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Case History Document



Cigna Ins. Co. v. Evans
Entered By: Marc C Gabriel/LymeNetDate Created: 2-9-93
Document Type: Decision
Title: Case Decision for: Cigna Ins. Co. v. Evans
CIGNA INSURANCE COMPANY OF TEXAS, Appellant v. GLORIA SUE EVANS, Appellee

CIGNA INS. CO. v. EVANS

No. 6-92-036-CV

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

847 S.W.2d 417; 1993 Tex. App.


February 9, 1993, Decided
February 9, 1993, Filed

PRIOR HISTORY: [**1]

On Appeal from the 294th Judicial District Court. Wood County,
Texas. Trial Court No. 91-018.

This Opinion Substituted by Court for Withdrawn Opinion of January
12, 1993, Reported at 1993 Tex. App. LEXIS 36.

DISPOSITION: The judgment of the trial court is affirmed.

COUNSEL: Hon. Gregory D. Smith, Ramey & Flock, P. O. Box 629, Tyler,
TX 75710.

Hon. James A. Attaway, Jr., Attorney at Law, P. O. Box 746,
Quitman, TX 75783.

Hon. Charles Attaway, Attorney at Law, 4412 Texas Boulevard,
Texarkana, TX 75503.

JUDGES: Before Cornelius, C.J., Bleil and Grant, JJ.

OPINIONBY: BEN Z. GRANT

OPINION: [*418] Opinion by Justice Grant

OPINION

Cigna Insurance Company appeals from a jury verdict awarding
Gloria Sue Evans benefits under the Worker's Compensation Act.

Cigna contends that the trial court erred in rendering judgment
for Evans because the evidence conclusively establishes that she
failed to file a timely claim and because there is no evidence or
insufficient evidence to support the jury's finding that there was
good cause for her failure to file a claim within one year of
injury. Cigna further contends that the trial court erred by
overruling its motions for directed verdict and judgment non obstante
veredicto because [**2] Evans is barred from recovery. Cigna also
contends that the trial court erred by excluding [*419] testimony
and documentary evidence relating to Cigna's election-of-remedy
defense and by refusing to submit a jury question on that issue.

Evans has filed a cross-point contending that the trial court
erroneously entered judgment awarding total and permanent benefits
calculated from the date of injury rather than the date incapacity
began resulting in a loss of income, resulting in a loss of 109 weeks
of compensation benefits.

Evans was employed by Shell Oil Company as a pumper. She was
bitten by ticks on a Shell lease in July 1987. On August 2, 1989,
Evans was diagnosed as having Lymes disease. During the twenty-five
months intervening, although her health had begun to deteriorate, she
was not aware that the tick bites had caused her health problems.
She was hospitalized on August 6, 1989. In September, she told
her supervisor that she had Lymes disease caused by the 1987 tick
bites. Her employer filed a first report of injury with the
Industrial Accident Board on November 29, 1989. On December 6, the
carrier filed a notice with the Industrial Accident Board
controverting her right to worker's [**3] compensation benefits.
Immediately thereafter, she hired a lawyer and filed her written claim
for worker's compensation benefits with the board.

At trial, the jury found that Evans had good cause for not giving
timely notice and for not filing a timely claim for benefits, that
the tick bites were work-related injuries, and that they were the
producing cause of her total and permanent disability.

The trial court entered judgment for Evans for 401 weeks of
compensation benefits and reasonable and necessary medical expenses.
The court later entered a judgment nunc pro tunc changing the
beginning date of the 401-week benefit period to July 1, 1987 (the
date of the tick bite), thus reducing the amount of compensation she
would receive under the judgment by 109 weeks because her incapacity
to work did not begin until August 7, 1989.

Cigna first contends that the trial court erred in overruling its
motions for directed verdict and judgment non obstante veredicto
because the evidence conclusively establishes and the parties
stipulated that she did not timely file her claim within one year of
her injury and because there is no evidence to support the jury's
finding that there was good cause [**4] for her failure to file a
claim within one year. Cigna also argues that the evidence is
insufficient to support the jury finding of good cause.

