Opinion
No. 3751.
July 14, 1938. Rehearing Denied August 12, 1938.
Appeal from District Court, Dallas County; Paine L. Bush, Judge:
Suit under the Workmen's Compensation Law by T. B. Wootton against the Aetna Casualty Surety Company, From a judgment awarding plaintiff compensation as for 60 per cent. partial permanent disability, defendant appeals.
Affirmed.
Appellee Wootton, a; carpenter and builder, brought this suit against the appellant to recover compensation under the Workmen's Compensation Laws, Vernon's Ann.Civ.St. art. 8306 et seq. It appears that he was a builder on a small scale, working as a journey-man carpenter on building contracts undertaken by him. He also worked for others as a journey-man carpenter. On September 17, 1935 appellee sustained personal injuries while in the course of his employment by the Sunset Crest Special. He fell about five or six feet upon a hard surface and building material. His injuries were alleged as a deep cut on his head, with a concussion of the brain; cuts, bruises, abrasions, lacerations, tears and sprains on and about his head, face, arms hands, legs, knees, ribs and back, the exact nature and extents of which he is at this time unable to allege definitely and at this time he is suffering with, as he has ever since said accident, pain and soreness in one wrist and in one knee and in his back about the level of his hips. He alleged he was totally incapacitated for about twelve weeks following the accident and since said twelve weeks' period he has been partially incapacitated to the extent of seventy-five per cent and his incapacity in the future will be for the rest of his life and not less than seventy-five per cent. He admitted he had been paid compensation for the first twelve weeks after his injury and for about twenty weeks after the twelve weeks' period compensation as for partial incapacity. The jury found (3) that immediately following total incapacity Wootton was partially incapacitated; (5) that such partial incapacity is permanent; (6) the percentage of partial incapacity is sixty per cent. Other issues submitted were found in favor of the plaintiff and need not be stated. Judgment was rendered in the plaintiff's favor awarding compensation as for sixty per cent partial permanent incapacity at the rate and for the length of time prescribed by Section 12, Article 8306, R.S. Credit was allowed for the payments theretofore made. From which judgment appellant, the insurance carrier of plaintiff's employer, prosecutes this appeal.
Harry P. Lawther and Lawther Cramer, all of Dallas, for appellant.
Shelby S. Cox, of Dallas, for appellee.
The evidence shows plaintiff has recovered from all of his injuries except to his wrist and knee. It is asserted the court erred in refusing appellant's requested peremptory charge because the evidence is insufficient to support the findings of partial permanent incapacity. It is true appellant's medical experts testified the plaintiff had entirely recovered from his injuries; but the jury was not bound to accept the testimony of such experts in view of the testimony of the plaintiff, which, to some extent, is corroborated by the medical experts. According to the testimony of the plaintiff he still suffers pain in his knee; it at times pops and is weak; at times his knee bends involuntarily causing him to fall. On account of this knee weakness and tendency to fall he is unable to do carpenter work on ladders, roofs and scaffolding. He also testified to a weakness in his left wrist which seriously impaired his capacity to labor. The weakness in his wrist disabled him for carpenter work about fifty per cent. On account of the condition of his wrist and knee he was not more than twenty-five per cent efficient and could not hold a job as a general carpenter.
Dr. J. H. Marshall, witness for appellant, testified he treated appellee in the hospital for a week or ten days, then treated him at home and then treated him in his office for some five or six months after January using infra-violet rays. At the end of the treatments the appellee complained of pain in the left wrist and fingers and there was some limitation of motion there; that upon the last and all other examinations appellee complained of pain and weakness and a grating feeling in his left knee; that the left knee was swollen and inflamed during a part of the electrical treatments; that there was quite a little injury to the left wrist and there was an inflammation there; that there was a probability that appellee has an arthritis in the knee and wrist; that such arthritis could be a permanent condition; that he quit giving the electrical treatments because, "It didn't seem like we were getting anywhere with the relief."
Dr. Joe McGuire, witness for appellant, testified that the general tendency is that in the vast majority of arthritic cases the condition is permanent and gets worse as the years go by.
The trial was in October, 1937, a little more than two years after plaintiff received his injuries. The testimony of the plaintiff, as above stated, raises the issue of partial permanent incapacity and supports the jury's findings as to such incapacity. According to Dr. Marshall's testimony it is probable that appellee has arthritis in the knee and wrist which could be a permanent condition. Dr. McGuire also testified that in the vast majority of arthritic cases the condition is permanent and gets worse as the years go by. The record here shows the injury to the wrist and knee has continued for more than two years, and from this fact and the testimony of Drs. Marshall and McGuire the jury might properly infer that the injury to the wrist and knee was permanent and would continue the remainder of plaintiff's life. The partial incapacity claimed by appellee was for injuries to specific members, namely, one leg and one hand. He claimed no incapacity from a general injury except a temporary one which had ended. The court, therefore, properly based appellee's compensation upon the provisions of Sec. 12 of Article 8306, R.S., rather than under the provisions of Sec. 11 of said article. Lumbermen's Reciprocal Ass'n v. Pollard, Tex.Com.App., 10 S.W.2d 982; Petroleum Cas. Co. v. Seale, Tex.Com.App., 13 S.W.2d 364; Maryland Cas. Co. v. Donnelly, Tex. Civ. App. 50 S.W.2d 388; Fidelity Union Cas. Co. v. Munday, Tex.Com.App., 44 S.W.2d 926.
There was, therefore, no occasion for appellee to show the difference between his average weekly wage before the injury and his average weekly wage earning capacity now.
Plaintiff's testimony supports the answer made to issue No. 6. His testimony would have warranted a finding of an even greater percentage of incapacity than sixty per cent.
We have not undertaken to separately discuss appellant's various assignments and their supporting propositions. The conclusions stated above control all questions presented.
Affirmed.