Edna A. Martinez v. State Office of Risk Management
Opinion
ACCEPTED 04-14-00558-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 4/9/2015 3:16:15 PM KEITH HOTTLE CLERK
CAUSE NO. 04-14-00558-CV __________________________________________________________________ FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS SAN ANTONIO, TEXAS FOURTH COURT OF APPEALS DISTRICT, SAN ANTONIO, TEXAS 04/9/2015 3:16:15 PM __________________________________________________________________ KEITH E. HOTTLE Clerk EDNA A. MARTINEZ APPELLANT V.
STATE OFFICE OF RISK MANAGEMENT APPELLEE __________________________________________________________________
On Appeal from the 37th Judicial District Court, Bexar County, Texas, Cause No. 2001-CI-17102 __________________________________________________________________
APPELLEE’S BRIEF __________________________________________________________________
KEN PAXTON EMILY JAKOBEIT Attorney General of Texas Assistant Attorney General Tort Litigation Division 030 CHARLES E. ROY State Bar No. 24063075 First Assistant Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 JAMES E. DAVIS (512) 475-2036 Deputy Attorney General for Civil Fax#: (512) 457-4482 Litigation emily.jakobeit@texasattorneygeneral.gov COUNSEL FOR STATE OFFICE KARA L. KENNEDY OF RISK MANAGEMENT Chief, Tort Litigation Division
APPELLEE REQUESTS ORAL ARGUMENT IDENTITY OF PARTIES AND COUNSEL
Appellee certifies that the following is a complete list of the parties,
attorneys, and any other person who has any interest in the outcome of this lawsuit:
APPELLANTS/PLAINTIFFS
1. Edna A. Martinez
2. Appellant and Trial Counsel Mr. Kenneth W. Howell Attorney at Law State Bar No. 10102727 629 S. Presa San Antonio, Texas 78210 (210) 227-6305 (210) 227-6327 kwhowell@earthlink.net
APPELLEES/DEFENDANTS
1. State Office of Risk Management
2. Trial Counsel Ms. Sandra Salas Horne
3. Appellate Counsel Ms. Emily Jakobeit Assistant Attorney General Tort Litigation Division P.O. Box 12548 Austin, Texas 78711-2548 (512) 463-2197 Fax: (512) 457-4482
DISTRICT JUDGE - 37TH – The Honorable Antonia Arteaga, 57th District Court Judge, 100 Dolorosa Street, San Antonio, Texas 78205 (210) 335-2515 ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii INDEX OF AUTHORITIES.....................................................................................iv STATEMENT OF THE CASE .................................................................................ix STATEMENT REGARDING REQUEST FOR ORAL ARGUMENT ..................xi ISSUE PRESENTED BY APPELLANT ............................................................... xii STATEMENT OF FACTS ........................................................................................2 SUMMARY OF THE ARGUMENT ........................................................................ 4 ARGUMENT .............................................................................................................8 I. STANDARD REVIEW................................................................................ 8 II. SORM PROPERLY CHALLENGED THE ISSUE OF COMPENSABILITY ON JUDICIAL REVIEW ........................................... 9 III. MARTINEZ’S FAILURE TO COMPLY WITH TEXAS GOVERNMENT CODE § 658.010 AND § 659.018 PRECLUDES THE FINDING OF A COMPENSABLE INJURY .....................................24 IV. MARTINEZ’S VIOLATIONS REGARDING THE SCOPE OF HER EMPLOYMENT PROVIDE SUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURTS RULING ...............................................30 V. SORM IS ENTITLED TO SOVEREIGN IMMUNITY FOR CLAIMS OF ATTORNEY FEES UNDER SECTION 408.221(c) ............. 33 CONCLUSION ........................................................................................................36 PRAYER ..................................................................................................................37 CERTIFICATE OF COMPLIANCE .......................................................................39 CERTIFICATE OF SERVICE ................................................................................39 APPENDIX ..............................................................................................................40 iii INDEX OF AUTHORITIES
CASES
American Motorists Ins. Co. v. Steel, 229 S.W.2d 386 (Tex. Civ. App.—1950, writ ref’d n.r.e.) ..........................10
Anderson v. Hood County, 958 S.W.2d 448 (Tex. App.—Fort Worth 1997, no pet.) .............................. 8
Banfield v. City of San Antonio, 801 S.W.2d 134 (Tex. App.—San Antonio, no writ) ..............................................................15
Brown v. Forum Ins. Co., 507 S.W.2d 576 (Tex. Civ. App.—Dallas 1974, no writ) .................................................25, 31
Bugh v. Employers' Reinsurance Corp., 63 F. 2d 36 (5th Cir. 1933) (applying Texas law) ......................................................16, 33
City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) ............................................................................ 8
Employers’ Cas. Co. v. Bratcher, 823 S.W. 2d 719 (Tex.App.—El Paso, 1992, writ denied) ..........................12
Esis Inc. Servicing Contractor v. Johnson, 908 S.W. 2d 554 (Tex. App.—Ft. Worth 1995, writ denied) ................13, 14
Evans v. Illinois Employers Ins. Of Wausau, 790 S.W.2d 302 (Tex. 1990) ........................................................................14
Hefley v. Sentry Ins. Co, 131 S.W.3d 63 (Tex. App.—San Antonio 2003, pet. denied) ...............................................28
Hosner v. De Young, 1 Tex. 764, 769 (1847) .................................................................................33
iv Krueger v. Atacosa Cnty., 155 S.W. 3d 614 (Tex. App.—San Antonio 2004, no pet.) .....................................................22
Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239 (Tex. 2010) ........................................................................11
Lumberman’s Reciprocal Ass’n v. Behnken, 246 S.W. 72 (Tex. 1922) ........................................................................13, 16
Manbeck v. Austin Ind. School Dist., 381 S.W.3d 528 (Tex., 2012) .......................................................................35
Maryland Cas. Co. v. Brown, 115 S.W.2d 394 (Texas 1938) ................................................................25, 31
Mid-Century Ins. Co of Texas. v. Ademaj, 243 S.W.3d 618 (Tex. 2008) ...........................................................................8
Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985) .......................................................................... 8
Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex. 1972) ........................................................................17
Quarles v. Lumbermen’s Reciprocal Ass’n, 293 S.W.
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ACCEPTED 04-14-00558-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 4/9/2015 3:16:15 PM KEITH HOTTLE CLERK
CAUSE NO. 04-14-00558-CV __________________________________________________________________ FILED IN 4th COURT OF APPEALS IN THE COURT OF APPEALS SAN ANTONIO, TEXAS FOURTH COURT OF APPEALS DISTRICT, SAN ANTONIO, TEXAS 04/9/2015 3:16:15 PM __________________________________________________________________ KEITH E. HOTTLE Clerk EDNA A. MARTINEZ APPELLANT V.
STATE OFFICE OF RISK MANAGEMENT APPELLEE __________________________________________________________________
On Appeal from the 37th Judicial District Court, Bexar County, Texas, Cause No. 2001-CI-17102 __________________________________________________________________
APPELLEE’S BRIEF __________________________________________________________________
KEN PAXTON EMILY JAKOBEIT Attorney General of Texas Assistant Attorney General Tort Litigation Division 030 CHARLES E. ROY State Bar No. 24063075 First Assistant Attorney General P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 JAMES E. DAVIS (512) 475-2036 Deputy Attorney General for Civil Fax#: (512) 457-4482 Litigation emily.jakobeit@texasattorneygeneral.gov COUNSEL FOR STATE OFFICE KARA L. KENNEDY OF RISK MANAGEMENT Chief, Tort Litigation Division
APPELLEE REQUESTS ORAL ARGUMENT IDENTITY OF PARTIES AND COUNSEL
Appellee certifies that the following is a complete list of the parties,
attorneys, and any other person who has any interest in the outcome of this lawsuit:
APPELLANTS/PLAINTIFFS
1. Edna A. Martinez
2. Appellant and Trial Counsel Mr. Kenneth W. Howell Attorney at Law State Bar No. 10102727 629 S. Presa San Antonio, Texas 78210 (210) 227-6305 (210) 227-6327 kwhowell@earthlink.net
APPELLEES/DEFENDANTS
1. State Office of Risk Management
2. Trial Counsel Ms. Sandra Salas Horne
3. Appellate Counsel Ms. Emily Jakobeit Assistant Attorney General Tort Litigation Division P.O. Box 12548 Austin, Texas 78711-2548 (512) 463-2197 Fax: (512) 457-4482
DISTRICT JUDGE - 37TH – The Honorable Antonia Arteaga, 57th District Court Judge, 100 Dolorosa Street, San Antonio, Texas 78205 (210) 335-2515 ii TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ........................................................... ii INDEX OF AUTHORITIES.....................................................................................iv STATEMENT OF THE CASE .................................................................................ix STATEMENT REGARDING REQUEST FOR ORAL ARGUMENT ..................xi ISSUE PRESENTED BY APPELLANT ............................................................... xii STATEMENT OF FACTS ........................................................................................2 SUMMARY OF THE ARGUMENT ........................................................................ 4 ARGUMENT .............................................................................................................8 I. STANDARD REVIEW................................................................................ 8 II. SORM PROPERLY CHALLENGED THE ISSUE OF COMPENSABILITY ON JUDICIAL REVIEW ........................................... 9 III. MARTINEZ’S FAILURE TO COMPLY WITH TEXAS GOVERNMENT CODE § 658.010 AND § 659.018 PRECLUDES THE FINDING OF A COMPENSABLE INJURY .....................................24 IV. MARTINEZ’S VIOLATIONS REGARDING THE SCOPE OF HER EMPLOYMENT PROVIDE SUFFICIENT EVIDENCE TO SUPPORT THE TRIAL COURTS RULING ...............................................30 V. SORM IS ENTITLED TO SOVEREIGN IMMUNITY FOR CLAIMS OF ATTORNEY FEES UNDER SECTION 408.221(c) ............. 33 CONCLUSION ........................................................................................................36 PRAYER ..................................................................................................................37 CERTIFICATE OF COMPLIANCE .......................................................................39 CERTIFICATE OF SERVICE ................................................................................39 APPENDIX ..............................................................................................................40 iii INDEX OF AUTHORITIES
CASES
American Motorists Ins. Co. v. Steel, 229 S.W.2d 386 (Tex. Civ. App.—1950, writ ref’d n.r.e.) ..........................10
Anderson v. Hood County, 958 S.W.2d 448 (Tex. App.—Fort Worth 1997, no pet.) .............................. 8
Banfield v. City of San Antonio, 801 S.W.2d 134 (Tex. App.—San Antonio, no writ) ..............................................................15
