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Barnes v. United Parcel Serv. Inc. (Tex. App.

, 2012)

TERRICA BARNES AS NEXT FRIEND presented in this action for gross negligence,
OF KAINAN COOPER, Appellant we reverse and remand for further
v. proceedings.
Appellee Background

NO. 01-09-00648-CV Nathanial Cooper was diagnosed at a

young age with a congenital heart block. He
Court of Appeals For The First District underwent numerous heart surgeries and had
of Texas four pacemakers. He also suffered permanent
heart damage from malfunctioning pacing
Opinion on rehearing issued January wires.
12, 2012
Cooper was employed by UPS as a
On Appeal from the 164th District supervisor. He worked in an un-air-
Court conditioned warehouse in Houston and had
Harris County, Texas been placed on light duty because of his heart
Trial Court Case No. 2008-54568 condition and a recent cardiac event. On June
3, 2005, Cooper complained of feeling dizzy
OPINION ON REHEARING and collapsed. He suffered a heart attack and
Appellee United Parcel Services, Inc. filed
a motion for rehearing of our opinion issued Page 3
on June 23, 2011. Appellant Terrica Barnes
filed a response. We grant rehearing and later pronounced dead. The medical examiner
withdraw our opinion and judgment of June determined that he died from heart
23, 2011, issuing complications.

Page 2 Terrica Barnes, Cooper's fiancee and

mother of his infant son, filed a claim under
the following in their stead. See TEX. R. APP. the Texas Workers' Compensation Act as next
P. 19.1(b). Our disposition of the appeal friend of the child. The hearing officer denied
remains unchanged. the claim, finding that Cooper's "work was
not a substantial contributing factor to the
Nathaniel Cooper suffered a heart attack June 3, 2005 cardiac arrest but rather it was
and died on the job while employed by United the natural progression of a preexisting heart
Parcel Services, Inc. A workers' compensation condition" that caused his death. The officer
claim was filed by Cooper's fiancee, Terrica ultimately held that Cooper's heart attack was
Barnes, on behalf of their son, Kainan. After not a compensable injury under the Act.
Cooper's injury was determined to be not Barnes did not appeal, and the decision
compensable for purposes of workers' concerning workers' compensation benefits
compensation, Barnes filed suit against UPS, became final. She then filed a wrongful death
alleging gross negligence. UPS contends that lawsuit, alleging that UPS was grossly
the claim is barred by res judicata and negligent in its failures to install an
collateral estoppel, and the trial court granted appropriate ventilation system and to
summary judgment against Barnes on those implement adequate procedures to protect
grounds. Because we conclude that the issues employees from exposure to high
decided by the Department of Workers' temperatures.
Compensation are not identical to those

Barnes v. United Parcel Serv. Inc. (Tex. App., 2012)

UPS filed a motion for summary summary-judgment standard the movant has
judgment arguing that collateral estoppel and the burden of showing that no genuine issue
res judicata preclude litigation of the gross of material fact exists and that it is therefore
negligence claim. It argued that the issue of entitled to judgment as a matter of law. TEX.
whether Cooper's working conditions caused R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt.
his heart attack had already been litigated
before the Department of Workers' Page 5
Compensation and that Barnes's gross
negligence claim was barred because it was Co., 690 S.W.2d 546, 548 (Tex. 1985). A
based on the same facts that had been defendant moving for summary judgment
determined during the DWC hearing. Barnes must conclusively negate at least one essential
argued that her claim was not barred because element of each of the plaintiff's causes of
the Texas Constitution and section action or conclusively establish each element
408.001(b) of the Texas Labor of an affirmative defense. Sci. Spectrum, Inc.
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
Page 4 In deciding whether there is a disputed
material fact issue precluding summary
Code protect the right of an heir or surviving judgment, evidence favorable to the
spouse to recover exemplary damages for the nonmovant will be taken as true and every
death of an employee whose death is caused reasonable inference must be indulged in
by the employer's gross negligence. She favor of the nonmovant. Nixon, 690 S.W.2d at
further argued that collateral estoppel did not 548-49. Any doubts are resolved in the
apply because the DWC decision involved nonmovant's favor. Id.
different questions of fact and law from those
at issue in this lawsuit. II. Workers' compensation claim

