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This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 18, 2004. The hearing officer determined that appellant (claimant) was not in the course and scope of her employment when involved in the “team building” event on _______________; (2) the claimed injury arose out of voluntary participation in an off-duty social activity not constituting part of claimant’s work-related activities, thereby relieving respondent 2 (carrier 2) of liability; (3) (employer 2) was claimant’s employer for purposes of the Texas Workers’ Compensation Act at the time of the claimed injury; and (4) claimant did not have disability. Claimant appealed these determinations on sufficiency grounds and also contends that the hearing officer misapplied the law. Both respondent 1, Ace American Insurance Company (carrier 1), carrier for (employer 1) and carrier 2, St. Paul Fire and Marine Insurance Company, carrier for employer 2, responded that the Appeals Panel should affirm the hearing officer’s decision and order.[1]

DECISION

Finding no reversible error under the facts of this case, we affirm.

We have reviewed the complained-of determinations regarding whether claimant was in the course and scope of her employment at the time of the injury and conclude that the issue involved fact questions for the hearing officer. The hearing officer reviewed the record and decided what facts were established. We conclude that the hearing officer’s determinations are supported by the record and are not so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). We further conclude that the hearing officer did not incorrectly apply the law in deciding the course and scope issue. The hearing officer applied Section 406.032(1)(D), which is the applicable law to be considered in this case. The hearing officer could find that claimant was not in the course and scope of her employment at the time of the injury.

Claimant contends the hearing officer erred in determining that employer 2 was claimant’s employer for purposes of the Texas Workers’ Compensation Act at the time of the claimed injury. From the hearing officer’s discussion, it is clear that he believed that attendance at the social event of _______________, was not a reasonable expectancy of either employer. The hearing officer apparently determined that attendance at the event of _______________, was not expressly or impliedly required by either employer 1 or employer 2. Therefore, since claimant was not in the course and scope of employment with either employer 1 or employer 2 at the time of the injury, we perceive no reversible error in this regard. Because there was no compensable injury in the course and scope of employment, there can be no disability and we perceive no error in the hearing officer’s disability determination.

We affirm the hearing officer’s decision and order.

According to information provided by carrier 1, the true corporate name of the insurance carrier is ACE AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is

ROBIN M. MOUNTAIN

6600 CAMPUS CIRCLE DRIVE EAST, SUITE 300

IRVING, TEXAS 75063.

According to information provided by carrier 2, the true corporate name of the insurance carrier is ST. PAUL FIRE AND MARINE INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

701 BRAZOS, SUITE 1050

AUSTIN, TEXAS 78701.

Judy L. S. Barnes

CONCUR:

Thomas A. Knapp
Appeals Judge

Edward Vilano
Appeals Judge

  1. The hearing officer listed only one carrier in the heading for the decision and order, but two carriers participated as parties at the hearing.

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on May 11, 2004. The hearing officer resolved the disputed issues by deciding that the appellant (claimant) did not sustain a compensable injury to her right knee and ankle on _______________; that the claimant was not in the course and scope of her employment at the time of the _______________, slip and fall; and that since there is no compensable injury, there can be no disability. The claimant appealed, disputing the determinations of the hearing officer on sufficiency of the evidence grounds. The claimant argues she was in the course and scope of her employment at the time she slipped in the parking lot. The appeal file did not contain a response from the respondent (carrier).

DECISION

Affirmed.

A claimant in a workers' compensation case has the burden to prove by a preponderance of the evidence that she sustained a compensable injury in the course and scope of her employment. Johnson v. Employers Reinsurance Corporation, 351 S.W.2d 936 (Tex. Civ. App.-Texarkana 1961, no writ). A "compensable injury" means "an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle." Section 401.011(10). "Course and scope of employment" means, in pertinent part, "an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer." Section 401.011(12). In General Ins. Corp. v. Wickersham, 235 S.W.2d 215 (Tex. Civ. App.-Fort Worth 1950, writ ref'd n.r.e.), the court stated that an injury is not compensable if received during a deviation by the employee from the course and scope of employment, but after the deviation is over, injuries thereafter received are compensable. In Lesco Transportation Company, Inc. v. Campbell, 500 S.W.2d 238 (Tex. Civ. App.-Texarkana 1973, no writ), the court stated as follows:

Stated in converse terms, the rule is that when an employee abandons and turns aside from the course and scope of his employment, such deviation defeats a claim for compensation. Such deviation occurs if at the time of the injury the employee is engaged in and pursuing personal work or objectives that do not further the employer's interest. An injury received under such circumstances is not from a hazard that has to do with and originates in the employer's business, work, trade or profession. [Citation omitted.]

In the instant case, the hearing officer specifically found that the claimant was not furthering the affairs of the employer when she was in the employee’s parking lot checking on her son’s car because of mechanical problems. The claimant had the burden to prove that she sustained an injury in the course and scope of her employment and that she had disability. These issues presented factual questions for the hearing officer to determine from the evidence presented. As the finder of fact, the hearing officer resolves the conflicts in the evidence and determines what facts have been established from the evidence presented. Nothing in our review of the record indicates that the hearing officer’s determinations are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

800 BRAZOS, SUITE 750, COMMODORE 1

AUSTIN, TEXAS 78701.

Margaret L. Turner
Appeals Judge

CONCUR:

Judy L. S. Barnes
Appeals Judge

Robert W. Potts
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on September 17, 2003. The hearing officer resolved the disputed issues by determining that the respondent/cross-appellant’s (claimant) ______________, injury arose from her voluntary participation in an off-duty activity and, therefore, was not work-related; that the appellant/cross-respondent (self-insured) waived the right to contest the compensability of the claimed injury by not timely contesting it in accordance with Section 409.021; that due to the self-insured’s waiver of the right to contest compensability, the claimant’s injury became compensable as a matter of law; and that the claimant had disability from March 14 through April 13, 2003, with the exception of the week of “spring break.” The self-insured appeals the waiver determination and its resulting effect on compensability and disability. The claimant appeals the determination that her injury was not work related. Both parties responded to the opposition’s request for review.

DECISION

Affirmed.

