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Court of Appeals of Texas, Houston (1st Dist.).

HARRIS COUNTY (SELF-INSURED), Appellant

v.

LEVENT DOGAN, Appellee

NO. 01-19-01006-CV

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Opinion issued September 16, 2021

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Case No. 2017-14504

Panel consists of Justices Kelly, Landau, and Hightower.

MEMORANDUM OPINION

Peter Kelly Justice

This is an appeal in a workers’ compensation case. Appellee Levent Dogan suffered a heart attack while training to be a Harris County Sheriff’s Office deputy. He sought workers’ compensation benefits, but a hearing officer and an administrative appeals panel found that his heart attack was not compensable and that he had no disability. Dogan sought judicial review in the district court, and a jury found that he did have a compensable heart attack. The trial court entered judgment in Dogan’s favor, finding that he sustained a compensable injury in the form of a heart attack and that he was disabled from March 10, 2016 to July 10, 2016. Harris County appealed.

On appeal, Harris County argues that (1) the court erred by entering judgment that Dogan suffered a disability because he did not request a jury question on disability and none was submitted to the jury; (2) the court erred by submitting a liability question asking whether Dogan suffered an “injury”; and (3) the judgment is void because Dogan did not comply with a statutory requirement to file a copy of the proposed judgment with the Division of Workers’ Compensation (the “Division”) prior to entry.

We conclude that Dogan’s failure to timely file with the Division the proposed judgment that was actually signed by the court rendered the trial court’s judgment void. We dismiss this appeal for want of jurisdiction.

Background

On March 9, 2016, Dogan suffered a heart attack after running a mile as part of his training to become a Harris County Sheriff’s Office deputy. He was taken by ambulance to an emergency room, and later, he underwent heart catheterization and the placement of four stents.

Dogan filed a claim for workers’ compensation. The parties failed to resolve disputed issues at a benefits review conference, and a contested case hearing was held, specifically addressing whether Dogan’s heart attack was a result of the natural progression of underlying disease or was caused by the physical stress and exertion during the work-related training exercises. The hearing officer found the following facts:

....

3. [Dogan’s] heart attack was not caused by a specific event occurring in the course and scope of his employment with Harris County as a corrections officer.

4. The preponderance of the medical evidence regarding the heart attack indicates that [Dogan’s] work was not a substantial contributing factor of the attack.

5. The preponderance of the medical evidence regarding the heart attack indicates that [Dogan’s] heart attack was a result of a pre-existing condition and the natural progression of that pre-existing condition.

6. The heart attack of March 9, 2016 was a cause of [Dogan’s] inability to obtain and retain employment at wages equivalent to his preinjury wage during the period in dispute, from March 10, 2016 through July 10, 2016, but at no other times through the date of the contested case hearing in this matter.

The hearing officer concluded that: (1) Dogan “did not sustain a compensable heart attack on March 9, 2016,” and (2) “[b]ecause the claimed injury is not compensable, [Dogan] had no disability.”

The appeals panel adopted the hearing officer’s decision and order, and Dogan filed a lawsuit seeking judicial review. Dogan challenged the conclusions that his “injury was not compensable and that he had no disability.” He challenged the determinations that “he did not sustain a compensable heart attack on March 9, 2016 and a follow-on injury on March 15, 2016” and that “he did not sustain disability.” A jury found that Dogan had sustained a compensable heart attack and received an injury in the course and scope of his employment with Harris County.

On August 30, 3019, Dogan moved for entry of judgment on the verdict and attached a proposed final judgment. He served the motion and proposed final judgment on the General Counsel for the Texas Department of Insurance, Division of Workers’ Compensation (“the Division”) by certified mail, return receipt requested. On September 23, 2019, Dogan requested that the trial court make findings of fact and conclusions of law and filed a second, revised proposed final judgment, which was served on the Division seven days before the trial court entered judgment.

The trial court entered findings of fact and conclusions of law regarding disability and based on the hearing officer’s report. On September 30, 2019, the trial court entered final judgment that Dogan sustained a compensable injury in the form of a heart attack and that he was disabled from March 10, 2016 to July 10, 2016. Harris County appealed.

Analysis

Harris County raises three issues on appeal, but we focus on its third issue, which is dispositive. In its third issue, Harris County argues that the trial court’s judgment is entirely void because Dogan failed to provide the Division of Workers’ Compensation a copy of the proposed judgment prior to entry in compliance with the Labor Code. The Texas Labor Code provides:

The party who initiated a proceeding under this subchapter [Subchapter F. Judicial Review—General Provisions] or Subchapter G [Subchapter G. Judicial Review of Issues Regarding Compensability or Income or Death Benefits] must file any proposed judgment or settlement, including a proposed default judgment or proposed agreed judgment, with the [D]ivision not later than the 30th day before the date on which the court is scheduled to enter the judgment or approve the settlement.

TEX. LABOR CODE § 410.258(a) (emphasis added). “Division” means the “division of workers’ compensation of the department,” and “department” means “the Texas Department of Insurance.” TEX. LABOR CODE § 401.011(13-a) (department); id. § 401.011(16-a) (division). Section 410.258 “gives the Division the right to intervene in a judicial review proceeding.” Univ. of Tex. Sys. v. Thomas, 464 S.W.3d 754, 758 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Section 410.258(f) provides: “A judgment entered or settlement approved without complying with the requirements of this section is void.” TEX. LABOR CODE § 410.258(f).

Some courts of appeals have held that the notice requirement in section 410.258 does not apply to judgments entered after fully adversarial proceedings, such as contested summary-judgment motions or a trial. See, e.g., Ace Am. Ins. Co. v. Elmer, No. 05-19-00386-CV, 2020 WL 5525181, at *4 (Tex. App.—Dallas Sept. 15, 2020, pet. denied) (mem. op.); Clewis v. Safeco Ins. Co. of America, 287 S.W.3d 197, 202–03 (Tex. App.—Fort Worth 2009, no pet.); Tex. Property & Casualty Ins. Guaranty Ass’n for Petroinsurance Casualty Co. v. Brooks, 269 S.W.3d 645, 650 (Tex. App.—Austin 2008, no pet.). However, this court has held that compliance with the notice provision of section 410.258 “is both mandatory and jurisdictional, and failure to give the required notice renders a judgment void.” Metro. Transit Auth. v. Jackson, 212 S.W.3d 797, 800–01 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). We have held that the notice requirement applies “in all cases” and that “regardless of whether the trial court renders judgment after an adversarial proceeding ... the party initiating judicial review of the Division’s decision must send notice of the proposed judgment to the Division pursuant to section 410.258 or the trial court’s judgment is void.” Thomas, 464 S.W.3d at 759.

Dogan sent the Division notice of the first proposed judgment he filed on August 30, 2019, and he sent the Division notice of his second, revised proposed judgment on September 23, 2019. The trial court signed the second, revised proposed judgment on September 30, 2019. Although Dogan served both proposed judgments with the Division, he failed to timely file the proposed judgment that was actually signed by the court by serving it a mere seven days—not 30 days—before the date on which the court was scheduled to enter judgment. Because Dogan did not comply with section 410.258(a)’s mandatory and jurisdictional notice requirement, we hold that the judgment is void. We sustain Harris County’s third issue. See TEX. LABOR CODE § 410.258(a) (requiring “any” proposed judgment to be filed with the Division); Thomas, 464 S.W.3d at 759 (failure to comply with statute renders trial court judgment void); Jackson, 212 S.W.3d at 800–01 (same; statute is mandatory and jurisdictional).

Conclusion

We dismiss the appeal for lack of appellate jurisdiction. See Thomas, 464 S.W.3d at 760; Jackson, 212 S.W.3d at 799 (“[A] void judgment is a legal nullity, and the trial court retains plenary power to dispose of the case by rendering a valid final judgment.”).

Court of Appeals of Texas, Dallas.

DELORIS PHILLIPS, Appellant

v.

TEXAS DEPARTMENT OF INSURANCE DIVISION OF WORKERS’ COMPENSATION, FLEMING COMPANIES, INC., BANKERS STANDARD, UNITED PARCEL SERVICE, INC., LIBERTY MUTUAL INSURANCE COMPANY, TEAMSTERS LOCAL UNION 767, AND ESIS, Appellees

No. 05-21-00498-CV

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Opinion Filed August 31, 2021

On Appeal from the 101st Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-21-06299

Before Justices Osborne, Pedersen, III, and Nowell

Opinion by Justice Osborne

MEMORANDUM OPINION

LESLIE OSBORNE JUSTICE

DISMISS and Opinion Filed August 31, 2021

In her notice of appeal, appellant states that she is appealing from an order orally rendered denying her appointment of counsel. We questioned our jurisdiction over the appeal because, even assuming the trial court has signed an order, such an order is neither a final judgment nor an appealable interlocutory order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (generally appellate courts have jurisdiction only over appeals from final judgments and interlocutory orders permitted by statute); TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (listing appealable interlocutory orders).

As requested appellant filed a letter brief. She also filed an amended notice of appeal to additionally challenge the trial court’s denial of her motion for discovery. Neither an order denying a motion to appoint counsel nor a motion for discovery is an appealable interlocutory order that confers jurisdiction on the Court, and nothing in appellant’s letter brief demonstrates our jurisdiction. See Wilcox v. Wilcox, No. 05-09-01421-CV, 2010 WL 457434, at *1 (Tex. App.—Dallas Feb. 11, 2010, no pet.) (mem. op.) (order on motion to appoint counsel not appealable); See Sharma v. Vinmar Int’l, Ltd., 231 S.W.3d 405, 422 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (order denying discovery not appealable). Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

Court of Appeals of Texas, Dallas.

ANDRE W. WILLIAMS, SR., Appellant

v.

CITY OF RICHARDSON, SELF INSURED, Appellee

No. 05-20-00085-CV

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Opinion Filed August 31, 2021

On Appeal from the 192nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-19-02050

Before Justices Osborne, Pedersen, III, and Nowell

Opinion by Justice Osborne

MEMORANDUM OPINION

LESLIE OSBORNE JUSTICE

Affirmed and Opinion Filed August 31, 2021

This is a worker’s compensation case. After the Texas Department of Insurance, Division of Workers’ Compensation (“Department”) ruled that appellant Andre W. Williams, Sr. “did not sustain a compensable injury on February 29, 2016,” and the Department’s Appeals Panel affirmed that ruling, Williams filed a petition for review in the trial court. The trial court rendered judgment for appellee City of Richardson, Williams’s employer, after a bench trial. In three issues, Williams challenges the trial court’s judgment. We affirm.

BACKGROUND

In his operative petition, Williams alleged he “sustained a compensable injury to the lower back” on February 29, 2016, “while performing duties with his employer, The City of Richardson.” He contended he informed his supervisor “that he was hurt, in pain and needed to go to his Doctor’s immediately.” He alleged that he then informed his supervisor that “he was out on Doctor’s request to rest his lower back and let the swelling go down.” He pleaded that he gave timely notice of his claim to the Department within a year of his injury.

Williams initiated his worker’s compensation claim by filing it in the Department in 2017. His claim proceeded to a contested case hearing before a Department administrative law judge in October 2018. The disputed issues presented for decision were:

1. Did the Claimant sustain a compensable injury on February 29, 2016? ...

2. Is [the City] relieved from liability under Texas Labor Code Section 409.002 because of the Claimant’s failure to timely notify his Employer pursuant to Section 409.001?

3. Is [the City] relieved from liability under Texas Labor Code Section 409.004 because of Claimant’s failure to timely file a claim for compensation with the Division within one year of the claimed injury as required by Texas Labor Code Section 409.003?

After an evidentiary hearing, the Department ruled in favor of Williams on the third issue, but concluded that “Claimant did not sustain a compensable injury on February 29, 2016,” and that the City “is relieved from liability under Texas Labor Code Section 409.002 because of Claimant’s failure to timely notify his Employer pursuant to Section 409.001.” The Department issued its “Decision and Order” with these rulings on October 25, 2018 (“Original Order”). The Original Order was signed by the Administrative Law Judge (“ALJ”) who conducted the contested case hearing. It contained a “Discussion” section in which the ALJ noted:

• Williams’s testimony that he “sustained a specific event work injury on February 29, 2016 as a result of riding as a passenger in a front loader for a few hours, because he could not stretch out his legs” was “inconsistent with a lot of the evidence, including evidence coming from Claimant [Williams].”

• Williams’s medical records did not reflect that he had been injured at work on February 29, 2016. In particular, records from a lumbar MRI on the alleged date of injury showed “Bilateral leg numbness for three weeks. No acute injury,” and records from three visits to Dr. Gibbons for back pain in August and September 2016 contain Dr. Gibbons’s note that “Patient firmly states that his low back pain is not the product of a work-related injury.”

• “Claimant’s credibility was called into question” by certain documents he offered as evidence containing “obvious alterations,” including his termination notice from the City.

Williams sought review by the Department’s appeals panel. The appeals panel subsequently notified Williams that the Original Order had become final. See TEX. LAB. CODE § 410.204(c) (appeals panel decisions).

Williams then filed a petition for judicial review of the Department’s decision in the trial court. In his petition, Williams complained that the Original Order contained errors. In response, the City filed a “Motion to Correct Clerical Error and for Judgment Nunc Pro Tunc” in the Department, seeking correction of “six clerical errors”—all dates—in the Original Order.1 The City filed a copy of this motion in the trial court. The Department signed an order granting the City’s motion on September 5, 2019, ruling that the original Decision and Order was effective October 25, 2018—the date of the Original Order—“as herein modified.” The City filed the Department’s “Order on Motion to Correct Clerical Errors” in the trial court on September 9, 2019, and the case proceeded to trial before the court on October 14, 2019.

Williams, representing himself, contended that he suffered a back injury on February 29, 2016, from “being forced to sit in an uncomfortable position for an extended period of time.” Jose Morino, the City’s human resources director, testified that Williams never reported a work-related injury to the City. He explained that the City learned of the claim after notification from the Department over a year later. Morino testified that Williams received a poor performance review immediately before he stopped coming to work in March 2016, and Williams’s employment was terminated in October 2016.

Williams and Morino were the only witnesses at trial. The relevant facts were vigorously contested, and each party alleged the other had submitted altered medical records and other documents to the Department or to the court.

The trial court rendered judgment for the City on October 21, 2019. On November 11, 2019, Williams filed a request for findings of fact and conclusions of law. The trial court responded by letter inviting the parties to submit proposed findings of fact and conclusions of law. Neither party responded or filed a notice of past due findings and conclusions, and the trial court did not make any. Williams filed a motion for new trial that the trial court denied by order of December 19, 2018. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

In the trial court, Williams sought judicial review of the Department’s appeals panel’s decision. Labor code section 410.301 governs judicial review of administrative-level workers’ compensation decisions regarding compensability or benefits eligibility. See TEX. LAB. CODE § 410.301; Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007). The issues decided by the Department’s appeals panel are tried to the court or to a jury, and the appealing party bears the burden of proof by a preponderance of the evidence. TEX. LAB. CODE § 410.303. The records of a contested case hearing are admissible “in accordance with the Texas Rules of Evidence,” and trial “is limited to issues decided by the appeals panel and on which judicial review is sought.” Id. § 410.302. “However, the fact finder does not simply review the appeals panel decision for reasonableness, but decides the issues independently based on a preponderance of the evidence.” Sec. Nat’l Ins. Co. v. Farmer, 89 S.W.3d 197, 200 (Tex. App.—Fort Worth 2002, pet. denied). All issues other than compensability or benefits eligibility are reviewed under the substantial evidence rule. TEX. LAB. CODE § 410.255(b); Sec. Nat’l Ins. Co., 89 S.W.3d at 200–01. Under the substantial evidence rule, the trial court is concerned only with the reasonableness of the agency’s order, not its correctness. Sec. Nat’l Ins. Co., 89 S.W.3d at 200–01.

Williams now appeals the trial court’s judgment affirming the appeals panel’s decision. In three issues, Williams contends the trial court erred by rendering judgment for the City.

In his first issue, Williams contends the trial court erred by denying his motion for new trial. He argues that a new trial was warranted because (1) the City presented new medical evidence at trial that Williams had insufficient time to review, (2) the trial court “failed to address spoliation of evidence,” and (3) the trial court should have restricted its review to the original administrative record, not the later-corrected record. We review the denial of a motion for new trial for abuse of discretion. Dugan v. Compass Bank, 129 S.W.3d 579, 582 (Tex. App.—Dallas 2003, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, without reference to any guiding rules or principles. Id.

In his second issue, Williams contends the trial court erred by failing to file findings of fact and conclusions of law after he made a timely request. As we discuss below, Williams waived his right to complain of the trial court’s failure to file findings. Under these circumstances, we must imply all necessary findings to support the trial court’s judgment. Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017).

In his third issue, Williams challenges the trial court’s evidentiary rulings. The Texas Rules of Evidence apply to the trial court’s review of the Department’s rulings. See TEX. LAB. CODE § 410.306. We review the trial court’s rulings on admission or exclusion of evidence for abuse of discretion. Williams v. Cty. of Dallas, 194 S.W.3d 29, 31–32 (Tex. App.—Dallas 2006, pet. denied).

In a subpart of his third issue, Williams argues that had the trial court “restrict[ed] the case to the scope of compensability” under the labor code, the evidence showed (1) he was injured on February 29, 2016, in the course and scope of his employment, (2) his medical records supported his claim, but the City tampered with the records, and (3) he gave adequate and timely notice to the City of his work-related injury. We construe this complaint as a challenge to the sufficiency of the evidence. Where, as here, there is a reporter’s record, the trial court’s implied findings may be challenged for legal and factual sufficiency in the same manner as challenges to express findings of fact or jury findings. Shields Ltd. P’ship, 526 S.W.3d at 480.

In evaluating the legal sufficiency of the evidence to support a finding, we credit favorable evidence if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally sufficient if it is more than a “scintilla” of evidence on which a reasonable factfinder could find the fact to be true. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 2016).

In reviewing the factual sufficiency of the evidence, we review all the evidence and will set aside the finding only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

In a bench trial, the trial court is the sole judge of the credibility of the witnesses and may believe one witness over another and resolve any conflicts or inconsistencies in the testimony. Shaw v. County of Dallas, 251 S.W.3d 165, 169 (Tex. App.—Dallas 2008, pet. denied).

DISCUSSION

1. Scope of the trial court’s review

In all three of his issues, Williams complains that the trial court erred by admitting and considering evidence outside the scope of the parties’ rule 11 agreement. See TEX. R. CIV. P. 11 (agreements between attorneys or parties in pending suits). Williams contends that the trial court “erred by not restricting the case to regard compensability under Texas Labor Code § 409.001.” He argues the evidence he offered showed he suffered a compensable injury in the course and scope of his employment, and in contrast, the City did not “address compensability” but “instead, wast[ed] the majority of any proceedings time with fabricated matters” that Williams was required “to refute in order to place the proceedings[’] focus back on course.” And he specifically complains that the trial court should not have considered the Department’s corrected order. We disagree that the trial court’s review exceeded the proper scope.

The parties attempted to reach agreement regarding “the scope of what the live issues are in this case,” as the trial court explained at a pretrial hearing. The City initially proposed that “the scope of this lawsuit will be limited to the judicial review of the Plaintiff’s Worker’s Compensation claim against the City of Richardson, self-insured. We’d also like an agreement as to the admissibility of the records from the administrative hearing.”

Williams did not agree to this proposal. Addressing the City’s counsel, the trial court stated, “I’m not going to make this man [Williams] agree to anything.” The court continued, “You [the City] can certainly present everything you want to present and I will rule accordingly.” The court summarized the discussion as follows: “THE COURT: Here’s what we are agreeing to: Nothing. Except we’re agreeing that the review of this Court is a review of the judicial record ... as it stands or as it’s argued according to the law as it would apply to this case.”

The trial court’s statement correctly reflected the scope of the trial court’s review under the labor code. See TEX. LAB. CODE §§ 410.301–.304. The parties agreed to “[n]othing” that deviated from these standards, and the trial court expressly stated its review of the Department’s rulings would be “according to the law as it would apply to this case.” As the trial court noted, Williams was not required to agree in advance to the admissibility of any evidence, and he expressly declined to do so. As a consequence, rulings on the relevancy and admissibility of evidence would be made at trial and were within the trial court’s sound discretion. See Williams, 194 S.W.3d at 31–32; see also TEX. R. EVID. 401 (evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action”); TEX. LAB. CODE § 410.306(a) (in judicial review of appeals panel decision, “[e]vidence shall be adduced as in other civil trials”).

We discuss Williams’s complaints about the trial court’s rulings on specific evidence in our consideration of Williams’s third issue, but decide his broader complaint about the scope of the proceedings against him.

2. Motion for new trial

In his first issue, Williams argues the trial court erred by denying his motion for new trial because (1) the City presented new medical evidence “just barely before trial ending” that he had no time to review, and (2) he discovered “spoliation of evidence” by the City during trial.2 Throughout trial, each party asserted that the other had falsified copies of Williams’s medical and employment records to either show or remove any notations that Williams’s injury was work-related. On the second day of trial, the City offered its Exhibit 9, a copy of Williams’s medical records that had been produced in discovery. The City sought the records’ admission into evidence in response to Williams’s contentions that certain of his medical records had been altered. Williams’s only objection to Exhibit 9’s admission at trial was that it was missing communications showing the City violated federal privacy law by obtaining certain records from Dr. Acosta. The trial court overruled Williams’s objection and admitted Exhibit 9 into evidence.

In his motion for new trial, Williams argued that he objected to the records’ admission because “there was no continuing medical for his back injury, as [he] has not seen a doctor since October 2016 for this issue.” He contended a new trial was necessary because (1) he “was unaware of the evidence and had no notice of its existence before it was presented in Court”; (2) the evidence “would likely cause a different result in a new trial” because Williams “established inconsistencies in statements and medical treatment documentation by his treating physicians at the time,” and “[t]hese inconsistencies become pertinent in determining cause of injury and if a compensable injury was sustained”; and (3) with admission of the records, the scope of the trial would have been broadened so that Williams could have offered additional evidence about his medical treatment and his employment.

A party seeking a new trial on grounds of newly-discovered evidence must demonstrate to the trial court that (1) admissible, relevant evidence has come to its knowledge since the trial, (2) its failure to discover the evidence sooner was not due to lack of diligence, (3) the evidence is not cumulative or to be used for impeachment, and (4) the evidence is so material it would probably produce a different result if a new trial were granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); New Amsterdam Cas. Co. v. Jordan, 359 S.W.2d 864, 866 (Tex. 1962).

Williams did not explain how his past medical records had come to his knowledge only after the trial or how the evidence was not cumulative or to be used for impeachment. See Waffle House, Inc., 313 S.W.3d at 813; New Amsterdam Cas. Co., 359 S.W.2d at 866. To the contrary, his motion indicates he sought a new trial to challenge the credibility of the City’s evidence and “establish[ ] inconsistencies.” See Watts v. Watts, 396 S.W.3d 19, 23 (Tex. App.—San Antonio 2012, no pet.) (trial court did not abuse its discretion by denial of motion for new trial that “asserted only that the newly discovered evidence was material in assessing [a party’s] credibility”); Cornelison v. Aggregate Haulers, Inc., 777 S.W.2d 542, 547 (Tex. App.—Fort Worth 1989, writ denied) (“the alleged newly-discovered evidence would only have gone to the impeachment of the witness who testified, and therefore did not establish sufficient grounds for motion for new trial based on newly-discovered evidence”). In addition, Williams’s motion for new trial did not inform the trial court of any specific new information in Exhibit 9 that he had not already challenged. Finally, because Williams did not submit an affidavit swearing to facts supporting his request for a new trial, the trial court did not abuse its discretion by denying his motion on that basis. See Vodicka v. N. Am. Title Co., No. 05-13-00126-CV, 2014 WL 348530, at *4 (Tex. App.—Dallas Jan. 30, 2014, no pet.) (mem. op.).

Williams also contends the trial court erred by denying his motion for new trial because the trial court “failed to address spoliation of evidence after Williams provided concern and proof before the court.” As we have noted, however, each party alleged the other had submitted altered records to the trial court, and the trial court was the sole judge of the parties’ credibility on this issue. See Shaw, 251 S.W.3d at 169.

We conclude the trial court did not abuse its discretion by denying Williams’s motion for new trial. See Dugan, 129 S.W.3d at 582. We decide Williams’s first issue against him.

3. Request for findings

Williams’s second issue challenges the trial court’s failure to file findings of fact and conclusions of law. After a bench trial, a party may request that the trial court issue separate written findings of fact and conclusions of law. TEX. R. CIV. P. 296. The party must file its request within twenty days after the signing of the judgment. Id. If the trial court does not file its findings of fact and conclusions of law within twenty days after the party’s timely request, then the party must file a “Notice of Past Due Findings of Fact and Conclusions of Law” within thirty days of its original request. TEX. R. CIV. P. 297. Otherwise, the party waives its appellate complaint of the trial court’s failure to file findings of fact and conclusions of law. Jimenez v. McGeary, 542 S.W.3d 810, 812 (Tex. App.—Fort Worth 2018, pet. denied); see also Las Vegas Pecan & Cattle Co., Inc. v. Zavala Cty., 682 S.W.2d 254, 255–56 (Tex. 1984) (applying former procedural rules).

