                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo

                                      No. 07-11-00245-CV


                               OLYMPIA GUNN, APPELLANT

                                              V.

                BAPTIST/ST. ANTHONY'S HEALTH NETWORK, APPELLEE

                            On Appeal from the 251st District Court
                                      Potter County, Texas
                   Trial Court No. 96,367-C, Honorable Ana Estevez, Presiding

                                        May 31, 2013

                                         OPINION
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


        After she was injured on the job, appellant Olympia Gunn signed a waiver subject

to Texas Labor Code § 406.033.1 When she later sued her employer, the trial court

granted a summary take-nothing judgment in favor of the employer. She appeals. We

will affirm.




        1
            Texas Labor Code Ann. § 406.033 (West 2011).
                                       Background


       Gunn began work as an overnight nurse at Baptist St. Anthony’s Health Network

(“BSA”) in May 2004. BSA does not carry worker’s compensation coverage; employees

injured on the job are covered by a “voluntary employee injury program.”


       Gunn’s pleadings asserted her neck and shoulder were injured in February 2006.

She testified on deposition that she was injured when a patient became combative after

she removed some restraints during nursing care. Gunn testified that as she put clean

sheets underneath the patient, he “shoved my head down,” and she “heard my neck

pop.” The patient had a contagious herpes infection, and Gunn was dealing with him

alone because the nurse trainee working with her refused to assist her. Gunn asked

her supervisor for additional help but was told “we are shorthanded, do the best you

can, there’s nobody I can send you.”


       Gunn’s injury occurred during the shift that ended at 7:00 in the morning on

February 4, a Saturday. She returned to begin another shift at 7:00 p.m. that same day,

and reported her injury to her supervisor at that time. She also completed, on the same

day, a written report describing her injury. She testified, “[T]hat’s when I filled out the

incident report and told them how bad I was hurting.”


       Beverly Lewis is the employee health manager for BSA. Her office is open only

on weekdays. She testified, in her deposition, BSA policy requires work-related injuries

occurring after hours or on weekends to be reported to the supervisor. Her office would

have received notice of Gunn’s injury no earlier than the Monday following the injury.




                                             2
      On February 16, 2006, Gunn was examined by Dr. Neil Veggeberg, a

nonemergency room physician.       The next day, February 17, she signed BSA’s

Occupational Injury Benefit Program Acceptance and Waiver, with Lewis as a witness.

The one-page document included the following paragraph:


      WAIVER: In exchange for my enrollment and election to participate in the
      program: I HEREBY VOLUNTARILY RELEASE, WAIVE, AND FOREVER GIVE
      UP ALL MY RIGHTS, CLAIMS AND CAUSES OF ACTION, WHETHER NOW
      EXISTING OR ARISING IN THE FUTURE THAT I MAY HAVE AGAINST [BSA]
      THAT ARISE OUT OF OR ARE IN ANY WAY RELATED TO INJURIES
      (INCLUDING A SUBSEQUENT OR RESULTING DEATH) THAT I HAVE
      SUSTAINED IN THE COURSE AND SCOPE OF MY EMPLOYMENT WITH
      BSA. I EXPRESSLY UNDERSTAND THAT INCLUDED IN THE CLAIMS THAT I
      AM RELEASING, WAIVING, AND GIVING UP ARE CLAIMS BASED ON
      NEGLIGENT OR GROSSLY NEGLIGENT ACTS OR OMISSIONS.                    BY
      ELECTING TO ENROLL AND PARTICIPATE IN THE PROGRAM, I FULLY
      UNDERSTAND AND AGREE THAT ANY BENEFITS PAYABLE UNDER THE
      PROGRAM SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR ME.
      CONTESTS CONCERNING MY BENEFITS WILL BE RESOLVED THROUGH
      THE PROGRAM’S DISPUTE RESOLUTION PROCEDURES.

      The document also included a paragraph providing:


      ACKNOWLEDGEMENTS: I acknowledge that I have carefully read this
      Acceptance and Waiver. I further acknowledge that I understand and accept the
      terms of this Acceptance and Waiver and agree to be bound by the terms and
      conditions of the Program. No one has forced me to sign this Waiver. No
      representations have been made to induce me to sign this Waiver other than
      those consistent with the terms of this Program.

