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What Does Compensability Mean?

Posted: Jan 15, 2015
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The two prong test to determine compensability

 

Section 406.031(a) of the Texas Labor Code states that “An insurance carrier is liable for an employee’s injury without regard to fault or negligence if: . . . (2) the injury arises out of and in the course and scope of employment.” 

 

The Courts have said that there is a two part test in Section 406.031(a) of the Texas Labor Code.

 

The first prong is:  “Did the injury arise from the employment?”  Texas Workers’ Compensation Ins. Fund v. Simon, 980 S.W.2d 730, 735 (Tex. App.—San Antonio 1998, no pet.).  The second prong is:  “Whether the injury would have occurred if the ‘conditions and obligations of employment had not placed the claimant in harm’s way.’  Simon, 980 S.W.2d at 735-736.

 

Texas Workers’ Compensation Ins. Fund v. Simon, 980 S.W.2d 730 (Tex. App.—San Antonio 1998, no pet.) and Employers' Casualty Co. v. Bratcher, 823 S.W.2d 719 (Tex. App.—El Paso, 1992, no pet.) are instructive.

 

Texas Workers’ Compensation Ins. Fund v. Simon, 980 S.W.2d 730 (Tex. App.—San Antonio 1998, no pet.):  The Simon case is a summary judgment case.  The Fund complained “of the denial of its Motion for Summary Judgment, among other things.  The Simon court affirmed the trial court's denial of the Fund’s Motion for Summary Judgment.  Simon, 980 S.W.2d at 732.

 

Facts:  Simon was mechanic employed with a repair shop when he suffered a sting from a bee.  As a result of the bee sting, Simon had an immediate and severe allergic reaction.  Id.  Simon was taken to the hospital where he died a short time after arrival.  Simon, 980 S.W.2d at 732.  Simon had once been a bee keeper and had suffered many stings without incident.  Id.  Simon's wife, Barbara, claimed death benefits under the Texas Workers’ Compensation Act.  Simon, 980 S.W.2d at 732. 

 

Administrative Process: The fund disputed Barbara's claim for death benefits, stating, “Investigation reveals no injury in course and scope of employment.  Employee was stung by an insect.  Employee was exposed to no greater risk of being stung by an insect than any other member of the general public.”  Id.  Section 406.032(1)(E) of the Texas Labor Code states, “An insurance carrier is not liable for compensation if:  (1) the injury:  (E) arose out of an act of God, unless the employment exposes the employee to a greater risk of injury from an act of God than ordinarily applies to the general public.  Tex. Lab. Code §406.032(1)(E).

 

A Benefit Review Officer (BRO) presided over a Benefit Review Conference (BRC), where the following two issues were raised:  “(1) whether Mr. Simon had suffered a ‘compensable injury’ that resulted in his death, and (2) who were the proper legal beneficiaries of Mr. Simon for workers’ compensation purposes.”  Simon, 980 S.W.2d at 732.  The BRO set the case for a contested case hearing (CCH).  At the CCH, a Hearing Officer (HO) received evidence and made findings of fact and conclusions of law, which determined that Simon’s injury did not ‘arise out of’ Simon’s employment.  Id.  Barbara appealed to the Texas Workers’ Compensation Commission (Commission) Appeals Panel.  The appeals panel reversed the HO, noting “that Texas courts have held that a bee sting is not an act of God, so Mrs. Simon was not required to prove that her husband had been at a greater risk of being so injured than any other member of the general public.  Mrs. Simon was only required to show that the injury occurred in the course and scope of and arose from his employment.”  Simon, 980 S.W.2d at 732.  The Simon court explained that:

 

The Act exempts acts of God from coverage unless ‘the employment exposes the employee to a greater risk of injury from an act of God than ordinarily applies to the general public.’  Tex. Lab. Code Ann. §406.032 (Vernon 1996).  By using this language to contest liability, [the Fund] was clearly invoking the act of God exception.

Id.

 

Trial Court:  In the Fund’s Motion for Summary Judgment, the Fund argued that Mr. Simon's injury did not arise from Mr. Simon's employment.  However, in front of the 4th Court of Appeals, the Fund conceded that the injury occurred in the course and scope of Simon’s employment.  Simon, 980 S.W.2d at 733.

 

Appellate Court:  The Simon court explained that compensability is determined by a two prong test.  The first prong is:  “Did the injury arise from the employment?”  Simon, 980 S.W.2d at 735.  The second prong is:  “Whether the injury would have occurred if the ‘conditions and obligations of employment had not placed the claimant in harm’s way.’  Simon, 980 S.W.2d at 735-736 (citing Employers’ Cas. Co. v. Bratcher, 823 S.W.2d 719, 721 (Tex. App.—El Paso, 1992, writ denied); Walters v. American States Ins. Co., 654 S.W.2d 423, 425 (Tex. 1983).  In other words, the two-prong test to determine compensability is (1) course and scope and (2) causation.  If the conditions and obligations of the employment placed the injured employee in harm's way, then the employment is at least a producing cause of the injury, and the reason the conditions and obligations of Simon's employment put Simon in harm's way is because if Simon had not been at work at that repair facility at the time he was stung by the bee, the stinging of the bee would not have occurred; therefore, it can be said that the conditions and obligations of Simon's employment put him in harm's (around the bee) way.

