This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on April 8, 2003. The hearing officer determined that the appellant (claimant) did not sustain a compensable injury on _____________, and that she therefore, did not have disability. The claimant appealed on sufficiency of the evidence grounds. The respondent (carrier) responded, urging affirmance.
DECISION
Affirmed.
It is undisputed that the claimant was injured on _____________, when she slipped and fell on her employer’s premises while picking up her paycheck. It is also undisputed that the claimant was not scheduled to work on the date of the injury, and that her sole purpose for being at the employer’s premises was to pick up her paycheck. The claimant testified that she was not required to pick up her paycheck at the specific time and day that she was injured. The claimant testified that she could have picked up her paycheck at other times and days. The employer’s assistant general manager testified that the claimant could have picked up her paycheck at other times and on different days. He further testified that paychecks can be mailed to employees, employees can have other people pick up their checks with written authorization from the employee, and that direct deposit was available to full-time employees with at least one year of service. The assistant general manager testified that the claimant was a full-time employee.
The claimant argues that she was injured in the course and scope of her employment on _____________. Section 406.031(a)(2) provides, in part, that “[a]n insurance carrier is liable for compensation for an employee’s injury without regard to fault or negligence if the injury arises out of and in the course and scope of employment.” Section 401.011(12) defines “course and scope of employment” to mean “an 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.” The definition goes on to state that the term includes an activity conducted on the premises of the employer or at other locations but does not include transportation or travel subject to certain exceptions. The claimant had the burden to prove by a preponderance of the evidence that an injury occurred in the course and scope of her employment. Texas Workers’ Compensation Commission Appeal No. 91028, decided October 23, 1991. Whether an injury occurred in the course and scope of employment is generally a question of fact to be determined by the hearing officer. Texas Workers’ Compensation Commission Appeal No. 91036, decided November 15, 1991.
In ESIS, Inc., Servicing Contractor v. Johnson, 908 S.W. 2d 554 (Tex. App.-Fort Worth 1995, writ denied), the court stated:
Course and scope of employment is not limited to the exact moment when the employee reports for work, the moment when the employee’s labors are completed, nor to the place where the work is done. [Citation omitted.] If the injury is the result of an activity that originates from the employment, and is received while the employee is actually engaged in furthering the employer’s business, the injury is deemed to have been sustained within the course and scope of employment. [Citations omitted.] An injury originates from the employment when it results from a risk or hazard that is reasonably inherent or incident to the work or business. [Citation omitted.]
In Texas Workers’ Compensation Commission Appeal No. 950021, decided February 16, 1995, the employee drove his car to the employer’s premises sometime after his bus driving shift had ended to pick up his paycheck and was injured in a motor vehicle accident in the employer’s parking lot. The hearing officer determined that the injured employee was not injured in the course and scope of employment and the Appeals Panel affirmed. While testifying that the employer encouraged him to pick up his paycheck at the time he did, he did not testify that he was required to pick up his paycheck on the premises. The employee relied on INA of Texas v. Bryant, 686 S.W.2d 614 (Tex. 1985), which concerned an employee who returned to her place of employment to receive pay several days after ceasing employment and fell on the premises. The majority opinion stated that if the employer’s practice required the employee to return to pick up her paycheck, or if she reasonably believed that she was required to return to pick up the paycheck, then her injury would be in the course and scope of employment. Based upon the hearing officer’s discussion of the evidence and findings of fact in this case, we conclude that the hearing officer determined that the claimant did not “reasonably believe” that she was required to pick up her check at a specific time and place. The testimony of both the claimant and the employer’s assistant general manager supports such a conclusion.
The decision in Appeal No. 950021 also cited McCoy v. Texas Employers Insurance Association, 791 S.W.2d 347 (Tex. App.-Fort Worth 1990, writ denied) in which decision the appellate court affirmed the district court, which ruled that the employee was not in the course and scope of her employment when injured. In that case, the employee was injured at the office of her employer where she had gone for the sole purpose of picking up her paycheck before her shift began and there was evidence that she could have picked up the paycheck in person during her shift, could have called ahead and had someone else pick it up for her, could have had it mailed to her, or could have had it deposited directly into her account.
Upon review of the record in this case, we conclude that the hearing officer did not err in determining that the claimant did not sustain a compensable injury. The hearing officer’s decision is not so against the great weight and preponderance of the evidence so as to be clearly wrong or manifestly unjust. Accordingly, no sound basis exists for us to disturb that determination on appeal. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Without a compensable injury, the claimant would not have disability as defined by Section 401.011(16).
The hearing officer’s decision and order are affirmed.
The true corporate name of the insurance carrier is ZURICH AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is
LEO F. MALO
12222 MERIT DRIVE, SUITE 700
DALLAS, TEXAS 75251.
Thomas A. Knapp
CONCUR:
Chris Cowan – Appeals Judge
Gary L. Kilgore – Appeals Judge