      BSA’s injury benefit program did not provide “subscriber-level” benefits. But,

under the program, for a period of two years, BSA paid Gunn’s medical expenses,

including those for occupational and physical therapy, injections and other medications

for pain, neck fusion surgery, and an additional surgery on her brachial plexus.

Pursuant to the program, BSA also paid Gunn wage replacement benefits biweekly for a

total of 110 weeks. At the time of her deposition, however, she stated she was “pretty



                                           3
much in bed 80 percent of the time.” In 2008, Gunn was also informed she “could no

longer work for BSA due to [her] conditions.”


       Gunn subsequently sued BSA, asserting causes of action for negligence and

gross negligence. BSA moved for summary judgment, asserting theories of waiver,

ratification and election of remedies and an absence of duty. The trial court granted the

motion without specifying the ground it accepted.


                                          Analysis


       Through one issue, Gunn argues BSA failed to satisfy its evidentiary burden to

be entitled to summary judgment.        BSA asserts the summary judgment evidence

conclusively establishes its affirmative defense of waiver.


Standard of Review and Applicable Law


       We conduct a de novo review of the trial court’s decision to grant a traditional

motion for summary judgment. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005). We take as true all evidence favorable to the nonmovant, and indulge

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

sustain the granting of a traditional summary judgment motion, we must find that the

movant has met its burden of establishing that there is no genuine issue of material fact

and that it is entitled to judgment as a matter of law. Am. Tobacco Co. v. Grinnell, 951

S.W.2d 420, 425 (Tex. 1997).




                                             4
                                       Application


      The parties’ arguments on appeal focus on the requirements of Labor Code §

406.033(f) and (g). There is no dispute Gunn signed BSA’s document containing the

post-injury waiver.   Section 406.033(f) provides that a cause of action may not be

waived by an employee after the employee’s injury unless:


      (1)    The employee voluntarily enters into the waiver with knowledge of the
             waiver’s effect;

      (2)    The waiver is entered into not earlier than the 10th business day after the
             date of the initial report of injury;

      (3)    The employee, before signing the waiver, has received a medical
             evaluation from a non-emergency care doctor; and

      (4)    The waiver is in a writing under which the true intent of the parties is
             specifically stated in the document.

      Gunn contends the summary judgment evidence leaves fact issues as to

subparagraphs (1), (2) and (3) of § 406.033(f). She also argues the waiver fails to

comply with the requirement of § 406.033(g) that a waiver be conspicuous.


Knowledge of Waiver’s Effect


      Gunn first argues the summary judgment evidence does not conclusively

establish she voluntarily signed the waiver with knowledge of its effect, as required by §

406.033(f)(1).


      The Tyler Court of Appeals addressed § 406.033(f)(1) in Lopez v. Garbage Man,

Inc., No. 12-08-00384-CV, 2011 Tex.App. LEXIS 2342 (Tex.App.—Tyler March 31,

2011, no pet.) (released for publication). Specifically addressing the “knowledge of its

effect” requirement of § 406.033(f)(1), the court applied the presumption that one “who


                                            5
signs a contract must be held to have known what words were used in the contract and

to have known their meaning, and he must be held to have known and fully

comprehended the legal effect of the contract.” Id. at *21. Thus, absent evidence of

“trick or artifice,” the signer is presumed as a matter of law to have read and understood

the contract. Id. at *22 (citing Tamez v. SW Motor Transp. Inc., 155 S.W.3d 564, 570

(Tex.App.—San Antonio, no pet.)); see Hernandez v. Lasko Prods., No. 3:11-CV-1967-

M, 2012 U.S. Dist. LEXIS 144338 (N.D. Tex. Oct. 5, 2012) (applying Lopez).2 We will

apply Lopez’s analysis in this case.3


      Gunn points to her testimony she did not remember signing the waiver. She also

testified to documents she signed at Veggeberg’s office prior to his examination of her

on February 16. After review of the entire summary judgment record, we conclude

there is not a genuine issue that Gunn signed the waiver on February 17, with Lewis as

the witness. Gunn testified to her signature on the document containing the waiver.

That, at the time of her deposition, she did not remember signing the document does

not provide evidence she lacked knowledge of the waiver’s effect when she signed it.

