ACCEPTED 03-14-00012-CV 3703647 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/8/2015 4:20:48 PM JEFFREY D. KYLE CLERK NO. 03-14-00012-CV
FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 1/8/2015 4:20:48 PM ____________________________________________________________ JEFFREY D. KYLE Clerk
STATE OFFICE OF RISK MANAGEMENT Appellant
v.
KATINA A. EDWARDS Appellee
On Appeal from the rd 53 Judicial District Court of Travis County, Texas
APPELLANT’S RESPONSE TO TEXAS DEPARTMENT OF INSURANCE DIVISION OF WORKERS’ COMPENSATION AMICUS CURIAE BRIEF
J. Red Tripp State Bar No. 00790257 Assistant General Counsel State Office of Risk Management P.O. Box 13777 Austin, Texas 78711-3777 (512) 936-1516 (512) 370-9189 fax Red.Tripp@sorm.state.tx.us Counsel for Appellant
ORAL ARGUMENT REQUESTED
1 TABLE OF CONTENTS Page
Table of Contents………………………………………………………………...2
Index of Authorities………………………………………………………………3
Statement of Facts ………………………………………………………………4
Response Issue Presented……………………………………………………..6
Response Issue I …………………………………………………………6
The Texas Department of Insurance, Division of Workers’ Compensation, deprived SORM of its due process rights to a fair hearing by erroneously placing the burden of proving that a compensable injury did not occur on SORM. A substantial evidence review is the proper standard because this case does not concern issues of compensability or indemnity benefits, but concerns the proper application of the burden of proof.
Certificate of Compliance………………………………………………………10
Certificate of Service……………………………………………………………11
2 INDEX OF AUTHORITIES
CASES
Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980)…………………………………………8, 9
STATUTES
Tex. Labor Code §410.255……………………………………………………..8
3 STATEMENT OF FACTS
Ms. Katina Edwards, Appellee, was employed as a Child Protective
Services Specialist for approximately one month. (Tr. 20:9-10; Tr. 28:7-
11).1 On June 17, 2008, during a work related home visit she allegedly
entered and remained inside the home of a client for 30-40 minutes. (Tr.
37:22-25-38:1). Edwards testified that she observed mold on the
baseboards and ceiling of that home. (Tr. 20:19-21). Edwards sought
medical treatment on June 25, 2008 and was diagnosed with an allergic
reaction to mold. (Tr. 21:17-19; 22:9-10). Approximately two months later
on August 22, 2008, Edwards was hospitalized with flu-like symptoms. (Tr.
22:18-24). The physicians at Ben Taub Hospital diagnosed her with
hypersensitivity pneumonitis. (Tr. 23:6-10). A claim was filed with SORM
alleging a work-related injury. No competent evidence was produced at the
time of submission substantiating the claim. There was no evidence of any
tests done of the air or surfaces where the alleged exposure occurred, nor
at any other location in Edward’s environment to support this workers’
compensation claim. No competent medical opinions were submitted for
review and consideration. The only medical evidence submitted for
substantiation was a single paragraph reciting inaccurate facts and 1 Tr. as used in this brief designates the “Transcript” of the administrative contested case hearing held at the Texas Department of Insurance, Division of Workers’ Compensation.
4 assumptions, without reference or citation to any medical based evidence.
The claim was therefore denied.
The entirety of the medical evidence of causation offered is as
follows:
The patient has a lung biopsy and this showed hypersensitivity pneumonitis. This could definitely be caused by exposure to mold. Usually a patient would have been exposed previously before this occurs. And with her work history of working for Child Protective Services, I could see her being exposed previously. Then she went into a house with a large amount of mold, this could have set her off with the hypersensitivity pneumonitis as diagnosed by biopsy at Ben Taub [Hospital]. (AR: 72). 2
On March 22, 2009, a DWC hearing officer presided over a Benefit
Contested Case Hearing and, based on the evidence indicated above,
determined that Appellee sustained a compensable injury in the form of an
occupational disease, hypersensitivity pneumonitis, on June 17, 2008; and
that the Appellee had disability resulting from a compensable injury from
August 22, 2008 through the date of the contested case hearing.
