State News : Texas

Interesting Cases in Texas Workers’ Comp Law 

Coming and Going Rule – A Question of Fact

The El Paso Court of Appeals recently reversed a district court’s summary judgment decision involving a coming and going case. Duane Cook was employed by an oilfield fishing and rental tools company in far West Texas. The company issued him a truck, which included tools, that he was to take to and from their yard and other job sites as part of his job.  He was allowed to drive the truck to and from home and the employer’s shop, but could not use it for personal errands.  He was the sole mechanic employee and was responsible for checking all of the company equipment before the crews took it to the worksites from the shop.  

The night before the accident in question, his supervisor told Cook to drive to the employer’s yard the next morning to inspect some equipment that was to leave the yard early in the morning to arrive on site at a designated delivery time.  Early that next morning, Cook began driving from his home to the yard and was involved in a MVA only one or two blocks from his house.   The Division held Cook sustained a compensable injury and had disability.  The Appeals Panel reversed and rendered a decision against Cook and found he was not acting in the course and scope of his employment.  Cook filed suit in district court and Texas Mutual filed a motion for summary judgment, which the trial court granted.  The El Paso Court of Appeals analyzed Texas workers’ compensation course and scope law and the coming-and-going rule with its exceptions and ultimately held that there was a genuine fact issue as to whether Cook’s trip originated in the course and scope of his employment or was in the furtherance of the affairs of his employer’s business and remanded the case to the trial court.  Cook v. Texas Mutual Insurance Company, 2023 WL 2919332, ___ S.W. 3d ___ (Tex. App. – El Paso, April 12, 2023).

Venue for a Cowboy?

In most Texas workers’ compensation cases, the question of venue is pretty straightforward. In the case of Dallas Cowboys offensive lineman, Alcus Reshod Fortenberry, however, it was less so. Texas Labor Code §410.252(b) requires suits to be brought in the county where the employee “resided at the time of the injury.”   In this case, Mr. Fortenberry was injured while attending training camp in California on 8/2/15.  He signed a 3-year contract in May of that year to play for the Cowboys.  He stayed in a hotel in Dallas County while attending team practices that summer beginning in May.  He sprained his knee in June and had to sit out practice for 2 weeks, but continued to attend and participate in other activities during that time.  Later that month, he traveled to Louisiana to rehab his knee, but stayed in touch with the team regarding his progress and returned to Dallas for a conditioning test with his teammates in July before training camp began.  On 8/2/15, he injured his knee and was added to the injured reserve list with an estimated recovery time of 9 to 12 months.  His contract was ultimately terminated in May of 2016.  He filed for workers’ compensation benefits and the Carrier denied them. The parties stipulated to venue in the Dallas Field Office at the DWC level.  Unhappy with his impairment rating, Fortenberry filed suit in district court in Dallas, and the Carrier sought transfer to Travis County.  Fortenberry alleged his residence at the time of the injury was the Marriott Residence Inn in Dallas. The trial court denied the Carrier’s motion and the trial went forward in Dallas. The jury returned a verdict for Fortenberry and the Carrier appealed. The Court of Appeals held Texas Labor Code § 410.252(b) did not apply and rejected his other venue arguments and reversed the trial court’s judgment. The Texas Supreme Court held the venue provision of Labor Code § 410.252(b) was mandatory and Fortenberry more than presented enough evidence that he “resided” in Dallas County at the time of his injury.  The Court further held that the fact that he was staying in a hotel for a prolonged period of time did not preclude him from qualifying as a “resident” and found it probative that the parties stipulated to venue at the Division level.  Fortenberry v. Great Divide Insurance Company, 2023 WL 2719475 (Tex., March 3, 2023).

Copyright 2023, Stone Loughlin & Swanson, LLP