Hardware Mutual Casualty Co. v. Courtney , 353 S.W.2d 299 ( 1962 )

HUGHES, Justice.

This is a Workmen’s Compensation case in which the only point presented here is whether or not the Trial Court correctly refused to permit appellant, Hardware Mutual Casualty Company, to plead, and to introduce evidence in support thereof, the question of whether a surgical operation if performed upon appellee, Mrs. Claudine Courtney, will effect a cure or will materially and beneficially improve her physical condition.

Mrs. Claudine Courtney was an employee of Gem Fabric Shop in Travis County, Texas, when, October 5, 1959, she was accidently injured while in the course and scope of her employment. She is joined in this action by her husband, E. L. Courtney.

The case was tried to a jury which resulted in verdict and judgment for Mrs. Courtney for compensation for total and permanent disability.

Sustaining appellees’ preliminary motion, the Court instructed appellant and its counsel :

“ * * * not to mention, refer to, interrogate concerning, or attempt to convey to the jury in any manner, either directly or indirectly, that Claudine Courtney ever refused to submit to a myelogram or surgery, or that an operation may cure or benefit her condition, without first obtaining permission of the court outside the presence and hearing of the jury, and the defendant and its counsel are further instructed to warn and caution each and every one of its witnesses to strictly follow these instructions.”

The permission mentioned was not obtained. Appellant did, however, offer evidence in the jury’s absence in support of its bill of exception to the effect that Mrs. Courtney would be materially benefited by surgery.

The injury sustained by Mrs. Courtney was to her back. It resulted in a lumbar disc protrusion.

The solution of the problem presented requires a detailed statement of the activities of the parties before the Industrial Accident Board made its final award.

Commencing October 5, 1959, the date of injury, Mrs. Courtney was paid compensation by appellant for 33 weeks, through June 13, 1960. These payments were stopped by appellant, as testified by its adjuster, Edward Ray Mount, because

“We discontinued it based on the medical reports received from Dr. Esquivel and also Dr. Tisdale to the effect that this was merely a lumbar sprain, and also from my own personal knowledge that Mrs. Courtney had ceased receiving any medical attention whatsoever for this alleged injury.”

In its notice to the Board that compensation payments had been stopped appellant stated as its reason “Doctor indicated claimant is no longer disabled and medical treatment has ceased.”

The doctors named by Mr. Mount were the only doctors who saw Mrs. Courtney during this period, and they were selected by appellant, who paid their fees and charges. Mrs. Courtney subsequently saw Dr. Albert A. LaLonde at the suggestion •of Dr. Tisdale. This was in January, 1961.

Dr. Esquivel in his report dated March 18, 1960, stated:

“Although her symptoms did not suggest an intervertebral disc lesion, allowing her the benefit of the doubt, I recommend she be examined by a neurosurgeon and perhaps have myelo-gram studies made to rule out such a lesion.”

On October 21, 1960, an attorney for appellant wrote the Board as follows :

“The insurer advises that weekly compensation was discontinued because the claimant has not been back for any further treatment to the attending physician, Dr. S. Esquivel, orthopedic surgeon, here in Austin, since December 11, 1959, and, as far as we can determine; has not been seen by any other doctor except Dr. Albert A. Tis-dale, another orthopedic surgeon, here in Austin, on March 28, 1960.

“It therefore appears that this claimant has been overpaid for temporary total incapacity, not having reported back for treatment since December 11, 1959, and we have no evidence that the claimant should have any residual disability or loss of earning power whatever.

“The insurer advises that, to their knowledge, none of the doctors who have seen the claimant have at any time recommended surgery, and we have no medical information to indicate that the claimant requires surgery.

“However, we at this time are giving notice, through your Honorable Board, that if claimant’s attorney has any evidence or any information indicating that this claimant requires surgery, then the insurer hereby tenders the claimant a surgical operation at the hands of Dr. S. Esquivel, Austin, Texas, or at the hands of any other doctor designated by your Honorable Board.”

Mrs. Courtney, through her attorney, replied to this letter by a letter addressed to the Board, dated October 22, 1960, from which we quote:

“The medical report of Dr. S. Es-quivel dated March 18, 1960, a copy of which was sent to the carrier, recommended that the claimant have a myelo-gram in order to rule out an interverte-bral disc lesion.

“The report of Dr. Albert A. Tisdale dated June 8, 1960, to the carrier also mentions the possibility of a disc protrusion.

“The carrier has not paid weekly compensation since June 13, 1960, and has not offered, tendered, or suggested any further medical treatment.

“While at the present time neither Dr. Esquivel nor Dr. Tisdale have recommended surgery, their reports indicate the distinct possibility that the claimant has a disc protrusion which may necessitate surgery in the future.

“Since the carrier ceased weekly compensation on June 13, 1960, the claimant was forced to seek a hearing of her claim in order to obtain the compensation to which she is entitled.

