Court of Appeals of Texas, Dallas.

Dewey GRANT, Appellant

v.

FIRST EMPLOYEES INSURANCE COMPANY, Appellee

No. 05-96-00695-CV.

|

Dec. 29, 1997.

Before Chief Justice THOMAS, Justices KINKEADE and MORRIS.

OPINION

KINKEADE, Justice.

*1 Dewey Grant appeals from a summary judgment granted in favor of First Employees Insurance Company (“First Employees”) relieving First Employees of liability for Grant’s alleged occupational disease. In one point of error, Grant complains the trial court erred in granting summary judgment because (1) a fact issue exists as to whether or not he timely notified his employer of the occupational disease, or (2) if he failed to timely notify his employer of his occupational disease, a fact issue exists as to whether he had good cause for the failure to notify. Because we conclude the summary judgment evidence establishes Grant did not timely notify his employer of his occupational disease and he failed to plead or raise a fact issue on good cause, we affirm the trial court’s summary judgment.

Factual Background

Dewey Grant worked for twenty-four years as a forklift driver for Gifford-Hill, a company that manufactures cement pipes. In 1992, Grant began to experience respiratory problems. Sometime in late 1992, Grant suspected his respiratory problems may be related to his workplace environment. He noticed that when he was away from work for extended periods of time his symptoms improved. In January of 1993, Grant visited Dr. Austin, a pulmonary doctor. Grant told the doctor that there was a relationship between his symptoms worsening and his work, and that something at work may have been causing his lung problems. Dr. Austin requested material safety data sheets from Gifford-Hill about the chemicals used, two of which listed possible respiratory side effects. On March 1, 1993, Dr. Austin sent a letter to Gifford-Hill’s plant manager stating that Grant’s lung condition was being aggravated by his exposure to chemicals and fumes at the plant.

Grant then filed a workers’ compensation claim. After a contested case hearing, the appeals panel of the workers’ compensation commission rendered a decision in favor of Grant. First Employees, Gifford-Hill’s workers’ compensation carrier, appealed the decision of the appeals panel by filing suit in district court. First Employees filed a motion for summary judgment on the ground that Grant had not notified his employer within thirty days after the date on which he knew or should have known his injury might be related to his employment, as required by statute. The trial court granted summary judgment in favor of First Employees. Grant appealed the summary judgment.

Standard of Review and Applicable Law

In reviewing a trial court’s summary judgment, we apply well-known standards. See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). If the movant shows no genuine issues of material fact exist, he is entitled to summary judgment as a matter of law. Id. at 548.

To recover workers’ compensation benefits for an occupational disease, an employee must notify his employer of the injury no later than the thirtieth day after the date on which the employee knew or should have known that the injury may be related to the employment. Tex. Lab.Code Ann. § 408.007 and § 409.001 (Vernon 1996). If the employee fails to timely notify the employer without good cause for such failure, the employer and the insurance company are relieved of liability. Tex. Lab.Code Ann. § 409.002 (Vernon 1996).

Timely Notice

*2 The facts in this case are undisputed. As Grant admits in his brief, it is “uncontroverted that he experienced some symptomology of an occupational disease well before thirty days prior to the date he gave notice of injury.” He testified he experienced symptoms during 1992 that improved when he was away from work. He visited Dr. Austin in January of 1993 and told Dr. Austin his problems could be related to his work environment. Grant argues that these facts show he merely suspected his injuries were work-related, and that not until March 1, 1993, when Dr. Austin diagnosed his problem as related to the chemicals and fumes he was breathing at work, did he know with a reasonable medical probability that his injuries were related to his work environment. Grant argues that the statute requires knowledge within a reasonable medical probability; mere suspicion is not enough.

Grant cites Hernandez v. Texas Employers’ Insurance Assoc., 783 S.W.2d 250 (Tex.App.-Corpus Christi 1989, no writ); Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex.1980); and Houston General Insurance Co. v. Pegues, 514 S.W.2d 492 (Tex.Civ.App.-Texarkana 1974, writ ref’d n.r.e.) for the proposition that the thirty-day limitation does not run until an injured worker has knowledge of the nature and cause of his injury within a reasonable medical probability. However, Grant’s reliance on these cases is misplaced. In Hernandez, Schaefer, and Pegues, the courts discussed the type of evidence an employee must offer at trial to prevail on a workers’ compensation claim. See Hernandez, 783 S.W.2d at 252-53; Schaefer, 612 S.W.2d at 202; Pegues, 514 S.W.2d at 494-95. Contrary to Grant’s assertions, these cases do not discuss the type of evidence necessary for an employee to establish when he had notice of his claim. Therefore, we conclude these cases are inapplicable.

