                             NUMBER 13-07-017-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


PATRICK LACOUR,                                                            Appellant,

                                          v.

LANKFORD COMPANY, INCORPORATED,                                             Appellee.


  On appeal from the 148th District Court of Nueces County, Texas.



                                 OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
                    Opinion by Justice Benavides

      Appellant, Patrick LaCour, appeals from a final summary judgment rendered in favor

of appellee, Lankford Company, Inc. By four issues, LaCour argues that he complied with

the notice provisions and is entitled to reinstatement and backpay under the Longshore

and Harbor Workers’ Compensation Act. See 33 U.S.C. §§ 901-950. We reverse and

remand.
                                             I. Background

        LaCour was employed by Lankford Company as a sandblaster and painter. On

March 12, 2004, LaCour was working on an offshore drilling platform, sometimes known

as a “rig,” in the Gulf of Mexico. Lankford Company was a contractor hired to repaint the

rig.

        LaCour operated a jetblaster, which is a high-powered pressure washer. He alleges

that Lankford Company’s foreman, Howard Webb, increased the pressure on the jetblaster

without his knowledge. According to LaCour, the increased pressure caused the jetblaster

to recoil against his shoulder, knocking him off balance and almost knocking him off the

scaffold on which he was working. As a result, LaCour’s shoulders were severely injured.

That same day, LaCour notified his fellow crewmen and Webb that he was injured. On

March 14, 2004, LaCour was examined by medical personnel on the rig. It was determined

that LaCour needed further medical attention, so he was flown off the rig by helicopter.

        LaCour alleges that on March 15, 2004, he called Jim Lankford, the president and

CEO of Lankford Company, to give notice of his injury. LaCour was then terminated from

his employment on March 17, 2004, just a few days after his injury. LaCour alleges that

in the termination letter, Lankford stated that LaCour was not entitled to any medical or

unemployment benefits and that he was being terminated. The letter was signed by Jim

and Leon Lankford, the owners of Lankford Company.1

        LaCour filed a claim for workers’ compensation with the United States Department

of Labor on March 30, 2004. On April 5, 2004, LaCour’s attorney sent a letter to Jim


        1
          The letter does not appear in the record, but Lankford Com pany did not object to LaCour’s testim ony
as to the contents of the letter and apparently does not dispute that the letter was sent.

                                                      2
Lankford notifying him that LaCour had retained counsel to pursue a wrongful termination

claim. On May 18, 2005, LaCour filed suit against Lankford Company for wrongful

termination under the Longshore and Harbor Workers’ Compensation Act. See 33 U.S.C.

§ 948a. LaCour alleged that he was fired in violation of 33 U.S.C. section 948a because

he filed or attempted to file a claim for workers’ compensation.2

        While the suit was pending, LaCour was released to return to work on June 13,

2005. However, his doctor filled out a release form indicating that LaCour had a 6%

permanent disability. His doctor told him that he could only perform “light duty.” LaCour

admitted in his deposition that he could no longer perform pressure work, like sandblasting

or operating a jetblaster, or any other job that would put pressure on his shoulders. LaCour

appeared at Jim Lankford’s office on June 14, 2005 and requested employment, which was

refused.

        Lankford Company answered the lawsuit and then filed a combined motion for

traditional and no-evidence summary judgment. TEX . R. CIV. P. 166a(c), (i). First, Lankford

Company argued that LaCour failed to exhaust his administrative remedies by providing

notice of his claim to the deputy commissioner of the Secretary of Labor located in the

compensation district and by filing a claim with the deputy commissioner within one year

of the injury. See 33 U.S.C. §§ 912(a), 913(a). Lankford Company argued that after

receiving a claim, the deputy commissioner conducts an investigation and orders a hearing

on the matter, which would be required before any suit could be filed. Additionally,

Lankford Company argued that there was no evidence that LaCour had exhausted his


        2
            LaCour also alleged a cause of action under the Texas Labor Code, but he has not appealed the
trial court’s order granting sum m ary judgm ent as to that claim .

