Despite Mendoza's pleadings, she can neither convert a TWCA-remedies-preservation clause nor a constitutional-remedies provision into an independent cause of action to except it from mandatory arbitration on the basis of a “claims for workers' compensation benefits, (medical and disability)” exception in the Arbitration Agreement. See Wagner, 315 F.Supp.3d at 921 (“The most natural reading of the statute is that § 408.001(b) assumes a right to sue for wrongful death already exists—i.e., it does not confer an independent cause of action for exemplary damages upon a plaintiff, but instead preserves a tort claim that arises elsewhere.”); Ross, 296 S.W.3d at 217 (“[N]either article XVI, section 26 of the Texas Constitution nor section 408.001(b) of the Workers' Compensation Act, alone or in conjunction with one another, creates a nonderivative cause of action that may be asserted independently from the Wrongful Death Act.”). Because claims under the Wrongful Death Act are derivative of the injured person's claim and Hoyos agreed to arbitrate all disputes except TWCA claims, Mendoza's gross negligence claim thus falls within the scope of the Arbitration Agreement.⁴

(b) Workers' compensation claim

In contrast, Mendoza's claim for workers' compensation benefits under the TWCA is excluded from the Arbitration Agreement. Mendoza is currently receiving workers' compensation benefits under the statutory framework of the TWCA. Under the TWCA's no-fault statutory framework, employees are relieved of the burden of proving their employer's negligence, and it provides timely compensation for work-related injuries. Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 142 (Tex. 2003); Wagner, 315 F.Supp.3d at 924 (citing Alvarado, 111 S.W.3d at 142) (“The Texas legislature enacted the TWCA to expediently resolve injured workers' claims.”).

We therefore find, a claim for workers' compensation benefits, including an alleged surviving spouse's claim for death benefits under the TWCA, such as Mendoza's, is a separate and distinct right to benefits dictated by the administrative framework of the statute. See Wagner, 315 F.Supp.3d at 924 (“Under the TWCA, employees are relieved ‘of the burden of proving their employer's negligence,’ and in exchange, an employee is prohibited ‘from seeking common-law remedies from his employer,’ including an action for gross negligence resulting in his or her death.”); see also TEX. LAB. CODE ANN. §§ 408.001–.222 (workers' compensation benefits), 409.001–.024 (compensation procedures), 410.002–.308 (adjudication of disputes); 410.002 (“A proceeding before the division to determine the liability of an insurance carrier for compensation for an injury or death under this subtitle is governed by this chapter.”); § 410.104 (“If issues remain unresolved after a benefit review conference, the parties, by agreement, may elect to engage in arbitration in the manner provided by this subchapter. Arbitration may be used only to resolve disputed benefit issues and is an alternative to a contested case hearing.”). Because the right to workers' compensation benefits, including death benefits, arises within the TWCA itself, the statutory right to pursue such administrative benefits cannot be altered by contract. As such, Mendoza's workers' compensation claim is not subject to the Arbitration Agreement, but rather, is properly within the statutory framework of the TWCA.⁵

In conclusion, we find Mendoza's gross negligence claim is subject to the Arbitration Agreement, and Mendoza's claim for workers' compensation benefits is excluded from the Arbitration Agreement.

(3) Mendoza is bound to the Arbitration Agreement as a non-signatory

Mendoza further attempts to argue her claims fall outside the scope of the Arbitration Agreement because she cannot be bound to its terms as a non-signatory. Rush insists Mendoza's claims are dependent and derivative of Hoyos's rights, and because Hoyos signed a valid arbitration agreement, Mendoza's claims are bound by that agreement. We agree.

The Texas Supreme Court has held under Texas law, a decedent's pre-death arbitration agreement binds his or her wrongful death beneficiaries because the wrongful death cause of action is entirely derivative of Hoyos's rights. In re Labatt Food Service, L.P., 279 S.W.3d 640, 644–45 (Tex. 2009). In Labatt, the Court concluded an arbitration agreement between an employee and his employer, signed before the employee's death and requiring arbitration pursuant to the Federal Arbitration Act (FAA), requires the employee's wrongful death beneficiaries to arbitrate their wrongful death claims against the employer, even as non-signatories. Id. at 645–47. The Court reasoned that although the beneficiaries were seeking compensation for their own personal loss, they still stood in the decedent's legal shoes and were thus bound by the arbitration agreement. Id. at 644 (“[I]t is well established that statutory wrongful death beneficiaries' claims place them in the exact ‘legal shoes’ of the decedent, and they are subject to the same defenses to which the decedent's claims would have been subject.”). The Court has consistently held the right of statutory beneficiaries in a wrongful death action is “entirely derivative of the decedent's right to have sued for his own injuries immediately prior to his death.” Id. Similarly, we find Mendoza's claims are inherently derivative of Hoyos's rights. See id.

Furthermore, the Court held this includes enforcing binding arbitration agreements. Id. at 646 (rejecting beneficiaries' argument that agreements to arbitrate are different than other contracts, and they should not be bound by decedent's agreement, finding “[n]ot only would this be an anomalous result, we believe it would violate the FAA's express requirement that states place arbitration contracts on equal footing with other contracts.”); In re Golden Peanut Co., LLC, 298 S.W.3d 629, 631 (Tex. 2009) (holding decedent's wrongful death beneficiaries were derivative claimants and as such, were bound by employee's agreement to arbitrate although they had not signed the arbitration agreement). The Court explained,

If [employee] had sued for his own injuries immediately before his death, he would have been bound to submit his claims to arbitration. As derivative claimants under the wrongful death statute his beneficiaries are bound as well, ... and the trial court clearly abused its discretion by refusing to compel arbitration (internal citations omitted).

Id. Similarly, because we have found Mendoza's claims are derivative and dependent on Hoyos's rights, and because Hoyos signed a valid and enforceable arbitration agreement, we find Mendoza's claims are bound by that agreement.

C. Waiver of right to arbitration

Mendoza maintains the trial court did not err in denying Rush's motion to stay proceedings and compel arbitration because Rush waived its right to submit her gross negligence claim to arbitration, or, in the alternative, quasi-estoppel estops Rush from submitting the gross negligence claim to arbitration. According to Mendoza, Rush waived its right to compel arbitration as to the gross negligence claim because after Hoyos's death, Rush “proactively submitted a workers' compensation claim for death benefits for this work-related death” and accordingly, “[t]his tactic of filing with the TWCC unequivocally establishes that Appellant elected to protect itself outside of arbitration because it stood to benefit from such decision.” In other words, Mendoza argues because Rush chose to submit a workers' compensation claim under the TWCA rather than arbitration, therefore, Rush has waived its right to arbitrate the gross negligence claim, or in the alternative, should be estopped from submitting such claim to arbitration.

As discussed above, Mendoza's claim for workers' compensation benefits because of her husband's work-related fatal injury, was correctly submitted under the no-fault, administrative system created by statute. As established, Mendoza's claims for workers' compensation benefits arise out of, and are subject to, the TWCA. If Rush submitted Mendoza's claim for workers' compensation benefits under the no-fault, administrative framework of the TWCA, Rush did not waive its rights under the Arbitration Agreement as to Mendoza's gross negligence suit, which arises separate from and outside the TWCA.

There was no “election of remedies” as Mendoza suggests. Our reading of the Arbitration Agreement carves out workers' compensation benefits while tort claims are expressly subject to it. Accordingly, Rush did not waive its right to compel arbitration as to Mendoza's gross negligence claim by statutorily proceeding with the no-fault, administrative system of the TWCA for Mendoza's workers' compensation benefits based on Hoyos' work-related injury. See In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763 (Tex. 2006) (per curiam) (recognizing “a strong presumption against waiver under the FAA”).

D. The FAA's § 1 interstate commerce exception

Mendoza further asserts the trial court's denial of the motion to stay proceedings and compel arbitration should be affirmed because Hoyos belongs to a class of workers engaged in interstate commerce, thus exempting him from the FAA's coverage. If true, Mendoza standing in Hoyos's legal shoes, would be exempt from the FAA and instead be subject to the Texas Arbitration Act (TAA). See Forged Components, Inc. v. Guzman, 409 S.W.3d 91, 97 (Tex. App.—Houston [1st Dist.] 2013) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 171.002(a)(3), (c)(2)). We begin by determining whether Hoyos falls within a “class of workers engaged in foreign or interstate commerce” which would exempt him from the FAA's coverage. 9 U.S.C. § 1.

The FAA governs arbitration agreements in instances where the agreement governs “a transaction involving commerce.” 9 U.S.C. § 2. However, § 1 of the FAA excludes “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce” from its coverage. 9 U.S.C. § 1 (emphasis added). The U.S. Supreme Court has confined this language to exempt “contracts of employment of transportation workers.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109 (2001).

As the Court has observed, the FAA speaks of “workers,” rather than “employees” or “servants.” Sw. Airlines Co. v. Saxon, 142 S.Ct. 1783, 1788 (2022). The Court specified the word “workers” directs the interpreter's attention to “the performance of work.” Id. The word “engaged” similarly emphasizes the actual work that the members of the class, as a whole, typically carry out; a worker is therefore a member of a “class of workers” based on what he or she does at the company, rather than what the company does generally. Id. (“Saxon [the worker,] is therefore a member of a ‘class of workers’ based on what she does at Southwest, not what Southwest does generally.”).

Those subject to the exemption “must at least play a direct and ‘necessary role in the free flow of goods’ across borders.” Id. at 1790 (quoting Circuit City Stores, Inc., 532 U.S. at 121 (2001)). Stated differently, to qualify as a transportation worker, one must be personally, “actively ‘engaged in transportation’ of those goods across borders via the channels of foreign or interstate commerce.” Id. The focus is on what actual work is performed by the worker, rather than what the company does generally. Id. at 1788. Accordingly, we must determine whether Hoyos was a transportation worker within the meaning assigned by the Court in Saxon. See id.

Mendoza asserts Rush is an interstate commercial truck dealership and service center which is involved in interstate commerce. Therefore, it follows, Hoyos, as a Body Shop Technician Level II, sold and serviced commercial motor vehicles and parts used in interstate commerce, rendering him a worker engaged in interstate commerce. According to Mendoza, Hoyos “played a necessary role in keeping the commercial trucks on the interstate for the free flow of goods in interstate commerce, which mandates commercial motor vehicle transport on the public highways.” Further, Rush expected Hoyos “to repair and service commercial motor vehicles quickly to get such commercial vehicles back on the public interstate highways.”

According to Jacob Madrid, the general manager of Rush Truck Center-El Paso, at the time of his death, Hoyos was a Body Shop Technician Level II (BS-II). This position was a level two out of five possible levels. As a BS-II, Hoyos's primary duties consisted of preparing vehicles and work areas for body detailing, repairs, and cleanup. This mostly required taping, sanding vehicles, removing badging and decals, and conducting minor body detailing, such as bumper repairs and paint refreshing. On the day of his death, Hoyos was cleaning a vocational garbage disposal truck with soapy water to prepare it for re-painting. According to Rush, the service department primarily repairs and executes the maintenance of vehicles, while the body shop, which is where Hoyos worked, consisted of “cosmetic and minor body” detailing work that is unrelated to engine or drivetrain function.⁶

Mendoza cites Western Dairy Transport, wherein we previously held a truck mechanic was not a transportation worker exempt from the § 1 exclusion. Western Dairy Transport, LLC v. Vasquez, 457 S.W.3d 458, 465 (Tex. App.—El Paso 2014, no pet.). There, we utilized the eight Lenz factors established by the U.S. Eighth Circuit. Lenz v. Yellow Transportation, Inc., 431 F.3d 348, 352 (8th Cir. 2005). In Lenz, the Eighth Circuit formulated eight nonexclusive factors for determining whether an employee is a transportation worker. Id. The Lenz factors are as follows: (1) “whether the employee works in the transportation industry”; (2) “whether the employee is directly responsible for transporting the goods in interstate commerce”; (3) “whether the employee handles goods that travel interstate”; (4) “whether the employee supervises employees who are themselves transportation workers, such as truck drivers”; (5) “whether, like seamen or railroad employees, the employee is within a class of employees for which special arbitration already existed when Congress enacted the FAA”; (6) “whether the vehicle itself is vital to the commercial enterprise of the employer”; (7) “whether a strike by the employee would disrupt interstate commerce”; and (8) “the nexus that exists between the employee's job duties and the vehicle the employee uses in carrying out his duties.” Id.

We begin with the first Lenz factor and find the record does not support a finding that Rush is in the transportation industry. According to Jacob Madrid, Rush is not a trucking company and does not engage in the transportation of interstate commerce. Rush has the following departments: sales, service, parts, body, and finance. Rush's primary source of revenue is the sale of vehicles and parts. In 2019 and 2020, Rush derived 83% of its revenue from sales, which included parts, and heavy duty and medium duty trucks. The service department and body shop, combined, produced approximately 7% of Rush's total revenue. The body shop, which is where Hoyos worked, produced 4.3% of Rush's total revenue. During the deposition of Sassaman, Rush's business model from its website was discussed:

Mendoza's counsel: And just on the Maintenance and Repair Service, and it says, Full-Service Truck Maintenance and Repair Service. At the very top, At Rush Truck Centers, our goal is to increase your uptime and lower your operating costs, and complete maintenance solutions for all makes and models of commercial vehicles ...

Sassaman: Yes.

Mendoza's counsel: Okay. And that's what you do, you are involved in what we -- what is known in the trucking industry, under the Federal Motor Carriers Safety Act and the regulations that are defined as commercial motor vehicles, that's what your company deals with.

...

Sassaman: That is part of our business, yes.

Mendoza'a counsel: And “commercial motor vehicle” means a vehicle over 10,000 pounds, correct?

Sassaman: I believe so, yes.

Mendoza'a counsel: And for you -- for use in interstate transportation and commerce, correct?

...

Sassaman: It can be used for that, yes.

Mendoza's counsel: And when you say “to increase your uptime and lower your operating costs,” this is for the trucking industry, to tell them, when they come to Rush Truck Center, We'll fix your truck if you've got a problem with it and we'll get you back on the road as quickly as we can so that you lose as little time and expense as necessary to fulfill your interstate trucking business or whatever trucking business you are doing, right?

...

Sassaman: The goal of our service department is to repair trucks adequately and safely so they can be back on the road as fast as possible.

Hoyos did not work in the service department; he worked in the body department as a BS-II. Continuing with the deposition of Sassaman, he was asked:

Mendoza's counsel: Would you say more than -- would you say most of your business is involved in interstate transportation commerce trucking?

...

Sassaman: No. What I'm saying is: What those -- what the customer uses the vehicle for is a wide variety of services. I can't say for sure, with certainty, that everything is interstate.

...

Some of our customers that we sell trucks to and service may indeed to interstate travel. But again, percentage-wise and such, I couldn't answer that.

Notably, the federal district court for the Central District of California concluded a mechanic working on engines and drivetrains of the trucks at a Rush Truck Centers of California-Whittier location, was not a transportation worker. Fuentes v. Rush Truck Centers of California, Inc., No. 18-10446, 2019 WL 3240100, at *4–5 (C.D. Cal. Mar. 11, 2019) (“First, it is undisputed that Plaintiff, who worked as a mechanic at Rush Truck Centers, was not personally responsible for transporting goods.... Second, it does not appear that [Rush] engaged in business that was closely proximate to either the transportation industry or the transportation and delivery of goods.”). The Fuentes court also found that Rush's primary mission is not transporting and moving goods, but rather, selling automobiles. Id. at *5. Additionally, the Fifth Court of Appeals in Dallas, in applying Saxon, held that because recruiters of truck drivers do not move any goods, and there was no showing that recruiters were necessary for transportation, the FAA's § 1 exclusion did not apply to truck driver recruiters. Gordon v. Trucking Res. Inc., No. 05-21-00746-CV, 2022 WL 16945913, (Tex. App.—Dallas Nov. 15, 2022, no pet.) (mem. op.). Here, Rush is a network of truck dealerships, and a Texas federal court has confirmed that vehicle dealerships are not in the transportation industry. See Tran v. Texan Lincoln Mercury, Inc., No. H-07-1815, 2007 WL 2471616, at *5–6 (S.D. Tex. Aug. 29, 2007) (mem. op.) (holding dealership was not engaged in “transportation industry” and thus employee was not a “transportation worker” under § 1 of the FAA). Accordingly, the record does not support a finding that Rush is in the transportation industry.

As for whether Hoyos was directly responsible for transporting goods in interstate commerce (second Lenz factor), and whether Hoyos handled goods that travel interstate (third Lenz factor), we find nothing in the record to show Hoyos ever transported or handled goods in interstate commerce. Hoyos was also not a supervisor (fourth Lenz factor). The record also does not support he was not within a class of employees for which special arbitration existed when Congress enacted the FAA (fifth Lenz factor). The record does not support or indicate Hoyos ever used or drove a vehicle, at all, as part of his duties (sixth Lenz factor). Additionally, the work performed by Hoyos amounted to a minimal percentage of Rush's total annual revenue—4.3%. Moreover, the record does not affirmatively establish Hoyos was involved in engine or drivetrain work, or the trucks Hoyos serviced as a BS-II traveled interstate. Accordingly, a strike by Hoyos and his class of workers, BS-IIs, would likely not disrupt interstate commerce (seventh Lenz factor). Lastly, as for the nexus between Hoyos's duties and the vehicles used in carrying out his duties, we emphasize the record does not contain any indicia Hoyos ever used or drove a vehicle as part of his duties, and we defer to our analysis under the Saxon framework, wherein we described the nature of Hoyos's work as a BS-II. Hoyos's duties, as described in the record, did not involve engine or drivetrain work, but rather, what was described as “cosmetic and minor body repairs.” Applying the Lenz factors to a BS-II, as that position is explained in the record before us, we further find that Hoyos was not a worker engaged in interstate commerce.

We find Hoyos's work tasks were not “necessary” for interstate commerce as his work primarily consisted of “cosmetic and minor body” detailing work and thus did not play a “direct and ‘necessary role in the free flow of goods.’ ” Saxon, 142 S.Ct. at 1790. The record does not conclusively show Hoyos engaged in the transportation of goods across borders via the channels of interstate commerce. See id.; see also Gordon, 2022 WL 16945913 at *4 (explaining “[t]he record does not show that recruiters play a direct and necessary role in the transportation of goods across borders. The act of recruiting truck drivers for transportation companies does not actually move any goods”). Similarly, the record before us does not support Hoyos, as a BS-II, played a direct and necessary role in the transportation of goods across borders, or that conducting cosmetic and minor body work, actually moved any goods. See Gordon, 2022 WL 16945913 at *4.

Rather, according to Jacob Madrid, during the three weeks of Hoyos's employment as a BS-II, his work “almost entirely consisted of preparing vehicles for painting by sanding, taping, masking, and wrapping”[.] Hoyos also occasionally completed repairs such as “bumper repairs and paint refinishing.” See id.

Accordingly, Hoyos is not exempt as a transportation worker, and the Arbitration Agreement is properly within the FAA's coverage.

CONCLUSION

We have found the Arbitration Agreement valid and Mendoza's gross negligence claims pursuant to Article 16, § 26 of the Texas Constitution and § 408.001 of the Texas Labor Code is subject to the Arbitration Agreement. Rush did not waive its right to arbitration, and the record before us does not support a finding Hoyos was a transportation worker.

For these reasons, we reverse the trial court's judgment denying Rush's motion to stay proceedings and compel arbitration. We reverse the trial court's judgment denying Rush's motion to stay proceedings and compel arbitration as to Mendoza's claim for gross negligence.

DISSENTING OPINION

GINA M. PALAFOX, Justice

Based on the protection afforded by the Texas Constitution, by laws of the State of Texas, and by controlling precedent of the Supreme Court of Texas, I would conclude that Appellees' gross negligence claim is expressly excluded, as a matter of law, from the scope of the arbitration agreement. See TEX. CONST. art. XVI, § 26; see also TEX. LAB. CODE ANN. §§ 408.001(b), 408.181, 408.186; Mo-Vac. Serv. Co., Inc. v. Escobedo, 603 S.W.3d 119, 135 (Tex. 2020) (Guzman, J., concurring).¹ Moreover, such exclusion applies regardless of whether or not the agreement is enforceable. Additionally, I would further conclude that the arbitration agreement itself provides that claims for workers' compensation benefits and other claims that are “not subject to arbitration under current law,” shall be excluded from binding arbitration. In my view, this clause applies to Appellees' claim for gross negligence seeking to recover exemplary damages for the employer's conduct that proximately caused a work-related death. See Zacharie v. U.S. Nat. Res., Inc., 94 S.W.3d 748, 758 (Tex. App.—San Antonio 2002, no pet.) (recognizing deceased worker's children's claim was brought under Article XVI, § 26 of the Texas Constitution and the Worker's Compensation Act).

Because a lawful basis exists to deny the motion to compel arbitration, I would affirm the trial court's ruling in its entirety. Because the majority concludes otherwise, I respectfully dissent.

Court of Appeals of Texas, El Paso.

TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Appellant,

v.

Rita TIDWELL, Appellee.

No. 08-22-00130-CV

|

April 28, 2023

Appeal from the 41^ST Judicial District Court of El Paso County, Texas (TC# 2018dCV3019)

Attorneys & Firms

Oscar Mendez, El Paso, for Appellee.

Sheaffer Fennessey, for Appellant.

Before Rodriguez, C.J., Palafox, J. and Soto, J.

OPINION

LISA J. SOTO, Justice

*1 Appellee Rita Tidwell filed a lawsuit against her former employer, Appellant Texas Department of Criminal Justice (TDCJ), alleging her employment was terminated in retaliation for filing a workers’ compensation claim after she was injured on the job. TDCJ filed a plea to the jurisdiction, claiming immunity from suit, which the trial court denied. TDCJ appeals, contending Tidwell failed to allege sufficient jurisdictional facts to waive its immunity.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2012, Tidwell started working at the Sanchez State Jail, a minimum security facility, as a jail commissary assistant manager. In 2016, she became an inventory specialist; her responsibilities included ordering supplies; stocking and retrieving supplies from the jail’s supply office and uniform room; and balancing her department’s budget on a monthly basis.

A. Tidwell’s accident

On March 1, 2017, Tidwell was unpacking a large shipment of uniforms and stocking them on shelves in the jail’s uniform room. Tidwell used a four-foot stepladder to place a set of uniforms on a shelf that was approximately six- to seven-feet high. At a height of 4’11” and with narrow space, Tidwell routinely placed the ladder sideways in relation to the shelving for better access to the high shelves. That day, as she was descending the ladder, it began to move, causing her to lose her footing and fall backwards into the shelving. It is undisputed that Tidwell sustained injuries to the right side of her body, including her ankle, hand, elbow, and knee in the fall.

The jail’s medical personnel and the unit’s risk manager, Vicente Quidachay, were summoned to the scene and determined that Tidwell should be taken to a nearby hospital. According to Tidwell, Quidachay helped her fill out a workers’ compensation form, which required her to choose how she would use her accrued sick and vacation leave if she lost time from work and when she would begin receiving any workers’ compensation benefits to which she might be entitled.¹ As discussed in more detail below, she approved the option that required her to use all of her accrued sick and vacation leave before she would be entitled to receive workers’ compensation benefits.

Quidachay drove Tidwell to the hospital, where he assisted her with filling out additional forms, as she was unable to do so given the injuries to her right hand. Quidachay stayed with Tidwell at the hospital until her husband arrived.

B. Tidwell’s placement on modified/light duty

At her doctor’s direction, Tidwell stayed home from work through March 6, 2017, but was cleared by her primary care physician to return to work on modified/light duty on March 7. Upon her return, she signed a form entitled, “Offer of Temporary Alternate or Modified Duty Assignment,” in which she agreed to return to work in the same position with the same pay but with several medical restrictions, including no use of her right hand and a limit of two hours of standing and walking each day, as well as the requirement that she wear a sling and a walking boot as recommended by her doctor.²

*2 Tidwell’s duties were purportedly limited to typing and answering the phone; the modified duty restrictions indicated “you shall only be assigned tasks consistent with your physical abilities.” TDCJ assigned an officer-in-training to assist Tidwell with the job duties she could not perform, such as retrieving items from the storage room.

Tidwell accepted the modified job offer. As it was underway, the assigned officer-in-training was called away to do other work on various occasions; when she asked the captain for help, she was told that they were too “short” in staffing to provide it to her. Tidwell felt pressured to get her work done, so she ended up working beyond her restrictions. And although TDCJ had previously allowed designated inmates to assist her with some of her tasks, according to Tidwell, for safety reasons she was not supposed to be alone with inmates after her injury. At the same time, Tidwell was exposed to inmates as she went to and from her work area, where she either had to use the stairs in violation of her restrictions or use a slippery ramp, which posed a safety hazard.

Tidwell requested a different light-duty position that would better fit her restrictions (in open positions in the mailroom and the inmate office) and would remove her from the presence of inmates but was told her pay was too high to place her in one of those positions. Warden Parker indicated that HR assigns light-duty positions based on the needs of TDCJ. And HR Representative Rivas explained that when Tidwell was offered the position with modifications, it was her choice to accept it or not. Tidwell felt compelled to accept the offer understanding that if she did not accept it, her workers’ compensation payments would be reduced.

C. Tidwell’s exhaustion of her leave options

In accordance with TDCJ policy, which set forth a twelve-week limitation for an employee to be on modified/light duty, Tidwell’s modified job assignment lasted until May 30, 2017.³ During that time, Tidwell continued receiving treatment for her injuries and provided TDCJ with status reports from her treating physician, who continued to impose restrictions on Tidwell thereby limiting her ability to fully perform her job.⁴ When her twelve-week modified job assignment ended on May 30, 2017, her treating physician had still not released her to return to work without restrictions. Tidwell asked if she could move to a secretarial position but was told that the pay differential was too great and she would not get that job, so she did not apply for it.⁵ Tidwell did not work and was paid her full salary until she exhausted all of her accrued sick leave and vacation time on July 3, 2017. Tidwell began receiving her workers’ compensation benefits the same month.

*3 In a notice dated July 3, 2017, TDCJ notified Tidwell it was placing her on leave without pay (LWOP) for a maximum period of 180 days. The notice required Tidwell to provide TDCJ with status reports from her doctor during her absence and present a “release to return to work” form if and when her doctor released her to work. It also informed her that if she had a permanent disability, her return to work would be governed by the Americans with Disability Act (ADA).

While on LWOP in October 2017, Tidwell had surgery on her right hand, which improved her condition but did not restore her hand to full function. Tidwell provided TDCJ a status report dated November 14, 2017, from her orthopedic physician stating she was “unable to perform [her] job duties” through December 27, 2017. Tidwell subsequently provided TDCJ a final status report dated December 27, 2017, from the same physician releasing Tidwell to work light duty only with continued restrictions on her activities, including limitations on lifting, “pushing/pulling” and “grasping/squeezing” through January 31, 2018.

D. Tidwell’s administrative separation from TDCJ

In a notice dated January 2, 2018, TDCJ notified Tidwell that her LWOP had expired and she was being administratively separated from her employment effective January 3, 2018, due to exhausting her leave entitlements.⁶ The notice further stated “[i]f you are able to return to TDCJ employment at a later date, application should be made through the Employment Section, Human Resources Division.” Tidwell confirmed that she could reapply once her restrictions were removed. She did not apply for any other positions at TDCJ after being separated from her employment and did not make a claim that she was permanently disabled or request an accommodation under the ADA.

