

Opinion on rehearing issued January
12, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-09-00648-CV
———————————
Terrica Barnes as Next Friend of Kainan Cooper, Appellant
V.
United
Parcel Service, Inc., Appellee

 

 
On Appeal from the 164th District Court
Harris County, Texas

Trial Court Case No. 2008-54568
 

 
OPINION ON REHEARING
          Appellee United Parcel Services, Inc.
filed a motion for rehearing of our opinion issued on June 23, 2011.  Appellant Terrica
Barnes filed a response.  We grant
rehearing and withdraw our opinion and judgment of June 23, 2011, issuing the
following in their stead.  See Tex.
R. App. P. 19.1(b).  Our disposition of the appeal remains
unchanged.
          Nathaniel
Cooper suffered a heart attack and died on the job while employed by United
Parcel Services, Inc.  A workers’
compensation claim was filed by Cooper’s fiancée, Terrica
Barnes, on behalf of their son, Kainan.  After Cooper’s injury was determined to be
not compensable for purposes of workers’ compensation, Barnes filed suit
against UPS, alleging gross negligence. 
UPS contends that the claim is barred by res judicata
and collateral estoppel, and the trial court granted
summary judgment against Barnes on those grounds.  Because we conclude that the issues decided
by the Department of Workers’ Compensation are not identical to those presented
in this action for gross negligence, we reverse and remand for further
proceedings.
Background
          Nathanial Cooper was
diagnosed at a young age with a congenital heart block.  He underwent numerous heart surgeries and had
four pacemakers.  He also suffered
permanent heart damage from malfunctioning pacing wires.
Cooper was employed by UPS as a
supervisor.  He worked in an
un-air-conditioned warehouse in Houston and had been placed on light duty
because of his heart condition and a recent cardiac event.  On June 3, 2005, Cooper complained of feeling
dizzy and collapsed.  He suffered a heart
attack and was later pronounced dead. 
The medical examiner determined that he died from heart complications.
          Terrica Barnes, Cooper’s fiancée and mother of his infant
son, filed a claim under the Texas Workers’ Compensation Act as next friend of
the child.  The hearing officer denied
the claim, finding that Cooper’s “work was not a substantial contributing
factor to the June 3, 2005 cardiac arrest but rather it was the natural
progression of a preexisting heart condition” that caused his death.  The officer ultimately held that Cooper’s
heart attack was not a compensable injury under the Act.  Barnes did not appeal, and the decision concerning
workers’ compensation benefits became final. 
She then filed a wrongful death lawsuit, alleging that UPS was grossly
negligent in its failures to install an appropriate ventilation system and to
implement adequate procedures to protect employees from exposure to high
temperatures.
          UPS
filed a motion for summary judgment arguing that collateral estoppel
and res judicata preclude litigation of the gross
negligence claim.  It argued that the
issue of whether Cooper’s working conditions caused his heart attack had
already been litigated before the Department of Workers’ Compensation and that
Barnes’s gross negligence claim was barred because it was based on the same
facts that had been determined during the DWC hearing.  Barnes argued that her claim was not barred
because the Texas Constitution and section 408.001(b) of the Texas Labor
Code protect the right of an heir or surviving spouse to recover exemplary
damages for the death of an employee whose death is caused by the employer’s
gross negligence.  She further argued
that collateral estoppel did not apply because the DWC decision involved
different questions of fact and law from those at issue in this lawsuit.
          The
trial court granted the motion for summary judgment, and Barnes filed this
appeal.  On appeal, Barnes contends that
the DWC’s prior compensability determination has no impact on her ability to
assert a separate claim against UPS for gross negligence.  She asserts that there is no relevant
precedent to support the proposition that the principles of res judicata and collateral estoppel
apply to decisions by the DWC.  And she
argues that even if they do apply generally, they are not applicable in this
case because the facts at issue here are different from those previously
litigated.
Analysis
I.                 
Standard of review
We review a trial court’s decision to grant a motion for
summary judgment de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  Under the traditional summary-judgment
