Calvin R. Langford v. Employees Retirement System of Texas ( 2002 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00081-CV
Calvin R. Langford, Appellant
v.
Employees Retirement System of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. GN002512, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING
This case raises similar issues and is controlled by our recent decision in Flores v.
Employees Retirement System, No. 03-01-00074-CV, 2002 Tex. App. LEXIS 2721 (Austin Apr. 18,
2002, no pet. h.). Where appropriate, we will rely on our reasoning and holdings in that opinion.
Tex. R. App. P. 47.1.
Appellant Calvin Langford appeals the district court=s judgment affirming a final order
by the Board of the Employees Retirement System of Texas (hereinafter Athe Board@) denying his
application for occupational disability benefits. 1 Mr. Langford raises the same issues that were raised in
Flores: whether the Board acted arbitrarily and capriciously or abused its discretion by applying a new
policy in the course of his contested case without affording him notice of its intent to do so, and
whether the Board erroneously interpreted the statutory definition of occupational disability.
Additionally, he complains about the trial judge=s ruling denying his request to supplement the
administrative record. As we sustain two of Mr. Langford=s issues, we will reverse the judgment of the
trial court.
FACTUAL BACKGROUND
Calvin Langford was employed by the Texas Department of Criminal Justice as a food
service manager at one of its correctional facilities. Mr. Langford=s position required him to supervise
food service workers, including inmates and employees, in the preparation and storage of food and in
the inspection and maintenance of the kitchen facility in a sanitary and safe manner. Departmental
policy required the kitchen floor to be cleaned at least once each day. As he approached an inmate
who was mopping the floor to tell him to put a AWet Floor@ sign out, Mr. Langford slipped and fell on
the wet kitchen floor. The inmate had failed to use the appropriate cleaner, using instead a highly
1
We will refer to several entities throughout this appeal. The ABoard@ refers to the agency=s
board of trustees, which hears appeals of contested cases. See Tex. Gov=t Code Ann. ' 815.511 (West
Supp. 2002). The AMedical Board@ refers to the agency=s medical board, which certifies occupational
disability retirement claimants as disabled. See id. ' 814.203 (West 1994) (providing that the medical
board shall issue a certification of disability if it Afinds that the member is mentally or physically incapacitated
for the further performance of duty, that the incapacity is likely to be permanent, and that the member should
be retired@). AERS staff@ refers to the agency=s representatives at the administrative hearing before the State
Office of Administrative Hearings.
2
concentrated dishwashing detergent which, when applied to the floor, made it extremely slick. Mr.
Langford testified that even though he was wearing skid-resistant shoes, he fell, catching his leg on a
cooking grill and landing in an awkward position. Mr. Langford sustained serious injury to his back
and is permanently disabled. He was dismissed from his job several months after the accident.
After his dismissal, Mr. Langford applied for disability retirement benefits from the
Employees Retirement System (AERS@),2 which was created by the legislature for the purpose of
providing a retirement system for Aaged and incapacitated state employees.@ Act of 1947, 50th Leg.,
R.S., ch. 352, 1947 Gen. Laws 697, 697 (statement of purpose). Mr. Langford applied for
occupational disability retirement benefits3 and was certified by the Medical Board as permanently
incapacitated from the further performance of his duties. His application was denied, however, because
the Board found that his disability did not meet the statutory criteria for occupational disability
retirement benefits.
2
The Employees Retirement System=s (ERS=s) governing statute, which is subtitled
AEmployees Retirement System of Texas@ is found at sections 811.001-815.512 of the Government
Code. See Tex. Gov=t Code Ann. '' 811.001-815.512 (West 1994 & Supp. 2002).
3
ERS provides four types of benefits for eligible state employees: service retirement,
occupational disability retirement, nonoccupational disability retirement, and death benefits. Tex.
Gov=t Code Ann. ' 814.001 (West 1994).