E. Tidwell’s lawsuit

In March 2019, Tidwell filed her lawsuit against TDCJ, alleging it wrongfully discharged her in violation of Chapter 451 of the Texas Labor Code for filing her workers’ compensation claim. She also alleged that TDCJ created a hostile working environment after she filed her claim, contending, among other things, that TDCJ had failed to provide her with a job she could perform with her restrictions and “worked [her] against her restrictions” during her 12-week modified job assignment. TDCJ filed an answer and special exceptions, seeking to determine if Tidwell intended to raise a separate claim of hostile working environment or if this allegation was part of her Chapter 451 claim of retaliation. It appears that Tidwell did not respond, and the trial court did not rule on the request.⁷

F. TDCJ’s plea to the jurisdiction

*4 Following several months of discovery, TDCJ filed a plea to the jurisdiction and a traditional motion for summary judgment, contending it had governmental immunity from Tidwell’s retaliation suit and Tidwell had no evidence to support a prima facie case of retaliation that would have waived its immunity. In particular, TDCJ alleged she had no evidence of a causal connection between the filing of her workers’ compensation claim and her termination. TDCJ argued that the undisputed evidence showed it terminated Tidwell solely due to exhausting her leave options, as required by TDCJ’s uniformly enforced leave policy. Tidwell responded to the plea, arguing, among other things, that TDCJ failed to uniformly enforce its absence control policy and she had circumstantial evidence to support an inference that TDCJ’s real reason for terminating her was retaliation for filing a workers’ compensation claim.

Following a hearing, the trial court denied TDCJ’s plea to the jurisdiction and motion for summary judgment in its entirety. This interlocutory appeal ensued.

II. ISSUES ON APPEAL

In a single issue, TDCJ contends that the trial court erred by denying its plea to the jurisdiction, arguing Tidwell failed to come forward with sufficient jurisdictional evidence to raise a question of fact on her retaliation claim and therefore did not establish that the agency waived its immunity.

III. STANDARD OF REVIEW AND APPLICABLE LAW

A. Pleas to the jurisdiction and the State’s immunity

In Texas, governmental units, like TDCJ, enjoy sovereign immunity from lawsuits except where the Legislature waives immunity. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004); see also Flores v. Tex. Dep’t of Criminal Justice, 634 S.W.3d 440, 450 (Tex. App.—El Paso 2021, no pet.) (citing Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011)). Sovereign immunity deprives a trial court of subject-matter jurisdiction. Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 636 (Tex. 2012). The Legislature has provided a limited waiver of immunity for claims brought against governmental units alleging violations of Chapter 451 of the Texas Labor Code, which prohibits an employer from retaliating against an employee for filing a workers’ compensation claim. See Tex. Dep’t of Motor Vehicles v. Bustillos, 630 S.W.3d 316, 328 (Tex. App.—El Paso 2021, no pet.) (citing Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 2 (Tex. 2000)) (recognizing that a Chapter 451 cause of action applies against a state agency employer as it does against a private employer); see also TEX. LAB. CODE ANN. § 451.001(1) (“A person may not discharge or in any other manner discriminate against an employee because that employee has ... filed a workers’ compensation claim in good faith.”). However, the waiver extends only to suits in which the pleadings state a prima facie claim for an actual violation. See Bustillos, 630 S.W.3d at 330; see also Tex. Dep’t of Criminal Justice v. Flores, 555 S.W.3d 656, 661 (Tex. App.—El Paso 2018, no pet.) (citing Mission Consol., 372 S.W.3d at 636) (discussing waivers of immunity under the Texas Human Rights Act). If the plaintiff fails to state a prima facie case of a Chapter 451 violation, the governmental unit retains its immunity from suit. Bustillos, 630 S.W.3d at 330 (citing Mission Consol., 372 S.W.3d at 636).

Here, the TDCJ may properly assert immunity from suit through a plea to the jurisdiction or motion for summary judgment. Id. at 325-26 (citing Texas Dep’t of Transportation v. Jones, 8 S.W.3d 636, 637 (Tex. 1999) (per curiam); NME Hosps., Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex. 1999)). “We review a trial court’s ruling on a plea to the jurisdiction de novo.” Id. at 326 (citing Miranda, 133 S.W.3d at 228). In a plea to the jurisdiction, a party may challenge either the pleadings or the existence of jurisdictional facts, or both. Id. at 326–27. When, as here, a plea challenges the existence of jurisdictional facts, we consider the relevant evidence submitted by the parties to determine if a fact issue exists on the question of whether the plaintiff has set forth a prima facie case in support of her claim. Id. (citing Miranda, 133 S.W.3d at 227); see also Tex. Dep’t of Transp. v. Lara, 625 S.W.3d 46, 52 (Tex. 2021) (when a defendant challenges the existence of jurisdictional facts with supporting evidence, the court must move beyond the pleadings and consider the proffered evidence) (citing Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018)).

*5 In such cases, “this standard generally mirrors that of a summary judgment under Texas Rule of Civil Procedure 166a(c).” Bustillos, 630 S.W.3d at 326 (quoting Miranda, 133 S.W.3d at 228). Under this standard, if the governmental unit asserts and supports with evidence its contention that the trial court lacks subject-matter jurisdiction, we simply require the plaintiffs, when the facts underlying the merits and subject-matter jurisdiction are intertwined, to show that there is a disputed material fact regarding the jurisdictional issue. Id. In determining whether a material fact issue exists, we examine the evidence presented by both parties, and we take as true all evidence favorable to the plaintiff, to include indulging every reasonable inference and resolving any doubts in favor of the plaintiff. Id. In doing so, however, we cannot disregard evidence necessary to show context, and we cannot disregard evidence and inferences unfavorable to the plaintiff if reasonable jurors could not. Alamo Heights, 544 S.W.3d at 771 (citing City of Keller v. Wilson, 168 S.W.3d 802, 811–12, 822–23, 827 (Tex. 2005)).

B. Labor code Chapter 451 and Tidwell’s prima facie case

To overcome a plea to the jurisdiction or motion for summary judgment, Tidwell has the burden of making prima facie showing that she filed a workers’ compensation claim in good faith and there is a causal link between her filing the claim and TDCJ discharging her. See Bustillos, 630 S.W.3d at 330 (citing TEX. LAB. CODE Ann. § 451.001(1) (“A person may not discharge or in any other manner discriminate against an employee because the employee has ... filed a workers’ compensation claim in good faith.”); Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 399 (Tex. App.—Houston [1st Dist.] 2017, no pet.)). To establish a causal connection between her firing and filing her workers’ compensation claim, Tidwell is not required to show that filing the claim was the sole cause of TDCJ terminating her; instead, she must demonstrate that but for filing the claim, the termination “would not have occurred when it did.” Id. (citing Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 319 (Tex. 2015); Cont’l Coffee Products Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996); Hernandez v. Am. Tel. & Tel. Co., 198 S.W.3d 288, 291 (Tex. App.—El Paso 2006, no pet.)).

“This causal connection may be established by either direct or circumstantial evidence.” Bustillos, 630 S.W.3d at 330 (citing Kingsaire, 477 S.W.3d at 312; Hernandez, 198 S.W.3d at 291); see also Echostar Satellite L.L.C. v. Aguilar, 394 S.W.3d 276, 287 (Tex. App.—El Paso 2012, pet. denied). The Supreme Court has identified several factors that a court may consider as circumstantial evidence of a causal link. See Bustillos, at 330 (citing Cont’l Coffee, 937 S.W.2d at 451). These factors are: “(1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false.” (collectively, the Continental Coffee factors). Id. (citing Cont’l Coffee, 937 S.W.2d at 451).⁸

However, terminating an employee as required by a uniformly enforced, reasonable absence-control policy does not constitute retaliatory discharge; in that situation, circumstantial evidence that could otherwise support a causal link is immaterial. See Tex. Dep’t of Family & Protective Services v. Parra, 503 S.W.3d 646, 666 (Tex. App.—El Paso 2016, pet. denied) (citing Kingsaire, 477 S.W.3d at 312; Cont’l Coffee, 937 S.W.2d at 451). In Kingsaire, the court held an employer not liable for retaliation where Kingsaire uniformly enforced its policy by terminating employees who did not return to work immediately after their FMLA leave expired. Kingsaire, 477 S.W.3d at 316. Similarly, in Haggar, the court held that an employer was not liable where it terminated an employee pursuant to a one-year absence-control policy where there was evidence that the employer “failed to officially discharge one employee who had been on leave for over a year” but did not pay her. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 389 (Tex. 2005). The court reasoned that treating the one employee in this manner did “not amount to more than a scintilla of evidence that the policy was not uniformly enforced or that Haggar’s explanation for firing [the employee] was false” in the absence of circumstantial evidence of discriminatory application of the absence-control policy or evidence that Haggar’s explanation for the termination was false. Id. at 389; see also Texas Div.-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 313-14 (Tex. 1994) (per curiam) (employee did not have a valid anti-retaliation case where he offered no evidence to controvert employer’s explanation that he was terminated solely for violating a uniformly enforced collective bargaining agreement three-day absence rule).

*6 On the other hand, as we recognized in Parra, if the employer’s absence-control policy gives it the discretion not to terminate an employee who has violated the policy, it cannot be considered the type of mandatory absence-control policy that will protect an employer from a retaliation claim. See Parra, 503 S.W.3d at 667 (provision in employer’s policies cannot be considered a mandatory absence-control policy because it unambiguously provided the employer with the discretion not to terminate an employee who had exhausted her FMLA leave).

IV. TDCJ’S MANDATORY ABSENCE-CONTROL POLICY

Here, TDCJ contends Tidwell’s termination was required by TDCJ’s mandatory, uniformly enforced absence-control policy after she exhausted all of her leave options. Tidwell contends the agency’s leave policies are not, and cannot be, uniformly enforced in part due to the fact that TDCJ offers employees different options regarding how they may use their leave when they are injured on the job, which results in an unequal application of its leave policies depending on the employee’s election and situation.

The first election, which Tidwell chose, requires an injured employee to use all of her accrued sick leave and vacation leave before receiving workers’ compensation payments, in which case the employee is paid at her normal pay rate by the agency until she runs out her leave time. Under this election, once the employee’s leave entitlements are exhausted, the employee is then placed on LWOP-Medical status for a maximum period of 180 days⁹ (and if eligible, may receive workers’ compensation benefits). As TDCJ manager Amanda Flinn explained, and as reflected in TDCJ’s written policies, the leave period cannot be extended for any reason (unless the employee is eligible for FMLA or LWOP military by law).¹⁰ Under this policy, if the employee is not released to full-duty status at the expiration of her 180-day LWOP period, the agency must administratively separate her.¹¹

Tidwell points out that under that second and third options, the employee may freeze either all or a portion of her accrued vacation time; therefore, unlike with the first option, the employee selecting the second or third option is not required to exhaust her vacation time before being placed on LWOP status.¹² TDCJ’s leave policy expressly distinguishes between the options, providing “[a]ll of an employee’s accrued leave balances and administrative leave shall be exhausted before an employee is eligible to use LWOP-Medical, unless the employee is on workers’ compensation and has frozen part or all of the employee’s accrued leave.” Moreover, unlike the employee opting for the first election who must exhaust all of her leave before receiving workers’ compensation payments, the employee opting for the second or third option may start receiving workers’ compensation payments after a seven-day waiting period. In addition, unlike the employee opting for the first election, this employee is not eligible to apply for extended sick leave or the sick leave pool to receive any donated sick leave. When this employee has exhausted her sick leave and is unable to return to work, she may then be placed on LWOP for 180 days; however, if she is not fully released to return to work after the LWOP period expires, she will then be placed on the active payroll for purposes of exhausting her previously frozen vacation time. If she is still not released to full-duty after her vacation is expired, the agency must administratively separate her from her employment.

*7 Accordingly, Tidwell is correct that there are differences in how the two sets of employees are treated—at least in terms of the type of sick leave for which they may be eligible. Regardless of which election the employee makes (and which order she exhausts her leave entitlements), under its absence control policies, TDCJ must terminate an employee who has exhausted all of her leave entitlements and is unable to return to work on full-duty status. There is no evidence of any instance in which TDCJ has deviated from this policy or any employees who were not terminated after their leave entitlements expired.¹³

V. CAUSAL LINK ANALYSIS: CONTINENTAL COFFEE FACTORS

Even if we were to assume TDCJ did not uniformly enforce its leave policy due to the differences in sick leave access, Tidwell has not come forward with sufficient circumstantial evidence to support an inference that there is a causal connection between the filing of her workers compensation claim and her termination, as required by Continental Coffee. While there is not a single dispositive Continental Coffee factor, to meet her burden, Tidwell “must produce ‘sufficient circumstantial evidence on a majority of these factors.’ ” See Parra, 503 S.W.3d at 665 (citing Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 469 (Tex. App.—El Paso 2012, no pet.)) Regarding the first factor, TDCJ tacitly admits that it knew about Tidwell’s workers’ compensation claim filing at the time of her termination. We turn to examine the remaining factors next.

A. Evidence that TDCJ had a negative attitude toward Tidwell’s injuries

Tidwell contends that TDCJ exhibited a negative attitude toward her injuries in six ways.

1. Tidwell’s initial injury report and her workers’ compensation election

First, Tidwell argues TDCJ minimized her injuries in its initial injury report by only referring to her sprained ankle and not to the other injuries she suffered. Pursuant to TDCJ policy, Tidwell was responsible for filling out that report, and Tidwell approved and signed the report listing only her sprained ankle. In addition, the record reflects that after receiving Tidwell’s doctor’s reports, TDCJ acknowledged that she had suffered additional injuries and never challenged the corresponding work restrictions her doctors placed on her.

Tidwell also complains that Quidachay rushed her into making an election on the workers’ compensation form, in essence pushing her into making the first election, and signing the injury report rather than giving her time to determine which of the elections would be best.¹⁴

2. Quidachay’s presence in Tidwell’s hospital room

Second, Tidwell contends that Quidachay was in her hospital exam room without a HIPAA release in violation of HIPAA and without her consent in an attempt to exhibit power over her. Tidwell did not indicate that she had any objections or concerns about him being present, and it appears that she willingly allowed him to transport her to the hospital and wait with her until her husband arrived. We note, however, that Quidachay testified without contradiction that he was not in Tidwell’s exam room while her doctors were treating her. There is nothing in the record to indicate that Quidachay disclosed any of her personal information to a third party. See generally 45 C.F.R. § 164.502 (a) (providing that a “covered entity or business associate may not use or disclose protected health information,” except as otherwise permitted by law).

3. The nature of Tidwell’s modified-duty assignment

*8 Third, Tidwell complains about her modified-duty assignment, contending that TDCJ “worked [her] against her restrictions” by requiring her to shelve items in the storage room during her modified/light-duty assignment. Tidwell explained that she was assigned typing and answering phones (according to the light-duty offer) and was provided an officer-in-training to assist her with tasks she was restricted from performing. Tidwell indicated that she violated the work restrictions when her assistant was called away to other duties or otherwise absent because she felt pressured to get the work done.¹⁵ Tidwell stated that her requests to her immediate supervisor for help when the officer-in-training was not present were not met due to short-staffing. She did not complain to anyone above her immediate supervisor about this or wait for the assistant to complete tasks.

Assistant Warden Amonett indicated that he had no knowledge of any problems with the way she was performing those duties or whether she was being worked against her restrictions. He further articulated that “[s]he was not allowed to do anything outside her restrictions that the doctor gave her” regardless of where she was assigned. Warden Parker echoed the same sentiment: “We place them in an area [ ] where they have the opportunity to work inside of their restrictions. But ... it’s the employee’s responsibility to ensure they are not working outside of those restrictions. And if the departmental supervisor in which they are working for requests them to do that, then they should tell the supervisor, [t]hat’s not within my work restrictions.” And he explained the employee should go all the way up the chain of command to complain if their supervisors disregarded the issue. HR Representative Rivas also reiterated that it’s “their responsibility not to work against their restrictions” and that she would “make sure the employee understood what their restrictions were.”

4. Requiring Tidwell to use the stairs to reach her office

Fourth, Tidwell complains that TDCJ required her to use a certain entrance to the jail, which required her to be exposed to inmates and use the stairs, thereby violating her doctor’s restrictions. Tidwell explains that she was called into Assistant Warden Amonett’s office because she was using the stairs instead of the ramp. Tidwell told both him and Warden Parker that she was “not going to go up that ramp. ... That is where they dump the used oil.... And I had a plastic base on the bottom of my boot; and going up that ramp, it’s slippery.” Tidwell told them there were only four stairs so she would go up the stairs slowly one at a time instead of using the ramp; after she told him “[n]o” to the ramp, Amonett reportedly told her “Well, then, just be careful.” Tidwell further explained in her deposition “It would have been easier if I could have went [sic] through the commissary, ... and then I wouldn’t have had to go [up] any step or ramp. But the policy is that if you don’t work in the commissary, you’re not going in the commissary unless you’re a correctional officer. So I could not go through the commissary.”

5. The instructional letter

*9 Fifth, Tidwell contends that despite Captain Perez and Assistant Warden Amonett being aware of her routine use of the ladder in this way due to her height and inability to reach the highest shelves, due to the tight space in the uniform room, and despite having requested and been denied a different ladder in 2016 when she asked, TDCJ issued a letter of instruction faulting her for her injuries. It indicated she had used the ladder incorrectly and that this incorrect usage of the ladder was the cause of her injuries.¹⁶ Assistant Warden Amonett stated in his deposition that he had “never seen her use the ladder incorrectly before, or correctly.” In response to the question “[d]id you ask any supervisor, any co-workers, if they had seen her use that ladder in that specific manner in the past?” Assistant Warden Amonett, who assisted in the investigation, stated “No. They receive safety training on appropriate climbing. I didn’t interview—there was nobody else that witnessed it.” Amonett was on the Incident Review Board and initially recommended formal discipline for the manner in which Tidwell used the ladder, but his superior, Warden Parker, reduced it to a letter of instruction.

The resulting instructional letter states it is “designed to create a positive change in employee behavior.” Tidwell indicated that she was not disciplined for the way she used the ladder nor disciplined in connection with the letter.

6. Alleged failure to accommodate

Sixth and finally, Tidwell contends TDCJ failed to accommodate her by not offering her a second modified job after her first modified job assignment ended. TDCJ’s policies expressly state that it is required to offer an injured employee a twelve-week modified job assignment, and if the employee is not able to return to work on full duty after that time, she must be placed on the appropriate leave status. There is an accommodation policy that provides for TDCJ to offer a modified job assignment where an employee with a permanent disability requests a reasonable accommodation under the ADA, which Tidwell indicates she did not do.

The only other way to move to another position, according to TDCJ HR representative Amanda Flinn, is if the employee formally applies for the position and goes through the selection process, then each of the candidates meeting the minimum qualifications for the position gets an interview; Flinn explained “[t]here’s is no deviation from that.” Tidwell explains that she wanted to transfer to a secretarial position even before her leave time was exhausted and asked but was told that she would not get the job because the pay was too low, so she never applied.

Although we acknowledge the points Tidwell raises, she has not explained how the evidence above, taking her statements as true, constituted a negative attitude on the part of TDCJ toward her injuries. And as to the instructional letter, the Texas Supreme Court has recognized that an employer is entitled to investigate the cause of an accident and that doing so does not support an inference that an employer harbored a retaliatory intent in subsequently terminating an employee. Cont’l Coffee, 937 S.W.2d at 452.

B. Evidence that TDCJ treated similarly situated employees differently

*10 Tidwell next argues that TDCJ treated similarly situated employees differently, which constitutes circumstantial evidence that she was discriminated against based on filing her workers’ compensation claim. In support of her argument, Tidwell claims that an injured officer was given a modified job assignment allowing her to work in the mailroom while TDCJ denied Tidwell’s request to be given the same assignment. As TDCJ points out, however, Tidwell was not similarly situated to the officer, as they performed entirely different jobs and had entirely different responsibilities and supervisors. See Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 312 (Tex. 2020) (recognizing that employees are similarly situated “if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct,” and they are not similarly situated if they “hold different jobs.”). Moreover, there is no evidence the officer filed a workers’ compensation claim or that she was placed on LWOP and was thereafter treated more favorably than Tidwell. See Bustillos, 630 S.W.3d at 336 (recognizing that to be similarly situated for purposes of a workers’ compensation retaliation case, the other employee must have also filed a workers’ compensation claim).

C. Evidence TDCJ failed to follow its policies

Tidwell also claims that TDCJ failed to follow its own policies after she was injured with respect to both her modified job assignment and her termination. Tidwell claims that TDCJ did not follow its policies when she was on modified light duty, as she was required to access her office through a gate into an inmate area where metal was prohibited. Tidwell explained that the walking boot prescribed by her doctor had metal in it, and working with inmates while having metal on her caused her distress and anxiety.¹⁷

We are unable to connect the fact that TDCJ may have required Tidwell to enter a restricted area while wearing her boot with metal components in violation of a safety policy to the question of whether she was terminated against TDCJ policies. See generally Bustillos, 630 S.W.3d at 335–36 (the dispositive issue is “not whether an employer ever engaged in any activity against their own policies; rather, we must ask whether an employer terminated an employee against its own policies.”). Tidwell has presented no evidence to support her claim that she was terminated against TDCJ policies.

D. Evidence that stated reason for discharge was false

In the last of the Continental Coffee factors, Tidwell seeks to establish that TDCJ’s stated reason for terminating her, i.e., that she exhausted her leave options, was pretextual, contending TDCJ provided different and conflicting reasons for her termination. As a preliminary matter, we recognize that an employer providing conflicting reasons for terminating an employee can be considered circumstantial evidence giving rise to an inference of pretext. See Univ. of Tex. Sw. Med. Ctr. v. Vitetta, No. 05-19-00105-CV, 2020 WL 5757393, at *21 (Tex. App.—Dallas Sept. 28, 2020, no pet.) (mem. op.) (“Doubt in the employer’s asserted reason can be established in a number of ways, including by proof that the employer provided shifting or different reasons for its action at different times.”) (citing Caldwell v. KHOU-TV, 850 F.3d 237, 242 (5th Cir. 2017) (“employer’s inconsistent explanations for an employment decision ‘cast doubt’ on the truthfulness of those explanations”)). However, here we find no conflict in the reasons that TDCJ provided for Tidwell’s termination.

*11 The record reflects that TDCJ maintained it released Tidwell from her employment after she exhausted all of her leave options in both its termination paperwork and in its responses to the Texas Workforce Commission (TWC) when Tidwell applied for unemployment benefits. Tidwell, however, contends that TDCJ stated in the TWC paperwork that she quit instead of being administratively separated. This statement was not made by TDCJ, but instead by TWC, which found Tidwell was entitled to unemployment benefits because she had “quit [her] job because of [her] medically verifiable illness.”

Tidwell next contends TDCJ gave a third reason for terminating her in a letter that a TDCJ employee wrote on January 8, 2018, regarding Tidwell’s separation in a “comments section”: “Employee did not return to work alternate/modified duty on 1/2/2018, as previously reported.” The letter referenced appears to be a printout of form “SORM90–Notification of Additional Information” relating to Tidwell’s case. We are unable to ascertain the context in which the comment was made, and Tidwell acknowledges there is nothing in the record to suggest TDCJ gave her a second job offer or that TDCJ was even permitted to extend such an offer.

Finally, Tidwell contends that TDCJ’s reason for terminating her was pretextual, as the notice placing her on LWOP asked her to return any property that TDCJ had issued to her (including any uniforms, badges, ID cards and weapons), which reflected TDCJ’s intent to terminate her upon placing her on LWOP. The notice, however, clearly stated that the requirement of returning property did not mean Tidwell was being “separated from employment” and only meant that she was “clearing [her] property account until such time that [she was] able to return to work.” The Texas Supreme Court has indicated that requiring an employee to return property while on extended leave status in accordance with the employer’s policies does not raise an inference that the employee was terminated at that time. See Kingsaire, Inc., 477 S.W.3d at 316–17 (rejecting employee’s argument that requiring him to return his uniforms and other property belonging to employer while on FMLA was the equivalent of a termination). We do not view the requirement that Tidwell return TDCJ property while on extended leave as raising an inference that TDCJ’s reasons for terminating her were pretextual. Id. at 317 (finding employer’s requirement that employee return his uniforms while on FMLA constituted “meager circumstantial evidence” that “could give rise to any number of inferences, none more probable than another.”) (quoting Hancock v. Variyam, 400 S.W.3d 59, 70 (Tex. 2013)).

In sum, we conclude that Tidwell has failed to raise a question of fact on whether TDCJ’s stated reason for terminating her based on its absence-control policy was pretextual in nature.

VI. NO EVIDENCE OF OTHER ADVERSE EMPLOYMENT ACTIONS

As a final matter, we note Tidwell’s argument that even if we find Tidwell was properly terminated, we should nevertheless consider whether TDCJ discriminated against her prior to her termination. However, one of the essential elements of an employment discrimination claim is that the plaintiff must have suffered an adverse employment action, such as a termination or a failure to hire, promote or compensate. See Esparza v. Univ. of Tex. at El Paso, 471 S.W.3d 903, 908-909 (Tex. App.—El Paso 2015, no pet.); see also Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 764 (Tex. 2018) (holding that a “remedy only exists for retaliation when the evidence establishes that a materially adverse employment action resulted from the employee’s protected activities.”). Tidwell has not explained what adverse employment action was taken against her that would support her discrimination claim short of termination. Tidwell received the same pay while on her modified job assignment and did not receive any form of discipline during that time.¹⁸

VII. CONCLUSION

*12 Accordingly, for the reasons set forth above, we conclude that Tidwell failed to establish a prima facie case of retaliation for filing her workers’ compensation claim and sustain TDCJ’s sole issue. The trial court erred by denying TDCJ’s plea to the jurisdiction. We reverse the trial court’s order and render judgment in TDCJ’s favor.

Court of Appeals of Texas, El Paso.

Duane L. COOK, Appellant,

v.

TEXAS MUTUAL INSURANCE COMPANY, Appellee.

No. 08-22-00111-CV

|

April 12, 2023

Appeal from the 143rd Judicial District Court of Ward County, Texas (TC# 20-08-25542-CVW)

Attorneys & Firms

Shannon Pounds, Arlene C. Matthews, Lubbock, for Appellee.

Kevin B. Miller, Matthew Olivarez, San Antonio, for Appellant.

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

OPINION

LISA J. SOTO, Justice

*1 Appellant Duane L. Cook was injured while driving a vehicle belonging to his employer and sought workers’ compensation coverage. Appellee Texas Mutual Insurance Company (Texas Mutual), Cook’s employer’s insurance carrier, contested the coverage in a hearing before an administrative law judge who found that Cook suffered a compensable injury and had a resulting disability. Texas Mutual appealed to a Texas Department of Insurance-Division of Workers’ Compensation (DWC) appeals panel, which rendered judgment in its favor. Cook then filed this lawsuit in the trial court to overturn the panel’s decision, and Texas Mutual moved for summary judgment. The trial court granted Texas Mutual’s summary-judgment motion. Cook now appeals the trial court’s grant of summary judgment in two issues, arguing that the court erred because (1) Cook was in the course and scope of his duties when he was injured, and (2) Cook had a disability as defined by the Texas Labor Code. For the following reasons, we reverse and remand the case to the trial court for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

At the time he was injured, Cook was employed as a mechanic with Doc’s Reverse Units (Doc’s), an oilfield fishing and rental tools company located in Monahans, Texas. Doc’s issued Cook a company-owned truck, to include work tools, for trips to and from Doc’s yard and other job sites as part of his employment. While Doc’s allowed Cook to drive the truck to and from his home and Doc’s shop, Cook was not allowed to use the truck for personal errands and was required to comply with company policies while driving the truck. As Doc’s sole mechanic employee, Cook was responsible for checking equipment and ensuring it was in good working order at Doc’s yard prior to crews taking it out to worksites from there, and Cook also checked equipment at various remote worksites. Cook was expected to go in at various times, both during and outside regular business hours. Both Cook and Doc’s managers described that in this business, time is of the essence—the equipment must be checked and in good order both at the worksites and at Doc’s yard prior to deploying to the sites; the equipment could not arrive earlier or later than ordered, otherwise, the client might not have the appropriate staff on site to receive the equipment and procure it from elsewhere.

On the night of January 5, 2020, one of Cook’s supervisors ordered him to drive out the next morning to Doc’s yard to inspect some equipment that was to be used later that day. The equipment was to leave the yard at a time certain in the morning so as to arrive on site at the designated delivery time. At approximately 5:00 a.m. on January 6, 2020, Cook began driving the company truck from his house in Grandfalls, Texas, to the yard at Doc’s. After traveling one or two blocks from his house, Cook was involved in a motor-vehicle collision when he rear-ended a semi-truck, which resulted in Cook suffering multiple injuries, including fractures to his vertebrae, face, ribs, and right hand.

