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

RI TA AL EMAN, Appellant,

v. Z ENI TH I

NSURANCE COMPANY and ROSS ANA SAL ERNO, Appellee s. § § § § § § No. 08-09-00168- CV

Appea l from 243rd District Court of El Paso County , Texas (TC # 2007-652)

O P I N I O N Rita Aleman filed suit ag ainst Z enith I nsuranc e and Rossana Salerno alleg ing bad faith in the denial of her worke r’s compensa tion claim. She appea ls from a summary judgme nt g rante d in favor of Z enith and Saler

no. For the re asons that follow, we aff irm. F ACTUAL SUMMA RY Aleman was employ ed as a packe r by Autotronics, an automotive parts manufa cture r. Her job duties require d her to packa g e car parts into container s. Z enith provided worke r’s compensa tion insurance for Autotronic s and Salerno w as employ ed by Z enith as a c laims ex aminer. On J uly 17, 2006, Aleman filed an injury repor t alleg ing she had suffe red an on-the-job injury
to her rig ht hand on J une 28, 2006 while closing shells which wer e unusually resistant, forc ing her
to use excessive pressure . Autotronics immediately ref err ed Aleman to Dr. Manouche hr Refae ian and she consulted with him the same day

. Dr. Refae ian diag nosed her with a rig ht wrist sprain and rig ht De Quer

vain’s tenosy

novitis. He presc ribed Mobisy l cre am and direc ted Aleman to continue taking Ty lenol and Celebre x . Dr. Refae ian also rec ommended that she decr ease repe titive activityat work involving the rig ht wrist. The following day , Aleman visited a chiropra ctor, L uis Marioni,

D.C., who diag nosed Alema n with a wrist sprain/strain a nd car pal tunnel sy

ndrome. Trey Gillespie, Z enith’s litigation direc tor, testified on deposition that Zen i t h handled Aleman’ s condition as a compensa ble injury but it continued to investiga te the claim. As part of the inve stiga tion, Salerno took Aleman’ s statement and spoke with the employ er about Al e ma n ’ s d u ti e s . Aleman’ s supervisor re fu t ed Al eman’ s claim that she packa g ed 600 order s a day as the entire packa g ing depar

tment, which consisted of three employ ees, packa g ed only 160-165 order s per day

. Acc ording to G illespie, that discrepa ncy had a neg ative impact on Aleman’ s cre dibilit y . Gillespie and S aler no also revie wed the available medical information. Aleman stated she was sti ll in pain five to six week s af

t er t h e date of the injury , but that was inconsistent with tendonitis or tenosy novitis acc ording to the Medica l Disability Advisor. Gillespie rela ted in his aff idavit that he conclude d there was n o objective medical evidenc e of a wrist sprain/strain, tendonitis, or tenosy novitis beca

use an MRI perf

ormed on J uly 29, 2006 did not reve al any soft tissue swelling or tendon damag e in the rig ht wrist. Wi th respec t to the car pal tunnel s y

ndrome diag nosis, Gillespie also consulted num erous peer reviewe d medical studies which le d him to conclude that Aleman’ s work a ctivities would not have ca used ca rpal tunnel sy

ndrome. Ba sed on the information they h ad gat h er ed, Gillespie and Salerno decide d to contest compensa bility on Aug ust 15, 2006 and Z enith sent notice to Aleman deny ing any further worke r’s compensa tion benef

its. Z enith subsequently reque sted a peer revie w of the claim to deter mine the

corr ect diag nosis and whether the medical condi t i on could have been cause d by Aleman’ s work activities. Gillespie explained that he decide d to contest compensa bility befor e reque sting the peer revie w beca

use he did not believe they would rec eive the peer revie w befor e the statutory six ty -daydeadline for filing the dispute expi red. Z enith had re ceive d notice of A leman’s c laim on July 17, 1 2006 so that the deadline for contesting compensa bility would not have expired until September 17, 2006. Thomas C. Diliberti, M.D. perf ormed the peer revie w on Aug ust 21, 2006 and deter mined that

