Texas Employers' Insurance Ass'n v. Chappell , 486 S.W.2d 818 ( 1972 )

OPINION

BISSETT, Justice.

This is a workmen’s compensation case. The jury, among other findings, found that the plaintiff, Arthur R. Chappell, hereinafter called appellee, was totally and permanently disabled as a result of an injury sustained by him on November 29, 1962, that such total incapacity commenced on May 23, 1963, that the injury suffered by him on November 29, 1962 was a producing cause of such incapacity, that the injury of June 11, 1969 did not contribute to such incapacity, and that the reasonable costs of medical services reasonably required by him in the treatment of his injury, and not theretofore paid by Texas Employers’ Insurance Association, were $3,726.75. Judgment allowing a recovery of $19,082.52 ($15,355.77 lump sum for compensation benefits from November 29, 1962 to October 10, 1971 and $3,726.75 for medical services that accrued subsequent to June 11, 1969) was rendered on the verdict. We affirm.

Texas Employers’ Insurance Association, hereinafter sometimes called appellant and sometimes called “TEIA”, in its first two points, challenges the jury findings that the appellee was totally disabled. Complaint is made that such findings are so contrary to the overwhelming weight and preponderance of the evidence as to be manifestly unjust. We, therefore, review all the evidence in the record.

Appellee was employed by United Carbon Company (later known as Ashland Oil and Chemical Company) in March, 1944 as a “black puller”. His duties required pulling carbon black from a spout lever into sacks, stacking these sacks on a buggy, and pulling the buggy to the warehouse. The job involved heavy lifting and climbing. He held this job until sometime in 1955, when he injured his leg.

Appellee was unable to work for about a year following his 1955 leg injury. When he did return to work it was for the same employer, United Carbon Company. He did not return to the “black puller” work he had been doing previous to his leg injury, but was assigned to work in the bathhouse, which work did not require heavy lifting or climbing. This work involved mopping floors, carrying bags of soiled work clothes from the employees’ lockers to the laundry in the bathhouse, laundering the clothes, and performing other services in the bathhouse of a janitorial nature. Such duty was considered by his employer to be light duty and was assigned to “people that can’t perform all the duties required in the rest of the plant”. He worked at this job a steady eight hours per day, ten days on and four days off.

On November 29, 1962, appellee, while working in the bathhouse, slipped and fell, hitting his head and shoulder on the side of a door as he went down. He was first treated by Dr. Draper, the company doctor and his family doctor. Dr. Draper sent him to the hospital and called in Dr. Up-shaw, an orthopedic surgeon, who concluded that appellee had sustained a lumbo-sacral intervertebral protrusion and an acute cervical strain. Dr. Upshaw operated to remove the protruding disc and to fuse the spine from the fourth lumbar to the sacral.

Appellee returned to his job on May 23, 1963, where he worked steadily until June 11, 1969. He testified that while reaching over to pick up some laundry, he experienced extreme pain from his back to the top of his head. He was hospitalized and Dr. Wilk, an orthopedic surgeon, diagnosed a ruptured disc in his neck. A neck fusion operation was performed. It was not successful. Appellee did not return to work after June 11, 1969.

Appellee was illiterate in that he could not read or write, although he could sign his name. He testified that upon his return to work in May, 1963 for the same employer and while he performed the same duties in the bathhouse that he had previously performed, he suffered pain all the time in his “head, neck, shoulder and arms”. He took aspirin “all the time”. When he went home from work, he would take a hot bath and go straight to bed, because “I was give out”. He had trouble getting out of bed in the mornings because of “muscle spasms” in his back and left leg. When asked about his problems in performing his duties, he replied: “I just hurt sometime and I would have to lay down on a bench awhile”, and “I didn’t have any grip in my hand. Shoulder and head hurt all the time”. He was asked: “Did you have anything like that before you fell in 1962?”; he answered: “No, sir”. Appellee stated that he did not know how to do any work that did not require the use of his back and arms. He further testified that he really did not feel like going back to work after his 1962 injury and that he should have consulted his doctor about his continuing difficulties, but that he had to work as there was no way for him to support himself and his family on $35.00 per week because of his wife’s health. Appellee’s wife was not employed outside the home and had psychiatric problems that caused her to enter the hospital about once a year. Her condition, however, was not of any great concern to appellee.

