

COURT OF APPEALS
EIGHTH DISTRICT OF
TEXAS
EL PASO, TEXAS
 



 
TOMAS GALINDO,
 
                           
  Appellant,
 
v.
 
YSLETA INDEPENDENT SCHOOL DISTRICT,
                           
  Appellee.


 
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                  No. 08-10-00351-CV
 
Appeal from the
 
205th Judicial
  District Court
 
of El
  Paso County, Texas
 
(TC#2007-5601)
 



 
 
                                                                  O
P I N I O N
Tomas Galindo appeals the summary judgment
granted in favor of his employer, Ysleta Independent School District (YISD).  In two issues on appeal, Appellant contends
that the trial court erred in affirming the Texas Department of
Insurance – Workers’ Compensation Division’s (TDI-DWC) ruling that he was not
entitled to receive temporary income benefits (TIB) because the donated sick
leave and catastrophic leave payments he received constituted post-injury
earnings (PIE) under Title 28, § 129.2 of the Texas Administrative Code (Rule
129.2).[1]  28 Tex. Admin. Code §
129.2 (West 1999).  We affirm.
                                 FACTUAL
AND PROCEDURAL BACKGROUND
In 2002, Appellant sustained an injury at work and despite his
injury continued to work until March 2004. 
In March 2004, and again in August 2005, Appellant missed work due to
his 2002 injury and in both years he filed for TIB from YISD, a self-insured
workers’ compensation carrier.  YISD
denied both his 2004 and 2005 TIB claims. 
In order to receive income during his absences from work, Appellant
applied to receive benefits from YISD’s donated sick leave program in 2004 and
its catastrophic leave bank in 2005.  Appellant
received donated sick leave benefits in 2004 and catastrophic leave benefits in
2005.
In 2006, the TDI-DWC determined that Appellant was injured while
in the course and scope of his employment in 2002.  A workers’ compensation contested case hearing
was held in 2007 to determine whether Appellant suffered a disability in 2004
and 2005 as a result of his 2002 work-related injury and to determine whether
the donated sick and catastrophic leave payments received by Appellant
constituted PIE under Rule 129.2.  The
hearing officer found that:  (1)
Appellant suffered from a disability in 2004 and 2005 due to his 2002
compensable injury; (2) Appellant voluntarily elected to use his donated sick
leave and catastrophic leave benefits and received his full wages during the
periods of his disability; and (3) the donated sick leave and catastrophic
leave benefit payments received by Appellant constituted PIE under Rule 129.2
and as such Appellant was not entitled to TIB, but remained entitled to medical
benefits for his compensable injury.




