Westchester Fire Ins. Co. v. Lowe

• Citation: 888 S.W.2d 243
• Decision Date: 23 November 1994
• Docket Number: No. 09-93-024,09-93-024
• Parties: WESTCHESTER FIRE INSURANCE COMPANY, Appellant, v. Mary T. LOWE, Appellee. CV.
• Court: Court of Appeals of Texas

Page 243

888 S.W.2d 243

WESTCHESTER FIRE INSURANCE COMPANY, Appellant, v. Mary T. LOWE, Appellee.

No. 09-93-024 CV.

Court of Appeals of Texas Beaumont.

Submitted Sept. 9, 1994.

Decided Nov. 23, 1994.

John W. Bridger, Theodore P. Ray, Strong, Pipkin, Nelson & Bissell, Beaumont, for appellant.

Thomas P. Roebuck, Jr., Bush, Lewis, Ramsey & Roebuck, Beaumont, for appellee.

Before WALKER, C.J., and BROOKSHIRE and BURGESS, JJ.

OPINION ON MOTION FOR REHEARING

BROOKSHIRE, Justice.

The Honorable Thomas P. Roebuck, Jr., filing for the firm of Bush, Lewis, Ramsey & Roebuck, P.C., drafted, signed, and filed a Motion for Rehearing. Lest we be accused of selectively printing and publishing certain barbed clauses, phrases, and sentences in the Motion for Rehearing, we have determined to set out the Honorable Thomas P. Roebuck, Jr.'s, APPELLEE'S MOTION FOR REHEARING in full and verbatim.

Appellee MARY T. LOWE humbly submits that this Court's majority Opinion will serve only to further denigrate the public's perception of lawyers, judges and the entire civil justice system. Generally, the public believes that lawyers and judges, in order to promote their own perpetual motion machine, mire themselves in a complex morass of legal mumbo-jumbo, unintelligible by the real people the system was designed to protect, and who place our judicial officials on their respective thrones. Those propagating the timeless political theme of judicial reform constantly complain of the countless delays and uncontrollable expense of litigation.

Appellee suggests that this Court's Opinion will serve to fuel the fanatic fire of those seeking judicial reform and further poison the public's perception of the entire system.

In the instant case, the legislature wrote a statute very specific in its terms giving the insurance company a credit only for prior compensable injuries and creating a second injury fund. (Article 8306 § 12c(a) Tex.Rev.Civ.St.Ann. [sic] ) The purpose of the Statute was obvious: if an employee had suffered a previous compensable injury at a previous place of employment and sought new employment, the employer would be unlikely to hire that new employee if it believed it would be held liable for all the employee's damages for a subsequent injury. Clearly the Statute was designed to reduce the worker's compensation carrier's exposure and to stimulate the ability of injured workers to obtain new employment.

The Statute does not even address the issue before this honorable Court, that being whether an insurance company is entitled to receive a credit for a subsequent compensable injury.

The Court's Opinion herein does not further any legitimate purpose; it only serves to feed the unreasonable fear that an injured worker with a competent lawyer might, as in the instant situation, be able to obtain fair recovery under a grossly inadequate workers' compensation statute.

Furthermore, any suggestion that Mrs. Lowe, in the instant case, would receive a double recovery is absolutely ludicrous. The instant case does not involve a situation where the workers' compensation carrier was prohibited from presenting evidence of a subsequent compensable injury. The record was replete with evidence of a subsequent compensable injury. If the majority of the Court would read St. Paul Fire & Marine Ins. Co. v. Murphree, 163 Tx. 534, 357 S.W.2d 744 (1962), instead of following what appears to be a result-oriented approach, the Court would realize that the trial judge was merely attempting to fulfill his obligation and follow the law as defined by statutory and case law.

Judges and trial lawyers are supposed to be able to rely on the strict meaning of statute and the holding as opposed to pure dicta of the case law. It is unfortunate that the appellate courts in Claridy v. Texas Employers' Ins. Ass'n, 795 S.W.2d 228 (Tex.App.--Waco 1990, writ denied) and Jones v. Pacific Employers Ins. Co., 416 S.W.2d 580 (Tex.Civ.App.--Eastland 1967, writ ref'd n.r.e.), have sort have taken [sic] a Darwinian approach to the interpretation of case law in the state of Texas. The Claridy and Jones court's [sic] have taken the amoeba spawned in Murphree, ignored the literal language in § 12c(a) and manufactured their own version of Homo sapiens. That is, a credit for previous compensable injury actually means the insurance company is entitled to a credit for subsequent compensable injuries.

