         TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                    NO. 03-01-00081-CV


                                 Calvin R. Langford, Appellant

                                                v.

                        Employees Retirement System of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
       NO. GN002512, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING



              This case raises similar issues and is controlled by our recent decision in Flores v.

Employees Retirement System, No. 03-01-00074-CV, 2002 Tex. App. LEXIS 2721 (Austin Apr. 18,

2002, no pet. h.). Where appropriate, we will rely on our reasoning and holdings in that opinion.

Tex. R. App. P. 47.1.

              Appellant Calvin Langford appeals the district court=s judgment affirming a final order

by the Board of the Employees Retirement System of Texas (hereinafter Athe Board@) denying his
application for occupational disability benefits. 1 Mr. Langford raises the same issues that were raised in

Flores: whether the Board acted arbitrarily and capriciously or abused its discretion by applying a new

policy in the course of his contested case without affording him notice of its intent to do so, and

whether the Board erroneously interpreted the statutory definition of occupational disability.

Additionally, he complains about the trial judge=s ruling denying his request to supplement the

administrative record. As we sustain two of Mr. Langford=s issues, we will reverse the judgment of the

trial court.


                                       FACTUAL BACKGROUND

                 Calvin Langford was employed by the Texas Department of Criminal Justice as a food

service manager at one of its correctional facilities. Mr. Langford=s position required him to supervise

food service workers, including inmates and employees, in the preparation and storage of food and in

the inspection and maintenance of the kitchen facility in a sanitary and safe manner. Departmental

policy required the kitchen floor to be cleaned at least once each day. As he approached an inmate

who was mopping the floor to tell him to put a AWet Floor@ sign out, Mr. Langford slipped and fell on

the wet kitchen floor. The inmate had failed to use the appropriate cleaner, using instead a highly


           1
                  We will refer to several entities throughout this appeal. The ABoard@ refers to the agency=s
board of trustees, which hears appeals of contested cases. See Tex. Gov=t Code Ann. ' 815.511 (West
Supp. 2002). The AMedical Board@ refers to the agency=s medical board, which certifies occupational
disability retirement claimants as disabled. See id. ' 814.203 (West 1994) (providing that the medical
board shall issue a certification of disability if it Afinds that the member is mentally or physically incapacitated
for the further performance of duty, that the incapacity is likely to be permanent, and that the member should
be retired@). AERS staff@ refers to the agency=s representatives at the administrative hearing before the State
Office of Administrative Hearings.


                                                         2
concentrated dishwashing detergent which, when applied to the floor, made it extremely slick. Mr.

Langford testified that even though he was wearing skid-resistant shoes, he fell, catching his leg on a

cooking grill and landing in an awkward position. Mr. Langford sustained serious injury to his back

and is permanently disabled. He was dismissed from his job several months after the accident.

               After his dismissal, Mr. Langford applied for disability retirement benefits from the

Employees Retirement System (AERS@),2 which was created by the legislature for the purpose of

providing a retirement system for Aaged and incapacitated state employees.@ Act of 1947, 50th Leg.,

R.S., ch. 352, 1947 Gen. Laws 697, 697 (statement of purpose). Mr. Langford applied for

occupational disability retirement benefits3 and was certified by the Medical Board as permanently

incapacitated from the further performance of his duties. His application was denied, however, because

the Board found that his disability did not meet the statutory criteria for occupational disability

retirement benefits.




         2
             The Employees Retirement System=s (ERS=s) governing statute, which is subtitled
AEmployees Retirement System of Texas@ is found at sections 811.001-815.512 of the Government
Code. See Tex. Gov=t Code Ann. '' 811.001-815.512 (West 1994 & Supp. 2002).
         3
               ERS provides four types of benefits for eligible state employees: service retirement,
occupational disability retirement, nonoccupational disability retirement, and death benefits. Tex.
Gov=t Code Ann. ' 814.001 (West 1994).




