Court of Appeals of Texas, Houston (1st Dist.).

HARRIS County, Texas, Appellant,

v.

Mark A. PETRASH, Appellee.

No. 01-96-01003-CV.

|

May 7, 1998.

Panel consists of Justices MIRABAL, O’CONNOR, and NUCHIA.

OPINION

MIRABAL, Justice.

*1 Appellant, Harris County, Texas, appeals a judgment on a jury verdict awarding workers’ compensation benefits to appellee, Mark A. Petrash, a deputy constable employed by Harris County, Texas. We affirm.

This is an “old law” workers’ compensation case because the injury in question occurred on April 4, 1989. Petrash was awarded compensation benefits by the Industrial Accident Board of Texas. Harris County appealed the award de novo to the County Civil Court at Law No. 1 of Harris County. The County disputed Petrash’s claim on three issues:

1. Whether the injury occurred in the course and scope of employment;

2. Whether Petrash gave the county the required 30-days notice of his job-related injury; and,

3. Whether Petrash made an informed election in choosing to receive Harris County group medical benefits, and was therefore precluded from receiving workers’ compensation benefits.

The jury answered all issues in Petrash’s favor. The County then filed a motion for judgment notwithstanding the verdict (JNOV) challenging the jury’s answers on legal sufficiency grounds. The trial court denied the motion and rendered judgment for Petrash. The County then filed a motion for new trial, which was also denied.

In three points of error, the County asserts the evidence is legally and factually insufficient to support the jury’s answers to the three questions.

In assessing the legal sufficiency of the evidence to support a jury finding, we consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex.1997). If there is any evidence of probative force to support the finding, we must overrule the point of error and uphold the finding. ACS Investors, 943 S.W.2d at 430. In a factual sufficiency challenge, we consider and weigh all of the evidence. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986). We set aside a jury finding only if the evidence is so weak or the finding so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986). We may not substitute our opinion for that of the trier of fact. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex.1988).

The evidence shows that Petrash was employed as a deputy by the Constable of Precinct 5 of Harris County, Texas. Petrash was a certified firearms instructor. At lunch one day, Sgt. Lasagna, the designated firearms compliance officer for the Constable’s office and Petrash’s superior, asked Petrash to assist him at the annual firearms qualifications testing.¹ Specifically, Lasagna asked that Petrash “volunteer” to assist with the testing because, “I’m going to need some help. Can you help me out?” Lasagna originally conducted the testing by himself, but the program had grown and he needed help. When Lasagna had volunteers, he asked them to submit a form for compensation time, because the voluntary hours were in addition to the officers’ regular work week.

*2 In preparation for the required testing, the Constable posted formal notice to his officers, listing the amount of ammunition and the types of weapons necessary for certification. The notice expressly stated that each officer must bring his own ammunition or make advance arrangements to purchase it at the firing range.² The testing was held at a public range, reserved for the precinct and closed to the public on the actual day of testing. If a peace officer did not qualify and become recertified, his license was suspended.

On the morning of April 4, 1989, while he was at home preparing to go to the firing range for the testing, Petrash picked up a heavy can of ammunition. At the time, Petrash was off-duty, not in uniform, not getting paid, and not engaged in any law enforcement activities such as issuing traffic tickets or apprehending criminal suspects. Petrash felt a minor pain in his lower back as he picked up the can, but he still reported to the firing range. He worked at the range about seven hours, assisting other officers, repeatedly lifting an ammunition bucket, and enforcing safety rules for the protection of those present. While at the firing range, the pain increased.

Petrash planned on testing himself that day, but did not have time because he was assisting other officers in supervising the testing.

