Court of Appeals of Texas, Beaumont.

TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, Appellant

v.

UTICA MUTUAL INSURANCE COMPANY, Appellee

No. 09-95-306 CV.

|

Jan. 30, 1997.

Before WALKER, C.J., BURGESS and FARRIS, JJ.

OPINION

FARRIS, Justice.¹

*1 This is an old law workers’ compensation case. The issue is which of two insurers is obligated to pay benefits to an employee who was injured as a result of repetitious trauma, the one who insured the employer when the employee’s first distinct manifestations of injury appeared or the one who insured the employer when the employee became disabled. We affirm the judgment because the trial court correctly held the one who insured the employer when the employee became disabled is obligated to pay the benefits.

The parties to this appeal both provided workers’ compensation insurance to Sullivan Graphics; Utica insured Sullivan through October 31, 1990, and Travelers insured Sullivan thereafter. Both parties were defendants in Bobby Gene Jackson’s suit to set aside an award of the Texas Workers’ Compensation Commission. Jackson, Sullivan’s long time employee, alleged he sustained a compensable injury as a result of repetitious trauma on or about November 1, 1990. By definition, “occupational disease” includes injury caused by repetitious trauma. Tex.Rev.Civ. Stat. Ann. art. 8306 § 20 (Vernon Supp.1997)(repealed by Acts 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7) to (9), eff. Jan. 1, 1991). Both insurers moved for summary judgment contending the other was obligated to pay any benefits due Jackson. The trial court granted Utica’s summary judgment, overruled Travelers’s motion and severed Jackson’s suit against Travelers.

Travelers appeals contending the trial court erred in overruling its motion for summary judgment and granting Utica’s motion. Travelers argues the trial court erred because it applied art. 8306 § 20 rather than Tex.Rev.Civ. Stat. Ann. art. 8307 § 4a (Vernon Supp.1990)(repealed 1991) and held liability was determined by the date Jackson became disabled rather than the date his injury first became manifest. Travelers also raises the possibility we may find a fact issue exists as to the date Jackson’s injury first became manifest, and that this fact issue would require reversal. In response, Utica argues the trial court did not err by following art. 8306 § 20, there is no fact issue requiring reversal, and Travelers is judicially estopped from denying coverage because of its admission of coverage in its statement of position filed with the Commission. We conclude judicial estoppel is not an issue before this court, and there is not a material issue of fact requiring reversal.

Judicial estoppel is not an issue because Utica did not expressly include it as a ground in its motion for summary judgment; thus it will not sustain the judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex.1993).

There is no material issue requiring reversal because no material fact is disputed. Neither party disputes that Jackson became aware of his injury before November 1, 1990, but he continued to work until November 28, 1990 when he became disabled. Also the date Jackson’s injury became manifest is not material because the date he first became disabled determines which insurer was obligated to provide his benefits.

*2 In support of its argument that Utica is liable for any benefits due Jackson, Travelers relies upon an opinion, which it contends addressed the same issue before us in this case, holding under art. 8307 § 4a the insurer at the time of the first distinct manifestation of an occupational disease is liable for benefits due the claimant. Hernandez v. The Travelers Indemnity Co. of Rhode Island, 855 S.W.2d 786, 789 (Tex.App.-El Paso 1993, no writ). The issue in Hernandez was which of two workers’ compensation carriers was liable where the employee’s first distinct manifestations of an occupational disease occurred during the policy period of one carrier but the last exposure occurred during the policy period of the second carrier. Id. at 787. In Hernandez, Travelers contended the carrier with coverage on the date of the last exposure was liable for benefits. Id. However, the court concluded the carrier at the time of the first distinct manifestation of the disease was liable for the benefits. Id. at 789.

In reaching its conclusion in Hernandez the court found Travelers’s interpretation of the law conflicted with the rule that a compensation claim based on an occupational disease, “accrues at the time of its first distinct manifestation.” Id. at 788. The rule to which the court referred was art. 8307 § 4a, the statute providing the time for giving notice of injury and filing a claim for compensation was figured from, “the first distinct manifestation of an occupational disease.” Id. at 788 n. 3.

In a distinguishable respect the facts of Hernandez are unlike those of this case. Hernandez was a workers’ compensation claimant who suffered an occupational disease because of exposure to certain chemicals. Id. at 788. In contrast, Jackson’s injury is an occupational disease that resulted from repetitious trauma. Consequently, its accrual was determined not by art. 8307 § 4a but by art. 8306 § 20 which specifically provides the date of cumulative injury for a repetitious trauma is the date disability occurred. Thus, as the date Jackson’s disability occurred is uncontested the trial court properly granted Utica’s motion for summary judgment while overruling Travelers’s motion.

The judgment is AFFIRMED.

	Footnotes
1		The Honorable David Farris, sitting by assignment pursuant to Tex. Gov’t Code Ann. § 74.003(b) (Vernon 1988).