HEART DISEASE AS A COMPENSABLE
UNDER THE TEXAS WORKMEN'S
BILL
WEBER
222
INJURY
COMPENSATION
ACT
HEART DISEASE AS A COMPENSABLE INJURY
UNDER THE TEXAS WORKMEN'S COMPENSATION ACT
Bill Weber
Submitted to:
Professor Eissinger
December 8, 197 8
HEART DISEASE AS A COMPENSABLE INJURY
UNDER THE TEXAS WORKMEN'S COMPENSATION ACT
Compensation for employees who have sustained heart
attacks has for many years been an area of great controversy.
Prior to August, 1971 an employee inflicted with
a disease not recognized and specifically set out in Section 20 of Article 8306 as an occupational disease was
denied compensation, unless the injury could be classified as an accidental injury."'"
Generally, this placed a
heavy burden on the employee because accidental injuries
were limited to "undesigned, untoward events traceable to
a definite time and place involving a risk of the employment."
Since diseases were recognized by the courts as
being slow and gradual in development and untraceable by
nature,"^ an inflicted employee was oftentimes placed in a
paradoxical position of being denied compensation.
Fre-
quently, if his ailment failed to be one of the scheduled
occupational diseases in Section 20, it also failed to
satisfy the strict definition of accidental injuries since
by its very nature as a disease, the instant of the disease
inflicted injury could not be ascertained and hence was not
"traceable" to a definite time and place involving a risk o
4
the employment.
Since heart disease was not a compensable
occupational disease under Section 20, the burden of satisfactorily proving heart failure to be an "accidental injury
and showing a causal relationship between the affliction
24
2
and a risk of the claimant's employment, led to many inconsistent decisions by Texas courts^
')
In 1971, the Texas Legislature substantially
amended
Section 20 replacing the restrictive list of compensable
occupational diseases with a comprehensive
definition
designed to broaden its scope and allow compensation for
any genuine occupational disease.^
In its report to the
Texas House of Representatives, the Committee on the
Judiciary
stated:
The present system of listing occupational
diseases for which compensation will be
given is outdated and inflexible in an age
when new and varied employment gives rise
to many additional employee health hazards.
It is felt that a better approach would be
to make all diseases arising out of employment compensable . . . 6
Much debate has arisen over the interpretation and
scope of the legislative reforms of Section 20 and other
related sections of Article 8306.
In order to understand
the potential scope and limits of these reforms and its
effect on the compensability of heart failure, it will
be necessary to probe into the basis and rationale of
these disputes by analyzing pertinent sections of Article
S306 in light of court decisions primarily in Texas, but
also in other jurisdictions.
The purpose of this paper
will also be to weigh the social policies and other considerations
in broadening or limiting
the compensability
of heart disease in view of these legislative
262
reforms.
The Development of Workman's Compensation Coverage
From the time of its inception in Texas in 1913, Workman's Compensation has been a program designed to provide
the employee with a broader range of compensable employment-related injuries while at the same time putting a
ceiling on the amount of damages an injured employee could
recover.
While the statutes have undergone several legislative
revisions through the years, the basic terminology and
statutory definitions defining the scope and limits of compensation have remained.
Compensation has been limited to
"injuries" and "personal injuries" which have been defined
as "damage or harm to the physical structure of the body
and such diseases or infections as naturally result there7
from . . ."'
Changes effecting the scope of compensation have come
about through the imperfect evolution of courts' construction and application of these concepts.
Originally, the
statute was conceived to limit compensable injuries to
those which resulted from a visible, violent, and accidental blow or exertion to the external portions of the body.
In order to be accidental, the injury had to
g be the result
of an unexpected, unusual, or sudden event.
Industrial-
tvpe diseases were often by contrast entirely an internal
injury resulting neither from a visible external wound nor
26
4
a violent physical exertion.
A claimant inflicted with such
a disease often found his injury noncompensable because it
neither fit under the strict statutory limitations of a compensable disease nor did it satisfy the requirements of an
9
accidental injury.
The claimant whose diseases clearly
arose out of the employment, but which failed to fit within
the strict confines of a compensable disease as defined, was
denied any alternative common law remedy if the employer was
a subscriber to Workman's Compensation."^
As deplorable and unequitable results became evident
from such interpretations of the statutes, courts on a case
by case basis began to broaden and extend the scope of' compensation.^
The concepts of "damage or harm" and "physical
structure of the body" were no longer viewed
as limited to
17
external or visible injuries of the body. "
Eventually, in-
juries, internal as well as external, which were simply
sustained within the course of employment were construed as
compensable accidental injuries so long as they were undesigned and not intentionally self-inflicted by the injured
employee.
Injuries were deemed accidental although they may
have resulted from routine and daily tasks that were not at
all unusual, sudden, or unexpected as long as there was
evidence of exertion or strain 1 0 ; or a casual connection
14
between tne injury and the emplovment, could be established.
The influence of these developments on cases involving heart
failure was significant.
Heart failure, like most other
internal injuries had heretofore been compensable only when
precipitated by either a blow or some violent exertion in
the course of employment.
Notwithstanding the advances made by the courts; to be
compensable as an accidental injury, the injury which resulted
in the disease has to be traceable to a definite time, place,
and cause.
However, an industrial disease often times resulted
from a repetitive trauma or cumulative injury which individually was not injurious, but the cumulative effect of such
exposure caused the disease.
Under such circumstances, com-
pensation continued to elude the claimant because the time,
place, and cause of the disease producing injury was not
susceptible of definite ascertainment."*"^
In 1947, an attempt was made to remedy this situation
by providing compensation for industrial diseases which clearly
arose out of the employment.
The Legislature amended the
statutes to include a specific list of compensable occupational
X7
diseases.
Diseases which naturally resulted from an "injury"
remained compensable.
The schedule list of occupational
diseases were to be included within the definition of an "injury
and personal injury."
They were to be considered
exceptions
to the general scope of compensable injuries, which, barring
18
the revision would otherwise be non-compensable. '
Among the
19
diseases not i n d u c e d
in this list was heart disease.
The
development of he art a ttacks as a compensable accidental
injury is significant in understanding the effect the 1971
6
revisions may have on the compensability of heart attack as
an occupational disease.
Heart Attacks as Accidental Injuries and the
Problem of Establishing a Causal Relationship
As case law progressed, heart attacks became compensable
as injuries when the event which inflicted the injury could
be tied down to a definite time, place, and an identifiable
cause.
However, medical testimony pointing to a particular
on the job event as the precipitating cause of the heart
attack was often times deemed insufficient proof by the
courts as satisfying claimant's burden of establishing a
causal relationship.
The courts recognized that a heart attack
was usually the culminating result of a heart condition that
has been deteriorating over an extended period of time and
often caused by factors unrelated to the employment.
20
Since
such factors were not a defense in a claim for compensation
21
as an accidental injury,
the courts have required that
the precipitating cause result from a risk or hazard of the
employment.
A large number of baffling and disparate opinions
have followed as the courts have attempted to protect the
employee's right to compensation and at the same time protect
the employer from liability of injuries not job related.
Injuries as "accidental"
Unlike many states where compensation is provided only
when there has been an "accidental injury" or an injury
7
22
which "results naturally and unavoidable from an accident,"
Texas Workmen's Compensation laws have never made an 23
"accident" a necessary prerequisite to compensation.
How-
ever, in seeking proof that an injury originated in the
work, trade, or business, the courts have oftentimes required that the claimant's injury be the result of an accident or some unusual occurrence or unexpected event that
could be traceable to the injury."^
This requirement has
led to a particularly harsh burden on heart attack claimants
because the claimant frequently had to show unusual strain
or overexertion along with a causal connection between this
job related strain or overexertion and the injury.
In
some cases if the job was normally strenuous, in order to
be compensable, the accident or unusual occurrence has to
25
be exceptionally strenuous for the injury to be compensable.
However, courts have varied in their interpretation of what
elements constituting the precipitating cause of the heart
attack are sufficient to deem the resulting injury a compensable accidental injury.
One of the first Texas cases dealing with a claim based
26
on a heart attack was Southern Casualty Company v. Flores.
The claimant's decedent had suffered a fatal heart attack
while walking up a sharp incline while on the job.
