Bob Pemberton, Justice.
This appeal presents questions of first impression regarding the availability of occupational-disability retirement benefits for Texas state employees following 2003 amendments that significantly limited the statutory definition of an "occupational disability." As amended, the definition requires that an "occupational disability" "result[] ... solely from an extremely dangerous risk of severe physical or mental trauma ... that is not common to the public at large and that is peculiar to and inherent in a dangerous duty that arises from the nature and in the course of a person's state employment."
The material facts underlying this appeal are largely undisputed. In 2004, the eventual claimant, appellee Cynthia Garcia, began working as a prison guard for the Texas Department of Criminal Justice (TDCJ). Following a training period, she was assigned to TDCJ's Darrington Unit, a prison facility located in Brazoria County
The guard tower, originally built in the 1960s, consists of an 8-by-8 foot room (also termed a "guard area") surrounded by a balcony or catwalk and perched atop a 16-foot-tall brick structure with a concrete base. The walls of the elevated guard area consist of brick from the floor up to roughly waist level, then large windows extending upward to the ceiling. A doorway in one of the walls allows access to the balcony. The room is not air-conditioned — according to Garcia, a precaution to ensure that guards can carefully monitor sounds outside, albeit one ensuring discomfort for the guards amid the heat and humidity of Brazoria County's warmer months. The guards can obtain some relief, however, by opening windows in the guard area to improve ventilation and perhaps catch a breeze.
The elevated guard area is accessed from ground level by entering a secured metal door leading into the tower base and climbing a 16-foot vertical ladder that is mounted to an interior wall of the structure. At the top of the ladder is a trapdoor (termed a "perimeter picket hatch cover" by TDCJ) that is opened upward to allow entry into the elevated room through an opening in the floor that emerges in one of the room's four corners. This opening in the corner of the floor is roughly two feet-by-two feet in dimensions, thus occupying roughly one-fourth of the floor space along each of the two exterior walls that converge there, and comprising one-sixteenth of the room's total floor area.
Within the room, access to the opening is restricted by — in addition to the two adjacent exterior walls — a metal railing, bolted to the floor, that extends inward perpendicularly from one of the walls at roughly a waist-high level. When opened, the trapdoor's cover can be temporarily attached to this railing with a "locking device." The other interior side of the opening is not permanently obstructed, so as to allow ingress and egress, but can be temporarily cordoned off with a metal chain emanating from the interior end of the railing that can be attached to the wall opposite the railing. The parties agree, however, that this chain would not alone physically prevent a guard from accessing or falling into the opening, although it might provide a visual or tactile reminder of its proximity, akin to a warning track in baseball.
Garcia's accident occurred following a shift change in which she had relieved another guard from duty in the tower. TDCJ procedures required Garcia to leave the trapdoor cover locked open until the other guard departed down the ladder and safely reached the ground below, then close the cover and leave it so until Garcia herself was relieved from duty. As Garcia stood near the opening awaiting the other guard's departure, her colleague began attempting to climb down the ladder while carrying a large bag containing personal belongings. Despite Garcia's offer to simply lower the bag on a rope, the departing guard insisted on struggling down the ladder with her bag. As her colleague's slower-than-normal descent continued, Garcia stepped out onto the balcony to signal an officer at another post to send up some ice
Garcia fell through the uncovered opening to the concrete floor 16 feet below. She suffered serious injuries that have since led to multiple surgeries with multiple complications and lasting physical impediments that were found to include a limited ability to stand and walk, chronic swelling in her lower right extremity, chronic infections, and pain. She was forty-three years of age at the time of her fall.
Among the financial compensation or benefits that are potentially available to state employees who suffer serious workplace injuries, the Legislature has provided them "occupational disability" retirement benefits — a lifetime monthly retirement annuity, available "regardless of age or amount of service credit," for state employees who are determined to be "permanently incapacitated from the further performance of duty" (a/k/a "disabled") and whose disability also satisfies a statutory definition of an "occupational disability."
A state employee who meets these requirements is entitled to a monthly annuity equal to at least the greater of 35% of his or her average monthly salary or $150.
Following her accident, Garcia made application to ERS for occupational-disability retirement benefits with the enhancement provided to qualifying peace officers.
ERS does not contest (at least for purposes of this appeal) that Garcia proved she has a "disability"
The parties similarly join issue as to whether Garcia met her burden to prove that her "disability," if qualifying as an "occupational disability," could be said to "result from a risk to which [she was] exposed because of the nature of law enforcement or custodial duties," as required for her to obtain the enhanced benefits.
