Texas Employers' Ins. Ass'n v. Jackson

• Decision Date: 15 October 1986
• Docket Number: No. 08-86-00055-CV,08-86-00055-CV
• Citation: 719 S.W.2d 245
• Parties: TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Loren E. JACKSON, Appellee.
• Court: Texas Court of Appeals

Page 245

719 S.W.2d 245

TEXAS EMPLOYERS' INSURANCE ASSOCIATION, Appellant, v. Loren E. JACKSON, Appellee.

No. 08-86-00055-CV.

Court of Appeals of Texas El Paso.

Oct. 15, 1986.

Rehearing Denied Nov. 5, 1986.

Michael McKinney, Michael Tighe, Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., Midland, for appellant.

Robert E. White, Childs & Bishop Law Offices, Inc., Odessa, for appellee.

Before OSBORN, C.J., and SCHULTE and ARMENDARIZ, JJ., concur.

OPINION

SCHULTE, Justice.

This is an appeal from a judgment awarding Appellee a disability award under workers' compensation for a heart attack allegedly suffered within the course and scope of employment. Appellee was awarded $154.00 per week, plus interest, for 193 weeks for accrued total and partial disability, and 208 weeks unaccrued partial disability at $154.00 per week. We reverse and remand for a new trial.

On March 11, 1982, Appellee went to his place of employment at Target Enterprises, Incorporated, to open up the building. Appellee, while opening up the building, jerked hard on a door and soon thereafter suffered a heart attack. Appellee's employer had notice of the injury, but informed Appellee that he didn't think workers' compensation would cover it. About a year later, Appellee advised his employer that he intended to file a claim. The employer then filed his first report of injury which was received by the Texas Industrial Accident Board in May, 1983. The cause was tried before a jury which found that Appellee had been injured in the course of employment and that such injury caused Appellee's incapacity. It further found that Appellee's employer had notice of the injury and that Appellee had good cause for his failure to timely file his claim.

Appellant's seven points of error basically address three subject areas. Points of Error Nos. One through Three deal with the granting of Appellee's motion in limine which prohibited Appellant from presenting Dr. Mohr's testimony as to the cause of Appellee's heart attack. The judge below ruled that Dr. Mohr could not testify because his medical examination of Appellee was privileged under the Social Security Act. This area further includes as error the trial court's refusal to allow the doctor to testify, basing his testimony solely upon Appellee's medical records obtained from other sources and not upon records of his own examination of the Appellee. Points of Error Nos. Four and Five concern the jury finding that Appellee's heart attack occurred during the course of employment, and attack the sufficiency of the evidence. Appellant's Points of Error Nos. Six and Seven relate to the finding of good cause for Appellee's failure to file his claim within six months of the date of his injury. Appellee counters on these last two points, asserting that Appellee's claim was timely filed as a matter of law since the limitation period did not begin to run until the employer filed his first report of accidental injury.

In that the statute of limitations question could be dispositive of the case, Points of Error Nos. Six and Seven will be addressed first. Under Tex.Rev.Civ.Stat.Ann. art. 8307, sec. 4a (Vernon 1967), in effect at the time of the claim, such an action had to be initiated within six months of the occurrence of the injury. Tex.Rev.Civ.Stat.Ann. art 8307, sec. 7a (Vernon Supp.1986), provides that if an employer has been given notice or has actual knowledge of an injury and does not file a Section 7 report, the statute is tolled until the report is filed. When no notice is given, no Section 7 report is required. Smith v. Home Indemnity Company, 683 S.W.2d 559, 565 (Tex.App.--Fort Worth 1985, no writ).

Tex.Rev.Civ.Stat.Ann. art. 8307, sec. 7(a) (Vernon Supp.1986), provides in substance in pertinent part that every subscriber shall keep a record of all injuries, fatal or otherwise, sustained by his employees in the course of their employment, after the occurrence of an accident resulting in an injury to an employee, causing his absence from work for more than one day. In Lowe v. Pacific Employers Indemnity Company, 559 S.W.2d 370 (Tex.Civ.App.--Dallas 1977, writ ref'd n.r.e.), the court held that the intent of this statute is to limit required reports to accidents which appear from the beginning to be sufficiently serious that a claim may be anticipated. The statute contemplates filing of a report only when injury is such that there is a reasonably potential compensable injury.