Brown v. Forum Ins. Co., 507 S.W.2d 576 (Tex. Civ. App.—Dallas 1974, no writ) .................................................25, 31
Bugh v. Employers' Reinsurance Corp., 63 F. 2d 36 (5th Cir. 1933) (applying Texas law) ......................................................16, 33
City of Garland v. Dallas Morning News, 22 S.W.3d 351 (Tex. 2000) ............................................................................ 8
Employers’ Cas. Co. v. Bratcher, 823 S.W. 2d 719 (Tex.App.—El Paso, 1992, writ denied) ..........................12
Esis Inc. Servicing Contractor v. Johnson, 908 S.W. 2d 554 (Tex. App.—Ft. Worth 1995, writ denied) ................13, 14
Evans v. Illinois Employers Ins. Of Wausau, 790 S.W.2d 302 (Tex. 1990) ........................................................................14
Hefley v. Sentry Ins. Co, 131 S.W.3d 63 (Tex. App.—San Antonio 2003, pet. denied) ...............................................28
Hosner v. De Young, 1 Tex. 764, 769 (1847) .................................................................................33
iv Krueger v. Atacosa Cnty., 155 S.W. 3d 614 (Tex. App.—San Antonio 2004, no pet.) .....................................................22
Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239 (Tex. 2010) ........................................................................11
Lumberman’s Reciprocal Ass’n v. Behnken, 246 S.W. 72 (Tex. 1922) ........................................................................13, 16
Manbeck v. Austin Ind. School Dist., 381 S.W.3d 528 (Tex., 2012) .......................................................................35
Maryland Cas. Co. v. Brown, 115 S.W.2d 394 (Texas 1938) ................................................................25, 31
Mid-Century Ins. Co of Texas. v. Ademaj, 243 S.W.3d 618 (Tex. 2008) ...........................................................................8
Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985) .......................................................................... 8
Olson v. Hartford Accident and Indemnity Company, 477 S.W.2d 859 (Tex. 1972) ........................................................................17
Quarles v. Lumbermen’s Reciprocal Ass’n, 293 S.W. 333 (Tex. Civ. App.—Beaumont 1927, no writ) ..........................33
State Office of Risk Mgmt. v Laxson, No. 04-04-00875-CV, 2005 WL 2654009 at *2 (Tex. App.—San Antonio Oct. 19, 2005, no pet.) .......................................10
State Office of Risk Mgmt. v. Martinez, 300 S.W.3d 9 (Tex. App.—San Antonio 2009, pet denied)...........................ix
State Office of Risk Mgmt. v. Ribble, No. 03-12-00084-CV, 2014 WL 4058936 (Tex. App.—Austin, August 13, 2014, no pet h.) ......... 36
v Texas Mut. Ins. Co. v. Jerrols, 385 S.W. 3d 619 (Tex. App.—Houston [14th District] 2012, pet. dism’d) ........................11, 14
Texas Workers’ Comp. Ins. Fund .v Simon, 980 S.W. 2d 730 (Tex App.—San Antonio 1998, no pet.) ..........8, 10, 11, 12
Texas Workers’ Compensation Insurance Fund v. Texas Workers’ Compensation Com’n, 124 S.W. 3d 813 (Tex. App.—Austin, 2003, pet. denied) ..............................................6, 20, 28
Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211 (Tex. 2010) ..................................................................11, 27
Univ. of Texas System v. Ochoa, 413 S.W.3d 769 (Tex. App.—Austin, 2013, pet. denied.) .....................35, 36
Walters v. American States Ins. Co., 654 S.W. 2d 423 (Tex. 1983) .......................................................................12
Zurich Am. Ins. Co. v. Gill, 173 S.W.3d 878 (Tex. App.—San Antonio 1998, pet. denied.) .................. 10
Zurich American Ins. Co. v. McVey, 339 S.W.3d 724 (Tex. App.—Austin, 2011, pet. denied) .......................13, 14
RULES
Texas Rules of Appellate Procedure, Rule 39 ..........................................................xi
STATUTES & OTHER
Tex. Civ. Prac. & Rem. Code § 101.001 .................................................................35
Tex. Gov’t Code § 311.034................................................................................33, 34
Tex. Gov’t Code § 658.010............................ xi, 6, 17, 24, 25, 26, 27, 28, 29, 32, 37 vi Tex. Gov’t Code § 658.010(a)(2) .....................................................................17, 32
Tex. Gov’t Code § 658.010(b) ..........................................................................17, 32
Tex. Gov’t Code § 659.018............................ xi, 6, 17, 24, 25, 26, 27, 28, 29, 32, 37
Tex. Lab. Code § 401.011(10) ..............................................................................4, 9
Tex. Lab. Code § 401.011(12) ............................................................................4, 32
Tex. Lab. Code § 401.011(16) ................................................................................19
Tex. Lab. Code § 408.221 ..................................................................................34, 36
Tex. Lab. Code § 408.221(c) ..................................................................7, 33, 34, 35
Tex. Lab. Code § 409.021 ..................................................................................22, 29
Tex. Lab. Code § 409.022 ........................................................................................29
Tex. Lab. Code § 410.011(12) ................................................................................10
Tex. Lab. Code § 410.202 ........................................................................................21
Tex. Lab. Code § 410.202(b) ........................................................................6, 21, 22
Tex. Lab. Code § 410.251 ..............................................................................5, 21, 22
Tex. Lab. Code § 410.302(b) ............................................................................20, 28
Tex. Lab. Code. § 412.001 .......................................................................................34
Tex. Lab. Code § 412.001(4) ..................................................................................35
Tex. Lab. Code Chapter 501 ..........................................................................7, 35, 36
Tex. Lab. Code § 501.001 ........................................................................................35 vii Tex. Lab. Code § 501.002 ....................................................................................7, 35
Tex. Lab. Code § 501.002(d) ...................................................................................35
viii STATEMENT OF THE CASE
Nature of the case:
The Texas Department of Insurance, Division of Workers’ Compensation (DWC) held a Contested Case Hearing on September 20, 2001. (C.R. Supp. at 121-173) A Decision and Order was issued on September 24, 2001 that the Appellant, Edna A. Martinez, did not sustain a compensable injury on June 9, 2001, and that Martinez did not have disability as the result of a compensable injury. (C.R. at 38-43) Martinez filed a Request for Review, Appellee State Office of Risk Management (SORM) filed a Response to her Request for Review, and the Appeals Panel reversed the Decision and Order. (C.R. at 399-404, C.R. at 32-34) SORM then brought suit for judicial review seeking to reverse the administrative decision of DWC. (C.R. at 1-10)
On February 20, 2007, the case was called for trial. On the day of trial, Martinez filed a Motion for Pre-Trial Directed Verdict, which was granted and later signed on November 14, 2007. (C.R. at 347-349) SORM appealed, and the Court reversed and remanded the case. State Office of Risk Mgmt. v. Martinez, 300 S.W.3d 9 (Tex. App.—San Antonio 2009, pet denied).
On March 27, 2013, Plaintiff’s Motion for Summary Judgment was granted and Defendant’s Second Motion for Summary Judgment was denied. (C.R. at 520, 555-556) On May 6, 2014, Judge Arteaga signed a final judgment in favor of SORM. (C.R. at 587-588) Appellant filed a Motion for New Trial, which was overruled by operation of law on July 21, 2014. (C.R. at 589-599) Appellant filed a Notice of Appeal to the Fourth Court of Appeals on August 4, 2014. (C.R. at 600- 601)
Trial Court:
The Honorable Antonia Arteaga, 57th District Court Judge, 100 Dolorosa Street, San Antonio, Texas 78205.
Trial Court Disposition:
Plaintiff’s Motion for Summary Judgment was granted.
ix Parties in the Court of Appeals:
Defendant/Appellant:
Edna A. Martinez
Plaintiff/Appellee:
State Office of Risk Management
x STATEMENT REGARDING REQUEST FOR ORAL ARGUMENT
Pursuant to Rule 39, Texas Rules of Appellate Procedure, Appellee hereby
requests oral argument in this Appeal. Oral argument would assist the Court in
determining the legal issues surrounding SORM’s challenge of compensability on
judicial review, specifically whether Martinez’s violation of Texas Government
Code § 658.010 and § 659.018 removed her from the course and scope of
employment and whether Martinez’s injury arose out of her employment.
xi ISSUE PRESENTED BY APPELLANT
1. Whether SORM can challenge the issue of compensability on judicial review on any ground, when the contested case hearing findings established the elements of a compensable injury and were not appealed to or decided by the appeals panel?
2. Whether SORM can raise Martinez’s alleged statutory violation as a basis for denial for the first time on judicial review, when it did not raise the issue at any stage of the administrative proceedings?
3. Whether SORM’s alleged statutory violation – no prior permission to work at home – is no evidence that Martinez did not sustain a compensable injury, when it undisputed that her injury otherwise arose out of an in the course and scope of employment?
xii CAUSE NO. 04-14-00558-CV __________________________________________________________________
IN THE COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT, SAN ANTONIO, TEXAS __________________________________________________________________
EDNA A. MARTINEZ APPELLANT V.
STATE OFFICE OF RISK MANAGEMENT APPELLEE __________________________________________________________________
On Appeal from the 37TH Judicial District Court, Bexar County, Texas, Cause No. 2001-CI-17102 __________________________________________________________________
APPELLEE’S BRIEF __________________________________________________________________
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellee, State Office of Risk Management, and files this
it’s Appellee’s Brief and requests that the Order of the Trial Court granting its
motion for summary judgment be affirmed. Throughout this brief, the Clerk’s
record shall be referred to by the initials C.R. The Supplemental Clerk’s record
shall be referred to as C.R. Supp. STATEMENT OF FACTS
Edna Martinez was employed as a Child Protective Services Specialist II
with the Texas Department of Public and Regulatory Services (TDPRS). (C.R. at
54) On June 11, 2001, Martinez made a claim for workers' compensation benefits
when she reported to her employer that she fell in her own kitchen and dining area
on June 9, 2001, a Saturday. (C.R. at 51) After Martinez made the claim, the
employer filled out an initial accident report stating, in part, “unknown if accident
happened in work area.” (C.R. at 51) Martinez reported to the employer that upon
falling in her kitchen she injured her back, arm, neck, shoulder, face and head.