a definitive diag nosis ha d not be en established and the limit ed information provided reg arding the work injury was inconsistent with the diag nosis of car pal tunnel sy

ndrome. L ikewise, he conclude d that the medical rec ords did not support any s i gn i fi ca n t medical trea tment. Dr. Diliberti

rec ommended a ref

err al to an orthopedic specia list for a definiti v e d i agn o s i s and trea tment plan. Although the peer revie w repor t was dated Aug ust 21, 2006, Z enith did not rec eive the repor t until November

13, 2006. Aleman contested the denial of benef its and the Texas Depa

rtment of I nsuranc e-D epar tmen t of Worker’s Compensation conducte d a benef it revie w conf

er en ce o n October 2, 2006. Aleman claimed that she had sustained a compensa ble injury based on a positive nerve conduction study , but that study had not bee n provided to Z enith. Z enith rec eived the r eport on Oc tober 13, 2006 a nd it ref lected that Aleman had car pal t unnel s y

ndrome in both hands but it did not include a diag nosis of De Quer

vain’s tenosy

novitis. The claim proce eded to a contested case hear ing on November 2, 2006 in which Aleman arg ued she had sust ained a compensa ble work injury in the form of carpal tunnel sy ndrome. TDI -DWC determ i n ed on November 7, 2006 that Aleman sustained a compensa ble occupational disease/injury on J une 30, 2006. Z enith did not appea l that decision and paid Aleman the acc rued a nd unpaid bene fits. On Dec ember 12, 2006, Gillespie rec eived a peer revie w repor t from Timothy Fa

hey , D.C. which questioned whether the car pal t u n n el sy

ndrome was work-r elated. Acting on Gillespie’s

T h e L a b o r C o d e p r o v i d e s t h a t i f a n i n s u r a n c e c a r r i e r d o e s n o t c o n t e s t c o m p e n s a b i l i t y o n o r b e f o r e t h e 6 0 t h 1 d a y a f t e r t h e d a t e o n w h i c h t h e i n s u r a n c e c a r r i e r i s n o t i f i e d o f t h e i n j u r y , t h e i n s u r a n c e c a r r i e r w a i v e s i t s r i g h t t o c o n t e s t c o m p e n s a b i l i t y . T E X . L A B O R C O D E A N N . § 4 0 9

. 0 2 1 ( c ) ( W e s t 2 0 0 6 )

.rec ommendation, Z enith reque sted TDI-D W C t o appoint a desig nated doctor. I n the meantime,

Dr. Marioni ref

erred Aleman to Dr. Klein who perf ormed a repe at nerve conduction study on J anuar y 4, 2007. The study was positiv e fo r ri gh t ca rpal tunnel sy ndrome and Dr. Klein’s office reque sted approva l for carpa l tunnel sy ndrome surge ry . Gillespie rec ommended a peer revie w by Dr. Gar y Pamplin to deter

mine whether the car

pal tunnel sy

ndrome arose out of Aleman’ s work activities. TDI -DW C s elected Gre g ory Ba ker, D.C. as the desig nated doctor. Dr. Ba ker examined Aleman on Fe bruar

y 2, 2007 and conclude d she had De Quer vain’s tenosy

novitis which was work related. He found that she had rea ched maxi mum medical improvement for that injury with n o perma nent impairment. He also conclude d that she had car pal tunnel sy

ndrome but found that it was not work-r elated. On Fe bruar

y 6, 2007, Gillespie and Salerno transfe rre d Aleman’ s claim into the Z enith Hea lth Care Networ

k for ong oing medical car e g iven the possibili ty of future surg ery . On Fe bruar y 9, 2007, Z enith filed a dispute with T DI -DWC contesting that the compensa ble injury extended to

car pal t unnel s y

ndrome. Dr. Klein’s offi ce s u b s eq u ently chang ed it s surg ical request from car pal tunnel rele ase to De Quer vain’s re lease

