Second Motion for Rehearing
With reference to good cause excusing notice and claim required by Art. 8307, Sec. 4a, the incisive second motion for rehearing filed in behalf of the Industrial Accident Board makes the point that Parker’s lack of knowledge of the Second Injury Fund and its coverage is a mistake of law on his part. It then points out that a mistake of fact, that is, want of knowledge that an employer had provided compensation insurance for his employee's, is the subject of the case cited in the original opinion, dealing with good cause prior to the 1923 amendment, and that such case is not determinative of a mistake of law case such as this.
The merit of such contention and questions associated or arising out of it need not be discussed, and are to be disregarded because this case may be remanded for another reason. . The record indicates that *196•Parker may have been unaware of the fact that he was permanently and totally incapacitated by the dismemberment involved. There is evidence that medical opinions were rendered to him, by his own physician and by a medical examiner selected by the Board, that the injury to his foot resulted in only 70% disability to that member. Prior to filing formal claim in affidavit form on October 1, 1958, no medical practitioner had advised him otherwise. After settlement with the insurance carrier he returned to his employer and presented himself for work, but was denied employment. From the facts in the record it appears that it was after being rejected, the exact date not appearing, that he began to realize his condition made him unemployable, and that in fact he was permanently and totally disabled to perform the ordinary duties of a workman, etc. Further development of the facts regarding the, time he knew, or as an ordinarily prudent man should have known, the true nature of his incapacity should be developed.
It has frequently been held that a workman’s ignorance of the nature or extent of his injury, especially where he relies upon the opinion of his employer’s physician or for other reasons believes that his injury is trivial and not calculated to be disabling, is good cause for failure to give notice or make claim, provided he acts promptly in this respect when he discovers his error. See Maryland Casualty Co. v. Cobb, 5 Cir., 131 F.2d 603; Texas Employers’ Ins. Co. v. Jones, Tex.Civ.App., 70 S.W.2d 791, affirmed Tex.Com.App., 128 Tex. 437, 99 S.W.2d 903, op. adopt.; Commercial Standard Ins. Co. v. Hayes, 135 Tex. 288, 142 S.W.2d 897; affirming Hayes v. Commercial Standard Ins. Co., Tex.Civ. App., 140 S.W.2d 250; Consolidated Underwriters v. Pruitt, Tex.Civ.App., 180 S. W.2d 461, wr. ref.; Hartford Accident & Indemnity Co. v. Jackson, Tex.Civ.App., 201 S.W.2d 265, wr. ref.; Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S. W.2d 370. By analogy, Parker’s good faith belief that he was not permanently and totally incapacitated, if it is found such was his belief, would excuse his failure to notify the Board and make claim, if after realization that the combined effect of the loss of his arm and foot rendered him permanently and totally incapacitated, he promptly gave notice and made claim in substantial compliance with the directions of Sec. 4a, Art. 8307.
The order for remand has strong support in Williams v. Safety Casualty Co., 129 Tex. 184, 102 S.W.2d 178, op. adopt. The failure to appeal from the order of the Industrial Accident Board within twenty days from its rendition as directed by Art. 8307, Sec. 5, would account for the absence of an order of remand in Industrial Accident Bd. v. Guidry, Tex., 345 S.W.2d 509.
The Second Motion for Rehearing is respectfully overruled.