Anderson v. Hood County

958 S.W.2d 448, 1997 Tex. App. LEXIS 6045, 1997 WL 721663
CourtCourt of Appeals of Texas
DecidedNovember 20, 1997
DocketNo. 2-97-004-CV
StatusPublished
Cited by3 cases

This text of 958 S.W.2d 448 (Anderson v. Hood County) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Hood County, 958 S.W.2d 448, 1997 Tex. App. LEXIS 6045, 1997 WL 721663 (Tex. Ct. App. 1997).

Opinion

OPINION

LIVINGSTON, Justice.

I.INTRODUCTION

Appellant Emma Anderson appeals the trial court’s decision granting summary judgment in favor of Hood County in her workers’ compensation case. In two points of error, Anderson claims the trial court erred because material fact issues exist as to whether Anderson timely filed her “notice of injury” and her “notice of claim.” We affirm.

II.BACKGROUND FACTS

Anderson was employed as a cook at the Hood County Jail in 1991. On November 26, 1991, Anderson witnessed an inmate stab and kill another inmate in the kitchen. In May of 1993, Anderson began having stress reaction symptoms, including nightmares and daily crying episodes. Anderson first sought medical treatment for her problems in August 1993, when she went to see her family physician, Dr. Cary Clark. Anderson was not forthcoming with Dr. Clark about her symptoms but he recognized she had stress related problems tied to work and other factors. She stopped working at Dr. Clark’s direction on January 31, 1994 and then Dr. Clark referred her to a specialist in mental traumas, Dr. Patrick O’Malley. On February 17,1994, Dr. O’Malley saw Anderson and diagnosed her condition as Post-Traumatic Stress Disorder-Delayed Onset (PTSD).

Anderson filed a “notice of injury” the same day Dr. O’Malley diagnosed her with PTSD. She filed her “claim for compensation” a month later on March 16, 1994. Her claim was denied and a contested case hearing was held on June 28,1994. The hearing officer found: (1) Anderson did not suffer a compensable mental trauma injury; (2) the date of injury was May 1993; (3) she failed to make a timely report of her injury; and (4) she timely filed her notice of claim.

Anderson appealed the hearing officer’s decision to the Texas Workers’ Compensation Commission Appeals Board (“The Board”). The three judge panel split two-to-one in: (1) affirming the finding of no com-pensable injury; (2) reforming the finding of the date of injury from May 1993 to November 26, 1991; (3) affirming the finding of an untimely filed notice of injury; and (4) reversing and rendering the finding of a timely filed notice of claim after finding Anderson failed to establish good cause for her failure to timely file her notice of claim.

Anderson filed suit in district court seeking review of the Board’s decision. Hood County filed its motion for summary judgment asserting Anderson: (1) did not sustain a compensable injury; (2) failed to timely file her notice of injury; and (3) failed to timely file her notice of claim. The trial court heard arguments on the motion on September 6, 1996 and, on October 21,1996, granted summary judgment in favor of Hood County on grounds that Anderson failed to timely file both her notice of claim and her notice of injury.

III.DISCUSSION

In a summary judgment ease, the issue on appeal is whether the movant meets1 their [450]*450burden for summary judgment by establishing that there exists no genuine issue of material fact and that they are entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a; City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). The burden of proof is on the movant, and all doubts as to the existence of a genuine issue as to a material fact are resolved against them. See Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.1965). Therefore, we must view the evidence in the light most favorable to the nonmovant. See id. In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence will be disregarded and the evidence favorable to the nonmovant will be accepted as true. See Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Every reasonable inference from the evidence must be indulged in favor of the nonmovant and any doubts resolved in their favor. See id. Evidence which favors the movant’s position will not be considered unless it is uneontroverted. See Great American, 391 S.W.2d at 47.

Here, summary judgment was proper if Hood County proved as a matter of law that Anderson failed to fulfill either the notice of injury requirements of sections 409.001 and 409.002 of the Texas Workers’ Compensation Act (“the act”) or the claim of injury requirements of sections 409.003 and 409.004 of the act. See Tex. Lab.Code Ann. §§ 409.001-409.004 (Vernon 1996). We first analyze whether Anderson timely filed her notice of injury.

Section 409.001(a) states:

(a) An employee or a person acting on the employee’s behalf shall notify the employer of the employee of an injury not later than the 30th day after the date on which:
(1) the injury occurs; or
(2) if the injury is an occupational disease, the employee knew or should have known that the injury may be related to employment.

See Tex. Lab.Code Ann. § 409.001(a) (Vernon 1996).

Section 409.002 dictates that:

Failure to notify an employer as required by Section 409.001(a) relieves the employer and the employer’s insurance carrier of lability under this subtitle unless:
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(2) the commission determines that good cause exists for failure to provide notice in a timely manner;

See Tex. Lab.Code Ann. § 409.002(2) (Vernon 1996).

The date of injury, November 26, 1991, is not contested on appeal. Thus, we must decide if Hood County proved as a matter of law that Anderson lacked good cause for failing to timely file her notice of injury. Good cause can be establshed for the failure to timely file a notice of injury where a person does not beleve that his or her injury is severe or is mistaken as to its cause. See Butler v. Federated Mut. Ins. Co., 871 S.W.2d 950, 953 (Tex.App.—Fort Worth 1994, writ denied); Cigna Ins. Co. of Texas v. Evans, 847 S.W.2d 417, 420 (Tex.App.—Texarkana 1993, writ denied). This court has found good cause where a person has prosecuted a claim with the dilgence an ordinarily prudent person would have used under the same or similar circumstances. See Butler, 871 S.W.2d at 953.

An injured person’s diligence in prosecuting a claim must continue to the date the claim is filed. See Texas Cos. Ins. Co. v. Beasley, 391 S.W.2d 33, 34 (Tex.1965), cert. denied, 382 U.S. 994, 86 S.Ct. 576, 15 L.Ed.2d 480 (1966). Moreover, the totality of the claimant’s conduct must be considered in determining whether he or she acted with such ordinary prudence. See Moronko v. Consolidated Mutual Ins. Co.,

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958 S.W.2d 448, 1997 Tex. App. LEXIS 6045, 1997 WL 721663, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-hood-county-texapp-1997.