Update on Cases at the Texas Supreme Court
As we have reported earlier, three significant workers’ compensation cases are currently pending at the Texas Supreme Court. Each case rests at a different stage of the appellate process. Moreover, each appeal deals with a separate and important workers’ compensation issue: LIBs entitlement, how issues should be framed and appealed, and how travel to dinner during an out of town business trip should be analyzed.
Each of these cases is still pending at the court. Chamul is a case that we believe the court is likely to grant review on. The court has demonstrated similar interest in Martinez. The court has previously declined to review Pinkus, however the case remains pending on motion for rehearing, so it is possible that review will be granted in that case as well.
Summaries as well as extended summaries of the issues involved in each case can be found below.
Chamul v. Amerisure Mutual Ins. Co. is a case involving the entitlement to Lifetime Income Benefits based on the statutory standard that the employee must have sustained an injury to the brain that has resulted in incurable insanity or imbecility. The Texas Supreme Court requested that the parties brief the case fully, which is an indication that the court has a significant interest in reviewing the case. Full briefing has been completed in the case.
In Martinez v. State Office of Risk Management, a divided court of appeals wrestled with the question of whether an “issue” on judicial review amounts to a general dispute as framed by the Division of Workers’ Compensation or whether it means an argument that a party must raise and preserve at the administrative level in order to make that argument on judicial review or on further appeal. A petition for review and response have been filed in the case. The court ordered the parties to fully brief the case. That briefing is scheduled to be completed by February 23, 2017.
Finally, in Pinkus v. Hartford Cas. Ins. Co., the court is considering an appeal by death beneficiaries which argues that the deceased employee was in the course and scope of his employment while driving to meet his son for dinner during an out of down business trip. On September 23, 2016, the Court denied the beneficiaries’ petition for review. Pinkus filed a motion for rehearing in November 2016. The carrier filed a response to the motion for rehearing on January 2, 2017. Typically a court will dispose of a motion for rehearing within 4-6 weeks from the date a response has been filed.
Chamul v. Amerisure Mutual
The Houston Court of Appeals [1st Dist] issued an important decision regarding Lifetime Income Benefits. On February 9, 2016 the court reversed the judgment of a trial court that a claimant had failed to meet the statutory standard for entitlement to LIBs, and remanded the case to the trial court for further proceedings.
In Chamul v. Amerisure Mut. Ins. Co., No. 1-14-00508-CV, the court considered the case of Francisco Chamul, an employee of Camarat Masonry, who fell while at work, injuring his head and other parts of his body. Chamul was examined by a designated doctor, Stanley Hite, M.D. According to Dr. Hite, Chamul functions at the level of an 11 or 12 year-old, is unable to care for himself, and will need a caretaker for the rest of his life. Dr. Hite opined that Chamul’s condition will not improve. Dr. Cindy B. Ivanhoe, at doctor at The Institute for Rehabilitation and Research in Houston, testified that Chamul suffers from seizures and cognitive problems that affect his memory, thought organization, and understanding interpersonal dynamics. Chamul is not capable of living independently, needs to be supervised, is unable to operate a motor vehicle, and is permanently unable to return to competitive employment as a result of his brain injury. She further stated: “It is my opinion that Francisco Chamul is permanently mentally incapacitated because of his work related injuries.”
Amerisure retained neuropsychiatrist Dr. Andrew Brylowski to examine Chamul. Dr. Brylowski concluded that, although Chamul had a significant, traumatic brain injury with diffuse brain swelling, he “did not sustain any type of irreversible brain injury which would rise to the level of rendering him permanently unemployable because of eliminating his ability to engage in a range of usual cognitive processes.” Dr. Brylowski diagnosed Chamul with “malingering,” concluding that he inaccurately reported information during the examination. Dr. Brylowski opined that “any cognitive, conative, neuroendocrine, sensory and motor function, or brainstem/cranial nerve function can be treated and managed to help [Chamul] reintegrate into the workforce.”
Chamul sought LIBs from the carrier, which denied his claim on the basis that she failed to meet the statutory criteria for entitlement. Section 408.161 of the Act, provides that LIBs are recoverable when, among other things, an injured worker suffers “a physically traumatic injury to the brain resulting in incurable insanity or imbecility.”
The Division determined that Chamul was not entitled to LIBs, following which he filed suit for judicial review in a district court in Harris County. There, following cross motions for summary judgment, the trial court found that Chamul suffered an injury to his brain, but that he did not meet the definition of “imbecility.” The claimant appealed the case to the Court of Appeals, where a three-judge panel considered the case.
