CHADICK, Chief Justice.
This is a suit by an injured workman for benefits payable out of the Second Injury Fund. The Second Injury Fund Act, Sec. 12c-1, 12c-2, Art. 8306, became a part of the Texas Workmen’s Compensation Law by an amendment in 1947. The judgment of the trial court awarding benefits is reversed and the case remanded for new trial.
Following denial of compensation by the Industrial Accident Board the appellee, Albert J. Parker, as plaintiff in the trial court, appealed by bringing this action against the Industrial Accident Board of the State of Texas in its capacity as administrator of the Second Injury Fund, as defendant, in a District Court of Dallas County. The trial judge directed a verdict upon all issues except that of lump sum payment. When the jury found in favor of Parker on the lump sum issue judgment was entered reciting that Parker was totally and permanently disabled and entitled to compensation benefits for 276 weeks at the rate of $35 per week. A total recovery of $9,660 with interest, costs, etc., was awarded and ordered paid out of the Second Injury Fund. The Board, in its special capacity, has perfected an appeal and briefs three points of error.
The facts in the case are uncontroverted, although the parties did not stipulate them. In May of 1946, Mr. Parker in an automobile mishap in the State of Pennsylvania lost his left arm to a point six or seven inches below the shoulder. He received no workmen’s compensation, or other recompense for the loss. On September 3, 1957, while employed by the Dew Construction Company and engaged in the performance of his duties he fell from a dirt loading machine, which ran over and crushed his left foot. Treatment of the foot required amputation of the great toe and the adjacent second toe, and the connecting metatarsal bones of the foot. The Board’s medical examiner, weighing the incapacity caused by the foot injury and the arm loss, pronounced Mr. Parker totally and permanently disabled to do the usual tasks of a workman and physically unfit to obtain and retain employment. No medical or other witnesses disagreed with this opinion.
The Argonaut Underwriters Insurance Company, the Construction Company’s compensation carrier, immediately after the injury began $35 weekly compensation payments to Mr. Parker. On September 10, 1957, Parker filed formal notice of his injury with his employer and the Board. On August 20, 1958, after being paid $1,627.50 by the insurance carrier he entered into a settlement for a lump sum payment of an additional $1,968.75 in discharge of the carrier’s liability. The settlement was on the basis of benefits for 125 weeks for the loss of a foot under Art. 8306, Sec. 12.
Prior to settlement on April 10, 1958, D. U. Parker, a son, wrote the Industrial Accident Board in behalf of his father, and stated that the insurance carrier’s adjuster, in the course of settlement negotiations, had tried to explain “something about Second Accident Fund”, and asked to be informed respecting it. The Board replied on April 14 and asked for further information. Correspondence followed and on October 1st, 1958, Parker filed his claim against the Second Injury Fund with the Board. Thereafter, on January 16, 1959, the Board denied the claim. Notice of intention to appeal was given and suit was timely filed.
The Industrial Accident Board by its three points of error pose the following questions:
1). Must Parker plead and prove the State’s consent to be sued on this claim prior to filing his suit?
[191]*1912). Is the trial court without jurisdiction to render judgment when it is conclusively shown that Parker failed to make a claim against the Second Injury Fund within a period of six months after the accident and injury occurring September 2, 1957?
3). Does Parker’s appeal from the Industrial Accident Board denial of his claim against the Second Injury Fund fail because there is no provision in the Workmen’s Compensation Law for appeals in such cases?
It is the opinion of this court that a negative reply is proper to each of these questions.
In construing the provisions of the Second Injury Fund Act, in conjunction with the other provisions of the Workmen’s Compensation Law, the interpretation most beneficial to injured employees and which will best promote the purposes of the act will be employed. It has frequently been stated by the courts that the primary purposes of the Workmen’s Compensation Law is to benefit and protect injured employees. See Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955; Woolsey v. Panhandle Refining Co., 131 Tex. 449, 116 S.W.2d 675; Brinkley v. Liberty Mutual Insurance Company, Tex.Civ.App., 331 S.W.2d 423, n. w. h. And that the Workmen’s Compensation Law should be construed liberally in favor of the injured workman. Huffman v. Southern Underwriters, 133 Tex. 354, 128 S.W.2d 4, and Miears v. Industrial Accident Board, 149 Tex. 270, 232 S.W.2d 671. It is an elementary rule of construction that all of the provisions of the Workmen’s Compensation Law must be construed together and in such manner that if possible the provisions will operate in harmony. Zurich General Accident & Fidelity Ins. Co. v. Walker, Tex.Com.App., 35 S.W.2d 115.