Appellant appealed this determination citing legal error. On August
13, 2009, the DWC Appeals Panel allowed the determinations of the
hearing officer to become final without issuing any further opinion.
2 AR as used in this brief designates the “Administrative Record” of the Texas Department of Insurance, Division of Workers’ Compensation.
5 NO. 03-14-00012-CV
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS ____________________________________________________________
On Appeal from the rd 53 Judicial District Court of Travis County, Texas
APPELLANT’S RESPONSE TO TEXAS DEPARTMENT OF INSURANCE DIVISION OF WORKERS’ COMPENSATION AMICUS CURIAE BRIEF
TO THE HONORABLE JUSTICES OF THE TEXAS THIRD COURT OF APPEALS:
COMES NOW, Appellant, State Office of Risk Management, and files
this its Response to Texas Department of Insurance, Division Of Workers’
Compensation Amicus Curiae Brief, and would show as follows:
6 RESPONSE ISSUE PRESENTED
The Texas Department of Insurance, Division of Workers’ Compensation (DWC), deprived SORM of its due process rights to a fair hearing by erroneously placing on SORM the burden of proving that a compensable injury did not occur. A substantial evidence review is the proper standard because this case does not concern issues of compensability or indemnity benefits, but concerns the proper application of the burden of proof.
Appellant cannot more completely summarize the evidence offered to
DWC at the administrative contested case hearing in this case than it has
in the Statement of Facts. There is no dispute that burden was on the
Appellee to prove that she sustained a compensable injury and disability as
a result of a compensable injury. But in this case, notwithstanding that
burden, the DWC determined that Appellee sustained a compensable injury
of hypersensitivity pneumonitis on June 17, 2008 and resulting disability,
despite the absence of legal and required evidence to prove any such
injury.
Contrary to the argument in DWC’s amicus brief, Appellant had no
“burden of proving a lack of causation between the work activities and the
injury” when Appellee had never offered any evidence to substantiate her
burden. This position is directly illustrative of the matter at bar. Because
Appellant is requesting a remand back to DWC only if this Court finds that
the DWC did not properly apply the law in this claim, it is misleading for
7 DWC to argue that “injured workers would be stripped of their rights to a
jury trial… in any case in which the carrier claims an error of law...” An
injured worker would continue to maintain his or her right to a jury trial as
the plaintiff in a case in which the Court determines that DWC misapplied
the law and erroneously reversed the burden of proof, and remanded that
claim back to DWC. A substantial evidence appeal under Tex. Labor Code
§410.255 would fail if the Court determined that DWC did not misapply the
law.
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ACCEPTED 03-14-00012-CV 3703647 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/8/2015 4:20:48 PM JEFFREY D. KYLE CLERK NO. 03-14-00012-CV
FILED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS AUSTIN, TEXAS 1/8/2015 4:20:48 PM ____________________________________________________________ JEFFREY D. KYLE Clerk
STATE OFFICE OF RISK MANAGEMENT Appellant
v.
KATINA A. EDWARDS Appellee
On Appeal from the rd 53 Judicial District Court of Travis County, Texas
APPELLANT’S RESPONSE TO TEXAS DEPARTMENT OF INSURANCE DIVISION OF WORKERS’ COMPENSATION AMICUS CURIAE BRIEF
J. Red Tripp State Bar No. 00790257 Assistant General Counsel State Office of Risk Management P.O. Box 13777 Austin, Texas 78711-3777 (512) 936-1516 (512) 370-9189 fax Red.Tripp@sorm.state.tx.us Counsel for Appellant
ORAL ARGUMENT REQUESTED
1 TABLE OF CONTENTS Page
Table of Contents………………………………………………………………...2
Index of Authorities………………………………………………………………3
Statement of Facts ………………………………………………………………4
Response Issue Presented……………………………………………………..6
Response Issue I …………………………………………………………6
The Texas Department of Insurance, Division of Workers’ Compensation, deprived SORM of its due process rights to a fair hearing by erroneously placing the burden of proving that a compensable injury did not occur on SORM. A substantial evidence review is the proper standard because this case does not concern issues of compensability or indemnity benefits, but concerns the proper application of the burden of proof.