Section 409.021(a) and Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 124.1(a) (Rule 124.1(a)) require receipt of written notice of an injury to trigger the 7-day pay or dispute period. Rule 124.1(a)(3) indicates that any communication, regardless of source, may serve as written notice of injury if it fairly informs the carrier of the name of the injured employee, the identity of the employer, the approximate date of the injury, and information which asserts that the injury is work-related. In determining that the self-insured first received notice of the injury on March 14, 2003, the hearing officer noted that the school principal generated an e-mail on that date that clearly identified the claimant, the nature and date of the injury, and that by detailing the circumstances of the injury, made an “assertion of work-relatedness.” It is the work-related aspect which the self-insured complains was not included in the notice. The self-insured contends that because the e-mail does not specifically identify the injury as “work-related” and because the creator of the e-mail did not believe that the injury was work-related, the requirements of Rule 124.1(a)(3) were not satisfied. We disagree. The hearing officer explained that given the content of the e-mail, the fact that the self-insured did not recognize “the circumstances as an assertion of work-relatedness does not diminish the effectiveness of this notice.” The hearing officer concluded that the self-insured waived the right to dispute compensability of the claimed injury by not doing so until March 24, 2003, and, consequently, the claimant’s left ankle and wrist injuries became compensable as a matter of law. In view of the evidence presented, we cannot conclude that the hearing officer’s waiver, compensability, or disability determinations are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

The hearing officer determined that the claimant was not injured in the course and scope of her employment because at the time of the injury, she was voluntarily participating in an activity that she was not expressly or impliedly required to attend and her attendance was not a reasonable expectancy of her employment. Conflicting evidence was presented at the hearing on this issue. The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)); the fact finder resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)). We perceive no reversible error in the hearing officer’s determination that the claimant’s injury occurred while participating in an activity that was not a part of her work-related duties. Cain, supra.

The hearing officer’s decision and order are affirmed.

The true corporate name of the carrier is

(a self-insured governmental entity) and the name and address of its registered agent for service of process is

RM

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Chris Cowan

CONCUR:

Gary L. Kilgore
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on July 14, 2003. The hearing officer resolved the disputed issues by deciding that the respondent (claimant) sustained a compensable injury on ______________; that the claimed injury did not arise out of voluntary participation in an off-duty recreational or athletic activity not constituting part of the claimant’s work-related activities, therefore, the apellant (carrier) is not relieved from liability; and that the claimant had disability beginning ______________, and continuing through the date of the CCH. The carrier appealed, arguing that the medical evidence does not support the hearing officer’s determinations and that the claimant was not in the course and scope of her employment because the injury arose out of the claimant’s voluntary participation in an off-duty recreational or athletic activity. The claimant responded, urging affirmance.

The claimant did not appear at the hearing, due to the serious nature of her injury, but was represented by her attorney of record.

DECISION

Affirmed.

The employer’s representative testified that the employer encouraged its employees to participate in a wellness program that was initiated to increase employees’ health, increase employee retention, reduce employee stress, and lower employees’ healthcare insurance premiums. The employer paid for the employees’ health club membership dues and gave time off to employees to participate in the program. The health club then provided written reports on the participants to the employer. It was undisputed that the claimant was a participant in the wellness program.

The claimant’s husband testified that on ______________, the claimant returned home after an early morning workout session at a local health club and complained about an abdominal workout machine that was mispositioned, causing her head to be at a lower angle than usual. The claimant developed a severe headache, but decided to go to work rather than seek medical attention. After losing consciousness at work, she was transported by ambulance to the emergency room. In a report from Dr. M dated May 5, 2003, the claimant’s CT scan was reported to have shown an “intracerebral hemorrhage which bled in to the ventricles of the brain causing them to be obstructed and creating [an] exceedingly high pressure situation threatening herniation of the brain.” In the same report, Dr. M opined that “the hemorrhage was caused by straining and attempting to do physical exercises.” Dr. M noted that tests were performed to rule out other causes of hemorrhage such as aneurysm or rupture of an abnormal blood vessel and concluded that the hemorrhage was “purely a result of sudden and severe strain while performing physical exercises.” The evidence reflects that the claimant underwent an emergency procedure to relieve pressure on the brain and externally drain spinal fluid and blood. The claimant has been unable to work since ______________.

A compensable injury is defined as an "injury that arises out of and in the course and scope of employment for which compensation is payable . . . ." Section 401.011(10). An insurance carrier is not liable for compensation if the injury "arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the employee's work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employment. . . . " Section 406.032(1)(D).

The hearing officer cited Texas Workers' Compensation Commission Appeal No. 982340, decided November 13, 1998, in which the Appeals Panel recognized the three-pronged, disjunctive test enunciated in Mersch v. Zurich Insurance Company, 781 S.W.2d 447 (Tex. App.-Fort Worth 1989, writ denied), for determining whether participation in the off-duty recreational, social, or athletic activity was in the course and scope of employment. Under this test, the activity is in the course and scope of employment if (1) participation is expressly or impliedly required by the employer; (2) the employer derives some tangible benefit from the activity; or (3) the injury occurs at the place of employment or immediate vicinity while the employee is required to hold him/herself in readiness for work and the activity takes place with the employer's express or implied permission. The hearing officer was persuaded that the evidence showed that the employer impliedly required the claimant’s participation in the wellness program and that the employer derived some tangible benefit from the activity. Therefore, the hearing officer determined that the claimant was in the course and scope of her employment when the injury occurred.

The Appeals Panel has recognized that whether or not an injured employee's participation in an off-duty recreational, social, or athletic activity is a reasonable expectancy of the employment is a question of fact for the hearing officer to resolve. Texas Workers' Compensation Commission Appeal No. 941269, decided November 8, 1994. Further, the hearing officer is the sole judge of the weight and credibility of the evidence Section 410.165(a)); the fact finder resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)). Upon review of the record submitted, we find no reversible error and we will not disturb the hearing officer's determinations unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). We do not so find and, consequently, the decision and order of the hearing officer are affirmed. In that the carrier's appeal on the issue of disability is premised entirely on the fact that claimant had not sustained a compensable injury, by affirming the hearing officer's decision on the compensable injury, we also affirm the finding on disability.

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RUSSELL R. OLIVER, PRESIDENT

221 WEST 6TH STREET

AUSTIN, TEXAS 78701.

Margaret L. Turner

CONCUR:

Judy L. S. Barnes
Appeals Judge

Elaine M. Chaney
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on December 11, 2002. The hearing officer determined that the respondent (claimant herein) sustained a compensable injury; that the appellant (carrier herein) is not relieved of liability pursuant to Section 409.002; and that the claimant did not have disability. The carrier appeals, contending that the claimant’s injury was not compensable pursuant to 406.032(1)(D) because it arose out of the claimant’s voluntary participation in an off-duty recreational, social or athletic activity. The carrier also contends that the hearing officer erred in concluding that the carrier was not relieved of liability pursuant to Section 409.002. The claimant responds, arguing that the decision of the hearing officer should be affirmed.

DECISION

Finding sufficient evidence to support the decision of the hearing officer and no reversible error in the record, we affirm the decision and order of the hearing officer.