                                                  3
                The criteria are found in section 811.001(12) of the Government Code, which defines

occupational 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 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).4 ERS denied Mr. Langford=s claim, finding

that his disability failed to satisfy either statutory prong of the definition. He appealed, and after an

administrative hearing, the administrative law judge (ALJ) found that Mr. Langford=s application

satisfied both requirements and recommended in his proposal for decision (PFD) that occupational

disability benefits be awarded. The Board rejected the ALJ=s findings of fact and conclusions of law 5

as to both statutory prongs and denied benefits. The Board=s interpretation of the statutory definition

for disability benefits in this appeal is identical to the definitions it adopted in the Flores appeal. We

have held that the Board erroneously interpreted both prongs of the statute. Flores, No. 03-01-

00074-CV, slip op. at 33, 2002 Tex. App. LEXIS 2721, at *54-55 . Mr. Langford has also challenged

the manner in which the Board decided his appeal, contending that the Board violated his substantial

rights by failing to provide him with a meaningful hearing as required by the Administrative

Procedure Act (APA). For the same reasons that we explained in Flores, we hold that the Board=s


            4
             As in Flores v. Employees Retirement System, No. 03-01-00074-CV, 2002 Tex. App.
LEXIS 2721 (Austin Apr. 18, 2002, no pet. h.), the current code is cited for convenience.
        5
          See Tex. Gov=t Code Ann. ' 815.511(a) (West Supp. 2002) (authorizing the Board to
change or delete findings of fact and conclusions of law contained in a proposal for decision
submitted by an administrative law judge or other hearing examiner and to make alternative
findings of fact and conclusions of law in contested cases, and requiring Board to state in writing
its specific reasons for doing so); 34 Tex. Admin. Code ' 67.91(b) (2001) (requiring written
explanation for any change and providing criteria for authorized changes).

                                                    4
decision-making process was arbitrary and capricious and an abuse of discretion. As a preliminary

matter, we turn first to an issue raised by Mr. Langford regarding additional evidence.


                                     ADDITIONAL EVIDENCE

                Mr. Langford argues in his first issue that the trial court erred by refusing to admit into

evidence a resolution that the Board adopted after the ALJ submitted his PFD and before the Board

issued its order rejecting the ALJ=s decision and denying the application for benefits. Mr. Langford

cites section 2001.175(c) of the Government Code in support of his argument that the trial court

should have admitted the resolution, despite the fact that it was not part of the administrative record.

See Tex. Gov=t Code Ann. ' 2001.175(c) (West 2000). The provision reads:


        A party may apply to the court to present additional evidence. If the court is satisfied
        that the additional evidence is material and that there were good reasons for the
        failure to present it in the proceeding before the state agency, the court may order that
        the additional evidence be taken before the agency on conditions determined by the
        court. The agency may change its findings and decision by reason of the additional
        evidence and shall file the additional evidence and any changes, new findings, or
        decisions with the reviewing court.

Id.

                We review the district court=s decision to grant or deny a remand request under an

abuse of discretion standard. Gulf States Utils. Co. v. Coalition of Cities for Affordable Util. Rates, 883

S.W.2d 739, 747-48 (Tex. App.CAustin 1994, no writ). Section 2001.175(c) enables the district

court to remand the case to the agency for the admission of the additional evidence. Texas Oil & Gas

Corp. v. Railroad Comm=n, 575 S.W.2d 348, 351 (Tex. Civ. App.CAustin 1978, no writ) (discussing

virtually identical predecessor version of section 2001.175(c)). Mr. Langford, however, argues that


                                                    5
the district court erred by not admitting the evidence for consideration in connection with the

district-court case. Mr. Langford misunderstands the purpose of section 2001.175(c), which is to give

a party the opportunity to present additional evidence to the agency for its consideration; it is not

intended to enable a party to present evidence before a reviewing court. We also note that the

resolution does not constitute Aadditional evidence@ as contemplated by section 2001.175(c); if

anything, the resolution may constitute evidence of Aprocedural irregularities alleged to have occurred

before the agency that are not reflected in the record.@ See Tex. Gov=t Code Ann. ' 2001.175(e).

