OPINION ON REMAND Seketa Johnson sued CHG Hospital Bellaire, LLC for injuries she sustained on the job. CHG-Bellaire moved to compel arbitration under the Federal Arbitration Act (FAA). The trial court denied the motion, and CHG-Bellaire appealed, arguing that the arbitration agreement is enforceable and Johnson’s claims fall within the scope of the agreement. On the original submission of the appeal, we held the trial court did not err by denying the motion to compel because a fact issue existed on whether Johnson consented to the arbitration agreement, and we did not reach CHG-Bellaire’s argument about the scope of the agreement. CHG Hosp. Bellaire, LLC v. Johnson, No. 01-20-00437-CV, 2021 WL 1537465, at *7 (Tex. App.—Houston [1st Dist.] Apr. 20, 2021) (mem. op.), rev’d, 644 S.W.3d 188 (Tex. 2022). The Texas Supreme Court granted review, reversed our judgment, and remanded for us to consider the arbitration agreement’s scope. CHG Hosp. Bellaire, LLC v. Johnson, 644 S.W.3d 188, 189 (Tex. 2022). Because the arbitration agreement delegates questions of scope to the arbitrator, we reverse and remand. Background In August 2019, Johnson sued CHG-Bellaire for negligence, premises liability, and gross negligence, alleging that she sustained injuries while training as a nurse at a hospital operated by CHG-Bellaire. Johnson and her trainer had to physically lift and adjust a “very heavy” patient on the bed because the hospital did not have the equipment ordinarily used to move patients. The trainer suddenly grabbed the bed sheets and began pulling the patient up the bed without warning. Trying to catch the patient, Johnson quickly pulled the other side of the bed sheets and felt a pop in her spine followed by pain. She immediately stopped pulling the bed sheets and told her trainer about the injury. Physicians treated Johnson’s injuries and advised her to not lift anything weighing more than 10 pounds until she fully recovered. Although Johnson had not fully healed, CHG-Bellaire placed her back on regular rotation. Johnson told her superiors that she could not perform the same duties because lifting patients violated her doctor’s orders. Nevertheless, CHG-Bellaire still required her to lift patients. As Johnson was caring for a patient, the patient became dizzy and started to fall. Johnson rushed to prevent the patient from falling and she felt a “pull and pain” in her spine. Since the incident, the pain in Johnson’s back continued to worsen and prevented her from performing tasks she could perform before. CHG-Bellaire answered the suit with special exceptions, a general denial, and affirmative defenses, asserting that Johnson’s claims were subject to arbitration. CHG-Bellaire argued that the parties had entered into an enforceable arbitration agreement. It also argued that Johnson’s workplace injury claims fell within the scope of the arbitration agreement. CHG-Bellaire attached evidence to its motion to show the existence and scope of an enforceable arbitration agreement. The evidence included copies of the Employee Injury Benefit Plan (EIBP), the Employee Handbook, and the Employment Dispute Resolution Agreement (EDRA). Section 5(a)(i) of the EIBP included a provision entitled “Mutual Agreement to Arbitrate,” addressing the scope of the arbitration agreement: This Agreement is mutual, covering all claims that Company or Claimant may have which arise from: Any injury suffered by Claimant while in the Course and Scope of Claimant’s employment with Company, including but not limited to, claims for negligence, gross negligence, and all claims for personal injuries, physical impairment, disfigurement, pain and suffering, mental anguish, wrongful death, survival actions, loss of consortium and/or services, medical and hospital expenses, expenses of transportation for medical treatment, expenses of drugs and medical appliances, emotional distress, exemplary or punitive damages and any other loss, detriment or claim of whatever kind and character. Section 508 of the EDRA lists the claims covered by the arbitration agreement: The Company and you mutually consent and agree to the resolution by arbitration of all claims or disputes (Claim(s)), whether or not arising out of your employment (or its termination), that the Company may have against you or that you may have against the Company or its officers, directors, members, owners, shareholders, partners, employees or agents, past or present, in their capacity as such or otherwise. The Claims covered by this Agreement include, but are not limited to, claims for wages or other compensation due, claims for breach of any contract or covenant (express or implied); tort claims; equitable claims; claims for discrimination (including, but not limited to, race, color, sex, religion, national origin, age, marital status, or medical condition, handicap or disability); claims for retaliation or harassment; all common law claims and claims for violation of any federal, state, or other governmental law, statute, regulation, or ordinance, except for claims identified below. Section 509 of the EDRA excludes certain claims, including worker’s compensation claims, from arbitration: Claims you may have for workers’ compensation, unemployment compensation, or state disability insurance benefits are not covered by this Agreement. . . . This Agreement also does not apply to any Claim that an applicable federal statute expressly states cannot be arbitrated. Similarly, the Employee Handbook included the same arbitration provision referenced in the EDRA: Agreeing to the Employment Dispute Resolution Program Agreement (Agreement) electronically or otherwise constitutes your agreement to be bound by the EDR Program. Likewise, the Company agrees to be bound by this same program. This mutual agreement to arbitrate claims means that both you and the Company are bound to use the EDR Program as the sole means of resolving covered claims and disputes and agree to forego any right either may have to a jury trial on issues covered by the EDR Program. However, no remedies that otherwise would be available to you or the Company in a court of law will be forfeited by virtue of the agreement to use and be bound by the EDR Program. CHG-Bellaire attached two affidavits to its motion. The first was from I. Tai, Escalation Manager for Saba TalentSpace, an onboarding platform. Tai testified that newly hired CHG-Bellaire employees had to review and acknowledge several employment agreements containing arbitration provisions through the online platform. Each employee had to create a secure and unique username and password, which was encrypted and stored in the Saba database. After successfully entering login information, the system prompts the employee to complete the Employee