Fourth Court of Appeals

San Antonio, Texas

OPINION

No. 04-14-00685-CV

AMERICAN CASUALTY CO. OF READING, PENNSYLVANIA,

Appellant

v.

Denise BUSHMAN, as Beneficiary of Clayton F. Bushman, Jr., Deceased,

Appellee

From the 25th Judicial District Court, Guadalupe County, Texas

Trial Court No. 12-0823-CV

Honorable W.C. Kirkendall, Judge Presiding

Opinion by: Luz Elena D. Chapa, Justice

Sitting: Sandee Bryan Marion, Chief Justice

Rebeca C. Martinez, Justice

Luz Elena D. Chapa, Justice

Delivered and Filed: August 19, 2015

AFFIRMED

American Casualty Company of Reading, Pennsylvania appeals the trial court’s judgment. 

In one issue, American Casualty argues the trial court erred by denying its plea to the jurisdiction 

based on Denise Bushman’s alleged failure to exhaust her administrative remedies. In another

issue, American Casualty argues the trial court erred by denying its motion for summary judgment 

against Denise, as beneficiary of Clayton F. Bushman, Jr., deceased, and by granting Denise’s 

cross-motion for summary judgment. The competing motions for summary judgment concerned 
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whether Clayton was acting in the course and scope of employment when he was fatally injured 

in a car accident. We affirm the trial court’s judgment.

BACKGROUND

Clayton Bushman was hired to work as a truck driver for Salem Holding Company (Salem). 

Ordinarily on each workday, Clayton drove his personal car from his home in Seguin to a Salem 

truck yard in the San Antonio area to pick up and drive a company truck. On a few occasions, 

Bushman worked as a dispatcher out of Salem’s offices located in other cities. Salem would 

reimburse Clayton for his travel expenses when he traveled to work as a dispatcher. On Friday, 

January 28, 2011, Salem instructed Clayton to go to Elgin the following Monday as a dispatcher 

trainer and spend a week training a new dispatcher. Salem was to reimburse Clayton his mileage 

and expenses for travel to Elgin. Clayton was given the option of staying overnight during the 

week, and if he chose to do so, his lodging expenses would also be reimbursed by Salem. On 

Monday, January 31, 2011, Clayton, while driving his personal car, died in an accident on his way 

to Elgin.

Denise Bushman is Clayton’s surviving spouse and legal beneficiary. Denise filed a claim 

with the Texas Worker’s Compensation Division (WCD). She also filed a Notice of Representation 

in which she informed the WCD she was represented by legal counsel. 

The WCD held a hearing, which Denise and her counsel attended. At the hearing, Denise 

testified Clayton worked for Salem for about ten years as a truck driver. She testified that on a few 

occasions prior to the accident, he worked as a dispatcher out of Salem’s offices in Elgin and 

Ogden. When Clayton traveled in his personal car from home to pick up the company truck in San 

Antonio, Salem never reimbursed him for mileage or paid for his travel time. Denise testified when 

Clayton would work as a dispatcher in another city, however, Salem reimbursed him for his 

mileage. Tommy Sides, Vice President and Safety Director for Salem Carriers, testified for 
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American Casualty. He testified Salem is a truck leasing company that has “a carrier division that 

is a dedicated contract carrier for several different companies.” Sides also testified Clayton was 

traveling to Elgin in his personal car and although the company was paying him for his mileage, 

the company was not paying him for his travel time to Elgin.

The hearing officer found Clayton was not in the course and scope of his employment when 

he was killed in the car accident. On October 6, 2011, the WCD sent a letter to Denise and 

American Casualty notifying them of the hearing officer’s decision. Although the letter was mailed 

to Denise, it was not mailed to her counsel. 

On January 6, 2012, Denise’s counsel filed an affidavit with the WCD in which she swore 

her office never received the WCD’s decision letter. She explained she became aware that a 

decision had been made when she called to inquire about the status of the matter on January 4, 

2012. Denise’s counsel’s affidavit further states she received a copy of the decision via facsimile 

on January 5, 2012. The WCD appeals panel denied the appeal because the hearing officer’s 

decision had become final. 

Denise filed an original petition in district court alleging Clayton was fatally injured while 

he was in the course and scope of his employment. She pled Clayton’s employer asked him to 

perform a special mission by travelling to Elgin to work as a dispatcher. Denise further pled that 

because this was not a standard or regular part of Clayton’s job duties, he was to be compensated 

for his travel time. The original petition avers she timely exhausted her administrative remedies. 

