Court of Appeals of Texas,
Houston (1st Dist.).
Terrica BARNES as Next Friend of Kainan Cooper, Appellant
UNITED PARCEL SERVICE, INC., Appellee.
Jan. 12, 2012.
Attorneys & Firms
*168 Michael E. Pierce, Arnold & Itkin, LLP, Houston, TX, for Appellant.
H. Victor Thomas, King and Spalding LLP, Houston, TX, for Appellee.
*169 OPINION ON REHEARING
MICHAEL MASSENGALE, Justice.
Appellee United Parcel Services, Inc. filed a motion for rehearing of our opinion issued on June 23, 2011. Appellant Terrica Barnes filed a response. We grant rehearing and withdraw our opinion and judgment of June 23, 2011, issuing the following in their stead. See TEX.R.APP. P. 19.1(b). Our disposition of the appeal remains unchanged.
Nathaniel Cooper suffered a heart attack and died on the job while employed by United Parcel Services, Inc. A workers’ compensation claim was filed by Cooper’s fiancée, Terrica Barnes, on behalf of their son, Kainan. After Cooper’s injury was determined to be not compensable for purposes of workers’ compensation, Barnes filed suit against UPS, alleging gross negligence. UPS contends that the claim is barred by res judicata and collateral estoppel, and the trial court granted summary judgment against Barnes on those grounds. Because we conclude that the issues decided by the Department of Workers’ Compensation are not identical to those presented in this action for gross negligence, we reverse and remand for further proceedings.
Nathaniel Cooper was diagnosed at a young age with a congenital heart block. He underwent numerous heart surgeries and had four pacemakers. He also suffered permanent heart damage from malfunctioning pacing wires.
Cooper was employed by UPS as a supervisor. He worked in an un-air-conditioned warehouse in Houston and had been placed on light duty because of his heart condition and a recent cardiac event. On June 3, 2005, Cooper complained of feeling dizzy and collapsed. He suffered a heart attack and was later pronounced dead. The medical examiner determined that he died from heart complications.
Terrica Barnes, Cooper’s fiancée and mother of his infant son, filed a claim under the Texas Workers’ Compensation Act as next friend of the child. The hearing officer denied the claim, finding that Cooper’s “work was not a substantial contributing factor to the June 3, 2005 heart attack was not a compensable injury under the Act. Barnes did not appeal, and the decision concerning workers’ compensation benefits became final. She then filed a wrongful death lawsuit, alleging that UPS was grossly negligent in its failures to install an appropriate ventilation system and to implement adequate procedures to protect employees from exposure to high temperatures.
UPS filed a motion for summary judgment arguing that collateral estoppel and res judicata preclude litigation of the gross negligence claim. It argued that the issue of whether Cooper’s working conditions caused his heart attack had already been litigated before the Department of Workers’ Compensation and that Barnes’s gross negligence claim was barred because it was based on the same facts that had been determined during the DWC hearing. Barnes argued that her claim was not barred because the Texas Constitution and section 408.001(b) of the Texas Labor Code protect the right of an heir or surviving spouse to recover exemplary damages for the death of an employee whose death is caused by the employer’s gross negligence. She further argued that collateral estoppel did not apply because the DWC decision involved different questions of fact and law from those at issue in this lawsuit.
*170 The trial court granted the motion for summary judgment, and Barnes filed this appeal. On appeal, Barnes contends that the DWC’s prior compensability determination has no impact on her ability to assert a separate claim against UPS for gross negligence. She asserts that there is no relevant precedent to support the proposition that the principles of res judicata and collateral estoppel apply to decisions by the DWC. And she argues that even if they do apply generally, they are not applicable in this case because the facts at issue here are different from those previously litigated.
I. Standard of review
We review a trial court’s decision to grant a motion for summary judgment de novo. Nixon, 690 S.W.2d at 548–49. Any doubts are resolved in the nonmovant’s favor. Id.
II. Workers’ compensation claim
In its motion for summary judgment, UPS argued that it was entitled to summary judgment on the basis of res judicata and collateral estoppel, because the DWC non-compensability determination has preclusive effect in this lawsuit.
