1 United States Court of Appeals,

Fifth Circuit.

No. 93-1322.

Sue PANSEGRAU, Plaintiff-Appellee Cross-Appellant,

v.

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.,

Defendant-Appellant Cross-Appellee.

June 29, 1994.

Appeals from the United States District Court for the Northern

District of Texas.

Before GOLDBERG, DAVIS, and DeMOSS, Circuit Judges.

GOLDBERG, Circuit Judge:

In this Texas workers' compensation appeal, Nationa l Union

Fire Insurance Company ("National Union") seeks to have a judgment

in favor of plaintiff Sue Pansegrau ("Pansegrau") reversed on

various grounds. Pansegrau, for her part, cross-appeals the

decision of the district court to reduce the amount of her

judgment. Our interpretation of Texas workers' compensation law

reveals no basis for reversing the judgment in Pansegrau's favor.

It does, however, show that the district court's decision to reduce

Pansegrau's benefits was erroneous and should be reversed.

I. FACTS

In the early morning hours of March 8, 1990, Pansegrau, a

registered nurse, was on duty at St. Paul Hospital in Dallas,

Texas. While speaking with a co-worker, Pansegrau, without warning

and witho ut discoverable cause, suddenly lost consciousness and

fell to the ground. She took no action to break her fall and the2

left side of her head hit the hard tile floor. The impact of her

fall caused a basal skull fracture and a brain stem injury.

Pansegr au filed a claim for workers' compensation benefits.

After the Workers' Compensation Commission awarded her

compensation, the workers' compensation carrier, National Union,

appealed by filing the instant lawsuit in the federal district

court below. The court held separate trials on liability and

damages. After a trial on the question of National Union's

liability, the jury returned a verdict in favor of Pansegrau. The

jury found that Pansegrau's injury was sustained in the course of

her employment and that she was therefore entitled to compensation.

By consent of the parties, the question of damages was

referred to a magistrate. The district court adopted the

magistrate's findings that Pansegrau was only entitled to recover

$73,369.78 in damages. Although she had in fact incurred an

additional $281,706.78 in fair and reasonable medical expenses, the

c ourt reasoned that she could only recover a part of her total

medical expenses because the other expenses had either been paid by

Pansegrau's health insurance carrier or were written off by the

health care providers as a professional courtesy to her husband who

is himself a doctor. The magistrate concluded: "Since plaintiff

has never been charged for any expenses assoc iated with services

rendered

... she is not entitled to recover damages for such

medical expenses."

On appeal, National Unio n disputes the finding of liability

and argues that Pansegrau has failed to show her injury occurred1 National Union also argues that the district court made

additional procedural mistakes in conducting the trial. Having

reviewed the record and the merits of these contentions, we find

no reason to reverse the trial court's decision based on these

points of error.

3 "in the cours e of employment" so as to entitle her to workers'

compensation benefits under Texas law. National Union also alleges

sundry other legal errors by the district court. Pansegrau, on

cross-appeal, claims that she is entitled to recover the additional

past medical expenses.

II. ANALYSIS

A. National Union's Allegations of Error

National Union contends that the di strict court erroneously

interpr eted the requirements for a valid workers' compensation

claim. Initially, National Union alleges that there was not

sufficient evidence to support the jury's findings. The disputed

findings include that Pansegrau's injury was sustained "in the

course of employment" and that Pansegrau did not make an election

of remedies when she pursued and accepted benefits from her

employer's group health insurance carrier. Further, National Union

alleges that the district court erroneously refused to give a jury

instruction explaining the "in the course of employment" phrase and

erred in awarding lifetime benefits to Pansegrau as a matter of

law. As we show below, National Union's contentions do not justify

reversal of the trial court. 1

1. Idiopathic Falls

An injured employee in Texas may recover workers' compensation

benefits if the injury was sustained "in the course of employment."2 The statute in effect at the time of Pansegrau's injury in

1990 was the old workers' compensation law, Tex.Rev.Civ.Stat.Ann.

art. 8306, et seq. (Vernon 1967) (repealed 1991, now Art. 8308-

1.01, et seq. (Vernon Supp.1992)). Although it has no effect on

this case, the definition of this term was reworded in the new

statute but was not substantively changed.