In reviewing the evidence for legal and factual sufficiency, we
must first examine the record for any probative evidence to support
the finding, ignoring all contrary evidence. Sherman v. First Nat'l
Bank, 760 S.W.2d 240, 242 (Tex. 1988); Garza v. Alviar, 395 S.W.2d
821, 823 (Tex. 1965). If we find some probative evidence, we then
test the factual sufficiency of that evidence by considering all of
the evidence, including evidence contrary to the jury's verdict. In
re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 662 (1951).

The statute in effect at the relevant time in this case defined an
injury or personal injury as "damage or harm to the physical
structure of the body and such diseases or infections as naturally
result therefrom." In this case, Evans has a disability caused by
a disease. The disease was transmitted by tick bites. Evidence shows
that Evans was bitten while working on a Shell lease.

There is evidence that Lymes disease [**5] has a lengthy
incubation period and that it is not easily diagnosed. It is a
progressive illness that often gradually increases in severity until
it disables the infected person.

The first day that Evans was unable to work was also her last day
of employment, August 6, 1989. She remained home in bed for several
days and was then hospitalized for five days. She returned home and
remained on intravenous antibiotics with nurses in attendance through
August and into September 1989.

The Texas worker's compensation law then in effect provided:

Art. 83.07, sec. 4a. Notice of injury; claim for compensation.
Unless the Association or subscriber have notice of the injury, no
proceeding [*420] 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 one (1) year after
the occurrence of the injury or of the first distinct manifestation
of an occupational disease . . . For good cause the [**6] 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.

Art. 8307, sec. 7a. Failure to file report; limitation on filing of
claim. Where the association or subscriber has been given notice or
the association or subscriber has knowledge of a injury or death of
an employee and fails, neglects, or refuses to file a report thereof
as required by the provisions of Section 7 of this Article, the
limitation in Section 4a of this Article in respect to the filing of
a claim for compensation shall not begin to run against the claim of
the injured employee or his dependents entitled to compensation . .
. until such report shall have been furnished as required by Section
7 of this Article.

TEX. REV. CIV. STAT. ANN. art. 8307, @@ 4a & 7a n1 (emphasis added).

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -

n1 Repealed by Acts 1989, 71st Leg., 2nd C.S., ch. 1, @ 16.01(10)
to (12), eff. Jan. 1, 1991 (current version TEX. REV. CIV. STAT. ANN.
art. 8308-5.01, 5.02, 5.03, 5.06 (Vernon Supp. 1993)).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -
[**7]

Section 7b provides that the Industrial Accident Board is to
immediately furnish claim forms to the injured employee that inform
the employee of the filing requirements of Section 4a of the Article.

If a person does not believe that his or her injury is severe or
is mistaken as to its cause, "good cause" can be established for the
failure to timely file. The definition provided to the jury in this
case has been approved in numerous other cases, including Travelers
Ins. Co. v. Echols, 508 S.W.2d 422, 424 (Tex. Civ. App.-Texarkana
1974, no writ). Good cause was defined for the jury as existing when
a person has "prosecuted his claim with the diligence an ordinarily
prudent person would have used under the same or similar
circumstances. The good cause must have arisen within one year from
the date of injury and continued until the claim was filed, must have
been believed and relied on by the plaintiff and must have caused the
delayed filing." The test is that of ordinary prudence, that is,
whether the claimant prosecuted the claim with that degree of
diligence that an ordinarily prudent person would have exercised
under the same or similar circumstances. [**8] The totality of
the claimant's conduct must be considered in determining whether he
or she acted with such ordinary prudence. Moronko v. Consolidated
Mutual Insurance Co., 435 S.W.2d 846 (Tex. 1968).

Cigna argues that no evidence indicating good cause has been
shown, and also argues that the evidence is insufficient to support
the jury's finding on that question. There is uncontroverted
evidence that Evans was not aware of the nature of her disease and
the cause of her symptoms until August, 1989, and that she was then
hospitalized and remained bedridden through September. In mid-
September 1989, she informed her supervisors that she had been
diagnosed with Lymes disease caused by the 1987 tick bites. They
came to her home and interviewed her at length at that time.