However,
the claim was denied after it was discovered that the
decedent had been suffering from an advanced case of syphillis
and the slightest physical exertion would have been an
8
invitation to death.
The court stated:
This case belongs to that class in which the
supposed injury comes from a hazard to which
the workman would have been equally exposed
apart from employment . . . The element of
causative danger peculiar to the work is
lacking. 27
The concept of an unusual strain or overexertion did not
arise as an issue.
However, the notion that the alleged
injury must be the result of a causative danger "peculiar"
to the job, added a further dimension to subsequent courts'
analysis of the elements necessary to show an "accidental"
injury stemming from an "unusual" occurrence.
A case where the court denied compensation for that
28
reason was Gorman v. American General Insurance Company.
The claimant's decedent, who had been employed as a janitor,
had a fatal heart attack while walking on a gradual slope
between two buildings.
The court stated that there was no
direct proof of overexertion or any strain that could be
traceable to a definite time and place.
The court reasoned
that Gorman could have had the attack just as easily walking
down the street.
The fact that it happened at work did not
establish a causal relationship between the injury and a risk
of the employment.
One authority insists that the basic difference between
compensable and non-compensable injuries caused by heart
attacks is that if the exertion causing the injury is "unusual"
under the facts and circumstances, the injury should be
262
9
compensable.
On the other hand, if there is no more than
29
ordinary exertion, it should not be compensable.
While
there are cases that have denied compensation based on this
general proposition, it is evident from the disparate opinions in heart attack cases that such a standard is inadequate.
To determine when an event should be deemed "unusual" and
what degree of strain should be judged as "over" exertion
under the facts and circumstances, places a great burden not
only on the claimant, but also on the courts.
Instead of
defining and clarifying this standard, the courts in granting
compensation have oftentimes broadened the standard to the
point of obsolescence or have ignored it altogether.
As will
be shown below, the use of this standard as a means of
defining "accidental" injuries has been diminished to merely
one of many factors in determining if there is a definable
injury traceable to a time and place within the scope of
the claimant's employment.
More recent cases have allowed compensation when there
has been proof that the claimant sustained an injury through
strain or exertion and there existed a causal relationship
30
between the injury and work-related activities.
In Aetna
Insurance Company v. Hart,"^ the court in surveying the
development of case law in this area stated:
We think the effect of the many decisions is that
if an injury is shown to have been received by an
employee while he is acting within the course of
his employment . . . it is compensable under the
Workmen's Compensation A c t . ^ 2
10
The first time the supreme court was faced with a
heart attack-stroke case was in Carter v. Traveler's
Insurance
C o . p a n v C ^ The claimant's decedent was a hotel .aid whcse
~
job routinely required her to lift and carry heavy loads and
move furniture.
Compensation was granted because there was
sufficient proof showing that the injury resulted from strain
and overexertion.
However, it should be noted that there was
no proof of unusual strain or overexertion beyond which her
job normally required.
It was sufficient in establishing
the causal relationship to show that the job was strenuous
and the decedent was often exhausted.
Cases which confronted or alluded to the issue of the
necessity of finding the strain or overexertion to be "unusual"
includes United States Fidelity and Guaranty Company v.
Herzik.^
Here, the claimant's late husband has been employed
as an oven loader at a local bakery.
The court acknowledged
testimony which described the work as not particularly
strenuous.
On the day of the heart attack there was no
evidence of unusual strain.
The insurance company argued in
effect that under these circumstances, compensation should
be denied.
The court in rejecting the insurance company's
argument gave an excellent example of a court broadening the
concepts of "unusual" and "strain" to a point of making them
inconsequential as a necessary standard in determining the
right to compensation.
The court stated:
262
11
Whatever the physical condition of the individual may be, if it is such that requires
some physical exertion or strain to cause the
rupture, the injury may properly be classed as
an accidental one. If lifting 100 pounds may
cause an accidental injury to one person, upon
what ground can it be said that a similar injury
to another person caused by lifting 50, pounds,
or 25 pounds, is not also accidental?
If that
is not true, then where shall we draw the line
between the differing physical condition or what
shall we adopt as a standard of weight in determining whether the injury is the result of an
accident or a disease?
It would not be satisfactory or logical to fix the standard at what
it would require to injure one in normal health,
for even people in normal health vary in physical
strength . . . since we cannot fix any standard
of condition, neither can we fix any standard of
sufficiency of cause operating upon the condition.
The legal principle is the same, whether the injury
results from lifting weights, as a can of paint,
or by some other form of physical o v e r e x e r t i o n . 3 6
Two other cases that allowed compensation although there
was no proof of unusual strain nor a causative danger peculiar
to the work are Midwestern Insurance Company v. Wagner
37
and
38
Pan American Fire and Casualty Company v. Reed.
cases involved truck drivers.
Both
In Wagner, the court found
that the employee suffered a fatal heart attack as a result
of strain or overexertion from climbing in and out of his
employer's truck on a cold damp day during the early hours of
the morning.
The defendant-insurance company attempted to
maintain the position that there was no evidence that Wagner
suffered a heart attack as a result of strain or overexertion.
The court held that "even mild exertion will quicken the heart
beat and place a greater strain on the heart than exists while
a person is not exerting himself and that the exertion in
262
12
evidence caused Wagner's death."
39
Obviously, Wagner could
have experienced the same mild exertion climbing in and out
of his personal truck on a cold damp morning.
deceased was found dead lying by his truck.
In Reed, the
He had apparently
been in the process of draining the pump on the. truck when
he had his fatal heart attack.
Here again there was no proof
that the injury was a result of a causative danger or risk
peculiar to the work, nor that draining the pump caused an
40
unusual strain which precipitated the heart attack.
In
finding a sufficient causal relationship between the injury
caused by strain and the employment, the courts seemed to
replace these latter two factors with a broader base for compensation as set out previously in Garcia v. Texas Indemnity
Company.^
The risk may be no different in degree or kind
than those to which he may be exposed outside
of his employment. THE INJURY IS COMPENSABLE,
NOT BECAUSE OF THE EXTENT OR PARTICULAR CHARACTER OF THE HAZARD BUT BECAUSE IT EXISTS AS
ONE OF THE CONDITIONS OF EMPLOYMENT. 4 2
Notwithstanding
this trend toward extending
compensation
for injuries caused by heart attacks, some of the same courts
in subsequent decisions stubbornly denied compensation when
the claimant failed to provide evidence that 1) the employee
sustained a job-related injury and 2) the cause of the injury
43
was due to strain and overexertion.
In O'Dell v. Home
Indemnity C o m p a n y , ^ the deceased had been employed as an industrial oilfield mechanic.
In denying compensation, the
235
13
court of civil appeals stated that merely showing the work
was strenuous, standing alone, was insufficient.
The court
reasoned that since there was neither a showing that the
deceased experienced strain or overexertion nor evidence
of a causal connection between the strain or overexertion
and the fatal heart attack, the claimant has failed to
sustain their burden.
Further there was no evidence that the
heart attack was related to any unusual strain or that the
deceased has performed any unusually strenuous work on that
day.^ ^
While 0'Dell was not overruled, the effect of its decision has been largely neutralized by the supreme court
46
decision in Henderson v. Travelers Insurance Company.
In this case, the claimant's decendent had been employed
as an "air tugger" which was described as strenuous work.
However, on the day of the fatal heart attack, no evidence
was presented attempting to show a particular exertion or
an unusual strain that acted as the precipitating cause
of the injury.
The court allowed compensation on what
might have previously been considered meager evidence.
The
court held that there was evidence that "Henderson had worked
a full shift doing a job that COULD often be strenuous in
nature." '
However, Henderson was not out of step with the
mainstream of earlier cases, but was merely an extension.
In an earlier decision the supreme court in Baird v. Texas
Employers' Insurance Association^ h a r e a f f i r m e d
262
a rule
14
established many years before in the Carter case when it
recognized:
. . . a heart attack caused by strain or overexertion is an accidental injury . . . and in
the very nature of these cases, the evidence
is most often largely circumstantial or based
on answers by medical witnesses to hypothetical
questions. 4 9
It is significant to note that the supreme court in both
Baird and Henderson found that these injuries were compensable accidental injuries; although deemed compensable
on the basis of CIRCUMSTANTIAL evidence. The effect of
these decisions is to broaden rather than limit the scope
of evidence that will satisfy the traditionally rigorous
burden of showing an injurious event traceable to a definite
time, place, and cause involving a risk of the employment.
