Texas Employers' Insurance Ass'n v. Stodghill , 1978 Tex. App. LEXIS 3408 ( 1978 )

OPINION

PRESLAR, Chief Justice.

This is a worker’s compensation case involving a question of whether an injury suffered in the course of employment was a producing cause of death. Based on a jury verdict, judgment was ‘ entered for the Plaintiff. We reverse and render.

The deceased, Thomas Stodghill, suffered an injury while working on a drilling rig when he fell some fifteen feet off the rig floor. This injury occurred on April 26, 1974, and his injuries consisted of a fracture of the right wrist, acute lumbosacral strain, bruise and contusion of the right hip and right elbow, and possible cerebral concession. He was hospitalized by Dr. Edwin E. Franks for four days and returned for treatment on three occasions on May 7, 20, and 28. During that period of time, he showed general improvement with treatment continuing for pain and discomfort in his back, right arm and wrist, and blood pressure. On June 12th at home, his wife found him slumped over in his chair; he was rushed to the hospital emergency room where he was pronounced dead with the cause of death being listed as myocardial infarction.

Appellee sought death benefits under the Worker’s Compensation Act on the basis that the injuries suffered in the fall at the rig caused or aggravated a hypertension condition which caused a heart attack and death. In response to special issues, the jury found: (1) that he suffered a heart attack, and (2) that the accidental injury was a producing cause of his death.

Appellant has points of error challenging the legal sufficiency and factual sufficiency of the evidence to support the jury finding that the accidental injury was a producing cause of death. The proof of the cause of death rests on the testimony of two medical doctors: Dr. Franks, who treated the deceased, as noted above, and Dr. Pazos, who had never seen nor treated the deceased, but who testified after a review of the medical records of Dr. Franks and the hospital. For the test on reviewing the evidence as to causation, we quote from Parker v. Employers Mutual Liability Insurance Company of Wisconsin, 440 S.W.2d 43, 46 (Tex.1969):

“In Texas, expert medical testimony can enable a plaintiff’s action to go to the jury if the testimony is that there is a ‘reasonable probability’ of a causal connection between an act and a present injury. Galveston H. & S. A. Ry. Co. v. Powers, 101 Tex. 161, 105 S.W. 491, 493 (1907).

“In Insurance Co. of North America v. Myers, 411 S.W.2d 710 (Tex.Sup.1967) the substance of the doctor’s testimony was that it was only a possibility that the injury caused the death, not that it was or was not a reasonable medical probability. In denying recovery in that case we held: ‘Causal connection * * * must rest in reasonable probabilities; otherwise, the inference that such actually did occur can be no more than speculation or conjecture.’ 411 S.W.2d 710, 713.”

Dr. Pazos testified that, from the fact that the record showed that the man had been suffering from essential hypertension, the injuries which he received on the job “could aggravate the progress, and trigger final complication to the hypertension.” He was then asked:

“Q. Now, I want to talk to you about that. I am going to ask you to assume with me, doctor, certain things to be true. Assume that after the period in the hospital that you have read about, as shown in Plaintiff’s Exhibit 2; assumed [sic] that he was at home, and that from time to time he would complain of indigestion, that he would, from time to time, swell or get puffed or bloated as his family had not seen him do before; that he was worried about going back to work, being able to go back to work, and finally on the 12th of June, he complained of indigestion and shortly thereafter had to be taken to the hospital where he was pronounced dead, and then assume that Plaintiff’s Exhibit No. 1, [death certificate] shows what happened at the hospital—

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“Q. Now assume all of those things to be true. Assume that is what happened to him. Now, if that was the course of his treatment, and if he had the hypertension and had the kind of injury that he received on April 26, is there any question in your mind but what the injury trig-gened or aggravated the hypertension?”

Following an objection which was overruled, he was then asked:

“Q. Do you have any doubt but what the injury triggered or aggravated the hypertension?

“A. Yes, it did.”

He then testified that medical books and authorities taught that the stress of bodily injury aggravates arterial hypertension, and that the type of injury this man had received would probably create physical and mental stress. He was then asked:

“Q. If you assume the things that show in the record, and that I have asked you to assume about his history, is there any question in your mind but what the injury that he got in April hastened his death?

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“THE WITNESS: I have a strong belief that a man that has been injured, a man of this age, 49 years old with a previous history of arterial hypertension, and had been involved in an accident, any kind of accident which produced a bodily injury, will trigger any' complication in hypertension, and basis — and the cause of death or death. The same thing that could be if a heart failure, could be renal failure, a blood clot, miocardial [sic] infarction; anything could be the fault, of it, but the main thing here, the man was injured, and that injury could produce probably some kind of shortening of the life span.”

Dr. Franks testified that Mr. Stodghill had a previous history of signs and symptoms of hypertension but had never been diagnosed or treated for such, and that the hypertension which he found was of unknown cause or origin. He was asked, “if a person has hypertension, stress can kill a person, can’t it?” And he answered, “It can.” He testified that the accident itself caused an initial elevation of blood pressure but that it subsided to normal with treatment; that a later elevation of blood pressure was due to the hypertension which he had previously suffered; that he did not think that the hypertension was related to the injury in question; and that on the patient’s last visit, he increased his medication for hypertension. On the direct point of heart attack causation, Dr. Franks was strongly of the opinion that the injury did not cause the heart attack. He was asked:

“Q. Doctor, do you feel, or from your hospital records; from you having seen the patient, or your patient, Mr. Stodg-hill, I will assume three times after the time he was discharged from the hospital, do you think, assuming that he did have a heart attack on June 12th, of 1974, do you think that heart attack could have been produced in any way, or was produced in any way by any matter related to hypertension from the accident?

“A. It could not.

“Q. From the accident?

“A. Not from the accident.

“Q. Do you think it could have had any relation to the accident of April 26th of ’74?

“A. Who knows? I don’t. I can’t — I have my own opinion, but then I can’t back that. I don’t know.

“Q. What is you medical opinion?

“A. My medical opinion is that the heart attack had nothing to do with his accident that he had. That is my medical opinion.”

At another point he was asked:

“Q. Do you think — it is in evidence that on the 12th day of June, of ’74, Mr. Stodghill died. Do you think that his death, the fact that he did in fact die of a heart attack, if in fact he did die of a heart attack, have anything to do relating to the accident of April 26?

“A. No.”

And, again, in response to another question as to whether the heart attack had anything to do with the accident of April 26th, he responded:

“A. I don’t think that the accident on April 26, caused this man to have a mio-cardial [sic] infarction. Does that answer it another way?”

We are of the opinion that Appellant’s Point of Error No. 4, that there is no evidence to support the jury’s finding that the accidental injury suffered by Thomas J. Stodghill on April 26,1974, was a producing cause of his death, must be sustained. The cause of Mr. Stodghill’s heart attack is a question of science determinable only from the testimony of medical experts and must be founded on reasonable probability. Insurance Company of North America v. Myers, 411 S.W.2d 710 (Tex.1966); Bowles v. Bourdon, 148 Tex. 1, 219 S.W.2d 779 (1949). To meet her burden that Mr. Stodghill’s death arose out of his employment, Appellee seeks to prove that the fall which her husband suffered on the job caused the heart attack which occurred some 47 days later. The two medical experts did not state as their medical opinion that the heart attack was, in fact or in reasonable medical probability, caused by the prior on-the-job injury. Under such circumstances, we must reverse the judgment of the trial Court and render judgment that Appellee take nothing.