Standard Fire Insurance Company v. Simon

474 S.W.2d 530, 1971 Tex. App. LEXIS 2303
CourtCourt of Appeals of Texas
DecidedDecember 10, 1971
Docket17706
StatusPublished
Cited by13 cases

This text of 474 S.W.2d 530 (Standard Fire Insurance Company v. Simon) 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
Standard Fire Insurance Company v. Simon, 474 S.W.2d 530, 1971 Tex. App. LEXIS 2303 (Tex. Ct. App. 1971).

Opinion

GUITTARD, Justice.

In this workmen’s compensation case the principal questions are whether the claimant is entitled to recover for the nursing services of his wife and mother-in-law and whether the evidence supports the verdict of total and permanent incapacity: The trial court allowed full recovery, and we affirm.

On November 3, 1967 Richard Simon, a truck driver, was in Wheeling, West Virginia, and was covering his load with a tarpaulin when he fell off his truck and fractured his skull, scapula, wrist and five ribs. After a week in the hospital in Wheeling, his wife, a graduate nurse, took him by ambulance to Pittsburgh, Pennsylvania, and brought him in a commercial airplane to Shreveport, Louisiana, and then in the back seat of an automobile to his home in Marshall, Texas. There is evidence that his wife and her mother, Mrs. Duncan, who was a licensed vocational nurse, took care of him from the time he left the hospital in Wheeling on November 10, 1967, to June 10, 1968.

Standard Fire Insurance Company paid Simon workmen’s compensation benefits for seventy-nine weeks, but made no payments for nursing services.

The jury found that Simon was totally and permanently disabled as a result of the injury, that Standard failed to furnish reasonable and necessary nursing services, and that the reasonable cost of the nursing was $5,000 for the services furnished by Mrs. Simon and $4,000 for the services furnished by Mrs. Duncan. The trial court rendered judgment on the verdict.

In its first three points Standard complains of the judgment for nursing services on the ground that neither Mrs. Simon nor Mrs. Duncan made a claim before the Industrial Accident Board and neither is a party to this suit. As Standard concedes, a claim for medical or nursing expenses may be made by the employee in the district court even though no such claim was presented to the Industrial Accident Board, if it is incidental to the compensation claim. Maryland Casualty Co. v. Moore, 74 S.W.2d 769 (Tex.Civ.App., San Antonio 1934, affirmed and opinion approved, Tex.Comm’n App. 1937, opinion adopted, 102 S.W.2d 1118). Since this judgment awards no recovery to Mrs. Si *532 mon or Mrs. Duncan, but awards recovery to Simon for the cost of such services, we find that such recovery is incidental to his compensation claim. Consequently these points are overruled.

In Points 4 and 5, Standard contends that there is no evidence, and, alternatively, insufficient evidence to support the jury’s finding that it failed to furnish reasonable and necessary nursing services, since it had no notice that Simon required nursing services and no opportunity to provide them.

Authority for recovery of expenses for nursing services is found in the following language in Vernon’s Ann.Tex.Rev.Civ. Stat.Ann., Art. 8306, Sec. 7 (1967) :

“If the association fails to so furnish reasonable medical aid, hospital services, nursing, chiropractic services and medicines as and when needed after notice of the injury to the association or subscriber, the injured employee may provide said medical aid, nursing, hospital services, chiropractic services, and medicines at the cost and expense of the association. The employee shall not be entitled to recover any amount expended or incurred by him for said medical aid, hospital services, nursing, chiropractic services, or medicines, nor shall any person who supplied the same be entitled to recover of the association therefor, unless the association or subscriber shall have had notice of the injury and shall have refused, failed or neglected to furnish it or them within a reasonable time.”

The only notice the statute requires is notice of injury. It does not require specific notice of a claim for medical or nursing services. Neither is a request for such services required as a condition of the insurance carrier’s responsibility. Texas Employers’ Ins. Ass’n v. Steadman, 415 S.W.2d 211 (Tex.Civ.App., Amarillo 1967, writ ref’d n.r.e.); Trinity Universal Ins. Co. v. Farley, 408 S.W.2d 776 (Tex.Civ.App., Tyler 1966, no writ). If the carrier designates a doctor for treatment, and the employee changes doctors or'seeks other medical assistance without the carrier’s knowledge or consent, the carrier is not liable for the unauthorized expenses, since it has not “failed” to provide them. Few v. Charter Oak Fire Ins. Co., 463 S.W.2d 424 (Tex.Sup.1971); Liberty Universal Ins. Co. v. Gill, 401 S.W.2d 339 (Tex.Civ.App., Houston 1966, writ ref’d n.r.e.). That is not the situation here. Standard furnished no nursing services after Simon left the hospital in Wheeling, though the evidence is ample that nursing services were necessary. Dr. Bob Herrin, who treated Simon over a period of several months after he returned from Wheeling, testified that persons with such injuries frequently remain in the hospital longer, but that he was willing to treat him as an out patient because he knew he would get adequate nursing at home. Standard’s claim agent consented to pay Simon’s plane fare back from Wheeling because he knew that Simon could get out of the hospital sooner because his wife was a nurse. Within two weeks after he got home, the agent visited him and found him in bed,- and afterward dropped in to see him once a week. Though he says Simon appeared capable of taking care of his personal needs, the evidence shows that Standard had reason to believe that Simon needed and received professional nursing care for at least part of the period in question, but it never offered any payment for such care. The fact that Mrs. Simon did not decide to make a claim for such services until Standard stopped paying weekly compensation does not relieve Standard of its statutory obligation to provide nursing services “as and when needed after notice of the injury.” We hold the evidence sufficient to support the finding that Standard failed to provide such services.

In its next group of points Standard challenges the sufficiency of the evidence to support the jury’s findings that the nursing services were reasonable and necessary, and that the reasonable cost was *533 $5,000 for Mrs. Simon’s services and $4,000 for Mrs. Duncan’s services.

Mrs. Simon testified that when she went to West Virginia and brought her husband home, he could not walk without help and could not care for his basic needs. She provided nursing care on the trip, since he was sick all the way home. During the first three weeks after they got home, her employer let her off to take care of her husband, and she and Mrs. Duncan gave him nursing care around the clock in twelve-hour shifts. During that period he could not go to the bathroom without help and was unable to feed himself or provide his basic needs without assistance. After the first three weeks, the nursing was reduced to sixteen hours a day. Mrs. Duncan took care of him from' 6:30 or 7:00 in the morning until she had to go to work at 3:00 o’clock in the afternoon. Mrs. Ras-berry, a sitter, stayed with him until Mrs.

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Bluebook (online)
474 S.W.2d 530, 1971 Tex. App. LEXIS 2303, Counsel Stack Legal Research, https://law.counselstack.com/opinion/standard-fire-insurance-company-v-simon-texapp-1971.