Court of Appeals of Texas, Fourth District, San Antonio
the 438th Judicial District Court, Bexar County, Texas Trial
Court No. 2013-CI-15666 Honorable Gloria Saldana, Judge
Marialyn Barnard, Justice, Rebeca C. Martinez, Justice, Irene
C. MARTINEZ, JUSTICE.
Margot Menjivar filed the underlying lawsuit challenging a
decision by the Appeals Panel of the Texas Department of
Insurance, Division of Workers' Compensation
("Department") that her first certification of
maximum medical improvement (MMI) and impairment rating
was final. A jury found the first certification was not final
based on compelling medical evidence that Menjivar received
improper or inadequate treatment for her injury before the
certification date. University of Texas System appeals
asserting the evidence is legally insufficient to support the
jury's finding. We affirm the trial court's judgment.
March 31, 2011, Menjivar was working for the University when
she fell and injured her shoulder. On April 1, 2011, she was
examined by Dr. Matilda Perkins who ordered physical therapy.
On May 6, 2011, Dr. Perkins ordered an MRI which was not
undertaken until July 27, 2011. The MRI revealed a rotator
August 10, 2011, Menjivar was examined by Dr. Andrew Whaley
who ordered a DEXA scan to determine the extent of her
osteoporosis and gave her an injection for her pain. On
September 16, 2011, Dr. Whaley opined that Menjivar was not
"amenable to a cuff repair" due to her
osteoporosis, but she "is probably going to be best
served with a reverse shoulder arthroplasty." Because
Dr. Whaley did not perform that type of procedure, he
referred her to Dr. Anil Dutta. Dr. Whaley informed Menjivar
that if she was not determined to be a candidate for reverse
shoulder arthroplasty "she may be as good as she is
going to get. She has a horrible injury to the shoulder but
unfortunately there is not much we can offer her
October 26, 2011, Menjivar had her first office visit with
Dr. Dutta. Dr. Dutta noted Menjivar "has had a
significant injury" but could not provide "a strong
prognostic decision" without the MRI imaging. Although
Menjivar had additional office visits with Dr. Dutta on
November 23, 2011, and December 21, 2011, the notes reflect
that Dr. Dutta still did not have the MRI images on either of
those visits. In his November 23, 2011 note, Dr. Dutta stated
he could not make any decisions or provide any additional
injections until he had the MRI imaging.
January 4, 2012, Menjivar had another office visit. Dr.
Dutta's January 6, 2012 notes state the MRI images
"were not available on Epic charting system" but
"were reviewed over the holiday season." The
"findings [were] consistent with a partial thickness
tear." The notes state Dr. Dutta discussed the findings
and treatment options with Menjivar, including surgical and
nonsurgical options, and Menjivar decided to "continue
another trial of nonoperative treatment, including a
subacromial injection and exercise program." Dr.
Dutta's plan was to schedule another clinical review in
six to eight weeks at which he would "assess
[Menjivar's] response to continued nonoperative
February 1, 2012, Dr. Juan Capello, a designated doctor
selected by the Department, performed a first certification
of MMI and IR. Dr. Capello examined Menjivar and
performed a functional abilities evaluation. Dr. Capello
opined Menjivar reached MMI on August 10, 2011 and assigned a
zero percent IR.
March 28, 2012, Menjivar had another office visit with Dr.
Dutta. Dr. Dutta's April 3, 2012 notes state Menjivar had
"failed conservative treatment." Dr. Dutta was
"going to recommend a scope, decompression, a clavicle
resection, and cuff repair for comprehensive treatment of her
April 18, 2012, Menjivar had another office visit with Dr.
Dutta. Dr. Dutta's May 1, 2012 notes state he was
"going to again submit for surgery" and was
"not sure why [Menjivar] is having trouble getting this
approved." The notes further state Dr. Dutta contested
the decision made by Dr. Capello.
April 18, 2012, Dr. Dutta wrote a letter contesting the 0%
impairment rating. The letter states Menjivar has "a
full-thickness rotator cuff tear" which has not been
"addressed surgically." The letter further states
"it has been well established in the literature that
full-thickness tears that are repairable and are repaired
result in significant improvement in shoulder function and
quality of life." The letter concludes Dr. Dutta was
offering Menjivar the opportunity to have her rotator cuff
tear "addressed with surgery."
August 8, 2012, Menjivar had an office visit with Dr. Mark
Alan Foremen because there was a possibility that Dr. Dutta
was going to be ...