Nancy Broadhurst v. Employees Retirement System of Texas ( 2002 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00652-CV
Nancy Broadhurst, Appellant
v.
Employees Retirement System of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. GN100561, HONORABLE DARLENE BYRNE, JUDGE PRESIDING
Nancy Broadhurst appeals the district court=s judgment affirming a final order by the Board
of Trustees for the Employees Retirement System of Texas (ABoard@ or AERS@) denying her application for
occupational disability retirement benefits (Aretirement benefits@). On appeal, Broadhurst continues to
challenge the Board=s order, alleging that it was arbitrary and capricious and incorrectly interpreted the
statute governing her claim. We will affirm the judgment of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
Broadhurst was employed as a Child Protective Services (ACPS@) specialist for the Texas
Department of Protective and Regulatory Services. This position required Broadhurst to receive,
investigate, and evaluate reports of child abuse. In performing this primary task, she regularly carried car
seats, young children, their belongings, and case files. Additionally, she traveled county-wide by car to
schools, homes, and other facilities to interview children and family members. On October 18, 1995,
Broadhurst was injured at work when she sat down and leaned back in a chair that did not have a back
cushion. Shortly afterward, Broadhurst heard a loud popping sound in her back and began experiencing
pain on her way home from work. Initially, the pain in her back was not debilitating. Approximately one
year later, the pain in her back became too great for her to continue working; she subsequently resigned
from her job and submitted an application to ERS for retirement benefits. The Board denied her application
because it found her disability did not meet the definition of Aoccupational disability@ in the ERS statute. See
Tex. Gov=t Code Ann. ' 811.001(12) (West 1994).1 Broadhurst appealed the Board=s decision. After a
contested case hearing, an administrative law judge (AALJ@) found, in contrast to the Board=s decision, that
1
Broadhurst=s appeal was pending before September 1, 2001 and is governed by the law in effect
at that time. The definition of Aoccupational disability@ was amended in 2001. See Act of May 23, 2001,
77th Leg., R.S., ch. 1231, ' 1, 2001 Tex. Gen. Laws 2827, 2827. The amendment became effective
September 1, 2001. The current definition reads: A>Occupational death or disability= means death or
disability from an injury or disease that directly results from a specific act or occurrence determinable by a
definite time and place, and directly results from a risk or a hazard peculiar to and inherent in a duty that
arises from and in the course of state employment.@ Tex. Gov=t Code Ann. ' 811.001(12) (West Supp.
2002).
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Broadhurst qualified for retirement benefits. The Board refused to adopt the ALJ=s findings of fact and
conclusions of law and denied retirement benefits. Broadhurst sought judicial review of the Board=s order.
The district court affirmed the Board=s order denying benefits.
On appeal, Broadhurst alleges that the district court erred in affirming the ERS order on the
grounds that the order (1) was arbitrary and capricious because it disregarded the findings of her treating
physician in favor of the findings of the ERS Medical Board; (2) was arbitrary and capricious because it
applied the definition of occupational disability, specifically the requirement that her disability arise from an
injury that Adirectly results from a specific act or occurrence,@ differently than the Board had applied the
requirement to prior, similarly-situated applicants; and (3) incorrectly interpreted the requirement in the
definition of occupational disability that the disability directly result from an Ainherent risk or hazard peculiar
to a duty that arises from and in the course of state employment.@ Id. Broadhurst=s third issue is dispositive
of her appeal; thus, we will confine our analysis accordingly.2 See Tex. R. App. P. 47.1.
DISCUSSION
Broadhurst=s application for retirement benefits is governed by chapters 810-815 of the
Texas Government Code. See Tex. Gov=t Code Ann. '' 810.001-815.5112 (West 1994 & Supp. 2002).
2
Broadhurst=s first two issues concern matters addressed in recent opinions by this Court. See
Flores v. Employees Ret. Sys., 74 S.W.3d 532 (Tex. App.C2002, pet. filed); Langford v. Employees
Ret. Sys., 73 S.W.3d 560 (Tex. App.CAustin 2002, pet. filed).
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At the time her claim arose, section 811.001(12) defined Aoccupational disability@ to mean a disability
Afrom an injury or disease that directly results from a specific act or occurrence determinable by a definite
time and place, and directly results from an inherent risk or hazard peculiar to a duty that arises from and in
the course of state employment.@ Id. at ' 811.001(12). The statute contains two prongs: (1) the injury
must directly result from a specific act or occurrence determinable by a definite time and place and (2) the
injury must directly result from an inherent risk or hazard peculiar to a duty that arises from and in the course
of state employment. Id. Broadhurst=s claim hinges on the interpretation of Ainherent risk or hazard peculiar
to a duty@ in the second prong of the statute.