Cigna argues that Evans' proof of good cause for failing to file
within one year of injury ended at that point, since she was finally
aware that her ongoing illness was in fact the result of an on-the-
job injury. However, if her employer did not file its first report
of injury until November 29, 1989, with the Industrial Accident
Board, as Evans contends is shown by the notice of controversion,
[**9] her failure to file was entirely excused until that date in
accordance with Article 8307, @ 7a. Cigna argues that there is no
evidence of the date upon which the employer filed its report. The
document in evidence is the carrier's "Notice of Controversion of
Right to Compensation." [*421] This document shows that the
carrier's first written notice of injury was received on November
29, 1989. This is not direct evidence of the date that the
Industrial Accident Board received notice, but a reasonable inference
can be made that the subscriber would send the E-1 report on the
injury to the Industrial Accident Board on or about the same time
that it would notify the Industrial Accident Board. Furthermore,
Section 7b of the Workers' Compensation Act requires the Industrial
Accident Board to "immediately furnish the injured employee claim
forms" whenever a report of injury is filed. Evans testified that
after notifying her employer about the injury, she did not receive
anything concerning her tick bites from the Industrial Accident Board
until she received a copy of controversion form. All these
circumstances are evidence from which the jury could conclude as to
whether Evans was timely in her [**10] filing.

Cigna argues that the notice of controversion document showing
that date was submitted only for a limited purpose and may not be
considered outside that purpose. The colloquy surrounding its
admission follows.

MR. JIM ATTAWAY [Plaintiff's Counsel]: We offer this [notice of
controversion] into evidence.

MR. BLACK [Defense Counsel]: We object to Plaintiff's Exhibit No.
13 as being hearsay, not properly authenticated and, therefore, I
don't think it's admissible, Your Honor.

MR. CHARLES ATTAWAY [Plaintiff's Counsel]: Your Honor, in response
to that document, this document was furnished to us by the Defendant
insurance company in response to a request for production. It's
obviously from their papers filed by the employer of Shell Oil
Company through -- I mean through the carrier in the case. It's the
carrier's own document, Your Honor.

MR. BLACK: Your Honor, it also concerns receipt which is not
admissible.

MR. CHARLES ATTAWAY: Your Honor, the sole purpose of offering this
is to show that it was filed at a time before the Plaintiff, in fact,
filed a claim for compensation.

THE COURT: Did the witness testify that she, in fact, received this
particular document?

MR. [**11] CHARLES ATTAWAY: Yes, sir. Yes, sir, she did.

THE COURT: Very well. It will be admitted.

(Emphasis added.)

The document was then read in its entirety to the jury. The court
did not state that it was admitting the document for a limited
purpose and did not instruct the jury to consider it only for a
limited purpose. Counsel for Cigna did not request such an
instruction nor object to the failure of the court to give such an
instruction. Rule 105(a) of the Texas Rules of Civil Evidence
requires that upon request a trial court should instruct a jury if
evidence should be restricted in scope. In the absence of any
directive to the fact finder to consider a piece of evidence only for
a limited purpose, the fact finder may consider it for any and all
purposes. Thus, the jury was not limited in its consideration of
this document.

