Court of Appeals of Texas, Houston (1st Dist.).

Sally REAGAN, Appellant,

v.

FIDELITY & CASUALTY COMPANY OF NEW YORK, Appellee.

No. 01-96-00036-CV.

|

Aug. 1, 1996.

OPINION

BASS,¹ Justice.

*1 This is an appeal from a summary judgment in a workers’ compensation case. The issue is whether a summary judgment movant conclusively proved the nonmovant was acting outside the course and scope of her employment when she was injured.

We affirm.

Sally Reagan, appellant, was working as a temporary hospital administrator on June 27, 1990. Reagan suffered from hives caused by stress from her job. On June 27, 1990, while in route to see a chiropractor for treatment of her hives, Reagan was injured in an automobile accident.

Reagan filed a claim for workers’ compensation benefits with the Texas Workers’ Compensation Commission (the Commission) for her injuries. The Commission denied the claim because the evidence did not establish Reagan sustained a compensable injury in the course of her employment.

Reagan filed suit against Fidelity & Casualty Company of New York (Fidelity), to set aside the Commission’s award. Fidelity specifically denied Reagan was in the course and scope of her employment.

Fidelity filed a motion for summary judgment stating it had conclusively proved Reagan was not acting within the course and scope of her employment at the time of the accident. Fidelity asserted Reagan was engaged in a personal mission. Fidelity asserted that none of the three exceptions to the “personal purpose” defense applied to this case.

In its motion for summary judgment, Fidelity recognized the following exceptions: (1) the personal comfort doctrine, Weaver v. Standard Fire Ins. Co., 567 S.W.2d 34, 35 (Tex.App.-Houston [14th Dist.] writ ref’d n.r.e.); (2) the dual-purpose test, Davis v. Argonaut Ins. Co., 464 S.W.2d 102, 103 (Tex.1971); and (3) the doctrine that a workers’ compensation claimant may recover if the condition for which she sought treatment was due to some condition she received while working (no citation given). Fidelity asserted that mental stress injuries are not compensable unless produced by an accidental injury that is an undesigned, untoward event that is traceable to a definite time, place, and cause. Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 338 (Tex.1979).

Reagan responded to Fidelity’s motion by contending her trip to the doctor to cure her of the hives was in the course and scope of her employment because her hives were caused by her employment and interfered with her employment performance. First, Reagan contended her accident fell within the dual-purpose test. Second, Reagan argued her employment caused her hives, and her hives caused her to be on a road she would not have otherwise taken. Reagan contended that, but for her employment, her accident and injuries would not have occurred.

Fidelity filed excerpts from Reagan’s deposition to support its motion for summary judgment. Reagan did not file any summary judgment evidence with her response.

In the deposition excerpts, Reagan testified the automobile accident occurred on June 27, 1990. (The accident occurred in Florida. In her pleadings, Reagan alleged she was a resident of Harris County, Texas, and Fidelity wrote her policy of Texas workers’ compensation insurance, which covered Reagan at the time of the accident. Fidelity does not contest coverage on the ground the accident occurred out of state.) Reagan was working as a hospital administrator for a psychiatric hospital, and she likely developed the hives from job-related stress. As to the specific cause of the hives, Reagan’s boss was fired, and Reagan learned the hospital was probably not going to continue her position as an itinerant administrator. This news, along with the long hours that Reagan had worked, was the probable cause of her hives. Reagan testified her hives were probably caused by a combination of several events that occurred over a period of weeks.

*2 The hospital did not tell Reagan to see the doctor. Reagan’s primary purpose for visiting the chiropractor was for treatment of her hives, and she would have made the trip even had she and the chiropractor not talked about psychiatry and chiropractic medicine. Because the accident and injury occurred in 1990, the old workers’ compensation law applies to this case. Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 17.18(c), 1989 Tex. Gen. Laws 1, 122. Former article 8306, section 3, of the Texas Revised Civil Statutes provides that employees of an employer who is insured for workers’ compensation “shall have no right of action against their employer or against any agent, servant, or employee of said employer for damages for personal injuries.” Act of May 20, 1963, 58th Leg., R.S., ch. 437, § 3, 1963 Tex. Gen. Laws 1132, 1132, repealed by Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 1, 114. Instead, the employee shall look for compensation solely from the employer’s insurer. Dickson v. Silva, 880 S.W.2d 785, 787 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