standard the movant has the burden of showing that no genuine issue of material
fact exists and that it is therefore entitled to judgment as a matter of
law.  Tex.
R. Civ. P. 166a(c); Nixon
v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985).  A defendant moving for summary judgment must
conclusively negate at least one essential element of each of the plaintiff’s
causes of action or conclusively establish each element of an affirmative
defense.  Sci. Spectrum, Inc. v. Martinez, 941
S.W.2d 910, 911 (Tex. 1997).  In
deciding whether there is a disputed material fact issue precluding summary
judgment, evidence favorable to the nonmovant will be taken as true and every
reasonable inference must be indulged in favor of the nonmovant.  Nixon, 690 S.W.2d at 548–49.  Any doubts are resolved in the nonmovant’s
favor.  Id.  
II.              
Workers’ compensation claim
In its motion for summary judgment,
UPS argued that it was entitled to summary judgment on the basis of res judicata and collateral estoppel,
because the DWC non-compensability determination has preclusive effect in this
lawsuit.
The Texas Workers’ Compensation Act
provides the exclusive remedy and means of recovery for a covered employee who
is killed or injured while working for his employer.  Tex. Lab. Code Ann. § 408.001 (West 2006).  It does not, however, bar an action for
exemplary damages based on the employer’s intentional tort or gross
negligence.  Smith v. Atlantic Richfield Co., 927
S.W.2d 85, 87 (Tex. App.—Houston [1st Dist.] 1996, writ denied).  The Act “does not prohibit the recovery of
exemplary damages by the surviving spouse or heirs of the body of a deceased
employee whose death was caused by . . . the employer’s gross negligence.”  Tex. Lab. Code Ann § 408.001(b).[1]
Ordinarily, a claimant is entitled
to benefits if he demonstrates that he sustained a compensable injury.  A compensable injury is one “that arises out
of and in the course and scope of employment for which compensation is payable”
under the Act.  Id. § 401.011(10) (West Supp. 2011).[2]  A claimant must provide evidence of a
“sufficient causal nexus between the workplace accident” and the claimant’s
injury in order to receive benefits.  Flores v. Emps. Retirement Sys., 74 S.W.3d 532, 549
(Tex. App.—Austin 2002, pet. denied).  Determining whether an injury is
compensable involves a two-pronged test of whether the injury (1) occurred
in the course and scope of employment and (2) arose from employment.  State
Office of Risk Mgmt. v. Martinez, 300 S.W.3d 9, 12 n.6 (Tex. App.—San
Antonio 2009, pet. denied).  An injury
“arises out of” employment if the employee’s work or working conditions are
shown to be a producing cause of injury. 
See Transcon.
Ins. Co. v. Crump, 330 S.W.3d 211, 221 & n.5 (Tex. 2010) (citing Travelers’ Ins. Co. v. Peters, 14 S.W.2d
1007, 1008 (Tex. Comm’n App. 1929, holding approved),
vacated on other grounds, 17 S.W.2d
457 (Tex. Comm’n App. 1929)).  “Producing cause” is “defined as a
substantial factor in bringing about an injury or death, and without which the
injury or death would not have occurred.” 
Id. at 223.
To be compensable a workplace injury must be a producing
cause of impairment, disability, illness, or death, but it need not be the sole
or primary cause.  See INA of Tex. v. Howeth,
755 S.W.2d 534 (Tex. App.—Houston [1st Dist.] 1988, no writ); Flores, 74 S.W.3d at 549.  There may be more than one producing
cause of an injury, incapacity, or death in a typical workers’ compensation
case, even when the claimant suffers from a pre-existing condition.  Marts v. Transp. Ins. Co., 111 S.W.3d 699, 703 (Tex. App.—Fort Worth 2003, pet.
denied); Tex. Workers’ Comp. Ins. Fund v. Simon, 980 S.W.2d 730, 736 (Tex. App.—San Antonio 1998, no pet.); Nat’l
Farmers Union Prop. & Cas.
Co. v. Degollado, 844 S.W.2d 892, 897 (Tex. App.—Austin 1993, writ denied); Tex.
Employers’ Ins. Ass’n v. Charles, 381 S.W.2d 664, 668 (Tex. Civ.
App.—Texarkana 1964, writ ref’d n.r.e.);
see also Flores, 74 S.W.3d at 549.  If
a claimant establishes that his work was a producing cause of his injury, he
has satisfied his burden of proof on the causation issue and is entitled to
receive benefits, unless the insurer establishes a defense to liability.  See Tex. Lab. Code Ann. §§ 406.031, 410.303 (West 2006); Degollado, 844 S.W.2d at 896–97.
When an employee dies as a result
of a heart attack, however, compensability is determined under section
408.008.  It is not sufficient for a
claimant to establish merely that his injury arose out of and in the course and
scope of employment.  Rather, the
complainant must prove that:
(1)            
the attack can be identified as:
 