The trial court rendered judgment on October 21, 2019. Williams timely filed his request for findings of fact and conclusions of law on November 11, 2019. See TEX. R. CIV. P. 296. Thus, the trial court’s findings of fact and conclusions of law were due twenty days later, on December 1, 2019. See TEX. R. CIV. P. 297. After the trial court did not issue them, Williams’s notice of past due findings of fact and conclusions of law was due on December 11, 2019, thirty days after the date of his original request. See id.

Williams argues that his post-judgment request on November 11, 2019, served as a notice of past due findings because before trial, he filed proposed findings. On November 11, 2019, however, findings were not “past due,” nor did Williams contend they were. Williams’s November 11, 2019 filing requested the court to “state separately, in writing” and “file such findings of fact and conclusions of law with the clerk of the said Court so that they become a part of the record of said cause.” Although certain prematurely-filed requests may be deemed timely, see TEX. R. CIV. P. 306c, this Court has concluded that “rule 306c does not include a prematurely filed notice of past due findings of fact and conclusions of law.” Nisby v. Dentsply Int’l, Inc., No. 05-14-00814-CV, 2015 WL 2196627, at *2 (Tex. App.—Dallas May 11, 2015, no pet.) (mem. op.). We explained, “[i]f a notice of past due findings were allowed to be prematurely filed, it would defeat the purpose of reminding the trial court that it has been requested to file findings and has not done so by the time prescribed by the rules of procedure.” Id.; see also Burley v. Burley, No. 02-16-00119-CV, 2017 WL 4542854, at *2 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem. op.) (collecting cases for same proposition).

Because Williams did not file a notice of past due findings and conclusions, he has waived error as to the absence of findings of fact and conclusions of law. See TEX. R. CIV. P. 297; S.L. v. S.L., No. 02-19-00017-CV, 2020 WL 4360448, at *6 (Tex. App.—Fort Worth July 30, 2020, no pet.) (mem. op.); Bank of Am., N.A. v. Groff, No. 14-19-00726-CV, 2021 WL 98559, at *2 (Tex. App.—Houston [14th Dist.] Jan. 12, 2021, no pet.) (mem. op.).We decide Williams’s second issue against him.

4. Admission of evidence

In his third issue, Williams contends the trial court erred by admitting the Department’s corrected opinion and order into evidence. He also complains the trial court erred by admitting evidence regarding Williams’s job performance and evidence regarding a “fabricated police report.” We conclude the trial court did not abuse its discretion in these evidentiary rulings.

First, as we have explained, the corrected opinion and order changed two incorrect dates in six places in the “Discussion” section of the Original Order. In four places, the date of injury was incorrectly stated as “September 29, 2016,” and in two places, the date of a performance review was stated as “March 22, 2016” rather than “March 2, 2016.” The “Findings of Fact” section, however, contained the correct date of the alleged injury, February 29, 2016. Conclusion of Law number three, “Claimant did not sustain a compensable injury on February 29, 2016,” also contained the correct date. February 29, 2016, was the dispositive date for purposes of Williams’s claim. Further, the record reflects that the correct dates were supported by evidence admitted in the original record before the hearings examiner. Equally important, the trial court was not bound by the Original Order, was aware of the errors, and could make its own credibility determination accordingly. See Tex. Dep’t of Ins., Workers’ Comp. Div. v. De Los Santos, 446 S.W.3d 800, 806 (Tex. App.—San Antonio 2014, no pet.) (“When a court is the trier of fact, it is to consider the decision of the Divison’s Appeals Panel.... However, the court is not required to accord the Division’s decision any particular weight.”) (citing TEX. LAB. CODE § 410.304(b)). For these reasons, we conclude that the trial court did not abuse its discretion by admitting the Department’s “Order on Motion to Correct Clerical Errors” into evidence. See Williams, 194 S.W.3d at 31–32.

Next, we conclude the trial court did not err in its rulings regarding evidence of Williams’s job performance. In fact, in the second record excerpt quoted in Williams’s brief, the trial court sustained his objections to this testimony after confirming that Williams was “not making any claims for retaliation in [his] dismissal.” In the first excerpt, the trial court overruled Williams’s objection to testimony about his request for a GPS rather than memorizing his route. In response to Williams’s objection, the City explained the evidence supported its contention that Williams filed his worker’s compensation claim only after he had been terminated for issues relating to his job performance. We conclude it was within the trial court’s discretion to admit the evidence. See Williams, 194 S.W.3d at 32 (court of appeals will uphold trial court’s ruling on admission of evidence “if there is any legitimate basis for the ruling”).

Last, we conclude the trial court did not err by any rulings relating to the allegedly “fabricated police report” offered by the City and a corresponding video offered by Williams. At the outset of trial, the trial court admitted the entire administrative record into evidence. The police report was part of that record, so the court overruled Williams’s objection to it. The trial court also permitted Williams to cross-examine Moreno on the subject and to play the corresponding video for the court. Although Williams complains that the trial court “showed a lack of interest[ ]” in the video, he does not explain how the trial court’s rulings were an abuse of discretion. See Williams, 194 S.W.3d at 31–32. We decide the portion of Williams’s third issue challenging the trial court’s evidentiary rulings against him.

5. Sufficiency of the evidence

In a subpart of his third issue, Williams argues that he met his burden to prove he was injured in the course and scope of his employment on February 29, 2016, citing evidence that (1) he was examined by a physician on that date, (2) he received an MRI and X-rays of his lower back area, inconsistent with the City’s contention that he visited the doctor for hypertension on that date, (3) the City tampered with his medical records, and (4) his employment was a “substantial factor” in, and therefore a producing cause of, his injury, supported by medical records showing he reported “sitting in a tight seat at work,” (5) the City attempted to mislead the court by offering photos showing a different type of truck than the one in which he was injured, (6) he timely gave sufficient notice of his injury to his direct supervisor, and (7) the City fabricated evidence of problems with his job performance.

The City, however, also offered evidence relevant to each of these contentions. Morino testified that Williams told him his injury was not work-related; Williams’s supervisor denied that Williams notified him that he had been injured at work on February 29, 2016; Williams had continuing back problems from an earlier injury; Williams altered his medical records; Williams’s true reason for not returning to work arose from problems with his job performance, not his injury; and the City did not receive information from either Williams or any other source that Williams had suffered a work-related injury on February 29, 2016, until May 2017, when the Department notified the City that Williams had submitted a claim for compensation to the Department.

The trial court heard all of the evidence from Williams and from the City and was the sole judge of its credibility. See Shaw, 251 S.W.3d at 169. “When there is conflicting evidence, it is the province of the factfinder to resolve such conflicts.” Yazdani-Beioky v. Sharifan, 550 S.W.3d 808, 821 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (citing City of Keller, 168 S.W.3d at 820). After reviewing all the evidence, we conclude (1) there is more than a scintilla of evidence supporting the trial court’s implied findings, and (2) the trial court’s implied findings are not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. See Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 613; Dow Chem. Co. 46 S.W.3d at 242; Cain, 709 S.W.2d at 176.

We decide the remainder of Williams’s third issue against him.

CONCLUSION

The trial court’s judgment is affirmed.

Footnotes

1

In four places, the Original Order recited the date of the alleged injury as September 29, 2016, not February 29, 2016. In two places, the Original Order recited a date of March 22, 2016, rather than March 2, 2016, as the date when the City advised Williams “that he needed to significantly improve his job performance.” The City attached evidence admitted at the contested case hearing showing the correct dates.

2

Williams also argues that the trial court should have considered only the Original Order, not the amended order. We consider this complaint in our discussion of Williams’s third issue.

Court of Appeals of Texas, Eastland.

MARK WHEELER, CINDY WHEELER, JEREMY RICH, AND DAVID KISER, Appellants

v.

BRANDON SCOTT FREE, RINGO DRILLING I, L.P., AND RINGO MANAGEMENT COMPANY, L.L.C., Appellees

No. 11-19-00256-CV

|

Opinion filed August 26, 2021

On Appeal from the 259th District Court

Shackelford County, Texas

Trial Court Cause No. 2010-070

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

OPINION

JOHN M. BAILEY CHIEF JUSTICE

This is a personal injury case arising from a single-vehicle accident. Appellants Mark Wheeler,1 Jeremy Rich, and David Kiser were passengers in Brandon Scott Free’s vehicle. Wheeler, Rich, Kiser, and Free all worked for Appellees Ringo Drilling I, L.P. and Ringo Management Company, L.L.C. (collectively Ringo). At the time of the accident, Free was transporting Wheeler, Rich, and Kiser from an Allsup’s Convenience Store in Taylor County to Ringo’s drilling rig located in Throckmorton County.

Appellants filed suit against Free2 and Ringo, alleging that the accident was caused by Free’s negligence and that Ringo was vicariously liable for Free’s negligence under the doctrine of respondeat superior. Appellants also alleged that Ringo was directly liable for the negligent hiring, training, and retention of Free. In a single issue, Appellants appeal the trial court’s order granting summary judgment in favor of Ringo. We affirm.

Background Facts

Ringo employed Free, Wheeler, Rich, and Kiser as a drilling crew to operate one of its drilling rigs. Ringo produced summary judgment evidence that it was a subscriber to workers’ compensation insurance at the time of the accident. Ringo also produced evidence that the crew would meet at a location in Abilene, get in a single vehicle, and then drive to the drill site.

Under Ringo’s “Drive pay” policy, one member of the crew was paid a per diem to furnish transportation for himself and additional crew members to drive to the drill site. Jeff Kovach of Ringo testified at his deposition that the drive pay was for fuel and use of a personal vehicle. He further testified that the crew decided who among them is paid the drive pay. Logan McDonald, Ringo’s human resources manager, testified that participation in the carpool was voluntary and that the crew members could have driven to the drilling rig on their own.

For this particular drill site, the driller, Kiser, was the crew member that was being paid drive pay, and the rate was $67.50 a day because the rig was located over fifty miles away from Ringo’s office. On the date of the accident, however, Kiser’s vehicle was inoperable. Kiser asked Free to drive that night, and Kiser paid for the fuel for Free’s vehicle. Free testified that he did not receive drive pay for the date of the accident.

Ringo moved for traditional summary judgment, asserting that Appellants’ negligence action was precluded by the exclusive remedy provision of the Texas Workers’ Compensation Act (the Act).3 See TEX. LAB. CODE ANN. § 408.001(a) (West 2015). In the alternative, for Appellants’ respondeat superior claim against Ringo, Ringo asserted that Free was not in the course and scope of employment. Appellants moved for partial summary judgment, arguing that Ringo’s human resources manager, McDonald, admitted during his deposition that Wheeler, Rich, and Kiser were not in the course and scope of their employment at the time of injury. The trial court granted summary judgment in favor of Ringo, but it did not specify the grounds for its decision.

Analysis

We review the trial court’s grant of summary judgment de novo. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). When both parties move for summary judgment, we review the evidence presented by both sides and “render the judgment the trial court should have rendered.” SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 641–42 (Tex. 2015) (citing Comm’rs Court of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997)). When the trial court’s order does not specify the grounds for its summary judgment, we will affirm the summary judgment if any of the theories are meritorious. Knott, 128 S.W.3d at 216.

A party moving for traditional summary judgment bears the burden of proving that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nassar v. Liberty Mut. Fire Ins. Co., 508 S.W.3d 254, 257 (Tex. 2017). To be entitled to a traditional summary judgment, a defendant must conclusively negate at least one essential element of the cause of action being asserted or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Evidence is conclusive only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). If the movant initially establishes a right to summary judgment on the issues expressly presented in the motion, then the burden shifts to the nonmovant to present to the trial court any issues or evidence that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979).

In its motion for summary judgment, Ringo alleged that Wheeler, Rich, and Kiser were in the course and scope of employment under the Act at the time of the accident and that the Act’s exclusive remedy provision barred Appellants’ negligence claims against Ringo. See LAB. § 408.001(a). In this regard, the Act provides that “[r]ecovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... for the death of or a work-related injury sustained by the employee.” Id.

Whether Wheeler, Rich, and Kiser are subject to the Act’s exclusive remedy provision is dependent on the manner in which the Act defines course and scope of employment. See SeaBright Ins. Co., 465 S.W.3d at 642. Under the Act, a compensable injury is “an injury that arises out of and in the course and scope of employment for which compensation is payable under [the Act].” LAB. § 401.011(10). Course and scope of employment 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.” Id. § 401.011(12). The Act’s definition of course and scope of employment requires “the injury to ‘(1) relate to or originate in, and (2) occur in the furtherance of, the employer’s business.’ ” SeaBright Ins. Co., 465 S.W.3d at 642 (quoting Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 241 (Tex. 2010)).

Ringo also alleged that, for liability purposes, Free was not in the course and scope of his employment, and that it owed no duty to Appellants with respect to Free’s act of driving the crew at the time of the accident. Whether Free was in the course and scope of employment at the time of the accident is determined under the common-law doctrine of respondeat superior. See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130–31 (Tex. 2018) (Painter I).

Painter I and its progeny demonstrates the difference in the source of the law for resolving the question of course and scope of employment. The claimants in Painter I were employees of Amerimex. Id. at 129. They sued Amerimex asserting that it was vicariously liable for the negligent conduct of another one its employees as he drove the crew away from a drilling rig. Id. In Painter I, the Texas Supreme Court determined that, under the common law, a fact issue existed as to whether the driver was acting within the course and scope of his employment at the time of the accident. Id. at 130–39. On remand, the El Paso Court of Appeals addressed whether the passengers were in the course and scope of employment under the Act. Painter v. Amerimex Drilling I, Ltd., No. 08-19-00226-CV, 2021 WL 1345680, at *1 (Tex. App.—El Paso Apr. 12, 2021, no pet. h.) (Painter II).

We conclude as a matter of law that, under the common-law doctrine of respondeat superior, Free was not in the course and scope of his employment at the time of the accident. See Painter I, 561 S.W.3d at 130–39. Accordingly, we do not address Ringo’s contention that Wheeler, Rich, and Kiser were in the course and scope of employment under the Act at the time of the accident.

“Under the common-law doctrine of respondeat superior, or vicarious liability, ‘liability for one person’s fault may be imputed to another who is himself entirely without fault solely because of the relationship between them.’ ” Id. at 130 (quoting St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 540 (Tex. 2002) (plurality op.)). Vicarious liability is implicated in the employer–employee relationship if the employee’s negligent acts were within the course and scope of his employment. Id. at 131 (citing Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 757 (Tex. 2007)). It is undisputed that Free was Ringo’s employee. The critical question to be answered in this case is whether Free was “doing his job” at the time of the accident. See id. at 132. This element “hinges on an objective assessment of whether the employee was doing his job when he committed a tortious act.” Id.

Painter I involved a driller that was driving fellow crew members to lodging away from the drilling rig. Id. at 128–29. There was summary judgment evidence that one of the driller’s duties was to drive his crew to and from the drilling site and that he was paid a “bonus” for performing this task. Id. at 133. The court noted that, in the context of workers’ compensation law, a “coming-and-going” rule has been recognized wherein an employer is generally not liable for the acts of its employees while traveling to and from work. Id. at 136. The court further noted that this rule has been extended to the vicarious-liability context. Id. (citing Mancil v. Stroud, No. 11-13-00354-CV, 2016 WL 932949, at *3 (Tex. App.—Eastland March 10, 2016, no pet.) (mem. op.)). The court recognized that an exception to the coming-and-going rule exists when the employee undertakes a “ ‘special mission at the direction of his employer’ or is otherwise performing ‘a service in furtherance of [his] employer’s business with the express or implied approval of [his] employer.’ ” Id. (alterations in original) (quoting J & C Drilling Co. v. Salaiz, 866 S.W.2d 632, 636 (Tex. App.—San Antonio 1993, no writ); Gebert v. Clifton, 553 S.W.2d 230, 232 (Tex. App.—Houston [14th Dist.] 1977, writ dism’d)). The court found that a fact question existed as to whether the driller was in the course and scope because he was assigned the task of transporting the crew as a part of his job duties and he was compensated for this task. Id. at 138–39.

Appellants contend that at least a fact question exists as to whether Free was in the course and scope of his employment at the time of the accident because he was performing a specifically assigned task for the benefit of his employer at the time of the accident. We disagree. We first note that the facts in this case are distinguishable from the circumstances in Painter I. The driller in Painter I was specifically assigned the task of transporting the crew to and from the drill site. Id. at 133. He was also compensated for this task in the form of a payment referred to as a “bonus.” Id. The driller testified that he would have looked for work elsewhere if he was not paid this compensation for transporting the crew. Id. at 133 n.10.

Here, a specific crew member was not assigned the task of transporting the crew to and from the drill site. Furthermore, the crew member who drove the crew to the drill site was not compensated for driving the crew—he only received a travel allowance. In this regard, Ringo’s “drive pay” policy provided that the driller was responsible for designating on the time sheet the person that was to receive the drive pay for each “tour.” The drive pay was $67.50 for distances of over fifty miles and it was $58.50 for distances under fifty miles. Thus, the drive pay paid by Ringo was basically reimbursement for the crew member’s travel expenses for transporting the crew to the drill site.

The facts in this case are analogous to the facts in Pilgrim v. Fortune Drilling Co., 653 F.2d 982 (5th Cir. 1981) (applying Texas law).4 The employer in Pilgrim paid a travel allowance to a single member of the crew, the recipient of which was decided among the crew members.5 653 F.2d at 983. The employees were not on the payroll while traveling to and from the drill site. Id. As noted by the Texas Supreme Court in Painter I, the Fifth Circuit held in Pilgrim that “neither the long distance between the employees’ homes and the remote work site nor the payment of a travel allowance to one crew member per day was sufficient to create a special mission for the employer’s benefit that would remove the case from the ambit of the coming-and-going rule.” Painter I, 561 S.W.3d at 137 (citing Pilgrim, 653 F.2d at 987–88).

We agree with the holding in Pilgrim that an employer’s act of merely paying a travel reimbursement to an employee does not place the employee within the course and scope of employment for vicarious liability to be imposed against the employer. As applied to this case, Free was not specifically assigned the task of transporting the crew to the drill site. Furthermore, Free did not receive drive pay for the trip on the day of the accident. In fact, there is no evidence that any managers at Ringo even knew Free would be driving the crew on the date of the accident. As noted by the court in Pilgrim, the task of getting to and from the place of work is the responsibility of the employee, and his travel to a work site is not part of his service to his employer. 653 F.2d at 987–88. Furthermore, travel to a work site is not a mission with a special benefit to the employer so as to remove the employee from the coming-and-going rule. Id. at 987. Accordingly, we hold that the summary judgment evidence in the case before us conclusively established that Free was not in the course and scope of his employment while driving himself and his fellow crew members to Ringo’s drill site.

Our analysis is not complete, however, because Appellants also asserted claims of direct negligence against Ringo. Specifically, Appellants asserted that Ringo negligently hired, trained, and retained Free as an employee—because Ringo knew or should have known that Free was a reckless and incompetent driver.

“Negligent hiring, retention, and supervision claims are all simple negligence causes of action based on an employer’s direct negligence rather than on vicarious liability.” See Dangerfield v. Ormsby, 264 S.W.3d 904, 912 (Tex. App.—Fort Worth 2008, no pet.). Thus, a claim of negligent hiring, supervision, or retention is not dependent upon a finding that the employee was acting in the course and scope of his employment when the tortious act occurred. Dieter v. Baker Serv. Tools, a Div. of Baker Int’l, Inc., 739 S.W.2d 405, 408 (Tex. App.—Corpus Christi–Edinburg 1987, writ denied). However, the plaintiff’s injury must be the result of job-related conduct. Peek v. Equip. Servs., Inc., 906 S.W.2d 529, 534 (Tex. App.—San Antonio 1995, no writ); Dieter, 739 S.W.2d at 408. “Were such a connection not required, an employer would essentially be an insurer of the safety of every person who happens to come into contact with his employee simply because of his status as an employee.” Dieter, 739 S.W.2d at 408 (quoting Bates v. Doria, 502 N.E.2d 454, 459 (Ill. App. Ct. 1986)). This nexus requirement is an element of foreseeability, and foreseeability is an essential component of both proximate cause and duty. Fernea v. Merrill Lynch Pierce Fenner & Smith, Inc., 559 S.W.3d 537, 548 (Tex. App.—Austin 2011), judgm’t withdrawn, appeal dism’d, No. 03-09-00566-CV, 2014 WL 5801862 (Tex. App.—Austin Nov. 5, 2014, no pet.) (mem. op.); see Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 659 (Tex. 1999).

Ringo asserted in its motion for summary judgment that it owed no duty to Appellants for an off-duty employee’s act of driving coworkers to work. Ringo cited Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401 (Tex. 2009), for this proposition. Nabors Drilling involved a claim against an employer for a vehicle accident caused by its employee who was alleged to be fatigued as a result of his work conditions. 288 S.W.3d at 404. The court held that the employer owed no duty for its off-duty employee’s acts. Id. As noted by the court in Nabors Drilling, “[e]mployers in Texas generally do not owe a duty to third parties for the tortious activities of off-duty employees occurring off the work site.” Id. at 403 (citing Loram Maint. of Way, Inc. v. Ianni, 210 S.W.3d 593, 594 (Tex. 2006)).6 Exceptions to this rule have only been recognized in very limited circumstances when the employer exercises control over the injury-causing conduct of its employee. Id.

“The existence of a duty is a question of law.” Id. at 404. “An employer ordinarily will not be liable for torts committed by off-duty employees except when the torts were committed on the employer’s premises or with the employer’s chattels.” Id. at 404–05 (citing Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983)). “As a general rule, ‘an employer owes no duty to protect the public from the wrongful acts of its off-duty employees that are committed off the work site.’ ” Id. at 405 (quoting Ianni, 210 S.W.3d at 594). The exceptions to this general rule are based on circumstances when the employer affirmatively exercises control over its employee. Id.

In order to impose a duty on an employer for its employee’s off-duty and off-premises conduct, the employer must have actual knowledge of the employer’s deficit and it must exercise actual control over the employee at the time of the negligent act. Id. at 406–07. As noted in Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 506 (Tex. 2017), “an employer should have no duty to control an employee when it neither knows nor should know of the need and opportunity to do so.” Ringo did not assign Free the job task of driving the crew to the drill site. Free did not perform any driving for Ringo. Furthermore, Ringo’s management did not know that Free would be driving any crew members in his personal vehicle at the time of the accident. Thus, Free’s alleged act of negligence was not related to his job, and Ringo had no control over Free’s conduct at the time of the accident. Accordingly, Ringo had no duty to Appellants with respect to their claims arising from the accident. See Nabors Drilling, 288 S.W.3d at 404–07. We overrule Appellants’ sole issue on appeal.

This Court’s Ruling

We affirm the judgment of the trial court.

Footnotes

1

Mark Wheeler’s wife, Cindy Wheeler, is also an Appellant. Unless otherwise noted, all references in this opinion to “Wheeler” are to Mark Wheeler.

2

Free has not filed a brief in this case. Additionally, Free did not join in Ringo’s motion for summary judgment. However, the summary judgment order grants final judgment against Appellants in favor of all defendants, and it concludes with the following sentence: “This Order disposes of all parties and issues, and is final and appealable.” Appellants do not complain on appeal of the inclusion of their claims against Free in the summary judgment order.

3

Cindy Wheeler’s negligence claims are barred insofar as the exclusive remedy provision applies because her claims are derivative of Wheeler’s claims. See Rodriguez v. Naylor Indus., Inc., 763 S.W.2d 411, 412 (Tex. 1989).

4

We note that the opinion in Pilgrim was written by Judge Thomas M. Reavley, a former member of the Texas Supreme Court.

5

As noted in the opinion, the travel allowance paid in Pilgrim was $25 in 1977. 653 F.2d at 983.

6

As noted in Nabors Drilling, an employer has no duty to instruct an employee “with regard to dangers that are ordinarily incident to driving a vehicle and require no special skills or knowledge other than that expected of all licensed drivers.” 288 S.W.3d at 413 (quoting Nat’l Convenience Stores Inc. v. Matherne, 987 S.W.2d 145, 149 (Tex. App.—Houston [14th Dist.] 1999, no pet.)).

NICHOLE LEONARD, Plaintiff,

v.

MESILLA VALLEY TRANSPORTATION and JOHN DOE, Defendants.

CIVIL ACTION H- 21-1091

|

Filed 08/23/2021

MEMORANDUM OPINION AND ORDER

Gray H. Miller Senior United States District Judge

Pending before the court is a motion to dismiss filed by defendant Mesilla Valley Transportation (“MVT”), which the court has converted into a motion for summary judgment. Dkt. 7 (motion to dismiss); Dkt. 11 (order converting motion); Dkt. 12 (supplemental motion for summary judgment). Having considered the motion, response, supplemental motion, response, and record evidence, the court is of the opinion that the motion should be DENIED.