Former article 8306, section 3b, states: “If an employee … sustains an injury in the course of his employment, he shall be paid compensation.” Act approved March 28, 1917, 35th Leg., R.S., ch. 103, part I, § 3b, 1917 Tex. Gen. Laws 269, 271, repealed by Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 1, 114. Former article 8309, section 1, defines “in the course of employment” as follows:

“[I]njuries of every kind and character having to do with and originating in the work, business, trade, or profession of the employer received by an employee while engaged in or about the furtherance of the affairs or business of his employer whether upon the employer’s premises or elsewhere.

Act of May 12, 1959, 56th Leg., R.S., ch. 103, part 1, § 3b, 1959 Tex. Gen. Laws 269, 271, repealed by Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(15), 1989 Tex. Gen. Laws 1, 115.

To recover under the statute, an employee must have been injured in the course of employment. Biggs v. United States Fire Ins. Co., 611 S.W.2d 624, 627 (Tex.1981). An injury, as a general rule, sustained in the course of employment must be of a kind or character originating in or having to do with the employer’s work, and it must have occurred while the employee was engaged in the furtherance of the employer’s business or affairs. Biggs, 611 S.W.2d at 627; Dickson, 880 S.W.2d at 787.

Fidelity, the employer’s insurer, moved for summary judgment on the ground that Reagan was not acting within the course and scope of her employment at the time of the accident.

Summary judgment is proper only where the movant is entitled to judgment as a matter of law. Randall’s Food Mkts. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995); Marchal v. Webb, 859 S.W.2d 408, 412 (Tex.App.-Houston [1st Dist.] 1993, writ denied). For a defendant to be entitled to summary judgment on a plaintiff’s cause of action, the defendant must disprove, as a matter of law, at least one of the essential elements of the plaintiff’s cause of action. Randall’s, 891 S.W.2d at 644; Marchal, 859 S.W.2d at 412. On review, we view the evidence in the light most favorable to the non-movant. Randall’s, 891 S.W.2d at 644; Marchal, 859 S.W.2d at 412. Once the defendant has established its right to summary judgment, the burden shifts to the plaintiff, who must then respond and present any issues to the trial court that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Sooden v. Rychel, 802 S.W.2d 361, 362 (Tex.App.-Houston [1st Dist.] 1990, writ denied).

*3 Reagan asserts two points of error. We first consider point of error two, wherein Reagan contends the trial court erred in rendering summary judgment because Reagan raised a genuine issue of material fact as to whether she was injured in the course and scope of her employment. In her brief, Reagan says the parties agree on the facts, and she said the same thing in her response to Fidelity’s motion for summary judgment. Reagan did not include any summary judgment evidence with her response. Under the facts as presented in this case, we conclude that there is no genuine issue of material fact.

We overrule point of error two.

Reagan alleges, in point of error one, that the trial court erred in granting summary judgment because she established as a matter of law that she was injured in the course and scope of her employment. She argues that, because her job caused her hives, and the hives interfered with her job, her trip to the doctor to treat and cure her hives was in furtherance of her employer’s business.

We must determine whether Fidelity proved as a matter of law that Reagan’s accident and the resulting injuries arose outside the course of her employment. The only link between Reagan’s job and her accident was the hives, which were caused by stress from her job, which led to the trip to the doctor. Fidelity asserted that Reagan’s trip to the doctor was a personal mission because she was seeking treatment for a condition not compensable under the workers’ compensation act. We now consider whether Reagan’s hives were a condition compensable under the workers’ compensation act.

