Martinez v. Home Indemnity Co.

647 S.W.2d 102, 1983 Tex. App. LEXIS 3971
CourtCourt of Appeals of Texas
DecidedFebruary 17, 1983
DocketNo. 2-82-068-CV
StatusPublished

This text of 647 S.W.2d 102 (Martinez v. Home Indemnity Co.) 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
Martinez v. Home Indemnity Co., 647 S.W.2d 102, 1983 Tex. App. LEXIS 3971 (Tex. Ct. App. 1983).

Opinion

OPINION

ASHWORTH, Justice.

Plaintiff, Mary Esther Martinez, appeals the judgment in her workers compensation suit which denied recovery on a 1979 injury, and reduced the benefits of a 1980 injury due to contribution of the 1979 injury.

Affirmed in part, and reformed and rendered in part.

We do not have the benefit of a statement of facts in this case, but will briefly outline what we believe to be the uncontro-verted facts. Appellant was an employee of Standard Meat Company during the years 1979 and 1980. She sustained an injury on the job on June 28, 1979, when the workers’ compensation carrier was Home Indemnity Company. She sustained another injury on October 2, 1980, when the workers’ compensation carrier was Southeast Indemnity Company. We will hereafter refer to the 1979 injury as first injury; the 1980 injury as second injury; Home Indemnity Company as Home; and Southeast Indemnity Company as Southeast.

As to the first injury, appellant alleged that claim for benefits was timely made, and alternatively alleged that good cause for delay existed if such claim was not timely made. Home alleged under oath that such claim was not timely made and that good cause did not exist for delay. Appellant then filed a supplemental pleading alleging that if her claim was not filed [104]*104within six months of the filing of the Employers E-1, then good cause existed for delay because she thought her injuries were trivial. This later pleading was not verified.

The case was tried to a jury which found that the first injury required medical treatment, and produced incapacity. The matter of delay in filing claim was presented in three issues: (6) did appellant believe her injury to be trivial? If so, (7) did such belief cause appellant to delay filing her claim? If so, (8) was such belief good cause for delay in filing her claim?

The jury found that appellant did not believe her injury to be trivial, and therefore did not answer the two issues following. Because of such finding, appellant recovered nothing as a result of the first injury.

In answer to issues submitted on the second injury, the jury found the injury produced temporary total incapacity, and required $2500.00 in medical expenses, but that the first injury contributed 95% to the incapacity existing after the second injury.

We will consider appellant’s points of error as they pertain to the first injury.

Appellant contends that the matter of good cause for failing to file her claim within six months of her injury should not have been submitted to the jury. Appellant points out that Tex.Rev.Civ.Stat.Ann. art. 8307, sec. 4a, states that unless the association or subscriber have notice of the injury, no proceeding for compensation under this law shall be maintained unless a claim for compensation with respect to such injury shall have been made within six months after the occurrence of the injury. The argument is, that the entire section is conditioned on the first clause concerning notice of the injury, and if the insurer has notice of the injury, then the six month limitation for filing of the claim does not apply.

This precise point was considered in Camarillo v. Highlands Underwriters Ins. Co., 625 S.W.2d 11 (Tex.App.—Beaumont 1981, no writ). Summary judgment was rendered in that case for the insurance company because the worker failed to file his claim for compensation within six months of the date of the injury. The worker contended that because his employer had actual notice of the injury, it was unnecessary for his claim to be filed within six months. In its decision, the court did not directly address the grammatical construction of Tex.Rev.Civ.Stat.Ann., art. 8307, sec. 4a, that is advanced by appellant in this case, but by inference it is rejected. That case holds that if the employer actually knows of the injury, there is no reason to require an employee to give formal notice. Every injury does not result in incapacity, and if the employee has a claim for incapacity, it must be filed within six months of the injury. The employee still has the right to show good cause for delay if the claim is not timely filed.

In accordance with Tex.R.Civ.P., 93(n), (2), and (7), Home filed verified pleadings that the claim was not timely filed and that good cause did not exist for delay. Apparently, there was no question that the claim was not timely filed. Again, we do not have the benefit of a statement of facts. There apparently was evidence admitted with regard to good cause for delay, and the trial court was required to submit appropriate issues on good cause. The burden of proof was on the appellant to establish good cause. Lee v. Houston Fire & Cas. Ins. Co., 530 S.W.2d 294 (Tex.1975). The jury found appellant did not satisfy her burden.

Appellant presents as a point of error that the issues inquiring into good cause are placed out of order in the court’s charge, and are not conditioned, giving them the appearance of being insignificant. The first five issues, requiring twelve answers, were the ones usually first submitted in this type of case. These first issues inquired about injury, on the job, producing cause, total incapacity and duration, reduction in earning capacity, necessity of medical expenses, and amount of same. The charge then presented the three issues on good causes as outlined above. Appellant contends these issues should have followed [105]*105the “course and scope” issues, and the issues of disability should have then followed and conditioned on affirmative findings of good cause.

Appellant presents no authority to assist us in evaluating this contention. We believe the tenor of the contention to be that the jury should be aware that if adverse findings are made on “good cause”, then the worker will not recover judgment. This contention flies in the face of Tex.R.Civ.P., 226a which requires the trial judge to give the following instruction: “4. You must not decide who you think should win, and then try to answer the questions accordingly. Simply answer the questions, and do not discuss nor concern yourselves with the effect of your answers.” We note that the instructions required by Rule 226a were a part of the court’s charge in this case.

Appellant suggests that the “good cause” issues were of utmost importance to her and that such should have been made known to the jury. This again would be contrary to Rule 226a which requires the jury to be instructed: “3. Since every answer that is required by the charge is important, no juror should state or consider that any required answer is not important.”

With regard to the positioning of the “good cause” issues, we note that the trial court positioned them as suggested in Texas Pattern Jury Charges, Volume II, Workers’ Compensation, following the issues on medical expenses, and conditioned on an affirmative finding of either some total incapacity or some partial incapacity. There was no error in the positioning or conditioning of the “good cause” issues in the case.

Finally, appellant contends that she is entitled to the $9,000.00 of necessary medical expense incurred in treatment of the first injury, regardless of the jury findings on “good cause”, because she is entitled to such expense as a matter of law on the basis of “injury” and “cause and scope” findings by the jury.

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Related

Standard Fire Insurance Company v. Simon
474 S.W.2d 530 (Court of Appeals of Texas, 1971)
Transport Insurance Company v. Mabra
487 S.W.2d 704 (Texas Supreme Court, 1972)
St. Paul Fire & Marine Insurance Co. v. Murphree
357 S.W.2d 744 (Texas Supreme Court, 1962)
Camarillo v. Highlands Underwriters Insurance Co.
625 S.W.2d 11 (Court of Appeals of Texas, 1981)
Standard Fire Insurance Co. v. Ratcliff
537 S.W.2d 355 (Court of Appeals of Texas, 1976)
Lee v. Houston Fire & Casualty Insurance Co.
530 S.W.2d 294 (Texas Supreme Court, 1975)
Texas Casualty Insurance Company v. Beasley
391 S.W.2d 33 (Texas Supreme Court, 1965)

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Bluebook (online)
647 S.W.2d 102, 1983 Tex. App. LEXIS 3971, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martinez-v-home-indemnity-co-texapp-1983.