As a prerequisite for writing workers’ compensation insurance in Texas, an insurance company must maintain or provide accident prevention facilities that are adequate to provide accident prevention services required by the nature of their policyholder operations. These include surveys, recommendations, training programs, consultations, analysis of accident causes, industrial hygiene, and industrial health services. Applicable statute and rules include the Texas Labor Code (TLC), Chapter 411, Subchapter E and 28 Texas Administrative Code (TAC), Chapter 166. For more information about the accident prevention services requirements, contact the TDI-DWC at 512-804-4626 or aps@tdi.texas.gov.

• Annual Reporting Requirements
• Accident Prevention Services Inspections
• Recently Adopted/Repealed Accident Prevention Services Rules 28 TAC, Chapter 166

Annual Reporting Requirements

• Companies Writing Worker’s Compensation Policies Before October 1, 2013Insurance companies that had active workers’ compensation policies at any time from January 1, 2013 through October 1, 2013 must submit an initial DWC Form-109, Accident Prevention Services Annual Report, to the TDI-DWC by April 1, 2014. Subsequent annual reports must be filed by April 1 of each year thereafter if active policies were in effect for the preceding calendar year.
• Companies that Start Writing Worker’s Compensation Policies On or After October 1, 2013 

  An insurance company that writes its first workers’ compensation policy on or after October 1, 2013 shall file with the TDI-DWC an initial DWC Form-109, Accident Prevention Services Annual Report,not later than the effective date of its first workers’ compensation insurance policy. Thereafter, they must file a subsequent annual report by April 1 of each year if active policies were in effect for the preceding calendar year.The DWC Form-109 may be submitted to the TDI-DWC via e-mail to aps@tdi.texas.gov.

Accident Prevention Services Inspections

The TDI-DWC determines the adequacy of insurance company accident prevention facilities and services that are required by state law through review of information submitted on the DWC Form-109, Accident Prevention Services Annual Report, and through inspections of an insurance company’s accident prevention services.

As part of the inspection process, the TDI-DWC conducts policyholder visits to help determine the adequacy of the accident prevention services provided by insurance companies. Items reviewed during policyholder visits typically include: the types and confirmation of accident prevention services provided by the insurance company; a review of policyholder written safety programs and work-related injuries and illnesses; and an assessment of safety or health hazards at the worksite.

As determined to be appropriate, the TDI-DWC can remotely inspect an insurance company’s accident prevention services via electronic means. Insurance companies that desire an electronic inspection should notify the TDI-DWC of the request as soon as possible after receipt of the notification of inspection letter and no later than the date the policyholder list is due. Insurance company representatives or their designees must be available by telephone on the day of the inspection. Any information presented electronically by insurance companies will be provided in a manner that does not impede or alter the inspection process and will be in accordance with 28 TAC Chapter 166.

Each insurance company writing workers’ compensation policies will receive an initial inspection. Subsequent inspections will be conducted as often as the TDI-DWC considers necessary to determine compliance with the statute and rules.

Recently Adopted/Repealed Accident Prevention Services Rules

On March 11, 2013, Commissioner of Workers’ Compensation Rod Bordelon adopted new 28 TAC §166.2, amended §§166.1, 166.3, and 166.5, and repealed §§166.2, 166.4, and 166.6 – 166.9 regarding Texas Workers’ Compensation Accident Prevention Services. The purpose of these changes is to update various notice, service, and reporting requirements imposed upon insurance companies regarding accident prevention services associated with TLC provisions in Chapter 411, Subchapter E, Accident Prevention Services.

The adopted rules were effective October 1, 2013. The newly adopted rules and associated forms are available on the TDI website.

• Adopted/Repealed Rules (28 TAC Chapter 166)
• DWC Form-105, Accident Prevention Services Worksheet
• DWC Form-109, Accident Prevention Services Annual Report
• Accident Prevention Services Rule Implementation Training Materials (PDF)

