Fidelity & Cas. Co. of New York v. Shubert

• Citation: 646 S.W.2d 270
• Decision Date: 06 January 1983
• Docket Number: No. 1487,1487
• Parties: The FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Charlie SHUBERT, Appellee.
• Court: Court of Appeals of Texas

Page 270

646 S.W.2d 270

The FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellant, v. Charlie SHUBERT, Appellee.

No. 1487.

Court of Appeals of Texas,

Tyler.

Jan. 6, 1983.

Rehearing Denied Feb. 3, 1983.

Richard L. Scheer, Fillmore & Associates, P.C., Fort Worth, for appellant.

Mark Huffman, Dallas, for appellee.

COLLEY, Justice.

This is a worker's compensation case. Appellant insurance company appeals from the trial court's judgment awarding appellee benefits for total and permanent disability based on the jury's findings that appellee incurred an occupational disease on November 4, 1976, which was a producing cause of appellee's total and permanent disability from that date.

Twenty-six points of error are presented by appellant in its brief. First point complains of the trial court's definition of "occupational disease" in its charge to the jury. The definition of "occupational disease" contained in the court's charge conforms with the provisions of § 20 of art. 8306, V.A.C.S. ¹ and is correct, Leal v. Emp. Mut. Liab. Ins. Co., 605 S.W.2d 328 (Tex.Civ.App.--Houston [1st Dist.] 1980, reh. den., no writ); however appellant argues that in light of the state of the pleadings and evidence in the case, that the trial court should not have included in the definition of "occupational disease" the following language: "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; ...." Appellant would have us divide the occupational diseases defined in the statute into two classes, to-wit: one which is produced and results from repetitious physical traumatic activities, and the other a "classic" disease. No authority is cited by appellant in support of such contention, nor do we find any authorities to such effect. Appellant's first point is overruled.

Appellant urges in its points of error numbers 2 through 9 inclusive, that appellee failed to either prove conclusively or secure a jury finding that he gave timely notice of injury to his employer or to the appellant, and that he filed his claim for compensation within six months after the first distinct manifestation of his occupational disease as is required by § 4a of art. 8307, V.A.C.S. The decision on these eight points turns on the "date of the cumulative injury" which is governed by the provisions of § 20 of art. 8306, V.A.C.S., reading in pertinent part: "... the date of the cumulative injury shall be the date disability was caused thereby." The last quoted language has been held to mean the date that any compensable disability was caused thereby. Home Insurance Co. v. DeAnda, 599 S.W.2d 124 (Tex.Civ.App.--Eastland 1980, reh. den.) rev. on other grounds 618 S.W.2d 529 (Tex.1980). Although this point was not reached by the Supreme Court, i.e., the Supreme Court did not approve the holding of the Court of Civil Appeals in DeAnda interpreting such language, we believe that is the plain meaning of § 20 of art. 8306, and we so hold.

The parties stipulated, as is admitted by appellant in its brief, that appellee gave notice of injury to his employer on November 23, 1976, and filed his claim for compensation within six months of November 4, 1976, and that worker's compensation benefits were paid to appellee from November 4, 1976, through May 28, 1980, in the total amount of $14,322.00.

The jury found in response to special issues submitted (1) that appellee had or has an occupational disease (2) arising out of and in the course of his employment (3) which was a producing cause of total incapacity, (4) that the beginning date of such incapacity was November 4, 1976, and (5) that such total incapacity was permanent. No objections were made by appellant to the submission of such issues.

Appellant claims by his tenth point of error that the evidence is insufficient to support the jury's answer to Special Issue No. 4, that the beginning date of total incapacity was November 4, 1976. Appellant's argument on points 2 through 9 are inherently founded on the premise that the evidence conclusively establishes that appellee incurred an occupational disease in June 1972 arising out of his employment which produced the compensable disability (albeit temporary) which continued and is the same occupational disease as the one appellee now seeks compensation for by this cause, and, that appellee, having failed to prove conclusively or secure a finding from the jury that he gave the notice of injury and filed his compensation claim timely using June 1972 as the date of injury, cannot recover in this action because the trial court had no jurisdiction.

