Court of Appeals of Texas, Dallas.
Curtis JOHNSON, Appellant,
v.
CITY OF MESQUITE, Self-Insured, Appellee.
No. 05-96-01945-CV.
|
Feb. 12, 1999.
Before LAGARDE, KINKEADE and WRIGHT, JJ.
OPINION
KINKEADE.
*1 In this worker’s compensation case, Curtis Johnson appeals the trial court’s summary judgment in favor of The City of Mesquite, a self-insured entity (the City). In his first two points of error, Johnson complains the trial court erred in granting the City summary judgment based on late notice and late filing because the summary judgment evidence established a fact question as to whether or not Johnson had good cause for his late notice and filing. In his third and final point of error, Johnson contends the trial court erred in granting the summary judgment based on multiple mental traumas because the summary judgment evidence established he could trace his injury to a specific event. Because we conclude the summary judgment evidence showed late filing and a lack of good cause for the late filing as a matter of law, we affirm the trial court’s judgment.
FACTUAL BACKGROUND
Johnson was a firefighter with the City of Mesquite fire department. In January of 1989, Johnson assisted in an ambulance run where he witnessed a young mother trying to resuscitate her infant daughter. Despite the efforts of the mother, the paramedics, and the firemen, the infant died of Sudden Infant Death Syndrome (SIDS). In early 1994, Johnson began experiencing difficulties with “flashbacks” of the death of the baby; he also experienced difficulties in his work and marriage. He sought counseling. On May 6, 1994, Johnson’s psychologist diagnosed his condition as post traumatic stress disorder (PTSD). On the same day, Johnson notified his employer of his PTSD, claiming that it was related to “several fire department runs involving death.”
In October of 1994, Johnson filed three worker’s compensation claims for mental stress injury based on three different events, including the SIDS death. Another psychologist, Dr. Lanning, diagnosed Johnson’s PTSD as arising solely from the SIDS incident, so Johnson dropped his other two claims. Only the claim associated with the SIDS death ended up in district court, where the City moved for summary judgment on the basis of late filing and notice, and that the injury did not result from a specific event but from multiple stressful events. The trial court granted summary judgment in favor of the City. Johnson appealed.
STANDARD OF REVIEW
The standards for reviewing summary judgments are well established. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant who moves for summary judgment must show that the plaintiff has no cause of action by either disproving at least one essential element of each theory of recovery, or conclusively proving all elements of an affirmative defense. Mitchell v. City of Dallas, 855 S.W.2d 741, 748 (Tex.App.-Dallas 1993), aff’d, 870 S.W.2d 21 (Tex.1994). If the movant establishes his right to judgment as a matter of law, the burden shifts to the nonmovant to raise fact issues precluding summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979).
GOOD CAUSE
*2 In its first and second points of error, Johnson argues the trial court erred in granting summary judgment on the basis of late notice and filing because the City did not attempt to negate good cause. Johnson points out that the City’s motion for summary judgment did not address good cause, which had been raised in Johnson’s pleadings. According to Johnson, the City’s failure to negate or even address good cause leaves a fact question with respect to good cause and therefore summary judgment was not proper. The City responds that the record shows the absence of good cause, as a matter of law, and therefore summary judgment was proper on the late notice and filing basis. Even assuming without deciding that the summary judgment evidence raises a fact issue with respect to good cause for Johnson’s late notice, we conclude the summary judgment evidence shows, as a matter of law, a lack of good cause for Johnson’s late filing.
The parties agree that the “old” workers compensation law applies to this case. The relevant statute in effect at the time the dispute arose was section 4a of former article 8307 of the Texas Workers Compensation Act. See Texas Workers Compensation Act, 68th Leg., R.S., ch. 498, § 1, 1983 Tex.Gen.Laws 2921, repealed by Acts 1989, 71st Leg., 2d C.S., Ch. 1, § 16.01(10) to (12). The parties do not dispute that Johnson filed both his notice and his claim over five years after the date of his injury, clearly outside the statutory time period. See Texas Workers Compensation Act, 68th Leg., R.S., ch. 498, § 1, 1983 Tex.Gen.Laws 2921 (repealed 1989) (“… 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 … 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 …”). Thus, his right to compensation benefits is barred unless he had good cause for the delay. Texas Workers Compensation Act, 68th Leg., R.S., ch. 498, § 1, 1983 Tex.Gen.Laws 2921-22 (repealed 1989) (strict compliance with the notice and filing limitations may be waived upon a showing of good cause). Because good cause was pleaded, we look to see if the summary judgment evidence raises a fact question on good cause. If not, we must affirm the trial court’s judgment.