 

Recall that in front of the 4th Court of Appeals, the Fund conceded the injury occurred in the course and scope of Mr. Simon's employment; therefore, the first prong dealing with whether the injury occurred in the course and scope of Simon's employment was answered in Mr. Simon's favor. 

 

The Fund’s Argument:  The Fund argued that the aggravation of the pre-existing condition (not Simon’s employment) caused the severe allergic reaction from the bee sting leading to Simon’s death.  In other words, the Fund argued that causation was refuted as a matter of law partly because the Fund’s summary judgment evidence included an affidavit from expert stating, “That Simon was predisposed to a severe allergic reaction.”  Therefore, according to the Fund, because the bee sting aggravated this pre-existing condition causing a severe allergic reaction and death, the injury and death is not compensable under the second prong of liability in that “the conditions and obligations of employment had not placed [Mr. Simon] in harm's way.”  Additionally, the Fund relied on Bratcher “to argue that a pre-existing condition does preclude recovery.”  Simon, 980 S.W.2d at 736.

 

 

Appellate Court’s Response:  "A pre-existing condition will not preclude compensation under the workers compensation act. Simon, 980 S.W.2d at 736 (citing Henderson v. Travelers Ins. Co., 544 S.W.2d 649, 652 n. 1 (Tex. 1976); INA of Texas v. Howeth, 755 S.W.2d 534, 536 (Tex. App.—Houston [1st Dist.] 1988, no writ).  The Simon court explained that, “Whether Simon, because of prior exposure to bee venom, had a peculiar predisposition to severe allergic reactions does not resolve the issue whether his work conditions placed him in harm's way.  An accident arising from employment causes an injury if it is ‘a’ cause, even if there are other causes.”  Simon, 980 S.W.2d at 736 (citing Baird v. Texas Employers’ Ins. Ass’n, 495 S.W.2d 207, 211 (Tex. 1973); Howeth, 755 S.W.2d at 537.  In response to the Fund’s Bratcher argument, the Simon court explained that the Bratcher case does not apply because Bratcher’s employment did not put Bratcher in harm’s way.  In the Bratcher case, Bratcher was employed as a toolpusher for a company that drills for oil.  On the day that Bratcher died he was sitting on the toilet having a bowel movement.  Bratcher's survivors moved for summary judgment attaching an affidavit from a Dr. Norton, who stated:  ‘In my opinion the cause of death in this case is a ruptured berry aneurysm in a blood vessel at the base of the brain.  These aneurysms are believed to result from either a congenital and/or acquired weakness in the vessel wall.  While exertion is not required for aneurismal rupture, it is most often associated . . . .  In Mr. Bratcher’s case the most likely precipitating cause for the rupture of the aneurysm was straining during defecation."  Bratcher, 823 S.W.2d at 720.

 

To analyze the Bratcher case, the two-pronged test must be applied to the facts.  Recall that the first prong is whether the injury causing the death occurred in the course and scope of employment, and the second prong is whether the injury would have occurred if the conditions and obligations of Bratcher’s employment had not placed Bratcher in harm's way.  Simon, 980 S.W.2d at 735-736.  The Bratcher court answered the first prong of the compensability test (involving whether the injury occurred in the course and scope employment) in Mr. Bratcher’s favor by applying the personal comfort doctrine, which states, “Employees who, within the time and space limits of their employment, engage in acts which minister to personal comfort do not thereby leave the course of employment . . . .”  Bratcher, 823 S.W.2d at 720.  In other words, “An employee need not have been engaged in the discharge of any specific duty incident to his employment; rather an employee in the course of his employment may perform acts of a personal nature that a person might reasonably do for his health and comfort, such as quenching thirst or relieving hunger; such acts are considered incidental to the employee’s service and the injury sustained while doing so arises in the course and scope of his employment and are thus compensable.”  Bratcher, 823 S.W.2d at 722.  The second prong is a “but for” test, and it determines whether the employment caused the injury.  Mr. Bratcher had a condition that predisposed him to aneurysms and the condition that predisposed him to aneurysms was aggravated by his straining to have a bowel movement.  The Bratcher court reasoned that Mr. Bratcher would have had a bowel movement when he did whether he was at work or someplace else; therefore, his survivors cannot argue that the injury (the bursting of the aneurysm) would not have occurred if the conditions and obligations of Mr. Bratcher’s employment had not placed Mr. Bratcher in harm's way because there is nothing about Mr. Bratcher's employment that caused him to have a bowel movement when he did.  Bratcher, 823 S.W.2d at 722.  However, if Mr. Bratcher had been moving a heavy beam on the oil rig causing him to strain which in turn led to the rupture of the aneurysm, then the second prong of the compensability issue would be answered in his favor because the lifting of the beam would qualify as a condition and obligation of his employment that put Mr. Bratcher in harm’s way.  Simon, 980 S.W.2d at 736.

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