Gonzalez v. Texas Employers Insurance Ass'n , 772 S.W.2d 145 ( 1989 )

OPINION ON MOTION FOR REHEARING

By a motion for rehearing, appellant questions our disposition of point of error three and asserts that this Court is required to remand the cause for new trial in view of our conclusion that the jury’s answer to Special Issue No. 6 is against the great weight and preponderance of the evidence. We agree with appellant’s assertion and consider a re-analysis of point of error three to be in order.

Appellant’s third point of error asserts that the jury’s response to Special Issue No. 6 is against the great weight and preponderance of the evidence. Special Issue No. 6 reads:

6. Do you find from a preponderance of the evidence that Defendant failed to furnish within a reasonable time medical care reasonably required as a result of such injury?

Answer: We do not. (emphasis ours).

Appellant specifically argues that he is entitled to a lump sum for unpaid medical bills, including $5970.00 payable to Dr. Roth for services rendered after November 3, 1986, and $2679.20 payable to Spohn Hospital and Dr. Lewis for appellant’s surgery and hospital stay. The issue of appel-lee’s liability for these medical bills turns on whether such expenses were incurred “as a result” of the March 31, 1986, injury.

The standard of review applied by a court of appeals for determining whether a jury’s finding is against the great weight and preponderance of the evidence is well-known. If, after reviewing all of the evidence, the court finds that the jury’s answer is so against the great weight and preponderance of the evidence so as to be manifestly unjust, the court of appeals must set aside the jury’s answer and remand for new trial. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex.1986). The court has no authority to “find facts,” but only to hold that a factual finding was improper, or as is sometimes stated, to “unfind” facts.

The plaintiff/appellant had the burden of proof on elements of his recovery, both of production of evidence and of persuasion. The elements of a worker’s compensation action are 1) injury, 2) while in the course of employment, and 3) the extent and duration of the injury. After a worker has established that a compensable injury occurred, the carrier is responsible for all necessary medical care that results from the injury. The issue under consideration inquired whether the carrier failed to furnish medical care required as a result of the covered injury. There was no question that the care provided by Drs. Roth and Lewis, and Spohn Hospital was reasonable and necessary, nor that the costs of their treatments were incurred. The sole issue for the jury's resolution was whether the medical care resulted from the complained-of injury or a prior injury.

Appellee argues that there is “ample evidence” to support the jury’s implicit finding that appellant’s treatment and surgery were necessitated by a pre-existing accident which took place in 1982 and were not rendered as a result of the 1986 injury.¹ Such an implicit finding, appellee contends, in turn justifies the response to Special Issue No. 6.

It is well-settled that the mere existence of a pre-existing injury or disease which aggravates or enhances a complained-of-m-jury does not defeat a claimant’s right to recover workers’ compensation benefits. In order to defeat the claim, the insurance carrier must meet the burden of showing that the prior injury or illness is the sole cause of the claimant’s present incapacity. Texas Employers Insurance Association v. Page, 553 S.W.2d 98, 100 (Tex.1977).

Appellee failed to make such a showing at trial. Dr. Gonzalez testified that the March 31, 1986 accident “aggravated” appellant’s pre-existing injury. Dr. Roth stated unequivocally that the 1986 accident caused the condition for which he treated appellant. Dr. Lewis also testified that nothing in his records indicates that appellant’s condition could have arisen from any pre-1986 illness or injury.

All the evidence adduced at trial suggests that the condition necessitating the medical services in question was directly caused by, or at the very least aggravated by, the 1986 injury. Appellee offered no evidence suggesting that a pre-existing condition was the sole cause of appellant’s incapacity and resulting medical expenses; nor did it request the submission of a “sole cause” issue to the jury.

The jury’s failure to find that the medical expenses were incurred “as a result” of the compensible injury are against the great weight and preponderance of the evidence. Point three is sustained.

The judgment of the trial court is REVERSED and the cause REMANDED for new trial.

1 . Appellant testified that while working for Southwestern Bell in 1982, he fell from a telephone pole and Injured his right shoulder; he did not seek treatment for that injury until 1984.