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 53 rd Judicial District Court of Travis County, Texas

APPELLANT’S RESPONSE TO TEXA S 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

CLERK2 TABLE OF CONTENTS Page

Table of Contents ...........................................................................2

Index of Authorities ........................................................................3 Statement of Fact s .................................... ....................................4 Response Issue Presen ted..............................................................6 Response Issue I ..................................................................6 The Texas Department of Ins urance, Division of Workers’ Compensation, deprived SORM of its due process rights to a fair hearing by erroneously plac ing 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 compensab ility or indemnity benefits, but concerns the proper applicat ion of the burden of proof. Certificate of Comp liance...............................................................10 Certificate of S ervice.....................................................................113 INDEX OF AUTHORITIES

CASES Schaefer v. Texas Employers’ Insurance Association , 612 S.W.2d 199 (Tex. 1980)................................................8, 9

STATUTES Tex. Labor Code §410.25 5..............................................................84 STATEMENT OF FACTS Ms. Katina Edwards, Appellee, was employed as a Child Protective Services Specialist for approximatel y one month. (Tr. 20:9-10; Tr. 28:7- 11). 1 On June 17, 2008, duri ng 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 diag nosed 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 co mpetent 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 envi ronment 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 para graph 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, Divis ion of Workers’ Compensation.5 assumptions, without reference or cita tion to any medical based evidence.

The claim was therefore denied. The entirety of the medical eviden ce of causation offered is as

follows: The patient has a lung biopsy and this showed hypersensitivity pneumonitis. This could definite ly be caused by exposure to mold. Usually a patient would have been exposed previously before this occurs. And with he r 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 sust ained a compensable injury in the form of an occupational disease, hypersensitiv ity pneumonitis, on J une 17, 2008; and that the Appellee had disability result ing from a compensable injury from August 22, 2008 through the date of the cont ested case hearing. Appellant appealed this determinati on citing legal error. On August 13, 2009, the DWC Appeals Panel allo wed the determinations of the hearing officer to become final without issuing any further opinion.

2 AR as used in this brief designates t he “Administrative Record” of the Texas Department of Insurance, Divisi on 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 53 rd Judicial District Court of Travis County, Texas

APPELLANT’S RESPONSE TO TEXA S 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 Offi ce 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 Ins urance, 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 s he 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 Ju ne 17, 2008 and resulting disability, despite the absence of legal and re quired 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 for8 DWC to argue that “injured workers woul d be stripped of their rights to a jury trial... in any case in which th e 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 substantia l evidence appeal under Tex. Labor Code §410.255 would fail if the Court deter mined that DWC did not misapply the

law. The “relief” DWC contends is available to Appellant is for Appellant to execute the overwhelming task of havi ng to prove a negative - that the Appellee’s work environment did not caus e 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 A ppellant can obtain proper relief for this violation of due pro cess 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 the9 compensability issues before the Dist rict 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 s ubstantial 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 DW C’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 th e word count on the computer program used to prepare the document. //s// J. Red Tripp J. Red Tripp11 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of Appellant’s Reply Brief

was served via electronic servic e pursuant to the TRAP on the 8 th 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