COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS

CEL ADON T RUCKI

NG SERVI CES, I NC., Appellant/Cross-Appe llee,

v. MARI O MARTI

NEZ , Appellee /Cross-Appellant. § § § § § § § No. 08-07-00313- CV

Appea l from 384th District Court of El Paso County , Texas (TC # 2002-3447)

O P I N I O N Celadon Trucking Service s, I nc. appea ls from a ju d g me n t e n te r e d in f a v o r o f M a r io Martinez. Be cause we conclude that the I ndiana Workers’ Compensation Boa rd had exclusive jurisdiction of Martinez’s claims, we reve rse a nd rende r judg ment dismiss ing his suit. F ACTUAL SUMMA RY Mario Martinez, who lives in El Paso, applied for a job as a truck driver with Celadon at its El Paso term inal. Celadon is a trucking company with its headqua rters in I ndiana. After being 1 hired, Martinez trave led t o I ndianapolis for orientation. Celadon paid for his trip and housed him in a dormitory during the three day orientation. Whil e at orientation, Martinez signe d an ag ree ment with Celadon’s subsidiary , Celadon Trucking Company of I ndiana, I nc., en t i t l ed “Worker’ s Compensation Acknowle dg ement & Ag ree ment” which provided that Martinez’s employ ment was “princ ipally localized in I ndiana” and I ndiana worke rs’ compensa tion law would app l y to the

C e l a d o n h a s o t h e r T e x a s f a c i l i t i e s i n c l u d i n g L a r e d o a n d W a x a h a c h i e . 1settlement of any claim arising out of any job rela ted injury

. Martinez does not rea d Eng lish and he

did not understand the documents prese nted to him, but he did not ask any one to translate the d o cu m en t s nor did he tell any one he could not understand them. Martinez signe d the documents beca use he neede d the job. After orientation conclude d, Celadon provided Martinez with a truck and he returne d to El Paso. Martinez’s desig nated route cover ed sever al Texas cities but he sometimes drove to other

states. I n Aug ust 13, 2001, Martinez suffe red on-the-job injuries to his back and leg as the result of

a vehicular acc ident in Sweetwa ter, Texas. After he rec eived emer g ency trea tment, another Celadon truck driver who was passing throug h transporte d him home. Celadon is self-insure d for worke rs’ compensa tion purposes in I ndiana but it is not a qualified self-insure r in Texas. Celadon’s worke rs’ compensa tion manag er, Audre y Manning , called Martinez two day s afte r the acc ident and told him that his claim would be handled under I ndiana law pursuant to the ag ree ment he h ad s i gn ed , he would rec eive benefit checks, C eladon woul d p ay for his medical care , and C eladon had the right
t o d i rec t his medical car e. Manning also told him to g o to the Eastside Medica l Care Ce n t er i n El Paso for initial trea tment. Manning filed a repor t of injury that same day and forwa rded it to Celadon’s third-par

ty claims administrator, J WF Specialty Company

. Kar en Salwowski, a J WF employ ee, handled Ma

rtinez’s claim. On Aug ust 27, 2001, J WF filed a form entitled “Ag ree ment to Compensation of Employ ee and Employ er” with the I ndiana Workers’ Compensation Boa rd ref lecting Martinez would be compensa ted wee kly at a cer tain amount while off work. The benef it chec ks were deposited direc tly into Martinez’s bank ac count. Martinez complied with Manning ’s instructions and initially rec eiv ed t re atm ent at the Eastside Medica l Clini c. The doctors’ work status repor ts restric ting Martinez from all work wer e forwa rded to Manning

. MRI s of the knee and back wer e perf ormed on Aug ust 20, 2001 andref

lected that Martinez had a hernia ted disc in his lower back and joint effusion with ear ly bursitis in the knee. Consequently , Martinez was ref err ed to an El Paso orthopedic surg eon, Dr. Eric Sides, who restric ted Martinez from all work. On Aug ust 27, 200 1 , M an n i n g sent a six -pag e fax to Salwowski with the notation, “Mar io is wanting surg ery . We need to bring Mario to I ndy