A year before the Baird decision, the supreme court in
Olson v. Hartford Accident and Indemnity Company*^ denied
compensation because the claimant failed to show that the
alleged events resulting in the heart attack established
an accidental injury.
The court in Henderson distinguished
the claim in Olson which was based on a heart attack caused
by strain from mental stimuli, from the claim in its case
which was based on a heart attack caused by strain from
physical exertion.
While the courts have recognized heart attacks caused
by mental strain or psychic stimuli as compensable, the
basis and extent of recovery for non-impact, emotional or
51
mental injury remains somewhat nebulous.'
The development
15
of compensation for physical injuries or heart attacks caused
by psychic reaction to prolonged or instantaneous stress
and strain, and its effect on the scope of compensable heart
attacks, will be discussed below.
Psychic stimuli and accidental
injuries
It has long been the rule that damage to the physical
structure of the body need not necessarily be externally
visible to constitute a compensable injury.
52
In Hood v.
53
Texas Indemnity Insurance Company,
a step further.
the supreme court went
In this case, the claimant sustained an
injury to his left and right elbow and alleged that he
developed, as a proximate result of such injuries, a
disabling neurosis.
The court found that although the
neurosis was mental in origin, it was compensable
as a
54
disease that resulted from a physical injury.
However,
the case was generally perceived to be limited to such
mentally induced injuries resulting from physical injuries.
Traumatic neurosis, standing alone, was not considered
compensation"^ until the supreme court case of Bailey v.
American General Insurance Company.
The court held that
injuries to the nervous system should be included within the
meaning of "injury" as defined in Article 8306, Section 20,
even in the absence of other physical injuries; and as a
result constitute compensable damage or harm to the "physical
structure of the body."
The method and rationale of the
262
16
court in reaching this result has had far reaching
implica-
tions in litigation involving heart attacks caused primarily
by psychic stimuli.
For this reason, the case will be
discussed at length.
The claimant in the Bailey case had been employed as a
structural steel worker.
On the day of the accident, he
and another employee were working at opposite ends of a
movable scaffold suspended from the roof of a building.
One end of the scaffold gave way and the co-worker plunged
to his death.
Bailey managed to grab one of the cables and
swing to the roof of another building.
He suffered only
minoT injuries but the traumatic effect of the accident
resulted in a disabling neurosis which rendered it impossible
for him to return to that field of employment.
In finding
that such injuries caused by psychic or mental strain or
stress should be included within the meaning of injury as
defined in Section 20 the court said:
The phrase 'physical structure of the body,'
as it is used in the statute, must refer to
the entire body, not simply to the skeletal
structure or to the circulatory system or to
the digestive system.
It refers to the whole,
to the complex of perfectly integrated and
interdependent bones, tissues, and organs
which function together by means of electrical,
chemical and mechanical processes in a living,
breathing, functioning individual. To determine what is meant by 'physical structure of
the body' the structure should be considered
that of a living person--not as a static,
inaminate thing.5/
The court went on to make a distinction between damage and
harm:
262
17
We cannot assume that either the word 'damage'
or 'harm' is extraneous.
Some difference must
have been intended . . . Damage embraces direct
physical injury to a cell, tissue, organ or organ
system; 'harm' to the physical structure of the
body embraces also impairment of use or control
of physical structures directly caused by the
accident . . . 'Harm' with reference to a living
active structure--as a body is--in fact means
essentially that the structure no longer functions
as it should.58
Bailey set up the basic framework in which claims for psychic
induced injuries have been litigated.
jected any mind-body dichotomy.
In summary Bailey re-
It proposed that "physical
structure of the body" must refer to the entire body, not only
as an anatomical structure, but also as a complete functioning
unit.
If this anatomical structure failed to function as
it should then that impairment of use or control of the structure should be considered harm, if the harm resulted from a
psychic reaction to an untoward undesigned event involving a
risk of the employment.
The court in Bailey stated is should
be as readily compensable as any similar physically induced
injury.
One of the first Texas cases dealing with a psychic
59
induced heart attack was Aetna Insurance Company v. Hart.
The appellate court affirmed the trial court's holding granting compensation.
The injury resulted solely from an
emotional stimulus produced by an incident with a customer.
The claimant, who had worked at a laundry cleaners, recognized
this particular customer as he approached the door as the
one who had previously been very rude and abrasive.
262
The man
18
lived up to his reputation on this occasion, using abusive
language toward the claimant and frightening her by his
conduct.
Immediately after he left, she suffered a stroke
causing total and permanent disability.
The insurance
company argued that since the incident precipitating the
stroke created no greater hazard than those to which the
claimant would have been exposed outside of the employment,
it was not a compensable accidental injury.
The court in
rejecting the insurance company's argument stated that the
claimant's burden is to prove that ,she received an injury
while in the performance of her duties:
What the law intends is to protect the employee
against the risk or hazard taken in order to
perform the master's task. 6 0
It did not matter to the court that she could have been
exposed to similar hazard outside of the employment, it
was only significant that she received the injury as a result
of a hazard in the employment.
The principles applied in Hart as well as the court's
rationale in reaching the opinion that Hart had suffered
a compensable accidental injury is, within its factual
limits, very much in line with heart attack cases precipitated
by physical strain or exertion previously discussed.
In each
case, the court found through direct or circumstantial evidence an injurious event traceable to a definite time, place,
and cause involving a risk of the employment.
However, the broadening scope of compensable heart
attacks precipitated by psychic stimuli and strain was
6X
slowed by the supreme court in Olson.
The court held that
Olson did not suffer a compensable accidental injury allegedly
caused by three or four irritating or frustrating experiences
on the job over a 19 day period prior to his attack.
The
court stated that no attempt was made to connect any of the
incidents to his heart attack and therefore the cause could
not be "accidental" since it was not traceable to a definite
time, place, and cause.
Unlike Bailey and Hart where the
claimant established a causal relationship between the injury
and a particular instantaneous on the job event, Olson's
claim was based on a series of job connected incidents over
an extended period of time which had the cumulative effect
of causing stress precipitating the heart attack.
The
court refused to recognize this circumstantial evidence as
establishing a sufficient causal relation between the injury
and a job-related event.
The dissent in Olson charged that
the majority opinion would effectively rule out compensable
heart attacks unless the claimant could show that the injury
was traceable to an isolated precipitating event.
This burden
was not realized in the subsequent
supreme court decisions
(33
Baird
and Henderson.
As has already been discussed,
Baird acknowledged that proof of a casual connection was
often circumstantial or based
64 on answers by expert witnesses
to key potential questions.
In Henderson, compensation
was granted on evidence that the deceased's job COULD have
242
JLrV
20
C
been strenuous.
The effect of Olson in light of these
subsequent decisions in understanding the burden the claimant
has in establishing a compensable physic induced heart attack
is unclear.
Neither case overruled Olson, but to the contrary
ruled that the precipitating cause of the injuries in their
cases fell within the definition of compensable accidental
injury as set out in Olson.
One explanation for this apparent
discrepancy is found in the opinion of the court of civil
66
appeals in Olson
which distinguished the facts in Bailey
and Hart.
The court went on to state:
. . . an examination of the cases that deal with
injuries resulting from shock, fright and other
conditions not of traumatic origin, seem to require that there be MORE OF A DIRECT CAUSAL CONNECTION in that the injury was immediate, substantial, and obviously connected with the
incident.6 7
This rationale was echoed in Henderson as the court
distinguished its facts from the facts of Olson.
However,
only a superficial reading of these cases might leave the
impression that psychic induced injuries as in Olson are
not compensable as accidental injuries when the injury is
not traceable to a particular precipitating
event.
job-related
The effect of Henderson and Baird on the Olson
decision is to recognize that circumstantial evidence is
sufficient to establish an accidental injury if the court
can find a causal relationship between the injury and jobrelated stress and exertion.
