                                                                                                ACCEPTED
                                                                                            03-13-00196-CV
                                                                                                    5240349
                                                                                 THIRD COURT OF APPEALS
                                                                                            AUSTIN, TEXAS
                                                                                      5/11/2015 11:51:31 PM
                                                                                          JEFFREY D. KYLE
                                                                                                     CLERK

                            No. 03-13-00196-CV
                                                                           FILED IN
                              THIRD COURT OF APPEALS                3rd COURT OF APPEALS
                                                                         AUSTIN, TEXAS
                                    AUSTIN, TEXAS
                                                                    5/11/2015 11:51:31 PM
                                                                        JEFFREY D. KYLE
                                                                             Clerk
                             MICHELLE BUBNIS, APPELLANT

                                         V.
                               LEANDER I.S.D., APPELLEE

             ON REVIEW FROM THE 126TH DISTRICT COURT OF TRAVIS COUNTY
          CAUSE NO. D-1-GV-09-001868, THE HONORABLE TIM SULAK PRESIDING

                        APPELLANT MICHELLE BUBNIS’S
                          MOTION FOR REHEARING

To the Honorable Justices of the THIRD COURT OF APPEALS:

      Michelle Bubnis, the Appellant and Defendant below, respectfully submits

this Motion for Rehearing and asks the Court of Appeals not to limit the issue of

anxiety and depression by time or intervening incident when the issue was not so

limited before the Texas Department of Insurance-Division of Workers’

Compensation, the DWC. This Court should follow its prior decision in TWCIF v.

TWCC discussed herein, and not limit the “issue” determined by the DWC to the

arguments of either party. Leander I.S.D., the Insurance Carrier and Appellee and

Plaintiff below, did not limit the issue of anxiety and depression to subsequent



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No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
intervening incidents in time, and the Insurance Carrier conceded the only proof

that anxiety and depression were diagnosed and causally related to the May 22,

2003 chemical exposure without evidence to the contrary. This Court should

reverse and render the “issue” of anxiety and depression in favor of the injured

worker.

                                ARGUMENT & AUTHORITIES

     Modified de novo review means the Court is informed of the final DWC

administrative decision.1     The Carrier is limited to disputing the issues finally

determined by the DWC and on which judicial review is sought. TEX. LAB. CODE

§410.302(b). This Court explained that the “issue” on which judicial review and

administrative review is based is not limited by arguments or theories but by the

determinations made by the hearing officer:



         Because the usage of the word "issue" in both the workers'
     compensation act and in Texas case law is consistent with our interpretation,
     we hold that "issue," as used in section 410.204(a), refers to the disputed
     determinations made by the hearing officer in rendering his decision.




1
 TEX. LAB. CODE §§410.304,306-307; Texas Workers' Comp. Comm'n v. Garcia, 893
S.W.2d 504, 528 (Tex.1995).
                                                                                 2
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
Tex. Workers' Comp. Ins. Fund/Texas Workers' Comp. Comm'n v. Tex. Workers'

Comp. Comm'n , 124 S.W.3d 813, 821, 2003 Tex. App. LEXIS 10153, 20-21 (Tex.

App. Austin 2003). This Court’s current opinion allowing the Insurance Carrier, as

the Plaintiff, to try to limit the issue to “current” or dispute the extent to

redeveloped anxiety and depression is not proper and not the issue presented to

the DWC or determined by the hearing officer.

     The 2nd Court of Appeals properly addressed the “issues” presented to the

contested case hearing officer including the express issue of the 1995 injury

causing conditions after 1998:

         whether Farmer's compensable January 1995 injury was a producing
     cause of his L4-5 and L5-S1 disc herniations after April 2, 1998; and

          whether Farmer's compensable April 1998 injury extended to include
     the L4-5 and L5-S1 disc herniations.

Sec. Nat'l Ins. Co. v. Farmer, 89 S.W.3d 197, 199-200 (Tex. App.--Fort Worth 2002,

pet. denied).    The 2nd Court did not limit or attempt to change the issues

presented.




                                                                               3
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
       In this matter the relevant issues presented without alteration or dispute at

the administrative level and which were challenged on judicial review were:2

    “2. Does the compensable injury of 05122/03 extend to include toxic
encephalopathy, anxiety and depression?”

       “3. What is the impairment rating?”