Very little discussion will suffice to dispose of the first question. A suit was filed and maintained without permission other than that impliedly given by the Second Injury Fund Act, in Industrial Accident Board v. Miears, Tex.Civ.App., 227 S.W. 571, reversed in part 149 Tex. 270, 232 S.W.2d 671. The opinion in that case reveals that an injured workman appealed from the award of the Industrial Accident Board in a Second Injury Fund case to the district court of the county where the second injury occurred. The State’s Attorney General, as counsel for the Board, filed a plea of privilege to remove the action to a district court of Travis County. The plea of privilege was overruled and on appeal the Court of Civil Appeals held that Art. 8307, Sec. 5, governed appeals in a Second Injury Fund action. The Supreme Court reversed the Court of Civil Appeals in part upon another point, but the decision by both courts presupposes and inferentially confirms the right of an injured workman to proceed against the Second Injury Fund without special Legislative permission, aside from that impliedly granted by the act. Perhaps it should be acknowledged that neither the Court of Civil Appeals nor the Supreme Court in the Miears case passed upon precisely the question presented here. However, decision on the question considered supports a right of appeal in the injured workman and of necessity the prior right to bring an action by authority of the statute. Those cases approved the view that Sections 12c-l and 12c-2 are integral parts of the State’s Workmen’s Compensation Law, and are in every respect of equal materiality with its other provisions.
Free access — add to your briefcase to read the full text and ask questions with AI
CHADICK, Chief Justice.
This is a suit by an injured workman for benefits payable out of the Second Injury Fund. The Second Injury Fund Act, Sec. 12c-1, 12c-2, Art. 8306, became a part of the Texas Workmen’s Compensation Law by an amendment in 1947. The judgment of the trial court awarding benefits is reversed and the case remanded for new trial.
Following denial of compensation by the Industrial Accident Board the appellee, Albert J. Parker, as plaintiff in the trial court, appealed by bringing this action against the Industrial Accident Board of the State of Texas in its capacity as administrator of the Second Injury Fund, as defendant, in a District Court of Dallas County. The trial judge directed a verdict upon all issues except that of lump sum payment. When the jury found in favor of Parker on the lump sum issue judgment was entered reciting that Parker was totally and permanently disabled and entitled to compensation benefits for 276 weeks at the rate of $35 per week. A total recovery of $9,660 with interest, costs, etc., was awarded and ordered paid out of the Second Injury Fund. The Board, in its special capacity, has perfected an appeal and briefs three points of error.
The facts in the case are uncontroverted, although the parties did not stipulate them. In May of 1946, Mr. Parker in an automobile mishap in the State of Pennsylvania lost his left arm to a point six or seven inches below the shoulder. He received no workmen’s compensation, or other recompense for the loss. On September 3, 1957, while employed by the Dew Construction Company and engaged in the performance of his duties he fell from a dirt loading machine, which ran over and crushed his left foot. Treatment of the foot required amputation of the great toe and the adjacent second toe, and the connecting metatarsal bones of the foot. The Board’s medical examiner, weighing the incapacity caused by the foot injury and the arm loss, pronounced Mr. Parker totally and permanently disabled to do the usual tasks of a workman and physically unfit to obtain and retain employment. No medical or other witnesses disagreed with this opinion.
The Argonaut Underwriters Insurance Company, the Construction Company’s compensation carrier, immediately after the injury began $35 weekly compensation payments to Mr. Parker. On September 10, 1957, Parker filed formal notice of his injury with his employer and the Board. On August 20, 1958, after being paid $1,627.50 by the insurance carrier he entered into a settlement for a lump sum payment of an additional $1,968.75 in discharge of the carrier’s liability. The settlement was on the basis of benefits for 125 weeks for the loss of a foot under Art. 8306, Sec. 12.