Although the injuries in
Bailey and Hart were traceable to a particular event
262
21
thereby making circumstantial evidence
inconsequential;
the courts stood for much broader principles.
"Harm" was
defined to mean that the body no longer functioned as it
should, and that if the harm arose from a risk or hazard
of the employment it was compensable.^
The supreme court
in Bailey as already discussed rejected any dichotomy between physically induced harm and psychic induced harm.
The court in Hart went on to say that it did not matter
that the claimant could be exposed to a similar hazard
outside of employment but what was significant was that the
claimant received the injury as a result of a hazard exist69
ing in the employment.
The supreme court's holding in
Olson denied compensation because the claimant failed to
prove through direct or circumstantial evidence an injurious event traceable to a definite time, place, and cause
involving a risk of the employment.
Olson is illustrative
of a problem common in many claims based on psychic induced
injuries in which the court is unable to find a causal connection between the events, and any RISK or HAZARD that
might exist in the employment.
A case to illustrate this problem is Havse v. Seaboard
70
Fire and Marine Insurance Company.
Hayse alleged that he
had suffered an accidental injury in the course of his
employment resulting from a belief he was loosing his job
due to his supervisors' actions one morning at work.
Com-
pensation was denied because Hayse failed to show that the
262
22
alleged injury was of a kind and character that had to do
with or originated in the employer's work, trade, business
or profession.
The court stated:
To hold that worry and anxiety over job loss is
'connected with what a workman has to do in performing his contract would be in our opinion not
reasonable' . . . (The injury) was related to
Hayse's mental and emotional state over an incident
and. not job-related.^
In other words, the incident which gave rise to the emotional
stimulus that precipitated the- erratic heart rate was merely
a personal one and not connected with what he had to do in
performing his contract of service.
In Olson, the incidents allegedly precipitating the
heart attack were job related.
As a well logger, Olson was
required to keep accurate and close schedules of logging of
drill cutting as the well progressed.
The incidents which
occurred separately over a 3 week period which interferred
with the tight schedule this type of job required.included:
1) the order to change the log entries identifying the type
of formation, 2) unclogging a drain carrying the drill cuttings,
3) clearing an incoming cutting line; and 4) the malfunctioning
of an important detecting device.
Olson's claim could not
have been summarily dismissed as incidents of merely a personal
nature that were not connected with what he had to do in
performing his contract of service.
The dissent in 01son
charged that the heart attack was "caused by a work induced
state of mind" which "is a compensable injury to the same
72
extent as one caused by physical strain.
The majority
insisted that compensation must be denied because the injury
did not fall within the confines of an accidental injury
traceable to a definite time and place.
In light of the 1971
revisions of Article 8306, Section 20, it would have been
interesting to see if Olson might have been granted compensation under the new broader definition of occupational diseases
which provides compensation for job related injuries notwithstanding the inability of the claimant to prove an injurious
event traceable to a definite time, place, and cause.
The Reforms of 1971 and the Compensability
of Heart Attacks
In a spirit of reform tempered perhaps with compromise,
the Texas Legislature rewrote Section 20 of Article 8306
eliminating the antiquated system of listing compensable
occupational diseases and replacing it with a comprehensive
73
definition designed to broaden its scope.
Also significant,
was the repeal of several sections in Article 8306 which
removed many of the barriers to compensation for occupational
diseases.
Section 25 had limited occupational diseases to
certain infirmities and required that in most cases the
incapacity had to result within one year after exposure to
the cause or recovery would be barred.
Section 26 contained
special provisions for recovery in cases of silicosis and
asbestosis.
Section 27 limited compensation to only the
74
acute phases of certain allergies or diseases.'
24
As discussed earlier, before the reforms, there were
many cases where the afflictions could not satisfy the
restrictions of occupational diseases and could not be
classified as an accidental injury.
75
In Frazier v.
76
Employers Mutual Casualty Company,
the claimant suffered
a spasmodic torticollis resulting from an accelerating
work load and increased responsibilities over a two year
period.
In denying compensation, the court showed the
inadequacies of the workmen's compensation laws in this
area:
To hold that appellant (Frazier) under these
facts, has sustained an injury, or an accidental injury, under our Workmen's Compensation law would be to disregard the distinction
which the Legislature has made between an injury and a disease emanating from an occupation
. . . Under the evidence appellant has contracted a disease, at least partly, from the
work in which she engaged. As to her work, it
is an occupational disease.??
Another case where the claim was based on an industrial
disease which was not one of the enumerated
occupational
78
diseases, was Haley v. Texas Employers Insurance Association.
Here the claimant had suffered from tuberculosis which was
accelerated and aggravated by inhalation of grain dust over
a two year period at his place of employment.
The court
concluded that since the action arose prior to the 1971
Legislative reforms, tne jury's failure to find accidental
79
injury was fatal to the plaintiff's cause.
The 1971 amendments eliminated many of these deficiencies
262
25
and brought Texas in line with, a majority of jurisdictions
80
which provide compensation for all occupational diseases.
The meanings of the terms "Injury" and "Personal Injury" remained the same after the 1971 revision of Section
20.
However, occupational diseases were now to be considered
compensable injuries in so far as the affliction arose out
of the employment:
The statute provided:
Whenever the term 'Occupational Disease' is used
in the Workmen's Compensation Laws of this State,
such term shall be construed to mean 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.81
Significantly, in view of cases like Frazier, Haley, and
perhaps Olson, the legislature added:
An 'Occupational Disease' shall also include
damage or harm to the physical structure of the
body occurring as the result of REPETITIOUS
PHYSICAL TRAUMATIC ACTIVITIES EXTENDING OVER A
PERIOD OF TIME AND ARISING IN THE COURSE OF
EMPLOYMENT: provided, that the date of the cumulative injury shall be the date disability was
caused thereby.
As will be subsequently discussed, controversy has arisen
over the proper construction and application of the phrase
"repetitious physical traumatic activities."
Finally, to keep the new provisions within the
traditional framework of the Workmen's Compensation Laws
the legislature concluded the revised section stating:
262
26
ORDINARY DISEASES OF LIFE to which the
general public is exposed outside of the
employment SHALL NOT BE COMPENSABLE, except
where such diseases follow as an incident
to an 'Occupational Disease' or 'Injury' as
defined in this s e c t i o n . 8 3
In an amendatory note, the Legislature perhaps tempered
its fervid spirit of reform by stating:
It is the express intent of the Legislature
in enabling this act that nothing contained
in this act shall ever be deemed or considered
to limit or expand recovery in cases of mental
trauma accompanied by physical trauma.
Authorities have split over the proper import of this note
especially concerning the compensability of cumulative in85
juries resulting from mental trauma.
One authority
has
construed the statement to have reemphasized what he
interprets as the statutory limitations of occupational
diseases resulting from cumulative injuries to repetitious
PHYSICAL traumatic injuries.
His position is that prior
to the 1971 reforms .injuries traceable to a specific precipitating cause was compensable as an accidental injury.
The
enumerated list of occupational diseases was to assure compensation for certain cumulative injuries, all of which
were physically induced.
The new provision now allows all
"physical" traumatic injuries that are cumulative by nature
and job-related to be compensable as occupational diseases.
He argues that since mentally induced incapacities have
never been compensable as occupational diseases; the legislature, by their amendatory note, intended for there to be
262
262
27
no change as to compensation for cumulative injuries
resulting from mental trauma thereby limiting cases like
Bailey and Hart to the confines of accidental
injuries.^
To substantiate this rationale some of these authorities
maintain that the second part of the definition of occupational disease is not disjunctive from the rest of the
definition but the phrase "shall also include" means that
the definition must be construed as a whole.
The significance
of this position is that it would not only eliminate mental
stimuli as an alleged cause of a cumulative injury; since
arguable such injuries all to be limited to repetitious
PHYSICAL traumatic activities only; but mental stimuli
would be eliminated as a possible cause of any occupational
disease.
87
Other authorities
insist that this legislative note
effectively minimize what might otherwise have been a
harsh and stiffling impact on the development of law in
this area, and therefore allows the statute to retain
38
certain flexibility as the law develops.
Their contention
is that prior to the 1971 amendments an injured employee
who was inflicted with a disease not specified in the statute
was denied compensation not because he did not have an
occupational disease, but because it failed the "accidental
injury" test.