In determining the appropriate interpretation of a statute, our objective is to give effect to
the Legislature=s intent. National Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). AAn
administrative agency=s construction or interpretation of a statute, which the agency is charged with
enforcing, is entitled to serious consideration by reviewing courts, so long as that construction is reasonable
and does not contradict the plain language of the statute.@ Employees Ret. Sys. v. Jones, 58 S.W.3d 148,
151 (Tex. App.CAustin 2001, no pet.). However, when the interpretation does not involve technical or
regulatory matters within the agency=s expertise but requires the discernment of legislative intent, we give
less deference to the agency=s reading of a statute. Rylander v. Fisher Controls Int=l, Inc., 45 S.W.3d
291, 302 (Tex. App.CAustin 2001, no pet.).
Thus, the task of statutory construction here involves a question of law: what did the
Legislature intend when it used the phrase Adirectly results from an inherent risk or hazard peculiar to a duty@
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arising from state employment? We look at phrases in context, based on the ordinary meaning of the
words. Rylander, 45 S.W.3d at 302. We will give effect to all the words of a statute and not treat any
statutory language as surplusage if possible. Chevron Corp. v. Redmon, 745 S.W.2d 314, 316 (Tex.
1987).
AInherent Risk or Hazard Peculiar to a Duty@
The Board rejected the ALJ=s conclusion that Broadhurst=s disability directly resulted from a
risk or hazard peculiar to her duties of state employment and substituted its own finding that: AThe risk or
hazard associated with the universal act of attempting to sit in a chair is one that applies broadly to anyone
who sits down.@ Based on its interpretation of the statute, the Board requires applicants for occupational
disability retirement benefits to prove that their injury was caused by a risk or hazard that is both inherent in
and peculiar to their job duties. Broadhurst, however, urges a disjunctive interpretation of the statute.
Broadhurst suggests that the phrase Aan inherent risk or hazard peculiar to a duty@ requires that her
incapacity result from either (1) a risk that is inherent to a job-related duty or (2) a hazard that is peculiar to
a job-related duty. Thus, she argues she only has to prove one of the statutory criteria, not both. She
further asserts that because her duties as a caseworker included lifting over twenty pounds, climbing,
stooping, standing, and driving, the risk of back injury was inherent to her primary job responsibilities and
thus sufficient to qualify for benefits.
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This issue has been addressed by this Court on at least three separate occasions. See
Flores v. Employees Ret. Sys., 74 S.W.3d 532 (Tex. App.CAustin 2002, pet. filed); Langford v.
Employees Ret. Sys., 73 S.W.3d 560 (Tex. App.CAustin 2002, pet. filed); Bond v. Employees Ret. Sys.,
825 S.W.2d 804, 806 (Tex. App.CAustin 1992, writ denied). In Bond, we held that in order to satisfy the
second prong of the statute, two prerequisites must be satisfied. Bond, 825 S.W.2d at 806. First, the
employee=s injury must directly result from a risk or hazard that is inherent in a duty of the employee that
arises from and in the course of her state employment. Id. Second, the inherent risk or hazard must also
be peculiar to such a duty. Id. It would be inconsistent with our holding in Bond to adopt the interpretation
that Broadhurst urges.
Broadhurst argues in the alternative that even if the Board=s interpretation of the statute is
correct, Broadhurst qualifies for benefits because her disability was the result of a risk that was both inherent
in and peculiar to her duties as a CPS specialist. We construe her argument as a challenge to whether the
Board=s decision on this point was supported by substantial evidence.
In reviewing an agency decision, the court must decide whether the decision was supported
by substantial evidence in the record. See Tex. Gov=t Code Ann. '' 815.511(b) (providing for review of
ERS decisions by substantial evidence); 2001.174 (West 2000) (providing for review of agency decisions).
This is a limited standard of review that affords great deference to the agency in its field of expertise.
Railroad Comm=n v. Torch Operating Co., 912 S.W.2d 790, 792 (Tex. 1995). A court applying the
substantial evidence standard of review may not substitute its judgment for that of the agency. See Tex.
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Gov=t Code Ann. ' 2001.174; Mireles v. Texas Dep=t of Pub. Safety, 9 S.W.3d 128, 131 (Tex. 1999).
The issue for the reviewing court is not whether the agency=s decision was correct, but whether the record
demonstrates some reasonable basis for the agency=s action. See Mireles, 9 S.W.3d at 131; City of El
Paso v. Public Util. Comm=n, 883 S.W.2d 179, 185 (Tex. 1994). Courts must affirm administrative
findings in contested cases if there is more than a scintilla of evidence to support them. See Torch
Operating, 912 S.W.2d at 792-93. AIn fact, an administrative decision may be sustained even if the
evidence preponderates against it.@ Mireles, 9 S.W.3d at 131. Before reviewing the evidence at issue
here, a discussion of recent case law interpreting Aan inherent risk or hazard@ is helpful to understanding the
context of Broadhurst=s claim and our resolution of the issue.