The carrier contends that the hearing officer did not make any findings concerning whether the claimant was engaged in a voluntary off-duty athletic activity at the time of his injury. The hearing officer found that the claimant’s injury was compensable, implicitly rejecting the carrier’s position that it was relieved of liability. More importantly, in his discussion the hearing officer makes absolutely clear that the “pivotal issue in this case” was whether or not the claimant’s participation in the flag football practice in which he was injured was made mandatory by the employer or was voluntary. The hearing officer discusses the evidence in detail and explains why he believed that the evidence, while conflicting, convinced him that the claimant’s participation in the flag football game in which he was injured was mandatory, not voluntary. In its appeal the carrier discusses the evidence supporting its position that the claimant’s participation in the flag football game was voluntary. Section 410.165(a) provides that the contested case hearing officer, as finder of fact, is the sole judge of the relevance and materiality of the evidence as well as of the weight and credibility that is to be given the evidence. It was for the hearing officer, as trier of fact, to resolve the inconsistencies and conflicts in the evidence. Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701, 702 (Tex. Civ. App.-Amarillo 1974, no writ). This is equally true regarding medical evidence. Texas Employers Insurance Association v. Campos, 666 S.W.2d 286, 290 (Tex. App.-Houston [14th Dist.] 1984, no writ). The trier of fact may believe all, part, or none of the testimony of any witness. Taylor v. Lewis, 553 S.W.2d 153, 161 (Tex. Civ. App.-Amarillo 1977, writ ref'd n.r.e.); Aetna Insurance Co. v. English, 204 S.W.2d 850 (Tex. Civ. App.-Fort Worth 1947, no writ). An appeals-level body is not a fact finder and does not normally pass upon the credibility of witnesses or substitute its own judgment for that of the trier of fact, even if the evidence would support a different result. National Union Fire Insurance Company of Pittsburgh, Pennsylvania v. Soto, 819 S.W.2d 619, 620 (Tex. App.-El Paso 1991, writ denied). When reviewing a hearing officer's decision for factual sufficiency of the evidence we should reverse such decision only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986). Applying this standard, we find no error in the hearing officer’s determining that the claimant’s participation in the flag football game was mandatory and concluding that the claimant’s injury was compensable.

Nor do we find merit in the carrier’s argument that the hearing officer erred in not finding it was relieved of liability pursuant to Section 409.002. The 1989 Act generally requires that an injured employee or person acting on the employee's behalf notify the employer of the injury not later than 30 days after the injury occurred. Section 409.001. The 1989 Act provides that a determination by the Texas Workers' Compensation Commission that good cause exists for failure to provide notice of injury to an employer in a timely manner or actual knowledge of the injury by the employer can relieve the claimant of the requirement to report the injury. Section 409.002. The burden is on the claimant to prove the existence of notice of injury. Travelers Insurance Company v. Miller, 390 S.W.2d 284 (Tex. Civ. App.-El Paso 1965, no writ). Also, the actual knowledge exception requires actual knowledge of an injury. Fairchild v. Insurance Company of North America, 610 S.W.2d 217, 220 (Tex. Civ. App.-Houston [1st Dist.] 1980, no writ). The burden is on the claimant to prove actual knowledge. Miller v. Texas Employers' Insurance Association, 488 S.W.2d 489 (Tex. Civ. App.-Beaumont 1972, writ ref'd n.r.e.).

In the present case, the hearing officer found as a matter of fact that at the time of the claimant’s injury, one of the claimant’s managers was present, saw the circumstances surrounding the injury, and discussed with the claimant the claimant’s intention to seek medical attention for the injury. This factual finding sufficiently supports the hearing officer’s legal conclusion that the carrier was not relieved of liability pursuant to Section 409.002.

The decision and order of the hearing officer are affirmed.

The true corporate name of the insurance carrier is AMERICAN HOME ASSURANCE COMPANY and the name and address of its registered agent for service of process is

JIM MALLOY

8144 WALNUT HILL LANE, SUITE 1600

DALLAS, TEXAS 75231.

Gary L. Kilgore
Appeals Judge

CONCUR:

Thomas A. Knapp
Appeals Judge

Terri Kay Oliver
Appeals Judge

This appeal arises pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on August 21, 2002. The hearing officer resolved the disputed issues by deciding that the claimed injury arose out of voluntary participation in an off-duty recreational, social, or athletic activity not constituting part of the appellant’s (claimant) work-related duties, thereby relieving the respondent (carrier) of liability for compensation; and that the claimant did not sustain a compensable injury on _____________. The claimant appealed the determinations on sufficiency of the evidence grounds. The carrier responded, urging affirmance.

DECISION

Affirmed.

The claimant testified that she was injured during a bowling activity which was part of a workshop she attended. The claimant argues that the workshop she attended was part of her professional development and that this would qualify for a part of the 80 hours of college service hours she was required to have per semester. The hearing officer specifically found that the bowling activity was an optional, social event and that the claimant’s participation in the bowling event was not expressly or impliedly required by the employer.

A compensable injury is defined as an "injury that arises out of and in the course and scope of employment for which compensation is payable . . . ." Section 401.011(10). An insurance carrier is not liable for compensation if the injury "arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the employee's work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employment. . . . " Section 406.032(1)(D).

The Appeals Panel has recognized that whether or not an injured employee's participation in an off-duty recreational, social, or athletic activity is a reasonable expectancy of the employment is a question of fact for the hearing officer to resolve. Texas Workers' Compensation Commission Appeal No. 941269, decided November 8, 1994. Further, the hearing officer is the sole judge of the weight and credibility of the evidence Section 410.165(a)); the fact finder resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)); and the Appeals Panel does not disturb appealed fact findings of a hearing officer unless they are against the great weight and preponderance of the evidence In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951).

We affirm the decision and order of the hearing officer.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

PRESIDENT

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Margaret L. Turner

CONCUR:

Elaine M. Chaney
Appeals Judge

Thomas A. Knapp
Appeals Judge

This appeal is considered in accordance with the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). On September 8, 1999, a contested case hearing (CCH) was held in [City], Texas, with [hearing officer] presiding as hearing officer. The issues concerned whether the respondent, who is the claimant, sustained a compensable injury on [date of injury]; whether he was injured by voluntary participation in an off-duty activity not constituting part of his work-related duties, thereby relieving the appellant (self-insured) of liability; and whether he had disability from his injury. The self-insured’s position on the first two issues was that the claimant was not employed by the school district, a self-insured employer, on the date of his knee injury.

The hearing officer did not expressly address the claimant's employment status on the date of injury. The hearing officer found that self-insured was liable because the claimant was injured in furtherance of the affairs of the employer and that he was not hurt in an off-duty activity. He further found that the claimant had disability for the period from March 27 through September 8, 1999.

The self-insured has appealed, urging that the decision is wrong as a matter of law because a compensable injury must happen to one who holds the status of employee, which the claimant did not because he had resigned his position two weeks before his accident and was not engaged in an activity incident to his termination or resignation at the time of his injury. The self-insured argues that the finding as to voluntary participation is nonsensical because the claimant was not an employee. Finally, the self-insured urges that the dependent finding of disability is erroneous. The claimant generally responds that the factual findings of the hearing officer should not be set aside absent a great weight and preponderance against the decision. The claimant addresses the termination issue by noting that he merely resigned “on paper.”

DECISION

The decision being erroneous as a matter of law, we reverse and render.