The Texas Workers’ Compensation Act provides the exclusive remedy and means of recovery for a covered employee who is killed or injured while working for his employer. TEX. LAB.CODE ANN. § 408.001(b).1
Ordinarily, a claimant is entitled to benefits if he demonstrates that he sustained a compensable injury. A compensable injury is one “that arises out of and in the course and scope of employment for which compensation is payable” under the Act. Id. § 401.011(10) (West Supp.2011).2 *171 A claimant must provide evidence of a “sufficient causal nexus between the workplace accident” and the claimant’s injury in order to receive benefits. Id. at 223.
To be compensable a workplace injury must be a producing cause of impairment, disability, illness, or death, but it need not be the sole or primary cause. See Degollado, 844 S.W.2d at 896–97.
When an employee dies as a result of a heart attack, however, compensability is determined under section 408.008. It is not sufficient for a claimant to establish merely that his injury arose out of and in the course and scope of employment. Rather, the complainant must prove that:
(1) the attack can be identified as:
(A) occurring at a definite time and place; and
(B) caused by a specific event occurring in the course and scope of the employee’s employment;
(2) the preponderance of the medical evidence regarding the attack indicates that the employee’s work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing factor of the attack; and
(3) the attack was not triggered solely by emotional or mental stress factors, unless it was precipitated by a sudden stimulus.
*172 Smith, 135 S.W.3d at 837.
In this case, the DWC hearing officer reviewed all of the medical data and other evidence submitted by the parties and concluded that Cooper did not sustain a compensable heart attack. Based on the medical evidence in the autopsy report and in the reports submitted by two physicians who reviewed Cooper’s case, the hearing officer found that “although the heat at work was speculated to be a possible factor,” he could not conclude that the conditions at work were a “substantial contributing factor” causing Cooper’s death under heart attack was not a compensable injury because his work was not a substantial contributing factor.
Based on the hearing officer’s compensability determination, UPS argued in its summary-judgment motion that Barnes’s gross negligence claim was precluded by the prior finding. Specifically, UPS asserted that Barnes’s gross negligence claim was collaterally estopped because the issue of whether “UPS caused Mr. Cooper’s death” had previously been litigated before and determined by the DWC. UPS also argued that all of the elements of res judicata were present and that Barnes’s gross negligence claim was barred because of the adverse finding on the causation issue. Barnes argues on appeal that res judicata does not apply to this claim because the right of a surviving heir to seek exemplary damages against a grossly negligent employer is protected by the Texas Constitution and by statute. She further contends that collateral estoppel does not apply because her burden of causation at the DWC hearing was higher than it is for her gross negligence claim.
*173 A. Res judicata
Res judicata is a generic term for the related concepts of claim preclusion (res judicata) and issue preclusion (collateral estoppel), and it must be pleaded as an affirmative defense. Voskamp v. Arnoldy, 749 S.W.2d 113, 126 (Tex.App.-Houston [1st Dist.] 1987, writ denied).
UPS contends that the trial court correctly granted summary judgment on res judicata grounds. To support its position, UPS relies on Wright v. Gifford–Hill & Co., 725 S.W.2d 712, 713–14 (Tex.1987).
UPS further contends that because Barnes’s second lawsuit involves the same set of facts as those addressed in the DWC proceeding, the trial court correctly concluded that the doctrine of claim preclusion bars her gross negligence claim. As discussed above, the issue to be determined by the DWC in a heart attack compensability case was whether the preponderance of the medical evidence indicates that the employee’s work rather than the natural progression of a preexisting heart condition or disease was a substantial contributing *174 factor. The issue to be determined for the gross negligence claim is whether UPS’s conduct involved an extreme degree of risk and whether it was aware of or acted with conscious indifference to that risk. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex.1994). Although the issues in this lawsuit do involve the same set of facts, Barnes could not raise her gross negligence claim before the DWC, and therefore her claim was not precluded in the subsequent suit. Accordingly, we hold that the trial court erred in granting summary judgment on claim preclusion grounds.
B. Collateral estoppel
The doctrine of collateral estoppel, also known as issue preclusion, “precludes relitigation of ultimate issues of fact actually litigated and essential to the judgment in a prior suit.” 18 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 4421 (2d ed. 1987) (“Issue preclusion attaches only to determinations that were necessary to support the judgment entered in the first action.... A jury’s special verdict, for instance, may resolve matters of fact that are then found irrelevant to the controlling legal issues; in such circumstances the special verdict does not preclude the same matters of fact in later litigation.”).