(C.R. at 54-55) Martinez believed her injuries occurred as a result of slipping on
moisture on her kitchen floor. (C.R. Supp. at 130, 143, 155) Martinez’s fall
occurred away from her office, on premises not controlled by her employer. (C.R.
at 141-143).
Martinez did not obtain approval to work overtime prior to June 9, 2001,
despite the fact that she was aware she was required to obtain her Supervisor’s
approval to work overtime. (C.R. Supp. at 141-142) Martinez’s regular work
hours were 8:00am to 5:00pm Monday through Friday and she did not work on
Saturdays or Sundays. (C.R. Supp. at 141) Employees are not allowed to take
overtime or work away from the office unless a supervisor approves it in advance.
2 (C.R. Supp. at 65, 68, 73)
While the Statement of Facts within Martinez's Appeal states the main
reason for the denial of her workers' compensation claim was that she failed to
obtain prior permission to work overtime or at home, SORM ultimately denied the
claim for workers' compensation in its entirety on the basis that Martinez 1.) was
not within the course and scope of her employment, 2.) was not furthering the
affairs of her employer, and 3.) could not establish a causal connection between the
alleged injury and her employment. (C.R. at 57)
A Contested Case Hearing (CCH) before the Texas Workers Compensation
Commission was held on September 21, 2001. (C.R. Supp. at 122-173) The issues
before the Hearing Officer were: 1.) Did the Claimant sustain a compensable injury
on June 9, 2001? and 2.) Did the Claimant have disability? (C.R. Supp. at 36, 125)
A Decision and Order ruled on the issues presented, finding Martinez did not
sustain a compensable injury on June 9, 2001, and that, because she did not sustain
a compensable injury, Martinez did not have disability. (C.R. Supp. at 29)
Martinez timely filed a Request for Review to the appeals panel, and SORM timely
filed a Response to her Request for Review. (C.R. at 399-404) The Appeals Panel
then reversed the decision. (C.R. Supp. at 19-21) Following the reversal, SORM
timely filed an Original Petition in District Court seeking Judicial Review. (C.R. at
3 1-10).
SUMMARY OF ARGUMENT
The contested case findings do not establish a compensable injury resulted
following Martinez’s fall in her own home on June 9, 2001, as alleged by
Martinez. (Appellant’s Brief, p. 11). In order to establish a compensable injury,
one must show that the injury both “arose out of” and was “within the course and
scope” of employment. Tex. Lab. Code Ann. § 401.011(10). In order to show an
injury is “within the course and scope” of employment, an employee must show he
or she was engaged in an activity that “originated in” the employment and
“furthered the affairs” of the employment. Tex. Lab. Code Ann. § 401.011(12).
Martinez’s injury did not arise out of the employment because the
employment did not create the activity that placed Martinez in harms way, i.e., the
activity of walking across her own kitchen floor and subsequently slipping was not
created by her employment. Martinez cannot show she was in the course and
scope of employment because she was not engaged in an activity that made
employment possible, was required by the employer, or was related to the
employment in any way.
While the findings of fact within the contested case findings state that
Martinez was furthering the affairs of the employer by making service reports, the
4 findings of fact do not establish she was furthering the affairs of her employer by
walking across her own kitchen floor. (C.R. Supp. at 28) The contested case
findings also state that Martinez fell due to unknown reasons and her injury did not
involve any instrumentality of the employer. (C.R. Supp. at 29) Therefore the
contested case findings establish Martinez’s injury was due to reasons not
connected to her employment and establish Martinez did not sustain a compensable
injury. (C.R. Supp. at 29) A finding against SORM would indicate that anything
Martinez did in or around her own home on the weekend of June 9, 2001 could
potentially cause a work related injury, simply because she claimed she was
working at her home.
Martinez also argues that SORM is barred from raising the issue of
compensability on judicial review, and therefore cannot prevail on its cause of
action as a matter of law. (Appellant’s Brief, p. 14). However, SORM can raise
the issue of compensability on judicial review because when SORM was aggrieved
by the appeals panel decision it properly appealed the case to District Court. Tex.
Lab. Code Ann. § 410.251. SORM did not file a Request for Review regarding the
Hearing Officer's Decision and Order because the Hearing Officer initially decided
the issues presented at the CCH in SORM's favor. (C.R. Supp. at 29) SORM was
therefore not required to file a Request for Review, and SORM properly preserved
5 its right to appeal when it filed its Response to the Claimant's Request for Review.
Tex. Lab. Code Ann. § 410.202(b); (C.R. at 399-404) Thus, SORM has
consistently disputed that Martinez’s injuries arose out of and in the course and
scope of employment.
In addition, SORM is not precluded from arguing that Martinez violated
Texas Government Codes § 658.010 and § 659.018 after the contested case hearing
as alleged by Martinez, because this is an argument in support of the fact that
Martinez violated a rule of the employer and therefore she could not have sustained
a compensable injury. Texas Government Code § 658.010 and § 659.018 regulate
State employee work hours, including the location of where work may be
performed. Tex. Gov’t Code Ann. § 658.010; Tex. Gov’t Code Ann. § 659.018.
The contention that Martinez violated these statutes is not a separate issue as
defined in the Texas Workers’ Compensation Act. Texas Workers’ Compensation
Insurance Fund v. Texas Workers’ Compensation Com’n, 124 S.W. 3d 813, 821
(Tex. App.—Austin, 2003, pet. denied) SORM has consistently argued that
Martinez violated a rule of the employer by working at home on the weekend
without prior permission since the CCH. (C.R. Supp. at 169) Further, because
Martinez specifically violated the employer’s rules in addition to Gov’t Codes
§658.010 and § 659.018, it is impossible for her injury to have arisen from the
6 employment since the employer did not create the activity by which Martinez was
injured. In fact, by both employer rule and statute, employment activities are
prohibited to be conducted outside of work hours off of the employer’s premises
without permission. Therefore, because Martinez operated outside the scope of her
work when she worked at home without prior authorization, by both rule and law,
there is prima facie evidence that her injuries cannot be compensable. Thus, the
trial court’s granting of SORM’s Motion for Summary Judgment was correct and
the judgment should be affirmed.
Finally, SORM is not liable for attorney fees, as SORM is a state agency and
the Legislature has not waived immunity from liability for attorney fees under
either Texas Labor Code Section 408.221(c) or Texas Labor Code Chapter 501.
Tex. Lab. Code Ann. 408.221(c); Tex. Lab. Code § 501.002. As there is no clear
and unambiguous waiver of sovereign immunity for claims of attorney fees within
either of these statutes, Martinez’s counsel is not entitled to attorney fees.
7 ARGUMENT
I. Standard of Review
The standard of review for the trial court’s ruling on a motion for summary
judgment is de novo. Mid-Century Ins. Co of Texas. v. Ademaj, 243 S.W.3d 618,
621 (Tex. 2008) When both parties move for summary judgment, the court of
appeals reviews all of the questions and all of the evidence presented, by both
sides, and renders the judgment that the trial court should have rendered. Id. at
621.
Appeals from district court summary judgment orders in workers'
compensation cases are reviewed under traditional summary judgment standards.
Anderson v. Hood County, 958 S.W.2d 448, 449 n. 1 (Tex. App.—Fort Worth
1997, no pet.) When a party moves for summary judgment, the party must show
that there are no genuine issues of material fact and that the party is entitled to
judgment as a matter of law. Texas Workers’ Comp. Ins. Fund .v Simon, 980 S.W.
2d 730, 733 (Tex App.—San Antonio 1998, no pet.); Nixon v. Mr. Property
Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985) When both parties move
for summary judgment, each party bears the burden of establishing that it is
entitled to judgment as a matter of law. City of Garland v. Dallas Morning News,
22 S.W.3d 351, 356 (Tex. 2000).
8 II. SORM properly challenged the issue of compensability on judicial review
Martinez argues that the hearing officer's findings of fact clearly establish a
compensable injury, specifically arguing that the hearing officer's findings
encompass the “arising out of” element of compensable injury. She also argues
that because SORM failed to appeal the adverse contested case findings of fact
establishing the elements of a compensable injury, it is barred from challenging the
issue on judicial review. SORM will address each of these contentions below in the
order presented by Martinez.
A. The Hearing Officer's findings of fact do not establish the elements of a compensable injury.
1. “Compensable Injury” under the Texas Workers’ Compensation Act
For a compensable injury to exist, the Texas Workers' Compensation Act
outlines several elements that must be met. It defines “compensable injury” as, “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).
It is a long standing proposition in Texas that both elements must be met in order
for a compensable injury to be established, and Texas courts construe the Texas
Workers’ Compensation Act to require the two distinct elements exist at the time
9 of an injury in order for compensation to be allowed. American Motorists Ins. Co.
v. Steel, 229 S.W.2d 386, 389 (Tex. Civ. App.—1950, writ ref’d n.r.e.) Both the
“arise out” of and the “course and scope” components must be met. State Office
of Risk Mgmt. v Laxson, No. 04-04-00875-CV, 2005 WL 2654009 at *2 (Tex. App.
—San Antonio Oct. 19, 2005, no pet.); see also Texas Workers’ Comp. Ins. Fund
v. Simon, 980 S.W.2d 730, 734 (Tex. App.—San Antonio 1998, no pet.) Both
components must be present, and neither alone is sufficient. See Zurich Am. Ins.
Co. v. Gill, 173 S.W.3d 878, 882 (Tex. App.—San Antonio 1998, pet. denied.) (To
be ‘compensable,’ the injury must arise out of and in the scope and course of
employment for which compensation is payable.”)
Further, in order to show an injury within the “course and scope,” an
additional two prong test must be met. “ ‘Course and Scope of Employment’
means an activity of any kind or character that has to do with and originates in the
work, business, trade, or profession of the employer and that is performed by an
employee while engaged in or about the furtherance of the affairs or business of
the employer.” Tex. Lab. Code Ann. § 410.011(12) (emphasis added). Therefore,
the two prong test of originating in and furthering the affairs must also be met in
order to meet the course and scope component definition of a compensable injury.
“Origination and furtherance are separate components. Both must be satisfied to
10 bring an activity within the ‘course and scope of employment.’” Texas Mut. Ins.
Co. v. Jerrols, 385 S.W. 3d 619, 623 (Tex. App.—Houston [14th District] 2012,
pet. dism’d); (citing Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 243-44 & n.
18 (Tex. 2010)). An activity furthers the affairs of the employer if it makes
employment possible and thus furthers the employer’s business. Leordeanu, 330
S.W.3d at 242. In sum, the court must determine whether the relationship between
the activity 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. Leordeanu, 330 S.W. 3d at 242.