*2 After Cook was injured, the treating physician ordered Cook to be off of work from the time of the injury to at least the end of January 2020. Cook filed a claim under Chapter 410 of the Texas Workers’ Compensation Act, and Texas Mutual contested Cook’s claim. An administrative law judge (ALJ) held a contested hearing to determine whether Cook sustained a compensable injury and whether he had a continuing disability from the time of the collision to the date of the hearing. The ALJ found in Cook’s favor. A DWC appeals panel reversed the ALJ’s judgment and rendered a decision against Cook, finding that Cook was not acting in the course and scope of his employment when he was injured.

Cook subsequently filed suit in the trial court, arguing that the appeals panel had erred by reversing the ALJ’s decision and that he suffered a compensable injury and was thus entitled to damages and benefits under the Texas Labor Code. Texas Mutual responded by filing a combined traditional and no-evidence motion for summary judgment, arguing that, inter alia, (1) Cook was not within the course and scope of his employment when he was injured, and (2) Cook had presented no evidence that he had a disability as a result of a compensable injury. Following a hearing on Texas Mutual’s motion, the trial court entered a written order granting summary judgment in Texas Mutual’s favor.

This appeal followed. Cook now raises two issues challenging the trial court’s grant of summary judgment, arguing that the court erred by finding that (1) Cook was not acting within the course and scope of his employment when he was injured and (2) he did not suffer a disability under the Texas Labor Code.

II. DISCUSSION

A. Standard of review

We review a trial court’s grant or denial of summary judgment de novo. Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 S.W.3d 671, 680 (Tex. 2017). A party filing a traditional motion for summary judgment is required to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Fibela v. Wood, 657 S.W.3d 664, 670 (Tex. App.—El Paso 2022, no pet.) (citing TEX. R. CIV. P. 166a(c)). “To prevail as a movant, a defendant must either negate at least one of the essential elements of a cause of action or conclusively establish each element of an affirmative defense.” Id. (citing Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995)). “Once a movant initially establishes a right to summary judgment on the issues expressly presented in the motion, the burden shifts to the nonmovant to present issues or evidence precluding summary judgment.” Id. (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979)).

A no-evidence motion for summary judgment is similar to a pretrial motion for directed verdict. See Draughon v. Johnson, 631 S.W.3d 81, 88 (Tex. 2021) (citing TEX. R. CIV. P. 166a(i)). The motion must state the elements as to which the movant believes there is no evidence. TEX. R. CIV. P. 166a(i). “A properly filed no-evidence motion shifts the burden to the nonmovant to present evidence raising a genuine issue of material fact supporting each element contested in the motion.” JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 864 (Tex. 2021). “[A] no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). “More than a scintilla of evidence exists [if it would allow] reasonable and fair-minded people to differ in their conclusions,” while less than a scintilla exists “when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact.” King Ranch, 118 S.W.3d. at 751 (internal quotation marks omitted); see also Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600–01 (Tex. 2004).

*3 “In reviewing either type of summary judgment motion, we view the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so and disregarding contrary evidence unless reasonable jurors could not.” Fibela, 657 S.W.3d at 670 (citing Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)). We must “indulge every reasonable inference in favor of the non-movant and resolve any doubts against the motion.” Cimarex Energy Co. v. Anadarko Petroleum Corp., 574 S.W.3d 73, 86 (Tex. App.—El Paso 2019, pet. denied) (citing Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017)). When, as here, a party moves for both traditional and no-evidence summary judgment, we first consider the no-evidence motion. Ford Motor Co., 135 S.W.3d at 600.

B. Course-and-scope issue

Cook argues the court erred by finding that Cook was not acting within the course and scope of his employment when he was injured. We agree.

1. Applicable law

a. Workers’ Compensation Act-compensable injuries: course and scope

The Texas Workers’ Compensation Act is a “a mechanism by which workers [can] recover from subscribing employers without regard to the workers’ own negligence while limiting the employers’ exposure to uncertain, possibly high damage awards permitted under the common law.” SeaBright Ins. Co. v. Lopez, 465 S.W.3d 637, 642 (Tex. 2015). Workers’ compensation insurance only compensates employees who sustain “compensable injuries.” Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 519 (Tex. 2007) (“The existence of a compensable injury is the threshold requirement for payment of benefits under the [Texas Workers’ Compensation] Act.”). Under the Texas Labor Code, “compensable injury” means “an injury that arises out of and in the course and scope of employment for which compensation is payable under this subtitle.” TEX. LAB. CODE ANN. § 401.011(10). “Course and scope” is defined as 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. The term includes an activity conducted on the premises of the employer or at other locations.

Id. § 401.011(12). To that end, the course and scope of employment “require[s] the injury to ‘(1) relate to or originate in, and (2) occur in the furtherance of[ ] the employer’s business.’ ” SeaBright, 465 S.W.3d at 642 (quoting Leordeanu v. Am. Protection Ins. Co., 330 S.W.3d 239, 241 (Tex. 2010)). “Both the origination and furtherance elements must be satisfied even if an employee qualifies for one of the exceptions to an exclusion[.]” Id. at 645.

b. Exclusion: coming-and-going rule

“As a general rule, travel to and from work does not originate in the employer’s business and, in some instances, is expressly excluded from the course and scope of employment by statute.” Orozco v. Cnty. of El Paso, 602 S.W.3d 389, 393 (Tex. 2020). Excluded from the definition of course and scope is “transportation to and from the place of employment.” TEX. LAB. CODE ANN. § 401.011(12)(A). Also known as the “coming and going” rule, travel to and from the place of employment was excluded from course and scope because such travel “is in most instances ‘suffered as a consequence of risks and hazards to which all members of the traveling public are subject rather than risks and hazards having to do with and originating in the work or business of the employer.’ ” Painter v. Amerimex Drilling I, Ltd., 632 S.W.3d 156, 160 (Tex. App.—El Paso 2021, no pet.) (quoting Janak v. Texas Employers’ Ins. Assoc., 381 S.W.2d 176, 178 (Tex. 1964)).

c. Exceptions to coming-and-going rule

*4 There are several statutory exceptions to the coming-and-going rule, including, as applicable here, where “the transportation is furnished as part of the contract of employment or is paid for by the employer[,]” “the means of the transportation are under the control of the employer[,]” or “the employee is directed in the employee’s employment to proceed from one place to another place[.]” TEX. LAB. CODE ANN. § 401.011(12)(A)(i)–(iii). Even so, “[m]eeting the exception requirements ... does not necessarily mean the course and scope requirements are also met.” Painter, 632 S.W.3d at 160–61. “The effect of satisfying one of these circumstances does not establish that the travel is in the course and scope of employment; rather, it establishes that such travel is not summarily excluded from being within the course and scope of the employment solely by virtue of the fact that the employee was traveling between home and work.” Am. Home Assur. Co. v. De Los Santos, No. 04-10-00852-CV, 2012 WL 4096258, at *3 (Tex. App.—San Antonio Sept. 19, 2012, pet. denied) (mem. op.).

2. Analysis

Here, Texas Mutual does not contest that Cook was traveling in a vehicle owned and controlled by Doc’s at the time he sustained his injuries. Rather, it asserts that those facts are insufficient, by themselves, to establish that Cook was acting within the course and scope of his employment. Texas Mutual argues that for Cook to show that he was acting within the course and scope of his employment, he also had to establish that he was acting in furtherance of Doc’s affairs or business when he was injured and not merely driving from his home to his workplace. Texas Mutual thus contends that because Cook was not acting in the course and scope of his employment, the trial court properly granted summary judgment on this matter.

a. Evidence shows exception to coming-and-going exclusion: Doc’s furnished Cook with a company vehicle

The undisputed evidence shows that Doc’s issued Cook a company-owned vehicle for use on his trips to work sites and that Doc’s regularly allowed Cook to drive the truck from his house to work. Cook was not allowed to use the truck for a non-work purpose unless he was given authorization to do so and he would have faced discipline for using the truck for unauthorized business purposes. Moreover, Doc’s paid for gas, maintenance, and insurance on the truck, and testimony from Doc’s supervisors showed that the company controlled the truck’s use and prohibited Cook and other employees from using it for personal errands. Cook was to follow company policies while driving the truck, even on his way from home to work. And one of Doc’s managers testified that the truck contained some tools owned by Doc’s for use on Doc’s equipment. This evidence suggests that driving the truck was an integral part of Cook’s employment and was not merely furnished as a gratuitous accommodation to him. Compare with De Los Santos, 2012 WL 4096258, at *5 (evidence suggested that an employee was not within the course and scope of his duties while driving a truck due to the lack of evidence showing that an employer furnished a truck to the employee as part of his work contract, which implied that driving the truck was not an integral part of the employee’s contract but was rather a gratuitous accommodation) (citing Texas Gen. Indem. Co. v. Bottom, 365 S.W.2d 350, 353 (Tex. 1963)).

Thus, although Cook was traveling from his home to work when he was injured, the evidence suggests that his travel could be within the course and scope of his employment because he was driving a vehicle owned and controlled by Doc’s that Doc’s furnished as part of his employment, and thus he established at least one of the statutory exceptions to the coming-and-going rule. See TEX. LAB. CODE ANN. § 401.011(12)(A)(i)–(ii); see also De Los Santos, 2012 WL 4096258, at *3 (employee who was driving an employer-owned vehicle from his home to work at the time of an accident was potentially within the course and scope of his employment). Nevertheless, the fact that Doc’s owned the truck does not, by itself, establish that Cook was within the course and scope of his employment; Cook’s trip must also have originated in and been in furtherance of Doc’s business. See id.; see also Painter, 632 S.W.3d at 160–61 (recognizing that meeting the requirements for an exception to the coming-and-going rule does not necessarily mean that the course-and-scope requirements are also met).

b. Course-and-scope prong one: Cook’s travel originated in Doc’s business

*5 Regarding origination, “[a]n employee’s travel to and from work ... cannot ordinarily be said to originate in the [employer’s] business ... because ‘[t]he risks to which employees are exposed while traveling to and from work are shared by society as a whole and do not arise as a result of the work of employers.’ ” Seabright, 465 S.W.3d at 642 (quoting Leordeanu, 330 S.W.3d at 242). “However, a distinction can be made if ‘the relationship between the travel and the employment is so close that it can fairly be said that the injury had to do with and originated in the work, business, trade or profession of the employer.’ ” Id. (quoting Shelton v. Standard Ins. Co., 389 S.W.2d 290, 292 (Tex. 1965)). This element is established “if the employee’s travel ‘was pursuant to express or implied conditions of his employment contract.’ ” Id. (quoting Meyer v. W. Fire Ins. Co., 425 S.W.2d 628, 629 (Tex. 1968)).

To determine the existence of origination, courts employ a fact-intensive analysis and consider “the nature of the employee’s job, the circumstances of the travel, and any other relevant facts.” Id. (citations omitted).

The [Texas Supreme] Court has noted several factors that reflect on whether an employee’s travel originates in the employer’s business or work, including: (1) whether the employment contract expressly or impliedly required the travel involved; (2) whether the employer furnished the transportation; (3) whether the employee was traveling on a special mission for the employer; and (4) whether the travel was at the direction of the employer, such as requiring the employee to bring tools or other employees to work or another location.” Fuentes v. Texas Mutual Ins. Co., No. 04-16-00662-CV, 2018 WL 1935581, at *4 (Tex. App.—San Antonio Apr. 25, 2018, pet. denied) (mem. op.) (quoting SeaBright, 465 S.W.3d at 647 (Johnson, J., dissenting)).

As set forth above, it is uncontested that Doc’s owned and controlled the truck Cook was driving when he was injured. In addition, the evidence showed that Cook was Doc’s only mechanic at the time he was injured and that his duties included performing checks on equipment that would be used at different work sites. Cook testified that on the day he was injured, he left his house at 5:00 a.m., an earlier time than usual, because one of his supervisors ordered him to drive out to Doc’s yard to ensure the proper operation of equipment that was to be sent to a remote work site and used later that day. Regarding his time of employment, Cook testified that although Doc’s employees were normally not paid until 8:00 a.m., he “would get paid sometimes from leaving from the house going to a job or leaving the house [and] going to the shop if it was days that [he] wasn’t supposed to be there early.” Cook “would write down the times that [he] would leave and come back, and [Doc’s] would pay [him] accordingly.” Cook testified that “[his] job started when [he] left [his] house.” And as set forth above, Cook was expected to go to where he was summoned when he was summoned given that he was the only mechanic employee, and the truck contained tools owned by Doc’s that Cook would use while working on Doc’s equipment.

Based on the above evidence, indulging every reasonable inference in Cook’s favor as the non-movant and resolving any doubts in his favor, the evidence suggests that Cook’s travel at the time he was injured was sufficiently related to his employment at Doc’s and that his trip originated in his work-related duties at the company. We thus conclude that there is a genuine issue of material fact on the issue of origination that precludes summary judgment, and the trial court erred by granting summary judgment in Texas Mutual’s favor on this basis.¹

c. Course-and-scope prong two: Cook’s trip furthered Doc’s business

*6 On appeal, Texas Mutual does not argue that Cook’s trip did not further Doc’s business. Even so, the Texas Supreme Court has repeatedly recognized that “[an] employee’s travel to and from work makes employment possible and thus furthers the employer’s business.” SeaBright, 465 S.W.3d at 644 (quoting Leordeanu, 330 S.W.3d at 242). Because the uncontested evidence shows that Cook was traveling from his house to Doc’s yard when he was injured, Cook has met his burden to raise a genuine issue of fact as to the furtherance element of the course-and-scope standard. See id. (holding that undisputed evidence that an employee traveling to his employer’s work site when he died conclusively established the furtherance element).

3. Conclusion

In sum, Cook has raised a genuine issue of fact as to the course-and-scope requirement for a compensable injury as to both the origination of his trip and that his trip furthered Doc’s business. He also showed an exception to the coming-and-going exclusion. For these reasons, the trial court erred by granting summary judgment on this ground.

Accordingly, we sustain Cook’s first issue.

C. Disability Issue

Texas Mutual also moved for no-evidence summary judgment on the ground that there was no evidence Cook had suffered a disability under the Texas Labor Code, and the trial court granted the motion on that basis. Texas Mutual argued that because there was no evidence Cook suffered his injuries while acting within the course of scope of his employment, he failed to put forth evidence raising a genuine issue of material fact that he suffered a disability, which is defined under the Labor Code as a “compensable injury.” See TEX. LAB. CODE ANN. § 401.011(16) (defining “disability” as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.”). In other words, because Cook’s injures are not compensable if they were suffered while he was not within the course and scope of his employment, Texas Mutual contends that there is no evidence that he suffered a disability under the Labor Code.

But as we hold above, there is a fact issue regarding whether Cook suffered his injuries while he was within the course and scope of his employment at Doc’s, thus undercutting Texas Mutual’s argument that because Cook was not within the course and scope of his employment when he was injured, he could not have suffered a “compensable injury” or a disability under § 401.011(16). And on the issue of disability, Cook presented medical records showing that he suffered multiple injuries from the collision, including fractures to his vertebrae, face, ribs, and right hand, and that he had trouble breathing through his nose, which caused sleep disturbances. The physician treating Cook ordered him to take off work from the time of the injury to at least the end of January 2020. Cook testified that as a result of his injuries, he was unable to keep his job at Doc’s because he experienced severe pain as a result of his injuries, and in March 2020, he was forced to stop working as a mechanic at Doc’s because he could not keep up with the pace of the job.

Because the record contains more than a scintilla of evidence that Cook suffered a disability under § 401.011(16), the trial court erred by granting Texas Mutual’s no-evidence motion for summary judgment on this ground. See TEX. R. CIV. P. 166a(i); see also Truck Ins. Exchange v. Smetak, 102 S.W.3d 851, 857 (Tex. App.—Dallas 2003, no pet.) (the employee’s testimony that he experienced pain and missed work due to the injury was some evidence supporting jury’s finding of an employee’s disability under § 401.011(16)).

*7 Accordingly, we sustain Cook’s second issue.

III. CONCLUSION

We reverse the trial court’s order granting Texas Mutual’s motion for summary judgment and remand the case to the trial court for further proceedings consistent with this opinion.

Court of Appeals of Texas, El Paso.

Robert CROYSDILL, Appellant,

v.

OLD REPUBLIC INSURANCE COMPANY, Appellee.

No. 08-21-00191-CV

|

February 9, 2023

Appeal from the County Court at Law No. 6 of El Paso County, Texas (TC# 2013DCV1136)

Attorneys & Firms

Robert Croysdill, Pro Se.

Shelly W. Rivas, El Paso, for Appellee.

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

OPINION

YVONNE T. RODRIGUEZ, Chief Justice

BACKGROUND

*1 This is a workers’ compensation case in which Appellant, Robert Croysdill, was injured while on-the-job. Croysdill appeals a summary judgment and a plea to the jurisdiction granted in favor of Old Republic Insurance Company, and asserts the trial court erred in striking a witness as an expert and in not applying the affirmative defenses of res judicata and collateral estoppel. We affirm.

Factual and Procedural Background

In October 1997, Croysdill suffered an on-the-job back injury while unloading a water heater from a trailer. At the time of his injury, his employer provided employee workers’ compensation insurance through Old Republic Insurance Company (the Carrier). Disputes arose between Croysdill and the Carrier regarding the scope of his injury and the benefits he was entitled to. The parties attempted to resolve the issues through a benefit review conference, but to no avail. The Texas Workers’ Compensation Commission (the Commission then scheduled a benefit contested case hearing to resolve the remaining issues.

At the hearing, the disputed, unresolved issue was the determination of Croysdill’s impairment rating. The benefit review officer recommended Croysdill’s impairment rating as nine percent, as assigned by the Commission’s appointed and designated physician, Dr. Teresa Rousseau; the Carrier agreed with this impairment rating. Croysdill, however, opted for an impairment rating of twenty-one percent, as assigned by his treating physician, Dr. William Leff. The unresolved issue went before the Commission Hearing Division. The administrative decision adopted the impairment rating of nine percent and decided Croysdill was entitled to impairment income benefits, to be paid in lump sum. Croysdill appealed, and the Commission Appeals Panel affirmed the decision of a nine percent impairment rating.

First Lawsuit

Croysdill challenged the impairment rating in Cause No. 2000-3708, filed in the 34th District Court of El Paso County, Texas (the first lawsuit). In 2003, the parties settled the dispute and entered into a “Release of All Claims and Indemnity Agreement” (the Release) in which Dr. Leff’s twenty-one percent impairment rating was adopted. Paragraph five of the Release specifically provides:

The Parties do further agree that the 21% impairment rating as diagnosed by Dr. William Leff as resulting from the injury of October 14, 1997 is the impairment rating attributable to the work-related injury of October 14, 1997 and that such impairment rating was made after Robert Croysdill reached maximum medical improvement. The Parties further agree this Release of All Claims and Indemnity Agreement does not limit or terminate Robert Croysdill’s right to medical benefits as provided by Tex. Lab. Code Ann. § 408.021 (Vernon 1996).

Under the terms of the Release, Croysdill received a lump sum payment of $18,877.98 in compensation benefits. The first lawsuit was then dismissed with prejudice.

2009 MRI

In 2009, twelve years following his work-related injury, Croysdill underwent an MRI upon referral by Dr. Anthony F. Valdez. The 2009 MRI showed eleven new diagnoses: lumbar disc displacement; chronic lumbar radiculitis, chronic sciatica; Grade 1 spondylolisthesis at LS; bilateral S1 nerve root irritation; anterior disc herniation at LS-S1; a small broad base disc bulge in combination with facet arthropathy contributing to moderate bilateral neural foraminal stenosis at L5-S1; disc desiccation with loss of disc height present at L4-5; a 2mm anterolisthesis of L4 with respect to L5 in combination with sclerotic changes to the pars interarticularis bilaterally; and facet arthropathy in combination with a broad based disc bulge contributing to moderate to severe bilateral neutral foraminal stenosis at L4-5.

*2 In 2011, the Carrier disputed whether Croysdill’s ongoing medical treatment and medication was causally related to the 1997 compensable injury by filing a “Notice of Disputed Issue(s) and Refusal to Pay Benefits.” In 2012, the Texas Department of Insurance Division of Workers’ Compensation (DWC) conducted a contested case hearing to resolve the following question:

Does the compensable injury sustained on October 14, 1997 extend to and include lumbar disc displacement, chronic lumbar radiculitis, chronic sciatica, Grade I spondylolisthesis at L5, bilateral S1 nerve root irritation, anterior disc herniation at L5-S1, a small broad based disc bulge in combination with facet arthropathy contributing to moderate bilateral neural foraminal stenosis at L5-S1, disc desiccation with loss of disc height present at L4-5, a 2mm anterolisthesis of L4 with respect to L5 in combination with sclerotic changes to the pars interarticularis bilaterally, facet arthropathy in combination with a broad based disc bulge contributing to moderate to severe bilateral neural foraminal stenosis at L4-5?

During the hearing, Dr. Leff testified he last treated Croysdill around 2003 and diagnosed him with lumbar disc syndrome, chronic radiculitis, chronic sciatica, and L5 spondylolisthesis. Dr. Leff did not render an opinion as to whether the claimed diagnoses from the 2009 MRI resulted from the 1997 compensable injury. However, his written Subjective Objective Assessment Plan and Prognosis (SOAP) notes were made part of the record and reflect he diagnosed Croysdill with lumbar disc syndrome, chronic radiculitis, chronic sciatica, and L5 spondylolisthesis in 1998.

Dr. Mark A. Doyne, an orthopedic surgeon, testified on behalf of the Carrier. Dr. Doyne testified the 1997 compensable injury was not a producing cause of the 2009 diagnoses. In Dr. Doyne’s opinion, the 2009 diagnoses were more likely a result of preexisting degenerative disk disease. The hearing officer found the 1997 compensable injury did not extend to or include the 2009 diagnoses. Croysdill appealed and the Appeals Panel affirmed the hearing officer’s finding, making the decision final.

Second Lawsuit

Croysdill then filed suit for judicial review of the hearing officer’s decision in the 34th District Court of El Paso County, Texas (the second lawsuit). His pleadings included a common law breach of contract claim—specifically, breach of the Release. Croysdill argued the Release foreclosed the Carrier’s ability to contest whether the 2009 diagnoses extended from the 1997 injury. In response, the Carrier filed a motion for summary judgment alleging the hearing officer’s decision was supported by substantial evidence and Croysdill failed to offer expert testimony to prove the disputed diagnoses were caused by the 1997 compensable injury. Croysdill responded to the Carrier’s motion and moved for summary judgment on his judicial review and common law claims. The Carrier did not move for summary judgment on Croysdill’s common law claims, but at the summary judgment hearing, it argued the claims were not viable because the Texas Workers’ Compensation Act (the Act) provides the exclusive remedy. The trial court ultimately granted the Carrier’s motion for summary judgment in its entirety, affirmed the decision of the DWC, and denied Croysdill’s motion for summary judgment. Croysdill appealed.

2016 Appeal before the Eighth Court of Appeals

*3 On appeal, Croysdill alleged six issues for review.¹ Croysdill v. Old Republic Ins. Co., 490 S.W.3d 287, 292 n.4 (Tex. App.—El Paso 2016, no pet.). As a threshold matter, this Court held that contrary to the Carrier’s contention, Croysdill did not have the burden to prove the DWC decision was not supported by substantial evidence; rather, it held Croysdill had the burden to produce more than a scintilla of evidence to support each element of his claims—i.e., modified de novo review standard. Id. at 293. Under this standard, this Court found a fact issue existed to preclude the granting of summary judgment as to the diagnosis of chronic lumbar radiculitis. Id. at 295.

Croysdill challenged the granting of summary judgment in favor of the Carrier on the grounds of res judicata and collateral estoppel. Id. More specifically, Croysdill argued the Carrier’s extent of injury dispute was barred by the parties’ agreement that the Release would not terminate or limit Croysdill’s right to medical benefits as provided by the Texas Labor Code. Id. This Court held the trial court did not err by denying Croysdill’s motion for summary judgment on the grounds of res judicata and collateral estoppel. Id.

Lastly, Croysdill claimed the trial court erred in granting summary judgment in favor of the Carrier on his breach of the Release claim, to which the Carrier responded the trial court lacked subject matter jurisdiction. Id. at 296. This Court concluded the trial court erred in granting summary judgment on the breach of the Release claim. Id.

In sum, this Court reversed and remanded the portion of the trial court’s order granting summary judgment in favor of the Carrier on the judicial review claim to the extent it granted summary judgment on whether the 1997 compensable injury extended to and included chronic lumbar radiculitis, and on the breach of the Release claim. Id. at 296-97. It overruled the remaining issues. Id. at 297.

On Remand

On remand, Croysdill amended his pleadings to add numerous causes of action—some sounding in tort (fraud, fraudulent inducement, and tortuous interference), some alleging violations of statutory duties (under the Texas Insurance Code, the Texas Deceptive Trade Practices Act, the Texas Labor Code, and the Texas Civil Practice and Remedies Code), and another sounding in criminal liability (theft of services).

The statutes Croysdill specifically asserts under the Texas Insurance Code are in chapter 541—Unfair Methods of Competition and Unfair or Deceptive Acts or Practices—and are as follows: § 541.001 (Purpose), § 541.061 (Misrepresentation of Insurance Policy), § 541.151 (Private Action for Damages Authorized), § 541.152 (Damages, Attorney’s Fees, and Other Relief). TEX. INS. CODE ANN. §§ 541.001, 541.061, 541.151, 541.152. As for the Texas Deceptive Trade Practices Act, which is chapter 17 of the code, Croysdill specifically asserts: § 17.50(b)(4) (Relief for Consumers). TEX. BUS. & COM. CODE ANN. § 17.50(b)(4). As for the Texas Labor Code, Croysdill specifically alleges: § 408.006 (Mental Trauma Injuries), which is in chapter 408—Workers’ Compensation Benefits. TEX. LAB. CODE ANN. § 408.006. The statutes Croysdill asserts as to the Texas Civil Practice and Remedies Code are as follows: § 41.001–41.014, which are found in chapter 41—Damages. TEX. CIV. PRAC. & REM. CODE ANN. §§ 41.001–41.014.

The Carrier filed a plea to the jurisdiction and renewed motion for summary judgment. In its plea to the jurisdiction, the Carrier challenged Croysdill’s newly pleaded causes of action. As to its renewed motion for summary judgment, the Carrier argued because this Court previously held that carriers are not precluded from disputing extent of injury after an impairment rating finding, it was within its statutory right to dispute extent of injury. The Carrier also claimed Croysdill failed to establish that chronic lumbar radiculitis was causally related to the 1997 injury.

*4 The trial court granted the Carrier’s motion for summary judgment in part. It granted the motion on Croysdill’s breach of the Release claim, and it denied the motion as to Croysdill’s judicial review of the hearing officer’s 2012 final order. The trial court further ordered that the only remaining justiciable issue for consideration was whether the 1997 injury extended to and caused Croysdill chronic lumbar radiculitis. The trial court also granted the plea to the jurisdiction in favor of the Carrier, holding it lacked jurisdiction over Croysdill’s newly asserted claims alleging fraud, fraudulent inducement, Deceptive Trade Practices Act (DTPA) and Texas Insurance Code violations, and theft of services; it thereby dismissed the claims.

Bench Trial

A bench trial was held in April of 2021. The only issue before the trial court was whether chronic lumbar radiculitis extended from and was causally related to the 1997 injury. The trial court found chronic lumbar radiculitis did extend from and was causally related to his 1997 injury and ordered the Carrier to pay Croysdill $15,678.50 in damages. This appeal followed.

DISCUSSION

In five issues, Croysdill challenges the granting of a summary judgment as to the dismissal of his breach of the Release claim, the granting of a plea to the jurisdiction, and the striking of a witness as an expert.² He also asserts the trial court erred by not applying the affirmative defenses of res judicata and collateral estoppel.