After exhausting his administrative remedies, Appellant filed suit
for judicial review.  YISD moved for a traditional
summary judgment on the grounds that there was no genuine issue of material
fact as to whether the TDI-DWC erred in its determination that sick leave and
catastrophic leave are PIE.  Appellant
appeals from the trial court’s grant of YISD’s motion for summary judgment.
DISCUSSION
In two issues on appeal, Appellant contends that
the trial court erred in granting summary judgment in favor of YISD because he
produced at least a scintilla of evidence showing that:  (1) he did not voluntarily elect to use the
donated sick leave and catastrophic leave benefits during the periods of his
disability; and (2) the donated sick leave and catastrophic leave benefits he
received were not PIE pursuant to Rule 129.2. 
28 Tex. Admin. Code § 129.2.
Standard of Review
The standard of review for a traditional
motion for summary judgment is well established.  See TEX. R. CIV.
P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49
(Tex. 1985).  A traditional motion for
summary judgment is reviewed de novo.  Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003). 
To succeed on a traditional summary judgment motion, YISD must
demonstrate that there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. 
Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.
2005).  If YISD establishes that there is
no genuine issue of material fact, the burden shifts to Appellant to show a
genuine issue of material fact.  See
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.
1979).  On review, we will accept as true
all competent evidence favorable to Appellant, indulge every reasonable
inference, and resolve any doubts in Appellant’s favor.  See Southwestern Elec. Power Co. v. Grant,
73 S.W.3d 211, 215 (Tex. 2002).
On review, we must give great deference to TDI-DWC’s
interpretation of its own rules and we narrow our review to determine whether
the TDI-DWC’s interpretation of Rule 129.2 is plainly erroneous or inconsistent
with the rule.  Pub. Util. Comm’n of Tex. v. Gulf States Util., 809 S.W.2d 201, 207
(Tex. 1991); Continental Cas. Co. v.
Rivera, 124 S.W.3d 705, 710 (Tex. App. – Austin 2003, pet. denied).
Analysis
Voluntariness of Appellant’s Election to
Use Leave Benefits
In
Issue One, Appellant contends that the trial court erred in granting summary
judgment to YISD because at least a scintilla of evidence established that his
use of donated sick leave and catastrophic leave benefits was not voluntary use
as required by Rule 129.2.  Rule 129.2
defines PIE in relevant part as “the value of any
full days of accrued sick leave or accrued annual leave that the
employee has voluntarily elected to use after the date of injury.”  28 Tex. Admin. Code §
129.2(c)(4).  Conversely, Rule 129.2(d)(2) states
that PIE shall not include “any accrued sick leave or accrued annual leave that
the employee did not voluntarily elect to use.” 28
Tex. Admin. Code § 129.2(d)(2).
Citing Rules 129.2(c)(4)
and (d)(2) of the Texas Administrative Code, Appellant argues that he did not
voluntarily elect to use donated sick leave or catastrophic leave because
during the periods of his disability, YISD denied him TIB, and as such, he had
no other option but to use those leave benefits; otherwise, he would have no
source of income.  In his affidavit in
response to YISD’s summary judgment motion, Appellant stated that, “Economically,
I had no choice but to accept leave benefits.”
            In response, YISD argued that Appellant’s election to use
donated sick leave and catastrophic leave benefits was voluntary because the
election was Appellant’s decision alone although motivated by his financial
situation.  At his deposition, Appellant
testified that his supervisor informed him of YISD’s sick leave donation
program and told him that he would have to go to YISD’s central office and apply
to see if he qualified for the program. 
Appellant further testified that he was not threatened by physical force
or a show of police authority when he signed up for the sick leave donation
program.  Similarly, when questioned
about his decision to apply to receive benefits from the catastrophic leave
bank, Appellant testified that the decision to apply was left up to the
individual, and that no one forced him to sign up for the catastrophic leave
benefits.  Appellant further explained
that the catastrophic leave benefits were something he had to secure himself
because YISD had disputed his compensable injury and he needed money to
maintain a living.
None of Appellant’s
arguments demonstrates the existence of a genuine issue of material fact on the
issue of whether Appellant voluntarily chose to use his donated sick leave and
catastrophic leave benefits.  Clear
Creek Basin Auth., 589 S.W.2d at 678-79. 
In fact, Appellant admits that no one forced him to sign up for either
benefit leave program and explains that it was his financial situation that made
him decide to use the donated sick leave and catastrophic leave benefits
available to him.  The record shows that
Appellant’s decision was an economic one based on the fact that he no longer
had any leave available to use at the time and because YISD denied his 2004 and
2005 TIB claims.  Because Appellant
failed to raise a genuine issue of material fact as to the voluntariness of his
election to use his donated sick leave and catastrophic leave benefits, we hold
that the trial court did not err in granting summary judgment in favor of
YISD.  Clear Creek Basin Auth.,
589 S.W.2d at 678-79.  Issue One is
overruled.
Meaning of the Term “Accrued” Under §
129.2(c)(4)
In
Issue Two, Appellant asserts that the trial court erred in granting summary