3
The criteria are found in section 811.001(12) of the Government Code, which defines
occupational 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 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).4 ERS denied Mr. Langford=s claim, finding
that his disability failed to satisfy either statutory prong of the definition. He appealed, and after an
administrative hearing, the administrative law judge (ALJ) found that Mr. Langford=s application
satisfied both requirements and recommended in his proposal for decision (PFD) that occupational
disability benefits be awarded. The Board rejected the ALJ=s findings of fact and conclusions of law 5
as to both statutory prongs and denied benefits. The Board=s interpretation of the statutory definition
for disability benefits in this appeal is identical to the definitions it adopted in the Flores appeal. We
have held that the Board erroneously interpreted both prongs of the statute. Flores, No. 03-01-
00074-CV, slip op. at 33, 2002 Tex. App. LEXIS 2721, at *54-55 . Mr. Langford has also challenged
the manner in which the Board decided his appeal, contending that the Board violated his substantial
rights by failing to provide him with a meaningful hearing as required by the Administrative
Procedure Act (APA). For the same reasons that we explained in Flores, we hold that the Board=s
4
As in Flores v. Employees Retirement System, No. 03-01-00074-CV, 2002 Tex. App.
LEXIS 2721 (Austin Apr. 18, 2002, no pet. h.), the current code is cited for convenience.
5
See Tex. Gov=t Code Ann. ' 815.511(a) (West Supp. 2002) (authorizing the Board to
change or delete findings of fact and conclusions of law contained in a proposal for decision
submitted by an administrative law judge or other hearing examiner and to make alternative
findings of fact and conclusions of law in contested cases, and requiring Board to state in writing
its specific reasons for doing so); 34 Tex. Admin. Code ' 67.91(b) (2001) (requiring written
explanation for any change and providing criteria for authorized changes).
4
decision-making process was arbitrary and capricious and an abuse of discretion. As a preliminary
matter, we turn first to an issue raised by Mr. Langford regarding additional evidence.
ADDITIONAL EVIDENCE
Mr. Langford argues in his first issue that the trial court erred by refusing to admit into
evidence a resolution that the Board adopted after the ALJ submitted his PFD and before the Board
issued its order rejecting the ALJ=s decision and denying the application for benefits. Mr. Langford
cites section 2001.175(c) of the Government Code in support of his argument that the trial court
should have admitted the resolution, despite the fact that it was not part of the administrative record.
See Tex. Gov=t Code Ann. ' 2001.175(c) (West 2000). The provision reads:
A party may apply to the court to present additional evidence. If the court is satisfied
that the additional evidence is material and that there were good reasons for the
failure to present it in the proceeding before the state agency, the court may order that
the additional evidence be taken before the agency on conditions determined by the
court. The agency may change its findings and decision by reason of the additional
evidence and shall file the additional evidence and any changes, new findings, or
decisions with the reviewing court.
Id.
We review the district court=s decision to grant or deny a remand request under an
abuse of discretion standard. Gulf States Utils. Co. v. Coalition of Cities for Affordable Util. Rates, 883
S.W.2d 739, 747-48 (Tex. App.CAustin 1994, no writ). Section 2001.175(c) enables the district
court to remand the case to the agency for the admission of the additional evidence. Texas Oil & Gas
Corp. v. Railroad Comm=n, 575 S.W.2d 348, 351 (Tex. Civ. App.CAustin 1978, no writ) (discussing
virtually identical predecessor version of section 2001.175(c)). Mr. Langford, however, argues that
5
the district court erred by not admitting the evidence for consideration in connection with the
district-court case. Mr. Langford misunderstands the purpose of section 2001.175(c), which is to give
a party the opportunity to present additional evidence to the agency for its consideration; it is not
intended to enable a party to present evidence before a reviewing court. We also note that the
resolution does not constitute Aadditional evidence@ as contemplated by section 2001.175(c); if
anything, the resolution may constitute evidence of Aprocedural irregularities alleged to have occurred
before the agency that are not reflected in the record.@ See Tex. Gov=t Code Ann. ' 2001.175(e).