Summary Judgment

In Issues One and Five, Croysdill challenges the granting of a summary judgment against him, which dismissed his breach of the Release claim.³

We review the grant or denial of a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). The evidence presented in the motion and response is reviewed in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Id. The movant bears the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Id. (citing TEX. R. CIV. P. 166a(c)). When, as here, both sides moved for summary judgment and the trial court granted one and denied the other, we review the summary judgment evidence presented by both sides and determine all questions presented. Id.

Analysis

Croysdill’s breach of contract claim is premised on his assertion that the Carrier breached the Release. As discussed earlier, the Release resolved the dispute of the impairment rating of the 1997 injury. Croysdill argues the Carrier breached the Release by later challenging whether the diagnoses from the 2009 MRI extended from the 1997 injury—i.e., Croysdill wants this Court to find that the Release barred the Carrier from later initiating an extent of injury dispute.

*5 However, this issue has already been answered. This Court explained, “we understand Croysdill to argue that, because his impairment rating was determined in the prior lawsuit, Old Republic is precluded from disputing the extent of injury in the present action. Impairment rating and extent of injury are distinct issues, however.” Croysdill, 490 S.W.3d at 296 (emphasis added). This Court further held, “Consequently, settlement of the impairment rating issue does not preclude a carrier from later disputing extent of injury.” Id. (emphasis added). To reiterate, the Carrier challenged whether the eleven diagnoses from the 2009 MRI extended from the 1997 injury. The parties’ agreement that the Release would not terminate or limit Croysdill’s right to medical benefits pursuant to the Texas Labor Code did not bar the Carrier from later initiating an extent of injury dispute.

Because the Carrier was within its statutory right to dispute extent of injury, it cannot be liable for breach of the Release for exercising that right. Issues One and Five are overruled.

Plea to the Jurisdiction

In Issues Two and Five, Croysdill challenges the granting of a plea to the jurisdiction against him, which dismissed his newly added claims.

Standard of Review

A plea to the jurisdiction challenges a court’s authority to decide a case. Heckman v. Williamson Cty., 369 S.W.3d 137, 149 (Tex. 2012). It is a dilatory plea that serves to defeat a cause of action without regard to whether the asserted claims have merit. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). In other words, the plea should be decided without delving into the merits of the case. Id. The burden is on the plaintiff to affirmatively establish the trial court’s jurisdiction. Heckman, 369 S.W.3d at 150. We assess the live pleadings and evidence submitted to negate the existence of jurisdiction, and we must consider such evidence when necessary to resolve the jurisdictional issue. Id. We must ultimately grant the plea if the plaintiff’s pleadings affirmatively negate the existence of jurisdiction. Id.

Analysis

On remand from this Court, Croysdill amended his pleadings to add the following new causes of action in which he alleged fraud, fraudulent inducement, tortuous interference, violations of statutory duties under the Texas Insurance Code (§§ 541.001, 541.061, 541.151, 541.152), the DTPA (§ 17.50(b)(4)), the Texas Labor Code (§ 408.006), and the Texas Civil Practice and Remedies Code (§§ 41.001–41.014.), and theft of services (TEX. PENAL CODE ANN. § 31.04). These claims were not raised during the administrative proceedings. In its plea to the jurisdiction, the Carrier challenged Croysdill’s newly pleaded causes of action and sought dismissal of all claims not part of the initial administrative review. The trial court granted the plea in favor of the Carrier, holding it lacked jurisdiction over Croysdill’s claims alleging fraud, fraudulent inducement, violations under the DTPA and the Texas Insurance Code, and theft of services, and thereby dismissed those claims.

We find In re Crawford & Co. instructive here. In that case, disputes arose between the workers’ compensation claimant and the carrier over entitlement of benefits, which led to a benefit review conference. 458 S.W.3d 920, 921-22 (Tex. 2015) (per curiam). Meanwhile, and separate from the administrative proceedings, the claimant and his wife (plaintiffs) pled numerous causes of action against the carrier, including various torts, fraud, fraudulent inducement, breach of contract, and violations of statutory duties under the Texas Insurance Code and the DTPA. Id. at 922. The plaintiffs argued the Texas Workers’ Compensation Act did not require them to pursue their claims through its administrative procedure or otherwise exhaust administrative remedies. Id. The carrier filed a plea to the jurisdiction and a motion for summary judgment claiming the DWC has exclusive jurisdiction over the claims. Id. at 922-23. The carrier ultimately sought mandamus with the Texas Supreme Court. Id. at 923.

*6 The Texas Supreme Court agreed with the carrier, holding the DWC has exclusive jurisdiction over the claims and the Workers’ Compensation Act provides their exclusive remedies. Id. at 923. According to the Court, “the Act bars the [plaintiffs’] claims for negligence, gross negligence, breach of contract, quantum meruit, breach of the duty of good faith and fair dealing, and statutory violations.” Id. at 926. It further held, “We reach the same conclusion regarding all of the [plaintiffs’] common law and statutory causes of action based on allegations of deception, fraud, and misrepresentation.” Id. The Court thereby dismissed the claims alleging fraud, fraudulent inducement, breach of contract, and violations of statutory duties under the Texas Insurance Code and the DTPA. Id. at 926-29.

We likewise find Croysdill’s common law and statutory claims alleging fraud, fraudulent inducement, violations under the Texas Insurance Code (§§ 541.001, 541.061, 541.151, 541.152) and the DTPA (§ 17.50(b)(4)), and theft of services (TEX. PENAL CODE ANN. § 31.04), were properly dismissed as the Act does not afford remedies outside of its statutory scheme.^4,5 Davis v. Am. Cas. Co. of Reading, Pa., No. 07-13-00190-CV, 2014 WL 2553379, at *2-4 (Tex. App.—Amarillo June 4, 2014, pet. denied) (mem. op.) (precluding claims for breach of contract, Insurance Code and DTPA violations, because the claims “arise out of [the carrier’s] handling of [the] workers’ compensation claim”). We construe Croysdill’s live pleadings to allege his newly pleaded claims arise from the Carrier’s investigation, handling and settling of his workman’s compensation claim. Consequently, we find his claims arise out of the “investigation, handling, and settling” of his claims for workers’ compensation benefits, and therefore, “the Act provides the exclusive procedures and remedies for these claims.” Crawford, 458 S.W.3d at 926-27. Accordingly, the trial court did not err in granting the Carrier’s plea to the jurisdiction as to these claims.⁶

*7 In our review of the live pleadings and evidence submitted to negate the existence of jurisdiction, we conclude the trial court did not err and dismissal of Croysdill’s claims alleging fraud, fraudulent inducement, violations under the Texas Insurance Code (§§ 541.001, 541.061, 541.151, 541.152) and the DTPA (§ 17.50(b)(4)), and theft of services (TEX. PENAL CODE ANN. § 31.04), was proper. Issues Two and Five are overruled.

Expert Witness

In Issue Three, Croysdill challenges the trial court’s striking of his witness as an expert on life care planning.

Standard of Review & Applicable Law

Whether an expert is qualified is a preliminary question to be decided by the trial court. TEX. R. EVID. 104. Rule 702 of the Texas Rules of Evidence permits a witness to testify on technical, specialized subjects if the testimony will assist the trier of fact in understanding the evidence or in determining a fact issue. TEX. R. EVID. 702. The party offering the expert bears the burden to prove the witness is qualified under rule 702. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996). The qualification of a witness as an expert is within the trial court’s discretion and we will not disturb the trial court’s decision absent a clear abuse of discretion. Id. The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles. Id.

Analysis

Croysdill offered Lois Hawkins as an expert on life care planning to testify on a life care plan she prepared on behalf of Croysdill. The life care plan consisted of an assessment of Croysdill’s possible future medical and rehabilitation care needs. The Carrier filed a motion to strike Hawkins as an expert witness. In response, Croysdill offered Hawkins’ resume. A Daubert hearing was held.

At the hearing, the Carrier contested Hawkins’ qualifications and argued her opinion is only relevant to Croysdill’s future medical treatment, which has no bearing on the issue before the court—whether chronic lumbar radiculitis extended from and was a result of the 1997 injury. The Carrier further contested her qualifications by arguing because she is only a registered nurse, she is unable to prescribe or treat Croysdill’s conditions and thus, her testimony would not assist the trier of fact in answering the issue before the court.

In Croysdill’s response to the Carrier’s motion to strike, Croysdill claimed Hawkins’ report was relevant. Croysdill specifically argued:

Since Defendant has fraudulently defrauded plaintiff who better to explain the future medical than an expert in that field. Her report has relevance since Plaintiff would be eligible for the diagnosis in the impairment rating as agreed by both parties since the Defendant has defrauded plaintiff out of those diagnosis and her report is what is reasonable and necessary under the current standards of which Plaintiff knows nothing.

Croysdill did not offer Hawkins as an expert on the specific issue before the trial court. The report, a life care plan of Croysdill’s future medical and rehabilitation care needs, had no bearing on the issue before the trial court—whether chronic lumbar radiculitis extended from and was a result of the 1997 injury. Assuming, arguendo, that the life care plan was a medical record, medical reports and records being offered as expert opinions must also qualify under the same principles as expert testimony. State Off. of Risk Mgmt. v. Adkins, 347 S.W.3d 394, 402 (Tex. App.—Dallas 2011, no pet.) (“If medical records are to be considered expert testimony, they must be evaluated applying the same principles used to evaluate the opinion of an expert.”). This was not achieved by Croysdill.

*8 Furthermore, not every licensed physician is automatically qualified to testify on every medical question. Id. As such, the proffered expert must have knowledge, skill, experience, training, or education regarding the specific issue before the court to qualify the expert to give an opinion on that particular subject. Id. (quoting Broders, 924 S.W.2d at 153-54).

At the hearing, Croysdill did not call Hawkins to testify, and he did not offer any deposition testimony or affidavits. In fact, Hawkins did not appear at all, and the trial court was unable to verify her qualifications, expertise, or the reliability of her conclusions. See id. at 402-03 (“In the medical context, expert testimony that is not based on reasonable medical probability, but relies instead on possibility, speculation, or surmise, does not assist the jury and cannot support a judgment.”). Moreover, Hawkins was not shown to be a medical professional who possessed expertise on the very diagnosis at issue—chronic lumbar radiculitis. The trial court was merely presented with Hawkins’ resume and her life care plan, without explanation or basis as to how she reached her conclusions. Her report was relevant to future life care planning, which was not at issue or relevant to whether chronic lumbar radiculitis extended from and was a result of the 1997 injury.

We conclude Croysdill failed to establish Hawkins was qualified and that she possessed the knowledge, skill, experience, training or education regarding the specific issue before the trial court. See Adkins, 347 S.W.3d at 402. Accordingly, Hawkins’ testimony would not have assisted the trier of fact in understanding the evidence or in determining a fact issue. TEX. R. EVID. 702. The trial court did not abuse its discretion in striking Hawkins as an expert witness. Issue Three is overruled.

Res Judicata & Collateral Estoppel

In Issue Four, Croysdill challenges the trial court’s refusal to apply res judicata and collateral estoppel to the Carrier’s motion for summary judgment. However, this Court has already resolved this matter. See Croysdill, 490 S.W.3d at 295-96.

Analysis

In the former appeal before this Court, Croysdill challenged the order granting summary judgment in favor of the Carrier and denial of his summary judgment motion, on the grounds of res judicata and collateral estoppel. Id. More specifically, he claimed the Carrier’s extent of injury dispute was barred by the parties’ agreement that the Release did not terminate or limit his right to medical benefits pursuant to the Texas Labor Code. Id. The following is this Court’s analysis and holding on this matter:

Res Judicata

The party asserting an affirmative defense has the burden of pleading and proving its elements. Res judicata, or claim preclusion, bars the relitigation of claims that have been finally adjudicated or that could have been litigated in the prior action. For res judicata to apply, the defendant must prove: (1) there is a prior final judgment on the merits by a court of competent jurisdiction; (2) the parties in the second action are the same or in privity with those in the first action; and (3) the second action is based on claims that were or could have been raised in the first action. The summary judgment evidence does not include any pleadings from the prior impairment-rating lawsuit, or any evidence of a judgment on the merits that would support a claim of res judicata. Rather, Croysdill based his res judicata argument entirely on the Release entered into by the parties in 2003. While the summary judgment evidence shows that the parties entered into the Release which resolved the dispute over the impairment rating, Croysdill failed to show that the extent of injury dispute at issue in the present case was or could have been resolved in the prior suit. Consequently, the trial court did not err by denying Croysdill’s motion for summary judgment on the res judicata ground.

*9

Collateral Estoppel

Collateral estoppel, or issue preclusion, prevents relitigation of particular issues already resolved in a prior suit. The elements of collateral estoppel are: (1) the facts sought to be litigated in the second action were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action.

As was the case with his res judicata argument, Croysdill relies exclusively on the Release to establish the applicability of collateral estoppel. There is no evidence that the facts pertinent to the current extent of injury dispute were fully and fairly litigated in the prior impairment rating lawsuit. Further, we understand Croysdill to argue that, because his impairment rating was determined in the prior lawsuit, Old Republic is precluded from disputing the extent of injury in the present action. Impairment rating and extent of injury are distinct issues, however. Consequently, settlement of the impairment rating issue does not preclude a carrier from later disputing extent of injury. We overrule Issues Two, Three, and Four.

Id. at 295-96 (internal citations omitted).

The remand from this Court did not include these claims, and the trial court did not address them on remand. As such, Croysdill cannot collaterally attack this Court’s prior ruling. In any event, declining to apply res judicata and collateral estoppel was proper given that the issue in the first lawsuit—impairment—is separate and distinct from the issue in the second lawsuit—extent of injury. Croysdill, 490 S.W.3d at 292, 296 (finding the present case is an appeal of an extent of injury dispute and not a contest of Croysdill’s impairment rating and “[i]mpairment rating and extent of injury are distinct issues”). Accordingly, Issue Four is overruled.

CONCLUSION

For these reasons, we affirm.

Court of Appeals of Texas, El Paso.

EL PASO INDEPENDENT SCHOOL DISTRICT, Appellant,

v.

Alejandro PORTILLO, Appellee.

No. 08-21-00021-CV

|

January 30, 2023

Appeal from the 448th Judicial District Court of El Paso County, Texas (TC# 2016DCV3161)

Attorneys & Firms

Bradley Dean McClellan, Austin, Jordan L. Scruggs, Charles L. Scruggs, El Paso, for Appellee.

James Feuille, El Paso, for Appellant.

Before Rodriguez, C.J., Palafox, J.

OPINION

YVONNE T. RODRIGUEZ, Chief Justice

*1 This is an appeal from a judgment awarding Appellee Alejandro Portillo lifetime income benefits based on a jury’s finding that he suffered a work-related traumatic brain injury. The relevant jury question, based on the archaic wording of a provision adopted more than 100 years ago, was whether the injury resulted in “incurable imbecility.” And more specifically, given the “modified de novo” standard for the trials in Texas Labor Code cases, the jury should be asked the same question decided adversely to Portillo by the Department of Insurance-Division of Workers’ Compensation (the Division). Appellant El Paso Independent School District (EPISD), contends that the trial court’s judgment should be reversed because: (1) the jury charge contained an erroneous or incomplete definition of the term, “imbecility”; (2) the trial court’s charge and evidentiary rulings erroneously allowed the jury to consider evidence of Portillo’s condition on the date of trial rather than the date of his administrative hearing; (3) the trial court provided a misleading answer to a jury question; (4) the trial court made several erroneous evidentiary rulings that resulted in an improper verdict; and (5) there was both legally and factually insufficient evidence to support the jury’s verdict. For the reasons set forth below, we affirm the jury’s verdict.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Portillo’s Accident and Medical Treatment

Portillo was employed by EPISD as a heating and air conditioning technician when he was injured on the job on September 13, 2013. The injury occurred when Portillo and his co-worker were working on an air conditioning unit on the roof of a school in El Paso, Texas. Portillo’s co-worker became stuck on a ladder, and when Portillo climbed the ladder to assist him, the co-worker fell on top of him, causing injuries to both. Portillo was transported to a hospital, where he was diagnosed with a mild concussion (synonymous with a mild traumatic brain injury) as well as a cervical sprain or strain. Portillo received medical treatment at a rehabilitation facility from November 2013 until April 2014 for on-going symptoms, including dizziness and headaches. In addition, the record reflects that Portillo was later seen in a local hospital’s emergency room on several occasions, complaining of continuing headaches and dizziness, which he reported was causing him to lose his balance and fall.

Portillo could not return to work in his former position as an HVAC technician following his accident. In February 2014, his doctor released him to return to work with restrictions and Portillo soon accepted a job assignment at EPISD in a different department and in a semi-sedentary position. He found the assignment unsatisfactory, however, describing it as a “handicap job” and he subsequently chose to retire from the school district.

B. The Workers Compensation Division Proceedings

EPISD, a self-insured workers’ compensation provider, at first accepted and covered Portillo’s injury under its workers’ compensation policies. EPISD paid for Portillo’s medical treatment and also paid him temporary benefits for 42 weeks.¹ In February 2015, shortly after his temporary benefits ceased, Portillo filed a claim with the Division seeking an award of lifetime income benefits (LIBs), alleging that he had suffered a traumatic brain injury that resulted in “incurable insanity or imbecility” under § 408.161 of the Texas Labor Code. See TEX. LAB. CODE ANN. § 408.161(6) (providing for recovery of lifetime income benefits when a claimant has suffered “a physically traumatic injury to the brain resulting in incurable insanity or imbecility”).

*2 A Division Hearing Officer conducted a hearing on November 5, 2015, at which Portillo testified to his injuries and medical treatment. The Hearing Officer acknowledged that Portillo had sustained a serious accident on the job, and that he suffered a resulting traumatic brain injury. She concluded, however, that Portillo did not meet his burden of establishing that his injury caused him to suffer from incurable insanity or imbecility under the Labor Code. In part, her decision was based on a determination that Portillo had not established that he was a “mentally deficient” or “feebleminded” person “having a mental age of three to seven years and requiring supervision in the performance of routine daily tasks or caring for himself.”

Portillo appealed that decision to an Appeals Panel within the Division as part of the administrative review process. The Appeals Panel agreed with Portillo that the Hearing Officer used the incorrect standard in defining “imbecility” in reaching her determination. In particular, the Panel rejected the use of a “mental-age” standard, which it observed had been rejected by our sister court in Chamul v. Amerisure Mut. Ins. Co., 486 S.W.3d 116, 124 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). The Panel therefore reversed and remanded the matter to the Hearing Officer, with instructions to “apply the correct legal standard by considering additional factors,” such as those discussed in Chamul, as well as in a prior appeals panel decision discussing the issue.

On remand, the Hearing Officer framed and addressed this issue: “Is the Claimant entitled to lifetime income benefits from September 13, 2013 through the present based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility?” The Hearing Officer answered that question no, relying on the same evidence presented at the November hearing. Among other things, she found it significant that Portillo appeared alert and aware during the November hearing, had been able to testify and answer questions without assistance, and had provided detailed and “articulate” testimony, describing his accident and medical condition. She also found it significant that he lived independently with only “some assistance” needed for performing daily tasks, and that and his medical records showed he could perform various daily tasks with “complete independence.”

Portillo again appealed the decision to an Appeals Panel, but this time the Panel affirmed the Hearing Officer’s decision without a written opinion. Portillo thereafter filed his petition in the district court, seeking judicial review of the Division’s decision that he was not entitled to LIBs. See TEX. LAB. CODE ANN. § 410.252 (allowing losing party to seek judicial review of the division’s decision).

C. The Trial Court Proceedings

The trial court held a four-day jury trial in January of 2021, almost four years later. At trial, EPISD acknowledged that Portillo was injured on the job and that he suffered a traumatic brain injury as the result of his accident. The only disputed issue at trial was whether he suffered from “incurable imbecility” as the result of his accident.² The evidence at trial, as we discuss below, included expert medical testimony, lay witness testimony, and a host of medical records.

At the close of trial, as required by the Labor Code, the trial court informed the jury that the Appeals Panel had denied Portillo’s request for LIBs:

You are instructed that the Texas Department of Insurance Division of Workers’ Compensation Appeals panel determined on July 5th, 2016, plaintiff is not entitled to lifetime income benefits from September 13th, 2013, through the present based on a physically traumatic injury to the brain resulting in incurable imbecility.³

*3 The trial court then provided the jury with the following definition of “incurable imbecility,” which EPISD objected was incomplete or inaccurate:

A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits.

The jury was then asked this question:

Does Alejandro Portillo suffer from incurable imbecility from September 13, 2013 as a result of a physically traumatic injury to the brain?”

Based on the jury’s “yes” answer, the trial court entered a final judgment finding that Portillo was entitled to LIBs. This appeal followed.

II. ISSUES ON APPEAL

On appeal, EPISD contends that the trial court’s judgment should be reversed because the trial court: (1) incorrectly allowed the jury to determine that Portillo suffered from incurable imbecility on the date of trial, rather than the date of his administrative hearing; (2) erred by admitting evidence of his condition after the hearing date; (3) provided the jury with an incorrect definition of the term “incurable imbecility”; (4) erred in responding, when the jury asked for clarification of the definition by referring the jury to the evidence presented at trial, thereby suggesting that the evidence supported a finding of imbecility; (5) erred in allowing two witnesses to testify on Portillo’s behalf who were not previously disclosed to EPISD before the administrative hearing; (6) erred in refusing to admit various items of evidence submitted by EPISD; and (7) because there was both legally and factually insufficient evidence to support the jury’s verdict. We re-order the issues, but first provide an overview of the modified de novo review of Division decisions.

III. COMMISSION PROCEEDINGS AND MODIFIED DE NOVO REVIEW

The Workers’ Compensation Act provides a three-step administrative process for resolving disputed issues between an injured worker and the insurance carrier (or as here, a self-insured entity). The first step—a benefit review conference—is an informal dispute resolution proceeding. TEX. LAB. CODE ANN. § 410.021. If that process proves unsuccessful, the parties proceed to a contested case hearing. See id. §§ 410.151–.169. The contested case hearing’s scope is generally limited to the issues raised at the benefit review conference. Id. § 410.151. A party dissatisfied with the hearing officer’s decision can appeal to an appeals panel. See id. § 410.202. This appeal is limited to a review of the contested case hearing record. See id. § 410.203.

A party dissatisfied with a final Division decision may seek judicial review of the decision by filing a petition in the proper district court. See id. §§ 410.251; 410.252. The Labor Code provides for a “modified de novo” standard for conducting trials on petitions for judicial review of Division decisions involving eligibility and compensability issues. See id. § 410.301(a); Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 530 (Tex. 1995). Under the applicable “de novo” standard, an aggrieved party may only challenge the “issues” decided by the Division, and the party must specify the issues challenged in his petition. In turn, the trial is limited to those specified issues. See TEX. LAB. CODE ANN. § 410.302(b) (“A trial under this subchapter is limited to issues decided by the appeals panel and on which judicial review is sought. The pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved.”); see also Ferrell v. Univ. of Texas Sys., 583 S.W.3d 805, 808 (Tex. App.—El Paso 2019, no pet.).

*4 As our sister court in Eastland has held, this means that on judicial review, a trial court may only consider whether the claimant was entitled to lifetime income benefits on the day of a contested case hearing; in other words, the trier of fact on judicial review lacks jurisdiction to consider whether he became entitled to benefits after that date. See Texas Dep’t of Ins., Div. of Workers’ Comp. v. Jackson, 225 S.W.3d 734, 736–37 (Tex. App.—Eastland 2007, no pet.) (holding that trial court erred in admitting medical evidence of a claimant’s disability as of the date of trial, as the only issue to be considered was the claimant’s disability on the date of contested case hearing); see also Facility Ins. Corp. v. Gibbs, 298 S.W.3d 791, 792–93 (Tex. App.—Eastland 2009, no pet.) (insurance company was prohibited from presenting evidence that a defendant had improved after the date of the contested case hearing). The Eastland court also noted that if a claimant’s condition worsened after the contested case hearing, the remedy would be to “initiate a new administrative proceeding,” which—while perhaps “inefficient”—was in line with the legislative intent in providing for a limited de novo review of the Division’s decision. Jackson, 225 S.W.3d at 737.

In this unique trial de novo proceeding, the court also must inform the jury of the Division’s decision on each disputed issue that is submitted to the jury. See TEX. LAB. CODE ANN. § 410.304(a). The jury, however, is not bound by the Division’s decision, and is not required to give the decision any particular weight. See Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007); Garcia, 893 S.W.2d at 528 (recognizing that “the jury is not required to accord that decision any particular weight[.]”); see also Liberty Mut. Ins. Co. v. Camacho, 228 S.W.3d 453, 462 (Tex. App.—Beaumont 2007, pet. denied) (“the jury was entitled to give the decision of the appeals-panel whatever weight it thought the decision deserved”).

IV. THE TRIAL COURT’S INSTRUCTION DEFINING IMBECILITY

In its third issue on appeal—which we consider first given its importance to the case—EPISD contends that the trial court incorrectly instructed the jury on the definition of “incurable imbecility.” We break this issue into two distinct arguments. First, we consider whether the instruction that the court gave to the jury was legally correct, and if not, whether it harmed EPISD’s case such that reversal is required. And second, we consider whether, as EPISD contends, the trial court was required to give the jury an instruction that precisely mirrored the definition of imbecility used by the Division.

A. Applicable Law and Standard of Review for Charge Errors

A trial court must, when feasible, submit a cause to the jury by broad-form questions, and is also required to give “such instructions and definitions as shall be proper to enable the jury to render a verdict.” Columbia Rio Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 855 (Tex. 2009) (citing TEX. R. CIV. P. 277). “An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence.” Id. at 855–56, (citing Texas Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000)). In general, determining necessary and proper jury instructions is a matter within the trial court’s discretion, that we review for an abuse of that discretion. Hawley, 284 S.W.3d at 856; see also Mandlbauer, 34 S.W.3d at 911 (recognizing that a trial court has “considerable discretion to determine necessary and proper jury instructions”). However, to the extent that a challenge to a jury instruction involves the question of how to define a term used in a statute, we treat the issue as a question of statutory construction that we review de novo. See Chamul, 486 S.W.3d at 121 (treating question of whether the Division used the correct definition of the term “imbecile” in determining claimant’s right to recover LIBs as an issue of statutory construction to be reviewed de novo); see also Ferrell, 583 S.W.3d at 808–09 (“We review questions of statutory construction de novo, with our primary objective being to give effect to the Legislature’s intent.”).

*5 “A judgment will not be reversed for charge error unless the error was harmful because it probably caused the rendition of an improper verdict or probably prevented the [appellant] from properly presenting the case to the appellate courts.” Hawley, 284 S.W.3d at 856; see also TEX. R. APP. P. 44.1(a); Gunn v. McCoy, 554 S.W.3d 645, 675 (Tex. 2018) (same); see also Rhey v. Redic, 408 S.W.3d 440, 463 (Tex. App.—El Paso 2013, no pet.) (“We reverse the trial court only when the error in the charge amounted to such a denial of the rights of the complaining party that it probably caused the rendition of an improper judgment.”).

B. The Definition of “Incurable Imbecility”

1. General Principles of Statutory Construction

Section 408.161(a) of the Labor Code provides for the payment of lifetime income benefits under seven circumstances, including situations in which a worker has suffered “a physically traumatic injury to the brain resulting in incurable insanity or imbecility.” TEX. LAB. CODE ANN. § 408.161(a)(6). The Code does not, however, provide a definition for either incurable “insanity” or “imbecility,” and we must therefore look to general principles of statutory construction to determine the Legislature’s intent in using that term in the Labor Code, and in turn, how the term should be defined to a jury. See Chamul, 486 S.W.3d at 125 (recognizing that the term “imbecility” has been in the Labor Code for almost a century, always without an assigned definition).