The trial court granted the motion for In its motion for summary judgment,
summary judgment, and Barnes filed this UPS argued that it was entitled to summary
appeal. On appeal, Barnes contends that the judgment on the basis of res judicata and
DWC's prior compensability determination collateral estoppel, because the DWC non-
has no impact on her ability to assert a compensability determination has preclusive
separate claim against UPS for gross effect in this lawsuit.
negligence. She asserts that there is no
relevant precedent to support the proposition The Texas Workers' Compensation Act
that the principles of res judicata and provides the exclusive remedy and means of
collateral estoppel apply to decisions by the recovery for a covered employee who is killed
DWC. And she argues that even if they do or injured while working for his employer.
apply generally, they are not applicable in this TEX. LAB. CODE ANN. 408.001 (West
case because the facts at issue here are 2006). It does not, however, bar an action for
different from those previously litigated. exemplary damages based on the employer's
intentional tort or gross negligence. Smith v.
Analysis Atlantic Richfield Co., 927 S.W.2d 85, 87
(Tex. App.Houston [1st Dist.] 1996, writ
I. Standard of review denied). The Act "does not prohibit the
recovery of exemplary damages by the
We review a trial court's decision to grant surviving spouse or heirs of the body of a
a motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d Page 6
656, 661 (Tex. 2005). Under the traditional
Barnes v. United Parcel Serv. Inc. (Tex. App., 2012)

deceased employee whose death was caused pre-existing condition. Marts v. Transp. Ins.
by . . . the employer's gross negligence." TEX. Co., 111 S.W.3d 699, 703 (Tex. App.Fort
LAB. CODE ANN 408.001(b).1 Worth 2003, pet. denied); Tex. Workers'
Comp. Ins. Fund v. Simon, 980 S.W.2d 730,
Ordinarily, a claimant is entitled to 736 (Tex. App.San Antonio 1998, no pet.);
benefits if he demonstrates that he sustained Nat'l Farmers Union Prop. & Cas. Co. v.
a compensable injury. A compensable injury Degollado, 844 S.W.2d 892, 897 (Tex. App.
is one "that arises out of and in the course and Austin 1993, writ denied); Tex. Employers'
scope of employment for which compensation Ins. Ass'n v. Charles, 381 S.W.2d 664, 668
is payable" under the Act. Id. 401.011(10) (Tex. Civ. App.
(West Supp. 2011).2 A claimant must provide
evidence of a "sufficient causal nexus between Page 8
the workplace accident" and the claimant's
injury in order to receive benefits. Flores v. Texarkana 1964, writ ref'd n.r.e.); see also
Emps. Retirement Sys., 74 S.W.3d 532, 549 Flores, 74 S.W.3d at 549. If a claimant
(Tex. App.Austin 2002, pet. denied). establishes that his work was a producing
Determining whether an injury is cause of his injury, he has satisfied his burden
compensable involves a two-pronged test of of proof on the causation issue and is entitled
whether the injury (1) occurred in the course to receive benefits, unless the insurer
and scope of employment and (2) arose from establishes a defense to liability. See TEX.
LAB. CODE ANN. 406.031, 410.303 (West
Page 7 2006); Degollado, 844 S.W.2d at 896-97.

employment. State Office of Risk Mgmt. v. When an employee dies as a result of a

Martinez, 300 S.W.3d 9, 12 n.6 (Tex. App. heart attack, however, compensability is
San Antonio 2009, pet. denied). An injury determined under section 408.008. It is not
"arises out of" employment if the employee's sufficient for a claimant to establish merely
work or working conditions are shown to be a that his injury arose out of and in the course
producing cause of injury. See Transcon. Ins. and scope of employment. Rather, the
Co. v. Crump, 330 S.W.3d 211, 221 & n.5 (Tex. complainant must prove that:
2010) (citing Travelers' Ins. Co. v. Peters, 14
S.W.2d 1007, 1008 (Tex. Comm'n App. 1929, (1) the attack can be identified
holding approved), vacated on other as:
grounds, 17 S.W.2d 457 (Tex. Comm'n App.
1929)). "Producing cause" is "defined as a (A) occurring at a
substantial factor in bringing about an injury definite time and
or death, and without which the injury or place; and
death would not have occurred." Id. at 223. (B) caused by a
specific event
To be compensable a workplace injury occurring in the
must be a producing cause of impairment, course and scope
disability, illness, or death, but it need not be of the employee's
the sole or primary cause. See INA of Tex. v. employment;
Howeth, 755 S.W.2d 534 (Tex. App.
Houston [1st Dist.] 1988, no writ); Flores, 74 (2) the preponderance of the
S.W.3d at 549. There may be more than one medical evidence regarding the
producing cause of an injury, incapacity, or attack indicates that the
death in a typical workers' compensation employee's work rather than the
case, even when the claimant suffers from a natural progression of a
Barnes v. United Parcel Serv. Inc. (Tex. App., 2012)