ERS's basic theme was that Garcia bore at least some of the blame for her fall, if not all of it, such that the fall could not be attributed "solely" to any risk associated from her working conditions in the guard tower. It emphasized Garcia's acknowledgments that she had left the trapdoor cover open, forgotten about it, and overlooked the opening before falling through. To similar effect, ERS presented testimony from a TDCJ safety officer who had investigated the incident, Mike Dattalo. Dattalo explained that Darrington prison guards like Garcia had been required to follow written safety standards regarding the trapdoor covers, known as "Standard Operating Procedures for Employee Safety" (SOPs), which prescribed the following protocol during shift changes in the guard towers:
According to Dattalo, Garcia had violated the SOPs by failing to close the trapdoor cover after her departing colleague had descended the ladder. He had further determined that Garcia had been "unobservant, daydreaming, inattentive, etc.," and recommended her for TDCJ discipline. Dattalo also found fault with Garcia's failure to put up the chain while the hatch cover was open. While acknowledging that the chain in itself was insufficient as a physical barrier to prevent a person from falling through the opening, Dattalo reasoned that it would nonetheless have served to remind her that the opening was nearby. Assuming these precautions were followed, Dattalo insisted, there was nothing "extremely dangerous" about Garcia's working environment in the guard tower.
While conceding that she had left the trapdoor cover open and forgotten about it, Garcia disputed the extent of her culpability and its legal significance under the relevant statutory standards. Garcia presented the testimony of a safety expert and attorney, Katherine Rogers-Fjelstad, who opined that the trapdoor presented an "extremely dangerous risk" to prison guards and that TDCJ had taken inadequate measures to make it safer, such as by installing a spring-loaded railing on the open side, relying instead on the chain, which had to be latched and would not be a barrier to a fall in any event. Although acknowledging that Garcia's human error had played a role in her fall and that she might have prevented it by closing the trapdoor cover and paying better attention to where she was walking, Rogers-Fjelstad suggested that the possibility of such distraction or other human error was merely a component of the underlying risk of working in the guard tower. While such inadvertence was perhaps a "causal factor" preceding Garcia's fall, it did not, in the expert's view, diminish or change the underlying "root cause" of the accident, the dangers presented by an inadequately guarded floor opening.
The Administrative Law Judge (ALJ) issued a proposal for decision (PFD) recommending that the ERS Board grant Garcia's application for enhanced occupational-disability retirement benefits. In support, the ALJ made fact findings regarding the basic setting
Based on her findings, the ALJ concluded that Garcia's fall and subsequent disability met the statutory definition of "occupational disability" and that, similarly, she had been disabled "as a direct result of a risk or hazard to which law enforcement or
The Legislature has explicitly authorized the ERS Board, "in its sole discretion," to "make a final decision on a contested case" and to "modify, refuse to accept, or delete any proposed finding of fact or conclusion of law contained in a proposal for decision," provided it "state[s] in writing the specific reason for its determination."strikeout:
Corresponding modifications to the ALJ's following proposed conclusions of law were:
Each change was accompanied by a detailed explanation of the Executive Director's reasoning.
After exhausting her remaining administrative remedies, Garcia filed suit for judicial review of ERS's final order in Travis County district court.
• Rejecting the ALJ's "correct[] interpret[ation]" of the statutory definition of "occupational disability," which had recognized that "the distraction that caused Ms. Garcia to forget that the trapdoor was open was not an independent cause of the accident, but rather was part of the risk of working around the trapdoor in the conditions in that tower," and instead holding that Garcia did not satisfy the "`solely from an extremely dangerous risk' prong" of the definition.
• Determining that the risk Garcia faced while working around the trapdoor in the conditions in the guard tower did not constitute an "extremely dangerous risk" under the statutory definition of "occupational disability."
• Determining that Garcia did not qualify for enhanced occupational disability retirement benefits.
• Modifying the ALJ's proposed findings of fact and conclusions of law.
This appeal ensued.
ERS challenges the district court's judgment through five issues on appeal. In its first issue, ERS urges that in the face of evidence of Garcia's "contributory negligence in failing to close the trap door, keep a proper lookout, or engage the chain," the Executive Director did not reversibly err (or act arbitrarily or capriciously, abuse her discretion, etc.) in denying benefits on the basis that Garcia's injuries did not "result ... solely from" any risk of working in the guard tower, as the statutory definition of "occupational disability" required. In its second issue, ERS disputes whether the conditions in the guard tower constituted an "extremely dangerous risk" within the meaning of the definition. In its third issue, ERS contends that even if Garcia somehow qualified for occupational disability retirement benefits, substantial evidence supports the Executive Director's determination that Garcia did not meet the additional requirements for enhanced benefits.