Certificate of Compliance………………………………………………………10
Certificate of Service……………………………………………………………11
2 INDEX OF AUTHORITIES
CASES
Schaefer v. Texas Employers’ Insurance Association, 612 S.W.2d 199 (Tex. 1980)…………………………………………8, 9
STATUTES
Tex. Labor Code §410.255……………………………………………………..8
3 STATEMENT OF FACTS
Ms. Katina Edwards, Appellee, was employed as a Child Protective
Services Specialist for approximately one month. (Tr. 20:9-10; Tr. 28:7-
11).1 On June 17, 2008, during a work related home visit she allegedly
entered and remained inside the home of a client for 30-40 minutes. (Tr.
37:22-25-38:1). Edwards testified that she observed mold on the
baseboards and ceiling of that home. (Tr. 20:19-21). Edwards sought
medical treatment on June 25, 2008 and was diagnosed with an allergic
reaction to mold. (Tr. 21:17-19; 22:9-10). Approximately two months later
on August 22, 2008, Edwards was hospitalized with flu-like symptoms. (Tr.
22:18-24). The physicians at Ben Taub Hospital diagnosed her with
hypersensitivity pneumonitis. (Tr. 23:6-10). A claim was filed with SORM
alleging a work-related injury. No competent evidence was produced at the
time of submission substantiating the claim. There was no evidence of any
tests done of the air or surfaces where the alleged exposure occurred, nor
at any other location in Edward’s environment to support this workers’
compensation claim. No competent medical opinions were submitted for
review and consideration. The only medical evidence submitted for
substantiation was a single paragraph reciting inaccurate facts and 1 Tr. as used in this brief designates the “Transcript” of the administrative contested case hearing held at the Texas Department of Insurance, Division of Workers’ Compensation.
4 assumptions, without reference or citation to any medical based evidence.
The claim was therefore denied.
The entirety of the medical evidence of causation offered is as
follows:
The patient has a lung biopsy and this showed hypersensitivity pneumonitis. This could definitely be caused by exposure to mold. Usually a patient would have been exposed previously before this occurs. And with her work history of working for Child Protective Services, I could see her being exposed previously. Then she went into a house with a large amount of mold, this could have set her off with the hypersensitivity pneumonitis as diagnosed by biopsy at Ben Taub [Hospital]. (AR: 72). 2
On March 22, 2009, a DWC hearing officer presided over a Benefit
Contested Case Hearing and, based on the evidence indicated above,
determined that Appellee sustained a compensable injury in the form of an
occupational disease, hypersensitivity pneumonitis, on June 17, 2008; and
that the Appellee had disability resulting from a compensable injury from
August 22, 2008 through the date of the contested case hearing.
Appellant appealed this determination citing legal error. On August
13, 2009, the DWC Appeals Panel allowed the determinations of the
hearing officer to become final without issuing any further opinion.
2 AR as used in this brief designates the “Administrative Record” of the Texas Department of Insurance, Division of Workers’ Compensation.
5 NO. 03-14-00012-CV
IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS ____________________________________________________________
On Appeal from the rd 53 Judicial District Court of Travis County, Texas
APPELLANT’S RESPONSE TO TEXAS DEPARTMENT OF INSURANCE DIVISION OF WORKERS’ COMPENSATION AMICUS CURIAE BRIEF
TO THE HONORABLE JUSTICES OF THE TEXAS THIRD COURT OF APPEALS:
COMES NOW, Appellant, State Office of Risk Management, and files
this its Response to Texas Department of Insurance, Division Of Workers’
Compensation Amicus Curiae Brief, and would show as follows:
6 RESPONSE ISSUE PRESENTED
The Texas Department of Insurance, Division of Workers’ Compensation (DWC), deprived SORM of its due process rights to a fair hearing by erroneously placing on SORM the burden of proving that a compensable injury did not occur. A substantial evidence review is the proper standard because this case does not concern issues of compensability or indemnity benefits, but concerns the proper application of the burden of proof.