(A)          
occurring at a definite time and place; and
 
(B)           
caused by a specific event occurring in the course and scope of the
employee’s employment;
 
(2)            
the preponderance of the medical evidence regarding the attack indicates
that the employee’s work rather than the natural progression of a preexisting
heart condition or disease was a substantial contributing factor of the attack;
and
 
(3)            
the attack was not triggered solely by emotional or
mental stress factors, unless it was precipitated by a sudden stimulus.
 
Tex. Lab.
Code Ann. § 408.008
(West 2006).  Under
this statute a heart attack may be compensable even if the employee suffers
from a pre-existing heart condition.  But
a heart attack is only compensable when the preponderance of the medical
evidence establishes that the work-related conditions, in comparison to the
other factors leading to the claimant’s heart attack, outweigh the pre-existing
heart condition as a producing cause.  See Tex. Lab.
Code Ann. § 408.008(2);
see also Transco. Ins.
Co. v. Smith, 135 S.W.3d 831, 837 (Tex.
App.—San Antonio 2004, no pet.) (holding
that work-related conditions must be greater factor); Div. Workers’ Comp., Appeal
No. 92115, 1992 WL 12567118, at *5 (1992). 
In deciding whether a heart attack is compensable, the hearing officer
must compare or weigh the conditions leading to the incident, including the
conditions of employment and the pre-existing medical condition of the
employee.  See Div. Workers’ Comp., Appeal No. 031786, 2003 WL 22378848, at *1
(Aug. 20, 2003).  Additionally, it is not
sufficient for an employee’s work to have been merely a contributing factor or
a producing cause; instead, the work must have been a “substantial contributing
factor of” the heart attack.  Smith, 135 S.W.3d at 836;
see
Div. Workers’ Comp., Appeal No. 91009, 1991 WL 335020, at *6 (Sept. 4, 1991).  Both the DWC, the agency charged with
determining compensability in the first instance, and the Fourth Court of
Appeals have interpreted the substantial-contributing-factor requirement to
mean that the employee’s work, “rather than” the natural progression of any
underlying heart condition or disease, must be the greater factor.  Div. Workers’ Comp., Appeal No. 031786, at
*1; Div. Workers’ Comp., Appeal No. 91009, at *5; see also Smith, 135 S.W.3d at 837.
          In
this case, the DWC hearing officer reviewed all of the medical data and other
evidence submitted by the parties and concluded that Cooper did not sustain a
compensable heart attack.  Based on the
medical evidence in the autopsy report and in the reports submitted by two
physicians who reviewed Cooper’s case, the hearing officer found that “although
the heat at work was speculated to be a possible factor,” he could not conclude
that the conditions at work were a “substantial contributing factor” causing Cooper’s
death under section 408.008.  In his
conclusions of law, the hearing officer stated that “Cooper’s work was not a
substantial contributing factor to the June 3, 2005 cardiac arrest but rather
it was the natural progression of a preexisting heart condition.”  The hearing officer ultimately concluded that
Cooper’s heart attack was not a compensable injury because his work was not a
substantial contributing factor.
Based on the hearing officer’s
compensability determination, UPS argued in its summary-judgment motion that
Barnes’s gross negligence claim was precluded by the prior finding.  Specifically, UPS asserted that Barnes’s
gross negligence claim was collaterally estopped
because the issue of whether “UPS caused Mr. Cooper’s death” had
previously been litigated before and determined by the DWC.  UPS also argued that all of the elements of
res judicata were present and that Barnes’s gross
negligence claim was barred because of the adverse finding on the causation
issue.  Barnes argues on appeal that res judicata does not apply to this claim because the right of
a surviving heir to seek exemplary damages against a grossly negligent employer
is protected by the Texas Constitution and by statute.  She further contends that collateral estoppel
does not apply because her burden of causation at the DWC hearing was higher
than it is for her gross negligence claim. 
A.              
Res judicata
Res judicata
is a generic term for the related concepts of claim preclusion (res judicata) and issue preclusion (collateral estoppel), and
it must be pleaded as an affirmative defense. 
Tex. R. Civ. P. 94; see Barr v. Resolution Trust Corp., 837
S.W.2d 627, 628 (Tex. 1992).  Res judicata prevents the re-litigation of a claim or cause of