Mr. Langford does not rely on section 2001.175(e), however, and in any event, the resolution is
already before us and is included in the record; additionally, a large portion of the resolution is quoted
verbatim in the Board=s conclusions of law. Therefore, we overrule Mr. Langford=s first issue. We
now turn to his argument that the Board acted arbitrarily and capriciously in denying his appeal.
ARBITRARY & CAPRICIOUS
In his second issue, Mr. Langford raises the same issues regarding the Board=s manner of
decision-making as were raised in Flores and asserts that the Board=s action was arbitrary and
capricious or constituted an abuse of discretion under section 2001.174(2)(F) of the APA. See Tex.
Gov=t Code Ann. ' 2001.174(2)(F) (West 2000).6 As in Flores, the manner in which the Board
decided this appeal raises serious concerns as to whether the Board respected Mr. Langford=s due-
process rights. A brief recitation of the facts highlights these concerns. After hearing all of the evidence
6
The section requires a reviewing court to reverse or remand a case Aif substantial rights of
the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions
are . . . arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of
6
at the contested-case hearing on September 30, 1999, the ALJ decided in Mr. Langford=s favor on
October 28. The Board adopted new policies in a resolution on December 8. This same resolution limited
the viability of some of the Board=s previous decisions on which Mr. Langford had relied at the hearing.
The Board met to consider Mr. Langford=s appeal on April 19, 2000. The minutes of that meeting, of
which we take judicial notice, reflect that immediately after hearing from both sides and without any
deliberation, the Board declined to adopt the ALJ=s recommendation and denied Mr. Langford=s
appeal. After announcing its decision, the Board also ordered its general counsel to make new
findings of fact and conclusions of law. The revised findings of fact and conclusions of law, which
were later adopted by the Board, relied on the new policies announced in the post-hearing resolution.
Moreover, the Board=s findings of fact and conclusions of law made systematic and
widespread changes and additions to the ALJ=s findings of fact and conclusions of law. The Board=s
changes to particular facts suggest that the Board was acting as its own fact finder despite having
delegated that duty to the ALJ. See Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 564 (Tex.
2000) (A[h]aving chosen to delegate the fact-finding role to the hearing examiner, a board cannot
then ignore those findings with which it disagrees and substitute its own additional findings@); Flores,
No. 03-01-00074-CV, slip op. at 7-8, at *8-9. In addition, in some instances, the Board failed to
comply with its statute and administrative rules, which authorize the Board to make changes but also
discretion.@ Tex. Gov=t Code Ann. ' 2001.174(2)(F) (West 2000).
7
place limits on its ability to do so. See Tex. Gov=t Code Ann. ' 815.511(a) (West Supp. 2002); 34
Tex. Admin. Code ' 67.91(b) (2001) (Rule 67.91(b).7
The manner by which the Board decided Mr. Langford=s appeal raises serious due
process concerns, specifically in its (1) failing to put Mr. Langford on notice as to the grounds on
which the Board would rely for its decision; (2) arriving at a result on grounds other than those
presented at the hearing; (3) making its decision first and then making findings of fact to support that
new result; (4) failing to adequately explain its departure from prior decisions; and (5) failing to
comply with its statute and rule regarding changes to an ALJ=s findings of fact and conclusions of law.
These issues have been discussed at length in Flores and we need not address each one individually.
We reiterate that an agency must respect the due process rights of applicants who appear before it in
contested cases. See Flores, No. 03-01-00074-CV, slip op. at 6, at *9. We sustain Mr. Langford=s
second issue.
7
The APA contains the minimum standards for administrative agencies. See Tex.
Gov=t Code Ann. ' 2001.001(1) (West 2000). The Board stated that it was substituting its findings
of fact and conclusions of law for those of the ALJ=s pursuant to the authority of its own statute
and rules, specifically, section 815.511(a) of the Government Code and Rule 67.91 in the
Administrative Code. See Tex. Gov=t Code ' 815.511(a) (West Supp. 2002); 34 Tex. Admin.
