Court of Appeals of Texas, Dallas.

Alvin SASH, Appellant,

v.

City of MESQUITE, Appellee.

No. 05-93-01559-CV.

|

May 20, 1994

Before BAKER, MALONEY and OVARD

OVARD, Justice.

O P I N I O N

*1 This is a worker’s compensation case. Alvin Sash (Sash) appeals a summary judgment in favor of the City of Mesquite (the City). He contends the trial court erred in granting summary judgment because the City failed to establish as a matter of law (1) each element of its affirmative defense of election of remedies and (2) that Sash did not suffer a compensable injury. We reverse and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

Sash worked for the City. His duties included driving a dump truck. On March 28, 1989, while driving a dump truck in the course of his employment with the City, Sash hit a “chug” hole. The impact forced Sash’s chest against the steering wheel. His chest began to swell immediately. The area of the injury felt bruised and tender to the touch. Within a day or two of the accident, Sash asked his supervisor, Robert Byrd, to fill out an accident report. Byrd told Sash that if the injury did not improve in a few days, to come back and he would fill out a report. The injury became more painful and Sash again asked Byrd to fill out an accident report. Byrd told Sash that he had not done so, but that he would get around to it.

At the end of May, Sash entered the hospital to undergo surgery on his chest. A day or two before the surgery, a superintendent for the City, Roger Cox, visited Sash in the hospital and told him his surgery would not be covered by worker’s compensation insurance. Cox told Sash that Sash would have to pay for the surgery through his personal health insurance. Two more surgical procedures would be done to Sash’s chest in follow-up of the first procedure. Prior to the incident of March 28, Sash had not had any medical problems with his chest.

On July 3, 1989, Sash filed a claim with the Texas Industrial Accident Board seeking benefits under the Texas Worker’s Compensation Act. Sash sought payment from the Texas Municipal League (TML), the City’s workers’ compensation carrier¹, for lost wages and for medical care. TML refused to compensate Sash.

II. SUMMARY JUDGMENT PROCEEDING

On June 10, 1992, Sash brought this worker’s compensation lawsuit. In his original petition, he alleged that he was injured in the course and scope of his employment when he struck his chest on the steering wheel of the truck he was driving. He claimed he sustained an injury that was a producing cause of total incapacity, or, in the alternative, temporary total incapacity and permanent partial incapacity. Sash asked to recover compensation for 401 weeks from and after the date of his injury, for medical expenses and for attorney’s fees.

The City filed a motion for summary judgment asserting the affirmative defense of election of remedies. The City alleged that Sash filed a claim with the City’s group health insurance provider, The Hartford, and that the doctrine of election of remedies barred Sash from filing an additional worker’s compensation claim with TML. The City further argued that because Sash had experience filing claims in the worker’s compensation system in the past at other jobs, Sash knew how the system works. The City contended that even though Sash knew that he was to report work-related injuries to his supervisor in order to collect worker’s compensation, Sash never did so. Thus, the City argued, The Hartford paid benefits for Sash’s medical care arising from this complaint and Sash should be barred from seeking another recovery from the worker’s compensation carrier, TML.

*2 The City provided summary judgment evidence in the form of affidavits, medical records, and deposition testimony intended to show that Sash attributed his medical problems to an injury on the job, and that, nevertheless, he elected to pursue benefits from the City’s group health insurance provider, and not its worker’s compensation carrier, TML.

The Director of Personnel for the City testified in an affidavit that The Hartford was the City’s group healthcare insurance provider. He stated that The Hartford did not provide benefits for or cover medical expenses for work-related injuries. He also testified that the Texas carrier which provided worker’s compensation coverage for the City was TML.

However, the City did not offer any records from either The Hartford or TML concerning Sash’s healthcare claims. Instead, it offered a sworn, notarized “No Record Statement” from the custodian of records for TML Group Benefits. The custodian stated that there were no records in its possession regarding Sash and that the records are maintained by Hartford Insurance. An affidavit from the custodian of records for The Hartford indicated that it had “zero” records on Sash. In its motion for summary judgment, the City alleged that it had made a diligent effort to find the insurance claim records of both Hartford and TML in regard to Sash’s group health insurance claim concerning the injury, but neither entity had been able to locate these records.

The City alleged that it had, however, obtained medical records to “make clear that Alvin Sash sought his remedy from Hartford, the health care provider, and not [TML], the worker’s compensation provider.” This evidence consisted of medical records of Mesquite Community Hospital, Tri-City Health Center, Dr. Randy Gillam and Dr. Michael Grund.