2. “Arise out of” component of compensable injury under the Texas Workers’ Compensation Act
In her appeal, Martinez argues that the “arises out of” component is met by
simply proving a causal connection between the activities of employment and the
injury. (Appellant’s Brief, p. 13). While causation is a factor of the “arise out of”
component, causation must be proven by showing the activity resulting in the
injury was a “substantial factor in bringing about the injury or death, and without
which the injury or death would not have occurred.” Transcontinental Ins. Co. v.
Crump, 330 S.W.3d 211, 223 (Tex. 2010) Further, in Simon, the Court clearly
states that, “the question under [the arise out of component] of liability is whether
11 the injury would have occurred if the 'conditions and obligations of employment
had not placed the claimant in harm's way.” Simon, 980 S.W.2d at 735-736, (citing
Employers’ Cas. Co. v. Bratcher, 823 S.W. 2d 719, 721 (Tex.App.—El Paso,
1992, writ denied)); see also Walters v. American States Ins. Co., 654 S.W. 2d 423,
425 (Tex. 1983). Therefore, the activity in question must be a substantial factor in
creating an injury, and the employment must also have created the activity that
placed the employee in harms way.
In the case at hand, Martinez was working in her own home. (C.R. Supp. at
127) She slipped and fell her own wet kitchen floor. (C.R. Supp. at 143) Before
the injury, Martinez alleged she was working on paperwork and reports. (C.R.
Supp. at 130) She was not performing any activities for her employer that required
water or any other liquid that could have contributed to the wet kitchen floor. The
condition of the kitchen floor was not created by the employment, but was a
condition created by Martinez's own personal surroundings. There were, therefore,
no conditions or obligations of the employer that placed Martinez in harms way as
she walked across her kitchen floor. Further, the activity of creating reports was
not a substantial factor in bringing about the injury. Thus, it cannot be said that the
injury arose out of the employment.
12 3. “Course and Scope” component of compensable injury under the Texas Workers’ Compensation Act
Martinez argues that the course and scope component is met, “as long as the
employee is engaged in activities originating in and in furtherance of the
employer's business that are a producing cause of injury, the injury arises out of
and in the course and scope and compensable.” (Appellant’s Brief, p. 13, citing
Esis Inc. Servicing Contractor v. Johnson, 908 S.W. 2d 554 at 557 (Tex. App.—Ft.
Worth 1995, writ denied). While this is a correct statement of the law, Martinez’s
subsequent argument ignores the requirement that the activity producing the injury
must be one originating in and furthering the employer's business.
These elements are exemplified in the Esis case which states, “An injury
originates from the employment when it results from a risk or hazard that is
reasonably inherent or incident to the work or business.” Esis Inc. Servicing
Contractor, 908 S.W. 2d at 557; see also Lumberman’s Reciprocal Ass’n v.
Behnken, 246 S.W. 72, 73 (Tex. 1922) The underlying policy of the “originates in”
prong of the “course and scope” component, is “allocating to the employer and
insurance carrier the risks inherent in an employee’s job while leaving to the
employee risks that are ‘shared by society as a whole and do not arise as a result of
the employer.’” Zurich American Ins. Co. v. McVey, 339 S.W.3d 724, 730 (Tex.
13 App.—Austin, 2011, pet. denied)) (citing Evans v. Illinois Employers Ins. Of
Wausau, 790 S.W.2d 302, 305 (Tex. 1990)). In this case, in order for the injury to
have “originated in” the employment, the injury must have been somehow caused
by the activity of working on service plans and reports.
While most case-law discusses the “furtherance of the affairs” prong in
relation to an injury that occurs during travel, the “furtherance of the affairs” prong
must be examined in any scenario. This requires the Court to examine the specific
activity that took place during the injury. For example, while eating lunch during
travel may be considered “furthering the affairs” of an employer, each distinct
activity undertaken by an employee must be examined to determine if the activity
ultimately benefited the employer. Jerrols, 385 S.W.3d 629-630.
In Esis, an off duty sheriff shot himself in the foot while cleaning his work
revolver, and the injury was deemed to be compensable. Esis Inc. Servicing
Contractor, 908 S.W. 2d at 556. The Sherriff’s cleaning of the revolver was the
activity that resulted in the injury, and that activity originated in and furthered the
affairs of the employer because it was a regular activity required by the employer
to conduct employment. The facts in Esis are quite different than the case at hand.
In this case, the activity producing the injury was Martinez walking across her own
kitchen floor, not working on service plans and reports. (C.R. Supp. at 143)
14 Walking across the kitchen was not a required activity of Martinez’s employer.
The inherent risk in walking across Martinez’s own kitchen floor was not a risk
that was inherent in the job of being a Child Protective Services Specialist and it
therefore was not an injury that originated in the employment.
The case at hand is more akin to that of Banfield v. City of San Antonio, 801
S.W.2d 134 (Tex. App.—San Antonio, no writ). In Banfield, a San Antonio police
officer was accidentally shot when her child picked up the officer's work revolver,
which then discharged. The San Antonio Court of Appeals decided that this injury
was not compensable since no official duty was being conducted at the time of the
injury. Id at 136. Similarly, Martinez was not engaged in any official activity
required by the employer at the time of her injury. The activity of walking across
the floor did not constitute an activity that originated in or was in furtherance of the
employer's business affairs, and was therefore not within the course and scope of
her employment.
4. The contested case hearing findings of fact do not support the “arising out of” component of compensable injury under the Texas Workers’ Compensation Act
An injury “arises out of” employment “when it results from a risk or hazard
which is necessarily or ordinarily or reasonably inherent in or incident to the
conduct of such work or business,” and, “what the law intends is to protect the
15 employee against the risk or hazard taken in order to perform the master’s task.”
Bugh v. Employers' Reinsurance Corp., 63 F. 2d 36, 36 (5th Cir. 1933) (applying
Texas law) (citing Lumberman’s Reciprocal Ass’n, 246 S.W. 72 at 73).
Martinez argues that the contested case hearing findings establish the
“arising out of” element of compensability. However, finding of fact 5 states,
“The Claimant’s injury on June 9, 2001 did not involve any instrumentality of the
employer,” and finding of fact 6 states, “On June 9, 2001, the Claimant sustained
an injury that did not arise out of nor was in the course and scope of her
employment with the employer.” (C.R. at 42) The Hearing Officer correctly
applied the definition of the “arises out of” prong in the discussion of the facts in
the Decision and Order stating:
However, the controlling line of legal precedents deal with the injury itself. The Claimant was not very positive about why she fell, other than to assume she stepped into water on the tiled kitchen floor. This left the impression that she may have had an idiopathic fall, or one caused by a substance on her kitchen floor. But slipping and falling to the floor is a risk that the Claimant shared with the general public. To have an injury arise out of employment, an employee has to be exposed to some hazard because of or inherent in the employment. Some instrumentality of the Employer is needed.” (C.R. at 41)
The Hearing Officer went on to reason that an instrumentality causing an
injury is often found to be an item at an employer’s office such as an office desk or
the office floor. However, the Hearing Officer also stated that in the case at hand
16 the instrumentalities were the Claimant’s own cabinet and floor that caused her
bodily injuries. (C.R. at 41) Therefore, the “arising out of” prong is defeated since
the “risk or hazard” Martinez was exposed to was not a “risk or hazard” required to
perform her employer’s task.
The “arising out of” prong is also defeated because Martinez did not obtain
written authorization prior to working at home on a Saturday morning. The
Legislature did not intend that Workers’ Compensation be a substitute for health
insurance, and is designed to provide compensation for an incapacity flowing from
an accidental injury. Olson v. Hartford Accident and Indemnity Company, 477
S.W.2d 859, 860 (Tex. 1972) Therefore, the legislature has also enacted specific
limitations on where and when work may be performed. Tex. Gov’t Code Ann.
§ 658.010(a)(2); Tex. Gov’t Code Ann. § 658.010(b). 1 It is impossible for an
accidental injury to “arise from” the employment when work is prohibited by an
employer, because there is no “risk or hazard” created by the employment as the
employer did not create the conditions in which the employee worked.
1 See discussion at Section III regarding Martinez’ failure to comply with Texas Government Code §§ 658.010 and 659.018 and the resulting effects on compensability under the Texas Workers’ Compensation Act. 17 5. The contested case hearing findings of fact do not support the “course and scope” component of a compensable injury under the Texas Workers’ Compensation Act.
In addition to establishing the “arising out of prong,” Martinez argues that
the contested case hearing officer's findings of fact 3, 4, and 7 conclusively
establish the statutory definition of compensable injury and “course and scope.”
(Appellant’s Brief, p. 13-14). Finding of fact 3 states, “On June 9, 2001, the
Claimant was furthering the business and affairs of the employer by making a (sic)
reports and service plans that she needed to present in court on June 11, 2001, as a
part of her normal work duties.” (C.R. Supp. at 28). Findings of fact 4 states, “In
the course of her work the Claimant got up from her table to go to a drawer to get a
different pen. While walking in her kitchen, the Claimant either had an idiopathic
fall of unknown cause or slipped on some substance on her floor. The Claimant
fell to the floor and sustained injuries to her head/face, left shoulder, left ankle,
knees, left hip and left thigh.” (C.R. Supp. at 29) And, Finding of Fact 7 states,
“Because of her injuries on June 9, 2001, the Claimant was unable to obtain and
retain employment at wages equivalent to her pre-injury wage for the periods of
June 10, through June 13, 2001 and from June 15, 2001, and again from June 19
through the present.” (C.R. Supp. at 29)
These findings of fact do not establish Martinez was within the course and
18 scope of her employment, as argued by Martinez. (Appellant’s Brief p. 13-14).
Finding of Fact 3 establishes that Martinez was furthering the affairs of her
employer while making reports and service plans, not while walking across the
kitchen floor. While finding of fact number 4 establishes Martinez sustained an
injury, it does not establish that such injury was a compensable injury. It also
establishes that she fell due to unknown reasons, and therefore not due to a reason
connected to the employment. Finally, finding of fact number 7 pertains to one
element of disability. The definition of disability is the “inability because of a
compensable injury to obtain and retain employment at wages equivalent to the
pre-injury wage.” Tex. Lab. Code Ann. § 401.011(16)(emphasis added). Finding
of fact number 7 merely finds that Martinez had an inability to obtain and retain
employment. It does not find that such inability was because of a compensable
injury. Finding of fact number 7 does absolutely nothing to establish the statutory
components of the definition of “compensable injury.”