The Insurance Carrier plead it was aggrieved by: “2. The compensable injury of

May 22, 2003, extends to include anxiety and depression.” 3 The petition does

not limit the anxiety by time or intervening incidents. This Court should not allow

any party to limit the “issue” to their trial theory arguments if the issue is no so

limited. The anxiety and depression issue presented to the jury was not limited

by time or that the “current” symptoms or the post-2007 period of time. This

Court’s original opinion noted:

       LISD's theory at trial, simply put, was that even if the 2003 chemical exposure
       had caused Bubnis anxiety and depression, that particular bout with anxiety
       and depression had resolved by 2005 at the latest. . .

This Court explained that:

       . . . the jury reasonably could have and disregarding contrary evidence unless
       the jury reasonably could not have, the jury could have reasonably inferred
       that (1) Bubnis had suffered anxiety and depression as a result of her May
       2003 compensable injury for which she sought treatment from Dr.

2
    CR 13, CCH Decision attached to Carrier’s Original Petition
3
    CR 2, Plaintiff Insurance Carrier’s Original Petition.
                                                                                   4
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
       Merryman; (2) the anxiety and depression resulting from the May 2003
       chemical exposure had resolved, either from treatment or on its own, at
       some time before the television incident or the toxic-encephalopathy
       diagnosis; and (3) Bubnis had developed a second bout of anxiety and
       depression in 2007 as a result of the toxic-encephalopathy diagnosis or from
       the isolation required by her environmental restrictions. As such, the
       evidence was legally sufficient to support the jury's finding that the May
       2003 compensable injury did not extend to Bubnis's anxiety and depression.

The disputed issue at the contested case hearing was unequivocally and not

limited to the “current” conditions of anxiety and depression. The Carrier’s own

original petition does not limit their dispute to “current” conditions, and the

Carrier’s theory at the administrative level as reported by the administrative

judge that:4


        The claimant contends that as a result she has had a reaction to these
        fumes which has resulted in toxic encephalopathy, anxiety and depression.
        The carrier contends that, while the incident with cabinet may have
        resulted in temporary irritation, it has not resulted in the disputed
        diagnoses.

The relevant finding of fact is: “5. The compensable injury of May 22, 2003, is a

producing cause of Claimant's anxiety” The relevant Conclusion of Law

determined: “4. The compensable injury of May 22, 2003, is a producing cause of




4
    CR 14, Ex. A. Insurance Carrier’s Petition, CCH Decision Background Section
                                                                                  5
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
Claimant's anxiety and depression.5 The Insurance Carrier cannot change and

cannot litigate a different issue than that determined before the DWC.

       Under no-fault workers’ compensation, where a workers’ recovery is limited,

the burden to prove a subsequent condition is unrelated to the original condition

is an issue in and of itself:

       To prove that a subsequent injury is the sole cause of a claimant's current
       condition, the burden is on the carrier to prove that the claimant's
       subsequent condition is the sole contributing factor to the claimant's
       current condition. Texas Workers' Compensation Commission Appeal No.
       94844, decided August 15, 1994; Texas Workers' Compensation Commission
       Appeal No. 94280, decided April 22, 1994; see also Texas Workers'
       Compensation Commission Appeal No. 93864, decided November 10, 1993,
       and decisions and cases cited therein. This is so because an injury is
       compensable even though aggravated by a subsequently occurring injury or
       condition. Appeal No. 94844, and cases cited therein. The mere existence of
       an intervening injury does not establish that the intervening injury is the sole
       cause of the claimant's condition. There may be more than one producing
       cause of the claimant's current condition, namely the original compensable
       injury and the subsequent noncompensable incident of May 31, 2002.
       Whether a claimant's medical problems reflect the continuing effects of a
       compensable injury or are solely caused by an intervening or subsequent
       event is a question of fact for the hearing officer to decide. Texas Workers'
       Compensation Commission Appeal No. 010965, decided June 7, 2001.


DWC Appeals Panel Decision No. 031039, decided June 17, 2003, 2003 TX Wrk.

Comp. LEXIS 839, 1-2. If the Insurance Carrier wished to limit the issue to the

current and later diagnosed, or resolved and recurrence of the anxiety and

5
    CR 16 CCH Decision.
                                                                                    6
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
depression, then the Carrier would have to bring that issue and argument through

the administrative process—the Carrier did not. This Court should not limit a

workers’ rights to have the issues be the same in Court as must be properly

exhausted before the DWC.

