This is an appeal from a summary judgment granted in a worker's compensation case. The pivotal question presented before this court involves the interpretation of TEX.REV.CIV.STAT.ANN. art. 8307, § 4a, in conjunction with TEX.REV.CIV.STAT.ANN. art. 8307, § 7 and § 7a. We reverse and remand for a trial on the merits.
Fred and Louise Masuccio brought suit as beneficiaries of their daughter, Laura Annette Masuccio, to set aside a finding by the Texas Industrial Accident Board that Laura was not acting within the course and scope of her employment at the time of her death. The Masuccios filed suit in district court 22 months after Laura's fatal injury against appellee The Standard Fire Insurance Company. We must decide whether the trial court acted properly in granting appellee's motion for summary judgment based on appellant's failure to file its Notice of Fatal Injury and Claim for Compensation of Death within the statutory one year period required by TEX.REV.CIV.STAT.ANN. art. 8307, § 4a (Vernon 1988).1
Laura Masuccio was employed by Figure World, Inc. in San Marcos, Texas. On December 5, 1983, she attended a business meeting related to her employment in San Antonio, Texas, that adjourned at 10:15 p.m. At approximately 3:00 a.m. on December 6, 1983, prior to returning home to New Braunfels, she was involved in a fatal automobile accident on State Highway 16 near San Geronimo, Texas. In July, 1985, appellants filed their claim for workers' compensation benefits with the Industrial Accident Board. The Board subsequently found that the evidence failed to establish that the deceased was within the course and scope of her employment at the time of her death. Appellants then filed suit to set aside the Board's finding. Appellees moved for summary judgment based on appellant's failure to timely file their claim in accordance with § 4a. The trial court granted appellee's motion and this appeal ensued.
Section 4a requires that a claim for compensation be filed within one year after the death of the employee. Generally, a claimant or beneficiary who fails to comply with the statute is barred from further recovery. See Lee v. Houston Fire andCasualty Ins. Co., 530 S.W.2d 294, 295-96 (Tex. 1975). However, the Texas Workers' Compensation Act affords a claimant, in cases of noncompliance, two alternatives: (1) the finding of "good cause" in meritorious cases which would operate to waive strict compliance with the one year requirement and, (2) the tolling of the one year limitation period until the employer files a Section 7 Report of Injury with the Industrial Accident Board, which in this case was filed by appellee on February 28, 1986. *Page 856 Appellants advance both of these theories in their contention that the trial court erred in granting summary judgment. We will address the consequences of the tolling provisions of § 7a which is dispositive of this case. TEX.R.APP.P. 90(a).
Article 8307, § 7 provides in pertinent part:
[E]very subscriber shall keep a record of all injuries, fatal or otherwise, sustained by his employees in the course of their employment. After the occurrence of an accident resulting in an injury to an employee, causing his absence from work for more than one (1) day, or after the employee notifies the employer of a definite manifestation of an occupational disease, a written report thereof shall be made within eight (8) days following the employee's absence from work and notice thereof to the employer or notice of manifestation of an occupational disease to the Board on blanks to be procured from the Board for that purpose. (Emphasis added.)
Under this section, in cases of accidental injuries, including fatal ones, the time for filing a report runs from the date of the injury rather than from receipt of notice.See Lowe v. Pacific Employers' Indemnity Co., 559 S.W.2d 370, 371 (Tex.Civ.App. — Dallas 1977, writ ref'd n.r.e.). In Lowe, the court found that the legislative intent behind § 7 was to limit the required reports to accidents which appear from the outset to be sufficiently serious that a claim may be anticipated.Id. at 372. By requiring a report of injury to be made by an employer only in cases where the employee is injured "causing his absence from work for more than one day" the legislature contemplated that a report be made only in instances of a "reasonably potential compensable injury."See Id.
Section 7a requires that when the association or subscriber has knowledge of an injury or death of an employee and fails, neglects, or refuses to file a report as required by § 7, the limitation in § 4a, with respect to filing a claim for compensation, shall not begin to run against the claim of the employee or his dependents entitled to compensation until the report is furnished.