preexisting heart condition or substantial-contributing-factor requirement

disease was a substantial to mean that the employee's work, "rather
contributing factor of the attack; than" the natural progression of any
and underlying heart condition or disease, must
(3) the attack was not triggered be the greater factor. Div. Workers' Comp.,
solely by emotional or mental Appeal No. 031786, at *1; Div. Workers'
stress factors, unless it was Comp., Appeal No. 91009, at *5; see also
precipitated by a sudden Smith, 135 S.W.3d at 837.
Page 10
TEX. LAB. CODE ANN. 408.008 (West
2006). Under this statute a heart attack may In this case, the DWC hearing officer
be compensable even if the employee suffers reviewed all of the medical data and other
from a pre-existing heart condition. But a evidence submitted by the parties and
heart attack is only compensable when the concluded that Cooper did not sustain a
preponderance of the medical evidence compensable heart attack. Based on the
establishes that the work-related conditions, medical evidence in the autopsy report and in
in comparison to the the reports submitted by two physicians who
reviewed Cooper's case, the hearing officer
Page 9 found that "although the heat at work was
speculated to be a possible factor," he could
other factors leading to the claimant's heart not conclude that the conditions at work were
attack, outweigh the pre-existing heart a "substantial contributing factor" causing
condition as a producing cause. See TEX. Cooper's death under section 408.008. In his
LAB. CODE ANN. 408.008(2); see also conclusions of law, the hearing officer stated
Transco. Ins. Co. v. Smith, 135 S.W.3d 831, that "Cooper's work was not a substantial
837 (Tex. App.San Antonio 2004, no pet.) contributing factor to the June 3, 2005
(holding that work-related conditions must be cardiac arrest but rather it was the natural
greater factor); Div. Workers' Comp., Appeal progression of a preexisting heart condition."
No. 92115, 1992 WL 12567118, at *5 (1992). In The hearing officer ultimately concluded that
deciding whether a heart attack is Cooper's heart attack was not a compensable
compensable, the hearing officer must injury because his work was not a substantial
compare or weigh the conditions leading to contributing factor.
the incident, including the conditions of
employment and the pre-existing medical Based on the hearing officer's
condition of the employee. See Div. Workers' compensability determination, UPS argued in
Comp., Appeal No. 031786, 2003 WL its summary-judgment motion that Barnes's
22378848, at *1 (Aug. 20, 2003). gross negligence claim was precluded by the
Additionally, it is not sufficient for an prior finding. Specifically, UPS asserted that
employee's work to have been merely a Barnes's gross negligence claim was
contributing factor or a producing cause; collaterally estopped because the issue of
instead, the work must have been a whether "UPS caused Mr. Cooper's death"
"substantial contributing factor of" the heart had previously been litigated before and
attack. Smith, 135 S.W.3d at 836; See Div. determined by the DWC. UPS also argued
Workers' Comp., Appeal No. 91009, 1991 WL that all of the elements of res judicata were
335020, at *6 (Sept. 4, 1991). Both the DWC, present and that Barnes's gross negligence
the agency charged with determining claim was barred because of the adverse
compensability in the first instance, and the finding on the causation issue. Barnes argues
Fourth Court of Appeals have interpreted the
Barnes v. United Parcel Serv. Inc. (Tex. App., 2012)