More specifically, Denise alleged her counsel did not receive the WCD hearing officer’s decision 

until January 5, 2012, and an appeal of the decision was filed the following day. 

American Casualty filed an answer and a plea to the jurisdiction. The plea to the jurisdiction 

alleged the WCD sent Denise the notice of the hearing officer’s decision on October 6, 2011. It 

argued that pursuant to the WCD’s mailbox rule, Denise’s deadline to appeal was November 1, 
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2011. American Casualty attached no evidence to the plea to the jurisdiction. Denise filed a 

response and attached the notice of the hearing officer’s decision. The notice reflects a copy of the 

decision was mailed on October 6, 2011 to Denise only and not to Denise’s counsel. The trial court 

denied American Casualty’s plea to the jurisdiction. 

American Casualty filed a traditional and no-evidence motion for summary judgment. 

American Casualty argued there was no evidence Clayton’s travel to Elgin was in the course and 

scope of employment and the evidence established his travel fell under the “coming and going” 

rule, which excluded his travel from the course and scope of employment. Denise filed a crossmotion for summary judgment in which she argued the “coming and going” rule did not apply 

because the “continuous coverage” or “traveling employee” doctrine applies. She also argued 

Salem paid for Clayton’s transportation and Clayton was on a special mission. 

The trial court denied American Casualty’s motion for summary judgment and granted 

summary judgment in Denise’s favor. American Casualty filed a timely notice of appeal.

EXHAUSTION OF ADMINISTRATIVE REMEDIES

In its first issue, American Casualty argues the trial court erred by denying its plea to the 

jurisdiction. It argues a claimant has fifteen days from the date when the hearing officer’s decision 

“is received” to appeal the decision. American Casualty contends Denise’s appeal is untimely 

because she “received” the decision in October, and did not appeal until January, thereby depriving 

the trial court of jurisdiction to review the WCD hearing officer’s decision. 

A. Standard of Review

We review the denial of a plea to the jurisdiction de novo. City of San Antonio v. Alamo 

Aircraft Supply, Inc., 448 S.W.3d 507, 510 (Tex. App.—San Antonio 2014, no pet.). “When a plea 

to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that 

affirmatively demonstrate the court’s jurisdiction to hear the cause. We construe the pleadings 
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liberally in favor of the plaintiffs and look to the pleaders’ intent.” Tex. Dep’t of Parks & Wildlife 

v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (internal citation omitted). When a “plea to the 

jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence 

submitted by the parties when necessary to resolve the jurisdictional issues raised.” Id. at 227. In 

doing so, our review of the evidence mirrors summary judgment standards. Id. at 228.

B. Discussion

The right to seek judicial review of a WCD hearing officer’s decision is limited by statute. 

See TEX. LABOR CODE ANN. § 410.251 (West 2015); Cervantes v. Tyson Foods, Inc., 130 S.W.3d 

152, 157 (Tex. App.—El Paso 2003, pet. denied). “A decision of a hearing officer regarding 

benefits is final in the absence of a timely appeal by a party and is binding during the pendency of 

an appeal to the appeals panel.” TEX. LABOR CODE ANN. § 410.169. “To appeal the decision of a 

hearing officer, a party shall file a written request for appeal with the appeals panel not later than 

the 15th day after the date on which the decision of the hearing officer is received from the division 

and shall on the same date serve a copy of the request for appeal on the other party.” Id. 

§ 410.202(a). 

“A party’s failure to exhaust the administrative remedies provided under Texas’s workers’ 

compensation scheme deprives the trial court of jurisdiction over that party’s request for judicial 

review.” Combined Specialty Ins. Co. v. Deese, 266 S.W.3d 653, 658 (Tex. App.—Dallas 2008, 

no pet.) (citing TEX. LAB. CODE ANN. § 410.251 (West 2006); Cont’l Cas. Co. v. Rivera, 124 

S.W.3d 705, 712 (Tex. App.—Austin 2003, pet. denied)). Filing an untimely appeal with the WCD 

appeals panel constitutes a failure to exhaust administrative remedies. Frank v. Liberty Ins. Corp., 

