Court of Appeals of Texas, El Paso.

Alfonso OROZCO, Appellant,

v.

OLD REPUBLIC INSURANCE COMPANY, Appellee.

No. 08-00-00460-CV.

|

Nov. 15, 2001.

Before LARSEN, McCLURE, and CHEW, JJ.

OPINION

DAVID WELLINGTON CHEW, Justice.

*1 Appellant Alfonso Orozco (“Orozco”) appeals the judgment rendered in favor of Appellee Old Republic Insurance Company (“Old Republic”). On appeal, Mr. Orozco raises six issues: (1) The failure to include Mr. Orozco’s date of MMI in the judgment voids the judgment; (2) the trial court erred in not admitting the medical evidence contained in the TWCC certified file; (3) and (4) any knowledgeable person may compare the clinical findings of a patient with the criteria in the AMA Guide Tables; (5) Dr. Ochoa’s impairment rating was based on the incorrect edition of the AMA Guides; and (6) Old Republic’s counsel misguided the court into applying the incorrect evidentiary standard. We affirm the judgment of the trial court.

In November 1991, Mr. Orozco was injured on the job at ASARCO. On April 21, 1993, a contested case hearing was held on the issue of Mr. Orozco’s correct impairment rating and the date of maximum medical improvement¹ (“MMI”). During the hearing, a question arose concerning whether or not the designated doctor, Dr. Ochoa, was using the correct edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment (“Guides”) to assess a 12 percent impairment rating. Dr. Ochoa responded to the hearing officer’s concerns in a letter dated April 29, 1993, stating that the 12 percent rating was correct. The doctor also reconfirmed his MMI date of November 9, 1992. The hearing officer accepted Dr. Ochoa’s findings over those offered by Mr. Orozco and issued an order that Mr. Orozco’s impairment rating was 12 percent and his date of MMI was November 9, 1992.

After the TWCC Appeals Panel affirmed the decision of the hearing officer, Mr. Orozco filed suit in the district court on September 20, 1993. A non-jury trial was held on April 13, 2000. The court concluded that there was no substantial change of condition, and thus it could not consider any evidence which was not offered at the 1993 contested case hearing. The court concluded after considering only evidence submitted at the contested case hearing that Mr. Orozco’s impairment rating was 12 percent.

Validity of the Judgment

Mr. Orozco first contends that the judgment is void because it does not expressly state the date of MMI.

Section 410.257 of the Texas Workers’ Compensation Act specifies the requisites of a judgment entered by a court on judicial review of the Texas Workers’ Compensation Commission (“TWCC”) appeals panel decision. See Tex.Lab.Code Ann. § 410.257 (Vernon Supp.2001). With regard to impairment ratings, it states: “A judgment that resolves an issue of impairment may not be entered before the date the claimant reaches maximum medical improvement.” See Tex.Lab.Code Ann. § 410.257(c). A judgment that does not comply with this section is void. See Tex.Lab.Code Ann. § 410.257(f).

A plain reading of the statute shows that it does not require the MMI date to be expressly stated in the judgment. It merely states that an issue of impairment may not be resolved before the date the claimant reaches MMI. Moreover, though Mr. Orozco stated at trial that he planned to request findings of fact and conclusions of law, he failed to properly file the request. If the findings of fact are not properly requested or filed, it is implied that the trial court made all the findings necessary to support its judgment. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). The judgment must then be affirmed if it can be upheld on any legal theory that has support in the evidence. See id.

*2 Therefore, it is implied that the trial court made the necessary finding that Mr. Orozco had reached his MMI date and did not violate the statute by entering a judgment resolving the impairment issue. We overrule Issue One.

