Conex International Corporation v. Cox

• Decision Date: 08 June 2000
• Citation: 18 S.W.3d 323
• Parties: (Tex.App.-Beaumont 2000) CONEX INTERNATIONAL CORPORATION, Appellant V. JAMES R. COX, Appellee NO. 09-98-496 CV
• Court: Texas Court of Appeals

Page 323

18 S.W.3d 323 (Tex.App.-Beaumont 2000)

CONEX INTERNATIONAL CORPORATION, Appellant

V.

JAMES R. COX, Appellee

NO. 09-98-496 CV

In The Court of Appeals Ninth District of Texas at Beaumont

Submitted January 27, 2000

Decided June 8, 2000

On Appeal from the 60th District Court Jefferson County, Texas, Trial Cause No. B-145,593

Before Walker, C.J., Burgess and Stover, JJ.

OPINION

RONALD L. WALKER, Chief Justice

The gravamen of the lawsuit initially filed by appellee, James Cox, and the lone remaining action before this Court on appeal, is grounded in the anti-retaliation provision of Tex. Lab. Code Ann. §§ 451.001-451.002 (Vernon 1996). Cox, employed by appellant Conex International Corporation (Conex), sustained an injury to his hand on May 30, 1991, while in the course and scope of his employment at a facility owned by Texaco. It is undisputed that Cox availed himself of his rights under the provisions of the Texas Workers' Compensation Act.¹ The record further reflects that on June 12, 1991, while performing work, Cox dislocated the knuckle on his previously injured right hand. The next morning, Cox informed his foreman, Ralph Buckles, of his need to again see the doctor regarding his injured right hand. Testimony is in dispute as to whether Cox received permission to go to the doctor on June 13. At any rate, shortly after Cox returned from seeing the doctor on June 13, 1991, he was terminated by Conex.

A careful examination of the testimony and documentary evidence elicited at trial indicates that Cox was attempting to prove the following vis-a-vis his employment discrimination claim: that following his May 31, 1991, injury to his right hand Conex supervisory personnel refused to permit Cox to wear a prescribed hand brace and did not restrict Cox to light duty as recommended by Cox's doctor ultimately resulting in Cox sustaining a very severe injury to the same hand on June 12, 1991. Boiled down to its essence, as we appreciate his position to be, Cox is alleging that Conex's refusal to allow him to follow his doctor's orders was in retaliation for Cox pursuing his workers' compensation claim from the May 31, 1991 injury, with said retaliation resulting in the sustaining of the severe hand injury of June 12, 1991, which then led to Cox developing the extremely debilitating condition known as "reflex sympathetic dystrophy" (R.S.D.), an incurable pain syndrome.

After both parties had concluded presenting evidence to the jury and had rested, Conex moved for a directed verdict. It was denied by the trial court. Thereafter, the jury found that Conex discriminated against Cox, and awarded him $2,000 in past physical pain and suffering, $25,000 in past mental anguish, and $23,000 in past physical impairment, or loss of enjoyment of life. The jury refused to award Cox any future damages for physical pain or impairment or mental anguish. Conex subsequently filed a motion for judgment notwithstanding the verdict which was also denied by the trial court.

Conex brings forth six appellate issues for our consideration. We will combine consideration of the first two appellate issues as that will be dispositive of the case. Said issues read as follows:

Issue 1: Cox injured his right hand at work and twelve days later had a re-injury. Although Cox received workers' comp benefits, he sued Conex alleging that wrongful discrimination caused his re-injury. At trial, Cox recovered personal-injury damages for the re-injury. The trial court erred in denying Conex a directed verdict or JNOV because:

a) the exclusive-remedy provision bars recovery in a discrimination suit for work-related injuries;

b) Cox cannot get a double recovery for the same injuries; and

c) by receiving comp benefits, Cox elected his remedy.

Issue 2: Cox testified about his pain, mental anguish, and impairment from his work-related injuries. He did not testify about any separate mental anguish, pain, or impairment caused by discrimination. The trial court erred in denying Conex a directed verdict or JNOV because there was no evidence that the alleged discrimination caused Cox any past pain, past mental anguish, or past impairment.

The doctrine of "election of remedies" is an affirmative defense that, under certain circumstances, bars a person from pursuing two inconsistent remedies. Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996). In Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex. 1980), the Supreme Court noted that the election of remedies doctrine combines elements of estoppel, ratification, and unjust enrichment.

In Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex. 1983), the Supreme Court held the following:

Although the Workers' Compensation Act bars an employee's common law action for negligence against his employer, the Act does not exempt employers from common law liability for intentional torts. [citations omitted] An employee, however, may waive his cause of action for intentional tort if he seeks benefits under the Act. [citations omitted] The collection of workers' compensation benefits by an employee who subsequently alleges his injury was by intentional tort constitutes an election of remedies and estops the employee from proceeding to recover damages outside the Act. [citation omitted]

Concededly, an employee may have one claim against his employer under the Workers' Compensation Act and a separate, distinct claim at common law for intentional tort but such claims are mutually exclusive; thus, the employee's intentional tort claim and intentional tortious actions claim must be separate from the claim for compensation and must produce independent, separate, and distinct injuries. Id.

Cox responds that the election of remedies/estoppel rationale set out in Massey is inapplicable to the facts of the instant case because Cox's claims are not mutually exclusive. Cox reasons it thusly:

Cox had to pursue his right to benefits under the compensation Act [sic] to invoke the Act's protection. Once he did so and Conex retaliated against him, he had a claim for wrongful discrimination under the Act. The wrongful discrimination claim is dependent upon the worker's compensation claim.

Cox's argument as set out above is correct as far as it goes. It overlooks what we believe is the key phrase in the quote from Massey, "and must produce an independent, separate, and distinct injuries." See Sowell v. Dresser Industries, Inc., 866 S.W.2d 803, 812 (Tex. App.--Beaumont 1993, writ denied).

In a case similar in nature to the one before us, Nash v. Northland Communications Corp., 806 S.W.2d 952 (Tex. App.--Tyler 1991, writ denied), the plaintiff injured his back on the job, pursued and settled a workers' compensation claim, returned to work, was assigned more strenuous work, injured his back again, settled a second workers' compensation claim, and was subsequently fired while off work recuperating from the second injury. The plaintiff in Nash subsequently filed a discrimination lawsuit against his employer claiming the discrimination caused past and future damages of loss of wage-earing capacity, reasonable and necessary medical expenses, pain and suffering, mental anguish, physical impairment, and severe emotional and mental distress. The trial court severed out and then granted partial summary judgment in favor of the employer with regard to the discrimination claims allegedly resulting in the second injury because plaintiff had already received workers' compensation benefits for those injuries. In affirming the trial court's grant of the partial summary judgment against the plaintiff, the Tyler Court reasoned as follows:

The appellant is barred from asserting a [§ 451.001] discrimination claim for personal injuries received while digging the ditch because he has already recovered workers' compensation for these damages. He does not assert that the discriminatory ditch-digging assignment harmed him because it reduced his hours, wage rate or fringe benefits, or because it degraded him, or caused him any damage other than those related to his back injury for which he has already been compensated under the act. Those damages are separate and independent of the personal injury previously compensated under the Workers' Compensation Act. Such...