International Insurance Co. v. Archuleta

OPINION

WARD, Justice.

This appeal is from a judgment based upon a jury verdict awarding permanent partial benefits in a worker’s compensation case. Because of the failure of the pleadings to raise the issue of partial incapacity, we reverse and remand for a new trial.

Aurora Archuleta was working in the restaurant at the El Paso Auto-Truck Stop on August 10, 1977, when she slipped in some water and fell with her right knee folded underneath her. The restaurant manager, Georgia Underwood, heard her scream, saw her on the floor, and testified Mrs. Archule-ta only complained about hurting her right knee. Mrs. Archuleta continued to work regularly until November, 1977, when she was hospitalized with complaints of pain in her back. She had some arthritic problems prior to this accident. A doctor who examined her in July, 1978, diagnosed her condition as a compression fracture at the twelfth dorsal vertebra. The jury found that she sustained a 75% reduction in her average weekly earning capacity which was permanent. It found that she sustained no total incapacity.

Appellant’s first four points of error assert for differing reasons that it was error to permit Appellee to seek and recover partial incapacity benefits. Since Appellee, by pleading “to recover $77.00 per week for 401 weeks,” sought the maximum allowed by law and did not plead in the alternative for any recovery for less than total and permanent benefits, Appellant asserts there is no pleading to support the entry of a judgment for permanent partial benefits. He relies on Rule 301, Tex.R.Civ.P., and the cases which hold that total and partial incapacity cannot exist at the same time and that a finding of one such condition excludes a finding of the other. Counsel for the compensation carrier objected to the series of issues on partial incapacity “ * * * for the reason that there are no pleadings of any kind seeking recovery for partial incapacity. There being no pleadings, there is no support for the submission to the jury.”

This issue must be resolved under the holding in Select Insurance Company v. Boucher, 561 S.W.2d 474 (Tex.1978). The opinion in that case pointed out that “Thomas Boucher sought workmen’s compensation solely under the theory of total incapacity. Select Insurance Company pleaded partial incapacity as a defense.” The same type pleading exists in our case. Mrs. Archuleta pleaded for total incapacity benefits and International Insurance Company alleged her incapacity was partial. In Boucher, the Supreme Court said:

In the case at bar the trial court was not presented with two alternate grounds of recovery. The only ground of recovery was presented by the plaintiff Boucher, and that ground was total incapacity.

The court then reasoned that the issues requested by the carrier as to partial incapacity were inferential rebuttal issues which are prohibited by Rule 277, Tex.R.Civ.P. Following that decision, this Court held in Texas Employers’ Insurance Association v. Marsh, 567 S.W.2d 832 (Tex.Civ.App.—El Paso 1978, no writ), that unanswered special issues inquiring as to partial incapacity should not have been submitted in that case where the worker pleaded only total and permanent incapacity.

There are numerous older cases which have said that in a compensation case an employee having pleaded total disability could, if the evidence raised it, recover for partial disability without the necessity of having specially pleaded partial disability. Southern Underwriters v. Boswell, 138 Tex. 255, 158 S.W.2d 280 (1942); Texas General Indemnity Company v. Savell, 348 S.W.2d 202 (Tex.Civ.App.—San Antonio 1961, no writ). Those cases do not make mention of the requirement in Rule 301 that the judgment must conform to the pleadings, and were all decided before the holding in Boucher that a pleading of total incapacity presents only one theory of recovery and not the alternate theories of both total and partial incapacity.

The effect of the Boucher decision is discussed in Nations, “Pitfalls in Pleading a Workers’ Compensation Case for the Claimant”, 19 S.Tex.L.J. 415 at 425 and 426 (1978), where the author says:

In cases where a general injury may have caused both total and partial incapacity, the attorneys must be cognizant of the significance of pleading these inca-pacities alternatively. The Texas Supreme Court decision in Select Insurance Co. v. Boucher is illustrative. * * * The clear effect of this holding is that a special issue as to partial incapacity may not be submitted to the jury unless presented as an alternative ground of relief in the injured worker’s petition.

If there is any possibility of any degree of partial incapacity, the well advised claimant’s attorneys should plead and prove alternatively for total and partial incapacity.

Since Rule 277, Tex.R.Civ.P., requires the trial court to “ * * * submit the cause upon special issues controlling the disposition of the case that are raised by the written pleadings * * * ” and in this case there are no alternative pleadings for partial incapacity, it was error for the trial court to submit the special issues inquiring about the claimant’s partial incapacity over the Appellant’s objection. Further, without such proper pleadings it was error to enter judgment based upon such findings. Rule 301, Tex.R.Civ.P. We sustain Appellant’s Points of Error One and Two.

In view of the necessity for a new trial, we note briefly other issues which may arise upon another trial. We conclude that proof of notice of a specific injury may be sufficient to permit a claimant to recover for a general injury. Texas Indemnity Ins. Co. v. Bridges, 52 S.W.2d 1075 (Tex.Civ.App.—Eastland 1932, writ ref’d). But depending on the proof, the issue of notice may be one for the jury. We also conclude that Appellee can offer Appellant’s admission that she said at a given time and place that she was ready, willing and able to work. That testimony goes to the heart of the issue concerning her incapacity and her ability to obtain and retain employment.

The judgment of the trial court is reversed and the case is remanded for a new trial.