255 S.W.3d 314, 320 (Tex. App.—Austin 2008, pet. denied); LeBlanc v. Everest Nat’l Ins. Co., 

98 S.W.3d 786, 787–88 (Tex. App.—Corpus Christi 2003, no pet.).
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The parties dispute whether the “date on which the decision of the hearing officer is 

received” is (a) the date on which the claimant or her counsel first receives the decision or (b) the 

date on which both the claimant and her counsel have received the decision. This issue was decided 

by one of our sister courts in Frank v. Liberty Insurance Corporation. 255 S.W.3d at 320. The 

Frank majority held the date of receipt is determined by the date a represented claimant’s counsel 

receives the decision. 255 S.W.3d at 325. The Frank majority reasoned the WCD adopted a dualnotice rule to protect the rights of represented claimants that requires notice of the hearing officer’s 

decision to be sent to both the claimant and the claimant’s counsel. Id. It further reasoned the 

worker’s compensation statute “must be construed liberally to achieve its purposes of 

compensating injured workers.” Id. American Casualty argues the dissenting opinion in Frank is 

correct—the date on which either the claimant or her counsel received the decision is the “date on 

which the decision of the hearing officer is received.” Id. at 328 (Waldrop, J., dissenting). 

We agree with the Frank majority’s reasoning and adopt its holding—the date the decision 

“is received” is the date on which a represented claimant’s counsel receives the decision. See id. 

at 325-27. We hold the hearing officer’s decision was deemed received on January 5, 2012, the 

date on which Denise’s counsel received the WCD’s decision letter. It is undisputed that Denise 

appealed the WCD hearing officer’s decision the day after the letter was faxed to her counsel. 

Because the appeal was filed within fifteen days of the date Denise’s counsel received the WCD’s 

hearing officer’s decision, Denise exhausted her administrative remedies. See id. at 320, 325-27. 

Therefore, the trial court had jurisdiction and did not err by denying American Casualty’s plea to 

the jurisdiction. 

COURSE & SCOPE OF EMPLOYMENT

In its second issue, American Casualty argues the trial court erred by granting Denise’s 

motion for summary judgment and denying its motion for summary judgment. American Casualty 
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argues Clayton’s travel did not originate in Salem’s business, was not in furtherance of Salem’s 

affairs, and fell under the “coming and going” exclusion from the course and scope of employment 

because Clayton was traveling to Salem’s place of business in Elgin. American Casualty contends 

none of the exceptions to the “coming and going” exclusion are applicable. Denise responds 

Clayton was on business travel and thus the “coming and going” rule does not apply. She argues, 

alternatively, two exceptions apply to the “coming and going” rule: Salem paid for Clayton’s 

transportation and Clayton was on a special mission. 

A. Standard of Review

We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 

215 (Tex. 2003). “When reviewing a summary judgment, we take as true all evidence favorable to 

the nonmovant, and we indulge every reasonable inference and resolve any doubts in the 

nonmovant’s favor.” Dorsett, 164 S.W.3d at 661; Knott, 128 S.W.3d at 215; accord Sci. Spectrum, 

Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Summary judgment is proper when there are 

no disputed issues of material fact and the movant is entitled to judgment as a matter of law. TEX.

R. CIV. P. 166a(c); Knott, 128 S.W.3d at 215-16. When, as here, both parties move for summary 

judgment and the district court grants one motion and denies the other, we review the summary

judgment evidence presented by both sides, determine all questions presented, and render the 

judgment the district court should have rendered. Tex. Workers’ Comp. Comm’n v. Patient 

Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004); FM Props. Operating Co. v. City of Austin,

22 S.W.3d 868, 872 (Tex. 2000).

B. Applicable Law

Workers’ compensation insurance compensates employees who sustain compensable 

injuries. Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 519 (Tex. 2007). “‘Compensable 
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injury’ means an injury that arises out of and in the course and scope of employment for which 

compensation is payable under this subtitle.” TEX. LABOR CODE ANN. § 401.011(10) (West 2015). 

“Course and scope of employment” is defined as:

an activity of any kind or character that has to do with and originates in the work, 

business, trade, or profession of the employer and that is performed by an employee 

while engaged in or about the furtherance of the affairs or business of the employer. 

The term includes an activity conducted on the premises of the employer or at other 

locations. The term does not include:

(A) transportation to and from the place of employment unless:

(i) the transportation is furnished as a part of the contract of 

employment or is paid for by the employer;

(ii) the means of the transportation are under the control of the 

employer; or

(iii) the employee is directed in the employee’s employment to 

proceed from one place to another place; or

(B) travel by the employee in the furtherance of the affairs or business of the 

employer if the travel is also in furtherance of personal or private affairs of the 

employee unless:

(i) the travel to the place of occurrence of the injury would have been 

made even had there been no personal or private affairs of the 

employee to be furthered by the travel; and

(ii) the travel would not have been made had there been no affairs or 

business of the employer to be furthered by the travel.

