Addison v. Diversified Healthcare/Dallas, LLC

Court of Appeals of Texas,

Dallas.

Willie ADDISON, Appellant

v.

DIVERSIFIED HEALTHCARE/DALLAS, L.L.C. d/b/a Brookhaven Nursing Center, Appellee.

No. 05–11–01455–CV.

|

Aug. 28, 2012.

Attorneys & Firms

*626 Kolter C. McKenzie, Law Offices of John E. Wall, Jr., Dallas, TX, for Appellant.

Julie B. Tebbets, Ayers & Ayers, Colleyville, TX, for Appellee.

Before Justices FILLMORE.

OPINION

Opinion By Justice MURPHY.

Willie Addison appeals the trial court’s summary judgment granted in favor of Diversified Healthcare/Dallas, L.L.C. d/b/a Brookhaven Nursing Center in Addison’s retaliatory discharge lawsuit. Addison contends his evidence that Brookhaven held itself out as a workers’ compensation subscriber is sufficient to allow his suit under section 451.001 retaliatory discharge suit, which is the only claim asserted by Addison. We affirm.

BACKGROUND

Addison was working as a cook for Brookhaven, a long-term-care nursing facility in Carrollton, Texas, when he injured his back while lifting approximately fifty pounds of various food items.¹ The incident occurred within hearing of his supervisor, Diana Williams, who—after hearing Addison complain about his injury—told him to turn in his keys and badge and to leave the premises. He then attempted to meet with the facility administrator, who was out of the office at the time.

While waiting for the administrator to return, Addison briefly consulted with a nurse at the facility, who recommended he seek help from a doctor. Williams repeatedly walked past Addison during this time and urged him to leave the premises. When the administrator returned, he informed Addison that Williams had the authority to fire him and that her decision was final.

Addison went to the Baylor Medical Center emergency room across the street from Brookhaven, where he was diagnosed with a strained back. Brookhaven terminated Addison that day and did not extend any benefits or payments to Addison as a result of his injury.

Addison sued Brookhaven alleging a retaliatory discharge claim under the Texas Workers’ Compensation Act. Id. Brookhaven moved for summary judgment, arguing that because it does not carry state-approved workers’ compensation insurance and is therefore not a subscriber, it cannot be held liable under the Act. Addison responded that Brookhaven’s representation of itself to be a subscriber rendered it subject to section 451.001. The trial court granted Brookhaven’s motion, and Addison appeals that judgment.

DISCUSSION

Standard of Review

Brookhaven filed a traditional motion for summary judgment, which we review under established standards. See Id.

Applicable Law

Addison sued Brookhaven under TEX. LAB.CODE ANN. § 406.002. Employers who decline to purchase or who discontinue workers’ compensation coverage must report that action to the Texas Department of Insurance. Id. § 406.004. That election is reported to the department on its approved “Employer Notice of No Coverage or Termination of Coverage” form.

An employer is prohibited under the Act from firing an employee who files a workers’ compensation claim in good faith, has hired an attorney to represent him in a claim, or who participates in administrative review proceedings regarding pending claims. Watkins v. Diversitech Corp., 988 S.W.2d 440, 441 (Tex.App.-Houston [1st Dist.] 1999, pet. denied).

Analysis

Addison claims in two issues, which are substantially the same, that the trial court erred in granting summary judgment because he provided evidence that Brookhaven held itself out to be a workers’ compensation subscriber. Under Bouchet, 963 S.W.2d at 56. Thus, we first must determine whether Brookhaven is a subscriber under the Act.

The determination of an employer’s status as a subscriber is a question of law that we review de novo. Kirkendall, 151 S.W.3d at 599. Likewise, it establishes the converse by showing it had no such insurance.

As evidence that it is a non-subscriber, Brookhaven provided an affidavit from its Texas administrator stating that it did not carry workers’ compensation insurance coverage. It also provided an “Employer Notice of No Coverage or Termination of Coverage” on file with the Texas Department of Insurance. The notice states that Brookhaven had elected not to obtain workers’ compensation insurance under the Act. Addison offers no contradictory evidence. Thus, the summary-judgment evidence demonstrates that Brookhaven is not a subscriber under the Act.

Addison argues that because Brookhaven held itself out to be a subscriber, it can be sued for Leger v. Tex. EMS Co., 18 F.Supp.2d 690, 696 (S.D.Tex.1998).

Addison argues that, notwithstanding section 451.001 claim. *629 We decline to extend the doctrine to Addison’s claim under the Act.

Addison also cites other cases in support of his argument that, based on the quoted provision in the employee handbook, Brookhaven can be sued for violations of Tigrett were based on breach of contract. Here, Addison has not sued in contract; thus, the cases cited by Addison are not helpful given the summary-judgment posture of his lawsuit. We conclude the trial court did not err in granting Brookhaven’s motion, and we overrule Addison’s two issues.

CONCLUSION

The evidence conclusively showed that Brookhaven is not a subscriber under the Act. Summary judgment therefore was proper regarding Addison’s section 451.001 claims for retaliatory discharge. We affirm the judgment.