. TDI -DWC conducte d a contested case hear ing on benef it revie w confe renc e on April 5, 2007
to addre ss Z enith’s dispute of the car pal tunnel sy

ndrome but t h e p ar t ies could not rea ch an ag ree ment. A contested case hear ing was conducte d on September 26, 2007 to deter mine whether Aleman’ s injury extended to and included rig ht car pal tunnel sy

ndrome. Z enith acc epted the injury
to the rig ht wrist in the form of a rig ht wrist sprain and rig ht De Quer vain’s tendonitis. The hear ing office r found that the e vidence was insuffic ient to causa lly rela te the rig ht car

pal tunnel sy

ndrome to the compensa

ble injury sustained on J une 28, 2006.Aleman filed suit alleg ing Z enith and Salerno violated provisio n s o f t h e Texas I nsuranc e

Code, the Texas Dec eptive Trade Practice s Ac t , an d the common law duty of g ood faith and fair dealing by deny

ing her worke r’s compensa tion claim in b ad faith. More specific ally , she alleg ed that 2 Z enith and Salerno (1) violated Section 541.060(a) (2)( A) of the I nsuranc e Code by failing to attempt in good f aith to e ffe ctuate a prompt, fair, and equitable se ttlement of Aleman’ s claim; (2) violated Section 541.060(a) (3) of the I nsuranc e Code by failing to promptly provide a rea sonable explanation of the basis for Z enith’s denial of the claim; and (3) violated Section 541.060(a) (7) of the I nsuranc e Code by ref

using to pay a claim without conducting a rea sonable investiga tion. Aleman further alleg ed that the same conduct violated Sections 17.50(a) (3) and 17.50(a) (4) of the Dec eptive Trade Practice s Act and the common law duty of g ood faith and fair dealing beca use Z enith and Salerno 3 knew or should h av e known there was no rea sonable basis to deny Aleman’ s claim. Z enith and Salerno filed a motion for traditional and no evidenc e summary judgme nt contending that Aleman could not prove that (1) there was no rea sonable basis for the denial of her claim; and (2) Z enith and Salerno denied Aleman’ s claim knowing there was no rea sonable basis for the denial. The trial court g rante d summary

judgme nt without specify ing the prec ise basis for its ruling

.

BAD F AITH Aleman raises four issues on appea l c halleng ing the order g ranting summary judgme nt. I n I ssues One throug h Three , she contends that she prese nted at least a scintilla of evidenc e that Z enith and Salerno acte d i n b ad fa i t h by ignor ing information which showed that Aleman had a compensa ble repe titive trauma injury , and by failing to conduct a proper and objective investiga tion

A l e m a n f

i l e d s u i t o n F e b r u a r y 6 , 2 0 0 7

. G i l l e s p i e s t a t e d i n h i s a f f i d a v i t t h a t h e d i d n o t r e c e i v e a c o p y o f t h e 2 s u i t u n t i l M a r c h 5 , 2 0 0 7

.

S e c t i o n 1 7

. 5 0 ( a ) ( 3 ) p r o h i b i t s a n y u n c o n s c i o n a b l e a c t i o n o r c o u r s e o f a c t i o n b y a n y p e r s o n . 3 T E X . B U S . & C O M . C O D E A N N . § 1 7

. 5 0 ( a ) ( 3 ) ( W e s t 2 0 1 1 )

. S e c t i o n ( a ) ( 4 ) p r o h i b i t s t h e u s e o r e m p l o y m e n t b y a n y p e r s o n o f a n a c t o r p r a c t i c e i n v i o l a t i o n o f C h a p t e r 5 4 1 o f t h e I n s u r a n c e C o d e . T E X . B U S . & C O M . C O D E A N N . § 1 7

. 5 0 ( a ) ( 4 )