on appeal that res judicata does not apply to 1971); Voskamp v. Arnoldy, 749 S.W.2d 113,
this 126 (Tex. App.Houston [1st Dist.] 1987, writ
Page 11
UPS contends that the trial court
claim because the right of a surviving heir to correctly granted summary judgment on res
seek exemplary damages against a grossly judicata grounds. To support its position,
negligent employer is protected by the Texas UPS relies on Igal v. Brightstar Information
Constitution and by statute. She further Technology Group, Inc., 250 S.W.3d 78 (Tex.
contends that collateral estoppel does not 2008). In Igal, the Texas Supreme Court
apply because her burden of causation at the considered for the first time whether res
DWC hearing was higher than it is for her judicata should be applied to final decisions
gross negligence claim. by the Texas Workforce Commission. Igal,
250 S.W.3d at 86. Ultimately, the Court
A. Res judicata concluded that a final administrative order
has preclusive effect in a subsequent lawsuit
Res judicata is a generic term for the when a claimant under the Payday Law
related concepts of claim preclusion (res elected to utilize the administrative process
judicata) and issue preclusion (collateral rather than exercise a right of relief under the
estoppel), and it must be pleaded as an common law. Id. at 88. But the reasoning in
affirmative defense. TEX. R. CIV. P. 94; see Igal does not dictate the outcome in this case
Barr v. Resolution Trust Corp., 837 S.W.2d because the gross negligence action is not a
627, 628 (Tex. 1992). Res judicata prevents claim that could have been raised in the DWC
the re-litigation of a claim or cause of action proceeding.3 For an employee covered by
that has been finally adjudicated in a prior workers' compensation insurance, the Act
lawsuit. Barr, 837 S.W.2d at 628; Smith v. provides the exclusive remedy for recovery of
Brown, 51 S.W.3d 376, 379 (Tex. App. benefits for the death of the employee, except
Houston [1st Dist.] 2001, pet. denied). For res to the extent exemplary damages may be
judicata to apply, the defendant must show recovered by the surviving spouse or heirs of
that: (1) there is a prior final judgment on the the body of a deceased employee whose death
merits by a court of competent jurisdiction; was caused by the employer's intentional act
(2) the parties in the second action are the or omission or the employer's gross
same or in privity with those in the first negligence. See TEX. LAB. CODE ANN.
action; and (3) the second action is based on 408.001. A claim by
claims that were or could have been raised in
the first action. Igal v. Brightstar Info. Tech. Page 13
Grp., Inc., 250 S.W.3d 78, 86 (Tex. 2008);
Dardari v. Tex. Commerce Bank Nat'l Ass'n, the surviving spouse or heirs of a deceased
961 S.W.2d 466, 470 (Tex. App.Houston employee for exemplary damages based on
[1st Dist.] 1997, no pet.). Res judicata does the employer's gross negligence cannot be
not operate as a bar to litigation when the remedied through the administrative process
second claim could not be raised in the established by the Act. See id. A claim for
previous litigation. See Abbott Labs. v. exemplary damages may only be pursued in a
Gravis, 470 S.W.2d 639, 642 (Tex. subsequent lawsuit. See Wright v. Gifford-
Hill & Co., 725 S.W.2d 712, 713-14 (Tex.
Page 12 1987).

UPS further contends that because

Barnes's second lawsuit involves the same set
Barnes v. United Parcel Serv. Inc. (Tex. App., 2012)