I. BACKGROUND

Plaintiff Nichole Leonard worked as a security guard and was employed by Sangar Cargo Security, Inc. (“Sangar”) in April of 2020. Dkt. 12, Ex. B; Dkt. 13, Ex. A. Sangar had a contract with MVT to provide security guards for MVT. Oasis Outsourcing, Inc., is a Professional Employer Organization that arranges for workers’ compensation insurance and provide payroll services for Sangar. See Dkt. 12, Ex. B; Dkt. 13, Ex. A. Leonard contends that she was working as a security guard at MVT’s Houston Terminal on April 27, 2020, and that defendant John Doe, who was operating an 18-wheeler at the terminal, made a wide and unsafe turn and struck the security booth where Leonard was working, causing her injuries. Dkt. 1-4 (state-court petition). She received treatment for her injuries under the workers’ compensation insurance Oasis arranged for Sangar. Dkt. 12, Ex. B. She subsequently filed this lawsuit against MVT and Doe in Harris County District Court. Dkt. 1-4. She alleges that Doe was negligent, MVT negligently entrusted its vehicle to Doe, MVT is responsible for Doe’s negligence under the respondeat superior doctrine, and MVT was negligent because it failed to properly train Doe. Id. She seeks more than $250,000 but less than $1,000,000 in damages. Id.

MVT removed the case to this court alleging diversity jurisdiction, filed an answer and an amended answer, and then moved to dismiss Leonard’s claims, arguing that Leonard was MVT’s borrowed servant and that the Texas Workers’ Compensation Act provided the exclusive remedy for her claims against MVT. Dkt. 7. Because MVT relied on information that was not discussed in Leonard’s complaint, the court converted the motion to dismiss into a motion for summary judgment and asked the parties to submit supplemental briefing and evidence. Dkt. 11. Both parties have provided additional briefing and evidence, and the motion is now ripe for disposition. See Dkt. 12 (supplemental motion for summary judgment); Dkt. 13 (response).

II. LEGAL STANDARD

A court shall grant summary judgment when a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “[A] fact is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party.” Fordoche, Inc. v. Texaco, Inc., 463 F.3d 388, 392 (5th Cir. 2006). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548 (1986). If the moving party meets its burden, the burden shifts to the non-moving party to set forth specific facts showing a genuine issue for trial. Fed. R. Civ. P. 56(e). The court must view the evidence in the light most favorable to the non-movant and draw all justifiable inferences in favor of the non-movant. Env’t Conservation Org. v. City of Dallas, 529 F.3d 519, 524 (5th Cir. 2008).

III. ANALYSIS

MVT notes that at the time of the accident, Leonard was working as a temporary security guard at MVT’s terminal, but she was an employee of Sangar. Dkt. 12. Sangar and MVT are both covered by a workers’ compensation insurance policies. Dkt. 12 & Exs. A, B. MVT asserts that Leonard was also the borrowed servant of MVT because MVT controlled the manner and details of Leonard’s work. Dkt. 12. MVT contends that because Sangar had workers’ compensation insurance and Leonard was MVT’s borrowed servant, MVT is immune from common law liability under the Texas Workers’ Compensation Act. Id. It provides affidavits, copies of MVT’s and Sangar’s workers’ compensation policies, the incident report, evidence of treatment under the worker’s compensation insurance claim, and the agreement between MVT and Sangar for security services. Dkt. 12, Exs. A–B.

Leonard does not disagree with MVT’s allegation that under the law MVT would be immune if she were its borrowed servant. Instead, she argues that she was not the borrowed servant of MVT because MVT did not control the manner and details of her work. Dkt. 13. Additionally, she asserts that there is no written agreement showing that MVT required Oasis or Sangar to secure workers’ compensation insurance for Leonard. Id. As evidence, Leonard provides her own affidavit in which she asserts that MVT did not instruct her how to perform her job, did not furnish any tools for her to perform her job, did not direct her about the order in which her services were performed, did no provide uniforms or name tags, did not oversee her work, and did not provide her with any written materials. Dkt. 13, Ex. A. She asserts that she was stationed at the only guard shack at the facility, she would check in with Oasis, not MVT, and her work was supervised by an employee of Sangar. Id. She contends that this evidence demonstrates she was employed by Sangar and was not MVT’s borrowed servant. Dkt. 13.

Under the Texas Workers’ Compensation Act, “Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.” Tex. Lab. Code Ann. § 408.001(a). An employee of a temporary agency can have more than one employer for purposes of the Texas Workers’ Compensation Act. Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 140 (Tex. 2003). Texas courts use the right-of-control test to determine if an injured worker is a borrowed servant for purposes of the Texas Workers’ Compensation statute. Phillips v. Am. Elastomer Prods., L.L.C., 316 S.W.3d 181, 187 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Under this test, “an injured worker is held to be the employee of the employer who had the right to control the details of the work at the time of injury.” Id.

The “right of control is inferred from the facts and circumstances of the work.” Id. Courts consider “the nature of the work to be performed, the length of the employment, the type of machinery furnished, the acts representing an exercise of actual control, and the right to substitute another operator on a machine.” Id. This “includes determining when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result.” Id. If the right of control is expressed in a contract, “a court can dispose of the borrowed servant issue without the necessity of considering the facts and circumstances of the project.” Marshall v. Toys-R-Us Nytex, Inc., 852 S.W.2d 193, 196 (Tex. App.—Houston [14th Dist.] 1992, writ denied).

Here, the contract between MSV and Sangar covers how much MVT would pay for security guards, when overtime rates applied, how MVT would go about adjusting pay rates, and the timeframe of the contract. Dkt. 12, Ex. B. It does not address the right to control other than noting that MVT could request additional personnel or hours. See id. MVT’s affidavits indicate that (1) neither Sangar nor Oasis controlled the facility or determined how to staff the facility, how many guards to staff, or where the guards should be located (Dkt. 12 Ex. B), and (2) the guards at MVT’s facility were under the control of MVT, which determined when and where the guards were to patrol, the manner in which they should perform the security function, how many guards were needed, and the times during which guards should be present (Dkt. 12, Ex. A). This evidence supports MVT’s assertion that Leonard was its borrowed servant.

Leonard, on the other hand, asserts she was not MVT’s borrowed servant. In her affidavit, she states that (1) nobody at MVT ever instructed her how to perform her job duties; (2) nobody at MVT ever furnished her with tools to perform her job; (3) she did not check in with anybody at MVT; (4) nobody at MVT directed the order in which security services were provided; (5) MVT did not provide a uniform or name tag; (6) she was stationed at the only guard shack at the facility and nobody at MVT told her where she should be stationed; (7) nobody at MVT was ever identified as her supervisor or manager; and (8) MVT did not provide her with any written materials. Dkt. 13, Ex. A. She asserts that (1) she checked in with Oasis to let them know when she started and ended her shift; (2) her uniform identified her as a employee of Sangar; (3) a supervisor employed by Sangar oversaw her work; (4) any written materials provided were from Sangar or Oasis; and (5) she believed any issues with her job performance would be addressed by Sangar or Oasis, not MVT. Id. This evidence supports Leonard’s contention that MVT did not control the facts and circumstances of her work.

While the court may be able to infer a right to control if MVT’s affidavits were taken in isolation, Leonard’s affidavit creates an issue of material fact on this issue, making summary judgment in MVT’s favor inappropriate. At this preliminary stage, it would appear that a jury is necessary to resolve the borrowed servant question. However, the court is aware that the parties have not yet engaged in significant discovery. The motion for summary judgment is DENIED WITHOUT PREJUDICE to re-filing if discovery reveals further evidence that clarifies the borrowed servant issue.

IV. CONCLUSION

MVT’s motion to dismiss (Dkt. 7), which the court converted to a motion for summary judgment in the interest of judicial economy (Dkt. 12), is DENIED.

Signed at Houston, Texas on August 23, 2021.

Court of Appeals of Texas, El Paso.

EAST TEXAS EDUCATIONAL INSURANCE ASSOCIATION, Appellant,

v.

MARIA D. RAMIREZ, Appellee.

No. 08-19-00220-CV

|

August 20, 2021

Appeal from the 210th District Court of El Paso County, Texas (TC# 2018DCV1567)

Before Rodriguez, C.J., Palafox, and Alley, JJ.

O P I N I O N

YVONNE T. RODRIGUEZ, Chief Justice

Appellant, East Texas Educational Insurance Association, appeals from a trial court judgment reversing the decision of the Texas Department of Insurance, Division of Workers’ Compensation. After a jury trial, the jury found that Maria Ramirez, Appellee, was entitled to Lifetime Income Benefits (“LIBs”) with an accrual date of June 12, 2013. In four issues on appeal, Appellant challenges the legal and factual sufficiency of the evidence to support the jury’s findings and the trial court’s judgment. For the reasons that follow, we affirm.

FACTUAL BACKGROUND

On June 5, 2008, Appellee slipped and fell while stripping wax off a floor at the school where she worked as a custodian for Fabens Independent School District. She sustained a left hip fracture and dislocation in the fall. Surgery to repair the fracture was successful, but Appellee developed a number of complications which resulted in additional surgeries to her left hip and leg.

Plaintiff’s Medical Records

Following the initial fall, Appellee was transported by ambulance to a local hospital where she was diagnosed with a subcapital fracture of the left femur. A past medical history of diabetes was noted, along with elevated glucose readings indicating hyperglycemia. Appellee received an initial evaluation from Dr. Everett Campbell, who performed an endoprosthesis replacement of the proximal femur in Appellee’s left hip the same day. A week later, medical records note Appellee was recovering “nicely” from her surgery and was stable, although experiencing pain in the hip. She was discharged to a rehabilitation hospital on June 12, 2008. At the rehabilitation hospital, she received a treatment plan with a goal of addressing gait, mobility, and pain. At that time, she was unable to walk or transfer without at least moderate assistance.

Five days later, an infectious disease physician saw Appellee due to her experiencing low-grade fevers. The doctor discovered a “stage 1 decubitus” (bedsore) without evidence of infection.

Appellee was discharged from the rehab hospital on June 25, 2008. At the time of discharge, she was able to walk seventy-five feet two times in a row with a walker. She still required assistance for transferring and getting in and out of bed. Her surgical incisions appeared to be healing well, and she was deemed to be medically stable and able to participate in outpatient rehab and discharged home. Appellee started outpatient physical therapy two days after discharge and attended ten physical therapy appointments from July 2, 2008, through July 22, 2008.

On July 23, 2008, Appellee received treatment at Alivio Health Center for pain in her left hip at an 8/10 level that was exacerbated by standing and walking. She also complained of pain and numbness radiating to her left leg and toes. An examination revealed sciatic disc compression; however, no neurologic abnormalities were identified.

On July 29, 2008, Dr. Campbell provided a follow-up evaluation after Appellee presented in the emergency room with a left hip infection. Appellee reported the symptoms began the previous week when she noticed fever and increased pain in her left hip. Dr. Campbell discovered infected fluid in Appellee’s hip; x-rays of her hip showed the prosthesis was in place. Appellee’s treatment plan was to remove the prosthesis and any damaged tissue and continue with antibiotic treatment for the infection. X-rays from July 31, 2008, following the second surgery show proper alignment and position of the prosthetic in Appellee’s left hip.1

On September 6, 2008, Appellee received a follow-up evaluation and complained of mild pain in her hip; her extremities showed no swelling or tenderness, and her sutures were healing. Her treatment plan included continued range-of-motion and progressive resistive activities with therapy. Progress notes from September 24, 2008, through October 3, 2008, indicate continued pain complaints and a sacral ulcer. Her left hip pain was well-controlled with medication. Progress notes in that time indicate her left hip was healing well and she continued treatment for the sacral ulcer. By October 19, 2008, Appellee showed a healed wound on her left hip and complained of mild pain in the hip, and continuing pain in the sacrum.

On October 20, 2008, Appellee presented at Triumph Hospital with a new complaint of right ankle pain and difficulty walking. Examination showed the right ankle had posterior edema of the Achilles and discomfort on palpation. Appellee had full active range of motion in her right ankle with mild discomfort, and increasing discomfort with flexion. Her diagnoses included possible sprain/strain to the right Achilles tendon and residual debility.

On October 21, 2008, Appellee denied having any current pain. Examination of her right leg showed mild edema and discomfort in the right Achilles tendon. Medical records between October 24 and October 31, 2008, indicate Appellee was not experiencing significant pain and examination of her extremities showed no swelling or tenderness. She continued to receive treatment for the sacral ulcer wound. On October 31, 2008, Appellee underwent surgery to repair the sacral ulcer.

Records through early November of 2008 show Appellee continued to attend physical therapy appointments and receive treatment for the sacral ulcer. Her condition was stable and reports indicate she was doing well.

On November 15, 2008, Appellee complained of spasms in her legs and right arm and hand with “unclear etiology.” She began receiving home health care in mid-November of 2008.

By December 3, 2008, Appellee reported doing well with her ulcer. She experienced some pain on rotation of her left hip; x-rays of the left hip showed a good position of the cement spacer and minor limb shortening. However, it was recommended that her treatment include “a revision arthroplasty and likely proximal femoral replacement.”

A December 18, 2008, evaluation by Dr. Michael Mrochek, a physiatrist, indicated Appellee’s lower extremities were very atrophic, had weakness in both ankles with dorsiflexion (flexing the foot upward) and significant low back pain with a strait leg raise test. The treatment recommendation included a study of her lower extremities to look for the possibility of radiculopathy. Dr. Mrochek noted her complete inability to work.

On January 5, 2009, Appellee reported difficulty walking. Dr. Mrochek noted severe atrophy in both legs and weakness in the right leg. Dr. Mrochek conducted nerve tests of Appellee’s spine and noted impressions of “lumbosacral neuritis and polyneuropathy due to diabetes.”

On January 9, 2009, Appellee received a follow-up evaluation complaining of an infection of her left hip. Her physician planned hip replacement surgery to occur in the future. Appellee was discharged from physical therapy on January 14, 2009.

On January 22, 2009, Appellee underwent an MRI of her lumbar spine which showed “multilevel lumbar spondylotic changes” and multiple protrusions. An MRI of Appellee’s sacrum the same day showed subcutaneous fat edema and inflammation overlying the sacrococcygeal region.

On February 4, 2009, Appellee reported difficulty getting up and moving around due to pain in her coccygeal area. She reported pain going down her legs. Examination revealed lower extremity atrophy. Her physician recommended a bone scan and delayed her upcoming hip replacement to first rule out any additional source of infection. A bone scan on February 23, 2009, ruled out evidence of an active infection in the region around the left hip prosthesis. Her physician recommended proximal femoral replacement and total hip arthroplasty at that time.

On May 5, 2009, Appellee underwent a “radical resection of proximal left femur and conversion of previous hip surgery to left hip arthroplasty.” She was post-operatively diagnosed with left hip infection. She was transferred to a rehabilitation center on May 13, 2009, with orders for weightbearing as tolerated and to receive comprehensive rehabilitation. On May 14, 2009, physical examination at the rehabilitation center revealed 4/5 strength in her left and right ankles with the feet flexed. Her left leg showed edema mostly in the thigh. She exhibited difficulty controlling her blood sugar. Records note she probably had “critical care myelopathy/polyneuropathy with lower extremity weakness due to her prolonged state of immobility and recently prolonged ICU care.” She was participating in therapy and, by her discharge date of May 26, 2009, ambulating 350 feet with a walker with standby assistance. Records on May 27, 2009, report Appellee was doing well; however, range of motion in her left hip was painful and she had a three-and-a-half centimeter discrepancy in leg length.

On June 10, 2009, Appellee complained of hip pain and inability to sit for extended periods of time due to pain. She reported inability to walk because of weakness and cramping in her legs. Her doctor prescribed a shoe with a lift to account for her leg length discrepancy, and continued therapy.

On July 8, 2009, Appellee attended a follow-up evaluation reporting tailbone pain while sitting, and numbness in her legs from the knee down. X-rays showed dislocation of the prosthesis. Surgery on July 21, 2009, occurred to avoid further dislocation. Appellee underwent “conversion of the left hip bipolar hemiarthroplasty to constrained total hip arthroplasty.” X-rays taken after the surgery noted degenerative changes to the right hip and spine.

On July 28, 2009, Appellee began post-surgical comprehensive rehabilitation and was cleared for weightbearing as tolerated. By August 4, 2009, she was walking up to 300 feet with a walker with standby assistance, and required standby assistance for transfers. From an occupational therapy perspective, records indicate Appellee was modified independent with eating; required set up for grooming, hygiene, and upper extremity dressing; needed minimal assistance for lower extremity daily activities; and required moderate assistance with bathing. She was discharged home to continue physical therapy on August 6, 2009. For the next six weeks, she received physical therapy, occupational therapy, and skilled nursing care at home.

On September 8, 2009, Appellee was seen for an infection of the left total hip arthroplasty and sacral osteomyelitis. She also had an ulcer on her left heel. The following day she reported steadily decreasing left hip pain, but continued groin pain. Her leg length discrepancy was now between eight and ten centimeters. Her doctor recommended continued weightbearing.

On September 18, 2009, bone scan findings suggested infection of the left hip prosthesis with overlying cellulitis. Subsequently, Appellee’s physician reviewed the scan and noted they indicated “some inflammatory changes in the left hip but no evidence of osteomyelitis.” Appellee reported difficulty getting around and ability only to undertake transfers; she was unable to do much walking and her doctor observed swelling in her feet.

By November 4, 2009, Appellee reported continued left hip pain and use of six to eight hydrocodone per day to manage her pain. She was not doing physical therapy and was only transferring from bed to bedside commode. She reported inability to walk around her house at all, and her physician noted a limp when asked to stand and take a few steps. Appellee was able to take approximately six-inch steps and had to hop when applying pressure on her left leg. Her doctor opined that her high narcotic usage was likely due in part to pain and in part to narcotic resistance due to the length of time she had been taking them.

On November 20, 2009, Dr. Edward Roybal, an orthopedic surgeon, examined Appellee. He opined she had not yet reached maximum medical improvement (“MMI”) and her expected date of MMI was July 1, 2010.

On December 2, 2009, Appellee was evaluated for ongoing leg pain and numbness. Appellee was neurologically intact to her bilateral lower extremities, but weakness was noted in both legs. Review of the lumbar spine MRI showed no evidence of significant stenosis that would account for the numbness in the leg.

By early 2010, Appellee’s condition appeared to worsen. On January 11, 2010, Dr. Mrochek evaluated Appellee for issues related to pain control. She reported pain over the low back, the sacral region, the left hip, and radiating down the side of the left leg into the foot with tingling in her foot. She rated her pain at a level of 7/10. She remained in a wheelchair and was unable to stand and walk outside of parallel bars. She reported her pain quality was aching, burning, spasming, and constant. Dr. Mrochek noted severe atrophy in her legs. He diagnosed her with, among other things, polyneuropathy in diabetes and chronic pain syndrome.

On January 12, 2010, Appellee sought treatment from a chiropractor, Luis Marioni, D.C. She presented with lumbar spine and left hip pain rated at 7/10. During his examination, he noted muscle weakness, cervical and lumbar spine tenderness, left hip tenderness, decreased sensations, and decreased and painful lumbar and left hip range of motion. He diagnosed Appellee with a sprain of ligaments of the lumbar spine and displacement of a thoracic intervertebral disc without myelopathy. He referred her to a chronic pain management program. Records from Appellee’s pain management program protocol indicate they were ineffective at lowering her pain levels.

On January 27, 2010, Appellee reported continued tailbone and lateral-sided hip pain. However, she could walk around the house with assistance and showed good range of motion in her hip rotation without discomfort. Records noted significant atrophy in both legs. She had diminished sensation and diffuse tenderness throughout her legs.

During early 2010, Appellee continued reporting pain in her left hip into her left leg, lower back pain and tenderness, decreased range of motion in her spine, difficulty with mobility, and issues related to pain management. Dr. Mrochek completed a MMI and Impairment Rating evaluation and placed Appellee on MMI as of February 24, 2010, with an impairment rating of 30 percent.

As 2010 went on, Appellee’s overall condition continues to decline. In April, an examination by Dr. Mrochek revealed weakness in the right ankle compared to the left. On May 11, 2010, Dr. Marioni performed a Functional Capacity Evaluation on Appellee and determined she was not capable of performing even sedentary work demands. In June of 2010, records from multiple appointments indicate Appellee suffered from significant back and left hip pain, weakness in her trunk and legs, and atrophy of both lower extremities.

On July 15, 2010, Dr. Mrochek evaluated Appellee for pain she reported in spite of being wholly non-weightbearing. She complained of pain radiating from her left hip down the leg to her knee. X-rays showed a non-displaced femoral condyle fracture in her left leg.

In August of 2010, records indicate Appellee was no longer able to walk and was almost completely incapable of transferring out of bed, even with assistance. Dr. Mrochek opined she required a hospital bed to assist with transfers, as well as a lightweight wheelchair with an elevating leg lift. He opined that her condition was a direct result of her June 5, 2008, work injury. Appellee continued chiropractic care from September through November of 2010, with ongoing complaints of lumbar spine pain and left hip pain.

A September 16, 2010, peer review completed by Dr. Edward Roybal, an orthopedic surgeon, indicated he believed Appellee’s lumbar syndrome was the result of prolonged sitting and deconditioning. However, he attributed the bilateral neuropathy in Appellee’s legs as a condition secondary to her diabetes and not related to the compensable injury. He opined Appellee’s MRI findings showed degenerative disease issues and were pre-existing and unrelated to her compensable injury.

During October of 2010, Appellee continued reporting significant left leg pain. Additionally, she continued experiencing sacral pain and left lateral hip and thigh pain. Her left knee pain started following the supracondylar fracture. An evaluation note from October 11, 2010, revealed the complete absence of any reflexes in either her left or right knee or ankle, and both lower extremities were “very atrophic.” Severe weakness in both ankles and significant atrophy of the legs was noted in December of 2010, and severe range of motion restriction on Appellee’s lumbar spine. As 2010 ended and 2011 began, Appellee continued to receive treatment for chronic pain in the lumbar spine and left hip, and her doctors noted bilateral ankle weakness.

On March 4, 2011, Appellee saw Dr. Mrochek for pain in her right thigh which came on while trying to walk. Dr. Mrochek noted Appellee experienced pain in both legs related to chronic neuropathy which came on as she was recovering from the June 5, 2008, hip fracture.

As 2011 continued, Appellee repeatedly sought treatment for severe pain in the lower back and left hip, and pain radiating down her left leg. The pain increased when she attempted to walk, and as a result she mostly sat in a wheelchair. Dr. Mrochek again noted atrophy in the lower legs and weakness in her ankles, as well as the absence of any reflexes in either leg.

On June 20, 2011, Appellee reported foot swelling in addition to her ongoing issues. Her physician noted diminished sensation to both feet. She transferred out of bed on a very limited basis due to her pain issues. On August 19, 2011, Dr. Mrochek again noted advanced atrophy in her legs, particularly the quadriceps and calves of both legs. She exhibited no reflexes in either leg. On August 29, 2011, Dr. Marioni stated Appellee was unable to participate in any work activities. He noted lumbar spine pain radiating to the buttocks, left leg numbness and tingling, and restricted range of motion due to intense pain.

On August 29, 2011, Dr. Roybal completed a Peer Review for evaluation of Appellee’s ability to return to work. He opined she was unable to return to work because of dysfunction of her left hip associated with chronic pain syndrome and required daily narcotics. He deemed her condition permanent. In addition to her ongoing complaints of pain and loss of range of motion, Roybal noted significant pigmentation on her feet and lack of tendon reflexes in both knees and Achilles tendons. She also experienced decreased sensation in the feet and legs.

As 2011 came to an end, Appellee’s issues related to pain and mobility worsened further. A December 2011 evaluation by Dr. Mrochek indicated Appellee developed severe neuropathy and had been in a wheelchair as a result, and still had to wear a brace on her hip to keep it from dislocating.

Appellee’s medical treatment in 2012 consisted of ongoing pain management related to her chronic issues. Records from Dr. Marioni indicate her continued inability to work even for very short periods and noted her total disability. Her reports of severe pain continued through the end of 2012, as did doctor’s notes regarding continued atrophy in her legs.

On March 4, 2013, Appellee began seeing Dr. John Jackson, another orthopedic surgeon. By that time, Appellee was wheelchair-bound. He diagnosed Appellee with chronic deep infection of her left lower extremity, and noted “extensive lysis along the proximal femur consistent with osteomyelitis.” He recommended resection arthroplasty and likely a single stage revision with the placement of a total femur.

Dr. Jackson performed the surgery on March 21, 2013. Postoperatively, he diagnosed Appellee with deep infection to the left hip status post total hip arthroplasty with proximal femoral replacement. From March 26, 2013, through April 8, 2013, Appellee received inpatient rehabilitative care. Therapy produced some progress; Appellee required minimal assistance with bathing, contact guard assistance with dressing and standby to supervision with other daily activities. She was able to ambulate up to fifty feet with a walker and minimal assistance. However, x-rays taken on April 6, 2013, showed “a dislodging of the acetabular cup from the reamed acetabulum.” Dr. Jackson thus performed Appellee’s fifth hip surgery on April 8, 2013, to correct the issue. Appellee received further inpatient rehabilitative care following the fifth hip surgery.

