       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                         NO. 03-01-00652-CV




                                     Nancy Broadhurst, Appellant

                                                    v.

                        Employees Retirement System of Texas, Appellee




        FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
            NO. GN100561, HONORABLE DARLENE BYRNE, JUDGE PRESIDING




                Nancy Broadhurst appeals the district court=s judgment affirming a final order by the Board

of Trustees for the Employees Retirement System of Texas (ABoard@ or AERS@) denying her application for

occupational disability retirement benefits (Aretirement benefits@). On appeal, Broadhurst continues to

challenge the Board=s order, alleging that it was arbitrary and capricious and incorrectly interpreted the

statute governing her claim. We will affirm the judgment of the district court.


                        FACTUAL AND PROCEDURAL BACKGROUND

                Broadhurst was employed as a Child Protective Services (ACPS@) specialist for the Texas

Department of Protective and Regulatory Services. This position required Broadhurst to receive,

investigate, and evaluate reports of child abuse. In performing this primary task, she regularly carried car
seats, young children, their belongings, and case files. Additionally, she traveled county-wide by car to

schools, homes, and other facilities to interview children and family members. On October 18, 1995,

Broadhurst was injured at work when she sat down and leaned back in a chair that did not have a back

cushion. Shortly afterward, Broadhurst heard a loud popping sound in her back and began experiencing

pain on her way home from work. Initially, the pain in her back was not debilitating. Approximately one

year later, the pain in her back became too great for her to continue working; she subsequently resigned

from her job and submitted an application to ERS for retirement benefits. The Board denied her application

because it found her disability did not meet the definition of Aoccupational disability@ in the ERS statute. See

Tex. Gov=t Code Ann. ' 811.001(12) (West 1994).1 Broadhurst appealed the Board=s decision. After a

contested case hearing, an administrative law judge (AALJ@) found, in contrast to the Board=s decision, that


        1
            Broadhurst=s appeal was pending before September 1, 2001 and is governed by the law in effect
at that time. The definition of Aoccupational disability@ was amended in 2001. See Act of May 23, 2001,
77th Leg., R.S., ch. 1231, ' 1, 2001 Tex. Gen. Laws 2827, 2827. The amendment became effective
September 1, 2001. The current definition reads: A>Occupational death or disability= means death or
disability from an injury or disease that directly results from a specific act or occurrence determinable by a
definite time and place, and directly results from a risk or a hazard peculiar to and inherent in a duty that
arises from and in the course of state employment.@ Tex. Gov=t Code Ann. ' 811.001(12) (West Supp.
2002).




                                                       2
Broadhurst qualified for retirement benefits. The Board refused to adopt the ALJ=s findings of fact and

conclusions of law and denied retirement benefits. Broadhurst sought judicial review of the Board=s order.

The district court affirmed the Board=s order denying benefits.

                 On appeal, Broadhurst alleges that the district court erred in affirming the ERS order on the

grounds that the order (1) was arbitrary and capricious because it disregarded the findings of her treating

physician in favor of the findings of the ERS Medical Board; (2) was arbitrary and capricious because it

applied the definition of occupational disability, specifically the requirement that her disability arise from an

injury that Adirectly results from a specific act or occurrence,@ differently than the Board had applied the

requirement to prior, similarly-situated applicants; and (3) incorrectly interpreted the requirement in the

definition of occupational disability that the disability directly result from an Ainherent risk or hazard peculiar

to a duty that arises from and in the course of state employment.@ Id. Broadhurst=s third issue is dispositive

of her appeal; thus, we will confine our analysis accordingly.2 See Tex. R. App. P. 47.1.


                                                DISCUSSION

                 Broadhurst=s application for retirement benefits is governed by chapters 810-815 of the

Texas Government Code. See Tex. Gov=t Code Ann. '' 810.001-815.5112 (West 1994 & Supp. 2002).

        2
           Broadhurst=s first two issues concern matters addressed in recent opinions by this Court. See
Flores v. Employees Ret. Sys., 74 S.W.3d 532 (Tex. App.C2002, pet. filed); Langford v. Employees
Ret. Sys., 73 S.W.3d 560 (Tex. App.CAustin 2002, pet. filed).




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At the time her claim arose, section 811.001(12) defined Aoccupational disability@ to mean a disability

Afrom an injury or disease that directly results from a specific act or occurrence determinable by a definite

time and place, and directly results from an inherent risk or hazard peculiar to a duty that arises from and in

the course of state employment.@ Id. at ' 811.001(12). The statute contains two prongs: (1) the injury

must directly result from a specific act or occurrence determinable by a definite time and place and (2) the

injury must directly result from an inherent risk or hazard peculiar to a duty that arises from and in the course

of state employment. Id. Broadhurst=s claim hinges on the interpretation of Ainherent risk or hazard peculiar

to a duty@ in the second prong of the statute.