of facts as those addressed in the DWC by precluding the relitigation of issues." Sysco
proceeding, the trial court correctly Food Servs., Inc. v. Trapnell, 890 S.W.2d
concluded that the doctrine of claim 796, 801 (Tex. 1994) (citing Lytle v.
preclusion bars her gross negligence claim. As Household Mfg. Inc., 494 U.S. 545, 553, 110
discussed above, the issue to be determined S. Ct. 1331, 1337 (1990)). A party asserting the
by the DWC in a heart attack compensability doctrine must prove that: (1) the facts sought
case was whether the preponderance of the to be litigated in the second action were fully
medical evidence indicates that the and fairly litigated in the first action; (2) the
employee's work rather than the natural facts were essential to the judgment in the
progression of a preexisting heart condition first action, and (3) the party against whom
or disease was a substantial contributing collateral estoppel is sought was a party in the
factor. The issue to be determined for the first action. Eagle Prop., Ltd. v. Scharbauer,
gross negligence claim is whether UPS's 807 S.W.2d 714, 721 (Tex. 1990); Houtex
conduct involved an extreme degree of risk Ready Mix Concrete & Materials v. Eagle
and whether it was aware of or acted with Const. & Envtl. Servs., L.P., 226 S.W.3d 514,
conscious indifference to that risk. See 519 (Tex. App.
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23
(Tex. 1994). Although the issues in this Page 15
lawsuit do involve the same set of facts,
Barnes could not raise her gross negligence Houston [1st Dist.] 2006, no pet.). Collateral
claim before the DWC, and therefore her estoppel does not extend to an issue that was
claim was not precluded in the subsequent previously determined but unessential to a
suit. Accordingly, we hold that the trial court prior judgment. See Bonniwell, 663 S.W.2d at
erred in granting summary judgment on 818-19 (holding that collateral estoppel did
claim preclusion grounds. not preclude relitigation of issue that was
previously determined but unessential to
Page 14 prior judgment); see also 18 CHARLES ALAN
B. Collateral estoppel PRACTICE AND PROCEDURE 4421 (2d ed.
1987) ("Issue preclusion attaches only to
The doctrine of collateral estoppel, also determinations that were necessary to
known as issue preclusion, "precludes support the judgment entered in the first
relitigation of ultimate issues of fact actually action. . . . A jury's special verdict, for
litigated and essential to the judgment in a instance, may resolve matters of fact that are
prior suit." Getty Oil Co. v. Ins. Co. of N. Am., then found irrelevant to the controlling legal
845 S.W.2d 794, 801 (Tex. 1992). See also issues; in such circumstances the special
Barr, 837 S.W.2d at 628; Bonniwell v. Beech verdict does not preclude the same matters of
Aircraft Corp., 663 S.W.2d 816, 818 (Tex. fact in later litigation.").
1984); Restatement (Second) of Judgments
27 (1982) ("When an issue of fact or law is UPS argues that we should affirm the
actually litigated and determined by a valid trial court's judgment because the facts
and final judgment, and the determination is sought to be litigated were fully and fairly
essential to the judgment, the determination litigated in the DWC hearing. UPS argues that
is conclusive in a subsequent action between the ultimate issue of whether Cooper's work
the parties, whether on the same or a caused his heart attack has already been
different claim."). "The doctrine of collateral decided. Conversely, Barnes argues that the
estoppel . . . is designed to promote judicial DWC proceeding imposed a higher causation
efficiency, protect parties from multiple burden than that which is imposed in a gross
lawsuits, and prevent inconsistent judgments negligence lawsuit and that the causation
Barnes v. United Parcel Serv. Inc. (Tex. App., 2012)

issue has not been fully and fairly litigated. Workers' Comp., Appeal No. 91009, at * 5. In
The question, therefore, is whether the order for the
underlying causation issues decided by the
hearing officer in the DWC compensability Page 17
determination are identical to the causation
issues to be decided in this lawsuit. See hearing officer to find that Cooper's heart
Bonniwell, 663 S.W.2d at 818. Both the DWC attack was a compensable injury, Barnes had
and the Fourth Court of Appeals have to demonstrate by a preponderance of the
considered medical evidence that Cooper's work, rather
than his heart condition, was a greater factor.
Page 16 Div. Workers' Comp., Appeal No. 031786, at
*1. The hearing officer stated that:
the meaning of "substantial contributing
factor" within section 408.008, but we are The credible medical evidence . .
unaware of any decision that has considered . is that the natural progression
whether there is a meaningful distinction of a preexisting heart condition
between the plaintiff's burden on the issue of was the precipitating factor in
causation under section 408.008 and the [Cooper's heart attack], and that
causation burden a plaintiff must satisfy in an although the heat at work was
ordinary claim for negligence or gross speculated to be a possible
negligence. See Smith, 135 S.W.3d at 836-37. factor, other factors could not
be ruled out such that the
At the DWC hearing, Barnes was required hearing officer concludes that
to prove that: (1) Cooper's heart attack medically the conditions at
occurred at a definite time and place and was work were not a substantial
caused by a specific event; (2) that his work contributing factor. . . .
rather than the natural progression of his
preexisting condition was a substantial The hearing officer thus recognized that the
contributing factor of the attack; and (3) the heat and working conditions may have played
attack was not triggered solely by emotional a role in causing Cooper's heart attack, but he
or mental stress factors. TEX. LAB. CODE could not conclude that the work was a
ANN. 408.008. The hearing officer substantial contributing factor and therefore
determined that the attack occurred at work, held that Cooper's heart attack was not
at a definite time and place, and was not compensable.4
triggered solely by emotional or mental stress
factors. The compensability of the heart Page 18
attack therefore turned on the hearing
officer's finding that Cooper's work was not a This lawsuit and the issues to be decided
substantial contributing factor to his death. In in this case are different from those decided
making this determination, the hearing by the DWC. Here, Barnes must prove by
officer was required to evaluate and compare clear and convincing evidence that Cooper's
relative to other factors the extent to which death was proximately caused by UPS's gross
Cooper's work conditions and his pre-existing negligence. See TEX. CIV. PRAC. & REM.
heart condition contributed to his death. Div. CODE ANN. 41.001-003 (West 2008 &
Workers' Comp., Appeal No. 031786, at *1; Supp. 2011). Gross negligence is defined as a
Div. Workers' Comp., Appeal No. 941034, negligent act or omission: (1) "which when
1994 WL 541008, at *3 (Sept. 14, 1994); Div. viewed objectively from the standpoint of the
Workers' Comp., Appeal No. 92115, at *5; Div. actor at the time of its occurrence involves an
extreme degree of risk, considering the
Barnes v. United Parcel Serv. Inc. (Tex. App., 2012)

