Case Information
*0 RECEIVED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 3/10/2015 12:08:21 PM JEFFREY D. KYLE Clerk No. 03-14-00012-CV THIRD COURT OF APPEALS 3/10/2015 12:08:21 PM JEFFREY D. KYLE 03-14-00012-CV AUSTIN, TEXAS *1 ACCEPTED [4437537] CLERK IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS
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STATE OFFICE OF RISK MANAGEMENT, Appellant
v. KATINA A. EDWARDS, Appellee
On Appeal from the 53 rd Judicial District Court of Travis County, Texas Trial Court Cause No. D-1-GN-09-003089 Office of Injured Employee Counsel’s Amicus Curiae Brief Jessica Corna State Bar No. 24050865 Public Counsel Office of Injured Employee Counsel 7551 Metro Center Drive, Suite 100 Austin, Texas 78744 TEL: (512) 804-4170 FAX: (512) 804-4181 Jessica.Corna@oiec.texas.gov *2 TABLE OF CONTENTS TABLE OF CONTENTS..........................................................................ii
INDEX OF AUTHORITIES.....................................................................iii
INTEREST OF AMICUS CURIAE.........................................................1
ARGUMENT..............................................................................................3
CERTIFICATE OF SERVICE.................................................................9
CERTIFICATE OF COMPLIANCE……………………………………10
ii *3 INDEX OF AUTHORITIES Cases Page
Texas Workers’ Compensation Com’n v. Garcia , 893 S.W.2d 504 (Tex. 1995)......6
American Zurich Ins. Co. v. Samudio , 370 S.W.3d 363 (Tex 2012)……………….7
Statutes
Texas Labor Code
§404.104(3)……......................................................................................................1
Texas Labor Code §
408.0041(e)…………………………………………………………………………3
Texas Labor Code Chapter 410 Subchapter G..……………………………………4
Texas Labor Code §410.301(a)…………………………………………….4, 5, 6, 7
Texas Labor Code 410.255………………………………………………………5, 6
iii *4 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 Trial Court Cause No. D-1-GN-09-003089 Office of Injured Employee Counsel’s Amicus Curiae Brief TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:
The Office of Injured Employee Counsel (OIEC) submits this brief pursuant to Rule 11 of the Texas Rules of Appellate Procedure as amicus curiae and would
respectfully show the Court as follows:
INTEREST OF AMICUS CURIAE OIEC is the state agency charged with representing the interests of injured employees as a class as provided for in Texas Labor Code § 404.104(3). OIEC has
determined that the interests of injured employees as a class will be adversely
affected if Appellant is permitted to bypass the proper procedures to appeal a
decision of Texas Department of Insurance, Division of Workers’ Compensation
(Division) concerning compensability and entitlement to benefits.
The purpose of this brief is to bring to this Court’s attention additional considerations and consequences that will result if this Court permits the Appellant
to depart from following the proper procedures under the Labor Code to appeal a
decision of the Division. OIEC’s brief focuses on public policy considerations and
on the adverse consequences to injured employees of changing the legal and
procedural protections provided to them under Texas workers’ compensation law.
OIEC respectfully requests this Court reverse the decision of the trial court and remand the case to that court with instructions to process this case as an appeal
of a final decision of the Division. Amicus is not aligned with any party to the
underlying lawsuit. Amicus is a state agency; and as such, no fees have been or will
be paid for the preparation of this brief.
ARGUMENT The State Office of Risk Management (SORM) argues that this case should be remanded back to the Division because the Division’s hearing officer failed to
apply the proper legal standard in deciding whether the Appellee was entitled to
benefits due to her exposure to mold. Specifically, the carrier argues that the medical
evidence presented by the Appellee was insufficient as a matter of law to establish a
causal connection between her employment and her hypersensitivity pneumonitis.
Thus, SORM contends that the Division hearing officer denied it due process by
shifting the burden to it to disprove the Appellee’s injury.
This argument is fallacious. In the first instance, SORM has failed to prove that hearing officer applied an incorrect legal standard in this case. Appellee
presented medical evidence of a causal connection between her exposure to mold
and her injury, specifically, a causation opinion from a designated doctor who was
appointed by the Division to address that issue. The hearing officer found that
evidence was sufficient to prove a causal connection. In so doing, the hearing officer
made the finding that the designated doctor’s opinion was not contrary to the
preponderance of the evidence. That finding is what SORM points to in arguing that
the hearing officer improperly shifted the burden of proof; however, that argument
is without merit. At the administrative level, a designated doctor’s opinion is entitled
to presumptive weight in accordance with Texas Labor Code §408.0041(e), unless
the preponderance of the evidence is to the contrary. The hearing officer’s finding
is, in fact, a standard finding in cases where there is a designated doctor opinion on
an issue and it correctly reflects the law at the administrative level. Assuming for
the sake of argument, that as SORM contends, the designated doctor’s opinion does
not rise to the level of a valid expert opinion that is the argument that SORM should
have pursued on appeal. Disagreement with the hearing officer’s resolution of an
issue is not proof that the hearing officer applied an incorrect legal standard,
depriving SORM of due process. To the contrary, it is an assertion of error that the
hearing officer failed to correctly weigh the evidence and that the evidence was
insufficient to support her decision.