Admissibility of Evidence in the Certified File

In his second issue, Mr. Orozco argues that there was evidence in the TWCC file which should have been admitted at trial. Old Republic asserts that the excluded evidence-specifically Dr. Hernandez’s medical reports-is inadmissible because it is evidence that was not presented to the commission at the contested case hearing. The admissibility of the evidence contained in the TWCC file turns on whether or not Mr. Orozco had a substantial change of condition. If he did have a substantial change of condition, then new evidence may be admissible. See Tex.Lab.Code Ann. § 410 .307 (Vernon 1996). However, if he did not have a substantial change of condition, then the new evidence is inadmissible. Id.

If, after a hearing, the court finds that there is a substantial change of condition, then evidence of the extent of impairment is not limited to that presented to the commission. See Tex.Lab.Code Ann. § 410.307. Otherwise, evidence of the extent of impairment shall be limited to that presented to the commission. See Tex.Lab.Code Ann. § 410.306(c). When the substantial change of condition is disputed, the designated doctor has to verify the substantial change of condition. See Tex.Lab.Code Ann. § 410.307(b).

The record is somewhat opaque on this issue. In September of 1995, Mr. Orozco made his first motion for substantial change of condition. The trial court granted the motion on February 6, 1996. It appears that the motion was then disputed because in March 1996, the trial court ordered verification of the substantial change of condition by the designated doctor In a letter dated January 28, 1997, the designated doctor, Dr. Ochoa, refused to see Mr. Orozco because of personal conflicts. The TWCC then appointed a new designated doctor; however, Mr. Orozco was never examined by the newly designated doctor. Mr. Orozco filed a second motion for substantial change of condition on October 18, 1999.

The dispute over Mr. Orozco’s substantial change of condition was never resolved. The claim of substantial change of condition was never verified by the designated doctor as required by Section 410.307 of the Act. Accordingly, the post-contested case hearing evidence in the TWCC files was inadmissible. We overrule Issue Two.

Competence of Persons Using the American Medical Association’s Guides to the Evaluation of Permanent Impairment (the “Guides”)

In his third and fourth issues, Mr. Orozco contends that because a TWCC Advisory states that “any other knowledgeable person may compare the clinical findings on a particular patient with the criteria in the ‘Guides’ “ that he was entitled to compare the findings and provide his own impairment rating for the trial court to consider. He relies on TWCC Advisory 93-04 which states:

*3 An evaluation or certification under the ‘Guides’ and the Act must include a physical examination and evaluation by the doctor. Although the ‘Guides’ provide that any knowledgeable physician or any other knowledgeable person may compare the clinical findings on a particular patient with the criteria in the ‘Guides’, a doctor must conduct a physical evaluation and is responsible for the integrity of the evaluation process. [Emphasis added].

The Texas Workers’ Compensation Act provides for medical examinations by doctors using procedures outlined in the Guides. See Tex.Lab.Code Ann. §§ 408.004, 408.122, 408.123, and 408.125. Specifically, a doctor has to issue the written report certifying that MMI has been reached and stating the impairment rating of the employee. See Tex.Lab.Code Ann. § 408.123(b). In addition, the designated doctor must meet specific qualifications, including training in the determination of impairment ratings. See Tex.Lab.Code Ann. § 408.122(b).

Mr. Orozco’s argument is based upon a single phrase of the advisory guideline and ignores the fact that the advisory guideline goes on to specify that a doctor must conduct a physical evaluation and is responsible for the integrity of the evaluation. There is nothing in the record to show that Mr. Orozco is a doctor qualified to assess impairment ratings or qualified as a “knowledgeable person” as that term is used in the advisory guideline. See Tex.Lab.Code Ann. § 408.122(b). Moreover, although the trial court may accord deference to the advisory guideline, it is only a guideline and does not have the effect of law. See General Elec. Credit Corp. v. Smail, 584 S.W.2d 690, 694 (Tex.1979). We overrule Issues Three and Four.

