Summary
In Martinez, the court held the language of the Government Code "limit[s] a state employee's scope of employment by mandating that the state employee obtain prior written authorization before working at home."
Summary of this case from Am. Zurich Ins. Co. v. MillerOpinion
No. 04-14-00558-CV
11-07-2018
Edna A. MARTINEZ, Appellant v. STATE OFFICE OF RISK MANAGEMENT, Appellee
At issue in this appeal is whether the home of state employee Edna A. Martinez is a location that can give rise to a workers' compensation claim. Because we conclude that under the facts presented in this case Martinez’s home is not a location that can give rise to a workers' compensation claim, we affirm the judgment of the trial court.
ADMINISTRATIVE REVIEW OF MARTINEZ'S CLAIM
Martinez was employed by the Texas Department of Family and Protective Services as a caseworker. On Saturday June 9, 2001, Martinez was at home preparing for court hearings on the following Monday. She was seated at her kitchen table when she allegedly decided to retrieve a different pen from the other side of her kitchen. As she walked across the kitchen, she slipped and fell, breaking her shoulder and hitting her head in the fall. On Monday, June 11, 2001, she reported her injury and submitted a claim for workers' compensation benefits to the State Office of Risk Management (SORM), the claim administrator for state-agency employees. Her claim was denied on the grounds that she was not injured in the course and scope of her employment, was not engaged in the furtherance of her employer’s business at the time of the injury, and had not established a causal connection between her injuries and her employment.
Martinez then requested a benefit review conference, a mediation process by which an employee may dispute coverage denials. At the conference, SORM argued Martinez’s injuries were not compensable because she did not obtain permission to work at home—a violation of the Department’s policy "requiring advance approval for overtime." In response, Martinez argued that caseworkers like her often work from home without prior approval. The benefit review officer listed two "disputed issue[s]" that remained unresolved when the conference ended: "Did [Martinez] sustain a compensable injury on June 9, 2001?" and "Did [Martinez] sustain disability as a result of the June 9, 2001, claimed injury, and if so, for what period(s)?"
At the contested case hearing, SORM reasserted its argument that Martinez violated agency policy by working from home without prior approval. The case officer concluded that Martinez was "furthering the business and affairs" of her employer at the time of her fall. However, the case officer also concluded that Martinez’s injury "did not arise out of nor [occur] in the course and scope of her employment." Thus, the case officer ruled in favor of SORM, holding that Martinez had not sustained a compensable injury.
Martinez appealed to the Texas Workers' Compensation Commission’s Appeals Panel. The panel reversed the hearing officer’s decision and rendered a decision that Martinez had sustained a compensable injury. According to the panel, Martinez’s "injuries arose out of her employment because the employment had a causal connection with her injuries."
REVIEW BY DISTRICT COURT
SORM then appealed to the district court, and both parties moved for summary judgment. In her motion, Martinez argued the sole ground for SORM’s denial of compensability was that she did not have permission to work at home in violation of her employer’s policy. Martinez emphasized that a violation of employer policy or rule that merely regulates the manner of doing work does not, as a matter of law, preclude compensability for an injury otherwise sustained in the course and scope of employment. In the alternative, she argued that SORM had waived its right to dispute compensability by failing to timely notify the TWCC and Martinez of its refusal of her claim.
A party may seek judicial review of an appeals panel’s decision by filing a petition in district court. See Tex. Lab. Code Ann. § 410.252(a).
In its motion, SORM did not reassert the ground it had argued throughout the administrative phase—that Martinez had violated agency policy by working from home and that therefore her injury was not compensable. SORM instead raised a statutory argument. According to SORM, Martinez’s injuries were not compensable because she was working at home without prior written authorization in violation of state law. SORM argued sections 658.010 and 659.018 of the Government Code "limit the place where work may be performed, with section 658.010 explicitly precluding work at home without prior written approval." The trial court denied Martinez’s motion for summary judgment and granted SORM’s motion for summary judgment. Martinez then appealed to this court.
APPELLATE REVIEW
On appeal, Martinez brought three issues: (1) SORM is jurisdictionally barred from challenging the issue of compensability because it did not appeal the contested case hearing officer’s findings regarding the elements of a compensable injury to the appeals panel; (2) SORM is jurisdictionally barred from asserting a statutory violation as a basis for the trial court to reverse the appeals panel’s decision; and (3) if SORM is not jurisdictionally barred from raising the statutory violation, the violation is no evidence that Martinez did not sustain a compensable injury.
