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

Martha Rosalie SCHEFFER, Appellant,

v.

ALLIED ASSETS CORPORATION, and Allied Assets Corporation D/B/A Arcot Manufacturing Corporation, Appellees.

No. 01-99-00956-CV.

|

Feb. 3, 2000.

Panel consists of Chief Justice SCHNEIDER, and Justice ANDELL and DUGGAN.¹

OPINION

ANDELL.

*1 Martha Rosalie Scheffer, appellant, appeals the trial court’s rendition of summary judgment in favor of Allied Assets Corporation and Allied Assets Corporation d/b/a Arcot Manufacturing Corporation (“Allied”). We affirm.

FACTS

Scheffer was employed as a cook at Chambers Elementary School when she was exposed to an Allied oven and grill cleaning product. The oven cleaner was purchased for use in the school kitchen through the bid process used by Alief Independent School District. The oven cleaner was used in the kitchen beginning in the Spring of 1995, but Scheffer did not have a reaction to the cleaner until October 13, 1995.

Scheffer’s doctor, Duncan Bowell, M.D., completed a Worker’s Compensation Injury Status Report for Scheffer on October 13, 1995 with the following notations:

She was exposed to a toxic substance at work, probable oven cleaner. She got an immediate coughing fit with runny eyes and some chest tightness and thinks she almost passed out. On examination, her lungs are clear and she is not out of breath. Vital signs are stable. There is no fever. Will get spirometry, chest x-ray and blood chemistry. Give her Azmacort inhaler. See again next week. She is able to return to work tomorrow. Addendum: Chest x-ray within normal limits.

Bowell’s diagnosis was “chemical irritation syndrome” and he noted “exposure to oven cleaner” on Scheffer’s billing statement. Scheffer stated in her affidavit that she did not believe at that time that anything permanent or serious had happened to her.

Scheffer had another reaction to the oven cleaner on December 9, 1995,0 and returned to her physician. Dr. Bowell’s notes on that date were:

She had been exposed to an oven cleaner which is 964-E which caused an allergic reaction with marked wheezing. She can continue to work, but she is given a letter stating that she should not be exposed to this particular oven cleaner as it has caused an allergic toxic reaction.

Scheffer stated in her affidavit that on that date she still did not believe she had been seriously injured and returned to work. A note in her medical records said that Scheffer would pick up the letter from Dr. Bowell on December 1, 1995.

On December 18, 1995, Scheffer again returned to Dr. Bowell, this time with a rash and swollen hands. On that day, Dr. Bowell noted:

She had some sort of erythema vasculitis type problem. She has a rash on her right thumb with some swelling and almost a herpetic type lesion in this area. She has had some joint swelling, especially in her fingers and swelling in her hands and also a couple of spots on her buttocks. She got into an oven cleaner situation last week but this is probably not what is causing it. She has a very slight fever. Will put her on Medrol Dosepak and will get an arthritic panel, CBC, sed rate, urinalysis and blood chemistry. See again in about three days.

Scheffer stated in her affidavit that Dr. Bowell checked for and ruled out “lupus.” She again felt it was not serious, and returned to work. The diagnosis on the billing statement for that day was “erythema/vasculitis.”

*2 Scheffer went back to Dr. Bowell on January 29, 1996. His notations for this visit were: “Given Medrol Dosepak. She has erythema and swelling on both of her hands, worse on the right palm, and somewhat on the right finger. The Medrol Dosepak worked before. We will refer her to an allergist at a later date.” The billing statement states that the diagnosis was a “recurrent swelling/rash.” Scheffer contends in her affidavit she still did not believe there was anything seriously wrong with her.

Scheffer returned to Dr. Bowell on February 6, 1996 with another rash. Dr. Bowell noted: “She has an acute urticarial reaction again. Will give her some Claritin. She needs to see an allergist so will hold off if she can on taking the medication so the allergist can do testing.” This time the diagnosis written on the billing statement was “urticaria.” Scheffer stated in her affidavit that her impression of what she was told by the doctor was that her complaints were nothing to worry about, and she returned to work.

On February 7, 1996, Scheffer saw an allergist, L. Reed Shirley, M.D., who conducted tests and a physical exam. Dr. Shirley’s diagnosis was “idiopathic, chronic urticaria.” Scheffer had shown Dr. Shirley a material safety data sheet on the oven cleaner, but he concluded that he doubted there was any clear relation to her primary concern, the recurring episodes of pruritus and hand edema. Scheffer was placed on allergy medication at that time.

Scheffer had another reaction to the oven cleaner on February 26, 1996. The school nurse sent her to the emergency room because of her coughing reaction to the fumes. The diagnosis by the emergency room physician was “acute reactive bronchospasm (chemical).”

Scheffer next saw Dr. Bowell on March 11, 1996 for an abscessed tooth. Dr. Bowell’s notes for this visit were:

She has an abscessed tooth. Given an injection of bicillin CR and also put on amoxicillin 500 mg four times a day. Will see her dentist today. She also was seen in the Emergency Room last week because of the acute asthma reaction that she had from oven cleaner at her work. This is for information on the chart.