Issue is the Legal Issue Not Subarguments or Limited Facts within the Issue

     The Insurance Carrier cannot disavow the other “issue” which it challenged.

A disputed “issue” in the context of the Texas Workers' Compensation Act "is

used to refer to disputed matters related to the underlying workers'

compensation claim." Tex. Workers' Compensation Ins. Fund v. Tex. Workers'

Compensation Comm'n & Watts, 124 S.W.3d 813, 820 (Tex. App.--Austin 2003,

pet. denied). This Court rejected limiting entitlement to lifetime income benefits

to arguments of res judicata and collateral estoppel. This Court explained:

          The Commission responds that res judicata and collateral estoppel were
     merely "subarguments" of the issue of entitlement to lifetime income
     benefits. According to the Commission, all parties agreed that the only
     "issue" before the hearing officer was whether Watts was entitled to lifetime
     income benefits. The Commission argues that this same issue was the only
     issue before the appeals panel.

          We agree with the Commission.


Tex. Workers' Comp. Ins. Fund/Texas Workers' Comp. Comm'n v. Tex. Workers'


                                                                               7
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
Comp. Comm'n , 124 S.W.3d 813, 820 (Tex. App.--Austin 2003, pet. denied).



     This Court should follow its prior decision in TWCIF v. TWCC and the

requirements of the Texas Labor Code Chapter 410, which does not allow

limitation of the issue by argument or trial theories, especially when such

limitation was not raised at the DWC.



     The Plaintiff, the Insurance Carrier in this matter, lost at the workers’

compensation administrative level; therefore, the Insurance Carrier has the

burden to disprove the administrative findings on the issues presented to the

DWC.6 The burden of proof on issues regarding compensability, including “extent

of injury” disputes, income benefits, such as the disputed issues of entitlement to

impairment income benefits in this matter, is placed squarely upon the party

disputing the final decision of the DWC. §410.303.


      The Carrier’s designated adjuster and corporate representative conceded

that the Carrier was not disputing anxiety and depression resulting from the




6
 TEX. LAB. CODE §410.303; see City of Pasadena v. Olvera, 95 S.W.3d 494 (Tex.
App.--Houston [1st Dist.] 2002, no pet.)
                                                                                8
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
chemical exposure. 3 RR 278: 12-16. Specifically the Carrier’s representative was

asked:7

         Q. So the carrier is not disputing the chemical exposure with this notice,
         and they're not disputing the anxiety and depression resulted from the
         chemicalexposure. Is that correct?

         A. Correct.

Finally, the Carrier’s representative testified:8

         Q. Are you aware of any -- you said you weren't aware of any, I guess,
         doctors' names earlier – but any peer review doctor that said anxiety is not
         related to the original injury of May 22nd, 2003?

         A. Not that I'm aware of.

Q. So is there anything you can point to or that you're aware of may exist in your
file that you inherited that would be a medical doctor giving a reason for Leander
Independent School District to dispute anxiety on this claim?

A. No.

Q. Is there any reason that you may be aware of for a medical doctor giving the
basis for Leander Independent School District to dispute depression as it relates
to Mrs. Bubnis's May 22nd, 2003 injury?

A. No.

Mrs. Bubnis testified that she had not had anxiety and depression problems prior
to the date of the chemical exposure:9


7
  3 RR 178: 12-16
8
  3 RR 179: 8-21
9
  3 RR 209: 17-23
                                                                                  9
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
         Q. Did you ever have any problems with depression or anxiety before --

         A. No.

         Q. -- May 22nd of 2003?

A. No. I was the most optimistic person. I -- people would even tell me, you're so
happy-go-lucky and you're so -- you're smiling all the time.

The designated doctor confirmed: 10

         Q. There were no doubt in your mind that she had mental problems with
         anxiety and depression when you examined her?

         A. That's the only thing that was obvious on her examination. She was just a
         nervous wreck.

         Q. And the 30 percent impairment rating, that's not for any physical
         damage to her body. That was for interference with activities of daily
         living?