The claimant testified that he had been a volunteer basketball coach at [School T], operated by the self-insured. He also had entered into a set contract with the school district to act as a part-time coach for another elementary basketball team; this contract ran for a set period from October 15, 1998, through February 20, 1999, for an average of 10 hours per week. The claimant said that the end date of the contract represented the end of the regular season. Schedules from prior years are consistent with the end of the regular basketball season being at or around this date in February.

The claimant agreed that on or about February 10, 1999, he entered into a contract of hire with School T. He was described as a teachers' aide. The claimant said that he never was a teachers' aide, however, and that this characterization was the idea of the principal, [Ms. O], as a way of getting him paid. The claimant said that he worked from three to six o'clock p.m. at least two and often three times a week as a coach, prior to March 12th. Apparently, there were second thoughts about this arrangement because the claimant said that Ms. O told him there may be a conflict and he therefore completed papers to resign his position on February 24, 1999, with an effective date of March 12, 1999. This resignation was duly processed and approved by the district, whose records indicate that his last day of employment was March 12, 1999. The claimant recited the reason for resignation as the possible conflict, apparently with his duties to the other school, although that contract and his duties there had concluded. The claimant testified that Ms. O also told him that she may have put herself "in a precarious position." The claimant said he had "been a volunteer before" and was not one to walk away from the kids at School T, who were the champions and could therefore participate in tournaments. He said he agreed to continue, but he had an understanding that Ms. O would "do right" by him and pay him for his time.

On [date of injury], the claimant drove the team in his private van to a tournament that was sponsored by "Project Seed." An official for the school district, [Ms. M], testified that it was her understanding that Project Seed was jointly sponsored by the [City] and private businesses for the purpose of fund-raising activities, although school gymnasiums were used. The claimant apparently was playing in a coaches game which was a component of this event, when he injured his right knee, ultimately requiring surgery. He said he had not been able to work since then, including his usual job of selling advertisements for a publication. The claimant said his medical bills were paid through his wife's regular health insurance.

Ms. M testified that paraprofessionals such as the claimant were paid monthly by the school district and that a check stub the claimant put into evidence, dated April 7, 1999, would represent payment for the period from March 8 through April 7, 1999, although it was her understanding that none of that amount represented payment after March 12, 1999. This showed that the claimant was paid for six hours. The claimant had answered the self-insured’s interrogatories by stating that he had not been paid for the tournament. He testified that when he reviewed his last check stub, it occurred to him that maybe he had been paid for it after all. He was unable to testify as to how long a pay period would be represented in a check stub. Ms. M said that, to her knowledge, there were no informal agreements entered into by the school district to allow someone to stay on, and be paid, after a resignation.

Because the school district is a self-insured political subdivision, the applicable statute is Section 504.001 et seq. of the Labor Code. Section 504.001(2) defines “employee” as:

  1. (A)a person in the service of a political subdivision who has been employed as provided by law; or

  2. (B)a person for whom optional coverage is provided under Section 504.012 or 504.013.

The referenced provisions in Section 504.001(2)(B) relate to coverage of volunteers and trustees of a self-insurance fund for whom coverage is optional with the political subdivision.

Recognizing the importance and prevalence of volunteers in school districts, the Legislature extended immunity from civil liability to such persons. Section 22.053(b) of the Texas Education Code defines "volunteer" to mean:

. . . a person providing services for or on behalf of a school district, or on the premises of the district or at a school sponsored and school related activity on or off school property, who does not receive compensation in excess of reimbursement for expenses.

Thus, it is recognized that persons who are not being paid wages by the school district may nevertheless be rendering services that "further" the business of the district or performing the duties that could also be performed by employees.

As the self-insured points out, however, the definition of "course and scope of employment" set out in Section 401.011(12), applicable to political subdivision through Section 504.002(1), requires also that the injured person qualify as an “employee.” Consequently, the hearing officer either made an implied finding that the claimant was an "employee" of the school district on [date of injury], or he failed to apply the entire definition of course and scope. As his discussion accepts that the claimant's resignation was effective March 12th, he also stated that the claimant was "acting in his capacity as an employee," so it appears that he impliedly found that the claimant was an employee.

An implied finding that the claimant was an employee of the school district on [date of injury] is against the great weight and preponderance of the evidence in this case, which essentially compels the conclusion that, on the day he was injured, the claimant was an unpaid volunteer for the school district. The claimant's testimony, as well as that of Ms. M, supports the conclusion that the six hours he was paid with the April 7, 1999, check represented the services rendered in the period from March 8th through March 12th. The fact that he was furthering the interests of the district is neither inconsistent with his volunteer status, nor does it trigger liability of the self-insured for workers' compensation benefits. It was part of the claimant's burden of proof in this case to show he was an employee, as defined in Section 504.001(2), which would include evidence that he was an optionally covered volunteer. Because the claimant was not an employee on [date of injury], the self-insured is not liable for workers’ compensation coverage, as matter of law. Although it is questionable that the benefit tournament qualified as a regular school activity, the regular season being over, we need not address this question as the claimant's volunteer status resolves the issue of compensability in this case.

We therefore reverse Conclusion of Law No. 4, in which the hearing officer held that the self-insured was liable because the claimant was injured in the course and scope of employment, and render a decision that the claimant was not an employee on his date of injury and, consequently, the self-insured is not liable. We further render the decision that because there is no compensable injury, there is no disability.

__________________________
Susan M. Kelley
Appeals Judge

CONCUR:

Alan C. Ernst
Appeals Judge

Tommy W. Lueders
Appeals Judge

This case returns following our decision in Texas Workers' Compensation Commission Appeal No. 990553, decided April 29, 1999, in which we remanded for further consideration and findings of fact. On June 18, 1999, the hearing officer, held a remand hearing and issued a decision which included additional findings of fact and conclusions of law and which determined, as did his original decision, that the appellant (claimant) did not sustain a compensable injury and did not have disability. Claimant appeals certain of the factual findings and legal conclusions, asserting once again that the injury she sustained in an automobile accident on ________, while on her way home from a workshop she attended after teaching at respondent's (self-insured) high school that day, was compensable because her attendance was required. Claimant also asserts that the hearing officer was prejudiced against her, badgered her, and was predisposed to decide the case against her. The self-insured contends that the evidence sufficiently supports the challenged findings and conclusions.

DECISION

Affirmed as reformed.

Our decision in Appeal No. 990553 contains a detailed recitation of the evidence adduced at the first hearing of which official notice was taken at the remand hearing and it need not be again set forth. No additional exhibits were introduced at the remand hearing but claimant was permitted to provide additional testimony and argument.

