Court Finds Plastic Surgeon is Qualified to Evaluate Eye Injury

The Houston 14th Court of Appeals has determined that a plastic surgeon is qualified as a designated doctor to evaluate an eye injury. In Ballard v. Arch Ins. Co. (No. 14-14-00647-CV, October 29, 2015) the claimant was delivering auto parts for his employer when a customer, angry about the delivery of an incorrect order, hit him in the left eye with a box. The claimant sought medical treatment from two ophthalmologists who diagnosed a contusion. The carrier agreed that the contusion was a compensable injury and paid for the treatment. The claimant alleged that the contusion aggravated his pre-existing glaucoma, causing the intraocular pressure to spike in his left eye, which he claimed resulted in permanent blindness in his left eye. The Carrier contended that claimant’s vision loss resulted from his pre-existing glaucoma, not the compensable injury.

The Division appointed a plastic surgeon as a designated doctor to examine the claimant on the issues of MMI, IR, and extent of injury. The designated doctor concluded that the compensable injury did not include an aggravation of the claimant’s preexisting glaucoma, that the claimant reached MMI, and that the claimant’s permanent IR was 0 percent. The claimant exhausted his administrative remedies and filed suit for judicial review. At trial the carrier filed a traditional no-evidence motion for summary judgment in which it contended, among other things, that the designated doctor had the appropriate credentials to address claimant’s eye injury and that claimant’s eye injury did not extend to his glaucoma. The trial court granted the carrier’s summary judgment motion. On appeal, the court of appeals affirmed the trial court’s ruling.

Texas Labor Code section 408.0043(b) provides that a designated doctor “who reviews a workers’ compensation case must hold a professional certification in a health care specialty appropriate to the type of health care that the injured employee is receiving.” Id. §§ 408.0043(b), 408.0043(a)(4).

In support of his argument that Dr. Rothenberg, as a plastic surgeon, is not qualified to perform an eye examination, Ballard argues that Texas Administrative Code section 127.130(b)(6) requires an eye exam to be conducted by an ophthalmologist. The provision does not apply in this case. See Tex. Admin. Code § 127.130(b)(6) (West, Westlaw through 2015 R.S.). It applies to eye examinations conducted after January 1, 2013, and the exam in this case occurred in January 2011. See id. But, Ballard argues even if the statute does not apply, this statute shows the Legislature intended for eye exams to be conducted by ophthalmologists. Section 127.130(b)(6) provides, “[t]o examine injuries and diagnoses relating to the eyes, including the eye and adnexal structures of the eye, a designated doctor must be a licensed medical doctor, doctor of osteopathy, or doctor of optometry.” Dr. Rothenberg is a licensed medical doctor. Accordingly, even if section 127.130(b)(6) applied to this case, it would not preclude Dr. Rothenberg from examining Ballard’s injuries. See id.

Dr. Rothenberg holds a professional certification in plastic surgery and his experience matrix indicates he has experience in performing surgery on the eyes, providing follow-up care for eyes, and prescribing eye medication after surgery. The hearing officer indicated the evidence strongly supports a determination that 6 Dr. Rothenberg is qualified to evaluate Ballard’s injuries. Ballard was hit in the eye and suffered a contusion. Dr. Rothenberg is a specialist certified in surgery with experience performing eye surgery and taking responsibility for follow-up, including prescribing medication. Dr. Rothenberg had the qualifications to evaluate Ballard’s impairment and date of MMI related to the contusion.

The court also held that claimant waived his argument that the designated doctor did not perform an appropriate evaluation because, it concluded, he had not raised this issue before the Division.

Ballard now seeks to raise the issue of whether Dr. Rothenberg’s report should be excluded for failure to follow the American Medical Association guidelines. We conclude this issue was not before the Appeals Panel because Ballard did not raise the issue at the contested case hearing and the Appeals Panel was limited to the issues presented at the contested case hearing. See Tex. Lab. Code Ann. § 410.151(b) (West, Westlaw through 2015 R.S.); Trinity Universal Ins. Co., 2004 WL 744417, at *3 (noting that although waiver was raised throughout the administrative process, the particular waiver claim raised in the judicial process had not been raised); Krueger v. Atascosa County, 155 S.W.3d 614, 620 (Tex. App.—San Antonio 2004, no pet.) (holding claimant could not raise 8 issue not decided by Appeals Panel). By failing to present this issue to the Appeals Panel, Ballard waived the issue. See Tex. Lab. Code Ann. § 410.302 (b) (providing “[a] trial under this subchapter is limited to issues decided by the appeals panel and on which judicial review is sought”); Am. Motorists Ins. Co., 63 S.W.3d at 803–04; Trinity Universal Ins. Co., 2004 WL 744417, at *3; Southern Ins. Co.,249 S.W.3d at 16.

A number of intermediate courts of appeals have struggled with the argument/issue question and, at some point, the Texas Supreme Court is going to have to clarify what constitutes an “issue” for purposes of waiver and finality.