The City also offered the affidavits of Robert Byrd (street supervisor), Roger Cox (asphalt supervisor), and Billy Nava (street superintendent), who all stated that Sash did not report a work-related injury to them on March 28, 1989, or within 30 days after that date. They stated they did not have knowledge that Sash was claiming a work-related injury until July 1989. A memorandum from Nava to Byrd stated that at no time in the period from March 31, 1989 through April 4, 1989 did Sash report that he had any type of injury to his chest.

The City also filed a supplemental motion for summary judgment, where it argued that aggravation, acceleration or excitement of a non-occupational disease does not constitute a compensable injury under Texas worker’s compensation law. In support of its supplemental motion, the City offered deposition testimony from one of Sash’s physicians, Dr. William Fears.

Dr. Fears opined that clinical gynecomastia caused Sash’s chest problem. He explained that gynecomastia is an accumulation of glandular breast tissue in the breasts of a male. He stated that generally, it is caused by a change in hormonal levels, but that in Sash’s case, it was “idiopathic,” that is to say, its origin was unknown. Dr. Fears stated that the gynecomastia was not caused by the blunt trauma which Sash experienced in the truck accident. He said that the trauma did bring the condition to Sash’s attention, “and it made it hurt worse.” He explained that the trauma caused Sash’s chest to become more tender and that it “shook it up.”

*3 In his response to the City’s motion for summary judgment and supplemental motion for summary judgment, Sash argued that there were genuine issues of material fact regarding whether Sash elected a remedy and specifically, whether Sash made an informed choice of a remedy. Sash also contended the City failed to establish as a matter of law that Sash’s gynecomastia was the sole cause of incapacity and genuine issues of material fact existed as to whether Sash’s injury was a producing cause of incapacity.

In support of his argument concerning election of remedy, Sash offered a part of his own deposition testimony. There, he stated that although he had on previous occasions filed worker’s compensation claims on his other jobs, he “didn’t know how the system works, really.”

Sash stated that while driving a truck at work, he ran into a “chuckhole,” causing him to hit his chest against the steering wheel. The right side of his chest turned blue and was bruised, swollen, and tender. A day or two after the injury occurred, but before seeing a doctor, he reported the incident to his supervisor, Robert Byrd. Byrd told him that if the injury did not improve soon, he would prepare an accident report. Sash came back in two or three days when the swelling and tenderness increased. The injury site was so sore that wearing a shirt was painful. Byrd told him he had not “got around to” filling out an accident report.

Without waiting for the report, Sash went to see Dr. Boudreau. Because of the amount of swelling, Dr. Boudreau referred Sash to Dr. Gillam. On June 23, Sash signed a worker’s compensation claim form alleging that on March 28, 1989, he was injured in the course of his employment with the City.

Elsewhere in his deposition, Sash stated that Dr. Gillam performed surgery on him on May 30, 1989. Dr. Gillam sent Sash back to work on light duty. Sash’s injury started bleeding and a follow-up visit to Dr. Gillam was required to place a drain in the wound, which had abscessed. This took place sometime in June 1989. Later, a knot appeared at the injury site and Sash had to have it surgically removed. This occurred about a month after the second surgery. Dr. Grund performed the third surgery. Sash said Dr. Gillam told him his problems were caused by the initial injury and resultant bruising. Sash admitted that he had filed other worker’s compensation claims in the past, and knew something of how the worker’s compensation system works.

In further support of his response to the City’s election of remedies argument as grounds for summary judgment, Sash offered a memorandum from the City’s street superintendent, Billy Nava, which was directed to the City’s personnel department. The memo stated that on May 26, 1989, Nava sent Roger Cox, asphalt supervisor, to contact Sash concerning the operation on his chest scheduled for May 30. Because this was a “personal injury,” Nava wrote in the memo, he told Cox to inform Sash that the operation would not be covered by worker’s compensation and that any costs would have to be paid for by Sash’s group health insurance carrier.

*4 In response to the City’s argument that summary judgment was proper on the grounds that Sash had not suffered a compensable injury, Sash submitted a part of Dr. Fears’s deposition testimony. Dr. Fears stated that Sash had clinical gynecomastia. He also said that nothing in Sash’s history indicated he had experienced trouble with his chest before. However, the trauma caused by hitting the truck’s steering wheel “brought the gynecomastia to [Sash’s] attention because of probably a bruising of the tissue itself.” He stated that this trauma made Sash’s gynecomastia “hurt worse.”

