223 S.W.2d 528 | Tex. App. | 1949
This is a Workman’s Compensation case..
The appellee sued the appellant insurance company for compensation for total disability for a period of ISO weeks and recovered judgment for such compensation sued for.
The disposition of this appeal must be-determined by our view of the controversy between the parties as reflected in the appellant’s first point. Appellant’s first point is as follows: “It was error for the trial court to deny the defendant the right to a.
We disagree with this view of the permanence of the choice of the physician by the insurance company. We think the statute under which this controversy arose, Article 8307, Section 4, Revised Civil Statutes of Texas, Vernon’s Ann.Civ.St. art. 8307, § 4, does not limit the insurance carrier in its choice of a physician to make an examination of an injured employee to the first physician who treated the injured man. The injured man here received his injury in June, 1947, and claimed in his suit that the injury had caused injuries to his back and spine and to the nerves, tendons and vertebrae thereof and the disc thereof, and injured and damaged his left hip and the muscles, tendons, ligaments and nerves thereof; that it had caused him an irregularity in the contour of certain Segments of his spine and scoliosis of his spine, and hypertrophic spurs on contiguous body margins of his spine; that it had caused an injury to the nucleus pulposus of his lower spine; and claimed that such injuries totally disabled him and that such total disability would last for 150 weeks. He also pleaded in the alternative that the injury had aggravated a preexisting condition in his back and spine. It is evident that medical testimony in regard to Wallace’s condition at the time of the trial and shortly prior thereto was essential to a
The motion for the medical examination was presented to the court in ample time for the examination to be made without any interruption or delay of the trial and with no expense to the appellee. We are unable to understand the continued and stalwart efforts of appellee’s attorneys to restrict appellant in its choice of an examining physician to the one who had been attending him for the company prior to the trial. They are apparently thoroughly convinced that the insurance company had no choice in the matter, and if their client was to be examined again it could be done only by Drs. Matthews and Bell. We think the plain reading of the statute negatives such a construction. To make our holding as plain as possible, we say again that since the insurance company had the right to have the injured appellee examined by a physician of its own selection, it had the right to select Dr. Crager or any other doctor at the time it made the request for the examination, and was not limited to the doctor who had theretofore been treating the appellee.
The other two points on which appellant brings this appeal complain of the action of the trial court in overruling its motion for peremptory instruction and motion for judgment non obstante veredicto. Both points are based on its contention that the record established that appellee was not-in the course of his employment with C. H. Turner Construction Company at the time he was hurt. We make no discussion of these points except to say that in our opinion questions of fact were raised by the evidence, and such controversies were decided in favor of the appellee by the verdict of the jury. Both appellant’s 2nd and 3rd points are overruled for this reason.
Because of the trial , court’s error in denying the appellant’s motion for; a medical examination of the appellee by the physician of its selection, the cause is reversed and remanded for a new trial and for proceedings not inconsistent with this holding.