Briefly, claimant attended an event after completing her teaching duties at a high school on ________, and was injured in a motor vehicle accident on her way home from the event. Claimant testified that on ________, after finishing her special education math teaching at the high school where she was employed, she drove to a building owned by the self-insured elsewhere in the city where she attended an event she called a "workshop" which, she said, was conducted by (company), a vendor of teaching aids including Algeblocks, an algebra teaching aid. She estimated that six to eight of the approximately 15 teachers in the high school's math department also attended and that they signed in and were provided with name tags and soft drinks. Claimant stated that at this event, the company personnel demonstrated the use of Algeblocks, which involved the use of an overhead projector, and then "walked them through" the use of the product. She said she understands that the company was attempting to sell the product to the self-insured but she was not asked by the self-insured whether she recommended the purchase of the product and, in fact, she did not resume teaching at that school after her release from the hospital and now teaches at a different school in the district. Claimant further testified that she would not characterize the event as either a recreational, social, or athletic activity and conceded that the company's interest was in selling the teaching aid to the self-insured. She insisted, however, that she was at least impliedly required to attend the event in view of the content of the March 11, 1996, invitation letter from the vendor's representative, Ms. W; the August 6, 1997, statement of former school principal, Mr. A; the July 23, 1997, statement of Ms. D, the math department supervisor; the self-insured's requirement that teachers spend a certain amount of time each year in "in-service" training; and the fact that the student math scores at the school where claimant taught needed to be improved. These documents are fully described in Appeal No. 990553. Claimant also stated that she felt that there would have been some reprisal had she not attended but conceded she could not support that assertion with any documentation. She also conceded she had no documentation to reflect that she was credited with any in-service training time for her attendance.

The disputed issue before the hearing officer, in addition to the disability issue, was whether the claimed injury arose out of voluntary participation in an off-duty activity not constituting part of the claimant's work-related duties, thereby relieving the self-insured of liability for compensation. In Appeal No. 990553, we noted that Section 406.032(1)(D) provides that an insurance carrier is not liable for compensation if the injury "arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the employee's work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employment; . . . " We remanded for further consideration and findings because there were no findings in the first decision applying Section 406.032(1)(D) to the evidence and the hearing officer's discussion indicated that he may have decided the injury issue solely on the question of whether or not claimant's attendance at the function was voluntary.

Not appealed are findings that the company workshop was a company promotional activity; that the company was attempting to sell its line of company products to the self-insured; that claimant did not receive from her employer any additional wages, compensated time or expenses for attending the off-duty company promotional activity from her employer; and that claimant sustained an injury in an automobile accident "on March 27, 1998 [sic]."

Claimant does challenge findings that attendance at the company workshop was not mandatory; that her participation at the workshop was voluntary; that attendance at the company workshop was not part of her work-related duties; and that this event is not the type of event covered by Section 406.032(1)(D).

Claimant also challenges the conclusions that the injury she sustained in the automobile accident did not occur while she was in the course and scope of her employment; that the claimed injury arose out of voluntary participation in an off-duty activity not constituting part of claimant's work-related duties, thereby relieving the self-insured of liability for compensation; that because claimant did not sustain a compensable injury, she did not have disability; that the activity, a company promotional event, that claimant attended was not an off-duty recreational, social, or athletic activity; and that claimant's attendance at the activity, a company promotion event, was not a reasonable expectancy of, or expressly or impliedly required by, her employment.

Claimant had the burden to prove that she sustained the claimed injury in the course and scope of her employment and that she had disability as that term is defined in Section 401.011(16). Texas Workers' Compensation Commission Appeal No. 94248, decided April 12, 1994. The Appeals Panel has stated that in Workers' compensation cases, the disputed issues of injury and disability can, generally, be established by the lay testimony of the claimant alone. Texas Workers' Compensation Commission Appeal No. 91124, decided February 12, 1992. However, the testimony of a claimant, as an interested party, only raises issues of fact for the hearing officer to resolve and is not binding on the hearing officer. Texas Employers Insurance Association v. Burrell, 564 S.W.2d 133 (Tex. Civ. App.-Beaumont 1978, writ ref'd n.r.e.).

The hearing officer is the sole judge of the weight and credibility of the evidence (Section 410.165(a)), resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)), and determines what facts have been established from the conflicting evidence. St. Paul Fire & Marine Insurance Company v. Escalera, 385 S.W.2d 477 (Tex. Civ. App.-San Antonio 1964, writ ref'd n.r.e.). As an appellate reviewing tribunal, the Appeals Panel will not disturb the challenged factual findings of a hearing officer unless they are so against the great weight and preponderance of the evidence as to be clearly wrong or manifestly unjust and we do not find them so in this case. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King=s Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). The hearing officer makes clear in his decision that he did not find claimant's testimony credible and that he was not persuaded by her testimony or the evidence that claimant was required by the self-insured to attend the company's demonstration of the algebra teaching aid it was attempting to sell. Although, not articulated by the hearing officer (and never mentioned by the parties), the net effect of the hearing officer's findings is that claimant was not involved in a special mission, an exception to the "coming and going" rule. See Section 401.011(12)(A)(iii).

Claimant further asserts that the hearing officer was prejudiced against her, badgered her, and had his mind made up before the hearing as evidenced by the fact that his remand decision states that it was signed on February 19, 1999, the same date the original decision was signed. The latter is an obvious clerical error which does not affect the merits of the challenged findings, conclusions, and decision. Texas Workers' Compensation Commission records reflect that the remand decision was signed by the hearing officer on June 29, 1999, and we reform the decision to so reflect. We also note that Finding of Fact No. 2 refers to the date of the automobile accident as March 27, 1998, and we reform that finding to reflect the year as 1996. As for the allegations of prejudice and badgering, while the record of the remand hearing does reflect that the hearing officer, in ruling on objections and at times sua sponte, attempted to avoid the repetition of testimony previously given at the initial hearing and to focus claimant's responses on the precise questions asked, particularly on cross-examination, we cannot say that the record reflects unprofessional or unfair conduct of the remand hearing by the hearing officer such as would amount to a denial of due process.

The decision and order of the hearing officer are affirmed.

Philip F. O'Neill
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

Judy L. Stephens
Appeals Judge

A contested case hearing (CCH) was on February 17, 1999, pursuant to the Texas Workers' Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act), with hearing officer, to consider two disputed issues, to wit: (1) did the claimed injury arise out of voluntary participation in an off-duty activity not constituting part of the appellant's (claimant) work-related duties, thereby relieving the respondent (self-insured) of liability for compensation; and (2) did claimant have disability resulting from the injury sustained on March 27, 1996, through August 19, 1996. The hearing officer resolved the disputed issues by concluding that claimant did not sustain a compensable injury and did not have disability. Claimant has appealed these determinations, essentially restating her position below that her evidence met her burden of proof on the disputed issues. Claimant also complains of the denial of her request for subpoenas. The self-insured urges in response that the evidence is sufficient to support the appealed findings and conclusions.

DECISION

Reversed and remanded.

Not appealed is a finding that claimant, stipulated to have been an employee of the self-insured, "sustained an injury in an automobile accident _______ [sic, should be 1996], while on her way home from an Algeblocks workshop."

