DOCKETNO. 03-13-00196-CV
INTHE COURT OF APPEALS FORTHE THIRDDISTRICT OF TEXAS AUSTIN, TEXAS
MICHELLEBUBNIS, Appellant,


### v. LEANDERINDEPENDENT SCHOOL DISTRICT, Appellee.
On Review from The !26thJudicial District Courtof Travis County, Texas CauseNo. D-1-GV-09-001868
APPELLEE'SRESPONSE TO APPELLANT'S MOTION FORREHEARING

Michael J. Donovan State BarNo. 05991050 Burns, Anderson, Jury & Brenner, L.L.P. P.O. Box26300 Austin, Texas 78755-6300 (512) 338-5322 (512) 338-5363- facsimile Counsel for LeanderIndependent School District ACCEPTED 03-13-00196-CV 5364994 THIRD COURT OF APPEALS

AUSTIN, TEXAS 5/20/2015 4:01:48 PM JEFFREY D. KYLE

CLERKTO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS: Leander ISD, Appellee and Plaintiff below, respectfully submits this Response to Appellant's Motion for Rehearing and asks the Court ofAppeals to deny Appellant's Request. The trial court did not change or limit the wording of the issue presented to thejury in any form from the issue that was presented at the Texas Department of Insurance, Division of Workers' Compensation level. Therefore, there is no merit to Appellant's argument the issue was changed or limitedin any manner. 

### I. Because the Appellant refers to the record while making some assertions, Appellee feels it might be best served to remind this court of some ofthe more relevant evidence that was presentedto thejuryinthis case. Michelle Bubnis did suffer from some anxiety/depression symptoms for a period covering September 2003 until August 2005, according to the medical reports admitted. 1 A year andhalflaterMs. Bubnis' depressive symptomsreturned and she was treated in February 2007, for these symptoms as well as new

15 CR 31, 48, 49, and 38. 1symptoms resulting from electro-magnetic sensitivity. 2 The incident involving the opening ofanewtelevision from itspackage occurred aroundDecember 2006.3 Leander ISD did not contest to the initial treatment for anxiety and depression after the May 23, 2003 incident, but its workers' compensation file was closed laterthat same year due to inactivity.4 But afterbeing confronted with bills presented to them by Mr. Bubnis' husband, for the first time, in September 2007 for past treatment since 2004, and a demand for current treatment to be picked up by the school district, the district subsequently denied this additional treatment as being related to her compensable injury ofMay 22, 2003. 5 The school district subsequently had a peer review performed by a toxicologist, Dr. Thomas Kurt, in October 2008. Dr. Kurt confirmedMs. Bubnis may be inneed ofZoloft due to her anxiety/depression complaints, but because these symptoms were due to her present diagnosis of electro-magnetic sensitivity, which Dr. Kurt found "scientifically unsubstantiable" in the medical literature he reviewed, he did not
see these as related to her compensable injury. 6 Ms. Bubnis was subsequently examined by a toxicologist, Dr. Patricia Rosen, following a response to a letter of clarification that was sent by the Division of Workers' Compensation to the

2 RR44. 3 RR 107. 4 3RRI07, 110,111. 5 5 RR 10 and 11. 6 RR 121. 2designated doctor, Dr. Velazquez, in January 2009.7 Ms. Bubnis never presented for the examination ofDr. Rosen, so the toxicologist had to write herreport based
on recordreviews alone.8 Dr. Velazquez agreedwithDr. Rosen's conclusions, and in his amended report stated Mr. Bubnis' anxiety and depression, and her isolated lifestyle, were the result ofthe toxic encephalopathy diagnosis, and not her 2003

• . 9 lllJUry.

ARGUMENT & AUTHORITIES At the Contested Case Hearing held at the Division of Workers' Compensation in May 2009 the issue presented was worded as 

### "Does the compensable injury of May 22, 2003 extend to include toxic encephalopathy, anxiety and depression?" The only change made in this issue when it was presented to the jury in November 2012 was that it was put in the negative form due to the school district having the burden ofproofat that time, so the issue was worded, 

### "Does the compensable injury not extend to include anxiety and/or depression?" 10 Ms. Bubnis made no objection to the wording ofthe issue at the administrative trial at the Division ofWorker's Compensationnor did she objectto the wording ofthejury submission regarding its use ofthe presenttense "does" as

