                                                                                 ACCEPTED
                                                                            04-14-00558-CV
                                                                 FOURTH COURT OF APPEALS
                                                                      SAN ANTONIO, TEXAS
                                                                       2/9/2015 11:12:21 PM
                                                                              KEITH HOTTLE
                                                                                     CLERK

                     NO. 04-14-00558-CV

                                                            FILED IN
                                                     4th COURT OF APPEALS
                                                      SAN ANTONIO, TEXAS
                       IN THE                        02/9/2015 11:12:21 PM
               FOURTH COURT OF APPEALS                   KEITH E. HOTTLE
                                                              Clerk
                 SAN ANTONIO, TEXAS


                    EDNA A. MARTINEZ
                                                     Appellant
                              V.

        STATE OFFICE OF RISK MANAGEMENT
                                             Appellee
______________________________________________________

   From the 37th Judicial District Court, Bexar County, Texas
                Trial Court No. 2001-CI-17102
         Honorable Antonia Arteaga, Judge Presiding


                   APPELLANT’S BRIEF


                                   Kenneth W. Howell
                                   Attorney at Law
                                   State Bar No. 10102727
                                   629 S. Presa
                                   San Antonio, Texas 78210
                                   (210) 227-6305
                                   (210) 227-6327 facsimile
                                   kwhowell@earthlink.net

                                   ATTORNEY FOR APPELLANT


             ORAL ARGUMENT REQUESTED
                            NO. 04-14-00558-CV



                           EDNA A. MARTINEZ
                                                        Appellant
                                    V.

                 STATE OFFICE OF RISK MANAGEMENT
                                               Appellee


                  IDENTITY OF PARTIES AND COUNSEL



Appellant/Defendant:                        Edna A. Martinez

Attorney for Appellant:                     Kenneth W. Howell
                                            Attorney at Law
                                            State Bar No. 10102727
                                            629 S. Presa
                                            San Antonio, Texas 78210
                                            (210) 227-6305
                                            (210) 227-6327 facsimile
                                            kwhowell@earthlink.net

Appellee/Plaintiff:                         State Office of Risk
                                            Management

Attorney for Appellee on Appeal:            Emily R. Jakobeit
                                            Assistant Attorney General
                                            State Bar No. 24063075
                                            Tort Litigation Division
                                            P. O. Box 12548, Capitol Station
                                            Austin, Texas 78711
                                            (512) 475-2036
                                            (512) 463-2224 facsimile
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

ISSUES PRESENTED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1.       SORM cannot challenge the issue of compensability on judicial review
         on any ground, because the contested case hearing findings establish the
         elements of a compensable injury and were not appealed to or decided
         by the appeals panel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

         A.       The hearing officer’s unappealed findings clearly establish the
                  elements of a compensable injury.. . . . . . . . . . . . . . . . . . . . . . . . . . . 12

         B.       SORM is barred from raising the issue of compensability on
                  judicial review, because it did not appeal the contested case
                  hearing findings establishing a compensable injury.. . . . . . . . . . . . . 14

         C.       The contested case hearing findings clearly encompass the
                  “arising out of” element of compensability... . . . . . . . . . . . . . . . . . . 16

2.       SORM cannot raise the alleged violation of TEX. GOV’T CODE §658.010
         and §659.018 as a basis for denial for the first time on judicial review,
         because it did not raise the issue at any stage of the administrative
         proceedings... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19




                                                          -ii-
3.       SORM’s alleged statutory violation – no prior permission to work at
         home – is no evidence that Martinez did not sustain a compensable
         injury, because it is undisputed that her injury otherwise arose out of and
         in the course and scope of employment... . . . . . . . . . . . . . . . . . . . . . . . . . . 21

         A.       Alleged violation of an employer rule regulating the manner of
                  the work does not preclude the compensability of an injury by an
                  employee while otherwise engaged in activities in the course and
                  scope of employment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

         B.       Neither the language nor history of the statutes Martinez allegedly
                  violated indicate that they apply in this case or supercede the
                  governing workers’ compensation law.. . . . . . . . . . . . . . . . . . . . . . . 23

         C.       The statutes Martinez allegedly violated regulate the manner,
                  rather than scope, of the work.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

         D.       Remand for a determination of attorney fees.. . . . . . . . . . . . . . . . . . 26

PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29




                                                          -iii-
                                   INDEX OF AUTHORITIES

                                                 CASES

Brown v. Forum Ins. Co.
     507 S.W.2d 576 (Tex. App. – Dallas 1974, no writ). . . . . . . . . . . . . . . 22, 25

Bugh v. Employers’ Reinsurance Corp.
     63 F.2d 36 (5th Cir. 1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

City of Pasadena v. Olvera
      95 S.W.3d 494 (Tex. App.– Houston [1st] 2002, no pet).. . . . . . . . . . . . . . 12

ESIS Inc. v. Johnson
      908 S.W.2d 554 (Tex. App.– Ft. Worth 1995, writ denied).. . . . . . 12, 13, 18

Garcia v. Texas Indem. Ins. Co.
     209 S.W.2d 333 (Tex. 1948). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16, 18

Hefley v. Sentry Ins. Co.
      131 S.W.3d 63 (Tex. App. – San Antonio 2003, pet. denied). . . . . . . . 12, 19

Krueger v. Atascosa Cnty.
     155 S.W.3d 614 (Tex. App. – San Antonio 2004, no pet.). . . . 11, 14, 15, 16

Lear Seigler, Inc. v. Perez
      819 S.W.2d 470 (Tex. 1991).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Lopez v. Zenith Ins. Co.
      229 S.W.3d 775 (Tex. App. – Eastland 2007, pet. denied). . . . . . . . . . . . . 15