On May 8, 2013, Appellee saw Dr. Marioni. He noted that she was unable to work even short periods of time and was in a wheelchair. He stated she was unable to stand by herself or walk without assistance, and opined that any stress to Appellee as a result of attempting to work could cause re-injury. He stated she had a permanent disability. Appellee’s reports of ongoing severe pain in both legs and her back continued through 2013.

Medical records throughout 2014 indicate Appellee’s condition remained largely unchanged. Her mobility continued to decrease incrementally and she was completely wheelchair bound. Records in 2015 reiterate weakness and decreased range of motion in Appellee’s right ankle, and the absence of reflexes in the legs, in addition to her other chronic pain and mobility issues. Appellee’s medical examinations in 2016 revealed her condition remained unchanged. On July 19, 2016, an exam by Dr. Mrochek again showed decreased range of motion and weakness in Appellee’s right ankle, and an absence of reflexes in the right leg. Records indicate she continued receiving treatment for her ongoing conditions through at least September of 2017. During this time, weakness in her right leg progressed. By March 24, 2017, Appellee was unable to transfer without full assistance from her husband.

Trial on the Merits

At trial, Appellee testified she began working for Fabens ISD in 1992. At the time of her initial injury, she was the head custodian. Her job was physical in nature, and also included administrative tasks. She typically walked to work each day, which took her about twenty minutes. She worked a ten hour day, arriving at 6 a.m. and leaving at 4 p.m.

Appellee testified about her history with diabetes. She was first diagnosed in 1992, but testified it was under control at that time through diet and exercise. She also took Metformin to manage her diabetes. She saw her primary care physician regularly to monitor her diabetes. She testified she did not experience any issues with her legs or any other bodily system prior to the accident. Following the accident in 2008, she began experiencing difficulty managing her diabetes.

Appellee testified she has been unable to walk without assistance since the injury. She stated her legs are now very weak and she cannot walk more than a few steps with assistance before she has to stop due to fear of falling. Appellee has been unable to stand on her own since the date of the injury. She testified she would be unable to return to her previous job because she cannot walk, and her use of narcotic medication to manage her pain makes her drowsy. Her previous work experience was also physical in nature. She was unable to think of any job she would be able to do requiring the use of her feet. Appellee indicated her feet get numb and are very weak and as a result she is unable to move them to walk.

Appellee reported back pain to several of her doctors, including Dr. Roybal, Dr. Marioni, and her first orthopedic surgeon, Dr. Campbell. Dr. Roybal told her he could not attribute her back pain to the compensable injury because it was not documented nearer in time to the initial injury. She testified both legs have changed in size and shape since the incident, as well as her feet. She stated she used to wear a size seven shoe and now wears a five.

Portions of the deposition of Dr. Michael Albrecht were played into the trial record. He was retained by counsel for Appellant to prepare a peer review of Appellee’s medical records. He opined that, “Aside from the left hip fracture and the complications associated with the left hip fracture...I found no objective evidence to conclude that any other diagnosis is related to the work-compensable left hip fracture.” Dr. Albrecht testified he did not believe Appellee had diminished utility of her feet, and stated the purpose of the human foot was to walk. His opinion was based on indications in the medical records showing Appellee was able to do some walking after the first and second surgeries.

Dr. Albrecht testified the atrophy Appellee experienced in her legs was due to her muscles shrinking, and agreed Appellee exhibited atrophy in both legs. However, he denied any record of atrophy in Appellee’s feet. He stated atrophy can be caused by nerve injury or prolonged disuse of the muscle. He also testified that motion of the foot is largely controlled by muscles in the legs. Dr. Albrecht stated a patient who had been wheelchair-bound for approximately ten years would likely experience atrophy in one or both feet.

Dr. Jackson, one of Appellee’s treating orthopedic surgeons, also testified at trial. He testified Appellee’s prolonged periods of immobility following her multiple surgeries resulted in her right side getting progressively weaker and atrophying. It was his opinion Appellee’s left side was permanently disabled and her right side was progressively declining. Medical reports from Dr. Jackson indicating Appellee’s foot function was “normal” meant only that she could move her toes; the portion above her foot through her knee and hip was very abnormal and were not functional for walking. He was unaware of any employment in which Appellee could engage given her condition. He also testified that he believed the atrophy in Appellee’s legs was not the result of her diabetes.

PROCEDURAL BACKGROUND

Appellee filed a Contested Case Hearing with the Texas Department of Insurance, Workers’ Compensation Division (the “Division”) to determine her entitlement to LIBs based on the loss of both feet at or above the ankles. A benefit review conference was held on October 16, 2017, in an attempt to mediate a resolution of the disputed issue. However, such mediation was unsuccessful and on February 6, 2018, the Division held a contested case hearing. The Division’s Findings of Fact stated in relevant part:

4. The following conditions were not caused, accelerated, worsened or enhanced as a result of the compensable injury: an injury to her spine or an injury to her right lower extremity.

5. Claimant did not establish that she no longer possesses any substantial utility of both feet at or above the ankle as a result of the compensable injury.

6. Claimant did not establish that she has permanent loss of use of both feet as members of her body as a result of the compensable injury.

7. Claimant’s condition is not such that she cannot get and keep employment requiring the use of both feet at or above the ankle as a result of the compensable injury sustained on June 5, 2008.

8. Since Claimant is not entitled to Lifetime Income Benefits, an accrual date cannot be determined.

Accordingly, the Division concluded that Appellee was not entitled to LIBs based on the loss of both feet at or above the ankles. Appellee appealed to the Workers’ Compensation Appeals Panel (“the Panel”), which issued a notice that the Division’s order denying Appellee’s request for LIBs became final on April 10, 2018.

Appellee filed suit in district court seeking judicial review of the Division’s ruling. Appellant filed its answer, asserting a general denial to Appellee’s allegations.

The parties tried the case to a jury. After hearing the evidence, the jury determined that Appellee’s June 5, 2008, injury extended to and included an injury to the spine and/or the right lower extremity. The jury also found Appellee suffered an injury to both feet at or above the ankles that was a producing cause of the total loss of use of both feet at or above the ankles. Accordingly, the trial court awarded LIBs to Appellee, reversing the Division’s decision.

Appellant filed a motion for new trial and motion for judgment notwithstanding the verdict. Following a hearing, the trial court denied both motions. This timely-filed appeal followed.

DISCUSSION

On appeal, Appellant raises four issues. In its first and second issues, Appellant asserts the jury’s determination that Appellee suffered an injury to both feet at or above the ankles that was a producing cause of permanent and total loss of use of both feet at or above the ankles is not supported by legally or factually sufficient evidence. In its third and fourth issues, Appellant claims the jury’s determination that Appellee’s compensable injury of June 5, 2008, extended to and included the spine and/or right lower extremity is not supported by legally or factually sufficient evidence.

Legal and Factual Sufficiency Standards of Review

A legal sufficiency or “no evidence” challenge will only be sustained on appeal if the record demonstrates: (1) the complete absence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); Dallas Nat. Ins. Co. v. Morales, 394 S.W.3d 826, 831 (Tex.App.—El Paso 2012, no pet.); Region XIX Service Center v. Banda, 343 S.W.3d 480, 484 (Tex.App.—El Paso 2011, pet. denied); El Paso Independent School District v. Pabon, 214 S.W.3d 37, 41 (Tex.App.—El Paso 2006, no pet.). When conducting a legal sufficiency review, we consider the evidence in the light most favorable to the verdict, crediting favorable evidence if a reasonable juror could, and disregarding contrary evidence unless a reasonable juror could not. City of Keller, 168 S.W.3d at 810; Region XIX Service Center, 343 S.W.3d at 485. The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. City of Keller, 168 S.W.3d at 827.

When reviewing the factual sufficiency of evidence, we examine all the evidence and set aside a finding only if the evidence supporting the jury finding is so weak as to be clearly wrong and manifestly unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). Under both a legal and factual sufficiency review, we are mindful that the jury, as fact finder, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819. We may not substitute our judgment for the fact finder’s, even if we would reach a different answer on the evidence. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).

Applicable Law

The Texas Workers’ Compensation Act (the “Act”) authorizes the award of LIBs to employees who lose certain body parts or suffer certain injuries in work-related accidents. Insurance Company of State of Pennsylvania v. Muro, 347 S.W.3d 268, 269 (Tex. 2011). Section 408.161 of the Act enumerates the specific body parts and injuries that qualify an employee for this type of benefit. Id. (citing TEX.LAB. CODE ANN. § 408.161(a)(1)-(7)). According to section 408.161, LIBs are paid to an employee for:

(1) total and permanent loss of sight in both eyes;

(2) loss of both feet at or above the ankle;

(3) loss of both hands at or above the wrist;

(4) loss of one foot at or above the ankle and the loss of one hand at or above the wrist;

(5) an injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg;

(6) a physically traumatic injury to the brain resulting in incurable insanity or imbecility; or

(7) third degree burns that cover at least 40 percent of the body and require grafting, or third degree burns covering the majority of either both hands or one hand and the face.

TEX.LAB. CODE ANN. § 408.161(a). “[T]otal and permanent loss of use of a body part is the loss of that body part.” Id. § 408.161(b). The Act defines “injury” as “damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm.” Id. § 401.011(26); see also Dallas Nat. Ins. Co. v. De La Cruz, 470 S.W.3d 56, 58 (Tex. 2015). As the terms pertain to workers’ compensation, “damage” and “harm” have been distinguished as follows:

The ordinary as well as legal connotation of “harm” is that it is of broader import than “damage.” Damage embraces direct physical injury to a cell, tissue, organ or organ system; “harm” to the physical structure of the body embraces also impairment of use or control of physical structures, directly caused by the accident. This interference with use or control in an organism whose good health depends upon unified action and balanced synthesis can be productive of the same disabling signs and symptoms as direct physical injury to the cells, tissues, organs or organ systems.

Bailey v. American General Ins. Co., 279 S.W.2d 315, 319 (Tex. 1955). Further, “ ‘physical structure of the body,’ as it is used in the statute, must refer to...the whole, to the complex of perfectly integrated and interdependent bones, tissues and organs which function together by means of electrical, chemical and mechanical processes in a living, breathing, functioning individual.” Id. at 318.

“For total loss of use of a member to be compensable, the loss of use must have resulted from injury to the member itself, as opposed to the loss of use resulting from injury to another part of the body.” De La Cruz, 470 S.W.3d at 58. The injury can be direct or indirect; however, “there must be damage or harm to the physical structure of the member in order for that member to be injured under the Act.” De La Cruz, 470 S.W.3d at 58 (citing Muro, 347 S.W.3d at 275). Pain in the member without other symptoms is not an injury under the Act. Id.

Here, Appellee claims her compensable injury falls under subsection (a)(2), “loss [or lost use] of both feet at or above the ankle[.]” See TEX.LAB. CODE ANN. § 408.161(a)(2), (b). Appellant disagrees.

Appellant relies primarily on two cases out of the Texas Supreme Court: Muro and De La Cruz. See Muro, 347 S.W.3d 268; De La Cruz, 470 S.W.3d 56. In Muro, Carmen Muro, the claimant, injured her hips, lower back, right shoulder, and neck in a slip and fall accident at work. Muro, 347 S.W.3d at 270. Muro’s injuries did not encompass a specific injury or body part enumerated in section 408.161. Id. However, Muro’s hip injuries affected the use of her feet to the extent that she could no longer work. Id. at 270. According to Muro, after surgery and the replacement of her hips, she returned to work but had difficulty “walking from the parking lot and sitting at her desk.” Id. Muro then stopped working and sought LIBs under the Texas Workers’ Compensation Act “because her workplace accident caused her to lose the use of her right hand and both feet.” Id. Although Muro’s feet were not injured, per se, a jury found that she was entitled to LIBs. Id. at 269-70. The court of appeals affirmed the employee’s award, concluding that section 408.161 does not limit the award of LIBs to the specific injuries and body parts enumerated in the statute. Id.

The Texas Supreme Court reversed by denying LIBs. Muro, 347 S.W.3d at 277. The Court began its discussion by laying out the seven circumstances, or the seven enumerated body parts that section 408.161(a) provides “for the payment of lifetime income benefits[.]” Id. at 271. The Court raised the issue that the statute does not define “what it means to lose the use of one of the enumerated body parts ....” Id. at 271. Accordingly, the Court examined prior case law, particularly Travelers Insurance Co. v. Seabolt, 361 S.W.2d 204 (Tex.1962), which defined the “total loss of the use of a member.” Id. at 272. The Court explained that the earlier version of the Act used the term “member” instead of “body part.” Id. The Court also discounted a number of cases from the courts of appeals used by the parties by classifying them as “old-law cases.” Id. at 273. The Court explained that these “old-law cases” were decided under an “earlier version of the workers’ compensation act,” which included six enumerated injuries and an all-encompassing “other loss” clause. Muro, 347 S.W.3d at 273-74. The Court then noted that the current version of the Act does not include the all-encompassing “other loss” clause. Id. at 274. Therefore, the Court determined that the cases that rely upon the “other loss” clause are “neither relevant nor useful[.]” Id. at 274. The Court further explained that had the Texas Legislature wanted to include impairment or disability in the Act, it would have retained the “other loss” clause. Id. at 274-75. The Court concluded by stating, “The injury to the statutory body part may be direct or indirect, as in Burdine, but the injury must extend to and impair the statutory body part itself to implicate section 408.161.” Id. at 276. Finding no evidence the injuries extended to Muro’s feet or right hand, no contention that her feet or hand “ceased to possess ‘any substantial utility as a member of the body,’ ” and “no evidence of injury to these body parts that prevented her from procuring and retaining employment requiring their use,” the Court concluded the claimant was not entitled to LIBs. Id. at 276.

De La Cruz is the most recent Texas Supreme Court case dealing with LIBs. There, the claimant, Gloria De La Cruz, fell and injured her left knee and back while working as a cook at a restaurant in 2004. De La Cruz, 470 S.W.3d at 57. Her doctors diagnosed her with intervertebral disc herniations. Id. She had back surgery and, later, arthroscopic left knee surgery. Id. In spite of surgical treatment, she continued to experience pain and numbness in her legs, and continued treatment for back and knee pain. Id. De La Cruz sought LIBs from the Division of Workers’ Compensation in 2009 pursuant to Section 408.161 of the Act, claiming her injury “caused the total loss of use of both her feet at or above the ankle, [and] the loss of use was permanent[.]” De La Cruz, 470 S.W.3d at 57 (citing see TEX.LAB. CODE ANN. § 408.161). Following a contested case hearing, the hearing officer denied her right to LIBs, which De La Cruz appealed. Id. An appeals panel from the Division affirmed, and De La Cruz appealed to the district court. Id. (citing TEX.LAB. CODE ANN. §§ 410.252, 410.301). After a non-jury trial, the district court found “her injury resulted in the total and permanent loss of use of both her feet at or above the ankle and awarded LIBs.” Id.

On appeal, this Court affirmed. Dallas Nat’l Ins. Co. v. De La Cruz, 412 S.W.3d 36, 38 (Tex.App.—El Paso 2013), rev’d, Dallas Nat’l Ins. Co. v. De La Cruz, 470 S.W.3d 56 (Tex. 2015). We held that the evidence was both legally and factually sufficient based on references in the medical records to radiculopathy, an impairment rating for radiculopathy, records demonstrating a “dermatomal loss on right side of L2 and left side L3,” De La Cruz’s use of a cane, and her complaints of pain radiating to her toes. De La Cruz, 412 S.W.3d at 43.

The Texas Supreme Court reversed, finding “[t]he closest the evidence comes to proving damage or harm to the physical structure of De La Cruz’s feet are piecemeal, unexplained statements in various medical records.” De La Cruz, 470 S.W.3d at 59. The Court noted two instances in the medical records where doctors noted De La Cruz suffered from problems secondary to radiculopathy and postlaminectomy syndrome, as well as “dermatomal loss due to nerve damage in her back.” Id. [internal quotations omitted]. However, the Supreme Court found the records did not indicate “what parts of her lower extremities were involved or whether there was any physical damage or harm to them.” Id. In particular, one medical record noted the absence of reflexes bilaterally in the ankles, but

[D]oes not identify whether the condition was transient or permanent in both ankles; whether it reflected more than damaged nerve roots in De La Cruz’s back; whether De La Cruz’s feet were unable to function properly; or whether the condition was permanent and caused permanent total loss of use of both her feet. Id.

The Court held that it was not enough for the evidence to indicate her injury to her back merely affected her lower extremities, including her feet. De La Cruz, 470 S.W.3d at 59. Rather, the Court reiterated its holding in Muro – that “absent evidence of damage or harm to the physical structure of the enumerated body part or parts” which resulted in the permanent total loss of use of those parts, the evidence is legally insufficient to meet the requirements to qualify for LIBs under section 408.161. Id. (citing Muro, 347 S.W.3d at 275).

Appellee relies on several cases, the first of which is Liberty Mutual Ins. Co. v. Adcock, 412 S.W.3d 492 (Tex. 2013). In Adcock, claimant Ricky Adcock injured his right ankle at work. Id. at 493. He underwent reconstructive surgery, but nevertheless developed reflex sympathetic dystrophy in his injured ankle. Id. The loss of use of his right foot, in combination with loss of use in his right hand at the wrist, entitled him to LIBs per the decision of the workers’ compensation appeals panel. Id. A decade later, Liberty Mutual, his former employer’s workers’ compensation carrier, sought a new contested case hearing based on their belief Adcock regained use of his extremities. Id. at 493-94.

Adcock primarily deals with the Texas Department of Insurance, Division of Workers’ Compensation’s (“Division”) authority to re-open LIB determinations. See Adcock, 412 S.W.3d at 494. The narrow issue decided in Adcock is not at issue in the case now before us. However, Appellee relies on Adcock for the proposition that Adcock’s injury entitling him to LIBs was a foot injury at the ankle and a hand injury at the wrist; that is, although no injury or harm befell his foot below the ankle or his hand below the wrist, the subject foot and hand were still deemed injured consistent with the statutory language describing injuries to the foot “at or above” the ankle and injuries to the hand “at or above” the wrist. See TEX.LAB. CODE ANN. § 408.161(a)(4); Adcock, 412 S.W.3d at 494.

Appellee quotes the Supreme Court in Adcock, wherein the Court reiterated, “ ‘Enforcing the law as written is a court’s safest refuge in matters of statutory construction, and we should always refrain from rewriting text that lawmakers choose....’ ” Adcock, 412 S.W.3d at 494 (quoting Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009)). Although the high court was not construing section 408.161(a)(4) in Adcock when it made the foregoing statement, we are mindful of the quote’s applicability in all instances where we are called upon to interpret legislative mandates. Nevertheless, we cannot ignore the Supreme Court’s unequivocal requirement in Muro and reiterated in De La Cruz that “absent evidence of damage or harm to the physical structure of the enumerated body part or parts” which resulted in the permanent total loss of use of those parts, the evidence is legally insufficient to meet the requirements to qualify for LIBs under section 408.161. De La Cruz, 470 S.W.3d at 59 (citing Muro, 347 S.W.3d at 275).

Appellee also relies on Travelers Indem. Co. of Connecticut v. Thompson, No. 05-16-00816-CV, 2018 WL 524860 at *2 (Tex.App.—Dallas Jan. 24, 2018, pet. denied)(mem. op.). There, Billy Thompson injured his back, right elbow, head and neck when he fell off a six-foot ladder onto some pipes. Id., at *1. None of the four back surgeries he endured provided lasting relief. Id. His doctor diagnosed him with cervical disc disorder, radiculopathy, and lumbar disc disorder with radiculopathy. Id. Thompson underwent a number of treatments prescribed by multiple physicians. Id. Nearly sixteen years following his accident, Thompson saw a doctor of osteopathy who reviewed his earlier medical records and determined his numerous issues resulted from the injury he sustained in his fall from the ladder. Id. The Division, however, determined his previous compensable injury included a right elbow contusion but did not extend to his other injuries. Id. It determined Thompson was not entitled to LIBs because it concluded “Thompson’s injury was not a producing cause of the total loss of use of either hand at or above the wrist or either foot at or above the ankle.” Id. The appeals panel declared the order final and Thompson appealed to the district court, seeking a jury trial. Id., at *2.

At trial, Thompson testified he suffered from “bilateral leg pain that travels all the way down to his feet[,]” which surgery failed to alleviate. Thompson, 2018 WL 524860, at *2. He described the pain as numbness and tingling. Id. He testified to his inability to wear normal shoes due to foot swelling, and requiring a cane to walk. Id. Thompson’s osteopathist testified regarding Thompson’s intravertebral disc displacement in multiple locations, as well as radiculitis, neuralgia and neuritis. Id. He testified that Thompson’s fall affected Thompson’s nerves, causing his injuries and “ ‘to experience pain and physical limitations’ ” as well as mood and pain disorders. Id.

A second physician performed an independent medical exam of Thompson, during which time the doctor did not observe Thompson in acute distress. Thompson, 2018 WL 524860, at *2. Among other things, Thompson walked without assistance at the appointment, and “had a normal swing and stance phase unlike someone suffering significant changes in his spine, knees, hips, or legs.” Id. The doctor did not observe any atrophy on Thompson. Additionally, the doctor attributed diminished range of motion in Thompson’s arms and legs to “lack of cooperation rather than injury or spinal disease.” Id. He did, however, note that Thompson “exhibited weakness in multiple muscles that could not be explained by any anatomic or neurologic bases.” Id.

Following the trial, the jury found Thompson’s compensable injury included thirteen additional injuries, and “found [his] compensable injury was a producing cause of the permanent loss of the use of both feet at or above the ankles,” among other things. Thompson, 2018 WL 524860, at *3. The jury found Thompson was entitled to LIBs, and Travelers appealed. Id.

On appeal, Travelers argued insufficient evidence exists to establish Thompson “suffered an injury to either foot at or above the ankle...and that any such injury he suffered resulted in the permanent and total loss of use of those members of his body.” Thompson, 2018 WL 524860, at *4. It argued that the lack of expert evidence showing damage or harm to Thompson’s foot or hand resulted in legally insufficient evidence to support the jury’s award. Id., at *4-5. Travelers also contended that “because the various medical records do not elaborate on how any injury to the nerve roots in his back may have affected his hands or feet[,]...the evidence amounts to nothing more than the type of unexplained, piecemeal records the supreme court rejected in De La Cruz.Id., at *5 (citing De La Cruz, 470 S.W.3d at 59).

The Dallas court disagreed, noting that although Thompson received no direct injury to his hands or feet in the fall, medical records indicate the radiculopathy he indisputably suffered from “caused more than pain in his hands and feet.” Thompson, 2018 WL 524860, at *6. The court noted Thompson’s complaints of swelling, burning pain, hot and cold temperature changes, numbness and tingling in his arms, hands and feet. Id. It also noted his increasing weakness and absence of reflexes. Id. Thus, because of his diagnosis of radiculopathy resulting from the incident, in combination with the onset of these symptoms indicating more than mere pain, it was reasonable to infer “Thompson’s radiculopathy caused indirect physical damage and harm to his feet at or above the ankles and to his hands at or above his wrists to support the jury’s LIBs award.” Id.

Appellee also relies on see Hartford Underwriters Ins. Co. v. Burdine, 34 S.W.3d 700 (Tex.App.—Fort Worth 2000, no pet.). Claimant Jean Burdine fell backwards while standing up from her desk, landed in her chair, but injured her back when the arm and base of the chair broke. Id. at 702. She underwent treatment from several doctors, a chiropractor, and physical therapist, but was unable to return to work due to lingering pain and medication. Id. Burdine sought LIBs from the Texas Workers’ Compensation Commission, which denied her request. Id. Appeal to a district court resulted in a jury finding that “Burdine’s work injury was the producing cause of permanent and total loss of use of both legs and permanent and total loss of use of both feet at or above the ankles.” Id. The jury also found Burdine received an injury to both feet at or above the ankle that was a producing cause of the total loss of use of both feet at or above the ankle. Id. at 704. Hartford appealed, claiming the record contained legally insufficient evidence to support the jury’s finding. Id. at 705. Specifically, Hartford argued there was no evidence of injury to Burdine’s legs, only her spine, “which indirectly affected the use of her feet and legs.” Id. at 706.

Evidence at Burdine’s trial showed she was diagnosed with “lumbosacral disk disease with radiculopathy,” considered a type of “nerve irritation.” Burdine, 34 S.W.3d at 706 [internal quotations omitted]. Radiology findings showed abnormalities in the discs in her lower back and “nerve injury to the associated nerve roots that exit at those levels.” Id. [internal quotations omitted]. Her treating physician testified the nerves at issue “go down the legs into the feet.” Id. [internal quotations omitted]. He also testified Burdine suffered from “footdrop” due to the nerve injuries, which “caused a muscular malfunction in Burdine’s feet, causing her to be unable to lift her feet, causing her feet to ‘slap the ground,’ and causing a tendency for her to trip over her own toes.” Id. He testified her total loss of use of her legs and feet at or above the ankles was permanent, and she was completely physically disabled. Id. He also opined that her compensable work injury produced the total loss of use of her legs. Id. at 707. Specifically, he stated her compensable work injury “ ‘precipitated the current problem which has led to the chronic pain and the lower extremity weakness and pain.’ ” Id.

