Court of Appeals of Texas, Eighth District, El Paso
from the 143rd District Court of Ward County, Texas (TC#
Panel No. 2 Barajas, C.J., McClure, and Chew, JJ.
RICHARD BARAJAS, CHIEF JUSTICE.
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.
SUMMARY OF THE EVIDENCE
William Ragsdale, was employed by MR Drilling or MR Oil
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.
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
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.
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
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.
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."
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.
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%.
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, ...