Maryland Cas. Co. v. Brown
     115 S.W.2d 394, 397 (Tex. 1938).. . . . . . . . . . . . . . . . . . . . . . . . . . 21, 22, 25

Mid-Century Ins. Co. of Texas v. Ademaj
     243 S.W.3d 618 (Tex. 2008).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10



                                                     -iv-
Randall’s Food Mrkts., Inc. v. Johnson
     891 S.W.2d 640 (Tex. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 16

State Office of Risk Mgmt. v. Martinez
      300 S.W.3d 9 (Tex. App. – San Antonio 2012, pet. denied). . . . . . . . . 6 fn. 3

Texas Workers’ Comp. Comm’n v. Patient Advocates of Texas
      136 S.W.3d 643 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Texas Workers’ Comp. Ins. Fund v. Simon
      980 S.W.2d 730 (Tex. App. – San Antonio 1998, n. w. h.). . . . . . . . . . 10, 13

TIG Premier Ins. Co. v. Pemberton
     127 S.W.3d 270 (Tex. App. – Waco 2003, pet. denied).. . . . . . . . . . . . . . . 15

Vanliner Ins. Co. v. Ward
      923 S.W.2d 29, (Tex. App. – Texarkana 1996, no pet.).. . . . . . . . . . . . . . . 12

Walker v. Harris
     924 S.W.2d 375 (Tex. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Wingfoot Ent. v. Alvarado
     111 S.W.3d 134 (Tex. 2003).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 25

                                               STATUTES

TEX. LAB. CODE §401.011(10). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 24

TEX. LAB. CODE §401.011(12). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 23

TEX. LAB. CODE §401.011(16). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

TEX. LAB. CODE §406.031(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TEX. LAB. CODE §408.001.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TEX. LAB. CODE §408.221.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

                                                      -v-
TEX. LAB. CODE §408.221(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

TEX. LAB. CODE §408.221(d). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

TEX. LAB. CODE §410.169.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. LAB. CODE §410.251.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

TEX. LAB. CODE §410.302(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 14, 16, 19

TEX. LAB. CODE §410.303.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

TEX. LAB. CODE §501.001(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TEX. LAB. CODE §501.002(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TEX. LAB. CODE §501.002(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TEX. LAB. CODE §501.002(a)(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TEX. LAB. CODE §501.002(a)(7). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

TEX. GOV’T CODE §658.010. . . . . . . . . . . . . . . . . . . . . . . . ii, 3, 6, 8, 16, 19, 23, 25

TEX. GOV’T CODE §659.018. . . . . . . . . . . . . . . . . . . . . . . . ii, 3, 6, 8, 16, 19, 23, 25

                                                      RULES

TEX. R. APP. P. 39. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

TEX. R. APP. P. 9.4(i)1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

TEX. R. CIV. P 166a(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6




                                                          -vi-
                         STATEMENT OF THE CASE

      This is a workers’ compensation case. Appellee (Plaintiff), the State Office of

Risk Management (SORM), brought this suit for judicial review of a final decision

of the Texas Department of Insurance-Division of Workers’ Compensation, formerly

the Texas Workers’ Compensation Commission (Commission), which found that

Appellant (Defendant), Edna A. Martinez (Martinez), sustained a compensable injury.

Both parties moved for summary judgment. The trial court, Hon. Antonia Arteaga,

Presiding Judge, 37th District Court, denied Martinez’s Second Motion for Final

Summary Judgment and Motion to Reconsider her No-Evidence Motion for Final

Summary Judgment, and granted SORM’s Motion for Final Summary Judgment. (CR

555-56). On May 6, 2014, Judge Arteaga signed a final judgment in favor of SORM,

which reversed the commission’s final decision and rendered judgment that Martinez

did not sustain a compensable injury. (CR 587-588; App. A 1). Martinez brings this

appeal.




                                        -vii-
                              ISSUES PRESENTED

1.   Whether SORM can challenge the issue of compensability on judicial review
     on any ground, when the contested case hearing findings establish 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 and in the course and
     scope of employment?




                                         -viii-
                               NO. 04-14-00558-CV



                                 IN THE
                         FOURTH COURT OF APPEALS
                           SAN ANTONIO, TEXAS


                              EDNA A. MARTINEZ
                                                                  Appellant
                                         V.

               STATE OFFICE OF RISK MANAGEMENT
                                                    Appellee
       ______________________________________________________

            From the 37th Judicial District Court, Bexar County, Texas
                         Trial Court No. 2001-CI-17102
                  Honorable Antonia Arteaga, Judge Presiding


                             APPELLANT’S BRIEF


TO THE HONORABLE FOURTH COURT OF APPEALS:

      Appellant (Defendant), Edna A. Martinez, respectfully submits this brief in

support of her appeal of the trial court judgment rendered against her and in favor of

Appellee (Plaintiff), the State Office of Risk Management. For clarity, Appellant is

referred to as “Martinez,” and Appellee is referred to as “SORM.” Pursuant to TEX.

R. APP. P. 39, Martinez respectfully requests oral argument in this case.
                           STATEMENT OF FACTS

      Martinez was a child protective services caseworker for the Texas Department

of Regulatory Services (TDPRS). On Saturday, June 9, 2001, she was working at

home on service plans and case files for cases scheduled for a court hearing on the

following Monday. (CR 39-40, 51, 54-55; CR Supp. 97-98, 133-34). As Martinez

rose from the table where she was working to get a new pen, she slipped and fell,

sustaining injuries to her head, neck, back, and shoulder. (CR 39-40, 54-55). That

same day, she sought emergency room treatment from a local hospital. (CR 52-53,

CR Supp. 132-33; 175-191).