This was true regardless if the injury was
physically induced or psychic induced.
the same.
Both were treated
The event precipitating the injury had to be
28
traceable to a time, place, and cause.
These authorities
maintain that occupational disease now has practically the
same definition as accidental injuries.
This in effect
allows compensation for these injuries as occupational
diseases whether they are physically or psychic induced
injuries.
The rationale continues that now the principles
set out in Bailey and Hart need no longer be confined to
accidental injuries.
Therefore, infectious 'diseases, cumulative
injuries psychic injury cases, neuroses, and
heart attacks are now compensable whether they
are caused by infections, mental stress, physical
stress, aggravation, or the cumulative effects
of either. All are 'injuries' under the Bailey
construction and 'injury' simply means that the
body no longer functions properly.
If it had
arisen slowly and gradually it would have been
an 'occupational disease.'
If it had been traceable to a definite time, place, and cause, it would
have been an 'accidental i n j u r y , ' 9 0
The impact of the revisions to Section 20 on the compensability of occupational disease is not yet clearly
developed.
Many claimants still tend to base their claims
on the more familiar grounds of accidental injuries, rather
than to venture out into the uncertainties
surrounding
these new provisions of occupational diseases.
One case that construed the revised section broadly
91
was Charter Oak Fire Insurance Company v. Hollis.
The
claimant, a boilermaker, alleged that as a result of inhaling
toxic substances on a particular occasion as well as those
he had been exposed to over twenty years of employment in
29
that capacity, had the cumulative effect of rendering him
totally and permanently disabled.
The court in affirming
the trial court's judgement granting compensation asserted
that claiment's allegation was proper under the revised
Section 20.
The insurance company argued that the afflictions
of the claimant which included arteriosclerosis,
thrombophlebitis,
and general venous insufficiency were "ordinary diseases of
life" and hence not compensable.
The court disagreed and
stated that whi1e there was no medical testimony that established that in reasonable medical probability claimant's
disability was caused by the one event or the cumulative
effect of prior exposure, it was no longer necessary under
the revised statute to prove either an event traceable to a
definite time, place, and cause or a listed occupational
97
disease. "
The opinion in the Hollis case is significant if
a trend is developed blurring the traditional distinction
between claims for accidental injury and occupational diseases.
Although a claimant who alleges that he has suffered a
cumulative injury may not under the revised Section 20 be
burden with tracing the injurious event to a definite time,
place, and cause; he must nevertheless establish a causal
connection between the injury and events or conditions
arising out of the employment.
Some jurisdictions require that a cumulative injury
absent an exceptional injury causing event, must be
262
30
accompanied by physical force or exertion to be compensable.
93
A major of jurisdictions now hold to the contrary.
The United States Court of Appeals for the District of
Columbia in Hoage v. Royal Indemnity Company
94
in construing
95
pertinent sections of the D.C. code
sustained a claim for
total disability resulting from a heart attack allegedly
caused by overwork over a nine-month period.
The claimant,
an insurance adjuster, had been under the strain of .a
gradually increasing workload and had suffered fatigue,
headaches, insomnia, and heart burn from the job pressures
and long hours.
Eventually, he suffered a heart attack
at his desk. The court in sustaining the claim stated:
We think the testimony . . . tends to show
that (the claimant) by reason of mental strain,
worry, and long excessive hours of labor suffered a collapse . . . His case is comparable
to that of a manual laborer whose heart collapses
as a result of a long, continued physical strain
or overwork resulting from excessive exertion.
The Supreme Court of Mississippi in Insurance Department
97
of Mississippi v. Dinsmore
recognized that mental and
emotional strain from an employee's work was a factor contributing to her disability.
In finding that proof of
hypertension from mental and emotional exertion was
sufficient to establish a causal connection the court
reasoned that it is "unthinkable" to accept physical exertion
as causative, but reject as accidental, a disability
98 proximately resulting from mental and emotional strain."
The similarities between the sections in the California
nrq
31
Code dealing with cumulative injuries and occupational
diseases and Texas' revised Section 20 is worth noting.
Section 3208 of the California Code states:
Injury includes any injury or disease arising
out of the employment . . . 99
Section 3208.1 entitled "specific or cumulative injuries" states:
An injury may be either: (a) 'specific' occurring
as the result of one* incident or exposure which
causes disability or need for medical treatment
or (b) 'cumulative,' occurring as repetitive
mental or physically traumatic activities extending over a period of time, the combined effect of
which causes any disability or need for medical
treatment; provided, however, that the date of
the cumulative injury shall be the date of
disability caused thereby. 100
Compensation for cumulative injuries has long been recognized
in California.
In stating the proper framework for establish-
ing the causal connection, one court declared:
We think the proposition irrefutable that while
a succession of slight injuries in the course
of employment may not in themselves be disabling,
their cumulative effect in work effort may become
a destructive force. The fact that a single but
slight work strain may not be disabling does not
destroy its causative effect, if in combination
with other such strains, it produces a subsequent
disability.
The single strand, entwined with
others, makes up the rope of causation. 101
Like Mississippi and the District of Columbia, California
awards compensation for cumulative injuries caused by psychic
in?
stress and strain.
Most jurisdictions appear to draw no
distinctions between the burdens of proof of physical and
psychic induced
injuries.
262
32
At least one authority finds a glaring contrast between
the California code that includes repetitive "MENTAL OR
PHYSICALLY TRAUMATIC ACTIVITIES" as causes of cumulative
injuries, and the Texas statute that only includes "repetitious
PHYSICAL traumatic activities." 1 0 5
Perhaps the Texas
Legislature in bringing this state into the mainstream with
most jurisdictions in recognizing compensable cumulative
injuries nevertheless intended to remain one of the last
bastions for denying compensation for cumulative injuries
resulting from mental or emotional strain.
However, at
least one recent case indicates that this may not be the
situation in Texas afterall.
104
Transportation Insurance Company v. Maksyn,
is one
of the first cases clearly dealing with the compensability
of non-impact emotional or mental injury.
The claimant
was employed as an advertising service manager for a city
newspaper for 28 years.
He claimed to have suffered an
anxiety depression, caused by pressures of his employment and
this disease caused numbness of the hands and feet, high
blood pressure, and vertigo.
In appealing an adverse
judgement, the insurance company alleged that: 1) there
was no evidence of any physical activities which would
produce an occupational disease; 2) that since the claimant
only showed mentally traumatic activities there was no
evidence that he suffered repetitious PHYSICAL traumatic
activities; 3) that the claimant's anxiety depression was
33
a non-compensable ordinary disease of life; and 4) that there
was no causal connection between the alleged physical
activities and defendant's occupational disease.
In re-
jecting the appellant's arguments, the court concluded that
there was ample evidence of physical and mental activities to
satisfy claimant's burden under the revised section to prove
he had suffered damage or harm to the physical structure of
the body that cuminated into an occupational disease.
The
court cited the Bailey case to support claimant's position
that injuries caused by psychic stimuli are compensable as
harm to the body which no longer functions as it should.
The court refused to accept the appellant's contention that
injury in the Bailey case should be distinguished since
the cause of the injury was from a single event while the
injury in this case allegedly occurred over an extended
period of time from a slow buildup of stressful activities.
The court continued:
We see very little justification for a holding
that a claimant can recover for a neurosis
occasioned by one traumatic experience, but
cannot recover for a similar neurosis caused
by a number of such traumatic experiences. 105
In commenting on the claimant's burden of proof in such
cases the court stated that there must be evidence of
probative force to show a causal connection between the
employment and the occupational disease so as to distinguish
the affliction from an "ordinary disease of life."
To
satisfy this burden the court asserted, the disease may be
262
34
"indigenous to the claimant's work or present in an increased
degree in that work as compared with employment generally.
The court found a causative connection between the defendant's
anxiety depression and the cumulative strain of his work.
The long range influence of this recent decision on
subsequent courts' construction of Section 20, and its impact
on the development of cumulative injuries resulting from
psychic stimuli as compensable occupational disease is as of
yet unclear.
However, it is apparent that this court has
taken a bold step in leading the way to providing in Texas
for all work-induced
injuries.