action that has been finally adjudicated in a prior lawsuit.  Barr, 837 S.W.2d at 628; Smith
v. Brown, 51 S.W.3d 376, 379 (Tex. App.—Houston [1st Dist.] 2001, pet.
denied).  For res judicata to apply, the defendant must show that: (1) there
is a prior final judgment on the merits by a court of competent jurisdiction;
(2) the parties in the second action are the same or in privity
with those in the first action; and (3) the second action is based on claims
that were or could have been raised in the first action.  Igal v. Brightstar
Info. Tech. Grp.,
Inc., 250 S.W.3d 78, 86 (Tex.
2008); Dardari v. Tex. Commerce Bank Nat’l Ass’n, 961 S.W.2d 466, 470 (Tex. App.—Houston [1st
Dist.] 1997, no pet.).  Res judicata does not
operate as a bar to litigation when the second claim could not be raised in the
previous litigation.  See Abbott Labs. v. Gravis, 470 S.W.2d
639, 642 (Tex. 1971); Voskamp v. Arnoldy,
749 S.W.2d 113, 126 (Tex. App.—Houston [1st Dist.] 1987, writ denied).
UPS contends that the trial court correctly granted
summary judgment on res judicata grounds.  To support its position, UPS relies on Igal v. Brightstar
Information Technology Group, Inc., 250 S.W.3d 78 (Tex. 2008).  In Igal, the Texas Supreme Court considered for the first time
whether res judicata should be applied to final
decisions by the Texas Workforce Commission. 
Igal,
250 S.W.3d at 86.  Ultimately, the Court
concluded that a final administrative order has preclusive effect in a
subsequent lawsuit when a claimant under the Payday Law elected to utilize the
administrative process rather than exercise a right of relief under the common
law.  Id. at 88.  But the reasoning in Igal does not dictate the outcome in this case because the gross negligence
action is not a claim that could have been raised in the DWC proceeding.[3]  For an employee covered by workers’
compensation insurance, the Act provides the exclusive remedy for recovery of
benefits for the death of the employee, except to the extent exemplary damages
may be recovered by the surviving spouse or heirs of the body of a deceased
employee whose death was caused by the employer’s intentional act or omission
or the employer’s gross negligence.  See Tex.
Lab. Code Ann. § 408.001.  A claim by the surviving spouse or
heirs of a deceased employee for exemplary damages based on the employer’s
gross negligence cannot be remedied through the administrative process
established by the Act.  See id. 
A claim for exemplary damages may only be pursued in a subsequent
lawsuit.  See Wright v. Gifford-Hill & Co., 725 S.W.2d
712, 713–14 (Tex. 1987).
UPS further contends that because Barnes’s second lawsuit involves the
same set of facts as those addressed in the DWC proceeding, the trial court
correctly concluded that the doctrine of claim preclusion bars her gross
negligence claim.  As discussed above,
the issue to be determined by the DWC in a heart attack compensability case was
whether the preponderance of the medical evidence indicates that the employee’s
work rather than the natural progression of a preexisting heart condition or
disease was a substantial contributing factor. 
The issue to be determined for the gross negligence claim is whether
UPS’s conduct involved an extreme degree of risk and whether it was aware of or
acted with conscious indifference to that risk. 
See Transp. Ins. Co. v. Moriel,
879 S.W.2d 10, 23 (Tex. 1994).  Although the issues in this lawsuit do involve the same set of facts,
Barnes could not raise her gross negligence claim before the DWC, and therefore
her claim was not precluded in the subsequent suit.  Accordingly, we hold that the trial court
erred in granting summary judgment on claim preclusion grounds.
B.              
Collateral estoppel
The doctrine of collateral estoppel, also known as issue
preclusion, “precludes relitigation of ultimate issues of fact actually
litigated and essential to the judgment in a prior suit.”  Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 801 (Tex.
1992). 
See also Barr, 837 S.W.2d at 628; Bonniwell v. Beech
Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984); Restatement
(Second) of Judgments
§ 27 (1982) (“When an issue of fact or law is actually litigated and
determined by a valid and final judgment, and the determination is essential to
the judgment, the determination is conclusive in a subsequent action between
the parties, whether on the same or a different claim.”).  “The
doctrine of collateral estoppel . . . is designed to promote judicial
efficiency, protect parties from multiple lawsuits, and prevent inconsistent