On February 10, 2016, we issued an opinion in this appeal. See Martinez v. State Office of Risk Mgmt. , No. 04-14-00558-CV, 2016 WL 548115, at *9 (Tex. App.—San Antonio Feb. 10, 2016), aff'd in part, rev'd in part , 539 S.W.3d 266 (Tex. 2017). We first considered Martinez’s arguments relating to whether the trial court erred in granting SORM’s motion for summary judgment. We concluded that because SORM’s "statutory violations were never presented for consideration in the administrative review process, the trial court lacked jurisdiction to consider SORM’s argument based on those violations as a ground for summary judgment." Id. at *9. We therefore held the trial court erred in granting SORM’s motion for summary judgment because it "did not have jurisdiction to consider the statutory violations as a basis for granting summary judgment." Id. Having so held, we concluded we did not need to reach Martinez’s third issue regarding whether the statutory violations affected the compensability of her injury. Id.
We next considered Martinez’s issues related to whether the trial court erred in denying her motion for summary judgment. Martinez argued SORM had waived judicial review of "compensability" by failing to appeal the factual findings of the contested case hearing officer to the appeals panel. Id. Thus, she argued the trial court should have granted summary judgment in her favor based on the contested case hearing officer’s findings. SORM responded that "it was not required to appeal every adverse finding of the contested hearing officer to seek judicial review of the ‘issue’ of compensability." Id. In considering Martinez’s issues, we explained that a "compensable injury" is "an injury that arises out of and in the course and scope of employment for which compensation is payable." Id. (quoting TEX. LAB. CODE ANN. § 401.011(10) ). An injury "arises out of" employment "when the employment has a causal connection with the injuries either through its activities, its conditions, or its environments." Id. (citing Garcia v. Tex. Indem. Ins. Co. , 146 Tex. 413, 209 S.W.2d 333, 336 (1948) ). And, an injury is in the "course and scope of employment" "when the injury (1) relates to or originates in, and (2) occurs in furtherance of, the employer’s business." Id. (citing SeaBright Ins. Co. v. Lopez , 465 S.W.3d 637, 642 (Tex. 2015) ). We noted that Martinez’s waiver argument was based on the hearing officer’s findings that (1) she was furthering the business and affairs of the Department on the date in question, and (2) she was in the course of her work when she "got up from her table to go to a drawer to get a different pen." Id. We noted the first finding by the hearing officer "clearly relates to the ‘course and scope’ element of the compensable injury definition." Id. And, because the hearing officer used the term "course" in his second finding, we concluded "this finding also likely relates to the element of ‘course and scope.’ " Id. We explained that our interpretation was "further bolstered by the ‘statement of the evidence’ section of the hearing officer’s decision discussing the reasons he concluded Martinez’s injury did not ‘arise out of employment.’ " Id. We concluded that "even if SORM was required to appeal the hearing officer’s factual findings, the failure to appeal would not forfeit the ‘arises out of’ element of a compensable injury but would at most forfeit the ‘course and scope’ element of compensability." Id. We reasoned that "using the hearing officer’s findings to argue the hearing officer determined Martinez sustained a compensable injury is contrary to the hearing officer’s finding that Martinez ‘sustained an injury that did not arise out of nor was in the course and scope of her employment’ and its conclusion that Martinez ‘did not sustain a compensable injury.’ " Id. Therefore, we found no merit in Martinez’s first issue. Id.
Because this issue was "the only issue Martinez raises on appeal to challenge the trial court’s denial of her motion for summary judgment," we held "the trial court did not err in denying her motion for summary judgment." Id.
Both Martinez and SORM sought review of our decision at the supreme court. Martinez again argued (1) the hearing officer’s findings demonstrated that her injury arose out of and in the course and scope of her employment; and (2) because SORM did not challenge the findings and because the findings establish compensability, SORM cannot seek judicial review of any aspect of the compensability of her injury. State Office of Risk Mgmt. v. Martinez , 539 S.W.3d 266, 276 (Tex. 2017). The supreme court first noted that the Labor Code’s definition of "compensable injury" requires that the injury arise "out of and in the course and scope of employment." Id. (quoting TEX. LAB. CODE ANN. § 401.011(10) ). According to the supreme court, its "precedent demonstrates that this requirement has two elements." Id. "First, the injury must ‘relate to or originate in ... the employer’s business.’ " Id. (quoting SeaBright Ins. Co. v. Lopez , 465 S.W.3d 637, 642 (Tex. 2015) ); see id. ("The court of appeals referred to this as the ‘arises out of’ element."). "Second, the injury must ‘occur in the furtherance of [ ] the employer’s business.’ " Id. (quoting SeaBright , 465 S.W.3d at 642 ) (alteration in original); see id. ("The court of appeals referred to this as the ‘course and scope’ element.").
