Court of Appeals of Texas, Dallas.

Fred N. HOWELL, Appellant,

v.

LIBERTY MUTUAL FIRE INSURANCE COMPANY, Appellee.

No. 05-91-01000-CV.

|

April 22, 1992.

Before ENOCH, C.J., and THOMAS and KINKEADE, JJ.

O P I N I O N

KINKEADE, Justice.

*1 Fred N. Howell appeals the trial court’s summary judgment in favor of Liberty Mutual Fire Insurance Company. In three points of error, Howell argues that the trial court erred in holding that his injury (1) did not occur within the course and scope of his employment and (3) was not traceable to a definite time, place, and event. Because the Workers’ Compensation Act does not cover Howell’s type of injury, we affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL HISTORY

Fred Howell sold telephone equipment for Southwestern Bell Telephone Company. For several months before his injury, Howell felt that he received no support from either his supervisors or his support staff. On the morning of December 4, 1989, Howell’s immediate supervisor told him that he wanted to meet with Howell at 1:00 P.M. Just before the scheduled meeting, Howell walked out of his office, went to his car, began to cry, and then drove home. Howell never returned to work.

On December 11, 1989, Howell sought the help of psychologist Dr. Jon Leffingwell. Dr. Leffingwell diagnosed Howell as suffering from post-traumatic stress syndrome. Howell filed a Workers’ Compensation Act claim with the Industrial Accident Board. Dissatisfied with the Board’s award, Howell filed suit to further prosecute his claim. Liberty Mutual filed a motion for summary judgment, and Howell filed a response, alleging that he suffered from a compensable injury under the Workers’ Compensation Act. The trial court granted summary judgment in Liberty Mutual’s favor.

In his oral deposition, Howell stated that he left work on December 4, 1989, because he feared meeting with his supervisor over his lack of job productivity. Howell alleged in his petition that he experienced a continued lack of support from his employer, supervisory staff, and his own support staff. Dr. Leffingwell stated that Howell told him that his supervisors at work shuffled him from one person to another and never dealt with his problems. He also stated that Howell told him that his office had been relocated, that he had no telephone to use to conduct business and that his co-workers stole some of his clients.

At the request of Southwestern Bell, Dr. Valeria Sheehan, a psychiatrist, performed two independent evaluations of Howell on January 25, 1990, and May 7, 1990. In her written report, Dr. Sheehan concluded that Howell’s psychiatric condition resulted from continuous and repetitive mentally traumatic activities. Dr. Sheehan stated that Howell’s mental condition resulted neither from an accident nor from an ascertainable single event and that his condition is not traceable to a definite time, place, or cause.

SUMMARY JUDGMENT

In his three points of error, Howell contends that the trial court erred in holding that his injury (1) did not occur within the course and scope of his employment and (2) was not traceable to a definite time, place, and event. Howell argues that the emotional stress that overcame him twenty minutes before his meeting with his supervisor makes his injury compensable under the Workers’ Compensation Act. Howell relies on Director, State Employee Workers’ Compensation Division v. Camarata, 768 S.W.2d 427 (Tex. App.-El Paso 1989, no writ), to support his argument.

*2 Summary judgment may be rendered only if the pleadings, depositions, admissions, and affidavits show that (1) there is no genuine issue as to any material fact and (2) the moving party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 413 (Tex. 1989). A summary judgment seeks to eliminate patently unmeritorious claims and untenable defenses, not to deny a party its right to a full hearing on the merits of any real issue of fact. Gulbenkian v. Penn, 151 Tex. 412, 416, 252 S.W.2d 929, 931 (1952).

In a summary judgment proceeding, the defendant, as movant, must either (1) disprove at least one element of each of the plaintiff’s theories of recovery or (2) plead and conclusively establish each essential element of an affirmative defense, thereby rebutting the plaintiff’s cause of action. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979). A summary judgment for the defendant disposing of the entire case is proper only if, as a matter of law, plaintiff could not succeed upon any theories pleaded. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983). Liberty Mutual attached (1) Howell’s first amended petition, (2) Howell’s response to Liberty Mutual’s first set of interrogatories, (3) Howell’s oral deposition, (4) Dr. Leffingwell’s oral deposition, and (5) Dr. Sheehan’s affidavit to its motion for summary judgment.