Scheffer went to the emergency room again on March 22, 1996 with persistent coughing, shortness of breath, pain in her chest and slight respiratory distress. The diagnosis was simply, “reaction to oven cleaner” and she was discharged in stable condition.

Scheffer saw Dr. Bowell again on Monday, March 25, 1996. Scheffer contends she had a reaction to the fumes from an oven that had been cleaned the previous Friday. The nurse noted her “allergic reaction[s]” on March 22 and 25, and called it an allergic reaction to oven cleaner. Dr. Bowell’s diagnosis on this visit was “asthma,” and he referred her to Dr. Rabie, a pulmonologist. Dr. Bowell had chest x-rays taken and noted that her “lungs are clear of active disease except for diffuse prominence of the bronchovascular markings.” Dr. Bowell released her to return to regular work, but completed workers compensation forms.

*3 Scheffer contends because the previous incidents were diagnosed as “allergic,” and had been continuously reviewed by her physician and an allergist, she did not believe she had a medical condition directly related to her continuing exposure to Allied’s oven cleaner, or that the incidents were serious before March 25, 1996. Scheffer asserts it was the incidents on March 22 and 25, 1996, and a diagnosis of “asthma” with a referral to a pulmonologist, that caused her to know she had a medical condition directly related to Allied’s oven cleaner. Scheffer claims on March 25, 1996, she knew the “oven cleaner was having a strong reaction in [her] lungs which needed special medical attention.” Scheffer contends at this point she took the injury seriously because she considered asthma a permanent injury. Scheffer did not consider the allergic reactions serious or permanent compared to asthma, which she regards as serious, permanent, and requiring regular medication. Scheffer continued to work in the elementary school kitchen that spring, but stated in her affidavit that, after that time, the manager would not allow the oven cleaner to be used because of Scheffer’s condition. Scheffer has since been diagnosed by Dr. Bowell as having “reactive airway disease.”

Scheffer filed suit on February 24, 1998, alleging permanent injuries caused by her exposure to Allied’s oven cleaner, which occurred during her employment by Alief I.S.D. Allied filed a motion for summary judgment on March 30, 1999, alleging the suit was barred by a two-year statute of limitations because the injury occurred on October 13, 1995. Allied’s motion for summary judgment was granted on May 12, 1999.

STATUTE OF LIMITATIONS

Allied argues Scheffer was injured on October 13, 1995, and knew of the injury by that date, but because she did not file suit by October 13, 1997, this suit is barred by limitations. A suit for a personal injury must be brought no later than two years after the day the cause of action accrues. Tex.Civ.Prac. & Rem.Code Ann. § 16.003 (Vernon Supp.2000).

A defendant seeking summary judgment on the ground of limitations must prove when the cause of action accrued, and must negate the discovery rule by proving as a matter of law there is no genuine issue of fact about when the plaintiff discovered, or should have discovered, the nature of the injury. KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex.1999). If the movant establishes that the action is barred by limitations, the nonmovant must then adduce summary judgment proof raising a fact issue to avoid the statute of limitations. Id.

1. When did the cause of action accrue?

The legal injury rule states that “a cause of action accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not occurred.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex .1996).

*4 To support its contention that Scheffer’s cause of action accrued on October 13, 1996, Allied points to Scheffer’s deposition testimony and her affidavit, as well as her medical records. Scheffer stated in her deposition and affidavit that, “it all started” in October of 1995, although it took awhile to know the extent and the severity of the progression, and the name of the injury. Scheffer did not initially call it an “injury.” She knew she had a reaction to the oven cleaner in October, 1995, but it took several months before the doctors concluded Scheffer had asthma and severe reactive airway disease.

Scheffer argues she had not discovered the nature of her injury, which she contends is required to commence the statute. Scheffer also argues she had no justiciable injury on October 13, 1995, and, therefore, her cause of action did not accrue on that date. Scheffer argues her cause of action accrued on March 25, 1996 when Dr. Bowell diagnosed her with “asthma.”

The question of when a cause of action accrues is a question of law for the court. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). A cause of action generally accrues at the time of the wrongful conduct if the law provides an immediate remedy to redress the harm to the plaintiff’s legally protected interest. Zidell v. Bird, 692 S.W.2d 550, 554 (Tex.App.-Austin, 1985, no writ). The harm to the plaintiff’s legally protected interest need only raise a risk of harm to the plaintiff’s interest, the harm need not be an inevitable consequence of the conduct. Id. at 557. A cause of action will accrue when a defendant’s wrongful conduct causes some injury. Trinity River Auth. v. URS Consultants, Inc.-Texas, 889 S.W.2d 259, 262 (Tex.1994).