      The following Monday, June 11, Martinez reported the injury to her supervisor

and made a claim for workers’ compensation. (CR 51; CR Supp. 38, 133-135).

However, when Martinez submitted her time for the week of June 9-19 to her

supervisor for approval, he refused to approve the hours for June 9 and told her that

her workers’ compensation was being denied because she “didn’t have prior approval

to work at home.” (CR Supp. 97-98; 136-38; 225-26). On June 21, SORM filed a

notice of refusal denying compensability on the general ground that the injury was

not sustained in the course and scope of employment. (CR Supp. 44).




                                         2
       Administrative dispute resolution proceedings ensued.1             Throughout the

administrative proceedings, SORM did not dispute that Martinez was performing her

caseworker duties when she was injured. Rather, its main reason for denial was

alleged violation of a TDPRS rule requiring prior permission to work overtime or at

home. (CR Supp. 25-30, 33-36, 96-100). And while SORM maintained its denial was

based on this “standard of conduct,” it never denied compensability on the ground

that Martinez violated TEX. GOV’T CODE §658.010 and §659.018, which pertain to

the circumstances under which a state agency employee may earn overtime wages.

(CR Supp. 64-68; App. B 13-14).

       Unable to reach an agreement at the benefit review conference, the parties

proceeded to a contested case hearing. (CR Supp. 33-36). The contested case hearing

officer made the following findings:

       3.     On June 9, 2001, the Claimant was furthering the business and
              affairs of the Employer by making reports and service plans that
              she needed to present in court on June 11, 2001 as part of her
              normal work duties.

       4.     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 ... [T]he Claimant fell to the floor and sustained injuries


1. Martinez’s administrative claim was determined by the Texas Workers’ Compensation
Commission. Effective Sept. 1, 2005, the Legislature abolished the Commission and created the
Texas Department of Insurance-Division of Workers’ Compensation to oversee workers’
compensation claims. For consistency, this brief refers to the agency as the Commission.

                                             3
             to her head/face, left shoulder, left ankle, knees, and left hip and
             thigh.

      5.     The Claimant’s injury on June 9, 2001 did not involve any
             instrumentality of the Employer.

      6.     On June 9, 2001, the Claimant sustained an injury that did not
             arise out of nor was in the course and scope of employment.

      7.     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 from June 10 through 17, 2001, and from June 19,
             2001 to the present. (emphasis added). (CR Supp. 28-29; App. D
             22-27).

      Thus, the hearing officer found that Martinez fell and sustained the injury while

performing normal duties of her work and in furtherance of the employer’s business

or affairs, and that resulted in disability. However, because of his finding that the

injury did not involve an “instrumentality” of employment, he erroneously concluded

that the injury was not compensable, and thus, there was no compensable disability.

      Martinez, who was not represented by an attorney, appealed the contested case

decision to the appeals panel, complaining that the hearing officer’s determinations

of compensability and disability were erroneous. (CR Supp. 19-21). SORM,

however, did not file a request for review or otherwise appeal any of the above

findings to the appeals panel. In fact, in its response to Martinez’s request for review,

SORM expressly agrees with all of the hearing officer’s findings, including findings



                                           4
3, 4, and 7, and requests they be affirmed. (CR 399-404; App. F 61-65).

      Therefore, since it was “undisputed that [Martinez] fell and sustained her injury

while working at home,” the appeals panel concluded there was a causal connection

between the injury and activities of employment regardless of whether an

instrumentality inherent to the employment was involved. (CR Supp. 19-21; App. C

16-18). Accordingly, the appeals panel reversed the contested case decision and

rendered a new decision that Martinez sustained a compensable injury with resulting

disability from June 10, 2001 through the date of hearing, and ordered the payment

of benefits. (CR Supp. 19-21).

      Martinez’s injuries include a nondisplaced fracture, impingement, and rotator

cuff tear of the shoulder which required surgery in March 2002. She was certified as

reaching maximum medical improvement on November 4, 2002, with a final

impairment rating of twenty-nine percent. (CR Supp. 220-23). SORM paid all

benefits due for the compensable injury and filed this suit for judicial review.

      On January 29, 2013, Martinez filed defendant’s second motion for final

summary judgment on arguing that SORM could not prevail on its cause of action for

judicial review of the commission’s decision as a matter of law, because it did not

appeal the contested case findings establishing a compensable injury to the appeals

panel, and therefore could not challenge the issue of compensability on judicial

                                          5
review on any ground. 2 TEX. R. CIV. P 166a(b); (CR 383-408; App. F 45-70). That

same day, SORM filed plaintiff’s motion for final summary judgment, asserting that

Martinez’s injury is not compensable because she was injured while working at home

without prior permission in alleged violation of TEX. GOV’T CODE §658.010 and

§659.018. (CR 216-382; App. B 13-14) ). SORM made this same assertion in its

response to Martinez’s motion. (CR 410-504). Martinez filed a response to SORM’s

motion, which included a motion to reconsider her prior no-evidence motion for final

summary judgment. 3 (CR 151-165; 505-519).

        On March 27, 2013, a hearing on the parties’ motions was held before Hon.

Antonia Arteaga, Judge, 57th District Court, who denied Martinez’s motions and

granted SORM’s motion. (CR 520).                   The court denied Martinez’s motion to

reconsider on June 12, 2013, and signed an order granting SORM’s motion and



2. Martinez had previously filed defendant’s motion for final summary judgment on July 29, 2005,
and defendant’s no-evidence motion for summary judgment on August 3, 2006. (CR 151-165).
These motions rested on different grounds than Martinez’s second motion for summary judgment
at issue in this appeal. SORM also filed a motion for summary judgment, and a partial plea to the
jurisdiction. Each party’s motions were denied by Hon. John D. Gabriel, Jr., Judge 131st District
Court, on January 31, 2007. (CR 189 180-189).

