Usually when a plaintiff loses a worker’s compensation claim before an administrative hearing officer, the litigation is over. That would have been the case for Terrica Barnes if not for the work of her lawyer Bob Wynne.

Wynne convinced Houston’s 1st Court of Appeals that Barnes’ wrongful-death suit alleging gross negligence was not barred by res judicata and collateral estoppel, even though a Texas Department of Insurance Division of Workers’ Compensation (DWC) hearing officer already had denied her worker’s comp claim.

The 1st Court sets out the following background in June 23′s Terrica Barnes as Next Friend of Kainan Cooper v. United Parcel Service Inc.: Nathaniel Cooper suffered a heart attack and died on the job while employed by UPS. Cooper’s fiancee, Barnes, filed a worker’s compensation claim with the DWC on behalf of their son, Kainan. The hearing officer determined that Nathaniel Cooper’s work was not a contributing factor to his heart attack and was not a compensable injury under the Texas Workers’ Compensation Act.

Barnes did not appeal the administrative ruling. Instead, she filed a wrongful-death suit in a Harris County state district court alleging UPS was grossly negligent under §408.001(b) of the Texas Labor Code for failing to install an appropriate ventilation system to protect employees from high temperatures. Section 408.001 allows for exemplary damages.

UPS moved for summary judgment, arguing that the issue of whether Cooper’s working conditions caused his heart attack was litigated before the DWC and Barnes’ gross negligence claim was barred by collateral estoppel and res judicata. The trial court granted summary judgment and Barnes appealed to the 1st Court.

On behalf of Barnes, Wynne argued on appeal that res judicata did not apply to the claim because the right of a surviving heir to seek exemplary damages against an alleged grossly negligent employer is protected by the Texas Constitution and by statute. He also argued that collateral estoppel does not apply because the burden of causation at the DWC hearing was higher than it is for the gross negligence claim.

The 1st Court agreed with Wynne, reversing and remanding the suit to the trial court. “Whereas a plaintiff in a gross negligence lawsuit can prevail if the fact finder concludes that the defendant’s conduct was a cause of injury, a heart attack is compensable under 408.008 only after the hearing officer weighs the potential contributing factors and concludes that work-related conditions contributed more to the heart attack than any preexisting condition. These questions are not identical,” wrote Justice Michael Massengale in an opinion joined by Chief Justice Sherry Radack and Justice Harvey Brown. [See the court's opinion.]

“The hard part was getting the justices to focus in on the difference in the standards. And a heart attack under the Labor Code is a different standard than any other injury,” says Wynne of Houston’s Burford Hawash Meade & Gaston. “It’s higher because for a heart attack to win compensability from a hearing officer, you have to prove the pre-eminent cause was a work event. Whereas in a tort fee claim, you just have to prove that it was a ‘but for’ cause,” Wynne says. “It’s counter-intuitive for a lawyer or a judge to think that a workers’ comp standard is higher than the normal tort standard. It took a lot of delving into the statutory language and the case law to really hone in to the justices on that.”

David Brothers, a partner in Houston’s Brothers, Sepulveda & Alvarado who represents UPS in the case, did not return a telephone call seeking comment.

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