Appellant cannot more completely summarize the evidence offered to
DWC at the administrative contested case hearing in this case than it has
in the Statement of Facts. There is no dispute that burden was on the
Appellee to prove that she sustained a compensable injury and disability as
a result of a compensable injury. But in this case, notwithstanding that
burden, the DWC determined that Appellee sustained a compensable injury
of hypersensitivity pneumonitis on June 17, 2008 and resulting disability,
despite the absence of legal and required evidence to prove any such
injury.
Contrary to the argument in DWC’s amicus brief, Appellant had no
“burden of proving a lack of causation between the work activities and the
injury” when Appellee had never offered any evidence to substantiate her
burden. This position is directly illustrative of the matter at bar. Because
Appellant is requesting a remand back to DWC only if this Court finds that
the DWC did not properly apply the law in this claim, it is misleading for
7 DWC to argue that “injured workers would be stripped of their rights to a
jury trial… in any case in which the carrier claims an error of law...” An
injured worker would continue to maintain his or her right to a jury trial as
the plaintiff in a case in which the Court determines that DWC misapplied
the law and erroneously reversed the burden of proof, and remanded that
claim back to DWC. A substantial evidence appeal under Tex. Labor Code
§410.255 would fail if the Court determined that DWC did not misapply the
law.
The “relief” DWC contends is available to Appellant is for Appellant to
execute the overwhelming task of having to prove a negative - that the
Appellee’s work environment did not cause her injury - in a claim where the
injured employee offered no evidence but prevailed at the administrative
level due to mistake, indifference, or misapplication of law. DWC has
offered no mechanism under which Appellant can obtain proper relief for
this violation of due process afforded by law.
To the extent that DWC argues that the decision in Schaefer v.Texas
Employers Ins. Association, 612 S.W.2d 199 (Tex. 1980) is how a case of
this nature should proceed, Appellant wholeheartedly agrees. The Plaintiff
in Schaefer was unable to meet his burden of proof at the administrative
level and was, therefore, the Plaintiff in the de novo review of the
8 compensability issues before the District Court in the county of his
residence. When Schaefer prevailed at the District Court without offering
sufficient evidence of causation, the Appellate Court overturned the
erroneous District Court finding on a substantial evidence review of the
record. Never in the Schaefer case was the burden of proving a lack of
causation between the work activities and the injury placed on the carrier.
Consistent with the tenets of Schaefer, Appellant argues only that the Court
should find that the burden of proof was improperly placed on Appellant
and remand the case back to the DWC for a rehearing properly applying
the burden of proof.
In response to other arguments raised by amici DWC, Appellant
incorporates, in full, its arguments as put forth in its original brief on the
merits and its reply brief.
Further, Appellant objects to the DWC’s request for relief in any form.
The DWC is an Amicus, not a party to this claim.
9 Respectfully submitted,
//s// J. Red Tripp J. Red Tripp State Bar No. 00790257 Associate General Counsel State Office of Risk Management P.O. Box 13777 Austin, Texas 78711-3777 (512) 936-1516 (512) 370-9189 fax Red.Tripp@sorm.state.tx.us Counsel for Appellant
CERTIFICATE OF COMPLIANCE
I hereby certify that per TRAP 9.4(i)(3) the Appellant’s Reply Brief contains 1,536 words pursuant to the word count on the computer program used to prepare the document.
//s// J. Red Tripp J. Red Tripp
10 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of Appellant’s Reply Brief
was served via electronic service pursuant to the TRAP on the 8th day of
January, 2015 to the following:
Bradley Dean McClellan Of Counsel, Law Offices of Richard Pena 1701 Director’s Blvd., Suite 110 Austin, Texas 78744 (512) 327-6884 office (512) 694-8843 cell (512) 327-8354 fax brad.mcclellan@yahoo.com Attorney for Appellee
Dennis M. McKinney Assistant Attorney General Office of the Attorney General Administrative Law Division P.O. Box 12548, Capitol Station Austin, TX 78711-2548 (512) 475-4020 office (512) 320-0167 fax dennis.mckinney@texasattorneygeneral.gov