                                  NO. 07-03-0360-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                     JUNE 11, 2004

                         ______________________________


                     STATE OFFICE OF RISK MANAGEMENT
            (A SELF-INSURED GOVERNMENTAL ENTITY), APPELLANT

                                            V.

                        DEBORAH LEDBETTER, APPELLEE
                       _________________________________

           FROM THE 58TH DISTRICT COURT OF JEFFERSON COUNTY;

               NO. A166492; HONORABLE JAMES MEHAFFY, JUDGE

                         _______________________________

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                               MEMORANDUM OPINION


      The State Office of Risk Management brings this appeal challenging a summary

judgment in favor of Deborah Ledbetter reversing the denial of her workers’ compensation

claim by an appeals panel of the Texas Workers’ Compensation Commission in December

2001. Agreeing with both parties that reversal is required, we will do so.
       The only brief filed in the appeal is entitled “Joint Brief and Agreed Motion to

Remand.” In it the parties assert the trial court erred in reviewing the appeals panel

decision under the substantial evidence standard pursuant to Section 410.255 of the Labor

Code rather than the modified de novo standard set out in Section 410.301 of that code.

Tex. Labor Code Ann. § 410.255, .301 (Vernon 1996).


       The record shows appellee was an employee at Lamar University. In August 2000

she brought a workers compensation claim asserting she was suffering from the effects

of “sick building syndrome,” specifically that she was injured by exposure to mold in her

workplace. The claim was denied after a contested case hearing and appellee appealed

that decision to an appeals panel of the Workers’ Compensation Commission. The

appeals panel’s decision noted the question of whether an injury has occurred is one of

fact and reviewed the hearing officer’s decision under the factual sufficiency standard. The

appeals panel denied appellee’s claim in December 2001.


       Appellee filed her original petition in district court in January 2002. Both parties filed

motions for summary judgment in March 2003. Appellant’s motion was a no-evidence

motion pursuant to Rule of Civil Procedure 166a(i) asserting there was no evidence of a

causal connection between appellee’s conditions and her employment. Appellee’s motion

asserted the court was limited to performing a substantial evidence review of the

administrative record from the appeals panel proceeding. The trial court denied appellant’s

motion, granted appellee’s motion, and rendered final summary judgment for her on April

22, 2003.



                                              -2-
       Appellant filed a motion for new trial May 27, 2003,1 arguing appellee failed to

establish her claim and the trial court erred in denying its motion for summary judgment.

The parties’ brief asserts appellant first challenged the court’s use of the substantial

evidence standard at a June 18 hearing on its motion for new trial. In response to a request

for additional briefing on the issue, appellee’s counsel sent a letter dated June 24, 2003

conceding the court applied the wrong standard and stating an expectation the court would

grant appellant’s motion for new trial.2


       No order granting new trial was signed and appellant perfected this appeal. Our

review of the record convinces us reversal is required.


       It is undisputed the core issue of this litigation is the compensability of appellee’s

injuries. In Texas Workers’ Compensation Commission v. Garcia, 893 S.W.2d 504 (Tex.

1995), the court held trial of such issues is governed by Section 410.301 of the Labor

Code. 893 S.W.2d at 528. Finding the holding in Garcia dispositive, we reverse the

judgment of the trial court and remand to that court for further proceedings consistent with

this opinion.


                                           James T. Campbell
                                              Justice




       1
       This motion was timely because it was mailed on May 22, 2003 and received within
10 days. See Tex. R. Civ. P. 5; 329b(a).
       2
        This letter is not a part of the record in this appeal but a copy has been attached
to the parties’ brief.

                                             -3-