judgments by precluding the relitigation of issues.”  Sysco
Food Servs., Inc. v. Trapnell,
890 S.W.2d 796, 801 (Tex. 1994) (citing Lytle
v. Household Mfg. Inc., 494 U.S. 545, 553, 110 S. Ct. 1331, 1337
(1990)).  A party asserting the doctrine
must prove that: (1) the
facts sought to be litigated in the second action were fully and fairly
litigated in the first action; (2) the
facts were essential to the judgment in the first action, and (3) the party against whom collateral
estoppel is sought was a party in the first action.  Eagle Prop., Ltd. v. Scharbauer, 807
S.W.2d 714, 721 (Tex. 1990); Houtex Ready Mix
Concrete & Materials v. Eagle Const. & Envtl. Servs., L.P., 226 S.W.3d 514, 519 (Tex. App.—Houston [1st
Dist.] 2006, no pet.).  Collateral estoppel does not extend to
an issue that was previously determined but unessential to a prior
judgment.  See Bonniwell,
663 S.W.2d at 818–19 (holding that collateral estoppel did not preclude
relitigation of issue that was previously determined but unessential to prior
judgment); see also 18 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 4421 (2d ed. 1987) (“Issue
preclusion attaches only to determinations that were necessary to support the
judgment entered in the first action. . . .  A jury’s special verdict, for instance, may
resolve matters of fact that are then found irrelevant to the controlling legal
issues; in such circumstances the special verdict does
not preclude the same matters of fact in later litigation.”).
UPS argues that we should affirm the trial court’s
judgment because the facts sought to be litigated were fully and fairly
litigated in the DWC hearing.  UPS argues
that the ultimate issue of whether Cooper’s work caused his heart attack has
already been decided.  Conversely, Barnes
argues that the DWC proceeding imposed a higher causation burden than that
which is imposed in a gross negligence lawsuit and that the causation issue has
not been fully and fairly litigated.  The
question, therefore, is whether the underlying causation issues decided by the
hearing officer in the DWC compensability determination are identical to the
causation issues to be decided in this lawsuit. 
See Bonniwell,
663 S.W.2d at 818. 
Both the DWC and the Fourth Court of Appeals have considered the meaning
of “substantial contributing factor” within section 408.008, but we are unaware
of any decision that has considered whether there is a meaningful distinction
between the plaintiff’s burden on the issue of causation under section 408.008 and the causation burden
a plaintiff must satisfy in an ordinary claim for negligence or gross
negligence.  See Smith, 135 S.W.3d at 836–37.
At the DWC hearing, Barnes was required to prove
that: (1) Cooper’s heart attack occurred at a definite time
and place and was caused by a specific event; (2) that his work rather
than the natural progression of his preexisting condition was a substantial
contributing factor of the attack; and (3) the attack was not triggered
solely by emotional or mental stress factors. 
Tex. Lab.
Code Ann. § 408.008.  The hearing officer determined that the
attack occurred at work, at a definite time and place, and was not triggered
solely by emotional or mental stress factors. 
The compensability of the heart attack therefore turned on the hearing
officer’s finding that Cooper’s work was not a substantial contributing factor
to his death.  In making this
determination, the hearing officer was required to evaluate and compare relative
to other factors the extent to which Cooper’s work conditions and his
pre-existing heart condition contributed to his death.  Div. Workers’ Comp., Appeal No. 031786, at
*1; Div. Workers’ Comp., Appeal No. 941034, 1994 WL 541008, at *3 (Sept. 14,
1994); Div. Workers’ Comp., Appeal No. 92115, at *5; Div. Workers’ Comp.,
Appeal No. 91009, at * 5.  In order for
the hearing officer to find that Cooper’s heart attack was a compensable
injury, Barnes had to demonstrate by a preponderance of the medical evidence
that Cooper’s work, rather than his heart condition, was a greater factor.  Div. Workers’ Comp., Appeal No. 031786, at
*1.  The hearing officer
stated that:
The
credible medical evidence . . . is that the natural progression of a
preexisting heart condition was the precipitating factor in [Cooper’s heart
attack], and that although the heat at work was speculated to be a possible
factor, other factors could not be ruled out such that the hearing officer
concludes that medically the conditions at work were not a substantial
contributing factor. . . .
 
