Ben Robinson Co. v. Texas Workers' Compensation Com'n

• Decision Date: 31 July 1996
• Docket Number: No. 03-95-00522-CV,03-95-00522-CV
• Citation: 934 S.W.2d 149
• Parties: 17 O.S.H. Cas. (BNA) 1689, 1997 O.S.H.D. (CCH) P 31,201 BEN ROBINSON COMPANY, Appellant, v. TEXAS WORKERS' COMPENSATION COMMISSION and its members in their official capacity, O.D. Kenemore, Ramon Class, Jack Garey, Royce Faulkner, Donna L. Snyder and John Nash, Appellees.
• Court: Texas Court of Appeals

Page 149

934 S.W.2d 149

17 O.S.H. Cas. (BNA) 1689, 1997 O.S.H.D. (CCH)

P 31,201

BEN ROBINSON COMPANY, Appellant, v. TEXAS WORKERS' COMPENSATION COMMISSION and its members in their official capacity, O.D. Kenemore, Ramon

Class, Jack Garey, Royce Faulkner, Donna

L. Snyder and John Nash, Appellees.

No. 03-95-00522-CV.

Court of Appeals of Texas,

Austin.

July 31, 1996.

Rehearing Overruled Oct. 16, 1996.

Mark S. Dreux, Arthur G. Sapper, Melissa L. Peppe, McDermott, Will & Emery, Washington, DC, Robin Robinson, Houston, for Ben Robinson Co.

Dan Morales, Attorney General, Dewey E. Helmcamp, III, Assistant Attorney General, General Counsel Division, Austin, for appellees.

Before POWERS, JONES and B.A. SMITH, JJ.

BEA ANN SMITH, Justice.

This appeal requires us to decide whether the Occupational Safety and Health Act, 29 U.S.C. § 651 (1982), preempts the Extra-Hazardous Employer Program ("the Program") as it is currently administered by the Workers' Health and Safety Division of the Texas Workers' Compensation Commission. See Tex.Lab.Code Ann. § 411.041 (West 1996); 28 Tex.Admin.Code § 164.1 (West 1996). We conclude that it does.

BACKGROUND

The Ben Robinson Company ("the Company") is a small Houston corporation in the business of selling steel pipe and tubing. As the Company's vice-president, Gerald Robinson handled sales, customer orders, and performed general office work. In September 1992, Gerald Robinson took a call from a truck driver scheduled to pick up a pipe order. The driver announced that he would arrive at the pipe yard around closing time, and asked if he could pick up the order then; Gerald told him that no one would be around to load the pipe that late in the day. The driver persisted in his request, suggesting that he could operate the forklift and load the pipe himself. Gerald called his father Jerry Robinson, the president of the Company, and asked if the driver could pick up the pipe. Jerry instructed his son not to let the driver load the pipe under any circumstances. Despite this admonition, Gerald allowed the persistent driver to load the pipe himself. As the driver was operating the forklift, some of the pipe rolled off, landing on Gerald and killing him.

Based on this fatality, the Workers' Health and Safety Division of the Texas Workers' Compensation Commission ("the Division") identified the Ben Robinson Company as an extra-hazardous employer. See Tex.Lab.Code Ann. § 411.041(b) (West 1996). This designation required the Company to have a safety consultant inspect the workplace and make a report identifying workplace hazards. See Tex.Lab.Code Ann. § 411.043(b) (West 1996). Following the report, the Company and the consultant formulated an "accident prevention plan" directed towards eliminating the identified hazards. See id. § 411.043(c). When a follow-up inspection conducted six months later indicated that the Company had complied with the accident prevention plan, the Division removed the

Company's extra-hazardous designation. See id. § 411.045.

DISCUSSION AND HOLDINGS

The Company contends in two points of error that the Occupational Safety and Health Act ("the OSH Act") preempts the Program as it is currently administered in Texas. In its third point of error, the Company claims entitlement to costs and attorney's fees. Before reaching the merits of these claims, however, we must address the Commission's several arguments in support of its contention that the case should be dismissed.

Grounds for Dismissal

The Commission first urges us to dismiss this case as moot. The Commission correctly observes that appellate courts only determine cases in which an actual controversy exists. See Camarena v. Texas Employment Comm'n, 754 S.W.2d 149, 151 (Tex.1988); University Interscholastic League v. Buchanan, 848 S.W.2d 298, 304 (Tex.App.--Austin 1993, no writ). The Commission claims that because it lifted the Company's extra-hazardous designation, all justiciable issues between the parties have been resolved and any decision by this Court would be of no practical effect. The removal of this designation does not, however, leave the Company in the position it was in before being labelled extra-hazardous.