3. On February 20, 2007, the parties appeared for a jury trial in this case. Prior to trial, Martinez
filed a motion for pre-trial directed verdict, which incorporated and essentially restated her prior no-
evidence motion for summary judgment. (CR 332-346). Hon. David S. Berchelmann, Jr., Judge,
57th District Court, granted the motion, and signed a final judgment in favor of Martinez on
November 14, 2007. (CR 347-348). SORM appealed, and this Court reversed and remanded. State
Office of Risk Mgmt. v. Martinez, 300 S.W.3d 9 (Tex. App. – San Antonio 2012, pet. denied). This
prior decision has no bearing on the issues raised in this appeal.

                                                   6
denying Martinez’s motion, but reserved signing of a final judgment until a proposed

judgment was first signed by counsel and served on the Division of Workers’

Compensation thirty days before entry. (CR 522-533; 555). On May 6, 2014, the trial

court signed a final judgment in favor of SORM. (CR 587-88; App. A 1). On June

5, 2014, Martinez filed a motion for new trial, which was overruled by operation of

law. (CR 589-599).




                                         7
                       SUMMARY OF THE ARGUMENT

      Martinez moved for summary judgment on the ground that SORM is barred

from raising the issue compensability on judicial review, and therefore cannot prevail

on its cause of action as matter of law. SORM replied and sought summary judgment

on the sole ground that, even assuming Martinez was injured in the course and scope

of employment, her injury is not compensable because sustained while she was

working at home without prior permission in alleged violation of TEX GOV’T CODE

§658.010 and §659.018. SORM argues, without any supporting authority, that

noncompliance with these provisions is a violation of state law that somehow defeats

the “arises out of,” or causal connection, element of compensability, and allows it to

raise the issue on judicial review.

      The court erred in denying Martinez’s motions and granting SORM’s motion

on this patently erroneous ground, or on any other ground. The unappealed contested

case findings clearly establish the “arising out of” and “course and scope” elements

of a compensable injury. SORM does not, and cannot, explain how the alleged

“violation of law” breaks the causal connection between the employment and the

injury. Therefore, SORM cannot challenge compensability on judicial review on the

statutory violation or on any other ground.




                                          8
      Assuming SORM could raise the issue of compensability on judicial review,

it is likewise barred from raising the alleged statutory violation as a ground for denial,

because the issue was not raised at any stage of administrative proceedings. A party

may not raise an issue on judicial review that was not first raised in the administrative

proceedings and decided by the appeals panel, and thus, the trial court erred in

granting SORM’s motion on this ground.

      Even assuming, however, the statutory violation issue is properly before the

court, it is no evidence that Martinez did not sustain a compensable injury, because

it is undisputed that her injury otherwise arose out of and in the course and scope of

employment. Moreover, by their plain language the statutes do not apply in this case,

nor do they supercede the workers’ compensation laws governing compensability,

and the trial court erred by denying Martinez’s no-evidence motion for summary

judgment and in granting SORM’s motion, and its judgment should be reversed.




                                            9
                                    ARGUMENT

       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); Krueger v. Atascosa Cnty., 155 S.W.3d 614, 620 (Tex. App. – San

Antonio 2004, no pet.). (App. B 9) 155 S.W.3d at 620. The movant for summary

judgment has the burden to show that there no issues of material fact and it is entitled

to judgment as a matter of law. Randall’s Food Mrkts., Inc. v. Johnson, 891 S.W.2d

640, 646 (Tex. 1995). The reviewing court examines the evidence and pleadings in

a light most favorable to, and resolves all doubts in favor of, the non-movant. Lear

Seigler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Texas Workers’ Comp. Ins.

Fund v. Simon, 980 S.W.2d 730, 733 (Tex. App. – San Antonio 1998, n. w. h.). A

defendant who negates at least one element of the plaintiff’s cause of action is entitled

to summary judgment on the cause of action. Randall’s Food Mrkts., 821 S.W.2d at

646.

       When, as here, 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. Mid-Century Ins. Co.,

243 S.W.3d at 621; Texas Workers’ Comp. Comm’n v. Patient Advocates of Texas,

136 S.W.3d 643, 648 (Tex. 2004).

                                           10
1.    SORM cannot challenge the issue of compensability on judicial review on any
      ground, because the contested case hearing findings establish the elements of
      a compensable injury and were not appealed to or decided by the appeals panel.

      Martinez argued in her second motion for summary judgment that, because

SORM failed to appeal the adverse contested case findings establishing the elements

of a compensable injury, it was barred from challenging the issue of compensability

on judicial review on any ground, and therefore, SORM could not prevail in this suit

as a matter of law. TEX. LAB. CODE §410.302(b); Krueger v. Atascosa Cnty., 155

S.W.3d 614 at 620. (App. B 9, E 29-38). In SORM’s response, and as the sole ground

of its motion for summary judgment, SORM asserts that even assuming Martinez was

injured in the course and scope, her injury is not compensable because she was

injured while working at home without prior permission in violation of state law.

SORM contends this alleged violation somehow defeats the “arising out of” element

of compensability.