7 RR 110. 8 RR113. 9RR75, 79, 83. 10 RR247,248. 3comparedto any alternate wordingthat could have been submitted byMr. Bubnis, such as "at any time after May 23, 2013" or "did the compensable injury ever extendto include anxiety anddepression"? The school district has never attempted to limit the issue differently, or as a sub-argument, than the issue that was first presented at the Commission level. Rather, its position has always been the dispute in this case is not whether the symptoms the claimant suffered in September 2003 to August 2005 and the treatment received during that time period were related to her 2003 injury, but instead whetherthere was any casual connectionbetweenher complaint/symptoms and treatment rendered from February 2007 

### onward. There is no dispute the complaints she had in early 2007, which were accompaniedby a diagnosis oftoxic encephalopathy and chemical insensitivity, were the same symptoms and diagnosis she was dealing with during the time the administrative trial was held inMay2009
as well as when thejuryheardthe evidence inNovember 2012. The school district has always felt the claimant would not be able to provide sufficient, credible evidence to show any causal connection between her medical condition from 2007 onward andthe initial injurythat occurred inMay2003. Contrary to Appellant's assertions, the school district never relied on any "sole cause" defense, or alleged that any intervening incident was the sole cause of her subsequent condition. The school district's thought process was it is just as
4irrational to believe that an opening up ofcabinet in the middle school chemistry classroom could result in such severe symptoms as it is to think such a medical condition may be brought onby opening up a newly delivered television set from its package. Instead, the school district decided the evidence was stronger the real
cause of the claimant's subsequent problems was her diagnosis of toxic encephalopathy which had arisen somewhere between late 2006 and 2007, for
reasons unknown. The only agreed fact regarding this diagnosis between the parties was that it was notconsideredpart ofher compensable injury, as evidenced by Ms. Bubnis never making this diagnosis part of her judicial review lawsuit. This fact was told to the jury. The jury therefore had the right to make the reasonable inference, as succinctly put by this court, that whatever initial anxiety and depressionMs. Bubnis suffered as a result ofthe 2003 compensable injury had resolved, either from treatment or on its own, and that she had developed a new bout of anxiety and depression which was not connected in any way to her workers' compensationinjury. Despite the efforts ofMs. Bubnis, she can not require an insurance carrierto plead an inferential rebuttal of sole cause and try to meet the sole cause burden; instead a carrier can rely on an injured worker to have to continually meet his or herburden to prove a causation connectionbetween the injury and the subsequent medical treatment orphysical incapacities. The Supreme Court answeredthis very
5question in the case of 

### Texas Workers' Compensation Ins. Fundv. Mandlebauer, 988 S.W.2d 750 (Tex. 1999). Inthat case the insurance carrier assertedthe injured worker lacked standing to complain about the trial court's failure to submit any instruction on the sole cause defense, and the courtheld "we agreedthis complaint
was not Mandlebauer's to raise." Nowhere in the court record or anywhere in the school district's pleadings or brief from 

### either party, is the term "sole cause" raised, and therefore itis an improper for the injuredworkerto attempttoraisethis theory for the

### first time on appeal, in attempt to assert the school district has not meetits burden ofproofonthe issues presentedtothejury. PRAYER Appellee respectfully prays that this Court deny Appellant's Motion for Rehearing. Respectfully submitted, BURNS ANDERSONillRY& BRENNER,L.L.P. P.O. Box 26300 Austin, Texas 78755-6300 (512) 338-5322 (512) 338-5363 (Facsimile)


### Is/Michael J. Donovan Michael J. Donovan State BarNo. 05991050 mdonovan@bajb.com Attorneys for LeanderIndependent School District
6CERTIFICATE OF SERVICE I certifY a copy of the foregoing document was served on the counsel of 

### -"- recordbyeservice and email onthis 

### 2Q' day ofMay, 2015. BradleyMcClellan Law Offices ofRichardPerra, PC 1701 Directors Blvd. #110 Austin, TX 78744 /s/Michael J. Donovan MichaelJ. Donovan

CERTIFICATE OF COMPLIANCE The undersigned hereby certifies the foregoing document is in compliance with Texas Rule of Appellate Procedure 9.4 and consists of 1,498 words. This documentwas generatedusing Word2010.

7 Is/Michael J. Donovan Michael J. Donovan