When read together, the effect of § 7a is to toll the time for filing a worker's or beneficiary's claim in cases where an employer's first report of injury is required under § 7. See Smith v. Home Indemnity, 683 S.W.2d 559, 564-65 (Tex.App. — Fort Worth 1985, no writ).
When Laura Masuccio did not return to work as a result of the fatal injuries, it became incumbent upon her employer to file a § 7 report with the Board if there was a reasonable expectation of a claim for compensation. Appellee circularly argues that because the Industrial Accident Board later found that the deceased was not acting within the course and scope of her employment at the time of her death, it had no duty to file a report in the first instance. This contention is without merit. Appellee mistakenly assumes that because of the Industrial Accident Board's finding, it acted properly in not notifying the Board of Laura Masuccio's fatal injury, because it was not, in their view, a potentially compensable injury. We do not read Lowe and its progeny to grant an employer the unilateral final authority of deciding which injuries are potentially compensable. If the employer has such authority, there is not need for § 7a, which tolls the provisions of § 4a. Because the legislature anticipated that some employers might not always follow the requirements of § 7, they provided the protections to the employees under § 7a. Further, whether an employee is in the course of employment is ordinarily a question of fact for the jury to decide, and each case must turn on its own particular facts.North River Insurance Co. v. Purdy, 733 S.W.2d 630 (Tex.App. — San Antonio 1987, no writ); StandardFire Insurance Company v. Rodriguez, 645 S.W.2d 534, 540 (Tex.App. — San Antonio 1982, writ ref'd n.r.e.).
The rationale behind the decision in Lowe was that because the legislature required a report to be filed in situations where an injury causes the employee to be absent from work for more than one day within the eight day period after the accident, *Page 857 under normal circumstances, the injury should be considered sufficiently serious so as to anticipate a claim for compensation.2 Here, Laura Masuccio never returned to work after the accident. Her death, which occurred on a business trip associated with her employment, was sufficiently serious so as to reasonably anticipate a claim for compensation, although a valid fact question existed as to course and scope of employment.3 Simply because the Board found in a later proceeding that Masuccio's fatal injury was not compensable does not warrant prior noncompliance by the employer with § 7. The employer here had the duty to file the report and the failure to do so triggered the application of § 7a which tolled § 4a.
The dissent asserts that as a matter of law, Laura Masuccio was not in the course and scope of her employment when she died in the accident. In so doing, the dissent acknowledges (1) that Laura Masuccio lived in New Braunfels and worked in San Marcos; (2) that she was on a business trip to San Antonio on behalf of her employer the night of the accident; (3) that the fatal accident took place before she returned to her home in New Braunfels; and (4) that although the meeting officially adjourned at 10:15 p.m. in San Antonio, it is unknown from the record what she did until the time of the accident. These circumstances, acknowledged by the dissent, raise a valid fact question as to scope and course of employment which should be decided by a jury. Standard Fire Ins. Co., supra.
To justify a finding as a matter of law that Laura Masuccio was not in the scope and course of her employment when she died, a number of impermissible assumptions must be made. It must be assumed that she did nothing during the time the meeting officially adjourned until the time of her death that would form a basis for finding that she was in the scope and course of her employment when she died. Although the possibility exists that a jury may eventually find that she was not in the course of her employment when she died, this record simply does not provide all the facts to justify finding, as a matter of law, that Laura Masuccio was not in the course of her employment at the time of her death.
To sustain a summary judgment before this Court, appellee is required to show that no issue of fact exists. City ofHouston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex. 1979); Fillion v. David Silvers Co., 709 S.W.2d 240, 246 (Tex.App. — Houston [14th Dist.] 1986, writ ref'd n.r.e.). However, because we find that § 4 is tolled and that an issue of fact concerning course and scope of employment exists, appellee has failed in his burden, and the summary judgment must be reversed.
The judgment of the trial court is reversed and the cause is remanded for a trial on the merits.
Lowe, supra at 371.