In construing a statute, our goal is to determine and give effect to the Legislature’s intent. Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). In determining that intent, a court must first look at the statute’s plain, common meaning and presume that the Legislature intended the plain meaning of its chosen words, unless a different meaning is “apparent from the context or the plain meaning leads to absurd or nonsensical results.” See Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011); Allen, 15 S.W.3d at 527. When, as here, a term is undefined by a statute and its meaning is not otherwise apparent, we typically determine its meaning by first looking to the term’s dictionary definitions and then consider the term’s usage in other statutes, court decisions, and similar authorities, if any. Texas State Bd. of Exam’rs of Marriage & Fam. Therapists v. Texas Med. Ass’n, 511 S.W.3d 28, 35 (Tex. 2017) (“[W]e consult dictionaries to discern the natural meaning of a common-usage term not defined by contract, statute, or regulation.”); see also Chamul, 486 S.W.3d at 125 (“It is appropriate to reference a dictionary to discern the common, ordinary meaning of a statutory term that has been left undefined.”).

But as the court in Chamul recognized, dictionary definitions may vary over the years, and therefore, in construing the Legislature’s intent in using a statutorily undefined term, it is appropriate to consider how the term was defined in dictionaries published as close in time to the enactment of the statute as possible.⁴ Chamul, 486 S.W.3d at 125 (“in the absence of a specific amendment, a statute should be given the meaning which it had when enacted”) (citing Taylor v. Firemen’s & Policemen’s Civ. Serv. Comm’n of City of Lubbock, 616 S.W.2d 187, 189 (Tex. 1981)).

2. The Holding in Chamul

*6 Our sister court in Chamul provided an in-depth analysis of how the term “imbecility” should be defined, which the Appeals Panel cited favorably in its first decision reversing the Hearing Officer’s decision. In Chamul, the Division denied a worker’s claim that he was entitled to LIBs after he suffered a traumatic brain injury that he claimed led to incurable imbecility. 486 S.W.3d at 119–20. On petition for judicial review, the trial court granted summary judgment for an insurance company on that issue, ruling that the worker did not present sufficient evidence to support his claim. Id. at 120–21. In so ruling, the trial court relied on a definition of “imbecility” referring to “individuals with a mental age between three and seven.” Id. at 127–28. On appeal, however, the Houston court observed that this “mental-age” based definition came from dictionary definitions that relied on the earlier work of the “now-repudiated eugenics movement of the late-nineteenth to mid-twentieth century.”⁵ Id. at 117, 121. It rejected that definition, finding it significant that the Texas Legislature first used the term, “imbecility,” in the workers’ compensation statutes in 1917, thereby making it appropriate to instead look to dictionary definitions of the term in use at that approximate time, specifically from 1903 to 1923. Id. at 126–28.

In reviewing the applicable dictionary definitions, the court primarily relied on the 1910 edition of Black’s Law Dictionary, which provided the following general definition of the term:

A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits ... the test of legal capacity in this condition, is the stage to which the weakness of mind has advanced, as measured by the degree of reason, judgment, and memory remaining.

Id. at 125, (citing Black’s Law Dictionary 632 (2d ed. 1910)).⁶ The court noted that this definition remained in effect until the 1951 edition of Black’s. Id. (citing Black’s Law Dictionary (4th ed. 1951)). The court also recited several other dictionary definitions of “imbecility” that were in effect during the relevant time frame, which included: (1) “weakness of intellect; nearly allied to idiocy”; (2) “a form of mental disease consisting in mental deficiency ... Idiocy.” (3) “destitute of strength, either of body or of mind,—weak, feeble, impotent, decrepit” (4) “feebleness of mind[.]” Id. However, other than to review these dictionary definitions, the court in Chamul did not provide any guidance on how a trial court should define the term “imbecility” when instructing the jury. Instead, its holding was limited to finding that the trial court incorrectly applied the “mental-age” based definition in granting the insurance company’s motion for summary judgment, and remanding the matter to the trial court for further proceedings. Id. at 128–29.

3. The Appeals Panel’s Decision

*7 When the Appeals Panel in Portillo’s case initially remanded the case to the Hearing Officer, it directed the Hearing Officer to consider the various “factors” discussed in Chamul to determine whether Portillo suffered from incurable imbecility, as well as the factors discussed in an earlier Appeals Panel Decision, referred to as APD 121131-s.⁷ In that decision, the panel cited two cases. First, it cited Nat’l Union Fire Ins. Co. v. Burnett, 968 S.W.2d 950, 955 (Tex. App.—Texarkana 1998, no pet.), in which the court considered the definition of incurable “insanity,” rather than “imbecility.” In dicta, however, the court cited a Virginia case that defined the term, “imbecility,” under Virginia’s workers compensation statutes as “an irreversible brain injury which renders the employee permanently unemployable and so affects the non-vocational quality of his life by eliminating his ability to engage in a range of usual cognitive processes ....” Id. (citing Barnett v. D.L. Bromwell, Inc., 6 Va.App. 30, 366 S.E.2d 271, 274 (1988)). The Texarkana court, however, did not state its approval of that definition, or otherwise suggest that it reflected the correct definition of the term as used by the Texas Legislature.⁸

Second, the panel cited a Michigan case that defined the term, “imbecility.” under its workers compensation statutes as a person who suffers “severe cognitive dysfunction,” and added that “[s]ocial or cognitive dysfunction is ‘severe’ if it affects the quality of the worker’s personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored.” Modreski v. Gen. Motors Corp., Fisher Body Div., 417 Mich. 323, 337 N.W.2d 231, 236 (1983) (internal quotation marks omitted). Unlike the Virginia court, the Michigan court stated that its focus was not on the person’s “ability to work,” but on the claimant’s “ability to function outside the work setting.” Id.

And finally, although Chamul expressly stated that more recent definitions of imbecility should not be used in determining whether a person suffers from imbecility, the panel’s decision in APD 121131-s favorably cited the following dictionary definitions of “imbecility” from the 1990’s: (1) BLACK’S LAW DICTIONARY (6th ed. 1990), which refers the reader to the definition of “insanity”; (2) DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (28th ed. 1994), which defines imbecility as: “the condition of being an imbecile; moderate or severe mental retardation”; and (3) WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991), which defines an imbecile as being a “mentally deficient person, especially a feebleminded person having a mental age of three to seven years and requiring supervision in the performance of routine daily tasks or caring for himself.”

C. The Parties’ Proposed Instructions

At the jury charge conference, the court proposed the following instruction, which it stated was based on the definition of “imbecility” found in the 1910 edition of Black’s Law Dictionary, as cited by the court in Chamul:

A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits ... the test of legal capacity in this condition, is the stage to which the weakness of mind has advanced, as measured by the degree of reason, judgment, and memory remaining.

But at Portillo’s request, the trial court omitted the last portion of the definition (language relating to the test for “legal capacity”). Over EPISD’s objection, the trial court agreed, and, as set forth above, it gave the jury the following definition of the term “incurable imbecility”:

*8 A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits.

At the charge conference, EPISD objected to the instruction, asserting that it did not accurately state the law as it did not include enough factors to help the jury determine whether Portillo suffered from incurable imbecility. EPISD instead requested the following instruction, contending that it more accurately reflected the law and included more of the necessary factors to be considered by the jury:

Alejandro Portillo seeks lifetime-income benefits for an injury that he claims has caused him to be an “incurable imbecile.”

“Incurable imbecility” occurs when:

1. The person’s injury is an irreversible brain injury; and

2. The person’s injury causes him to be permanently unemployable; and

3. The person suffers from severe cognitive dysfunction.

Cognitive dysfunction is “severe” if it so affects a person’s personal, non-vocational quality of life such that it eliminates the claimant’s ability to perform most activities of daily living and caring for oneself.

The trial court, however, overruled EPISD’s objections, and declined to give its proposed instruction.

D. Error Preservation

As a preliminary matter, Portillo argues that EPISD did not preserve error because it failed to submit a substantially correct instruction in place of the one given to the jury. As part of that argument, Portillo claims that the proposed instruction that EPISD submitted was not substantially correct. We disagree.

Rule 278 only requires a party to submit a “substantially correct” instruction to preserve a complaint of jury charge error when the party is complaining of the trial court’s failure to provide any instruction or definition on a particular point. See TEX. R. CIV. P. 278 (“Failure to submit a definition or instruction shall not be deemed a ground for reversal of the judgment unless a substantially correct definition or instruction has been requested in writing and tendered by the party complaining of the judgment.”); see also Yellow Cab & Baggage Co. v. Green, 154 Tex. 330, 277 S.W.2d 92, 93 (1955) (“When the court’s charge contains no instruction, the complaining party must accompany his clear and specific objections to such omission with a substantially correct definition or explanatory instruction.”). But when a party is complaining that the trial court gave an erroneous instruction or definition to the jury, the complaint is preserved if the appellant objected to the charge by pointing out “distinctly” the basis for its objection to the trial court. See TEX. R. CIV. P. 274 (“A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction ... is waived unless specifically included in the objections.”); see also Green, 277 S.W.2d at 93.

Here, EPISD made two distinct objections to the instruction: (1) it was not legally correct because it failed to include the “legal capacity” language found in the 1910 version of Black’s Law Dictionary; and (2) it was deficient for failing to include enough factors to guide the jury in making its determination. Because EPISD only preserved error based on these two objections, our review will be similarly limited to the arguments EPISD raised in those objections.

E. Analysis: The Jury Instruction was Legally Correct

*9 We first consider EPISD’s argument that the instruction the trial court gave was legally incorrect as it was too “limited,” and that it should have included all, or at least more, of the different factors that the Appeals Panel discussed in its decision. We disagree.

First, as explained above, other than its reference to the Chamul opinion, the Appeals Panel’s decision provided little guidance on how a Texas court should define the term, “incurable imbecility,” as used in our Labor Code, when instructing a jury. And we agree with the court in Chamul that in determining the Legislature’s intent in using that term in the Code, we must focus on the definitions of “imbecility” that were in effect from the early 1900’s, which in turn all center on two critical factors—a “weakness” of mind and a “feebleness of the intellectual faculties.” Id. at 125. And here, the trial court included both factors in its definition of imbecility. In addition, other than omitting the “legal capacity” language, the trial court’s instruction defining “imbecility” was a direct quote from the definition of imbecility found in the 1910 edition of Black’s Law Dictionary, which the court in Chamul favorably cited.⁹ Id. at 125 (citing BLACK’S LAW DICTIONARY (2d ed. 1910)).

EPISD nevertheless contends that the trial court’s instruction omitted two factors: “permanently unemployable” and “severe cognitive dysfunction.” But neither of those factors were required by the Chamul court, nor were they in any of the dictionary definitions cited in its opinion. Chamul, 486 S.W.3d at 125. While the court in Chamul discussed the concept of employability, it did not state that a claimant had to prove that he was “permanently unemployable” in order to establish that he suffered from incurable imbecility. To the contrary, the court in Chamul recognized that the claimant in that case was still employable, although at a lower level than he was before the accident. Id. at 128. We thus do not believe that the trial court abused its discretion in omitting the concept of “permanently unemployable” from the definition of imbecility in the jury charge.

Nor did the court in Chamul state that a claimant had to be diagnosed with “severe cognitive dysfunction” before he could be found to suffer from incurable imbecility. In its opinion, the court referenced the fact that there was conflicting evidence in the record about the claimant’s “cognitive problems” and how those problems affected his employability and everyday activities, but it never stated that a diagnosis of “severe cognitive dysfunction” was a necessary factor in determining whether a worker suffered from imbecility. Id. at 118–119, 128. But in any event, the trial court’s definition of imbecility in this case did include the concept of “severe cognitive dysfunction,” even if it did not use those exact words. As the Appeals Panel noted in its decision, the Michigan Supreme Court, recognized that “[s]ocial or cognitive dysfunction is ‘severe’ if it affects the quality of the worker’s personal, nonvocational life in significant activity comparably to the loss of two members or sight of both eyes ....” Modreski, 337 N.W.2d at 236 (emphasis added). And here, the trial court’s jury instruction conveyed this same concept of a significantly diminished quality of life, when it instructed the jury that imbecility required a finding that the claimant suffered from such a “weakness of mind” or “feebleness of the intellectual faculties,” that he was left with “only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to physical wants and habits.”

*10 We also are not troubled by the fact that the trial court chose to omit the second portion of the definition of imbecility included in the 1910 version of Black’s Law Dictionary, which stated that the “test of legal capacity in this condition, is the stage to which the weakness of mind has advanced, as measured by the degree of reason, judgment, and memory remaining.” Although EPISD recognizes that this portion of the definition was not a model of “clarity,” it nevertheless contends that it “would have provided more guidance to the jury,” and would have at least alerted the jury that imbecility included a weakness of mind with respect to a person’s “reason, judgment and memory.” As explained above, however, the trial expressly instructed the jury that the definition of imbecility included a “weakness of mind” and a “feebleness of the intellectual faculties.” And as a person’s intellectual faculties includes his reason, judgment and memory, we find that the trial court’s instruction clearly alerted the jury that Portillo’s brain injury had to impact his abilities in those respects.

We also find that—rather than clarifying the matter for the jury—using the term, “legal capacity,” may have had the opposite effect of confusing the jury. As the Texas Supreme Court has recognized, the test for legal capacity—such as a person’s capacity to sign a will—“involves a legal definition and a legal test,” and is distinct from the issue of a person’s mental condition. See generally Carr v. Radkey, 393 S.W.2d 806, 810, 813 (Tex. 1965) (recognizing the need in will contest case to distinguishing between “(1) testimony relating purely to legal capacity, a question involving legal definitions, and (2) testimony relating to mental condition”). We therefore find no error in the trial court’s decision to omit this language from the definition of imbecility in instructing the jury.

Accordingly, we conclude that the trial court provided the jury with a legally correct and sufficiently inclusive definition of “incurable imbecility,” as that term was used in the Texas Labor Code.

F. The Disputed Issue on Appeal was Portillo’s Entitlement to LIBs

We next consider EPISD’s argument that the trial court’s definition of “incurable imbecility” deviated from the definition given by the Appeals Panel in its decision, and that this constituted an impermissible “change” to the “issues” presented to the Division. In making this argument, EPISD correctly points out that in its petition for judicial review of a Division decision, an aggrieved party may only challenge the “issues” decided by the Division, and in turn, the trial in the district court is limited to those specified issues. See TEX. LAB. CODE ANN. § 410.302(b) (providing that on judicial review of issues of compensability and eligibility, a trial is “limited to issues decided by the commission appeals panel and on which judicial review is sought”). From this, EPISD asserts that the only “issue” to be considered by the jury was whether—under the same “definition” used by the Division—Portillo suffered from “incurable imbecility.” According to EPISD, the trial court therefore exceeded its jurisdiction by submitting a different definition than the one used by the Division, which it contends had the effect of “moving the goalposts” in Portillo’s favor, making it easier for him to meet his burden of proof at trial.

We disagree with EPISD’s argument for several reasons. First, as we have previously recognized, a trial court has the authority to consider legal errors committed by the Division on judicial review. See Region XIX Serv. Ctr. v. Banda, 343 S.W.3d 480, 487 (Tex. App.—El Paso 2011, pet. denied) (issue of whether expert testimony was needed to establish a loss was a “legal question which is reviewed de novo”). And, as explained above, the question of whether a trial court erred in defining a term used in a statute is a question of statutory construction that a court reviews de novo in a judicial review proceeding. See Chamul, 486 S.W.3d at 121. Thus, to require a trial court to use an Appeals Panel’s definition of a term used in the Labor Code—even if the trial court believed the definition to be erroneous—would take away the court’s authority to consider legal errors of this nature on judicial review and could lead to the absurd result of requiring a trial court to give a legally incorrect definition of a term to a jury. And as explained above, even if its definition differed from the one used by the Appeals Panel, we find that the trial court’s definition was the legally correct one to use.

*11 Equally important, we do not believe that using a different definition of the term “imbecility” somehow changed the “issue” to be decided by the jury. The trial court was ultimately charged with deciding whether the “final decision” of the Appeals Panel on compensability or eligibility was correct. See State Off. of Risk Mgmt. v. Martinez, 539 S.W.3d 266, 272–73 (Tex. 2017) (recognizing that the “issue eligible for judicial review is ‘a final decision of the appeals panel regarding compensability or eligibility’ ”) (quoting TEX. LAB. CODE ANN. § 410.301(a)). The Hearing Officer’s final ruling, as affirmed by the Appeals Panel, was that: “Complainant is not entitled to Lifetime Income Benefits from September 13, 2013 through the present on a physical traumatic injury to the brain resulting in incurable insanity or imbecility.” Accordingly, the “issue” on judicial review in Portillo’s case was whether the Division erred in making this determination—the very question that the jury was asked to answer in the jury charge. See Pac. Employers Ins. Co. v. Dayton, 958 S.W.2d 452, 456 (Tex. App.—Fort Worth 1997, pet. denied) (recognizing that the disputed issue in employer’s appeal was “whether the workers’ compensation panel correctly decided that appellee was entitled to LIBs.”); Gibbs, 298 S.W.3d at 792–93 (issue presented to the hearing officer was whether claimant was entitled to lifetime income benefits).

And finally, even if we were to treat the question of how to define “imbecility,” as an “issue” that the Division needed to decide in the administrative proceedings before Portillo could raise the issue in the trial court, the Division directly addressed how to define that term in the first decision that the Appeals Panel issued. We therefore conclude that the parties were free to argue over what they believed was the legally correct definition of that term in the judicial review proceedings, and in turn, the trial court was free to adopt what it believed was the correct definition of that term in instructing the jury.

Accordingly, for the reasons set forth above, we find no error in the trial court’s instruction defining imbecility.

EPISD’s Issue Three is overruled.

V. THE TRIAL COURT’S RESPONSE TO THE JURY’S QUESTION

In Issue Four, EPISD contends that the trial court gave an erroneous response to a note that the jury sent to the court during its deliberations, asking for “clarification or simplification of the definition of incurable imbecility.” In response, the trial court instructed the jury: “Do not look up more definitions of words other than what is in the jury charge.... Use your recollection from the witnesses testimony and/or use what is in the exhibits of the trial records.” EPISD objected to the second portion of the instruction, asserting that “there was no definition in the testimony or exhibits,” and that it would be “confusing” to the jury to look to the record in answering the question, as it implied that the jury could “find” evidence of Portillo’s imbecility there.

On appeal, EPISD raises a different challenge to the jury’s response, arguing that it constituted an “improper comment on the weight of the evidence.” When raising an issue on appeal, a “party is confined to the grounds of [its] objection as stated in the trial court.” Knight v. Knight, 131 S.W.3d 535, 539 (Tex. App.—El Paso 2004, no pet.); see also Texas Dep’t of Transp. v. Flores, 576 S.W.3d 782, 795 (Tex. App.—El Paso 2019, pet. denied) (recognizing that objections to a jury charge and requests for instructions “must comport with the arguments made on appeal”). Here, EPISD is raising an entirely new theory for why the response was erroneous, and we would be “hard pressed to fault” a trial court for overlooking a theory that was not presented to it. Knight, 131 S.W.3d at 539; see generally 4 TEX. JUR. 3D Appellate Review § 94 (2023). Accordingly, by failing to make the trial court aware of this challenge to the response, EPISD failed to preserve this issue for our review. Knight, 131 S.W.3d at 539 (citing TEX. R. APP. P. 33.1(a)(1)(A)).

Moreover, even if we were to consider this newly-raised theory, we would not find that the trial court’s response constituted an improper comment on the weight of the evidence. A trial court impermissibly comments on the weight of the evidence when it “indicate[s] the opinion of the trial judge as to the verity or accuracy of the facts in inquiry.” In re M.S., 115 S.W.3d 534, 538 (Tex. 2003). By example, if a trial court directs the jury to consider a particular item of evidence, it risks making an impermissible comment on the evidence. See Bartlett v. State, 270 S.W.3d 147, 151–52 (Tex. Crim. App. 2008) (a judicial instruction that singles out a particular piece of evidence may constitute an impermissible comment on the weight of the evidence because such an instruction “singles out that particular piece of evidence for special attention”). Here, however, the trial court did not direct the jury to consider one particular piece of evidence, and instead directed the jury to consider the entire record, which as explained below, contained conflicting evidence on whether Portillo suffered from incurable imbecility. Thus, the judge’s response did not suggest that it had formed an opinion that the facts presented at trial were in Portillo’s favor, or that it had otherwise formed an opinion of the merits of Portillo’s case.

*12 EPISD’s Issue Four is overruled.

VI. THE ULTIMATE QUESTION TO THE JURY

In Issue One, EPISD argues that the trial court erred in asking the jury to answer the following question: “Does Alejandro Portillo suffer from incurable imbecility from September 13, 2013, as a result of a physically traumatic injury to the brain?” In the trial court, EPISD objected that the phrasing framed the question in the present tense by using the term “does,” asserting that the question in effect asked the jury whether it believed Portillo suffered from incurable imbecility at the time of trial, rather than at the time of his contested case hearing. In its place, EPISD proposed the following question: “Do you find that Alejandro Portillo sustained an injury to his brain that caused him to be an “incurable imbecile,” on or before July 5, 2016, the date of the Texas Workers’ Compensation Commission’s decision?”

On appeal, EPISD renews its argument, and contends that the trial court lacked jurisdiction to ask the jury about Portillo’s condition at the time of trial, instead of at the time of the administrative hearing.¹⁰ EPISD relies on the principle, as described above, that on judicial review a trial court may only consider whether the claimant was entitled to lifetime income benefits at the time of the administrative proceedings, rather than at the time of trial. See Jackson, 225 S.W.3d at 736; Gibbs, 298 S.W.3d at 792–93 (reaffirming that a trial court’s jurisdiction on judicial review is limited to the worker’s entitlement to lifetime benefits as of the date of the contested case hearing). Although we agree with EPISD’s view of the law, we find no reversible error in the question the trial court asked the jury to answer.

Significantly, the trial court did not ask the jury to consider whether Portillo first became entitled to LIBs after the date of the contested case hearing. Instead, it required the jury to find that Portillo suffered from incurable imbecility before that date—from the date of his accident on September 13, 2013, and, as Portillo points out, this placed a more onerous burden on him than the law required. By asking the jury whether Portillo “does” suffer from incurable imbecility “from” the date of his accident, the question required the jury to determine whether Portillo continuously suffered from “incurable imbecility” beginning on the date of his accident to the present. And, as Portillo points out, this directly corresponds with the notion that his condition was in fact “incurable,” or in other words, that it began in 2013 and that it never resolved after that time.

We therefore conclude that any error in the trial court’s question to the jury worked in EPISD’s favor, as it placed a higher burden on Portillo to establish an earlier eligibility date than required by the Labor Code, and therefore did not lead to an improper judgment. Accordingly, we do not find this to be grounds for reversal of the jury’s verdict. See Gunn, 554 S.W.3d at 675.

*13 EPISD’s Issue One is overruled.

VII. SUFFICIENCY OF THE EVIDENCE

In Issue Seven, EPISD contends that the evidence submitted at trial was both “legally and factually insufficient” to support the jury’s finding that Portillo suffered from that condition. For the reasons set forth below, we disagree.

A. Standard of Review

In determining whether evidence is legally sufficient to support a jury finding we consider all evidence favorable to the finding if a reasonable fact finder could, and disregard all evidence contrary to the finding unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); E. Texas Educ. Ins. Ass’n v. Ramirez, 631 S.W.3d 908, 918 (Tex. App.—El Paso 2021, pet. denied). Evidence is legally insufficient only when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of 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 mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. City of Keller, 168 S.W.3d at 810. If more than a scintilla of evidence supports the questioned finding, the “no evidence” point fails. State Office of Risk Mgmt. v. Escalante, 162 S.W.3d 619, 624 (Tex. App.—El Paso 2005, pet. dism’d). The ultimate test for legal sufficiency is 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; Banda, 343 S.W.3d at 484–85.

In reviewing a challenge to the factual sufficiency of the evidence supporting a vital fact, we consider, weigh, and examine all the evidence in the record, both supporting and against the finding, to decide whether the verdict should be set aside. Banda, 343 S.W.3d at 489 (citing Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989)). When a party attacks the factual sufficiency of an adverse finding on an issue on which the opposing party has the burden of proof, we should set aside the verdict only if the evidence supporting the jury finding is so weak as to be clearly wrong and manifestly unjust. Id. (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)); see also Ramirez, 631 S.W.3d at 918 (“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.”). In conducting our review of either factual or legal sufficiency, we keep in mind that the fact finder is the sole judge of the credibility of witnesses and the weight to be given their testimony, and we therefore cannot substitute our judgment for that of the jury. Ramirez, 631 S.W.3d at 918.

In reviewing the sufficiency of the evidence, we will not consider the evidence that EPISD contends was wrongfully admitted at trial, and we will instead address the admissibility of such evidence—and whether its admission harmed EPISD’s case—in a separate discussion below.

B. The Evidence was Legally Sufficient to Support the Jury’s Verdict

*14 We first consider the legal sufficiency of the evidence and conclude that Portillo provided more than a “scintilla” of evidence from which a jury could have found that Portillo suffered from incurable imbecility as the result of his traumatic brain injury.

1. The Need for Expert Medical Testimony and Evidence

As a general proposition, expert witness testimony or other medical evidence is required in a workers compensation case “to establish the nature of an injury, whether it is temporary or permanent, and the extent of disability or incapacity resulting from the injury.” Banda, 343 S.W.3d at 487 (citing Mendoza v. Fidelity & Guaranty Ins. Underwriters, Inc., 606 S.W.2d 692, 695 (Tex. 1980)). Such evidence is needed on those factors as they are generally considered to be factors that are “beyond the knowledge or experience of the layperson.” Id., (citing FFE Transp. Services, Inc. v. Fulgham, 154 S.W.3d 84, 89–90 (Tex. 2004)). But once those questions have been answered, the ultimate question of whether the injury left the claimant in the condition required to receive an award of LIBs—in this case, incurable imbecility as defined in the jury charge—does not require expert testimony, as the answer to that question is not beyond the knowledge and experience of the jurors. Id. at 487–88 (recognizing that the ultimate question of whether the claimant’s injuries to her hand and feet rendered them of no “substantial utility” to her was a question the jury could answer without expert testimony). We therefore review the record to determine whether there is sufficient medical evidence to support the jury’s finding of the necessary factors, and conclude that there was.

a. The Nature of the Injury

First, as the parties appear to agree, the record contains sufficient medical evidence to establish the nature of Portillo’s injury—that he suffered from a traumatic brain injury resulting from his fall. Drs. Cavaretta and Spier both diagnosed Portillo with this condition based on their review of his medical records and their own physical examinations of him.¹¹ And while EPISD may disagree with how severe that injury was, or the nature of the symptoms that Portillo suffered as its result, EPISD does not point to anything in the record to suggest that Portillo did not suffer from any such injury.

b. The Extent of Disability Resulting from the Injury

Next, we consider whether the record contains sufficient medical evidence to support a finding that Portillo suffered a “disability” as the result of his injury, i.e., that he suffered from “incurable imbecility.” EPISD contends that there was no direct testimony to support this factor, apparently because, in describing Portillo’s condition, none of the doctors who examined Portillo used the exact language set forth in the jury charge to define incurable imbecility; in other words, they did not state that Portillo suffered from an “advanced decay and feebleness of the intellectual faculties,” or that he suffered from a “weakness of mind” that left him with “only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to the physical wants and habits.” While none of the doctors parroted the exact language found in the jury charge, as explained below, at least three of the doctors who examined Portillo (Feldman, Cavaretta, and Spier), all reported that Portillo suffered from symptoms that would support a finding that he did in fact suffer from a feebleness of his intellect and a weakness of mind—which we conclude was sufficient to support the jury’s finding on the ultimate issue of whether Portillo suffered from incurable imbecility. See Banda, 343 S.W.3d at 487–88 (recognizing that claimant need not provide expert witness evidence on the “ultimate issue” to be answered by the jury).

