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Click here for the full text of this decision FACTS:R & R Personnel Specialists of Tyler Inc. brings this petition for writ of mandamus complaining of an order denying its motion to compel arbitration. Real party in interest Travis Grisby was employed by R&R in Gregg County and was assigned to work as a driver for A-SAF-T-BOX. Grisby notified R&R that, while working on July 23, 2001, he sustained a lower-back injury. On that date, R&R was a nonsubscriber under the Texas Workers’ Compensation Act. However, R&R had in force an Employee Injury Benefit Plan established under the Employee Retirement Income Security Act of 1974 (ERISA), as amended. To participate in the plan, an R&R employee was required to execute and agree to the terms of a Waiver and Arbitration Agreement in the form attached to the document describing the plan procedures and benefits. The plan document also stated that, by executing and agreeing to the terms of the waiver, an employee affirmatively agreed to submit to binding arbitration all claims or disputes covered by the waiver. The result of the binding arbitration was the exclusive remedy for resolving any such claim or dispute. The plan document further provided that the Federal Arbitration Act governed interpretation, enforcement and all judicial proceedings relating to the waiver and the arbitration procedures described in the plan document. The waiver included similar provisions relating to the waiver of rights, the claims subject to arbitration, and binding arbitration as an exclusive remedy. The waiver also incorporated by reference the arbitration procedures described in the plan document. Grisby signed the waiver. After his injury, Grisby sought and received benefits under the plan, including income benefits and medical benefits. Grisby then sued to recover additional monies as compensatory damages for his injury. R&R filed a motion to compel arbitration. The trial court denied the motion after hearing. R&R sought mandamus as well as emergency relief. HOLDING:The court conditionally grants mandamus relief. R&R met its burden of presenting evidence of an arbitration agreement that governs the dispute between the parties. The FAA preempts the application of the non-waiver provision to prevent or restrict enforcement of the arbitration provisions at issue here. Therefore, Grisby’s state law arguments are not relevant to the issue before us. The court reaches the same conclusion regarding Grisby’s argument that enforcement of the waiver violates the public policy underlying the Texas workers’ compensation statutes. The trial court could not have reasonably concluded that R&R failed to show it was entitled to compel arbitration or that Grisby had established a defense to arbitration. Grisby contends that R&R has failed to comply with the express provisions of the waiver by not giving written notice of its intention to seek arbitration and not complying with the deadlines regarding notice of claim, and not participating in mediation before seeking arbitration. Therefore, Grisby’s argument continues, R&R has waived its right to enforce the arbitration provisions included in the waiver. These arguments relate to procedural arbitrability and are therefore questions for the arbitrator to decide. Consequently, the trial court’s order could not be based on its resolution of those issues. OPINION:DeVasto, J.; Worthen, C.J., Griffith and DeVasto, JJ.

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