. See Dr. L orber .” Manning explained that she wanted Martinez to g et a second opinion in I ndianapolis befor e he under went surg ery . On October 4, 2001, Manning authorized Salwowski to hire a nurse prac titioner, Be th Ba der, to a ssist with Martinez’s claim. Ba der ref err ed Martinez to D r. Ang elo Romag osa, who is a board

cer tified in phy sical medical and reha bilitation an d s h e asked Dr. Romag osa to provide detailed information about Martinez’s medical condition and prog ress. On October 22, 2001, Dr. Romag osa provided a detailed repor

t to Ba der. He diag nosed Martinez with a lumbar strain, a hernia ted disc, ag g rava tion of a fac et joint in the lower back, and a knee injury

. I n his opinion, Martinez’s prog nosis for r ecove ry

was g ood. Dr. Rom ag osa st ated it would be two to three months befor e he would be able to deter

mine when Martinez could re t u rn to light duty

. Be cause Martinez was experiencing

sever e spasms in his back and radic ular pain, Martinez would not be able to return to l ight duty immediately , but D r. Romag osa hoped that with trea tment Ma rtinez w ould be able to r eturn to job as a truc k driver in six m onths. Bade r instructed D r. Romag osa to take ove r Martinez’s treatment and he proce eded to trea t Martinez with corticoster oid injections in t h e k n ee an d b ack as well as phy sical thera

py . Dr. Romag osa also presc ribed anti-inflammatory and pain medications. Manning

rec eived a

copy of Dr. Romag osa’s letter

. I t is Celadon’s policy to bring drivers to I ndiana for light duty work when a light duty rele ase is obtained. The policy has sever al purposes but the main rea son is for medical trea tment. On October 30, 2001, Salwowski instructed Ba der to set up an appointment for Martinez to see Dr. J ohnL omas at Methodist Occ upation Hea lth in I ndianapolis. Salwowski also told Ba der that she neede d

to g et a light duty rele ase for Martinez from Dr. Romag osa. On October 31, 2001, Ba der called Dr. Romag osa’s office and told the staff she neede d return to work restric tions “now.” Ba der spoke with Dr. Romag osa about her reque st for Martinez to trave l to I ndiana but he did not believe it was a g ood idea due to Martinez’s sy

mptoms. Ba der told Dr. Romag osa that Celadon was insisti ng on Martinez trave ling to I ndiana for fu rt her trea tment. She also said that Martinez would continue to rec eive trea tment only if he flew to I ndiana. Ba der instructed Dr. Romag osa to complete the Texas Workers’ Compensation Work Status Report form which would serve as a presc ription allowing Martinez to fly

. Dr. Romag osa specific ally told Ba der that Martinez was not rea dy to return to light duty and he

wa s o n l y clearing Martinez to fly

. Wit h Ba der’ s g uidance , Dr. Romag osa completed the form writing in the section titled “other restric tions” that Martinez “may fly by plane.” He left blank the section entitled “wor

k status information” which would have indicated that Mart i nez’s medical condition would allow him to return to work on a g iven date w ith the restrictions listed in Section I I I of the form, but he listed various work restric tions in Sect i o n I I I

. Ba der forwa rded the form to Salwowski and Manning

. Although she had rec ei v ed a copy of Dr. Romag osa’s October 22, 2001 letter, Manning interpre ted the form as a light duty rele ase and called Martinez on November 2, 2001 to inform him that Dr

. R o m agosa had rele ased him to light duty

. She told him that Celadon had a light duty position available in I ndianapolis an d if he did not acc ept the position, his benef its would be terminated. Martinez also spoke with B ader about the letter . She told him t hat if he did not go t o I ndiana, his benef

its would be cut and his therapy would cea se. Mar

tinez went to I ndianapolis on November

5, 2001 beca

use he f elt he had no c hoice. Celadon h o u s ed M ar t inez in a larg e dormitory in a fenc ed compound. He spoke withManning and she repr esente d to him that he had been rele ased to light duty