For more information contact: APS@tdi.texas.gov

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

IN THE SUPREME COURT OF TEXAS

NO. 14-0272

SEABRIGHT INSURANCE COMPANY, PETITIONER,
v.
MAXIMINA LOPEZ, BENEFICIARY OF CANDELARIO LOPEZ, DECEASED,
RESPONDENT

ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS

Argued March 26, 2015
JUSTICE GREEN delivered the opinion of the Court, in which CHIEF JUSTICE HECHT,
JUSTICE WILLETT, JUSTICE GUZMAN, JUSTICE LEHRMANN, JUSTICE BOYD, JUSTICE DEVINE, and
JUSTICE BROWN joined.
JUSTICE JOHNSON filed a dissenting opinion.
This workers’ compensation case requires us to determine whether summary judgment
evidence conclusively established that an employee was acting in the course and scope of his
employment when he died in an automobile accident while traveling to a job site. A contested case
hearing officer for the Texas Department of Insurance, Workers’ Compensation Division, heard
evidence and determined that the employee suffered a compensable injury, and a three-member
appellate panel affirmed. The insurer sought judicial review, and the trial court granted summary
judgment for the claimant and affirmed the administrative decision. The court of appeals likewise
affirmed. 427 S.W.3d 442, 450–51 (Tex. App.—San Antonio 2014). We agree that conclusive
evidence established that the employee was acting in the course and scope of his employment at the
time of his death and affirm the court of appeals’ judgment.
I. Factual and Procedural Background
The relevant facts of this case are undisputed. Interstate Treating, Inc., a company that
fabricated and installed materials for the oil and gas processing industry, hired Candelario Lopez in
1999. 1 Interstate Treating’s primary office and fabrication department was in Odessa, Texas.
Interstate Treating provided its installation services at other, often remote, locations. Lopez resided
in Rio Grande City, Texas, with his wife, Maximina Lopez, but he never worked in the vicinity of
Rio Grande City during his employment with Interstate Treating. When Interstate Treating assigned
Lopez to work at remote job sites, Lopez made his own living arrangements—usually staying in a
motel—and Interstate Treating paid Lopez an hourly wage plus per diem for his lodging and food
expenses. Interstate Treating also would provide Lopez with a company vehicle to use at the remote
job locations, but Lopez was not paid for any time traveling to or from the job site.
In September 2007, Interstate Treating assigned Lopez to work on the installation of a gas
processing plant near Ridge, Texas—a distance the parties estimate to be 450 miles from Lopez’s
home in Rio Grande City. Although Interstate Treating expected Lopez to stay in a motel, Lopez
had full control of which motel he stayed in while working at the Ridge job site. He chose to stay
approximately forty miles from Ridge at a motel in Marlin, Texas. Interstate Treating allowed Lopez
1 Lopez worked temporary assignments for Interstate Treating. The record indicates that there were times
between temporary assignments that Lopez was not working.
2
to use a company vehicle to drive between his motel in Marlin and the Ridge job site. Interstate
Treating paid the vehicle’s insurance and provided Lopez with a credit card so that he could fuel the
vehicle. Lopez drove from his motel in Marlin to the Ridge job site every day, often allowing other
Interstate Treating employees to ride with him. Although Interstate Treating had no express policy
regarding carpooling, the use of company vehicles to transport employees to and from remote job
sites was a common occurrence. On the morning of September 11, 2007, Lopez was transporting
two other Interstate Treating employees to the Ridge job site when he died in an automobile accident.
Maximina sought death benefits from Interstate Treating’s workers’ compensation insurance
carrier, SeaBright Insurance Co. SeaBright denied coverage, taking the position that Lopez was not
acting in the course and scope of his employment at the time of the accident. Maximina then
initiated an administrative proceeding to challenge SeaBright’s denial of benefit payments. The
parties participated in a contested case hearing under Texas Labor Code section 410.151, and the
hearing officer determined that Lopez was acting in the course and scope of his employment and
ordered SeaBright to pay death benefits. A three-member appeals panel affirmed the hearing
officer’s decision.
SeaBright sought independent judicial review of the administrative decision. SeaBright’s
petition challenged four administrative determinations:
C Lopez’s work involved travel away from Interstate Treating’s premises;
C Lopez was engaged in or furthering the affairs or business of Interstate Treating at the time
of his fatal vehicle accident on September 11, 2007;
C Lopez sustained damage or harm to the physical structure of his body in the course and scope
of his employment at the time of his fatal vehicle accident on September 11, 2007; and
3
C Lopez sustained a compensable injury on September 11, 2007.
Both parties filed motions for summary judgment on the issue of whether Lopez was acting in the
course and scope of his employment at the time of the accident. The trial court granted Maximina’s
motion and denied SeaBright’s motion, affirming the administrative decision.
SeaBright appealed, and the court of appeals affirmed. 427 S.W.3d at 450–51. The court
of appeals began its opinion by noting that “[f]or an employee’s injury to be considered in the course
and scope of employment, it must (1) relate to or originate in the employer’s business, and (2) occur
in the furtherance of the employer’s business.” Id. at 447. In analyzing the first element, the court
of appeals concluded that the accident occurred during Lopez’s commute from his employerprovided
housing to the job site, in an employer-provided vehicle, and in an area of the state he
would not have been in but for his employment with Interstate Treating. Id. at 450. This evidence
of the relationship between Lopez’s travel and his employment with Interstate Treating was “so close
it can fairly be said the injury had to do with and originated in the work, business, trade, or
profession of Interstate [Treating].” Id. (citation omitted). Citing this Court’s opinion in Leordeanu
v. American Protection Insurance Co., 330 S.W.3d 239, 242 (Tex. 2010), the court of appeals held
that Lopez’s travel to the job site met the second element because such travel always furthers the
employer’s business. 427 S.W.3d at 447–48. Ultimately, the court of appeals affirmed the trial
court’s judgment, finding the summary judgment evidence established that Lopez was acting in the
course and scope of his employment at the time of the accident as a matter of law. Id. at 450–51.
4
SeaBright petitioned this Court for review. We granted the petition. 58 TEX. SUP. CT. J. 369
(Feb. 23, 2015).
II. Discussion
We review a grant of summary judgment de novo. State v. Ninety Thousand Two Hundred
Thirty-Five Dollars & No Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 292 (Tex. 2013). A
party moving for traditional summary judgment has the burden to prove that there is no genuine issue
of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann
Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review
summary judgment evidence “in the light most favorable to the party against whom the summary
judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not.” Mann Frankfort Stein & Lipp
Advisors, Inc., 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.
2005)). When both sides move for summary judgment and the trial court grants one motion and
denies the other, we review the summary judgment evidence presented by both sides, determine all
questions presented, and render the judgment the trial court should have rendered. Comm’rs Court
of Titus Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).
“The Texas Legislature enacted the [Texas Workers’ Compensation] Act in 1913 in response
to the needs of workers, who, despite escalating industrial accidents, were increasingly being denied
recovery.” Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000) (citation omitted). In order to
balance the competing interests of providing “compensation for injured employees while protecting
employers from the costs of litigation, the Legislature provided a mechanism by which workers
5
could recover from subscribing employers without regard to the workers’ own negligence while
limiting the employers’ exposure to uncertain, possibly high damage awards permitted under the
common law.” In re Poly-Am., L.P., 262 S.W.3d 337, 350 (Tex. 2008) (citations omitted). The Act
ultimately struck a bargain that allows employees to receive “a lower, but more certain, recovery than
would have been possible under the common law.” Kroger Co., 23 S.W.3d at 350 (citation omitted).
We liberally construe the Act in favor of injured workers to effectuate these purposes. In re Poly-
Am., L.P., 262 S.W.3d at 350.
The Act provides for employee compensation when injuries “arise[] out of and in the course
and scope of employment for which compensation is payable.” TEX. LAB. CODE § 401.011(10)
(defining “compensable injury”). While determining whether an injury is compensable may involve
other inquiries, the only issue the parties present in this case is whether Lopez was acting in the
course and scope of his employment at the time of his death. See id. §§ 401.011(10), (12);
410.302(b) (“A trial [reviewing a final decision of the appeals panel regarding compensability] is
limited to issues decided by the appeals panel and on which judicial review is sought.”). The
Legislature defined “course and scope of employment” to mean:
[A]n activity of any kind or character that has to do with and originates in the work,
business, trade, or profession of the employer and that is performed by an employee
while engaged in or about the furtherance of the affairs or business of the employer.
The term includes an activity conducted on the premises of the employer or at other
locations.
Id. § 401.011(12). We have previously stated that a similar statutory definition of “course and scope
of employment” required the injury to “(1) relate to or originate in, and (2) occur in the furtherance
of, the employer’s business.” Leordeanu, 330 S.W.3d at 241.
6
Regarding the origination element, “[a]n employee’s travel to and from work . . . cannot
ordinarily be said to originate in the [employer’s] business . . . because ‘[t]he risks to which
employees are exposed while traveling to and from work are shared by society as a whole and do not
arise as a result of the work of employers.’” Id. at 242 (quoting Evans v. Ill. Emp’rs Ins. of Wausau,
790 S.W.2d 302, 305 (Tex. 1990)). However, a distinction can be made if “the relationship between
the travel and the employment is so close that it can fairly be said that the injury had to do with and
originated in the work, business, trade or profession of the employer.” Shelton v. Standard Ins. Co.,
389 S.W.2d 290, 292 (Tex. 1965). This inquiry is satisfied if the employee’s travel was “pursuant
to express or implied conditions of his employment contract.” Meyer v. W. Fire Ins. Co., 425
S.W.2d 628, 629 (Tex. 1968) (citations omitted). Courts have generally employed a fact-intensive
analysis to determine whether an employee’s travel originated in the employer’s business, focusing
on the nature of the employee’s job, the circumstances of the travel, and any other relevant facts.
See, e.g., Tex. Mut. Ins. Co. v. Jerrols, 385 S.W.3d 619, 630 (Tex. App.—Houston [14th Dist.] 2012,
pet. dism’d); Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 730 (Tex. App.—Austin 2011, pet.
denied); see also Am. Home Assur. Co. v. De Los Santos, No. 04-10-00852-CV, 2012 WL 4096258,
at *4 (Tex. App.—San Antonio Sept. 19, 2012, pet. denied) (mem. op.).
The facts of this case are most similar to those of Texas Employers’ Insurance Ass’n v. Inge,
208 S.W.2d 867 (Tex. 1948). In that case, the employee, Inge, worked at a drilling site in an isolated
part of Pecos County, Texas, that was 31.5 miles from the nearest city. Id. at 867–68. Inge was paid
hourly wages while working at the drilling site, but was not paid for travel time to and from the
drilling site. Id. at 868. However, the employer expected one of its employees to transport the other
7
workers to and from the drilling site and paid that employee seven cents per mile for doing so. Id.
The employer allowed the workers to determine which employee was to drive, and the group chose
Inge. Id. The employer paid Inge the seven cents per mile, but did not pay for gasoline or vehicle
repairs or exercise control over Inge’s route, speed, manner of driving, or schedule. Id. Inge later
died in a car accident on a return trip from work. Id. The parties stipulated to the above facts, and
the trial court concluded that Inge was acting in the course and scope of his employment. Id. at 867.
We affirmed, noting that the “location of the drilling site in an uninhabited area made it essential that
[the employer] furnish transportation to his employees,” and that “this [free transportation] was an
important part of their contract of employment.” Id. at 869.
While Inge was not decided on a motion for summary judgment, we reviewed the trial court’s
application of the law to the stipulated facts de novo. See id. at 867 (“[T]he only matters in dispute
were the legal questions whether Inge, at the time of his death, was acting in the course of his
employment . . . .”); see also Amaro v. Wilson Cnty., 398 S.W.3d 780, 784 (Tex. App.—San Antonio
2011, no pet.) (reviewing a trial court’s application of the law to stipulated facts de novo); Markel
Ins. Co. v. Muzyka, 293 S.W.3d 380, 384 (Tex. App.—Fort Worth 2009, no pet.) (same); Panther
Creek Ventures, Ltd. v. Collin Cent. Appraisal Dist., 234 S.W.3d 809, 811 (Tex. App.—Dallas 2007,
pet. denied) (same); Alma Group, L.L.C. v. Palmer, 143 S.W.3d 840, 843 (Tex. App.—Corpus
Christi 2004, pet. denied) (same). “A trial court has no discretion in deciding the law or its proper
application.” Alma Group, L.L.C., 143 S.W.3d at 843 (citation omitted); accord In re D. Wilson
Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006) (orig. proceeding).
8
Here, we likewise review the application of law to the summary judgment evidence to
determine whether the relationship between Lopez’s travel and employment is so close that it can
fairly be said that his injury had to do with and originated in Interstate Treating’s work, business,
trade, or profession. See Shelton, 389 S.W.2d at 292. Our starting point is to determine what
Interstate Treating’s business was. Interstate Treating’s president testified in a deposition that, at the