The hearing officer thus recognized that the heat
and working conditions may have played a role in causing Cooper’s heart attack,
but he could not conclude that the work was a substantial contributing factor
and therefore held that Cooper’s heart attack was not compensable.[4]
This lawsuit
and the issues to be decided in this case are different from those decided by
the DWC.  Here, Barnes must prove by
clear and convincing evidence that Cooper’s death was proximately caused by
UPS’s gross negligence.  See Tex.
Civ. Prac. & Rem. Code Ann. §§ 41.001–003 (West 2008 & Supp. 2011).  Gross negligence is defined as a negligent act
or omission: (1) “which when viewed objectively from the standpoint of the
actor at the time of its occurrence involves an extreme degree of risk,
considering the probability and magnitude of the potential harm to others”; and
(2) “of which the actor has actual, subjective awareness of the risk involved,
but nevertheless proceeds with conscious indifference to the rights, safety, or
welfare of others.”  Id. § 41.001(11); see also Moriel,
879 S.W.2d at 23.  A plaintiff may establish gross negligence by
proving that an actor made a decision in the face of an extreme degree of risk
to another and without regard to the consequences that resulted in harm to the
other person.  Williams v. Steves
Indus. Inc., 699 S.W.2d 570, 573 (Tex. 1985); Trevino v. Lightning Laydown, Inc., 782
S.W.2d 946, 949 (Tex. App.—Austin 1990, writ denied).  In a gross negligence lawsuit, proof of
proximate cause requires the plaintiff to show that the harm resulting from the
defendant’s act or omission was foreseeable and that the act or omission was a
cause-in-fact of the plaintiff’s injury. 
See, e.g., Columbia Med. Ctr. of Las Colinas, Inc. v.
Hogue, 271 S.W.3d 238, 246 (Tex. 2008).  Cause-in-fact is established when the act or
omission is a substantial factor in bringing about the harm and without which
the harm would not have occurred.[5]  See id.  Because there can be more than one
cause-in-fact, a plaintiff need only prove that the defendant’s conduct was “a”
cause of injury, not “the” cause or “the greater” cause.  See Lee
Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001); McClure v. Allied Stores of Tex., Inc.,
608 S.W.2d 901, 903 (Tex. 1980); see also
Price v. Divita, 224 S.W.3d 331, 336–37 (Tex.
App.—Houston [1st Dist.] 2006, pet. denied).
In
contrast, the causation burden imposed by section 408.008 and applied by the
hearing officer requires the claimant to show, by a preponderance of the
medical evidence, that work rather than the natural progression of a
preexisting heart condition was a substantial contributing factor.  Div. Workers’ Comp., Appeal No. 941034, at
*3.  As such, a claimant’s causation
burden under section 408.008, to the extent there is a comparative
element, is different from that of a plaintiff suing for gross negligence.  See id.