After four hours of patrol duty later that same day, during which Petrash got in and out of his patrol car, his back pain significantly increased. Petrash contacted his supervisor, Sgt. Hutson, and told him about the pain. Petrash provided Hutson with background information about his work at the firing range and informed Hutson that his pain was unbearable. Petrash requested permission to leave work to seek immediate medical attention. Petrash believed his statement to Hutson informed the sergeant that the injury was work related. Hutson authorized Petrash to leave work and told him to seek medical assistance. Hutson then informed his supervisor of Petrash’s condition. Petrash never informed Hutson that he intended to make a workers’ compensation claim and even though Hutson believed the injury was work related, he never completed a workers’ compensation E-1 accident report form.

Petrash sought immediate medical attention that night at the emergency room. Dr. Arthur Jansa, an orthopedic surgeon, made a diagnosis of back strain and/or lumbar disc disease, and initially prescribed conservative treatment of bed rest and back track program. Dr. Jansa testified that Petrash irritated nerves in his lower back and sustained inflammation as he got in and out of his patrol car working his shift after working at the firing range.

At the hospital, while in pain, Petrash signed a group medical claim form and checked a box on the form indicating this was not a work-related injury. He later signed a similar group claim form at his doctor’s office. Petrash testified he was not aware that signing such forms might have an effect on a his right to seek workers’ compensation benefits. Dr. Jansa billed the group medical insurance plan for Petrash’s medical care.

*3 Dr. Jansa informed the County that Petrash was incapacitated due to his injuries. The Constable’s chief clerk carried Petrash on the attendance records as being on sick leave, which would not have been done if he had been absent on workers’ compensation leave. There was nothing on the doctor’s disability slips to indicate that Petrash was making a workers’ compensation claim.

A few days after the injury, the Constable’s chief clerk discussed the matter with Hutson, Petrash’s supervisor. Hutson had a duty to report all job-related injuries. Hutson informed the chief clerk that Petrash had injured his back. They did not specifically discuss whether the injury was job related. The chief clerk testified that Sgt. Hutson was the proper person for Petrash to notify of his injury. The County did not have a separate form which the injured employee needed to fill out; notification to the superior officer was the only requirement.

In a telephone conversation with the Constable’s chief clerk on April 27, 1989, Petrash informed her of his lower back injury and inquired about his workers’ compensation benefits. Petrash did not specifically state that he wanted to file a workers’ compensation claim. The clerk contacted the risk manager and informed him of Petrash’s inquiry into filing a workers’ compensation claim. Risk management instructed the clerk to document the conversation with Petrash for his file. The risk manager specifically told the chief clerk not to fill-out an E-1 accident report form.

On May 11, 1989, after ordering magnetic resonance imaging testing on Petrash, Dr. Jansa surgically removed damaged disc material from Petrash’s back. Dr. Jansa opined Petrash sustained nerve irritations as a result of his duty on patrol. The group plan paid for the back surgery and most of Petrash’s medical bills in this case.

On May 17, 1989, the chief clerk claimed to have first received notice of Petrash’s workers’ compensation claim by means of a telephone call from Allison Evans, with Texas Employers’ Insurance Association (TEIA). Evans relayed that Petrash’s attorney had contacted her inquiring about the status of his client’s claim. At that time, the chief clerk filled out the E-1 report. The E-I states that “you or your foreman first knew of the injury April 4, 1989,” but the County claims the date of filing, May 17, 1989, was the moment in which the County first discovered Petrash was claiming the injury was job-related.

Petrash’s signature appears on an “Attorney-Client Employment Agreement,” and a “Notice of Injury-Claim For Compensation” form dated May 5, 1989. Petrash testified that an employee from the attorney’s firm brought several forms for him to sign to his house. He does not recall if the forms were filled in before or after he signed them. Petrash may have written a letter to the general insurance plan as late as August 7, 1989, requesting repayment for his out-of-pocket costs for a second surgical opinion.

*4 In point of error one, the County asserts the trial court erred in overruling its motions for JNOV and new trial because no evidence, and in the alternative, insufficient evidence supports the jury’s answer to jury question number 1, regarding course and scope:

Did MARK A. PETRASH receive an injury on or about April 4, 1989, in the course of his employment with Harris County, Texas.