“If the carrier will bring the claimant’s weekly compensation up to date and continue to pay such compensation until it is definitely determined whether or not the claimant’s condition requires surgical intervention, claimant will have no objection to the postponement of this hearing. However, since the claimant is still unable to work she has no alternative than to proceed with the hearing unless she receives the weekly compensation to which she is entitled.

“Claimant also wishes to point out that one of the first requirements necessary in order for the carrier to demand that the claimant submit to surgical operation is the continued payment of weekly compensation.”

In similar manner this letter was replied to by appellant on October 24, 1960, from which we quote:

“We are in receipt of copy of Attorney Tom Davis’ letter to your Honorable Board dated October 22,1960, with reference to the insurer’s tender of surgery filed October 21, 1960. We note that Attorney Davis requests a myelogram in accordance with Dr. Es-quivel’s report of March 18, 1960.

“We were of the impression that a myelogram was merely a diagnostic procedure which is a part of the preparation for surgery since most doctors carry out a myelogram to determine where they will operate. We therefore felt that a tender of a myelogram was embraced in the insurer’s tender of surgery filed October 21, 1960.

“However, in view of Attorney Davis’ request for a myelogram and his. further request that weekly compensation be continued until it is determined. whether or not the claimant requires, surgery, we accordingly, hereby tender the claimant a myelogram at the expense of the insurer at the hands of Dr. S. Esquivel, Orthopedic Surgeon, 1306 Rio Grande Street, Austin, Texas, or at the hands of any other doctor designated by your Honorable Board in the-event that Dr. Esquivel is not acceptable to the claimant and her attorney. The insurer also offers to resume the-payment of weekly compensation when the claimant reports for the myelogram and to continue the payment of weekly-compensation until the claimant is released by Dr. Esquivel, or any other doctor designated by your Honorable Board to carry out the myelogram, in. the event that Dr. Esquivel is not acceptable to the claimant and her attorney.

“We request that your Honorable-Board take no further action in the case until the claimant and her attorneys advise your Honorable Board and the insurer whether or not they will accept the insurer’s tender of myelogram and surgery.”

Similarly reply was made for Mrs. Courtney on October 25,1960, as follows:

“Apparently the carrier has misinterpreted claimant’s letter of October 22, 1960, and, having misinterpreted such letter, has misstated its contents.

“Claimant is not requesting a myelo-gram or surgery unless it is the opinion-of either Dr. Esquival or Dr. Tisdale-that a myelogram or operation will effect a cure or will materially and beneficially improve claimant’s condition and that a myelogram or operation is advisable at this time. Claimant has no desire to submit to a myelogram or surgery merely to satisfy the carrier’s curiousity or in compliance with its ■“tactical defense.’

‘‘As stated in her previous letter, the claimant is willing to agree to a postponement of this hearing if, and only if, the carrier brings her weekly compensation payments up to date and continues to pay her weekly compensation until it is definitely established whether or not surgery is advisable. While not clear on this point, the carrier’s letter of ■October 24, 1960, appears to offer the payment of weekly compensation only ■during the time required to perform and recuperate from a myelogram. This offer obviously does not meet the legal requirement that the continued payment of weekly compensation is a prerequisite to the carrier’s demand for surgery.”

We quote from appellant’s reply to this letter:

“Reference is made to our brief submitted on hearing date in which we requested that action be withheld until the claimant’s attorney advised whether or not the claimant would accept the insurer’s tender of myelogram and surgery.

“We are in receipt of copy of the attorneys letter to your Honorable Board of October 25, 1960, from which you will note that the attorney and the ■claimant have not accepted the insurer’s tender.

“As pointed out in our brief, the insurer has paid 33 weeks compensation in this case up to June 13, 1960, but this claimant has not even been back for any medical treatment by Dr. Esquivel since December 11, 1959, and hasn’t been ■seen by any doctor since March 28,1960.

“The insurer discontinued weekly ■compensation in this case because the ■claimant had apparently recovered and hadn’t reported back for treatment in over six months.

“We, therefore, contend that this claimant has been overpaid for temporary total incapacity, and we certainly deny that she has any residual disability, or any loss of earning power.

“Inasmuch as this claimant has not reported back for any further treatment in over nine months, now, and does not want myelogram or surgery, we request that your Honorable Board proceed to a final award denying further recovery in this case.”

On November 3, 1960, the Board entered its final order on Mrs. Courtney’s claim, from which we quote:

“That following infliction of injury, named insurer assumed liability and made payments of compensation. That named employee and her attorneys have failed to establish by proof that she suffered further disability than that for which compensation has heretofore been paid. Therefore, claim for additional compensation is denied.

“That named employee has no loss in wage earning capacity.”