. When he asked to se e

the rele ase, Manning ref used t o s h o w i t to him. At this point, Martinez beg an to suspect that Manning was ly ing to him. He saw Dr. L omas the following day and was rele as ed to light duty

. Manning put Martinez to work. On J anuary 10, 2002, Ba der notified Manning and Salwowski that Martinez had been schedule d for a functional capaci t y ev al u ation. She expected Martinez to be place d at maxi mum medical improvement (MMI ) and that he would be discharg ed from medical car e. Martinez attended the functional capa city evalua tion on J anuar y 11 and a repor

t was sent to Dr. L omas. When Martinez

saw Dr. L omas on J anuar y 15, Dr. L o m as co n cluded that Martinez’s functional abilities wer e perma nent and rele ased him from car e. Celadon terminated Martinez’s employ ment the same date beca use he ha d been r elea sed fr om worker s’ compensa tion with permanent re strictions. After rec eiving Dr. L omas’ written diag nosis that Martinez had a 7% perma nent impairment, Salwowski prepa

red a settlement ag ree ment entitled “Ag ree ment to Compensation of Employ ee and Employ er.” The ag ree ment is on I ndiana state form 1043. Ac cording to the agr eeme nt, Martinez had a 7% P PI and he would be paid $9,100 in a lump sum upon approval of the I ndiana Worker s’ Compensation Boa

rd. Mar tinez met with Manning and pre sented the a g ree ment to him. S he told him that he had rea ched maxi mum medical improvement and he did not need any more trea tment. Manning told Martinez that if he did not sign the ag ree ment, he would g et nothing, but if he signe d it, he would get the mone y and Celadon w ould send him home to his family . Martinez signe d the documents and returne d to his family the same d ay . The I ndiana Workers’ Compensation Boa rd approve d the ag ree ment. Martinez was unable to continue with his thera py f o llowing his termination beca use he c ould not affor d it. M a r ti n e z f il e d s u it a g a in s t Ce la d o n a ll e g ing non-subscribe r neg lige nce , w r o n g f u l te r mi n a ti o n ,and fr aud. The trial court g rante d partial summary judgme nt on all cause s of ac tion other than the

fra ud and wr ong ful termination. A jury returne d a ver dict in favor of Martinez on the fra

ud claim and in favor of Celadon on the wrong ful termination claim. The jury awa rded actua l damag es in the total amount of $354,362.50 an d p unitive damag es in the amount of $5,000,000. The trial court rende red judgme nt on the verdic t with the exception of the punitive damag es awa rd which the court reduc ed to $3,000,000. B oth parties filed notice of appe al. SUBJECT MATTER JURISDICTION We first addre ss I ssue Two beca use it challeng es the trial court’s subject matter jurisdiction. C el ad o n contends that the case should have been dismiss ed beca use the I ndiana Workers’ Compensation Boa

rd had exclusive jurisdiction over M artinez ’s claims and Martinez failed to exhaust his admini strative re medies. Alternatively , Celadon arg ues t hat M artinez did not exhaust his administrative remedies wit h the Tex as Divi sion of W orker s’ C ompensation. I t is undisp uted that Martinez did not prese nt his t o rt cl ai ms befor e either the I ndiana Boa rd of Workers’ Compensation or the Texas Division of Workers’ Compensation. We presume that district courts are authorized to resolve disputes unless the constitution or other law convey s exclusive jurisdiction on another court or admi n istrative ag ency . In re S o u t h w est ern Bell Telephone Company, L.P. , 235 S.W .3d 619, 624 (Tex. 2007); In re Enterg y Corp. , 142 S.W .3d 316, 322 (Tex. 2004) . An ag ency has exclusive jurisdiction when a perva sive