UPS argues that we should affirm the trial court’s judgment because the facts sought to be litigated were fully and fairly litigated in the DWC hearing. UPS argues that the ultimate issue of whether Cooper’s work caused his heart attack has already been decided. Conversely, Barnes argues that the DWC proceeding imposed a higher causation burden than that which is imposed in a gross negligence lawsuit and that the causation issue has not been fully and fairly litigated. The question, therefore, is whether the underlying causation issues decided by the hearing officer in the DWC compensability determination are identical to the causation issues to be decided in this lawsuit. See Smith, 135 S.W.3d at 836–37.
At the DWC hearing, Barnes was required to prove that: (1) Cooper’s Div. Workers’ Comp., Appeal No. 941034, 1994 WL 541008, at *3 (Sept. 14, 1994); Div. Workers’ Comp., Appeal No. 92115, at *5; Div. Workers’ Comp., Appeal No. 91009, at * 5. In order for the hearing officer to find that Cooper’s heart attack was a compensable injury, Barnes had to demonstrate by a preponderance of the medical evidence that Cooper’s work, rather than his heart condition, was a greater factor. Div. Workers’ Comp., Appeal No. 031786, at *1. The hearing officer stated that:
The credible medical evidence ... is that the natural progression of a preexisting heart condition was the precipitating factor in [Cooper’s heart attack], and that although the heat at work was speculated to be a possible factor, other factors could not be ruled out such that the hearing officer concludes that medically the conditions at work were not a substantial contributing factor....
The hearing officer thus recognized that the heat and working conditions may have played a role in causing Cooper’s heart attack, but he could not conclude that the work was a substantial contributing factor and therefore held that Cooper’s heart attack was not compensable.4
*176 This lawsuit and the issues to be decided in this case are different from those decided by the DWC. Here, Barnes must prove by clear and convincing evidence that Cooper’s death was proximately caused by UPS’s gross negligence. See Price v. Divita, 224 S.W.3d 331, 336–37 (Tex.App.Houston [1st Dist.] 2006, pet. denied).
In contrast, the causation burden imposed by section 408.008, to the extent there is a comparative element, is different from that of a plaintiff suing for gross negligence. See id. at *3; Div. Workers’ Comp., Appeal No. 91009, at *5.
*177 The difference is even clearer when the causation burden under section 408.008 requires proof of more than two equally plausible causes of the heart attack. Id.
Whereas a plaintiff in a gross negligence lawsuit can prevail if the fact finder concludes, among other elements, that the defendant’s conduct was a cause in fact of the injury (perhaps one among several), a heart attack is compensable under section 408.008 involves different questions from those in a gross negligence suit, we conclude that the causation issue was not fully and fairly litigated during the DWC compensability hearing, and we hold that the trial court erred in granting summary judgment on collateral estoppel grounds.
Because we conclude that the trial court improperly granted summary judgment, we sustain Barnes’s issue on appeal and reverse and remand to the trial court for further proceedings.
This section gives effect to article XVI, section 26 of the Texas Constitution, which provides that:
Every person, corporation, or company, that may commit a homicide, through ... gross neglect, shall be responsible in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be....
TEX. CONST. art. XVI, § 26.
“ ‘Injury’ means damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease.” Tex. Indem. Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026, 1028–29 (Tex. Comm’n App.1940)).
Under the Payday Law, a claimant may choose between two alternative remedial courses—a common law remedy or a statutory remedy. Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 87 (Tex.2008). The statutory right of action is cumulative. Id.
UPS’s motion for rehearing asserts that the DWC hearing officer found as a factual matter that Cooper’s work was not even a cause of his heart attack. Although UPS relies on several statements in the DWC decision, it focuses mainly on the officer’s finding that “Nathaniel Cooper’s work was not a substantial contributing factor to the June 3, 2005 cardiac arrest but rather it was the natural progression of a preexisting heart condition.” UPS argues that given this determination, the comparative element of the causation standard under Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818–19 (Tex.1984).
Even though proximate cause also requires proof of foreseeability, we are only concerned with the cause-in-fact aspect of the definition of proximate cause because that was the only aspect of causation considered by the DWC. See Id. at 221 n. 7.
In Crump, the plaintiff argued that requiring workers’ compensation complainants to demonstrate that that the employee’s work was a substantial factor in bringing about their injury imposed a higher burden on claimants than had formerly been imposed. Tex. Indem. Ins. Co. v. Staggs, 134 Tex. 318, 134 S.W.2d 1026, 1030 (Tex.Com.App.1940)).