Post-traumatic Stress Syndrome and the Workers’ Compensation Act

Howell’s injury took place before the new Workers’ Compensation Act took effect. See TEX. REV. CIV. STAT. ANN. art. 8307-09 (Vernon Pamp. 1992). For an injury to fall under the Workers’ Compensation Act, (1) the claimant must sustain the injury in the course of employment, and (2) the injury must be traceable to a definite time, place, and event. Duncan v. Employers Casualty Co., No. 08-91-00125-CV, slip op. at 4 (Tex. App.-El Paso, January 15, 1992). “Injury” means “damage or harm to the physical structure of the body and such diseases or infection as naturally result therefrom.” TEX. REV. CIV. STAT. ANN. art. 8306, § 20 (Vernon 1967). The phrase “physical structure of the body” relates to the entire body and not just to the skeletal structure. Bailey v. American Gen. Ins. Co., 154 Tex. 430, 436, 279 S.W.2d 315, 318 (1955)(the claimant suffered a severe neurosis as a result of seeing his co-worker fall to his death from the same scaffold on which he worked).

Under the Workers’ Compensation Act, the phrase “injury sustained in the course of employment” must have two elements. First, the injury must be the same kind and character having to do with and originating in the employer’s work or business. Deatherage v. International Ins. Co., 615 S.W.2d 181, 182 (Tex. 1981); City of Garland v. Vasquez, 734 S.W.2d 92, 95 (Tex. App.-Dallas 1987, writ ref’d n.r.e.); TEX. REV. CIV. STAT. ANN. art. 8309, § 1 (Vernon 1967). Secondly, the employee must sustain the injury while engaged in furtherance of that work or business. Deatherage, 615 S.W.2d at 182; City of Garland, 734 S.W.2d at 95. Moreover, the injury viewed from the claimant’s standpoint must be an “accidental injury” in the sense that it was an “untoward event traceable to a definite time, place, and cause.” Olson v. Hartford Accident and Indem. Co., 477 S.W.2d 859, 859 (Tex. 1972); Duncan, slip op. at 5.

*3 Mental trauma itself is not a compensable injury, unless it is traceable to a definite time, place, and cause and produces an accidental injury. Transportation Ins. Co. v. Maksyn, 580 S.W.2d 334, 337 (Tex. 1979). Mental activity cases require more reliable proof of an ascertainable time, place, and event than do physical activity cases. Williams v. Texas Employers Ins. Ass’n, 663 S.W.2d 94, 95 (Tex. App.-El Paso 1983, writ ref’d n.r.e.). Medical testimony can connect an employee’s post-traumatic stress disorder to a definite date, place, and cause. Camarata, 768 S.W.2d at 429.

A disabling mental condition brought about by a gradual buildup of emotional stress over a period of time, and not by an unexpected injury causing an event, is not compensable unless accompanied by physical force or exertion. Williams, 663 S.W.2d at 95. When there is no evidence of a particular event causing the injury, the employee cannot recover on his claim. Brown, 635 S.W.2d at 416. Disappointment in job expectations, worry and anxiety over job loss, and the failure to be promoted fall outside the ambit of “injury sustained in the course of employment” because those emotional or mental states are not connected with the employer’s business. Marsh v. Travelers Indem. Co. of Rhode Island, 788 S.W.2d 720, 721 (Tex. App.-El Paso 1990, writ denied).

Howell misplaces his reliance on Camarata. In Camarata, the court held that some medical evidence supported the jury’s finding that an employer’s circulation of a false and derogatory memo concerning Camarata’s job performance caused mental trauma and produced a physical injury that occurred within the scope of his employment. Camarata, 768 S.W.2d at 429.

Here, the record shows that:

(1) While Howell prepared for his 1:00 P.M. meeting, fear overcame him, and he went to his car, began crying, drove home, and never returned to work;

(2) Howell feared that he would be fired if he did not meet his October 1989 job quota;

(3) Howell stated that the injury is strictly mental and has not caused physical problems;

(4) Howell described several months of stressful events taking place at his job;

(5) Dr. Leffingwell stated that Howell’s post-traumatic stress syndrome resulted from a continual anxiety and stress buildup over a period of time;

(6) Dr. Sheehan, a psychiatrist who performed two independent evaluations of Howell, concluded that Howell’s psychiatric condition resulted from continuous and repetitive mentally traumatic activities, including disappointment in job expectations and worry over the possibility that he might lose his job; and

(7) Dr. Sheehan stated that Howell’s mental condition resulted neither from an accident nor from an ascertainable single event and that his condition is not traceable to a definite time, place, or cause.

Howell claims that his December 4, 1989 emotional breakdown caused his post-traumatic stress syndrome. Therefore, his injury occurred within the scope of his employment. The summary judgment evidence, however, shows that Howell suffered from a continuous and repetitive mentally traumatic experience. Howell fails to show this Court that he suffered from a compensable injury caused by a single ascertainable event connected to his employment duties. See Marsh, 788 S.W.2d at 721. Because Howell fails to show this Court that his injury is compensable under the Workers’ Compensation Act, the trial court properly granted summary judgment in favor of Liberty Mutual. We overrule Howell’s three points of error.

*4 We affirm the trial court’s summary judgment.

Do Not Publish

Tex. R. App. P. 90