This alleged error is something that SORM was required to overturn by appealing the hearing officer’s decision pursuant to Texas Labor Code Chapter 410
Subchapter G. Due process does not ensure a process that is without error. At the
administrative level, SORM was clearly provided with notice and an opportunity to
be heard. Where, as here, a party is dissatisfied with the outcome at the
administrative level, its due process rights are protected by pursuing judicial review
in accordance with Section 410.301(a). SORM makes the bald assertion that its due
process rights cannot be protected in this process; however, it has wholly failed to
demonstrate why or how the statutorily mandated court, namely the District Court
in Fort Bend County, is not in a position to correct any legal error that may have
been made in this case under the modified de novo standard of review. Parties who
disagrees with a hearing officer decisions for reasons similar to those advanced by
SORM routinely seek to have those decisions overturned by pursuing an appeals
under Texas Labor Code Chapter 410 Subchapter G. SORM has failed to
persuasively explain what makes this case different from all other judicial review
cases of Division decisions concerning compensability and eligibility for income
benefits.
Further, there are good reasons that SORM should not be permitted to seek review of the hearing officer’s decision under §410.255. The Division points to
these reasons in its amicus curiae brief. Texas Labor Code §410.255 explicitly
provides that judicial review under this section is for only for issues “other than those
covered under Section 410.301(a).” §410.301(a) provides that a final decision of
the Division of regarding compensability or eligibility for or the amount of income
benefits shall be conducted under this subchapter. There is no doubt that the present
case is one concerning compensability and eligibility for income benefits. As such,
the statute clearly provides that judicial review of this decision must be sought
pursuant to §410.301(a), and not under §410.255. It is disingenuous at best for
SORM to argue that this is not an appeal regarding compensability or eligibility for
income benefits. Indeed, it is apparent that the desired outcome is a second hearing
at the Division and an ultimate determination that the Appellee did not sustain a
compensable injury. It appears that SORM believes it has a better likelihood of
obtaining that result at the Division rather than at the district court; however, that
does not change the fact that the option of a remand to the Division is not legally
available.
Allowing SORM and other carriers to appeal final decisions of the Division under §410.255 would have a number of adverse consequences to injured
employees. First, and foremost, it would deprive injured employees of their right to
have a jury on judicial review. The importance of the right to a jury cannot be
overstated and was itself a major reason the Supreme Court found that the present
workers’ compensation system constitutional in Texas Workers’ Compensation
Com’n v. Garcia , 893 S.W.2d 504, 513 (Tex. 1995). An appeal under § 410.255
would also force injured employees into court in Travis County rather than their
county of residence as is the case under §410.301(a). The importance of venue rights
is not merely for convenience, which itself would be a substantial consideration in a
number of cases, but because of the significance of having the jury comprised of
people who reflect the views and values of the local community. Finally, there is a
different standard of review under §410.255 (substantial evidence) than under
§410.301(a) (modified trial de novo ). The modified de novo standard, provides
parties a better opportunity to correct error made at the administrative level than the
more restrictive substantial evidence review. Permitting SORM to pursue its appeal
outside the statutorily mandated process would result in confusion and forum
shopping that have no place in the workers’ compensation system. There is simply
no question as to the appellate process that should have been followed in this case.
No party should be permitted to decide it wants to follow an alternate process,
particularly when that process has the consequence of forcing an injured employee
to litigate outside his or her county of residence without a jury.
Finally, OIEC agrees with Appellee that there is no provision for remanding a case back to the Division that has gone to judicial review, under either §410.301(a)
or under §410.255. The only authority for such a remand is American Zurich Ins.
Co. v. Samudio , 370 S.W.3d 363 (Tex. 2012) and such a remand is limited to cases
where there is no legally valid impairment rating on judicial review, which is clearly
not the case here. The proper course to take in the present case is a remand back to
the trial court with instructions to transfer the case to a court of competent
jurisdiction in Fort Bend County (the county of Appellee’s residence at the time that
disability began), and to have that court review the final decision of the Division
pursuant to §410.301(a) under a modified de novo standard of review.
Respectfully submitted, _/s/Jessica Corna_______ Jessica Corna State Bar No. 24050865 Public Counsel Office of Injured Employee Counsel 7551 Metro Center Drive, Suite 100 Austin, Texas 78744 TEL: (512) 804-4170 FAX: (512) 804-4181 Jessica.Corna@oiec.texas.gov *12 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Office of Injured Employee Counsel’s Amicus Curiae Brief has been sent by electronic mail,
on this 10 th day of March, 2015, to the following:
Barbara L. Klein Bradley Dean McClellan
J. Red Tripp Law Offices of Richard Pena, P.C.
State Office of Risk Management 1701 Directors Blvd., Suite 110
P.O. Box 13777 Austin, TX 78744
Austin, TX 78711-3777 (512) 327-6884 office
(512) 936-1516 office (512) 694-8843 cell
(512) 370-9189 fax (512) 327-8354 fax
Barbara.Klein@sorm.state.tx.us Brad.McClellan@yahoo.com
Red.Tripp@sorm.state.tx.us Attorney for Appellee
Attorneys for Appellant
Dennis M. McKinney
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
Attorney for Amicus Curiae , Division of Workers’ Compensation
/s/ Jessica Corna_____________ Jessica Corna *13 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), I hereby certify that this
brief contains 1904 words (counting all parts of the document). This is a
computer-generated document created in Microsoft Word, using 14-point typeface
for all text. In making the certificate of compliance, I am relying on the word
count provided by the software used to prepare the document.
/s/ Jessica Corna_____________ Jessica Corna