re gu l atory scheme indicates that the L eg islature intended for the reg ulatory proce ss to be t h e exclusive means of reme dy ing the problem to which the reg ulation is addre ssed. In re Southwestern Bell , 235 S.W .3d at 624-25; Subaru of America, Inc. v. David McD avid Nissan, Inc. , 84 S.W .3d 212, 221 (Tex. 2002). Whether an ag ency has exclusive jurisdiction is a matter of law subject to de novo revie w. In re Southwestern Bell , 235 S.W .3d at 625. I f an agenc y has exclusive jurisdiction toresolve a dispute, a party must first exhaust administrative reme dies befor e a trial court has subject

matter jurisdiction. Id

. Indiana W orkers’ Compe nsation Board Celadon maintains that it proved as a matter of law that I ndiana law applies in this case and the I ndiana Workers’ Compensati o n Boa rd had exclusive jurisdiction of Martinez’s tort claims pursuant to I ndiana Code Sec tion 22-3-4-12.1(a ): The worke rs’ compensa

tion board, upon hear ing a claim for benef its, has the exclusive jurisdiction t o deter mine whether

the employ er, the employ er’ s worker ’s compensa tion administrator, or the worke r’s compen s ation insurance car rier has acte d with a lack of diligenc e, in bad faith, or has committed a n independe nt tor

t in adjusting or

settling the c laim for compe nsation. I N D .C O D E § 22-3-4- 12.1(a)

. This sta tute require s that a claimant first prese nt his tort claims to the I ndiana Workers’ Compensation Boa rd and obtain an adver se ruling befor e invoking the jurisdiction of the c ourts. Sims v. United States Fidelity & Guaranty Company , 782 N.E.2d 345, 350-51 ( I nd. 2003). As we have noted, M ar tinez signe d an ag ree ment which states that his employ ment is “princ ipally localized in I ndiana” and that I ndiana wor

kers’ compensa

tion law would apply to the settlement of any claim arising out of any job rela ted injury

. Section 406.073(a) of the Texas L abor Code expres s l y s anctions such an ag ree ment: “An employ ee whose work require s reg ular trave l betwee n this state and at least one other jurisdiction may ag ree in writing with the employ er on the principal loca tion of the employ ment.” T E X .L A B O R C O D E AN N . § 406.073(a) (Ve rnon 2006). The ag ree ment signe d on Dec ember 2, 200 1 wa s b et wee n Celadon’s subsidiary , Celadon T r u c k in g Se r

v ic e s o f I ndiana, I nc., and Mario Martinez. Celadon’s worke rs’ compensa tion manag er, Audre y Manning , signe d the ag ree ment on behalf of the subsidiary , and that company is ide ntified in the ag ree ment as Martinez’s employ er. L ikewise, in the documents filed by J WF with the I ndianaWorkers’ Compensation Boa rd, Martinez’s employ er is identified as Celadon Trucking Service s of I ndiana. Martinez filed suit ag ainst the p ar en t company , Celadon Trucking Service s, which he identified in his pleading s as his employ er. I t is undisputed that Martinez’s claim was submitt ed to the I ndiana Workers’ Compensation Boa rd and he acc epted worke rs’ compensa tion benef its paid to him for his on-the-job injury

. The jury found that Celadon committed f raud ag ainst Martinez by falsely repr esenting that h e h ad b ee n rele ased to light duty by his doctor. Martinez proce eded at trial on the theory t h at Celadon made this false repr esenta tion to forc e him to trave l to I n d i an a wh ere Martinez could be

seen by Celadon’s doct o rs , b e s ubjected to a prema ture functional capa city evalua tion, and be terminated following settlement of his worke r’s compensa tion claim. Martinez’s fra ud alleg ations amount to an asser

tion of bad faith on the part of Celadon in adjusting or settling his claim for compensa tion. I f t he I ndiana statute applies, i t would require Martinez to have first prese n ted hi s fra ud claim to the I ndiana Workers’ Compensation Boa rd and obtained an adver se ru l i ng befor e filing suit in Texas. Martinez presents four arg uments why

the statute does not apply here

. First, he arg ues that Celadon has failed to raise any issue on appea l challeng ing the trial court’s ruling that I ndiana law does not apply