Mr. Langford does not rely on section 2001.175(e), however, and in any event, the resolution is

already before us and is included in the record; additionally, a large portion of the resolution is quoted

verbatim in the Board=s conclusions of law. Therefore, we overrule Mr. Langford=s first issue. We

now turn to his argument that the Board acted arbitrarily and capriciously in denying his appeal.


                                   ARBITRARY & CAPRICIOUS

                 In his second issue, Mr. Langford raises the same issues regarding the Board=s manner of

decision-making as were raised in Flores and asserts that the Board=s action was arbitrary and

capricious or constituted an abuse of discretion under section 2001.174(2)(F) of the APA. See Tex.

Gov=t Code Ann. ' 2001.174(2)(F) (West 2000).6 As in Flores, the manner in which the Board

decided this appeal raises serious concerns as to whether the Board respected Mr. Langford=s due-

process rights. A brief recitation of the facts highlights these concerns. After hearing all of the evidence


          6
                   The section requires a reviewing court to reverse or remand a case Aif substantial rights of
the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions
are . . . arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of


                                                      6
at the contested-case hearing on September 30, 1999, the ALJ decided in Mr. Langford=s favor on

October 28. The Board adopted new policies in a resolution on December 8. This same resolution limited

the viability of some of the Board=s previous decisions on which Mr. Langford had relied at the hearing.

The Board met to consider Mr. Langford=s appeal on April 19, 2000. The minutes of that meeting, of

which we take judicial notice, reflect that immediately after hearing from both sides and without any

deliberation, the Board declined to adopt the ALJ=s recommendation and denied Mr. Langford=s

appeal. After announcing its decision, the Board also ordered its general counsel to make new

findings of fact and conclusions of law. The revised findings of fact and conclusions of law, which

were later adopted by the Board, relied on the new policies announced in the post-hearing resolution.

               Moreover, the Board=s findings of fact and conclusions of law made systematic and

widespread changes and additions to the ALJ=s findings of fact and conclusions of law. The Board=s

changes to particular facts suggest that the Board was acting as its own fact finder despite having

delegated that duty to the ALJ. See Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 564 (Tex.

2000) (A[h]aving chosen to delegate the fact-finding role to the hearing examiner, a board cannot

then ignore those findings with which it disagrees and substitute its own additional findings@); Flores,

No. 03-01-00074-CV, slip op. at 7-8, at *8-9. In addition, in some instances, the Board failed to

comply with its statute and administrative rules, which authorize the Board to make changes but also




discretion.@ Tex. Gov=t Code Ann. ' 2001.174(2)(F) (West 2000).


                                                   7
place limits on its ability to do so. See Tex. Gov=t Code Ann. ' 815.511(a) (West Supp. 2002); 34

Tex. Admin. Code ' 67.91(b) (2001) (Rule 67.91(b).7

                The manner by which the Board decided Mr. Langford=s appeal raises serious due

process concerns, specifically in its (1) failing to put Mr. Langford on notice as to the grounds on

which the Board would rely for its decision; (2) arriving at a result on grounds other than those

presented at the hearing; (3) making its decision first and then making findings of fact to support that

new result; (4) failing to adequately explain its departure from prior decisions; and (5) failing to

comply with its statute and rule regarding changes to an ALJ=s findings of fact and conclusions of law.

These issues have been discussed at length in Flores and we need not address each one individually.

We reiterate that an agency must respect the due process rights of applicants who appear before it in

contested cases. See Flores, No. 03-01-00074-CV, slip op. at 6, at *9. We sustain Mr. Langford=s

second issue.




         7
               The APA contains the minimum standards for administrative agencies. See Tex.
Gov=t Code Ann. ' 2001.001(1) (West 2000). The Board stated that it was substituting its findings
of fact and conclusions of law for those of the ALJ=s pursuant to the authority of its own statute
and rules, specifically, section 815.511(a) of the Government Code and Rule 67.91 in the
Administrative Code. See Tex. Gov=t Code ' 815.511(a) (West Supp. 2002); 34 Tex. Admin.
Code ' 67.91 (2001). We will therefore specifically analyze the Board=s compliance under section
815.511(a) and Rule 67.91.