Claimant testified that she is employed by the self-insured as a special education algebra and geometry teacher at (the high school) in (city 1); that in March 1996 the high school was in jeopardy of being closed by the State of Texas for its low Texas Assessment of (TAAS) scores; that on March 27, 1996, just after classes ended, she and other math teachers from the high school were sent off campus to the (the building) in city 1 to attend a workshop on Algeblocks presented by the ETA (the company); that the workshop was attended by math teachers from all over city 1; that as far as she knows, the company is a vendor of teaching aide products such as Algeblocks but she does not know if the company was trying to sell products at that time; that she did not have to reserve a place at the workshop in advance, did not have to pay to attend, and does not know about any financial arrangements between the self-insured and the company; that she received a free packet of materials about Algeblocks at the function; that she did not receive any mileage reimbursement or per diem payment for attending; that she signed in at the function; and that she assumed she would receive two hours of teacher continuing education credit for attending but has no evidence that any such credit was granted. Claimant stated that it was her position that her attendance was mandatory because of the high school's effort to raise its TAAS scores and the self-insured's requirements for teachers to participate in continuing education as a part of staff development. Asked whether there were any repercussions for math teachers who did not attend, claimant responded that "they could get called in and be verbally reprimanded" and that "I know it goes on."

Claimant further stated that while driving home after the workshop concluded, she was involved in a motor vehicle accident and her left shoulder area was injured; that she was in the hospital for 24 hours and released; that she was taken off work on March 28, 1996, and on some subsequent dates by one or more of her doctors, as reflected in her medical records; that she was referred to Dr. B, a neurologist, who released her to return to work on April 29, 1996, but that her treating doctor did not release her at that time; that her most recent treating doctor is Dr. F; that she was not released to return to full-duty employment by Dr. F until August 13, 1996; that she was off work during the summer; and that she resumed full-time employment on August 19, 1996, when the next school term commenced.

In evidence is a March 11, 1996, letter (the company letter) from company representative Ms. W to the Math Department Chairperson, inviting that person and the algebra teachers to a March 27, 1996, presentation from 4:00 to 6:00 p.m. on using "algebra manipulatives" in the classroom. A handwritten note on this letter, only partially legible on the exhibit, appears to state: "[Ms. D] [and] Math Dept, Special Att: All Algebra teachers, let's go!" No evidence was adduced identifying the author of this note. Claimant testified that Ms. D is the math department supervisor. The letter also states that Ms. R, the self-insured's mathematics director, had scheduled a room in the Human Resources Training Center in the building for the presentation.

Also in evidence is a July 23, 1997, statement from Ms. D stating that, as chairman of the math department at the high school, she gave to each department member a copy of "a flyer" which came from the principal's office requesting that they all attend an Algeblocks workshop on March 27, 1996, in the building, from 4:00 to 6:00 p.m., and that she, claimant, and several other teachers did attend.

An August 6, 1997, handwritten statement from Mr. A states that he was the principal of the high school during the 1995-1996 school year; that as part of the math staff development, the math department was instructed to attend the Algeblocks workshop on March 27, 1996; that the high school had performed poorly in the math TAAS scores and it was essential that math teachers attend as many workshops as possible to increase student achievement; and that he authorized the distribution of the company letter and fully supported claimant's attendance. In his recorded statement of June 10, 1998, Mr. A stated that it was not mandatory that claimant attend the workshop and that attendance was not required by the self-insured, but that he, as the principal of the high school who was making efforts to raise the TAAS scores, "very much encouraged" and "more or less required" his math faculty to go, and that claimant "was being supportive by going there."

In evidence is a portion of the self-insured's Administrative Procedures, namely, Article Five - Employee Procedures, 572.680, entitled "Inservice and Staff Development," which states, in part, that teachers "may be required during the school year to attend staff development sessions," and that the "planning of such staff development programs shall be developed through a cooperative effort of the teachers and the Administration."

A June 24, 1996, memorandum from Ms. R stated that attendance at the training session in Algeblocks offered by the company on March 27, 1996, "was voluntary" and was open to all of the self-insured's algebra teachers.

The self-insured's Payment of Compensation or Notice of Refused or Disputed Claim Interim (TWCC-21) dated May 1, 1996, reflects that the self-insured disputed the claim for the reasons that there is no injury in the course and scope of employment; that there is no medical documentation to support a causal connection to the workplace; that there is no injury or accident "as defined in the Act"; that claimant reported that she was on the highway on the way home when she was rear-ended by another party; that claimant's alleged injury did nor arise from an on-the-job injury; and that claimant did not have disability because she did not have a compensable injury and had no medical evidence to support disability. We observe that although a "coming to and going from" work defense is raised by the self-insured in the TWCC-21 (see Section 401.011(12)(A) and (B)), it was not a disputed issue at the BRC or the CCH.

Claimant appeals findings that her participation in the workshop was voluntary and that she was not injured in the course and scope of employment, and "conclusions that the injury sustained in an automobile accident did not occur while she was in the course and scope of her employment, that the claimed injury arose out of her voluntary participation in an off-duty activity not constituting part of her work-related duties, thereby relieving the self-insured of liability for compensation, that she did not sustain a compensable injury, and that she did not have disability.

In his discussion of the evidence, the hearing officer states that the company letter does not reflect that teacher attendance was mandatory; that, although claimant testified that attending the function was part of her staff development, the self-insured's Administrative Procedures state that staff development is a function of the self-insured and is mandatory; that the company letter does not indicate that staff development credit would be given and claimant could not verify she received any credit; that, although Mr. A encouraged teachers to attend, attendance was not mandatory; that claimant's's injury arose out of voluntary participation in an off-duty activity not constituting a part of her work-related duties; and that, as a result, she was not in the course and scope of employment when she had the accident on her way home.

A compensable injury is defined as an "injury that arises out of and in the course and scope of employment for which compensation is payable . . . ." Section 401.011(10). An insurance carrier is not liable for compensation if the injury "arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the employee's work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employment; . . . " Section 406.032(1)(D).

The Appeals Panel has had a number of occasions to review cases involving the application of Section 406.032(1)(D) and has both affirmed and reversed and rendered. See, e.g., Texas Workers' Compensation Commission Appeal No. 93843, decided November 3, 1993; Texas Workers' Compensation Commission Appeal No. 941269, decided November 8, 1994; Texas Workers' Compensation Commission Appeal No. 951781, decided December 13, 1995; Texas Workers' Compensation Commission Appeal No. 960515, decided April 26, 1996; Texas Workers' Compensation Commission Appeal No. 981313, decided August 3, 1998; Texas Workers' Compensation Commission Appeal No. 982340, decided November 13, 1998. In the latter case, there was discussion in both the majority opinion and the concurring opinion as to whether the so-called common-law Mersch test (referring to Mersch v. Zurich Insurance Company, 781 S.W.2d 447, 450 (Tex. App.-Fort Worth 1989, writ denied) is still controlling, given the subsequent enactment of Section 406.032(1)(D)).