First, it is important to note that the lifting of the designation following compliance with the accident prevention plan does not erase the original finding that the Company experienced a substantially higher-than-average injury frequency. See Tex.Lab.Code Ann. § 411.041(b) (West 1996). Significantly, the Company's insurance carrier was notified of this fact. See id. § 411.042 (requiring division to notify employer's insurance carrier of extra-hazardous designation). Notice of this official determination that the Company has an excessive injury frequency could have an adverse impact on the Company's insurance premiums and ability to obtain future coverage, regardless of the Company's subsequent compliance with an accident prevention plan.

The extra-hazardous designation could also have a detrimental impact on the Company's business affairs. Current and potential customers may consider the extra-hazardous designation a reason to do business elsewhere. The designation may also diminish the overall value of the business. ¹ Furthermore, Jerry Robinson asserted in an affidavit that the designation has caused him mental anguish, stress, depression and other medical problems, because the designation effectively states that he was in control of, and therefore could have prevented, the factors which led to his son's death. See id. § 411.0415 (fatality due to factors outside employer's control may be excluded from consideration in designating employer as extra-hazardous).

These lasting consequences will persist beyond the lifting of the Company's original extra-hazardous designation. On the other hand, if the Company obtains the relief it seeks, the original designation would effectively be purged and many of the resulting detrimental consequences would vanish. Accordingly, we hold that a live controversy exists between the parties which can be resolved by a decision from this Court.

Even if the case were moot, we would conclude that it falls within the "capable of repetition yet evading review" exception to the mootness doctrine. See General Land Office v. OXY U.S.A., Inc., 789 S.W.2d 569, 571 (Tex.1990). This doctrine applies "where the challenged act is of such short duration that the appellant cannot obtain review before the issue becomes moot." Id. (citing Spring Branch I.S.D. v. Reynolds, 764 S.W.2d 16, 18 (Tex.App.--Houston [1st Dist.] 1988, no writ)). When an employer is designated extra-hazardous, it has between seven and ten months to formulate and implement an accident prevention plan. See Tex.Lab.Code §§ 411.043(a), .045 (West 1996); 28 Tex.Admin.Code §§ 164.3(a), 164.5(a) (West 1996). Failure to comply with the plan subjects the employer to severe administrative penalties, leaving the employer with little choice but to comply. See Tex.Lab.Code Ann. §§ 411.046, 415.022 (West 1996). This Applying the mootness doctrine in a case such as this one would effectively prevent employers from obtaining judicial review of constitutional challenges to the Program. Indeed, in this case the Company's extra-hazardous designation was lifted even before the trial court rendered its final judgment. Because the short duration of an employer's extra-hazardous status renders it nearly impossible for an employer to obtain judicial review while that status remains pending, we would hold that this case falls within the "capable of repetition yet evading review" exception to the mootness doctrine. See State v. Lodge, 608 S.W.2d 910, 912 (Tex.1980).

                compliance results in the lifting of the extra-hazardous designation.  See id.   § 411.045(b).  Thus, in most cases, the duration of an employer's extra-hazardous status will be less than ten months
                

The Commission further contends that the Company cannot properly maintain its declaratory judgment action because the Administrative Procedure Act (the "APA") provides the exclusive method for attacking an agency order. See Tex.Gov't Code Ann. § 2001.171 (West 1996). When a statute provides a method for attacking an agency order, a declaratory judgment action directed at that order will not lie. See Texas Employment Comm'n v. Child, Inc., 738 S.W.2d 56, 58 (Tex.App.--Austin 1987, writ denied), cert. denied, 488 U.S. 849, 109 S.Ct. 130, 102 L.Ed.2d 103 (1988); Railroad Comm'n v. Home Transp. Co., 670 S.W.2d 319, 326 (Tex.App.--Austin 1984, no writ) (declaratory judgment does not lie in direct attack on Commission order). This is because a party is generally not entitled to redundant remedies. See Child, 738 S.W.2d at 58. In this case, however, the Company directs its declaratory judgment action not at the Commission's order, but at the constitutional validity of the Program itself. This declaratory judgment remedy is distinct from, and therefore not redundant to the remedy provided by the APA. See Bullock v. Marathon Oil Co., 798 S.W.2d 353, 360 (Tex.App.--Austin 1990, no writ) (holding that party could directly attack franchise tax assessment and simultaneously seek declaratory judgment that Comptroller's rules leading to assessment were unconstitutional). We therefore reject the Commission's assertion that the declaratory judgment action should be dismissed on this basis.

As a final ground for dismissal, the Commissioner contends that, because the Company has participated in the workers' compensation system, it cannot now bring a constitutional challenge to the Program. See Texas Architectural Aggregate v. Adams, 690 S.W.2d 640, 643 (Tex.App.--Austin 1985, no writ) (party who has availed itself of statute's benefits cannot then attack statute's constitutionality). The Company did not accept benefits associated with the Program, however, because it is subject to the Program's requirements regardless of whether it participates in the workers' compensation...