The court of appeals rejected the trial court’s reliance upon a 1991 dictionary definition of imbecility. This definition “contemplates that the affected individual will not only require supervision in the performance of routine tasks, but will have a mental age1 of three to seven years.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991).
In resolving the case, the court wrote:
Amerisure argues that “imbecility,” in the context of a lifetime-income-benefits claim, means “a mentally deficient person, especially a feebleminded person having a mental age of three to seven years and requiring supervision in the performance of routine daily tasks or caring for himself.” Amerisure reads this definition narrowly to require that the claimant establish a mental age between three and seven years.
Amerisure obtained summary judgment that Chamul did not meet the definition of “imbecility” in the trial court. The trial court’s holding was explicitly based on the narrow definition urged by Amerisure and adopted by the hearing officer. We conclude that the trial court erred by granting summary judgment to Amerisure. In doing so, we reject the narrow definition that would place a burden on claimants to establish a mental age of between three and seven years for three reasons. First, the 1991 dictionary from which the narrow definition was obtained was not an appropriate source to discern the meaning of a term incorporated into a statute more than 70 years earlier. Second, the mandate that the workers’ compensation statute be liberally construed to confer benefits upon injured workers suggests that Section 408.161 of the Labor Code should not be read to require proof of a mid-range mental age—a result achieved only through the most narrow reading of the statute and the definition possible. See Lujan, 756 S.W.2d at 297. Third, applying the 1991 dictionary definition would lead to absurd results and, therefore, must be rejected.
The court of appeals remanded the case for a new trial. In doing so, the court did not specifically identify a new definition that the trial court should apply. Amerisure filed its petition for review with the Texas Supreme Court on April 22, 2016. Full briefing in the case was completed and filed with the court on January 12, 2017.
Martinez v. State Office of Risk Management
The San Antonio court of appeals reversed a judgment that concluded that an employee who was injured while working in her own kitchen over the weekend was not in the course and scope of her employment. The case is Martinez v. State Office of Risk Management, 04-14-00558-CV (Tex. App.—San Antonio, February 10, 2016). In an opinion authored by Justice Karen Angelini and published on February 10, 2016, the court remanded Edna Martinez’s slip and fall claim to the trial court for further consideration. One judge, Justice Jason Pulliam, filed a concurring and dissenting opinion.
The case turned on a legal question that has split the courts of appeals in past cases. That question is, “what is an issue?” for purposes of exhausting administrative remedies. Stated differently, the question the court wrestled with in Martinez concerns whether an “issue” on judicial review amounts to a general dispute as framed by the Division of Workers’ Compensation or whether it means an argument that a party must raise and preserve at the administrative level in order to make that argument on judicial review or on further appeal.
The majority and dissenting opinions set out the competing rationales.
Majority Opinion
Similarly in this case, SORM seeks to broadly define “issue” “as basically anything that falls under the umbrella of ‘[compensability].’” Id.
Under section 410.302, a ‘trial court lacks jurisdiction to consider new issues because, in that instance, the moving party has failed to exhaust its administrative remedies.” Lopez v. Zenith Ins. Co., 229 S.W.3d 775, 778 (Tex. App.—Eastland 2007, pet. denied). This requirement ensures that “issues on which either party seeks judicial review” “have been ‘decided by’ the TWCC Appeals Panel.” Krueger, 155 S.W.3d at 619. It also ensures “the accuracy and efficiency of [the administrative] proceedings.” Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 528 (Tex. 1995).
If SORM had raised its statutory violation argument at the administrative level, the hearing officer and the appeals panel could have determined in the first instance whether SORM was estopped from asserting such a violation given the Department’s policy allowing Martinez to work at home. As the appeals panel noted in its decision, “There is evidence to support the hearing officer’s decision that the claimant had the authority to work at home at the time.” If SORM is able to raise the statutory violations in the trial court, whether the statute would preclude Martinez from working at home despite the “authority” she was given to do so by the Department would be decided in the first instance by the trial court rather than by the hearing officer or the appeals panel. Even under the Austin court’s broad definition, whether the statutory provisions precluded Martinez from working at home despite the Department’s policy was not a “disputed determination made by the hearing officer in rendering his decision.” Tex. Workers’ Comp. Ins. Fund, 124 S.W.3d at 821.
Because the statutory violations were never presented for consideration in the administrative review process, the trial court lacked jurisdiction to consider SORM’s argument based on those violations as a ground for summary judgment. Accordingly, the trial court erred in granting SORM’s motion for summary judgment, and Martinez’s second issue is sustained.