The trial court granted the City’s motion for summary judgment and supplemental motion for summary judgment “in all things.”

III. DISCUSSION

A. Summary Judgment Standard of Review

Gibbs v. General Motors Corp. sets out the standard of appellate review for summary judgments. In Gibbs, the supreme court stated:

the question on appeal, as well as in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action, but is whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action.

Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). In reviewing a summary judgment record we follow the rules set out by the supreme court in Nixon v. Mr. Property Mgmt Co.:

(1) The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

(2) In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non- movant will be taken as true.

(3) Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, the plaintiff could not succeed upon any theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983); Lewis v. Texas Utilities Elec. Co., 825 S.W.2d 722, 724 (Tex. App.-Dallas 1992, writ denied). The defendant urging summary judgment on an affirmative defense must come forward with summary judgment evidence for each element of the affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979). Thus, for the defendant as movant to prevail on summary judgment, it must either disprove at least one element of the plaintiff’s theory or plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff’s cause of action. Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex. App.-Dallas 1992, no writ).

B. Election of Remedies

*5 In his second point of error, Sash contends that the trial court erred in granting summary judgment because the City failed to establish as a matter of law each element of the affirmative defense of election of remedies. We agree.

1. Applicable Law

Election of remedies is an affirmative defense. Allstate Ins. Co. v. Perez, 783 S.W.2d 779, 782 (Tex. App.-Corpus Christi 1990, no writ). 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). Election should not bar a suit when a previous course of action or a settlement for less than the claim was grounded upon uncertain and undetermined facts. Bocanegra, 605 S.W.2d at 852.

2. Application of Law to Facts

In its motion for summary judgment based on the affirmative defense of the election of remedies doctrine, the City offered medical records of Mesquite Community Hospital, Tri-City Health Center, Dr. Randy Gillam and Dr. Michael Grund. These records were intended to serve as summary judgment evidence indicating that Sash may have received general medical insurance benefits for his allegedly work-related injury. However, there is no evidence that Sash made an informed election between worker’s compensation benefits and recovery under his general medical insurance.

Instead, there is evidence that Sash reported the incident to his supervisor, Robert Byrd as an on-the-job injury, and requested Byrd to file an industrial accident report. There is evidence that Byrd told Sash to come back in a day or two if the injury did not improve and Byrd would file a report. However, Byrd did not comply with Sash’s request for the report. There is also evidence that before Sash went into surgery, the City sent another supervisor, Roger Cox, to the hospital to tell Sash that his injury was a personal injury and that he could not receive coverage for his medical expenses under worker’s compensation insurance. Thus, the evidence shows that Sash initially attempted to seek worker’s compensation benefits by requesting the City to file an industrial accident report and that the City expressly told him before surgery that he could not file a worker’s compensation claim for this injury.

The Texas Supreme Court has made clear that a choice between inconsistent remedies, rights or states of facts does not amount to an election which will bar further action unless the choice is made with a full and clear understanding of the problems, facts, and remedies essential to the exercise of an intelligent choice. Bocanegra, 605 S.W.2d at 852. We are unable to conclude under this record that the City established that Sash intelligently chose to receive general medical benefits from The Hartford instead of worker’s compensation benefits from TML. We hold that the City did not prove that Sash made an informed election that precludes him from proceeding into court under a worker’s compensation theory. We sustain his first point of error.

B. Compensable Injury

*6 In his third point of error, Sash argues the trial court erred in granting summary judgment because the City failed to establish as a matter of law that Sash did not suffer a compensable injury. We agree with Sash and sustain this point of error.

1. Applicable Law

Under the Worker’s Compensation Act, as a general rule, only injuries sustained in the course and scope of employment are compensable. See INA of Texas v. Howeth, 755 S.W.2d 534, 535 (Tex. App.-Houston [1st Dist.] 1988, no writ). An injury means damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom. Schaefer v. Texas Emp. Ins. Ass’n, 612 S.W.2d 199, 201-02 (Tex. 1980).