Mr. Pitts, appellee’s supervisor, testified that he did not note any difference in the way or manner that appellee performed his duties after the 1962 injury from his performance before that incident. However, he did not see appellee but once every week or so when he made periodic checks of the bathhouse. He did not know of appellee’s problems, but he did say that if appellee had not been working for Ashland Chemical at the time of his injury in 1962 that he would not have been hired to work in the bathhouse following his back operation in 1963. He also testified that his company did not, as a general rule, hire anyone over thirty. Appellee was about fifty-two years of age in 1963.

Dr. Upshaw testified (a) that in April, 1963, appellee was still complaining of pain in his neck and on into his left shoulder; (b) the cervical strain he (Dr. Upshaw) diagnosed in 1962 could be a “contributing cause” to appellee’s present incapacity, although he diagnosed degenerative arthritis in appellee’s neck upon examination of x-rays that were taken subsequent to June 11, 1969; (c) an injury to the neck can cause pain in the shoulder; (d) the mere fact that a man uses his neck in his work does not mean that it does not hurt him; (e) appellee had a certain “residual”, “persistent” and “permanent” disability caused by his lower back condition, limited motion because of the fused joints, and muscular weakness in the low back region; (f) that the limited motion in the low back caused by the fusion increased the stress and degeneration of the spine above the fusion; and (g) that from a medical standpoint it would be better for a man with a lumbo-sacral fusion and an acute cervical strain not to perform any work involving repetitive lifting, stooping, or twisting. He further testified that a number of companies would not hire a man in appellee’s physical condition as it existed in April, 1963, when he cleared appellee as being able to go back to work. He concluded that in view of appellee’s complaints and of his (Dr. Upshaw’s) objective findings, that appel-lee’s consideration of retirement following the 1969 injury was probably a good one.

Dr. Wilk stated that appellee did not give him a history of any neck problem when he first examined him following the 1969 injury, nor did he complain of soreness in his neck during the initial examination. The x-rays of October, 1969 showed a degeneration in the neck spinal area, which, according to Dr. Wilk, could have been caused by either an injury or by old age. Appellee was referred to Dr. Norstrum who performed a spina myelogram which revealed external pressure on the spinal canal. Dr. Wilk further testified (a) that plaintiff’s low back problems probably began in 1962 when he was injured; (b) that the back condition was probably “re-exacerbated” by the 1969 injury, although the 1962 injury was the most important factor contributing to this condition; (c) that there was nothing in the history given him by appellee to indicate that the 1969 injury contributed in any way to the condition in which he found appellee’s neck in October, 1969; and (d) that assuming a diagnosis of acute cervical strain in 1962, that this condition could have contributed to the neck condition in 1969. He described the neck fusion operated as a failure, said that appellee was permanently disabled from doing most anything, and, further, that there was nothing more that he could do to help him.

In a workmen’s compensation case, the rule seems to be that where it can reasonably be inferred from the evidence that the claimant’s injuries are permanent and totally disable him from performing his usual task as a workman in such a way as to enable him to obtain and retain employment, a verdict in his favor on the issue of total and permanent disability will be affirmed. Texas Employers’ Ins. Assn. v. Mallard, 143 Tex; 77, 182 S.W.2d 1000 (1944); Traders & General Ins. Co. v. Daniel, 131 S.W.2d 276 (Tex.Civ.App.—El Paso 1939, writ dism’d, judg. corr.); Liberty Mutual Insurance Company v. Parrish, 469 S.W.2d 620 (Tex.Civ.App.—Waco 1971, n. w. h.); Texas Employers Insurance Association v. Smith, 374 S.W.2d 287 (Tex.Civ.App.—Beaumont 1963, n. w. h.).

Any doubt as to whether the evidence supports the jury finding of total and permanent disability must be resolved in favor of the injured workman. Bailey v. American General Insurance Company, 154 Tex. 430, 279 S.W.2d 315, 318 (1955); Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 256 S.W.2d 73 (1953).