Compensability of Heart Attack and
Social Considerations
The reaction of most employers and insurance carriers
of workmen's compensation to the Maksyn decision is that it
will open a "Pandora's Box" and they will be subject to
fradulent and frivolous claims.
Many argue that heart
attacks are not known to be caused by one simple stressful
event, or even several stressful events.
simply the triggering mechanism.
The event is
The fact that there can
be several contributing causes to heart disease, a series
of frustrating or stressful on the job events caused by
mental or emotional stimuli should not be held as arising
107
out of the course of employment.
Hoivever, medical science
recognizes that mental disorders and diseases can result
262
35
from work-related events or conditions through physical or
psychic causes.
Arguably, it belabors the question of com-
pensability to ask if harm done to the physical structure
of the body is physically or psychic induced when probative
evidence shows it is work-induced.
103
The key to satisfying the burden of proof in cumulative
injury claims is to establish through probative evidence
a causal connection between the occupational disease and a
work-related precipitating cause or causes.
Recognizing
that Baird and Henderson both acknowledged that oftentimes
such evidence is circumstantial or based on answers from
hypothetical questions from medical testimony, it has
been suggested that evidence sufficient to satisfy claimant's
burden should come from the standard set in Maksyn or from
expert medical testimony.
The elements for compensable
occupational disease in the Maksyn opinion require that the
disease be indigenous to the claimant's work or present in
an increased degree in that work.
This standard was proposed
by a recognized scholar in workmen's compensation law,
n
r
a t Larson. 109
Professor
A.
Professor Larson's position is that the disparity
between the rationale of heart attack cases has been caused
at least in part, by the courts oftentimes strained logic
in identifying an "unusual" strain in the course of employment that precipitated the injury.
An "unusual" strain is
relative to the work situation and health of the claimant.
36
Because of the relative nature of "unusual" strain many
cases have allowed compensation when there was no more
X10
than routine stress and exertion.
Larson's proposed
solution is a "positional risk" doctrine.
It has been
designed to attempt to bring consistency in determining
if the occupational disease arose out of the employment
because of an "actual" risk inherent in the job.^"*"
As
applied to heart cases the rule would be:
If there is some personal causal contribution
in the form of a previously weakened or diseased
heart, the employment contribution must take the
form of an exertion greater than that of nonemployment life . . .
If there is no personal causal connection, . . .
any exertion connected with the employment and
causally connected with the collapse as a matter
of medical fact is adequate to satisfy the legal
test of causation . . .
The claimant must also show that medically the
peculiar exertion contributed causally to the
heart attack . . . 112
The court-made overexertion test and Larson's "positional
risk" doctrine apply to heart attacks and strokes only.
The distinction between the burden of proof in heart attack
cases arid other claims for accidental injuries or occupational
diseases has been the fear that heart cases would get out of
control unless some kind of arbitrary boundaries were set.
However, such a distinction is unfair in light of the fact
that no extra burden is placed on other physical injuries
where the processes of disease and mechanical process of the
injury are similar to heart attacks.
One such injury is a
back injury resulting from a disc herniation.
262
There is no
37
special requirement that the claimant show an "unusual"
strain that caused the accident.
Any cause will suffice.
This is true although it is recognized that herniated disc
are often the end result of a lifelong degenerative process
113
and the event which causes the injury could happen anywhere.
Such proof of a special or unusual strain or "higher risk"
should not be a prerequsite to compensation for work-induced
heart attacks.
In establishing the causal connection, courts have in
many cases depended heavily on expert medical testimony. 1 1 ^
However, special problems have arisen as to the standards
used for establishing causal connections by the medical
concept of cause and the necessary legal causative connection.
Medically, "the cause" may be considered "that activity or
agent without which a condition would not have
appeared.^
Legally "the cause" is the factor or element that "plays a
role in bringing about a result sooner than ordinarily
would be expected . . ."
The medical expert in determining the "cause" of the
heart attack takes into consideration many factors.
These
factors include: the personality of the individual (i.e., is
he high strung or easy going?) and how that type of
personality might react to a stimulus; the habitual and
routine physical activities
(i.e., was he regularly involved
in repetitious strenuous physical activities?); the medical
history of the person (i.e., did he have a developing heart
O
60
38
ailment and this effect upon "the cause"); the time interval
between the exposure to the potential stimulus and the
117
heart attack; and so on.
Inherent in these factors are
considerations for "unusual" stress and strain and "higher
risk."
Since such factors are inherent in a medical expert's
determination of the "the cause" of the heart attack, to
require the claimant to establish "unusual" strain or
"higher risk" as an element in the legal "cause" beyond
that which the medical expert has already considered, would
place an unreasonable burden on the claimant.
There should
be no special burden of proof placed upon a claimant who has
suffered a heart attack in establishing a compensable claim
as long as there is sufficient probative evidence to establish
a causal relationship between the injury and a hazard or condition within the employment.
The claimant should be able
to establish probative evidence by showing
(1) that the
disease or particular event is indigenous to his work and
that it was the precipitating cause of his injury or (2)
expert medical testimony that "the cause" of the disease
or injury was related to his employment.
The latter part of Section 20 states that "ordinary
diseases of life to xvrhich the general public is exposed outside of employment shall not be compensable."
The proper
emphasis initiated by the legislature is on broadening the
compensation of work related injuries as "accidental" or
118
as "occupational diseases." As the court said in Garcia:
39
"The injury is compensable . . . because it exists as one of
the conditions of the employment."
Heart attacks should
likewise be compensable even when the risk may be no
different in degree than that to which a claimant may be
exposed outside of his employment as long as he can show that
the precipitating cause or causes were work-induced.
When a claimant is shown to have had a heart attack and
one of the factors making him susceptible to the attack was
"an ordinary non-compensable disease of life to which the
general public is exposed,"
a total defense to recovery.
such proof should not act as
The Legislature in its revision
119
of Article 8306, conspiciously left in tact Section 22
which allows a proportional reduction of the total compensation
for an occupational disease aggravated by any non-compensable
disease.
This is a more equitable and proper solution as
the scope of compensability occupational diseases broadens, for
it protects the employee's right to compensation for workinduced injuries, and at the same time protect the employers
from liability of injuries arising outside of the employment.
262
FOOTNOTES
1.
TEX. LAWS 1947, ch. 113, §20.
"Section 20. Wherever the terms 'injury' or 'personal
injury', are used in the Workmen's Compensation Law of
this state, such terms shall be construed to mean damage
or harm to the physical structure of the body and such
diseases or infection as naturally resuly therefrom.
Unless from the context the. meaning is clearly to the
contrary, such terms shall also be construed to mean
and include occupational diseases, as hereinafter defined. The following diseases only shall be deemed to
be occupational diseases:
"(a) Posioning by:
(1) Aluminum Trioxide; (2) Arsenic;
(3) Benzol or its homologues and derivatives; (4) Beryllium; (5) Cadmium; (6) Carbon Bisulphode; (7) Carbon Dioxide; (8) Carbon Monoxide; (9) Chlorine; (10) Cyanide;
(11) Formaldehyde; (12) Halogenated Hydrocarbons; (13)
Hydrochloric Acid; (14) Hydrofluroic Acid; (15) Hydrogen Sulphide; (16) Lead; (17) Manganese; (18) Mercury;
(19) Methanol (Wood Alcohol); (20) Methanol Chloride;
(21) Nitrous Fumes; (22) Nitric Acid; (23) Petroleum
or Petroleum Products; (24) Phosphorus; (25) Selenium;
(26) Sulphuric Acid; (27) Sulphur Dioxide; (28) Sulphur
Trioxide; (29) Tellurium; (30) Thallium; (31) Zinc;
"(b) Anthrax caused by handling of wool, hair, bristles,
hides and skins;
"(c) Blisters caused by prolonged or repeated use of
tools or mechanical appliances;
"(d) Synovitis, Tenosynovitis, or Bursitis due to an
occupation involving continual or repeated pressure on
the parts affected;
"(e) Chrome ulceration;
"(f) Compressed air illness;
"(g) Dermatitis, that is, inflammation of the skin
due to oil, cutting compounds or lubricants» dust, liquids,
fumes, gases or vapors;
"(h) Diseased condition caused by exposure to x-rays
or radioactive substances;
"(i) Diseased condition of the eyes due to electric
arc and welding, and cataract in glass workers;
"(j)
(Epitheliomatous cancer) or ulceration of the
skin or corneal surface of the eye caused by tar, pitch,
bitumen, mineral oil or paraffin or any compound, product or residue of any of these substances;
"(k) Glanders and other diseased conditions caused by
handling any equine animal or the carcass of any such
animal;
"(1) Infections or contagious disease contracted in the
course of employment in or in immediate connection with
a hospital or sanatorium in which persons or animals suffering from such disease are cared for or treated;
"(m) Nystagmus incurred in underground work;
"(n) Ansestosis;
"(o) Silicosis."
