Court of Appeals of Texas, Dallas.

Sherrie LOWE, Appellant,

v.

Christopher FANT and J.C. Penney Company, Inc., Appellee.

No. 05-99-02086-CV.

|

March 7, 2001.

Before LAGARDE, KINKEADE, and O’NEILL, JJ.

OPINION

O’NEILL.

*1 Appellant Sherrie Lowe appeals a summary judgment granted in favor of appellees Christopher Fant and J.C. Penney Company, Inc. In four issues, Lowe generally contends: (1) the trial court erred in granting appellees’ motion for summary judgment, and (2) the workers’ compensation act is unconstitutional. We affirm.

On July 11, 1997, Lowe suffered a work-related injury while moving appliances in the housewares department of J.C. Penney. Lowe asked Fant, her supervisor, if she could seek medical attention, but he refused. Lowe subsequently sought and obtained workers’ compensation benefits for her injury. She subsequently sued appellees for negligence associated with Fant’s refusal to allow her to seek medical attention.

Appellees moved for summary judgment asserting Lowe could not recover because Lowe’s claims were barred by the exclusive remedy provision of the workers’ compensation act. Appellees further alleged Lowe’s claims were barred by the election of remedies doctrine because Lowe had filed a claim and received benefits under the Act. The trial court granted appellees’ motion and rendered a take-nothing judgment. This appeal followed.

The workers’ compensation act provides the exclusive remedy for employees’ injuries sustained in the course of their employment. See Tex.Lab.Code Ann. § 408.001 (Vernon 1996); Walls Regional Hosp. v. Bomar, 9 S.W.3d 805, 806 (Tex.1999). Lowe does not dispute she suffered a compensable on-the-job injury and, in fact, received compensation under the Act. She nevertheless asserts that Fant’s refusal to allow her to seek medical attention after her injury constituted an independent injury. However, aggravation of an employee’s on-the-job injury does not constitute an independent injury. See Payne v. Galen Hosp. Corp., 28 S.W.3d 15, 20 (Tex.2000).

Lowe also suggests the workers’ compensation act did not bar her claim because the Act does not bar claims for intentional torts. Lowe, however, sued appellees solely for negligence and did not allege any intentional torts. We conclude the Act’s exclusive remedy provision bars Lowe’s claims. See id. at 20.

Lowe also claims the workers’ compensation act violates the Texas and United States Constitutions because it deprives her of a remedy for her common-law claims. Lowe did not file a response to appellees’ motion or otherwise raise her constitutional complaint in the trial court. Therefore, she waived her right to raise this issue on appeal. See Green v. Unauthorized Practice of Law Comm., 883 S.W.2d 293, 300 (Tex.App.-Dallas 1994, no writ); Fadia v. Unauthorized Practice of Law Comm., 830 S.W.2d 162, 165 (Tex.App.-Dallas 1992, writ denied). Furthermore, the workers’ compensation act does not violate the Texas or United States Constitutions. See Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 523 (Tex.1995); Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556, 561-62, 108 (1916), aff’d, 249 U.S. 152 (1919).

*2 Because we conclude that the Act is Lowe’s only remedy, we need not decide whether the election of remedies doctrine also bars Lowe’s claims. See Payne, 28 S.W.3d at 17. We resolve Lowe’s four issues against her and affirm the trial court’s judgment.