Martinez argued the contested-case hearing officer’s findings "conclusively established both elements." Id. The supreme court, however, agreed with this court that both findings by the contested case hearing officer "relate to the ‘course and scope’ (i.e. "furtherance") element of the compensability test." Id. The supreme court explained that its conclusion is supported by the "finding of fact that immediately follows those on which Martinez relies." Id. "Namely, the hearing officer also concluded that Martinez’s injury ‘did not involve any instrumentality’ of her employer." Id. "Injuries that involve an employer’s instrumentality are more likely to arise out of employment than to arise by chance." Id. Thus, the supreme court explained that "it appears this finding relates to the ‘arises out of’ element." Id. According to the court, the hearing officer’s next finding that Martinez’s injury "did not arise out of nor [occur] in the course and scope of her employment" provided further support. Id. at 276-77. The court reasoned that the hearing officer’s use of "nor" "demonstrates that the report contemplated the distinction between the two elements." Id. at 277. The court emphasized that "the finding itself explicitly states the opposite of what Martinez urges the report establishes," as did the report’s conclusion of law that Martinez "did not sustain a compensable injury." Id. Thus, the supreme court "agree[d] with the court of appeals that Martinez is not free to pick and choose among the hearing officer’s findings of fact." Id. "This is especially true when the conclusion she asks us to draw is contrary to some of the report’s findings of fact, to its main conclusion of law, and to the very decision that the hearing officer used the findings to support." Id. The supreme court concluded that "since Martinez’s argument–at most–established only the ‘course and scope’ element, SORM certainly remained free to argue that the ‘arises out of’ element precluded compensability." Id. Therefore, the supreme court held that we had "properly affirmed the trial court’s denial of Martinez’s motion for summary judgment." Id.
The supreme court then turned to the preservation issue brought by Martinez. Id. The court explained that the "hearing officer’s findings established, if anything, that Martinez was within the ‘course and scope’ of employment when she fell." Id. The supreme court considered "whether the Labor Code requires SORM to appeal those findings" and concluded that "it does not." Id. According to the court, the "Labor Code makes clear that a hearing officer’s incorrect findings of fact are ‘errors’ but not ‘issues.’ " Id. "While issues require individual appeal, errors do not." Id. "Accordingly, a party need not appeal every finding related to an issue in order to preserve the issue for judicial review." Id. "Because the trial court conducts review under the modified de novo standard, there is no requirement that it defer to the hearing officer’s factual findings." Id. "Thus, a party’s failure to challenge a factual finding does not preclude a trial court from reviewing the issue that the finding purportedly supports." Id. According to the supreme court, "even if the hearing officer’s report did establish that Martinez was in the ‘course and scope of employment’ when she fell, the officer’s ultimate conclusions that Martinez ‘did not sustain a compensable injury’ and ‘did not have [a] disability’ are the only issues either party could have appealed." Id. at 278. Because the "officer resolved these issues in SORM’s favor," SORM was not required to challenge the findings and could, on judicial review, "present arguments relating to both elements of compensability (i.e., that the injury must ‘arise’ out of the ‘course and scope’ of employment)." Id. Therefore, the supreme court found no merit in Martinez’s argument that SORM failed to preserve appellate review by not challenging these findings by the hearing officer. Id.