4 Tex.Rev.Civ.Stat.Ann. art. 8309, § 1(4), (Vernon 1967) (r epealed

1991). 2 The statute defines "injury sustained in the course of

employment," to include:

injuries of every kind and character having to do with and

originating in the work, business, trade or profession of the

employer received by an employee while engaged in or about the

furtherance of the affairs or business of his employer.

Id. Texas courts have culled two essential requirements out of

this statutory definition: the injury (1) must have occurred while

the claimant was engaged in the busines s of his or her employer;

and (2) must originate in and have to do wi th the employer's

business. T exas Employers Insurance Association v. Page, 553

S.W.2d 98, 99 (Tex.1977).

N ational Union concedes that Pansegrau meets the first

requirement; she was on duty and engaged in her employer's

business at the time she suffered her injuries. The controversy in

this case concerns the interpretation of the requirement that "the

injury originated in th e employer's work, trade, business or

profession." I d. National Union argues that Pansegrau's injury

did not originate in the hospital's business or in her profession

as a nurse. The evidence shows that she was standing up and

talking when she lost consciousness, fell down, and hit her head on

the floor. The doctors who testified to Pansegrau's injuries could

not identify a particular reason for the origin al loss of5

consciousness. They did testify, however, that her current

disabilities are a direct result of her head hitting the hard tile

floor.

National Union argues that Texas requires a causal connection

between the employee's work conditions and the injury. The injury,

it asserts, must result "from a risk or hazard which is necessarily

or ordinarily or reasonably inherent in or incident to the conduct

of such work or business." A merican General Ins. Co. v. Williams,

149 Tex. 1, 227 S.W.2d 788, 790 (1950); see also City of Garland

v. Vasquez, 734 S.W.2 d 92, 96 (Tex.App.—Dallas 1987, writ ref'd

n.r.e.). Because there was no evidence linking Pansegrau's loss of

consciousness to any particular risk or condition inherent to her

position as a nurse at St. Paul Hospital, National Union claims

that Pansegrau's injuries did not arise out of her employment.

Based upon the causal connection requirement, National Union

contends that the district court made two separate errors in the

conduct of th e trial below. First, it argues that there was

insufficient evidence to support the jury's finding that

Pansegrau's injury occurred in the course of her employment. Next,

National Union contends that the trial court should have issued a

jury instruction which embodied National Union's interpretation of

the causal connection requirement. We conclude that National

Union's interpretation of the causality requirement is

jurisprudentially i ncorrect and therefore find no merit to its

allegations of error.

The case law interpreting and implementing the Texas worker's3 An idiopathic fall is one for which there is no known

cause.

4 This result is consistent with the intention of Texas

courts to liberally construe the workers' compensation statute in

favor of employees. Yeldell v. Holiday Hills Retirement &

Nursing Center, Inc., 701 S.W.2d 243, 245 (Tex.1985); Montgomery

County v. Grounds, 862 S.W.2d 35, 43 (Tex.App.—Beaumont 1993,

writ denied).

6 com pensation statute has provided compensation to employees who

fall on the job for unknown r easons and are injured as a result.

S ee Garcia v. Texas Indemnity Ins. Co., 146 Tex. 413, 209 S.W.2d

333, 336 (1948) (granting workers' compensation benefits following

an idiopathic fall 3 ); P age, 553 S.W.2d at 102 (same). 4 This line

of cases ext ends the principle that a "pre-disposing bodily

infirmity will not preclude compensation." I NA of Texas v. Howeth,

755 S.W.2d 534, 536 (Tex.App.—Houston [1st Dist.] 1988, no writ).

In idiopathic fall cases, although the condition which caused the

fall is unknown, if the worker was injured by the fall itself, he

or she can claim compensation for injuries sustained as a result.

Our decision in this case follows a series of Texas decisions

in which the employee was allowed to collect for injuries that

occurred afte r an unexplained fall. The principle found its

earliest incarnation in Garcia where the Texas Suprem e Court

allowed an injured employee to re cover workers' compensation

benefits after he suffered what the court assumed was an epileptic

attack and fell and hit his h ead on a steel post. 209 S.W.2d at

336. The court held that even if the fall was precipitated by some

underlying idiopathic condition and even if "[t]he risk may be no

different in degree or kind than those to which he may be exposed7

outside of his employment[, t]he injury is compensable, not because

of the extent or particular character of the hazard, but because it

e xists as one of the conditions of the employment." I d. at 337.

While it seemed the court considered the presence of a steel post

as a key factor in this case, later decisions interpreting Garcia

have not emphasized this element in their ana lysis of idiopathic

falls.

