Employers Ins. of Wausau v. Schaefer

• Decision Date: 23 November 1983
• Docket Number: No. 13-82-226-CV,13-82-226-CV
• Citation: 662 S.W.2d 414
• Parties: EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company, Appellant, v. Maurice S. SCHAEFER, Appellee.
• Court: Texas Court of Appeals

Page 414

662 S.W.2d 414

EMPLOYERS INSURANCE OF WAUSAU, a Mutual Company, Appellant, v. Maurice S. SCHAEFER, Appellee.

No. 13-82-226-CV.

Court of Appeals of Texas Corpus Christi.

Nov. 23, 1983.

Scott Tessmer, Timsley, Barrelli & Tessmer, Bellaire, for appellant.

Rockne W. Onstad, Kronzer, Abraham, Watkins, Nichols, Ballard & Friend, Houston, Delbert M. Cox, Refugio, for appellee.

Before NYE, C.J., and YOUNG and KENNEDY, JJ.

OPINION

NYE, Chief Justice.

This is a workers' compensation case. The injured employee, Maurice S. Schaefer, filed his claim with the Industrial Accident Board more than six months after the accident took place. The Board made an award. Employers Insurance of Wausau appealed to the 267th District Court, Refugio County, Texas, to set aside the final decision and award of the Board. Schaefer also brought suit to recover all the benefits to which he is entitled under Art. 8306. The causes were consolidated into one action before the 24th District Court, Refugio County, Texas. Based on the jury's answers to special issues, the trial court entered judgment awarding Schaefer benefits for a combination of temporary total and permanent partial disability. The insurance company appeals.

On or about February 22, 1977, Schaefer, appellee, sustained an accidental bodily injury in the course and scope of his employment as a gauger for Dinero Oil Company in Refugio County, Texas. Appellee reported the injury to his supervisor the morning following the injury, prior to entering Refugio Memorial Hospital. Appellee remained hospitalized for nineteen days. On April 5, 1977, appellee returned to work in the same job classification, although he was unable to perform the more strenuous duties required of the job. Appellee testified that he terminated his employment with Dinero Oil Company sometime in November or December 1977, after receiving complaints from supervisors about his inability to do the job he was hired to do. Appellee then began working for Rutherford Oil as a night gauger and has continued this employment through the time of trial.

Although the accident took place on February 22, 1977, appellee did not file his claim for compensation until June 8, 1978, approximately fifteen and one-half months after his accident. Appellee testified that the day he was admitted to the hospital his supervisor, Mr. Henry Irons, came to visit him in the hospital. At that time, Mr. Irons assured the appellee that "everything would be taken care of" and "not to worry about anything." Appellee testified that he relied on his assurance and it caused him to believe that any necessary "book work" would be taken care of by his employer. Thereafter, the appellant insurance company paid appellee's medical bills and his weekly compensation benefits between February 24, 1977, and April 5, 1977. In April, 1978, appellee consulted an attorney who discovered that no notice of injury and claim for benefits had been filed with the Accident Board in his behalf. Appellee's claim was filed shortly thereafter.

Appellant brings forward twelve points of error on appeal. The first eight points of error are factual insufficiency complaints directed to the jury findings relevant to good cause. In considering a "no evidence" or "insufficient evidence" point of error, we will follow the well-established test set forth in Glover v. Texas General Indemnity Company, 619 S.W.2d 400 (Tex.1981); Garza v. Alviar, 395 S.W.2d 821 (Tex.1965); Allied Finance Company v. Garza, 626 S.W.2d 120 (Tex.App.--Corpus Christi 1981, writ ref'd n.r.e.); CALVERT, No Evidence and Insufficient Evidence Points of Error, 38 Tex.L.Rev. 359 (1961).

In workmen's compensation cases, it is well established that the claimant must plead and prove that he timely presented his claim to the Texas Industrial Accident Board within six months after the occurrence of the accident. If the claim is filed after the expiration of the six-month period, the claimant must show that good cause existed for his failure to file a claim within the statutory time limit. Tex.Rev.Civ.Stat.Ann., art. 8307, § 4a (Vernon 1967). When a claim has not been properly presented within the six-month period, the claimant must prove that good cause for failure to file continued up to the date of actual filing. Lee v. Houston Fire & Casualty Insurance Co., 530 S.W.2d 294, 296 (Tex.1975); Texas Casualty Insurance Co. v. Beasley, 391 S.W.2d 33, 34 (Tex.1965); Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053, 1054 (1939). The meaning of the term "good cause" was set out by the Supreme Court in Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370 (1948):

"The term 'good cause' for not filing a claim for compensation is not defined in the statute, but it has been uniformly held by the courts of this state that the test for its existence is that of ordinary prudence, that is, whether the claimant prosecuted his claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances."

