Court of Appeals of Texas, Houston (14th Dist.).

Sith S. KEO, Appellant,

v.

HILL GRAPHICS, INC. d/b/a Champagne Fine Printing & Lithographing, Appellee.

No. 14-95-01139-CV.

|

April 17, 1997.

Panel consists of Justices YATES, HUDSON, and FOWLER.

OPINION

HUDSON.

*1 Appellant, Sith S. Keo, sued Hill Graphics, Inc. (Hill) for discrimination and wrongful termination in violation of the Texas Labor Code. The trial court granted Hill’s motion for summary judgment. In six points of error,¹ appellant contends: (1) the trial court failed properly to apply Tex. Lab.Code Ann. § 451.001 (Vernon 1996); (2) the evidence is insufficient to support the trial court’s decision; (3) the trial court erred in ruling that appellant did not file her benefits claim in good faith; (4) the trial court misinterpreted the case of Gunn Chevrolet, Inc. v. Hinerman, 898 S.W.2d 817 (Tex.1995); (5) the appellant’s cause of action accrued before the date on which appellee asserts the alleged bad faith workers compensation claim was filed; and (6) public policy requires nonsubscribing employers be held to the same standard as subscribing employers. We affirm the judgment of the trial court.

The record reflects that appellant worked as a shipping clerk for appellee. On February 10, 1993, as she was inspecting a printing job, she slipped out of her chair, landed on her buttocks, and struck her head on a table. She reported the injury to her supervisor and returned to work. Appellant never claimed that Hill caused the accident. Later, appellant began to experience pain in her lower back. She took time off from work and sought treatment from both Hill’s company-approved doctors as well as her own personal physicians. When she returned to work, Hill had closed its mailing department and appellant was reassigned to a new position as a bindery hand worker. On April 30, 1993, following a downturn in business, appellant was laid off.

Although appellant had no reason to believe Hill was a subscriber under the Worker’s Compensation Act, on June 14, 1993, one and one half months after her discharge, appellant filed a compensation claim.² She then sued Hill, claiming retaliatory discharge under Section 451.001 of the Labor Code (formerly Tex.Rev.Civ. Stat. Ann. art 8307c (Vernon Supp 1994) (Act of Apr. 22, 1971, 62nd Leg., R.S., ch. 115, 1971 Tex. Gen. Laws 884, repealed by Act of May 12, 1993, 73rd Leg., R.S., ch. 269, § 5, 1993 Tex. Gen. Laws 987, 1273)), which prohibits employers from discharging or discriminating against employees who have filed workers’ compensation claims in good faith. Tex. Lab.Code Ann. § 451.001(1) (Vernon 1996).

To be entitled to a summary judgment, the movant must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). Hill relies upon the recent decision in Gunn, 898 S.W.2d at 817, in which the Texas Supreme Court determined as a matter of law that the Labor Code does not impose liability on a non-subscribing employer for discharging an employee injured on-the-job when the employer did not cause the injury.

*2 The facts of Gunn are strikingly similar to the ones now before us. The plaintiff in Gunn, Mara Hinerman, worked for a non-subscribing employer, and she suffered an on-the-job injury. Hinerman reported the injury to her supervisor and returned to work. She did not claim that her employer did anything to cause the injury. Later, Hinerman took time off from work to seek medical treatment. She was terminated some time after her return. Following her discharge, Hinerman filed a workers’ compensation claim, though she had no reason to believe her employer was a subscriber. She then sued for retaliatory discharge under Section 451.001. Id. at 818.

The court in Gunn assumed that Tex. Lab.Code Ann. § 451.001 (Vernon 1996) protects employees of non-subscribers. Gunn, 898 S.W.2d at 819. It also recognized that several courts of appeals have held that mere notice of an employee’s on-the-job injury, when the employer is a subscriber and is at fault for the injury, is sufficient to invoke the protections of the Labor Code. Id. However, the court nevertheless determined that because: (1) the employer was a non-subscriber; (2) the employee had no reason to think otherwise; and (3) the employee never claimed the employer did anything to cause the injury, there was no liability as a matter of law because the plaintiff had no good faith claim for compensation. Id. at 818.

Appellant attempts to distinguish Gunn by pointing to the fact that she did not merely give notice of the injury to her employer; she sought treatment by company-approved doctors under Hill’s employee injury program. We do not believe this distinction is material. Gunn recognized that in cases where a subscribing employer is at fault, notification of the employer and the filing of an injury report are steps taken toward securing benefits and are sufficient to invoke the statutory protections against retaliatory discharge. Id. at 819; see also Mid-South Bottling Co. v. Cigainero, 799 S.W.2d 385, 389 (Tex.App.-Texarkana 1990, writ denied). But in cases such as this, where the employer is a non-subscriber and not alleged to be at fault, the existence of the three conditions set forth above will negate a good faith claim and thereby defeat liability.

Appellant contends she was discriminated against even prior to the filing of her workers’ compensation claim, and that her cause of action therefore accrued in advance of, and independent from, the filing of her claim. However, in a cause of action under Section 451.001 of the Labor Code the alleged discharge or discrimination must be on account of, or in retaliation for, the filing or pursuit of a claim.

*3 Because Hill was a non-subscriber, appellant had no reason to think otherwise, and appellant never claimed Hill did anything to cause her injury, appellant had no good faith claim for compensation. Thus, as a matter of law, Hill could not have discharged appellant for filing a good faith compensation claim. Appellant’s first, second, third, fourth, fifth, and sixth points of error are overruled.

The judgment of the trial court is affirmed.

	Footnotes
1		In his Reply Brief, appellant raises an additional point requesting that we strike appellee’s brief because it was filed more than 25 days after appellant’s brief. See Tex.R.App. P. 74(m). Appellant misunderstands the distinction between documents received by a Court and documents filed with a Court. The record shows that appellant’s brief was received by this Court, along with a motion to extend time, on October 26, 1995, but was not ordered filed until November 9, 1995. When the due date is calculated using the correct filing date, appellee’s brief was timely filed.
2		The record contains a notification form, signed by the appellant, informing the employees of Hill that the company does not subscribe to Workers’ Compensation insurance.