. Celadon filed a motion reque sting the application of I ndiana law but the trial court denied it. This court denied Celadon’s mandamus petition finding that Celadon had an adequate reme dy by appea l. In re Celadon Trucking Servic es, Inc. , 162 S.W .3d 769 (T ex .App.--E l Paso 2005, orig

. proce eding ). This Court expressly stated that the d en i al o f mandamus relief should not be construed as a ruling on the merits of the cho i ce of law issue p re s en t ed by Celadon. Whether I ndiana law applies is implicit in Celadon’s contention that th e Workers’ Compensation Boa rd has exclusive jurisdiction of Martinez’s fra ud claim. Finally , to the extent Martinez contends that Celadon waived the issue by failing to raise it on appea l, the arg umentis without merit. A contention that the trial court lacke d subject matter jurisdiction cannot be waived

and can be raised for the first time on appea l. Alfonso v. Skadden , 251 S.W .3d 52, 55 (Tex. 2008). Second, Martinez relies on expert testimony t o es tablish that the I ndiana Workers’ Compensation Boa

rd does not have jurisdiction over his claims. Geor g e Coriden, a licensed I ndiana attorney who serve d on the I ndiana Worker s’ Compensation Boa rd for sever al y ear s, testified that I ndiana did not have jurisdiction over Martinez’s injury

. Coriden testified that jurisdiction is based upon the employ ee’ s residenc e and wher e the work is actua lly perf ormed. I n thi s case , Coriden viewed Martinez’s contac t with I ndiana as minimal. Fur ther, it was his opinion that the parties could not confe r j urisdicti o n o n the I ndiana W orker s’ C ompensation Boa rd by ag ree ment. Whether t he I ndiana Workers’ Compensation Boa rd has exclusive jurisdiction of Martinez’s claims is a question of l aw s u b

j ec t t o de novo revie w. We are not bound by the t estimony of an expert witness on the

s u b j ect but rathe r we are bound to apply the law. Martinez does not cite any I ndiana author i t y prohibiting an ag ree ment such as this one. Whil e Coriden testified that Martinez is an employ ee in the state of Texas for worke rs’ compensa t i on purposes, Texas permits an employ ee to ag ree in writing with the employ er on the principal location of the employ ment. T E X .L A B O R C O D E AN N . § 406.073(a)

. Third, Martinez maintains that the I ndiana Workers’ Compensation Boa rd ’s ex clus ive jurisdiction pursuant to Section 22-3-4- 12.1(a) is trig g ere d only “upon hear ing a claim for benef its.” Since t he Board did not conduct a hear ing relative to Martinez’s claim, he reasons t hat t he st atute does not apply

. Martinez does not direc t us to any autho ri t y i n s u p port of his position that the “hea ring ” ref err ed to in the statute means a hear ing attended by the parties and their attorney s. The I n d i ana Workers’ Compensation Act expressly provides for disputes to be resolved by a s i n gl e member of the board in a summary proce eding

. See I N D .C O D E § 22-3-4- 6 (providing that the Boa rdshall hear the parties at issue, their repr esenta tives and witnesses, and shall deter mine the dispute in

a summary manner ); Rork v. Szabo Foods, 436 N.E.2d 64, 67 (I nd. 1982)(statin g t hat worke rs’ compensa tion claims are hear d and deter mined by a single member of the Workers’ Compensation Boa rd; the approa ch “ef

