Houston General Insurance Co. v. Lujan

740 S.W.2d 34, 1987 Tex. App. LEXIS 8513

• Court: Court of Appeals of Texas
• Decided: October 14, 1987
• Docket: No. 08-87-00095-CV
• Status: Published

Opinions

OPINION

WOODARD, Justice.

Defendant carrier appeals from a judgment awarding death benefits under workers’ compensation to Plaintiffs. We reverse and render.

On July 11, 1985, the deceased was painting pipe when the paint spraying mechanism erupted and saturated him with paint. He poured about two and one-half gallons of gasoline on himself in an effort to remove the paint. He went home, cast off his clothes and entered a small bathroom containing a water heater. The pilot light of the heater ignited the fumes from his body, which in turn ignited the gasoline, paint, and paint thinner on his body. He died two days later.

What confronts us is a problem of origin of injury as opposed to its manifestation. A more fair approach may very well prescribe the origin to be the critical determinative with the moment of manifestation to be immaterial.

A case in point is Daniello v. Machise Express Co., 119 N.J.Super. 20, 289 A.2d (N.J.Misc.1972). In that ease, the claimant, a truck driver, delivered jet fuel on the day of injury. On one occasion, fuel splashed on his uniform and body, and during the day fumes permeated his clothing and body. After returning home in the evening, and while still wearing his uniform, claimant lit a match, at which time he burst into flames as the result of the ignition of the fumes which remained on his body and clothing. The court reversed a denial of benefits, holding that despite the fact the incident occurred while claimant was at home, it had its inception in claimant’s work.

The New Jersey statute in effect at the time compensated injuries “arising out of and in the course of his employment.” Workers’ Compensation Act (NJ.Stat.Ann. sec. 34:15-1).

Its Texas counterpart, Tex.Rev.Civ.Stat. Ann. art. 8309, sec. 1 (Vernon Supp.1987), requires that for an injury to be sustained in the course of employment, it must be established that: (1) the injury occurred while the employee was engaged in or about the furtherance of the employer’s affairs or business, and (2) the injury was of such kind and character as had to do with and originated in the employer’s work, trade, business or profession. Price v. American Rome Assurance Company, 562 S.W.2d 7 (Tex.Civ.App.-El Paso 1977, writ ref’d n.r.e.); Smith v. Texas Employer’s Ins. Ass’n., 129 Tex. 573, 105 S.W.2d 192 (1937); American Indemnity Co. v. Dinkins, 211 S.W. 949 (Tex.Civ.App.-Beaumont 1919, writ ref’d). Workers’ compensation is a creation of statute and is limited by the words of its origin. Our law, harshly perhaps, restricts the origin and manifestation of injury to the time and space confinement of engagement in or about the furtherance of employer’s affairs or business.

The issues submitted to the jury were a mutated form of the heart attack issues as set out in 2 State Bar of Texas, Texas Pattern Jury Charges, PJC 29.03 and 29.04 (1970). The heart attack type cases do not register as an exception to the rule. In those types of cases, the injury and its manifestation is a collapse of a heart weakness caused by strain or exertion. It meets the two-prong test even though the severity of the injury may progressively worsen.

The deceased suffered discomfort of the skin at the time of the gasoline soaking and it is contended that the injury commenced at that time. However, he died of combustible burning, not chemical, so we must reject this reasoning.

The Plaintiffs claim the positional risk doctrine. This doctrine is espoused in 1 Larson, Workmen’s Compensation Law sec. 6.50, at 3-6 (1985). The theory is that an injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured. So far, this doctrine has been restricted in Texas to cases regarding assaults by fellow man and an assault by stinging wasps. Walters v. American States Insurance Company, 654 S.W.2d 423, 426 (Tex.1983).

It is further maintained that the personal comfort and travel doctrine cases are additional examples of adoption of the positional risk theory. These cases are generally based on the thesis that the claimant has not left his course of employment at the time of the origin and manifestation of the injury. All points of error are sustained.

The judgment of the trial court is reversed, and judgment is hereby rendered that the Plaintiffs are denied recovery.