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As previously noted, a party may not raise an issue in the trial court that was not raised before the appeals panel. TEX. LAB. CODE ANN. § 410.302(b) (West 2015); Krueger, 155 S.W.3d at 619. Although the intermediate appellate courts are in agreement that judicial review is limited to “issues” decided by the appeals panel, there is a split of authority on whether the term “issues” encompasses each factual finding of a hearing officer at a contested case hearing, thereby requiring a party to appeal each adverse factual finding to avoid forfeiture of judicial review. Compare Zurich American Ins. Co., 2014 WL 3512769, at *8-11 (holding “issues” do not refer to the fact findings by a hearing officer) and Lopez v. Zenith Ins. Co., 229 S.W.3d 775, 778-79 (Tex. App.—Eastland 2007, pet. denied) (holding party failed to exhaust administrative remedies by failing to appeal hearing officer’s findings to the appeals panel). In this appeal, however, we need not decide whether SORM forfeited its right to challenge the hearing officer’s specific findings of fact to resolve Martinez’s first issue.
Dissenting Opinion
The parties agree that upon judicial review, Sections 410.301 and 410.302 dictate that the judiciary may only address “issues” decided by the appeals panel; however, the parties disagree as to the context and meaning of the term “issue” as used in the Act. Martinez contends SORM is jurisdictionally barred from raising the “issue” of statutory violation as basis for a finding that her claim is not compensable because SORM did not raise the statutory-violation “issue” during the administrative proceedings. SORM contends its statutory-violation argument is just that, merely a sub-argument to support its position on the “issue” of compensability of Martinez’s injury. The “issue” of compensability was consistently raised in the administrative process and was determined by the appeals panel in this case. Therefore, SORM contends it satisfied the requirements of the Act and may raise upon judicial review any sub-argument to support its position on the “issue” of compensability.
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I agree with the reasoning and conclusion drawn by the Austin Court of Appeals in Texas Workers’ Comp. Ins. Fund and conclude its holding applies to the similar procedural posture and determination to be made in this case. As in Texas Workers’ Comp. Ins. Fund, Martinez would have this court equate the meaning of “issue” as used in Sections 410.301(b) and 410.302(a) of the Act with the usage of “issue” or “point of error” that Texas appellate courts typically consider on appeal. See TEX. R. APP. P. 38.1(e),(h); see also Tex. Workers’ Comp. Ins. Fund, 124 S.W.3d at 820-21. Within this normal appellate practice, appellate courts may not consider issues raised for the first time on appeal. See Greene v. Farmers Ins. Exch., 446 S.W.3d 761, 764 (Tex. 2014) (“We do not consider issues that were not raised in the courts below, but parties are free to construct new arguments in support of issues properly before the Court.”). However, as outlined by the Austin Court of Appeals in Texas Workers’ Comp. Ins. Fund, Martinez confuses “issues decided by the appeals panel” as it appears in Sections 410.301(b) and 410.302(a) of the Act with the parties’ arguments raised to support their position, and thus, the findings of fact rendered by the Hearing Officer and Appeals Panel. See Tex. Workers’ Comp. Ins. Fund, 124 S.W.3d at 820-21. Apart from common appellate practice and understanding, the Act uses the term “issue” in a different light. For this reason, the term “issue” as used in the Act must be interpreted within the context of its definition and usage within the Act, itself.
Specific to this case, Section 410.301 defines an “issue” to be either compensability or income or death benefits. TEX. LAB. CODE ANN. § 410.301(a). Because the word “issue” as referenced in the Act has a different nuance and usage than in common Texas appellate practice, I would hold that “issue,” as used in Section 410.301 and .302, refers to the disputed matters enumerated therein, that is, compensability, income, or death benefits. To be entitled to trial, or judicial review on one of these enumerated issues, a party must have presented it to the appeals panel for determination. TEX. LAB. CODE ANN. § 410.302; see also Tex. Workers’ Comp. Ins. Fund, 124 S.W.3d at 820-21 (holding “issue” is used to refer to “disputed matters related to the underlying workers’ compensation claim”, or the broad matters presented to the hearing officer or appeals panel for determination.). “Issue” as used within the Act does not refer to all arguments to support a party’s position with regard to one of the disputed matters enumerated within the Act.
