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Barnes v UPS

June 30, 2011 – Case Report


Barnes v. UPS, No. 01-09-00648-CV, (Tex. App. - Houston [1st Dist.] 2011)


This case holds there is a different burden of proof and different issues in death cases before the Texas Department of Insurance, Division of Workers' Compensation and district courts.  


Nathaniel Cooper (Cooper) was diagnosed at a young age with a congenital heart block. He underwent numerous heart surgeries and had four pacemakers. He also suffered permanent heart damage from malfunctioning pacing wires.

Cooper was employed by United Parcel Services, Inc. (UPS) as a supervisor. He worked in an un-air-conditioned warehouse in Houston and had been placed on light duty because of his heart condition and a recent cardiac event. On June 3, 2005, Cooper while on the job with UPS complained of feeling dizzy and collapsed. He suffered a heart attack and was later pronounced dead. The medical examiner determined that he died from heart complications.


A workers' compensation claim was filed by Cooper's fiancée, Terrica Barnes, on behalf of their son, Kainan. Cooper's injury was determined by the Texas Department of Insurance, Division of Workers' Compensation (DWC) to not be compensable for purposes of workers' compensation.  Ms. Barnes did not appeal, and the decision concerning workers' compensation benefits became final.  Ms. Barnes then filed suit against UPS alleging gross negligence. The gross negligence complaint alleged that UPS had failed to install an appropriate ventilation system and to implement adequate procedures to protect employees from high temperatures.


Texas Labor Code Section 408.001(a) makes the recovery of workers' compensation benefits the exclusive remedy of an employee covered by workers' compensation insurance.  Likewise, a legal beneficiary of an employee covered by workers' compensation insurance coverage also is limited to recovering workers’ compensation benefits for the employee’s injury while on the job. 


Texas Labor Code Section 408.001(b) does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence.  Subsection (d) of Section 408.001 provides a determination that a work-related injury is not compensable does not adversely affect the exclusive remedy provisions.  This means a wrongful death action can still be brought in a case.


UPS contended in the gross negligence suit that the claim made by Ms. Barnes on behalf of Kainan was barred by res judicata and collateral estoppel because the issue of whether Cooper's working conditions caused his heart attack had already been litigated before DWC and that Ms. Barnes' gross negligence claim was barred because the negligence claim was based on the same facts that had been determined at the DWC hearing.


The trial court granted summary judgment against Ms. Barnes and for UPS on those grounds.  Ms. Barnes appealed to the First Court of Appeals in Houston.  On appeal, Ms. Barnes contended that the DWC's prior compensability determination has no impact on her ability to assert a separate claim against UPS for gross negligence. She asserted that there was no relevant precedent to support the proposition that the principles of res judicata and collateral estoppel apply to decisions by DWC. And Ms. Barnes argued that even if they do apply generally, they are not applicable in this case because the facts at issue here are different from those previously litigated at DWC.


The Court of Appeals held that the issue to be determined in the gross negligence claim was whether UPS's conduct involved an extreme degree of risk and whether UPS was aware of or acted with conscious indifference to that risk. The Court of Appeals held that although the issues in the lawsuit involve the same set of facts, Ms. Barnes could not raise her gross negligence claim before DWC, and therefore her claim was not precluded in the subsequent gross negligence suit.  The Court held that the standards of proof before DWC were different than before the courts.


If you wish to read the opinion you may find it (hopefully) through the following link:




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