State Office of Risk Management v. Katina A. Edwards

Opinion

ACCEPTED 03-14-00012-CV 4437537 THIRD COURT OF APPEALS AUSTIN, TEXAS 3/10/2015 12:08:21 PM JEFFREY D. KYLE CLERK No. 03-14-00012-CV

RECEIVED IN 3rd COURT OF APPEALS IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS 3/10/2015 12:08:21 PM AUSTIN, TEXAS JEFFREY D. KYLE Clerk __________________________________________________________________

STATE OFFICE OF RISK MANAGEMENT,

Appellant

v.

KATINA A. EDWARDS,

Appellee

On Appeal from the 53rd Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-09-003089

Office of Injured Employee Counsel’s Amicus Curiae Brief

Jessica Corna State Bar No. 24050865 Public Counsel

Office of Injured Employee Counsel 7551 Metro Center Drive, Suite 100 Austin, Texas 78744 TEL: (512) 804-4170 FAX: (512) 804-4181 Jessica.Corna@oiec.texas.gov TABLE OF CONTENTS

TABLE OF CONTENTS..........................................................................ii

INDEX OF AUTHORITIES.....................................................................iii

INTEREST OF AMICUS CURIAE.........................................................1

ARGUMENT..............................................................................................3

CERTIFICATE OF SERVICE.................................................................9

CERTIFICATE OF COMPLIANCE……………………………………10

ii INDEX OF AUTHORITIES

Cases Page

Texas Workers’ Compensation Com’n v. Garcia, 893 S.W.2d 504 (Tex. 1995)......6

American Zurich Ins. Co. v. Samudio, 370 S.W.3d 363 (Tex 2012)……………….7

Statutes

Texas Labor Code §404.104(3)……......................................................................................................1

Texas Labor Code § 408.0041(e)…………………………………………………………………………3

Texas Labor Code Chapter 410 Subchapter G..……………………………………4

Texas Labor Code §410.301(a)…………………………………………….4, 5, 6, 7

Texas Labor Code 410.255………………………………………………………5, 6

iii No. 03-14-00012-CV

IN THE THIRD COURT OF APPEALS

AUSTIN, TEXAS

On Appeal from the 53rd Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-09-003089

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

The Office of Injured Employee Counsel (OIEC) submits this brief pursuant

to Rule 11 of the Texas Rules of Appellate Procedure as amicus curiae and would

respectfully show the Court as follows:

INTEREST OF AMICUS CURIAE

OIEC is the state agency charged with representing the interests of injured

employees as a class as provided for in Texas Labor Code § 404.104(3). OIEC has determined that the interests of injured employees as a class will be adversely

affected if Appellant is permitted to bypass the proper procedures to appeal a

decision of Texas Department of Insurance, Division of Workers’ Compensation

(Division) concerning compensability and entitlement to benefits.

The purpose of this brief is to bring to this Court’s attention additional

considerations and consequences that will result if this Court permits the Appellant

to depart from following the proper procedures under the Labor Code to appeal a

decision of the Division. OIEC’s brief focuses on public policy considerations and

on the adverse consequences to injured employees of changing the legal and

procedural protections provided to them under Texas workers’ compensation law.

OIEC respectfully requests this Court reverse the decision of the trial court

and remand the case to that court with instructions to process this case as an appeal

of a final decision of the Division. Amicus is not aligned with any party to the

underlying lawsuit. Amicus is a state agency; and as such, no fees have been or will

be paid for the preparation of this brief.

2 ARGUMENT

The State Office of Risk Management (SORM) argues that this case should

be remanded back to the Division because the Division’s hearing officer failed to

apply the proper legal standard in deciding whether the Appellee was entitled to

benefits due to her exposure to mold. Specifically, the carrier argues that the medical

evidence presented by the Appellee was insufficient as a matter of law to establish a

causal connection between her employment and her hypersensitivity pneumonitis.

Thus, SORM contends that the Division hearing officer denied it due process by

shifting the burden to it to disprove the Appellee’s injury.

This argument is fallacious. In the first instance, SORM has failed to prove

that hearing officer applied an incorrect legal standard in this case. Appellee

presented medical evidence of a causal connection between her exposure to mold

and her injury, specifically, a causation opinion from a designated doctor who was

appointed by the Division to address that issue. The hearing officer found that

evidence was sufficient to prove a causal connection. In so doing, the hearing officer

made the finding that the designated doctor’s opinion was not contrary to the

preponderance of the evidence. That finding is what SORM points to in arguing that

the hearing officer improperly shifted the burden of proof; however, that argument

3 is without merit. At the administrative level, a designated doctor’s opinion is entitled

to presumptive weight in accordance with Texas Labor Code §408.0041(e), unless

the preponderance of the evidence is to the contrary. The hearing officer’s finding

is, in fact, a standard finding in cases where there is a designated doctor opinion on

an issue and it correctly reflects the law at the administrative level. Assuming for

the sake of argument, that as SORM contends, the designated doctor’s opinion does

not rise to the level of a valid expert opinion that is the argument that SORM should

have pursued on appeal. Disagreement with the hearing officer’s resolution of an

issue is not proof that the hearing officer applied an incorrect legal standard,

depriving SORM of due process. To the contrary, it is an assertion of error that the

hearing officer failed to correctly weigh the evidence and that the evidence was

insufficient to support her decision.