      However, the hearing officer’s findings clearly establish an injury “arising out

of” and in the course and scope of employment, and SORM’s failure to appeal these

findings bars it from challenging compensability on judicial review on the statutory

violation or any other ground. Therefore, the trial court erred in granting Plaintiff’s

motion for summary judgment, and in denying defendant’s second motion for final

summary judgment, or in the alternative, denying defendant’s no-evidence motion for

                                          11
summary judgment. The trial court’s ruling is contrary to the applicable labor code

provisions and this Courts decisions in Krueger and Hefley v. Sentry Ins. Co., 31

S.W.3d 63, 65 (Tex. App. – San Antonio 2003, pet. denied) and should be reversed.

      A.     The hearing officer’s unappealed findings clearly establish the
             elements of a compensable injury.

      As the party seeking judicial review of the commission’s decision, SORM had

the burden to prove by a preponderance of the evidence that the commission decision

was wrong. TEX. LAB. CODE §410.303 (App. B 10); ESIS Inc. v. Johnson, 908 S.W.2d

554, 557 (Tex. App.– Ft. Worth 1995, writ denied). The commission decided that

Martinez sustained a compensable injury that resulted disability. (App. C 32-34).

Thus, to prevail in its suit for judicial review, SORM had the burden to prove that

Martinez did not sustain a compensable injury that did not result in disability. Id.;

City of Pasadena v. Olvera, 95 S.W.3d 494, 498 (Tex. App.– Houston [1st] 2002, no

pet) (to defeat compensability, a carrier conceding a fall occurred in the course and

scope must prove the fall was not a cause of the injury.). Moreover, Martinez is not

required to produce any evidence on the issue. Vanliner Ins. Co. v. Ward, 923 S.W.2d

29, 33 (Tex. App. – Texarkana 1996, no pet.).

      A compensable injury is one that (1) arises out of and (2) occurs in the course

and scope of employment. TEX. LAB. CODE §§401.011(10) and 406.031(a) (App. B.



                                         12
5, 7); Tex Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d at 734-35. (two prong test

for compensability is whether injury “arises out of” and “in the course and scope”).

The workers’ compensation act defines “course and scope” as an activity of any kind

or character originating in the work or business of the employer and performed or

engaged in by the employee in furtherance of the employer’s work or business,

whether conducted on the employer’s premises or other locations. §410.011(12).

(App. B 10).

      The “arises out of” prong is satisfied by proof of a causal connection between

the activities of employment and the injury. Simon, 980 S.W.2d at 736; Garcia v.

Texas Indem. Ins. Co., 209 S.W.2d 333, 336 (Tex. 1948) (injury arises out of

employment when there is a causal connection between the injury and employment

“either through its activities, its conditions, or its environment”). 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. ESIS Inc., 908 S.W.2d 554 at 557 (Tex. App. – Ft. Worth

1995, writ denied) (off duty sheriff who shot himself while cleaning a service

revolver at home sustained a compensable injury because there was a causal

connection between the injury and a regular activity of his employment).

      In this case, the contested case hearing officer’s Findings 3 and 4 expressly find

                                           13
that on June 9, 2001, Martinez “was furthering the business and affairs of the

Employer”... by making reports and service plans ... “as part of her normal work

duties,” and “in the course of her work” fell to her kitchen floor and sustained the

injuries in question. Finding 7 states that “[B]ecause of her injuries on June 9, 2001,

[Martinez] was unable to obtain and retain employment ... at pre-injury wages ... from

June 10, 2001 to the present.” (CR Supp 28-29; App. D 26). Indeed, these findings

virtually track the statutory definitions of compensable injury, course and scope, and

disability, and clearly establish that Martinez’s injury arose out of and in the course

and scope of employment and is therefore compensable, despite the contested case

hearing officer’s erroneous decision to the contrary. §§401.011(10) (12) and (16);

App. B 5-6).

      B.       SORM is barred from raising the issue of compensability on
               judicial review, because it did not appeal the contested case
               hearing findings establishing a compensable injury.

      Under the statutes governing judicial review of a workers’ compensation case,

a trial is “limited to the issues decided by the appeals panel and on which judicial

review is sought.” §410.302(b). (App. B 9). Interpreting these statutes in Krueger v.

Atascosa Cnty., this Court held that a party who fails to appeal adverse contested case

findings on an issue to the appeals panels, even when it otherwise obtains a favorable

contested case decision, is barred from later raising the issue on judicial review. 155

                                          14
S.W.3d at 619-620. (employee who failed to appeal hearing officer’s adverse finding

on issue of carrier’s waiver of right to contest compensability could not raise waiver

issue on judicial review) (App. E 29-38); TIG Premier Ins. Co. v. Pemberton, 127

S.W.3d 270, 276 (Tex. App. – Waco 2003, pet. denied). This statute applies

regardless of which party initiates the appeal. Krueger, 155 S.W.3d at 619.

      Further, §410.251 provides that a party must first exhaust its administrative

remedies on an issue before seeking judicial review. (App. B 8). A decision of the

contested case hearing officer is binding in the absence of a timely appeal. §410.169.

By not appealing the adverse contested case findings on an issue to the appeals panel,

a party fails to exhaust its administrative remedies, and such failure deprives the trial

court of jurisdiction over the issue. §410.251; Lopez v. Zenith Ins. Co., 229 S.W.3d

775, 778-79 (Tex. App. – Eastland 2007, pet. denied).

      In this case, while Martinez timely filed a request for review to the appeals

panel complaining of the hearing officer’s erroneous determination on the issues of

compensability and disability, SORM did not file an appeal or otherwise challenge

any of these findings before the appeals panel. In fact, in its response to Martinez’s

request for review, SORM expressly agreed with these findings, including Findings

3, 4 and 7, and requested they be affirmed. (CR 399-404; App. F 61-65 ). Clearly,

the appeals panel based its decision on the unappealed and undisputed findings that

                                           15
Martinez was injured while engaged in and performing the activities of employment

established a causal connection between the injury and the employment “either

through its activities, its conditions, or its environment.” citing Garcia v. Texas

Indem. Ins. Co., 209 S.W.2d at 333.

