I reluctantly concur in affirmance of that portion of the trial court judgment which provides as follows:
"(2) That Plaintiff, Arthur R. Chappell, do have and recover judgment against Texas Employers Insurance Association for workmen's compensation benefits in the lump sum of Fifteen Thousand Three Hundred Fifty-Five Dollars Seventy Seven Cents ($15,355.77), which is the amount of compensation at the rate of Thirty-Five Dollars ($35.00) per week for a period of four hundred one (401) weeks, commencing November 29, 1962, together with interest thereon as provided by law for accrued payments through October 10, 1971, and with due allowance for compensation for twenty-four (24) weeks, six (6) days, at the rate of Thirty-Five Dollars ($35.00) per week, totalling Eight Hundred Seventy ($870.00) Dollars."
However, I respectfully dissent as to that portion of the judgment which provides as follows:
"(3) That the Plaintiff recover judgment against Texas Employers Insurance Association for medical expenses in the amount of $3,726.75."
I would sustain appellant's points 3, 4, 5 and 6 reading as follows:
"POINT THREE
"The Court erred in awarding plaintiff judgment for $3726.75 in medical expense, it being undisputed that the plaintiff had not paid any part of such medical expenses, was not responsible for the payment of such medical expenses, and that the payment of such medical expenses had been guaranteed by Insurance Company of North America.POINT FOUR
The error of the Court in awarding recovery for medical bills in absence of a finding by the jury that Texas Employers' Insurance Association had been made aware of the necessity for medical treatment by reason of the injury of November 29, 1962, at a time prior to the incurring of such medical bills, and a jury finding that Texas Employers' Insurance Association had refused, failed or neglected to furnish such treatment.POINT FIVE
The Court erred in entering judgment for the plaintiff for medical bills in the amount of $3726.75 in absence of a jury finding that such medical expenses were incurred subsequent to the date upon which Texas Employers' Insurance Association was made aware of the plaintiff's necessity for medical treatment.POINT SIX
The Court erred in entering judgment for the plaintiff for medical bills, the undisputed evidence being that all such medical expenses were either paid by the Insurance Company of North America or payment thereof had been guaranteed by the Insurance Company of North America, and by the terms of the plaintiff's agreement with the Insurance Company of North America this suit against Texas Employers' Insurance Association was instituted for the benefit of the Insurance Company of North America and not for the benefit of the plaintiff in contravention of public policy."
The evidence reflects that plaintiff-appellee worked for United Carbon Company, later known as Ashland Oil and Chemical Company, from March 1944 until June 11, *Page 827 1969, except for two periods of time in 1955 — 1956 and 1962 — 1963 during which he was injured and recovering from injuries. After another injury on June 11, 1969 Chappell did not return to work.
Chappell was off work for more than a year following an injury in 1955. Before then he had worked as a 'black puller' doing heavy work. When he returned to work in 1956, Chappell was assigned to lighter work in the bathhouse. Chappell suffered another injury on November 29, 1962. He first was sent to Dr. L. M. Draper who was Chappell's family doctor as well as his Employer's (Company) doctor. Dr. Draper referred Chappell to Dr. Upshaw who treated Chappell, including performance of an operation, from November 29, 1962 until April 23, 1963. Dr. Upshaw referred Chappell to Dr. Klotz, a neurosurgeon, for examination on April 5, 1963. Appellant, Texas Employers' Insurance Association, sometimes hereafter TEIA, was the insurance carrier for Chappell's employer in connection with his 1962 injury. On April 23, 1963, Dr. Upshaw released Chappell to return to work. Chappell then resumed work on the same job. TEIA closed its file and later ceased to be the Workmen's Compensation carrier for Chappell's employer.
In 1969, when Chappell suffered an injury, the workmen's compensation carrier for the employer (then Ashland Oil and Chemical Company) had been changed to Insurance Company of North America, sometimes hereafter referred to as INA. TEIA was not made aware of the incident of June 11, 1969 until November 6, 1969. On that date a representative of INA called a claims representative of TEIA and indicated that INA was furnishing medical treatment for Chappell and wanted to know if TEIA was interested in contributing.
The record reflects that Chappell filed an amended notice and claim for compensation with the Industrial Accident Board in connection with his injury of June 11, 1969, which reflected that the Employer's Liability Carrier was INA; that he was sent to a doctor and hospital by his employer or his insurance company. The name and address of the doctor was shown to be 'Dr. L. M. Draper, Wilson Bldg., Corpus Christi, Texas.'
The doctors who treated Chappell in 1969 did so for INA. Their reports were not addressed to TEIA. On May 22, 1970 Chappell and INA entered into a compromise-settlement agreement which was approved by the Industrial Accident Board on May 29, 1970. Medical expenses were covered as follows: Insurance Company of North America had paid medical expenses of $971.20 and had guaranteed medical expenses of $2755.55. Under the terms of the compromise-settlement agreement, Paragraph '(c)', page 2, Insurance Company of North America agreed not to look to the appellee for repayment of the $971.20 already paid in medical bills, even if the appellee should recover those in his suit against Texas Employers' Insurance Association. In other words, the appellee is under no obligation to pay that amount of medical bills and is under no obligation to repay INA for same. The award of the Industrial Accident Board and the compromise-settlement agreement between Chappell and INA were not admitted in evidence for the jury but only for consideration by the court. The action of the trial court in excluding such evidence was timely objected to by appellant.