*15 First, Portillo submitted Dr. Feldman’s reports in which he expressed his belief that Portillo’s brain injury had caused him to suffer both “social dysfunction” and “cognitive dysfunction,” which affected the quality of his personal life, had rendered him “permanently unemployable,” and had ultimately caused him to suffer from “incurable imbecility.” And at trial, Dr. Feldman further explained that “cognitive dysfunction” relates to “confusion”—which he believed Portillo exhibited—as well as “thought processing” and “memory recall,” which he described in Portillo’s case as being “very poor.” And he concluded his testimony by observing that Portillo’s “cognitive and psychological functioning” were “severely affected” by his traumatic brain injury[.]¹²

In addition, the Division’s doctor, Dr. Cavaretta, stated in his report that, based on his review of Portillo’s medical records and his physical examination of him, Portillo suffered from “significant cognitive and emotional deficits,” as well as “significant impairment in his mental status,” resulting from his head injury. Dr. Cavaretta also expressed his opinion that Portillo’s symptoms, which included “significant difficulty with balance,” attention deficits, anxiety, depression, and “impaired executive function, concentration, recent memory, poor judgment, poor abstract thinking, and emotional instability[,]” were the result of his head injury. Although he noted that Portillo was “able to carry out most of the activities of daily living,” he nevertheless concluded that Portillo was “markedly limited” in engaging in “more complex activities,” such as driving and following directions. And he concluded that Portillo’s deficiencies affected his “ability to fully take care of himself [and] to pursue his previous occupation.”¹³

And finally, Dr. Spier reported that, based on his examination of Portillo in December 2013, he concluded that Portillo was suffering from confusion, headaches, dizziness and “decreased balance [and] attention” as the result of his traumatic brain injury. He also reported that Portillo had “concussive symptoms,” despite negative imaging, and had “[c]hanges in balance, cognition and poor headache control.” And over a year after his accident, Dr. Spier reported that Portillo continued to suffer from “post concussive symptoms” as the result of his “previous mild, but complicated traumatic brain injury[.]”

*16 We conclude that this medical evidence was sufficient to support a finding on the nature of Portillo’s “disability, and the cause of that disability, i.e., that his brain injury had caused him so suffer the type of “weakness of mind” or “feebleness of [his] intellectual faculties” as described in the jury charge.

c. The Permanency of Portillo’s Condition

We also conclude that the record contained sufficient medical evidence that Portillo’s condition was permanent, or in the words of the statute, that his condition was “incurable.” In his report, Dr. Feldman expressed his opinion that by the time he evaluated Portillo in June 2014, almost a year after his accident, Portillo’s symptoms were “worsening,” and he then stated: “In my opinion, based on reasonable medical probability and my evaluation, it appears unlikely that Mr. Portillo’s cognitive and social functions will be restored” even with cognitive therapy. As well, he reported that he believed Portillo’s condition had rendered him “permanently unemployable.” Dr. Feldman confirmed this diagnosis at trial, adding his opinion that “[t]o have such a fall in such a situation and hitting your head and not having permanent brain damage would be beyond unusual.” As well, Dr. Cavaretta also provided a similar diagnosis, stating that although he believed that “mild improvement” could be expected from receiving physical therapy, he believed that “[a]dditional therapies would not significantly result in any major improvement in [Portillo’s] mental or physical condition[.]” In addition, as set forth above, Dr. Spier reported that Portillo’s diagnosis remained the same over a year after his accident. Importantly, we note that EPISD provided no medical evidence to support a contrary finding that Portillo’s symptoms had improved, or could improve, with any type of therapy or medical treatment. We therefore conclude that there was sufficient medical evidence to support a finding that Portillo’s condition was permanent.

Accordingly, we conclude that Portillo presented more than a “scintilla” of evidence at trial to establish that he suffered from incurable imbecility as the result of his traumatic brain injury, which was legally sufficient to support the jury’s verdict. See Ramirez, 631 S.W.3d at 925 (finding that appellee’s testimony about her condition, together with that of her treating physician, provided more than a scintilla of evidence that her injury to her feet—which resulted from a fall at work—was the producing cause of her total loss of use of both feet at or above the ankles, and her consequent inability to walk).

C. The Evidence was Factually Sufficient to Support the Verdict

We also conclude that the evidence was factually sufficient to support the jury’s verdict. As explained above, in a factual sufficiency review, we review not only the evidence that Portillo presented at trial to support his claim that he suffered from incurable imbecility, but the conflicting evidence that EPISD presented to support its claim that he did not, to determine whether the jury’s verdict was “clearly wrong and manifestly unjust.” See Banda, 343 S.W.3d at 489.

EPISD contends that the record contains overwhelming evidence that Portillo did not suffer from imbecility such that the jury’s verdict was in fact clearly wrong and unjust. In particular, EPISD contends that several of the doctors who examined Portillo stated that in general, they found his mental status was normal, that “he was able to follow commands, he was lucid, he did not have consistent symptoms of problems with cognition, and his comprehension was normal[.]” Yet a closer look at the evidence to which EPISD refers reveals that it is conflicting at best. First, EPISD refers to the reports made by Drs. Kwasi Adzotor and Ajai Agarwal at Sierra Providence East Medical Center, who examined Portillo on April 16, 2015, contending that both doctors found Portillo’s mental condition to be normal. These two doctors, however, provided conflicting reports on Portillo’s mental condition. For example, while Dr. Agarwal described Portillo as being “alert, oriented [and] interactive,” Dr. Adzotor provided the following statement about Portillo: “Patient was somnolent, poorly arouses. Soft speech, tangential language, fund of knowledge, affect impaired.” Dr. Adzotor also stated that Portillo was “encephalopathic and a very poor historian.”¹⁴

*17 EPISD also points to a report that Dr. Spier made, in which he stated that on one visit, Portillo’s “speech is clear” and he was “alert [and] oriented.” As even EPISD points out, however, Dr. Spier also reported that Portillo suffered from “confusion,” had “[d]ecreased balance [and] attention,” had changes in “cognition,” and had a “complicated traumatic brain injury consistent with post concussive symptoms” that still existed over a year and a half after his accident. And finally, EPISD also finds it significant that another doctor, Dr. Javed Iqbal, who examined Portillo in June 2015, reported that during his exam, Portillo demonstrated that his speech was fluent and could follow commands; however, we note that Dr. Iqbal also stated that his neurological examination revealed that Portillo suffered from dizziness, fainting, headaches and numbness, and that Portillo had complaints of other neurological symptoms.¹⁵

Accordingly, while there may have been some inconsistencies in the medical records that were presented at trial, they are not so significant that they render the jury’s verdict factually insufficient. To the contrary, as discussed above, the medical records contained ample information from which a jury could conclude that Portillo did in fact suffer from incurable imbecility as the result of his traumatic brain injury. And along with the medical evidence, Portillo himself testified at trial regarding his symptoms and condition after the accident, describing his dizziness, his inability to work in his chosen field or engage in his former hobbies, his need for assistance with everyday tasks, his inability to safely drive a car, and his general struggles and frustration with the limitations he faced.

Accordingly, while there are conflicts in the record, our review of the record as a whole, reveals that they are not so overwhelming or of such significance to warrant a finding that the jury’s verdict was against the great weight of the evidence or that it was otherwise clearly wrong or manifestly unjust. See Ramirez, 631 S.W.3d at 926 (finding that—despite conflicts in the evidence—the record contained factually sufficient evidence to uphold jury’s verdict finding claimant to have suffered the permanent loss of her ability to walk resulting from a fall at work).

EPISD’s Issue Seven is overruled.

VIII. THE TRIAL COURT’S RULINGS ADMITTING PORTILLO’S EVIDENCE

In Issues Two and Five, EPISD contends that the trial court erroneously admitted the testimony of Portillo’s brother, Hector Portillo, and his daughter, Roxanne Portillo, for two separate reasons. First, EPISD contends that neither witness was disclosed at the administrative hearing level as a potential witness, and that the trial court was therefore required to exclude their testimony from evidence. And second, EPISD contends that the trial court erred in allowing Roxanne to testify about Portillo’s worsening condition after the date of the administrative hearing, and her perception that it was necessary to move him to live with her in San Diego in 2018 due to his deteriorating condition. As explained below, we conclude that, even assuming that the admission of their testimony was error, any such error was harmless given the cumulative nature of their testimony.

A. Standard of Review

We review a trial court’s decision to admit or exclude evidence in a judicial review proceeding for an abuse of discretion. See Allen, 15 S.W.3d at 528; Escalante, 162 S.W.3d at 626. A trial court abuses its discretion when it acts without reference to any guiding rules or principles, or when it acts in an “arbitrary or unreasonable” manner. See also Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985).

*18 However, even when a trial court abuses its discretion in admitting certain evidence, reversal is appropriate only if the error was harmful—that is, if it “probably resulted in an improper judgment.” U-Haul Intern., Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012); TEX. R. APP. P. 44.1. “Probable error is not subject to precise measurement [and] is something less than certitude,” and is instead “a matter of judgment drawn from an evaluation of the whole case from voir dire to closing argument, considering the state of the evidence, the strength and weakness of the case, and the verdict.” TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 242–43 (Tex. 2010) (quoting Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 871 (Tex. 2008)) (internal quotation marks omitted). A successful challenge to an evidentiary ruling usually requires the complaining party to demonstrate that the judgment turns on the evidence excluded or admitted. Flores, 576 S.W.3d at 798 (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex. 1995)). And when the wrongful admission of evidence is merely cumulative of other properly-admitted evidence on the same issue, it will typically be considered harmless error. See Thornhill v. Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780, 793 (Tex. App.—Beaumont 1997, writ vacated) (any error in admitting witness’s testimony was harmless where the testimony was merely cumulative of other evidence, the admission of which appellant did not challenge on appeal), (citing Mancorp., Inc. v. Culpepper, 802 S.W.2d 226, 230 (Tex. 1990)) (finding no harm in the erroneous admission of evidence, where party presented other sufficient evidence to establish critical issue in the case).

B. Did the Trial Court Err in Admitting Witness Testimony that may not have been Fully Disclosed?

The first question presented in EPISD’s complaint is whether the trial court erred in admitting the testimony of Hector and Roxanne due to Portillo’s alleged failure to disclose them as potential witnesses with knowledge of his condition prior to his contested case hearing, as required by the Labor Code.

1. Applicable Law

Specifically, § 410.160 of the Labor Code provides that prior to a contested case hearing, the parties are required to exchange information within the time prescribed by commission rules, to include: “the identity and location of any witness known to the parties to have knowledge of relevant facts[.]” TEX. LAB. CODE ANN. § 410.160(3), (4). And the Labor Code further provides that a “party who fails to disclose information known to the party or documents that are in the party’s possession, custody, or control at the time disclosure is required ... may not introduce the evidence at any subsequent proceeding before the commission or in court on the claim unless good cause is shown for not having disclosed the information or documents ...” Id. § 410.161 (emphasis supplied). As our supreme court has written, “[t]his procedural limitation is akin to those in the rules of civil procedure requiring litigants to disclose witnesses and information at a particular time or be barred from offering that evidence at trial [and] encourages parties to present relevant evidence during administrative proceedings, thus increasing the accuracy and efficiency of those proceedings.” Garcia, 893 S.W.2d at 528. An objection based on § 410.161 involves a two-step process. First, the party seeking to exclude the witness must show that the other party knew about the witness and did not disclose their identity or location before the Division. See State Off. of Risk Mgmt. v. Trujillo, 267 S.W.3d 349, 353 (Tex. App.—Corpus Christi 2008, no pet.). Second, if that showing is made, the burden shifts to the witness’s sponsor to show good cause for failing to timely disclose the witness. Id.

For the purposes of our analysis, we will assume, without deciding, the trial court erred in allowing Hector and Roxanne to testify in contravention of § 410.161. Next, we turn to the testimony to determine if the error resulted in harm.

2. Hector and Roxanne’s Testimony

Hector and Roxanne were permitted to testify regarding their observations of how the accident had changed Portillo. In particular, Hector described Portillo prior to the accident as a “hard worker,” and a very active and social individual who was highly involved with his family and hobbies; however, he recalled that after the accident, Portillo was no longer able to work in his chosen field or participate in his hobbies, could no longer drive, became easily confused and frustrated, was more withdrawn, and needed assistance with everyday tasks, such as showering and buying groceries. Roxanne painted a similar picture of the changes in Portillo, also recalling that prior to the accident, Portillo was a very social individual, who was actively involved with his family and hobbies, but that after the accident he was a “completely different man,” who became very confused, needed assistance with everyday tasks, and could no longer engage in his chose vocation or the other activities he previously enjoyed.

3. Analysis

*19 EPISD has failed to convince us that it was harmed by the admission of Hector and Roxanne’s testimony. EPISD argues that it was “highly prejudiced” by the admission of their testimony, contending that these two witnesses provided the “only evidence ... that Portillo was unable to care for himself, unable to live alone, and unable to perform routine daily tasks without assistance.” As set forth above, however, Roxanne and Hector were not the only witnesses who testified on these subjects, as Portillo himself testified that he needed assistance with everyday tasks, such as showering, and that he often had individuals stay with him to help him with such tasks. In addition, Dr. Cavaretta’s records indicated that although Portillo was able to “perform satisfactorily most activities of daily living,” he had “definite deficiencies in his ability to fully take care of himself,” and his ability to perform more “complex activities,” such as driving, was “markedly limited.” Accordingly, we conclude that Hector and Roxanne’s testimony on the issue of whether Portillo was able to live independently and tend to his everyday physical needs was merely cumulative of other properly-admitted evidence.

More importantly, we note that under the Chamul standard as set forth in the jury charge, the question of whether Portillo was able to perform everyday physical tasks or was otherwise able to live independently was not critical to a finding that he suffered from incurable imbecility; instead, as explained above, the key question was whether Portillo’s higher intellectual reasoning was compromised, and whether he was reduced to the “most common and ordinary ideas [that] relate almost always to physical wants and habits.” Chamul, 486 S.W.3d at 125. Thus, by its very nature, this standard does not rule out the possibility that Portillo had the capacity to address his everyday “physical” needs, yet was still suffering from imbecility due to his inability to perform tasks that required a higher level of intellectual abilities. And, as explained above, there was ample evidence presented to the jury to support a finding that Portillo’s ability to perform such higher-level tasks was in fact significantly impaired.

Accordingly, we conclude that EPISD failed to establish that the trial court’s decision to allow Hector and Roxanne to testify at trial probably resulted in an improper verdict.

EPISD’s Issue Five is Overruled.

C. Roxanne’s Testimony Regarding Portillo’s Current Condition

In Issue Two, EPISD argues that the trial court erred by allowing Portillo to introduce evidence of his condition after the Division’s decision. At trial, EPISD lodged a running objection to the admission of any evidence of Portillo’s condition after the hearing date, contending that any such evidence was inadmissible as it was beyond the permissible inquiry in a modified de novo proceeding. On appeal, EPISD limits its challenge to whether the trial court erroneously allowed Roxanne to testify to Portillo’s worsening condition after the contested case hearing, and that it was necessary to move him to live with her in San Diego in 2018 due to his deteriorating condition.

EPISD relies primarily on Gibbs and Jackson, which as explained above, provide that on judicial review of an administrative decision either granting or denying a request for LIBs, a trial court may only consider whether a claimant was entitled to LIBs as of the date of the contested case hearing and “lack[s] jurisdiction to consider [a claimant’s] eligibility for LIBs beyond [that] date.” Jackson, 225 S.W.3d at 736–37; see also Gibbs, 298 S.W.3d at 792.¹⁶ We need not decide, however, whether the admission of Roxanne’s testimony violated this rule, as we once again conclude that EPISD has not demonstrated that it was harmed by the admission of her testimony.

*20 In support of its harm analysis, EPISD once again contends that Roxanne was the only witness to testify about certain facts, including Portillo’s inability to live alone, his inability to handle his finances, his inability to drive a car, his tendency to become very confused, and her general observation that he is a “completely different man now.” And EPISD further contends that Roxanne’s testimony was “wholly based on Portillo’s condition after [he] moved to San Diego to live with [her] in 2018.” Neither argument, however, accurately reflects the state of the record.

First, although at least a portion of Roxanne’s testimony related to her observations of Portillo after he moved to her home in 2018, she also provided a general description of her father before his accident—when he was active and involved in his work, hobbies and family life—and a general description of how the injury had changed him and how it had limited his ability to take care of himself, without reference to any particular date. Similarly, as explained above, Portillo provided similar testimony regarding how the injury had changed him and the limitations he faced, without providing an exact timeline of when each of his symptoms began or when they worsened. And on cross-examination, EPISD did not attempt to develop a more distinct timeline regarding the development of Portillo’s symptoms.

More importantly, as was also explained above, Portillo was evaluated prior to the contested case hearing by Drs. Cavaretta, Spier, and Feldman, all of whom concluded that Portillo suffered from the same or similar symptoms as Roxanne described, such as exhibiting signs of confusion, attention deficits, memory issues, and his inability to perform any complex tasks, such as driving. And as EPISD itself appears to recognize, the medical records were of primary importance in determining whether Portillo suffered from incurable imbecility as the result of his traumatic brain injury, making the testimony of any factual witnesses, such as Roxanne, of far less importance to the question of whether Portillo suffered from incurable imbecility. See generally Banda, 343 S.W.3d at 487 (recognizing the need for expert testimony or other medical evidence in a workers’ compensation case to establish the existence and nature of a disability).

Accordingly, in reviewing the record as a whole, we conclude that EPISD failed to meet its burden of establishing that any error in admitting Roxanne’s testimony regarding Portillo’s condition after the contested case hearing probably resulted in an improper verdict. See Lopez-Juarez v. Kelly, 348 S.W.3d 10, 26 (Tex. App.—Texarkana 2011, pet. denied) (where admitted testimony was “brief” and where other witnesses properly testified to the critical issue in the case in much more detail, the admission of the erroneously admitted testimony did not cause the rendition of an improper judgment).

EPISD’s Issue Two is overruled.

IX. THE TRIAL COURT’S EXCLUSION OF EPISD’S EVIDENCE

In Issue Six, EPISD contends that the trial court committed cumulative error by excluding four different items of evidence that it sought to introduce at trial. We examine each item of excluded evidence separately, applying the same abuse-of-discretion standard of review set forth above in determining whether the trial court erred in excluding the evidence, and the same harmless-error standard discussed above that requires us to determine whether any error in excluding the evidence probably resulted in an “improper judgment” that requires reversal. Gunn, 554 S.W.3d at 658. And in conducting our harm analysis, we will again review the entire record to determine whether the excluded evidence was crucial to a key issue in the case, or whether it was cumulative of other evidence in the record. Id. (recognizing that the “[e]xclusion of evidence is likely harmless if the evidence was cumulative” of other evidence in the record); see also Loftin v. Loftin, 630 S.W.3d 369, 373 (Tex. App.—El Paso 2021, no pet.) (citing JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 840 (Tex. 2018)).

A. The Certified Copy of the Hearing Officer’s Decision and Order

*21 EPISD first contends that the trial court erred by refusing to admit a certified copy of the Hearing Officer’s decision and order denying Portillo’s request for LIBs, as permitted under § 410.306 of the Labor Code. In support of its argument, EPISD points out that § 410.306 provides that a certified copy of the Division’s records is admissible at trial “to the extent allowed under the Texas Rules of Evidence.” TEX. LAB. CODE ANN. § 410.306(b); see also Garcia, 893 S.W.2d at 515 n.11 (recognizing the admissibility of Division records under § 410.306(b)). And it further points out that the Labor Code also provides that the records of a contested case hearing is deemed admissible at trial. See TEX. LAB. CODE ANN. § 410.302(a) (“The records of a contested case hearing conducted under this chapter are admissible in a trial under this subchapter in accordance with the Texas Rules of Evidence.”).

At trial, Portillo’s attorney objected to the admission of the Hearing Officer’s decision and order on two grounds. First, she pointed out that it contained findings of fact, which she argued was simply a summary of Portillo’s testimony, and in effect was merely the Hearing Officer’s opinion of what he testified to at the hearing. Second, Portillo’s attorney objected that the decision contained “legal opinion[s] and conclusions,” which would be improper for the jury to consider. EPISD then offered to redact the legal conclusions and to focus solely on the section of the decision in which the Hearing Officer summarized Portillo’s testimony, contending that Portillo’s “testimony” was admissible as an exception to the hearsay rule for statements made by a party-opponent. See TEX. R. EVID. 801(2) (excluding an “opposing party’s statement” from the rule against hearsay). In addition, during its formal offer of proof, EPISD argued that the decision was admissible “under the public records exception to hearsay [in] Rule 803,” as well as under the Labor Code as a certified record of the administrative proceedings. See id. 803(8)(A)(III), (B) (excluding from the hearsay rule certain public records and statements, including “factual findings from a legally authorized investigation” unless the opposing party establishes that the record or statements “indicate a lack of trustworthiness”). We need not, however, decide whether the trial court erred in refusing to admit the Hearing Officer’s decision, as EPISD has failed to convince us that excluding the decision probably resulted in an improper verdict.

In arguing that it was harmed by the exclusion of the decision, EPISD focuses solely on the Hearing Officer’s finding that Portillo had testified at the hearing that “he lives by himself and takes care of the majority of his needs, although there are times that a friend assists him while he showers.” EPISD again contends Portillo’s ability to live alone was a critical factor in determining whether Portillo suffered from imbecility. And EPISD contends that because Portillo testified at trial that he did not live alone after his accident, its inability to impeach Portillo with the Hearing Officer’s finding caused it significant harm. We disagree for several reasons.

First, as explained above, Portillo’s ability to live alone was not a critical factor in determining whether Portillo suffered from imbecility, as it did not directly reflect on whether his brain injury affected his “intellectual faculties,” as opposed to his ability to address his everyday physical needs. Second, we agree with Portillo that simply introducing the Hearing Officer’s finding on this issue could have been misleading to the jury, as EPISD did not attempt to submit the transcript from the hearing to verify exactly what Portillo said at the hearing. And the nuances of his testimony were important, as his testimony at trial was less than clear about what he meant when he testified that he did not live alone after the accident. While Portillo did testify at trial that he lived alone, he also testified that a friend moved in with him after the accident to assist him, that he lived with his sister in El Paso for “most of the time” after his accident, and that his family and friends came over regularly to “stay” with him and help him with various everyday tasks, such as showering. Further, when EPISD’s attorney cross-examined him about whether he testified differently at the contested case hearing, Portillo again responded that he did not live alone, as he had “people staying there with [him”] to assist him with his various needs. It is therefore unclear whether Portillo’s testimony at the hearing did in fact differ from his trial testimony, or whether the Hearing Officer may have made an overly-broad generalization in summarizing his hearing testimony, which may have failed to reflect its exact nature.

*22 In any event, EPISD was able to impeach Portillo’s testimony on the issue of whether he was inconsistent in claiming that he was unable to live alone by pointing to Portillo’s medical records reflecting that he reported to various doctors who treated him from November 2013 through June 2015, including Dr. Feldman, that he lived alone and that he managed to perform at least some everyday tasks without assistance. In fact, EPISD put the record of Portillo’s March 2015 office visit at Sierra Providence East Medical Center on the screen while cross-examining Portillo at trial, and while Portillo still denied that he lived alone, he admitted that the record reflected that he had in fact told his doctor otherwise. In addition, EPISD’s counsel again put this same record on the screen when questioning one of its own witnesses, and at counsel’s request, the witness read from the portion of the record containing this same information.

We thus conclude that any error in excluding the Hearing Officer’s findings on the issue of whether Portillo lived alone after his accident did not harm EPISD’s case given its insignificance to the case and its cumulative nature. See generally Gunn, 554 S.W.3d at 668.

B. Portillo’s Medical Records

EPISD next argues that the trial court erred in excluding copies of Portillo’s medical records from three providers. However, we once again find that any error in excluding these records did not harm EPISD’s case, as they were all cumulative of other records introduced into evidence.

1. EPISD’s Arguments

At trial, EPISD sought to introduce the records of the following: (1) Portillo’s initial visit at Sierra Medical Center on September 13, 2013, the day of his accident; (2) his visit with the El Paso Orthopedic Surgery Group on September 29, 2013; and (3) his visit at Sierra Providence East Medical Center on March 26, 2015. EPISD, however, did not provide an affidavit from the custodian of records of any of the medical facilities, and did not have the custodian of records from any of the facilities present at trial to testify to the authenticity of any of these records. Instead, EPISD sought their admission through witness Jesse Velasquez, a senior claims administrator for Athens Administrators, which served as the third-party claims administration company for EPISD. Portillo, however, objected that the records were not properly authenticated, and were hearsay that did not come within the business records exception to the hearsay rule. On voir dire, Velasquez acknowledged he did not create the records and was unaware of the medical facilities’ record-keeping procedures or the manner in which the records were prepared. He also testified, however, that he had received the records from Portillo’s medical providers in the regular course of his business in handling Portillo’s claim, had incorporated them into his files, and had he relied on them as being trustworthy. Nonetheless, the trial court ruled that the records were inadmissible because EPISD had failed to provide an affidavit from the custodian of the medical facilities that initially prepared the records, and because Velasquez lacked sufficient knowledge of how they were prepared or maintained.

We need not, however, resolve the question of whether Velasquez was qualified to authenticate the records, as we reject EPISD’s argument that the exclusion of the records resulted in reversible error.

2. Any Error in Excluding the Records was Harmless Given Their Cumulative Nature

EPISD contends that excluding the medical records was harmful as the records contained two items of evidence crucial to its case: (1) medical evidence showing that the CT Scans of Portillo’s brain, including the one taken on the day of his accident, were all normal; and (2) evidence that Portillo did not report having any “neurological complaints” during a visit with a doctor at El Paso Orthopedic Surgeons on September 19, 2013, six days after his accident. For the reasons set forth below, we disagree.

a. Evidence of Portillo’s CT Scans

*23 First, the fact Portillo underwent five CT scans to his brain, all of which were read as normal, was well-documented in various other medical records that were admitted at trial. And at least two witnesses, including Velasquez and Portillo’s own daughter, Roxanne, testified they had reviewed Portillo’s medical records and both agreed that all of Portillo’s CT scans had been read as normal or “unremarkable.” As well, EPISD’s attorney argued to the jury that all of Portillo’s CT scans were read as normal, and Portillo never tried to contradict that fact. Thus, the admission of other records reflecting that Portillo had normal CT scans did not result in any harm to EPISD, given the cumulative nature of the records.

b. Evidence of the Lack of Neurological Complaints

We similarly conclude that EPISD has failed to establish that the exclusion of the record of Portillo’s visit with a doctor at the El Paso Orthopedic Surgeons resulted in any harm to its case, or that it was even relevant to the issue of whether Portillo suffered from imbecility. In fact, the admission of that record may have been misleading to the jury, as Portillo was not being evaluated during that visit for any issues related to his traumatic brain injury, and was instead being seen for acute pain in his legs, buttocks and arms related to his accident. In addition, the record contained conflicting entries, as one portion of the record—under the heading labeled as “neurologic”—indicated that Portillo denied having any “muscular weakness, incoordination, or loss of balance,” while another portion of the record indicated that Portillo reported having a “sense of unsteadiness.” And finally, to the extent that EPISD sought to admit this record to establish that Portillo did not suffer from any neurological complaints after his accident, it would have been cumulative of other medical records that were admitted into evidence in which Portillo’s doctors reported that he had a “normal” neurological exam on other occasions. And in fact, EPISD’s attorney pointed to those normal neurological exams during his closing argument in arguing that Portillo did not suffer from incurable imbecility. Accordingly, we conclude that EPISD has failed to establish that the exclusion of this evidence probably resulted in an improper verdict.

C. The Opinion Testimony of Helen Garcia, EPISD’s Former Claims Adjustor

EPISD next contends that the trial court erred in refusing to allow Helen Garcia, its former claims adjustor, who was present at Portillo’s contested case hearing, to testify at trial that she believed Portillo had been able to testify coherently at the hearing.¹⁷ EPISD contends that the trial court erred in excluding her testimony, contending that it would have been “relevant” to “contradict” Portillo’s testimony at trial that he was easily confused and could not concentrate, and that its exclusion requires reversal of the judgment. EPISD, however, provides no citation to legal authority to support its argument that Garcia’s testimony of her opinion on this subject was admissible for this purpose, and it therefore did not preserve this issue for our review.

