American General Insurance Company v. Johnson

• Decision Date: 04 June 1970
• Docket Number: No. 15609,15609
• Citation: 456 S.W.2d 188
• Parties: AMERICAN GENERAL INSURANCE COMPANY, Appellant, v. Wilbur V. JOHNSON, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 188

456 S.W.2d 188

AMERICAN GENERAL INSURANCE COMPANY, Appellant, v. Wilbur V. JOHNSON, Appellee.

No. 15609.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

June 4, 1970.

Rehearing Denied July 9, 1970.

Vinson, Elkins, Searls & Connally, Louis E. McCarter, Houston, for appellant.

Mike Willatt, Houston, for appellee.

BELL, Chief Justice.

Appellee was found to be suffering from silicosis which developed while he was an employee of Texas Electric Steel Casting Company. The jury found he suffered permanent partial incapacity and judgment was rendered on the verdict for accrued compensation of $5,466.49 and additional compensation of $26.59 per week for 108 3/7ths weeks.

After the verdict, which found all issues favorably to appellee, was returned, appellant filed a motion praying that it have a judgment of dismissal for want of jurisdiction. This was based on the premise that the only claim filed with the Industrial Accident Board was for an accidental injury. Further the motion asserted that the evidence at trial showed only an occupational disease and not an accidental injury and that the only issues submitted to the jury encompassed the theory of an occupational disease.

It is well settled in a workmen's compensation case that the claim asserted on appeal to the district court must be the same as that filed with and acted on by the Industrial Accident Board. Solomon v . Massachusetts Bonding & Insurance Co., Tex.Civ.App., 347 S.W.2d 17 (San Antonio), writ. ref.; Hartford Accident & Indemnity Co. v. Choate, 126 Tex. 368, 89 S.W.2d 205; Consolidated Underwriters v. Wright, Tex.Civ.App., 408 S.W.2d 140 (Houston), Ref n.r.e. This is jurisdictional and may be raised at any time. Solomon v. Massachusetts Bonding & Ins. Co., supra, and authorities there cited.

Using a printed form of 'Notice of Injury and Claim for Compensation' employed by the Industrial Accident Board, appellee filed his claim January 25, 1966. Following the printed words 'I was injured on' there is typewritten 'November 6, 1965.' The form showed his employer and his place of employment. He started losing time November 6, 1965. The space to show how long he had been working for this employer is left blank. It is undisputed he had worked for the employer 14 years. He stated he returned to work but could not continue. He did not give the date of his return. In the space headed 'Describe Accident and Your Injury (in your own words)' the following is recited: 'While close in with very poor ventilation or no ventilation, Plaintiff inhaled too much sand, chemicals, carbon, and other foreign matters and impurities and deleterious matters injuring his lungs, nerves throughout the body, general health and other injuries.' The claim also reflects hospitalization from November 6--12 and also on December 22.

On February 3, 1966, the Board sent appellee, the employer and appellant notice of a hearing. The form called for appellee to give certain information to be used in connection with the hearing on appellee's claim. The date of the injury is given. In the space for statement of 'Nature of Injury' there is typed 'Respiratory tract damaged due to inhalation of chemicals on job.' On the form the date of injury is given. Immediately following the space where the date of injury is shown appears a space stating, 'If Claim Is for An Occupational Disease, Give: * * *' To the right of this is a space labelled 'Date of The First Manifestation of Disease.' Appellee showed nothing in this space. The date when he was 'last injuriously exposed to substance causing the disease' is not filled in in the space provided. In the space designated 'When did you start losing time from work as a result of this injury?' there is typed the word 'immediately'.

The employer made an 'Employer's First Report of Injury' to the Board. In the report in the space labelled 'Date of Injury' is typed 'Disease alleged.' The date disability began is stated as November 6, 1965. It showed notice was given to its Personnel Director.

Appellee was shown to be a welder. In the space for showing how long appellee had been employed is typed '11/5/51.' In the space labelled 'Describe fully how accident occurred, and state what employee was doing when injured' is typed 'Employee alleges occupational disease.'

The doctor's report furnished the Board by appellant, the doctor being the one the employer sent appellee to on November 5, stated appellee complained, among other things, of 'severe central and left chest pains' and shortness of breach. The report stated the lungs were clear. He made a diagnosis of 'possible myocardial infarct.' The report stated 'no injury or condition due to occupation.' It also stated that there was no disability due to injury or occupation .

The hearing statement of the appellant states the principal issue before the Board was 'whether or not claimant sustained injury as alleged and if so, whether or not there resulted any disability for which compensation would be due.' It denies appellee sustained 'an injury as alleged' and that there remained any disability.

The Board in its order dated March 23, 1966 denying the claim used this language: 'The Board Finds That The Evidence Submitted Fails to Establish That The Claimant Suffered a Compensable Injury in The Course of Employment for Subscribing Employer herein as Alleged. Therefore, Said Claim is Denied.'

In appellee's Original Petition he alleged accidental personal injuries and described the injuries as he had in his claim filed with the Board. He then alleged the 'sustained immediate total incapacity and disability for labor * * * at the time of such inhalation of the impurities named above and other impurities and deleterious and poisonous and destructive matters to the internal parts of Plaintiff's body * * *' He alleged no pre-existing bodily infirmity but if he was mistaken in this and did have infirmities such were aggravated by the injuries sued on.

In his First Amended Original Petition filed in March, 1969, he asserted in a few words he received an accidental injury. Then, alternatively, he alleged that he developed...