Turning to SORM’s petition for review, the supreme court considered SORM’s argument that this court had erred in concluding summary judgment should not have been granted in SORM’s favor. In our opinion, we had reasoned that "[b]ecause the statutory violations were never presented for consideration in the administrative review process, the trial court lacked jurisdiction to consider SORM’s argument based on those violations as a ground for summary judgment." Martinez , 2016 WL 548115, at *9. According to SORM’s petition to the supreme court, its argument that Martinez did not suffer a compensable injury because she violated a state statute was not an "issue" but was instead an "argument," and thus did not have to be presented in the administrative review process. SORM , 539 S.W.3d at 273. The supreme court agreed with SORM, explaining "[t]hroughout the administrative review process, the parties in this case disputed the same two points: whether Martinez was injured in the course and scope of her employment and whether she was disabled." Id. at 274. "Here, the foremost disputed issue was consistently whether Martinez was in the course and scope of her employment when she fell." Id. The supreme court noted that "[a]t different levels, the parties made different arguments and the administrative officers decided this issue on different grounds." Id. The supreme court concluded "the ‘disputed issue’ and the issue ‘decided by the appeal panel and on which judicial review is sought’ are the same—whether Martinez was in the course and scope of her employment at the time of her accident." Id. at 275. According to the supreme court, "[t]he policy ground SORM argued in the administrative process and the statutory ground it argued in its motion for summary judgment are both arguments that support resolving the issue in SORM’s favor." Id. at 275. "Consequently, SORM was free to raise them at any time." Id. Thus, the court reversed our judgment in part and remanded the cause for us to consider the merits of Martinez’s third issue: whether the statutory violation is evidence that Martinez did not sustain a compensable injury. See id. In its instructions to this court, the supreme court explained that the "line between issues and arguments may not always be easy to articulate, but the parties' actions usually point to where it lies." Id. at 278. "Edna Martinez injured herself while working from home." Id. "The foremost issue is whether her home is a location that can give rise to a worker’s compensation claim." Id. The supreme court instructed this court "to consider all of SORM’s arguments on this issue." Id.
STANDARD OF REVIEW
Martinez’s third issue relates to whether the trial court erred in granting SORM’s motion for summary judgment. We review a summary judgment de novo. Provident Life & Acc. Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). In reviewing the granting of a traditional summary judgment, we consider all the evidence in the light most favorable to the respondent, indulging all reasonable inferences in favor of the respondent, and determine whether the movant (SORM) proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548-49 (Tex. 1985).
We note that as the party seeking judicial review of the Worker’s Compensation Commission’s decision, SORM has the burden in the trial court to prove by a preponderance of the evidence that the commission decision was incorrect. See Tex. Lab. Code Ann. § 410.303.
Further, construing a statute is a legal question that we review de novo. City of Rockwall v. Hughes , 246 S.W.3d 621, 625 (Tex. 2008). "In construing statutes, we ascertain and give effect to the Legislature’s intent as expressed by the language of the statute." Id. "We must use any definitions the legislature prescribes." SORM , 539 S.W.3d at 270. "Otherwise, we construe the statute’s words according to their plain meaning." Id.
STATUTORY VIOLATION ARGUMENT
The Labor Code defines "compensable injury" as an injury that "arises out of and in the course and scope of employment for which compensation is payable under this subtitle." TEX. LAB. CODE ANN. § 401.011(10). "Course and scope of employment" is defined as
an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:
(A)transportation to and from the place of employment unless:
(i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;
(ii) the means of the transportation are under the control of the employer; or
(iii) the employee is directed in the employee’s employment to proceed from one place to another place; or
(A)travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless:
(i) the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel; and
(ii) the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.
Id. § 401.011(12) (emphasis added). Although the Labor Code does not define the phrase "arise out of," the supreme court has stated that for an injury to arise out of employment, the injury must "relate to or originate in ... the employer’s business." SORM , 539 S.W.3d at 276 (quoting SeaBright , 465 S.W.3d at 642 ).
SORM argues that the violation of two statutes in the Government Code, sections 658.010 and 659.018, affect the compensability of Martinez’s injury. Section 658.010 of the Government Code, "Place Where Work Performed," is found in chapter 658, which is titled "Hours of Labor." Chapter 658 sets out the work hours required for salaried employees (not less than 40 hours a week), the regular office hours for state employees (8 a.m. to 5 p.m.), the possibility of staggered working hours, and the place where work shall be performed. See TEX. GOV'T CODE ANN. §§ 658.002, 658.005, 658.006, 658.010. Specifically, section 658.010 provides the following:
(a) An employee of a state agency shall, during normal office hours, conduct agency business only at the employee’s regular or assigned temporary place of employment unless the employee :
(1) is travelling; or
(2) received prior written authorization from the administrative head of the employing state agency to perform work elsewhere.
(b) The employee’s personal residence may not be considered the employee’s regular or assigned temporary place of employment without prior written authorization from the administrative
head of the employing state agency.
Id. § 658.010 (emphasis added).
The other statute, section 659.018, "Compensatory Time: Place Where Work Performed," is located within chapter 659, which is titled "Compensation." Chapter 659 relates to how employees accrue compensatory time and overtime, how they accrue longevity pay, how they are paid and how often they are paid, and how their pay is deducted. See id. §§ 659.001-.308. Section 659.018, the statute relied on by SORM, provides the following:
(a) Except under circumstances specified in the General Appropriations Act or as provided by Subsection (b), an employee of a state agency as defined by section 658.001 may not, for hours worked during any calendar week, accumulate compensatory time off under section 659.015(f) or 659.016 to the extent that the hours are attributable to work performed at a location other than the employee’s regular or temporarily assigned place of employment.
