Employers Commercial Union Ins. Co. v. Schmidt

• Decision Date: 13 November 1974
• Docket Number: No. B--4739,B--4739
• Citation: 516 S.W.2d 117
• Parties: EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY, Petitioner, v. Mary Ellen SCHMIDT, Respondent.
• Court: Texas Supreme Court

Page 117

516 S.W.2d 117

EMPLOYERS COMMERCIAL UNION INSURANCE COMPANY, Petitioner, v. Mary Ellen SCHMIDT, Respondent.

No. B--4739.

Supreme Court of Texas.

Nov. 13, 1974.

Rehearing Denied Dec. 30, 1974.

Pope, Dickenson, Batjer, Glandon & Baker, Robert D. Batjer, Jr., Abilene, for petitioner.

Robinson, Hanna & Burke, Sam L. Moore, Abilene, for respondent.

ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

This is a workmen's compensation case involving the following provisions of Art. 8306, Sec. 20, Vernon's Ann.Civ.Stat., as amended in 1971:

. . . An 'Occupational Disease' shall also include damage or harm to the physical structure of the body occurring as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment; provided, that the date of the cumulative injury shall be the date disability was caused thereby. . . .

The claimant, Mary Ellen Schmidt, developed a chronic myositis or trapezius syndrome as a result of the position in which she worked. She experienced pain in May, 1971. Her condition worsened to the point that she took a 30-day sick leave in September, 1971. During that period she was hospitalized for two days. Following the sick leave, she returned to her job and worked until February 20, 1972, when she was again hospitalized. She has never returned to work. Her claim for compensation was filed on June 27, 1972.

In response to the special issues submitted, the jury: (1) found that plaintiff incurred in the course of her employment an occupational disease that is the producing cause of total incapacity, which began on February 20, 1972, and is permanent, and that such occupational disease was also the producing cause of partial incapacity; (2) did not...