fec tuates a desirable and prag matic g oal in the ad m i n i s tration of the Worker’s Compensation Act-the s p eedy dispositi on of claims”); see also Davis v. W ebster , 136 I nd.App. 286, 198 N.E.2d 883, 290 (I nd. Ap p . 1 9 6 4 )( the I ndustrial Boa rd of I ndiana is an administrative ag ency , not a court, and it presc ribes its own proce dures which ar e summary and informal in nature ). The statute d o es n o t prec isely define what constitutes a hear ing but the Workers’ Compensation Boa rd cer tainly had befor e it Martinez’s claim for benef its when it considere d and approve d the ag ree ments submitt ed to it. Fur ther, the statute itself contemplates that it woul d apply when a party settles his worke rs’ compensa tion claim as it provides for exclusive jurisdiction over a claim of bad faith on the part of the employ er in settling a claim for compensa tion. Finally , construing the statute in the manner sug g ested by Martinez would have inconsistent results. An employ ee who enter s into a settlement of his worke rs’ compensa tion claim could maintain a tort suit ag ainst his employ er without first presenting the claim to t he W orker s’ C ompensation Boa rd, but an employ ee whose benef its are deter

mined by the Boa

rd following some contested proce eding would be require d to first exhaust his administrative reme dies. We fail t o p er ce i v e any basis for trea ting the two c lasses of c laimants differ ently

. Finally , Martinez contends that Celadon w as not a pa rty to any “cla im for benefits” before the I ndiana board beca

use J WF initiated worke rs’ compensa tion proce eding s only in the name of the subsidiary , Celadon Trucking of I ndiana. The I ndiana W orker ’s C ompensation Act contemplates that one wor

ker ma y simult aneously

have two e mploy ers. GKN Co. v. Magness , 744 N.E.2d 397, 402 (I nd. 2001). Fur

ther, a pare nt corpor ation and i t s s u bsidiaries are considered joint employ ersof the corpor ation’s, the pare nt’s, or the subsidiaries’ empl o y ee s for purposes of I ndiana Code

Sections 22-3-2- 6 and I C 22-3-3- 31

. I N D .C O D E § 22-3-6- 1(a)

. Thus, Celadon was a joint employ er 2 3 with Celadon Truc king of I ndiana. Martinez’s petition alleg es that Celadon comm i t t ed fra ud by falsely repr esenting that his doctor had rele ased him to light duty

. This alleg ation states the ty pe of claim which falls within the exclusive jurisdiction of the I ndiana Workers’ Compensation Boa rd under Section 22-3-4- 12.1(a)

. Cf. Spence r v. Bridgewater , 757 N.E.2d 208, 212 (I nd.Ct.App. 2001)(I n the context of the denial of insurance claims, “a finding of bad faith require s evidenc e of a state of mind ref lecting a dishonest purpose, moral obliquity , furtive desig n, or ill will.”). Consequently , we conclude Martinez was require d to prese nt his claims to t h e I n d i an a W orker s’ Compensation Boa rd befor e filing suit. Be cause he failed to do so, the trial court did not have subject matter jurisdiction of this claim. We sustain I ssue Two. THE NE GLIG ENCE CAUSE OF AC TION I n his cross-point, Martinez asser ts that the trial court err ed by g ranting summary judgme nt

on his neg lige nce cause of action. Martinez asser ted Celadon brea ched its duty to provide him with

s af e machiner

y and a safe place to work and the brea ch of these duties proxi mately cause d th e

acc ident and his resulting injuries. More specific ally , Martinez alleg ed Celadon provided him with

a defe ctive tire and rim on the vehicle , it failed to secur e the tire and rim to the vehicle, it f ailed to inspect the tire and rim, it failed to war n Martinez that it had not adequately secur ed the tire and rim,

I n d i a n a C o d e 2 2

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j u r y o r d e a t h b y a c c i d e n t s h a l l e x c l u d e a l l o t h e r r i g h t s a n d r e m e d i e s o f

s u c h e m p l o y e e , t h e e m p l o y e e ’ s p e r s o n a l r e p r e s e n t a t i v e s , d e p e n d e n t s , o r n e x t o f k i n , a t c o m m o n l a w o r o t h e r w i s e , o n a c c o u n t o f s u c h i n j u r y o r d e a t h , e x c e p t f

