Carswell v. Aetna Cas. and Sur. Co.
| Decision Date | 11 March 1980 |
| Docket Number | No. 8774,8774 |
| Citation | 598 S.W.2d 20 |
| Parties | Virginia CARSWELL, as Next Friend of John Wesley Carswell and Angela Kay Carswell, Minors, Appellants. v. The AETNA CASUALTY AND SURETY COMPANY, Appellee. . |
| Court | Texas Court of Appeals |
Don Stokes, Marshall, for appellants.
Blake Erskine, Kenley, Boyland, Coghlan & Erskine, Longview, for appellee.
The Industrial Accident Board awarded John Vernon Carswell worker's compensation benefits for a general injury he sustained in the course of his employment, and in order to avoid manifest hardship, ordered the award paid in a lump sum rather than in weekly installments. Mr. Carswell was apparently not satisfied with the amount of the award and he filed suit in the District Court to set it aside. After the insurance carrier answered the suit, but before trial, Mr. Carswell died from causes not related to his compensable injury. The two minor children of Mr. Carswell sought to be substituted as plaintiffs and to recover their father's benefits, but the trial court, on the ground that the claim for general injury did not survive the claimant's death, denied their request and rendered summary judgment in favor of the insurance carrier. Mr. Carswell was paid all of the worker's compensation benefits which accrued from the date of his injury to the date of his death. The only question here is whether the children are entitled to recover the unpaid portion of the lump sum award.
It is well settled that a claim for the worker's compensation benefits provided for a specific injury survives the death of the employee and may be enforced by the employee's heirs, but a claim or even an award of benefits for a general injury does not survive the employee's death unless the award has been reduced to a final judgment or has otherwise been fully matured. Bailey v. Travelers Insurance Co., 383 S.W.2d 562 (Tex.1964); Burris' Estate v. Associated Employers Insurance Co., 374 S.W.2d 223 (Tex.1963); Texas Employers Ins. Ass'n. v. Phillips, 130 Tex. 182, 107 S.W.2d 991 (1937); Southern Underwriters v. Lewis, 150 S.W.2d 162 (Tex.Civ.App., Texarkana 1941, no writ).
Appellants recognize the rule stated but urge that an exception should be applied when the Industrial Accident Board has awarded a lump sum for a general injury. Their contention is based upon the argument that, because a lump sum award is not subject to subsequent modification by the Board, as weekly installments may be in the event of a change of circumstances, the lump sum award is as specific and definite as a claim for a specific injury and should likewise survive the death of the employee. We disagree. It is not only the possibility of future modification which prohibits the survival of an award...
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