Court of Appeals of Texas, Eighth District, El Paso
from the 162nd District Court of Dallas County, Texas (TC#
Chew, C.J., McClure, and Carr, JJ.
Kenneth R. Carr, Justice.
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.
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.
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 and I do not believe that you will be
successful disputing it."
Division of Workers' Compensation of the Texas Department
of Insurance 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.
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.
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.
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. 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).
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.