





Claridy v. Tex Emp Ins Ass'n                                        






                            AFFIRMED
                         JULY 26, 1990

NO. 10-89-106-CV
Trial Court
# 29,862
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO

* * * * * * * * * * * * *

ERNEST CLARIDY,
   Appellant
v.

TEXAS EMPLOYERS' INSURANCE ASSOCIATION,
   Appellee

* * * * * * * * * * * * *

 From 66th Judicial District Court
Hill County, Texas

* * * * * * * * * * * * *

Appellant Ernest Claridy sued appellee Texas Employers'
Insurance Association (TEIA) for benefits payable under the
worker's compensation law for total and permanent incapacity
resulting from an injury he sustained on April 8, 1987 while in the
course and scope of his employment with Flowers Construction
Company.  TEIA pleaded, among other defenses, that one or more
prior or subsequent injuries contributed substantially to any
incapacity now complained of by Claridy, "including, but not
limited to, a compensable injury allegedly sustained by [Claridy]
on or about July 16, 1987, while [Claridy] was working in the
course and scope of his employment for Flowers Construction
Company, Inc., for which compensable injury [Claridy] has filed a
claim with the Industrial Accident Board of the State of Texas
against Argonaut Southwest Insurance Company."  
A jury found that Claridy received an injury to his back on
April 8, 1987; that the injury was a producing cause of total but
temporary incapacity which began on August 3, 1987 and will end on
April 12, 1995.  The jury also found in response to questions ten
and eleven that an injury to Claridy's neck on July 16, 1987
contributed 65% to the total incapacity found by the jury.  The
trial court rendered judgment on the verdict, subtracting the
percent of incapacity contributed by the subsequent injury.
This appeal was brought on a single point of error directed at
the trial court's denial of Claridy's motion to disregard the
jury's finding that the injury to Claridy's neck contributed 65% to
his present condition of incapacity.
Section 12c of Article 8306, Vernon's Texas Civil Statutes,
provides in part as follows:
(a) If an employee who has suffered a previous
injury shall suffer a subsequent injury which results in
a condition of incapacity to which both injuries or their
effects have contributed, the association shall be liable
because of such injury only for the compensation to which
the subsequent injury would have entitled the injured
employee had there been no previous injury; provided that
there shall be created a fund known as the "Second Injury
Fund," hereinafter described, from which an employee who
has suffered a subsequent injury shall be compensated for
the combined incapacities resulting from both injuries.

Claridy correctly asserts that the language of the statute
deals specifically with reduction of liability of the worker's
compensation insurance carrier for subsequent injury benefits
because of the contribution of a prior injury to the incapacity
claimed by the employee for the second injury, whereas in our case
the carrier seeks reduction for contribution allegedly resulting
from the second injury to the incapacity claimed by the employee
from the prior injury.  Nevertheless, although the wording of the
statute refers expressly to prior injuries for contribution, the
application of the statute, as presently worded, has been
interpreted as extending to subsequent injuries as well.  See St.
Paul Fire & Marine Insurance Company v. Murphree, 163 Tex. 534, 357
S.W.2d 744 (1962); Jones v. Pacific Employers Insurance Company,
416 S.W.2d 580 (Tex.Civ.App.--Eastland 1967, writ ref.n.r.e.);
General Ins. Corporation v. Hughes, 193 S.W.2d 230 (Tex.Civ.App.--Dallas 1946, no writ).  According to the cases, the application of
the principle of the statute to contribution of subsequent injuries
to incapacity prevents a double recovery by the employee and
reduces the insurance carrier's liability to the extent of the
injury actually insured.  Murphree, 357 S.W.2d at 748; Jones, 416
S.W.2d 582-83.
In order to be entitled under the statute to a reduction of
the worker's recovery because of another injury the compensation
insurance carrier must prove (1) that the other injury was
compensable, (2) that it contributed to the present incapacity, and
(3) the extent of the contribution.  Transport Insurance Company v.
Mabra, 487 S.W.2d 704, 707 (Tex. 1972).  Thus the statute requires
proof that the existing condition of incapacity was caused by the
combined effect of two or more injuries, but there is no
requirement that the separate injuries affect the same part of the
body or each other.  Alcocer v. Travelers Insurance Company, 446
S.W.2d 927, 928 (Tex.Civ.App.-Houston [14th Dist.] 1969, not writ).
The issue of whether or not a prior or subsequent injury has
contributed to the condition of incapacity claimed at the time of
trial will ordinarily be a question of fact, as it was in our case. 
Evidence in the case established that Claridy's back injury in
April 1987, upon which this suit is based, and his back injury in
July 1987 were suffered in the course and scope of his employment
with Flowers Construction Company, that both were compensable, and
that Claridy was in fact being compensated at the time of trial by
Argonaut Insurance Company with weekly benefits for incapacity
resulting from the neck injury.  Evidence also showed that the neck
injury contributed to Claridy's incapacity at the time of trial,
and supported the jury's finding of 65% contribution.
Claridy was injured in April 1987 when he was lifting an auger
that was used for drilling utility pole holes.  At that time,
Claridy believed that his injury consisted only of hernias.  He was
treated for the hernias by Doctors Spitzer and Campbell, a general
physician and a surgeon chosen by him.  Later, because of pain in
his thigh, leg and foot, he believed that he had also suffered a
low back injury as a result of lifting the auger in April.  Claridy
injured his neck in July 1987 when he hit his head against an
auger, "jamming" his neck.  His treating physician for his neck
injury was Dr. Slade.  He was also seen by Dr. Etheridge for a
"second opinion" about his neck injury.
Dr. Slade believed that the neck injury contributed more to
Claridy's incapacity than the back injury, testifying that it
contributed "more than fifty percent."  Claridy did not complain to
Dr. Spitzer or Dr. Campbell about his back, and neither knew of any
injury to Claridy's back as a result of the incident in April 1987. 
Dr. Campbell testified that any incapacity or disability suffered
by Claridy from the auger-lifting accident in April 1987 ended not
later than June 20, 1987.  He said that any incapacity suffered by
Claridy after June 20th would have been caused solely by something
other than the April injury.  Dr. Etheridge testified that he found
no objective evidence of a back injury.  He found no herniated
disc, although there was a bulging disc which he said could have
been caused by the aging process or arthritis or other factors.  He
attributed Claridy's visit to him on May 9, 1987, to a "secondary
gain factor" rather than to a real injury.
Thus the range of percentages by which the neck injury in July
1987 contributed to Claridy's condition of incapacity extended from
"more than fifty percent" according to Dr. Slade to one hundred
percent on the testimony of Dr. Etheridge and Dr. Campbell.  The
jury, as the fact-finder on this issue, set the percentage of
contribution at sixty-five percent, within the range of the
evidence.
Claridy's point of error and the contentions raised under it
are overruled.  The judgment is affirmed.
 
                          VIC HALL
PUBLISHJustice
 