Burdine testified she experienced persistent pain and numbness in both legs, inability to bend her legs, and occasional inability to “maneuver” her legs in order to walk. Id. [internal quotations omitted]. Her medical records also indicated she suffered from a back injury that resulted in problems with both the function of her legs and the function of both feet at or above the ankles. Id.

The Fort Worth Court of Appeals affirmed the jury’s findings on both legal and factual sufficiency grounds. Id. It held that the evidence showed Burdine’s back injury fit the jury charge’s definition for “injury” under the statute, which was “damage to the physical structure of the body that caused the incitement, precipitation, acceleration, or aggravation of the condition of both her legs and/or feet at or above the ankles[.]” Id. [internal quotations omitted]. Moreover, the Court found “an overwhelming amount of evidence in the form of testimony and medical records to support the jury’s finding...that Burdine’s feet and/or legs no longer possess ‘any substantial utility as a member of the body’... ‘such that [Burdine] cannot get and keep employment regarding [their] use.’ ” Id. [bracketed text original].

Analysis

A. Legal Sufficiency of the Evidence

In examining the evidence favorable to the verdict, and disregarding all evidence contrary to the verdict unless a reasonable juror would be unable to do so, we find more than a scintilla of evidence exists in the record proving Appellee suffered an injury2 to both feet at or above the ankles that was a producing cause of permanent and total loss of use of both feet at or above the ankles. See City of Keller, 168 S.W.3d at 810. We likewise find the record demonstrates more than a scintilla of evidence proving Appellee’s compensable injury of June 5, 2008, extended to and included the spine and/or right lower extremity. See id.

Appellee’s initial surgery included replacement of her femur with a prosthetic. Placement of a prosthesis prevents muscles and ligaments from attaching to it, unlike the case with a bone itself. Dr. Jackson testified that one of the surgeries performed on her left leg in which he replaced her hip socket, femur, and knee, resulted in the entire length of her leg from hip to knee being replaced with titanium prosthetics. As a result, there were no longer any places for the muscles in her leg to attach, which weakened her leg and precluded her from ever being able to walk normally again. He further testified that these prosthetics decrease mobility because the muscle has nothing upon which to anchor itself.

The medical records confirm Dr. Jackson’s testimony. As early as December 18, 2008, medical records indicated Appellee’s lower extremities were atrophic, she was experiencing weakness in both ankles and significant low back pain. On January 5, 2009, Appellee reported difficulty walking and Dr. Mrochek noted severe atrophy in both legs and weakness in the right leg. On February 4, 2009, Appellee reported difficulty getting up and moving around due to pain in her coccygeal area. She reported pain going down her legs, and physical examination revealed lower extremity atrophy. In May of 2009, records note she probably had “critical care myelopathy/polyneuropathy with lower extremity weakness due to her prolonged state of immobility and recently prolonged ICU care.” On June 10, 2009, Appellee reported inability to walk because of weakness and cramping in her legs. An evaluation note from October 11, 2010, revealed the complete absence of any reflexes in either her left or right knee or ankle, and both lower extremities were “very atrophic.” Severe weakness in both ankles and significant atrophy of the legs was noted in December of 2010. At multiple appointments in late 2010 and into 2011, her doctors noted bilateral ankle weakness. The foregoing examples are but a handful of references in Appellee’s medical records to Appellee’s steady decline in strength, muscle tone, and lower leg function following the June 5, 2008, injury and subsequent numerous surgeries and complications, as fully set out in the background section of our opinion.

Furthermore, Appellee’s testimony and that of her treating physicians provide more than a scintilla of evidence that an injury to her feet at or above the ankles was the producing cause of her total loss of use of both feet at or above the ankles. Appellee testified to her previous ability to walk to work daily, and her ability to complete the physical portions of her job without incident. She also testified the injury to her hip exacerbated her diabetes, which she previously controlled through diet and medication. Appellee testified she cannot walk without assistance since the injury. She stated her legs are very weak and she cannot walk more than a few steps with assistance before she has to stop due to fear of falling. Appellee has been unable to stand on her own since the date of the injury. Appellee indicated her feet get numb and are very weak and as a result she is unable to move them to walk. She testified both legs have changed in size and shape since the incident, as well as her feet.

Dr. Albrecht testified the atrophy Appellee experienced in her legs was the muscles shrinking, and agreed Appellee exhibited atrophy in both legs. He stated atrophy can be caused by nerve injury or prolonged disuse of the muscle. He testified that motion of the foot is largely controlled by muscles in the legs, and the main function of the foot is to provide a platform for walking.

Dr. Jackson testified that Appellee’s prolonged periods of immobility following her multiple surgeries resulted in her right side getting progressively weaker and atrophying. Reports in which he indicated Appellee’s foot function was “normal” meant only that she could move her toes; the portion above her foot through her knee and hip was very abnormal and were not functional for walking. He was unaware of any employment in which Appellee could engage given her condition. He also testified that he believed the atrophy in Appellee’s legs was not the result of her diabetes.

Of the authority relied upon by the parties, we find the instant case most analogous to Burdine. See Burdine, 34 S.W.3d at 706-707. Here, as was the case in Burdine, numerous references in the medical records to neurological changes and nerve damage, as well as severe pain and weakness, were brought on following the injury in question. See id. at 707. Burdine’s back injury caused nerve damage to affect the function of her feet and resulted in her inability to walk, much like Appellee’s left hip injury and complications therefrom resulted in lengthy immobilization and atrophy in both lower legs to the extent that she is unable to use her feet. See id. at 706-707.

Additionally, unlike the claimants in Muro and De La Cruz, Appellee produced more than a scintilla of evidence that the compensable injury was the producing cause of damage or harm to the physical structures of her feet, which the Texas Supreme Court held is a requirement under section 408.161. See Muro, 347 S.W.3d at 276; see also De La Cruz, 470 S.W.3d at 59. Her medical records and the testimony of Dr. Jackson and Dr. Albrecht indicate weakness and severe atrophy in her legs, and complete absence of reflexes in both legs at the knee and ankle, which they attribute to prolonged immobility following the accident and resulting complications. This evidence indicates the physical structure of both of Appellee’s feet were injured according to the statutory definition of “injury” under the Code; that is, the physical structure of both feet at or above the ankles were damaged and/or harmed such that Appellee no longer had use or control of them. See TEX.LAB. CODE ANN. § 408.161(a)(2); see also Adcock, 412 S.W.3d at 494; Bailey, 279 S.W.2d at 319. There is also ample evidence Appellee no longer had the ability to walk, her condition would worsen, and she would be unable to obtain any employment requiring the use of her feet at or above the ankles.

We find the evidence legally sufficient to support the jury’s findings and overrule Appellant’s first and third issues.

B. Factual Sufficiency of the Evidence

Turning to Appellant’s factual sufficiency issues, we examine all the evidence and set aside a finding only if the evidence supporting the jury finding is so weak as to be clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176. Although some evidence indicates Appellee’s condition was caused or worsened by pre-existing or other factors not attributable to her fall at work, we do not find the evidence supporting the jury’s finding is so weak that justice can only be done by overturning their verdict and ordering a new trial. See Burdine, 34 S.W.3d at 707 (citing Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965)). Accordingly, for the same reasons we find the evidence legally sufficient to support the jury’s findings, we find the evidence factually sufficient to support the jury’s findings. Appellant’s second and fourth issues are overruled.

CONCLUSION

We hold the record demonstrates legally and factually sufficient evidence to support the jury’s findings that Appellee’s compensable injury extended to and included an injury to the spine and/or the right lower extremity, and Appellee suffered an injury to both of her feet at or above the ankles that was a producing cause of the total loss of use of both of her feet at or above the ankles.

Having overruled each of Appellant’s four issues on appeal, we affirm the judgment of the trial court.

Footnotes

1

An operative report for the surgery to remove and debride Appellee’s left hip is not included in the record on appeal.

2

The jury received instructions that “ ‘injury’ means damage or harm to the physical structure of the body and such disease or infections as naturally result from such damage or harm.” The instructional definition is consistent with the statutory definition. See TEX.LAB. CODE ANN. § 401.011(26).

2021 WL 3435004

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Court of Appeals of Texas, Texarkana.

IN RE DAMYIEN PORTER, WARFAB INDUSTRIES, INC., AND WARFAB, INC.

No. 06-21-00066-CV

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Submitted: August 5, 2021

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Decided: August 6, 2021

Original Mandamus Proceeding

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Burgess

MEMORANDUM OPINION

Ralph K. Burgess Justice

In this original proceeding, Damyien Porter (Porter), Warfab Industries, Inc., and Warfab, Inc. (collectively Warfab), have filed a petition for a writ of mandamus requesting this Court to compel the trial court to vacate its order denying their plea to the jurisdiction and plea in abatement. We conclude that the record does not establish the right to mandamus relief. As a result, we deny the petition for a writ of mandamus.

I. Factual and Procedural Background

On June 30, 2018, Lauren Vasquez was traveling as a passenger in a Warfab-owned pickup truck driven by Porter, a Warfab employee. According to Vasquez’s petition, she was injured after Porter lost control of the vehicle and caused it to crash into a tree. She sued Porter and Warfab (collectively Relators) for several theories of negligence, alleged that Porter was operating within the course and scope of his employment at the time of the accident, and sought damages for reasonable past and future medical care, pain and suffering, past and future physical impairment, loss of earnings, and loss of earning capacity.

In their answer, Relators alleged that Warfab was a subscriber under the Texas Workers’ Compensation Act (TWCA), that it had a workers’ compensation policy at the time of the accident, and as a result, that Vasquez’s claims were barred pursuant to the Texas Labor Code because she was also a Warfab employee. Relators filed a plea to the jurisdiction and a plea in abatement arguing that the trial court lacked jurisdiction to consider the case because Vasquez had not exhausted her administrative remedies. Relators’ plea also alleged that Warfab had filed a claim with the workers’ compensation insurance carrier and that it was assigned to adjuster Richard Martinez. In support, Relators attached an unverified, unsworn document purporting to be a copy of Warfab’s workers’ compensation and employer’s liability insurance policy issued by the Hartford, which stated it would cover bodily injury if it arose “out of and in the course of the injured employee’s employment.” No other documents were attached to Relators’ plea.

In response, Vasquez admitted that she did not pursue a worker’s compensation claim because she was not acting in the course and scope of her employment during the accident. The response attached a verified copy of Warfab’s interrogatory responses, which were answered by Safety Director Jimmy Dean Smith, who said that the accident happened at 1:15 p.m. A verified copy of Vasquez’s timecard showed that, on the day of the accident, she clocked in at 8:06 a.m. and clocked out at 11:08 a.m. A verified copy of her earnings statement showed that Vasquez was only paid for three hours of work on the day of the accident.

On August 27, 2020, the trial court denied Warfab’s plea to the jurisdiction. On November 9, Relators filed a motion for reconsideration arguing that the evidence created a question of fact concerning whether Vasquez was acting in the course and scope of her employment. Again, Relators alleged that Warfab was a subscriber under the TWCA and, in support of this assertion, attached another unverified, unsworn document purporting to be a copy of Warfab’s workers’ compensation and employer’s liability insurance policy. Relators also attached affidavits from Smith1 and Porter2 attempting to challenge Vasquez’s evidence on whether she was in the course and scope of her employment.

In response, Vasquez objected to Relators’ unverified, unsworn copy of Warfab’s purported workers’ compensation insurance policy on the ground that it was unauthenticated and argued that Relators had not brought forth any evidence showing that Warfab subscribed to workers’ compensation insurance on the date of the accident. Vasquez also objected to Smith’s and Porter’s affidavits as conclusory statements that contained hearsay.

The trial court held a hearing on Relators’ motion on December 22, 2020. Relators have not provided this Court with a transcript of that hearing. Even so, Relators represented in a subsequent motion that, “[a]t the hearing, Plaintiff objected to the insurance policy attached as evidence in support of the motion. The Court requested supplementation of a business records affidavit to prove-up the authenticity of the attached records.” As a result, it appears that the trial court sustained Vasquez’s objection. To remedy the issue, Relators filed supplemental evidence in support of their motion for reconsideration on March 23, 2021.

The supplemental evidence included an insurance policy authenticated by a business record affidavit, which was different from the previous unverified policies Relators had presented to the trial court. While effective on the date of the accident, the authenticated policy did not show that Warfab had workers’ compensation coverage. Instead, it stated, under a provision labeled “[e]xclusions,” that the “insurance [did] not apply to ... ‘[b]odily injury,’ ... and ‘personal injury’ ” or to “Workers’ Compensation.” It also stated that the insurance company would not “pay expenses for ‘bodily injury’.... [t]o a person hired to do work for or on behalf of any insured” or “[t]o a person, whether or not an ‘employee’ of any insured, if benefits for the ‘bodily injury’ [were] payable or must be provided under a workers’ compensation or disability benefits law or a similar law.”

Relators also attached the affidavit of Martinez, which read,

I am the claims adjuster assigned to claim #Y2ZC06266 regarding a worker’s compensation claim filed with the Hartford. This claim was filed on May 15, 2020[,] by JD Smith on behalf of the insured Warfab Industries, Inc. related to injuries allegedly sustained by employee Laura Vasquez while in the course of her employment with Warfab Industries, Inc. The date of loss was listed as[ ] June 30, 2018. A notice of medical claim acknowledgement package was forwarded to the Laura Vasquez at her address .... The medical claim acknowledgement package has not been completed or returned and the claim remains open at this time.

The affidavit did not state whether Warfab had workers’ compensation coverage on the date of the accident. On April 27, 2021, the trial court denied Warfab’s motion to reconsider. Relators now bring this original proceeding.

II. Standard of Review

“To be entitled to mandamus relief, the relator must show (1) that he has no adequate remedy at law and (2) that the action he seeks to compel is ministerial, not one involving a discretionary or judicial decision.” In re Crawford, 560 S.W.3d 357, 363 (Tex. App.—Texarkana 2018, orig. proceeding) (citing State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding)). “The relator is obligated to provide this Court with a record sufficient to establish his right to mandamus relief.” Id. (citing TEX. R. APP. P. 52.3; Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Pilgrim’s Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig. proceeding)). “Before mandamus may issue, the relator must show that the trial court had a legal duty to perform a ministerial act, was asked to do so, and failed or refused to act.” Id.

“In addition to showing that the trial court had no option but to have performed the act urged by the relator, the relator must also have no adequate remedy at law.” Id. “An appellate remedy is ‘adequate’ when any benefits to mandamus review are outweighed by the detriments.” Id. (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). “[A]n appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraneous writ.” Id. (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d at 136).

“Absent an extraordinary circumstance, ‘a denial of a motion to dismiss or a plea in abatement is a ruling incident to the ordinary trial process which will not be corrected by mandamus, but by the legal remedy of the ordinary appellate process.’ ” Id. (quoting Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex. 1991) (orig. proceeding)); see In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003) (orig. proceeding). “Mandamus review is not—and should not be—an easily wielded tool, but such review of significant rulings in exceptional cases may be essential to, among other things, ‘spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’ ” In re Crawford, 560 S.W.3d at 363–64 (quoting In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 299 (Tex. 2016) (orig. proceeding) (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d at 136)).

An exception to the general rule that mandamus review is unavailable from an order denying a plea to the jurisdiction exists in situations when a state agency has exclusive jurisdiction or a trial court’s order interferes with the authority of a state agency. See In re Entergy Corp., 142 S.W.3d 316, 321–22 (Tex. 2004) (orig. proceeding); In re State Bar of Tex., 113 S.W.3d at 734. “The Texas Worker’s Compensation Act provides that the recovery of worker’s compensation benefits is the exclusive remedy of an employee covered by worker’s compensation insurance for a work-related injury.” In re Tex. Mut. Ins. Co., No. 05-05-00944-CV, 2005 WL 1763562, at *2 (Tex. App.—Dallas July 27, 2005, orig. proceeding) (mem. op.) (citing TEX. LAB. CODE ANN. § 408.001(a)). “The Act vests the power to award compensation benefits solely to the Commission, subject to judicial review.” Id. (citing Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 803 (Tex. 2001) (citing TEX. LAB. CODE ANN. §§ 408.001(a), 410.168–.169, .203–.205, .208). “Medical benefits are included within the definition of benefits.” Id. (citing TEX. LAB. CODE ANN. § 401.011(5)). As a result, a complaint that the Texas Workers’ Compensation Commission had exclusive jurisdiction over an employee’s claims and that the trial court lacked jurisdiction because an employee had not exhausted administrative remedies may be reviewed by petition for the writ of mandamus. Id. at *1.

“If an agency has exclusive jurisdiction, a claimant must exhaust all administrative remedies in the agency before filing a claim in the trial court.” In re Vilore Foods Co., No. 04-19-00860-CV, 2020 WL 1159060, at *1 (Tex. App.—San Antonio Mar. 11, 2020, orig. proceeding) (mem. op.) (quoting In re Tex. Mut. Ins. Co., 329 S.W.3d at 5). “Until the party has exhausted all administrative remedies, the trial court lacks subject matter jurisdiction and must dismiss any claim within the agency’s exclusive jurisdiction.” Id. (quoting In re Entergy Corp., 142 S.W.3d at 321–22; In re Tex. Mut. Ins. Co., 329 S.W.3d at 5).

“Subject-matter jurisdiction may be properly challenged by a plea to the jurisdiction.” Univ. of Tex. Health Sci. Ctr. at Tyler v. Nawab, 528 S.W.3d 631, 638 (Tex. App.—Texarkana 2017, pet. denied). “Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review.” Id. (quoting Fannin Cty. Cmty. Supervision & Corrections Dep’t v. Spoon, No. 06-13-00103-CV, 2014 WL 3513388, at *4 (Tex. App.—Texarkana July 16, 2014, pet. denied) (mem. op.)). “A plea to the jurisdiction may challenge ... the existence of jurisdictional facts to support the pleadings.” Id. (citing Mission Consol. Indep. Sch. Dist. v. Garcia (Garcia II), 372 S.W.3d 629, 635 (Tex. 2012)).

Where, as here, “the plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court may consider the evidence submitted by the parties to resolve the dispute, ‘even if that evidence “implicates both the subject-matter jurisdiction of the court and the merits of the case.” ’ ” Id. (quoting Garcia II, 372 S.W.3d at 635 (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004))). In such a circumstance,

a trial court’s review of a plea to the jurisdiction mirrors that of a traditional summary judgment motion. Initially, the defendant carries the burden to meet the summary judgment proof standard for its assertion that the trial court lacks jurisdiction. If it does, the plaintiff is then required to show that a disputed material fact exists regarding the jurisdictional issue.

Id. at 638 (quoting Garcia II, 372 S.W.3d at 635) (citations omitted). “On review, we take as true all evidence favorable to the non-movant, indulging reasonable inferences and resolving all doubts in favor of the non-movant.” Id. at 639 (quoting Fannin Cty. Cmty. Supervision & Corrections Dep’t v. Spoon, No. 06-13-00103-CV, 2014 WL 3513388, at *5 (Tex. App.—Texarkana July 16, 2014, pet. denied) (mem. op.) (citing City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009))).

“If the trial court’s subject matter jurisdiction is challenged in a plea to the jurisdiction and the undisputed evidence shows the claimant has failed to exhaust its administrative remedies, the trial court must grant the plea as a matter of law.” In re Vilore Foods Co., 2020 WL 1159060, at *2 (citing In re Entergy Corp., 142 S.W.3d at 321–22; Miranda, 133 S.W.3d at 228); see Nawab, 528 S.W.3d at 638. But “[i]f a fact issue exists, the trial court should deny the plea.” Nawab, 528 S.W.3d at 638 (quoting Garcia II, 372 S.W.3d at 635); see State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) (“A plea should not be granted if a fact issue is presented as to the court’s jurisdiction, but if the relevant undisputed evidence negates jurisdiction, then the plea to the jurisdiction must be granted.”); Miller v. Gregg Cty., 546 S.W.3d 410, 419 (Tex. App.—Texarkana 2018, no pet.).

III. The Record Does Not Establish Relators’ Right to Mandamus Relief

Here, Relators were required to “carr[y] the burden to meet the summary judgment proof standard for [their] assertion that the trial court lack[ed] jurisdiction.” Nawab, 528 S.W.3d at 638 (quoting Garcia II, 372 S.W.3d at 635). Relators argued that Vasquez was required to exhaust administrative remedies under the TWCA. To show that the TWCA applied, Relators were first required to bring forth evidence that Vasquez was “an employee covered by workers’ compensation insurance coverage.” TEX. LAB. CODE ANN. § 408.001(a).

Relators’ pleadings alleged Warfab had workers’ compensation coverage at the time of the accident. Even so, “[p]leadings outline the issues, but they are not evidence.” Shawell v. Pend Oreille Oil & Gas Co., 823 S.W.2d 336, 338 (Tex. App.—Texarkana 1991, writ denied); see Holmes v. S. Methodist Univ., No. 05-11-01178-CV, 2013 WL 1857932, at *3 (Tex. App.—Dallas May 1, 2013, no pet.) (mem. op.) (citing Heirs of Del Real v. Eason, 374 S.W.3d 483, 487 (Tex. App.—Eastland 2012, no pet.); Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Zeifman v. Nowlin, 322 S.W.3d 804, 808 (Tex. App.—Austin 2010, no pet.)). Relators attached a document in support of their motion for reconsideration of the denial of the plea to the jurisdiction that purported to be a copy of a workers’ compensation insurance coverage policy. The document was unverified and unsworn. By written response and during the reconsideration hearing, Vasquez objected to the unauthenticated document. Because “[u]nverified documents attached to pleadings are not proper summary judgment evidence” that can be relied on in the context of either a summary judgment or a plea to the jurisdiction, it appears from the record submitted by Relators that the trial court granted the objection. Holmes, 2013 WL 1857932, at *3 (citing Eason, 374 S.W.3d at 487); see Kleven v. Tex. Dep’t of Criminal Justice–I.D., 69 S.W.3d 341, 345 (Tex. App.—Texarkana 2002, no pet.); see also In re Est. of Guerrero, 465 S.W.3d 693, 705 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). Relators attempted to remedy the issue by obtaining a business records affidavit authenticating a different policy, but this policy did not contain workers’ compensation coverage, and none of the other evidence submitted by Relators established that they had such coverage.

We find that Relators failed to provide this Court with a record sufficient to establish their right to mandamus relief because the record does not contain undisputed evidence that Vasquez was required to exhaust administrative remedies. See In re Aramark Corp., 38 S.W.3d 291, 293–94 (Tex. App.—Tyler 2001, orig. proceeding) (denying mandamus relief where, “[b]ased on the limited record ... in th[e] mandamus proceeding, [appellate court was] unable to determine whether and to what extent [plaintiff was] required to exhaust her administrative remedies [under the TWCA] before ... bring[ing] the ... cause of action”). As a result, Relators have neither shown that the trial court had a ministerial duty to grant the plea to the jurisdiction nor presented an extraordinary circumstance that would justify an exception to the general rule that mandamus review is unavailable from an order denying a plea to the jurisdiction.

We deny the petition for a writ of mandamus.3

Footnotes

1

Smith’s affidavit said,

Upon returning to our company premises I asked Laura Va[s]quez if she was on the clock during the accident and she stated ‘no.’ I asked if her timecard entry was a date stamp or a written-in time entry and she said ‘written-in.’

It is against company policy for an employee to ‘ride along’ with another employee for the purpose of conducting company business while they are not on the clock. It is also against company policy for an employee to ‘write in’ a timecard entry without an approval and signature of a company manager at the time of correction.

....

.... When I reviewed Laura Vasquez’s timecard (attached) for the date of June 30, 2018, it contained a white out entry with a date and time stamp designating her alleged clock out. There was no ‘write-in’ clock out on her timecard. The time entry is very suspicious and appears to cover up a time previously stamped or handwritten entry. Per company protocol, any type of correction to a time sheet must be approved and initialed by a manager on duty at the time of the correction. The timecard did not contain the requisite endorsement by the manager on duty....

....

The following Monday morning we noticed that the time clock system had been mysteriously changed by one hour and had to be reset. Two meetings were held about how the Plaintiff should not have been riding along on the day of the accident. That afternoon Plaintiff Laura Vasquez resigned and cleaned her computer before I had any opportunity to discuss the suspicious entries or the clock system changes with her.

Based on the numerous violations of company policy, the suspicious timecard entries, the bizarre time clock system modification and the inconsistent version of events provided by Plaintiff Laura Vasquez, it is my opinion and belief that Laura Vasquez was on the clock and on the job when the motor vehicle accident occurred on June 30, 2018.

2

Porter’s affidavit read,

On June 30, 2018, I was engaged in my duty as an employee of Warfab and driving a white flat-bed pick-up truck owned by my employer for a delivery in Groesbeck, Texas. I was accompanied by Laura Va[s]quez who asked if she could ride along/help while I ma[d]e the delivery. She stated she wanted to get “some extra hours” and overtime pay. It was my understanding from our conversation that Laura Va[s]quez was on the clock and being paid by Warfab at the time of the motor vehicle collision that happened on or about June 30, 2018. At the time of the accident, Laura Va[s]quez and I were traveling in a Warfab vehicle for the purpose of making a delivery for our employer, Warfab.

3

We also deny Relators’ accompanying motion for emergency stay of proceedings in the trial court.