probability and magnitude of the potential was a substantial contributing factor. Div.
harm to others"; and (2) "of which the actor Workers' Comp., Appeal No. 941034, at *3. As
has actual, subjective awareness of the risk such, a claimant's causation burden under
involved, but nevertheless proceeds with section 408.008, to the extent there is a
conscious indifference to the rights, safety, or comparative element, is different from that of
welfare of others." Id. 41.001(11); see also a plaintiff suing for gross negligence. See id.
Moriel, 879 S.W.2d at 23. A plaintiff may at *3; Div. Workers' Comp., Appeal No.
establish gross negligence by proving that an 91009, at *5.
actor made a decision in the face of an
extreme degree of risk to another and without The difference is even clearer when the
regard to the consequences that resulted in causation burden under section 408.008 is
harm to the other person. Williams v. Steves compared with the standard for proving
Indus. Inc., 699 S.W.2d 570, 573 (Tex. 1985); causation for other workers' compensation
Trevino v. injuries. In Transcontinental Insurance
Company v. Crump, 330 S.W.3d 211 (Tex.
Page 19 2010), the Texas Supreme Court addressed
the "producing cause" standard for proving
Lightning Laydown, Inc., 782 S.W.2d 946, causation in workers' compensation claims.
949 (Tex. App.Austin 1990, writ denied). in 330 S.W.3d at 221; see TEX. LAB. CODE
a gross negligence lawsuit, proof of proximate ANN. 401.011(10). It held that producing
cause requires the plaintiff to show that the cause is "defined as a substantial factor in
harm resulting from the defendant's act or bringing about an injury or death, and
omission was foreseeable and that the act or without which the injury or death would not
omission was a cause-in-fact of the plaintiff's have occurred." Crump, 330 S.W.3d at 223.
injury. See, e.g., Columbia Med. Ctr. of Las Accordingly, a claimant's burden of proof on
Colinas, Inc. v. Hogue, 271 S.W.3d 238, 246 the issue of causation will ordinarily be the
(Tex. 2008). Cause-in-fact is established same before the DWC as it would be under a
when the act or omission is a substantial
factor in bringing about the harm and without Page 21
which the harm would not have occurred.5 See
id. Because there can be more than one cause- common law negligence or gross negligence
in-fact, a plaintiff need only prove that the claim.6 With respect to heart attacks,
defendant's conduct was "a" cause of injury, however, the compensability determination
not "the" cause or "the greater" cause. See Lee requires a different and more difficult burden
Lewis Constr., Inc. v. Harrison, 70 S.W.3d of proof. See TEX. LAB. CODE ANN.
778, 784 (Tex. 2001); McClure v. Allied 408.008; Div. Workers' Comp., Appeal No.
Stores of Tex., Inc., 608 S.W.2d 901, 903 91009, at *5. In interpreting this provision,
(Tex. 1980); see also Price v. Divita, 224 the DWC concluded that the legislature, by
S.W.3d 331, 336-37 (Tex. App. Houston [1st specifically providing for recovery in heart
Dist.] 2006, pet. denied). attack situations, intended to "set forth new
and more demanding standards for
Page 20 compensability" when the alleged
compensable injury is a heart attack. See Div.
In contrast, the causation burden Workers' Comp., Appeal No. 91009, at *5. As
imposed by section 408.008 and applied by observed by the DWC, the statutory language
the hearing officer requires the claimant to requires a comparison or weighing between
show, by a preponderance of the medical the conditions leading to the heart attack.
evidence, that work rather than the natural Div. Workers' Comp., Appeal No. 031786, at
progression of a preexisting heart condition *1. The phrase "rather than the natural
Barnes v. United Parcel Serv. Inc. (Tex. App., 2012)

