Financial Insurance Co. v. Ragsdale

          Appeal from the 143rd District Court of Ward County, Texas (TC# 03-05-20468-CVW)

          Before Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.

          OPINION

          RICHARD BARAJAS, CHIEF JUSTICE.

         This is an appeal from a jury verdict in a workers' compensation case against the employer's carrier, plaintiff below, related to a workers' compensation claim determining the impairment rating governing Appellee's claim for benefits. For the reasons stated, we affirm.

         I. SUMMARY OF THE EVIDENCE

         Appellee, William Ragsdale, was employed by MR Drilling or MR Oil ^[1] located in Monahans, Texas during the time period from approximately 1985 until 1999 as a production superintendent. In March of 1999, Mr. Ragsdale suffered a stroke that left him with some physical limitations. In May of 1999, Mr. Ragsdale returned to work for MR Oil or Drilling and was employed as a relief pumper.

         While checking oil field tanks on the morning of July 15, 2001, Appellee slipped and fell down a flight of steps used to access the top of the tank. He fell down the entire distance of the stairs and testified to injuring his head. A company field foreman found Appellee and took him home. While at home, he suffered some type of seizure and was hospitalized. Appellee testified that he remained unaware of his surroundings for five days until he "woke up" in the hospital.

         Appellee filed a workers' compensation claim related to the incident. Appellee's treating physician, Dr. Kadir, issued a Texas Workers' Compensation Commission Form, stating that Ragsdale reached maximum medical improvement on November 26, 2001, with a 0 percent impairment rating. Appellee requested that a designated doctor be appointed in conformance with the Texas Labor Code.

         The Commission appointed Steven Ellsworth, M.D. as the Commission's designated doctor for review of this claim. Dr. Ellsworth prepared a TWCC-69 and a written report. He adopted the finding that Appellee had reached maximum medical improvement on November 26, 2001, but evaluated Appellee's impairment rating as 10 percent on the TWCC-69 form. In the body of his written report, however, Dr. Ellsworth reflected that he had determined various impairment ratings for injuries related to the incident and determined that:

Combining these impairments would give a whole person impairment of 67%. Then the next question becomes, how much of this impairment is attributable to the new accident. As discussed above, I believe that it is reasonable to say that there has been a clear decrement in function. I believe that with the absence of new cerebral infarction, I will assign 15% of the impairment to the new accident to give 10% whole person impairment attributable to this accident. The apportionment of the impairment is a judgment on my part with regard to the history and records that I have reviewed.

         A contested case hearing was held on October 17, 2002 at which time the hearing officer determined that Appellee's impairment rating was 10 percent as determined by the TWCC designated doctor, Dr. Steven Ellsworth. Appellee appealed the ruling and that decision was reversed by the Texas Workers' Compensation Commission Appeals Panel in Appeals Panel Decision No. 030534. The Appeals Panel, specifically considering Dr. Ellsworth's report, held that "it was error for the hearing officer to adopt the apportioned IR assigned by Dr. E. We reverse Finding of Fact No. 6 and Conclusion of Law No. 3 and render a new decision that the claimant's IR is 67% in accordance with the opinion of the designated doctor."

         On May 19, 2003, Appellant filed its lawsuit seeking judicial review of the decision. Appellee, defendant Ragsdale below, filed a motion for partial summary judgment which was granted, striking the 10 percent impairment rating assigned by Dr. Ellsworth on the grounds that it was an improper apportioned rating. Appellant challenged the 67 percent impairment rating established by the Appeals Panel via a cross-motion for partial summary judgment which was denied.

         On November 4, 2003, the case went to trial solely on the issue of the impairment rating. The jury charge asked one question:

What is William Ragsdale's impairment rating as a result of his compensable injury of July 15th, 2001?

You are instructed that the impairment rating must be one of the following and that you are not authorized to assign any other impairment rating.

Answer by placing an "X" in front of one of the following impairment rating percentages of the whole body:

___0% Dr. Abdul Kadir

___67% Dr. Steven Ellsworth

The jury responded with 67%.

         During the course of the trial, the court entered various evidentiary rulings striking the Appellant's proffered doctors' testimony being presented via deposition. Appellant attempted to present the testimony of Dr. Kadir, Dr. Ellsworth, and Appellant's retained expert, Dr. Martin Heitzman. The trial court did not allow the deposition testimony for the reason that Appellant's attorney did not segregate the proffered, arguably admissible, testimony from the remainder of the testimony, stating that no evidence of a new or different impairment rating may be presented to the jury. Stated another way, he ruled that at trial, ...