Thus, it appears to us that disposition of appellant's tenth point will control our decision on points 2 through 9. Since point 10 alleges factual insufficiency of the evidence to support the finding made by the jury in response to Special Issue No. 4, it is necessary to discuss in some detail the evidence adduced at the trial.

The record reflects that appellee is an uneducated, illiterate, white male, age 51 (at time of trial). Appellant worked for Curtis Mathes a short time in the early 1960s, then left and later returned to work in the "foam department" on June 17, 1971. Appellant's job in the foam department involved applying a certain chemical which formed a foam or hard insulating backing to T.V. cabinet parts. Appellee continued to work in that job according to his testimony for five or six months but, according to his supervisor, for approximately two and one-half months during that period of employment was exposed to vapors and fumes from the foam chemical. In December 1972 or thereabout he consulted Drs. Haynes and Risko for examination and treatment for a breathing difficulty which was apparently distressful in the medical sense. Appellee was hospitalized by Dr. Risko for approximately two weeks and then was off from work for six additional weeks during which time he received treatment and care from Dr. Risko primarily. Thereafter he was released by Dr. Risko to go back to work and worked regularly for Curtis Mathes at its plant in Athens, Texas, and was rewarded for his perfect attendance at work by bonuses paid him during the calendar years 1975 and 1976.

On November 4, 1976, appellee became unable to work because of a sudden occurrence of a breathing problem. During the period of time from the date appellee returned to work in 1972 until November 4, 1976, no complaint was made by his superiors regarding the quality of appellee's work as a tennon machine operator, sawing wood and particle board for T.V. cabinets for his employer. The evidence shows that appellee was subjected to a work environment from 1972 to November 4, 1976, in which there was heavy concentration of air-borne dust from his saw blades, as well as other noxious fumes, vapors and high temperature ranges. Since appellee did not respond to treatment after his 1976 disability he was referred by Dr. Risko to a specialist, Dr. Rogers. Dr. Rogers treated appellee for the ensuing years from November 4, 1976, until the trial below. Dr. Rogers appeared as a witness for the appellee at the trial.

The evidence is undisputed that appellee was diagnosed as suffering from asthmatic bronchitis by Dr. P.T. Tilman, a seventy-four-year-old family practitioner, in December 1962. Dr. Tilman, testifying for the appellant, prescribed medication for the appellee to suppress his coughing, but that was the extent of his treatment of appellee.

Dr. Rogers testified that the cause of appellee's disability was "his exposure to noxious environment agencies including temperature, fumes and dust," and when Dr. Rogers was asked on cross-examination whether or not appellee's asthmatic bronchitis was directly related to the appellee's disability, he answered in effect that it was not. Dr. Rogers further testified, in effect, that appellee's disability was caused by the environmental exposure at his job site, although his intrinsic asthmatic and history of smoking cigarettes were "factors that were there and were a part of his illness." In further testimony Dr. Rogers stated with reference to the cause of appellee's disability that the asthma and smoking did not produce any disability and that no disabling lung problem was presented until appellee was exposed to his work environment at Curtis Mathes.

A careful analysis of all of Dr. Rogers' testimony reveals that while he acknowledged the long history of cigarette smoking by appellee and appellee's affliction with intrinsic asthma, he attributed no specific contribution thereof in producing appellee's disability. Dr. Rogers testified positively that plaintiff's disability was the result of repeated exposure to dust and fumes and that such disability occurred on November 4, 1976, and was total and permanent. Dr. Rogers expressed his medical opinion that the occupational disease incurred by appellee was not the result of appellee's comparative obesity. Dr. Roger's final diagnosis of appellee's problem was "chronic obstructive pulmonary disease."

The evidence further reflects that appellee's medical and hospital expenses incurred in 1972 were paid in part at least, by a group health insurance company called United Furniture Workers Insurance Company. Apparently the group was composed of members of the United Furniture Workers Union of which appellee was a member.

The evidence further establishes that Dr. Haynes was the first doctor who saw appellee after his 1972 illness occurred and Dr. Haynes diagnosed appellee's condition as asthmatic bronchitis.

It is undisputed that the appellee gave no written notice of injury to his employer and filed no claim for compensation based on the 1972 occurrence; however, the evidence does show that appellee's employer, Curtis Mathes, had actual knowledge of the illness sustained by the appellee in June 1972 in that the...