We explained in Flores that a risk or hazard is peculiar to a duty to the extent that the duty
imposes a risk or hazard different from the usual or normal risks encountered by a person not engaged in
that duty. Flores, 74 S.W.3d at 553. In so holding, this Court expressly rejected as overly restrictive the
argument that a risk or hazard is peculiar only if it is different from the normal risks encountered by someone
engaged in the same duty. Id. at 552-53. We noted that Flores=s job as a social worker aide was defined
by the primary task of transporting children in a car, and that in performance of this primary task, she spent
between seven and twelve hours each day, or seventy-five percent of her working hours, in a car. Id.
Thus, she faced a much higher risk of being injured in a car accident by virtue of her job than other drivers.
Id. at 553. The increased risk of injury resulting from an automobile accident faced by Flores was therefore
an inherent risk that was peculiar to her work-related duties. Id.
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In Langford, Calvin Langford, an employee of the Texas Department of Criminal Justice,
was injured when he slipped on a wet floor while performing his duties as a food service manager at one of
the Department=s correctional facilities. Langford, 73 S.W.3d at 563-64. The Department=s training
manual addressed the need for floors to be scrubbed daily and specifically instructed employees regarding
the prevention of slips, trips, and falls. Id. The manual also required that Awet floor@ signs be posted
immediately after cleaning and recommended that both employees and inmates working in the food service
area wear non-skid shoes. Id. Further, because Langford was a supervisor, he frequently risked injury by
walking into wet areas to perform his duties. Id. These facts led this Court to conclude that Langford=s
injury was peculiarly related to his unique duties as a food service manager. Id.
In both Langford and Flores the employee was injured while performing a task peculiar to
his or her primary job responsibilities. A person engaged in other types of employment would face a lower
risk of injury due to automobile accident or slipping on a wet floor than did these two employees.
Broadhurst asserts that her case is analogous to both Flores and Langford in that, because her duties as a
CPS specialist included activities that could cause back problems (including carrying children, car seats, and
case files), she was subjected to an increased risk of suffering a back injury. Therefore, her back injury,
which resulted from sitting and leaning back in a chair, should properly be characterized as resulting from a
risk inherent and peculiar to her primary job responsibilities. The test, however, is not whether other acts
Broadhurst engaged in at work may have made her more susceptible to injury, but whether the act that
caused the injury was peculiar to her duties as a CPS specialist.
8
The standard for determining whether a risk is inherent in and peculiar to one=s duties of
employment is whether that duty imposes a risk or hazard different from the usual risks encountered by a
person not engaged in that duty. Langford,73 S.W.3d at 570; Flores, 74 S.W.3d at 552 (clarifying
Bond). Broadhurst ran no heightened risk of suffering injury as a result of sitting down in a chair than does
any worker who sits and stands throughout the course of the day. In other words, a person not engaged in
work as a CPS specialist runs the same risk of injury resulting from sitting in a chair as did Broadhurst.
Moreover, although Broadhurst=s job involved lifting and carrying children and case files, she did not suffer
her injury while performing these tasks but, instead, while sitting down and leaning back in a chair.
With this in mind, we will review Broadhurst=s evidence. The only witness at the contested
case hearing, Broadhurst testified that she injured herself when she sat down and leaned back in a chair
which had no back cushion. She also offered into evidence documentation confirming the nature of the
accident, including an accident report and a first report of injury form submitted to the state workers=
compensation commission. She further testified that as part of her job she was required to sit down and
interview children and that this was the most Asalient@ part of her job. As we have just discussed, this
evidence simply does not establish that her disability arose from an Ainherent risk or hazard peculiar@ to her
duties as a CPS specialist. Thus, we agree with the Board=s characterization of Broadhurst=s accident at the
hearing that A[t]here is nothing distinctive in someone moving from one chair to another.@ Suffering an injury
while sitting down and leaning back in a chair is a risk that was not peculiar to Broadhurst=s state duties.
9
We conclude there was substantial evidence in the record demonstrating a reasonable basis
for the Board=s decision that Broadhurst did not satisfy the second prong of section 811.001(12) and, thus,
did not qualify for retirement benefits. Therefore, the district court correctly affirmed the Board=s order.
Broadhurst=s third issue is overruled.
CONCLUSION
Because we find the Board correctly applied the second prong of section 811.001(12)
defining occupational disability and that Broadhurst was unable to satisfy this prong, we affirm the judgment
of the district court.
David Puryear, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Puryear
Affirmed
Filed: July 26, 2002
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