We conclude Scheffer’s cause of action accrued on October 13, 1995 when she first suffered a reaction to the oven cleaner severe enough to seek medical attention. Her doctor diagnosed the cause of her symptoms, which included a coughing fit and tightness in her chest and a feeling that she would pass out, as “chemical irritation syndrome,” and noted the cause as exposure to oven cleaner. Scheffer received a letter from her doctor by December 1, 1995 stating that she should not be exposed to the oven cleaner. Shortly after that, Scheffer experienced marked wheezing, which her doctor again attributed to the oven cleaner, this time even distinguishing it by its product number designation. At a minimum, by December 9, 1995, the time of her second trip to the doctor due to exposure to the oven cleaner, Scheffer had suffered a legal injury and her cause of action had accrued.

2. Does the discovery rule apply?

The discovery rule is an exception to the legal injury rule, providing that limitations will begin when the injury is discovered, or should have been discovered through the exercise of reasonable diligence. S.V., 933 S.W.2d at 4. The discovery rule is generally applied in two types of cases: fraud or fraudulent concealment, and cases in which the alleged wrongful act and resulting injury were inherently undiscoverable at the time they occurred, but may be objectively verified. Id. at 6. Scheffer has not alleged fraud or fraudulent concealment; for the discovery rule to apply, the alleged wrongful act by Allied and Scheffer’s resulting injury must have been inherently undiscoverable when they occurred, but objectively verifiable.

Was the injury inherently undiscoverable?

*5 An injury is inherently undiscoverable if it is unlikely to be discovered during the limitations period by its very nature. Id. at 7. Scheffer knew on October 13, 1995 that her injury was caused by Allied’s oven cleaner. She experienced the symptoms after being exposed, sought medical attention, and was told by her physician that she had experienced “chemical irritation syndrome” caused by exposure to oven cleaner. Approximately six weeks later on December 1, 1995, Scheffer was to pick up a letter from Dr. Bowell stating that she should not be exposed to Allied’s oven cleaner because she had experienced a reaction to the fumes. On Scheffer’s second visit to Dr. Bowell for respiratory injury on December 9, 1995, the doctor again attributed her symptoms of marked wheezing to an allergic reaction to the oven cleaner. Accordingly, because it was discovered, it was not inherently undiscoverable.

Was the injury a latent occupational disease?

Scheffer argues that her injury was a latent occupational disease, thus invoking the discovery rule. In cases of latent occupational disease, the injuries often do not manifest themselves for several decades following exposure to the toxic substance. Childs v. Haussecker, 974 S.W.2d 31, 38 (Tex.1998). Unlike latent occupational diseases, Scheffer experienced symptoms immediately after her exposure to the allegedly toxic substance. Although the record reflects that the oven cleaner was being used in Scheffer’s work place before October 1995, the record does not reveal if Scheffer had any previous direct contact with the oven cleaner before October, 1995.

Additionally, in cases of latent occupational diseases, there is generally no particular date of injury because the injurious consequences of the exposure are the product of a period of time, rather than one point in time. Id. Scheffer had specific instances of symptoms caused by exposure to the oven cleaner that caused her to seek medical attention immediately. With latent occupational diseases, the injury is often difficult to diagnose and associate with exposure in the occupational setting because of the lengthy latency period and many potential causes of the symptoms. Id. Scheffer’s condition was immediately attributed to her exposure to the oven cleaner at work, and she was told by Dr. Bowell no later than December 1, 1995, that she should avoid any further exposure to the oven cleaner.

Scheffer argues the rendition of summary judgment violates the “open courts” provision of the Texas Constitution, and her right to due process. She argues that the open courts provision requires that the common law afford a remedy for her and all those similarly situated, who may be denied a cause of action on the basis that they are charged with knowledge of a latent disease process, which may take years to develop, at the first instance of acute exposure.

The Texas Constitution guarantees that persons bringing common law causes of action will not unreasonably be denied access to the courts. Tex. Const. art. 1, § 13. A statute that unreasonably abridges a justiciable right to obtain redress for injuries caused by another’s wrongful act amounts to a denial of due process under article 1, section 13. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996). A statute violates the open courts provision if it cuts off an injured person’s right to sue before the person has a reasonable opportunity to discover the wrong and bring suit. Id.

*6 Scheffer sought medical attention immediately when she experienced symptoms caused by exposure to Allied’s oven cleaner. Her doctor diagnosed her with chemical irritation syndrome caused by exposure to a toxic substance-the oven cleaner. Within six weeks, Scheffer was given a letter from her doctor stating she should avoid all exposure to the oven cleaner. Approximately nine days later, Scheffer had another reaction to the oven cleaner which caused her to seek medical attention. Again, her doctor attributed her symptoms to exposure to the oven cleaner. To impose the statute of limitations in this case does not create an impossible condition for Scheffer to have discovered her injury and filed suit. Scheffer’s condition did not lay dormant and asymptomatic for decades. Rather, she had a reaction that was immediately attributed to the oven cleaner. The statute of limitations did not cut off her right to sue before she had a reasonable opportunity to discover the wrong and bring suit.

Accordingly, we find that the open courts provision has not been violated.

We overrule Scheffer’s point of error.

We affirm the judgment of the trial court.

	Footnotes
1		The Honorable Lee Duggan, Jr. retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.