o r r e m e d i e s a v a i l a b l e u n d e r I C 5

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I n d i a n a C o d e 2 2

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- 3 1 r e l a t e s t o t h e a p p o r t i o n m e n t o f a n a w a r d w h e n a n e m p l o y e e i s i n t h e j o i n t s e r v i c e 3
o f t w o o r m o r e e m p l o y e r s .it failed to perf orm preve ntive maintenanc e on the vehicle, and it failed to supervise the mecha nics and maintenanc e personne l. Celadon filed a motion seeking both traditional an d n o evidence summary judgme nt on all of Martinez’s ca u s es of action including the neg lige nce claim. See T E X .R.C I V .P. 166a(i). When revie wing a no-evide nce motion for s u mm a r y ju d g me n

t, w e mu s t d is r e g ard all contra ry evidenc e and infere nces, and revie w t he evidence in the l ight most favor able t o t h e n o n-movants. King Ranch, Inc. v. Chapman , 118 S.W .3d 742 , 751 (Tex. 2003); W alker v. Presidium, Inc. , 296 S.W .3d 687, 692 (Tex.App.--El Paso 2009, no pet.). Once the moving party specific ally states the elements as to which there is no evidenc e, the burden shifts to the non-movants to produce summary judgme nt evidenc e raising a g enuine i s sue of materia l fac t reg arding eac h element challeng ed. W alker , 296 S.W

. 3 d at 6 9 2 -9 3

. I f the non-movants produce more than a scintilla of evidenc e reg arding the challeng ed element, a genuine issue of m ater ial fac t is raised. Id

. at 693. L ess t han

a scintilla of evidenc e exis ts if the evidenc e is so wea k as to cre ate no more than a mere surmise or suspicion. King Ranc h, Inc. , 118 S.W .3d at 751. Howe ver, w hen the evidenc e rises to a level that enable s rea sonable minds to differ in their conclusions, then more than a scintilla of evidenc e exis ts. Id

. I f the non-movants do not pr oduce more than a scintilla of evidenc e to r aise a g enuine issue of materia l fac t, the trial court “must” g rant the motion. Id. ; Larned v. Gateway East, Inc. , 186 S.W .3d 597, 601 (Tex.App.--El Paso 2006, no pet.) ; see also T E X .R.C I V .P. 166a(i). A neg lige nce cause of action has four elements: (1) a leg al d u t y o we d b y one person to another , (2) a brea ch of that duty , and (3) damag es (4) proxi mately cause d by the brea ch. W estern Inve stments, Inc. v. Urena , 162 S.W .3d 547, 550 (Tex. 2005); D. Houston, Inc. v. Love , 92 S.W .3d 450, 454 (Tex. 2002). An employ er has a duty to use ordinary car e in providing a safe workplac e. Kroger C o . v. E l w o od , 197 S.W .3d 793, 794 (Tex. 2006); Aleman v. Ben E. Keith Company , 227S

. W

. 3d 304, 310 (Tex.App.--Houston [1st Dist.] 2007, no pet.). An employ er must furnis h s af e machiner y an d i n s t rum entalities and provide adequate assistance under the circ umstances for the perf ormanc e of require d work. Humble Sand & Grave l, I nc. v. Gomez , 146 S.W .3d 170, 186 n.45 (Tex. 2004); W

erner v. Colwell , 909 S.W .2d 866, 869 (Tex. 1995); Aleman , 227 S.W .3d at 311. An employ ee suing an employ er for neg lige n c e b e a r s th e b u r d e n of prese nting leg ally sufficie nt evidenc e that the employ er require d the employ ee to work “whe re a rea sonably prudent employ er would not have done s o . ” W

erner , 909 S.W .2d at 869. An employ er, howeve r, is not an insurer of its employ ees’ safe ty