Martinez also ignores findings of fact 5 and 6, which state “The Claimant's
injury on June 9, 2001 did not involve any instrumentality of the employer, and
“On June 9, 2001, the Claimant sustained an injury that did not arise out of nor was
in the course and scope of her employment with the employer.” (C.R. Supp. at 28-
29) It is therefore incorrect to state that the Hearing Officer's findings conclusively
19 establish a compensable injury, and the Hearing Officer actually found that the
injury did not arise out of or occur within the course and scope of employment.
B. SORM is not barred from raising the issue of compensability on judicial review.
The Texas Workers' Compensation Act establishes that a trial court is
“limited to the issues decided by the appeals panel and on which judicial review is
sought.” Tex. Lab. Code Ann. § 410.302(b). “Issue” as used in the Texas
Workers Compensation Act refers to the disputed determination made by the
Hearing Officer in rendering his decision. Texas Workers’ Compensation
Insurance Fund v. Texas Workers’ Compensation Com’n, 124 S.W. 3d 813, 821
(Tex.App.—Austin, 2003, pet. denied) In other words, an “issue” is the decision of
the hearing officer from which the aggrieved party appeals. Id. at FN9.
In this case, the hearing officer was asked to decide two questions: “1.) Did
the Claimant sustain a compensable injury on June 9, 2001? and 2.) Did the
Claimant have disability; and if so, for what periods of time?” (C.R. Supp. at 25)
The Hearing Officer made various “findings of fact” within the Decision that
Martinez argues should have been appealed because they were adverse to SORM.
However, as discussed above, finding of fact 3, 4, and 7 were not adverse to
SORM’s position. Further, the disputed determination on the questions presented,
20 that Martinez did not sustain a compensable injury on June 9, 2001 and that
Martinez did not have disability, were favorable to SORM. (C.R. Supp. at 29)
Because these decisions were favorable, SORM did not file a request for review to
the appeals panel, and was not required to do so.
SORM preserved its right to seek judicial review because it properly
exhausted its administrative remedies. The Texas Labor Code states:
(a) To appeal the decision of a hearing officer, a party shall file a written request for appeal with the appeals panel no later than the 15th day after the date on which the decision of the hearing officer is received from the division and shall on the same date serve a copy of the request for appeal on the other party. (b) The respondent shall file a written response with the appeals panel not later than the 15th day after the date on which the copy of the request for appeal is served and shall on the same date serve a copy of the response on the appellant.
Tex. Lab. Code Ann. § 410.202. Thus, when SORM timely filed a Response
to the Claimant’s Request for Review, SORM complied with Texas Labor Code
§ 410.202(b), and properly exhausted its administrative remedies. (C.R. at 399-
403) Further, the trial court properly assumed jurisdiction over the issues when
SORM timely sought judicial review in compliance with Texas Labor Code §
410.251, which states, “A party that has exhausted its administrative remedies
under this subtitle and that is aggrieved by a final decision of the appeals panel
may seek judicial review under this subchapter and Subchapter G, if applicable.”
21 Tex. Lab. Code Ann. § 410.251. The issues presented to the appeals panel were
limited to compensability and disability, and were the issues properly presented to
the trial court upon SORM's filing of an Original Petition. (C.R. at 1-10)
Martinez argues that per the statute and Krueger v. Atascosa Cnty., a party
who fails to appeal adverse contested case findings on an issue to the appeals panel
is barred from later raising an issue on judicial review. (Appellant’s Brief, p. 11)
(citing Krueger v. Atacosa Cnty., 155 S.W. 3d 614, 620 (Tex. App.—San Antonio
2004, no pet.)) However, as outlined above, Martinez confuses “issues decided by
the appeals panel,” as defined by the Texas Labor Code with findings of fact
rendered by a Hearing Officer in a Decision and Order. Martinez also incorrectly
interprets Krueger v. Atacosa Cnty., as in that case the Claimant failed to appeal an
entire issue of whether the carrier waived its right to contest compensability to the
appeals panel. Krueger, 155 S.W. 3d at 620. Whether a carrier waives its right to
contest compensability is a specifically codified issue within the Texas Workers’
Compensation Act. Tex. Lab. Code Ann. § 409.021. Because it is a specific
“issue,” Krueger was barred from raising it on judicial review. This is
distinguishable from the case at hand, as SORM was not required to appeal each
individual finding of fact. As the prevailing party, SORM was only required to file
a response to the request for review. Tex. Lab. Code Ann. § 410.202(b).
22 Contrary to Appellant’s assertions, SORM maintained its dispute of the
compensability of Martinez’s injury throughout the administrative process. SORM
specifically disputed that Martinez’s injuries encompassed both of the “arise out
of” component and the “course and scope” components to establish a compensable
injury. In SORM’s Response to Claimant’s Request for Review, it specifically
stated:
The testimony and facts of this case revealed that Claimant was not in the course and scope of employment when the injury occurred. According to Claimant, she was working at her home on a Saturday morning (Claimant testified that her regular working hours were 8-5 Monday through Friday) when she got up to retrieve an item and she slipped and fell on her own kitchen floor in an unknown substance. As there were no witnesses to the fall there was not sufficient evidence that Claimant was doing anything related to work. Claimant was not sure what made her fall.
(C.R. at 400) The Decision and Order also specifically finds Martinez
sustained an injury that did not “arise out of” or was within the “course and scope”
of employment. (C.R. at 42) SORM did not dispute the finding that Martinez may
have been furthering the business and affairs of the employer by making reports
and service plans, but SORM also did not concede that Martinez was furthering the
business affairs of the employer by slipping on moisture on her kitchen floor.
(C.R. at 399-404). Therefore, it is incorrect for Martinez to state that it was
undisputed that her injuries arose out of and in the performance of activities within
23 the course and scope of employment.
SORM maintained its dispute of compensability and disability from the start
of the administrative proceedings and timely exhausted its administrative remedies.
Therefore, it preserved its right to seek judicial review on the issues of
compensability and disability.
III. Martinez’ failure to comply with Texas Government Code § 658.010 and § 659.018 precludes the finding of a compensable injury.
A. Texas Government Code Sections § 658.010 and § 659.018 limit the scope of State employees’ employment.
Texas Government Code § 658.010 limits the scope of State employees
work by limiting State employees work hours and work locations. The entirety of
the statute reads:
§ 658.010 Place Where Work Performed
(a) An employee of a state agency shall, during normal office hours, conduct agency business only at the employee’s regular or assigned temporary place of employment unless the employee:
(1) is traveling; or
(2) received prior written authorization from the administrative head of the employing state agency to perform work elsewhere.
(a) The employee’s personal residence may not be considered the employee’s regular or assigned temporary place of employment without prior written authorization from the administrative head of the employing state agency.
24 Tex. Gov’t Code Ann. § 658.010. Likewise, Texas Labor Code § 659.018
also limits the scope of State employees work by specifically addressing the
accumulation of compensatory time off. Section 659.018 states, in regards to
compensatory time, “the employee’s personal residence may not be considered the
employee’s regular or temporarily assigned place of employment.” Tex. Gov’t
Code Ann. § 659.018.
Texas Government Code § 658.010 and § 659.018, which are limitations on
the scope of employment, restrict the locations where workers’ compensation
claims can arise, and are statutory prerequisites to a finding of compensability.
Tex. Gov’t Code Ann. § 658.010; Tex. Gov’t Code Ann. § 659.018. The Court has
discussed the applicable law regarding rules of employment in Maryland Cas. Co.
v. Brown:
While it seems to be the rule that a violation of instructions of an employer by an employee will not destroy the right to compensation, if the instructions relate merely to the manner of doing work, yet it seems to be held by the weight of authority that violation of instructions which are intended to limit the scope of employment will prevent recovery of compensation.
Maryland Cas. Co. v. Brown, 115 S.W.2d 394, 397 (Texas 1938) (quoted in
Brown v. Forum Ins. Co., 507 S.W.2d 576, 577 (Tex. Civ. App.—Dallas 1974, no
writ) (emphasis added). In Maryland Cas. Co., the claimant was injured when he
took a company car into Mexico in order to conduct business on behalf of his
25 employer. The employer, however, had enacted rules which limited the location at
which work may be performed and which were ‘intended to prohibit any salesman
taking cars belonging to it across the river into Mexico.” Id at 397. The Court
found that “even though plaintiff at the time of his injury may have been engaged
in work relating to his employment, nevertheless he would have been acting
beyond the scope of his employment, as... he was not employed to do work in the
Republic of Mexico.” Id. at 396-397. Similarly, in the case at hand, employees
were instructed to obtain approval to work overtime hours and to obtain approval
to work at a location outside of their offices. (C.R. at 85, 86) Martinez’s employer
had previously enacted rules intended to prohibit employees from working at
locations without the employer’s knowledge. Further, Texas Government Code
§ 658.010 and § 659.018 restrict the scope of employment by placing limitations
on the location where State employees may perform work. Tex. Gov’t Code Ann.
§ 658.010; Tex. Gov’t Code Ann. § 659.018. Therefore, Martinez’s violation of
employer policy and Texas State Statute would prevent recovery of workers’
compensation benefits. Since Martinez’s injuries fell outside of what her approved
work hours were, and therefore she operated outside the scope of her work, there is
a prima facie case precluding the issue of compensability, and thus, disability.
26 B. Martinez’ injury did not arise out of her employment because she failed to comply with Sections § 658.010 and § 659.018.
Martinez admits that she did not have permission to work at home. (C.R.
Supp. at 142) Therefore, statutorily, Martinez’s personal residence could not be
considered a place of employment because she did not receive prior written
authorization to work at home as required by § 658.010. And, since her personal
residence could not be considered to be a place of employment, the employment
did not expose Martinez to any “hazards or risks.” Martinez argues that SORM
has no authority to support the contention that the “arises out of” element is
defeated regarding the facts of this case. (Appellant’s Brief, p. 8). However, as
established by both applicable case law and the aforementioned statutes, it is clear
that Martinez’s injuries could not possibly “arise from” her employment and
therefore her injuries cannot be compensable as a matter of law. In addition,
Martinez cannot show that the employment activity was a producing cause of the
injury as required by the Crump standard, outlined above. Transcontinental Ins.
Co., 330 S.W.3d at 223.
C. SORM was not required to raise the alleged violation of Texas Government Code § 658.010 and § 659.018 during the administrative proceedings.
