Industrial Acc. Bd. v. Parker

• Court: Texas Civil Court of Appeals
• Writing for the Court: CHADICK
• Citation: Industrial Acc. Bd. v. Parker, 348 S.W.2d 188 (Tex. Ct. App. 1960)
• Decision Date: 19 July 1960
• Docket Number: No. 7248,7248
• Parties: INDUSTRIAL ACCIDENT BOARD of the State of Texas, Appellant, v. Albert J. PARKER Appellee.

Page 188

348 S.W.2d 188

INDUSTRIAL ACCIDENT BOARD of the State of Texas, Appellant, v. Albert J. PARKER Appellee.

No. 7248.

Court of Civil Appeals of Texas, Texarkana.

July 19, 1960.

Rehearing Denied May 16, 1961.

Second Motion for Rehearing Denied June 13, 1961.

John L. Estes, Asst. Atty. Gen., for appellant.

Art Clifton, Grand Prairie, for appellee.

CHADICK, Chief Justice.

This is a suit by an injured workman for benefits payable out of the Second Injury Fund. The Second Injury Fund Act, Sec. 12c-1, 12c-2, Art. 8306, became a part of the Texas Workmen's Compensation Law by an amendment in 1947. The judgment of the trial court awarding benefits is reversed and the case remanded for new trial.

Following denial of compensation by the Industrial Accident Board the appellee, Albert J. Parker, as plaintiff in the trial court, appealed by bringing this action against the Industrial Accident Board of the State of Texas in its capacity as administrator of the Second Injury Fund, as defendant, in a District Court of Dallas County. The trial judge directed a verdict upon all issues except that of lump sum payment. When the jury found in favor of Parker on the lump sum issue judgment was entered reciting that Parker was totally and permanently disabled and entitled to compensation benefits for 276 weeks at the rate of $35 per week. A total recovery of $9,660 with interest, costs, etc., was awarded and ordered paid out of the Second Injury Fund. The Board, in its special capacity, has perfected an appeal and briefts three points of error.

The facts in the case are uncontroverted, although the parties did not stipulate them. In May of 1946, Mr. Parker in an automobile miship in the State of Pennsylvania lost his left arm to a point six or seven inches below the shoulder. He received no workmen's compensation, or other recompense for the loss. On September 3, 1957, while employed by the Dew Construction Company and engaged in the performance of his duties he fell from a dirt loading machine, which ran over and crushed his left foot. Treatment of the foot required amputation of the great toe and the adjacent second toe, and the connecting metatarsal bones of the foot. The Board's medical examiner, weighing the incapacity caused by the foot injury and the arm loss, pronounced Mr. Parker totally and permanently disabled to do the usual tasks of a workman and physically unfit to obtain and retain employment. No medical or other witnesses disagreed with this opinion.

The Argonaut Underwriters Insurance Company, the Construction Company's compensation carrier, immediately after the injury began $35 weekly compensation payments to Mr. Parker. On September 10, 1957, Parker filed formal notice of his injury with his employer and the Board. On August, 20, 1958, after being paid $1,627.50 by the insurance carrier he entered into a settlement for a lump sum payment of an additional $1,968.75 in discharge charge of the carrier's liability. The settlement was on the basis of benefits for 125 weeks for the loss of a foot under Art. 8306, Sec. 12.

Prior to settlement on April 10, 1958, D. U. Parker, a son, wrote the Industrial Accident Board in behalf of his father, and stated that the insurance carrier's adjuster, in the course of settlement negotiations, had tried to explain 'something about Second Accident Fund', and asked to be informed respecting it. The Board replied on April 14 and asked for further information. Correspondence followed and on October 1st, 1958, Parker filed his claim against the Second Injury Fund with the Board. Thereafter, on January 16, 1959, the Board denied the claim. Notice of intention to appeal was given and suit was timely filed. $The Industrial Accident Board by its three points of error pose the following questions:

1). Must Parker plead and prove the State's consent to be sued on this claim prior to filing his suit?

2). Is the trial court without jurisdiction to render judgment when it is conclusively shown that Parker failed to make a claim against the Second Injury Fund within a period of six months after the accident and injury occurring September 2, 1957?

3). Does Parker's appeal from the Industrial Accident Board denial of his claim against the Second Injury Fund fail because there is no provision in the Workmen's Compensation Law for appeals in such cases?

It is the opinion of this court that a negative reply is proper to each of these questions.