Shortly before trial, Dr. LaLonde re quested that Mrs. Courtney undergo a mye-logram, which she did at appellant’s expense. This test showed, as Dr. LaLonde testified, a lumbar disc protrusion.

In American General Insurance Company v. Quinn, 277 S.W.2d 223, Tex.Civ.App., writ ref., N.R.E., the Court in discussing the admissibility of evidence of the beneficial effects of an unperformed operation in a Workmen’s Compensation case and in construing Sections 12b and 12e of the Act (Art. 8306, Vernon’s Ann.Civ.St.) stated:

“Therefore, we hold that the two sections, 12b and 12e, must be construed together. In doing so, we find that under said sections of said article that the following steps are mandatory before a compensation carrier would be entitled to make such proof: (1) Admit liability; (2) tender the operation to the employee while the claim is pending before the Board; (3) if the employee refuses the operation, make a demand to the Board to require the examination, or examinations, required by the law; and (4) show that the examination or examinations were had and the action of the Board thereon. Having complied with the requirements of the statutes, the insurer would then be entitled to appeal from any refusal of the employee and any adverse ruling by the Board and to re-try any issue decided adversely to it by the Board and would certainly be entitled to prove the benefits of an operation in the event the employee refused the same.”

This case was cited, followed, and we believe generally approved, by the Supreme Court in Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521. See also Texas Employers’ Insurance Association v. Shelton, 161 Tex. 259, 339 S.W.2d 519, Texas Supreme Court, where the Court stated:

“The tender of an operation without the admission of liability renders testimony relating to the beneficial effects of an operation inadmissible on the trial of the case on appeal.”

It is our opinion that appellant did not, while this claim was before the Board, make an “admission of liability” within the meaning given such phrase by the courts, nor within the meaning of the statutes from which its substance is derived.

Art. 8306, Sec. 12b, V.A.C.S., applicable solely to hernia, provides in part: “In all such cases where liability for compensation exists, * * the association shall provide surgical treatment.

Sec. 12e, of such Article, applicable here, provides, in part:

“In all cases where liability for compensation exists for an injury sustained by an employé in the course of his employment and a surgical operation for such injury will effect a cure of the employé or will materially and beneficially improve his condition, the association or the employé may demand that a surgical operation be had upon the employé as herein provided * *

These statutes constitute the basis of the Court phrase “admission of liability.” What does the phrase mean? A mere admission that the insurer is liable for such disability as the employee may ultimately establish? If so, it would, in most cases, be a rather innocuous admission. We believe it can only import an admission of liability for compensation for a specific disabling physical condition for which surgery is tendered to remedy.

Under Sec. 12b, supra, the admission of liability must be for hernia, National Mutual Casualty Co. v. Lowery, 136 Tex. 188, 148 S.W.2d 1089. We quote from that case:

“The Casualty Company earnestly insists that the above holding leads to great injustice to compensation' insurance carriers because it compels them to admit liability in all hernia cases, or run the risk of being held liable for general injuries if the case goes to court. We freely admit that our construction of the statute leads to just such conclusion.”

The holding was approved in Seelbach, supra.

Our construction of Sec. 12e, supra, is compelled by its own language and by the decision of the Supreme Court in Seelbach.

The statute plainly states that the existent liability must be for an “injury” for which a “surgical operation” will prove beneficial.

Unless the nature of the injury is known or admitted, then the proffer of surgery is meaningless, unless it could be said that surgery is beneficial for all ailments. The mere tender of surgery, of itself, is an admission of nothing.

We quote from Seelbach:

“While § 12b is applicable only to an inguinal hernia and provides that the Board initiate the steps preliminary to an operation for that kind of injury, and § 12e relating to all other injuries is permissive and optional in that respect, all of that creates no distinction so far as the admissibility of this testimony is concerned. Section 12e concludes as follows:

" 'The results of such operation, the question as to whether the injured employee shall be required to submit thereto and the benefits and liabilities arising therefrom shall attach, be treated, handled and determined by the Board in the same way as is provided in the case of hernia in this law.’

“It must be conceded, we think, that in the case of an inguinal hernia where liability has not been admitted and the order for an operation has been refused by the insurer, testimony would not be admitted on appeal to prove that an operation would be successful and the disability reduced accordingly. Then it is difficult to see how or why it would be admissible in the case of any other kind of injury. The controlling principle is the same.” (Italics ours.)

Conceding, without deciding, that appellant made an unconditional tender of surgery to remedy a protruding disc, it is undisputed that appellant at no time while this claim was before the Board admitted that Mrs. Courtney suffered this infirmity. In fact, it consistently denied this nature of her injury.

Being of the opinion that appellant did not make the requisite admission of liability in order to invoke the procedures of Sec. 12e, supra, it is unnecessary for us to pass upon the remaining requirements laid down in Quinn, supra.

The judgment of the Trial Court is affirmed.

Affirmed.