time of the accident, Interstate Treating had roughly 150 employees. About half of those employees
worked at Interstate Treating’s Odessa office fabricating equipment. The other half worked on a
temporary assignment installing a gas processing plant near Ridge. The location of installation
employees was never permanent, and Interstate Treating installed equipment in multiple states.
Although Interstate Treating could have hired local employees at each temporary, remote job site,
its general practice was to hire people who had worked on previous installation jobs. From the
evidence in the record, we conclude that Interstate Treating’s business called for employing
specialized, non-local work crews in constantly changing, remote locations on temporary
assignments.
We next address the nature of Lopez’s employment. Lopez had worked on previous
installation jobs for Interstate Treating, and he was hired as a civil foreman at the temporary job site
near Ridge. His job required him to oversee the installation of all of the plant’s concrete foundations
and the placement of the plant’s equipment. While working at a temporary, remote job site like the
one near Ridge, Lopez and his coworkers were paid per diem to offset lodging and food expenses.
Although Lopez could stay at any motel he wished, Interstate Treating expected him to secure
temporary lodging rather than commute 450 miles from his home in Rio Grande City. Upon Lopez’s
9
request, Interstate Treating provided him with a company vehicle to drive to and from the job site
and paid the vehicle’s fuel and insurance expenses. Lopez was driving himself and two of his
coworkers from the motel to the Ridge job site in the company-provided vehicle when he died.
The ultimate inquiry under the origination element is to determine if the relationship between
Lopez’s travel and his employment with Interstate Treating “is so close that it can fairly be said that
the injury had to do with and originated in the work, business, trade or profession of the employer.”
Id. As discussed above, we conclude that Interstate Treating’s business called for employing
specialized, non-local work crews in constantly changing, remote locations on temporary
assignments. Interstate Treating’s business required its installation workers, like Lopez, to obtain
temporary housing and travel from that temporary housing to that temporary, remote location.
Lopez’s travel from his temporary housing to the Ridge job site and, more importantly, the risks
associated with such travel were dictated by Interstate Treating’s business model and enabled by
Interstate Treating’s provision of the vehicle and payment of per diem and other expenses. See
Meyer, 425 S.W.2d at 629 (stating that an employee’s travel injuries fall in the course and scope of
employment if the travel is “pursuant to express or implied conditions of his employment contract”).
As with the employee in Inge, who was not provided a company car or fuel expenses but who was
paid per mile to transport other employees to a remote work location, the provision of transportation
to the temporary, remote work location was an essential part of Lopez’s employment. Lopez’s travel
is more akin to those “employees such as deliverymen, messengers, collectors, and others, who by
the very nature of the work they have contracted to do are subjected to the perils and hazards of the
streets.” Smith v. Tex. Emp’rs’ Ins. Ass’n, 105 S.W.2d 192, 193 (Tex. 1937). Accordingly, we hold
10
that the relationship between Lopez’s travel and his employment “is so close that it can fairly be said
that the injury had to do with and originated in the work, business, trade or profession” of Interstate
Treating. Shelton, 389 S.W.2d at 292. Maximina conclusively established the origination element.
Regarding the furtherance element, we have recognized that “[a]n employee’s travel to and
from work makes employment possible and thus furthers the employer’s business.” Leordeanu, 330
S.W.3d at 242. Here, it is undisputed that Lopez was traveling to the Ridge job site when he died.
Lopez’s travel makes “employment possible and thus furthers” Interstate Treating’s business. See
id. Maximina conclusively established the furtherance element.
Even if an employee is engaged in actions that originate in and further the employer’s
business at the time of injury, the employee may not be acting in the course and scope of his
employment if his actions fall in one of two statutory exclusions. The phrase “course and scope of
employment” does not include:
(A) transportation to and from the place of employment unless:
(i) the transportation is furnished as a part of the contract of employment or
is paid for by the employer;
(ii) the means of the transportation are under the control of the employer; or
(iii) the employee is directed in the employee’s employment to proceed from
one place to another place; or
(B) travel by the employee in the furtherance of the affairs or business of the
employer if the travel is also in furtherance of personal or private affairs of the
employee unless:
(i) the travel to the place of occurrence of the injury would have been made
even had there been no personal or private affairs of the employee to be
11
furthered by the travel; and
(ii) the travel would not have been made had there been no affairs or business
of the employer to be furthered by the travel.
TEX. LAB. CODE § 401.011(12)(A)–(B). “[S]ubsection (A) applies to travel to and from the place
of employment,” and “subsection (B) applies to other dual-purpose travel.” Leordeanu, 330 S.W.3d
at 248 (footnote omitted). Both the origination and furtherance elements must be satisfied even if
an employee qualifies for one of the exceptions to an exclusion under subsections (A) or (B). See
id. at 244, 249; Freeman v. Tex. Comp. Ins. Co., 603 S.W.2d 186, 192 (Tex. 1980) (stating that the
exceptions to the exclusion do “not enlarge the definition of ‘course of employment’”).
Here, it is undisputed that Lopez was traveling only to his place of employment, rather than
furthering any of his personal or private affairs. Therefore, Lopez’s travel implicates the exclusion
in subsection (A) and not subsection (B). See Leordeanu, 330 S.W.3d at 248. It is also undisputed
that Interstate Treating provided Lopez with a company vehicle to drive to and from the job site and
paid the vehicle’s fuel and insurance expenses. These undisputed facts conclusively establish that
Interstate Treating paid for Lopez’s transportation. Maximina therefore conclusively established the
exception to the exclusion in subsection (A)(i). See TEX. LAB. CODE § 401.011(12)(A)(i). We
therefore hold that Lopez was acting in the course and scope of his employment at the time of the
September 11, 2007 accident.
III. Conclusion
Maximina conclusively established that Lopez’s travel to the Ridge job site originated in and
furthered Interstate Treating’s business, satisfying the statutory definition of “course and scope of
12
employment.” Because Interstate Treating furnished and paid for Lopez’s transportation, the
statutory exclusion in subsection (A) does not apply. Therefore, we hold that Lopez was acting in
the course and scope of his employment when he died, and Maximina is entitled to benefits. We
affirm the court of appeals’ judgment.
______________________________
Paul W. Green
Justice
OPINION DELIVERED: June 12, 2015
13
IN THE SUPREME COURT OF TEXAS
444444444444
