Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 101st Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-15-013641
Justices Lang, Fillmore, and Schenck
M. FILLMORE JUSTICE
R. Diaz filed this lawsuit seeking judicial review of an
administrative order by the Texas Department of Insurance,
Division of Workers' Compensation (the Division) that
found Diaz's first certification of maximum medical
improvement (MMI) and assignment of impairment rating
was final. After considering competing motions for summary
judgment, the trial court granted judgment in favor of Diaz
and against American Zurich Insurance Co., and determined (1)
Diaz timely disputed the first certification of MMI and
assignment of IR; (2) the first certification of MMI and
assignment of IR did not become final; and (3) Diaz did not
reach MMI on August 29, 2014, and her IR is not zero percent.
American Zurich appeals the trial court's order, arguing
it was entitled to judgment as a matter of law. In the
alternative, American Zurich asserts there is a genuine issue
of material fact that precludes summary judgment. We reverse
the trial court's judgment, and render judgment that Diaz
take nothing on her claims.
February 14, 2014, Diaz injured her back while lifting a box
in the course and scope of her employment. American Zurich,
Diaz's employer's workers' compensation insurance
carrier, accepted liability for a strained or sprained lower
back. Diaz was treated for her injury, including receiving
epidural injections in May and June of 2014. An MRI performed
on July 3, 2014, revealed Diaz had disc protrusions at L3-4,
L4-5, and L5-S1.
Division designated Dr. David Bradley to examine Diaz to
determine the extent of injury and whether she had achieved
MMI, and to assign an IR. Dr. Bradley examined Diaz on August
9, 2014, and requested Diaz undergo additional nerve testing.
The results of the nerve test on August 29, 2014, were a
"normal study of both lower extremities." On
September 22, 2014, Dr. Bradley completed a Report of Medical
Evaluation (DWC-69), in which he opined Diaz's injury
extended to stenosis and disc protrusions at L3-4, L4-5, and
L5-S1; and Diaz had not reached MMI because a medical
treatment recommended by Diaz's treating physician was
pending, American Zurich had denied treatment until the
extent of injury question could be resolved, and Diaz had not
received the prescribed level of care for disc herniation. In
Dr. Bradley's opinion, Diaz would reach MMI on or about
December 20, 2014.
was referred to Dr. Robert Holladay IV for a Post Designated
Doctor's Required Medical Examination. Dr. Holladay
examined Diaz on December 3, 2014, and completed a DCW-69 in
which he opined Diaz's injury caused a strain or sprain
in her lumbar spine, and the "degenerative changes with
minimal bulges at multiple levels" seen in the MRI of
Diaz's back were "not related to any of the
mechanism of lifting a box." Based on his examination of
Diaz and his review of her medical records and clinical
history, Dr. Holladay certified that Diaz reached MMI on
August 29, 2014, and assessed an IR of zero percent.
December 17, 2014, Diaz received a DWC PLN-3,
"Notification of Maximum Medical Improvement/First
Impairment Income Benefit Payment, " and Dr.
Holladay's DWC-69. The PLN-3 informed Diaz that, based on
Dr. Holladay's findings, she was not eligible for
additional income payments, but was entitled to necessary
medical benefits related to her injury. The PLN-3 also
informed Diaz that, if she did not agree with Dr.
Holladay's certification of MMI or assignment of IR, she
had ninety days from the date she received the notification
to file a dispute with the Division "by contacting the
Division office handling [her] claim at 1-800-252-7031."
February 4, 2015, American Zurich filed a Request to Schedule
a Benefit Review Conference (DWC-45) with the Division. By
checking boxes on the form, American Zurich identified the
disputed issues to be mediated at the benefit review
conference (BRC) as the extent of the compensable injury, the
designated doctor's certification of MMI, and the
designated doctor's assessment of IR. American Zurich
described the disputed issues as:
Carrier disputes the September 22, 2014 designated doctor
report of David Bradley, D.C. in which he opines the claimant
has not yet reached MMI. In his post designated doctor report
dated December 3, 2014 Robert Holladay IV, M.D. opined the
claimant reached MMI on August 29, 2014 with a 0% IR. Carrier
disputes the compensable lumbar sprain/strain injury extends
to and includes stenosis or disc protrusions at L3-4, L4-5,
to American Zurich's DWC-45 was a February 3, 2015 email
to Diaz's counsel stating:
We represent American Zurich in the above-referenced matter.