As previously defined, “issue” as used in the Texas Workers Compensation
27 Act refers to the disputed determination made by the Hearing Officer in rendering
his decision. Texas Workers’ Compensation Insurance Fund, 124 S.W. 3d 813 at
821. Also as discussed above, SORM preserved its right to challenge
compensability on judicial review because it properly exhausted its administrative
remedies pursuant to Texas Labor Code § 410.302(b). Tex. Lab. Code Ann.
§ 410.302(b)
SORM is therefore also not barred from raising the statutory violation of
Texas Government Code § 658.010 and § 659.018, because the violation is a part
of SORM's argument that since Martinez violated an employer policy she could
not have sustained a compensable injury. This argument is subsumed within the
“compensable injury” argument above, and is not a “new issue” as argued by
Martinez. While a party may not raise a new issue on judicial review that was not
previously addressed administratively, a party is not prohibited from raising an
argument to support its position on one of the issues. In support of the argument
that SORM was required to raise the statutory violation, Martinez cites Hefley v.
Sentry Ins. Co., to argue that, “a party who fails to raise an issue during the
administrative proceedings cannot raise the issue for the first time on judicial
review.” (Appellants Brief, p. 19) (citing Hefley v. Sentry Ins. Co, 131 S.W.3d 63,
65 (Tex. App.—San Antonio 2003, pet. denied)).
28 However, in Hefley, the issues at the CCH were compensability and
disability. Id. at 64. The Plaintiff then attempted to allege for the first time that
the Carrier failed to timely dispute the injury. Id. at 64-65. Failure to timely
dispute is also a separate issue that must be raised at the administrative level, and is
a specifically codified issue within the Texas Labor Code. Tex. Lab. Code Ann.
§ 409.021; Tex. Labor Code Ann. § 409.022. In the case at hand, the issues before
the Hearing Officer were also compensability and disability. (C.R. at 38) These
two issues remained the same throughout all judicial proceedings in the case and
remain the same at this time.
D. SORM previously raised the violation of Section § 658.010 and § 659.018 during the administrative proceedings.
Further, SORM’s argument that Martinez violated the employer’s policies
and procedures when she failed to obtain prior permission to work overtime has
been consistently raised since the time of the CCH. (C.R. Supp. at 142) During
the CCH, Martinez was asked whether she was aware that she needed approval to
work on June 9, 2001. (C.R Supp. at 142) Martinez stated she was aware that she
had to have prior approval before she worked over-time. (C.R. Supp. at 141) The
employer’s policy that states, “each worker is encouraged to keep O/T to a
minimum; additional time needed to complete work tasks, need to be discussed
29 with Anita (Program Director),” was discussed the CCH. (C.R. Supp. at 160) The
employer’s policy addresses “flex time,” and states, in part, “approval is
sometimes granted for an adjustment to work hours beyond the regularly scheduled
office hours,” and “Because your supervisor is responsible for making sure the unit
is adequately staffed, you must get your supervisor’s approval to adjust your work
schedule, and your request may not be approved.” (C.R. at 81)
Richard Brooks, Martinez’s Supervisor at the time, testified at the CCH
confirming that any overtime needs prior approval, and that Martinez did not
obtain prior approval. (C.R. Supp. at 153-154) The Hearing Officer even
questioned Brooks as to whether he was aware of a state statute that would not pay
salary for work done at home. (C.R. Supp. at 162) Finally, the Carrier argued
during its closing statement on September 20, 2001, that an employee should not
be able to collect workers’ compensation when he or she is doing work at their
own home that they are not authorized to do. (C.R. Supp. at 169) Therefore, the
employer policy violation, which inherently encompasses the statutory violation,
has been argued since this case commenced in 2001.
IV. Martinez’s violations regarding the scope of her employment provide sufficient evidence to support the trial courts ruling.
A. Martinez violated an employer rule regulating the scope of the work, therefore precluding compensability
30 Martinez’s employer enacted rules regulating the time, place, and amount of
hours an employee was allowed to work without obtaining prior approval. As
decided in the Maryland Cas. Co. v. Brown case and discussed above, when an
employee conducts work at a location where they have not been given permission
to conduct work, that employee is acting outside the scope of his or her
employment. Maryland Cas. Co., 115 S.W.2d at 397. However, as outlined in
Brown v. Forum Ins. Co, when an employee is doing work at the instruction of the
employer but violates the manner in which he does so, the employee is not taken
out of the course and scope of employment. Brown, 507 S.W.2d at 577. Martinez
clearly violated an employer rule regulating the scope of her work, as she was
conducting work at a location without prior approval. (C.R. Supp. at 142)
The employer’s “standard of conduct” clearly addressed the fact that in order
for an employee to work hours other than 8:00am to 5:00pm, Monday through
Friday, the employee must obtain prior approval from a supervisor. (C.R. Supp. at
68) The employer’s policy requires that any additional time needed to complete
work be approved, and also states, “work days away from the office should be
approved by Anita, and the worker must show productivity while out.” (C.R.
Supp. at 72-73) Therefore, Martinez incorrectly states in her appeal that the
employer’s policy does not forbid an employee from working at home, as the
31 policy clearly outlines that any hours worked away from the office must be
approved. (Appellant’s Brief, p. 22).
B. Martinez violated statutes regulating the scope of her work, therefore precluding compensability.
Texas Government Code § 658.010 and § 659.018 regulate where it is
permissible for state employees to conduct their work, and the accumulation of
overtime. Tex. Gov’t Code Ann. § 659.018; Tex. Gov’t Code Ann. § 658.010.
Sections 658.010(a)(2) and 658.010(b) specifically requires a state employee to
have advanced authorization when working at home. Tex. Gov’t Code Ann.
§ 658.010(a)(2); Tex. Gov’t Code Ann. § 658.010(b). While it is true that activities
away from the premises of the employer may be considered to be within the
“course and scope,” these activities are only in the course and scope if both the
origination prong and furthering the affairs prong are met. Further, in order to be
compensable, the injury must also arise out of the employment.
It cannot be said, as argued by Martinez, that Martinez was automatically
within the “course and scope” because in certain instances an activity off the
premises of an employer may be considered to be within the “course and scope.”
(Appellant’s Brief p. 23) (citing Tex. Lab. Code Ann. § 401.011(12)) When an
employee violates a statutory regulation, whether civil or penal, and is “doing what
32 he was not employed to do,” the employee is acting outside the scope of his
employment. Bugh, 63 F.2d 36 at 37; see also, Quarles v. Lumbermen’s
Reciprocal Ass’n, 293 S.W. 333 (Tex. Civ. App.—Beaumont 1927, no writ)
Martinez’s injury remains outside of the course and scope of employment
because Martinez violated the Government Code applicable to State Employees
requiring pre-authorization to work at home or overtime. Because this statute
governs the scope of employment, her injury cannot be said to be within the course
and scope of employment per 401.011(12). In addition, Martinez’s injury remains
outside of the course and scope of employment because her injury did not originate
in her employer nor was she furthering the affairs of her employer at the time her
injury.
V. SORM is entitled to sovereign immunity for claims of attorney fees under Section 408.221(c)
It is well-settled that “no State can be sued in her own courts without her
consent, and then only in the manner indicated by that consent.” Hosner v. De
Young, 1 Tex. 764, 769 (1847). In order to effect a waiver of sovereign immunity,
the statute must do so by clear and unambiguous language. Tex. Gov’t Code Ann.
§ 311.034. Under Section 311.034, the absence of language clearly and
unambiguously stating that immunity is waived ends a court’s inquiry, and to
33 resort to other statutory construction tools to discover a legislative intent to waive
immunity is impermissible.
The Legislature has not waived immunity from liability for attorney fees
resulting from a suit brought under the Texas Workers’ Compensation Act, as
Texas Labor Code Section 408.221 does not contain a clear and unambiguous
waiver of sovereign immunity for claims of attorney fees as required by Texas
Government Code Section 311.034, outlined above. The applicable portion of
Texas Labor Code Section 408.221 states:
ATTORNEY'S FEES PAID TO CLAIMANT'S COUNSEL.
(c) An insurance carrier that seeks judicial review under Subchapter G, Chapter 410, of a final decision of the appeals panel regarding compensability or eligibility for, or the amount of, income or death benefits is liable for reasonable and necessary attorney's fees as provided by Subsection (d) incurred by the claimant as a result of the insurance carrier's appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier…
Tex. Lab. Code Ann. § 408.221(c). Subsection (c) above, upon which
Martinez relies in her brief for attorney fees and expenses, would be relevant in
this case if SORM was not a state agency. (Appellant’s Brief, p. 26). However, in
the case at hand, SORM is a state agency. Tex. Lab. Code. Ann. § 412.001. A
state agency is defined, by the Labor Code, as “a board, commission, department,
34 office, or other agency in the executive, judicial, or legislative branch of state
government that has five or more employees, was created by the constitution or a
statute of this state, and has authority not limited to a specific geographical portion
of the state.” Tex. Lab. Ann. Code § 412.001(4).
Chapter 501 of the Texas Labor Code governs workers’ compensation laws
as applied to governmental employees, including the State Office of Risk
Management. Tex. Lab. Code Ann. § 501.001. Nowhere in Chapter 501 is there
“clear and unambiguous language” waiving sovereign immunity regarding a state
agency’s liability for attorney fees. In fact, Section 501.002 states that nothing in
the chapter creates a cause of action or damages beyond those authorized by the
Texas Tort Claims Act. Tex. Lab. Code Ann. § 501.002(d). The Texas Tort
Claims Act does not authorize a cause of action or damages for claims of attorney
fees. Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001 et seq. Therefore, Chapter
501 does not authorize attorney fees under Section 408.221 (c).
The Texas Supreme Court has also applied these statutes and properly
affirmed the conclusion that sovereign immunity regarding attorney fees is not
waived under Section 408.221(c), because causes of action and damages are
limited to those authorized within the Texas Tort Claims Act. Manbeck v. Austin
Ind. School Dist., 381 S.W.3d 528, 530 (Tex., 2012); See also, Univ. of Texas
35 System v. Ochoa, 413 S.W.3d 769 (Tex. App.—Austin, 2013, pet. denied.); see
also, State Office of Risk Mgmt. v. Ribble, No. 03-12-00084-CV, 2014 WL
4058936 (Tex. App.—Austin, August 13, 2014, no pet h.)(mem. op., not
designated for publication). Because neither Section 408.221 nor Chapter 501
include language clearly and unambiguously effecting a waiver of sovereign
immunity, SORM retains sovereign immunity for attorney fee claims under
Section 408.221(c) of the Labor Code.