Nor can we agree that Lewis’s deposition testimony she did not explain the waiver to

Gunn raises a fact issue as to Gunn’s knowledge of its effect.


      The federal district court in Blackshire v. Tyson Foods, Inc., 2010 U.S. Dist.

LEXIS 84237 at *22, found the summary judgment evidence there raised a fact issue
      2
       Both Lopez, 2011 Tex.App. LEXIS 2342, at *2, and Hernandez, 2012 U.S. Dist.
LEXIS 144338, at *8, involve employees who primarily spoke Spanish. All of the
evidence here reflects Gunn is an English speaker.
      3
        But see Blackshire v. Tyson Foods, Inc., No. 2:09-CV-329-TJW, 2010 U.S. Dist.
LEXIS 84237 (E.D. Tex. Aug. 17, 2010) (noting no Texas court then had addressed the
scope of the language of § 406.033(f), and finding the statute supersedes the common
law presumption).

                                            6
regarding whether the employee, who admittedly signed a waiver, voluntarily did so with

knowledge of its effect. The record in Blackshire included evidence not present here,

including evidence the employee did not have the opportunity to read the document in

its entirety before signing it, evidence he told the employer he did not understand the

waiver, and evidence raising questions concerning the voluntariness of his signing.


        Based on our review of the summary judgment record, we find no genuine issue

of material fact is raised with regard to compliance with § 406.033(f)(1).


Tenth Business Day


        Gunn next argues BSA did not conclusively show the waiver was entered into at

least ten business days from the date of the initial report of injury, as required by §

406.033(f)(2). She sees an ambiguity in the summary judgment evidence regarding the

initial report of her injury. As noted, the summary judgment evidence shows Gunn

informed her supervisor of her injury and completed a written report on February 4, but

the injury was not, as Gunn’s brief describes it, “reported to the office which handles the

claim” until the next Monday, February 6. Gunn signed the waiver on February 17.


        Applying the plain language of § 406.033(f)(2),4 we agree with BSA that the

undisputed evidence Gunn made both an oral and written report of her injury on

February 4, a Saturday, and signed the waiver on February 17, establishes as a matter

of law the waiver was entered into not earlier than the tenth business day after the date

of the initial report of injury.


        4
       See State v. Gonzalez, 82 S.W.3d 322, 327 (Tex. 2002) (construction of statute
begins with “plain and common meaning of the statute’s words” (quoting Fitzgerald v.
Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999)).

                                             7
Medical Evaluation


      As noted, in her deposition testimony Gunn made reference to documents she

signed before she was seen by Veggeberg, a nonemergency care physician.              She

argues her testimony raises an issue of fact concerning compliance with the

requirement of § 406.033(f)(3) that “the employee, before signing the waiver, has

received a medical evaluation from a nonemergency care doctor.” Tex. Labor Code

Ann. § 406.033(f)(3) (West 2011).


      It is undisputed Gunn saw Veggeberg on February 16. Taking as true all

evidence favorable to Gunn, and indulging every reasonable inference in her favor, we

see in the record no dispute that Gunn signed the waiver document on February 17.

Gunn made clear in her testimony that she was not saying the waiver was among the

documents she signed at Veggeberg’s office, and we see no reasonable inference from

her testimony that the waiver was signed at that time. We find there is no genuine issue

concerning the waiver’s compliance with § 406.033(f)(3).


Conspicuousness


      Section   406.033(g)    provides,   “[t]he   waiver   provisions   required   under

Subsection(f) must be conspicuous and appear on the face of the agreement. To be

conspicuous, the waiver provisions must appear in a type larger than the type contained

in the body of the agreement or in contrasting colors.” Tex. Labor Code Ann. §

406.033(g) (West 2011).


      The document Gunn signed on February 17, by which she enrolled in BSA’s

“occupational injury benefit program” and waived her causes of action, consists of six

                                           8
paragraphs, all on one page. The paragraphs entitled “Waiver” and Acknowledgements”

are the last two of the six paragraphs. After the sixth paragraph is a signature line for

the employee and a witness. Gunn’s signature and that of Lewis appear on the copy in

the record. The “Waiver” paragraph is distinguished from the other five paragraphs by

appearing in all capital letters. It is not in a contrasting color.