Appellant, in support of its position, relies heavily upon Texas Employers’ Ins. Ass’n v. Moran, 261 S.W.2d 855 (Tex.Civ. App.—Eastland 1953, writ dism’d) ; Texas Employers’ Ins. Ass’n v. Vineyard, 316 S.W.2d 156 (Tex.Civ.App.—Dallas 1958, n. w. h.), and Fidelity & Casualty Company of New York v. Burrows, 404 S.W.2d 353 (Tex.Civ.App.—San Antonio 1966, writ ref’d n. r. e.). These cases are distinguishable on the facts from the instant case.

In Moran and Vineyard, the injured workman had been able to obtain and retain employment after he was injured. Here, appellee stayed on the job with the same employer and therefore had not passed a pre-employment examination for a new employer. The testimony of Dr. Up-shaw, Dr. Wilk, Mr. Pitts and of appellee raised an issue as to whether appellee was able to obtain employment subsequent to his 1962 injury.

In Burrows, the plaintiff was a single man who was living with his parents. The court found that there was no evidence of hardship that would compel him to work in spite of incapacity. In the case at bar, the appellee had to support a wife (who required psychiatric treatment in a hospital about once a year) and at least one minor child. The evidence shows that appellee was economically compelled to work despite his pain and incapacity in order to take care of himself and his family. See Consolidated Underwriters v. Whittaker, 413 S.W.2d 709 (Tex.Civ.App.—Tyler 1967, writ ref’d n. r. e.); Texas Employers’ Ins. Association v. Price, 336 S.W.2d 304 (Tex.Civ.App. — Eastland 1960, n. w. h.).

The questions of extent of the injury and duration of the incapacity of an injured person can never be answered precisely. Angelina Casualty Company v. Spencer, 310 S.W.2d 682 (Tex.Civ.App.—Beaumont 1958, writ ref’d n. r. e.). There is no set rule for measuring or determining the degree of incapacity of an injured workman. It is the province of the jury to decide these issues from all the facts in evidence.

In our opinion there is ample evidence of probative force to support the findings of the jury that appellee sustained total and permanent incapacity by reason of his injury of November 29, 1962. Any inconsistencies or conflicts in the testimony were resolved by the jury in ap-pellee’s favor, as was its privilege. After reviewing the entire record and considering the evidence which supports the jury findings complained of by appellant and also that which is contrary thereto, we hold that such findings are not against the overwhelming weight and preponderance of the evidence as to be manifesly unjust under the rule laid down by In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). Appellant’s first two points are overruled.

Appellant, by points three to six, challenges the award to appellee of $3,726.75 for medical expenses. It contends that it was not responsible for the payment of such medical expenses, because it was not notified subsequent to June 11, 1969 of the necessity for medical treatment by reason of the injury of November 29, 1962, that such medical bills were incurred after it was so notified, that such an award constituted double recovery to appellee, and that as all such medical bills were either paid or guaranteed by Insurance Company of North America, this suit is against public policy as it was instituted for the benefit of that company and not for the benefit of appellee. We do not agree.

The parties stipulated that $3,726.75 in medical services had been furnished ap-pellee since June 11, 1969, and that said services were reasonably worth that amount of money. The jury found that $3,726.75 was the reasonable cost of medical services reasonably required by appel-lee resulting from his injury of November 29, 1962, and not theretofore paid by appellant.

At some time between May 23, 1963 and June 11, 1969, United Carbon Company became Ashland Chemical Company, and acquired a new workmen’s compensation carrier, Insurance Company of North America, hereinafter called “INA”. It paid weekly compensation to appellee subsequent to June 11, 1969 in the aggregate amount of $1,156.00. INA also paid appellee an additional sum of $12,500.00 in settlement of his workmen’s compensation claim, and under the settlement agreement it was agreed that appellee would be entitled to an additional sum of $1,000.00, conditioned upon his making and pursuing to trial a claim against TEIA for workmen’s compensation benefits. It was also agreed by and between appellee and INA that medical services were furnished appellee subsequent to June 11, 1969 in the amount of $3,726.75, and that of this sum $971.20 was paid by INA, and that INA was obligated to pay the remainder of these medical expenses ($2,755.55) in the event the same were not recovered by appellee in his suit against TEIA.