Following Garcia, a Texas court of appeals allowed recovery

when an employee's idiopathic condition c aused him to lose

consciousness and fall to the floor where he received a fatal head

injury. G eneral Ins. Corp. v. Wickersham, 235 S.W.2d 215, 219

(Tex.Civ.App.—1950, writ ref'd n.r.e.). The W ickersham court held

that "[w]e can find no sound reason for d enying a recovery where

the fall is to the floor, when recovery is allowed where the fall

is from a ladder, or platform or similar place." Id.; see also

American General Ins. Co . v. Barrett, 300 S.W.2d 358, 363

(Tex.Civ.App.1957, writ ref'd n.r.e.) (idiopathic fall case holding

that a "hard-surfaced road was an instrumentality essential to the

work of the employer and falling against it was a hazard to which

Barrett was exposed because of his employment").

In Page the Texas Supr eme Court faced a situation where a

bank guard walking across a level parking lot fell when his right

knee buckled. The court made clear that where an employee falls to

the ground due to some unidentified cause, there remains a question

of fact as to "whether the injury originated out of Page's

employment, that is whether there was a sufficient causal8

connection between the conditions under which his work was required

to be performed and his resulting injury ." P age, 553 S.W.2d at

102. The crux of this holding is that where an employee has an

idiopathic condition which precipitates a fall onto level ground,

the employee can still assert a causal connection between the

injury and a condition of employment despite the fact that no one

has been able to identify the cause of the fall. For this reason,

in an idiopathic fall case such as this, summary judgment (or

dir ected verdict) against the employee on this basis is

inappropriate. Id.

A fair reading of the case law compels the conclusion that as

long as the employee traces the cause of her injuries to the fall

itself rather than the underlying condition, the injuries are

compensable. Pansegrau demonstrated that an idiopathic condition

caused her to fall while on the job. She showed that her injuries

were a result of that fall and not the underlying condition which

triggered the fall. She has therefore provided sufficient evidence

for a jury to find that the injuries arose out of her employment.

In sum, the case law supports Pansegrau's theory of recovery and

demonstrates no reasonable basis for reversing the judgment in her

favor.

2. Election of Remedies

An injured employee's appli cation for health insurance

benefits may, under a limited set of circumstances, constitute an

election of remedies that will relieve the worker's compensation

carrier from liability. The doctrine applies to bar a claimant5 National Union also argues that Pansegrau ratified an

election made by her health insurance carrier because she

accepted the payments by that carrier for her medical expenses.

Because, as shown below, the election of remedies argument fails,

the ratification defense similarly cannot carry any force. There

can be no ratification of an election if there has been no

election.

9 from seeking relief when the employee:

(1)

... successfully exercises an informed choice (2) between

two or more remedies, rights, or states of facts (3) which are so inconsistent as to (4) constitute manifest injustice.

Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex.1980).

National Union alleges that Pansegrau made an election of remedies

and the jury's finding to the contrary was unsupported by the

evidence. 5

The record in this case shows that Pansegrau by way of her

husband, Dr. Don Pansegrau, initially sought coverage for her

injury through workers' compensation. National Union denied the

claim on April 9, 1990 as non-wor k related. Faced with mounting

medical bills, Pansegrau's husband filed claims with her employer's

group health insurance carrier. The health insurance carrier

eventually paid out more than $250,000 in claims to reimburse

Pansegrau's medical expenses. National Union asserts that by

accepting health insurance benefits, Pansegrau made an informed

decision to forgo any claim to workers' compensation.

The case law, however, shows that Pansegrau's claim is not

barred by the election of remedies defense. National Union cannot

prove the required elements of this def ense. Texas courts

following Bocanegra have held that "there is no election, that is,

no inconsistency in choices, when one first pursues a right or10

remedy which proves unfounded and then pursues the one that is

a llowed." P late & Platter, Inc. v. Wolf, 780 S.W.2d 453, 456

( Tex.App.—Dallas 1989, writ denied). Pansegrau opted to receive

payments from her employer's health insurance to cover her medical

expenses only after she was denied workers' compensation benefits

by National Union. She could not, therefore, have made an informed

d ecision to relinquish her rights to pursue the workers'