(b) An employee may accumulate compensatory time off for hours worked during any calendar week at the employee’s personal residence if the employee obtains the advance approval of the administrative head of the agency for which the employee works or that person’s designee.
Id. § 659.018 (emphasis added).
SORM argues that the violation of these two statutes ( sections 658.010 and 659.018 ) affect both the "arises out of" element and the "course and scope" elements required under the Labor Code’s compensable injury definition. With regard to course and scope, SORM argues that because Martinez failed to comply with the statutory requirement to obtain prior written authorization before working from home, she was acting outside the scope of her employment. In support of its argument, SORM cites Quarles v. Lumbermen’s Reciprocal Ass'n , 293 S.W. 333, 333 (Tex. App.—Beaumont 1927, no writ), and Bugh v. Employers' Reinsurance Corp. , 63 F.2d 36, 36 (5th Cir. 1933).
In Quarles , 293 S.W. at 333, the employee worked for a lumber company at its sawmill and, specifically, in the planing mill. The employer’s rules prohibited any employee who worked in the planing mill from going into the box factory unless the employee first obtained the consent of the foreman of the box factory. Id. at 334. At the time he was injured, the employee had violated the employer’s rules by entering the box factory without permission from the foreman and "ripping a board or plank in the box factory" on "a machine called a ripsaw." Id. at 333. The employee injured "the index finger of his right hand, resulting in the loss of that finger at the second joint." Id. The Beaumont Court of Appeals explained that "it was no part of [the employee]’s duties to operate the ripsaw by which he was injured" and therefore his injury "did not arise out of and was not sustained in the course of his employment." Id. SORM argues that like the employee in Quarles , Martinez was prohibited from working at a specific location, her home, without prior approval. Thus, SORM argues her injury was not sustained in the course and scope of her employment.
In Bugh , 63 F.2d at 36, the Fifth Circuit considered whether the family of a manager of oil wells, who was killed in an airplane accident, was entitled to workers' compensation benefits. The manager had used his private airplane to transfer some parts of machinery to the oil wells and was killed in an airplane accident. Id. Although the manager’s employer knew the manager owned a private airplane, the employer had not authorized the manager to use the plane in connection with his employment and had no knowledge he had used it. Id. Instead, the employer had furnished the manager with an automobile to use in going to and from the place of the supplier. Id. The Fifth Circuit reasoned that "[i]n this case the employee voluntarily exposed himself to a peril which was not, in the language of the Texas Supreme Court ... ‘necessarily or ordinarily or reasonably inherent in or incident to the conduct’ of his work." Id. at 37 (quoting Lumberman’s Reciprocal Assoc. v. Behnken , 112 Tex. 103, 110, 246 S.W. 72, 73 (1922) ). The Fifth Circuit explained that the manager’s "use of the plane was in direct violation of a penal statute which, after reciting that the public safety requires uniform regulations concerning aircraft and the navigation thereof, makes it unlawful for any person to navigate an airplane within the state unless it is licensed and unless the airman or pilot also is licensed." Id. The court concluded that "in violating these statutory regulations," the manager "was doing what he was not employed to do and was therefore acting not within but outside the scope of his employment." Id. (emphasis added). SORM argues that just as in Bugh , when Martinez was injured, she was doing what she was not employed to do, working at home without prior approval, and was therefore acting outside the scope of her employment.
In response, Martinez points out that the Fifth Circuit is not binding precedent. Further, she argues that under the Texas Supreme Court’s opinion in Maryland Casualty Co. v. Brown , 131 Tex. 404, 115 S.W.2d 394 (1938), her violation of any statute related to the manner of her work, and not to the scope of her employment. Therefore, she argues her injury was compensable. In Brown , the Texas Supreme Court announced the rule that "a violation of instructions of an employer by an employee will not destroy the right to compensation" "if the instructions relate merely to the manner of doing work." Id. at 409, 115 S.W.2d 394. The court explained that a violation of instructions "intended to limit the scope of employment will prevent a recovery of compensation." Id. Martinez contends that her failure to obtain prior approval before working at home was merely a violation of the manner of doing work and did not affect the scope of her employment. According to Martinez, while the statutes may require prior approval to work at home, they do not forbid an employee from ever working at home and "clearly contemplate[ ] that employees sometimes do."