It was agreed that medical treatment was rendered to Chappell subsequent to June 11, 1969, in the total sum of $3726.75, and of this amount $971.20 was paid by INA and by compromise-settlement agreement INA was also obligated to pay the remainder of these medical expenses which are not recovered by Chappell in his suit against TEIA.
The trial court entered judgment for Chappell which, among other things, allowed him to recover as against Texas Employers' Insurance Association the total sum of $3726.75, being the entire amount *Page 828 of his medical expenses including that previously paid by INA and that portion which had been guaranteed by INA. The effect of this judgment is that Chappell recovers $971.20 in medical expenses which he did not pay and INA is relieved of its conditional obligation to pay the remaining $2755.55 in medical expenses.
Special Issue No. 14 was the only issue submitted by the Court concerning the cost of medical services. No issue was submitted which inquired as to notice being provided to Texas Employers' Insurance Association and no issue was submitted which inquired as to Texas Employers' Insurance Association's refusal, failure, or neglect to furnish such medical services. The trial court refused to submit issues concerning notice to TEIA or its failure to provide medical services in the face of proper objections to the charge complaining of the omission of those issues. TEIA provided medical services following Chappell's injury on November 29, 1962, until he returned to work on April 23, 1963. For a period of about six years Chappell required no further medical services. Then, on June 11, 1969, Chappell began to incur medical expense in a substantial amount without notice to TEIA and without giving it an opportunity to provide such medical services. The record shows that medical services were being provided Chappell and being paid for or guaranteed by INA. stArticle 8306, Sec. 7, V.A.C.S., provides that:
". . . The employee shall not be entitled to recover any amount expended or incurred by him for said medical aid, hospital services, nursing, chiropractic services, or medicines, nor shall any person who supplied the same be entitled to recover of the association therefor, unless the association or subscriber shall have had notice of injury and shall have refused, failed or neglected to furnish it or them within a reasonable time. . . ."
The evidence presented in this case shows that TEIA was not notified that the plaintiff was in need of medical attention following the incident of June 11, 1969, until sometime after November 6, 1969, and then such notice was provided by a representative of INA. When notice was received by TEIA in November 1969, it was apparent that medical services were being provided for the plaintiff by INA, that such medical services had been provided by INA since July 11, 1969, and that INA intended to continue furnishing medical services to Chappell.
There is no jury finding that TEIA, after proper notice, refused, failed or neglected to furnish medical services or medical treatment to the plaintiff following the incident on June 11, 1969, nor is such refusal, failure or neglect conclusively established by the evidence. In fact, it would have been impossible for Texas Employers' Insurance Association to have refused to furnish medical services without notice of the necessity of the same.
Under the circumstances shown to exist here, I believe that it is unreasonable to charge TEIA with liability for expenses involved in the treatment of Chappell when it did not have notice of the incident of June 11, 1969, particularly after the lapse of six years from the time Chappell returned to work in 1963 and without any further request or notice from him to TEIA that he needed medical treatment for his injuries of November 29, 1962.
It also appears that there is no finding by the jury as to which of the bills incurred after June 11, 1969, either paid or unpaid, were incurred prior to November 6, 1969. I would hold that absent notice to TEIA before that date concerning such medical bills, TEIA cannot be held liable for such medical expenses under the terms of the Texas Workmen's Compensation Act. Even if it be assumed that TEIA failed to pay medical bills after notice, such assumption cannot be entertained as to the expenses incurred prior to November 6, 1969. *Page 829 Appellant objected to the submission of Special Issue No. 14 specifically on these grounds. In order for appellee to carry his burden as to medical expenses in connection with his 1962 injury, an issue should have been submitted to the jury as to which bills were incurred prior to November 6, 1969, and which bills were incurred after that date. Without such a finding by the jury, it is impossible to determine what amount of medical expenses, if any, were incurred after the notice.
Appellant's position concerning its non-liability for medical expenses in this case is supported in principle by the cases of Few v. Charter Oak Fire Insurance Company, 463 S.W.2d 424 (Tex.Sup. 1971); Liberty Universal Insurance Company v. Gill,401 S.W.2d 339 (Tex.Civ.App., Houston 1st Dist. 1966, wr. ref. n.r.e.); Travelers Insurance Company v. Garcia, 417 S.W.2d 630 (Tex.Civ.App., El Paso 1967, wr. ref. n.r.e.); Jones v. Pacific Employers Insurance Company, 416 S.W.2d 580 (Tex.Civ.App., Eastland 1967, wr. ref. n.r.e.).
It is apparent from the facts of the instant case that the judgment entered against Texas Employers' Insurance Association for $3,726.75 covering medical services rendered subsequent to June 11, 1969, causes a grave injustice. Those medical bills and medical services were either paid or guaranteed by the Insurance Company of North America, the subsequent insurance carrier for the same employer. The plaintiff himself ultimately was neither responsible for those medical bills nor did he actually pay those medical bills himself. To allow the plaintiff to recover such an amount, even if evidence and findings were obtained showing that Texas Employers' Insurance Association had notice of the necessity for such medical services and failed to provide them, would permit the plaintiff a double recovery, which is clearly opposed to the intention of the Texas Workmen's Compensation Act.
For the reasons stated, I concur in affirmance of the judgment to the extent hereinbefore stated and I dissent as to the award of medical expenses in the amount of $3,726.75. I would reverse and render judgment in favor of appellant as to the last-stated amount.