Prior to settlement on April 10, 1958, D. U. Parker, a son, wrote the Industrial Accident Board in behalf of his father, and stated that the insurance carrier’s adjuster, in the course of settlement negotiations, had tried to explain “something about Second Accident Fund”, and asked to be informed respecting it. The Board replied on April 14 and asked for further information. Correspondence followed and on October 1st, 1958, Parker filed his claim against the Second Injury Fund with the Board. Thereafter, on January 16, 1959, the Board denied the claim. Notice of intention to appeal was given and suit was timely filed.
The Industrial Accident Board by its three points of error pose the following questions:
1). Must Parker plead and prove the State’s consent to be sued on this claim prior to filing his suit?
[191]*1912). Is the trial court without jurisdiction to render judgment when it is conclusively shown that Parker failed to make a claim against the Second Injury Fund within a period of six months after the accident and injury occurring September 2, 1957?
3). Does Parker’s appeal from the Industrial Accident Board denial of his claim against the Second Injury Fund fail because there is no provision in the Workmen’s Compensation Law for appeals in such cases?
It is the opinion of this court that a negative reply is proper to each of these questions.
In construing the provisions of the Second Injury Fund Act, in conjunction with the other provisions of the Workmen’s Compensation Law, the interpretation most beneficial to injured employees and which will best promote the purposes of the act will be employed. It has frequently been stated by the courts that the primary purposes of the Workmen’s Compensation Law is to benefit and protect injured employees. See Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955; Woolsey v. Panhandle Refining Co., 131 Tex. 449, 116 S.W.2d 675; Brinkley v. Liberty Mutual Insurance Company, Tex.Civ.App., 331 S.W.2d 423, n. w. h. And that the Workmen’s Compensation Law should be construed liberally in favor of the injured workman. Huffman v. Southern Underwriters, 133 Tex. 354, 128 S.W.2d 4, and Miears v. Industrial Accident Board, 149 Tex. 270, 232 S.W.2d 671. It is an elementary rule of construction that all of the provisions of the Workmen’s Compensation Law must be construed together and in such manner that if possible the provisions will operate in harmony. Zurich General Accident & Fidelity Ins. Co. v. Walker, Tex.Com.App., 35 S.W.2d 115.
Very little discussion will suffice to dispose of the first question. A suit was filed and maintained without permission other than that impliedly given by the Second Injury Fund Act, in Industrial Accident Board v. Miears, Tex.Civ.App., 227 S.W. 571, reversed in part 149 Tex. 270, 232 S.W.2d 671. The opinion in that case reveals that an injured workman appealed from the award of the Industrial Accident Board in a Second Injury Fund case to the district court of the county where the second injury occurred. The State’s Attorney General, as counsel for the Board, filed a plea of privilege to remove the action to a district court of Travis County. The plea of privilege was overruled and on appeal the Court of Civil Appeals held that Art. 8307, Sec. 5, governed appeals in a Second Injury Fund action. The Supreme Court reversed the Court of Civil Appeals in part upon another point, but the decision by both courts presupposes and inferentially confirms the right of an injured workman to proceed against the Second Injury Fund without special Legislative permission, aside from that impliedly granted by the act. Perhaps it should be acknowledged that neither the Court of Civil Appeals nor the Supreme Court in the Miears case passed upon precisely the question presented here. However, decision on the question considered supports a right of appeal in the injured workman and of necessity the prior right to bring an action by authority of the statute. Those cases approved the view that Sections 12c-l and 12c-2 are integral parts of the State’s Workmen’s Compensation Law, and are in every respect of equal materiality with its other provisions. The purpose of the Second Injury Fund and its inclusion within the body of the Workmen’s Compensation Law excludes any construction except that the legislature intended to and impliedly granted consent for the State to be sued as was done in this case in the administration of the Second Injury Act’s provisions.
The third point, that is, that Parker has no statutory appeal from the denial by the Industrial Accident Board of his [192]*192claim for compensation from the Second Injury Fund- is urged by the Board only in the event it should be held that the requirements of Art. 8307', Sec. 4a relating to notice of claims be held not applicable in an action for benefits from the Second Injury Fund. The views just expressed and the discussion which follows demonstrate that such notice and claim provisions do govern in second injury cases; therefore, it will not be necessary to discuss the third question presented and the Board’s point in that respect is respectfully overruled.