judgment to YISD because at least a scintilla of evidence established that the donated
sick leave and catastrophic leave benefits received by him were not properly characterized
as PIE because the leave benefits were not “earned” or “accrued” sick or annual
leave as set forth in Rule 129.2.
Rule
129.2 concerns an injured employee’s entitlement to TIB.  Id.  In relevant part, Rule 129.2(c)(4) provides that PIE shall include, but not be limited to “the value of any full days of
accrued sick leave or accrued annual leave that the
employee has voluntarily elected to use after the date of injury.”  28 Tex. Admin. Code §
129.2(c)(4).  The statute does not define
the terms “accrued sick leave” or “accrued annual leave” nor does it mention
how the leave has to be accrued or require that the leave be accrued by the
employee personally.  It merely provides
that PIE be accrued sick or annual leave that is used voluntarily.  Id.
Appellant contends that his donated sick
leave and catastrophic leave benefits were not “earned” or “accrued” sick or
annual leave as required by Rule 129.2(c)(4) because the benefits included:  (1) donated sick leave from other employees; and
(2) catastrophic leave he purchased.   In essence, Appellant argues that the benefits
he received were not “accrued” leave because they were not earned by him
personally and they were not connected to his employment.  YISD argues that the donated sick leave and
catastrophic leave benefits it paid to Appellant constitute PIE because the
donated sick leave benefits are “accrued” sick leave as required by Rule 129.2.
YISD’s leave policy states that the purpose
of its Special “Life Threatening Illness” Plan is to “establish procedures and
requirements under which the unused accrued local leave of a full-time employee
may be contributed to a designated full-time employee who needs such leave
because of a life threatening illness.”  “Local
leave” is a leave program for YISD employees through which they can elect to
use leave for personal illness, the death or illness of an immediate family
member, and other defined situations.  The
policy further clarifies that the only way YISD employees can make a
contribution to other employees through this plan is by donating their unused,
accumulated sick leave.
YISD’s leave policy also states that the
purpose of its catastrophic leave bank is “to provide sick leave to contributors
to the bank after their accumulated sick leave has been exhausted and more
specifically, to provide such leave from the bank in the case of a catastrophic
illness . . . of the employee . . . .” 
The catastrophic leave bank is a voluntary program available to
full-time YISD employees who have at least one day of accumulated sick
leave.  An employee wishing to
participate in the catastrophic leave bank must contribute one day of
accumulated local leave to the bank.  At
his deposition, Appellant agreed that he contributed one day of accumulated
local leave to the catastrophic leave bank in January 2005 just in case of an
emergency.  He also testified that
signing up for the catastrophic leave bank was left up to the individual and
was an option program available to employees.
Based on the record presented, it is
undisputed that Appellant could only have received donated sick leave benefits in
2004 from YISD’s Special Life Threatening Illness Plan if the donated leave was
unused and accrued.  Similarly, the
evidence shows that Appellant could only have used and received catastrophic sick
leave benefits in 2005 by contributing one day of his accumulated sick leave to
the catastrophic leave bank.  Therefore, Appellant’s
argument that the benefits are not accrued leave because they are not tied to
his employment is meritless because Appellant’s eligibility to participate in
and benefit from YISD’s donated sick leave and catastrophic leave plans arise
only because of his status as a YISD employee.
Accordingly, the donated sick leave and
catastrophic leave payments made to Appellant were properly found to constitute
accrued sick leave under Rule 129.2.  See 28 Tex. Admin. Code §
129.2(c)(4).  Appellant only could have
participated and received donated sick leave under YISD’s leave policy by
virtue of the donated sick leave benefits being unused and accrued sick leave
of another YISD employee.  Likewise,
Appellant was only eligible to receive catastrophic leave benefits because he chose
to donate one day of his unused, accrued sick leave to the catastrophic leave
bank.
Giving deference to TDI-DWC’s interpretation
of its own rule, we conclude that its determination that donated sick leave and
catastrophic leave benefits are PIE was not plainly erroneous or inconsistent with rules of the
Texas Administrative Code.  See 28 Tex. Admin. Code §
129.2; Gulf States Util., 809 S.W.2d at
207; Rivera, 124 S.W.3d at 710.  Consequently, the
trial court did not err in granting summary judgment for YISD on the ground
that the donated sick leave benefits and catastrophic leave benefits constitute
PIE under Rule 129.2.  28 Tex. Admin. Code § 129.2(c)(4).  Issue
Two is overruled.
CONCLUSION
We affirm the trial court’s judgment.
 
                                                                        GUADALUPE
RIVERA, Justice
August 22, 2012
 
Before McClure, C.J., Rivera, J., and Antcliff, J.




[1]
 TIB compensate an injured employee for
lost wages during the time of the compensable disability.  28 Tex.
Admin. Code § 129.2(a).  An
employee’s lost wages are calculated by taking the difference between his gross
average weekly wage (AWW) and his PIE. 
28 Tex. Admin. Code §
129.2(b).  If the employee’s PIE equals
or is greater than the employees AWW, he has no lost wages.  Id.