In contrast, SORM argues that Martinez’s actions did not relate merely to the manner of doing work but limited the scope of her employment. SORM emphasizes that in Brown , the supreme court stated the employee had not acted within the scope of his employment. Id. at 397. The employee in Brown worked for Gateway Chevrolet Co. in Laredo, Texas, and was injured in Mexico near Nuevo Laredo. Id. at 395. The worker’s compensation insurance carrier emphasized the employee had not been employed to do business in Mexico and had instructions from his employer "not to solicit business or to go into that country for the purpose of selling automobiles, or to go there on any other business of the employer." Id. at 396. In considering the facts presented, the supreme court reasoned that even if the employee had been engaged in work relating to his employment at the time he was injured in Mexico, the employer had a good basis for giving the employee instructions prohibiting him from taking a company vehicle to Mexico. Id. at 396-97. "In view of the probability of the confiscation of cars if used in Mexico, we are of the opinion that the instructions testified about, if actually made and in good faith enforced, would have the effect of limiting the scope of the employment of the salesmen, and would be more than merely an attempt to regulate the manner of doing work." Id. at 397. SORM argues that similarly, in this case, sections 658.010 and 659.018 restrict the scope of employment by placing limitations on the location where state employees may perform work without obtaining prior written approval.
In support of her argument that any statutory violations relate merely to the manner of her work, Martinez also relies on a Dallas Court of Appeals opinion, Brown v. Forum Ins. Co. , 507 S.W.2d 576 (Tex. Civ. App.—Dallas 1974, no writ). In Forum , the employee, a geophysicist, had been directed by his employer to go from one city to another to pick up a piece of machinery and bring it back to the work site. Id. at 577. The employee was aware of the company rule against using private or chartered aircraft in connection with his duties. Id. Nevertheless, he flew his own private plane to accomplish his task and was killed when his plane crashed. Id. The court concluded the employee’s violation of the rule related merely to the manner of doing work because the employee "was admittedly acting in furtherance of his employer’s business in making the trip, and in using the aircraft he was merely violating a rule regulating the manner and method of performing the work." Id.
In so concluding, the Dallas Court of Appeals relied on an Eastland Court of Appeals opinion in Liberty Mutual Ins. Co. v. Boggs , 66 S.W.2d 787, 794 (Tex. Civ. App.—Eastland 1933, writ dism'd). In Boggs , the employee had been "injured by a sudden blast of lead-impregnated dust" and had not been wearing a respirator in violation of his employer’s rule. Forum , 507 S.W.2d at 577 (discussing Boggs ). The Eastland Court of Appeals held that "he merely violated a rule relating to the manner and method of doing his work, and that such violation did not defeat his right to compensation." Forum , 507 S.W.2d at 577 (discussing Boggs ). We agree with the analysis of the Boggs court. An employee not wearing a respirator in violation of an employer’s rule clearly relates to the manner of carrying out his work. However, we believe Forum was wrongly decided. An employer’s rule prohibiting the use of charter and private aircraft is more than a mere restriction of the manner of doing work. The employee in Forum was not hired to fly his private plane to accomplish his work tasks. Similar to the employee in the Fifth Circuit’s Bugh opinion, in violating the employer’s rule, the employee in Forum "was doing what he was not employed to do " and was therefore not acting within the scope of his employment. Bugh , 63 F.2d at 37 (emphasis added). Thus, we disagree with the analysis of our sister court in Forum .
Of course, in this appeal, an employee’s violation of an employer’s rule is not at issue. Instead, the issue is whether a state employee’s violation of state statutes relating to her employment affects the scope of her employment and thus the compensability of her injury. Thus, none of the cases cited by the parties are controlling. In determining whether sections 658.010 and 659.018 limit the scope of a state employee’s employment, we must consider their plain language and attempt to ascertain their meaning. SORM , 539 S.W.3d at 270.