As stated by the majority, Martinez raised the following “disputed issues” to be determined at all stages of the administrative process: (1) Did Martinez sustain a compensable injury on June 9, 2001; and (2) Did Martinez have a disability. Thus, following Texas Workers’ Comp. Ins. Fund, any argument raised to support or negate either of these two issues may be raised at any time. In this case, determination whether Martinez violated state law by working at home is an argument in support of SORM’s position that Martinez’s injury is not compensable. As enunciated by the Austin court, to hold that all arguments pertaining to compensability were the “issues” to be decided in administrative review “would totally ignore the repeated meaning of ‘issue’ elsewhere in [the Act] and would, in effect, elevate form over substance.” See Tex. Workers’ Comp. Ins. Fund, 124 S.W.3d at 821.
This question that is presented in this case has emerged repeatedly over the last several years. The Austin Court of Appeals is in sharp disagreement with the Houston and Texarkana Courts of Appeals. Perhaps Martinez will be the vehicle by which the Texas Supreme Court undertakes to clarify the answer to the question. Both sides filed petitions for review in Martinez. The court has ordered full briefing by both parties. All briefing is scheduled to be completed by February 23, 2017.
Pinkus v. Hartford
The Dallas Court of Appeals affirmed a trial court’s ruling that found an injured worker’s death from a motor vehicle, while on a business trip, to be outside the course and scope of employment. In Pinkus v. Hartford Cas. Ins. Co. (No. 05-14-00892-CV, November 5, 2015) the majority concluded that the employee’s fatal motor vehicle accident did not originate in the business of the employer. A concurring justice wrote that while he agreed with the result that the majority reached, he would affirm on the basis of the dual purpose rule.
The decedent had traveled to Dallas on a business trip and had worked a full business day at an office near the hotel at which he was staying. His transportation, lodging, and reasonable meal expenses were paid by his employer. After working normal business hours at his employer’s Dallas office, the decedent ceased working at around 5:42 p.m. He had not obtained prior approval for a business or client entertainment meal, and his calendar did not reflect any work-related appointment that evening.
The summary-judgment evidence was uncontroverted that during the evening of January 9, 2012, the decedent was on personal time and free to spend the evening as he saw fit. The decedent made plans with his son, Brett, to have a personal, social dinner together. The plans had not been confirmed as to whether they were to meet at Brett’s home or the Lovers Pizza location on Mockingbird Lane near Brett’s home. The Lovers Pizza location at which the decedent and Brett planned to eat was chosen for Brett’s convenience due to the proximity of the restaurant to Brett’s home.
The decedent sustained serious injury in a motor vehicle accident at 6:43 p.m. The accident location is between the Lovers Pizza restaurant where the decedent and Brett planned to eat and Brett’s home; it is four-tenths of a mile east of Lovers Pizza and one-half mile southwest of Brett’s home. The accident occurred eleven miles from the Dallas business office at which the decedent had been working.
The Division found the claim to be compensable. Hartford filed suit for judicial review and the trial court granted the carrier’s motion for summary judgment. The Pinkus beneficiaries appealed. The court affirmed.
Even viewing the evidence in the light most favorable to Barbara, Ron’s travel at the time of the accident was to accommodate a personal visit and meal with his son; Ron’s business trip to Dallas merely placed him in a position to take advantage of an opportunity for a “distinct departure” on a “personal errand.” . . . the summary judgment evidence establishes there is no genuine issue of material fact that Ron’s activity at the time of his injury did not originate in and was not in furtherance of his employer’s business affairs.
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Because we have concluded the summary judgment evidence establishes Ron was not in the course and scope of his employment at the time of his injury, we reach neither the second step of the analysis concerning applicability of the dual purpose travel exclusion from “course and scope of employment” nor the third step of the analysis concerning applicability of an exception to that exclusion.
The concurring justice wrote:
Although I agree with the majority’s conclusion that the underlying judgment should be affirmed, I cannot agree with the majority’s determination that the evidence in this case shows a distinct departure from the business purpose of the trip.
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The fact that Ron was to meet his son for dinner does not remove that activity from the accepted course and scope of Ron’s employment. However, it does trigger an analysis under the dual purpose doctrine found in section 401.011(12)(B).
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There is no doubt that Ron’s travel to the place of injury was for a dual purpose, but there is no evidence establishing that he would have traveled to the place of injury without the personal purpose and would not have traveled there without the business purpose. In the absence of such evidence, no exception to the dual purpose exclusion has been shown. The trial court’s judgment should be affirmed.
Pinkus is pending on motion for rehearing. While it is not unheard of for the court to grant a petition for review on motion for rehearing, it is extremely rare for the Texas Supreme Court to do so. A motion for rehearing by the beneficiaries is due to be filed no later than November 9, 2016.
FOLIO