NO. 14-0272
444444444444
SEABRIGHT INSURANCE COMPANY, PETITIONER,
v.
MAXIMINA LOPEZ, BENEFICIARY OF CANDELARIO LOPEZ, DECEASED,
RESPONDENT
4444444444444444444444444444444444444444444444444444
ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS
4444444444444444444444444444444444444444444444444444
JUSTICE JOHNSON, dissenting.
In my view, Lopez’s death was not in the course and scope of his employment. Because the
Court holds otherwise, I respectfully dissent.
An injured employee is entitled to compensation under the Texas Workers’ Compensation
Act if “the injury arises out of and in the course and scope of employment.” TEX. LAB. CODE
§ 406.031(a)(2). As relevant to this case,
“[c]ourse and scope of employment” means an activity of any kind or character that
has to do with and originates in the work, business, trade, or profession of the
employer and that is performed by an employee while engaged in or about the
furtherance of the affairs or business of the employer. The term includes an activity
conducted on the premises of the employer or at other locations. The term does not
include:
(A) transportation to and from the place of employment unless:
(i) the transportation is furnished as a part of the contract of
employment or is paid for by the employer;
(ii) the means of the transportation are under the control of the
employer; or
(iii) the employee is directed in the employee’s employment to
proceed from one place to another place;
Id. § 401.011(12).
The definition requires two elements to be met for an injury to have occurred in the course
and scope of employment. See Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 241 (Tex. 2010).
The first is origination, which requires that the activity “has to do with and originates in the work,
business, trade, or profession of the employer.” TEX. LAB. CODE § 401.011(12). The second is
furtherance, which requires that the activity be “performed by an employee while engaged in or about
the furtherance of the affairs or business of the employer.” Id. The part of the definition that
specifically excludes injuries occurring during transportation to and from the place of employment,
commonly referred to as the “coming and going rule,” is relevant to the disposition of this case. See
id. § 401.011(12)(A)(i)-(iii).
An injury while traveling to or from the place of employment is excluded from coverage
unless one of three exceptions to the exclusion are met. Id. But proving an exception to the coming
and going rule does not mean that the travel was an activity within the course and scope of
employment, so as to render the injury compensable. See Zurich Am. Ins. Co. v. McVey, 339 S.W.3d
724, 729 (Tex. App.—Austin 2011, pet. denied). Rather, proving an exception merely prevents the
employee’s injury during the travel from being automatically excluded from coverage. See Tex. Gen.
Indem. Co. v. Bottom, 365 S.W.2d 350, 353 (Tex. 1963); McVey, 339 S.W.3d at 729. And injuries
to employees during travel to and from work generally do not originate in the employer’s business
2
because “[t]he risks to which employees are exposed while traveling to and from work are shared
by society as a whole and do not arise as a result of the work of employers.” Evans v. Ill. Emp’rs
Ins. of Wausau, 790 S.W.2d 302, 305 (Tex. 1990); see Smith v. Tex. Emp’rs’ Ins. Ass’n, 105 S.W.2d
192, 193 (Tex. 1937).
At the time of the accident, Lopez was traveling to work on State Highway 7 in a company
truck he had been granted permission to use. Thus, an exception to the coming and going exclusion
applies because the transportation was paid for by his employer, Interstate Treating, Inc. TEX. LAB.
CODE § 401.011(12)(A)(i). But unless the evidence shows that his injury met the furtherance and
origination requirements, it was not covered.
The furtherance aspect is satisfied because Lopez was on his way to the job site. See
Leordeanu, 330 S.W.3d at 242. Therefore, whether the accident originated in Interstate Treating’s
business is determinative of the course and scope issue. In making that determination, the focus is
on “whether the relationship between the travel and the employment is so close that it can fairly be
said that the injury had to do with and originated in the work, business, trade or profession of the
employer.” Id. The Court has noted several factors that reflect on whether an employee’s travel
originates in the employer’s business or work, including: (1) whether the employment contract
expressly or impliedly required the travel involved; (2) whether the employer furnished the
transportation; (3) whether the employee was traveling on a special mission for the employer; and
(4) whether the travel was at the direction of the employer, such as requiring the employee to bring
tools or other employees to work or another location. See, e.g., Am. Gen. Ins. Co. v. Coleman, 303
S.W.2d 370, 374 (Tex. 1957) (identifying that undertaking a special mission or performing a service
3
at the direction of the employer is within the course and scope of employment even if also going to
or leaving from the place of employment); Tex. Emp’rs’ Ins. Ass’n v. Inge, 208 S.W.2d 867, 868-69
(Tex. 1948) (“The substance of the arrangement was that the members of the drilling crew were
being transported to the well location free of cost to them; and this was an important part of their
contract of employment.”). No single factor is necessarily determinative, but we have said that
“[r]educed to its simplest terms, the problem is whether [the injured employee] was already working,
or was simply on his way to work, at the time of the accident.” Meyer v. W. Fire Ins. Co., 425
S.W.2d 628, 628 (Tex. 1968).
The Court relies on Meyer for the proposition that “origination” is satisfied “if the
employee’s travel was ‘pursuant to express or implied conditions of his employment contract.’” ___
S.W.3d at ___ (quoting Meyer, 425 S.W.2d at 629-30). Certainly, the Court’s statement is true, but
it does not apply to this case. In Meyer, the injured employee was a service supervisor for a home
builder. Meyer, the injured employee, frequently took calls at his home or wherever he happened
to be, and responded to them directly from there. As we explained the facts,
[Meyer’s] duties did not require him to report to the office daily or at any particular
time. Although he “liked to get by” the office once a day to pick up messages, he did
not always do so. He did not have a desk at his employer’s office, and he usually
received complaints and did his required paper work at his home.
On the day of the automobile accident and resulting injury, Meyer began the working
day at home by taking two business telephone calls from Fairview Addition
homeowners and completing some paper work in preparation for a meeting at the
office that afternoon. He testified in his deposition that he then left his home to make
service calls in a subdivision in Northeast Austin. Although he was not required to
report to his employer’s office that morning and had no duties to perform there, he
decided to drive by the office on his way to the subdivision to determine whether
there were any messages relating to service calls in Northeast Austin, so that he could
4
perform all his work in that area at one time. The automobile collision occurred
before he reached his employer’s office, and on the usual and customary route
between Meyer’s home and the office.