                                                   3
administrative remedies.

      Second, Lankford Company argued that LaCour is not entitled to a remedy under

33 U.S.C. section 948a because he is not “qualified to perform the duties of his

employment.”    See id. § 948a.       Lankford Company pointed to LaCour’s deposition

testimony as evidence that LaCour was not qualified to perform the duties of employment,

arguing that LaCour admitted that “there were no other positions that he knew of at

Lankford that he would actually be able to perform, such as a helper, brush painter, or

sander.” Lankford did not present testimony from anyone at the company explaining what

jobs were available at the company and the jobs’ duties. Lankford did not argue this point

as a no-evidence ground, but rather, asserted it as a traditional summary judgment ground.

      The trial court granted the motion for summary judgment without stating the grounds

for its ruling. This appeal ensued.

                                II. Standards of Review

      Lankford Company filed a combined traditional and no-evidence motion for

summary judgment. A no-evidence motion for summary judgment is "essentially a motion

for a pretrial directed verdict." Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581-82 (Tex.

2006). Once a no-evidence motion for summary judgment is filed, the non-moving party

must present evidence raising an issue of material fact as to the elements of the claim

challenged in the motion. Id. at 582. “We review the evidence presented by the motion

and response in the light most favorable to the party against whom the summary judgment

was rendered, crediting evidence favorable to that party if reasonable jurors could, and

disregarding contrary evidence unless reasonable jurors could not.” Id.



                                             4
       When reviewing a traditional summary judgment, we must determine whether the

movant met its burden to establish that no genuine issue of material fact exists and that

the movant is entitled to judgment as a matter of law. TEX . R. CIV. P. 166a(c); Sw. Elec.

Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678 (Tex. 1979). The movant bears the burden of proof in a

traditional motion for summary judgment, and all doubts about the existence of a genuine

issue of material fact are resolved against the movant. See Sw. Elec. Power Co., 73

S.W.3d at 215. We take as true all evidence favorable to the nonmovant, and we indulge

every reasonable inference and resolve any doubts in the nonmovant's favor. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

       We will affirm a traditional summary judgment only if the record establishes that the

movant has conclusively proved its defense as a matter of law or if the movant has

negated at least one essential element of the plaintiff’s cause of action. IHS Cedars

Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); Am.

Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Clear Creek Basin, 589 S.W.2d

at 678. Only when the movant has produced sufficient evidence to establish its right to

summary judgment does the burden shift to the plaintiff to come forward with competent

controverting evidence raising a genuine issue of material fact with regard to the element

challenged by the defendant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.

1999); see Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). A defendant

seeking summary judgment on an affirmative defense must conclusively prove all the

elements of the affirmative defense. Steel, 997 S.W.2d at 223; see TEX . R. CIV. P. 166a(b),



                                             5
(c). To accomplish this, the defendant-movant must present summary judgment evidence

that establishes each element of the affirmative defense as a matter of law. Ryland Group,

Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).

                     III. Compliance with 33 U.S.C. section 913(a)

       By his first issue, LaCour argues that the trial court erred by finding that (1) section

913(a) applied to his case, and (2) he failed to comply with section 913(a)'s filing

requirements. See 33 U.S.C. § 913(a). Section 913(a) provides:

       Except as otherwise provided in this section, the right to compensation for
       disability or death under this chapter shall be barred unless a claim therefore
       is filed within one year after the injury or death. If payment of compensation
       has been made without an award on account of such injury or death, a claim
       may be filed within one year after the date of the last payment. Such claim
       shall be filed with the deputy commissioner in the compensation district in
       which such injury or death occurred. . . .

Id.   LaCour argues that this provision only applies if the employee is seeking

“compensation for disability or death,” whereas he is seeking reinstatement and backpay

for wrongful termination.    See id. § 948a. We agree.