In accordance with the above legal ground rules, the totality of the claimant's conduct must be considered to determine whether the test of ordinary prudence has been met. Lee v. Houston Fire & Casualty Insurance Co., 530 S.W.2d at 297; Moronko v. Consolidated Mutual Insurance Co., 435 S.W.2d 846, 848 (Tex.1968); see Texas Employers Insurance Ass'n v. Fowler, 140 S.W.2d 545 (Tex.Civ.App.--Amarillo 1940, writ ref'd). Generally, the claimant's reason for delay in the filing of his claim is to be found principally in his own testimony. Texas Casualty Insurance Co. v. Beasley, 391 S.W.2d at 35.

In the present case, the facts reveal that appellee sustained a back injury while in his third month of employment with Dinero Oil Company. The same day appellee was admitted to the hospital, his supervisor came to see him. Appellee confirmed that during the visit, he and Mr. Irons had a conversation about worker's compensation. Appellee stated that Mr. Irons told him that "everything--all the bills and everything would be taken care of." Regarding the filing of a claim, appellee testified that Mr. Irons stated "they would take care of everything at the office" and "not to worry about anything," just stay in the hospital until he got well. Appellee further testified that, during that same conversation, Mr. Irons told him that he was going to get weekly benefits.

A claimant is presumed to know the law. Mere ignorance of the six-month filing requirement will not constitute good cause for delay in filing. Lee v. Houston Fire & Casualty Insurance Co., 530 S.W.2d at pg. 297. The Courts have recognized, however, that reliance on statements of employers or their agents may constitute good cause for a delayed filing. Texas Employers Insurance Ass'n v. Herron, 569 S.W.2d 549, 554 (Tex.Civ.App.--Corpus Christi 1978, no writ). Mere reliance on an employer's promise to file a claim, without more, will not constitute good cause, particularly where 1) there is a lengthy delay between the promise and the ultimate filing date, or 2) the claimant had not been told that a report had actually been sent to the Board. Employers, 569 S.W.2d at 554; see Allstate Insurance Co. v. King, 444 S.W.2d 602, 605 (Tex.1969). The payment of compensation benefits or medical expenses by the compensation carrier is a circumstance which may be considered, along with other circumstances, on the issue of "good cause." Continental Casualty Co. v. Cook, 515 S.W.2d 261, 263 (Tex.1974); Garcia v. Texas Employers Insurance Ass'n., 620 S.W.2d 716, 718 (Tex.Civ.App.--Dallas 1981, no writ).

Appellant contends that the representations by appellee's supervisor were, at most, a future promise and not a present, purportedly completed act. Appellant argues that, unlike appellee, a person of "ordinary prudence would not have remained totally inactive and unconcerned about his rights" as long as appellee did in sole reliance upon his supervisor's remarks. See Allstate Insurance Co. v. King at 444 S.W.2d 604-605; Boone v. Continental Insurance Co., 472 S.W.2d 166, 167 (Tex.Civ.App.--Waco 1971, writ ref'd n.r.e.). Alternatively, appellant submits that even assuming appellee has established good cause sufficient to excuse the filing within the six-month time period, the evidence is insufficient to support the jury's finding that such good cause continued up to the actual date of filing. Citing: General Insurance Corp. v. Smith, 232 S.W.2d 785, 788 (Tex.Civ.App.--Eastland 1950, writ ref'd n.r.e.).

Given the totality of the facts, circumstances, and conduct of the insurance carrier, we hold that the evidence is sufficient to support the jury's finding that receipt of weekly benefits and payment of medical expenses, combined with the representations made by the employer, constituted continuing good cause. Appellee testified that, on the day that Mr. Irons came to the hospital to check on appellee, he had a form with him. Appellee said that Mr. Irons either showed him the form or told him that it was an accident form. Appellee said that Mr. Irons was asking him questions and writing on the form during the visit. Appellant contends that the statement by Mr. Irons that "he would take care of everything" was made only in connection with filling out the accident form. However, appellee explained that Irons went on to state that "he and the office would take care of all the rest of the book work" and that appellee "didn't have nothing to worry about." The medical bills were subsequently paid and weekly benefits began. In fact, the appellee received weekly benefits from the appellant Insurance Company for the exact amount that Mr. Irons had stated earlier. We believe the effect of the pleadings and testimony, reasonably construed, was that appellee was induced to believe that any claim required to be filed, had been filed and that he was not required to do anything further. This belief continued until he discovered...