       Whether a provision meets a conspicuousness requirement is a question of law,

determined in this case by the § 406.033(g) definition. See Cate v. Dover Corp., 790

S.W.2d 559, 560 (Tex. 1990) (applying, as question of law, Business & Commerce

Code definition to disclaimer of warranty). Gunn’s argument is that the waiver paragraph

does not “appear in a type larger than the type contained in the body of the agreement”

because the “font size” is the same throughout the document. We see no error in the

trial court’s implicit conclusion that the waiver paragraph, appearing in all capital letters,

appears in a type larger than that of the rest of the agreement. Other cases have found

all capital letters to be conspicuous in comparable contexts. See e.g. Amtech Elevator

Servs. Co. v. CSFB 1998-PI Buffalo Speedway Office Ltd. P’ship, 248 S.W.3d 373, 377-

78 (Tex.App.—Houston [1st Dist.] 2007, no pet.) (finding capitalized heading with

following language in all capital letters attracts the attention of a reasonable person and

is thus conspicuous); Lopez, 2011 Tex.App. LEXIS 2342, at *40 (finding reasonable

person ought to have noticed the section because the entirety of the first paragraph was

written in all capital letters).


Express Negligence Doctrine


       Gunn’s argument under the heading of conspicuousness also contains a

contention BSA’s waiver does not comply with the express negligence doctrine. She

                                                9
argues BSA’s waiver does not expressly state its intent that the signer waives claims

arising from BSA’s own negligence. Under the doctrine of express negligence, “the

intent of the parties must be specifically stated in the four corners of the contract.”

Storage & Processors, Inc. v. Reyes, 134 S.W.3d 190,192 (Tex. 2004) (quoting Ethyl

Corp. v. Daniel Constr. Co., 725 S.W.2d 705, 707 (Tex. 1987)). The rule requires some

express language that would indicate an intention to waive claims of a party's own

negligence. Fisk Elec. Co. v. Constructors & Assocs., Inc., 888 S.W.2d 813, 815-16

(Tex. 1994); Lehmann v. Har-Don Corp., 76 S.W.3d 555, 562 n.3 (Tex.App.—Houston

[14th Dist.] 2002, no pet.).


       Citing Reyes, 134 S.W.3d at 192, Gunn asserts that a lay person reading BSA’s

waiver would not be put on notice that the person signing the document is giving up

rights relating to BSA’s “own” negligence. BSA responds that Reyes and the express

negligence doctrine do not apply to post-injury waivers under the current § 406.033, and

further argues the doctrine applies only to indemnification against future acts of

negligence, not past acts.5


       Assuming, without deciding, that the express negligence doctrine, per se,6 has

application here, we find it satisfied. In addition to the language of the “waiver” and

“acknowledgement” paragraphs we have cited from BSA’s document, its second

paragraph begins with language stating, “I want to apply for Benefits offered to me

under the no-fault BSA Occupational Injury Benefit Program (hereinafter “the Program”).


       For the latter proposition, BSA relies on Green Int’l, Inc. v. Solis, 951 S.W.2d
       5

384, 387 (Tex. 1997), and Transcontinental Gas Pipeline Corp. v. Texaco, Inc., 35
S.W.3d 658, 669 (Tex.App.—Houston [1st Dist.] 2000, pet. denied).
       6
           Neither party addresses the language of § 406.033(f)(4) in this context.

                                              10
To qualify, I understand I must accept the rules and conditions of the Program and

waive my right to sue [BSA and other named affiliated organizations] and their agents,

affiliates, and employees for damages of any nature I have suffered.” This passage,

coupled with the other language in the document, clearly reveals an intent to release

BSA from its own negligence or gross negligence, if any. The document’s language is

similar to language courts have found to satisfy the express negligence requirement.

See Lawrence v. CDB Servs., 44 S.W.3d 544, 546, 553-54 (Tex. 2001); Lopez, 2011

Tex.App. LEXIS 2342, at *38-42.


                                       Conclusion


      Finding the trial court’s judgment supportable under BSA’s affirmative defense of

waiver, we need not address Gunn’s challenge to other grounds urged by BSA. We

resolve Gunn’s sole issue against her and affirm the judgment of the trial court.




                                                 James T. Campbell
                                                     Justice




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