Meyer, 425 S.W.2d at 629. The trial court granted summary judgment to the workers’ compensation
insurer on the basis that Meyer was not in the course of his employment when he was injured in the
accident, and the court of appeals affirmed. This Court reversed and remanded on the basis that
Meyer’s duties as a service supervisor required him to travel from place to place in
order to discharge the duties of his employment. Thus there is evidence that he was
impliedly directed to travel to make his service calls on the morning of the accident,
and injuries thus sustained while furthering his employer’s business by making such
service calls would be compensable . . . .
The [evidence] supports the contention that Meyer was not on his way to [b]egin
work, or to be assigned work; but that he had already begun work and was traveling
on the streets to make service calls pursuant to his usual duties, and merely deviated
to his employer’s office to see if there were other duties to be performed in the
neighborhood of his planned service calls. Assuming that the evidence upon trial on
the merits were to establish that Meyer was not reporting to work or to be assigned
work at his employer’s office, his deviation to his employer’s office while in the
course of his usual service calls would not place him within the category of workers
driving from home to work, . . .
Id. at 630.
The differences between Meyer’s situation and Lopez’s situation are readily apparent. Meyer
did not have a fixed place to work, such as an office or particular job site. Id. at 629. Lopez did.
Meyer was not traveling to get to his work; he was traveling as part of his work. Id. at 630. Lopez
was not traveling as part of his work; he was traveling to get to his work. Meyer had already begun
work when he was injured. Id. Lopez had yet to begin work when he was injured. There is no
evidence that express or implied conditions of Lopez’s employment contract required more than that
he show up at the job site and work.
5
Traveling public roadways entails risks of accidents and injuries. Employees who travel as
part of their duties are at risk of being injured during the travel, whereas they would not have that
risk if they worked at a fixed place of employment. See Smith, 105 S.W.2d at 193. Even though the
risk of traffic injuries is qualitatively the same as to both employees traveling to or from work and
those employees whose job duties require travel, the latter employee’s risk of traffic injury is in
addition to the risk of merely going to and from work that all employees share. Plus, travel by
employees as part of their job duties clearly would be in the course and scope of employment . But
Lopez had not yet begun work at the time of the accident. This risk of injury to which he was
exposed on the morning of the accident was the same as any other person traveling on public roads
to reach a job site. The duties of his job did not create the chances of his being injured. And the fact
that he was going to work from a temporary residence in Marlin does not change that. Whether he
was going to work from his home in Rio Grande City to a job site forty miles away or traveling forty
miles to Interstate Treating’s job site from his temporary residence in Marlin, the risk of injury to
which Lopez was exposed under the facts of this case is the same: the risk of injury in a traffic
accident on a public roadway while on the way to begin work. That is not a risk covered by
SeaBright Insurance’s policy of workers’ compensation insurance.
The Court’s reliance on Texas Employers’ Insurance Association v. Inge, 208 S.W.2d 867
(Tex. 1948), is also misplaced. There the employer paid $0.07 per mile for an employee to transport
himself and other employees to a remote drill site, although the employees determined which of them
would drive. Inge, 208 S.W.2d at 868. The drill site was remote, housing was not available nearby,
and the company offered free transportation to its employees as an employment incentive. See id.
6
at 868-69. Further, the existing wartime conditions necessitated employer-provided transportation
as the only practical manner to secure employees in the remote location. Id. at 869. In Lopez’s case,
however, there were motels near the Ridge job site, and Lopez’s supervisor even asked Lopez why
he was staying so far from the site.
Moreover, it was not Interstate Treating’s policy to provide its employees with off-site
transportation as an employment incentive for field projects. As noted previously, the company
merely acquiesced to Lopez’s request to use a company truck to travel to and from work. Interstate
Treating did not initiate Lopez’s use of the truck by offering it to him. No evidence suggests that
Interstate Treating explicitly or implicitly required Lopez to transport other workers to the job site,
nor is there evidence that Interstate Treating promised other employees free transportation by means
of the truck Lopez was given permission to use. Nothing in the record suggests that Interstate
Treating had to offer transportation incentives to its field employees in order to secure or retain their
employment.
The Court says that Interstate Treating’s business model calls for extended-duration field
work away from employees’ residences, so Lopez’s travel was effectively dictated by Interstate
Treating. __ S.W.3d __. However, where the employee is traveling to a fixed-location job site on
public roads, regardless of whether the employee leaves from a temporary or permanent residence,
the risk is the same—the ordinary risks associated with highways and roads. There is no meaningful
distinction between the two. This situation is not analogous to those instances where the duties of
the job itself require travel, such as travel by delivery and service workers.
7
Additionally, while the Court credits Interstate Treating’s payment of a per diem as evidence
of a close relationship between travel and the employment, merely increasing a worker’s pay through
a per diem does not expand workers’ compensation coverage to include ordinary risks of traveling
to and from a job site. A per diem is simply a form of compensation, and in Lopez’s case it was not
related to commuting. As the record reflects, the per diem was for temporary housing and meal
expenses. The type of lodging he rented, the location of the lodging, and the types of food he ate
were not matters dictated by Interstate Treating. And to the extent the lodging was distant from the
job site, exposing Lopez to increased traffic during his commute to and from work, the choice of
how far he had to drive to get to work was his.
Workers’ compensation insurance is not life insurance. Nor is it all-risk accident insurance.
It is insurance covering work-related injuries. While tragic, Lopez’s death under these circumstances
did not originate in his employment duties for Interstate Treating. Rather, it originated in the
ordinary, usual risks all workers assume when they travel to and from fixed work locations.
I would hold that the record conclusively proves that the requisite nexus between the travel
and Lopez’s employment duties did not exist, and Lopez was not injured in the course and scope of
his employment. I would reverse the judgment of the court of appeals and render judgment for
SeaBright Insurance Company.
________________________________________
Phil Johnson
Justice
OPINION DELIVERED: June 12, 2015