United States Court of Appeals, Fifth Circuit.

AIR EVAC EMS, INCORPORATED, Plaintiff—Appellee,

v.

Kent SULLIVAN, in his Official Capacity as Texas Commissioner of Insurance; Cassie Brown, in her Official Capacity as Texas Commissioner of Workers’ Compensation, Defendants—Appellants,

v.

Texas Mutual Insurance Company; Liberty Mutual Insurance Company; Zenith Insurance Company; Hartford Underwriters Insurance Company; Twin City Fire Insurance Company; Transportation Insurance Company; Valley Forge Insurance Company; Truck Insurance Exchange, Intervenors—Appellants.

No. 18-50722

|

August 4, 2021

Appeal from the United States District Court for the Western District of Texas, USDC No. 1:16-CV-60, Sam Sparks, U.S. District Judge.

Attorneys & Firms

Joshua Lee Fuchs, Jones Day, Houston, TX, Benjamin J. Cassady, Charlotte Taylor, Esq., Jones Day, Washington, DC, Roger James George, Jr., Trial Attorney, George Brothers Kincaid & Horton, L.L.P., for Plaintiff-Appellee.

Lisa Bennett, Assistant Solicitor General, Office of the Attorney General for the State of Texas, Jennifer Settle Jackson, Assistant Attorney General, Office of the Attorney General, Financial Litigation & Charitable Trusts Division, for Defendants-Appellants Kent Sullivan, Texas Commissioner of Insurance, Cassie Brown, Texas Commissioner of Workers’ Compensation.

Matthew Birk Baumgartner, Armbrust & Brown, P.L.L.C., Austin, TX, Paul W. Schlaud, Texas Mutual Insurance Company, Office of the General Counsel Division, Austin, TX, for Intervenor-Appellant Texas Mutual Insurance Company.

Robert F. Josey, Hanna & Plaut, L.L.P., Austin, TX , for Intervenor-Appellant Liberty Mutual Insurance Company.

James Michael Loughlin, Stone Loughlin & Swanson, L.L.P., Austin, TX, for Intervenors-Appellants Zenith Insurance Company, Hartford Underwriters Insurance Company, Twin City Fire Insurance Company, Transportation Insurance Company.

Before Stewart, Clement, and Ho, Circuit Judges.

Opinion

James C. Ho, Circuit Judge:

Air Evac EMS, Inc., is an air ambulance provider that offers medical transport services to a wide variety of patients. That includes patients who are injured at their workplace. The price that Air Evac may charge for such transportation is accordingly subject to conflicting regulatory regimes.

The Texas Workers’ Compensation Act (“TWCA”), Tex. Lab. Code §§ 401.007–419.007, regulates the prices that insurers must pay to providers for various medical services utilized by their beneficiaries. That includes air transport services. But those price restrictions conflict with the federal Airline Deregulation Act (“ADA”), which makes clear that the states “may not enact or enforce a law, regulation, or other provision ... related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1).

The price restrictions are not saved by the McCarran–Ferguson Act. That act makes clear that “[n]o Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business of insurance, or which imposes a fee or tax upon such business, unless such Act specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). But the price regulations at issue here do not govern “the business of insurance.” The McCarran–Ferguson Act concerns state efforts to regulate the relationship between insurers and insureds—not between insurers and providers.

We accordingly affirm. In doing so, we agree with our sister courts of appeals, which have unanimously held that the ADA preempts state price caps on air ambulance reimbursements, and that those state price caps are not saved by the McCarran–Ferguson Act. And we disagree with the Texas Supreme Court, which has reached contrary conclusions by a divided vote.

I.

Under the TWCA, employees in Texas receive guaranteed medical care paid for by employer-funded insurance policies, in exchange for relinquishing their common-law workplace injury claims. As part of this regulatory scheme, the TWCA strictly regulates the prices that private insurers must pay health care providers for treating workers injured on the job. See TEX. LAB. CODE § 413.011; 28 TEX. ADMIN. CODE §§ 134.1, 134.203. The TWCA also prohibits providers from engaging in “balance-billing”—that is, they cannot collect any remaining balance from either the employer or employee after an insurer has reimbursed the provider less than the full amount for the services rendered. See Tex. Lab. Code § 413.042(a).

Air Evac contends that these price caps are preempted by the ADA. So it sued various Texas state officials, seeking a declaration that the ADA preempts the TWCA and its regulations, and an injunction barring enforcement of the price caps. Alternatively, Air Evac requested an injunction barring enforcement of the TWCA’s balance-billing prohibition.

Eight insurance companies joined the Texas officials as intervenors to defend Texas law. Together they moved to dismiss the case on various jurisdictional grounds. The district court granted the motion, but we subsequently reversed. See Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 510 (5th Cir. 2017).

On remand, the district court granted Air Evac’s motion for summary judgment on its claim that the Texas price caps were preempted by the ADA and not saved by the McCarran–Ferguson Act. See Air Evac EMS, Inc. v. Sullivan, 331 F. Supp. 3d 650, 667 (W.D. Tex. 2018). Consequently, it did not address Air Evac’s alternative balance-billing claim. Id. at 656 n.4. The district court enjoined enforcement of Texas Labor Code § 413.011 and Texas Administrative Code §§ 134.1 and 134.203 as applied to Air Evac. Id. at 664.

Both the State and the eight insurance companies appealed. Following oral argument in this case, the Supreme Court of Texas decided a similar case addressing the same issues. See Tex. Mut. Ins. Co. v. PHI Air Med., LLC, 610 S.W.3d 839 (Tex. 2020), cert. denied, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2021 WL 1602647 (Apr. 26, 2021) (mem.). Contrary to the district court here and our sister courts of appeals that have examined these issues, the Texas Supreme Court held that the TWCA price caps on air ambulance providers are not preempted by federal law. But it did so over a thorough dissent supported by two members of the court. Id. at 865 (Green, J., joined by Hecht, C.J.). Seven members sided with the majority, but for differing reasons—six concluded that the ADA does not preempt the TWCA price caps, id. at 843, while four concluded that the TWCA price caps are saved by the McCarran–Ferguson Act, id. at 856.

We review summary judgment rulings de novo. IberiaBank v. Broussard, 907 F.3d 826, 842 (5th Cir. 2018).

II.

Congress enacted the ADA in 1978, introducing free-market principles to a heavily regulated and stagnating aviation industry. To streamline regulations, avoid a patchwork of state protocols, and “ensure that the States would not undo federal deregulation with regulation of their own,” Congress included an express preemption provision. Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992).

Under the express preemption provision, “[a] State[ ] ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier that may provide air transportation under this subpart.” 49 U.S.C. § 41713(b)(1). The Supreme Court has made clear that this express preemption provision “has a ‘broad scope’ ” and “an ‘expansive sweep,’ ” and that the “ordinary meaning of these words ... express a broad pre-emptive purpose.” Morales, 504 U.S. at 383–84, 112 S.Ct. 2031 (citations omitted).

Two of our sister circuits have unanimously held that the ADA preempts price controls on air ambulance services set by state workers’ compensation regulations. See Air Evac EMS, Inc. v. Cheatham, 910 F.3d 751 (4th Cir. 2018); EagleMed LLC v. Cox, 868 F.3d 893 (10th Cir. 2017). We agree.

As a threshold matter, Texas and the insurers urge that we adopt a presumption against preemption when it comes to issues of traditional state law such as workers’ compensation. We need not address that contention here, however, because we do not regard this as a close call—the text of the ADA plainly governs this case. See, e.g., Cheatham, 910 F.3d at 762 n.1 (“[W]e need not enter the great preemption presumption wars here because the text of the preemption provision ... governs the disposition of this case.”).

Under the ADA, a state may not enforce any law or regulation that is (1) “related to a price” of (2) an “air carrier” that (3) may provide air transportation “under this subpart.” 49 U.S.C. § 41713(b)(1). Each of those elements is satisfied here. We address each in turn.

A.

The TWCA regulations in question plainly involve the “price” of air transport services. The ADA defines “price” as “a rate, fare, or charge.” 49 U.S.C. § 40102(a)(39). We see no reason to depart from the ordinary meaning of these terms. The term “price” simply means the “sum of money ... asked or given for something” in return. AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1038 (1979). See also id. at 1082 (defining “rate” as “a charge or payment calculated in relation to any particular sum or quantity”); id. at 476 (defining “fare” as a “transportation charge”); id. at 226 (defining “charge” as “to set or ask (a given amount) as a price”).

The TWCA regulations plainly govern “price”—namely, the price that Air Evac is allowed to charge Texas workers’ compensation insurers for air ambulance services.

For their part, Texas and the insurers contend that the term “price” applies only to competitive markets—and that “air ambulances do not operate in a market that would dictate the price or rate charged in the absence of government interference.” Under that view, any amount that is determined by a regulator for a particular good or service would not constitute a “price.” That would make terms like “price controls” an oxymoron. Yet the term is ubiquitous in our law. “Consistent usage, as reflected in numerous judicial opinions, can be an authoritative source of common parlance.” Frederking v. Cincinnati Ins. Co., 929 F.3d 195, 198 (5th Cir. 2019) (citing New Prime Inc. v. Oliveira, ––– U.S. ––––, 139 S. Ct. 532, 540, 202 L.Ed.2d 536 (2019)). See, e.g., Yakus v. United States, 321 U.S. 414, 418, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (concerning the constitutionality of the Emergency Price Control Act of January 30, 1942, 56 Stat. 23); United States v. Uni Oil, Inc., 710 F.2d 1078, 1080 (5th Cir. 1983) (concerning federal “price controls” on oil). See also Address to the Nation Outlining a New Economic Policy: “The Challenge of Peace”, PUBLIC PAPERS OF PRESIDENT RICHARD M. NIXON 888 (Aug. 15, 1971) (“I am today ordering a freeze on all prices and wages throughout the United States for a period of 90 days. In addition, I call upon corporations to extend the wage-price freeze to all dividends.”); Exec. Order No. 11,615—Providing for Stabilization of Prices, Rents, Wages, and Salaries, 36 Fed. Reg. 15,727 (Aug. 15, 1971). In response, Texas and the insurers rely on Hodges v. Delta Airlines, Inc., 44 F.3d 334, 336 (5th Cir. 1995) (en banc). But in Hodges we construed the term “service,” not “price,” under the ADA.

In sum, the amount that TWCA rules would allow Air Evac to receive for its air ambulance services falls well within the term “price” under the ADA. Accordingly, those TWCA rules plainly “relate to” price.

As the Supreme Court has observed, the term “related to” under the ADA is broad and indeed “much more broadly worded” than other preemption provisions. Northwest, Inc. v. Ginsberg, 572 U.S. 273, 283, 134 S.Ct. 1422, 188 L.Ed.2d 538 (2014). See also Morales, 504 U.S. at 383–85, 112 S.Ct. 2031. A law “relate[s] to” price under the ADA so long as it has a “connection with or reference to” price or presents a “significant effect” on the price of air services. Morales, 504 U.S. at 384, 388, 112 S.Ct. 2031. See also Buck v. Am. Airlines, Inc., 476 F.3d 29, 34–35 (1st Cir. 2007) (“[T]he ADA preempts both laws that explicitly refer to an airline’s prices and those that have a significant effect upon prices.”); Travel All Over the World, Inc. v. Saudi Arabia, 73 F.3d 1423, 1433 (7th Cir. 1996) (declining to find preemption when plaintiffs’ tort claims neither “expressly refer to airline rates, routes, or services,” nor have a “ ‘forbidden significant [economic] effect’ on airline rates, routes, or services”) (alteration in original).

The TWCA regulations challenged here obviously have a “significant effect” on Air Evac’s prices—they effectively forbid Air Evac from recovering from workers’ compensation insurers the price that they would otherwise charge for air ambulance services. As we have previously noted, the “TWCA’s provisions effectively set a reimbursement rate” on air ambulance services by restricting the amount insurers pay them. Air Evac, 851 F.3d at 514. See also PHI Air Med., 610 S.W.3d at 866 (Green, J., dissenting) (“The TWCA’s reimbursement scheme is related to an air ambulance’s prices because it indirectly limits the amount than an air carrier may charge for its services.”). As the Fourth Circuit put it, “[i]f such actions involving an air carrier are not ‘related to price,’ it is unclear what meaning the phrase would have left.” Cheatham, 910 F.3d at 767–68.

B.

We likewise have little trouble concluding that Air Evac qualifies as an “air carrier.” The ADA defines an “air carrier” as “a citizen of the United States undertaking by any means, directly or indirectly, to provide air transportation.” 49 U.S.C. § 40102(a)(2). Air ambulances transporting patients to hospitals fall squarely within that definition. Courts are agreed on this point. See, e.g., Cheatham, 910 F.3d at 764; Bailey v. Rocky Mountain Holdings, LLC, 889 F.3d 1259, 1266–68 (11th Cir. 2018); Cox, 868 F.3d at 904; Stout v. Med-Trans Corp., 313 F. Supp. 3d 1289, 1294 (N.D. Fla. 2018); Schneberger v. Air Evac EMS, Inc., 2017 WL 1026012, *2 (W.D. Okla. 2017); Valley Med Flight, Inc. v. Dwelle, 171 F. Supp. 3d 930, 933–34 (D.N.D. 2016); Med-Trans. Corp. v. Benton, 581 F. Supp. 2d 721, 732 (E.D.N.C. 2008); PHI Air Med., 610 S.W.3d at 843. As are federal agencies. Air Evac holds a “Part 135” operating certificate from the Federal Aviation Administration (“FAA”) allowing it to “operate as an air carrier and conduct common carriage operations.” ROA.1235. The Department of Transportation (“DOT”) also recognizes Air Evac as an “air carrier” under “Part 298,” which grants it a license to operate as an air taxi. ROA.1239.

Nevertheless, Texas and the insurers insist that air ambulances are not “air carriers” under the ADA because Congress’s purpose in enacting the ADA was to cover only commercial, passenger airlines. But we are governed by the text of the statute. See, e.g., Morales, 504 U.S. at 383, 112 S.Ct. 2031 (“[W]e ... begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.”) (quotations and citations omitted). Neither Texas nor the insurers have “presented a single textual reason to support the argument that the broad language of the [ADA]’s express preemption provision should not include air-ambulance services.” Cox, 868 F.3d at 904.

C.

Finally, air ambulances “provide air transportation under this subpart”—that is, under subpart II of the amended Federal Aviation Act. 49 U.S.C. § 41713(b)(1). Air ambulance companies hold a registration issued by the Secretary of Transportation and are subject to certain economic regulations under subpart II. 14 C.F.R. pt. 298. That is all that is required under the plain text of § 41713(b)(1).

The State and the insurers argue that Air Evac is not sufficiently subject to subpart II because the Secretary has exempted air ambulances from the general requirement to hold a certificate of public convenience and necessity. But § 41713(b)(1) simply requires air carriers to “provide air transportation” under subpart II—it does not require air carriers to be certified under subpart II. Other courts that have examined this issue have reached the same conclusion. See, e.g., Cheatham, 910 F.3d at 764–65 (agreeing “with Air Evac that the phrase ‘under this subpart’ includes all air carriers regulated by the Secretary of Transportation under subpart II, rather than those specifically certified under the subpart”); Hughes Air Corp. v. Pub. Utils. Comm’n, 644 F.2d 1334, 1338–39 (9th Cir. 1981) (holding that air carriers operating under an exemption still fell within the ADA’s preemption provision). We agree that air ambulance providers like Air Evac provide air transportation under subpart II.

* * *

Accordingly, we hold that the ADA expressly preempts TWCA reimbursement regulations as applied to air ambulance services.

III.

The TWCA reimbursement regulations are not saved by the McCarran–Ferguson Act. As relevant here, the McCarran–Ferguson Act shields from federal preemption those state laws that are “enacted ... for the purpose of regulating the business of insurance,” unless the federal statute “specifically relates to the business of insurance.” 15 U.S.C. § 1012(b). So the Act “precludes application of a federal statute in [the] face of state law ‘enacted ... for the purpose of regulating the business of insurance,’ if the federal measure does not ‘specifically relat[e] to the business of insurance,’ and ‘would invalidate, impair, or supersede’ the State’s law.” Humana Inc. v. Forsyth, 525 U.S. 299, 307, 119 S.Ct. 710, 142 L.Ed.2d 753 (1999) (alterations in original) (quoting U.S. Dep’t of Treasury v. Fabe, 508 U.S. 491, 501, 113 S.Ct. 2202, 124 L.Ed.2d 449 (1993)).

It is undisputed that the ADA does not “specifically relate to” the business of insurance. So the sole issue is whether the TWCA was enacted “for the purpose of regulating the business of insurance”—that is, if it has the “ ‘end, intention, or aim’ of adjusting, managing, or controlling the business of insurance.” Fabe, 508 U.S. at 505, 113 S.Ct. 2202 (quoting BLACK’S LAW DICTIONARY 1236, 1286 (6th ed. 1990)).

That requires determining whether the challenged provisions of the TWCA regulate “the relationship between the insurance company and the policyholder.” Id. at 501, 113 S.Ct. 2202 (quoting SEC v. Nat’l Sec., Inc., 393 U.S. 453, 460, 89 S.Ct. 564, 21 L.Ed.2d 668 (1969)). The McCarran–Ferguson Act “assure[s] that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation.” Nat’l Sec., 393 U.S. at 460, 89 S.Ct. 564 (emphasis added).

The TWCA regulations at issue here deal with the relationship between insurers and providers—namely, the providers of air ambulance services—and not the relationship between insurers and their beneficiaries. Accordingly, the TWCA regulations are not shielded from federal preemption under the McCarran–Ferguson Act.

A.

In Group Life & Health Insurance Company v. Royal Drug Company, 440 U.S. 205, 99 S.Ct. 1067, 59 L.Ed.2d 261 (1979), the Supreme Court made clear that the “focus” of our inquiry is whether the insurance practice that is the subject of state regulation governs “the relationship between the insurance company and the policyholder.” Id. at 216, 99 S.Ct. 1067 (quoting Nat’l Sec., 393 U.S. at 460, 89 S.Ct. 564). That relationship is “the core of the ‘business of insurance.’ ” Id. at 215, 99 S.Ct. 1067. See also Fabe, 508 U.S. at 493, 113 S.Ct. 2202 (“We hold that the Ohio priority statute escapes preemption to the extent that it protects policyholders.”). In addition, the Court identified two other criteria: “whether the practice has the effect of transferring or spreading a policyholder’s risk,” and “whether the practice is limited to entities within the insurance industry.” Union Lab. Life Ins. Co. v. Pireno, 458 U.S. 119, 129, 102 S.Ct. 3002, 73 L.Ed.2d 647 (1982) (citing Royal Drug, 440 U.S. at 211–12, 215, 231, 99 S.Ct. 1067).

The TWCA regulations fail under all three criteria. See, e.g., PHI Air Med., 610 S.W.3d at 876–77 (Green, J., dissenting) (concluding that the TWCA regulations fail under all three factors identified in Royal Drug and Pireno).

To begin with, the TWCA regulations govern the relationship between insurers and providers, not insurers and insureds. So the regulations do not involve the “business of insurance” under the first criteria.

The Court reached precisely the same conclusion under similar facts in Royal Drug. It held that an insurer’s agreement to reimburse pharmacies for the cost of prescription drugs if the pharmacies offered the drugs to the insurer’s policyholders for $2 did not involve the “business of insurance.” Royal Drug, 440 U.S. at 212–14, 99 S.Ct. 1067. To conclude otherwise would “confuse the obligations of [the insurer] under its insurance policies”—which involved the insurer–insured relationship—“and the agreements between [the insurer] and the participating pharmacies, which serve only to minimize the costs [the insurer] incurs in fulfilling its underwriting obligations.” Id. at 213, 99 S.Ct. 1067. The defining feature of the insurer–insured relationship is the exchange of insurance premiums in order to obtain medical benefits. The particulars of any exchange between insurers and pharmacies are merely ancillary features that are not part of the “business of insurance.” And even though any cost savings might be passed on to policyholders in the form of reduced premiums, individual beneficiaries were “basically unconcerned” with any specific business arrangements between the insurer and the pharmacy, so long as the beneficiaries received the promised benefits. Id. at 214, 99 S.Ct. 1067. As the Court put it, McCarran–Ferguson “exempts the ‘business of insurance’ and not the ‘business of insurance companies.’ ” Id. at 217, 99 S.Ct. 1067. “It is next to impossible to assume that Congress could have thought that agreements (even by insurance companies) which provide for the purchase of goods and services from third parties at a set price are within the meaning of that phrase [i.e. ‘business of insurance’].” Id. at 230, 99 S.Ct. 1067.

By the same logic, the TWCA regulations challenged here likewise do not involve the relationship between the insurer and the insured. As in Royal Drug, the regulations help reduce costs to the workers’ compensation insurance carrier. But employers and employees are “basically unconcerned” with how the insurer structures its payments or how much any single service provider is paid. Id. at 214, 99 S.Ct. 1067. After all, the amount the insurer pays the provider is not a benefit to the insured. In sum, the focus of the TWCA regulations is on the relationship between insurer and provider, not insurer and insured.

The insurers here try to avoid Royal Drug by contending that the TWCA reimbursement cap is “critical to the spreading of risk” by limiting the overall liabilities of insurers. But that argument proves too much. If the insurers are right, then “almost every business decision” would be part of the “business of insurance,” because virtually every business decision has “some impact” on premium amounts and policy issuance. Id. at 216–17, 99 S.Ct. 1067. Yet this is exactly the type of downstream effect that the Supreme Court has placed outside the “business of insurance.” After all, “[s]uch cost-savings arrangements may well be sound business practice, and may well inure ultimately to the benefit of policyholders in the form of lower premiums, but they are not the ‘business of insurance.’ ” Id. at 214, 99 S.Ct. 1067.

The TWCA regulations also fail under the two remaining criteria. Reimbursement arrangements between insurers and providers do not meaningfully affect the allocation of risk between insurer and insured. The arrangement may help limit the insurer’s costs, but it does not substantially affect the transfer of risk from the insured to the insurer. Nor is the subject of the regulations “limited to entities within the insurance industry.” Pireno, 458 U.S. at 129, 102 S.Ct. 3002. Air Evac is an air ambulance company, not an insurance company.

B.

For their part, Texas and the insurers contend that the three criteria set forth in Royal Drug and Pireno apply in cases involving the application of certain enumerated federal antitrust statutes, and have only limited applicability to other federal laws like the ADA. See 15 U.S.C. § 1012(b).

But nothing in the text of the McCarran–Ferguson Act suggests that we should give the term “business of insurance” a different meaning when it comes to applying the Act to other federal statutes like the ADA. “[W]e ‘cannot imagine that “business of insurance” could have two different meanings in the same statutory subsection.’ ” Bailey, 889 F.3d at 1273 n.30 (quoting Blackfeet Nat’l Bank v. Nelson, 171 F.3d 1237, 1246 n.13 (11th Cir. 1999)).

Accordingly, our court has applied the Royal DrugPireno framework to federal statutes other than the enumerated antitrust provisions. See Am. Bankers Ins. Co. of Fla. v. Inman, 436 F.3d 490, 493–94 (5th Cir. 2006); Munich Am. Reinsurance Co. v. Crawford, 141 F.3d 585, 590–91 (5th Cir. 1998).

* * *

We hold that the TWCA regulations concerning the reimbursement of air ambulance providers like Air Evac are preempted by the ADA, and are not saved by the McCarran–Ferguson Act. Accordingly, we affirm.

United States District Court, N.D. Texas, Dallas Division.

HEATHER GUSMAN, Plaintiff,

v.

KROGER TEXAS, L.P., Defendant.

CIVIL ACTION NO. 3:19-CV-1763-B

|

08/02/2021

MEMORANDUM OPINION AND ORDER

Before the Court are Plaintiff Heather Gusman’s Motion for Partial Summary Judgment (Doc.

33) and Defendant Kroger Texas, L.P. (“Kroger”)’s Motion for Summary Judgment (Doc. 37). For the reasons that follow, both motions are DENIED. Further, Gusman’s objections as set forth in her response (Doc. 43) to Kroger’s motion are MOOT.

I.

BACKGROUND1

This case concerns an injury sustained by Gusman while working at a Kroger grocery store in Burleson, Texas (“the Store”). On January 8, 2019, Gusman was working at the Store as a floor supervisor. Doc. 34, Pl.’s Br., 6–7; Doc. 38, Def.’s Br., 3–4. Another Kroger employee, Solomon Van Buren was working at the Store as a courtesy clerk.2 Doc. 34, Pl.’s Br., 6–7; Doc. 38, Def.’s Br., 3–4.

That day, Gusman alleges, “the [S]tore was busy and understaffed[.]” Doc. 34, Pl.’s Br., 7. At some point, “the [S]tore ran out of grocery carts on one side,” and Gusman went out to the parking lot to assist Van Buren in retrieving carts.3 Id. at 6–7; Doc. 38, Def.’s Br., 9. Gusman claims that she “was never trained on how to gather carts.” Doc. 34, Pl.’s Br., 7. Kroger, on the other hand, asserts that Gusman had “received training on parking lot safety...which includes...shopping cart retrieval[.]” Doc. 38, Def.’s Br., 5. Pursuant to Kroger’s safety policy, “[c]art retrieval straps shall be used when retrieving more than two carts.” Doc. 36, Pl.’s App., 48. Additionally, per the 2015 safety policy—on which Kroger asserts that Gusman received training—“no more than eight carts could be moved at any one time – that many only if using a cart strap.” Doc. 38, Def.’s Br., 7. That number was reduced to six carts pursuant to updated safety policies effectuated in 2016. Id.