                                                   8
              STATUTORY DEFINITION OF OCCUPATIONAL DISABILITY

                 In his third issue, Mr. Langford challenges the Board=s statutory definition of

occupational disability.8 We turn now to the first prong of that definition.


                        ADirectly Results from a Specific Act or Occurrence@

                 At issue in this appeal, as in Flores, is the causal relationship that must be established

between the traumatic incident (a specific act or occurrence determinable by a definite time and place) and

resulting disability when the claimant also has preexisting conditions that contribute to the disability. In

Flores, we affirmed the Board=s conclusion that the employee must prove that the at-work injury is the

primary cause of his disability. Flores, No. 03-01-00074-CV, slip op. at 26-7, at *44-45. But we

disapproved the Board=s additional rule that an employee must establish that an occupational trauma is the

direct cause of his disability Awithout regard to a preexisting mental or physical condition.@ We noted

that a traumatic injury often interacts with other factors to produce a disability and the plain language of the

statute does not mandate that the disability claimant be free from all preexisting conditions, including age-

related back degeneration. It does mandate, however, that when there are preexisting mental or physical

conditions, the claimant must establish that the traumatic incident is the primary cause of the disability. On


          8
                See Tex. Gov=t Code Ann. ' 2001.174(A), (D) (West 2000) (providing that a reviewing
court shall reverse or remand the case Aif substantial rights of the appellant have been prejudiced because
the administrative findings, inferences, conclusions, or decisions@ violate a statutory provision or are
affected by other error of law).




                                                       9
the other hand, if the medical evidence establishes that a preexisting condition is the primary cause of

incapacity, the disability does not directly result from a specific act or occurrence determinable by a definite

time and place.

                  The Board rejected the ALJ=s conclusion that Mr. Langford=s disability resulted from a

specific occurrence determinable by a definite time and place, saying that the ALJ had misinterpreted and

failed to apply the policy of the Board regarding preexisting conditions. The Board=s explanation for

rejecting the ALJ=s conclusion stated that in accordance with its policy and its interpretation of the statute, Aa

member has been required to present credible medical evidence that a specific occupational trauma is the

direct cause of the member=s disability without regard to a preexisting mental or physical condition.@

(Employees Ret. Sys. of Tex., Appeal of Calvin Langford=s Application for Occupational Disability

Benefits, Docket No. XXX-XX-XXXX (June 14, 2000) (order adopting proposed findings of fact and

conclusion of law and denying application for benefit) (emphasis added)). The Board further explained that

the ALJ, by relying on the Board=s earlier decisions that an age-related preexisting condition would not

disqualify an applicant, impermissibly expanded the statutory definition of an occupational disability.

                  Under the definition announced in Flores, the Board could reject the ALJ=s conclusion that

Mr. Langford=s disability directly resulted from a specific act or occurrence determinable by a definite time

and place only if it concluded, and the evidence supported a conclusion, that his disability was primarily

caused by a preexisting condition.


The Medical Evidence




                                                       10
                Mr. Langford=s treating physician, Dr. Jerjis J. Denno, diagnosed him as having a

lumbar herniated nucleus pulposus9 with lumbar spinal stenosis. 10 Mr. Langford had preexisting

degenerative conditions in his spine caused by the aging process, but these were mild to moderate in

nature. In response to a deposition question inquiring as to any and all preexisting conditions, Dr.

Denno indicated that Mr. Langford had Alumbar spondylosis with bulging discs,@ Aligamentum

hypertrophy, facet hypertrophy,@ and Aspinal stenosis@ and that the spondylosis and spinal stenosis at

the L4-5 vertebrae could make the herniated disc at L4-5 more symptomatic. Dr. Denno also noted

that such degenerative conditions were normal for a man of Mr. Langford=s age (he was fifty-one at

the time of his fall) and were part of a Anormal progressive condition (wear and tear of the spine).@

Dr. Denno further wrote in his notes after an office visit by Mr. Langford:


           9
                 Cartilagenous discs separate the vertebrae of the spinal column. See Merck Manual Home
Edition online, AChapter 69, Spinal Cord Disorders, Rupture Disk@ (Apr. 18, 2002)
<http://www.merckhomeedition.com/home.htm.> AEach disk has a strong outer layer and a softer inner
part that acts as a shock absorber to cushion the vertebrae during movement. If the disk degenerates, for
example following an injury or with aging, the inner part of the disk can bulge or rupture through the outer
layer (herniated disk).@ Id.
          10
                Spinal stenosis is a Anarrowing of the spinal canal, causing pressure on the sciatic nerve
roots and occasionally on the cord.@ Merck Manual of Geriatrics online, AChapter 50, Nonmetabolic
Bone Disease, Spinal Stenosis@ (Apr. 18, 2002) <http://www.merck.com/pubs/mm geriatrics/.>




                                                    11
       I explained to Mr. Langford that degeneration in the spine was a preexisting
       condition. I do feel that the herniated disc in his lumbar spine at L4-5 was a direct result of
       the work-related injury of August 17, 1998. Degeneration of lumbar discs is a fairly
       common finding in the adult population. It is usually asymptomatic and does not
       necessarily lead to a herniation. It was Mr. Langford=s fall at work that led to the
       herniation of the disc in his lumbar spine.


(Emphasis added.)

               Similarly, in his response to a deposition question that asked whether Mr. Langford=s

preexisting conditions caused his injuries following the slip-and-fall, Dr. Denno answered: ANo, the

preexisting condition was aggravated by the work injury.@ Dr. Denno also stated that these preexisting

conditions would not have prevented Mr. Langford from performing the normal duties of his job prior

to the accident. Moreover, Dr. Denno found that the workplace accident would probably have been

sufficient to permanently disable Mr. Langford even in the absence of the preexisting condition. Had

the accident not occurred, Dr. Denno expected that Mr. Langford probably would have been able to

continue in his job until he reached sixty-five years of age.

               While the ERS staff disputed the causal relationship between Mr. Langford=s accident

and his disability, it failed to present any evidence that would have controverted the evidence offered

by Mr. Langford. The staff presented the statement by the Medical Board in its certification of Mr.

Langford=s disability that Mr. Langford=s injury probably would not have been permanently disabling

in the absence of the preexisting conditions. The Medical Board did not refer to the evidence on

which it was basing its conclusion, nor do we find any evidence in the record that supports such a

conclusion. The ALJ found that Mr Langford=s spinal degeneration contributed to his permanent



                                                    12
incapacity in that it made the traumatic injury more symptomatic and less treatable; the ALJ also

found that the degeneration was caused only by the natural-aging process. Moreover, there is no

finding that Mr. Langford=s preexisting condition primarily caused his disability. Indeed, the medical

evidence in the record indicates that Mr. Langford=s preexisting spinal condition was mild to

moderate.

                The ERS staff also pointed to the opinion of the Medical Board that Mr. Langford=s

obesity played a role in causing his disability. Although the Medical Board included Amorbid obesity@

among the causes of Mr. Langford=s incapacity, it did not refer to any specific evidence supporting the

causal relationship between his weight and his disability. Moreover, in response to a specific question

on the certification form inquiring as to whether the traumatic incident aggravated a preexisting

condition, the Medical Board referred only to the degenerative disc condition. While there is a

reference to Mr. Langford=s obesity in his medical records, there is no indication that Mr. Langford=s

weight was a factor in causing his incapacity. Mr. Langford=s weight, then, could not have been the

Aprimary cause@ of his disability.

                The ALJ weighed the evidence presented by Mr. Langford, which included the

testimony of his treating physician, against the conclusory statements offered by the agency. The ALJ

specifically took note of this disparity in the evidence in his proposed decision:


        The ERS Medical Board found that Mr. Langford=s incapacity was caused by
        Aherniated lumbar disc, spinal stenosis, morbid obesity@ and that Adisc injury@ and
        spinal Adegenerative disease@ were preexisting at the time of Mr. Langford=s slip and
        fall. The nature and extent of analysis performed by the board in reaching these conclusions
        (which were set out in the [medical] board=s formal certification on Mr. Langford=s
        application) is [sic] not indicated in the record.