Appellant says that it was not notified, as required by Section 7, Article 8306, Vernon’s Ann.Civ.St., that the ap-pellee “was in need of medical attention following the incident of June 11, 1969, until sometime after November 6, 1969”. The only notice required by that section of the statute, in order to give rise to the insurance carrier’s duty to provide reasonable and necessary medical services to the injured workman, is notice of injury. Neither specific notice of a claim for medical services nor a request therefor is required as a condition of the carrier’s responsibility. Texas Employers’ Ins. Ass’n v. Steadman, 415 S.W.2d 211 (Tex.Civ.App. — Amarillo 1967, writ ref’d n. r. e.) ; Standard Fire Insurance Company v. Simon, 474 S.W.2d 530 (Tex.Civ. App.—Dallas 1971, n. w. h.); Trinity Universal Insurance Company v. Farley, 408 S.W.2d 776 (Tex.Civ.App.—Tyler 1966, n. w. h.). In this case, the record clearly shows that appellant was the compensation carrier for appellee’s employer on November 29, 1962, ■ and had notice of appellee’s 1962 injury to both his back and neck. Therefore, under the provision of Section 7 of the statute and the decisions construing it, appellant was required to furnish appellee all reasonable and necessary medical care for the 1962 injury. As appellant’s liability for medical services arose out of appellee’s 1962 injury and it being undisputed that appellant did have timely notice of that injury, appellant’s refusal to pay for the medical bills that were incurred subsequent to the incident of June 11, 1969 cannot be excused on the ground that it was not then notified that appellee needed medical treatment.

Appellant also says that it is not liable for such medical services because there is no evidence that it (TEIA) refused, failed or neglected to furnish ap-pellee medical care and treatment after June 11, 1969. It relies on Few v. Charter Oak Fire Insurance Company, 463 S.W.2d 424 (Tex.Sup.1971) and Liberty Universal Insurance Company v. Gill, 401 S.W.2d 339 (Tex.Civ.App.—Houston 1966, writ ref’d n. r. e.). Neither case is in point. In each of the cited cases the claimant changed doctors while still under the care of the doctor furnished by the carrier. In Few, the change was made without the carrier’s consent. In Gill, the carrier furnished medical care whenever requested to do so and the doctor furnished by the carrier never refused to see or treat the injured person. In this case, the appellee did not change doctors; he was treated in 1969 by the same Dr. Draper and Dr. Upshaw who treated him in 1962; appellee was referred to Dr. Wilk by Dr. Draper in 1969. All of these doctors treated appellee at the behest of his employer. In Few and Gill, the carrier stood ready and willing to provide the claimant with all reasonably required medical services, whereas, in the case before us, the carrier at the time of the injury in 1962 has refused to pay medical bills that were required after June 11, 1969.

Appellant further contends that it is not liable for such medical services because no issue was submitted which inquired into TEIA’s refusal, failure or neglect to furnish such medical services. Since appellant’s refusal, failure or neglect to provide medical services incurred by appellee after June 11, 1969 was conclusively established by the evidence, no error was committed by the trial court in refusing to submit an issue on that point. Aetna Casualty & Surety Company v. Jennusa, 469 S.W.2d 423 (Tex.Civ.App.—Beaumont 1971, n. w. h.); Harleysville Mutual Insurance Company v. Frierson, 455 S.W.2d 370 (Tex.Civ.App.—Houston 14th 1970, n. w. h.); Texas Employers’ Insurance Ass’n v. Steadman, supra; Saint Paul Mercury Indemnity Co. v. Tarver, 272 S.W.2d 795 (Tex.Civ.App.—Eastland 1954, writ ref’d n. r. e.); Texas Employers’ Ins. Ass’n v. Hierholzer, 207 S.W.2d 178 (Tex.Civ.App.—Austin 1947, writ ref’d n. r. e.). Furthermore, Mr. R. M. Boerum, Jr., a claims coordinator for appellant, stated that TEIA would have refused appellee medical treatment on June 11, 1969 and on November 6, 1969, even if a specific request therefor had been made by appellee.