.befor e d en y i n g her claim. I n I ssue Four , Aleman alleg es that she prese nted at least a scintilla of

evidenc e that Z enith and Salerno acte d in ba d faith by failing to pr ovide her with a re asonable and clea r explanation for their de nial of her claim. Traditional Summ ary Judgm ent We beg in by addre ssing the traditional summary judgme nt motion. The standard of revie w for traditional summary judgme n t u n d er T E X .R.C I V .P. 166a(c ) is well established. Nixon v. Mr. Property Managem ent Company, Inc. , 690 S.W .2d 546, 548 (Tex. 1985). The moving party car ries the burde n of showing t here is no g enuine issue of m ater ial fac t and it is entitled to judgme nt as a matter of law. Diversicare Gene ral Partner, Inc. v. Ru b i o , 1 8 5 S

. W .3d 842, 846 (Tex. 2005); Browning v. Prostok , 165 S.W .3d 336, 344 (Tex. 2005). Evidence favor able to the non-movant will be taken as tru e i n d ec i d i n g whether there is a disputed issue of materia l fac t. Fort W orth Os t eo p a t h ic Hospital, Inc. v. Ree se , 148 S.W .3d 94, 99 (Tex. 2004). All rea sonable infere n ce s , including a

ny doubts, must be r esolved in f avor of the non-movant. Id . A def endant is entitled to summary judgme nt if the evidenc e disproves a s a matter of law at least one element of eac h of the plaintiff’s ca

uses of a ction or if it conclusively establishes all elements of an affirmative de fense

. D. Houston, Inc. v. Love , 92 S.W .3d 450, 454 (Tex. 2002); Randall’s Food Marke ts, Inc. v. Johnson , 891 S.W .2d 640, 644 (Tex. 1995). Once the defe ndant establishes a rig ht to summary judgme nt as

a matter of law, the burden shifts to the plaintiff to prese nt evidenc e raising a g enuine issue of materia l fac t. City of

Houston v. Clear Creek Basin Authority , 589 S.W .2d 671, 678-79 (Tex. 1979); Scown v. Neie , 225 S.W .3d 303, 307 (Tex.App.--El Paso 2006, pet. de nied). An insurer has a common law duty to deal fairly and i n good faith with its insured in the proce ssing a

nd pay ment of cla ims. Republic Insurance C ompany v. Stoker , 903 S.W .2d 338, 340 (Tex. 1995). An insurer will be liable if the insurer denies a claim when the insurer knew or shouldhave kn o wn t h at i t was rea sonably clea r that the claim was cover ed. Universe Life Insurance Company v. Giles , 950 S.W .2d 48, 56 (Tex. 1997). An insurer may also brea ch its duty of g ood faith and fa ir dea ling by

failing to rea sonably

investiga te a c laim. Giles , 950 S.W .2d at 56. Section 541.060 of the I nsuranc e Code identifies nine cate g ories of unfair settlement prac tices. T E X . I

N S . C O D E A

N N . § 541.060 (West 2009); see Leyva v. Ace American Insurance Company , --- - S.W .3d

--- -, 2010 WL 3410044, at *3 (Tex.App.--El Paso Aug ust 31, 2010, no pet.). The cate g ories include the three g rounds relied upon by Aleman: (1) failing to attempt in g ood faith
to eff ectua te a prompt, fair, and equitable settlement of a claim wher e the i n surer ’s liability has become rea sonably clea

r; (2) failing to promptly provide to a policy holder a rea sonable explanation of the basis in the policy for the insurer’ s denial of a claim or offe r of compromise settlement; and (3) r efusing to pay

