Court of Appeals of Texas, Dallas.

Robert HAWKLAND, Appellant,

v.

RELIANCE NATIONAL INDEMNITY COMPANY, Appellee.

No. 05-00-01909-CV.

|

Nov. 7, 2001.

Before LAGARDE, MORRIS, and JAMES, JJ.

OPINION

Opinion by Justice MORRIS.

*1 In this workers’ compensation case, Robert Hawkland appeals a summary judgment granted in favor of Reliance National Indemnity Company. Hawkland contends the trial court erred in holding that his original impairment rating was final pursuant to section 130.5(e) of the Texas Administrative Code. We conclude the trial court correctly held the impairment rating was final because it was not disputed within 90 days after the date it was assigned. We affirm the trial court’s judgment.

Factual Background

On March 14, 1997, Robert Hawkland was injured while in the course and scope of his employment with an ambulance service. Hawkland complained of pain in his right shoulder and upper back and was treated by Dr. James Pollifrone. Dr. Pollifrone diagnosed Hawkland’s injury as being to his shoulder and treated him accordingly.

Approximately one year later, on April 20, 1998, Dr. Pollifrone opined in a report that Hawkland had achieved maximum medical improvement (“MMI”) and gave him an impairment rating of 5% for his whole body. Dr. Pollifrone further stated Hawkland felt he was doing quite well and did not feel he needed “any further diagnostic workup (sic).” The report contained the qualification, however, that if Hawkland’s symptoms worsened, “one might consider rescinding this MMI.” Reliance National Indemnity Company, as the workers’ compensation carrier for Hawkland’s employer, paid Hawkland $1032.00 for his impairment based on the 5% rating.

Hawkland did not see Dr. Pollifrone again until several months later. Hawkland complained of pain and an MRI was performed. The MRI revealed a large disc herniation. On December 11, 1998, Dr. Pollifrone withdrew his original finding of MMI as well as Hawkland’s 5% impairment rating. According to Dr. Pollifrone, his initial diagnosis of Hawkland did not include that Hawkland had suffered a cervical injury. Following surgery and recovery, Dr. Pollifrone certified that Hawkland achieved MMI as of October 5, 1999 and assessed a whole body impairment of 25%. Ultimately, another doctor assessed Hawkland with an impairment rating of 17%, which he did not contest.

Reliance refused to accept the new MMI date and impairment rating contending Hawkland failed to dispute the initial impairment rating within 90 days as required by rule 130.5(e) of the Texas Administrative Code. A contested case hearing was held before the Texas Workers’ Compensation Commission, and Hawkland prevailed. A TWCC appeals panel upheld the decision in favor of Hawkland. Reliance brought this action in district court to review the appeal panel’s decision and filed a motion for summary judgment based on the application of rule 130.5(e). The trial court granted summary judgment in favor of Reliance. This appeal ensued.

Discussion

The central issue in this appeal is whether Hawkland’s initial impairment rating given on April 20, 1998 was final and irrevocable because it was not challenged within 90 days. Such a challenge is required by rule 130.5(e) of the Texas Administrative Code. The language of rule 130.5(e) in effect during the time period relevant to this case stated:

*2 The first impairment rating assigned to an employee is considered final if the rating is not disputed within 90 days after the rating is assigned.

28 Tex. Admin. Code § 130.5(e) (Tex. Worker’s Comp. Comm’n, Impairment and Supplemental Income Benefits) (amended 2000) (current version at 28 Tex. Admin. Code § 130.5(e) (2001)). Hawkland contends the rule does not apply to him because his initial impairment rating was based upon a misdiagnosis. Reliance responds that the 90 day deadline applies regardless of the circumstances involved. We agree with Reliance.

In Rodriguez v. Service Lloyds Insurance Company, the Texas Supreme Court analyzed rule 130.5(e) and held that because its plain language contained no exceptions, none were permitted. See Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999). The court noted that the TWCC had allowed ad hoc exceptions to the 90 day deadline in the past where claimants had shown a “clear misdiagnosis,” a “substantial change in condition,” or “a significant error.” Id. The court concluded, however, that when “the Commission does not follow the clear, unambiguous language of its own regulation, we reverse its action as arbitrary and capricious.” Id. at 255. According to the court, the TWCC cannot generally amend its rules on a case-by-case basis, but rather must do so formally through accepted procedures. Id. Because there were no formally adopted exceptions to rule 130.5(e), the court concluded all impairment ratings became final after 90 days if not disputed. See id. at 256.¹

Hawkland tries to escape the effect of the supreme court’s ruling in Rodriguez by arguing that, in his case, the misdiagnosis resulted in an impairment rating for something other than the “compensable injury.” In other words, he argues his rating was based on an injury to his shoulder, rather than the true injury to his neck and, therefore, he was never given a valid impairment rating. What Hawkland is asking for is exactly the type of ad hoc exception to the 90 day rule that Rodriguez prohibits. The consequences of a misdiagnosis in a particular case are irrelevant because the language of the rule permits no exceptions. Hawkland failed to challenge the 5% impairment rating he was given on April 20, 1998 within 90 days of that date. The rating, therefore, became final. The trial court properly granted summary judgment in favor of Reliance.

Given our holding with respect to the summary judgment, it is unnecessary for us to address Hawkland’s remaining argument regarding attorney’s fees.

We affirm the trial court’s judgment.

	Footnotes
1		The TWCC has since formally adopted certain exceptions to rule 130.5(e) including an exception for “a clear mis-diagnosis (sic) or a previously undiagnosed medical condition.” 28 Tex. Admin. Code § 130.5(e) (2001) (Tex. Worker’s Comp. Comm’n, Impairment and Supplemental Income Benefits). These exceptions did not go into effect until March 13, 2000.