PJC General Negligence 2022

W ORKERS ’ C OMPENSATION —C OURSE & S COPE OF E MPLOYMENT

PJC 17.2

Burden of proof. The burden of proof should be placed appropriately in accor dance with the decision of the appeals panel. See PJC 15.1. Source of question and instruction. See Tex. Lab. Code §408.008. Note that both the work-related event and any preexisting condition can be substantial contribut ing factors. Barnes v. United Parcel Service, Inc. , 395 S.W.3d 165, 171 (Tex. App.— Houston [1st Dist.] 2012, pet. denied); Transcontinental Insurance Co. v. Smith , 135 S.W.3d 831, 837 (Tex. App.—San Antonio 2004, no pet.). However, a heart attack is compensable only when the preponderance of the medical evidence establishes that the work was the greater factor. Transcontinental Insurance Co. , 135 S.W.3d at 837 . First responder. If the worker is a first responder, see Tex. Gov’t Code § 607.056 (provides for a rebuttable presumption that death or disability resulting from acute myocardial infarction or stroke is presumed to have been suffered in the course and scope of employment as a firefighter, peace officer, or emergency technician if the acute myocardial infarction or stroke occurred while on duty and while (1) engaged in a situation that involved nonroutine stressful or strenuous physical activity involving fire suppression, rescue, hazardous material response, emergency medical services, or other emergency response activity or (2) participating in a training exercise that involved nonroutine stressful or strenuous physical activity; “nonroutine stressful or strenuous physical activity” does not include clerical, administrative, or nonmanual activities).

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