Johnson v. American Gen. Ins. Co., B--2312

CourtSupreme Court of Texas
Citation464 S.W.2d 83
Docket NumberNo. B--2312,B--2312
PartiesWilbur V. JOHNSON, Petitioner, v. AMERICAN GENERAL INSURANCE COMPANY, Respondent.
Decision Date06 January 1971

Mike Willatt, Houston, for petitioner.

Vinson, Elkins, Searls & Connally, Louis E. McCarter, Houston, for respondent.


The only question in this workmen's compensation suit is whether there is a fatal variance between the claim presented to the Industrial Accident Board and that presented in court. The trial court held that there was not; and based upon the jury's verdict, the workman recovered for permanent partial disability. The Court of Civil Appeals reversed. It rendered judgment that the plaintiff workman take nothing on the ground that the trial court should have sustained the defendant's plea to the jurisdiction of the trial court because of the fatal variance. It reasoned that the workman sought compensation before the Board for an accidental injury received at a particular time and place, and that such a claim was at fatal variance with his claim in court that he suffered an occupational disease. 456 S.W.2d 188. We reverse the judgment of the Court of Civil Appeals and remand the cause to that court to pass upon other points it had not considered.

The problem with regard to variance is that the Legislature has prescribed a general scheme whereby claims for compensation must first be presented to the Board. It must have the opportunity to pass on the claim before it is presented in court. If a party is dissatisfied with the award of the Board on the claim there made, he may then obtain a trial de novo in the district court. But for the court to have jurisdiction, the claim sued upon must first have been presented to the Board. Hartford Accident & Indemnity Ins. Co. v. Choate, 126 Tex. 368, 89 S.W.2d 205 (1936). In Choate, the workman received burns; but he specifically informed the Board that he was limiting his claim to the loss of sight of his left eye. In the trial before the court, he sought to add recovery for injuries to other parts of his body. The holding was that since the claim to the Board had been specifically limited to the eye, the court was without jurisdiction to pass on other injuries not submitted first to the Board. This court recognized, however, that where injuries are generally described to the Board, the claim of the workman 'upon appeal to the courts may be enlarged to include all injuries proximately resulting from the accident complained of.' 89 S.W.2d at 207.

Similarly in Solomon v. Massachusetts Bonding & Insurance Co., 347 S.W.2d 17 (Tex.Civ.App., 1961, writ refused), the workman alleged before the Board an injury which he received in San Antonio in June of 1956. But when he got to court, he sought to recover for an injury received in Eagle Pass in January of 1954. The discrepancy of two and a half years of time and 100 miles of distance was too much. It was a fatal variance.

On the other hand, the statutes have not prescribed the manner or form for making a claim. No provision is made for pleadings or for the formality of procedure before the Board. It is desirable that the procedure be of such simplicity that the injured employee will be able to file his claim by himself in his own terms. He may have little knowledge of medicine or the law. A purpose in the filing of the claim is to give such information as will identify the injury or condition and serve as a basis for proper investigation, hearing and determination of the claim. The notice must describe an injury or a condition that is potentially compensable; and on appeal there must be, at least in general, an identity of the injury or condition presented to the Board. Booth v. Texas Employers' Ins. Ass'n., 132 Tex. 237, 123 S.W.2d 322 (1938); Consolidated Underwriters v. Wright, 408 S.W.2d 140 (Tex.Civ.App.1966, writ ref., n.r.e.); Petray v. Travelers Ins. Co., 393 S.W.2d 711 (Tex.Civ.App.1965, writ ref., n.r.e.).

There is, of course, a statutory difference between an accidental injury received at a particular time and place and an occupational disease acquired over a period of time. But, as set out in the Wright opinion cited just above, the term 'injury' is defined and construed to mean damage or harm to the physical structure of the body and includes occupational diseases. 1 The Board has different printed forms for claims for accidental injuries and for occupational diseases; but the Wright case also held that it was not a fatal varaince for a workman to use the wrong form before the Board. In that case, the workman used the form for occupational disease; but upon trial de novo, he was permitted to recover for a general injury, there being an 'identity of injury' alleged.

With the foregoing principles in mind, we turn to the matter before us. The facts and the details of the papers filed with the Board by the various parties are set out in the opinion of the Court of Civil Appeals, and they need only be summarized here.

The worker, Wilbur Johnson, was a welder with a fifth grade education. He had worked for the Texas Electric Steel Casting Company for fourteen years in close proximity to molders, sandblasters, sand shakeout operations and grinding machines. On November 6, 1965, while welding in an unventilated 10 by 12 foot booth, he was stricken by what doctors at first believed to be a heart attack. He was hospitalized and lost 14 days work. After returning to work he was given a welding booth with an exhaust fan; but approximately four weeks later, he again lost consciousness on the job. His condition was diagnosed as silicosis After his claim for compensation was filed with the Board.

Apparently the first instrument filed with the Board was submitted by the company as its 'Employer's First Report of Injury.' It stated that 'employee alleges occupational disease.' At another place, the company stated 'Disease alleged.'

The claim submitted by Johnson, the worker, was on the printed form for accidental injury and not on the form for occupational disease. The printed portion says, 'I was injured on _ _.' The blank was filled in 'November 6, 1965.' This was the date on which Johnson was first taken from the job to the hospital with the suspected heart attack. In the blank following the printed words, 'Describe Accident and Your Injury (in your own words),' there was written, 'While close in with very poor ventilation or no ventilation, plaintiff inhaled too much sand, chemicals, carbon, and other foreign matters and impurities and deleterious matters injuring his lungs, nerves throughout the body, general health and other injuries.'

The claim, received by the Board on January 25, 1966, was transmitted by a letter from an attorney which stated, 'I enclose herewith Notice of Injury and Claim for Compensation in the above case.' The attorney requested an early hearing. The Board, on February 3, wrote the parties of the setting of the hearing for March 8, 1966; and in the blank in its printed form for 'nature of injury', it wrote 'Respiratory tract damaged due to inhalation of chemicals on job.'

On March 23, the Board entered its order denying the workman any relief with the statement that 'The Board finds that the evidence submitted fails to establish that the claimant suffered a compensable injury . . ..'

The worker's claim was filed with the Board on January 9, 1966; but he did not have a medical diagnosis of silicosis until February 22,...

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