Marsh v. Travelers Indem. Co. of Rhode Island

• Court: Texas Court of Appeals
• Writing for the Court: KOEHLER
• Citation: Marsh v. Travelers Indem. Co. of Rhode Island, 788 S.W.2d 720 (Tex. App. 1990)
• Decision Date: 02 May 1990
• Docket Number: No. 08-89-00385-CV,08-89-00385-CV
• Parties: Oneta H. MARSH, Appellant, v. The TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, Appellee.

Page 720

788 S.W.2d 720

Oneta H. MARSH, Appellant, v. The TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND, Appellee.

No. 08-89-00385-CV.

Court of Appeals of Texas El Paso.

May 2, 1990.

Rehearing Overruled May 30, 1990.

Michael Cohen, Schwartz Earp McClure C & S, El Paso, for appellant.

Brenda J. Norton, Kemp, Smith, Duncan & Hammond, El Paso, for appellee.

Before FULLER, WOODARD and KOEHLER, JJ.

OPINION

KOEHLER, Justice.

This is an appeal from a summary judgment granted in favor of The Travelers Indemnity Company of Rhode Island ("The Travelers") on all claims in a suit filed by Oneta H. Marsh ("Marsh") for workers' compensation benefits connected with a posttraumatic distress order. We affirm.

At the time of her retirement, Marsh was employed as the manager of a Phone Center Store by AT & T Information Systems at an annual salary of $33,271.52. She had worked for AT & T and its predecessors, Mountain Bell Telephone and Southwestern Bell Telephone, for a number of years and was eligible for retirement. Previous to her retirement, her supervisor had spoken to her about taking retirement. On May 8, 1984, Marsh's supervisors called her into their office and told her that she had a choice to make: She could either take retirement or she could be downgraded and stay on as a clerk at a salary of around $7,000.00. Marsh chose retirement. Subsequently, Marsh began experiencing mental and emotional problems which were diagnosed as posttraumatic stress disorder brought on by her anxiety over the choice she had to make and by the retirement that followed. After an adverse ruling on her claim by the Industrial Accident Board, Marsh filed this suit claiming that her posttraumatic stress disorder was an occupational injury sustained by her while in the course and scope of her employment and seeking benefits under the Texas Workers' Compensation Act for total and permanent incapacity.

Marsh contends in her two points of error that the summary judgment was erroneous because the evidence submitted in support of the motion failed to establish as a matter of law that there was no issue of a material fact and that she did not suffer an injury in the course and scope of her employment. To sustain a summary judgment, the movant (The Travelers) has the burden to show that, as a matter of law, no genuine issue of a material fact exists as to the non-movant's (Marsh's) cause of action. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex.1985); Sabine Pilot Service, Inc. v. Hauck, 687 S.W.2d 733, 734 (Tex.1985).

The only question in this case is: Is there a genuine issue as to whether Marsh's alleged injury was sustained in the course of her employment? See Tex.Rev.Civ.Stat.Ann., arts. 8306, sec. 3(b) and 8309, sec. 1 (Vernon 1967). To successfully maintain a workers' compensation action, an employee must be injured while pursuing, in some form, the business of the employer. The injury must be of such kind and character as had to do with and originated in the employer's work, and the injury must have been suffered while the employee was engaged in or about furtherance of the affairs of the employer. Dallas County v. Romans, 563 S.W.2d 827 (Tex.Civ.App.--Tyler 1978, no writ); City of Austin v. Johnson, 525 S.W.2d 220, 221 (Tex.Civ.App.--Beaumont 1975, writ ref'd n.r.e.); McKim v. Commercial Standard Ins....