Appellee here was in the hospital for more than one day, thirteen to be exact. Appellee's wife called on March 11, 1982, and informed the employer of what had occurred. The employer visited Appellee in the hospital at which time Appellee asked if his injury would be covered by workers' compensation. Further, the jury found the employer had notice within thirty days after the accident. The employer clearly had notice that a serious event had occurred in March, 1982, on the work premises. As stated in Lowe, supra, the report was required since it appeared from the beginning to be sufficiently serious that a claim could be anticipated. Therefore, as a matter of law the statute was tolled until the employer filed the first report of injury. Points of Error Nos. Six and Seven are overruled.

Point of Error No. One addresses the exclusion of Dr. Mohr's testimony as being a violation of the Social Security Act. The statute relied on to exclude the testimony is 42 U.S.C.A. sec. 1306 (1983). This statute provides that:

[N]o disclosure of any such file, record, report, or other paper, or information, obtained at any time by any person from the Secretary of Health and Human Services or Secretary of Labor, as the case may be, or from any officer or employee of the Department of Health and Human Services or the Department of Labor shall be made except as the Secretary of Health and Human Services or the Secretary of Labor, as the case may be, may by regulations prescribe and except as otherwise provided by Federal law.

In Schechter v. Weinberger, 506 F.2d 1275 (D.C.Cir.1974), the court held that this statute providing for nondisclosure of any file, record, report or other paper obtained by the Secretary of Health, Education and Welfare vested complete and uncharted discretion with respect to disclosure within the secretary and, therefore, is not a specific exemption to the Freedom of Information Act. The Secretary has provided regulations pursuant to his authority which are set out in 20 C.F.R. secs. 401.100-401.603 (1986). Subpart A of Section 401.100 sets out the purposes of the regulation, which are: (1) describe how individuals may get access to their own records, and (2) describe the rules the Social Security Administration uses to decide whether to disclose information about individuals without their consent.

The regulations deal with a disclosure of information by the Social Security Administration. In the case at hand, the Appellee already had the report prepared by Dr. Mohr for the Social Security Administration. Social Security made no claim of privilege as to the report filed by Dr. Mohr or his testifying at trial. Dr. Mohr also claimed no privilege when requested to testify. At trial, Appellee was the only one who claimed such testimony was privileged by orally requesting a motion in limine to prevent the doctor from testifying.

The above regulations do not address who holds the privilege under the statute or how such a privilege is waived. The only Texas case to actually address the issue was Texas Employers' Insurance Association v. Marshall, 436 S.W.2d 617 (Tex.Civ.App.--Eastland 1969, writ ref'd n.r.e.). That case involved a defendant who attempted to compel testimony after a doctor refused to testify concerning an examination he had performed at the request of the Social Security Administration. In that case, the Secretary of Health, Education and Welfare claimed the privilege. The case does not address the effect of the privilege when no one associated with the Social Security Administration claims the privilege, as occurred in the cause before this Court. In Tootle v. Seaboard Coast Line Railroad Company, 447 So.2d 1009 (Fla.App. 5 Dist.1984), the plaintiff sued after being injured in a train-automobile accident. The plaintiff sought to depose a Dr. Krop who was hired by the Social Security Administration to do a report and was not plaintiff's treating physician. This is essentially the same situation as the case before this Court. The Office of Disability Termination claimed the privilege granted in 42 U.S.C. sec. 1306(a)(1982). The court held that although other federal courts have different views on whether the privilege applies in this situation (citing Texas Employers' Insurance Association v. Marshall, supra, in a footnote), in any event only the person being compelled to testify who enters a protest on his own or through the government has standing to challenge the compulsion of his testimony. Looking at the Tootle case, it could be concluded that the privilege belongs to the government or the reporting doctor only, and since it was not claimed, it was waived. However, in Avila v. United States Fidelity and Guaranty Company, 551 S.W.2d 453 (Tex.Civ.App.--San Antonio 1977, writ ref'd n.r.e.) (which cites Texas Employers' Insurance Association v. Marshall, supra ), the court held that the trial court erred in a workers' compensation case by admitting into evidence a letter by a physician who examined the claimant for the Social Security Administration without the informed written consent of the claimant. In the case at hand, the Appellee supplied the report of Dr. Mohr and supplied a signed waiver to the Appellant's attorney.

Clearly, the government and Dr. Mohr could have claimed a privilege under Tootle, supra, but neither did, and thus waived. However, according to Avila, supra, Appellee could claim the...