



OLD REPUBLIC INSURANCE CO. V. DONNA FAGAN



















COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH





NO.  2-02-364-CV





OLD REPUBLIC INSURANCE CO.	APPELLANT



V.



DONNA FAGAN	APPELLEE



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FROM THE 17
TH
 DISTRICT COURT OF TARRANT COUNTY



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MEMORANDUM OPINION
(footnote: 1)


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In this workers’ compensation case, Old Republic Insurance Company appeals a summary judgment in favor of Donna Fagan.  In two issues, Old Republic asserts the trial court erred (1) by granting the motion for summary judgment, and (2) by failing to make and file findings of fact and conclusions of law.  We will affirm.

Background

Fagan was employed by Jet Works Aviation.  She claimed to have suffered an injury to her neck on October 25, 2000 when in the course and scope of her employment she twisted her neck while bending down to pick up a piece of paper.   

Fagan sought benefits under the Texas Workers’ Compensation Act for a work-related injury.  
See 
Tex. Lab. Code Ann. 
§§ 401.001-506.001 (Vernon 1996 & Supp. 2003).  Old Republic was Jet Works Aviation’s workers’ compensation carrier.  Old Republic disputed Fagan’s claim, raising two issues:  (1) did Fagan sustain a compensable injury, and (2) did Fagan suffer disability from such injury?  The contested case hearing officer decided both issues in Fagan’s favor, and the appeals panel affirmed the contested case hearing officer’s decision. 

Old Republic appealed the appeals panel’s decision to the trial court.  Fagan moved for summary judgment, asserting that there was no evidence Old Republic could prove the two contested issues.  The trial court granted Fagan’s motion for summary judgment.  CR 68]  Old Republic timely requested findings of fact and conclusions of law, but the trial court did not make or file them.  Old Republic did not file a notice of past due findings of fact and conclusions of law.

Discussion

In its first issue, Old Republic asserts that the trial court erred by granting summary judgment in Fagan’s favor.  The gist of Old Republic’s argument is that Fagan did not sustain a compensable injury because she was not injured during the course and scope of her employment. 

We construe Fagan’s motion for summary judgment as a no-evidence motion for summary judgment because the sole ground for the motion is that Old Republic produced no evidence controverting the contested issues: that Fagan suffered an on-the-job injury and was disabled as a result of that injury.  
See 
Tex. R. Civ. P. 166
a(i); 
Welch v. Coca-Cola Enters., 
36 S.W.3d 532, 536 (Tex. App.—Tyler 2000, pet. dism’d by agr.).  After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant's claim or defense.  
Tex. R. Civ. P.
 166a(i).  The motion must specifically state the elements for which there is no evidence.  
Id.; Johnson v. Brewer & Pritchard, P.C., 
73 S.W.3d 193, 207 (Tex. 2002).  The trial court must grant the motion unless the nonmovant produces summary judgment evidence that raises a genuine issue of material fact.  
See
 
Tex. R. Civ. P.
 166a(i) cmt.; 
S.W. Elec. Power Co. v. Grant, 
73 S.W.3d 211, 215 (Tex. 2002).

When a party seeks judicial review of a decision of the commission appeals panel, the only issues before the trial court are those decided by the commission appeals panel.  
Tex. Lab. Code Ann. 
§ 410.302 (Vernon 1996).  Thus, as the appealing party, Old Republic had the burden of proof in the trial court to prove by a preponderance of the evidence that Fagan did not suffer a compensable on-the-job injury and that she was not disabled as a result of such an injury.  
Id. 
§§ 410.302, 410.303.

Fagan attached her affidavit to her motion for summary judgment.  In the affidavit, Fagan stated under oath that she sustained an injury to her neck and upper back while performing her job duties within the course and scope of her employment.  She also stated that her immediate supervisor, Pris Galbreath, witnessed the accident when it occurred and that Chris Hoskins, Tom Haefele, and Galbreath observed her with an ice pack strapped to her neck later that day.  She also quoted from and attached the authenticated medical records of a doctor who treated her: “It is felt that Ms. Fagan strained her upper back and neck while at work and that her injuries are directly related to her employment.” 

In its response, Old Republic argued that Fagan’s injury did not occur in the course and scope of her employment; therefore, it was not a compensable injury.  
See id. 
§ 401.011(10) (Vernon Supp. 2003).  In support of its response, Old Republic attached and incorporated the affidavits of Dorothy Ann Leong, M.D., Galbreath, Hoskins, Haefele, and Don Mitchell.

Dr. Leong stated under oath that she had reviewed Fagan’s medical records at Old Republic’s request and confirmed Fagan’s injuries, but opined that “the question remains” as to whether Fagan was injured on-the-job.  Galbreath stated that she did not witness a work-related injury, and “the incident [Fagan] claims took place, i.e. her bending over to pick up a piece of paper while I was at the printer, did not occur.”  Haefele stated that he did see Fagan with an ice pack on her neck; Hoskins stated that he did not see her with an ice pack.  Galbreath, Hoskins, Haefele, and Mitchell
 
 all stated that Fagan did not report an on-the-job injury to any of them on October 25. 

Viewing this evidence in the light most favorable to Old Republic, we  hold that Old Republic failed to meet its burden to bring forward more than a scintilla of probative evidence raising a genuine issue of material fact concerning whether Fagan sustained a compensable injury.  
See Johnson, 
73 S.W.3d at 197; 
Morgan v. Anthony, 
27 S.W.3d 928, 929 (Tex. 2000); 
see also Moore v. K Mart Corp., 
981 S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied).  At most, this evidence shows that none of the Old Republic affiants witnessed the injury and that Fagan did not report the injury to them the day it allegedly occurred.  We overrule Old Republic’s first issue. 

In its second issue, Old Republic asserts that the trial court erred by failing to make and file findings of fact and conclusions of law.  Findings of fact and conclusions of law are not appropriate in summary judgment proceedings.  
IKB Indus., Ltd. v. Pro-Line Corp., 
938 S.W.2d 440, 441-42 (Tex. 1997); 
Linwood v. NCNB Tex., 
885 S.W.2d 102, 103 (Tex. 1994).  Therefore, the trial court did not err by failing to make or file them.  Accordingly, we overrule Old Republic’s second issue.

Conclusion

Having overruled both of Old Republic’s issues, we affirm the trial court’s judgment.   





ANNE GARDNER

JUSTICE



PANEL A:	CAYCE, C.J.; HOLMAN and GARDNER, JJ.



DELIVERED:  June 26, 2003

FOOTNOTES
1:See 
Tex. R. App. P. 
47.4.