Id. § 401.011(12) (emphasis added).1

Determining whether an activity is in the course and scope of employment involves a threestep analysis. The first step requires determining whether the activity (1) originates in the 

employer’s work, business, trade, or profession and (2) furthers the employer’s affairs. SeaBright 

Ins. Co. v. Lopez, — S.W.3d —, No. 14-0272, 2015 WL 3653289, at *3 (Tex. June 12, 2015). If 

these two elements are satisfied, then the activity is in the course and scope of employment unless 

one of section 401.011(12)’s exclusions applies. See TEX. LABOR CODE ANN. § 401.011(12)(A), 

 1 The parties agree that if an exclusion applies, it is subsection (A) and not (B).
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(B); SeaBright Ins. Co., 2015 WL 3653289, at *5. The second step is to determine whether one of 

the two exclusions applies: the “coming and going” exclusion or the “dual-purpose travel” 

exclusion. See TEX. LABOR CODE ANN. § 401.011(12)(A), (B). The two exclusions are mutually 

exclusive; that is, if the “coming and going” rule applies, then the “dual purpose travel” exclusion 

does not, and vice versa. See Leordeanu v. Am. Prot. Ins. Co., 330 S.W.3d 239, 244-48 (Tex. 

2010). If an exclusion applies, then the employee’s activity is not in the course and scope of 

employment unless an exception to the exclusion applies. See TEX. LABOR CODE ANN.

§ 401.011(12)(A), (B). Therefore, the third step is to determine whether an exception to the 

exclusion applies. See Leordeanu, 330 S.W.3d at 244-46.

1. Furtherance & Origination

It is well-settled that travel to and from work satisfies the furtherance element. See 

SeaBright Ins. Co., 2015 WL 3653289, at *5; Leordeanu, 330 S.W.3d at 242. It is undisputed that 

Clayton was traveling to Elgin for work at the time of the car accident. Therefore, Clayton’s travel 

furthered Salem’s affairs. See SeaBright Ins. Co., 2015 WL 3653289, at *5; Leordeanu, 330 

S.W.3d at 242.

Regarding the origination element, travel to and from work ordinarily does not originate in 

the employer’s work, business, trade, or profession because the risks to which employees are 

exposed when traveling to and from work are shared by the traveling public and do not arise as a 

result of the employer’s work. SeaBright Ins. Co., 2015 WL 3653289, at *3; U.S. Fire Ins. Co. v. 

Eberstein, 711 S.W.2d 355, 357 (Tex. App.—Dallas 1986, writ ref’d n.r.e.). Travel to and from 

work, however, may originate in the employer’s work, business, trade, or profession if “the 

relationship between the travel and the employment is so close that it can fairly be said that the 

injury had to do with and originated in the work, business, trade or profession of the employer.” 
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SeaBright Ins. Co., 2015 WL 3653289, at *3. The origination element is satisfied when the 

employee’s travel was pursuant to an express or implied condition of the employee’s contract. Id.

“Courts have generally employed a fact-intensive analysis to determine whether an 

employee’s travel originated in the employer’s business, focusing on the nature of the employee’s 

job, the circumstances of the travel, and any other relevant facts.” Id. “Proof of origination can 

come in many forms.” Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 730 (Tex. App.—Austin 

2011, pet. denied). “Evidence that an employee was on a ‘special mission’ for his employer is . . .

probative of whether an employee’s trip originated in his employer’s business.” Id. Courts also 

consider whether the employer provided or paid for the transportation. Id. “No singular fact is 

necessarily dispositive.” Id.

Salem has a carrier division of its company that requires dispatching truck drivers. 

