FIRE AND CASUALTY INSURANCE COMPANY OF CONNECTICUT, Now Known as Security Insurance Company of Hartford, Successor to Fire and Casualty Insurance Company of Connecticut, Appellant, v. Javier MIRANDA, Appellee.
No. 04-08-00311-CV.
Court of Appeals of Texas, San Antonio.
May 6, 2009.
CONCLUSION
The trial court‘s judgment is affirmed, and appellees’ request for sanctions is denied.
A. Robert Lamb, Jr., Law Office of A. Robert Lamb, Jr., Addison, TX, for Appellant.
Alan D. Tysinger, Miller & Tysinger, P.C., San Antonio, TX, for Appellee.
Sitting: KAREN ANGELINI, Justice, SANDEE BRYAN MARION, Justice, REBECCA SIMMONS, Justice.
OPINION
Opinion by SANDEE BRYAN MARION, Justice.
This is an appeal from the trial court‘s judgment affirming a decision by the Ap
BACKGROUND
On June 26, 2000, appellee, Javier Miranda, punctured the tip of his right index finger while working for Guadalupe Valley Hospital. He did not report the injury to his employer at this time, nor did he seek medical attention for the injury. On June 25, 2001, Miranda sustained a scratch on his right forearm, again while working for Guadalupe Valley Hospital. This time, Miranda reported the injury to his employer who documented the injury as a “superficial scratch” “4mm in length.” Miranda declined medical treatment, except to have the scratch washed and treated with antibiotic ointment. On July 2, 2001, Miranda‘s employer notified appellant, Fire and Casualty Insurance Company of Connecticut (“Fire & Casualty“), of the arm scratch. Fire & Casualty took no action, and the parties stipulated at trial that no benefits were required to be paid under the Workers’ Compensation Act at any time up to and including July 9, 2001.
On October 30, 2001, Miranda had a comprehensive health fair screening at the hospital, which was negative for Hepatitis C. In early 2002, he began to feel ill and had blood work drawn by his family doctor. On February 22, 2002, Miranda was diagnosed with Hepatitis C. On February
After conducting its own investigation, Fire & Casualty disputed that Miranda‘s Hepatitis C was a work-related injury or occupational disease. Fire & Casualty also contended the finger puncture and arm scratch were not compensable work-related injuries and his Hepatitis C was an ordinary disease of life. The dispute was filed with the TWCC on March 11, 2002, seven days after receiving Bertling‘s March 4 letter and three days after receipt of Bertling‘s March 8 First Report of Injury. The TWCC hearings officer determined Miranda did not sustain an injury in the form of Hepatitis C on June 25, 2001, but determined Fire & Casualty had waived its right to dispute compensability because it did not dispute compensability within seven days of receiving notice (on July 2, 2001) of the alleged June 25, 2001 injury.1 The TWCC Appeals Panel affirmed the hearings officer, and Fire & Casualty filed suit in district court. At trial, Fire & Casualty argued it could not have waived its right to contest compensability because Miranda‘s Hepatitis C was not diagnosed until February 22, 2002; therefore, it could not have known about the alleged occupational injury within seven days of receiving the July 2, 2001 notice of the right forearm scratch. The trial court agreed with the TWCC Appeals Panel, and this appeal by Fire & Casualty ensued.
Both the TWCC and the trial court relied on Continental Cas. Co. v. Downs, 81 S.W.3d 803 (Tex.2002), in which the Texas Supreme Court held that “under
WAIVER OF FIRE & CASUALTY‘S DISPUTE TO COMPENSABILITY OF MIRANDA‘S CLAIM FOR AN ALLEGED OCCUPATIONAL DISEASE
In this case, the issue presented to the hearings officer was whether Fire & Casualty waived its right to contest the compensability of the injury Miranda claimed occurred on June 25, 2001. There is no dispute that Fire & Casualty received notice of a June 25, 2001 injury on July 2, 2001. However, this notice identified the injury as “laceration/scratch” to the “lower arm/rt.” It is undisputed Fire & Casualty took no action following receipt of this notice. Therefore, we agree that Fire & Casualty waived its right to contest compensability of the “laceration/scratch” to Miranda‘s “lower arm/rt.” However, for the reasons set forth below, we do not agree that the waiver of Fire & Casualty‘s right to contest compensability of the laceration results in a similar waiver of its right to contest the compensability of Miranda‘s claim for an occupational disease he contends arose from the laceration.
The Texas Labor Code defines “injury” as “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm.”
Although the Labor Code includes an “occupational disease” within the scope of an “injury,” they are two distinct theories of recovery under the Labor Code. Chavis v. Director, State Worker‘s Comp. Div., 924 S.W.2d 439, 443 (Tex.App.-Beaumont 1996, no writ) (“In worker‘s compensation claims, two distinct and independent theories of recovery are recognized by the courts, accidental injuries and occupational diseases.“). A non-occupational or accidental injury, such as a scratch to an arm, is an injury traceable to a “definite time, place, and cause.” Olson v. Hartford Accident & Indem. Co., 477 S.W.2d 859, 859 (Tex.1972). On the other hand, an occupational disease “is of slow and gradual development, and the time, place and cause thereof are not susceptible of definite ascertainment.” Solomon v. Mass. Bonding & Ins., 347 S.W.2d 17, 19 (Tex.Civ.App.-San Antonio 1961, writ ref‘d); see also Cearley v. Royal Globe Ins. Co., 632 S.W.2d 942, 946 (Tex.App.-Fort Worth 1982, no writ). The Texas Labor Code also recognizes this distinction for the purpose of determining “date of injury.” The “date of injury” for a non-occupational or accidental injury is the date on which the injury actually occurred; while the “date of injury” “for an occupational disease is the date on which the employee knew or should have known that the disease may be related to the employment.”
Although the hearings officer determined June 25, 2001 as the date of the alleged injury, it is the date on which Fire & Casualty was first notified that Miranda claimed compensation for an injury in the form of an occupational disease that triggered Fire & Casualty‘s obligation to contest compensability for that injury. There is no dispute that Fire & Casualty received its first notice of Miranda‘s claim for an injury in the form of Hepatitis C on March 4, 2002. It is uncontested that Fire & Casualty filed its dispute to the compensability of Miranda‘s alleged occupational disease (Hepatitis C) with the TWCC on March 11, 2002, seven days after receiving Bertling‘s March 4 letter and three days after receipt of Bertling‘s March 8 First Report of Injury. Therefore, Fire & Casualty did not waive its right to contest Miranda‘s claim for an occupational disease.
DISMISSAL OF MIRANDA‘S CLAIM
In a cross-issue on appeal, Miranda asserts the trial court erred in dismissing his request for judicial review of whether he acquired Hepatitis C in the course and scope of his employment.
“A party may seek judicial review by filing suit not later than the 40th day after the date on which the decision of the appeals panel was filed with the division.”
On appeal, Miranda asserts he timely sought judicial review of the adverse appeals panel decision by filing the equivalent of a counter-claim. According to Miranda,
The forty-day filing deadline requirement of
CONCLUSION
We reverse the trial court‘s judgment and render judgment that Miranda take nothing on his claim for workers’ compensation benefits or on his claim for attorney‘s fees.