This alleged error is something that SORM was required to overturn by

appealing the hearing officer’s decision pursuant to Texas Labor Code Chapter 410

Subchapter G. Due process does not ensure a process that is without error. At the

administrative level, SORM was clearly provided with notice and an opportunity to

be heard. Where, as here, a party is dissatisfied with the outcome at the

administrative level, its due process rights are protected by pursuing judicial review

in accordance with Section 410.301(a). SORM makes the bald assertion that its due

4 process rights cannot be protected in this process; however, it has wholly failed to

demonstrate why or how the statutorily mandated court, namely the District Court

in Fort Bend County, is not in a position to correct any legal error that may have

been made in this case under the modified de novo standard of review. Parties who

disagrees with a hearing officer decisions for reasons similar to those advanced by

SORM routinely seek to have those decisions overturned by pursuing an appeals

under Texas Labor Code Chapter 410 Subchapter G. SORM has failed to

persuasively explain what makes this case different from all other judicial review

cases of Division decisions concerning compensability and eligibility for income

benefits.

Further, there are good reasons that SORM should not be permitted to seek

review of the hearing officer’s decision under §410.255. The Division points to

these reasons in its amicus curiae brief. Texas Labor Code §410.255 explicitly

provides that judicial review under this section is for only for issues “other than those

covered under Section 410.301(a).” §410.301(a) provides that a final decision of

the Division of regarding compensability or eligibility for or the amount of income

benefits shall be conducted under this subchapter. There is no doubt that the present

case is one concerning compensability and eligibility for income benefits. As such,

the statute clearly provides that judicial review of this decision must be sought

5 pursuant to §410.301(a), and not under §410.255. It is disingenuous at best for

SORM to argue that this is not an appeal regarding compensability or eligibility for

income benefits. Indeed, it is apparent that the desired outcome is a second hearing

at the Division and an ultimate determination that the Appellee did not sustain a

compensable injury. It appears that SORM believes it has a better likelihood of

obtaining that result at the Division rather than at the district court; however, that

does not change the fact that the option of a remand to the Division is not legally

available.

Allowing SORM and other carriers to appeal final decisions of the Division

under §410.255 would have a number of adverse consequences to injured

employees. First, and foremost, it would deprive injured employees of their right to

have a jury on judicial review. The importance of the right to a jury cannot be

overstated and was itself a major reason the Supreme Court found that the present

workers’ compensation system constitutional in Texas Workers’ Compensation

Com’n v. Garcia, 893 S.W.2d 504, 513 (Tex. 1995). An appeal under § 410.255

would also force injured employees into court in Travis County rather than their

county of residence as is the case under §410.301(a). The importance of venue rights

is not merely for convenience, which itself would be a substantial consideration in a

number of cases, but because of the significance of having the jury comprised of

6 people who reflect the views and values of the local community. Finally, there is a

different standard of review under §410.255 (substantial evidence) than under

§410.301(a) (modified trial de novo). The modified de novo standard, provides

parties a better opportunity to correct error made at the administrative level than the

more restrictive substantial evidence review. Permitting SORM to pursue its appeal

outside the statutorily mandated process would result in confusion and forum

shopping that have no place in the workers’ compensation system. There is simply

no question as to the appellate process that should have been followed in this case.

No party should be permitted to decide it wants to follow an alternate process,

particularly when that process has the consequence of forcing an injured employee

to litigate outside his or her county of residence without a jury.

Finally, OIEC agrees with Appellee that there is no provision for remanding

a case back to the Division that has gone to judicial review, under either §410.301(a)

or under §410.255. The only authority for such a remand is American Zurich Ins.

Co. v. Samudio, 370 S.W.3d 363 (Tex. 2012) and such a remand is limited to cases

where there is no legally valid impairment rating on judicial review, which is clearly

not the case here. The proper course to take in the present case is a remand back to

the trial court with instructions to transfer the case to a court of competent

jurisdiction in Fort Bend County (the county of Appellee’s residence at the time that

7 disability began), and to have that court review the final decision of the Division

pursuant to §410.301(a) under a modified de novo standard of review.

Respectfully submitted,

_/s/Jessica Corna_______ Jessica Corna State Bar No. 24050865 Public Counsel

Office of Injured Employee Counsel 7551 Metro Center Drive, Suite 100 Austin, Texas 78744 TEL: (512) 804-4170 FAX: (512) 804-4181 Jessica.Corna@oiec.texas.gov

8 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Office of Injured Employee Counsel’s Amicus Curiae Brief has been sent by electronic mail, on this 10th day of March, 2015, to the following:

Barbara L. Klein Bradley Dean McClellan J. Red Tripp Law Offices of Richard Pena, P.C. State Office of Risk Management 1701 Directors Blvd., Suite 110 P.O. Box 13777 Austin, TX 78744 Austin, TX 78711-3777 (512) 327-6884 office (512) 936-1516 office (512) 694-8843 cell (512) 370-9189 fax (512) 327-8354 fax Barbara.Klein@sorm.state.tx.us Brad.McClellan@yahoo.com Red.Tripp@sorm.state.tx.us Attorney for Appellee Attorneys for Appellant

Dennis M. McKinney 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 Attorney for Amicus Curiae, Division of Workers’ Compensation

/s/ Jessica Corna_____________ Jessica Corna

9 CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this

brief contains 1904 words (counting all parts of the document). This is a

computer-generated document created in Microsoft Word, using 14-point typeface

for all text. In making the certificate of compliance, I am relying on the word

count provided by the software used to prepare the document.