Despite Kroger’s safety policies, Van Buren was attempting “to move approximately 50 carts at once to where they were needed.” Doc. 34, Pl.’s Br., 7; see also Doc. 38, Def.’s Br., 7. Moreover, Van Buren “was not using any cart straps because all of them were either lost or broken.” Doc. 34, Pl.’s Br., 7.4 Gusman did not stop Van Buren, but instead helped him by guiding the carts into the cart corral while Van Buren pushed the carts from the back. Doc. 34, Pl.’s Br., 8–9; Doc. 38, Def.’s Br., 9–10. While doing so, Gusman’s arm became “wedged between two carts and, when Van Buren continued pushing the carts, [Gusman] injured her arm.” Doc. 38, Def.’s Br., 10; see also Doc. 34, Pl.’s Br., 9. Gusman claims that her “arm immediately started burning and swelling” and that she “remains in excruciating pain and has extremely limited use of that arm.” Doc. 34, Pl.’s Br., 9.

On June 19, 2019, Gusman filed suit in Texas state court, asserting negligence claims for direct and vicarious liability against Kroger. See generally Doc. 1-2, Notice of Removal Exs., 9–19 (petition). Kroger removed the case to this Court on July 24, 2019, invoking the Court’s diversity jurisdiction. Doc. 1, Notice of Removal, 1. On June 15, 2021, Gusman filed a motion for partial summary judgment (Doc. 33). On June 18, 2021, Kroger filed a motion for summary judgment (Doc. 37). Both motions have been fully briefed and are ripe for review.

II.

LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) provides that summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The substantive law governing a matter determines which facts are material to a case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The summary-judgment movant bears the burden of proving that no genuine issue of material fact exists. Latimer v. Smithkline & French Lab’ys, 919 F.2d 301, 303 (5th Cir. 1990). Usually, this requires the movant to identify “those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quotation marks omitted).

Once the summary-judgment movant has met this burden, the burden shifts to the non-movant to “go beyond the pleadings and designate specific facts” showing that a genuine issue exists. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (per curiam) (citing Celotex, 477 U.S. at 325). “This burden is not satisfied with ‘some metaphysical doubt as to the material facts,’ by ‘conclusory allegations,’ by ‘unsubstantiated assertions,’ or by only a ‘scintilla’ of evidence.” Id. (citations omitted). Instead, the non-moving party must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis and quotation marks omitted).

“[C]ourts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the summary[-]judgment motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations incorporated) (quotations marks omitted). But the Court need not “sift through the record in search of evidence to support a party’s opposition to summary judgment.” Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citation and quotation marks omitted). If the non-movant is unable to make the required showing, the Court must grant summary judgment. Little, 37 F.3d at 1076.

III.

ANALYSIS

In their respective motion briefs, each party asks the Court to enter summary judgment on Kroger’s liability. See Doc. 34, Pl.’s Br., 6; Doc. 38, Def.’s Br., 1. Thus, the Court must determine whether a genuine issue of material fact exists as to Kroger’s negligence. See Celotex, 477 U.S. at 323.

In Texas, a plaintiff seeking to prove negligence must establish: “(1) a legal duty owed to the plaintiff by the defendant; (2) a breach of that duty; (3) an actual injury to the plaintiff; and (4) a showing that the breach was the proximate cause of the injury.” Kroger argues that the Court should grant summary judgment in its favor because Gusman cannot prevail on any of her claims as a matter of law. Doc. 38, Def.’s Br., 1. The Court disagrees, finding that genuine issues of material fact exist as to whether Gusman may succeed on her claims. Accordingly, the Court DENIES Kroger’s motion for summary judgment.

As a preliminary matter, Gusman asserts—and Kroger does not dispute—that Kroger is a nonsubscriber under the Texas Workers’ Compensation Act (TWCA). “To encourage employers to obtain workers’ compensation insurance, [the TWCA] penalizes nonsubscribers by precluding them from asserting certain common-law defenses in their employees’ personal-injury actions[.]” Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000). Thus, in an action against a nonsubscriber-employer “to recover damages for personal injuries or death sustained by an employee in the course and scope of the employment,” the TWCA precludes a nonsubscriber from asserting that “(1) the employee was guilty of contributory negligence; (2) the employee assumed the risk of injury or death; or (3) the injury or death was caused by the negligence of a fellow employee.” Tex. Lab. Code. § 406.033; see also Odom v. Kroger Tex., L.P., 2014 WL 585329, at *3 (N.D. Tex. Feb. 14, 2014) (“Kroger is a non-subscribing employer...Kroger cannot rely on the defense of contributory negligence, assumption of risk, or the fellow-servant rule.”). Accordingly, Kroger can only defend against Gusman’s negligence claims by demonstrating that Gusman cannot establish one or more elements of her claims. See Odom, 2014 WL 585329, at *3. And indeed, that is what Kroger attempts to do.

First, Kroger argues that Gusman’s claims fail because Gusman “cannot establish the threshold element of ‘duty.’ ” Doc. 38, Def.’s Br., 1. Next, Kroger argues that Gusman “was the sole proximate cause of her injur[y],” thus negating the element of causation. Id. The Court addresses both arguments below and finds that genuine issues of material fact exist as to whether Gusman may succeed on her claims.

1. Existence of a duty

“The existence of a duty is a threshold question of law,” and “[t]he nonexistence of duty ends the inquiry into whether negligence liability may be imposed.” Saucedo v. Horner, 329 S.W.3d 825, 830 (Tex. App.—El Paso 2010, no pet.). Kroger argues that summary judgment is proper because it did not owe a duty to Gusman to warn or protect her from “the risk of trying to move a train of 50 or more shopping carts[.]” Doc. 38, Def.’s Br., 15. The Court disagrees.

“[A]s [Gusman]’s employer, [Kroger] had the nondelegable duty to use ordinary care in providing [Gusman] with a safe workplace.” Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996) (citations omitted). This duty required Kroger to “warn [Gusman] of the hazards of employment and provide needed safety equipment or assistance.” Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006) (per curiam) (citations omitted). However, “an employer is not an insurer of its employees’ safety.” Id. And under Texas law, Kroger thus “owe[d] no duty to warn of hazards that are commonly known or already appreciated by” Gusman. Id.

Kroger suggests that Gusman already appreciated the hazard that led to her injury because of the safety training she received from Kroger. Doc. 38, Def.’s Br., 5–8. However, genuine issues of material fact exist as to whether Gusman appreciated the dangers of assisting Van Buren in moving the large train of carts. Though Gusman asserts that she was not trained on moving carts, Doc. 34, Pl.’s Br., 19–20, Kroger shows that Gusman “admitted that she was trained in response to [Kroger’s] Requests for Admissions[.]” Doc. 41, Def.’s Resp., 6. Even if Gusman was trained, however, the Court cannot determine from the evidence whether the training was adequate or the policies were subsequently enforced such that Gusman appreciated the dangers of “mov[ing] a train of 50 or more shopping carts[.]” See Doc. 38, Def.’s Br., 15. Thus, a genuine issue of material fact exists as to whether Gusman appreciated the hazard at issue.

Next, Kroger argues that, regardless of Gusman’s training, Kroger “ow[ed] no duty to [Gusman] to warn of the hazards” that led to her injury because “there can be no question that the risk of trying to move a train of 50 or more shopping carts is obvious and commonly known to any reasonable person.” Doc. 38, Def.’s Br., 15, 19–20. In support, Kroger cites three opinions of the Texas Supreme Court in which the court found that certain hazards were commonly known. See Doc. 38, Def.’s Br. 13–14.

First, in Brookshire Grocery Co. v. Goss, a grocery store employee was injured when she hit her shin on a “lowboy” cart5 after she had previously “successfully stepped over the cart[.]” 262 S.W.3d 793, 795 (Tex. 2008) (per curiam). There, the Texas Supreme Court found that the employer did not owe a duty to warn its employee of the dangers of tripping over the lowboy, as “[a] stationary, loaded lowboy is easily visible, and [the employee] saw it upon entering the” area where she fell. Id. Indeed, the danger of “stepping over a lowboy...is a danger apparent to anyone, including [the employee].” Id. And the employee in Goss clearly appreciated the danger, as she “had both previously encountered lowboys in the course of her work and was able to safely navigate around this lowboy[.]” Id.

Next, in Kroger Co. v. Elwood, the plaintiff-employee “was injured when a customer shut her vehicle door on his hand while he was transferring items from a grocery cart to the vehicle[.]” 197 S.W.3d at 794. In light of the employee’s admission that “he knew it was dangerous to place his hand in a vehicle’s doorjamb,” and in the absence of “evidence that other courtesy clerks sustained similar injuries,” the Texas Supreme Court concluded that defendant-employer did not owe a duty to the employee to warn about the dangers of placing one’s hand in a doorjamb. Id. at 795.

Finally, in Jack in the Box, Inc. v. Skiles, a lift gate on a food delivery truck broke while items were still inside. 221 S.W.3d 566, 567 (Tex. 2007) (per curiam). Though the defendant-employer’s policy required delivery persons to suspend deliveries until the lift gate could be fixed, the plaintiff-employee attempted to use a ladder to climb over the broken lift gate and was injured in the process. Id. There, the Texas Supreme Court did not impose a duty on the employer to warn against that action, as “[t]he dangers associated with the use of a ladder to climb over a lift gate are common and obvious to anyone.” Id. at 569.

However, the facts of this case are different than those in the cases cited by Kroger, and the Court does not find that the risk of trying to move a train of 50 or more shopping carts is obvious or commonly known. In Goss, Elwood, and Skiles, the dangers faced by the employees were those dangers inherent in everyday life. See id. at 567; 262 S.W.3d at 794; 197 S.W.3d at 794. Indeed, nearly any person with the ability to walk has tripped over a low-sitting object. And nearly any person with hands and fingers has caught them in a door or hinge. Further, the dangers of ladders are commonly known, especially where used incorrectly. Here, however, the act of moving multiple grocery carts is not a task undertaken by most people. And the risk of having one’s arm “crush[ed]” between grocery carts is not a commonly encountered risk, like the risk of tripping, getting one’s hand caught in a door, or injuring oneself by misusing a ladder. See Doc. 34, Pl.’s Br., 9.

Whether an employer has the duty to warn its employees “depends on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant.” Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 218 (Tex. 2008). And these factors do not weigh against finding a duty in this case. Indeed, Kroger does not argue that the dangers of moving multiple carts are commonly known. Rather, Kroger takes issue with the number of carts that Gusman and Van Buren moved. See Doc. 38, Def.’s Br., 19–20. Kroger claims that Gusman “knew she was not allowed to move more than eight carts at a time,” pursuant to Kroger’s 2015 policy. Id. at 5. But it is not common knowledge that moving more than eight carts is any more dangerous than moving eight or less. Indeed, while a “50-cart train” may be “near-impossible” to physically move, the risk of “wedg[ing]” one’s arm “between two carts” is not any more foreseeable for the average person than it is during an attempt to move a five-cart train. See id. at 10, 19–20. Moreover, the fact that two employees—Gusman and Van Buren—were moving the carts, rather than one, seems to diminish the risks associated with the act. Accordingly, the Court does not find that Gusman’s act of assisting Van Buren in moving the cart-train was a hazard that is commonly known.

Finally, Kroger’s duty to Gusman “include[d] an obligation to provide adequate help under the circumstances for the performance of required work.” Werner v. Colwell, 909 S.W.2d 866, 869 (Tex. 1995) (citing W. Union Tel. Co. v. Coker, 204 S.W.2d 977, 978 (1947)). Here, Gusman has alleged and provided evidence that the Store “was busy and understaffed” and that “[a]ll of Kroger’s [cart] straps were either broken or missing” on the day that she was injured. Doc. 34, Pl.’s Br., 5–6. Though Kroger asserts that “the fact that a cart strap was not available on the day of the Incident is wholly irrelevant,” Doc. 38, Def.’s Br., 8, the Court finds that it is relevant to the determination of whether Kroger breached its “duty to furnish [Gusman] with safe and suitable equipment so that [s]he may carry on the work with reasonable safety.” See McMillian v. Hearne, 584 S.W.3d 505, 512 (Tex. App.—Texarkana 2019, no pet.). Although “a cart strap could not have been used on a train of 50 shopping carts,” Doc. 38, Def.’s Br., 8, this does not excuse Kroger from its duty, as it is entirely possible that Van Buren would not have attempted to move that many carts had Kroger furnished the safety straps.

Overall, Kroger owed the “duty to use ordinary care in providing [Gusman] with a safe workplace.” Leitch, 935 S.W.2d at 118 (citations omitted). And a genuine issue of material fact exists as to whether Kroger breached that duty.

2. Sole proximate cause

Even if Kroger and Van Buren were negligent, Gusman must prove that their negligence proximately caused Gusman’s injury. See Gutierrez, 106 F.3d at 687. Kroger asserts that summary judgment should be granted in its favor because Gusman cannot prove that Kroger or Van Buren proximately caused Gusman’s injury. See Doc. 38, Def.’s Br., 20. Rather, Kroger states that Gusman’s “dangerous decision and risky behavior directing and assisting [Van Buren] to move a 50-cart train of shopping carts was the sole proximate cause of [Gusman’s] accident and injur[y].” Id. “[B]ut for [Gusman’s] decision to assist Van Buren in violating Kroger policy,” Kroger argues, “her injury would not have occurred.” Id. at 21–22. The Court declines to agree at this stage and finds that the proximate cause of Gusman’s injury is a question for the jury.

“In Texas, proximate cause has two factors: cause in fact and foreseeability.” Gutierrez, 106 F.3d at 687 (citation omitted). “Cause in fact is ‘but for cause,’ meaning the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred.” El Chico Corp. v. Poole, 732 S.W.2d 306, 313 (Tex. 1987). “Foreseeability means that a person of ordinary intelligence should have anticipated the dangers that his negligence created.” Gutierrez, 106 F.3d at 687 (citing Poole, 732 S.W.2d at 313). Proximate cause “must be established by probative evidence, not by mere conjecture or guess.” Id. (citing Doe v. Boys Clubs of Greater Dall., Inc., 907 S.W.2d 472, 477 (Tex.1995)). Thus, “[c]ausation is a question of fact for the jury, and the jury has broad latitude to infer proximate cause from the evidence and circumstances surrounding an event.” Id. (citations omitted).

A jury could find that Kroger was negligent in failing to warn Gusman or furnish necessary equipment, and that Van Buren was negligent in attempting to move the carts. And a jury could find that Kroger or Van Buren’s negligence was a but-for cause of Gusman’s injury and that Gusman’s injury was foreseeable. See Poole, 732 S.W.2d at 313. Thus, while a jury could find that Gusman’s actions were the sole proximate cause of her injury, the jury could also find that her injury was proximately caused by Kroger’s and/or Van Buren’s negligence. And because the TWCA precludes Kroger from asserting a defense of contributory negligence, it is of no consequence that Gusman’s own negligence may have contributed to her injury, so long as Kroger’s or Van Buren’s negligence was one of the contributing proximate causes.

In sum, genuine issues of material fact exist as to whether Kroger breached a duty to Gusman and whether any such breach was a proximate cause of Gusman’s injury. Thus, the Court DENIES Kroger’s motion for summary judgment (Doc. 37).

B. Gusman’s Motion for Partial Summary Judgment Is Denied. Gusman seeks “summary judgment as to Kroger’s liability in this case[,]...leaving only

Gusman’s damages to be determined” by the jury. Doc. 34, Pl.’s Br., 5. Indeed, Gusman asserts that the evidence proves that Kroger is vicariously liable for the negligence of Van Buren, as well as directly liable for Kroger’s own negligence. Id. at 12–20. The Court DENIES Gusman’s motion for partial summary judgment, as genuine issues of material fact exist as to all of Gusman’s claims.

1. Vicarious liability

Gusman seeks to hold Kroger vicariously liable for the acts of its employee, Van Buren. Doc. 1-2, Notice of Removal Exs., 12. “Under the doctrine of respondeat superior, an employer is vicariously liable for the torts of its employee only when the employee is acting within the course and scope of employment.” Doe v. Apostolic Assembly of Faith in Christ Jesus, 452 F.Supp.3d 503, 517 (W.D. Tex. 2020) (citing Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 576 (Tex. 2002)). Gusman claims that in “attempt[ing] to move 50 carts at once,” Van Buren acted negligently, and that his “negligence was a proximate cause of Gusman’s injury.” Doc. 34, Pl.’s Br., 13, 15. Indeed, Gusman points out that Van Buren failed to abide by Kroger’s training and policies, which “prohibited its courtesy clerks from moving more than six to eight carts at any one time, and expressly required that they use a cart strap anytime they were moving more than two.” Id. at 13–14.

The parties do not dispute that Van Buren acted within the scope of his employment with Kroger when Gusman was injured. Id. at 12; see generally Doc. 38, Def.’s Br.; Doc. 41, Def.’s Resp.; Doc. 50, Def.’s Reply. And they agree that Van Buren pushed the large cart-train and injured Gusman. Doc., 34, Pl.’s Br., 8–9; Doc. 38, Def.’s Br., 9–10. What is in dispute, however, is whether Van Buren’s acts constituted negligence. “[G]enerally, questions of negligence...are quintessential jury questions.” UDR Tex. Props., L.P. v. Petrie, 517 S.W.3d 98, 105 (Tex. 2017) (Willett, J., concurring). This case is no exception.

To prove negligence, “a plaintiff must show that a defendant either did something an ordinarily prudent person exercising ordinary care would not have done under the circumstances, or that the defendant failed to do that which an ordinarily prudent person would have done in the exercise of ordinary care.” Boudreaux v. Swift Transp. Co., Inc., 402 F.3d 536, 541 (5th Cir. 2005) (citing Caldwell v. Curioni, 125 S.W.3d 784, 793 (Tex. App.—Dallas 2004, pet. denied)). However, “[t]he Texas Supreme Court has refused to create a standard of care or duty based upon internal policies, and the failure to follow such policies does not give rise to a cause of action[.]” Owens v. Comerica Bank, 229 S.W.3d 544, 547 (Tex. App.—Dallas 2007, no pet.) (citing FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 92 (Tex. 2006); Guerra v. Regions Bank, 188 S.W.3d 744, 747 (Tex. 2006)). While Kroger’s policies “may be evidence of the standard of care,” they are not determinative of fault or the applicable standard of care in this negligence case. See Mills v. Angel, 995 S.W.2d 262, 268 (Tex. App.—Texarkana 1999, no pet.). Thus, while Gusman’s evidence shows that Van Buren failed to abide by Kroger’s policies, such a failure does not necessarily mean that Van Buren “failed to do that which an ordinarily prudent person would have done in the exercise of ordinary care.” See id. In other words, failure to abide by Kroger’s policy does not, as a matter of course, equate to negligence. The jury must decide whether Van Buren acted negligently in violating Kroger’s policies.

Because a genuine issue of material fact exists as to whether Van Buren’s actions constituted negligence, Gusman’s request for summary judgment on her vicarious liability claim is DENIED.

2. Direct liability claims

Gusman seeks summary judgment on her negligence claims against Kroger for two alleged failures on Kroger’s behalf. Doc. 34, Pl.’s Br., 16, 19. First, Gusman claims that Kroger was negligent by “fail[ing] to provide its employees with safe and suitable equipment with which to perform their jobs.” Id. at 16. Second, Gusman claims that “Kroger failed to provide its employees safe conditions in which to work” by “fail[ing] to adequately staff or train its employees.” Id. at 19. However, genuine issues of material fact exist as to Kroger’s direct liability.

First, a genuine issue of material fact exists as to whether Kroger’s “failure to provide...safe and suitable equipment” caused Gusman’s injury. Id. at 16. Though the parties do not dispute that the Store lacked working cart straps, id. at 5; see Doc. 38, Def.’s Br., 8, “a cart strap could not have been used on a train of 50 shopping carts.” Doc. 38, Def.’s Br., 8.

Further, a genuine issue of material fact exists as to whether Kroger was negligent in failing to provide safe working conditions. Despite Gusman’s arguments to the contrary, see Doc. 34, Pl.’s Br., 19, Gusman previously “admitted that she was trained” to retrieve shopping carts. Doc. 41, Def.’s Resp., 6. And though Gusman asserts that Kroger “failed to adequately staff” the Store on the day of her injury, she has not shown that the alleged failure to staff caused her injury. See Doc. 34, Pl.’s Br., 19. Indeed, the parties dispute whether cart retrieval was part of Gusman’s duties. See Doc. 34, Pl.’s Br., 7; Doc. 38, Def.’s Br., 4. Thus, Gusman may have performed those duties regardless of additional employees and may have suffered the same injury. Therefore, genuine issues of material fact exist as to both of Gusman’s theories of Kroger’s direct liability.

Gusman has not met her burden for summary judgment on her claims against Kroger for vicarious or direct liability. Accordingly, the Court DENIES Gusman’s motion.

C. Gusman’s Objections to Evidence Are Moot.

Gusman objects to several pieces of Kroger’s summary-judgment evidence, specifically “documents Kroger relies on to claim that Gusman was trained regarding the handling of carts.” Doc. 43, Pl.’s Resp., 8–9. However, in light of Gusman’s response to Kroger’s Requests for Admissions, see Doc. 41, Def.’s Resp., 6, and Gusman’s failure to provide compelling evidence that she was not trained, the Court did not need to rely on the documents in reaching its conclusion that Gusman has not proved a failure to train. See supra Section III.B.2. Thus, the Court does not rely on the objected-to evidence in this Order and Gusman’s objections are MOOT.

IV.

CONCLUSION

For the reasons stated above, the Court DENIES Kroger’s Motion for Summary Judgment (Doc. 37) and DENIES Gusman’s Motion for Partial Summary Judgment (Doc. 33). Further, Gusman’s objections, as set forth in her response (Doc. 43) to Kroger’s motion are MOOT.

SO ORDERED.

SIGNED: August 2, 2021.

Footnotes

1

The Court draws the facts from the parties’ pleadings and the summary-judgment record.

2

The duties of a courtesy clerk “include[ ] bagging customers’ groceries, helping customers out with their groceries, and retrieving shopping carts from the parking lot.” Doc. 38, Def.’s Br., 4.

3

Gusman claims that she was directed to do so by a superior, Doc. 34, Pl.’s Br., 7, while Kroger claims that Gusman did so on her own directive and that Gusman directed Van Buren to retrieve the carts. Doc. 38, Def.’s Br., 9.

4

Kroger points out that Van Buren could not have used a cart strap for this amount of carts, even if they were available, because “a cart strap can only accommodate 7 or 8 shopping carts.” Doc. 38, Def.’s Br., 8.

5

According to the Texas Supreme Court, “a lowboy cart measures roughly two-and-a-half feet by five feet and its bed sits about ten inches off the ground. It has four wheels and a handle on one end and measures about forty-two inches from the ground up.” Goss, 262 S.W.3d at 794 n.1.

Court of Appeals of Texas, Eastland.

IN RE SENTRY INSURANCE A MUTUAL COMPANY

No. 11-21-00107-CV

|

filed July 30, 2021

Original Mandamus Proceeding

Panel consists of: Bailey, C.J.,

Trotter, J., and Williams, J.

MEMORANDUM OPINION

W. BRUCE WILLIAMS JUSTICE

Opinion filed July 30, 2021

The parties appear before this court for the second time in less than a year respecting mandamus relief. In this proceeding, similar to the first proceeding, we address an order issued by the Honorable Glen Harrison, Presiding Judge of the 32nd District Court of Nolan County, in Cause No. DO-92-17,178 in which he denied Relator, Sentry Insurance a Mutual Company’s plea to the jurisdiction. Sentry requests that we instruct Judge Harrison to dismiss for lack of jurisdiction Real Party in Interest, Donald Bristow’s (1) claims against Sentry based on the alleged delayed payment of, or failure to pay, medical expenses and (2) appeal of a March 23, 2021 award by the Texas Department of Insurance, Workers’ Compensation Division (the Division).1 We conditionally grant the petition for writ of mandamus as to Bristow’s claims based on Sentry’s alleged delayed payment of, or failure to pay, medical expenses. We deny the petition for writ of mandamus in all other respects.

Background

As noted in our first opinion, Bristow suffered a work-related injury on September 17, 1990. See In re Sentry Ins. a Mut. Co., No. 11-20-00240-CV, 2020 WL 6554795, at *1 (Tex. App.—Eastland Nov. 6, 2020, orig. proceeding [mand. denied]) (mem. op.) (Sentry I). Sentry was the workers’ compensation carrier for Bristow’s employer. Id. Because Bristow’s injury occurred before January 1, 1991, his claim for workers’ compensation benefits was determined based on the law in effect at the time of the injury. See Act of Dec. 12, 1989, 71st Leg., 2nd C.S., ch.1, § 17.18(a), (c), 1989 Tex. Gen. Laws 1, 122.