Section 658.010 is titled "Place Where Work Performed" and is found within chapter 658, titled "Hours of Labor." Section 658.010 provides that an employee of a state agency "shall, during normal office hours, conduct agency business only at the employee’s regular or assigned temporary place of employment unless the employee ... received prior written authorization from the administrative head of the employing state agency to perform work elsewhere." TEX. GOV'T CODE ANN. § 658.010(a) (emphasis added). It then continues by reiterating that an "employee’s personal residence may not be considered the employee’s regular or assigned temporary place of employment without prior written authorization from the administrative head of the employing state agency." Id. § 658.010(b) (emphasis added). Section 659.018, titled "Compensatory Time: Place Where Work Performed," is found within chapter 659, titled "Compensation." Chapter 659 provides the manner in which salaries are set, overtime and compensatory time are earned, and state employees are paid. See id. §§ 659.001-659.308. Section 659.018 prohibits an employee from accumulating compensatory time if the employee’s work is "performed at a location other than the employee’s regular or temporarily assigned place of employment." Id. § 659.018(a). Similar to section 658.010, an employee may only accumulate compensatory time for any work performed "at the employee’s personal residence if the employee obtains the advance approval of the administrative head...." Id. § 659.018(b). Thus, sections 658.010 and 659.018 restrict the place where state employees can work for determining the hours they have worked and whether they have earned compensatory time. That is, the employees are restricted from where they can earn compensation for the work they perform. We interpret this language as more than a regulation of the manner of doing work. It is a prohibition on where state employees can conduct agency business and where agency business can be performed without prior written authorization.
We note Martinez argues that neither section is applicable to workers' compensation cases. First, she argues section 659.018, which relates to how employees accrue compensatory time and overtime, does not apply in this case because the date of her injury was the first day of the pay period. Thus, she was neither working overtime nor accruing compensatory time when she was injured. However, in considering whether section 659.018 affects an employee’s scope of employment by limiting where an employee may work on state business, we must necessarily examine the entire statutory scheme by considering how the Government Code deals with work hours and accrual of compensatory time. See Harris Cnty. Hosp. Dist. v. Tomball Reg'l Hosp. , 283 S.W.3d 838, 842 (Tex. 2009) (explaining that courts are to examine the Legislature’s words in context of the statute as a whole and do not consider words or parts of the statute in isolation).
Second, Martinez argues that sections 658.010 and 659.018 of the Government Code do not apply because they conflict with the Texas Workers' Compensation Act, specifically section 401.011(12) of the Labor Code. Section 401.011(12) defines "course and scope of employment" as including "an activity conducted on the premises of the employer or at other locations. " TEX. LAB. CODE ANN. § 401.011(12) (emphasis added). According to Martinez, this definition conflicts with sections 658.010 and 659.018 of the Government Code, which require state employees to obtain prior written authorization before working at home. Martinez argues that there is nothing in the legislative history to indicate the Legislature intended sections 658.010 and 659.018 of the Government Code to supersede the Workers' Compensation Act. In considering the plain language of all three statutes, we do not find that they conflict with one another. Section 401.011(12) provides a definition of course and scope of employment that includes an activity conducted on the premises of the employer and may include activities conducted at other locations. Sections 658.010 and 659.018 then limit where those activities may be conducted at other locations by providing that a state employee may work at his home if he obtains prior written authorization. We do not see these statutes as irreconcilable, and even if they were, sections 658.010 and 659.018 would control because section 401.011(12) is merely a general definition while sections 658.019 and 659.018 are specific as to where a state employee may conduct state business. See TEX. GOV'T CODE ANN. § 311.026.
For the reasons stated above, we hold that sections 658.010 and 659.018 of the Government Code limit a state employee’s scope of employment by mandating that the state employee obtain prior written authorization before working at home. Accordingly, assuming Martinez failed to obtain prior written approval from her supervisor before working at home, her injury is not compensable.
The summary judgment record includes Martinez’s testimony from the benefit review conference where Martinez unequivocally testified she did not obtain prior approval before working from home. As it is undisputed that Martinez did not comply with sections 658.010 and 659.018 of the Government Code before working from home, she was not acting within the scope of her employment when she was injured. Therefore, she did not sustain a compensable injury. Accordingly, the trial court did not err in granting summary judgment in SORM’s favor.
We affirm the judgment of the trial court.
DISSENT TO DENIAL OF MOTION FOR EN BANC RECONSIDERATION
Dissenting Opinion by: Liza A. Rodriguez, Justice, joined by Rebeca C. Martinez, Justice
I respectfully dissent from the denial of the appellant’s motion for rehearing en banc for the reasons discussed below.
