Houston Court Limits Evidence Available in Judicial Review of Impairment Ratings
A Texas Court of Appeals has reversed a trial court judgment in a long-running dispute over the validity of an injured workers’ impairment rating and, in so doing, has emphasized the limited evidence available to employees who challenge DWC impairment rating determinations when judicial review is sought. The decision in American Zurich Ins. Co. v. Samudio, No. 01-15-00478-CV, decided January 26, 2017, comes after the Texas Supreme Court’s 2014 remand of the dispute, which arguably ordered the trial judge to remand the case to the Division.
The case originated with a dispute over Samudio’s 20 percent impairment rating 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 that 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 impairment rating 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 impairment rating. Zurich appealed to the Court of Appeals. That court agreed with Zurich.
On rehearing, the court emphasized how the statutory limitations on additional evidence would impact the ability of a party to overturn the Division’s impairment rating determination on judicial review:
[A]s the Texas Supreme Court emphasized, “section 410.3[06](c) limits the evidence that the trial court may consider in reviewing an impairment rating assigned by the Division and precludes the court from assigning a rating that was not presented to the agency. . . .” American Zurich, 370 S.W.3d at 369; TEX. LAB. CODE ANN. § 410.306(c) (stating that “evidence of extent of impairment shall be limited to that presented to the division”). Here, it is undisputed that Dr. Rodriguez’s affidavit was not presented to the Division. Because Dr. Rodriguez’s affidavit was not presented to the Division, the trial court could not consider it. See Bell, 311 S.W.3d at 512 (noting that doctor’s answer to deposition on written questions that answered impairment rating based on Guides was not before the Division); Ausaf v. Highlands Ins. Co., 2 S.W.3d 363, 367 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (amended certification of maximum medical improvement not admissible in district court because it was not evidence presented to Division); Deleon v. Royal Indem. Co., 396 S.W.3d 597, 602 (Tex. App.— Austin 2010, pet. granted) (holding that trial court erred in admitting doctor’s deposition on written questions not presented to Division, but that error was harmless because impairment rating based on Advisories and thus invalid), rev’d on other grounds, DeLeon v. Royal Indemnity Co., 396 S.W.3d 527 (Tex. 2012). Zurich likewise relies on deposition testimony that Dr. Machado gave on September 24, 2007, which was taken after the Division’s hearing. For the same reasons, the trial court could not consider the deposition evidence. See TEX. LAB. CODE ANN. § 410.306(c).
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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).
Samudio also argued on rehearing that the trial court should have been permitted to consider an affidavit from a physician when that report had not been offered into evidence at the CCH. Samudio argued that the report could be considered because it could be found in the Division’s claim file at the time of the CCH. The report did not purport to assign an impairment rating, but Samudio contended that it offered a basis to authorize the rating the Division had adopted. The Court of Appeals rejected the argument.
The Court of Appeals has rejected the validity of the treating doctor’s impairment rating, and in so doing, has rejected the impairment rating that the Division adopted. It has expressly concluded that there was no valid impairment rating offered at the Division level. Accordingly, it remanded the case to the trial court for further proceedings consistent with those conclusions. Presumably, when the case gets back to the trial court level, the court will abide by the instructions of the Texas Supreme Court and the Court of Appeals and remand the case to the Division.
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.
The claimant has the opportunity to file a motion for rehearing with the Court of Appeals. Failing a successful effort in that regard, the claimant can file a petition for review with the Texas Supreme Court. The decision whether to grant such review is discretionary on the part of the Supreme Court.
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