ERS's remaining issues challenge the district court's holding that the Executive Director had erred or exceeded her lawful discretion in altering the ALJ's proposed findings and conclusions. In its fifth issue, ERS argues that Garcia waived any such complaint by failing to assert it in her motion for rehearing before the agency.
We review ERS's final order under the "substantial evidence" standard that is codified in the APA.
Essentially, this is a rational-basis test to determine, as a matter of law, whether an agency's order finds reasonable support in the record.
Substantial-evidence analysis entails two component inquiries: (1) whether the agency made findings of underlying facts that logically support the ultimate facts and legal conclusions establishing the legal authority for the agency's decision or action and, in turn, (2) whether the findings of underlying fact are reasonably supported by evidence.
Although both parties emphasize findings and supportive "substantial evidence" they perceive favorable to their respective positions, the legal materiality of any such facts ultimately depends upon construction of the statutes governing Garcia's entitlement to benefits, beginning with the statutory definition of "occupational disability." Statutory construction presents a question of law that we review de novo.
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We will begin with ERS's arguments rooted in construction of the definitional phrase "disability from a sudden and unexpected injury or disease that results ... solely from an extremely dangerous risk of severe physical or mental trauma or disease that is not common to the public at large and that is peculiar to and inherent in a dangerous duty that arises from the nature and in the course of a person's state employment," the focus of its first issue. Assuming for purposes of argument that the working conditions in the guard tower presented "an extremely dangerous risk of severe physical or mental trauma ..." (the focus of its second issue), ERS disputes that Garcia's fall and resultant disability can be said to "result[] ... solely" from that risk. This is so, ERS reasons, because the Executive Director found, with support by substantial evidence, that Garcia's own "contributory negligence" or lack of care in failing to close the trapdoor cover, engage the chain, or keep a proper lookout were a contributing cause of her fall, if not the sole cause.
ERS's argument is premised in part on the view that "result[] ... solely from an extremely dangerous risk," as used in the "occupational disability" definition, was intended to impose a strict "sole-cause" standard that precludes recovery if any causal factor other than the underlying workplace risk contributes to an employee's disability-causing injury or disease. It insists this intent is evident in the Legislature's use of the word "solely" in the definition, especially when viewed in the context of the jurisprudence that preceded the 2003 amendments adding that language. ERS emphasizes this Court's 2002 decision in Flores v. Employees Retirement System,
A central issue in Flores concerned the construction and application of the first "prong" of the definition (then requiring that the disability be from "injury or disease that directly results from a specific act or occurrence") to an occupational-disability-retirement claimant whose disability was traceable in part to a preexisting condition.
It was during the Legislature's next regular session that it amended the "occupational disability" definition to substitute "solely" in both places where "directly" had appeared.
In response to ERS's arguments, Garcia points out that the "occupational disability" definition, even as amended in 2003, does not refer to "cause" or "causation," but uses the phrase "results ... solely from an extremely dangerous risk ...." By using "results" rather than "causes," the Legislature, she infers, conspicuously avoided incorporating into the statute the familiar concepts of sole cause, proximate cause, producing cause, intervening or superseding cause, etc., and corollary notions of fault or responsibility on which ERS relies. The Flores Court made a similar observation about the pre-2003 definition, noting that "the statute does not define the standard in recognizable terms such as `sole cause,' `proximate cause,' or `producing cause.'"