The Appeals Panel has recognized that whether or not an injured employee's participation in an off-duty recreational, social, or athletic activity is a reasonable expectancy of the employment is a question of fact for the hearing officer to resolve. Appeal No. 941269, supra. Further, the hearing officer is the sole judge of the weight and credibility of the evidence Section 410.165(a)); the fact finder resolves the conflicts and inconsistencies in the evidence (Garza v. Commercial Insurance Company of Newark, New Jersey, 508 S.W.2d 701 (Tex. Civ. App.-Amarillo 1974, no writ)); and the Appeals Panel does not disturb appealed fact findings of a hearing officer unless they are against the great weight and preponderance of the evidence (In re King=s Estate., 150 Tex. 662, 244 S.W.2d 660 (1951)).

We are constrained to reverse the decision and order of the hearing officer and remand for further consideration and findings of fact by the hearing officer, based on the evidence of record, because there are no findings of fact applying Section 406.032(1)(D) to the evidence and the hearing officer's discussion indicates that he may have decided the matter simply on the question of whether or not claimant's attendance at the function was voluntary or mandatory. There is no finding of fact concerning whether the event claimant attended was an off-duty recreational, social, or athletic event, nor were there any findings of fact concerning whether claimant's attendance at the event, assuming it was the type of event covered by Section 406.032(1)(D), was a reasonable expectancy of or expressly or impliedly required by her employment.

According to documents accompanying the record but not in evidence, the Texas Workers' Compensation Commission received on December 31, 1998, claimant's requests for subpoenas for the testimony of Dr. F (concerning claimant's continuing medical problems) and of Ms. D and Mr. A (concerning whether attendance at the workshop was mandatory). Concerning the request for Dr. F's testimony, claimant's request stated that Dr. F could not voluntarily testify but could testify via telephone. A Commission hearing officer denied this request for the stated reason that no good cause was shown. Concerning the requests for Ms. D and Mr. A, claimant's requests stated, respectively, that they "may not" and "possibly" will not appear voluntarily. The same hearing officer denied the request for Ms. D, stating that no good cause was shown and that there was no showing that the proposed testimony could not be presented by statement or deposition. The request for Mr. A was denied for the stated reason that good cause was not shown and that the request did not meet the requirements for obtaining a subpoena. Tex. W.C. Comm'n, 28 TEX. ADMIN. CODE § 142.12(d) provides that the hearing officer may deny a request for a hearing subpoena upon a determination that the testimony may be adequately obtained by deposition or written affidavit. Claimant did not renew her requests for subpoenas at the hearing or otherwise mention them and did introduce into evidence her medical records and written statements from Ms. D and Mr. A. We do not find an abuse of discretion in the denial of claimant's requests for subpoenas. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).

We reverse the decision and order of the hearing officer and remand for such further consideration of the evidence of record and for such further findings of fact and conclusions of law as are appropriate and not inconsistent with this decision.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Workers' Compensation Commission's Division of Hearings, pursuant to Section 410.202. See Texas Workers' Compensation Commission Appeal No. 92642, decided January 20, 1993.

Philip F. O'Neill
Appeals Judge

CONCUR:

Gary L. Kilgore
Appeals Judge

Judy L. Stephens
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 9, 1998, in (City), Texas, with [hearing officer] presiding as hearing officer. He determined that the respondent (claimant) was injured in the course and scope of her employment on [date of injury]. The appellant (self-insured) appeals this determination, contending that it is against the great weight and preponderance of the evidence. The claimant replies that the decision is correct, supported by sufficient evidence, and should be affirmed.

DECISION

Affirmed.

The claimant worked as an elementary school teacher for the self-insured. It was not disputed that she injured her right knee on [date of injury], while preparing for a school carnival held that day on the school premises. The issue for resolution was whether the injury was compensable.

A compensable injury is an injury "that arises out of and in the course and scope of employment for which compensation is payable...." Section 401.011(10). Course and scope of employment for purposes of this case means "an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer." Section 401.011(12). Pursuant to Section 406.032(1)(D), a carrier, in this case the self-insured, is not liable for compensation if the injury "arose out of voluntary participation in an off-duty recreational, social, or athletic activity that did not constitute part of the employee’s work-related duties, unless the activity is a reasonable expectancy of or is expressly or impliedly required by the employment." In Texas Workers’ Compensation Commission Appeal No. 92212, decided July 6, 1992, and Texas Workers’ Compensation Commission Appeal No. 92460, decided October 12, 1992, the Appeals Panel appears to have adopted the three-pronged, disjunctive test enunciated in Mersch v. Zurich Insurance Company, 781 S.W. 447 (Tex. App.- Fort Worth 1989, writ denied), for determining whether participation in such an activity was in the course and scope of employment. Under this test, the activity is in the course and scope of employment if (1) participation is expressly or impliedly required by the employer; or (2) the employer derives some tangible benefit from the activity; or (3) the injury occurs at the place of employment or immediate vicinity while the employee is required to hold him/herself in readiness for work and the activity takes place with the employer’s express or implied permission.

In an affidavit admitted into evidence, Ms. H, the school principal wrote that the carnival was "a joint or combined effort between the PTA and the [school]... The carnival is the major fund raising event for the school and the proceeds from the carnival go directly to various programs in the school to enhance the education of the students and to improve the quality of the school." She further wrote that the PTA existed solely to benefit the school; that participation in the carnival by the teachers "is extremely important"; and that "I strongly encouraged...the teachers to support the carnival by working at least one hour or more of extra time to help prepare for and produce this event." She also said that in the monthly staff meeting preceding the event and "on a regular basis in the morning announcements, I strongly encouraged each of our teachers to participate in the carnival and reminded them to be certain to sign-up for various booths and other carnival activities." Ms. H continued that she "in particular" asked the claimant to sponsor the Fun House based on her "special skills, experience and abilities in the design and creation of similar productions. We requested that [claimant] actively participate and we expected that she would be physically present and participate in the setup and supervision of the Fun House." She concluded the affidavit with the statement that at the time of the claimant’s injury, "her activities were consistent with the activities which I had requested of her." Ms. H also testified that she approached the claimant to sponsor the Fun House which she described as the "main feature of the carnival." Ms. H acknowledged in her testimony that she used the word "expected" in her affidavit, but in her testimony declined to use this word in favor of "anticipated" that the claimant would be at the carnival and that she "strongly encouraged" teachers to participate, but never "ordered" the claimant to be present at the carnival. She also testified that no one could be disciplined for not participating in the PTA or the carnival, nor was anyone paid for participating in the carnival, nor were classes conducted during the carnival.

Mr. K, the president of the PTA, testified that the claimant was asked to be in charge of the Fun House and could have said no, but once she agreed she had to be at the carnival. He also said that the PTA would probably consider whether a teacher participated in the carnival in responding to that teacher’s request to use the proceeds from the carnival for classroom activities.