       When the language of a statute is clear and unambiguous, we must give the statute

its plain and ordinary meaning unless such a construction would lead to absurd results.

Cali v. Serv. Motors, Inc., 660 S.W.2d 814, 815 (Tex. 1983); see Burton v. Stevedoring

Servs. of Am., 196 F.3d 1070, 1072 (9th Cir. 1999). Section 913(a) clearly states that it

applies to a claim for “compensation for disability or death.” 33 U.S.C. § 913(a). Section

902(10) defines “disability” as

       incapacity because of injury to earn the wages which the employee was
       receiving at the time of injury in the same or any other employment; but such
       term shall mean permanent impairment, determined (to the extent covered
       thereby) under the guides to the evaluation of permanent impairment


                                              6
       promulgated and modified from time to time by the American Medical
       Association, in the case of an individual whose claim is described in section
       910(d)(2) of this title.

33 U.S.C.A. § 902(10). “Disability,” as defined by the statute, does not include termination

for seeking benefits for an injury. Id. Additionally, “death” is defined as a “death resulting

from an injury.” Id. § 913(11). LaCour was not seeking compensation for his physical

injury, nor did he seek death benefits.

       The only way that section 913(a) could apply to LaCour’s claim is if “injury” is

defined to include an injury for wrongful termination by the employer. “Injury” is defined as

       accidental injury or death arising out of and in the course of employment,
       and such occupational disease or infection as arises naturally out of such
       employment or as naturally or unavoidably results from such accidental
       injury, and includes an injury caused by the willful act of a third person
       directed against an employee because of his employment.

Id. § 902(2). At first glance, it may appear to some that the last clause of section 902(2)

could include wrongful termination by an employer. See id. However, “employer” is

separately defined as

       an employer any of whose employees are employed in maritime
       employment, in whole or in part, upon the navigable waters of the United
       States (including any adjoining pier, wharf, dry dock, terminal, building way,
       marine railway, or other adjoining area customarily used by an employer in
       loading, unloading, repairing, or building a vessel).

Id. § 902(4).

       “‘[W]here Congress includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.’” Russello v. United

States, 464 U.S. 16, 23 (1983) (quoting United States v. Bo, 472 F.2d 720, 722 (5th Cir.



                                              7
1972)). Had Congress intended the term “injury” to include an intentional act by the

employer because of the employment, it would have included the term “employer” within

section 902(2). See id. Instead, for example, the last clause of the definition of “injury”

was intended to include the situation where an employee is injured on the job by a

customer of the employer or by a random act of violence. See, e.g., Maryland Cas. Co.

v. Cardillo, 107 F.2d 959, 960 (D.C. Cir. 1939) (holding section applied where employee

was mugged on the job). Thus, we agree with LaCour that section 913 does not apply to

a claim for wrongful termination under section 948a.

        Lankford concedes that there are no cases that specifically address this issue, but

rather, it points to appeals from orders by the United States Department of Labor Benefits

Review Board granting or refusing to grant reinstatement and backpay for wrongful

termination. See Holliman v. Newport News Shipbuilding & Dry Dock Co., 852 F.2d 759,

760 (4th Cir. 1988); Geddes v. Benefits Review Bd. US Dep’t of Labor, 735 F.2d 1412,

1414        (D.C.   Cir.   1984).        We     believe     these     cases      are    distinguishable.

        In Holliman and Geddes, the employee was seeking both total disability pay and

reinstatement, which can sometimes lead to inconsistent awards. Holliman, 852 F.2d at

761 n.2; Geddes, 735 F.2d at 383.3 For example, if the employer contests the employee’s

allegation of total disability, the employer must prove that the employee could obtain

suitable alternate employment. Ledet v. Phillips Petroleum Co., 163 F.3d 901, 905 (5th Cir.