Under the workers’ compensation act, an insurance carrier is liable for two types of conditions if they arise in the course and scope of employment. First, the carrier is liable for accidental injuries under former article 8306, section 3b. See Act of May 12, 1959, 56th Leg., R.S., ch. 355, 1959 Tex. Gen. Laws 778, 780 (repealed 1989). Former article 8306, section 20, defines “injury” as “damage or harm to the physical structure of the body and such diseases or infections as naturally result therefrom.” Act of May 28, 1971, 62d Leg., R.S., ch. 834, § 1, 1971 Tex. Gen. Laws 2539, 2539-2540, repealed by Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 1, 114. Second, an “occupational disease” is one that occurs “as the result of repetitious physical traumatic activities extending over a period of time and arising in the course of employment.” Act of May 28, 1971, 62d Leg., R.S., ch. 834, § 1, 1971 Tex. Gen. Laws 2539, 2539-2540 (repealed 1989). The summary judgment evidence shows Reagan’s hives were caused by gradual stress buildup related to events at her job. We now consider whether Reagan’s hives were compensable, either as an accidental injury or as an occupational disease.

We first consider whether the hives were compensable as an accidental injury. Mental trauma can produce an accidental injury if there is proof the trauma arose at a definite time and place and from a definite cause. Brown v. Texas Employers’ Ins. Ass’n, 635 S.W.2d 415, 417 (Tex.1982); Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 338 (Tex.1979); Shannon v. Texas Gen. Indem. Co., 889 S.W.2d 662, 664 (Tex.App.-Houston [14th Dist.] 1994, no writ). When there is no evidence of a particular event causing the injury, there can be no recovery under workers’ compensation. Brown, 635 S.W.2d at 416. Reagan’s hives were not compensable as an accidental injury because the trauma that caused her injuries was a gradual buildup that resulted from a combination of events.

*4 We next consider whether Reagan’s hives were compensable as an occupational disease. A mental condition caused by a gradual buildup of emotional stress over a period of time is not compensable as an occupational disease without accompanying physical force or exertion. Maksyn, 580 S.W.2d at 338; Shannon, 889 S.W.2d at 664. There is no recovery for repetitious mental traumatic activity, as distinguished from repetitious physical activity. Maksyn, 580 S.W.2d at 385; Shannon, 889 S.W.2d at 664. The summary judgment evidence only shows that a series of events combined to cause Reagan’s stress, and this stress caused her hives. Reagan’s hives were not caused by repetitious physical activity. Reagan’s hives were not compensable as an occupational disease.

Reagan’s hives were not compensable under the workers’ compensation act. Therefore, Reagan was engaged, at the time of the accident, in a personal endeavor that caused her injuries. Reagan’s accident occurred as she was driving to see a doctor to treat her hives. Reagan’s accident did not occur while she was engaged in the furtherance of her employer’s business.

Reagan argues several reasons her trip to the doctor to treat her hives was within the course of her employment. First, Reagan argues she satisfied the dual-purpose test. Second, Reagan argues her trip to the doctor falls within the personal comfort doctrine. Third, Reagan argues her job caused her car accident and injuries under the positional-risk test. Specifically, Reagan contends her work caused her hives, and her hives caused her to be on a road which she would not otherwise have taken, but for all of which her car accident and injuries would not have occurred. We consider each of these arguments.

We first consider the dual-purpose test. In general, injuries that occur while an employee is traveling to or from work are not compensable under the workers’ compensation act. Evans v. Illinois Employers’ Ins. of Wausau, 790 S.W.2d 302, 304 (Tex.1990); Harris County v. McCoy, 804 S.W.2d 523, 524 (Tex.App.-Houston [1st Dist.] 1990, writ dism’d w.o.j.). The rationale behind this rule is that injury incurred during such travel does not arise out of the person’s employment, but rather, is suffered due to the dangers and risks to which all traveling persons are exposed. Evans, 790 S.W.2d at 304.

Article 8309, section 1b, provides an exception to the general rule:

Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of employment of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or businesss of the employer to be furnished by said trip.

*5 Act of May 23, 1957, 55th Leg., R.S., ch. 397, § 3, 1957 Tex. Gen. Laws 1186, 1192-93, repealed by Act of December 11, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(15), 1989 Tex. Gen. Laws 1, 115.

