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Click here for the full text of this decision FACTS:Pamela Griggs appeals the summary judgment granted in favor of her former employer in a workers’ compensation retaliation case. Griggs contends Triple S Industrial Corp. terminated her employment because she appeared at a benefit review conference in which her spouse, also an employee of Triple S, obtained workers’ compensation benefits. Because Griggs neither testified nor was about to testify in a proceeding under the workers’ compensation statutes, she did not engage in a protected activity under the anti-retaliation statute. Griggs’ husband David gave notice of an on-the-job injury on Sept. 20, 2001, shortly after his employment with Triple S terminated. Appellant was not identified as a witness on the notice. According to an affidavit supplied by Robert Royal, Triple S’s Safety Director, the insurance carrier initially denied the claim and David Griggs requested a benefit review conference. At the benefit review conference conducted on Jan. 11, 2002, David Griggs and the insurance carrier agreed: 1. David Griggs sustained a compensable mental trauma injury on January 26, 2000; 2. a particular doctor was not the carrier’s choice but the carrier is liable for reasonable and necessary charges incurred; and 3. disability resulted from the injury, there was no disability prior to Oct. 23, 2001, and disability existed from that date through the date of the conference. Griggs attended the benefit review conference, and, in her deposition, stated that she spoke with the ombudsman during the conference. HOLDING:Affirmed. An employee cannot be discharged because the employee has “testified or is about to testify in a proceeding” under the Workers’ Compensation Code. Texas Labor Code �451.001. A benefit review conference is not a hearing of record and the benefit review officer is prohibited from taking testimony. Texas Labor Code �410.026. Therefore, Griggs’ participation in the hearing could not have included providing testimony. The court rejects Griggs argument that this court’s construction of “instituted” in Texas Labor Code � 451.001(3) in Duhon v. Bone & Joint Physical Therapy Clinics, 947 S.W.2d 316 (Tex. App. Beaumont 1997, no writ), supports her broad reading of “testified” in subsection 4 of the same statute. Griggs’ situation might be more closely analogous to Duhon if she had been terminated after the benefit review conference but before a contested case hearing was actually conducted. In such a situation, she could rationally argue that the employer’s decision to terminate her employment was a matter of timing. In Griggs’ case, however, the workers’ compensation case fully settled through mediation before her employer terminated her employment. She cannot rationally argue that her employer laid her off in anticipation of her future testimony, when there would never be an adversarial hearing in which she could testify. Griggs did not engage in a protected activity under the anti-retaliation statute. Therefore, the trial court did not err in granting summary judgment in favor of Triple S Industrial Corp. Because the appellant did not engage in activity protected by Labor Code �451.001, she cannot recover under the anti-retaliation statute. OPINION:McKeithen, C.J.; Before McKeithen, C.J., Gaultney and Kreger, J.J. DISSENT:Kreger, J. “For purposes of this appeal, the question is which is the more harmonious and consistent construction of section 451.001(4) – - a fully prophylactic application by which an employee who verbally participates in any Subtitle A proceeding, including a benefit review conference, is included in the protected class; or the majority’s selective application in which a non-claimant employee’s verbal participation in the first mandated proceeding, “informal” though it may be, subjects the non-claimant employee to possible retaliatory discharge for having verbally participated? I must presume the Legislature intended the former construction of section 451.001(4) as it gives effect to the “entire statute” and evidences a more just and reasonable result. See Tex. Lab. Code Ann. � 451.001(4). Because the majority construes it otherwise, I respectfully dissent.”

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