The Legislature engrafted the provisions of the Second Injury Fund Act upon the existing Workmen’s Compensation Law structure, without providing a detailed procedure for its operation, evidencing by such enactment and the language used an intent that it be administered as a part and in harmony with the existing law. The several provisions of the Workmen’s Compensation Law being in pari materia, it follows that it was the intention of the Legislature within certain limitations that the Second Injury Fund be administered in accordance with the existing laws governing claims by injured workmen against compensation insurers generally. Therefore, it may be said, it was the intention of the Legislature in second injury cases that the Second Injury Fund be substituted for the compensation insurer in the administration of the law to the extent necessary to accomplish the purposes of the Second Injury Fund Act. It is the legislative intention that the Second Injury Fund stand as the compensation insurer in Second Injury cases so far as a just and harmonious interpretation of the numerous provisions of the compensation law will permit. However, this does not mean that a substitution was intended concerning subject matter exclusively within the competence of a compensation insurer, or conferring a benefit enjoyable only by the insurer, or a duty which the insurer alone could execute; nor where to substitute would result in a conflict or hiatus in provisions, or a nullification of the purposes of 'the Compensation Law. The text of Art. 8307, Sec. 4a is as follows:
“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 happening of an injury or 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 occurrence of the injury or of the first distinct manifestation of an occupational disease; or, in case of death of the employee or in the event of his physical or mental incapacity, within six (6) months after death or the removal of such physical or mental incapacity. 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.”
The construction announced requires that Parker give notice and' file claim in accordance with the provisions of this section.
From the preliminary statement it is seen that the Industrial Accident Board and the compensation carrier were notified of the September 3rd injury Parker suffered to his left foot the following September 10th, a time well within the 30 day period specified by Art. 8307, Sec. 4a. Such action satisfied the notice of injury requirement insofar as the Second Injury Fund is concerned.
The record is conclusive that notice of claim for compensation out of the Second Injury Fund was not filed with the Board until October 1, 1958, one year and 27 days after injury. It is the State’s contention that this conclusive showing bars a recovery by Parker from the Second Injury Fund, [193]*193and that the judgment of the trial court should he reversed and the case rendered. Such disposition of the appeal is not warranted by the record. There is evidence previously mentioned indicating that prior to April 14, 1958, Parker was ignorant of his right to make a claim against the Second Injury Fund. Within six months after that date on October 1, 1958, he filed a claim for compensation out of the fund. The record is not fully developed with respect to the time Parker first became aware of his rights under the Second Injury Fund Act. The case seems to have been tried upon the theory that the provisions of Art. 8307, Sec. 4a were not applicable to Parker’s claim, and that pleading and proof of good cause for delay in making the claim was not necessary. The State by plea to the jurisdiction and special exceptions directed the trial court’s attention to the error in failing to apply the provisions of Sec. 4a, but the absence of pleading and proof of good cause appears not to have been presented or considered by the trial court or the parties. Justice requires that the case be reversed and remanded. Lanford v. Smith, 128 Tex. 373, 99 S.W.2d 593; Jackson v. Hall, 147 Tex. 245, 214 S.W.2d 458.
Remand and a new trial necessitates some further discussion of good cause for Parker’s failure to present his claim within the six month’s time limit of Art. 8^07, Sec. 4a. Ignorance of the right to claim compensation was considered a good cause for failure to make a claim within the time specified by Sec. 4a, prior to a 1923 amendment to the Workmen’s Compensation Law. See Bailey v. Texas Indemnity Ins. Co., Tex.Com.App., 14 S.W.2d 798; Lawler’s Texas Workmen’s Compensation Law, p. 417, Sec. 244. The 1923 amendment provided that when notice was furnished to the Industrial Accident Board by an employer that the employer was a subscriber under the Act, an injured employee was conclusively presumed to have notice of the fact that the employer had made provision for compensation insurance. See Zurich General Accident and Fidelity Insurance v. Walker, Tex.Com.App., 35 S.W.2d 115. The 1923 Amendment governs in a factual situation involving an employer, an employee and the Board. This factual situation can have no counterpart in Second Injury Fund cases, because there are no parties occupying similar relationships under the compensation scheme of the Second Injury Fund Act.
The rule requiring liberal construction of the compensation law in favor of the injured workman dictates that it be held that if Parker establishes that he was ignorant of the existence of the Second Injury Fund and his rights thereunder such ignorance would be good cause for his failure to make a claim within the time limitation of Sec. 4a.
Justice requires the case be reversed and remanded for new trial, and it is so ordered.