The claimant testified that she was paid a salary regardless of whether she participated in the carnival. She said that the carnival chairperson asked her if she would organize the Fun House and that Ms. H then her asked if she would and was happy when the claimant told Ms. H that she would. She further stated that Ms. H encouraged the teachers "almost on a daily basis" to sign up to participate.

The hearing officer considered the evidence and made the following pertinent Finding of Fact No. 2:

On [date of injury], Claimant injured her right knee during voluntary participation in an off-duty activity for which there was a reasonable expectancy or implied requirement for Claimant’s participation and for which there was a tangible benefit to Employer in the form of funding for Employer’s school needs.

He concluded that the self-insured was not relieved of liability for compensation. The carrier appeals this determination arguing (1) that there was no legal relationship between the PTA and the school; (2) that Ms. H provided only "general encouragement" to participate in the carnival which did not rise to the level of a requirement of the claimant’s employment; and (3) that none of the three prongs of Mersch were met by the claimant.[1]

Much time was spent at the CCH addressing whether the benefit received by the school from the proceeds of the carnival was "substantial" or "tangential" so as to meet the second prong of the Mersch test. In a recent decision, Texas Workers’ Compensation Commission Appeal No. 981313, decided August 3, 1998, the Appeals Panel analyzed the compensability of injuries that occur while participating in off-duty recreation or social activities solely in terms of the statutory elements contained in Section 406.032(1)(D) and rejected the suggestion that in addition a claimant must prove some substantial benefit to the employer. Consistent with this decision, we need not address the question of benefits to the employer, but would only note that the hearing officer’s finding that a "tangible" benefit flowed to the school was compelled by the evidence. Were it necessary to address the carrier’s contention on appeal that the benefit was not substantial, but merely "tangential" (without knowing precisely what is intended by this term), we would similarly conclude that the evidence would support a finding of a substantial benefit to the educational mission of the school.

The statutory elements, either of which must be proved by the claimant to make this injury compensable, are whether (1) participation in the activity of preparing the Fun House for the carnival was a "reasonable expectancy" of the employment, or (2) the participation was "expressly or impliedly required by the employment." Whether these conditions existed were questions of fact for the hearing officer to decide. Texas Workers’ Compensation Commission Appeal No. 941705, decided February 6, 1995. The hearing officer found that the claimant’s participation met both these tests of compensability.

With regard to the reasonable expectancy test, the self-insured on appeal argues that the employer did nothing more than generally encourage the claimant to participate in the carnival and cites our decision in Texas Workers’ Compensation Commission Appeal No. 951781, decided December 13, 1995, for the proposition that such general encouragement does not establish a "reasonable expectancy" of the employment. That case involved an injury at a fundraiser for an association to which the employee belonged, not a fundraiser for the employer, and there was conflicting evidence about whether membership in the association was required for the claimant’s certification to work and over whether the employer encouraged membership in the association. The argument in the case we now consider presumably is that the claimant was participating in the carnival not as a teacher, but simply as a member of the PTA. There was evidence that all teachers were members of the PTA. There was also evidence that the teachers were repeatedly asked by Ms. H to participate. When read in a light most favorable to the self-insured, the evidence established that the claimant participated in the carnival as both a teacher and a member of the PTA. More importantly, however, was the evidence of Ms. H that she asked the teachers to participate and even used the word "expected" in her affidavit. While she arguably backpedaled from this word when she perhaps was made aware that it had a statutory significance, we conclude that the claimant’s testimony and the evidence of Ms. H were sufficient to support the finding of the hearing officer that the claimant’s participation was reasonably expected by the employment, and under our standard of review, we decline to reverse that determination. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Pool v. Ford Motor Company, 715 S.W.2d 629, 635 (Tex. 1986).[2]

Finally, the self-insured argues that participation in the carnival was not an express or implied requirement of the employment. This too was a question of fact for the hearing officer to decide. The evidence of Ms. H and Mr. K, the president of the PTA, provides a sufficient basis, we believe, for the inference that without teacher participation there would be no carnival. See Texas Workers' Compensation Commission Appeal No. 941269, decided November 8, 1994. While there was no evidence that without the funds provided by the carnival, the school would close, there was evidence in the affidavit of Ms. H that the carnival was a long-standing event and had been held for over 50 years as a "joint production between the PTA and the school itself." Simply because refusal to participate would not in itself result in termination or discipline, does not establish that participation was not a factor that could impact how a teacher’s performance was judged. Indeed, as noted above, failure to participate would be considered in whether to grant a teacher funds to enhance classroom activities and this in turn could have a bearing on how the effectiveness of the teacher was perceived. Under these circumstances, we believe the evidence was sufficient to support the finding that participation was at least an implied requirement of employment.

For the foregoing reasons and finding no legal error, we affirm the decision and order of the hearing officer.

Alan C. Ernst
Appeals Judge

CONCUR:

Tommy W. Lueders
Appeals Judge

CONCURRING OPINION:

I state at the outset that I concur with the majority's decision in the present case. I write separately to express some concern about the potential overreading of the majority decision in Texas Workers' Compensation Commission Appeal No. 981313, decided August 3, 1998, which is cited in the majority decision in the present case. First, I note that in regard to Mersch v. Zurich Insurance Co., 781 S.W.2d 447, 450 (Tex. App.-Fort Worth 1989, writ denied) (hereinafter Mersch) the Appeals Panel has on many occasions prior to the majority decision in Appeal No. 981313, supra, cited Mersch as controlling authority under the 1989 Act, and the majority in Appeal No. 981313 does not explicitly overrule any of these prior Appeal Panel decisions. As the majority points out in Appeal No. 981313 the test regarding compensability in Mersch is a common law test and I am unconvinced that the legislature intended to repeal any part of the Mersch test by passage of the 1989 Act or of Section 406.032(1)(D) in particular. I certainly do not believe that the Appeals Panel has the authority to overrule court of appeals precedent and consider the test set out in Mersch still to be the law. In my view, Section 406.032 was intended at most to supplement, not to supplant, the test set out in Mersch. Thus, I believe that a claimant can establish compensability by either establishing that he or she meets either one of the three disjunctive prongs of the test set out in Mersch or by establishing that he or she meets the test set out in Section 406.032(1)(D). I am firmly convinced that any other reading of Section 406.032(1)(D) constitutes not only failure to follow prior Appeals Panel authority but failure to follow Texas Court of Appeals precedent.

Gary L. Kilgore
Appeals Judge

  1. Though not explicitly identified as such, we construe the "three prong test" identified by the carrier to be the Mersch test.

  2. Although not raised in these terms by the self-insured, we note that Appeal No. 981313, supra, relying on Texas Workers’ Compensation Commission Appeal No. 960515, decided April 26, 1996, required that the "reasonable expectancy" emanate from the employer, rather than from the "employee’s own conscience." Mere participation in the activity does not necessarily give rise to an inference that the participation was expected of the employee. See Texas Workers’ Compensation Commission Appeal No. 93843, decided November 3, 1993.

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