a cla im without conducting a rea sonable investiga tion. T E X .I N S .C O D E A N N . § 541.060(a) (2), (3), and (7). The statutory “re asonably clea r” standard is identical to the common law bad faith standard. Mid-Century Insurance Company of Texas v. Boyte , 80 S.W .3d 546, 549 (Tex. 2002); Giles , 950 S.W .2d at 55. Evidence that mere ly shows a bona fide dispute about the insurer’ s liability on the contra ct does not r ise to the level of bad faith. Provident American Insurance Company v. Castaneda , 988 S.W .2d 189, 193 (Tex. 1998). The issue of the brea ch of the duty of g ood faith an d fair dealing “foc uses not on whether the claim was valid, but on the rea sonablene ss of the insurer’ s conduct” in handling the claim. Lyons v. Millers Casualty Insurance Company of Texas , 866 S.W .2d 597, 601 (Tex. 1993). An objective standard is utiliz ed to deter mine whether a rea sonable insurer under simil ar circ umstances would have delay ed or denied pay ment of t h e cl ai m . Aranda v. Insurance Company of North America , 748 S.W .2d 210, 213 (Tex. 1988); Vandev enter v. All American Life & Casualty Company , 101 S.W .3d 703, 722 (Tex.App.--F ort Worth 2003, no pet.).Carpal Tun nel Syn drom e

Z enith conte sted Aleman’ s claim on two differ ent occa sions. First, it contested compensa bility on Aug ust 15, 2006. TDI -DWC found t hat Aleman had sust ained a co mpensable occupational disease/injury but it did not identify the occupational disease or inju ry in its written decision. Z enith later disputed whether Aleman’ s compensa ble injury extended t o ca rpal tunnel sy ndrome. TDI -DWC found that the compensa ble injury did not extend to car pal tunnel sy

ndrome. Wit h respe ct to a bad faith claim based on Z enith’s dispute that the compensa ble injury extended to

car pal tunnel sy

ndrome, summary judgme nt was proper . As a g ener al rule, there can be no claim for bad faith when an insurer has promptly denied a claim t hat i s not cover ed. Sto ker , 903 S.W .2d at 341. The Supreme Court in Stoker did not exclude the possi b i lity that in deny ing the claim, the insurer may commit some act, so extreme, that it would cause injury independe nt of the policy claim. Stoker , 903 S.W .2d at 3 4 1 ; s ee Crocker v. American National Gene ral Insurance Company , 211 S.W .3d 928, 9 3 6 (T ex . App.--Dallas 2007, no pet.)(disc ussing this aspec t of Stoker ). I n this case , howeve r, Aleman has limit ed her bad faith claim to a n asser tion that liability was rea sonably clea r under the policy

. Consequently , we conclude that the trial court proper ly g rante d summary judgme nt in favor of Z enith and Salerno on a bad faith claim rela ted to Z enith’s dispute that the compensa ble injury did not ex tend to car

pal tunnel sy

ndrome. Wrist Strain/Sp rain and Tendon itis To prove her bad faith cau s e o f action rela ted to the denial of her claim and benef its on Aug ust 15, 2006, Aleman was require d to establ i s h t h at Z enith denied the claim when it knew or should have known it was rea sonably clea r that the claim was cover ed. Z enith and Salerno soug ht
to ne g ate this e lement in the context of the ir traditional summary judgme nt motion. To meet their burden, Z enith and Salerno relied on summary judgme nt evidenc e establishing that Z enith made thedecision to dispute compensa bility on Aug ust 15, 2006 beca use the diag noses of a wrist sprain/strain and De Quer

vain’s tenosy

novitis wer e questionable. Aleman ha d w aited near ly three wee ks to repor t her injury

. She stated during an interview that she packa g ed 600 order s a day , but her supervisor ref uted this asser

tion by repor

ting that the entire depar

tment packa g ed only 160-165 order s per day

. Aleman’ s employ er advised Z enith that Aleman’ s job duties wer e so light that t h ey woul d not be phy sically traumatic. Z enith’s decision-make rs also considere d that the descr iption of Aleman’ s job duties and the mecha

nis m o f i njury wer e inconsistent with the medical complaints and do cu m en t at i on. There was no objective medical evidenc e of a wrist strain/sprain in the form of tendonitis or t en o s y

n o v itis. An M RI perf

ormed on J uly 29, 2006 reve aled no soft tissue swelling

o r t en d o n damag e. I n contesting the compensa bility of the injury , Z enith and Salerno als o considere d that Aleman was repor tedly continuing to suffe r from pain in the rig ht wrist and hand five
to six wee ks afte r the date of injury