Accordingly, we now move to an examination of this evidence under
Article 8307, Sections 7 and 7a. Evans contends that she was excused
by this article from filing her written claim with the board until
the mandated report was filed with the board by the subscriber.
Houston General Insurance Co. v. Vera, 638 S.W.2d 102, 106 (Tex.
[**12] App.-Corpus Christi 1982, writ ref'd n.r.e.). Section 7
requires an employer to file a report with the board within eight
days of the injury and absence from work. Section 7a provides that
when an employer fails to file the report, the time limitations for
an employee claim as set out in Section 4a are tolled until the
report is actually filed. Cigna argues that the reporting
requirement of Section 7a does not apply to this injury because
the injury and Evans' absence from work were not contemporaneous.
In Lowe v. Pacific Emp. Indem. Co., 559 S.W.2d 370 (Tex. Civ. App.-
Dallas 1977, writ ref'd n.r.e.), the Dallas court examined a previous
version of Section [*422] 7 and held that when a claimant was
not absent from work within eight days after her accident, the
employer, who had notice of injury, was not required to file the
report. n2 The court therefore held that Section 7a did not
apply, and no tolling of the statute took place. Even though the
earlier version of the statute may have required this result, the
version in effect at the relevant time does not. In December 1989,
Section 7 stated that:

After the occurrence of an accident resulting in an injury [**13]
to an employee, causing his absence from work for more than one (1)
day, or after the employee notifies the employer of a definite
manifestation of an occupational disease, a written report thereof
shall be made within eight (8) days following the employee's absence
from work and notice thereof to the employer. . . The subscriber
shall deliver a copy of the report to the association.

TEX. REV. CIV. STAT. ANN. art. 8307, @ 7 n3 (emphasis added). The
statute clearly contemplates that the triggering event is not just
the injury, but the injury and a correlated absence from work. In
this case, although the injury occurred two years earlier, the
uncontroverted evidence shows that Evans was first absent from work
and that she gave notice to her employer of her injury in September
of 1989. The clear terms of Section 7a therefore provide that the
time limitation of Section 4a did not begin to run against her claim
until the report was furnished as required under Section 7. The
evidence indicates that Evans hired a lawyer and filed her written
claim with the board immediately upon her receipt of the carrier's
December 6 written controversion of that claim. That document
further shows [**14] that the report was filed with the carrier
on November 29, 1989.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -

n2 Section 7, entitled "Record of injuries; reports," formerly
read:

Every subscriber shall hereafter keep a record of all injuries,
fatal or otherwise, sustained by his employees in the course of their
employment. Within eight (8) days after the occurrence of an
accident resulting in an injury to an employee, causing his absence
from work for more than one (1) day, or within eight (8) days after
the employee notifies the employer of a definite manifestation of
an occupational disease, a written report thereof shall be made to
the Board on blanks to be procured from the Board for that purpose.

(Taken from Lowe v. Pacific Emp. Indem. Co., 559 S.W.2d at 371 (Tex.
Civ. App.-Dallas 1977, writ ref'd n.r.e.).

n3 Repealed by Acts 1989, 71st Leg., 2nd C.S., ch. 1, @ 16.01(10)
to (12), eff. Jan. 1, 1991 (current version TEX. REV. CIV. STAT. ANN.
art. 8308-5.04, 5.05 (Vernon Supp. 1993)).

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - -

The specific language of Section [**15] 7a also provided that
the one-year time limitation set out by Section 4a would not begin
to run until the report was furnished to the board. Therefore, her
one-year statute of limitation did not begin to run until her
employer filed its report with the board. Her claim was clearly
filed during that one-year period. Even if the limitations period
was not tolled in this manner, the evidence of continuing good cause
for her failure to file within one year of the injury is compelling.
Until the cause of her illness was identified as resulting from an
on-the-job injury, she could not have filed a claim. The evidence
shows that Evans was physically unable to file the claim for an
extended period of time after she was finally diagnosed with Lymes
disease and that she initiated the required steps by informing her
employer about the injury while still bedridden. The evidence shows
that the employer did not notify its carrier until November 29, 1989,
and that she immediately filed her claim upon receipt of the
carrier's written controversion dated December 6th.

We find these factors are adequate to support the jury's finding
that she had good cause for not filing her claim within one year
[**16] of her injury and that the good cause extended to the date
of filing. These points of error are overruled.

Cigna next contends that the trial court erred by refusing to
permit it to introduce evidence about its election-of-remedies
defense and to include that defense in the charge to the jury. It
contends that her filing of health insurance claims during the period
of time that she was hospitalized [*423] and otherwise injured
precludes her effort to now obtain any recompense through worker's
compensation for her injury. Cigna argues that this constitutes an
election of remedies to which she must be held and that its evidence
on this issue should have been admitted.