Former article 8309, section 1b, has two parts. The first sentence declares injuries during travel to be in the course of employment only when transportation is furnished by the employer in some manner, or when the employer directs the employee to proceed from one place to another. Janak v. Texas Employers’ Ins. Ass’n, 381 S.W.2d 176, 179 (Tex.1964); McCoy, 804 S.W.2d at 524. The second sentence, the dual-purpose test, declares that injuries occurring during travel for the dual purpose of furthering both the employer’s and employee’s interests are not in the course of employment unless: (1) there would have been no trip except for the employer’s interests; and (2) the trip would have been made in the absence of a personal interest. Davis v. Argonaut Southwest Ins. Co., 464 S.W.2d 102, 103 (Tex.1971). The employer’s business purposes must be the sole cause of the trip.

Under both sentences of former article 8309, section 1b, Reagan was on a personal mission when she was injured. Reagan’s employer did not direct her to see her doctor. Reagan’s primary purpose for visiting her doctor was to treat her hives, a condition not compensable under the workers’ compensation act. Although the treatment and cure of Reagan’s hives would make her feel better and thus improve her work performance, this does not render her trip as primarily for a business purpose.

We next consider the personal comfort doctrine. Reagan argues that, because her trip to the doctor to treat and cure her hives was for her own comfort, she falls within the personal comfort doctrine. To be covered by workers’ compensation insurance, an employee need not necessarily have been engaged in the discharge of any specific duty incident to his employment. Yeldell v. Holiday Hills Retirement & Nursing Ctr., Inc., 701 S.W.2d 243, 245 (Tex.1985). Rather, an employee, while in the course of her employment, may perform acts of a personal nature that a person might reasonably do for her health and comfort, such as quenching thirst or relieving hunger. Lujan v. Houston Gen. Ins. Co., 756 S.W.2d 295, 298 (Tex.1988); Yeldell, 701 S.W.2d at 245. Such acts are incidental to the employee’s service, and the injuries sustained while doing these acts arise in the course of employment and are compensable. Yeldell, 701 S.W.2d at 245.

For the personal comfort doctrine to apply, the employee must be acting within the course of her employment at the time she does an act for her personal health and comfort. Lujan, 756 S.W.2d at 298; Yeldell, 701 S.W.2d at 245. We have already held Reagan was not acting within the course of employment when she drove to her doctor. Accordingly, the personal comfort doctrine does not apply to this case.

We finally consider the positional-risk test. The Supreme Court recognized the positional-risk test in Walters v. American States Ins. Co., 654 S.W.2d 423, 426 (Tex.1983). In Walters, an employee was shot to death while accompanying his employer on a business trip. Id. at 424. The Supreme Court held the evidence was legally sufficient to support the jury’s finding that the employee was killed in the course of his employment. Id. at 425. The court noted that, but for the employer’s order that the employee accompany him on the business trip, the employee would not have left town with the employer on the day of the shootings. Id. at 427.

*6 The El Paso Court of Appeals applied the positional-risk test in Employers’ Casualty Co. v. Bratcher, 823 S.W.2d 719, 721 (Tex.App.-El Paso 1992, writ denied). In that cause, the employee died of a ruptured aneurysm triggered by straining during a bowel movement. Id. at 720. The aneurysm was a preexisting condition, and it was ruptured by a strain unrelated to the deceased’s employment. Id. at 721-22. The court held that, even if an employee is injured while acting within the course of employment, the injury is covered by workers’ compensation only if the injury would not have occurred but for the conditions and obligations of employment that placed the employee in danger. Id. at 721. The court reversed the judgment of the trial court and rendered a take-nothing judgment against the insured. Id. at 722.

As illustrated by Walters, 654 S.W.2d at 426, and Employers’ Casualty Co., 823 S.W.2d at 721, the positional-risk test is a causation element that an employee must prove before recovering workers’ compensation benefits. This element does not eliminate the need for the employee to also prove her injuries were sustained while acting within the course and scope of employment. Fidelity conclusively proved that Reagan was acting outside the course of her employment when she was injured. Therefore, we conclude the positional-risk test is inapplicable to this cause.

Fidelity conclusively proved its entitlement to summary judgment.

Point of error one is overruled.

The judgment of the trial court is affirmed.

HUTSON-DUNN and TAFT, JJ., also sitting.

	Footnotes
1		The Honorable Sam Bass, retired Justice, Court of Appeals, First District of Texas at Houston, sitting by assignment.