at *3; Div. Workers’ Comp., Appeal No. 91009, at *5.
The
difference is even clearer when the causation burden under section 408.008
is compared with the standard for proving causation for other workers’
compensation injuries.  In Transcontinental Insurance Company v. Crump,
330 S.W.3d 211 (Tex. 2010), the Texas Supreme Court addressed the “producing
cause” standard for proving causation in workers’ compensation claims.  330 S.W.3d at 221; see Tex. Lab.
Code Ann. § 401.011(10).  It held that producing cause is “defined as a
substantial factor in bringing about an injury or death, and without which the
injury or death would not have occurred.” 
Crump, 330
S.W.3d at 223.  Accordingly, a
claimant’s burden of proof on the issue of causation will ordinarily be the same
before the DWC as it would be under a common law negligence or gross negligence
claim.[6]  With respect to heart attacks, however, the
compensability determination requires a different and more difficult burden of
proof.  See Tex. Lab.
Code Ann. § 408.008; Div.
Workers’ Comp., Appeal No. 91009, at *5.  In interpreting this provision, the DWC
concluded that the legislature, by specifically providing for recovery in heart
attack situations, intended to “set forth new and more demanding standards for
compensability” when the alleged compensable injury is a heart attack.  See Div.
Workers’ Comp., Appeal No. 91009, at *5. 
As observed by the DWC, the statutory language requires a comparison or
weighing between the conditions leading to the heart attack.  Div.
Workers’ Comp., Appeal No. 031786, at *1. 
The phrase “rather than the natural progression of a preexisting heart
condition or disease” is not superfluous. 
Div. Workers’ Comp., Appeal No. 92115, at *5.  It indicates that the causation burden under
section 408.008 requires proof of more than two equally plausible causes of the
heart attack.  Id.
Whereas a plaintiff in a gross
negligence lawsuit can prevail if the fact finder concludes, among other
elements, that the defendant’s conduct was a cause in fact of the injury
(perhaps one among several), a heart attack is compensable under section 408.008
only after the hearing officer weighs the potential contributing factors and
concludes that work-related conditions contributed more to the heart attack
than any preexisting condition.  These
questions are not identical.  Because the
causation burden under section 408.008 involves different questions from those
in a gross negligence suit, we conclude that the causation issue was not fully
and fairly litigated during the DWC compensability hearing, and we hold that
the trial court erred in granting summary judgment on collateral estoppel
grounds.
Conclusion
          Because we
conclude that the trial court improperly granted summary judgment, we sustain
Barnes’s issue on appeal and reverse and remand to the trial court for further
proceedings.
 
