Court of Appeals Finds Carrier’s Suit for Judicial Review to be Moot
The Austin Court of Appeals has ordered the dismissal of a carrier’s appeal from a suit for judicial review on the grounds that the case became moot. The case is State Office of Risk Management v. Edwards, 03-14-00012-CV (Tex. App.—Austin, February 19, 2016).
The State Office of Risk Management disputed a workers’ compensation claim filed by Katrina Edwards in which Edwards claimed that she sustained an injury – hypersensitivity pneumonitis – when allegedly exposed to black mold in the course and scope of her employment. The Division found the claim to be compensable.
SORM filed suit for judicial review. Incident to that suit, SORM also sought “review of the improper application of the burden of proof . . . at the administrative level.” SORM recast its complaint regarding “the application of the burden of proof” in the underlying compensability dispute as a stand-alone “due process” complaint. This change, according to SORM, enabled it to proceed under the alternative judicial-review mechanism that the Legislature has provided “[f]or all issues other than those covered under Section 410.301(a).” See id. § 410.255. Besides fixing its potential venue problem, this pleading amendment, SORM reasoned, enabled it to avoid the modified-de-novo review standard and jury-trial right that the Legislature has provided claimants in cases governed by Subchapter G1 and instead proceed under the substantial-evidence form of review that applies under Section 410.255. See id. § 410.255 (“[J]udicial review shall be conducted in the manner provided for judicial review of a contested case under Subchapter G, Chapter 2001, Government Code,” and “is governed by the substantial evidence rule”); see also Tex. Gov’t Code § 2001.176(b)(1) (mandatory Travis County venue).
The court held that SORM’s amended pleading resulting in mooting the appeal.
By dropping its claim seeking review on the ultimate issue of whether Edwards’s injury was compensable, SORM effectively mooted the subsidiary question of whether the hearing officer had misapplied the burden of proof when deciding the underlying compensability dispute. Given the posture of the underlying dispute, even if SORM were correct that the hearing officer had misapplied the burden of proof, such error could cause harm—and the parties would have a justiciable interest in the resolution of the question—only in the context of a live dispute regarding the ultimate issue of compensability. In short, SORM essentially seeks an advisory opinion, which the separation-of-powers doctrine prohibits courts from rendering. See Tex. Const., art. II, § 1; see also Texas Ass’n of Bus. v. Texas Air Control Bd., 852 S.W.2d, 440, 444 (Tex. 1993) (explaining constitutional prohibition against advisory opinions).
Consequently, this is a “theoretical dispute,” a dispute that does not involve “a real and substantial controversy involving a genuine conflict of tangible interests”—not a justiciable controversy.
The case leaves open the question that SORM was seeking an answer to: what is the procedural mechanism that must be used when the Division misapplies the burden of proof at a CCH, thus forcing a carrier on judicial review to disprove an issue that the claim has never properly proved?
FOLIO