A good cause analysis turns on the degree of diligence a plaintiff uses to get his claim filed. Texas Cas. Ins. Co. v. Beasley, 391 S.W.2d 33, 35 (Tex.1965), cert. denied, 382 U.S. 994, 86 S.Ct. 576, 15 L.Ed.2d 480 (1966). A claimant must prosecute his claim with that degree of diligence a reasonably prudent person would have exercised under the same or similar circumstances. Id. A plaintiff owes a duty of continuing diligence in giving notice and filing his claim; good cause must exist beyond the date of notice and up to the date of the filing. Id. at 34; see also Lee v. Houston Fire & Casualty Ins. Co., 530 S.W.2d 294, 295 (Tex.1975) (when a claim has not been presented within the required statutory period, good cause must continue to the date when the claim is actually filed). Ordinarily, the question of how diligent a person was is a question of fact. Beasley, 391 S.W.2d at 34. However, the evidence in a particular case may allow for only one reasonable conclusion: that the plaintiff acted with a lack of diligence. Id. In such a case, the question is decided as a matter of law. See id; see also Aetna Cas. & Surety Co. v. Hughes, 497 S.W.2d 282, 283 (Tex.1973) (court may find, as a matter of law, that claimant did not have good cause for late notice and filing).
*3 In this case, Johnson claims the evidence shows he prosecuted his claim with diligence because he did not find out until May 6, 1994 that his injury was attributable to his employment and possibly caused by the SIDS event, and it was not until July or August 1994 that he was informed his PTSD was solely attributable to the SIDS event. He claims that because he filed his claim on October 14, 1994, a fact issue exists as to good cause for the delay. To support his position, Johnson cites cases holding that mistake as to the cause of injury and lack of knowledge that an employee’s condition is related to an on-the-job event may constitute good cause. See Baca v. Transport Ins.. Co., 538 S.W.2d 814, 815 (Tex.Civ.App.-El Paso 1976, writ ref’d n.r.e.); Texas General Indemnity Co. v. Bomer, 588 S.W.2d 645, 646 (Tex.Civ.App.-Houston [14th Dist.] 1979, no writ). These cases support Johnson’s position that good cause existed up to May 6, 1994, the date he notified his employer. However, even assuming good cause existed up to May 6, 1994, we still must determine if good cause continued until the claim was filed on October 14, 1994. See Beasley, 391 S.W.2d at 34 (good cause must exist beyond the date of notice and up to the date of the filing). Johnson’s cases do not support his argument that good cause existed for his additional five-month delay in filing the claim. The evidence shows that in early 1994, Johnson began experiencing “flashbacks” of the death of the baby. On May 6, 1994, during a counseling session, Johnson’s therapist diagnosed him with PTSD and told him it was related to his work. Johnson knew his injury was work-related, and, although he did not know for certain which of the traumatic events specifically caused the injury, he knew that he needed to file a claim, evidenced by the fact that he notified his employer of his claims.
Viewing Johnson’s evidence in the light most favorable to him, that is, that he did not know his claim was related to work until May of 1994, he still waited approximately five months from that date to file his claim. In Beasley, the supreme court determined that an unexplained two and a half month wait to file a claim was too long, as a matter of law. See Beasley, 391 S.W.2d at 36 (two and a half months after plaintiff realized he was not going to get well from back injury and would have to file a claim was too long, as a matter of law, for plaintiff to wait to file his claim). Following Beasley, we must conclude that, as a matter of law, five months is too long for a reasonably prudent person to wait to file a claim.
Because we conclude the summary judgment record establishes, as a matter of law, that Johnson did not have good cause for late filing of his claim, we conclude the trial court did not err in granting summary judgment in favor of the City. We overrule Johnson’s first and second points of error. Because we conclude summary judgment was proper on the basis of late filing, we need not address Johnson’s third point of error. We affirm the trial court’s judgment.