Handbook course and the EIBP course. After the employee completes the course, the Saba database tests the employees understanding of the course content, generates transcript reports, and displays the employee’s scores. Tai also testified that Johnson created a username and password on Saba, accessed various employment documents, and completed the Employee Handbook course and the EIBP course on July 8, 2019. Saba’s records showed that Johnson successfully answered all five questions in the Employee Handbook course and all three questions in the EIBP course. CHG-Bellaire’s other affidavit was from K. Mendez, the HR Director for the Cornerstone Healthcare Group Holdings, Inc., the parent company of CHG-Bellaire. Mendez testified that she was responsible for the “overall processes and implementation of policies involving documentation related to onboarding” new employees. Mendez confirmed that the Saba reports showed that Johnson had acknowledged reviewing the Employee Handbook, the EDRA, and the EIBP. Johnson moved to strike the motion to compel arbitration, arguing that the arbitration agreements exclude workers’ compensation claims and that the evidence did not establish a valid arbitration agreement because she testified at her deposition that she could not recall acknowledging or agreeing to the arbitration agreements. CHG-Bellaire replied to Johnson’s motion, contending that her claims fell within the scope of the arbitration agreements because she sought damages for personal injuries for her tort claims and did not allege any claims under the Texas Workers Compensation Act. It also contended that the evidence established the existence of enforceable arbitration agreements. The trial court denied CHG-Bellaire’s motion to compel arbitration without a hearing. CHG-Bellaire appealed.[1] On the original submission of the appeal, we concluded that Johnson’s sworn testimony that she did not recall electronically acknowledging the arbitration agreement raised a fact issue on its validity. CHG Hosp. Bellaire, 2021 WL 1537465, at *7. Consequently, we did not determine whether CHG-Bellaire carried its burden of establishing that Johnson’s claims fell within the scope of the arbitration agreement. Id. (citing TEX. R. APP. P. 47.1). After we issued our opinion, the Texas Supreme Court decided Aerotek, Inc. v. Boyd, 624 S.W.3d 199 (Tex. 2021), a case involving similar facts. CHG-Bellaire petitioned for review. The parties agreed that under Aerotek, Johnson’s sworn testimony did not create a fact issue as to the arbitration agreement’s validity. CHG Hosp. Bellaire, 644 S.W.3d at 189. The Supreme Court reversed our judgment and remanded the case to “consider Johnson’s alternative, unaddressed argument that the trial court properly denied CHG’s motion to compel arbitration because her claims do not fall within the scope of the arbitration agreement.” Id. With the validity of the arbitration agreement resolved, we turn to the scope of the agreement. Scope of the Arbitration Agreement CHG-Bellaire contends the trial court erred by denying its motion to compel arbitration because the arbitration agreement covers Johnson’s workplace injury claims. In response, Johnson asserts that CHG-Bellaire failed to establish that the arbitration agreement covered her claims because it explicitly excludes workers’ compensation claims. Standard of review “We review interlocutory appeals of orders denying motions to compel arbitration for an abuse of discretion, deferring to the trial court’s factual determinations if they are supported by the evidence and reviewing questions of law de novo.” Valerus Compression Servs., LP v. Austin, 417 S.W.3d 202, 207 (Tex. App.—Houston [1st Dist.] 2013, no pet.). Under this standard, we will reverse the trial court’s ruling only when “it acts in an arbitrary or unreasonable manner, without reference to any guiding rules or principles.” In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (per curiam). We construe the record in a light favorable to supporting the trial court’s ruling. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 233 (Tex. 2003); In re Est. of Guerrero, 465 S.W.3d 693, 701 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc). Applicable law After demonstrating that a valid arbitration agreement exists, a party seeking to compel arbitration must establish that the dispute is within the agreement’s scope. Baby Dolls Topless Saloons, Inc. v. Sotero, 642 S.W.3d 583, 586 (Tex. 2022). If one party resists arbitration, the trial court normally decides gateway issues, such as scope. Robinson v. Home Owners Mgmt. Enters., Inc., 590 S.W.3d 518, 531 (Tex. 2019). But arbitration is a matter of contract, so parties are free to alter these presumptions by agreement. Id. When the contract delegates the arbitrability question to an arbitrator, a court may not override the contract. Id. It has no power to decide the issue. Id. The arbitration agreements delegate questions of scope to arbitrator The EIBP arbitration agreement covers “[a]ny injury suffered by Claimant while in the Course and Scope of Claimant’s employment,” “all claims for personal injuries,” and “any other loss, detriment or claim of whatever kind and character.” Similarly, the EDRA extends to “tort claims,” “all common law claims,” and “claims for violation of any federal, state or other governmental law.” Johnson argues that the agreements exclude her claims from coverage because they are workers’ compensation claims. The EIBP exempts from arbitration claims for “Workers’ Compensation Benefits under the Texas Workers’ Compensation Act or any other state or federal law.” The EDRA similarly states that claims for “workers’ compensation” are not subject to arbitration. But, as CHG-Bellaire points out, scope questions are delegated to the arbitrator, not the courts. The EIBP and the EDRA both require that any question about whether claims are subject to arbitration be resolved by the arbitrator. The EIBP states, “Any question as to the arbitrability of any particular claim shall be arbitrated pursuant to the procedures set forth in this Agreement.” The EDRA similarly provides, “the exclusive authority to resolve any question as to the arbitrability of a dispute and/or any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement.” The express language of the agreements refers arbitrability issues to the arbitrator. See Robinson, 590 S.W.3d at 532 n.78. So we do not answer the question of whether Johnson’s claims fall within the scope of the arbitration agreements. Conclusion We reverse the trial court’s order and we remand this case for entry of an order compelling arbitration followed by dismissal. Sarah Beth Landau Justice Panel consists of Justices Goodman, Landau, and Guerra.