“Injury in the course of employment” means any injury having to do with and originating in the work, business, trade or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer, whether on the employer’s premises or elsewhere.

Answer “Yes” or “No”.

ANSWER: yes.

The jury charge also defined injury as follows:

“INJURY” means damage or harm to the physical structure of the body and such diseases or infections as naturally result from such damage or harm.

“INJURY” also includes any incitement, precipitation, acceleration, or aggravation of any disease, infirmity, or condition, previously or subsequently existing, by reason of such damage or harm.

Generally, pain and suffering alone are not considered to be an “injury” under the Workers’ Compensation Act, without a physical injury to the body.

Course and scope of employment is not limited to the exact moment when the employee reports for work, to the moment when the employee’s labors are completed, or to the place where work is done. Deatherage v. International Ins. Co., 615 S.W.2d 181, 183 (Tex.1981); ESIS, Inc. v. Johnson, 908 S.W.2d 554, 557 (Tex.App.-Fort Worth 1995, no writ). If the injury is the result of an activity that originates from employment and is received while the employee is actually engaged in furthering the employer’s business, the injury is deemed to have been sustained within the course and scope of employment. Id. An injury originates from employment when it results from a risk or hazard that is reasonably inherent or incident to the work or business. Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 73 (Tex.1922); ESIS, Inc., 908 S.W.2d at 557. It is well settled that the Workers’ Compensation Act is to be liberally construed in favor of the worker. Lujan v. Houston Gen. Ins. Co., 756 S.W.2d 295, 297 (Tex.1988).

The evidence showed that the firearms qualification test was both a state and Texas Commission on Law Enforcement requirement (TCLEOSE), and passing was an annual requirement in order to retain certification as a law enforcement officer. Petrash was required to bring his own ammunition to the qualifications test. If he had not qualified, the County would replace Petrash.³ Independent of attending the qualifications test for his own testing, Petrash was asked by a superior officer to volunteer and assist with the testing.⁴ He did so for seven hours. Sgt. Lasagna suggested his “volunteers” file compensation time with the County for this “volunteer” work.

*5 Hutson testified that Petrash’s conduct in lifting the ammunition can, at home or at the firing range, constituted law enforcement activity and was work related, because Petrash was required to be certified, required to take bullets to the range, and asked by his superior to assist with the testing. Lasagna opined that Petrash was involved in a law enforcement activity when he injured his back going to the firing range to qualify. He also stated that carrying ammunition in the morning was part of the going-to-work process.

Chief Constable Camus was of the opinion Petrash was not furthering the business of the County while at home or at the firing range, because his activities had nothing to do with the purpose for which he was hired. Camus claimed that the decision to attend the firearms qualification was Petrash’s choice. Camus suggested that there may not have been compensation time given for working at the firing range during the period Petrash was injured.

The jury is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given to the testimony. K-mart Corp. v. Pearson ex rel. Ramos, 818 S.W.2d 410, 413 (Tex.App.-Houston [1st Dist.] 1991, no writ). The jury can choose to believe or to disbelieve the witnesses or any portion of their testimony. Id.

The “to and from work” rule and “special mission” cases discussed by the County do not apply in this case. The “to and from work” rule is limited to “injuries occurring during the course of such transportation.” Tex.Rev.Civ. Stat. Ann. art. 8309, § 1b (Vernon 1967). Likewise, the “special mission” cases, which are an exception to the article 8309, § 1b rule, exist when an employee is injured during travel, when he is directed from one work site to another. Freeman v. Texas Compensation Ins. Co., 603 S.W.2d 186, 192 (Tex.1980); Harris County v. McCoy, 804 S.W.2d 523, 524 (Tex.App.-Houston [1st Dist.] 1990, writ dism’d w.o.j.). Petrash’s initial injury occurred at his home. The additional injuries, if any, occurred while at the firing range and during Petrash’s scheduled hours on patrol.