Carrier would like to request a BRC to dispute the designated
doctor's certification Ms. Diaz has not reached MMI and
his extent opinion. Please accept this email as Carrier's
efforts to resolve this matter before requesting a BRC. Would
Ms. Diaz be interested in agreeing that her compensable
injury does not extend to include stenosis and disc
protrusions at L3-4, L4-5, and L5-S1, and that she reached
MMI on August 29, 2014 with 0 percent whole person impairment
in accordance with Dr. Holladay's certification.
counsel responded, "We do not agree with the
carrier." Although Diaz filed a DWC-45 on March 4, 2015,
requesting the BRC be rescheduled, she did not file a DWC-45
disputing Dr. Holladay's certification of MMI and
assignment of IR.
was held on April 22, 2015, at which a benefit review officer
attempted to mediate a resolution of the "disputed
issues." The parties were unable to reach an agreement
and, on June 23, 2015, a hearing officer conducted a
contested case hearing to decide: (1) does Diaz's
compensable injury extend to include stenosis and disc
protrusions at L3-4, L4-5, and L5-S1; (2) has Diaz reached
MMI and, if so, on what date; (3) if Diaz has reached MMI,
what is the impairment rating; and (4) did the first
certification of MMI and assignment of IR from Dr. Holladay
on December 3, 2014, "become final under Texas Labor
Code Section 408.123 and Rule 130.12." The hearing
officer found Diaz's injury extended to stenosis and disc
protrusions at L3-4, L4-5, and L5-S1; Dr. Holladay's
December 3, 2014 certification was the first certification of
MMI and assignment of IR and was valid for purposes of Rule
130.12(c); Dr. Holladay's December 3, 2014 certification
was provided to Diaz by verifiable means on December 17,
2014; and Diaz did not dispute the first valid certification
by Dr. Holladay within ninety days after receiving Dr.
Holladay's certification and assignment. The hearing
officer found unpersuasive Diaz's arguments that (1)
American Zurich's DWC-45 was sufficient to constitute a
dispute by Diaz of Dr. Holladay's certification of MMI
and assignment of IR, or (2) she met an exception to the
requirement that she dispute the first certification of MMI
or assignment of IR within ninety days of verifiable receipt.
The hearing officer concluded the "first certification
of MMI and IR assigned by Dr. Holladay on December 3, 2014
became final under Act Section 408.123 and Rule 130.12";
Diaz reached MMI on August 29, 2014; and Diaz's IR is
appealed the decision to the Division's Appeals Panel.
Without issuing a substantive decision, the Appeals Panel
notified the parties on October 1, 2015, that the hearing
officer's decision was final. Diaz filed suit seeking
judicial review of the administrative decision that she
reached MMI on August 29, 2014, and had a zero percent IR.
Zurich filed a motion for traditional summary judgment on the
ground Dr. Holladay's December 3, 2014 certification that
Diaz reached MMI on August 29, 2014, and assignment of an IR
of zero percent, was final because Diaz failed to file a
dispute of the certification and assignment within ninety
days of receiving the PLN-32 and Dr. Holladay's DWC-69.
American Zurich also moved for a no-evidence summary judgment
on the ground that Diaz could produce no evidence an
exception to the ninety-day filing requirement applied. Diaz
filed a competing motion for traditional summary judgment,
arguing (1) she was not required to file a separate DWC-45 on
the same issue raised in American Zurich's DWC-45 that
simply requested the opposite result, and (2) her
counsel's response to American Zurich's email was
sufficient to constitute a dispute of Dr. Holladay's
certification of MMI and assignment of IR. Diaz also filed a
response to American Zurich's motion for summary judgment
in which she argued she could dispute Dr. Holladay's
certification of MMI and assignment of IR outside the
ninety-day period because there had been a clearly mistaken
diagnosis before the date of certification.
trial court granted Diaz's motion and denied American
Zurich's motion. The trial court ordered that Diaz
disputed Dr. Holladay's certification of MMI and
assignment of IR within ninety days; the first certification
of MMI and assignment of IR by Dr. Holladay did not become
final; and Diaz did not reach MMI on August 29, 2014, and did
not have an IR of zero percent.
Zurich brought this appeal, and argues in its first two
issues that the trial court erred by (1) granting Diaz's
motion for summary judgment and denying American Zurich's
traditional motion for summary judgment because Dr.
Holladay's certification that Diaz reached MMI on August
29, 2014, and assignment of an IR of zero percent became
final ninety days after Diaz received the PLN-32 and Dr.
Holladay's DWC-69, and (2) denying American Zurich's
no- evidence motion for summary judgment because Diaz ...