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Fireman's Fund Insurance Co. v. Weeks

Court of Appeals of Texas, Eighth District, El Paso

June 30, 2008

FIREMAN'S FUND INSURANCE COMPANY, Appellant
v.
WELDON WEEKS, Appellee.

          Appeal from the 162nd District Court of Dallas County, Texas (TC# 04-10160-I)

          Before Chew, C.J., McClure, and Carr, JJ.

          OPINION

          Kenneth R. Carr, Justice.

         Appellant, Fireman's Fund Insurance Company ("Fireman's Fund"), appeals the district court's judgment in favor of workers' compensation claimant, Weldon Weeks, the Appellee herein. Fireman's Fund contends that the evidence relied upon by the district court regarding Appellee's impairment rating and date of maximum medical improvement is legally insufficient. For the following reasons, we reverse the judgment of the trial court and render judgment for Fireman's Fund.

         BACKGROUND

         On August 20, 1999, Weeks, who was employed by WW Rogers Produce, suffered an on-the-job injury, when he fell from a forklift and injured his lower back. On August 25, Weeks visited Dr. Huntly Chapman regarding the injury. Dr. Chapman initially prescribed medicine and therapy for him, but Weeks continued to experience pain in his back. On June 13, 2001, Dr. Chapman performed a spinal fusion surgery on Weeks, fusing his L3-4 and L4-5 vertebrae. Following the surgery, Weeks continued to experience back pain.

         On December 14, 2001, Weeks was examined by Dr. Donald Mauldin, who was selected by Fireman's Fund. Dr. Mauldin reported that Weeks reached Maximum Medical Improvement ("MMI") on December 14, 2001. According to Dr. Mauldin, Weeks had an impairment rating of 20 percent. At the request of Fireman's Fund, Dr. Phillip Osborne conducted a peer review of Dr. Mauldin's report. Dr. Osborne concurred with Dr. Mauldin's impairment rating. Dr. Osborne concluded that "this rating follows The Guides[1] and I do not believe that you will be successful disputing it."

         The Division of Workers' Compensation of the Texas Department of Insurance[2] subsequently appointed Dr. Wright Singleton as designated doctor to examine Weeks. On March 7, 2002, Singleton examined Weeks and determined that Weeks had an MMI date of January 28, 2002, and an impairment rating of 10 percent. In making this determination, Dr. Singleton categorized Weeks's injury as a Diagnosis-Related Estimate ("DRE") category III injury, because Weeks showed some signs of lumbar radiculopathy.

         Dr. Chapman disputed Dr. Singleton's conclusions. On October 14, 2002, Dr. Chapman performed an evaluation on Weeks and concluded that Weeks's MMI date was April 17, 2002, based on the 104-week limitation contained in the definition of MMI. See Tex. Lab. Code Ann. § 401.011(30)(B). Dr. Chapman also concluded that Weeks's injury was properly categorized as DRE category V, due to the fact that Weeks had undergone spinal fusion surgery and because of the presence of radiculopathy. Based on this, Dr. Chapman assigned Weeks an impairment rating of 25 percent.

         Dr. Singleton stood by his decision. He explained that, under the AMA Guides, it would be inappropriate to consider the presence of a spinal fusion alone in determining impairment. Dr. Singleton re-examined Weeks on April 21, 2004, and again rated him at 10 percent impairment, with an MMI date of January 28, 2002.

         On March 25, 2004, the Division held a contested case hearing to determine, among other things, the date of MMI and Weeks's impairment rating. The hearing officer noted that "[t]he differences between Dr. Singleton's certification and those of the other doctors are in the area of medical judgment. Specifically, Dr. Singleton did not use the multilevel fusion to place Claimant in a higher DRE category for loss of motion segment integrity, whereas the other doctors did." The hearing officer concluded, in agreement with Dr. Singleton, that Weeks had an MMI date of January 28, 2002, and an impairment rating of 10 percent.[3] Weeks appealed this decision to the Division's Appeals Panel, which did not issue a decision within the time permitted by the Texas Labor Code. The hearing officer's decision therefore became the final decision of the Appeals Panel. See Tex. Lab. Code Ann. § 410.204(c).

         Weeks then appealed to the 162nd District Court, which conducted a bench trial in November of 2005, to determine Weeks's MMI date and impairment rating. The district court entered a final judgment on February 2, 2006, ruling that Weeks had an MMI date of April 17, 2002, and an impairment rating of 25 percent. Fireman's Fund appeals the district court's judgment, arguing that the evidence relied upon was legally insufficient, because the reports of Drs. Chapman, Mauldin, and Reid impermissible relied upon the fact that Weeks had undergone spinal fusion surgery in determining his impairment rating. Fireman's Fund also argues that, because the evidence in support of the impairment rating adopted by the district court was legally insufficient, its MMI date is legally insufficient as well. Fireman's Fund asks this Court to reverse the district court's judgment and render judgment that Weeks has a 10 percent impairment rating, with a January 28, 2002, MMI date.

         DISCUSSION

         A. ...


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