 
                                                                             Michael
Massengale
                                                                             Justice
                                                                   
                                                                   
 
Panel consists of Chief Justice
Radack and Justices Massengale and Brown.
 




[1]        This
section gives effect to article XVI, section 26 of the Texas Constitution,
which provides that:
 
Every person, corporation, or company, that may commit
a homicide, through . . .  gross neglect,
shall be responsible in exemplary damages, to the surviving husband, widow,
heirs of his or her body, or such of them as there may be . . . .
 
          Tex. Const. art. XVI, § 26.
 


[2]        “‘Injury’ means damage or harm to the physical structure
of the body and a disease or infection naturally resulting from the damage or
harm.  The term includes an occupational
disease.”  Tex. Lab. Code Ann. § 401.011(26) (West Supp.
2011).  The “naturally
resulting from” language encompasses the “producing cause” standard.  Flores v. Emps. Retirement Sys., 74 S.W.3d 532, 549 (Tex. App.—Austin 2002, pet. denied)
(citing Tex. Indem.
Ins. Co. v. Staggs, 134 S.W.2d 1026, 1028–29 (Tex.
Comm’n App. 1940)).


[3]        Under the
Payday Law, a claimant may choose between two alternative remedial courses—a
common law remedy or a statutory remedy. 
Igal v. Brightstar
Info. Tech. Grp.,
Inc., 250 S.W.3d 78, 87 (Tex. 2008). 
The statutory right of action is cumulative.  Id.


[4]
              UPS’s motion for rehearing asserts that the DWC
hearing officer found as a factual matter that Cooper’s work was not even a
cause of his heart attack.  Although UPS
relies on several statements in the DWC decision, it focuses mainly on the
officer’s finding that “Nathaniel Cooper’s
work was not a substantial contributing factor to the June 3, 2005 cardiac
arrest but rather it was the natural progression of a preexisting heart
condition.”  UPS argues that given this
determination, the comparative element of the causation standard under § 408.008 “never came into play,”
and the DWC officer made a causation finding that is not materially different
than what the jury will have to make for a gross negligence claim.  UPS thus contends that Barnes’s claim is
barred by collateral estoppel because the DWC officer made a fact determination
negating the cause-in-fact element of a gross negligence claim.  Even if UPS has correctly interpreted the DWC
officer’s fact finding, such a fact finding would not preclude litigation of
the causation issue in a subsequent gross negligence suit because the finding
was not essential to the DWC officer’s decision.  The hearing officer only had to decide
whether the preponderance of medical evidence showed that work rather than the
preexisting heart condition was the greater factor.  See Tex. Lab. Code. Ann. § 408.008; Div. Workers’ Comp., Appeal No. 031786, 2003 WL
22378848, at *1 (Aug. 20, 2003); Div. Workers’ Comp., Appeal No. 91009, 1991 WL
335020, at *5 (Sept. 4, 1991); see also
Transco. Ins. Co. v. Smith, 135 S.W.3d 831, 837 (Tex. App.—San Antonio 2004, no
pet.).  Because this
alleged determination relied upon by UPS was not essential to the DWC’s ruling,
it does not preclude litigation of whether Cooper’s work was a cause-in-fact of
his heart attack in the gross negligence suit. 
See Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818–19
(Tex. 1984).


[5]        Even
though proximate cause also requires proof of foreseeability, we are only concerned with the
cause-in-fact aspect of the definition of proximate cause because that was the
only aspect of causation considered by the DWC. 
See Transcon.
Ins. Co. v. Crump, 330 S.W.3d 211, 223 (Tex. 2010) (“The element common to
both proximate cause and producing cause is actual causation in fact.  This requires proof that an act or omission
was a substantial factor in bringing about injury which would not otherwise
have occurred.” (quoting Prudential Ins.
Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995))).  The DWC only considers whether the work
conditions were a producing cause of injury, and the claimant need not
demonstrate that the death or disability was proximately caused by the
work-related injury.  Id. at 221 n.7.


[6]        In Crump, the plaintiff argued that
requiring workers’ compensation complainants to demonstrate that that the
employee’s work was a substantial factor in bringing about their injury imposed
a higher burden on claimants than had formerly been imposed.  Crump,
330 S.W.3d at 223–24.  The
Court disagreed: “We have always required in workers’ compensation cases a
showing of ‘unbroken causal connection’ between the compensable injury[, which arises out of and in the course and scope of
employment,] and the claimant’s injury or death,”  Id.
(citing Tex. Indem.
Ins. Co. v. Staggs, 134 S.W.2d
1026, 1030 (Tex. 1940)).
 