       By failing to appeal the contested case hearing officer’s findings that

Martinez’s injury arose out of and in the course and scope of employment, however,

SORM is barred from raising the issue of compensability on judicial review.

§410.302(b); Krueger, 155 S.W.3d at 619. Therefore, SORM cannot meets its burden

to show that Martinez did not sustain a compensable injury and, likewise, cannot

prevail on its cause of action for reversal of the commission’s decision as a matter of

law.

       C.    The contested case hearing findings clearly encompass the
             “arising out of” element of compensability.

       In its response to Martinez’s motion, and its motion for summary judgment,

SORM argues that, even assuming Martinez was injured while working in the course

and scope, the injury was not compensable because she was working overtime and

at home without prior permission in violation of state law, specifically TEX. GOV’T

CODE §658.010 and §659.018, which pertain to the calculation of wages and overtime

for state agency employees. SORM contends that Martinez’s alleged noncompliance



                                          16
with these statutes somehow defeats the “arises out of,” or “causal connection,”

element of compensability, and somehow allows it to challenge compensability on

this ground on judicial review. This flawed contention, unsupported by any authority,

should be rejected by this Court.

      First, to prevail on her no motion for summary judgment, Martinez need only

negate one element of SORM’s cause of action. Randall’s Food Mkts., Inc., 891

S.W.2d at 646; Walker v. Harris, 924 S.W.2d 375, 378 (Tex. 1995). As discussed

above, the two prong test for compensability is whether the injury “arises out of” and

“in the course and scope.” SORM’s concession that Martinez’s injury occurred in the

course and scope, the unappealed contested case findings, and SORM’s judicial

admission of the same in response to Martinez’s request for review, clearly negates

this element of SORM’s cause of action, that Martinez’s injury did not occur in the

course and scope, and thus precludes SORM from challenging compensability on

judicial review on the basis of the alleged statutory violation or any other ground.

      Furthermore, SORM does not and cannot cite any authority to support the

contention that the alleged statutory violation somehow breaks the causal connection

between the activities of employment and the injury, or explain how it otherwise

defeats the “arising out of” element of a compensable injury. In contrast, as discussed

above, the law is well settled that as long as an employee engaged in activities

                                          17
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” of

employment and is compensable. ESIS Inc., 908 S.W.2d at 557.

      As the appeals panel observed in this case, the unappealed and undisputed

findings that Martinez fell and was injured while engaged in and performing the

activities of employment established a causal connection between the injury and the

employment “either through its activities, its conditions, or its environment.” citing

Garcia v. Texas Indem. Ins. Co., 209 S.W.2d at 333. (App. C 16-18). In this regard,

SORM has never denied that Martinez working when she fell, or that fall was a

producing cause of her injuries, nor offered any evidence to the contrary.

      Thus, the unappealed contested case findings 3, 4, and 7, that Martinez was

engaged in and performing normal activities and duties in furtherance of her

employment when she fell, and that the fall was a cause of her injuries, clearly

establish a causal connection between her injury and the activities of employment,

and undeniably encompass the “arising out of” element of compensability. On the

other hand, SORM cannot offer any basis in fact, law, or logic to support its

contention that the alleged statutory violation somehow precludes the effect of the

unappealed findings to bar any challenge to compensability on judicial review.

      SORM cannot challenge the compensability of Martinez’s injury on judicial

                                         18
review on the basis of the alleged statutory violation or any other ground, and thus,

cannot prevail on its cause of action for reversal of the commission’s decision as a

matter of law. Accordingly, the trial court erred in denying Martinez’s second motion

for final summary judgment, and in granting SORM’s motion for summary judgment,

and this Court should reverse.

2.    SORM cannot raise the alleged violation of TEX. GOV’T CODE §658.010 and
      §659.018 as a basis for denial for the first time on judicial review, because it
      did not raise the issue at any stage of the administrative proceedings.

      SORM also relies on Martinez’s alleged violation of TEX. GOV’T CODE

§658.010 and §659.018 as the sole ground for its motion for final summary judgment.

For the same reasons as above, SORM cannot prevail on its motion as a matter of law,

because it is barred from challenging compensability on this or any other ground.

Even assuming, however, SORM could somehow challenge compensability on

judicial review, it is similarly barred from raising the alleged statutory violation to

support its denial, because it did not raise this issue at any stage of the administrative

proceedings, nor on judicial review until its brief in the court of appeals in the prior

appeal of this case. However, as this Court held in Hefley v. Sentry Ins. Co., a party

who fails to raise an issue during the administrative proceedings cannot raise the issue

for the first time on judicial review. §410.302(b); S.W.3d 63, 65 (Tex. App. – San

Antonio 2003, pet. denied) (employee who did not raise issue of carrier’s waiver of

                                           19
right to contest compensability in the administrative proceedings could not raise the

waiver issue for the first time on judicial review). (App. E 39-43).

      In this regard, from the time of its denial, throughout the administrative

proceedings, and on judicial review, SORM did not dispute that Martinez was

engaged in her normal caseworker duties when she fell, or that the fall caused an

injury and resulting disability. Rather, its main reason for denying compensability

was that Martinez allegedly violated a TDPRS “standard of conduct” that purportedly

required prior permission to work overtime or at home. (CR 38-43, 45-48, 78-81).