According to Safety Director, Timmy Sides, Clayton “drove a truck for Salem” and was a “truck 

driver” who would on occasion serve as a dispatcher out of Salem’s various offices. Salem 

instructed Clayton, who lived in Seguin, to report to Elgin and work there for a week to train a 

new dispatcher. And although he primarily worked as a Salem truck driver in San Antonio, he had 

on a few prior occasions worked as a dispatcher, but never as a dispatcher trainer. Salem did not 

ordinarily reimburse Clayton for travel from his home in Seguin to the truck yard in the San 

Antonio area, but Salem would reimburse Clayton for his travel expenses for traveling from Seguin 

to Elgin and his lodging expenses if he chose to stay overnight in Elgin. On the day of the accident, 

Clayton was traveling to Elgin and his travel was necessary if Clayton was to perform his job as 

his employer instructed. Clayton was not traveling to Elgin by his own choice but was required to 

go and perform a job outside of his ordinary job duties and away from his ordinary job site. See 

id. at 733 (reasoning that traveling away from ordinary job site to perform task that was not part 

of ordinary job duties supported origination element). 
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Citing Evans v. Illinois Employers Insurance of Wausau, 790 S.W.2d 302 (Tex. 1990), 

American Casualty argues Clayton was not on a special mission because he was merely traveling 

to an alternate work site. American Casualty’s comparison of this case to Evans is unpersuasive. 

In Evans, the only change to the employees’ daily routine was a slight alteration in the time and 

location of their regular safety meeting. Here, Clayton was traveling to a week-long job assignment 

and Salem was going to pay for Clayton’s mileage, lodging, and travel expenses and gave him the 

option of staying overnight in Elgin. Clayton’s travel to Elgin was not merely a trip from home to 

a nearby job site to begin a regular workday, but rather was an atypical assignment in a different 

city. 

We hold the evidence establishes Clayton’s required work travel to Elgin to train a 

dispatcher originated in Salem’s work, business, trade, or profession. See McVey, 339 S.W.3d at

730-34. Because the evidence establishes Clayton’s travel satisfies both the furtherance and 

origination requirements, we next consider whether Clayton’s travel is excluded from the course 

and scope of employment. See TEX. LABOR CODE ANN. § 401.011(12)(A), (B); Leordeanu, 330 

S.W.3d at 244. 

2. The “Coming and Going” Rule & 3. Paid Travel Exception

American Casualty argues that even if Clayton’s travel originated in Salem’s business and 

furthered Salem’s affairs, Clayton’s travel is excluded by the “coming and going” rule because 

Clayton was traveling to work in his personal vehicle and reimbursement of his travel expenses 

was not a necessity from Salem’s perspective. An employee’s travel is not excluded by the coming 

and going rule if the employee’s transportation “is paid for by the employer.” TEX. LABOR CODE 

§ 401.011(12)(A)(iii). Reimbursing an employee for expenses of traveling in a personal vehicle 

satisfies this exception. U.S. Fire Ins. Co. v. Brown, 654 S.W.2d 566, 568 (Tex. App.—Waco 

1983, no writ); see Pena v. State Office of Risk Mgmt., No. 13-12-00712-CV, 2014 WL 4494509, 
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at *4 (Tex. App.—Corpus Christi Sept. 11, 2014, pet. denied) (mem. op.); Tex. Prop. & Cas. Ins. 

Guar. Ass’n for Petrosurance Cas. Co. v. Brooks, 269 S.W.3d 645, 653 (Tex. App.—Austin 2008, 

no pet.). Although, as American Casualty argues, the necessity of paying for an employee’s travel 

from the employer’s perspective is relevant to the origination element, the plain meaning of section 

401.011(12)(A)(i), which must be liberally construed to effect the statute’s purpose of 

compensating injured workers, is satisfied if the employee’s transportation “is paid for by the 

employer.” See Seabright Ins. Co. v. Lopez, 427 S.W.3d 442, 447 (Tex. App.—San Antonio 2014), 

aff’d, — S.W.3d —, 2015 WL 3653289 (Tex. June 12, 2015); McVey, 339 S.W.3d at 730-31; 

Brown, 654 S.W.2d at 568-69. 

Here, it was undisputed that Salem was to pay for Clayton’s travel on the morning he was 

in the car accident. Therefore, Clayton’s travel is not excluded from the course and scope of 

employment by virtue of the “coming and going” rule. See SeaBright Ins. Co., 2015 WL 3653289, 

at *6. Because Denise established the paid travel exception to the “coming and going” exclusion, 

the trial court properly denied American Casualty’s motion for summary judgment and granted 

Denise’s summary judgment. 

CONCLUSION

We affirm the trial court’s denial of American Casualty’s plea to the jurisdiction. 

Furthermore, the evidence establishes as a matter of law that Clayton was acting in the course and 

scope of his employment at the time of the car accident. Therefore, we affirm the trial court’s 

judgment. 

Luz Elena D. Chapa, Justice