1998). This type of challenge is inconsistent with an employer’s challenge that backpay


        3
         Lankford also cites Gondolfi v. Mid-Gulf Stevedores, 621 F.2d 695, 696 (5th Cir. 1980). This case
apparently did not involve a claim for disability and for wrongful term ination, but it also does not discuss
whether a claim for wrongful term ination m ust go through the adm inistrative process. Accordingly, we are not
persuaded that it com pels us to affirm the district court’s sum m ary judgm ent.

                                                      8
and reinstatement are not available under section 948a because the employee cannot

perform the duties of employment. See 33 U.S.C. § 948a. Under these circumstances,

it would be prudent, although not required, to present a claim for wrongful termination along

with a claim for total disability in the same administrative proceeding. These cases do not

compel the conclusion that an administrative claim must be filed on a wrongful termination

claim before seeking relief in a district court.               We sustain LaCour’s first issue.4

                         IV. Compliance with 33 U.S.C. section 912

        By his third issue, LaCour argues that the trial court erred by finding that he failed

to comply with section 912(a), which provides:

        Notice of an injury or death in respect of which compensation is payable
        under this chapter shall be given within thirty days after the date of such
        injury or death, or thirty days after the employee or beneficiary is aware, or
        in the exercise of reasonable diligence or by reason of medical advice should
        have been aware, of a relationship between the injury or death and the
        employment, except that in the case of an occupational disease which does
        not immediately result in a disability or death, such notice shall be given
        within one year after the employee or claimant becomes aware, or in the
        exercise of reasonable diligence or by reason of medical advice should have
        been aware, of the relationship between the employment, the disease, and
        the death or disability. Notice shall be given (1) to the deputy commissioner
        in the compensation district in which the injury or death occurred, and (2) to
        the employer.

33 U.S.C.A. § 912(a). Lankford moved for traditional and no-evidence summary judgment

on this ground, arguing that there is no evidence that LaCour sent it notice that he was

pursuing a claim for wrongful termination and that he also failed to give notice to the deputy

commissioner. See id.5 We hold there is some evidence in the record that he provided

        4
          By his second issue, LaCour argues that he com plied with section 913(a), but we need not decide
the issue because we hold that he was not required to com ply. See T EX . R. A PP . 47.1.

        5
          Curiously, LaCour does not argue that this section does not apply to his claim although the sam e
logic em ployed under section 913 would likely also apply to section 912.

                                                    9
sufficient and timely notice, and Lankford Company did not conclusively establish that

LaCour did not send notice.

      LaCour was injured on March 12, 2004 and was terminated on March 17, 2004.

Assuming that section 912(a) applies to LaCour’s claim and runs from the earlier date of

his physical injury, he was required to send notice to Lankford Company and to the deputy

commissioner by April 11, 2004. See id. On April 5, 2004, LaCour’s attorney sent a letter

to Jim Lankford stating that he had been retained to pursue a wrongful termination claim

and that LaCour’s claim “is pending before the US Department of Labor.” Lankford

submitted this letter as part of its summary judgment evidence. See Binur v. Jacobo, 135

S.W.3d 646, 651 (Tex. 2004) (holding that evidence submitted by movant for no-evidence

summary judgment may be considered if it raises a fact issue). Lankford Company does

not dispute that it timely received this letter. Thus, this is some evidence that LaCour

timely sent notice to Lankford Company of his injury and of the fact that he was seeking

reinstatement and backpay.

      The analysis of LaCour’s notice to the deputy commissioner is more complex. The

record contains an LS-203 claim form from the United States Department of Labor filled

out by Patrick LaCour and submitted on March 30, 2004, well before the April 11 deadline.

This form is promulgated by the Department of Labor as the preferred method for filing a

claim for compensation and is available on the department’s website. See United States

Department       of    Labor     DLHWC       L o n g s h o re   Forms,   available     at

http://www.dol.gov/esa/owcp/dlhwc/ls-203.pdf (last visited Dec. 10, 2008).      The form

describes LaCour’s physical injury but does not mention his termination or any request for

backpay or reinstatement—the form does not provide any place for this information to be

                                           10
submitted.