That the government code provisions upon which SORM now relies similarly require

prior approval for the home to be considered a workplace does not relieve SORM of

the consequence of its failure to allege their violation during the administrative

proceedings in the first place.

      Moreover, as discussed above, because the unappealed contested case findings

clearly establish compensability and cannot be challenged on judicial review, SORM

is barred from raising the “no prior permission” contention as a basis for denial in its

motion for summary judgment or on judicial review, either as a violation of the

employer’s “standard of conduct,” or as a violation of the statutes, and the trial court

erred in granting SORM’s motion on this ground.




                                          20
3.    SORM’s alleged statutory violation – no prior permission to work at home –
      is no evidence that Martinez did not sustain a compensable injury, because it
      is undisputed that her injury otherwise arose out of and in the course and scope
      of employment.

      Even assuming SORM’s alleged statutory violation could somehow be properly

before the trial court, the court erred in granting SORM’s motion on this ground.

Like the alleged violation of the employer’s rule requiring prior permission to work

overtime, the alleged statutory violation is no evidence as a matter of law that

Martinez’s injury is not compensable, because it is otherwise undisputed that her

injury arose out of and in her performance of activities in the course and scope of

employment. Maryland Cas. Co. v. Brown, 115 S.W.2d 394, 397 (Tex. 1938).

Moreover, nothing in either the language or history of the statutes indicates that they

apply in this case or supercede the governing workers’ compensation law. These

contentions were two of the grounds set forth in Martinez’s prior no-evidence motion

for summary judgment, which Martinez asked the trial court to consider in response

to SORM’s motion. (CR 151-165).

      A.     Alleged violation of an employer rule regulating the manner of
             the work does not preclude the compensability of an injury by an
             employee while otherwise engaged in activities in the course and
             scope of employment.

      It is well settled workers’ compensation law that violation of an employer rule

regulating the manner of the work, as opposed to the scope, does not defeat the

                                          21
compensability of an injury where, as in this case, it is undisputed that the injury

otherwise arose out of and in the employee’s performance of activities originating in

the work and in furtherance of the employer’s business, i.e., in the course and scope

of employment. Maryland Cas. Co., 115 S.W.2d at 397; cited with approval in

Wingfoot Ent. v. Alvarado, 111 S.W.3d 134, 139, fn. 26 (Tex. 2003); Brown v. Forum

Ins. Co., 507 S.W.2d 576, 577 (Tex. App. – Dallas 1974, no writ) (death of pilot

operating private plane instead of company plane in violation of company rule was

compensable where it was stipulated that the pilot was otherwise in the course and

scope of employment).

      In this regard, the employer “standard of conduct” Martinez allegedly violated

on its face does not apply in this case. (CR Supp. 64-68). While it requires prior

approval to work overtime, it says nothing about work at home. In fact, as was shown

at the contested case hearing, and SORM admits, the date of injury was the first day

of the pay period, and thus, she was not working overtime when she was injured. (CR

Supp. 161-164). Further, the employer’s rule clearly regulates the manner, rather than

the scope, of the work. While it may require prior approval to work overtime, it does

not forbid an employee from ever working overtime, or at home. Indeed, it clearly

contemplates that employees sometimes do. (CR Supp. 64-68).




                                         22
      B.     Neither the language nor history of the statutes Martinez allegedly
             violated indicate that they apply in this case or supercede the
             governing workers’ compensation law.

      For these same reasons, SORM’s allegation that Martinez was injured while

working at home without prior permission in violation of TEX. GOV’T CODE §658.010

and §659.018 is no evidence as a matter of fact and law that she did not sustain a

compensable injury. (App. B 13, 14). Indeed, nothing in either statute’s language or

history suggests that they apply to this case, or are intended to govern the

compensability of a state agency employee’s work related injury.

      Both statutes provide that an employee’s residence may not be considered a

“place of employment” for the purpose of calculating hours and wages without prior

written authorization. (App. B 13, 14). Section 659.018 additionally requires such

approval for the purpose of calculating overtime. (App. B 14). However, the

workers’ compensation act provides that “course and scope” is not limited to the

“regular hours” or the “place of employment,” but can include “any other location.”

§401.011(12). (App. B 5). With regard to §659.018, it also clearly does not apply,

because, as discussed above, it is undisputed that Martinez was not working overtime

on the date of injury.

      Nor does SORM’s contention find support in the Legislative history attached

to its motion. Nothing in either the bill analysis or digest suggests that these

                                          23
provisions were intended to supercede the workers’ compensation law with regard to

either compensability or course and scope, or that their alleged violation relieves a

state agency of liability for an otherwise compensable injury. On the contrary, a state

agency’s liability for work related injuries is governed exclusively by the Workers’

Compensation Act – not the General Appropriations Act. TEX. LAB. CODE §408.001

and §501.002(a). Indeed, §501.002 provides that Chapter 408, governing the

computation and eligibility for benefits, Chapter 409, governing workers’

compensation procedures, and Chapter 410, governing the adjudication of disputes,

all expressly apply to state agencies. §501.002(a)(6) and (7). Also, §501.002(a)(1)

generally adopts the definitions of §401.011, including the definition of “course and

scope,” and §501.001(2) specifically provides that “compensable injury” has the

meaning given by §401.011(10).

      C.     The statutes Martinez allegedly violated regulate the manner,
             rather than scope, of the work.

      SORM argues that even if Martinez was injured while in the course and scope,

her injury “did not arise” from employment because she “broke state law” and was

“beyond the scope” of employment by allegedly working at home without prior

permission . SORM contends that the statutes upon which it relies regulate the scope

of employment, and thus, like the car dealer’s employee in Maryland Cas. Co. v.