CONCLUSION
In summation, SORM properly exhausted its administrative remedies in
appealing the appeals panel decision by which it was aggrieved as it properly filed
a response to request for review and timely filed its Original Petition in District
Court. In addition, it is evident Martinez did not sustain a compensable injury,
because her injury did not “arise out of” her employment, nor was she within the
“course and scope” of her employment. Her injuries did not “arise out of” her
employment because the conditions of the employment did not create the activity
that placed Martinez in harm’s way. Further, Martinez was operating outside the
scope of her employment because the activity she was performing when injured
did not originate in her work. A finding against SORM could result in any
employee claiming a compensable injury under any circumstances when working
36 at their own home, even when the employer is unaware work is being performed.
Further, Martinez violated rules of her employer and State Statutes
regulating the scope of her work. She was aware of the rules at the time of the
violation. SORM is also not barred from raising the fact that Martinez violated
government codes § 658.010 and § 659.018, because this is not a new separate
“issue” that would be required to be raised at the administrative level.
In addition, SORM consistently argued that Martinez worked at home in
violation of her employer’s instruction to obtain permission prior to working at
home. The fact she violated the government code is an argument in support of
Martinez’s injuries being non-compensable and is not a new issue. Finally,
sovereign immunity has not been waived since SORM is a state agency, and
therefore attorney fees cannot be awarded.
Because Martinez is unable to show there are any fact issues that would
preclude the granting of SORM’s Motion for Summary Judgment, the ruling of the
trial court should be affirmed.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee prays that this
Honorable Court of Appeals affirm the trial court’s order granting Appellee’s
motion for summary judgment. Further, Appellee prays that it recover all costs, in
37 the trial court and Court of Appeals, from the Appellant. The Appellee further
prays for all other relief, legal and equitable, to which it may be justly entitled.
Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
KARA L. KENNEDY Chief, Tort Litigation Division
______________________________ EMILY JAKOBEIT Assistant Attorney General Tort Litigation Division 030 State Bar No. 24063075 P.O. Box 12548, Capitol Station Austin, Texas 78711-2548 (512) 463-2197 Fax#: (512) 463-2224 emily.jakobeit@texasattorneygeneral.gov COUNSEL FOR STATE OFFICE OF RISK MANAGEMENT
38 CERTIFICATE OF COMPLIANCE
I hereby certify that the number of words in the foregoing brief, excluding the items listed in TEX. R. APP. P. 9.4(i)(1), is 8501 words. As allowed by said Rule, the undersigned has relied on the word count of the computer program used to prepare the document, Microsoft Word 2013.
_________________________________ EMILY JAKOBEIT Assistant Attorney General
CERTIFICATE OF SERVICE
I hereby certify that on April 9, 2015 at approximately at 3:30 p.m. a true and correct copy of the foregoing instrument was served on the parties listed below either by U.S. mail, certified, return receipt requested, by depositing it enclosed in a postpaid, properly addressed wrapper in a post office or official depository under the care and custody of the United States Postal Service or by electronic service concurrently with the electronic filing of the document. The electronic transmission of the document was reported as complete. My email address is Emily.Jakobeit@texasattorneygeneral.gov and my fax number is (512) 457-4482.
Mr. Kenneth W. Howell Via E-Service Attorney at Law 629 S. Presa San Antonio, Texas 78210 kwhowell@earthlink.net ATTORNEY FOR APPELLANT
_________________________________ EMILY JAKOBEIT Assistant Attorney General
39 CAUSE NO. 04-14-00558-CV __________________________________________________________________
IN THE COURT OF APPEALS FOURTH COURT OF APPEALS DISTRICT, SAN ANTONIO, TEXAS __________________________________________________________________
EDNA A. MARTINEZ APPELLANT V.
STATE OFFICE OF RISK MANAGEMENT APPELLEE __________________________________________________________________
On Appeal from the 37TH Judicial District Court, Bexar County, Texas, Cause No. 2001-CI-17102 __________________________________________________________________
TRIAL COURT’S FINAL JUDGMENT ................................................................. A
TEX. LAB. CODE § 410.202 ................................................................................... B
TEX. LAB. CODE § 409.021 ................................................................................... C
TEX. LAB. CODE § 409.022 ................................................................................... D
TEX. GOV’T CODE § 311.034 ............................................................................... E
TEX. LAB. CODE § 412.001 ................................................................................... F
TEX. LAB. CODE § 501.001 ................................................................................... G
TEX. LAB. CODE § 501.002 ................................................................................... H
40 APPENDIX “A” (TRIAL COURT’S FINAL JUDGMENT) CAUSE NO. 2001-CI-17102
STATE OFFICE OF RISK MANAGEMENT § IN THE DISTRICT COURT § § vs § 37111 JUDICIAL DISTRICT § § EDNA A. MARTINEZ § BEXAR COUNTY, TEXAS
FINAL JUDGMENT
On the 27th day of March, 2013, the court heard Plaintiff's (State Office of Risk
Management) Motion for Summary Judgment, and Defendant's (Edna A. Martinez) Second Motion
for Final Summary Judgment and Motion To Reconsider Defendant's No-Evidence Motion for
Summary Judgment. Having considered the respective motions, responses, evidence, and argument
counsel, court is of the opinion that Plaintiff's Motion Summary Judgment should be
granted, and that Defendant's Second Motion for Final Summary Judgment and Motion to
Reconsider Defendant's Motion for No-Evidence Summary Judgment should each be denied.
Further, it appears to the court that the Texas Department ofInsurance -Division ofWorkers'
Compensation has received notice of this judgment pursuant TEx. LAB. CODE §410.258, and has not
intervened.
Accordingly, the court renders judgment for Plaintiff, State Office ofRisk Management, and
against Defendant, Edna A. Martinez. It is, therefore:
ORDERED, ADJUDGED, and DECREED that Plaintiff's (State Office of Risk
Management) Motion for Summary Judgment is hereby GRANTED;
ORDERED, i\DJUDGED, and DECREED that Defendant's (Edna A. Martinez) Second
Motion for Final Summary Judgment and Motion to Reconsider Defendant's No-Evidence Motion
l for Summary Judgment are hereby DENIED;
ORDERED, ADJUDGED, and DECREED that the final decision of the Texas Department
of Insurance-Division ofWorker's Compensation (formerly the Texas Workers' Compensation of
Commission) appeals panel in Appeal No. 012392 (Claim No. 01174797) is hereby REVERSED;
and judgment rendered that Defendant did not sustain a compensable injury;
ORDERED, ADJUDGED, and DECREED that all taxable court costs expended in this cause
are adjudged against the party incurring the same.
This Judgment is final, disposes of all claims and parties, and is appealable.
Signed this _ _ day
Hon. Antonia Arteaga, Judge, 57th District Cou.-t
APPROVED AS TO FORM:
Sandra E. Salas Kenneth W. Howell Assistant Attorney General Attorney at Law Tort Litigation Division 629 S. Presa P. 0. Box 12548 San Antonio, Texas 78205 Austin, Texas 78711 (210) 227-6305 (512) 463-2197 . (210) 227-6 7 facsimile cs 12)<403-2224/aQ5imi1e By: / x;&t;: ~~/Ji i/i(.';ilf/ By: Simd:fa E. Salas Kenneth W. Howell State Bar No. 24051282 State Bar No. 10102727
ATTORNEY FOR PLAINTIFF ATIORNEY FOR DEFE:NDA.t~'T
2 APPENDIX “B” (TEX. LAB. CODE § 410.202) V.T.C.A., Labor Code § 410.202 Page 1
Effective: June 17, 2001
Vernon's Texas Statutes and Codes Annotated Currentness Labor Code (Refs & Annos) Title 5. Workers' Compensation Subtitle A. Texas Workers' Compensation Act Chapter 410. Adjudication of Disputes (Refs & Annos) Subchapter E. Appeals Panel (Refs & Annos) § 410.202. Request for Appeal; Response
(a) To appeal the decision of a hearing officer, a party shall file a written request for appeal with the appeals panel not later than the 15th day after the date on which the decision of the hearing officer is received from the division and shall on the same date serve a copy of the request for appeal on the other party.
(b) The respondent shall file a written response with the appeals panel not later than the 15th day after the date on which the copy of the request for appeal is served and shall on the same date serve a copy of the response on the appellant.
(c) A request for appeal or a response must clearly and concisely rebut or support the decision of the hearing of- ficer on each issue on which review is sought.
(d) Saturdays and Sundays and holidays listed in Section 662.003, Government Code, are not included in the computation of the time in which a request for an appeal under Subsection (a) or a response under Subsection (b) must be filed.
CREDIT(S)
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended by Acts 2001, 77th Leg., ch. 1456, § 12.01, eff. June 17, 2001.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. APPENDIX “C” (TEX. LAB. CODE § 409.021) V.T.C.A., Labor Code § 409.021 Page 1
Effective: September 1, 2011
Vernon's Texas Statutes and Codes Annotated Currentness Labor Code (Refs & Annos) Title 5. Workers' Compensation Subtitle A. Texas Workers' Compensation Act Chapter 409. Compensation Procedures Subchapter B. Payment of Benefits (Refs & Annos) § 409.021. Initiation of Benefits; Insurance Carrier's Refusal; Administrative Violation
(a) An insurance carrier shall initiate compensation under this subtitle promptly. Not later than the 15th day after the date on which an insurance carrier receives written notice of an injury, the insurance carrier shall:
(1) begin the payment of benefits as required by this subtitle; or
(2) notify the division and the employee in writing of its refusal to pay and advise the employee of:
(A) the right to request a benefit review conference; and
(B) the means to obtain additional information from the division.
(a-1) An insurance carrier that fails to comply with Subsection (a) does not waive the carrier's right to contest the compensability of the injury as provided by Subsection (c) but commits an administrative violation subject to Subsection (e).
(a-2) An insurance carrier is not required to comply with Subsection (a) if the insurance carrier has accepted the claim as a compensable injury and income or death benefits have not yet accrued but will be paid by the insur- ance carrier when the benefits accrue and are due.
(b) An insurance carrier shall notify the division in writing of the initiation of income or death benefit payments in the manner prescribed by commissioner rules.
(c) If an insurance carrier does not contest the compensability of an injury on or before the 60th day after the date on which the insurance carrier is notified of the injury, the insurance carrier waives its right to contest com- pensability. The initiation of payments by an insurance carrier does not affect the right of the insurance carrier to continue to investigate or deny the compensability of an injury during the 60-day period.
