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University of Texas System v. Menjivar

Court of Appeals of Texas, Fourth District, San Antonio

November 8, 2017

UNIVERSITY OF TEXAS SYSTEM, Appellant
v.
Margot MENJIVAR, Appellee

         From the 438th Judicial District Court, Bexar County, Texas Trial Court No. 2013-CI-15666 Honorable Gloria Saldana, Judge Presiding

          Marialyn Barnard, Justice, Rebeca C. Martinez, Justice, Irene Rios, Justice.

          MEMORANDUM OPINION

          REBECA C. MARTINEZ, JUSTICE.

         Appellee 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)[1] and impairment rating (IR)[2] 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.

         Background

         On 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 cuff tear.

         On 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 surgically."

         On 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.

         On 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 treatment."

         On February 1, 2012, Dr. Juan Capello, a designated doctor selected by the Department, performed a first certification of MMI and IR.[3] 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.

         On 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 problems."

         On 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.

         On 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."

         On 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 ...


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