1 

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 

53rd 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 

ACCEPTED

03-14-00012-CV

3703647

THIRD COURT OF APPEALS

AUSTIN, TEXAS

1/8/2015 4:20:48 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/8/2015 4:20:48 PM JEFFREY D. KYLE Clerk
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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 

 

 

 
3 

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 

 
4 

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. 
5 

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. 
6 

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 

53rd 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: 
7 

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 
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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 
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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. 
10 

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 

 
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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