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

The Three Point Contact is the beginning of the process used in determining the nature and extent of injury and disability in a Texas workers’ compensation claim. Contact of the injured employee, the employer and the treating physician, the claim process of returning the injured employee to work as soon as practical, begins.  Three point contact is required on all lost time claims and should be done as soon as possible after the injury occurs. Although the Claim Examiner is responsible for the handling and processing of the claim, the three point contact process can be completed by assignment. Don’t just go through the motions, however, this is detective work.  There is rarely an excuse to not be able to get an answer to a question if you press hard enough, politely. The Employee contact should be done as soon as possible after the accident.  Information concerning how the accident occurred, the exact nature and extent of the injury and the physical limitations, should be the focus of the contact.  The injured employee’s treating physician, treatment plan and return to work date, should also be determined.  This contact is intended to establish a genuine concern for the injured worker.  This contact can also determine if the injured employee has any other issues, pre-existing medical conditions, financial issues, which may hinder return to work.  The adjuster/employee line of communication should be maintained after every significant doctor’s appointment until the injured worker is returned to work.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

To: Workers’ Compensation System Participants

From: Tracey Beaver, Director of the Office of Workers’ Compensation Counsel CC: Date February 19, 2015

RE: Finalized DWC Form PLN-4, Notice Regarding Eligibility for Lifetime Income Benefits.