Appellant also argues the force and effect of Pacific Employers Insurance Company v. Jones, 416 S.W.2d 583 (Tev.Civ.App.—Eastland 1967, writ ref’d n. r. e.). That case is not applicable to the case at bar because it involved a subsequent injury which contributed 40% to the injured workman’s incapacity. Here, the jury found that the injury of June 11, 1969 did not contribute to appellee’s incapacity. See St. Paul Fire & Marine Insurance Co. v. Murphree, 163 Tex. 534, 357 S.W.2d 744, 748 (Tex.Sup.1962).

In addition to the preceding contentions advanced by appellant, the assertion is made that appellee “himself was neither responsible for those medical bills nor did he actually pay those medical bills himself”, and that under the circumstances the judgment rendered permits appellee “a double recovery, which is clearly opposed to the intention of the Texas Workmen’s Compensation Act”. We have not found a case involving two compensation carriers comparable to the fact situation presented by this appeal. But, Black v. American Bankers Insurance Company, 478 S.W.2d 434 (Tex.Sup.1972) is most persuasive. In that case the hospitalization insurance company sought to avoid liability for all medical expenses of the insured (Black) that were actually paid by Medicare, contending that these particular expenses were not “actually incurred” by the insured under the terms of the policy. The Supreme Court rejected such contention. It held:

“ . . . Further, as a matter of law, we hold that when plaintiff entered the hospital and received its services, there was created an implied contract to pay for same, and he was liable therefor until he or someone else paid the bill. The fact that his action created a derivative obligation on the part of one or more third parties to pay the hospital, or to reimburse him, did not affect his obligation under the implied contract between him and the hospital. If these derivative obligors had failed to pay, the hospital would have had a legal claim against plaintiff. ...”

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“Therefore, we hold that plaintiff ‘actually incurred’ the hospital expenses in question even though they were eventually paid on his behalf by Medicare. As between plaintiff and defendant, the result is the same as if another of plaintiff’s insurers had obligated itself to pay, and did pay, the expenses direct to the hospital. . . . ”

In American Indemnity Company v. Olesijuk, 353 S.W.2d 71 (Tex.Civ.App.—San Antonio 1961, writ dism’d) and Republic Bankers Life Insurance Co. v. Anglin, 433 S.W.2d 795 (Tex.Civ.App.—Texarkana 1968, n. w. h.), both cited by the Supreme Court in Black, each Court of Civil Appeals held that the hospitalization insurance carrier was liable for the coverage due under its contract even though the carrier argued that the insured incurred no expense or that a third party had responsibility for such coverage. In Olesijuk, the injured was a member of the U. S. Navy and the Secretary of the Navy, under appropriate regulations, reimbursed him for the expenses incurred. The Court held that in spite of the reimbursement, Olesijuk had incurred expenses and consequently the carrier owed him coverage under the contract. In Anglin, the insured (Anglin) was injured at work and was furnished medical treatment. The possibility of workmen’s compensation coverage had not been litigated at the time of the suit. Additional to possible compensation benefits, Anglin had hospitalization insurance coverage. The Court held that the argument that Anglin “suffered no loss because he had not paid the hospital charges at trial time, or that the compensation carrier was, or probably would be, liable” avoids the issue.

In the instant case, when appellee accepted the medical services in issue, he became primarily responsible to pay for them. That there might have been a derivative liability on the part of INA to pay these bills or that they were either paid or guaranteed by INA is immaterial to the issue of TEIA’s statutory liability therefor. Appellant’s points three to six, both inclusive, are overruled.

Point seven was not briefed. It is considered as waived and is therefore overruled. Roberts v. K-Mart Foods, Inc., 470 S.W.2d 751 (Tex.Civ.App.—Dallas 1971, writ ref’d n. r. e.); Employers’ Nat. Life Ins. Co. of Dallas, Tex. v. Willits, 436 S.W.2d 918 (Tex.Civ.App.—Amarillo 1969, writ ref’d n. r. e.).

The judgment of the trial court is affirmed.