After the Supreme Court reversed on the jurisdictional issue and remanded for consideration of Martinez’s substantive issue, this court issued an opinion affirming the trial court’s summary judgment in favor of the State Office of Risk Management ("SORM"). See Martinez v. State Office of Risk Management , No. 04-14-00558-CV, 582 S.W.3d 513, 2018 WL 5808333 (Tex. App.—San Antonio Nov. 7, 2018, no pet. h.) ("SORM II "). The court agreed with SORM that Martinez’s violation of sections 658.010 and 659.018 of the Texas Government Code "affects" the compensability of her injury. See id. at 519, at *5. The two statutes govern the place where a state employee may work and earn compensation for the hours worked. See TEX. GOV'T CODE ANN. §§ 658.010, 659.018. After performing a statutory interpretation analysis, the court held that the two Government Code statutes do not merely regulate "the manner of doing work," as argued by Martinez, but "limit a state employee’s scope of employment by mandating that the state employee obtain prior written authorization before working at home." SORM II , 582 S.W.3d at 525, 2018 WL 5808333, at *8-9. The court concluded that, based on Martinez’s testimony admitting she did not obtain prior approval before working from home, it was undisputed that she did not comply with the Government Code statutes and therefore she was not acting within the scope of her employment when she fell; thus, she did not sustain a compensable injury. Id. at 524, at *9.
This appeal was originally set for formal submission and oral argument before a panel consisting of Chief Justice Marion, Justice Angelini, and Justice Pulliam. Because Justice Pulliam is no longer a member of this court, this appeal is being decided by the remaining two panel members in accordance with Texas Rule of Appellate Procedure 41.1(b) and Rule 8(j) of our Internal Operating Procedures.
In reaching its conclusion, the court rejected Martinez’s argument that the two Government Code statutes do not control in this situation because they conflict with the Texas Worker’s Compensation Act, as codified in sections 401.001 through 419.007 of the Labor Code. See id. As Martinez pointed out, section 401.011(12) of the Worker’s Compensation Act defines "course and scope of employment," which is an element of a compensable injury, as including "an activity conducted on the premises of the employer or at other locations." TEX. LAB. CODE ANN. § 401.011(12). Thus, the Worker’s Compensation Act contemplates an employee working from "other locations," which would include from home. Further, as noted by Martinez, the legislative history contains nothing to indicate the legislature intended the two Government Code statutes to supersede section 401.011(12) ’s definition of the scope of employment for purposes of worker’s compensation. I disagree with the court’s conclusion in SORM II that sections 658.010 and 659.018 of the Government Code do not conflict with section 401.011(12) of the Labor Code. See SORM II, 582 S.W.3d at 524, 2018 WL 5808333, at *9 (finding no conflict between the plain language of the three statutes).
I also disagree with the opinion’s statement that, even if the statutes were irreconcilable, the Government Code provisions would control because they are the more specific provisions. See id. To the contrary, in my view of the plain statutory language, the Government Code statutes regulating where any state employee may work for compensation are the more general provisions, while the Worker’s Compensation Act’s definition of the "course and scope of employment" is the more specific provision in that it applies only to the small subset of employees who sustain an injury while working. Therefore, I would hold that section 401.011(12) ’s definition of "course and scope of employment" controls in this situation. Because that statute contemplates working from "other locations," including from home, Martinez’s failure to comply with the Government Code’s requirement of prior approval is not dispositive of the summary judgment issue, i.e., the issue of whether she sustained a compensable injury.
I also believe the summary judgment record raises a disputed fact question on the issue of whether Martinez had authority from her employer to work at home. As recognized by this court in SORM I , there was evidence that the Department of Family and Protective Services’s policy allowed Martinez to work from home. See Martinez v. State Office of Risk Management , No. 04-14-00558-CV, 2016 WL 548115, at *8 (Tex. App.—San Antonio Feb. 10, 2016) (mem. op.), aff'd in part , rev'd in part , 539 S.W.3d 266 (Tex. 2017) ("SORM I"). Further, as the SORM I opinion states, "[a]s the appeals panel noted in its decision, ‘[t]here is evidence to support the hearing officer’s decision that the claimant had the authority to work at home at the time.’ " Id. Under the standard of review for a traditional summary judgment, we consider all the evidence in the light most favorable to the non-movant, and indulge all reasonable inferences from the evidence in favor of the non-movant, in determining whether the movant proved there were no genuine issues of material fact and it was entitled to judgment as a matter of law. See id. at *4 (citing Nixon v. Mr. Prop. Mgmt. Co. , 690 S.W.2d 546, 548-49 (Tex. 1985) ). Having determined that Martinez’s violation of the Government Code does not entitle SORM to judgment as a matter of law, I would hold that the summary judgment record raises a genuine issue of material fact concerning whether Martinez had authority from her employer to work from home.
Based on these reasons, I would grant Martinez’s motion for rehearing en banc, withdraw the panel opinion in SORM II , and re-submit the appeal for consideration by the en banc court.