Comments: The Division of Workers’ Compensation (DWC) has finalized its revisions to the DWC Form PLN-4, Notice Regarding Eligibility for Lifetime Income Benefits. The PLN-4 is a plain language notice sent by the insurance carrier to the injured employee to explain that the insurance carrier is either initiating lifetime income benefits or denying the injured employee’s eligibility for lifetime income benefits. If the insurance carrier is denying eligibility, the PLN-4 must be sent to the injured worker and DWC, and must provide a full and complete statement explaining the reasons for the denial. The revisions aim to ensure that injured employees, as well as DWC, are informed of the insurance carrier’s reasons for denial by providing a full and complete statement explaining why the insurance carrier is denying eligibility for lifetime income benefits. The revisions amend the existing PLN-4, Notification of First Lifetime Income Benefit Payment, to include a denial notice and revise the title to Notice Regarding Eligibility for Lifetime Income Benefits. The revised PLN-4 adds a checkbox to clearly show that eligibility for lifetime income benefits has been denied, and adds a space below where the insurance carrier provides their full and complete statement. There are also minor revisions to clarify the instructions. The Division is posting this finalized form simultaneously with the adoption of new 28 TAC §131.1, concerning initiation of lifetime income benefits; notice of denial. The finalized PLN-4 conforms to the plain language notice requirements outlined in new 28 TAC §131.1. An informal draft of the PLN-4 was posted on the Texas Department of Insurance website on October 10, 2014, with an informal comment period ending on November 10, 2014. DWC also clarifies that the PLN-4 must only be used as provided under 28 TAC §124.2(e)(1) and 28 TAC §131.1(d) for the initiation or denial of lifetime income benefits. DWC encourages an insurance carrier to utilize other modes of plain language communication with an injured employee for issues outside the scope of the PLN-4. The finalized PLN-4 is available on the Texas Department of Insurance website at http://www.tdi.texas.gov/forms/form20numeric.html, and is effective June 1, 2015. Insurance carriers may continue to use the existing PLN-4, available on the Texas Department of Insurance website at http://www.tdi.texas.gov/forms/form20plain.html, until the effective date of the revised PLN-4.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Texas Department of Insurance Division of Workers’ Compensation 7551 Metro Center Drive, Suite 100 • Austin, Texas 78744-1645 512-804-4000 telephone • 512-804-4001 fax • www.tdi.texas.gov

Memorandum To: Workers’ Compensation System Participants From: Kerry D. Sullivan, Deputy Commissioner for Hearings

Date: January 20, 2015

Subject: Discovery Relating to Testifying Experts

The Division of Workers’ Compensation (DWC) reminds system participants that parties in DWC dispute resolution proceedings are required to exchange “pertinent information” prior to benefit review conferences and contested case hearings. Pertinent information is inclusively defined to encompass “all information relevant to the resolution of the disputed issue or issues. . . .” 28 Tex. Admin. Code (TAC) §141.4(a). The exchange of this information is intended to facilitate agreed resolution of disputes and well-informed decision-making by the parties and the DWC. Along with the required exchange of pertinent information, limited additional discovery is also authorized, including interrogatories in the form prescribed in 28 TAC § 142.19. The prescribed interrogatories contain standard, specified questions and up to five free-form questions. If the parties wish, they may use the free-form interrogatories to seek information regarding the identity of a testifying expert and the general substance of the expert’s mental impressions and opinions—even if that expert has not prepared a written report. If the testifying expert did prepare a written report, the report would, of course, likely be subject to the exchange requirement discussed above. Testifying experts are reminded that the term “peer review” is defined in 28 TAC §180.1 as “[a]n administrative review by a health care provider performed at the insurance carrier’s request without a physical examination of the injured employee.” Pursuant to 28 TAC §19.2002, health care providers performing peer reviews on medical necessity issues must generate a written report. Hearing Officers will consider and rule on any case-specific objections to the free-form interrogatories. Hearing Officers will not allow parties to effectively shield the identity and opinions of testifying experts by listing an array of possible expert witnesses, only one of whom is actually expected to testify. The DWC’s approved interrogatories are available on the TDI website at http://www.tdi.texas.gov/wc/rules/documents/clainterrcar.pdf and http://www.tdi.texas.gov/wc/rules/documents/carinterrcla.pdf. If you have questions regarding this memo, please call me at 512.804.4015 or e-mail me at Kerry.Sullivan@tdi.texas.gov.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.