To preserve error on appeal, the Texas Rules of Appellate Procedure require adequate briefing, which includes making a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record. See ERI Consulting Engineers, Inc. v. Swinnea, 318 S.W.3d 867, 880–81 (Tex. 2010) (citing TEX. R. APP. P. 38.1(i)). In reviewing for briefing waiver, we are required to construe briefs liberally so that the right to appellate review is not lost by waiver, and we keep in mind that substantial compliance with the rules is sufficient to preserve error. Robb v. Horizon Communities Improvement Ass’n, Inc., 417 S.W.3d 585, 590 (Tex. App.—El Paso 2013, no pet.) (citing Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008); TEX. R. APP. P. 38.9) Here, we find no such substantial compliance, and we will not make EPISD’s argument for it.

D. The Evidence of Licensing Requirements for HVAC Technicians

*24 In its final argument on this issue, EPISD contends that the trial court erred in excluding evidence of the State of Texas’s licensing requirements for HVAC technicians, which it believed required technicians to complete eight hours of continuing education each year to renew their licenses. EPISD contends that this information was relevant for two purposes. First, to impeach Portillo’s testimony that when he renewed his license in 2016, three years after his accident, he was not required to take any classes, and that he renewed his license (with his son’s assistance) simply by paying a fee. And second, EPISD contends that the information would have also established Portillo had sufficient intellectual abilities to complete the classes upon renewing his license.

But the licensing requirements EPISD offered as an exhibit did not relate to the type of license Portillo held, which EPISD’s own proffered evidence demonstrated was an “A/C technician” license, while the exhibit set forth the continuing education requirements for an “air conditioning and refrigeration contractor license.” And the Texas Occupational Code provides that these are two distinct types of licenses, with different renewal requirements. TEX. OCC. CODE ANN. § 1302.002(4), (5-a). While the Code provides that a “contractor” must complete eight hours of continuing education to renew his license, as Portillo testified at trial, there is no similar requirement in the Code for a technician to renew his license. Compare 16 TEX. ADMIN. CODE § 75.25(b) (2022) (Texas Dep’t of Licensing & Regulation, Air Conditioning & Refrigation) (“To renew an air conditioning and refrigeration contractor license ... a licensee must complete eight hours of continuing education in courses approved by the department, including one hour of instruction in Texas state law and rules that regulate the conduct of licensees.”) with 16 TEX. ADMIN. CODE § 75.29 (2011) (Texas Dep’t of Licensing & Regulation, Air Conditioning & Refrigation) (“To renew a technician registration or air conditioning and refrigeration technician certification, a person must: (1) submit a completed renewal application on a department-approved form; and (2) submit the required fees.”). Accordingly, because the proffered evidence had no relevance to Portillo’s situation, it was properly excluded. See generally TEX. R. EVID. 401(a) (evidence is relevant if it has a “tendency to make a fact more or less probable than it would be without the evidence”).

Accordingly, for the reasons set forth above, we conclude that EPISD has failed to establish that any of the trial court’s evidentiary rulings—even if made in error—probably resulted in an improper verdict or were otherwise unfairly prejudiced its case.

EPISD’s Issue Six is overruled.

X. CONCLUSION

The trial court’s judgment is affirmed.

(Alley, J., not participating)

Court of Appeals of Texas, El Paso.

Jorge L. HERNANDEZ, Appellant,

v.

King AEROSPACE, Appellee.

No. 08-20-00015-CV

|

September 28, 2022

Appeal from the County Court at Law No. 3 of El Paso County, Texas (TC#2017-DCV-0334), The Honorable Javier Alvarez, Judge

Attorneys & Firms

ATTORNEY FOR APPELLANT: Catherine M. Stone, Langley & Banack, Inc., 745 E Mulberry Ave., Trinity Plaza II, Ste. 700, San Antonio, TX 78212.

ATTORNEY FOR APPELLEE: Bryan Rose, Stinson LLP, 1144 Fifteenth St., Ste. 2400, Denver, CO 80202.

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

OPINION

JEFF ALLEY, Justice

*1 In this appeal, we face the question of whether a plaintiff-worker is an “employee” of a defendant-company under the exclusive-remedy-provision of the Texas Workers’ Compensation Act. If so, the plaintiff-worker’s personal injury claim is barred, and if not, he is entitled to a substantial jury award. Here, the trial court submitted the question to a jury, which found that Appellant Jorge L. Hernandez was not an employee of Appellee King Aerospace (King). Despite that jury finding, the trial court ultimately concluded that Hernandez was King’s employee and entered a take nothing judgment in King’s favor. We are asked to review that decision, as well as the procedural propriety of how the trial court decided the question. We conclude that the procedural question of whether the trial court erred in deciding the issue when it did was not preserved for review. But we also conclude that a genuine issue of material fact governs the employment question, which was resolved against King. As a result, we reverse and remand for the trial court to render judgment for Hernandez in accordance with the jury’s verdict.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Workplace Accident

King is a military defense contractor which operates several repair stations certified by the Federal Aviation Administration (FAA) to perform maintenance and repairs on aircraft. King contracts with the United States Army to perform those services on aircraft at Biggs Airfield on the Fort Bliss Army Base. While King directly hires many of its own permanent employees, it often needs additional skilled individuals on a temporary basis, including aircraft maintenance specialists. To meet this need, King often relies on Aircraft Technologies Group (ATG), which employs trained and experienced maintenance specialists. In their course of dealing, King would send ATG a notification stating that it needs a certain number and type of skilled workers for a specific project. In response, ATG would provide King with a “Quote/Proposal” which would include the resumes of qualified individuals from which King could select the workers it wants. Thereafter, ATG would issue a “Letter of Commitment” for each worker, outlining their start date, work schedule, training expectations, and commitment.

Hernandez is an experienced and certified sheet metal specialist, employed by ATG, who had been selected by King to work on several projects beginning in 2013. In January 2016, he started working on a project at King’s facility to perform maintenance and repairs on a “Dash-7 aircraft” under King’s contract with the Army. To accomplish painting the wing of an aircraft, Hernandez placed a ladder on top of a platform. The ladder became unstable and Hernandez suffered a fall resulting in serious injuries.

B. The Lawsuit and Pretrial Proceedings

Hernandez sued King asserting a negligence claim. King responded by alleging an affirmative defense: King was Hernandez’s employer, King was a subscriber under the Texas Workers’ Compensation Act, and thus Hernandez’s exclusive remedy as to King is limited to pursuing workers’ compensation benefits. King moved for traditional summary judgment on its affirmative defense. Following a hearing on that motion, the trial court informed the parties that it was “going to carry the motion until the time of trial” and that King could raise the issue then by filing a motion for directed verdict.

C. The Trial

*2 Following the close of Hernandez’s case at trial, King moved for a directed verdict on its affirmative defense, claiming that the evidence demonstrated as a matter of law that Hernandez was its employee. Initially, the trial court said that it was “going to carry the motion for directed verdict” to see what result the jury reached. The court informed King that at the time of entry of judgment, it would rule on the motion. The trial court also told King that it would need to “move for JNOV” at that time. Soon after, however, the trial court announced that it was denying the motion for directed verdict. After King presented its sole witness only on damages, King’s attorney moved a second time for a directed verdict on its affirmative defense. Once again, the trial court expressly denied that motion.

The jury was asked whether it believed Hernandez was “acting as an employee of King Aerospace,” and was given the following definition of the term “employee”:

“Employee” is a person in the service of another with the understanding, express or implied, that such other person has the right to control the details of the work and not merely the result to be accomplished.

An “employee” includes a person who would otherwise be in the general employment of an original employer but is borrowed from that employer, so long as the borrowing employer or his agents have the right to direct and control the details of the particular work inquired about. An employee may have more than one employer.

The jury unanimously found that Hernandez was not serving as King’s employee at the time of the accident. It also found that King was 80% and Hernandez 20% at fault in causing the accident. Finally, the jury awarded Hernandez over a million dollars in damages, including medical expenses, physical impairment, disfigurement, lost wages, and pain and suffering.

D. Post-Trial Proceedings

After trial, Hernandez filed a “Motion to Enter Judgment,” seeking entry of a judgment in accordance with the jury’s verdict. Following several re-settings of the hearing, the trial court sua sponte issued an “Order Appointing Special Master.” In that order, the trial court noted that King had made a motion for directed verdict at trial, “which the Court took under advisement.” The court then stated that it found “this to be an exceptional case and finds good cause for the appointment of a Special Master to assist the Court in evaluating the issue of whether the evidence admitted at trial was sufficient to allow the submission of [the employment status issue] to the jury for its determination.” The court ordered the special master to review the reporter’s record of the trial testimony and report on whether there was sufficient evidence to submit the employment issue to the jury. The court further noted that upon receiving the report, it would have the option to “confirm, modify, correct, reject, reverse, or recommit the report of the Special Master after it is filed, as the Court may deem necessary in the particular circumstances of this case.”

Neither party objected to the Order Appointing Special Master, and both parties submitted briefs to the special master, outlining their respective positions on the issue of whether there was sufficient evidence to support the jury’s finding that King was not Hernandez’s employer.¹ In his final report, the master summarized the evidence admitted at trial and concluded that the record contained conflicting evidence on the issue of whether King exercised direct control or supervision over Hernandez; King thus did not conclusively prove as a matter of law that Hernandez was its employee. To the contrary, the special master concluded that the evidence was just as supportive of a finding that Hernandez was instead an “independent contractor,” and consequently, the matter was properly submitted to the jury as a question of fact.

E. The Hearing and Final Judgment

*3 The trial court thereafter held a hearing on entry of a judgment. Hernandez argued that the special master correctly concluded that the issue of his employment status was properly submitted to the jury, while King argued that the special master was wrong because the evidence submitted at trial demonstrated, as a matter of law, that Hernandez was employed by both King and ATG. The trial court rejected the special master’s ultimate conclusion and instead found in its final judgment that: “(1) Plaintiff Jorge L. Hernandez was an employee of Defendant King Aerospace; (2) Defendant King Aerospace had, at all times relevant, an active workers-compensation policy that covered Plaintiff Jorge L. Hernandez.” It therefore entered a take-nothing judgment in King’s favor, from which Hernandez appeals.

II. ISSUES ON APPEAL

Hernandez raises three issues on appeal. His first issue asserts a procedural question: he contends that the trial court lacked the authority to disregard the jury’s verdict without King filing a motion for judgment notwithstanding the verdict (JNOV) as required by the Rules of Civil Procedure. In Issue Two, Hernandez contends that even if the trial court could enter an order disregarding the jury’s verdict, the trial court erred in doing so, as he presented at least a scintilla of evidence to support the jury’s finding that he was not King’s employee. Finally, in Issue Three, he contends that there was legally sufficient evidence to support the jury’s verdict on the parties’ comparative liability. King only addresses Hernandez’s first two issues, characterizing the trial court’s final judgment as a proper ruling on its motion for a directed verdict, which King believes the trial court carried until the time for entry of judgment. King also contends that the trial court correctly determined that Hernandez was its employee as a matter of law. We limit our analysis to those two issues as well, as no challenge is made to the jury’s finding on negligence or damages.

III. AUTHORITY FOR TRIAL COURT’S POST-TRIAL RULING

Hernandez argues that the trial court in effect entered a JNOV, which he contends requires a formal JNOV motion. Rule 301 of the Texas Rules of Civil Procedure provides that “[t]he judgment of the court shall conform to ... the verdict” but that “upon motion and reasonable notice the court may render judgment non obstante veredicto if a directed verdict would have been proper, and provided further that the court may, upon like motion and notice, disregard any jury finding on a question that has no support in the evidence.” TEX.R.CIV.P. 301 (emphasis added). Absent any such motion, Hernandez contends that the trial court lacked the authority to grant a JNOV on its own initiative.

In general, a litigant has a right to have “material, disputed, fact issues determined by a jury,” and therefore a trial judge may not ordinarily simply disregard a jury’s verdict or render a JNOV on its own initiative. See St. Paul Fire & Marine Ins. Co. v. Bjornson, 831 S.W.2d 366, 369 (Tex.App.--Tyler 1992, no writ); see also Law Offices of Windle Turley, P.C. v. French, 140 S.W.3d 407, 414 (Tex.App.--Fort Worth 2004, no pet.). Hernandez argues that under a plain reading of Rule 301, a litigant must file a written motion for a JNOV with notice to the parties before a trial court can grant a JNOV. See Lamb v. Franklin, 976 S.W.2d 339, 343-45 (Tex.App.--Amarillo 1998, no pet.) (holding trial court erred in signing JNOV because the record did not reflect that a motion for JNOV was filed or that a hearing on such motion was had); Olin Corp. v. Cargo Carriers, Inc., 673 S.W.2d 211, 213-14 (Tex.App.--Houston [14th Dist.] 1984, no writ) (concluding that trial court had no power to enter JNOV absent a proper motion to do so). Thus, Hernandez concludes that the trial court lacked the authority to ignore the jury’s finding on employee-status, and he asks this Court to render a judgment based on the jury verdict.

*4 King concedes that it did not file a JNOV motion but claims the trial court did not sua sponte grant its own JNOV. The trial court never expressly mentioned Rule 301 or used the term “JNOV” in its final judgment or at any time during the post-trial proceedings. Instead, King argues that the trial court was doing no more than making a ruling on King’s motion for directed verdict that was carried from the trial. Rule 268, titled “Motion for Instructed Verdict”, states only that a “motion for directed verdict shall state the specific grounds therefor.” TEX.R.CIV.P. 268. Case law dictates that a motion for directed verdict must be filed before the case is submitted to the jury. See Mitchell Resort Enters., Inc. v. C & S Builders, Inc., 570 S.W.2d 463, 465 (Tex.App.--Eastland 1978, writ ref’d n.r.e.); Stephens v. Lott, 339 S.W.2d 405, 406 (Tex.App.--San Antonio 1960, no writ). And according to King, carrying a motion for directed verdict until the time for entry of judgment has “long been an acceptable practice in Texas courts.” In response to that claim, Hernandez contends that a directed verdict cannot be granted after the case has been decided by the jury, and that the trial court here unambiguously denied the motion for directed verdict at the time of trial, meaning that it could not be carried past the time the jury was discharged.

We need not resolve these opposing claims because we ultimately conclude that without an objection being lodged to the unique procedure used by the trial court, no error for that procedure is properly before us. The record here shows that although the trial court first stated that it was going to “carry” King’s motion for a directed verdict until after the jury returned its verdict, the trial court later twice overruled the motion for directed verdict, and once counseled King to file a JNOV motion after the jury returned its verdict if it lost. But in its order appointing the special master, the trial court said that it had carried the motion for directed verdict. And the same order expressly stated that the trial court was reserving the option to accept, reject, or modify the special master’s recommendation on the employee-status question. Neither party objected to this procedure, and both submitted briefing outlining their legal positions to the special master. Nor did either party object to the trial court’s statement in the order that it reserved the option to accept, reject, or modify the special master’s recommendation. In sum, both parties were on notice that the trial court intended to decide the case based on the jury verdict and the review by the special master, and neither party objected that the trial court lacked the authority to do so.

Given the unique procedure employed here, we conclude that even if the rules prevent carrying a motion for directed verdict past the discharge of the jury, Hernandez cannot now complain about that procedure without some predicate objection being lodged below. See TEX.R.APP.P. 33.1(a)(1)(A) (“As a prerequisite to presenting a complaint for appellate review, the record must show that ... the complaint was made to the trial court by a timely request, objection, or motion that ... stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context”).

Based on the lack of preservation, we overrule Hernandez’s Issue One.

IV. THE EVIDENCE CREATES A FACT ISSUE ON HERNANDEZ’S EMPLOYMENT STATUS

A. The Exclusive Remedy Provision in the Workers’ Compensation Act

Texas employers need not secure workers’ compensation insurance, but when they do, an injured employee’s exclusive remedy for an accidental work injury is limited to the workers’ compensation benefits. See TEX.LAB.CODE ANN. § 408.001(a) (“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.”); Port Elevator-Brownsville v. Casados, 358 S.W.3d 238, 241 (Tex. 2012). Because it is an affirmative defense, the employer carries the burden to prove that an injured worker was in fact an employee at the time of the accident, and that the employer’s workers’ compensation insurance covered the injured worker. See Reveles v. OEP Holdings, Inc., 574 S.W.3d 34, 37 (Tex.App.--El Paso 2018, no pet.) (“The exclusive remedy provision is an affirmative defense that protects employers from certain common-law claims of their employees including negligence claims.”). King carried a valid workers’ compensation insurance policy at the time of the accident; the only question is whether Hernandez was King’s employee.

*5 Who then are employees? The Act defines an “employee” as a “person in the service of another under a contract of hire, whether express or implied, or oral or written.” TEX.LAB.CODE ANN. § 401.012 (a). As well, the Act provides that an employer means “unless otherwise specified, a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.” Id. § 401.011(18). Adding meat to the bones of the statutory language, courts have often looked to the “traditional indicia” of employment, the most important of which is the right to control the details of the work being performed. Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 477 (Tex. 2005) (“Accordingly, in determining if a general employee of a temporary employment agency is also an employee of a client company for purposes of the Act, we consider traditional indicia, such as the exercise of actual control over the details of the work that gave rise to the injury.”); Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002) (per curiam) (“The test to determine whether a worker is an employee rather than an independent contractor is whether the employer has the right to control the progress, details, and methods of operations of the work.”); Painter v. Sandridge Energy, Inc., 511 S.W.3d 713, 723-24 (Tex.App.--El Paso 2015, pet. denied) (“The attributes of an employer include the right to hire and fire, the obligation to pay wages and withhold taxes, the furnishing of tools, and most of all the power to control the details of the worker’s performance.”).

The Texas Supreme Court’s most recent writing on the issue adds guidance. In Waste Mgmt. of Texas, Inc. v. Stevenson, the court faced an injury to the employee of a staff leasing company. 622 S.W.3d 273, 276 (Tex. 2021). The leased employee, Stevenson, brought a negligence claim against the client company, Waste Management. And as here, Waste Management was a subscriber under the Texas Workers’ Compensation Act and asserted that Stevenson’s claim was barred by the exclusive-remedy defense because Stevenson was its employee. In Texas, an employee may have more than one employer at the time of an injury for the purposes of the exclusive-remedy defense under the Act. See Wingfoot Enterprises v. Alvarado, 111 S.W.3d 134, 140 (Tex. 2003) (the “Act permits more than one employer for workers’ compensation purposes”); see also W. Steel Co. v. Altenburg, 206 S.W.3d 121, 123 (Tex. 2006) (per curiam) (“An employee may have more than one employer within the meaning of the TWCA and each employer may raise the exclusive remedy provision as a bar to the employee’s claims.”). Thus, Stevenson could be both the employee of Waste Management and the employee leasing agency.

According to the court, the evidence in that case was undisputed that in actual practice, Waste Management controlled the “progress, details, and methods of operations of the work.” Waste Mgmt., 622 S.W.3d at 280, quoting Limestone Prods., 71 S.W.3d at 312. Stevenson himself agreed his Waste Management supervisor had “the ability to tell you what to do and how to do your job” and the truck driver to which Stevenson was assigned was the “captain of the ship.” Id. at 279. The Waste Management truck driver agreed he controlled Stevenson “with respect to how to do the job.” Id. The Waste Management operations manager also agreed the driver was in “full control” of workers like Stevenson. Id. Lastly, the owner of the staff leasing company concurred that it did not manage temporary employees, but Waste Management would. Id. at 280.

The wrinkle in the case was the contract documents designated Stevenson as an independent contractor, which conflicted with Waste Management’s claim that Stevenson was its employee. See Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 132 (Tex. 2018) (stating test for what distinguishes an employee from an independent contractor); Waste Mgmt., 622 S.W.3d at 287 n.1 (Boyd, J., concurring) (collecting cases similarly distinguishing independent contractors from employees or borrowed servants). And generally, a contract that designates one as an independent contractor should be given effect unless it was a subterfuge, is later modified, or the parties’ conduct supports an inference that they impliedly consented to a different arrangement. Newspapers, Inc. v. Love, 380 S.W.2d 582, 590 (Tex. 1964). From this principle, Stevenson argued that at least a fact question was raised as to his status, as the appeal arose from a granted summary judgment.

*6 The Texas Supreme Court, however, concluded that the actual “on-the-ground realities” were so inconsistent with the contract that there was no genuine issue of material fact on the right to control question. Waste Mgmt., 622 S.W.3d at 284. The court looked to one of its earlier cases, Exxon Corp. v. Perez, that held: “A contract between two employers providing that one shall have the right of control ... is a factor to be considered, but it is not controlling.” 842 S.W.2d 629, 630 (Tex. 1992) (per curiam). Thus, “a contract between two companies purporting to dictate the nature of a worker’s employment relationship with the companies is merely ‘a factor to be considered’ if the right of control is ‘a controverted issue.’ ” Waste Mgmt., 622 S.W.3d at 283, quoting Perez, 842 S.W.2d at 630.

B. Standard of Review

A party is entitled to a directed verdict if no evidence of probative force raises a fact issue on the material questions in the suit, or the evidence establishes a claim or defense as a matter of law. Prudential Ins. Co. of Am. v. Financial Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000); Thompson v. Stolar, 458 S.W.3d 46, 63 (Tex.App.--El Paso 2014, no pet.). Here we deal with an affirmative defense that King carried the burden to prove. Thus, it carried the burden to establish the defense as a matter of law. See Richard Rosen, Inc. v. Mendivil, 225 S.W.3d 181, 192 (Tex.App.--El Paso 2005, pet. denied), citing Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). On the other hand, Hernandez’s claim that the trial court erred in granting a directed verdict (or as it claims, a JNOV) should be sustained if we determine that any conflicting evidence of probative value raises a material fact issue contrary to King’s defensive theory. See Szczepanik v. First Southern Tr. Co., 883 S.W.2d 648, 649 (Tex. 1994) (per curiam) (“In reviewing the granting of an instructed verdict, we must determine whether there is any evidence of probative force to raise a fact issue on the material questions presented.”).² In performing that review, we must credit evidence favorable to the non-movant if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Stolar, 458 S.W.3d at 63. The ultimate test for legal sufficiency is “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.

C. Overview of the Right to Control Testimony

With this backdrop, we tackle the question of whether the trial court correctly granted a directed verdict on the question of whether Hernandez was an employee of King for the exclusive remedy bar under the Texas Workers’ Compensation Act. The relevant trial testimony came from Hernandez, Tommy Quijas (ATG’s on site supervisor), Michael Beck (an ATG co-worker), Gerald Torres (King’s on-site supervisor); and several workplace documents admitted through the witnesses.

Hernandez testified that ATG operated as a headhunter; he would submit his resume to ATG who then would place him with a company that needed the type of work he could provide. King was the only ATG customer he worked at while working with ATG. For the King jobs, he reported to work at a hanger maintained by King at Fort Bliss. A King representative was always present for security reasons, and they were restricted to the area for the airplane that they were working on. ATG, however, issued his pay checks, withheld taxes and Social Security, and sent him a W-2. He wore an ATG issued t-shirt on the job.

*7 As with all ATG people, Hernandez was already trained and qualified to do his job. Hernandez held an FAA “A” license, or airframe license. In performing his duties, he had no choice other than to follow the FAA-approved OEM manuals. The manuals were created by the equipment manufacturers and made available in a library maintained by King, or through a computer terminal at King’s facility. If the manuals did not dictate the repair procedure for a particular issue on an airplane, he would obtain that procedure from the manufacturer directly, and it would have to be approved by an ATG inspector. According to Hernandez, the ATG inspector signed off on the work he performed, King did not.

Hernandez testified that no one from King controlled the details of how he performed his work. He already knew how to look up a repair in the manual and follow those instructions. No one from King ever told him how much time he could spend on a specific job. On the job site, Mr. Tommy Quijas, an ATG employee, was his maintenance supervisor and the ATG site manager. He took his orders from Quijas, who set the work pace and told him what he was to do each day. Hernandez conceded, however, that Gerald Torres would tell Quijas what he wanted done in a particular day, and Quijas was there to make it happen. As with other aircraft mechanics, Hernandez personally bought his own tools and toolbox. King, however, provided specialized equipment such as stands, ladders, paint, masking tape, and torque wrenches.

Hernandez did not consider himself an employee of King. ATG could reassign him to another customer without King Aerospace’s permission, and while King could remove him from the premises, it could not terminate his employment with ATG. He received an ATG handbook and claims that he never saw King’s operations handbook or employee handbook. King did provide “Blue Tuna” training, described as an aviation-based OSHA program, as well as instruction on more typical work-place issues.³ Hernandez also acknowledged that all ATG employees were supposed to follow King Aerospace’s safety rules.

Tommy Quijas also testified at trial. He is employed by ATG and describes himself as Hernandez’s site lead. He was in charge of ATG personnel and tasked with making sure the jobs that King assigned were performed. He was also responsible to ensure that the work progressed according to schedule. He reported to Gerald Torres, King’s site manager. Torres would mostly take care of King Aerospace responsibilities and would come to the work site to check on the workers’ progress and address supply issues. Torres told Quijas what needed to be done, and Quijas would in turn instruct the ATG employees on what to do. Torres identified weekly progress goals and Quijas would separate those into daily tasks. Torres never controlled or told ATG employees how to do the details of their work. At the time of his injury, Hernandez was performing a “prep” task which he knew how to do. In doing the work, Hernandez had to follow FAA regulations, which ATG employees were generally familiar with. King did not provide training on FAA regulations, but it did make available the maintenance manuals that ATG employees used.

*8 The jury also heard from Gerald Torres who identified himself as King’s fleet logistics and fleet maintenance manager. He supervised several plants, including the El Paso site. ATG is considered a contractor and when asked whether the ATG crew members were contractors, he answered, “That’s kind of a hard situation because everybody, including myself, are considered contractors.”

Torres also agreed that ATG workers were experienced, but King was responsible to ensure that ATG individuals performed only the duties they were qualified and authorized to perform. King decided the type of mechanic or personnel needed for a project and then selected the individuals for each position from the resumes provided by ATG. For security reasons, King approved workers assigned through ATG.

Torres testified that there is a “memorandum of agreement” between ATG and King, but that King could not find a copy of it. King also has direct employees on site which it treats no differently than ATG employees. King provided a time clock for both its own employees and subcontractor employees. Further, Torres had to approve the timecards which he would then send to ATG in bulk. King set the work schedule and approved any overtime. Torres could remove ATG workers from the project but could not terminate their employment with ATG. But neither could Quijas (or anybody else from ATG) fire an ATG person from the project. Torres considered himself the “big-picture guy” who told Quijas what he wanted accomplished on a day-by-day basis. He and Quijas attended daily meetings and he would instruct Quijas before the meeting on what he wanted done that day or that week. Quijas would then assign work tasks. Torres agreed that the FAA controls the details on how the work must be performed and he could not tell Hernandez to do something contrary to the manual. But the FAA relies on King to ensure that workers follow the procedures and rules in the manuals.

Contrary to Hernandez’s testimony, Torres believed that no one from ATG signed off on the work that was done for King. He personally performed the final runs and signed off on the operational or functional checks and the whole inspection. In doing so, he certified that the FAA-approved manuals had been followed to do the details of the work.

King owns the manlifts, ladders, platforms, and scaffolding used at the hangar. It also provided the masking tape, paint guns, and paint. It provided drill bits, safety glasses, wash stations, and respirators. Specifically, King owned the stands used when Hernandez fell. What’s more, King provided a safety program which included a ladder safety training program. Hernandez could not perform his job without using a ladder and stand.⁴

King completed an OSHA 301 injury report which identified Hernandez as the injured “employee.” But another internal King memorandum that reports Hernandez’s injury calls him an “ATG sub-contractor employee.”

D. Right to Control by Contract

We first address the right to control based on contract. King argues that its contract with ATG expressly set forth King’s right to control Hernandez’s work, and that this contract established, as a matter of law, that Hernandez was its borrowed employee.