2.
Hartford Accident and Indem. Co. v. Olson, 466 S.W.2d 373,
375 (Tex. Civ. App. 1971), Aff'd. 477 S.W.2d 859 (Tex. 1972) .
3.
Hood v. Texas Indem. Ins. Co., 146 Tex. 522, 209 S.W.2d
345 (Tex. 1948).
Sartwelle, Workmen's Compensation, 29 Sw. L.J. 183, 184
(1975).
—
4.
Cases where claimant denied recovery for diseases allegedly job related:
Hadley v. Texas Employer's Ins. Ass'n., 487 S.W.2d 369
(Tex. Civ. App. 1972, writ ref'd n.r.e.).
Olson v. Hartford Accident and Indem. Co., 477 S.W.2d
859 (Tex. 1972).
Hartford Accident and Indem. Co., v. McFarland, 433 S.W.2d
534 (Tex. Civ. App. 1968, writ ref'd. n.r.e.).
Employer's Mut. Liab. Ins. Co. of Wisconsin v. Parker,
418 s'.W. 2d 570 (Tex. Civ. App. 1967), aff'd,. 440 S.W.2d
43 (Tex. 1968) .
Frazier v. Employer's Mut. Cas. Co., 368 S.W.2d 955 (Tex.
Civ. App. 1963), writ ref'd. n.r.e.).
5.
TEX. REV. CIV. STAT. ANN. art. 8306, 120 (Supp. 1978).
Sec. 20. Wherever the terms "Injury" or "Personal
Injury" are used in the Workmen's Compensation Laws of
this State, such terms shall be construed to mean damage
or harm to the physical structure of the body and such
diseases or infections as naturally result therefrom.
The terms "Injury" and "Personal Injury" shall also be
construed to mean and include "Occupational Diseases,"
as hereinafter defined. Whenever the term "Occupational Disease" is used in the Workmen's Compensation Laws
of this State, such term shall be construed to mean any
disease arising out of and in the course of employment
which causes damage or harm to the physical structore
of the body and such other diseases or infections as naturally result therefrom. An "Occupational Disease"
shall also include damage or harm to the physical structure of the body occurring as the result of repetitious
physical traumatic activities extending over a period
of time and arising in the course of employment; provided, that the date of the cumulative injury shall be
the date disability was caused thereby. Ordinary diseases
of life to which the general public is exposed outside of
the employment, shall not be compensable, except where
such diseases follow as an incident to an "Occupational
Disease" or "Injury" as defined in this section.
6.
H.R. COMM. ON JUDICIARY, 62d Leg., REPORT ON S.B. 265,
at 4 (April 21, 1971).
7.
TEX. REV. CIV. STAT. ANN. Art 8509, §1 (1925).
8.
American Gen. Ins. Co. v. Smith, 163 S.W.2d 849 (Tex.
Civ. App. 1942, error ref'd.).
Aetna Life Ins. Co. v. Harris, 83 S.W.2d 1087 (Tex. Civ.
App. 1935 , no writ).
Employers' Liab. Assurance Corp., Ltd. v. Flint, 14 S.W.2d
1046 (Tex. Civ, App. 1929, writ ref'd.).
Buchanan v. Maryland Cas. Co., 288 S.W. 116 (Tex. Comm.
App. 1926).
Texas Employers' Ins. Ass'n. v. Jackson, 265 S.W. 1027
(Tex. Comm. App. 1924).
9.
Maryland Cas. Co. v. Broadway, 110 F.2d 357 (5 Cir. 1940).
Texas Employers' Ins. Ass'n. v. Hilderbrandt, 80 S.W.2d
1031 (Tex. Civ. App. 1935, error granted).
Gordon v. Travelers' Ins. Co., 287 S.W. 911 (Tex. Civ.
App. 1926, writ ref'd.).
Aetna Life Ins. Co. v. Graham, 284 S.W. 931 (Tex. Comm.
App. 1926).
10.
Gordon v. Traveler's Ins. Co., 287 S.W. 911 (Tex. Civ.
App. 1926, writ ref'd.).
11.
Hood v. Texas Indem. Ins. Co., 209 S.W.2d 345 (Tex. 1948).
Huffman v. Southern Underwriters, 128 S.W.2d 4 (Tex. 1939).
12.
Traders and Gen. Ins. Co. v. Rooth, 268 S.W.2d 539 (Tex.
Civ. App. 1954, writ ref'd. n.r.e.)
Texas Employers' Ins. Ass;n. v. Robinson, 241 S.W.2d 339
(Tex. Civ. App. 1951, writ ref'd. n.r.e.).
Texas Employers' Ins. Ass'n. v. Wade, 197 S.W.2d 203 (Tex.
Civ. App. 1946, writ ref'd. n.r.e.).
13.
Salinas v. New Amsterdam Cas. Co., 67 F.2d 829 (5th Cir.,
1933) .
Henderson v. Travelers' Ins. Co., 544 S.W.2d 649 (Tex.
1976) .
Pan American Fire and Cas. Co. v. Reed, 436 S.W.2d 561
(Tex. Civ. App. 1969, writ ref'd. n.r.e.).
Hartford Accident and Indem. Co. v. Gant, 246 S.W.2d 359
(Tex, Civ. App. 1961, no writ).
Carter v. Travelers' Ins. Co., 120 S.W.2d 581 (Tex. 1938).
14.
Hood v. Texas Indem. Co., see note 3.
15.
Southwestern Sur. Co. v. Owens, 198 S.W. 662 (Tex. Civ.
App. 1917, writ ref'd.).
16
Solomon v. Massachusetts Bonding and Ins. Co., 347 S.W.2d
17 (Tex. Civ. App. 1961, writ ref'd.).
Frazier v. Employers' Mut. Cas. Co., 368 S.W.2d 955 (Tex.
Civ. App. 1963, writ ref'd. n.r.e.).
17
TEX. LAWS 1947, see note 1.
18
Barron v. Texas Employers' Ins. Ass'n., 36 S.W.2d 464 (Tex
Comm. App. 1931).
Buchanan v. Maryland Cas. Co., 288 S.W. 116 (Tex, Comm.
App. 1926).
19
Other diseases held not compensable:
see note 4.
20
Whitaker v. General Ins. Co. of America, 461 S.W.2d 148
(Tex. Civ. App. 1970, writ ref'd. n.r.e.
Southern Cas. Co. v. Flores, 1 S.W.2d 260 (Tex. Comm.
App. 1928).
21
Massachusetts Bonding and Ins. Co. v. Massey, 123 F.2d 447
(5th Cir. 1942).
Employers' Cas. Co. v. Smith 221 S.W.2d 322 (Tex. Civ. App
1949, writ ref'd. n.r.e.).
see also
Hartford Accident and Indem. Co. v. Gant, note 13.
Traders and Gen. Ins. Co. v. Rooth, note 12.
22
South Carolina, Pennsylvania, New Jersey, Idaho, Maryland, Minnesota, Virginia, Michigan, Missouri, Ohio, Louisiana, Florida, North Carolina, and New Hampshire.
23
Maryland v. Rogers, 86 S.W.2d 867 (Tex. Civ. App. 1935,
writ ref'd.).
see also:
Maryland Cas. Co. v. Broadway, note 9.
Hartford Accident and Indem. Co. v. Olsen, note 2.
24
See cases, note 4.
25
0'Dell v. Home Indem. Co., 449 S.W.2d 485, 487 (Tex. Civ.
App. 1969, writ ref'd. n.r.e.).