. Elwood , 197 S.W .3d at 794; Aleman , 227 S.W .3d at 311. Gene rally , courts will find suffic i en t proof of causa tion when lay testimony establishes a sequenc e of events that provides a strong , logic ally trac eable connec tion betwee n the event and the condition. Morgan v. Compugraphic Corp. , 675 S.W .2d 729, 733 (Tex. 1 9 8 4 ). P ro of ot her than expert testimony will constitute some evidenc e of causa tion only when a lay

person’ s g ener al experience and common understanding would enable the lay person to deter

mine from the evidenc e, with rea sonable probability , the causa l rela tionship betwee n the event and the condition

. Mack Trucks, Inc. v. Tamez , 206 S.W .3d 572, 583 (Tex. 2006). Ex pert testimony is require d when an issue involves matters bey ond jurors’ common understanding

. Id. Whether expert testimony is nece ssary to prove a matter or the ory

is a question of law. Id

. I n his summary judgme nt resp o n s e t o t his issue, Martinez relied solely on his deposition testimony in w hich he descr ibed the acc ident. Martinez testified that he hear d a big “boom” and a whee l came of

f of the t railer

. The stee ring whee l started to shake and the truc k pulled to the rig ht side of the road. Martinez could not control the truck and it struck signs along the road befor e hitting the pillars or “wa lls” of a bridg e. Martinez’s pleading s and summary judgme nt response assume that the wheel coming off o f t h e t ru ck is what caused him to lose control of the vehicle but he did notprese nt any evidenc e to support that alleg ation. Even assuming that the acc ident was cause d by the

whee l coming off of the truck, there is no evidenc e that it h ap p en ed d u e ei t h er to a defe ct in the whee l or beca

use it had not been proper ly secur ed to the vehicle. Fur ther, there is no evidenc e that Celadon failed to inspect the vehicle, faile d to perf orm preve ntive maintenanc e, or failed to war n Martinez that the tire had not b ee n ad equately secur ed. Consequently , there is no evidenc e that Celadon bre ache d its duty to provide him with safe e quipment or a saf e wor kplace

. Nor did Martinez prese nt any evidenc e that Celadon’s alleg ed brea ch proxi mately cause d his injuries. See Aleman , 227 S.W .3d at 311 (employ ee seeking damag es from employ er in neg lige nce action for broken leg sustained when employ ee sl i p p ed an d fell on ramp leading from his truck’s trailer to the g round during a delivery produce d no evidenc e, in opposition to no-evide nce summary judgme nt motion, that employ er’ s failure to proper ly maintain its trailers was the cause in fac t of his injury ; althoug h employ ee testified that he slipped on the ramp beca use his fee t wer e wet from water

on the floor of trailer that leake d from ref rig era tion unit inside the trailer, such testimony was only evidenc e that failure to maintain trailer cause d water to be present on trailer fl o o r, n o t t hat s uch a failure cause d his injury ). The tr ial court did not err by g ranting summary judgme nt on this cause of ac tion. W e over

rule Mar tinez’s first cross-point. Dismissal or Abatement Ha v i n g sustained I ssue Two, it is unnece ssary to addre ss the rema ining issues raised on appea l by either party

. W e m u s t now deter mine whether Martinez’s claims should have been dismiss ed or if abate ment is the corr ect reme dy

. I f a claim is not within a court’s jurisdiction, and the impediment to jurisdiction cannot be remove d, then it must be dismiss ed. American Motorists Insurance Company v. Fodge , 63 S.W .3d 801, 805 (Tex. 2001). On the other hand, if the impediment to jurisdiction could be remove d, th en t he court may abate proce eding s to allow area sonable opportunity for the jur isdictional problem to be cure d. Id. The time for Martinez to

pursue revie w of hi s claims by the I ndiana Workers’ Compensation Boa rd has expired. Cons e q u e n tl y , th e im

p e d iment to jurisdiction cannot be remove d. We there fore reve rse the judgme nt of the trial c ourt and re nder judg ment dismiss ing Ma rtinez’s suit for lack of

jurisdiction.Marc h 24, 2010 GUADA L UPE RI VERA, J ustice

Be fore McClure, J., R ivera , J ., and Gua derr ama, Judge McClure, J., not participating Guade rrama, J udg e, sitting by assig nment