                                                                                 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
____________________________________________________________

               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



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




                                         //s// J. Red Tripp
                                         J. Red Tripp




                                    11
