Texas Employers' Insurance Ass'n v. Mathes

771 S.W.2d 225, 1989 Tex. App. LEXIS 1401, 1989 WL 53868
CourtCourt of Appeals of Texas
DecidedMay 24, 1989
DocketNo. 08-88-00316-CV
StatusPublished

This text of 771 S.W.2d 225 (Texas Employers' Insurance Ass'n v. Mathes) 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
Texas Employers' Insurance Ass'n v. Mathes, 771 S.W.2d 225, 1989 Tex. App. LEXIS 1401, 1989 WL 53868 (Tex. Ct. App. 1989).

Opinion

OPINION

FULLER, Justice.

In a worker’s compensation case, the jury answered issues of incapacity in favor of the worker but found he did not give notice, nor show good cause for failure to give notice to the employer within thirty days of the injury. The trial court disregarded the jury’s findings on lack of notice and entered judgment for the worker. We reverse and render judgment for the insurance company.

Point of Error No. One asserts that the trial court erred in disregarding the jury finding that the employer did not receive notice of injury within thirty days after the manifestation of the injury.

By Point of Error No. Two, Appellant compensation carrier asserts that the trial court erred in disregarding the jury finding that there was not good cause for failure to notify the employer of the injury within thirty days after the manifestation of the injury.

By Counterpoints of Error Nos. One and Two, the Appellee worker asserts that the trial court should have held, as a matter of law, that notice was properly given and, [227]*227therefore, issues on notice and good cause should not have been submitted.

By Counterpoints of Error Nos. Three and Four, the Appellee asserts that the findings of the jury as to lack of thirty days’ notice of injury, and lack of good cause for the late notification of injury is so against the great weight and preponderance of the evidence as to be manifestly unjust.

This is an alleged repetitious trauma case filed by an oil field worker that had worked for his employer twenty years and whose employment ended after an operation for a herniated disc.

The jury was properly instructed on the incident, aggravation and acceleration of an existing disease, infirmity or condition. “Injury” was further defined to mean:

[Djamage or harm to the physical structure of the body occurring as a result of repetitious physical traumatic activities extending over a period of time_

The jury found that Appellee Mayford Mathes received an injury in the course and scope of his employment, resulting in partial incapacity that commenced on November 12, 1986. It also found that the partial incapacity was permanent. The jury found that during the partial incapacity, the Ap-pellee had an average weekly earning capacity of $327.00.

The jury found that Appellee’s employer did not have notice of the injury within thirty days of the injury’s manifestation and found that Appellee did not have good cause for delay in giving such notice. The trial court entered judgment for the Appel-lee Mayford Mathes after disregarding the answers of the jury as to the lack of notice, and the lack of good cause for failure to give notice in time.

FACTS

Appellee Mayford Mathes labored doing general oil field work for the same employer for over twenty years, and like most oil field work it consisted of bending, lifting and climbing. Appellee had suffered bruises and falls during his career which he described as a usual occurrence in the oil fields. Appellee was forty-one years of age and had an eighth grade education. He had been raised in Tennessee and made regular protracted trips back home for visits. He previously had suffered a left knee injury which his employer was aware of. On May 1,1986, Appellee saw Dr. Coleman with complaints of left leg numbness. His supervisor was aware of this visit before he left for Tennessee. The doctor X-rayed Appellee’s lumbar spine and prescribed muscle relaxants. He continued to work until May 28, 1986, when he left on vacation to Tennessee. The employer’s insurance clerk was aware of his consulting Dr. Coleman for his leg problem and, in fact, processed the bill it received from Dr. Coleman. It was the employer that elected to process Dr. Coleman’s bill under the group policy. Even though the bill contained a charge for X-rays, the employer made no inquiry of the doctor or any investigation as to Appellee’s condition. Neither Appel-lee nor his employer was aware of what is known as an “injury that resulted from repetitious trauma” and that such was compensable under worker’s compensation insurance.

Shortly after his arrival in Tennessee, Appellee consulted a chiropractor on June 3,1986, who attempted to treat him for the same complaints that Appellee had when he last saw Dr. Coleman on May 1, 1986. Appellee was treated by the chiropractor during the months of June, July and August with some good results, but eventually Appellee’s condition worsened. He testified that he contacted his employer by calling Bobby Ellis (the vice president) and Carolyn Miller (the insurance clerk) on a regular basis to report on his treatment. Finally, the chiropractor referred the Ap-pellee to a specialist. A myelogram was done confirming a herniated disc. Appellee was operated on for the ruptured disc and was discharged from the hospital on or about September 12, 1986. He testified that some six or seven months before he saw the doctor in May of 1986, he had hurt his back on the job when he fell, hitting his back on a ladder. The pain would come and go. He did not realize the seriousness of his injury until the specialist diagnosed [228]*228his herniated disc. His employer sent the insurance forms, but they were the group health forms. However, the Appellee testified he relied on his employer to send the right papers to file his compensation claim. Appellee testified he did not know the difference between worker’s compensation forms and group health forms. The employer’s insurance clerk indicated that the forms were similar. He returned to Texas in May 1987, thinking that he would still have a job with his employer. He testified he went to the office every morning for two weeks until he was told: “[T]he insurance company did not want to put me back to work.” This was the first time that the employer claimed that Appellee advised that his injury was work related. The Appellant did not assert that Appellee was not injured, but defended on the basis that he had fallen off his mother’s roof while in Tennessee (even though there was no denial that Appellee had consulted Dr. Coleman before he even left for Tennessee).

ISSUES SUBMITTED

To issues submitted, the jury found: (1) Plaintiff did receive an injury in the course of his employment, (2) the injury was not a producing cause of any total incapacity, but (3) the injury produced partial incapacity, (3A) the partial incapacity started September 12,1986, and (3B) the partial incapacity was permanent. The jury also found (3C) that Appellee’s average weekly earning capacity during the partial incapacity was $327.00 and (4) payment of compensation should not be made in a lump sum. We now get to the crucial issues involved in this appeal. The trial court submitted the following issues:

5. Do you find that the employer, M.F. Machen Construction Inc., had notice that Mr. Mathes received an injury while in the course of his employment within 30 days after its manifestation?
Notice to or actual knowledge on the part of a foreman or supervisor, or an agent designed [sic] by the employer to receive such “notice” to the employer. The jury answered: 5. NO

The jury had already been asked in Issue No. One whether there was an injury in the course and scope of employment. The jury found there was an injury in the course and scope of employment.

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Cite This Page — Counsel Stack

Bluebook (online)
771 S.W.2d 225, 1989 Tex. App. LEXIS 1401, 1989 WL 53868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/texas-employers-insurance-assn-v-mathes-texapp-1989.