Supreme Court of Texas.
Olen L. CLEM, Petitioner,
DALLAS INDEPENDENT SCHOOL DISTRICT, Respondent.
June 18, 1980.
Attorneys & Firms
*925 Bean, Franic, Wills & Dennis, Robert Bean, Ford, Livingston & Needham, William Catterton, Dallas, for petitioner.
Robert M. Greenberg, Dallas, for respondent.
GREENHILL, Chief Justice.
Clem brought this suit for workmen’s compensation benefits because of his having suffered a Article 8306, section 12b provides compensation for 26 weeks “from the date of the operation.”1 The problem is whether Clem is entitled, under the circumstances, to compensation for a period of over a year before the successful operation.
The trial court held that Clem was not entitled to compensation during the 57 weeks before the surgery, during which period he was totally disabled. The court of civil appeals, by a divided court, affirmed. 593 S.W.2d 347. We agree with the opinion of the dissenting justice. Our holding is that Clem is entitled to recover from the date of his injury and incapacity to the date of his operation in addition to the 26 weeks of compensation provided after the surgery.
Clem was employed by the Dallas Independent School District (hereinafter called Dallas I.S.D.). It is self-insured under the Workmen’s Compensation Act. On January 29, 1976, Clem suffered an accidental injury in the course and scope of his employment. By definition, a hernia operation was performed.
Dallas I.S.D. paid Clem 26 weeks of compensation, but refused to pay additional compensation for the 57 weeks between the date of the injury and the date of the operation.
Clem then brought this suit. The case was tried to the court on stipulated facts. They are quite brief, and are, in substance, set out above. As stated, the stipulated facts do not show that Clem was tendered an operation, or that he refused an operation before the one he had, or that he had requested an operation.
*926 Although the relevant statutes have existed since the Workmen’s Compensation Act of 1917, this is the first case to address this issue.
Sections 10 and 11 of the Workmen’s Compensation Act provide compensation for general injuries. Section 12 provides compensation for enumerated specific injuries which is “in lieu of all other compensation except medical aid, hospital services and medicines as elsewhere herein provided.”
section 12b begins:
If the employee submits to the operation and the same is successful, which shall be determined by the board, he shall in addition to the surgical benefits herein provided for be entitled to compensation for twenty-six weeks from the date of the operation.
By its very terms, the 26 weeks of compensation is limited to disability suffered after the operation. Section 12b therefore contains no provision for disability from the date of the injury to the date of the operation. Thus the question is whether such omission indicates that no compensation is allowed or whether it indicates that compensation is allowed for a general injury under the Workmen’s Compensation Act.
Section 12, which provides for specific injuries, must be compared with section 12b.
This Court has previously noted that an employee who suffers a compensable section 12b makes no provision for disability from the time of injury to the time of the operation, an employee must be compensated for that disability as a general injury.
Dallas I.S.D. has cited two cases which state that compensation is limited to 26 weeks regardless of the actual period of incapacity. 52 S.W.2d 247. These cases and others are discussed in the majority opinion of the court of civil appeals. Neither of these cases addressed the question of compensation between the date of injury and the date of the operation.
The facts in Lowery were that Lowery suffered a 136 Tex. at 192, 148 S.W.2d at 1091. If this meant that there was a limitation of 26 weeks of benefits after the operation, even though it might take the worker longer than 26 weeks to recover, that is one thing. But if it meant that recovery is limited to 26 weeks no matter what, like a specific injury, it is disapproved. The decision in Henson turned on the question whether an employee had to wait 26 weeks after an operation before he could appeal to the court claiming that his operation was unsuccessful. There was no question as to whether the employee was entitled to compensation before the operation. Thus, neither case cited controls here.
We, therefore, reverse the judgments of the courts below and render judgment for Clem for 57 weeks of compensation at $77.00 per week which shall be in addition to the 26 weeks of compensation already paid.
Statutory references are to Vernon’s Texas Civil Statutes Annotated. Emphasis throughout is ours.