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Employee Post-Injury Waiver: Will It Hold Up In Court?

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Will an employee post-injury waiver hold up in Court? As explained by the Tyler Court of Appeals in Gunn v. Baptist/St. Anthony's Health Network, 2013 WL 2446429 (Tex. App.-Amarillo May 31, 2013, no. pet. h.), if you follow the Texas Labor Code, it very well could.


Olympia Gunn worked as a nurse at Baptist St. Anthony's Health Network ("BSA"). BSA did not carry workers' compensation insurance; therefore, employees injured on the job were covered by an employee injury program.

Gunn injured her neck and shoulder while on duty. For two years, BSA paid Gunn's medical expenses and paid Gunn wage replacement benefits. After two years, Gunn was informed she could no longer work for BSA due to her conditions.

Gunn sued BSA for negligence and gross negligence. BSA moved for summary judgment, asserting a theory of waiver, and the trial court granted the motion. Gunn, on appeal, argued that BSA did not prove that Gunn waived her common law rights to bring a lawsuit.

The Texas Labor Code provides that a cause of action may not be waived by an employee after the employee's injury unless:

(1) The employee voluntarily enters into the waiver with knowledge of the waiver's effect;

(2) The waiver is not signed within 10 business days of the initial report of injury;

(3) The employee, before signing the waiver, has received medical care from a doctor; and

(4) The waiver is conspicuous.

Gunn argued that BSA failed to meet any of these requirements. However, our focus will be on elements 1 and 4. Gunn's first argument is that she didn't sign the document voluntarily with knowledge of its effect.

Gunn pointed to her testimony she did not remember signing the waiver; however, in her deposition, she testified to her signature on the document containing the waiver. The Court held that, at the time of her deposition, the fact that she did not remember signing the document does not provide evidence that she lacked knowledge of the waiver's effect when she signed it.

The Tyler Court of Appeals addressed the "knowledge of its effect" requirement and the Court applied the presumption that one "who signs a contract must be held to have known what words were used in the contract and to have known their meaning, and he must be held to have known and fully comprehended the legal effect of the contract." Thus, absent evidence of "trick or artifice," the signer is presumed as a matter of law to have read and understood the contract.

Gunn also argued that the waiver was not conspicuous. According to the Texas Labor Code, to be conspicuous, the waiver provisions must appear in a type larger than the type contained in the body of the agreement or in contrasting colors.

In BSA's document, the "Waiver" paragraph is distinguished from the other paragraphs by appearing in all capital letters.

According to the Court, whether a provision meets a conspicuousness requirement is a question of law. Gunn's argument is that the waiver paragraph does not "appear in a type larger than the type contained in the body of the agreement" because the "font size" is the same throughout the document. The Court saw no error in the trial court's implicit conclusion that the waiver paragraph, appearing in all capital letters, appears in a type larger than that of the rest of the agreement. Other cases have found all capital letters to be conspicuous in comparable contexts.

What Can You Take Away From This?

(1) With these types of waivers, it is so important to document everything. When your employees sign these documents, they need to be signed and dated. Don't rush through and forget to have the employee sign and date the documents;

(2) Have someone who is trained to explain the plan and witness the signature. It may not be a bad idea to have a video that explains the plan - in English and Spanish; and

(3) Make sure that your waiver is conspicuous. Is the font bigger? All capital letters? Maybe on its own page with an initial block right under it? Make sure that it stands out so the employee can't say they did see it.

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