After the Division issued an award on Bristow’s claim, Bristow filed this suit against Sentry. Sentry and Bristow settled the lawsuit on March 31, 1993. As relevant here, in a Compromise Settlement Agreement (CSA), the parties agreed (1) that Sentry would pay a monthly sum of $3,650 for future home health care, as incurred, to “Bristow and his attorney” and that the amount of Sentry’s monthly obligation would not “increase or decrease”; (2) that Sentry was required to pay for home health care “only for so long as Bristow [was] at his home residence and not absent in a hospital or other health care facility”; and (3) that based on Bristow’s physical and mental condition, Sentry could contest that he no longer needed home health care. The CSA was incorporated into a final judgment on April 6, 1993.

In 2014, Bristow filed two applications for a prehearing conference with the Division. In the first application, Bristow requested a prehearing conference to address “various issues regarding old law claim.” Bristow specifically indicated (1) that he had issues in obtaining nursing care and medical supplies and (2) that, although he no longer had an attorney, Sentry sent checks directly to an attorney’s estate. In the second application, Bristow indicated that he wanted an explanation for the partial reimbursement of out-of-pocket expenses. The record does not reflect that the Division responded to either of these applications.

On December 28, 2016, Bristow filed a third application for a prehearing conference with the Division. Bristow complained that his lifetime benefits had been reduced and that medical supplies had been denied. On January 18, 2017, the Division denied Bristow’s request for a prehearing conference. As to Bristow’s complaints that medical supplies had been denied by Sentry, the Division stated (1)that, after the entry of the final judgment and the CSA, it had jurisdiction only “to conduct a formal hearing to issue successive awards on the carrier’s liability on medical disputes ‘... for the cost or expense of any such items actually furnished to and received by said employee and (2) that any dispute as to home health care was required to be submitted to the 32nd District Court in accordance with the CSA. The Division also informed Bristow that, if he chose “to pursue for payment of medical bills (other than home health care) denied by the workers’ compensation carrier,” he could submit a written request “for a formal hearing to adjudicate the unpaid disputed medical bill(s).” The Division specifically advised Bristow that the written request was required to include (1) the itemized bill as originally submitted to the carrier, (2) a copy of the carrier’s denial to pay the bill, and (3) supporting medical documentation.

In 2018, Sentry sought to terminate the home health care payments on the basis that Bristow’s physical and mental condition did not reasonably require home health care. Sentry also moved to abate future payments for home health care because (1) it was required to pay Bristow $3,650 per month for home health care, as incurred; (2) since 2014, Bristow had incurred home health care costs of only $7,686.75; and (3) based on the excess payments, it was entitled to a credit or offset against future payments for home health care costs. Sentry also filed Cause No. 19,940 and requested a declaration that it was entitled to a credit or offset against any future amounts that it might owe Bristow for home health care pursuant to the CSA. Judge Harrison consolidated Cause No. 19,940 with Cause No. DO-92-17,178.

Bristow, through counsel, sent letters to the Division on February 14, February 21, and February 22, 2019. In all three letters, Bristow requested that the Division set a prehearing conference. In the first letter, Bristow indicated that Sentry had sued to set aside the CSA and that there was a dispute over the CSA and over attorney’s fees. In the second letter, Bristow stated that there was a dispute over the CSA and that the Division had continuing jurisdiction over medical benefits. Bristow specifically complained (1) that Sentry had failed or refused to replace dressing pads for a “wound care vac machine”; (2) that, because he did not have dressing pads, he would be required to go to a hospital; (3) that Sentry would not be liable for home health care payments while he was hospitalized; and (4) that the refusal to provide or approve the dressing pads was “an obvious attempt by [Sentry] to avoid these payments and [was] an act of bad faith and self dealing.” In the third letter, Bristow indicated that the subject of the prehearing conference would be “medical benefits for nursing care services, wound care, and home health care beginning April 1, 1993 to the present and continuing into the future.”

On February 22, 2019, Bristow filed an application for a prehearing conference using the Division’s form PHD-90. Bristow indicated that the grounds for the prehearing conference were a “[m]edical dispute” and “[o]ther” and referenced the three letters that he had sent to the Division.

On February 28, 2019, the Division denied Bristow’s February 14 request for a prehearing conference. The Division again informed Bristow that, after an award or a court judgment, it had jurisdiction only to issue successive awards regarding the insurance carrier’s liability on medical disputes for the cost or expenses of any such items actually furnished to and received by Bristow. According to the Division, “any dispute as to home health care must be submitted to the court in accordance with the terms of” the CSA. The Division informed Bristow that, to the extent that he wanted “to pursue an award on unpaid bills for medical services received by him and denied by the workers’ compensation carrier (other than home health care),” he could submit a written request to the Division for a “formal hearing to adjudicate the unpaid disputed medical bill(s) only.” The Division indicated that, on January 18, 2017, it had provided written information to Bristow regarding the Division’s dispute resolution process.

Bristow filed counterclaims against Sentry in the declaratory judgment action and alleged that Sentry (1) violated the Texas Deceptive Trade Practices Act (the DTPA), the duty of good faith and fair dealing, and the requirement that it engage in fair settlement practices pursuant to Chapter 541 of the Texas Insurance Code; and (2) committed fraud by making representations when it signed the CSA that certain benefits would be paid to Bristow and then attempting to “vitiate the agreement.” Bristow’s claims fell within two categories—claims based on Sentry’s obligations under the CSA and claims based on Sentry’s alleged delayed payment of, or failure to pay, medical expenses related to ulcers suffered by Bristow.

Sentry filed a plea to the jurisdiction. Sentry asserted that the Division had exclusive jurisdiction over all compensability and medical disputes in the workers’ compensation context and that a claimant’s failure to secure a determination by the Division that benefits were due precluded a suit for those benefits as well as for all damages that resulted from a denial of those benefits. Sentry also filed a nonsuit of its petition for declaratory judgment on the basis that Judge Harrison did not have jurisdiction over the request for a credit or offset because Sentry had not presented the claim to the Division.

Judge Harrison denied Sentry’s plea to the jurisdiction, and Sentry sought mandamus relief from this court. See Sentry I, 2020 WL 6554795, at *1. As relevant here, we held that Sentry had not shown that it was entitled to mandamus relief on Bristow’s common law and statutory claims related to Sentry’s performance under the CSA and request for enforcement of the CSA on the ground that Bristow still requires home health care, id. at *5, but conditionally granted mandamus relief as to Bristow’s common law and statutory claims that were based on or related to Sentry’s alleged delayed payment of, or failure to pay, medical expenses incurred by Bristow after March 31, 1993, because Bristow had failed to exhaust his administrative remedies as to those claims, id. at *6.

Pursuant to our opinion, on November 12, 2020, Judge Harrison dismissed for lack of jurisdiction Bristow’s claims (1) that Sentry violated the DTPA based on a “course of conduct” related to the delayed payment of, or failure to pay, medical expenses that was intended to avoid Sentry’s liability under the CSA; (2) that Sentry breached the duty of good faith and fair dealing when it engaged in a “pattern of conduct” to delay or fail to pay medical expenses for ulcers that Bristow had developed as a result of his confinement to a wheelchair; and (3) that Sentry violated Chapter 541 of the Texas Insurance Code based on Sentry’s alleged delayed payment of, or failure to pay, medical expenses and Bristow’s request that the CSA be enforced because “Sentry has denied payment of reasonable and necessary medical expenses.”

On December 11, 2020, Sentry filed an application for a prehearing conference with the Division on the issue of whether Sentry was entitled to a credit or offset on future home health care payments. The Division notified Sentry and Bristow that the prehearing conference would be held on February 24, 2021, at 10:00 a.m. Sentry and Bristow were directed to appear at the prehearing conference and attempt to settle disputes about the claim. The Division informed Sentry and Bristow that, in order to facilitate the negotiations, they were “required to provide the other parties and the [Division] with all available medical information including all unpaid medical bills before the conference date.”

At 5:53 p.m. on February 22, 2021, Bristow’s attorney provided exhibits for the prehearing conference to the Division and to Sentry. These exhibits consisted of (1) prescriptions, (2) a June 6, 2019 approval by Sentry of home health care services for Bristow through December 6, 2019, and a billing summary for some of those services, (3) e-mails from Bristow to his attorney with receipts attached, and (4) bills for medical services provided to Bristow. At 3:08 p.m. on February 24, 2021, Bristow’s attorney provided an additional bill for medical services.

After the conference, the prehearing officer recommended that an award be entered that Sentry was not entitled to a credit in the amount of $193,063.25 on future payment for home health care based on the claimed excess payments. Both Sentry and Bristow were instructed to file a written formal statement of position on the recommendation. In its statement of formal position, Sentry admitted that it had compensation coverage on the named insured on or about the date of the injury and that Bristow was employed by the insured. On all other contested issues, Sentry indicated that it would require Bristow to sustain his burden of proof through competent evidence. Bristow admitted in his formal statement of position that Sentry was not entitled to take credit in the amount of $193,063.25 on future payments for home health care. Bristow denied that the Division had jurisdiction over the CSA and noted that the Division had previously found that it lacked jurisdiction over the CSA. Bristow “except[ed]” to the Division’s failure to consider the “medical benefits and bills which have been provided to [Bristow] but which [Sentry] refuses to pay.” Bristow attached the same exhibits to the formal statement of position that he provided for the prehearing conference.

The Division issued an award on March 23, 2021. Stamped on the award is “MEDICAL ONLY.” The Division found (1) that, on the date of Bristow’s injury, his employer provided workers’ compensation coverage and was insured by Sentry and (2) that Sentry was not entitled to take a credit or offset on any future payments for home health care “on an incurred overpayment of $193,063.25 paid for the periods of January 2014 through December 2018, derivative to that” of Bristow. Both Bristow and Sentry filed notice that they did not intend to abide by the award and intended to appeal the award.

On March 23, 2021, Sentry appealed the Division’s award to the 251st District Court in Randall County, where Bristow lives. On April 8, 2021, Bristow filed his seventh amended answer and counterclaims in this litigation. Bristow reasserted the claims that had been dismissed by Judge Harrison pursuant to our opinion in the first mandamus proceeding. Bristow also appealed the Division’s award and argued (1) that the award should be set aside because the Division failed or refused to consider the disputed medical issues and (2) that the Division did not have jurisdiction over the parties’ agreement in the CSA as to the provision of home health care. Sentry filed a plea to the jurisdiction in this case, and Bristow filed a plea to the jurisdiction and plea in abatement in the Randall County lawsuit.

The Honorable Ana Estevez, Presiding Judge of the 251st District Court, found that “the matters in controversy” in the Randall County lawsuit were “subject to the dominant jurisdiction in the lawsuit pending between the parties in Nolan County, Texas.” Judge Estevez granted Bristow’s plea in abatement and abated the Randall County lawsuit “until such time as the issues in the Nolan County lawsuit are resolved.”

Sentry filed a petition for writ of mandamus in the Amarillo Court of Appeals. Sentry argued that it had appealed the Division’s award to the 251st District Court before Bristow appealed the award to the 32nd District Court and that the 251st District Court had dominant jurisdiction over the appeal of the award. Sentry requested that the Amarillo Court of Appeals direct Judge Estevez to vacate the order in which she abated the Randall County lawsuit and to issue an order in which she denied Bristow’s plea to the jurisdiction and plea in abatement and enjoined Judge Harrison from adjudicating Bristow’s appeal of the Division’s award.

The Amarillo Court of Appeals denied Sentry’s petition for mandamus relief on June 15, 2021. In re Sentry Ins. a Mut. Co., No. 07-21-00123-CV, 2021 WL 2448083, at *2 (Tex. App.—Amarillo June 15, 2021, orig. proceeding) (mem. op.) (Sentry II). In its opinion, the court described the litigation between Sentry and Bristow dating back to 2018 that related to (1) the CSA, (2) Sentry’s obligation to pay for Bristow’s home care pursuant to the CSA, and (3) the allegation that Sentry overpaid those expenses. Id. at *1. The court held (1) that “the allegations presented in the Randall County action mirrored those the insurer proffered earlier in Nolan County,” (2) that “the comparability between the parties and allegations underlying both district court actions illustrates that the proceedings are interrelated,” and (3) that “the Nolan County proceedings involving the common parties and claims were initiated long before the Randall County suit.” Id. at *2. The court held that Judge Estevez did not abuse her discretion when she abated the Randall County lawsuit. Id.

In its plea to the jurisdiction in this case, Sentry asserted that Bristow had failed to exhaust his administrative remedies as to the claims based on the delayed payment of, or failure to pay, medical expenses and requested that those claims be dismissed for lack of jurisdiction. On June 1, 2021, Sentry filed a reply in support of its plea to the jurisdiction in which it also asserted that Bristow lacked standing to appeal the Division’s award because he had prevailed on Sentry’s claim for a credit or an offset on future home health care payments. Judge Harrison denied the plea to the jurisdiction that same day.

Sentry filed this petition for writ of mandamus in which it requests that we direct Judge Harrison to dismiss for lack of subject-matter jurisdiction (1) Bristow’s claims based on the delayed payment of, or failure to pay, medical bills because Bristow failed to exhaust his administrative remedies as to those claims and (2) Bristow’s appeal of the Division’s award because Bristow lacks standing to appeal the award.

Analysis

Mandamus is an extraordinary remedy and is warranted only when the trial court clearly abused its discretion and there is no adequate remedy by appeal. In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (orig. proceeding); In re Murrin Bros., 1885, Ltd., 603 S.W.3d 53, 56 (Tex. 2019) (orig. proceeding). The relator bears the burden to prove both of these requirements. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding).

A trial court abuses its discretion when its ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). “Similarly, a trial court abuses its discretion when it fails to analyze or apply the law correctly.” Id.; see also In re Geomet Recycling LLC, 578 S.W.3d 82, 91 (Tex. 2019) (orig. proceeding). “A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.” In re Geomet Recycling, 578 S.W.3d at 91 (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)).

A. Claims Based On Delayed Payment Of, Or Failure To Pay, Medical Expenses

Sentry first requests that we direct Judge Harrison to dismiss Bristow’s statutory and common law claims based on the delayed payment of, or failure to pay, medical expenses. Under the law in effect at the time of Bristow’s injury, “[a]ll questions” arising under the workers’ compensation act generally are required to be determined by the Division. Act of May 28, 1977, 65th Leg., R.S., ch. 412, § 1, 1977 Tex. Gen. Laws 1113, 1113. After the first final award or judgment, the Division has continuing jurisdiction “to render successive awards to determine the liability of the [carrier] for the cost or expense” of medical services “actually furnished to and received” by the employee not more than six months prior to the date of the successive award. Id. at 1114.

A party is required to give notice within twenty days of the Division’s final ruling or decision that he will not abide by the ruling or decision. Id. at 1113. The party must then file suit within twenty days of when he filed the notice not to abide. Id. If the party fails to timely file suit, the Division’s final ruling or decision is binding on all parties to the ruling or decision. Id. at 1114.

When, as in this case, the suit is settled and the settlement is approved by the court in an agreed judgment, any dispute that subsequently arises over “the payment of medical, hospital, nursing, chiropractic or podiatry services or aids or treatment, or for medicines or prosthetic appliances” must be “first presented” to the Division. Act of May 20, 1983, 68th Leg., R.S., ch. 501, § 1, 1983 Tex. Gen. Laws. 2934, 2934. Unless good cause is shown, all such disputes should be presented to the Division within six months of the time the dispute has arisen. Id. A dispute arises when a “written refusal of payment” is filed with the Division. Id. However, the Division does not have jurisdiction “to rescind or set aside” an agreed judgment approved by the court. Id. at 2935.

If the Division has jurisdiction over a dispute under an agreed judgment, the party is required to first submit that dispute to the Division. City of Houston v. Rhule, 417 S.W.3d 440, 443 (Tex. 2013) (per curiam). A claimant’s failure to exhaust his administrative remedy divests the trial court of subject-matter jurisdiction. Id.

In his seventh amended counterclaims, Bristow reasserted the claims that Judge Harrison dismissed pursuant to our opinion in the first mandamus proceeding. Specifically, Bristow alleged (1) that Sentry violated the DTPA based on a failure to “pay medical,” (2) that Sentry breached the duty of good faith and fair dealing when it engaged in a “pattern of conduct” to delay payment of, or fail to pay, medical expenses for the treatment for ulcers that Bristow had developed as a result of his confinement to a wheel chair, and (3) that Sentry violated Chapter 541 of the Texas Insurance Code “based on the same facts alleged above.” Bristow also sought enforcement of the CSA because “Sentry has denied payment of reasonable and necessary medical expenses.”

The Division has continuing jurisdiction to render a successive award to determine Sentry’s liability for medical services actually provided to Bristow after March 31, 1993. See Act of May 23, 1977, 65th Leg., R.S., ch. 412, § 1, 1977 Tex. Gen. Laws 1113, 1114. Therefore, Bristow was required to submit to the Division for determination any claim based on Sentry’s alleged delayed payment of, or failure to pay, medical expenses for treatment provided to Bristow after March 31, 1993. See Sentry I, 2020 WL 6554795, at *5. In support of a request for the Division to consider the dispute, Bristow was required to provide (1) the itemized bill as originally submitted to the carrier, (2) a copy of the carrier’s denial to pay the bill, and (3) supporting medical documentation. 28 TEX. ADMIN. CODE § 42.307(c)(2)– (4) (1989) (Tex. Dep’t of Ins., Div. of Workers’ Comp., Procedures for Requesting Dispute Review). The Division informed Bristow of these requirements on January 18, 2017, and referred him to this same information on February 28, 2019. Bristow’s failure to provide this information could constitute grounds for the Division to reject his request for a prehearing conference. 28 TEX. ADMIN. CODE § 61.5(a) (1989) (Tex. Dep’t of Ins., Div. of Worker’s Comp., Request for Prehearing Conference)

Bristow argues (1) that he submitted his claims related to the medical expenses to the Division for determination when, in response to the notice that the prehearing conference requested by Sentry had been scheduled, he submitted medical bills to the prehearing officer and when he submitted the same bills in support of his formal statement of position and (2) that the Division failed to consider those bills. However, Bristow was required to submit medical information that had “a bearing on the claim at hand.” 28 TEX. ADMIN. CODE § 61.30 (1977) (Tex. Dep’t of Ins., Div. of Worker’s Comp., Filing of Medical Information). The only claim scheduled for the prehearing conference was Sentry’s request that it receive a claim or offset on future home health care payments because it had made excessive payments for home health care expenses between 2014 and 2018. The evidence submitted by Bristow for the prehearing conference and in support of his formal statement of position did not have a bearing on Sentry’s claim.

Further, Bristow failed to comply with the Division’s dispute resolution process when he failed to provide documents to the Division that established that any of the bills had been submitted to Sentry or that Sentry refused to pay the bills and did not provide any supporting medical documentation for the medical bills. See 28 TEX. ADMIN. CODE § 42.307(c). Finally, the Division did not issue an order in which it found that Bristow was entitled to receive the medical benefits. 28 TEX. ADMIN. CODE § 42.310(d) (1988) (Tex. Dep’t of Ins., Div. of Worker’s Comp., Board Review and Resolution). Based on this record, because Bristow did not make a formal request that the Division consider any unpaid medical bill and the Division did not rule on any dispute over an unpaid medical bill, Bristow did not exhaust his administrative remedies as to any claims based on or related to those medical bills. See Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826, 839 (Tex. App.—Austin 2007, no pet.) (holding that assertions by claimants under the new workers’ compensation law that they submitted certain claims to the Texas Workers’ Compensation Commission or made oral requests for the Commission to reconsider certain claims was not evidence that the Commission reviewed the benefits dispute or issued orders that the claimant was entitled to medical benefits); see also Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 804 (Tex. 2001) (holding that claims for extracontractual damages based on a failure to pay or delay in paying medical benefits does not relieve a claimant from exhausting administrative remedies before the Division when the entitlement to the medical benefits is in dispute).

Because Bristow failed to exhaust his administrative remedies as to any claims based on or related to the allegedly delayed or unpaid medical bills, Judge Harrison did not have subject-matter jurisdiction over those claims. See Rhule, 417 S.W.3d at 443 (holding that claimant’s failure to exhaust his administrative remedies for breach of a settlement agreement divested the trial court of jurisdiction); In re Liberty Mut. Fire Ins. Co., No. 04-14-00254-CV, 2014 WL 3747332, at *4 (Tex. App.—San Antonio July 30, 2014, orig. proceeding [mand. denied]) (holding that, because the carrier’s obligation to pay any disputed expense was required to be determined by the administrative process before the trial court had jurisdiction to review the administrative determination, a claim for misrepresentation pursuant to the Insurance Code must also be dismissed for lack of jurisdiction); see also Fodge, 63 S.W.3d at 804 (“[J]ust as a court cannot award compensation benefits, except on appeal from a Commission ruling, neither can it award damages for a denial of payment of compensation benefits without a determination by the Commission that such benefits were due.”).

We hold that Judge Harrison abused his discretion when he denied Sentry’s plea to the jurisdiction as to Bristow’s claims based on the delayed payment of, or failure to pay, medical expenses. Further, relief by mandamus is appropriate when a claimant fails to exhaust his administrative remedies through the workers’ compensation system prior to filing suit. In re Accident Fund Gen. Ins. Co., 543 S.W.3d 750, 754–55 (Tex. 2017) (orig. proceeding) (per curiam); In re Crawford & Co., 458 S.W.3d 920, 928–29 (Tex. 2015) (orig. proceeding) (per curiam).

B. Division’s Award

Sentry also requests that we direct Judge Harrison to dismiss Bristow’s appeal of the Division’s award because Bristow does not have standing to appeal an award that did not adversely affect him. However, Bristow appealed the Division’s assertion of jurisdiction over the home health care payments made pursuant to the CSA. Although the substantive award entered by the Division was favorable to him, Bristow did not prevail on his position that the Division lacked jurisdiction to enter an award based on the CSA.

Sentry also argues that it is entitled to relief because, after the Amarillo Court of Appeals denied Sentry’s petition for writ of mandamus, “Sentry’s appeal of the Division’s award cannot proceed while Bristow’s improper appeal of the Division’s award remains pending.” However, the Amarillo Court of Appeals did not deny Sentry’s request for mandamus relief on the sole basis that the Nolan County District Court has dominant jurisdiction over the appeal of the Division’s award. Rather, it considered the entire litigation between Sentry and Bristow stretching back to 2018 and noted that the lawsuits in Randall County and Nolan County involve the same allegations regarding the overpayment of home health care expenses. Sentry II, 2021 WL 2448083, at *1–2. The Amarillo Court of Appeals specifically determined (1) that “the comparability between the parties and allegations underlying both district court actions illustrates that the proceedings are interrelated,” (2) that “Nolan County proceedings involving the common parties and claims were initiated long before the Randall County suit,” (3) that “the Nolan County actions/counterclaims and the related circumstances upon which they were based were already pending” at the time that the Division entered the award, and (4) that “irrespective of how fast Sentry may have rushed to Randall County after the Division’s decision, it was not quick enough to precede the Nolan County suits and their interrelated claims.” Id. at *2 & n.4. We agree with our sister court’s analysis. Therefore, even if Bristow’s appeal of the Division’s award were dismissed, Sentry would still be unable to proceed with its case in Randall County until this litigation is resolved.

We hold that Judge Harrison did not abuse his discretion when he denied Sentry’s plea to the jurisdiction as to Bristow’s appeal of the Division’s award.

This Court’s Ruling

We deny Sentry’s petition for writ of mandamus as to Bristow’s appeal of the Division’s award. We conditionally grant Sentry’s petition for writ of mandamus as to Bristow’s common law and statutory claims based on or related to Sentry’s alleged delayed payment of, or failure to pay, medical expenses incurred by Bristow after March 31, 1993. We direct Judge Harrison to dismiss for lack of subject-matter jurisdiction Bristow’s claims (1) that Sentry violated the DTPA based on a “course of conduct” related to the delayed payment of, or failure to pay, medical expenses that was intended to avoid Sentry’s liability under the CSA; (2) that Sentry breached the duty of good faith and fair dealing when it engaged in a “pattern of conduct” to delay or fail to pay medical expenses for ulcers that Bristow had developed as a result of his confinement to a wheel chair; and (3) that Sentry violated Chapter 541 of the Texas Insurance Code based on Sentry’s alleged delayed payment of, or failure to pay, medical expenses and Bristow’s request that the CSA be enforced because “Sentry has denied payment of reasonable and necessary medical expenses.” A writ of mandamus will issue only if Judge Harrison does not comply by August 11, 2021.

Footnotes

1

The legislature created the Texas Workers’ Compensation Commission in 1989 to implement and enforce the provisions of the Texas Workers’ Compensation Act. Tex. Mut. Ins. Co. v. PHI Air Med., LLC, 610 S.W.3d 839, 843 (Tex. 2020). The Commission is now the Division of Workers’ Compensation at the Texas Department of Insurance. Id.; see also Act of May 29, 2005, 79th Leg., R.S., ch. 265, §§ 1.001–8.016, 2005 Tex. Gen. Laws 469, 469–610.

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