compensation benefits because those benefits were not an option at

the time she elected to receive payment from the group health

carrier. See Allstate Ins. Co. v. Perez, 783 S.W.2d 779, 781

(Tex.App.—Corpus Christi 1990, no writ) (electi o n of remedies

unavailable as a defense where cause of injury was uncertain and

where workers' compensation carrier denied liability); s ee also 75

Tex.Jur.3d Work Inj ury Compensation § 358 (1991) ("Where a

workman's employer carried, in addition to worker s' compensation

coverage, a group insurance policy with another compan y for the

benefit of its employees, which excluded incapacity resulting from

an injury compensable under the workers' compensation laws, and the

workman claimed and received benefits under the group policy,

neither the doctrine of election of remedies nor that of estoppel

was applicable to bar the workman's claim for compensation against

the workers' compensation insurance carrier.").

M oreover, National Union has not shown that Pansegrau "took

those actions knowing the effect, that is that [she] weighed the

advantages of choosing health insurance over workers' compensation,

and then chose health insurance benefits." U nited States Fire Ins.6 Section 10(b) provides:

If the injury is one of the six (6) enumerated in

Section 11a of this article as constituting conclusive

total and permanent incapacity, the association shall

pay the compensation for the life of the employee, but

in no other case of total permanent incapacity shall

the period covered by such compensation be greater than

four hundred and one (401) weeks from the date of

injury. For the purpose of this section only, the

total and permanent loss of use of a member shall be

considered to be the total and permanent loss of the

member.

7 Section 11a provides:

Injuries constituting total and permanent incapacity.

In cases of the following injuries, the incapacity

shall conclusively be held to be total and permanent,

to-wit:

(2) The loss of both feet at or above the ankle.

(3) The loss of both hands at or above the wrist.

(4) A similar loss of one hand and one foot.

11 Co. v. Pettyjohn, 816 S.W.2d 839, 842 (Tex.App.—Fort Worth 1991).

Pansegrau's decision was not informed, nor, for that matter, was it

even a decision. The jury's finding that there was no election of

remedies was therefore supported by substantial evidence.

3. Permanent Injury

National Un ion additionally challenges the jury's award of

lifetime benefits to Pansegrau alleging that the finding of total

and permanent loss of the use of her right leg and right arm do not

support such an award. According to National Union, article 8306

§ 10(b) 6 of the Texas workers' compensation statute permits

compensation for a permanent injury only if the injury is listed in

s ection 11a of that article. 7 Compensation is otherwise givenThe above enumeration is not to be taken as exclusive

but in all other cases the burden of proof shall be on

the claimant to prove that his injuries have resulted

in permanent, total incapacity.

12 under the general scheme, which limits medical payments to 401

weeks.

National Union claims that the jury finding that Pansegrau

suffered the total loss of use of her right leg and right arm was

insufficient to justify a n award under the specific language of

section 11a of the statute. That language specifies that an

employee's injuries are to be considered conclusively permanent and

total where the worker loses a foot "at or above the ankle" and a

hand "at or above the wrist". Because the jury only found that

Pansegrau suffered the loss of use of her right leg and right arm

instead of her foot and hand, National Union maintains that the

court improperly determined that she had a permanent and total

inju ry under Section 11a justifying the payment of lifetime

benefits under Section 10(b).

Texas courts addressing thi s specific issue have refused to

construe the statute in the manner requested by National Union. In

Texas General Indemnity Co. v . Martin, 836 S.W.2d 636, 638

(Tex.App.—Tyler 1992, no writ), a Texas court of appeals adverted

to the portion of 11a which states that "[t]he above enumeration is

not to be tak en as exclusive" and inferred that a "total and

permanent loss of use of a leg at or above the ankle n ecessarily

inflicts loss of use of the attached foot at or above the ankle.

If the leg cannot be used, neither can the foot." I d. at 6388 National Union cites to the decision in Northwestern

National Casualty Co. v. McCoslin, 838 S.W.2d 715 (Tex.App.—Waco

1992, writ denied), to support its argument. However, that case

ignores the language of the statute itself which states that the

enumeration is not exclusive, fails to acknowledge the prior

authority cited above, and involved an individual who, despite

the injuries to his legs, was able to "run, walk, stoop over,

squat, climb stairs, ride a bike, play basketball, and drive a

car." Id. at 716. Also, we decline to take McCoslin as persuasive authority because that decision fails to interpret the

provisions of the workers' compensation act liberally. See

Yeldell, supra note 3.

13 (emphasis added); s ee also Texas Employers' Ins. Ass 'n v.