The majority of this Court, unfortunately has blindly followed the "Pied Piper" in Claridy and Jones into a bottomless abyss, bordered by smirking Westchester Fire Insurance Company on one side and a frantic, helpless Mary Lowe on the other.

In July of 1990, the Chief Justice of this honorable Court chastised the federal judiciary on what he labeled as a "downhill runaway train." Further, the honorable Chief Justice accused one federal district judge in particular of attempting to usurp the authority of the Texas legislature. It would appear this Court has joined the enemy.

Counsel for the Appellee has the highest regard for the integrity of all the members of this honorable Court; however, even this Court can be wrong. As Justice Burgess so concisely phrased it, the Court had two paths to choose, the Claridy/ Jones path or the Grimes /Peoples path. [Liberty Mutual Ins. Co. v. Peoples, 595 S.W.2d 135 (Tex.Civ.App. San Antonio 1979, writ ref'd n.r.e.) and Southern Underwriters v. Grimes, 146 S.W.2d 1058 (Tex.Civ.App.1940, writ dismissed, judgment cor.) ]. In choosing the Claridy/ Jones path, this Court has absolutely ignored the literal meaning of § 12c(a) of the Workers' Compensation Act, and one of the oldest rules of statutory construction, that being that all statutes are strictly construed.

More importantly, in the instant case, Appellee is probably dealing with a court of last resort. This is an old-law workers' compensation case; therefore, not being one which will probably catch the Supreme Court's attention, even with a dissent. This Court's decision sends a clear message to working folks in general and to Mary Lowe specifically: the written law means what the written law says unless we can change it to benefit an insurance company. It is requested that this honorable Court rehear this matter and affirm the ruling of the trial court.

Respectfully submitted,

BUSH, LEWIS, RAMSEY & ROEBUCK, P.C.

By: /s/ Thomas P. Roebuck,Jr.

The record makes it crystal clear, and, indeed, undisputed that the appellee, Mary T. Lowe, sustained two different on-the-job injuries. The first injury was experienced on January 15, 1987 (first injury). A separate and distinct second on-the-job injury occurred on October 5, 1987 (second injury). The jury found that Lowe received an injury on or about January 15, 1987 in the course of her employment with Giant Supermarket which was a producing cause of incapacity. This appeal concerns the first injury.

The jury found that the total incapacity from the first injury had a beginning date of January 15, 1987, and an ending date of February 2, 1987. The jury found that the partial incapacity resulting from the second injury had a beginning date of October 5, 1987, and was permanent. The record plainly demonstrates that after nine days of bed rest without prescription medication that the appellee and her treating physician agreed that appellee could return to her regular work performing her usual duties on her job. The appellee did so.

However, the second injury of October 5, 1987, was followed by physical therapy and prescribed medication for the relaxing of appellee's muscles. Other diagnostic tests and tools were performed as a result of the second injury. A physician in Port Arthur prescribed injections of cortisone. The injections relieved appellee's pain from the second injury but only on a temporary basis.

After the second injury appellee testified to numerous and disabling incapacities. Testimony of probative worth showed that the appellee after the second injury was in pain from it all the time and that as a sequence of the second injury, she was not able to dress herself or bathe or wash herself without experiencing pain. Appellee's selected Port Arthur physician, Dr. Archambault, testified that the effect and the contributing factor of the subsequent, second injury resulted in the appellee's present, sued-on condition by making the appellee's condition worse and painful. The governing statute, being TEX.REV.CIV.STAT.ANN. art. 8306 § 12c(a) (Vernon Supp.1989) provides:

If an employee who has suffered a previous injury shall suffer a subsequent injury which results in a condition of incapacity to which both injuries or their effects have contributed, the association shall be liable because of such injury only for the compensation to which the subsequent injury would have entitled the injured employee had there been no previous injury; provided that there shall be created a fund known as the "Second Injury Fund," hereinafter described, from which an employee who has suffered a subsequent injury shall be compensated for the combined incapacities resulting from both injuries....

This article 8306 and its relevant section further, in a salutary manner, provide that notice of the injury to the employer and the filing of a claim with the Industrial Accident Board as required by law shall also be deemed and considered notice to and the filing of a claim against the "Second Injury Fund". Thus, the injured employee is not without a remedy and has the beneficial results and the benefits of the provision of the law that his or her notice of injury and claim for compensation are also deemed to be notice of injury and claim for compensation preserving all of his or her rights against the "Second Injury Fund".

One consideration (for the decisional precedents) is that the employer at the time of the earlier injury may be the same employer or a different one from the employer at the time of the subsequent injury. Moreover, the workers'...