The statute requires notice thirty days after the employee knew or should have known that the injury may be related to his employment. Tex. Lab.Code Ann. § 408.007 (Vernon 1996) (emphasis added). Although no cases construe the most recent version of this statute, cases construing the prior version (stating that the thirty-day limitations began at the “first distinct manifestation of an occupational disease”) are instructive. Under the prior version, courts determined that the first distinct manifestation occurred when the claimant, as a reasonable person, recognized the nature, seriousness and work-related nature of the disease. See, e.g., Commercial Ins. Co. of Newark v. Smith, 596 S.W.2d 661, 665 (Tex.Civ.App.-Fort Worth 1980, writ ref’d n.r.e.); see also Moseley v. Employers Cas. Co., 873 S.W.2d 715 (Tex.App.-Dallas 1993, writ denied) (first distinct manifestation occurs the first time the claimant knew, or should have known, that he had an occupational disease). Courts have not required a diagnosis from a doctor or a “reasonable medical probability” for the limitations to begin. See, e.g., Moseley, 873 S.W.2d at 717-18 (even though physician testified that a reasonably prudent person may not recognize a toxic disease until it had been diagnosed by a physician, this court, in affirming directed verdict, determined that the evidence conclusively established claimant knew before his doctor’s visit that his symptoms were a result of exposure to chemicals at his work place.) Further, the language of the most recent statute itself, that limitations begins to run when the claimant knew or should have known that the disease may be work-related, contradicts Grant’s argument that a reasonable medical probability is required. See Tex. Lab.Code Ann. § 408.007 (Vernon 1996) (emphasis added).

*3 According to the summary judgment evidence, Grant visited Dr. Austin in January of 1993, when Dr. Austin diagnosed Grant with a respiratory illness. Grant, who had already discovered a correlation between his symptoms and the time he spent at work, discussed with Dr. Austin the possibility that his medical problems may be caused by the chemicals to which he was exposed at work. We conclude the summary judgment evidence establishes that in January of 1993, Grant knew or should have known his injuries may be related to his work. See Moseley, 873 S.W.2d at 717-18 (plaintiff knew or should have known his injuries were work related when, before he was diagnosed, he filled out a questionnaire at his doctor’s office listing his symptoms and noting that the symptoms were the result of chemicals to which he was exposed at work). Because he did not notify his employer until more than thirty days after he knew his injuries may be work related, First Employees is relieved from liability for his injuries. See Tex. Lab.Code Ann. § 409.002 (Vernon 1996).

Good Cause

Grant argues that even if we determine he did not timely notify Gifford-Hill of his occupational disease, a fact issue exists as to whether he had good cause for failing to timely notify. We disagree.

Because the good cause exception is an issue that would avoid First Employees’ entitlement to summary judgment, it must be expressly presented by written answer to the motion or by other written response to the motion and not by mere reference to the summary judgment evidence. See McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex.1993). The record reflects that Grant did not plead good cause, nor did he expressly raise the good cause issue in his response to the motion for summary judgment or any other motion. He cannot now assert it for the first time on appeal. See id.

Even if Grant had properly raised the good cause issue, we conclude the summary judgment evidence does not raise a fact issue as to good cause for his failure to timely notify. He contends his good cause was that he did not understand the nature or seriousness of his condition until March 1, 1993. The undisputed evidence shows that in 1992, Grant knew he had a respiratory illness that was affected by conditions at work, and that he told his doctor in January of 1993 his lung illness may be caused by the chemicals at the plant where he worked. Having already determined the evidence establishes that Grant knew or should have known his injury may be related to his employment, we decline to find that the same evidence could constitute good cause for his failure to notify his employer.

We overrule Grant’s sole point of error. We affirm the trial court’s judgment.