*9 The document that King relies on is labeled as “King Aerospace (KA) in El Paso-ATG Letter of Commitment.” It contains several headings, such as “Assignment Details” that includes a start date, the identity of the ATG site representative, and the King project manager. Under the heading “As an employee of Aircraft Technologies Group,” King focuses on this language:

Purpose: To perform support work as required by client. Work to be carried out in accordance with and under the direction of King Aerospace Management.

That same section contains several work rules, such as restrictions on cell phones and a requirement that each worker’s tools be etched with identifying information. Other parts of the document require a six-day work week, a daily shift meeting to be conducted by the King “Lead” and a “QA Inspector,” adherence to a dress code (that required either a King or ATG t-shirt), and that workers “follow the required [King] and Army Policy and Procedures.”

King contends that this contractual language establishes a right of control as a matter of law. We disagree.

1. Is the contract dispositive of the right to control?

In Waste Management, the court concluded that a contract that designated the worker as an independent contractor did not dictate the outcome of the control question when the facts on the ground established otherwise; the testimony conclusively showed that Waste Management controlled the details of the progress, details, and methods of operations of the work performed. 622 S.W.3d at 282-83. The court cited its earlier opinion in Exxon Corporation v. Perez where a contract governing the worker’s status was treated “as a factor to be considered, but it is not controlling.” 842 S.W.2d at 630. In particular, a contract is not dispositive in determining a worker’s employment status when there is evidence outside the contract “to show that despite the contract terms, the true operating agreement vested the right of control in the principal.” Weidner v. Sanchez, 14 S.W.3d 353, 374 (Tex.App.--Houston [14th Dist.] 2000, no pet.). When the parties’ “contract says one thing, but the parties continually act in disregard of the contractual delineation of right of control, we are directed to simply consider the control provisions as one factor to weigh against any conflicting evidence of the exercise of that right to determine whether there is sufficient evidence to present the right of control issue to the fact finder.” Alice Leasing Corp. v. Castillo, 53 S.W.3d 433, 440-41 (Tex.App.--San Antonio 2001, pet. denied).

The contract in Waste Management and Perez both provided that someone other than the defendant-company controlled the worker’s action while the conduct of the parties in the workplace showed otherwise. In those situations, the court found that the contract did not dictate the outcome of the right to control test because the right of control traditionally can be established either through the parties’ express contractual arrangement, or if none, by an implied contract proven through their actual conduct. See, e.g., Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002). We allow for the prospect, however, that the converse may not necessarily be true. Where a contract expressly allocates control to a defendant-company that chooses not to exercise that control in practice, it does not necessarily follow that the defendant-company has lost its contractual right of control. As courts often note, it is the “right to control” that governs, and not whether that contractual right is actually exercised. Love, 380 S.W.2d at 585 (“[O]n the question of control, the test is not the exercise thereof, but the right to exercise such control.”), quoting King v. Galloway, 284 S.W. 942, 944 (Tex. Comm’n App. 1926). If a written contract creates a right to control, then the plaintiff need not prove an actual exercise of that control to establish a duty. Bright, 89 S.W.3d at 606; Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 804 (Tex. 1999).

*10 Thus, at the risk of overreading Waste Management, we do not discount that King might find a right of control in its contractual documents. The problem here, however, is that the documents offered raised their own fact questions.

2. King failed to produce its actual contract with Hernandez

The “King Aerospace (KA) in El Paso-ATG Letter of Commitment” on which King bases its argument does not bear Hernandez’s signature, nor does it refer to Hernandez’s employment. At trial, Hernandez was shown a copy of the contract and testified that although he did recall signing a letter of commitment, the letter he was shown was not his letter of commitment.⁵ Moreover, King’s exhibit referenced a different project than the one to which Hernandez was assigned and had a different start date on it. Hernandez also testified that he could not recall the exact terms of his contract, and he could not verify that his letter of commitment contained the same terms as the one King introduced at trial.

King, though, contends its fleet manager, Gerald Torres, testified that its exhibit was the “standard form” contract signed by all “ATG contractors.” From that testimony, King concludes that no reasonable juror could have believed that Hernandez did not sign the same form contract at the start of his assignment. In support of this argument, King relies on our sister court’s holding in Mosqueda v. G & H Diversified Mfg., Inc., 223 S.W.3d 571, 574 (Tex.App.--Houston [14th Dist.] 2007, pet. denied). In that case, a client company produced evidence of daily “time tickets” that it signed when the plaintiff—a temporary worker who had been placed to work at its facility—completed her daily work assignments. Id. at 574-575. The time tickets contained pre-printed “conditions of service” that the client company relied on for its exclusive remedies defense. Id. at 574-75, 577. The court held that although the defendant did not produce any time tickets from the day that the plaintiff was injured, the time tickets that were introduced contained language establishing a right to control. Id. at 577.

Unlike the facts in Mosqueda, however, King did not produce a form document that was uniformly replicated each time it was used. Hernandez’s testimony supports the inference that whatever his actual agreement stated, it was on a different form, because the form he recalled specified the type of aircraft he was to work on. The exemplar form that King relies on contains no similar term. As a result, the discrepancy in the contract created a factual dispute on what contract terms governed the parties’ relationship. See generally In re Bunzle USA, Inc., 155 S.W. 3d 202, 209-210 (Tex.App.--El Paso 2004, orig. proceeding) (the question of whether the parties intended to be bound by an unsigned contract, or a contract that only one party signed, is generally a question for the fact finder to resolve).

3. King’s standard contract did not definitively establish its right to control

*11 Even at that, the standard form contract that King introduced at trial does not establish that King was Hernandez’s employer as a matter of law. The contract repeatedly referred to the temporary worker as ATG’s employee, as an ATG technician, as ATG staff, and as ATG personnel. King focuses on language that the worker was to “perform support work as required by [King]” and was “to be carried out in accordance with and under [King’s] direction.” And the worker agreed to “follow” the policy and procedures required by King and the Department of the Army (with whom King was contracted). While the language used in the contract could have been considered by the jury as a factor in determining Hernandez’s employment status, the language does not conclusively establish that King was Hernandez’s employer for purposes of the Workers’ Compensation Act. In particular, the language did not say that King had the right to directly supervise and direct the aircraft mechanics in how to perform the methods and means by which they performed aviation repairs and maintenance. And the record showed that those methods and means are dictated by neither King nor ATG, but through Army regulations that mandate the use of OEM manuals for repairing military aircraft. When those manuals did not describe a work procedure, a skilled worker such as Hernandez would consult the manufacturer of the aircraft. As a certified repair facility, King was contractually obligated to follow these procedures. And Hernandez as a licensed aircraft worker had to follow these procedures. The language in the standard form contract that a worker was to carry out their work “in accordance with and under [King’s] direction” said no more than what the worker was already obligated to do under federal law.

In addition, while the contract required the ATG mechanics to receive safety training from King’s management before starting work, it did not require them to undergo any training on how to perform their actual jobs in that they admittedly came to the project fully trained and experienced in performing aviation repairs and maintenance. Finally, although the contract established basic workplace procedures and policies that the ATG mechanics were to follow at King’s facility—such as how to obtain access to the base, where to park, cell phone usage—the contract did not set forth the procedures to be followed by the mechanics in performing their work.

So even if we were to find that Hernandez signed King’s standard contract, we find there is some evidence undermining the import of the document as conclusively establishing that Hernandez was King’s employee. We therefore turn next to the question of whether King exercised actual control over the details of Hernandez’s day-to-day work. See Allstate Ins. Co. v. Scott, 511 S.W.2d 412, 414 (Tex.App.--El Paso 1974, writ ref’d n.r.e.) (where there is no express employment contract, or where the terms of the contract were “indefinite,” the exercise of actual control is the best evidence available in determining the right of control).

E. Did King Exercise Actual Control Over the Details of Hernandez’s Work?

At the heart of this case is Hernandez’s status: Was he an employee of both ATG and King, or was there was sufficient evidence for the jury to decide that Hernandez was only a contractor as to King? By definition, an independent contractor does not submit to anyone’s control when performing the details of their work. See Fred Loya Ins. Agency, Inc. v. Cohen, 446 S.W.3d 913, 924 (Tex.App.--El Paso 2014, pet. denied) (an independent contractor is one who, in pursuit of an independent business, undertakes specific work for another using his or her own means and methods without submitting to the control of the other person as to the details of the work); see also Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018) (in determining whether a worker was an employee or an independent contractor, court must examine “whether the employer has the right to control the progress, details, and methods of operations of the work”), citing Limestone Prods., 71 S.W.3d at 312 (worker who delivered limestone for defendant was independent contractor, where defendant merely controlled the end sought to be accomplished—determining where and when to deliver the load—while the worker controlled the means and details of accomplishing the work such as the route to take to deliver the load).

Of course, if Hernandez was a true independent contractor, King would also not be liable for the injury. See Painter, 511 S.W.3d at 723. But Hernandez’s theory is that he was a contractor who was controlled enough by King to make it liable for the injury, but not so much as to confer employer status. See Restatement (Second) of Torts § 414 (1977) (“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”); Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex. 1985) (“This rule applies when the employer retains some control over the manner in which the independent contractor’s work is performed, but does not retain the degree of control which would subject him to liability as a master.”).

*12 What then makes the control so complete as to qualify the worker as an employee (or “borrowed servant”), and not merely a contractor? “[I]n determining if a general employee of a temporary employment agency is also an employee of a client company for purposes of the Act, we consider traditional indicia, such as the exercise of actual control over the details of the work that gave rise to the injury.” Garza, 161 S.W.3d at 477. Those traditional indicia also consider several factors: (1) the independent nature of the worker’s business; (2) the worker’s obligation to furnish necessary tools, supplies, and materials to perform the job; (3) the worker’s right to control the progress of the work except about final results; (4) the time for which the worker is employed; and (5) the method of payment, whether by unit of time or by the job. Limestone Prods., 71 S.W.3d at 312 (setting out factors to distinguish an employee from an independent contractor).

Hernandez testified at trial that he was not controlled by either ATG or King, and that he was instead a “contractor” who worked independently of either entity, relying solely on certain FAA requirements and manuals in performing his job. That testimony constitutes some evidence negating an employer-employee relationship based on control. Under our standard of review, we must credit evidence favorable to Hernandez if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not. See City of Keller, 168 S.W.3d at 827. Given that standard, we address in turn King’s arguments for why the evidence it introduced below purportedly prove Hernandez’s employee status as a matter of law.

1. The FAA regulations

To demonstrate its control over the details of Hernandez’s work, King relies heavily on the FAA regulations governing certified repair stations. It argues that the regulations required King to direct and control the work done by Hernandez and the other mechanics working at its facility. We conclude, however, that while the regulations require a certified repair station to exercise general oversight of the work done at the facility, they do not require a repair station to exercise the type of day-to-day direct supervision of its aviation mechanics that would render them employees of the station as a matter of law for purposes of the Workers’ Compensation Act.

The FAA regulations focus on two general goals: to ensure that only qualified individuals are allowed to perform aviation repairs and maintenance, and to ensure that an aircraft is ready to be returned to service after all necessary repairs and maintenance have been completed. To that end, the regulations require a repair station to designate an “accountable manager”—here Gerald Torres—who is tasked with ensuring that the station is staffed with “qualified personnel to plan, supervise, perform, and approve for return to service the maintenance, preventive maintenance, or alterations performed under the repair station certificate and operations specifications.” 14 C.F.R. § 145.151(b) (2022). This requirement includes ensuring that the station has sufficient employees with the “training or knowledge and experience” in aviation maintenance to ensure that “all work is performed in accordance with part 43 [of the FAA regulations],” and that only qualified and licensed personnel perform repairs and maintenance. Id. § 145.151(c). As well, the regulations state that the accountable manager is “responsible for and has the authority over all repair station operations that are conducted under part 145 [of the FAA regulations], including ensuring that repair station personnel follow the regulations and serving as the primary contact with the FAA.” Id. § 145.3(a).

But as Torres himself testified, his role as the accountable manager was a “big picture” job. In that role, he oversaw the work done at five of King’s facilities, including the El Paso location, as well as facilities in Korea, Iraq, Colombia, and Nevada. Torres did not testify that his role as accountable manager included any direct supervision over the mechanics in performing their repair and maintenance work at any of the facilities, nor do the regulations appear to impose that requirement on him or any other King employee. To the contrary, while the regulations provide that a certified repair station must have enough supervisors to “direct the work performed under the repair station certificate and operations specifications,” it only requires supervisors to “oversee the work performed by any individuals who are unfamiliar with the methods, techniques, practices, aids, equipment, and tools used to perform the maintenance, preventive maintenance, or alterations).” Id. § 145.153(a) (emphasis added). Here, the undisputed evidence established that Hernandez and the other ATG employees came to the facility fully trained on how to perform aviation repairs and maintenance. As well, the regulations specify that a “person directly in charge” of the work performed at a certified repair station does not need to physically observe and direct each worker constantly but “must be available for consultation on matters requiring instruction or decision from higher authority.” Id. § 145.3(c) (emphasis added). Moreover, the regulations expressly allow a certified repair station to contract a maintenance function to an “outside source” upon approval by the FAA, and they also allow a repair station to “[a]rrange for another person to perform the maintenance, preventive maintenance, or alterations of any article for which the certificated repair station is rated.” Id. § 145.217 (authorizing a repair station to contract repair and maintenance work to an outside source); Id. § 145.201 (a certified repair station may perform the maintenance itself or arrange for another person to do so). And these provisions do not appear to require the certified repair station to direct or control the day-to-day activities or work performed by the contracted source. Rather, they would allow repair stations to hire independent contractors who may work with limited supervision in the manner that Hernandez suggested he did at King’s facility.

*13 The regulations do require a certified repair station to inspect an aircraft after all necessary repairs and maintenance. They also require the certified repair station to certify that all work performed was done in accordance with FAA regulations. However, they do not go quite so far as to require the repair station to conduct any inspections of a mechanic’s work until the completion of a project. See Id. § 145.213(a) (“A certificated repair station must inspect each article upon which it has performed maintenance, preventive maintenance, or alterations as described in paragraphs (b) and (c) of this section before approving that article for return to service.”); Id. § 145.201(c)(1) (a certified repair station may only approve an aircraft for return to service when any maintenance, preventive maintenance, or alteration was performed in accordance with the applicable approved technical data or data acceptable to the FAA). That requirement would be equally consistent with hiring an independent contractor and inspecting their final work product to ensure it meets the contract requirements. In short, we find nothing in the federal regulations that required King, its accountable manager, or its supervisors to direct or control the day-to-day work performed by Hernandez. Nor do we find anything that would otherwise mandate a finding that Hernandez was King’s employee as a matter of law for purposes of the Workers’ Compensation Act.

2. The chain of command at the King facility

King also argues that it has implemented a “chain of command” that places “King management personnel at the top directing all work to be done at King’s facility.” The evidence at trial, however, also established that the ATG employees had their own internal chain of command at the facility. The evidence for which supervisor in these two chains controlled the day-to-day work was at best conflicting.

King designated an ATG employee, here Tommy Quijas, to act in a supervisory lead role to communicate and assign King’s direction to other ATG workers. In turn, Hernandez was designated as the lead sheet metal mechanic to supervise the other sheet metal mechanics employed by ATG. At the time of his accident, he had at least one ATG mechanic, Michael Beck, under his supervision. Torres would meet with Quijas each morning to advise him of the work that needed to be done by the ATG employees that day to keep the project on an acceptable timeline. The ATG employees would not be permitted to deviate from his set timeline, but Torres acknowledged that Quijas would “assign” the ATG employees their “work tasks” for the day. Moreover, although Torres testified that Quijas did not technically “supervise” the ATG employees, he acknowledged that besides assigning daily work tasks to the ATG employees, Quijas addressed issues with them when they arose. In addition, Quijas testified, without contradiction, that there were occasions on which he informed Torres that the ATG crew could not perform certain tasks within the timeframe that he had requested. As Torres himself acknowledged, he and Quijas would decide in consultation with each other if the ATG employees needed to work overtime to meet King’s timeframe to finish a project.

Hernandez also testified that Quijas gave him his “orders” day-to-day, and that neither Torres nor any other King employee provided him or the other ATG employees with any instructions or guidance in performing their work. Torres did not contradict Hernandez’s testimony, and the record contains no evidence that Torres: (1) directly supervised or corrected the ATG employees’ work; (2) conducted daily or even weekly inspections of the ATG employees’ work; or (3) required them to report their progress to him at any time during the project. To the contrary, as explained above, Torres viewed himself as the “big picture guy,” who had to keep the project on track and signed off on final inspections, but who did not communicate directly with anyone other than the ATG lead supervisor.

Thus, while the management structure at the facility established that King controlled the “end sought to be accomplished,”—the timely and satisfactory completion of the project on which Hernandez was working—the evidence was conflicting on whether King controlled the details, the methods or the means by which Hernandez accomplished that end goal. And again, a “borrowing employer must control not merely the end sought to be accomplished, but also the means and details of its accomplishment.” Flores v. N. American Tech. Grp., Inc., 176 S.W.3d 442, 449 (Tex.App.--Houston [1st Dist.] 2004, pet. denied). Therefore, the fact that King had the right to control the general timeline and the end goal of the project did not conclusively establish that Hernandez was King’s employee.

3. Control over safety issues v. control over the actual work

*14 Finally, King contends that: (1) even if it did not control the technical aspects of Hernandez’s work in performing aviation repairs and maintenance, it did control the use of safety equipment at its facility; and that (2) the undisputed evidence established that it had furnished Hernandez with the ladder and platform that Hernandez was using at the time of his accident. King also points out that the undisputed evidence established that King had trained Hernandez not to place a ladder on top of the platform when he first started working at the facility, and that Hernandez acknowledged he had acted in violation of that training by placing the ladder on top of the platform, which in turn was the cause of his accident. King contends these facts place it in charge of the “details of the work that gave rise to his injury,” Garza, 161 S.W.3d at 477, and thus his employer for purposes of the Workers’ Compensation.

We could agree with King that it had the right to control safety issues at the facility. Although Hernandez and the other ATG employees came to the facility as licensed and skilled aviation mechanics, King provided safety training to all its newly hired employees, whether King hired them directly or through ATG.⁶ In particular, the evidence established that King provided Hernandez with such safety training, which included ladder safety and fall protection training as a condition of his employment. King also furnished the ladders and other safety equipment that Hernandez and the other ATG employees used in performing their work.

The record thus presents this situation: King controlled Hernandez’s use of the ladder and platform to reach the airplane wing, but not the work that Hernandez was doing on the wing. Does this level of control on this one issue render Hernandez an employee (or borrowed servant) of King as a matter of law, or is merely the element of control that makes it liable for injury to an on-site contractor? And more to the point, King did not direct Hernandez to use the ladder and platform as he did, but instead King would have prevented that use if it had enforced the rules it claims to have had in place.

King heavily relies on the Texas Supreme Court’s decision in Garza v. Exel Logistics, Inc., which held for determining whether a worker from a temporary staffing agency was the client company’s borrowed employee, the key question is whether the client company exercised “actual control over the details of the work that gave rise to the injury.” See, e.g., Garza, 161 S.W.3d at 477. In turn, King contends that the particular “detail” that gave rise to Hernandez’s injury was the misuse of King’s safety equipment. We do not, however, read Garza so broadly.

In Garza, the court determined that the plaintiff, who was an employee of a temporary staffing agency, was also the client company’s employee for purposes of the Workers’ Compensation Act. The undisputed evidence established that the plaintiff was performing a task under the direct supervision of the client company’s employee at the time of his injury. Id. at 477. In particular, the plaintiff was injured when he responded to “direct instructions” from the client company’s supervisor to cross over a moving conveyor belt to turn off a machine, which in turn caused his injury. Id. Thus, the court held that the “details of [the plaintiff’s] work that caused [his] injury were specifically directed by” the client company. Id.

*15 In contrast, Hernandez was not injured due to any instructions that King gave him. Rather, the opposite is true, as King had trained Hernandez not to place a ladder on top of a platform, and his injury was caused by his violation of that training.⁷ In addition, while King had the right to control the use of the ladders and other safety equipment, there was conflicting evidence on whether they actually exercised that right. As Hernandez testified at trial, despite being trained otherwise, it was “common practice” at the facility to place ladders on top of platforms to reach the upper part of an aircraft on which the mechanics were working, and Torres was aware of the practice, but did not correct it. And in fact, Hernandez testified that he and other ATG employees complained to King management that the platforms were unsafe, but management provided no alternative to them. Accordingly, despite King’s ownership of the ladders and their training on how to use the ladders, the evidence established that King was allowing Hernandez and the others to use the ladders in the manner they saw fit in performing their work and were thus not in fact exercising any actual control over their use at the time of Hernandez’s accident.

Finally, King relies on our sister court’s holding in Flores, in which the court found that an employee of a temporary staffing agency was serving as a borrowed employee of a client company for purposes of the Workers’ Compensation Act, where he was injured while operating a piece of equipment at the client company’s facility. Flores, 176 S.W. 3d. at 450. In that case, the undisputed evidence established that at the time of the injury, the plaintiff came to the client company’s plant as a general laborer with “general safety training” but without any training on the machines used in the plant. Id. The client company provided hands-on training for each piece of machinery to which he was assigned, including the molding machine where the injury occurred. Id. Nor did the temporary staffing company have any supervisory employees on-site. Id. The client company supervised and monitored the temporary employees’ “day-to-day activities.” Id. In contrast, Hernandez presented evidence that he received his work assignments and orders from his ATG lead supervisor, he was a uniquely skilled employee who needed no training, and that if anyone supervised him, it was the ATG lead.

We therefore conclude that the record contains some conflicting evidence of probative force over whether Hernandez was an employee of King at the time of the accident. Even considering the contrary evidence that King advances, it did not conclusively establish that it was Hernandez’s employer at the time of his accident for purposes of the exclusive remedies provision in the Workers’ Compensation Act. As a result, we agree with Hernandez that the trial court erred in disregarding the jury’s verdict.

Hernandez’s Issue Two is sustained.

V. CONCLUSION

The trial court’s judgment is reversed, and we remand this matter to the trial court with directions to reinstate the jury’s verdict, and to render a judgment on that verdict.

Court of Appeals of Texas, El Paso.

SCHNEIDER ELECTRIC USA, INC. d/b/a Schneider Electric, Appellant,

v.

Maria RAMIREZ, Appellee.

No. 08-21-00145-CV

|

August 11, 2022

Appeal from the 327th Judicial District Court of El Paso County, Texas (TC# 2019DCV3145), Hon. Linda Chew, Judge

Attorneys & Firms

ATTORNEY FOR APPELLANT: Andrew M. Gould, Wick, Phillips, Gould & Martin, LLP, 3131 McKinney Ave Ste 500, Dallas, TX 75204-2441.

ATTORNEY FOR APPELLEE: Andrew M. Gould, Wick, Phillips, Gould & Martin, LLP, 3131 McKinney Ave Ste 500, Dallas, TX 75204-2441.

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

OPINION

JEFF ALLEY, Justice

*1 A “person” may not discharge or discriminate against an employee because the employee, among other actions, files in good faith a workers’ compensation claim. TEX.LAB.CODE ANN. § 451.001(1) (Chapter 451). This permissive appeal asks how that provision applies to a temporary employee who alleges she was discharged by her staffing agency at a client company’s request. More specifically, Appellee Maria Ramirez brought a Chapter 451 claim against the client company—Appellant, Schneider Electric USA, Inc. (Schneider Electric)—when it allegedly caused her discharge after she pursued a work-place injury claim. Schneider Electric moved for summary judgment claiming that while it carried workers’ compensation insurance for its own permanent employees, it did not provide its temporary workers, including Ramirez, workers’ compensation coverage. Thus, it claimed that it could not be held liable under Chapter 451 as a matter of law. The trial court denied Schneider Electric’s summary judgment, but granted leave to file a permissive appeal to determine whether Schneider Electric can be held liable to Ramirez under Chapter 451. For the following reasons, we reverse and render judgment dismissing Ramirez’s Chapter 451 claim against Schneider Electric.

I. FACTUAL AND PROCEDURAL BACKGROUND

Schneider Electric operates a manufacturing facility in El Paso, Texas. It contracts with various staffing companies, such as Aerotek, Inc., to supply it with temporary contract personnel. Aerotek hired Ramirez in November 2017 and assigned her to work at Schneider Electric’s El Paso facility. Schneider Electric trained Ramirez and had at least some authority to recommend discipline of temporary employees to Aerotek. Ramirez characterizes the relationship somewhat differently, contending that Aerotek “outsources” the personnel decision of when to end Ramirez’s assignment to Schneider Electric.

On April 7, 2018, Schneider Electric’s senior manufacturing supervisor, Cesar Hernandez, sent an email to Ben Diaz, its Human Resources manager, stating that Ramirez left work early because she was overwhelmed at having to torque nuts for two consecutive days (described as a very physically demanding job). Hernandez’s email also stated that Ramirez was assigned that task by her two immediate supervisors, Jesus Estrada and Santiago Segovia, because she twice had failed to put on her insulated safety gloves. Schneider had adopted a strict policy against those found not wearing the required safety attire after a previous Schneider employee died from electrical shock during a testing procedure. Hernandez concluded the email, stating “After talking with Jesus and Santiago on Friday, adding the events of today and considering that her hiring timeframe is approaching, I recommend to let her go and not pursuit [sic] her hiring.” Within a few minutes of Hernandez’s email, Ben Diaz emailed Aerotek’s representative stating “Please end her assignment.”

The next day, Hernandez alerted Diaz that Ramirez had reported to work, but claimed she had a sore shoulder and back. He directed her to the Safety Department. On April 9th, Ramirez completed an Aerotek incident report, claiming she injured her neck, shoulder, and back on April 7 from having to “torque 65 lbs” over a two day period. By that time she had seen a physician who placed a “no work” restriction on her activities. Ramirez alleges that by April 19, both Aerotek and Schneider Electric were in receipt of a form showing that Ramirez was pursuing a workers’ compensation claim. The claim was made, however, under Aerotek’s workers compensation policy. Although Schneider Electric insures its own permanent employees, it does not provide coverage under its policy to temporary personnel on assignment from one of the staffing companies. Rather, Aerotek covers its own workers under Aerotek’s workers’ compensation policy while they are working for Schneider Electric, and Aerotek’s policy does not name Schneider Electric as the insured.

*2 Ramirez’s employment with Aerotek was terminated on April 20th. Ramirez subsequently sued Schneider Electric and Aerotek alleging disability discrimination, sexual harassment, sex discrimination, and retaliation under the Texas Commission on Human Rights Act. She also asserted a Chapter 451 claim, contending that both companies “discriminated, retaliated against, and fired [her] for filing a Workers’ Compensation claim.” Aerotek removed the case to the U.S. District Court for the Western District of Texas, but Ramirez’s Chapter 451 claims were severed and remanded to state court.

Once back in state court, both Aerotek and Schneider Electric moved for summary judgment on Ramirez’s Chapter 451 claim. Aerotek’s motion principally argued that it terminated Ramirez based on its belief that she violated a Schneider Electric safety rule, which it argued was a legitimate, non-retaliatory reason for her termination that she cannot show was a mere pretext for an unlawful motive. The trial court granted Aerotek’s motion and dismissed the claim against Aerotek with prejudice.¹

Schneider Electric filed a traditional motion for summary judgment, arguing that under the holdings in Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52 (Tex. 1998) and 798 F.3d 222 (5th Cir. 2015), Ramirez’s Chapter 451 fails as a matter of law because Schneider Electric never provided workers’ compensation coverage to Ramirez. The trial court denied Schneider Electric’s motion. But the court also allowed Schneider Electric to pursue a permissive appeal for this question: “whether Schneider Electric can be liable to Plaintiff for workers’ compensation discrimination pursuant to Chapter 451 since Schneider Electric did not provide Plaintiff workers’ compensation coverage but does provide workers’ compensation coverage to its direct employees.” We granted Schneider Electric the right to pursue a permissive appeal from the denial of its motion for summary judgment. See TEX.CIV.PRAC. & REM.CODE ANN. § 51.014(d) and (f) (authorizing and setting forth standards for permissive appeals).