                                                    13
        On the other hand, Mr. Langford=s treating physician, Jerjis J. Denno, M.D., an
        orthopedic surgeon, testified by written deposition that the immediate cause of Mr.
        Langford=s disabilityCi.e., a herniated disc at the L4-5 levelCresulted directly from the
        incident on August 17, 1998, and would have occurred even in the absence of preexisting
        conditions. Dr. Denno acknowledged that his patient exhibited degenerative
        conditions that predated the accident-including lumbar spondylosis with bulging discs,
        ligamentum hypertrophy, and facet hypertrophy at L2-3, L3-4, L4-5, and L5-S1 levels.
         However, while these preexisting conditions made Mr. Langford=s herniated disc at L4-5
        more symptomatic and difficult to treat than would otherwise have been the case, they did not
        directly cause the patient=s disabling injury and, by themselves, would not have prevented him
        from undertaking his normal job activities.


(Emphasis added.)

                On appeal, the Board found that the ALJ=s conclusion that Mr. Langford=s disability directly

resulted from a specific act or occurrence determinable by a definite time and place Aerroneously

expands the definition of occupational disability to include a disability that is primarily caused by

degeneration that is the result of the natural-aging process.@11 We are unable to find the evidence that would

support this conclusion. In fact, the only evidence in the record reflects that Mr. Langford was fully capable

of performing his job duties prior to the traumatic slip-and-fall injury but was disabled after the injury.

                The Board rejected the ALJ=s conclusion of law that Mr. Langford=s injury directly resulted

from a specific act or occurrence determinable by a definite time and place. We hold that in rejecting this


        11
           Employees Ret. Sys. of Tex., Appeal of Calvin Langford=s Application for Occupational
Disability Benefits, Docket No. XXX-XX-XXXX (June 14, 2000) (order adopting proposed findings of fact
and conclusion of law and denying application for benefit). The Board=s statement appears in its explanation
immediately following its conclusion of law number four.




                                                     14
conclusion the Board erred first, because it erroneously applied its without-regard-to-preexisting-conditions

rule that disqualified Mr. Langford because he had an asymptomatic back condition that was aggravated by

his fall, and second, because it substituted its conclusion that Mr. Langford=s disability was primarily caused

by his degenerative back disease, when the evidence does not support such a conclusion. We hold that

the Board applied an erroneous interpretation of the statute in rejecting the ALJ=s conclusion that Mr.

Langford=s disability directly resulted from a specific act or occurrence determinable by a definite time

and place.


                          ARISK OR HAZARD PECULIAR TO A DUTY@

                  The Board rejected the ALJ=s conclusion that Mr. Langford=s disability directly resulted

from a risk or hazard peculiar to his duties of state employment on the ground that it was Abased on a

misunderstanding or misinterpretation of Board policy, specifically, that the risk of slipping and falling is a

common risk not peculiar to duties that arise from and in the course of state employment.@12 We have held

that the Board=s interpretation of this prong of the statute is inconsistent both with the statute and

with our decision in Bond v. Employees Retirement System, 825 S.W.2d 804 (Tex. App.CAustin 1992,

writ denied). See Flores, No. 03-01-00074-CV, slip op. at 32, at *52. In Flores, we rejected the

Board=s position that for a risk or hazard to be peculiar to a duty of state employment, the duty must

impose a risk or hazard that is somehow different from the risk assumed by other persons engaged in

the same activity. Id. at 31, at *52. We clarified that a risk or hazard is peculiar to a duty if that duty


             12
               Id. The Board=s statement appears in its explanation immediately following its conclusion of
law number five.


                                                      15
imposes a risk or hazard different from the normal or usual risks encountered by a person not engaged

in that duty. Id. at 31-2, at *52. Under the standard announced in Flores, the Board erred by

rejecting the ALJ=s conclusion that Mr. Langford=s disability directly resulted from a risk or a hazard

peculiar to his duties.

