Commercial Insurance Co. of Newark v. Smith

596 S.W.2d 661, 1980 Tex. App. LEXIS 3166
CourtCourt of Appeals of Texas
DecidedMarch 13, 1980
Docket18166
StatusPublished
Cited by18 cases

This text of 596 S.W.2d 661 (Commercial Insurance Co. of Newark v. Smith) 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
Commercial Insurance Co. of Newark v. Smith, 596 S.W.2d 661, 1980 Tex. App. LEXIS 3166 (Tex. Ct. App. 1980).

Opinions

OPINION

HUGHES, Justice.

This is a workers’ compensation case involving the time when an occupational disease first distinctly manifested itself. Jeannette Smith was awarded, by judgment on a jury verdict, permanent partial disability as a result of her allergic reaction to chemical substances, especially those in a glue, used by her employer in its manufacturing processes. The crucial questions in this appeal are whether Mrs. Smith timely complied with the notice and claim filing provisions of the Workers’ Compensation Act.

We affirm.

The applicable statute is Tex.Rev.Civ. Stat.Ann. art. 8307 § 4a (1967) which provides:

“Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after . . . the first distinct manifestation of an occupational disease, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after . the first distinct manifestation of an occupational disease; . . . . For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board. (Acts 1947).

Good cause is not an issue in this case.

Mrs. Smith had the burden of establishing that she complied with both of the requirements in this section in order for the trial court to have jurisdiction of this suit. She pled that she met all jurisdictional requirements for perfecting her claim. Her employer’s insurance carrier, Commercial Insurance Company of Newark, New Jersey, answered by sworn denial alleging that her employer did not have notice within the statutory time limits and further that her claim was not timely filed. No issues were submitted to the jury on these two questions and Commercial’s objections to their omission were overruled.

The material evidence in this case is as follows: Mrs. Smith went to work for ARA Manufacturing in 1972. She worked on the assembly line in their manufacturing plant assembling air conditioners for various types of vehicles. She did not have one certain job but would work on a variety of projects, sometimes changing in the course of a day or over a period of days. The work, even on a specific air conditioner, was seasonal. She first began experiencing symptoms in the latter part of 1974, around December. Her face, feet, hands and legs swelled. Also, her eyes swelled and burned. The symptoms coincided with her work on an air conditioner for Ford Motor Company and involved the use of a certain glue. She [663]*663testified that this particular glue was only used on these air conditioners. Her job was to apply it with a brush to insulate each side of a heater coil. She stated that the problems with the glue “gradually came on” and that, at the time they began, she did not recognize what was causing the problems. She testified that she told her supervisor “when I began to notice it.”

Other workers testified as to the irritations caused by working both with this glue and others used in the plant, and to Mrs. Smith’s symptoms. John McDowell, her supervisor, testified that many employees found the chemical substances used irritating. Mrs. Smith reported her symptoms to John McDowell, who testified she did so on February 3,1975. He sent her to Dr. Womble, the company doctor, that day. Dr. Womble diagnosed her as having an allergy to the chemical substances with which she worked, gave her some medication, and sent her back to work with instructions to avoid chemicals, fumes, and solvents. She returned from the doctor with a slip from him containing his diagnosis and instructions. McDowell testified he could not remember whether Mrs. Smith returned the slip to him or to someone else in the company, but the next morning, February 4, 1975, James Bedford, one of McDowell’s supervisors, filled out an accident report. Another employee of ARA testified she prepared the E-l, the Employer’s First Report of Injury to the Industrial Accident Board, February 5.1975, but it was not filed until February, 1976, a year later.

By its first three points of error, Commercial argues that Mrs. Smith failed to establish either by jury answer or by conclusive evidence, as required by Rule 279, her compliance with the timely notice provisions of art. 8307 § 4a.

It is clear Mrs. Smith’s employer had notice of her occupational disease February 4.1975. The record is uncontradieted. Her supervisor admitted it from the stand. The question then is whether this notice was within 30 days of the first distinct manifestation of her occupational disease. Commercial argues that while her employer had notice of her disease, it was never established that this notice was within 30 days of its first distinct manifestation. Commercial contends it was never established when the first distinct manifestation of her disease occurred, nor that it occurred on February 4, 1975. It argues that the only date mentioned in this connection was in late 1974 when Mrs. Smith testified she first noticed a problem she related to her work, and therefore the notice was untimely. It would have us hold that Mrs. Smith admitted this date as her first distinct manifestation.

Mrs. Smith argues that no issue was necessary on the question of notice because her supervisor admitted on the stand that he had notice February 3, 1975, the day she testified was the first day she “began to notice” the problem and reported it to her supervisor because she knew that he was the person to whom she was to report such a thing.

The phrase “first distinct manifestation” has seldom been the subject of judicial interpretation in this stai \ It was first construed in Travelers Insurance Company v. Miller, 390 S.W.2d 284 (Tex.Civ.App.—El Paso 1965, no writ). As in this case, the carrier in Miller contended that notice had not been given within 30 days of the first distinct manifestation. The court held that the phrase meant the first time the claimant knew, or should have known, that he had an occupational disease. It stated:

“A distinct manifestation of an occupational disease, therefore, denotes that its existence is clearly evident. It should be clear to the claimant before the loss of his right to compensation is denied for failure by him, or someone in his behalf, to take positive action within the period of time prescribed. We think that the statute means that the manifestation must be distinct to the claimant, reasonably sufficient to cause him to believe that he has an occupational disease.” 390 S.W.2d at 288.

Commercial would have us view the evidence as if this claim had a certain date that could be established as the first dis[664]*664tinct manifestation. It would alternatively have us interpret that phrase to mean first symptom. Its arguments are more suited to accidental injuries, and there are inherent differences between accidental injuries and occupational diseases. “An industrial accident can always be traced to a definite time, place and cause, whereas an industrial disease is a slow and gradual development," and the time, place and cause thereof are not susceptible of definite ascertainment.” Aetna Cas. & Sur. Co. v. Shreve, 551 S.W.2d 79

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Commercial Insurance Co. of Newark v. Smith
596 S.W.2d 661 (Court of Appeals of Texas, 1980)

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Bluebook (online)
596 S.W.2d 661, 1980 Tex. App. LEXIS 3166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commercial-insurance-co-of-newark-v-smith-texapp-1980.