                 In determining the appropriate interpretation of a statute, our objective is to give effect to

the Legislature=s intent. National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). AAn

administrative agency=s construction or interpretation of a statute, which the agency is charged with

enforcing, is entitled to serious consideration by reviewing courts, so long as that construction is reasonable

and does not contradict the plain language of the statute.@ Employees Ret. Sys. v. Jones, 58 S.W.3d 148,

151 (Tex. App.CAustin 2001, no pet.). However, when the interpretation does not involve technical or

regulatory matters within the agency=s expertise but requires the discernment of legislative intent, we give

less deference to the agency=s reading of a statute. Rylander v. Fisher Controls Int=l, Inc., 45 S.W.3d

291, 302 (Tex. App.CAustin 2001, no pet.).

                 Thus, the task of statutory construction here involves a question of law: what did the

Legislature intend when it used the phrase Adirectly results from an inherent risk or hazard peculiar to a duty@


                                                       4
arising from state employment? We look at phrases in context, based on the ordinary meaning of the

words. Rylander, 45 S.W.3d at 302. We will give effect to all the words of a statute and not treat any

statutory language as surplusage if possible. Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.

1987).




AInherent Risk or Hazard Peculiar to a Duty@

                 The Board rejected the ALJ=s conclusion that Broadhurst=s disability directly resulted from a

risk or hazard peculiar to her duties of state employment and substituted its own finding that: AThe risk or

hazard associated with the universal act of attempting to sit in a chair is one that applies broadly to anyone

who sits down.@ Based on its interpretation of the statute, the Board requires applicants for occupational

disability retirement benefits to prove that their injury was caused by a risk or hazard that is both inherent in

and peculiar to their job duties. Broadhurst, however, urges a disjunctive interpretation of the statute.

Broadhurst suggests that the phrase Aan inherent risk or hazard peculiar to a duty@ requires that her

incapacity result from either (1) a risk that is inherent to a job-related duty or (2) a hazard that is peculiar to

a job-related duty. Thus, she argues she only has to prove one of the statutory criteria, not both. She

further asserts that because her duties as a caseworker included lifting over twenty pounds, climbing,

stooping, standing, and driving, the risk of back injury was inherent to her primary job responsibilities and

thus sufficient to qualify for benefits.




                                                        5
                 This issue has been addressed by this Court on at least three separate occasions. See

Flores v. Employees Ret. Sys., 74 S.W.3d 532 (Tex. App.CAustin 2002, pet. filed); Langford v.

Employees Ret. Sys., 73 S.W.3d 560 (Tex. App.CAustin 2002, pet. filed); Bond v. Employees Ret. Sys.,

825 S.W.2d 804, 806 (Tex. App.CAustin 1992, writ denied). In Bond, we held that in order to satisfy the

second prong of the statute, two prerequisites must be satisfied. Bond, 825 S.W.2d at 806. First, the

employee=s injury must directly result from a risk or hazard that is inherent in a duty of the employee that

arises from and in the course of her state employment. Id. Second, the inherent risk or hazard must also

be peculiar to such a duty. Id. It would be inconsistent with our holding in Bond to adopt the interpretation

that Broadhurst urges.

                 Broadhurst argues in the alternative that even if the Board=s interpretation of the statute is

correct, Broadhurst qualifies for benefits because her disability was the result of a risk that was both inherent

in and peculiar to her duties as a CPS specialist. We construe her argument as a challenge to whether the

Board=s decision on this point was supported by substantial evidence.

                 In reviewing an agency decision, the court must decide whether the decision was supported

by substantial evidence in the record. See Tex. Gov=t Code Ann. '' 815.511(b) (providing for review of

ERS decisions by substantial evidence); 2001.174 (West 2000) (providing for review of agency decisions).

This is a limited standard of review that affords great deference to the agency in its field of expertise.

Railroad Comm=n v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995). A court applying the

substantial evidence standard of review may not substitute its judgment for that of the agency. See Tex.


                                                       6
Gov=t Code Ann. ' 2001.174; Mireles v. Texas Dep=t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999).

The issue for the reviewing court is not whether the agency=s decision was correct, but whether the record

demonstrates some reasonable basis for the agency=s action. See Mireles, 9 S.W.3d at 131; City of El

Paso v. Public Util. Comm=n, 883 S.W.2d 179, 185 (Tex. 1994). Courts must affirm administrative

findings in contested cases if there is more than a scintilla of evidence to support them. See Torch

Operating, 912 S.W.2d at 792-93. AIn fact, an administrative decision may be sustained even if the

evidence preponderates against it.@ Mireles, 9 S.W.3d at 131. Before reviewing the evidence at issue

here, a discussion of recent case law interpreting Aan inherent risk or hazard@ is helpful to understanding the

context of Broadhurst=s claim and our resolution of the issue.