But the primary thrust of Garcia's argument is not semantics — rather, she insists that ERS assumes a false dichotomy between an injury that "results ... solely from an extremely dangerous risk" and one in which an injured employee's negligence, inadvertence, or other "human frailty" can be said to play some causal role. In Garcia's view, the "extremely dangerous risk" contemplated by the "occupational disability" definition necessarily encompasses some range of "human frailty," workplace accidents, or mistakes by an injured employee such that an injury can be to some extent attributable to (or be "caused by") a claimant's own errors or deficiencies, yet nonetheless still "result[]... solely" from the underlying risks of the workplace so as to permit recovery. To illustrate the relationship between this sort of contributory employee causation and the underlying risks of the workplace, Garcia offers the example of a prison guard who, upon climbing into the elevated guard area, must immediately respond to a suddenly erupting prisoner riot and, amid the tumult, overlooks the still-opened trapdoor and falls in. A similar illustrative hypothetical, embraced by the district court, posited a hypothetical law enforcement officer who failed to zip up his bulletproof vest in perfect accordance with manufacturer's instructions, leaving a small gap, then was wounded there in a gun battle with criminals. If the statute truly imposed a sole-cause standard along the lines ERS envisions, Garcia urges, neither law enforcement officer could qualify for occupational-disability retirement benefits, despite the obvious and pervasive nexus of their injuries to the serious risks inherent in their work, because their oversight or inadvertence could invariably be said to comprise at least 1% of the cause of their injuries. The net result, Garcia further asserts, would be to bar recovery of virtually all occupational-disability retirement benefits claims, an "absurd result" the Legislature could not possibly have intended.
In response to such arguments, ERS ultimately acknowledges that the "occupational disability" definition would not categorically bar recovery in all cases where a claimant's own "human error" contributed to his or her injuries, but would permit recovery where the error could be said to "result from the unique risk of the job." But ERS insists that Garcia's errors and inadvertence were not the sort that resulted from any "unique risk" of her job, but were the equivalent of the hypothetical law enforcement officer having "failed to secure the vest out of vanity, or because he was looking at FaceBook or some other obvious act of negligence," and he "would not have otherwise been injured but for that act of negligence." In urging that such negligence was indistinguishable from the underlying risk of her work environment, Garcia, according to ERS, would logically imply that she should recover even if she had jumped into the open trapdoor intentionally because, in her view, it is only the underlying risk of the trapdoor and environs that matters.
As the parties' competing contentions demonstrate, the pivotal issue regarding application of the "result[] ... solely from
In the alternative, ERS urges that we should defer to its construction of the statute under the principles enunciated by the Texas Supreme Court in the Texas Citizens case.
We conclude that the statutory definition of "occupational disability," as amended in 2003, is one where the Legislature has left some "vagueness, ambiguity, or room for policy interpretation" with respect to whether a claimant's own injury-producing conduct in a given case is or is not a component of an underlying "extremely dangerous" workplace risk from which a disability must "solely" result. We further observe that construction and application of this statute lies within the expertise of ERS, the agency charged with administering state employee insurance and retirement benefits and having been delegated exclusive jurisdiction to initially decide claims for benefits.
Garcia urges, however, that the relevant issue is "statutory construction," and that courts, not agencies, are the proper arbiters in that regard. She admittedly finds support for that notion in Flores, in which this Court asserted that because statutory construction "does not involve a matter lying within the [ERS] Board's expertise," "courts are as competent as the Board in assessing legislative intent and this reduces considerably the degree of deference owed the Board's interpretation of [the `occupational disability' definition."
We likewise cannot conclude that ERS construed and applied the "occupational disability" definition unreasonably or inconsistently with its text in determining that Garcia's fall and ensuing disability are not the sort of workplace risk against which the Legislature undertook to indemnify state employees by providing occupational-disability retirement benefits. While there were certainly perils associated with the presence of a trapdoor within the confined space in which Garcia worked, the Executive Director found that she could have prevented her accident by simple measures like closing the trapdoor cover before exiting the guard area for the balcony and keeping a proper lookout after she returned. Garcia does not seriously dispute that substantial evidence supports these findings of underlying fact.
Garcia asserts, however, that the Executive Director acted improperly in adopting her version of the findings and conclusions in lieu of those proposed by the ALJ. The district court evidently agreed, and ERS has challenged this holding in its fourth and fifth issues, the former attacking the ruling on the merits while the latter contends Garcia waived the issue. We need go no farther than to observe, again, that the Legislature has granted the ERS Board (who may delegate the authority to the Executive Director
In the context of her permissible construction of the "occupational disability" definition, the Executive Director's modified findings comported with the statutory requirements. We sustain ERS's fourth issue and need not reach its fifth.
In light of the Executive Director's valid findings and the agency's reasonable construction of the underlying statutory requirement that Garcia's disability "result[]... solely" from the underlying risk of her workplace, we sustain ERS's first issue. Because that holding is fatal to Garcia's entitlement to occupational-disability retirement benefits, we need not reach either ERS's second issue (concerning whether Garcia's working conditions in the guard tower presented an "exceptionally dangerous risk"), nor its third issue (challenging Garcia's further entitlement to enhanced benefits).
We reverse the district court's judgment and render judgment affirming ERS's final order.
