Texas Employers' Insurance Ass'n v. Wright , 493 S.W.2d 263 ( 1973 )

STEPHENSON, Justice.

This is an action brought under the Workmen’s Compensation Law. Trial was by jury and judgment was rendered on the verdict that plaintiff recover for total and permanent loss of use of his left leg. The parties will be referred to here as they were in the trial court.

The uncontroverted evidence shows that plaintiff received an injury to his left leg March 10, 1969, and was furnished an operation on July 17, 1969. He continued to have trouble with his leg and on August 25, 1970, he made a request of the Industrial Accident Board that it order defendant to furnish a second operation. After a hearing, the Board entered such an order on January 26, 1971. However, plaintiff then declined to undergo surgery and later filed this suit.

The jury failed to find that the operation ordered would have materially and beneficially improved plaintiff’s condition. Defendant has a point of error that the trial court erred in failing to disregard the answer to that issue and in failing to render judgment non obstante veredicto limiting plaintiff’s recovery to fifty-two weeks of benefit because the undisputed evidence shows that such operation would have materially and beneficially improved plaintiff’s condition. This is a no evidence point and, in passing upon it, we consider only the evidence favorable to the jury’s answer.

Art. 8306, § 12b, Vernon’s Ann.Civ.St., the hernia statute, provides, in effect, that the Board can order an operation and, if the employee refuses to submit, he is entitled to compensation for incapacity under the general provision of the law for a period not exceeding one year. In Art. 8306, § 12e, V.A.C.S., it is provided:

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

It provides that the Board may order an examination, as in a hernia case, and, if the evidence shows that “such operation is advisable and will relieve the condition of the injured employee or will materially benefit him,” the Board can order an operation. If the employee refuses to submit to the operation, the Board may order the suspension of all or a part of his compensation.

“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.” Art. 8306, § 12e, V.A.C.S.

A part of the evidence in this case is a letter written by plaintiff’s attorney to the Board showing that a copy of a medical opinion of Dr. Bruce M. Cameron recommending surgery was enclosed and requesting defendant to furnish that treatment. Dr. Cameron was shown to be a specialist in orthopedic surgery and plaintiff had been sent to him by his attorneys. The evidence shows that, pursuant to that request, the Board appointed Dr. Hugh E. Alexander, Jr., to examine plaintiff. Dr. Alexander’s report to the Board is part of this record and in it he recommends an operation. Based upon plaintiff’s request and Dr. Alexander’s report, the Board entered a unanimous order in writing finding that a surgical operation should be performed on plaintiff and “that such operation is not ordinarily unsafe and will materially benefit and improve claimant’s condition.” The order named Dr. Alexander to perform the operation within the next twenty days. Plaintiff admits that he refused to submit to the operation.

Apparently the Supreme Court of Texas has not directly passed upon the question before us, even though these statutes were before the court in Garcia v. Travelers Insurance Company, 365 S.W.2d 916 (Tex.1963) and in Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521 (1960). In both of these cases, liability was not limited because no order was made while the claim was pending before the Board. In each instance, it was held that the trial court did not have that authority. In our present case, as mentioned, there is an order of the Board ordering the surgery and tracking the wording of the statutes in finding that the operation was not ordinarily unsafe and that it would materially benefit and improve plaintiff’s condition. As stated in Garcia, supra, upon receipt by plaintiff of the order of the Board directing surgery, plaintiff was put to the election to either have the surgery or be limited to compensation for a period not to exceed fifty-two weeks.

A careful reading of the statutes indicates that there are two questions to decide before ordering an operation. First, would the operation be more than ordinarily unsafe and, secondly, would the operation effect a cure or materially and beneficially improve the employee’s condition. The first question was not submitted, the only issue asking if the operation ordered would have materially and beneficially improved plaintiff’s condition.

Plaintiff testified that he had seen three bone specialists and they all recommended surgery. He said they told him they did not know what was wrong and that they did not know what they would be going after. He testified about the first operation being unsuccessful and as follows: “Well, I don’t want them to operate if they don’t know what they’re doing before they get in there. I’m too old to become a guinea pig now.” Dr. Cameron testified that plaintiff needed an operation and detailed the specific things that needed to be done. He stated that he had not told plaintiff that he needed to have his knee explored. He could not guarantee the outcome of the operation. In his opinion, the surgical procedure would have been successful and would have worked and plaintiff would be able to go about doing his job as a welder. Dr. Richard L. Shorkey testified that he performed the first operation and described it at length. He recommended the second surgery and stated that in his opinion it would be beneficial.

Defendant’s no evidence point is sustained. The evidence in this record establishes as a matter of law that the second operation would have materially and beneficially improved plaintiff’s condition.

We find no merit to defendant’s remaining points of error and they are overruled. We proceed to render the judgment that the trial court should have rendered. It is ordered that plaintiff recover fifty-two weeks of benefit at the rate of $35.00 per week, less thirty-two weeks of benefit already paid to plaintiff, leaving a balance of twenty weeks, plus interest from the date of the judgment.

Reversed and rendered.