26.
Southern Cas. Co. v. Flores, see note 20.
27,
Id. at 261.
28 .
Gorman v. American Gen. Ins. Co., 179 S.W.2d 814 (Civ.
App. 1944), writ ref'd. w.m.).
29.
Sartwelle, Workmen's Compensation, 30 Sw. L.J. 213, 247
(1976).
~
30,
Henderson v. Travelers' Ins. Co., see note 13.
31
Aetna Ins. Co. v. Hart, 315 S.W.2d 169 (Tex. Civ. App.
1958, writ ref'd. n.r.e.).
32
Id. at .172-3.
33
Traders and Gen. Ins. Co. v. Rooth, see note 12.
34
See cases note 13.
35
United States Fidelity and Guar. Co. v. Herzik, 359 S.W.2d
914 (Tex. Civ. App. 1962, writ ref'd. n.r.e.).
36
Id. at 919.
37
Midwestern Ins. Co. v. Wagner, 370 S.W.2d 779 (Tex. Civ.
App. 1963, writ ref'd. n.r.e.).
38
Pan American Fire and Cas. Co. v. Reed, see note 13.
39
Midwestern Ins. Co. v. Wagner, see note 37 at 782.
40
Pan American Fire and Cas. Co. v. Reed, see note 13 at
563 .
41
Garcia v. Texas Indem. Co., 209 S.W.2d 333 (Tex., 1948).
42
Id. at 337.
43
Travelers' Ins. Co. v. Smith, 448 S.W.2d 541 (Tex. Civ.
App. 1969, writ ref'd. n.r.e.).
Monks v. Universal Underwriters' Ins. Co., 425 S.W.2d 431
(Tex. Civ. App. 1968, writ ref'd. n.r.e.)
44
O'Dell v. Home Indem. Co., see note 25.
45
Id.. at 48 7.
46
Henderson v. Travelers' Ins. Co., see note 13.
1
44 /
Ld. at 654.
48
Baird v. Texas Employers' Ins. Ass'n., 495 S.W.2d 207 (Tex.
1973).
49,
Id. at 211.
50
51,
52.
Olson v. Hartford Accident and Indem. Co., see note 4.
Spivey, Workmen's Comp. Corner: injuries without impact
under workers*1 comp., 13 Texas Trial Law F . '38 (July-September, 197 81 .
American Gen. Ins. Co. v. Ariola, 187 S.W.2d 585 (Tex.
Civ. App. 1945, writ ref'd. w.m.).
267
53
Hood v. Texas Indem. Co., see note 3.
54
Id. at 348.
55
Walker, Recovery for Injuries to the Nervous System Under
the Texas Workmen rs~TTompensation Act, IX Baylor L. Rev.
144 , 145 (19 5 7 J .
56
Bailey v. American Gen. Ins. Co., 279 S.W.2d 316 (Tex.
1955) .
57
Id. at 318.
58
Id. at 319.
59
Aetna Ins. Co. v. hart, see note 31.
60
Id. at 174.
61
Olson v. Hartford Accident and Indem. Co., see note 4.
62
Baird v. T.E.I.A., see note 48.
63
Henderson v. Travelers' Ins. Co., see note 13.
64
See Baird v. T.E.I.A., note 49.
65
See Henderson v. Travelers' Ins. Co., note 47.
For other cases where compensation allowed notwithstanding the absence of an isolated precipitating cause see
also:
Commercial Standard Fire and Marine Co. v. Thornton, 540
S.W.2d 521 (Tex. Civ. App. 1976, writ ref'd. n.r.e.).
Transport Ins. Co. v. McCully, 481 S.W.2d 948 (Tex. Civ.
App. 1972, writ ref'd. n.r.e.).
66
Hartford Accident and Indem. Co. v. Olson, see note 2.
67
Id.
68 .
Bailey v. American Gen. Ins. Co., see note 58.
69,
Aetna Ins. Co. v. Hart, see note 60.
70 , Hayse v. Seaboard Fire and Marine Ins. Co., 562 S.W.2d
282 (Tex. Civ. App. 1978, no writ).
71,
7 2 , Olson v. Hartford Accident and Indem. Co., see note 4 at
862.
73.
H.R. COMM ON JUDICIARY, see note 6.
268
74
TEX. REV. CIV. STAT. ANN. Art. 8306 §§25-27 (1947).
75
Gorman v. American Gen. Ins. Co., see note 28 at 816,
76
Frazier v. Employers' Mut. Cas. Co., see note 4.
77
Id. at 959.
78
Haley v. T.E.I.A., see note 4.
79
80
Texas Workmen's Compensation — Changes in Occupational
Disease, 9 How L. Rev 597 (1971).
81
Art. 8306 §20, s_ee note 5.
82
83
84
TEX. LAWS 1971, ch. 834, §5 at 2540.
85
Thomas P. Sartwelle, B.B.A., L.L.B. The University of Texas. Attorney at Law, Houston, Texas.
86
2 9 Sw. L.J, at 183-8. see note 3.
87
Broadus A. Spivey, J.D. The University of Texas, Attorney at Law, Austin, Texas, see note 51.
Victor L. Terry, B.S. Rice University; L.L.B., J.D. Baylor University, Attorney at Law, Garland, Texas, see note
89.
88
See Spivey's article, note 51.
89
Terry, Occupational Disease and Cumulative Injury, 8 Texas Trial Law.F. 5,4-5 (April-June, 1974).
90
Id.
91
Charter Oak Fire Ins. Co. v. Hollis, 511 S.W.2d 583 (Tex.
Civ. App. 1974, writ ref'd. n.r.e.).
92,
Id. at 584.
93,
Ayer v. Industrial Comm'n, 531 P.2d 208 (Ariz. Ct. App.
197 5) ,
Messerx v. Georgia-Pacific's Corp., 293 So.2d 615 (La,
Ct. App. 1974) .
94.
Hoage v. Royal Indem. Co., 90 F.2d. 387 (D.C. Cir. 1937).
95,
D.C. CODE ENCYCLOPEDIA ANN. §36-501, §13.
269
"Occupational Diseases — The term 'injury' includes such
occupational diseases or infections as arise naturally
out of employment or as naturally or unavoidably results
from an accidental injury."
96
Hoage v. Royal Indem. Co., see note 94 at 390.
97
Insurance Dep't. of Mississippi v. Dinsmore, 102 So. 2d
691 (Miss. 1958).
98
Id. at 694.
99
Cal. Lab. Code §3208 (Supp. 1977).
100
Cal. Lab. Code §3208.1 (Supp. 1977).
101
Beveridge v. Industrial Accident Comm'm., 346 P.2d 545
(Cal. Ct. App. 1959) .
102
Turner v. Southern Cal. Edison C., 117 Cal. Rpt. 358 (Ct
App. .1974).
Lumberman's Mut. Cas. Co. v. Industrial Accident Comm'm.
175 P.2d 823 (Cal. 1946).
103
2 9 Sw. L.J, at 183-8, see note 3.
104
Transportation Ins. Co. v. Maksyn, 561 S.W.2d 845 (Civ.
App. 1978 , no writ).
105
Id. at 848-9.
106
Id. at 851.
107
29 Sw. L.J, at 187, see note 3.
108
9 Hou L. Rev, at 601, see note 80.
109
1A A. LARSON, THE LAW OF WORKMEN'S COMPENSATION §41.00
(1973) .
110
See cases note 13.
111,
1A A. LARSON, 138.81-83, see note 109 supra.
112,
Id. at §38.83.
113,
30 Sw. L.J, at 246, see note 29.
114,
Transport Ins. Co. v. McCully, see note
Pan American Fire and Cas. Co. v. Reed,
Midwestern Ins. Co. v. Wagner, see note
United States Fidelity and Guar" Co. v.
35 .
270
65.
see note 13.
3~7.
Herzik, see note
115.
Report of the Committee on Stress, Strain, and Heart
Disease—American Heart Association, 55 Circulation No. 5 (may, 1977).
= = = = = =
116.
Id.
117.
Id.
118.
Garcia v. Texas Indem. Co., see note 42.
119.
TEX. REV. CIV. STAT. ANN. Art. 8306 §22 (1947).
50