                                          24
Brown, Martinez sustained her injury while “beyond the scope” of employment. This

contention is wholly without merit.

      As is evident from their plain language, like the TDPRS “standard of conduct”

Martinez allegedly violated, §658.010 and §659.018 clearly contemplate that state

employees can and do work outside of regular business hours and at home. Neither

statute prohibits a state employee from ever working overtime or at home, but merely

requires advance written permission to be paid for doing so. In contrast, the employer

rule at issue in Maryland Cas. Co. absolutely prohibited employees from taking the

dealer’s automobiles to Mexico under any circumstance. 115 S.W.2d at 396-97.

      SORM’s reliance on Bugh v. Employers’ Reinsurance Corp., 63 F.2d 36 (5th

Cir. 1933) to argue that Martinez’s injury is not compensable because she allegedly

committed a “crime against the state” by working at home without prior permission

is likewise unavailing. Bugh is a federal circuit case, not a state case, and was

decided before Maryland Cas. Co. v. Brown, Wingfoot Ent. v. Alvarado, and Brown

v. Forum Ins. Co. Obviously, Bugh did not construe current Texas law. In any case,

the court in Bugh found it significant that by operating an airplane without a license,

the pilot was in direct violation of a penal statute which was enacted to promote the

safety of the general public. Bugh, 63 F.2d at 37. In contrast, §658.010 and §659.018

are civil statutes pertaining to the hours and pay for state agency employees. Neither

                                          25
provision makes its violation a crime, or for that matter, prescribes any penalty for a

violation, and certainly not the denial of workers’ compensation benefits.

      D.     Remand for a determination of attorney fees.

      When an insurance carrier seeks judicial review of an appeals panel decision

on the issues of compensability or eligibility for benefits, and the employee prevails,

the carrier is liable for the reasonable and necessary attorney fees and expenses

incurred by the employee’s attorney as a result of the appeal. §408.221(c). (App. B

11). The fees must be approved by the court and based on the time and expenses as

shown by the evidence and consideration of the factors listed in §408.221(d).

Therefore, should the Court grant reverse the trial court’s judgment and render a new

judgment in favor of Martinez, she requests that the Court remand the issue of

attorney fees to the trial court for determination.

      For the above reasons, this Court should reverse the trial court’s judgment and

render judgment granting Martinez’s second motion for summary judgment, or

alternatively, her no-evidence motion for summary judgment, and remand the case for

a determination of fees incurred by Martinez’s attorney pursuant to §408.221.




                                          26
                                    PRAYER

      Wherefore, Martinez respectfully requests that this Court reverse the trial

court’s judgment; grant Martinez’s second motion for summary judgment; or

alternatively, Martinez’s no-evidence motion for summary judgment; render judgment

that Martinez sustained a compensable injury; and remand the case for a

determination of the attorney fees incurred by Martinez’s attorney pursuant to

§408.221; and for such and further relief to which Martinez may be justly entitled.

                                                   Respectfully submitted,

                                                   Kenneth W. Howell
                                                   Attorney at Law
                                                   629 S. Presa
                                                   San Antonio, Texas 78210
                                                   (210) 227-6305
                                                   (210) 227-6327 facsimile
                                                   kwhowell@earthlink.net

                                                   By: /s/Kenneth W. Howell
                                                       Kenneth W. Howell
                                                       State Bar No. 10102727

                                                   ATTORNEY FOR APPELLANT




                                        27
                       CERTIFICATE OF COMPLIANCE

      I certify that this document was produced on a computer using Corel Word
Perfect and contains 5975 words, as determined by the software’s word-count
function, excluding the sections listed in TEX. R. APP. P. 9.4(i)1.

                                                   By: /s/Kenneth W. Howell
                                                       Kenneth W. Howell
                                                       State Bar No. 10102727


                          CERTIFICATE OF SERVICE

       By my signature, I hereby certify that a true and correct copy of Appellant’s
Brief is being forwarded electronically and by e-mail on the 9th day of February,
2015 to:

      Emily Jakobeit
      Assistant Attorney General
      Tort Litigation Division
      P. O. Box 12548
      Austin, Texas 78711
      (512) 463-2197
      (512) 463-2224 facsimile
      emily.jakobeit@texasattorneygeneral.gov

      ATTORNEY FOR APPELLEE

                                                   /s/Kenneth W. Howell
                                                   Kenneth W. Howell




                                        28
                            NO. 04-14-00558-CV



                            EDNA A. MARTINEZ
                                                            Appellant
                                      V.

                STATE OFFICE OF RISK MANAGEMENT
                                              Appellee


                                   APPENDIX


The Trial Court’s Final Judgment                                    Exhibit A

Statutes                                                             Exhibit B

      TEX. LAB. CODE §401.011(10) and (12)
      TEX. LAB. CODE §406.031(a) (??)
      TEX. LAB. CODE §410.251
      TEX. LAB. CODE §410.302(b)
      TEX. LAB. CODE §410.303
      TEX. GOVT. CODE §658.010
      TEX. GOVT. CODE §659.018

Appeals Panel Decision                                              Exhibit C

Contested Case Hearing Decision                                     Exhibit D

Case Law                                                             Exhibit E

      Krueger v. Atascosa Cnty., 155 S.W.3d 614 (Tex. App. – San Antonio
      2004, no pet.)




                                      29
     Hefley v. Sentry Ins. Co.,131 S.W.3d 63, (Tex. App. – San Antonio
     2003, pet. denied)

Defendant’s Second Motion for Final Summary Judgment               Exhibit F




                                    30