                 We explained in Flores that a risk or hazard is peculiar to a duty to the extent that the duty

imposes a risk or hazard different from the usual or normal risks encountered by a person not engaged in

that duty. Flores, 74 S.W.3d at 553. In so holding, this Court expressly rejected as overly restrictive the

argument that a risk or hazard is peculiar only if it is different from the normal risks encountered by someone

engaged in the same duty. Id. at 552-53. We noted that Flores=s job as a social worker aide was defined

by the primary task of transporting children in a car, and that in performance of this primary task, she spent

between seven and twelve hours each day, or seventy-five percent of her working hours, in a car. Id.

Thus, she faced a much higher risk of being injured in a car accident by virtue of her job than other drivers.

Id. at 553. The increased risk of injury resulting from an automobile accident faced by Flores was therefore

an inherent risk that was peculiar to her work-related duties. Id.


                                                      7
                In Langford, Calvin Langford, an employee of the Texas Department of Criminal Justice,

was injured when he slipped on a wet floor while performing his duties as a food service manager at one of

the Department=s correctional facilities. Langford, 73 S.W.3d at 563-64. The Department=s training

manual addressed the need for floors to be scrubbed daily and specifically instructed employees regarding

the prevention of slips, trips, and falls. Id. The manual also required that Awet floor@ signs be posted

immediately after cleaning and recommended that both employees and inmates working in the food service

area wear non-skid shoes. Id. Further, because Langford was a supervisor, he frequently risked injury by

walking into wet areas to perform his duties. Id. These facts led this Court to conclude that Langford=s

injury was peculiarly related to his unique duties as a food service manager. Id.

                In both Langford and Flores the employee was injured while performing a task peculiar to

his or her primary job responsibilities. A person engaged in other types of employment would face a lower

risk of injury due to automobile accident or slipping on a wet floor than did these two employees.

Broadhurst asserts that her case is analogous to both Flores and Langford in that, because her duties as a

CPS specialist included activities that could cause back problems (including carrying children, car seats, and

case files), she was subjected to an increased risk of suffering a back injury. Therefore, her back injury,

which resulted from sitting and leaning back in a chair, should properly be characterized as resulting from a

risk inherent and peculiar to her primary job responsibilities. The test, however, is not whether other acts

Broadhurst engaged in at work may have made her more susceptible to injury, but whether the act that

caused the injury was peculiar to her duties as a CPS specialist.


                                                      8
                The standard for determining whether a risk is inherent in and peculiar to one=s duties of

employment is whether that duty imposes a risk or hazard different from the usual risks encountered by a

person not engaged in that duty. Langford,73 S.W.3d at 570; Flores, 74 S.W.3d at 552 (clarifying

Bond). Broadhurst ran no heightened risk of suffering injury as a result of sitting down in a chair than does

any worker who sits and stands throughout the course of the day. In other words, a person not engaged in

work as a CPS specialist runs the same risk of injury resulting from sitting in a chair as did Broadhurst.

Moreover, although Broadhurst=s job involved lifting and carrying children and case files, she did not suffer

her injury while performing these tasks but, instead, while sitting down and leaning back in a chair.

                With this in mind, we will review Broadhurst=s evidence. The only witness at the contested

case hearing, Broadhurst testified that she injured herself when she sat down and leaned back in a chair

which had no back cushion. She also offered into evidence documentation confirming the nature of the

accident, including an accident report and a first report of injury form submitted to the state workers=

compensation commission. She further testified that as part of her job she was required to sit down and

interview children and that this was the most Asalient@ part of her job. As we have just discussed, this

evidence simply does not establish that her disability arose from an Ainherent risk or hazard peculiar@ to her

duties as a CPS specialist. Thus, we agree with the Board=s characterization of Broadhurst=s accident at the

hearing that A[t]here is nothing distinctive in someone moving from one chair to another.@ Suffering an injury

while sitting down and leaning back in a chair is a risk that was not peculiar to Broadhurst=s state duties.




                                                      9
                 We conclude there was substantial evidence in the record demonstrating a reasonable basis

for the Board=s decision that Broadhurst did not satisfy the second prong of section 811.001(12) and, thus,

did not qualify for retirement benefits. Therefore, the district court correctly affirmed the Board=s order.

Broadhurst=s third issue is overruled.




                                             CONCLUSION

                 Because we find the Board correctly applied the second prong of section 811.001(12)

defining occupational disability and that Broadhurst was unable to satisfy this prong, we affirm the judgment

of the district court.




                                                  David Puryear, Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Puryear

Affirmed

Filed: July 26, 2002

Publish




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