Gutierrez, 795 S.W.2d 5, 7 (Tex.App.—El Paso 1990, writ denied)

("the finding of "total loss of use of her right leg' encompasses

the loss of the foot at or above the ankle"). 8 We conclude that

the district court properly de termined that the severity of

Pansegrau's injury justified payment of lifetime benefits.

B. Pansegrau's Allegations of Error in Reducing the Judgment

The magistrate judge found that altho ugh an additional

$281,706.78 of Pansegrau's medical expenses were "medically

necessary" and "fair and reasonable," Pansegrau could not recover

these charges from National Union because they were either paid by

her health insurance or written off by the health care providers as

a courtesy to her husband. The magistrate judge concluded that

because she was not charged for these expenses, the court would not

allow her to recover damages for these expenses.

In her cross-appeal, Pansegrau argues that she is entitled to

recover the additional expenses disallowed by the lower court. We

agree. We are bound by the decision in Standard Fire Ins. Co. v.

Ratcliff, 537 S.W.2d 355 (Tex.Civ.App.—Waco 1976, no writ), which9 Other authority for this rule includes the following

statement from Texas Jurisprudence: "The fact that a workers'

compensation claimant has received or will receive from a

collateral source payments that may have some tendency to

mitigate the consequences of the injury that he or she otherwise

would suffer may not be taken into consideration in assessing the

recovery to which the claimant may be entitled." 75 Tex.Jur.3d

Work Injury Compensation § 358 (1991).

14 considered a workers' compensatio n claimant who had received

payment for her injuries from her health insurance carrier. The

court held that the employee could additionally recover a judgment

against the workers' compensation carrier because Texas law places

an unqual ified obligation upon those carriers to provide medical

services to injured employees. "The rule is well established in

workmens' compensation cases that where the claimant's medical

expenses were paid by a third party, the claimant is not deprived

of his right to recover the value of such services by the workmens'

compensation carrier." R atcliff, 537 S.W.2d at 359 (citing Cooper

v. Argonaut Ins. Co., 430 S.W.2d 35, 38 (Tex.Civ.App.—Dallas 1968,

writ ref'd n.r.e.); N orthwestern National Ins. Co. v. Kirchoff 427

S.W.2d 638, 642 (Tex.Civ.App.—Hou ston 1968, no writ)). This

holding was recently reaffirmed in Cigna Ins. Co. of Texas v.

Evans, 847 S.W.2d 417, 423 (Tex.App.—Texarkana 1993, no writ). 9

Finding no contrary authority, we hold that the district court

erred in reducing Pansegrau's recovery by the amount paid by her

employer's insurance carrier.

Similarly, those expense s which were written off by the

health care p roviders should not have been deducted from

Pansegrau's recovery. Such a reduction contradicts the line of15

Texas cases which allows recovery for nursing services provided at

no cost by family members. See e.g. Houston General Ins. Co. v.

H amilton, 634 S.W.2d 18, 20 (Tex.App.—Beaumont 1982, writ dism'd

w.o.j.) ("The fact that his mother and grandfather would have

helped him anyway without pay is immaterial.").

To the extent that there is a problem with "double recovery"

here, it may be addressed by an assignment by Pansegrau of her

workers' compensation recovery to the private health insurance

company that paid her bills or the providers th at wrote off her

care. The workers' compensation statute specifically provides for

an assignment under the circumstances of this case: "In the event

the association denies liability in a claim and an accident or

health insurance company provides b enefits to the employee for

medical aid, hospital services, nursing services or medicine, then

the right to recover such amount may be assigned by the employee to

the health or accident insurance company." Tex.Rev.Civ.Stat.Ann.

art. 8306, § 3(c) (Vernon Supp. 1994) (repealed 1991). None of the

parties with potential rights of subrogation or assignment,

however, are a party to this action.

The magistrate judge found that an additional $281,706.78 in

past medical expenses were necessary, fair, and reasonable but were

not included in Pansegrau's award. We believe the district court

erred in making these deductions and conclude that the amounts

should be reinstated.

III. CONCLUSION

The decision of the trial court finding National Union liable16

for Pansegrau's medical expenses is AFFIRME D. The decision

reducing the award by the amount of expe nses paid by the health

insurance carrier or written off as professional cour tesy is

REVERSED and we REMAND this case back to the district court with

instructions to enter judgment in the appropriately adjusted

amount.