. The Medica l Disability Advisor indicated that a patient should
not continue to suffe r from t en d o n itis or tenosy novitis five to six wee ks afte r the date of injury

. Z enith believed based on the medical in fo rm at i o n and medical literature that Aleman might be suffe ring instead from non-work- rela ted car pal tunnel sy

ndrome. The fore g o i n g ev i dence conclusively established that Z enith did not know nor should it have known it was rea sonably clea r that the claim was cover ed. The only rema ining issue is whether Aleman car ried her burden of prese nting e vidence which ra ised a g enuine issue of materia l fac t. I n her brief, Aleman relies on the statement in Giles that the question of whether an insurer’ s liability has become rea sonably clea r prese nts a fac t issue for the jury

. Giles , 950 S.W .2d at 56. The

co u rt so held while “re

ject[ing] the sug g estion that whether an insurer’ s liability has become

rea sonably clea

r prese nts a question of law for the court rathe r than a fac t issue for the jury .” Id. We do not rea d Giles as holding that a party can never seek summary judgme nt with respe ct to whetherits li ability has bec ome re asonably

clea r. Al em an al so arg

ues that Z enith’s liability was rea sonably clea r beca use all of the medical experts who examined Aleman opined that she had a work-r elated injury

. Aleman faults Z enith for ignor ing “the obvious informat ion befor e it that Aleman had sustained a compensa ble repe titive
trauma injury

. . . .” At the time Z enith filed the dispute, howeve r, it had only rec eived the repor

ts by Dr. Refae ian and Dr. Marioni. Whether liability is rea sonably clea r must be judge d by the fac ts befor e the insurer at the time it denied the claim. See Viles v. Security National Insurance Company , 788 S.W .2d 566, 567 (Tex. 1990)(holding that whether there is a rea sonable ba sis for denial must be judge d by the fac ts befor e the insurer at the time it denied the claim). Aleman’ s arg ument ignor es the other e vidence Z enith considere d when de termining whether to contest compensa

bility

. Aleman fu rt h er maintains that Z enith and S aler no acte d in bad faith beca use Zenith failed to conduct a “ proper ” investi g ation, including reque sting a peer revie w report, befor e deny ing he r claim prior to the statutory deadline. Under the L abo r Code, Z enith had only six ty day s from the date it rec eiv ed notice of the injury to contest compensa bility

. T E X .L A B O R C O D E AN N . § 409.021(c) (West 2006). Whil e Z enith disputed comp en s ab ility prior to the expiration of the statutory deadline and without wai ting for the peer revie w repor t, its investiga tion to that point indicated that it was not rea sonably clea r that Aleman had sustained a compensa ble injury

. See Betco Scaffolds Company, Inc. v. Ho u s t o n United Casualty Insurance Company , 29 S.W .3d 341, 348 (Tex.App.--Houston [14t h Dist.] 2000, no pet.)(w here the insurer’ s investiga tion reve aled sufficie nt evidenc e to leg itimately sustain a basis for denial of the claim, insurer did n o t h av e obliga tion to investiga te further ). Aleman has not cited any authority for the proposition that Z enith acte d in bad faith by disputing compensa bility prior to the expiration of the statutory deadline. See id. Fur ther, Gillespie testified that he d ec ided to contest compensa bility befor e reque sting the peer revie wbeca

use he did not believe they would rec eive the peer revie w prior to the expiration of the statutory deadline. Aleman next contends that Z enith and Salerno acte d in bad faith by failing to investiga te the work site until six months afte r rec eiving notice of injury