The election doctrine may constitute a bar to relief when (1) one
successfully exercises an informed choice (2) between two or more
remedies, rights, or states of facts (3) which are so inconsistent as
to (4) constitute manifest injustice. Bocanegra v. Aetna Life Ins.
Co., 605 S.W.2d 848, 851 (Tex. 1980).

The trial court allowed Cigna to put on proof outside the presence
of the jury to attempt to establish its defense of the election of
remedies. Cigna contends that two health insurance claim [**17]
forms should have been admitted into evidence. These forms contained
a typewritten "x" placed in the "no" block in answer to whether there
was a work-related injury. (Cigna also attempted to introduce this
on the basis that it was an admission against interest.) These forms
were not made part of the record on appeal, but there is nothing in
the record to suggest that these forms bore a signature. Evans
testified that she did not sign these forms, that she did not fill
out such forms, and that she did not provide such information. There
was no evidence to the contrary. Thus, this could not have been
construed to be an informed choice made by Evans, nor could it be
construed as an admission against interest. Furthermore, at a time
when a worker does not know whether her injury was work related, her
action in regard thereto cannot be considered as the exercise of an
informed choice. See Bocanegra, 605 S.W.2d 848.

Cigna did not present in the evidence offered outside the presence
of the jury any evidence that showed the remedies were inconsistent.
It did not offer evidence concerning the terms of Evans' group health
policy, and we are left to speculate whether [**18] the medical
policy covered all injuries or if it excluded on-the-job injuries.
Evans testified that she paid the premiums on the group health
policy; therefore, under the collateral source rule, she may have
been entitled to receive these additional benefits that she had
obtained at her expense. See Brown v. American Transfer & Storage
Co., 601 S.W.2d 931, 935 (Tex. 1980). A worker's compensation
claimant's recovery of medical expenses from a third-party insurer
does not deprive the claimant of her right to recover the value of
such services from a worker's compensation carrier. Standard Fire
Ins. Co. v. Ratcliff, 537 S.W.2d 355 (Tex. Civ. App.-Waco 1976, no
writ). Cigna has not mentioned any change in the Worker's
Compensation Act that modified this holding, and we have found none.

We find that Cigna did not lay a proper predicate or show by its
bill of exception that it was entitled to introduce the evidence of
this collateral insurer. Thus, such evidence was not admissible
before the jury, and the trial court properly refused to submit the
defense of election of remedies as a part of the charge. These
points of error [**19] are overruled.

CROSS-POINT:

Evans argues that the trial court erred in entering judgment
awarding her total and permanent benefits calculated from the date
of injury rather than the date incapacity caused her to be unable
to work. The result was a loss of 109 weeks of compensation benefits
totalling $ 24,416. In a divided opinion, this Court recently held
that the trial court's action is the proper way of applying the
worker's compensation statute. n4 Maryland Casualty Co. v. Duke, 825
S.W.2d 232, 236 (Tex. [*424] App.-Texarkana 1992, writ dism'd,
improvidently granted). The majority held that where, as here,
"the incapacity arises later, benefits are measured from the date
the incapacity commences and extend a maximum of 401 weeks from the
date of the injury." The cross-point is likewise overruled.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - -

n4 In a strongly worded dissent, Judge Grant protested the
inequity of this statutory interpretation. It penalizes a worker
whose disability does not arise immediately after the initial injury.
The delay in the onset of the disability does not mean that the
disability is any less severe. The majority also recognized the
inequity but felt bound by the wording of the statute. The Texas
Supreme Court at first granted a writ on the Duke case, but then the
court withdrew the writ as improvidently granted. Therefore, this
grossly unfair provision in the worker's compensation law is left to
be corrected by legislative enactment.

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[**20]

The judgment of the trial court is affirmed.

Ben Z. Grant
Justice

February 9, 1993
Filed February 9, 1993

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