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. V.T.C.A., Labor Code § 409.021 Page 2
(d) An insurance carrier may reopen the issue of the compensability of an injury if there is a finding of evidence that could not reasonably have been discovered earlier.
(e) An insurance carrier commits an administrative violation if the insurance carrier does not initiate payments or file a notice of refusal as required by this section.
(f) For purposes of this section, “written notice” to a certified self-insurer occurs only on written notice to the qualified claims servicing contractor designated by the certified self-insurer under Section 407.061(c).
(f) For purposes of this section:
(1) a certified self-insurer receives notice on the date the qualified claims servicing contractor designated by the certified self-insurer under Section 407.061(c) receives notice; and
(2) a political subdivision that self-insures under Section 504.011, either individually or through an interlocal agreement with other political subdivisions, receives notice on the date the intergovernmental risk pool or oth- er entity responsible for administering the claim for the political subdivision receives notice.
(g) to (i) Blank.
(j) Each insurance carrier shall establish a single point of contact in the carrier's office for an injured employee for whom the carrier receives a notice of injury.
CREDIT(S)
Added by Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 939, § 1, eff. Sept. 1, 2003; Acts 2003, 78th Leg., ch. 1100, § 1, eff. Sept. 1, 2003; Acts 2005, 79th Leg., ch. 265, § 3.145, eff. Sept. 1, 2005; Acts 2011, 82nd Leg., ch. 1162 (H.B. 2605), § 13, eff. Sept. 1, 2011.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. APPENDIX “D” (TEX. LAB. CODE § 409.022) V.T.C.A., Labor Code § 409.022 Page 1
Effective: September 1, 2005
Vernon's Texas Statutes and Codes Annotated Currentness Labor Code (Refs & Annos) Title 5. Workers' Compensation Subtitle A. Texas Workers' Compensation Act Chapter 409. Compensation Procedures Subchapter B. Payment of Benefits (Refs & Annos) § 409.022. Refusal to Pay Benefits; Notice; Administrative Violation
(a) An insurance carrier's notice of refusal to pay benefits under Section 409.021 must specify the grounds for the refusal.
(b) The grounds for the refusal specified in the notice constitute the only basis for the insurance carrier's defense on the issue of compensability in a subsequent proceeding, unless the defense is based on newly discovered evidence that could not reasonably have been discovered at an earlier date.
(c) An insurance carrier commits an administrative violation if the insurance carrier does not have reasonable grounds for a refusal to pay benefits, as determined by the commissioner.
CREDIT(S)
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended by Acts 2005, 79th Leg., ch. 265, § 3.146, eff. Sept. 1, 2005.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. APPENDIX “E” (TEX. GOV’T CODE § 311.034) V.T.C.A., Government Code § 311.034 Page 1
Effective: September 1, 2005
Vernon's Texas Statutes and Codes Annotated Currentness Government Code (Refs & Annos) Title 3. Legislative Branch (Refs & Annos) Subtitle B. Legislation Chapter 311. Code Construction Act (Refs & Annos) Subchapter C. Construction of Statutes (Refs & Annos) § 311.034. Waiver of Sovereign Immunity
In order to preserve the legislature's interest in managing state fiscal matters through the appropriations process, a statute shall not be construed as a waiver of sovereign immunity unless the waiver is effected by clear and un- ambiguous language. In a statute, the use of “person,” as defined by Section 311.005 to include governmental entities, does not indicate legislative intent to waive sovereign immunity unless the context of the statute indic- ates no other reasonable construction. Statutory prerequisites to a suit, including the provision of notice, are jur- isdictional requirements in all suits against a governmental entity.
CREDIT(S)
Added by Acts 2001, 77th Leg., ch. 1158, § 8, eff. June 15, 2001. Amended by Acts 2005, 79th Leg., ch. 1150, § 1, eff. Sept. 1, 2005.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. APPENDIX “F” (TEX. LAB. CODE § 412.001) V.T.C.A., Labor Code § 412.001 Page 1
Effective:[See Text Amendments]
Vernon's Texas Statutes and Codes Annotated Currentness Labor Code (Refs & Annos) Title 5. Workers' Compensation Subtitle A. Texas Workers' Compensation Act Chapter 412. State Office of Risk Management (Refs & Annos) Subchapter A. General Provisions § 412.001. Definitions
In this chapter:
(1) “Board” means the risk management board.
(2) “Director” means the executive director of the office.
(3) “Office” means the State Office of Risk Management.
(4) “State agency” means a board, commission, department, office, or other agency in the executive, judicial, or legislative branch of state government that has five or more employees, was created by the constitution or a statute of this state, and has authority not limited to a specific geographical portion of the state.
CREDIT(S)
Amended by Acts 1997, 75th Leg., ch. 1098, § 1, eff. Sept. 1, 1997.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. APPENDIX “G” (TEX. LAB. CODE § 501.001) V.T.C.A., Labor Code § 501.001 Page 1
Effective: September 1, 2013
Vernon's Texas Statutes and Codes Annotated Currentness Labor Code (Refs & Annos) Title 5. Workers' Compensation Subtitle C. Workers' Compensation Insurance Coverage for Certain Government Employees Chapter 501. Workers' Compensation Insurance Coverage for State Employees, Including Employ- ees Under the Direction or Control of the Board of Regents of Texas Tech University (Refs & Annos) Subchapter A. General Provisions § 501.001. Definitions
In this chapter:
(1) “Division” means the division of workers' compensation of the Texas Department of Insurance.
(2) “Compensable injury” has the meaning assigned to that term under Subtitle A. [FN1]
(3) “Director” means the director of the State Office of Risk Management.
(4) “Office” means the State Office of Risk Management.
(5) “Employee” means a person who is:
(A) in the service of the state pursuant to an election, appointment, or express oral or written contract of hire;
(B) paid from state funds but whose duties require that the person work and frequently receive supervision in a political subdivision of the state;
(C) a peace officer employed by a political subdivision, while the peace officer is exercising authority gran- ted under:
(i) Article 2.12, Code of Criminal Procedure; or
(ii) Articles 14.03(d) and (g), Code of Criminal Procedure;
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. V.T.C.A., Labor Code § 501.001 Page 2
(D) a member of the state military forces, as defined by Section 437.001, Government Code, who is en- gaged in authorized training or duty; or
(E) a Texas Task Force 1 member, as defined by Section 88.301, Education Code, who is activated by the Texas Division of Emergency Management or is injured during training sponsored or sanctioned by Texas Task Force 1.
(6) “State agency” includes a department, board, commission, or institution of this state.
(7) “Board” means the risk management board.
CREDIT(S)
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended by Acts 1997, 75th Leg., ch. 1098, § 2, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1205, § 5, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1456, § 14.02, eff. June 17, 2001; Acts 2003, 78th Leg., ch. 644, § 3, eff. June 20, 2003; Acts 2005, 79th Leg., ch. 265, § 3.288, eff. Sept. 1, 2005; Acts 2009, 81st Leg., ch. 1146, § 2B.09, eff. Sept. 1, 2009; Acts 2013, 83rd Leg., ch. 1217 (S.B. 1536), § 3.15, eff. Sept. 1, 2013.
[FN1] See V.T.C.A., Labor Code § 401.001.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
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END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. APPENDIX “H” (TEX. LAB. CODE § 501.002) V.T.C.A., Labor Code § 501.002 Page 1
Effective: September 1, 2005
Vernon's Texas Statutes and Codes Annotated Currentness Labor Code (Refs & Annos) Title 5. Workers' Compensation Subtitle C. Workers' Compensation Insurance Coverage for Certain Government Employees Chapter 501. Workers' Compensation Insurance Coverage for State Employees, Including Employ- ees Under the Direction or Control of the Board of Regents of Texas Tech University (Refs & Annos) Subchapter A. General Provisions § 501.002. Application of General Workers' Compensation Laws; Limit on Actions and Damages
(a) The following provisions of Subtitles A and B [FN1] apply to and are included in this chapter except to the extent that they are inconsistent with this chapter:
(1) Chapter 401, other than Section 401.012 defining “employee”;
(2) Chapter 402;
(3) Chapter 403, other than Sections 403.001-403.005;
(4) Chapters 404 and 405;
(5) Subchapters B and D through H, [FN2] Chapter 406, other than Sections 406.071(a), 406.073, and 406.075 ;
(6) Chapter 408, other than Sections 408.001(b) and (c);
(7) Chapters 409 and 410;
(8) Subchapters A and G, [FN3] Chapter 411, other than Sections 411.003 and 411.004;
(9) Chapters 412-417; and
(10) Chapter 451.
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works. V.T.C.A., Labor Code § 501.002 Page 2
(b) For the purposes of this chapter and Chapter 451, the individual state agency shall be considered the employ- er.
(c) For the purpose of applying the provisions listed by Subsection (a) to this chapter, “insurer” or “employer” means “state,” “office,” “director,” or “state agency,” as applicable.
(d) Neither this chapter nor Subtitle A authorizes a cause of action or damages against the state, a state agency, or an employee of the state beyond the actions and damages authorized by Chapter 101, Civil Practice and Rem- edies Code.
(e) For the purposes of this chapter and Chapter 451, the adjutant general is considered the employer of a mem- ber of the state military forces while engaged in authorized training or duty.
(f) For purposes of this chapter and Subchapter D, Chapter 88, Education Code, the Texas Engineering Exten- sion Service of The Texas A&M University System shall perform all duties of an employer in relation to a Texas Task Force 1 member who is injured and receives benefits under this chapter.
CREDIT(S)
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended by Acts 1995, 74th Leg., ch. 980, § 2.01, eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1098, § 3, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 1205, § 6, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 644, § 4, eff. June 20, 2003; Acts 2005, 79th Leg., ch. 265, § 3.289, eff. Sept. 1, 2005.
[FN1] V.T.C.A., Labor Code § 401.001 et seq. and § 451.001 et seq.
[FN2] V.T.C.A., Labor Code § 406.031 et seq., § 406.071 et seq., § 406.091 et seq., § 406.121 et seq., § 406.141 et seq. and § 406.161 et seq.
[FN3] V.T.C.A., Labor Code § 411.001 et seq. and § 411.091 et seq.
Current through the end of the 2013 Third Called Session of the 83rd Legislature
(C) 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
END OF DOCUMENT
© 2015 Thomson Reuters. No Claim to Orig. US Gov. Works.
Edna A. Martinez v. State Office of Risk Management (Edna A. Martinez v. State Office of Risk Management) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.