Proof should establish that an injury is causally connected with employment activities, conditions, or environments. INA v. Howeth, 755 S.W.2d 534, 536 (Tex.App.-Houston [1st Dist.] 1988, no writ). The fact that a claimant has a pre-existing injury which enhances or aggravates the injury complained of, does not of itself defeat a right of recovery. Texas Employers’ Ins. Ass’n v. Page, 553 S.W.2d 98, 100 (Tex.1977).

Dr. Jansa testified that Petrash suffered a back injury when he first picked up the can of ammunition at his house. Petrash then repeatedly injured and aggravated his back during the course of the day as he continued to perform activities within the scope of his employment with the County-first at the firing range and then on patrol. Dr. Jansa specifically noted that while on patrol, Petrash aggravated nerves in his back and sustained inflammation. The County argues that mere pain is not enough to sustain a workers’ compensations claim, but Petrash is not claiming mere back pain. Petrash claims he repeatedly injured two discs and had surgery in an attempt to correct the problem and lessen future pain.

*6 We conclude the evidence is legally and factually sufficient to support the jury’s finding that Petrash was injured in the course and scope of his employment with the County. Accordingly, we overrule the County’s first point of error.

In its second point of error, the County asserts the trial court erred in overruling the defendants’ motions for JNOV and new trial because no evidence, and in the alternative, insufficient evidence supports the jury’s answer to jury question number 6, regarding the required 30-day notice:

Did Harris County, Texas have notice within 30 days after its occurrence on April 4, 1989 that Mark A. Petrash had suffered a work related injury?

Notice to or actual knowledge on the part of a foreman or other supervisor, or an agent designated by the employer to receive the notice, is “notice” to the employer.

Answer “Yes” or “No”.

ANSWER: yes.

Petrash maintains that he gave proper notice of his injury, and of the fact that it was work related, to the County. Revised Civil Statutes article 8307, section 4a requires an injured employee to give his employer, association, or subscriber notice of an injury within 30-days after its occurrence or after the first distinct manifestation of an occupational disease. Tex.Rev.Civ. Stat. Ann.. art. 8307 § 4a (Vernon 1967). DeAnda v. Home Ins. Co., 618 S.W.2d 529, 532 (Tex.1980); Universal Underwriters Ins. Co. v. Pierce, 795 S.W.2d 771, 772 (Tex.App.-Houston [1st Dist.] 1990, no writ). It is well established that no particular form or manner of notice is required; accordingly, when the employer or one of its foremen has actual knowledge of the job-related injury suffered by a claimant, the notice requirement is satisfied. DeAnda, 618 S.W.2d at 532; Universal Underwriters, 795 S.W.2d at 772. To constitute “actual knowledge,” the employer need not be aware of the exact time, place, and extent of the injury. The employer need only know the general nature of the injury and the fact that it is job related. DeAnda, 618 S.W.2d at 533; Universal Underwriters, 795 S.W.2d at 772. The purpose of the statute is to give the insurer an opportunity to investigate immediately the general facts surrounding an injury; the details of the occurrence can wait until the claim is filed. DeAnda, 618 S.W.2d at 533.

As Petrash’s supervisor, Hutson was the proper person to whom Petrash was required to report his work-related injury. Hutson testified that after speaking with Petrash on the night of his injury, he concluded the injuries were work related. Hutson thought Petrash hurt his back at the firing range, but several days later discovered Petrash initially hurt his back at home. Either way, Hutson testified Petrash’s injury was work related. Hutson could have, but did not, fill out an E-1 accident form.

*7 The Constable’s chief clerk’s responsibilities specifically included handling workers’ compensation matters and preparing E-1 forms, which is the employer’s first report of injury to the Industrial Accident Board. The chief clerk knew within a few days of April 4, 1997, that Petrash had injured his back, having spoken to his superior officer, Hutson. She claims, however, that she did not know Petrash was claiming the injury was work related until May 17, 1989, after receiving a call from a TEIA claims adjuster. In their several conversations, the chief clerk maintains she and Petrash never discussed workers’ compensation; however, she admitted the subject was mentioned once during their April 27 telephone conversation, when Petrash “was wondering about workers’ compensation.”