progression of a preexisting heart condition 1.This section gives effect to article xvI,
or disease" is not superfluous. Div. Workers' section 26 of the Texas Constitution, which
Comp., Appeal No. 92115, at *5. It indicates provides that:
that the causation burden under section
408.008 requires proof of more than two Every person, corporation, or
equally plausible causes of the heart attack. company, that may commit a
Id. homicide, through . . . gross
neglect, shall be responsible in
Page 22 exemplary damages, to the
surviving husband, widow, heirs
Whereas a plaintiff in a gross negligence of his or her body, or such of
lawsuit can prevail if the fact finder them as there may be . . . .
concludes, among other elements, that the
defendant's conduct was a cause in fact of the TEX. CONST. art. XVI, 26.
injury (perhaps one among several), a heart 2. "'Injury' means damage or harm to the
attack is compensable under section 408.008
physical structure of the body and a disease or
only after the hearing officer weighs the
infection naturally resulting from the damage
potential contributing factors and concludes
or harm. The term includes an occupational
that work-related conditions contributed
disease." TEX. LAB. CODE ANN.
more to the heart attack than any preexisting
401.011(26) (West Supp. 2011). The
condition. These questions are not identical.
"naturally resulting from" language
Because the causation burden under section
encompasses the "producing cause" standard.
408.008 involves different questions from
Flores v. Emps. Retirement Sys., 74 S.W.3d
those in a gross negligence suit, we conclude
532, 549 (Tex. App.Austin 2002, pet.
that the causation issue was not fully and
denied) (citing Tex. Indem. Ins. Co. v. Staggs,
fairly litigated during the DWC
134 S.W.2d 1026, 1028-29 (Tex. Comm'n
compensability hearing, and we hold that the
App. 1940)).
trial court erred in granting summary
judgment on collateral estoppel grounds. 3.Under the Payday Law, a claimant may
choose between two alternative remedial
Conclusion coursesa common law remedy or a statutory
remedy. Igal v. Brightstar Info. Tech. Grp.,
Because we conclude that the trial court
Inc., 250 S.W.3d 78, 87 (Tex. 2008). The
improperly granted summary judgment, we
statutory right of action is cumulative. Id.
sustain Barnes's issue on appeal and reverse
and remand to the trial court for further 4.UPS's motion for rehearing asserts that
proceedings. the DWC hearing officer found as a factual
matter that Cooper's work was not even a
Michael Massengale cause of his heart attack. Although uPS relies
Justice on several statements in the DWC decision, it
focuses mainly on the officer's finding that
Panel consists of Chief Justice Radack and "Nathaniel Cooper's work was not a
Justices Massengale and Brown. 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
Notes: determination, the comparative element of
the causation standard under 408.008
"never came into play," and the DWC officer
Barnes v. United Parcel Serv. Inc. (Tex. App., 2012)

made a causation finding that is not producing cause of injury, and the claimant
materially different than what the jury will need not demonstrate that the death or
have to make for a gross negligence claim. disability was proximately caused by the
uPS thus contends that Barnes's claim is work-related injury. Id. at 221 n.7.
barred by collateral estoppel because the
DWC officer made a fact determination
6. in Crump, the plaintiff argued that
negating the cause-in-fact element of a gross requiring workers' compensation
negligence claim. Even if UPS has correctly complainants to demonstrate that that the
interpreted the DWC officer's fact finding, employee's work was a substantial factor in
such a fact finding would not preclude bringing about their injury imposed a higher
litigation of the causation issue in a burden on claimants than had formerly been
subsequent gross negligence suit because the imposed. Crump, 330 S.W.3d at 223-24. The
finding was not essential to the DWC officer's Court disagreed: "We have always required in
decision. The hearing officer only had to workers' compensation cases a showing of
decide whether the preponderance of medical 'unbroken causal connection' between the
evidence showed that work rather than the compensable injury[, which arises out of and
preexisting heart condition was the greater in the course and scope of employment,] and
factor. See TEX. LAB. CODE. ANN. the claimant's injury or death," Id. (citing Tex.
408.008; Div. Workers' Comp., Appeal No. Indem. Ins. Co. v. Staggs, 134 S.W.2d 1026,
031786, 2003 WL 22378848, at *1 (Aug. 20, 1030 (Tex. 1940)).
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.

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