Court of Appeals Rejects IR Evidence Not Offered at the Division

A Texas Court of Appeals has reversed the judgment of a trial court in an MMI/IR suit for judicial review because the evidence upon which the trial court relied in rendering judgment for a 20 percent IR had not been offered into evidence at the contested case hearing. The decision in American Zurich Insurance Co. v. Samudio (No.  01-15-00478-CV), decided August 25, 2016, followed a successful trip to the Texas Supreme Court for the carrier in 2012. On remand from that decision, the carrier once again prevailed by reversing the trial court’s ruling.

The case originated with a dispute over Samudio’s 20 percent IR certification, which had been calculated by the designated doctor and the Division by using the now discredited 2003 DWC Advisories. In 2012, the Texas Supreme Court ruled a “trial court may remand to the Division to allow it to determine a valid impairment rating if the court concludes that no valid impairment rating was presented to the agency in the underlying contested case.” The supreme court stated that the trial court is “deciding a purely legal question: whether the proffered rating was made in accordance with statutory requirements.” It concluded that, “If the trial court determines that no rating made in conformance with the Guides was presented to the agency, it should remand to the Division for a new impairment determination.”

After the Supreme Court had remanded the case to the trial court, the parties filed cross-motions for summary judgment on the issue of whether there had been a valid IR certification offered at the Division level. Samudio relied upon the opinion of a treating doctor, Dr. Rodriguez, who provided an affidavit in which he essentially concluded that the designated doctor’s 20 percent IR could be justified under the AMA Guides by using a different theory or analysis. The carrier argued that the trial court was prohibited by statute from considering the treating doctor’s opinion. The trial court relied upon Dr. Rodriguez’ opinion and adopted a 20 percent IR. Zurich appealed to the court of appeals. That court agreed with Zurich.

Samudio relies on Rodriguez’s affidavit and medical report to show that Samudio had a compression fracture of greater than 50%, and thus, Dr. Machado’s 20% impairment rating is valid. This evidence that Samudio presented at summary judgment is precisely the type of evidence that the statute forbids, and therefore, the trial court could not consider it. See TEX. LAB. CODE ANN. § 410.306(c).

Accordingly, we conclude that the trial court erred in granting summary judgment for Samudio. We further conclude that Zurich demonstrated as a matter of law that the Division did not enter a valid impairment rating.

Because there was not a valid IR that the trial court could adopt, the court of appeals reversed the trial court’s judgment and remanded the case for further proceedings. In accordance with the Texas Supreme Court’s judgment in the 2012 appeal the trial court should remand the case to the Division for the claimant to attempt to provide a valid IR.

In addition, because the claimant did not prevail on the appeal, the court of appeals ordered that the carrier was not liable for fee-shifted attorneys’ fees.