. 282. We, therefore, overrule the contention that the court below was without jurisdiction to pass upon the validity whether or not of the claim under consideration.

It is admitted that neither party made any demand in writing or otherwise upon the Accident Board for a surgical operation on plaintiff's knee before it was performed, and in this respect neither sec. 7 nor sec. 12e of Art. 8306, R C.S., Vernon's, was complied with. The operation having been performed over fourteen months after the occurrence of the accident, we do not think sec. 7 had any application; but if sec. 7 or sec. 12e under ordinary circumstances should have been complied with, yet as defendant had denied all liability to plaintiff, we do not think it was incumbent upon him to comply with the provisions of these sections of the statute before having the operation performed, as a condition precedent to his right to recover compensation for the operation. See Security Union Cas. Co. v. Roberts, Tex. Civ. App. 298 S.W. 164, 169 (writ ref.).

Again, we do not think plaintiff was required to comply with the provisions of the statute under consideration, as a condition precedent to the right to recover expenses of the surgical operation, in that we think the evidence shows and the jury so found (special issue No. 22) that an emergency that would not brook further delay existed requiring the operation immediately. See Ocean Accident Guarantee Corp. v. Nance, Tex. Civ. App. 25 S.W.2d 665; Aetna Life Ins. Co. v. Harris, Tex. Civ. App. 83 S.W.2d 1087, 1090.

It follows from what has been said that we do not think defendant's points of error are well taken; hence are overruled and the judgment of the court below is affirmed.

Affirmed.