        Lankford Company does not dispute that LaCour “filed for and received

compensation payments for this alleged injury.” In other words, Lankford Company does

not dispute that LaCour timely sent the LS-203 to the deputy commissioner. Lankford

Company, however, argues that the notice provided to the deputy commissioner was

insufficient because LaCour did not give the deputy commissioner notice of his claim for

wrongful termination. We disagree that this was required by section 912.

        Section 912 requires notice of an “injury” for which compensation6 is available under

the act. 33 U.S.C. § 912(a). As we outlined above, “injury” as defined by the act does not

include wrongful termination. See supra Part III. Thus, the LS-203 form used by LaCour

provided all the information required under the act. Lankford Company does not argue to

this Court, nor did it argue below, that the department uses a different type of form for a

wrongful termination claim. Accordingly, there is some evidence in the record that LaCour

gave notice to both Lankford Company and to the deputy commissioner within 30 days as

required by section 912, and this evidence raises a genuine issue of material fact.

Accordingly, we sustain LaCour’s third issue.

                V. Availability of Benefits under 33 U.S.C. section 948a

        Finally, by his fourth issue, LaCour argues that the trial court erred by holding that

he was not entitled to backpay and reinstatement because he can no longer fulfill the

duties of his former employment. See 33 U.S.C. § 948a. Lankford Company did not move



        6
         “Com pensation” is defined as “the m oney allowance payable to an em ployee or to his dependents
as provided for in this chapter, and includes funeral benefits provided therein.” 33 U.S.C. § 902(12).



                                                   11
for no-evidence summary judgment on this ground. Rather, it moved for traditional

summary judgment.

        Section 948a provides:

        It shall be unlawful for any employer or his duly authorized agent to
        discharge or in any other manner discriminate against an employee as to his
        employment because such employee has claimed or attempted to claim
        compensation from such employer, or because he has testified or is about
        to testify in a proceeding under this chapter. . . . Any employee so
        discriminated against shall be restored to his employment and shall be
        compensated by his employer for any loss of wages arising out of such
        discrimination: Provided, That if such employee shall cease to be qualified
        to perform the duties of his employment, he shall not be entitled to such
        restoration and compensation. . . .

33 U.S.C. § 948a. Lankford Company argues that the summary judgment evidence

establishes that LaCour would not be able to operate heavy, pressurized equipment as

required by his previous position, and that “LaCour himself acknowledged that there were

no other positions that he knew of at Lankford that he would actually be able to perform.”

        We hold that it was Lankford Company’s burden to conclusively prove, as an

affirmative defense, that LaCour was no longer able to perform the duties of a job at

Lankford, and LaCour’s testimony is not conclusive proof.

        Both parties concede that there are no cases construing section 948a’s requirement

that the employee be able to return to work.                      Applying other provisions under the

Longshore and Harbor Workers’ Compensation Act, however, courts have placed

evidentiary burdens on the employer for a number of reasons.7 First, the Longshore and


        7
            See, e.g., Ledet v. Phillips Petroleum Co., 163 F.3d 901, 905 (5th Cir. 1998) (holding that in a
proceeding for disability benefits, the burden is placed on the em ployer to show that the em ployee is not
entitled to a total disability determ ination because suitable alternative em ploym ent exists); Geddes v. Benefits
Review Bd. United States Dep’t of Labor, 735 F.2d 1412, 1417 (D.C. Cir. 1984) (holding that under section
948a, once the em ployee proves that the em ployer discrim inated against him or her and that the

                                                       12
Harbor Workers’ Compensation Act must be liberally construed in favor of the employee.

New Orleans (Gulfwide) Stevedores v. Turner, 661 F.2d 1031, 1038 (5th Cir. 1981).

Second, the Act specifically states that “[i]n any proceeding for the enforcement of a claim

for compensation under this chapter it shall be presumed, in the absence of substantial

evidence to the contrary . . . [t]hat the claim comes within the provisions of this chapter.”