. The summary judgme nt evidenc e showed that Z enith and Saler

no investiga ted t he work site both befor e and after deny ing A leman’s c laim. Salerno had inspected the packa g ing depar tment when she wa s as s i g ned as a claims examiner for Autotronics. Prior to deny ing Aleman’ s claim, Z enith and Salerno also interviewe d Aleman and her supervisor r eg arding her w orkplac e, wor king c onditions, j ob duties, and production rate . Aleman does not identify

and we fail to perc eive a fac t issue which would pre clude summary judgme nt. F ailure to P rovide Suf

fi cient Explanation for the Denial Aleman’ s final issue addre sses her claim that Z enith and Salerno acte d in bad faith by failing
to provide a rea sonable and clea r explanation for the denial of her claim. The notice sent to Aleman stated that bene fits were not being paid bec ause: Z enith I nsuranc e co ntests the compensa bility beca

use there was no injury in the course and scope of employ ment. The medic al literature does not support a causal rela tionship betwee n the work activities and the diag nosed car pal tunnel sy

ndrome. Carrie r denies that the claimant sustained an acc idental injury on 06/28/06 and denies that the work activities perf ormed on 06/28/06 are a producing cause of the medical condition. Citi ng Section 124.2(f) of the Texas Administrative Code, Aleman arg ues on appea l that the notice is insufficient beca

use Z enith did not identify the medical literature or provide her with a copy . An insurance car

rier is require d to n o t i fy t h e claimant of a denial of a claim based on non-compe nsability or lack of cover ag e. T E X .A D M I N .C O D E § 124.2(d). Section 124.2(f) further provides that: Notification to the claimant as require d by subsections (d) an d (e) of this section require s the car

rier to use plain lang uag e notices with lang uag e and contentpresc ribed by the Commi ssion. These n o t ices shall provide a full and complete

statement des cr i b i n g the car rier’ s action and its rea son(s) for such action. The statement must contain su f f ic ie n t c la im

- s p e c if

ic s u b s ta n tive information to enable the employ ee/leg al benef

iciary to understand the car rier’ s position or action taken on the claim. A g ener ic statement that simply states the car rier’ s position with phrase s such as ‘employ ee returne d to work,’ ‘adj u s t ed for light duty ,’ ‘liability is in question,’ ‘compe nsability

in dispute,’ ‘under investiga tion,’ or ot her simi lar phrases with no further descr iption of the fac tual basis for the action taken does not satisfy the require ments of this section. T E X .A D M I N .C O D E § 124.2(f)

. The notice was stated in plain lang uag e and i dentified Z enith’s rea sons for contesting comp en s ab i l i t y . Section 124.2(f) does not impose on Z enith any duty to identify the medical literature on which it relied or provide copies to her in connec tion with the notice. Aleman’ s arg ument is without m erit. I n t he context of this same issue, Aleman also maintains that Salerno informed her that Z enith was disputing her claim beca use she had diabetes. Aleman then points to Dr. Dilibert i ’s opinion that there was no evidenc e a pre- exis ting condition was the source of Aleman’ s complaints and injury

. She conclude s that this is some evidenc e Z enith wrong fully denied her claim. T his arg ument is unrela ted to Aleman’ s complaint reg arding the sufficie ncy of the notice. Fur ther, it does
not cre ate a

fac t issue in connection with the other bad fa ith claims. I n conclusion, none of the evidenc e or arg uments relied o n b y Aleman demonstrates the exis tence of a ge nuine i ssue of materia l fac t which would prec lude traditional summary judgme nt

on her bad faith claims. Having found that Z enith and Salerno conclusively established their entitlement to summary judgme nt, we overr ule I ssues One throug h Four

. I t is there fore unnece ssary that we address the arg uments rela ted t o the no evidenc e sum mary judgme nt g rounds. We aff irm the judg ment of the trial c ourt.May

4, 2011 ANN CRAWFORD McCL URE, J ustice Be fore Chew, C.J ., McClure, a nd Rivera, JJ

.