Elledge v. Texas General Indemnity

OPINION FULLER, Justice. In a worker’s compensation case, the jury awarded the injured worker total incapacity benefits for a period of ten months. The worker appeals. We reverse and remand for a new trial. Appellant, a floor hand employed by an oil drilling company, was injured on June 16, 1985, when a rope broke, slamming him against a piece of heavy equipment. Three days later, he went to a general practitioner, Dr. H.E. Hestand, on the recommendation of his employer. Appellant was treated by Dr. Hestand for eight weeks and released to return to work in August, despite his protests that his left hip and leg were still bothering him. Dr. Hestand did not testify at trial; his final medical report, admitted as an exhibit, indicated that no further disability was expected. Appellant did not return to work. He went to see another doctor, orthopedic surgeon Dr. Stephen Driscoll, several weeks after Dr. Hestand released him. Dr. Dris-coll prescribed epidural steroid injections and physical therapy. Because the treatment was not working, Dr. Driscoll decided to perform surgery on Appellant’s back on February 13, 1986, about eight months after the injury occurred. Dr. Driscoll testified by deposition that Appellant was unable to do work involving heavy physical exertion, would be unable to do heavy manual work in the future and had, in the doctor’s opinion, permanent total incapacity. Appellant testified that pri- or to the accident he was in good physical condition and engaged in activities such as hang gliding, rappelling off cliffs and skiing. Appellant asserted that since the accident, his physical activities were more limited, that he could not “bend and stoop, pick up anything.” In May of 1986, Appellant fell off a bicycle, injuring his left shoulder. Two months later, he was injured in a fall from a three-wheeler. Appellant testified that neither incident contributed to his physical problems resulting from the June 16, 1985 accident. In January of 1987, Appellant’s medical file was submitted to orthopedic surgeon, Dr. Vert Mooney, for his opinion on the appropriateness of Appellant’s medical treatment. Dr. Mooney testified by deposition that Dr. Driscoll’s diagnosis was correct and that “progress into surgical care was a reasonable form of treatment approximately eight months following injury with the failure to improve.” Dr. Mooney also testified, however, that the treatment program which Appellant received from Dr. Driscoll deviated from the standards of the medical community due to excessive use of physical therapy and excessive medication. Dr. Mooney opined that Appellant [327] should be able to return to work: “Initially it may not be at the level of physical demand before the injury, but certainly he should be able to return to some functional activity which then could be progressed into a more demanding physical activity.” In regard to Dr. Hestand’s initial release of Appellant, Dr. Mooney indicated on cross-examination, that “it’s very reasonable” that a general practitioner might miss a serious problem later discovered by a specialist. Dr. Mooney also testified on cross as follows: Q: How long, Doctor, do people take— not the best case or the worse case but an average — do they take after such a surgery to be where, in your opinion, they can do heavy manual labor? A: It really depends upon the postoperative care they receive, that if the postoperative care is expectant that the individual would have to return to strenuous physical activity, and I really mean very heavy work, but is done in an ideal setting, six months is reasonable. Q: Does it ever take longer? A: Sure. Q: Up to how long? A: Indefinitely. It depends when an appropriate treatment program is provided. Q: Assuming that the patient, for whatever reason, didn’t have what in your opinion is an appropriate treatment program, could it take even more than eight years? A: Yes, it could. Dr. Mooney admitted that he had never seen Appellant and did not know what kind of work he did; he testified, however, that he believed working on a drilling rig to be “very tough work. It requires climbing, lifting, twisting, pulling, pushing.” The insurance company paid Appellant for total incapacity at $203.00 per week until his release from Dr. Hestand. At trial, the jury found that Appellant was totally incapacitated from June 16, 1985, until April 16, 1986. Appellant asserts, in his first two points of error, that the jury’s finding of no incapacity beyond April 16, 1986, is against the overwhelming weight of evidence and is manifestly unjust and that the trial court thus erred in denying his motion for new trial and in entering judgment on the jury verdict. In reviewing a factual sufficiency challenge, the court must first examine all of the evidence, Lofton v. Texas Brine Corporation, 720 S.W.2d 804, 805 (Tex.1986), and having considered and weighed all the evidence, the court may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). The jury’s finding that Appellant suffered no incapacity beyond April 16, 1986, merely two months after his surgery, is against the great weight and preponderance of the evidence. Appellant’s evidence was that he suffered permanent incapacity. Even Appellee’s expert witness, Dr. Mooney, testified that Appellant would be unable to work for at least six months following surgery. See Love v. Travelers Insurance Company, 395 S.W.2d 682, 685 (Tex.Civ.App. — Texarkana 1965, writ ref’d n.r. e.). (Verdict that employee suffered no incapacity two months after surgery was against great weight of evidence, where insurance company witness testified that it would take from six to twelve months to recover.) Dr. Hestand’s diagnosis that Appellant could return to work in August of 1985, was repudiated by Dr. Mooney, who testified that it was quite reasonable for a general practitioner to miss a serious problem later detected by a specialist. The jury’s finding of incapacity through April 16, 1986, clearly indicates that the jury itself disregarded Dr. Hestand’s diagnosis. The only evidence which might support the jury’s finding is Appellant’s limited recreational activities (onetime bicycle ride in May of 1986, and one time three-wheeler ride two months later). This evidence is insufficient to outweigh the considerable evidence against the jury’s finding as to the duration of Appellant’s injury. Appellant’s first two points of error are sustained. It is therefore unnecessary to [328] consider the remaining points of error regarding the court’s charge. The judgment of the trial court is reversed, and the case is remanded for a new trial.