In construing the provisions of the Second Injury Fund Act, in conjunction with the other provisions of the Workmen's Compensation Law, the interpretation most beneficial to injured employees and which will best promote the purposes of the act will be employed. It has frequently been stated by the courts that the primary purposes of the Workmen's Compensation Law is to benefit and protect injured employees. See Fidelity & Casualty Co. of New York v. McLaughlin, 134 Tex. 613, 135 S.W.2d 955; Woolsey v. Panhandle Refining Co., 131 Tex. 449, 116 S.W.2d 675; Brinkley v. Liberty Mutual Insurance Company, Tex.Civ.App., 331 S.W.2d 423, n. w. h. And that the Workmen's Compensation Law should be construed liberally in favor of the injured workman. Huffman v. Southern Underwriters, 133 Tex. 354, 128 S.W.2d 4, and Miears v. Industrial Accident Board, 149 Tex. 270, 232 S.W.2d 671. It is an elementary rule of construction that all of the provisions of the Workmen's Compensation Law must be construed together and in such manner that if possible the provisions will operate in harmony. Zurich General Accident & Fidelity Ins. Co. v. Walker, Tex.Com.App., 35 S.W.2d 115.

Very little discussion will suffice to dispose of the first question. A suit was filed and maintained without permission other than that impliedly given by the Second Injury Fund Act, in Industrial Accident Board v. Miears, Tex.Civ.App., 227 S.W. 571, reversed in part 149 Tex. 270, 232 S.W.2d 671. The opinion in that case reveals that an injured workman appealed from the award of the Industrial Accident Board in a Second Injury Fund case to the district court of the county where the second injury occurred. The State's Attorney General, as counsel for the Board, filed a plea of privilege to remove the action to a district court of Travis County. The plea of privilege was overruled and on appeal the Court of Civil Appeals held that Art. 8307, Sec. 5, governed appeals in a Second Injury Fund action. The Supreme Court reversed the Court of Civil Appeals in part upon another point, but the decision by both courts presupposes and inferentially confirms the right of an injured workman to proceed against the Second Injury Fund without special Legislative permission, aside from that impliedly granted by the act. Perhaps it should be acknowledge that neither the Court of Civil Appeals nor the Supreme Court in the Miears case passed upon precisely the question presented here. However, decision on the question considered supports a right of appeal in the injured workman and of necessity the prior right to bring an action by authority of the statute. Those cases approved the view that Sections, 12c-1 and 12c-2 are integral parts of the State's Workmen's Compensation Law, and are in every respect of equal materiality with its other provisions. The purpose of the Second Injury Fund and its inclusion within the body of the Workmen's Compensation Law excludes any construction except that the legislature intended to and impliedly granted consent for the State to be sued as was done in this case in the administration of the Second Injury Act's provisions.

The third point, that is, that Parker has no statutory appeal from the denial by the Industrial Accident Board of his claim for compensation from the Second Injury Fund is urged by the Board only in the event it should be held that the requirements of Art. 8307, Sec. 4a relating to notice of claims be held not applicable in an action for benefits from the Second Injury Fund. The views just expressed and the discussion which follows demonstrate that such notice and claim provisions do govenrn in second injury cases; therefore, it will not be necessary to discuss the third question presented and the Board's point in that respect is respectfully overruled.

The Legislature engrafted the provisions of the Second Injury Fund Act upon the existing Workmen's Compensation Law structure, without providing a detailed procedure for its operation, evidencing by such enactment and the language used an intent that it be administered as a part and in harmony with the existing law. The several provisions of the Workmen's Compensation Law being in pari materia, it follows that it was the intention of the Legislature within certain limitations that the Second Injury Fund be administered in accordance with the existing laws governing claims by injured workmen against compensation insurers genearally. Therefore, it may be said, it was the intention of the Legislature in second injury cases that the Second Injury Fund be substituted for the compensation insurer in the administration of the law to the extent necessary to accomplish the purposes of the Second Injury Fund Act. It is the legislative intention that the Second Injury Fund stand as the compensation insurer in Second Injury cases so far as a just and harmonious interpretation of the numerous provisions of the compensation law will permit. However, this does not mean that a substitution was intended concerning subject matter exclusively within the compenence of a compensation insurer, or conferring a benefit enjoyable only by the insurer, or a duty which the insurer alone could execute; nor where to substitute would result in a conflict or hiatus in provisions, or a nullification of the purposes of the Compensation Law. The text of Art. 8307, Sec. 4a is as follows:

'Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a...