         A. Right.


Dr. Velasquez never disputed that Mrs. Bubnis developed anziety and depression
after her exposure:11

         Q. And you don't dispute that she actually developed anxiety and
         depression after her exposure?

         A. No, I don't dispute that.




10
     3 RR 79: 17-25
11
     3 RR 99: 19-21.
                                                                                  10
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
     Even the Carrier’s doctor, Dr. Kurt, who based his opinions on the wrong

assumptions and not the proven facts, admitted in both in his report and in direct

examination “I agree that Mrs. Bubnis can have anxiety and depression related to

her perceived sense of the kind of illness.” How the Carrier can even have a

legitimate basis to appeal the anxiety and depression which its own expert admits

is related is highly questionable if not frivolous.     The Texas Supreme Court has

“liberally construed” Section 401.011(26) of the Texas Labor Code to include

emotional distress that results in malfunctioning of the physical structure of the

body. GTE Southwest Inc. v. Bruce, 998 S.W.2d 605, 609 (Tex.1999). Employees,

such as Mrs. Bubnis, certainly may recover for an accidental injury due to mental

trauma when there is evidence of an undesigned, untoward event traceable to a

definite time, place. Id. at 610.



     Impairment Rating issue is separate and apart from the extent of injury and

does require permanence of a condition.               Appellant concedes that just

establishing the conditions of anxiety and depression does not necessarily

establish a permanent impairment to be rated from the conditions


                                                                                 11
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
       Appellant would emphasize that the WC Act requires an “impairment” to be

based on the employee’s condition after MMI and reasonably presumed to be

permanent. Tex. Lab. Code §401.011(23).

         Under Section 401.01, the Legislature’s definitions are as follows:

         (23) “Impairment” means any anatomic or functional abnormality or loss
         existing after maximum medical improvement that results from a
         compensable injury and is reasonably presumed to be permanent.
         (24) “Impairment rating” means the percentage of permanent impairment
         of the whole body resulting from a compensable injury.

The “impairment” must be from an examination done after MMI has been

reached and be based upon the doctor’s evaluation of the injured worker’s

condition after MMI and be considered permanent. 12

         Mrs. Bubnis would emphasize that the WC Act also requires an

“impairment” to be based on the employee’s condition after MMI and reasonably

presumed to be permanent. Tex. Lab. Code §401.011(23).              Appellant stands by

her prior arguments concerning improper contact with the designated doctor.

                                       Conclusion

         Appellant respectfully asks this Court to reconsider its determinations of

the anxiety and depression issue and not limit such to the “trial theory” of the

Insurance Carrier that an intervening incident occurred or that the anxiety and

12
     TEX. LAB. CODE § 408.123(a).
                                                                                    12
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
depression resolved and recurred because this was not this issue decided by the

DWC. The DWC merely decided properly that the anxiety and depression were

caused by the May 22, 2003 injury with no limitations. Appellant concedes this

motion would not cause a need to change this Court’s determination of the

impairment rating issue though Appellant stands by her original arguments on

that issue.

                                         Prayer

      Mrs. Bubnis respectfully prays that this Court grant her Motion for

Rehearing and at least reverse and render on the anxiety and depression issue

even if this Court does not change its opinion on the impairment rating issue.

                                  Respectfully submitted,

                                  /s/ Brad McClellan
                                  Bradley Dean McClellan
                                  Brad.McClellan@yahoo.com
                                  Of Counsel, Law Offices of Richard Pena, P.C.
                                  State Bar No. 13395980
                                  1701 Directors Blvd. Suite 110
                                  Austin, Texas 78744
                                  (512) 327-6884 telephone
                                  (512) 327-8354 facsimile
                                  Pro Bono Attorney for Michelle Bubnis, Appellant

                            CERTIFICATE OF COMPLIANCE

      In compliance with TEX. R. APP. P 9.4(i)(3), I certify that the foregoing

                                                                                 13
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
document measured for word count using the computer program used to prepare
the document and that the applicable word count was 2,541 words.

                                         /s/ Brad McClellan
                                         Bradley Dean McClellan


                               CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing was served on the counsel of record by
the method indicated below on May 11, 2015:
 Michael Donovan                                       Via eservice and email
 Burns Anderson Jury & Brenner, L.L.P.
 4807 Spicewood Springs Rd. Bldg 4,
 Suite 100
 Austin, TX 78759
 (512) 338-5363 facsimile
 mdonovan@bajb.com

                                         /s/ Brad McClellan
                                         Bradley Dean McClellan




                                                                                  14
No. 03-13-00196-CV Michelle Bubnis Appellant Motion for Rehearing
