Carrier’s Judicial Review Suit Failed to Overturn DWC on Extent of Injury
A new decision from the Dallas Court of Appeals illustrates the importance of winning an extent of injury case at the Division level as well as how difficult it can be for a carrier to reverse a Division decision on judicial review. The court, in Ace American Ins. Co. v. Elmer 05-19-00386-CV (September 15, 2020) affirmed a decision in favor of the claimant.
Elmer injured himself at work when his foot slipped while stepping out of a tractor-trailer (the work injury). He reported the incident approximately an hour-and-a-half later when he checked in with his dispatcher regarding his route to Waco. Elmer stopped several times along his route to get ice to relieve pain in his shoulder and knee. After finishing his route and dropping off the truck, his wife took him to the emergency room. Elmer eventually required surgeries on his left knee and left shoulder.
Subsequently, Elmer claimed he suffered chronic pain, anxiety, or depression related to the work injury. In a Contested Case Hearing, Elmer presented multiple reports from workers’ compensation doctors and medical care providers who had examined him and determined he suffered from chronic pain syndrome, depression, and anxiety as a direct result of the effects of the compensable injury. Elmer was treated for chronic pain syndrome, depression, and anxiety by several medical providers. At least four experts offered opinions in Elmer’s favor, including the Division’s designated doctor.
The Division found that Elmer’s compensable injury extended to and included the disputed conditions. The claimant exhausted his administrative remedies and filed suit for judicial review.
In a bench trial (a case tried to the court rather than to a jury), the carrier offered the testimony of its post-DD RME, who disagreed that the claimant had sustained the disputed conditions as a result of his compensable injury. The claimant was the only witness to testify in his own behalf. The trial court found in favor of Elmer and entered findings of fact and conclusions of law. In its Final Judgment, the trial court stated:
Defendant Clayton Elmer credibly testified as to his treatment of chronic pain, depression and anxiety as part of his workers’ compensation injury, and of examples of pain interfering with acts of daily living, as well as difficulties with his left shoulder and left knee. He testified he was diagnosed and treated for these conditions after his 2014 compensable injury by his workers compensation doctors, and before a subsequent injury in 2015 at physical therapy.
The carrier appealed, arguing that after it presented its expert’s report and deposition testimony, the burden shifted back to Elmer to present expert testimony to contradict the opinion and establish a positive connection between the work injury and Elmer’s depression, anxiety disorder, and chronic pain syndrome. In other words, the carrier argued that, because Elmer did not present contradictory expert testimony, its expert witness conclusively established the lack of causation.
The court of appeals disagreed, concluding that the carrier’s expert report was internally inconsistent and, therefore, not conclusive. The court wrote: “To the extent the trial court was presented with conflicting evidence, it was free to believe one witness and disbelieve others and resolve conflicts in testimony of any witness.”
Based on the extent of injury findings, the court of appeals affirmed the trial court’s adoption of the designated doctor’s certification of MMI and 45 percent impairment rating. The court also affirmed the trial court’s award of $44,400 in actual and conditional attorneys’ fees to Elmer’s counsel.
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