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Johnson v. Triple Industrial Corporation3/23/2000
ting the findings of the designated doctor.
Since the Insurance Company of Pennsylvania on behalf of Mobil Oil Corporation has separated Mr. Johnson's injuries in two separate and distinct claims, the dispute by the carrier is appropriate.
Rather than have to attend a Benefit Review Conference in this matter, it would seem the Commission could reschedule a designated doctor appointment and advise this physician to address the injury in question which is Mr. Johnson's neck.
The claimant is currently receiving ongoing treatment to his back which is a separate claim which occurred on January 31, 1996.
If it is possible for the Commission to return Mr. Johnson to the designated doctor to have his January 25, 1996 neck injury evaluated, please advise accordingly.
Again, indulging all reasonable inferences in favor of appellants and against appellees, we believe it reasonable to infer that Ms. Visnoski's letter set out above was merely an attempt to play by rules already set out by Mobil so as to get Larry's neck injury some medical attention.
Based upon the record before us examined in the light of proper summary judgment review we cannot say that the appellee has proven each element of its affirmative defense of election of remedies. While the record does contain evidence that appellants referred to Larry's injuries by separate occurrence dates, we cannot say that this is proof of the element that appellants exercised an "informed choice," or that this is proof that appellants have taken two "manifestly unjust" or "unconscionable," "inconsistent" "states of facts." See Bocanegra, 605 S.W.2d at 851. The fact that on January 31, 1996, Larry experienced lower back pain while lifting a bucket on the job cannot operate as an estoppel by election of remedies when he later, after extensive medical treatment on his back and neck, takes the position that the lower back injury occurred, rather than first manifested itself, on January 25, 1996. We therefore find that the trial court abused its discretion in granting appellee's motion for summary judgment because appellee failed to prove its affirmative defense of estoppel by election of remedies as a matter of law. Issue one is sustained. The summary judgment is reversed and this cause, alleging Larry's lower back injury, is remanded to the trial court for further proceedings.
REVERSED AND REMANDED.
Submitted on February 22, 2000
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