Code ' 67.91 (2001). We will therefore specifically analyze the Board=s compliance under section
815.511(a) and Rule 67.91.
8
STATUTORY DEFINITION OF OCCUPATIONAL DISABILITY
In his third issue, Mr. Langford challenges the Board=s statutory definition of
occupational disability.8 We turn now to the first prong of that definition.
ADirectly Results from a Specific Act or Occurrence@
At issue in this appeal, as in Flores, is the causal relationship that must be established
between the traumatic incident (a specific act or occurrence determinable by a definite time and place) and
resulting disability when the claimant also has preexisting conditions that contribute to the disability. In
Flores, we affirmed the Board=s conclusion that the employee must prove that the at-work injury is the
primary cause of his disability. Flores, No. 03-01-00074-CV, slip op. at 26-7, at *44-45. But we
disapproved the Board=s additional rule that an employee must establish that an occupational trauma is the
direct cause of his disability Awithout regard to a preexisting mental or physical condition.@ We noted
that a traumatic injury often interacts with other factors to produce a disability and the plain language of the
statute does not mandate that the disability claimant be free from all preexisting conditions, including age-
related back degeneration. It does mandate, however, that when there are preexisting mental or physical
conditions, the claimant must establish that the traumatic incident is the primary cause of the disability. On
8
See Tex. Gov=t Code Ann. ' 2001.174(A), (D) (West 2000) (providing that a reviewing
court shall reverse or remand the case Aif substantial rights of the appellant have been prejudiced because
the administrative findings, inferences, conclusions, or decisions@ violate a statutory provision or are
affected by other error of law).
9
the other hand, if the medical evidence establishes that a preexisting condition is the primary cause of
incapacity, the disability does not directly result from a specific act or occurrence determinable by a definite
time and place.
The Board rejected the ALJ=s conclusion that Mr. Langford=s disability resulted from a
specific occurrence determinable by a definite time and place, saying that the ALJ had misinterpreted and
failed to apply the policy of the Board regarding preexisting conditions. The Board=s explanation for
rejecting the ALJ=s conclusion stated that in accordance with its policy and its interpretation of the statute, Aa
member has been required to present credible medical evidence that a specific occupational trauma is the
direct cause of the member=s disability without regard to a preexisting mental or physical condition.@
(Employees Ret. Sys. of Tex., Appeal of Calvin Langford=s Application for Occupational Disability
Benefits, Docket No. XXX-XX-XXXX (June 14, 2000) (order adopting proposed findings of fact and
conclusion of law and denying application for benefit) (emphasis added)). The Board further explained that
the ALJ, by relying on the Board=s earlier decisions that an age-related preexisting condition would not
disqualify an applicant, impermissibly expanded the statutory definition of an occupational disability.
Under the definition announced in Flores, the Board could reject the ALJ=s conclusion that
Mr. Langford=s disability directly resulted from a specific act or occurrence determinable by a definite time
and place only if it concluded, and the evidence supported a conclusion, that his disability was primarily
caused by a preexisting condition.
The Medical Evidence
10
Mr. Langford=s treating physician, Dr. Jerjis J. Denno, diagnosed him as having a
lumbar herniated nucleus pulposus9 with lumbar spinal stenosis. 10 Mr. Langford had preexisting
degenerative conditions in his spine caused by the aging process, but these were mild to moderate in
nature. In response to a deposition question inquiring as to any and all preexisting conditions, Dr.