33 U.S.C. § 920; see Turner, 661 F.2d at 1038. Finally, the employer is most likely to have

the evidence necessary to make such a showing. Geddes, 735 F.2d at 1418.

        The same considerations obtain here. Section 948a must be liberally construed,

and a claim for compensation must be presumed to come within its provisions unless there

is substantial evidence to the contrary. See 33 U.S.C. § 920; Turner, 661 F.2d at 1038.

The employee should not have to bear the burden of knowledge about every position

available at his former employer; rather, the employer has the best access to this

information. Geddes, 735 F.2d at 1418. For all these reasons, we hold that the employer

bears the burden to prove that the former employee is not entitled to reinstatement and

backpay because he cannot perform the duties of employment.

        Thus, Lankford Company had the summary judgment burden to conclusively

establish its affirmative defense. Rhone-Poulenc, Inc., 997 S.W.2d at 223; see TEX . R.

CIV. P. 166a(b), (c). Lankford Company relies on portions of LaCour’s deposition wherein

LaCour was questioned about jobs at Lankford Company and the jobs’ requirements.

Lankford Company argues that LaCour admitted that there were no jobs that he could

perform at Lankford Company. The evidence, however, is not as clear as Lankford


discrim ination was m otivated by anim us, the burden shifts to the em ployer to present controverting evidence).



                                                      13
Company claims. Rather, the evidence demonstrates that LaCour did not have knowledge

sufficient to state conclusively that there were no jobs at Lankford Company that he could

perform. A witness’s lack of knowledge of a fact does not conclusively prove that the fact

does not exist. See Llopa, Inc. v. Nagel, 956 S.W.2d 82, 89 (Tex. App.–San Antonio 1997,

writ denied).

       First, LaCour was asked about the “types of workers that Lankford Company

employed while [LaCour] was there.” (Emphasis added). LaCour then proceeded to

describe several positions at Lankford and admitted that he could not perform those

positions because of his disability. However, this line of questioning did not inquire about

the positions that were available on June 14, 2005 when LaCour returned to Lankford

Company seeking employment. In fact, LaCour testified that he was not sure what jobs

were available when he returned to Lankford Company seeking employment:

       Q:       What other jobs did Lankford Company have at that time that you were
                aware of that—that the type of workers that—

       A:       At what time?

       Q:       When you were there talking to Mr. Lankford.

       A:       I didn’t know which jobs he had going on because he’s got—he’s got
                jobs going offshore, and he’s got jobs down in the Valley. He’s got
                jobs in Houston. He’s got jobs here in Corpus Christi.

       Second, Lankford points to testimony from LaCour that it claims is an admission that

there was no job that he could have performed at Lankford. But when Lankford’s counsel

asked whether LaCour was aware of any jobs that existed, LaCour said he did not know:

       Q:       What job could you have done for Lankford Company that was the
                type of job that you knew that they had, type of worker?



                                            14
       A:     None.

              ....

       Q:     What job could you have done for Lankford Company when you went
              to talk to Mr. Lankford on June 14th of 2005?

       A:     None.

       If it was true that no jobs were available that LaCour could perform, Lankford could

have relied on a corporate representative to explain the different positions available, the

job requirements, and whether LaCour could perform those requirements. Under the

circumstances, Lankford Company’s reliance on LaCour’s testimony did not satisfy its

burden to conclusively establish its affirmative defense. See Llopa, Inc., 956 S.W.2d at

89. Accordingly, we sustain LaCour’s fourth issue.

                                       VI. Conclusion

       We sustain LaCour’s first, third, and fourth issues. We reverse the trial court’s order

granting summary judgment on LaCour’s wrongful termination claim under section 948a

and remand that claim for trial.


                                                  ________________________________
                                                  GINA M. BENAVIDES,
                                                  Justice

Opinion delivered and filed this
the 15th day of January, 2009.




                                             15
