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

Decision Date29 January 1981
Docket NumberNo. 5542,5542
Citation611 S.W.2d 934
PartiesAlice J. WALTERS, Appellant, v. The FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellee.
CourtTexas Court of Appeals

Pat M. Reed, Dallas, for appellant.

Sam J. Day, Greg S. Hargrove, McDonald, Sanders, Ginsburg, Phillips, Maddox & Newkirk, Fort Worth, for appellee.


This is a worker's compensation death case. Alice Jeannette Walters sought benefits for the death of her husband, Henry Osborn Walters, from the Fidelity & Casualty Company of New York under the Worker's Compensation Law. She alleged that her husband sustained a job related injury which aggravated an existing condition of cancer and that he subsequently died. Following a jury trial, judgment was entered awarding Alice Walters compensation benefits to date of judgment and $70.00 per week for life (or in the event of her remarriage, to the date of remarriage plus two years), with 25% of such payments being awarded to her attorney. The trial court refused to allow any lump sum award of future benefits to either Alice Walters or her attorney. We are considering two appeals. Alice Walters has perfected a limited appeal, challenging only the court's refusal to allow a lump sum award. The Fidelity & Casualty Company of New York appeals Mrs. Walters' recovery. We affirm in both instances.

Fidelity & Casualty contends that as a matter of law there was no good cause for the failure to file the notice of fatal injury and claim for compensation for death within six (6) months of the death of Henry Walters. We overrule such contention.

Tex.Rev.Civ.Stat.Ann. art. 8307, § 4a (1967) provides:

Unless the Association or subscriber have notice of the injury, no proceeding for compensation for injury under this law shall be maintained unless a notice of the injury shall have been given to the Association or subscriber within thirty (30) days after the happening of an injury or the first distinct manifestation of an occupational disease, and unless a claim for compensation with respect to such injury shall have been made within six (6) months after the occurrence of the injury or of the first distinct manifestation of an occupational disease; or, in case of death of the employee or in the event of his physical or mental incapacity, within six (6) months after death or the removal of such physical or mental incapacity. For good cause the Board may, in meritorious cases, waive the strict compliance with the foregoing limitations as to notice, and the filing of the claim before the Board. (emphasis added)

Henry Walters died on January 11, 1977. The notice of fatal injury and claim for compensation for death was not received by the Industrial Accident Board until October 20, 1977. However, on June 20, 1977, the Industrial Accident Board received a letter from Mrs. Walters' attorney which stated:

Please be advised that we represent the above captioned employee. Notice and Claim for Compensation for Injury was heretofore filed in your office on November 6, 1976. Please be further advised that Mr. H. O. Walters is now deceased. A copy of his death certificate being enclosed. It is our contention that his death was the result of the aggravation of a preexisting condition caused by his injury and work on June 12, 1976.

The carrier paid workmen's compensation on this claim until January 11, 1977. We enclose herewith Affidavit of Hardship from his widow, Mrs. Alice Walters, and please consider this our request that the case be set for prehearing conference at the early convenience of the Board. We would appreciate it if this cause could be transferred to either Dallas or in your Fort Worth office, if you have an office in Fort Worth.

The Affidavit of Hardship referred to in the letter stated:

My name is ALICE WALTERS, and I am the widow of the above Claimant, HENRY O. WALTERS, who is now deceased, having died on January 11, 1977. At the time of his death my husband had a claim pending before the Industrial Accident Board as above styled. My deceased husband was hurt on the job on the above date while working for the above employer. At the time of his death my husband was drawing $70.00 per week for disability benefits under the Workmen's Compensation Laws of the State of Texas. No payments have been made by the insurance carrier since January 11, 1977. It is my understanding that my husband died of the disease of cancer that he had cancer before his accident on June 12, 1976; and, that his accident aggravated his condition and therefore that his heirs are entitled to additional compensation as provided by law. I have no income and have no funds to sustain myself and as his heir I am entitled to receive any Workmen's Compensation Benefits that he would be entitled to receive if he was now living. I do not have sufficient funds to sustain myself, and since I am living under a severe economic hardship, I request an immediate prehearing conference.

The Supreme Court in Johnson v. American General Insurance Company, 464 S.W.2d 83 (Tex.1971), considering the manner or form for making a claim for worker's compensation, said:

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.).

See also Prince v. Texas Employers' Insurance Association, 466 S.W.2d 642 (Tex.Civ.App. Eastland 1971, writ ref'd n.r.e.).

We hold that the letter and Affidavit of Hardship filed with the Board within the time prescribed by our statutes constituted a proper claim.

Henry Walters died as a result of respiratory failure. He had been diagnosed as having cancer in his lung area long before he suffered the injury to his back. Fidelity & Casualty urges that Mrs. Walters failed to produce legally sufficient evidence to show a causal connection between the back injury and respiratory failure; therefore, the jury finding that the back injury was a producing cause of Walters' death is not supported by the evidence and is manifestly unjust. We disagree.

In passing on no evidence points, this court must give credence only to the evidence favorable to the findings and disregard all evidence to the contrary. Martinez v. Delta Brands, Inc., 515 S.W.2d 263 (Tex.1974). In passing on factually insufficient evidence points, we must examine the entire record. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (Tex.1951). Applying such rules to Fidelity & Casualty's evidentiary challenges, we overrule same.

Dr. McCarroll, the family doctor who cared for Walters during his last illness, stated that he felt that the preexisting cancerous condition of Walters was aggravated by the injury. He also testified that he felt Walters would probably have lived "a little longer" without the back injury.

Dr. George Race, a medical doctor with very high qualifications, testified in part:

Q Now, do you have an opinion based on reasonable medical probability as to whether or not that injury which you have testified aggravated his cancerous back condition, whether or not in reasonable medical probability that act could be a producing cause of his death in January of 1977?

A I would say it could be. It is a factor along with others involving the spread of his tumor.

Q You think that in reasonable medical possibility that it was a producing cause?

A I think that's one of a group of producing causes.

A My opinion is based on what he asked me in regard to this and I would say again that I believe the man had a cancer of the lung which was spreading and was proven to be spreading.... I would stick with the fact that the spine was weakened as a result of the cancer...

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