The Texas Supreme Court has further defined injury as “one that is an undesigned, untoward event that is traceable to a definite time, place and cause. In other words it is the result of an accident.” Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 336 (Tex. 1979). The term injury includes occupational disease, which in turn is defined as “any disease arising out of and in the course of employment which causes damage or harm to the physical structure of the body and such other diseases or infections as naturally result therefrom.” Howeth, 755 S.W.2d at 535. Absent an occupational injury or occupational disease, the mere aggravation, acceleration, or excitement of a non-occupational disease is non- compensable. Home Ins. Co. v. Davis, 642 S.W.2d 268, 269 (Tex. App.-Texarkana 1982, no writ). However, even an ordinary, or non-occupational disease which is not otherwise compensable, may be so if it is incidental to an occupational disease or occupational injury. See Howeth, 755 S.W.2d at 535-37 (even an injury that merely aggravates a pre-existing bodily infirmity is compensable provided an accident arising out of employment contributed to the incapacity).

Thus, the mere existence of a pre-existing injury or disease which aggravates or enhances a complained-of injury does not defeat a claimant’s right to recover worker’s compensation benefits as long as the complained-of injury arose out of employment. See Howeth, 755 S.W.2d at 536-37. To defeat the claim, the defendant must meet the burden of showing that the prior injury or illness is the sole cause of the claimant’s present incapacity. Texas Emp. Ins. Ass’n v. Page, 553 S.W.2d 98, 100 (Tex. 1977); Oswald v. Texas Emp. Ins. Ass’n, 789 S.W.2d 636, 640 (Tex. App.-Texarkana 1990, no writ); Gonzalez v. Texas Emp. Ins. Ass’n, 772 S.W.2d 145, 150 (Tex. App.-Corpus Christi 1989, writ denied) (op. on reh’g).

2. Application of Law to Facts

In its supplemental motion for summary judgment, the City asked for summary judgment on the following ground:

Plaintiff’s clinical gynecomastia was a pre-existing condition not related to his work with the City of Mesquite. Plaintiff has not alleged that his clinical gynecomastia is an occupational disease. It is clear that Plaintiff is claiming an aggravation of a pre- existing disease in order to receive benefits under the Texas Worker’s Compensation Act. Texas law makes clear that aggravation, acceleration or excitement of a non-occupational disease does not constitute a compensable injury under the Texas Workers’ Compensation Act. Therefore, Defendant City of Mesquite is entitled to summary judgment concerning any injury claimed by Plaintiff related to his clinical gynecomastia.

*7 Viewing the evidence favorable to Sash as true, and indulging every reasonable inference in his favor, we conclude that there is a disputed material fact issue concerning whether or not Sash suffered a compensable injury, precluding summary judgment.

The evidence showed that on March 28, 1989, Sash was involved in a vehicular accident while in the course of his employment with the City. The accident injured his chest, which immediately began to swell. There was medical testimony from Dr. Fears, who stated that although the reason for Sash’s surgery and incapacity was clinical gynecomastia, the trauma of hitting the steering wheel against his chest did bring the pre-existing condition to Sash’s attention, “and it made it hurt worse.” He explained that the accidental injury caused Sash’s chest to become more tender and that it “shook it up.” Pain is not compensable under Texas worker’s compensation law, but to the extent pain is debilitating and prevents work performance, it can be considered in determining if there is an incapacity. Oswald, 789 S.W.2d at 636.

Dr. Fears’s testimony suggested that the condition necessitating the medical services-clinical gynecomastia-was at least aggravated by the trauma caused by Sash’s chest hitting the steering wheel. Thus, his testimony did not totally negate the incident as an aggravation to Sash’s pre-existing condition of gynecomastia. It was the City’s burden to show that Sash’s gynecomastia was the sole cause of Sash’s alleged incapacity. See Page, 553 S.W.2d at 100. This it did not do.

We conclude that it is for the jury to decide whether Sash was entitled to compensation for an injury received in the course of employment, regardless of the fact that he may have been suffering from a disease which contributed to his incapacity. See Oswald, 789 S.W.2d at 640; Texas Emp. Ins. Ass’n v. Gallegos, 415 S.W.2d 708, 711 (Tex. Civ. App.-San Antonio 1967, no writ). We sustain Sash’s third point of error.

In a first point of error, Sash also contends generally that summary judgment in this case was improper. Because we have already sustained his two more specific points of error, it is unnecessary to discuss Sash’s first point.

We reverse and remand this case to the trial court for proceedings consistent with this opinion.

	Footnotes
1		The City had an agreement with TML through which the City self-funded its worker’s compensation coverage.