Correct Edition of the American Medical Association Guides

Mr. Orozco complains next that the designated doctor used the wrong AMA Guides to establish his impairment rating. The record reflects that on April 27, 1993, the contested case hearing officer sent a letter to Dr. Ochoa regarding his use of the incorrect AMA Guides. She asked Dr. Ochoa to “go back to the third edition, unrevised, and see if it changes the rating at all.” On April 29, 1993, Dr. Ochoa responded that the tables he used in the revised edition were equal to the tables in the unrevised edition. Because the tables were equal for both editions, Dr. Ochoa concluded that there was “no change” in using either the revised or unrevised edition for these specific areas. The contested case officer accepted Dr. Ochoa’s findings as having presumptive weight over the other medical evidence presented at the hearing.

Section 408.124(b) of the Texas Workers’ Compensation Act states: “For determining the existence and degree of an employee’s impairment the commission shall use ‘Guides to the Evaluation of Permanent Impairment,’ third edition, second printing, dated February 1989, published by the American Medical Association.” See Tex.Lab.Code Ann. § 408.124(b). Additionally, Section 408.124(c) states that the commission by rule may adopt the fourth edition of the Guides. See Tex.Lab.Code Ann. § 408.124(c). When an impairment rating is disputed, a designated doctor is chosen to resolve the dispute. See Tex.Lab.Code Ann. § 408.125. The report of the designated doctor has presumptive weight. See id.

*4 While the record supports Mr. Orozco’s complaint that at the contested case hearing, Dr. Ochoa based his opinion on the wrong edition, the record also shows that there was no difference between the editions. Dr. Ochoa, at the instruction of the contested hearing officer and before she made her decision, consulted both guides. He consulted the revised edition first, and then he consulted to the unrevised edition. Both, according to his testimony, yielded a 12 percent impairment rating. We overrule Issue Five.

Correct Evidentiary Standard

Mr. Orozco’s final issue is that Old Republic misguided the trial court into following an incorrect evidentiary standard. The Texas Workers’ Compensation Act provides for modified de novo review of some issues under a preponderance of evidence standard and review of remaining issues under a substantial evidence standard. See Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 530 (Tex.1995). According to the Act, issues regarding compensability, income, or death benefits are reviewed under a preponderance of the evidence standard, and all other issues are governed by the substantial evidence rule. See Tex.Lab.Code Ann. §§ 410.255, 410.301, and 410.303. The Texas Supreme Court has held that any dispute that challenges the finality of a workers’ compensation claimant’s impairment rating is a dispute about benefits subject to a modified de novo standard of review. See Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex.1999). A dispute concerning an impairment rating necessarily implicates the date of maximum medical improvement and the amount paid as temporary income benefits and may also impact the claimant’s eligibility for, and the calculation of, impairment income benefits and supplemental income benefits. See id.

As discussed above, Mr. Orozco’s two points of contention are the 12 percent impairment rating that Dr. Ochoa assigned him and his MMI date. These concern benefits and are subject to a modified de novo standard of review under a preponderance of the evidence standard. The record does reflect that Old Republic initially argued the substantial evidence standard should be used by the trial court. However, Old Republic’s counsel later informed the trial judge that he had been mistaken as to substantial evidence standard of review, and that the correct standard was a preponderance of the evidence standard. Therefore, Old Republic’s counsel did not misguide the court into applying the incorrect evidentiary standard.

Finally, Mr. Orozco contends in his reply brief that Old Republic “confessed” to misguiding the court into applying the incorrect evidentiary standard. There is a sentence in Old Republic’s brief that reads “Old Republic’s counsel did misguide the court into apply [sic] the incorrect evidentiary standard.” [Emphasis in original]. This was obviously a typographical error because in the argument section of the brief, Old Republic argues that it did not misguide the court into applying the incorrect evidentiary standard. We overrule Issue Six.

*5 The judgment of the trial court is affirmed.

	Footnotes
1		“Maximum medical improvement’ means the earlier of: (A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated; (B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or (C) the date determined as provided by Section 408.104 [relating to maximum medical improvement after spinal surgery].” See Tex.Lab.Code Ann. § 401.011(30)(Vernon Supp.2001).