Denno indicated that Mr. Langford had Alumbar spondylosis with bulging discs,@ Aligamentum
hypertrophy, facet hypertrophy,@ and Aspinal stenosis@ and that the spondylosis and spinal stenosis at
the L4-5 vertebrae could make the herniated disc at L4-5 more symptomatic. Dr. Denno also noted
that such degenerative conditions were normal for a man of Mr. Langford=s age (he was fifty-one at
the time of his fall) and were part of a Anormal progressive condition (wear and tear of the spine).@
Dr. Denno further wrote in his notes after an office visit by Mr. Langford:
9
Cartilagenous discs separate the vertebrae of the spinal column. See Merck Manual Home
Edition online, AChapter 69, Spinal Cord Disorders, Rupture Disk@ (Apr. 18, 2002)
AEach disk has a strong outer layer and a softer inner
part that acts as a shock absorber to cushion the vertebrae during movement. If the disk degenerates, for
example following an injury or with aging, the inner part of the disk can bulge or rupture through the outer
layer (herniated disk).@ Id.
10
Spinal stenosis is a Anarrowing of the spinal canal, causing pressure on the sciatic nerve
roots and occasionally on the cord.@ Merck Manual of Geriatrics online, AChapter 50, Nonmetabolic
Bone Disease, Spinal Stenosis@ (Apr. 18, 2002)
11
I explained to Mr. Langford that degeneration in the spine was a preexisting
condition. I do feel that the herniated disc in his lumbar spine at L4-5 was a direct result of
the work-related injury of August 17, 1998. Degeneration of lumbar discs is a fairly
common finding in the adult population. It is usually asymptomatic and does not
necessarily lead to a herniation. It was Mr. Langford=s fall at work that led to the
herniation of the disc in his lumbar spine.
(Emphasis added.)
Similarly, in his response to a deposition question that asked whether Mr. Langford=s
preexisting conditions caused his injuries following the slip-and-fall, Dr. Denno answered: ANo, the
preexisting condition was aggravated by the work injury.@ Dr. Denno also stated that these preexisting
conditions would not have prevented Mr. Langford from performing the normal duties of his job prior
to the accident. Moreover, Dr. Denno found that the workplace accident would probably have been
sufficient to permanently disable Mr. Langford even in the absence of the preexisting condition. Had
the accident not occurred, Dr. Denno expected that Mr. Langford probably would have been able to
continue in his job until he reached sixty-five years of age.
While the ERS staff disputed the causal relationship between Mr. Langford=s accident
and his disability, it failed to present any evidence that would have controverted the evidence offered
by Mr. Langford. The staff presented the statement by the Medical Board in its certification of Mr.
Langford=s disability that Mr. Langford=s injury probably would not have been permanently disabling
in the absence of the preexisting conditions. The Medical Board did not refer to the evidence on
which it was basing its conclusion, nor do we find any evidence in the record that supports such a
conclusion. The ALJ found that Mr Langford=s spinal degeneration contributed to his permanent
12
incapacity in that it made the traumatic injury more symptomatic and less treatable; the ALJ also
found that the degeneration was caused only by the natural-aging process. Moreover, there is no
finding that Mr. Langford=s preexisting condition primarily caused his disability. Indeed, the medical
evidence in the record indicates that Mr. Langford=s preexisting spinal condition was mild to
moderate.
The ERS staff also pointed to the opinion of the Medical Board that Mr. Langford=s
obesity played a role in causing his disability. Although the Medical Board included Amorbid obesity@
among the causes of Mr. Langford=s incapacity, it did not refer to any specific evidence supporting the
causal relationship between his weight and his disability. Moreover, in response to a specific question
on the certification form inquiring as to whether the traumatic incident aggravated a preexisting
condition, the Medical Board referred only to the degenerative disc condition. While there is a
reference to Mr. Langford=s obesity in his medical records, there is no indication that Mr. Langford=s
weight was a factor in causing his incapacity. Mr. Langford=s weight, then, could not have been the
Aprimary cause@ of his disability.
The ALJ weighed the evidence presented by Mr. Langford, which included the
testimony of his treating physician, against the conclusory statements offered by the agency. The ALJ
specifically took note of this disparity in the evidence in his proposed decision:
The ERS Medical Board found that Mr. Langford=s incapacity was caused by
Aherniated lumbar disc, spinal stenosis, morbid obesity@ and that Adisc injury@ and
spinal Adegenerative disease@ were preexisting at the time of Mr. Langford=s slip and
fall. The nature and extent of analysis performed by the board in reaching these conclusions
(which were set out in the [medical] board=s formal certification on Mr. Langford=s
application) is [sic] not indicated in the record.
