Court of Appeals of Texas, Beaumont.

SISTERS OF CHARITY OF THE INCARNATE WORD, Appellant,

v.

Alice M. PHIPPS, Appellee.

No. 09-99-004CV.

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Submitted Sept. 2, 1999.

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Delivered Oct. 7, 1999.

Before WALKER, C.J., BURGESS and FARRIS, JJ.

OPINION

FARRIS.¹

*1 This case involves the appeal of a summary judgment in a worker’s compensation case. The appellee, Phipps, had appealed the final decision of the Texas Worker’s Compensation Appeals Panel denying her benefits. Both parties moved for summary judgment and the trial court granted Phipps’s motion holding that the Appeals Panel incorrectly interpreted the Texas Labor Code in finding that, as a matter of law, Phipps was not within the course and scope of her employment. The appellant, a self insured employer, complains the trial court erred in overruling its objections to summary judgment evidence and in granting the employee’s motion for summary judgment while denying its motion. We affirm the judgment.

We begin by rejecting an issue raised by Phipps urging that the summary judgment should be affirmed because of a ground raised in her motion and not challenged by appellant. Phipps argues that appellant’s appeal of the hearing officer’s decision to the Appeal Panel was untimely filed. In raising this issue Phipps’s brief plainly misrepresents the facts by declaring that the trial court’s order does not specify the grounds relied upon for its ruling other than to say the Appeal’s Panel decision was legally incorrect. The judgment states:

The Court further finds that the Appeals Panel incorrectly interpreted the applicable portions of the Texas Labor Code in finding that Alice Phipps was, as a matter of law, not in the course and scope of her employment, and therefore the Court DENIES Defendant’s motion for Summary Judgment and GRANTS plaintiff’s cross-Motion for Summary Judgment….

As the trial court explicitly stated the grounds relied upon for its summary judgment ruling, the judgment can only be affirmed if the theory relied upon is meritorious. See Herring v. Telectronics Pacing Systems, Inc., 964 S.W.2d 753, 755 (Tex.App.-Beaumont 1998, pet. denied). Accordingly, we will not consider the merits of other grounds raised by Phipps’s summary judgment motion.

In its issues one through four appellant complains the trial court erred in overruling its objections to particular documents included in the records of the Commission and offered as evidence supporting Phipps’s motion for summary judgment. Because we are able to settle the underlying issues without regard to those documents we do not address these issues.

The central issues are whether the trial court erred in granting Phipps’s motion for summary judgment while overruling appellant’s motion. In a combined argument under these issues appellant argues that the facts are not in dispute and that they establish that Phipps was not acting in the course and scope of her employment when she was injured. Phipps also argues that the facts are not in dispute but insists that the Appeals Panel misinterpreted the meaning of “course and scope of employment.” Phipps concludes that the Appeals Panel erred in holding as a matter of law that she was not in the course and scope of her employment and once its decision is set aside, the hearing officer’s findings of fact must be reinstated as she was the sole judge of the evidence.

*2 Phipps was injured, in her own home, attempting to answer a telephone. Phipps contends her injury was within the course and scope of her employment because she was “on weekend call” to provide services to home care patients. The hearing officer’s decision includes a summary of the testimony. In her summary the hearing officer notes that Phipps was virtually certain that, because of the time of the call, it was related to her employment. The summary also addressed the testimony of a supervisor of appellant indicating that if she had been in Phipps’s position she would have answered the telephone because it could have been an important call from appellant. The summary also included the supervisor’s opinion that Phipps would have been acting in the course and scope of her employment while speaking on the telephone regarding matters related to patient care. The hearing officer found that Phipps’s injury occurred while she was engaged in the exercise of her duties of employment.

The Appeals Panel stated that the focal question was whether Phipps’s “subjective speculation” that the call was probably related to her duties and her decision to answer the phone transformed her act from a personal one to one within the course and scope of her employment. The Panel concluded that to hold for Phipps would misapply the provisions of the Texas Workers’ Compensation Act, Tex.Lab. Code Ann. §§ 401.001–506.001 (Vernon 1996), and be unsupported by precedent. The Panel cited one case as instructive. See Loofbourow v. Texas Employers Ins. Ass’n, 489 S.W.2d 456 (Tex.Civ.App.-Waco 1972, writ ref’d n.r.e.).

In one regard the facts of Loofbourow are similar to those of this case; Loofbourow was “on call” at the time of her injury. Loofbourow received a call to come to work and was injured in a collision while driving to her place of employment. Id. at 457. The court rejected Loofbourow’s contention that she was in the course of her employment pointing to the general rule that an injury received while using the public streets and highways in going to or returning from work is outside the course and scope of employment. Id. The court pointed out that the rationale for the rule is that in most instances such an injury is suffered as a consequence of risks or hazards to which all members of the traveling public are subject rather than those related to the business of an employer. Id. The court distinguished Loofbourow’s injury, occurring while traveling to and from the job, from an injury to an employee who is required to travel from place to place to perform his duties of employment. Id. at 458. In addressing Loofbourow’s “on call” status, the court held that it was not controlling. Id. at 457.

The general rule excluding transportation to and from the place of employment has been incorporated in the definition of “course and scope of employment.” See Tex.Lab. Code Ann. § 401.011(12) (Vernon 1996). The definition includes no other exceptions, but broadly includes, “… activity of any kind or character that has to do with and originates in the work, business, trade or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.” Id. The term includes activity at locations other than the employer’s premises. Id.

*3 We agree with the trial court that the Appeals Panel erred in its application of the law to the undisputed facts of this case. The testimony considered by the hearing officer was sufficient to support a finding that Phipps was injured while she was engaged in furthering her employer’s business. See Deatherage v. International Ins. Co., 615 S.W.2d 181, 183 (Tex.1981); ESIS, Inc., Servicing Contractor v. Johnson, 908 S.W.2d 554, 557 (Tex.App.-Fort Worth 1995, writ denied). Accordingly, the hearing officer was correct in deeming that Phipps was acting within the course and scope of her employment when she was injured.

The judgment is AFFIRMED.

	Footnotes
1		The Honorable David Farris, sitting by assignment pursuant to Tex.Gov’t Code Ann. 74.003(b) (Vernon 1998).