                Mr. Langford was injured while performing his duties in the food service area of the

Department of Criminal Justice where he was employed. The Department=s training manual addresses

the need for sanitation in this institutional dining area: the floors are to be scrubbed with soap or

other chemicals as often as necessary, at least daily.13 Recognizing that frequent cleaning would

enhance the hazard of slippery floors, the Department=s manual specifically instructs employees

regarding the prevention of Aslips, trips, and falls@: AAvoid excessive water when cleaning floors; [b]e

very careful when walking in the Food Service department, floors may be wet and slippery; [c]lean up

spills immediately; [k]eep walkways clean, clear and free of debris; [w]alk safely.@ The manual also

requires that Awet floor@ signs be posted immediately after cleaning and recommends that both

employees and inmates working in the food service area wear non-skid shoes, such as rubber boots.




           13
                 The manual did not come out until a month after Mr. Langford=s accident; at the
administrative hearing, however, Mr. Langford testified as to specific policies that were in force at the time
of his injury and on which he had received training. These same policies were later incorporated into the
manual.




                                                     16
                All employee and inmate workers in the facility had to be careful to avoid the frequent

risk posed by wet floors. As a manager who supervised compliance with sanitation and safety

requirements, however, Mr. Langford routinely had to put himself in harm=s way by walking into wet

areas to perform his duties. 14 At the hearing, he testified that he had developed a way of walking

through the kitchen and dining facility by taking cautious Ahalf-steps@ to protect himself. When he

slipped and fell, Mr. Langford was wearing skid-resistant shoes and walking with this half-step gait

toward the inmate on duty to tell him to post a Awet floor@ sign. Thus, Mr. Langford=s accident was

precisely related to his unique duties as a food-service manager in the facility. We hold that there is

abundant evidence in the record that the risk of falling on slippery floors was peculiar to Mr.

Langford=s employment duties. The risk of falling imposed by his duties as a food service manager

working on constantly wet floors is different from the normal or usual risk of slipping and falling. The

ALJ so found in his findings of facts and in his PFD. We hold that the Board applied an erroneous


           14
               The ALJ eloquently described the inherent risk of slipping and falling on wet floors that Mr.
Langford faced on the job:

           The requirements of Mr. Langford=s roving supervisory position, however, appear to
           have made him especially exposed to [the hazard of slippery floors]. In the process
           of monitoring the performance of food service workers (including, specifically, their
           compliance with sanitation and safety regulations), he was obliged to traverse
           frequently all parts of the large food preparation area. With the mopping up of
           random spills and the prescribed minimum daily scrubbing of all floors, Mr. Langford
           must have had to negotiate a constantly changing geography of slippery surfaces. But
           his job entailed not just the avoidance of these numerous and shifting wet areas; it
           often required him to move deliberately into such areas, as he did when he was
           injured, to assure that clean-ups were performed both effectively and with proper
           precautions. The difficulty of this task was undoubtedly increased by the inattentive,
           if not refractory, attitudes of some of the inmate workersBa circumstance that clearly
           contributed to the accident on August 17, 1998.

                                                    17
interpretation of the statute in reversing the ALJ=s conclusion of law that Mr. Langford=s injury

directly resulted from an inherent risk or hazard peculiar to a duty arising from his state employment.

               We sustain the third issue on appeal and hold that the Board applied an erroneous

interpretation of both prongs of the statute in deciding Mr. Langford=s appeal.


                                          CONCLUSION

               We hold that the Board acted arbitrarily and capriciously for the same reasons outlined

in Flores, most notably by its disregard for the ALJ=s determination of the adjudicative facts. For the

reasons set out in our opinion in Flores, we hold that the Board applied an erroneous interpretation of

the statute in rejecting the ALJ=s conclusions of law as to both prongs of the definition of

occupational disability. Therefore, we reverse the district court=s judgment and the Board=s order and

remand this cause to the Board for further proceedings consistent with this opinion.




                                               Bea Ann Smith, Justice

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

Reversed and Remanded

Filed: April 25, 2002

Publish




                                                  18