13
On the other hand, Mr. Langford=s treating physician, Jerjis J. Denno, M.D., an
orthopedic surgeon, testified by written deposition that the immediate cause of Mr.
Langford=s disabilityCi.e., a herniated disc at the L4-5 levelCresulted directly from the
incident on August 17, 1998, and would have occurred even in the absence of preexisting
conditions. Dr. Denno acknowledged that his patient exhibited degenerative
conditions that predated the accident-including lumbar spondylosis with bulging discs,
ligamentum hypertrophy, and facet hypertrophy at L2-3, L3-4, L4-5, and L5-S1 levels.
However, while these preexisting conditions made Mr. Langford=s herniated disc at L4-5
more symptomatic and difficult to treat than would otherwise have been the case, they did not
directly cause the patient=s disabling injury and, by themselves, would not have prevented him
from undertaking his normal job activities.
(Emphasis added.)
On appeal, the Board found that the ALJ=s conclusion that Mr. Langford=s disability directly
resulted from a specific act or occurrence determinable by a definite time and place Aerroneously
expands the definition of occupational disability to include a disability that is primarily caused by
degeneration that is the result of the natural-aging process.@11 We are unable to find the evidence that would
support this conclusion. In fact, the only evidence in the record reflects that Mr. Langford was fully capable
of performing his job duties prior to the traumatic slip-and-fall injury but was disabled after the injury.
The Board rejected the ALJ=s conclusion of law that Mr. Langford=s injury directly resulted
from a specific act or occurrence determinable by a definite time and place. We hold that in rejecting this
11
Employees Ret. Sys. of Tex., Appeal of Calvin Langford=s Application for Occupational
Disability Benefits, Docket No. XXX-XX-XXXX (June 14, 2000) (order adopting proposed findings of fact
and conclusion of law and denying application for benefit). The Board=s statement appears in its explanation
immediately following its conclusion of law number four.
14
conclusion the Board erred first, because it erroneously applied its without-regard-to-preexisting-conditions
rule that disqualified Mr. Langford because he had an asymptomatic back condition that was aggravated by
his fall, and second, because it substituted its conclusion that Mr. Langford=s disability was primarily caused
by his degenerative back disease, when the evidence does not support such a conclusion. We hold that
the Board applied an erroneous interpretation of the statute in rejecting the ALJ=s conclusion that Mr.
Langford=s disability directly resulted from a specific act or occurrence determinable by a definite time
and place.
ARISK OR HAZARD PECULIAR TO A DUTY@
The Board rejected the ALJ=s conclusion that Mr. Langford=s disability directly resulted
from a risk or hazard peculiar to his duties of state employment on the ground that it was Abased on a
misunderstanding or misinterpretation of Board policy, specifically, that the risk of slipping and falling is a
common risk not peculiar to duties that arise from and in the course of state employment.@12 We have held
that the Board=s interpretation of this prong of the statute is inconsistent both with the statute and
with our decision in Bond v. Employees Retirement System, 825 S.W.2d 804 (Tex. App.CAustin 1992,
writ denied). See Flores, No. 03-01-00074-CV, slip op. at 32, at *52. In Flores, we rejected the
Board=s position that for a risk or hazard to be peculiar to a duty of state employment, the duty must
impose a risk or hazard that is somehow different from the risk assumed by other persons engaged in
the same activity. Id. at 31, at *52. We clarified that a risk or hazard is peculiar to a duty if that duty
12
Id. The Board=s statement appears in its explanation immediately following its conclusion of
law number five.
15
imposes a risk or hazard different from the normal or usual risks encountered by a person not engaged
in that duty. Id. at 31-2, at *52. Under the standard announced in Flores, the Board erred by
rejecting the ALJ=s conclusion that Mr. Langford=s disability directly resulted from a risk or a hazard
peculiar to his duties.