Petrash maintains the County knew he had suffered a job-related injury. On the night of the injury, Petrash described the occurrence to his superior, Hutson. Petrash also discussed the injury and surrounding circumstances with the chief clerk. Petrash testified he specifically asked the chief clerk about workers’ compensation on several occasions. The chief clerk responded that she was not sure whether workers’ compensation applied to his injury but she would check. During their last discussion, the chief clerk simply said, “Look, this is not workers’ compensation, so quit asking about it.” The chief clerk admitted that if Petrash’s supervisor knew of the injury within 30 days of the injury and concluded that it was work related, Petrash’s notice to the County within 30 days of injury was satisfied.

This case is distinguishable from the facts in the cases cited by the County. In both Texas Employers’ Insurance Ass’n v. Mathes, 771 S.W.2d 225 (Tex.App.-El Paso 1989, writ denied), and Universal Underwriters, the employers did not know the employees’ injuries were work related. The employers only knew that there had been an injury or medical problems. Here, evidence exists that the County knew the injury was work related and/or knew Petrash believed the injury was work related, within 30 days of the injury.

We conclude the evidence is legally and factually sufficient to support the jury’s finding that Petrash timely notified the County that he had suffered a work-related injury. Accordingly, we overrule the County’s second point of error.

In its third point of error, the County asserts the trial court erred in overruling the defendants’ motions for JNOV and new trial because no evidence, and in the alternative, insufficient evidence supports the jury’s answer to jury question number 8, regarding election of remedies:

Did you find that MARK A. PETRASH, in choosing to apply and receive group medical benefits from American General Insurance Company, made an informed election in his choice of remedies?

You are instructed that one’s choice between inconsistent remedies, rights or states of facts does not amount to an election unless the choice is made with a full and clear understanding of the problem, facts and remedies essential to the exercise of an intelligent choice.

*8 Answer “Yes” or “No”.

ANSWER: No.

Petrash testified he did not have an informed understanding of the relationship between group health benefits and the right to pursue a workers’ compensation claim when he signed claim forms. When he signed the forms in the emergency room, Petrash was in pain and simply trying to get medical help.

The County argues Petrash must have understood the difference between workers’ compensation and group policies because Petrash made a workers’ compensation claim in 1986, while working for a security service. Petrash testified that in that case, after hearing how the injury happened, the doctor’s office told Petrash it would be filed as workers’ compensation. His employer then handled the rest of the claim. Petrash was not involved in the decision or process, except for being the injured person.

The County also argues Petrash’s choice was informed because county employees are informed by the group insurance provider’s handbook that it does not cover workers’ compensation injuries. The workers’ compensation benefits are also explained to all employees in the Harris County personnel book. Yet, the chief clerk testified employees do not receive any information from the County explaining overlap between the policies, even after the County knows the employee is injured.

We conclude the evidence is legally and factually sufficient to support the jury’s finding that Petrash did not make an informed election of remedies. Accordingly, we overrule the County’s third point of error.

We affirm the judgment.

	Footnotes
1		At the time of the injury, Government Code section 415.035(a) required a Texas law enforcement agency employing more than two peace officers to designate a firearms proficiency officer and require each peace officer to annually demonstrate firearms proficiency to the designated officer. The certification requirement was both a state and local requirement. Act of Apr. 30, 1987, 70th Leg., R.S., ch. 147, § 1, sec. 415.035(a),1987 Tex. Gen. Laws 316, 389.
2		The Constable also required his officers to furnish their own ammunition as part of their normal duties.
3		Petrash was not able to qualify because of time constraints. Had he not been injured, however, he would have been able to test on a makeup date, because his failure was due to helping at the range.
4		Petrash may have been requested by Lasagna to bring extra ammunition to the range in case the other officers ran out. This point is unclear in the record.