Court of Appeals of Texas, Houston (1st Dist.).

Gilda WIMBLEY, Appellant,

v.

AETNA CASUALTY & SURETY COMPANY, Appellee.

No. 01-97-01131-CV.

|

Oct. 1, 1998.

On Appeal from the 269th District Court Harris County, Texas Trial Court Cause No. 95-61336

Panel consists of Justices MIRABAL, HEDGES, and ANDELL.

OPINION

MARGARET GARNER MIRABAL, Justice.

*1 This is an appeal from a judgment in a workers’ compensation case. We reverse.

Gilda Wimbley injured her back in the course and scope of her employment on October 13, 1993. Wimbley’s physician, Dr. Scheffey, recommended spinal surgery. Aetna Casualty & Surety Company (Aetna), the insurance carrier, requested a second opinion by a doctor of their choosing, Dr. Kaldis. Dr. Kaldis found Wimbley had reached her maximum medical improvement (MMI) on March 11, 1994, and had an impairment rating of 7%. The Texas Workers’ Compensation Commission (TWCC) selected Dr. Daum to render a third opinion. Dr. Daum opined that the surgery was not likely to significantly improve Wimbley’s condition. The TWCC also appointed Dr. Moore as the designated doctor. He examined Wimbley on June 24, 1994, and determined that she reached MMI on that date, with an impairment rating of 0%.

On November 18, 1994, a hearing was held in the central office of the TWCC in Austin. Following the hearing, the hearing officer issued an order approving the surgery proposed by Dr. Scheffey. On January 19, 1995, Wimbley had spinal surgery.

After the surgery, Dr. Moore, the designated doctor, requested another opportunity to examine Wimbley. On July 11, 1995, Dr. Moore examined Wimbley and determined that she had “improved somewhat.” According to the evidence, there were several letters from Dr. Moore after the surgery that retracted his former observation of MMI on June 24, 1994 and 0% impairment ratings.

From May 18, 1995, to July 17, 1995, a contested hearing was held before a TWCC hearing officer in Houston, Texas, who determined Wimbley had not reached maximum medical improvement as of July 11, 1995. The finding was affirmed by a TWCC Appeals Panel.

A petition for judicial review was filed by Aetna. A bench trial was conducted at which Wimbley appeared pro se. The trial court entered judgment that the award and findings of the Appeals Panel “are hereby canceled and set aside.” In so doing, the court found that Wimbley had reached maximum medical improvement on June 24, 1994, and had a 0% impairment rating.¹

In her first issue for review, Wimbley asserts the trial court’s judgment is not supported by factually sufficient evidence.

The Texas Supreme Court has held that a TWCC Appeals Panel’s final decision may be appealed to the courts under a “modified de novo review.” Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 530 (Tex.1995). Under this modified de novo review, all issues regarding compensability of the injury may be tried by the jury or court. Id. at 528; see Tex.Lab.Code Ann. §§ 410.301, .304 (Vernon 1996). The party appealing the TWCC’s ruling bears the burden of proof by a preponderance of the evidence. Tex.Lab.Code Ann. § 410.303 (Vernon 1996).

Modified de novo review means: (1) the trial court is informed of the Appeals Panel’s decision, (2) evidence of the extent of impairment is limited to that presented to the TWCC, unless the court makes a threshold finding that the claimant’s condition has substantially changed, and (3) the court is required to adopt the specific impairment rating arrived at by one of the physicians in the case. Tex.Lab.Code Ann. §§ 410.304, .306-307 (Vernon 1996); Garcia, 893 S.W.2d at 528. The court, although informed of the TWCC’s decision, is not required to accord it any particular weight. Id. at 515. The fact finder does not review the Appeals Panel’s decision for “reasonableness,” but rather independently decides the issues by a preponderance of the evidence. Id. at 531.

*2 Wimbley asserts Dr. Moore’s original opinion of MMI on June 24, 1994 and 0% impairment rating should be disregarded in light of Dr. Moore’s retraction of his original evaluation. Wimbley also argues that Dr. Kaldis’ opinion should be accorded little weight, if any, because he was Aetna’s doctor, saw Wimbley once, and did not examine her after the surgery.

In reviewing factual sufficiency, we must consider and weigh all of the evidence, both the evidence tending to prove the existence of a vital fact and the evidence tending to disprove its existence. Pacific Employers Ins. v. Dayton, 958 S.W.2d 452, 455 (Tex.App.-Fort Worth 1997, writ denied). So considering all of the evidence, if a finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the issue should be sustained, regardless of whether there is some evidence to support it. Id.

The trial court was faced with the opinions of four doctors. Wimbley’s doctor, Scheffey, recommended surgery; Aetna’s doctor, Kaldis, found a 7% impairment with MMI on March 11, 1994; TWCC’s doctor, Daum, opined that surgery was unlikely to improve Wimbley’s condition; and TWCC’s designated doctor, Moore, initially found a 0% impairment rating and MMI on June 24, 1994, but he changed his opinion after reexamining Wimbley and concluded Wimbley had not reached MMI on June 24, 1994, and she had improved after surgery.

The trial court’s judgment exactly tracks the initial findings of the designated doctor, Moore. No other doctor had given the same opinion as Dr. Moore. In light of the fact that Dr. Moore himself retracted his original opinion upon reexamining Wimbley, we conclude the trial court’s judgment is not supported by factually sufficient evidence.

Accordingly, we sustain Wimbley’s first issue. In light of this ruling, it is unnecessary for us to reach the merits of Wimbley’s remaining issues, and we decline to do so.

We reverse the judgment and remand the case to the trial court.

	Footnotes
1		The trial court’s judgment states, in part: It is therefore, ORDERED … that the award and the findings of the Texas Workers’ Compensation Commission of November 15, 1995 … relating to the Defendant’s date of maximum medical improvement and disability are hereby canceled and set aside. It is further ORDERED … that Defendant GILDA WIMBLEY’S date of maximum medical improvement stemming from her injury of October 13, 1993 is June 24, 1994. It is further ORDERED … that the Defendant GILDA WIMBLEY, has not had disability as a result of her compensable injury at any time after June 24, 1994. Defendant GILDA WIMBLEY has a zero percent impairment rating stemming from her compensation injury of October 13, 1993.