Mr. Langford was injured while performing his duties in the food service area of the
Department of Criminal Justice where he was employed. The Department=s training manual addresses
the need for sanitation in this institutional dining area: the floors are to be scrubbed with soap or
other chemicals as often as necessary, at least daily.13 Recognizing that frequent cleaning would
enhance the hazard of slippery floors, the Department=s manual specifically instructs employees
regarding the prevention of Aslips, trips, and falls@: AAvoid excessive water when cleaning floors; [b]e
very careful when walking in the Food Service department, floors may be wet and slippery; [c]lean up
spills immediately; [k]eep walkways clean, clear and free of debris; [w]alk safely.@ The manual also
requires that Awet floor@ signs be posted immediately after cleaning and recommends that both
employees and inmates working in the food service area wear non-skid shoes, such as rubber boots.
13
The manual did not come out until a month after Mr. Langford=s accident; at the
administrative hearing, however, Mr. Langford testified as to specific policies that were in force at the time
of his injury and on which he had received training. These same policies were later incorporated into the
manual.
16
All employee and inmate workers in the facility had to be careful to avoid the frequent
risk posed by wet floors. As a manager who supervised compliance with sanitation and safety
requirements, however, Mr. Langford routinely had to put himself in harm=s way by walking into wet
areas to perform his duties. 14 At the hearing, he testified that he had developed a way of walking
through the kitchen and dining facility by taking cautious Ahalf-steps@ to protect himself. When he
slipped and fell, Mr. Langford was wearing skid-resistant shoes and walking with this half-step gait
toward the inmate on duty to tell him to post a Awet floor@ sign. Thus, Mr. Langford=s accident was
precisely related to his unique duties as a food-service manager in the facility. We hold that there is
abundant evidence in the record that the risk of falling on slippery floors was peculiar to Mr.
Langford=s employment duties. The risk of falling imposed by his duties as a food service manager
working on constantly wet floors is different from the normal or usual risk of slipping and falling. The
ALJ so found in his findings of facts and in his PFD. We hold that the Board applied an erroneous
14
The ALJ eloquently described the inherent risk of slipping and falling on wet floors that Mr.
Langford faced on the job:
The requirements of Mr. Langford=s roving supervisory position, however, appear to
have made him especially exposed to [the hazard of slippery floors]. In the process
of monitoring the performance of food service workers (including, specifically, their
compliance with sanitation and safety regulations), he was obliged to traverse
frequently all parts of the large food preparation area. With the mopping up of
random spills and the prescribed minimum daily scrubbing of all floors, Mr. Langford
must have had to negotiate a constantly changing geography of slippery surfaces. But
his job entailed not just the avoidance of these numerous and shifting wet areas; it
often required him to move deliberately into such areas, as he did when he was
injured, to assure that clean-ups were performed both effectively and with proper
precautions. The difficulty of this task was undoubtedly increased by the inattentive,
if not refractory, attitudes of some of the inmate workersBa circumstance that clearly
contributed to the accident on August 17, 1998.
17
interpretation of the statute in reversing the ALJ=s conclusion of law that Mr. Langford=s injury
directly resulted from an inherent risk or hazard peculiar to a duty arising from his state employment.
We sustain the third issue on appeal and hold that the Board applied an erroneous
interpretation of both prongs of the statute in deciding Mr. Langford=s appeal.
CONCLUSION
We hold that the Board acted arbitrarily and capriciously for the same reasons outlined
in Flores, most notably by its disregard for the ALJ=s determination of the adjudicative facts. For the
reasons set out in our opinion in Flores, we hold that the Board applied an erroneous interpretation of
the statute in rejecting the ALJ=s conclusions of law as to both prongs of the definition of
occupational disability. Therefore, we reverse the district court=s judgment and the Board=s order and
remand this cause to the Board for further proceedings consistent with this opinion.
Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Puryear
Reversed and Remanded
Filed: April 25, 2002
Publish
18