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Albertsons, Inc. v. Lara
July 25, 2002
Unpublished Opinion

Albertsons, Inc. v. Lara

Court of Appeals of Texas,

El Paso.

ALBERTSON’S, INC., Appellant,


Eyna LARA, Appellee.

No. 08-01-00329-CV.


July 25, 2002.

*1 Albertson’s, Inc. appeals the trial court’s determination that a form certifying the date of maximum medical improvement and impairment rating for an injured former employee was insufficient to provide notice to the employee of her impairment rating and thus had not become final despite her failure to dispute the rating within ninety days as required under Texas Workers’ Compensation Commission (TWCC) Rule 130.5(e). We affirm.


Eyna Lara was injured in the course and scope of her employment with Albertson’s on October 13, 1994. On the date of injury, Albertson’s was a certified self-insured employer for purposes of workers’ compensation insurance. On June 3, 1995, Dr. Bob M. Hollander certified that Lara reached maximum medical improvement (MMI) with a 5 percent impairment rating (IR), the first impairment certification assigned to Lara’s injury. Lara received written notice of Dr. Hollander’s report in mid-July 1995, together with Form TWCC-69. The report was sent to Lara by Kathryn Thomas, the claims representative for Albertson’s, who had written the following notation on Form TWCC-69: “(note: not valid as TWCC approved chg of dr 5/31/95) K.T.” At the time Dr. Hollander signed the report, the TWCC had already approved Lara’s request to change her treating doctor from Dr. Hollander to Dr. Weldon Butler. Lara changed physicians because Dr. Hollander had released her to return to light duty work despite the fact that she did not feel she was able to do so.

At roughly the same time, Lara received Form EES-19 from the TWCC. The form, dated July 14, 1995, notified Lara that the Commission received a report from Dr. Hollander indicating she reached MMI on June 3, 1995 and had an IR of 5 percent. It also provided the following instructions:

If you do not agree with the certification of maximum medical improvement or the percentage of impairment assigned for any reason, you must dispute these issues by contacting the Commission within 90 days after you receive notice of the certification or rating. For assistance, or if you have any question, call or write the field office handling your claim or call 1-800-252-7031.

Lara stipulated that she did not dispute Dr. Hollander’s initial certification of MMI and IR until January 18, 1996-more than ninety days after receiving his report. She also stipulated that if Form TWCC-69 containing Dr. Hollander’s MMI and IR certification had not borne the handwritten note, then the certifications would have become final pursuant to Rule 130.5(e) and her dispute was not timely.

A contested case hearing was conducted on May 16, 1996 concerning the finality of Lara’s impairment rating and the hearing officer concluded that the MMI and IR had not become final. Albertson’s appealed to the Texas Workers’ Compensation Commission Appeals Panel. The panel reversed the order of the hearing officer, concluding that because Lara did not timely dispute the impairment rating pursuant to Rule 130.5(e), the maximum medical improvement date and impairment rating had become final.

*2 On October 2, 1996, Lara filed suit seeking judicial review. Both sides filed motions for summary judgment; the trial court denied Albertson’s motion but did not rule on Lara’s. It then conducted a non-jury trial on October 3, 2000 and accepted the agreed stipulations of the parties. By final judgment dated May 22, 2001, the trial court found as a matter of law that Lara’s receipt of Form TWCC-69 did not constitute notice to her of the impairment rating assigned by Dr. Hollander. Accordingly, the trial court found that the impairment rating did not become final under 28 TEX.ADMIN.CODE § 130.5(e). This appeal follows.


Where cases are tried on stipulated facts, we review de novo whether the trial court correctly applied the law to the admitted facts. See Mid-Century Ins. Co. of Texas v. Childs, 15 S.W.3d 187, 188 (Tex.App.-Texarkana 2000, no pet.).


The applicable version of Texas Workers’ Compensation Commission Rule 130.5(e) in this matter, referred to as the “90-day rule,” provided as follows:1

The first certification of MMI and impairment rating assigned to an employee is final if the certification of MMI and/or the impairment rating (IR) is not disputed within 90 days after written notification of the MMI and IR is sent by the Commission to the parties, as evidenced by the date of the letter, unless based on compelling medical evidence the certification is invalid because of:

(1) a significant error on the part of the certifying doctor in applying the appropriate AMA Guides and/or calculating the impairment rating;

(2) a clear mis-diagnosis or a previously undiagnosed medical condition; or

(3) prior improper or inadequate treatment of the injury which would render the certification of MMI or impairment rating invalid.

28 TEX.ADMIN.CODE § 130.5(e)(West 2000).

In its sole issue on appeal, Albertson’s argues that the 90-day rule has no “good cause” exceptions and that an impairment rating assigned to an employee becomes final if not disputed within 90 days. It claims that Form TWCC-69 was not misleading because the notation reflected only that Lara changed treating doctors on May 31, 1995, not that the date of MMI or IR was in any way affected. As support for its contention that the rule requires strict application, Albertson’s relies on Rodriguez, 997 S.W.2d at 256. Finally, Albertson’s contends that even if we were to deem Form TWCC-69 insufficient notice of impairment, Lara’s receipt of Form EES-19 from the Commission triggered the 90-day period because it is the “functional equivalent” of Form TWCC-69. Lara responds that notice of the impairment rating is a fundamental requirement which must be satisfied before Rule 130.5 operates to finalize an impairment.2

*3 We conclude the form presented to Lara did not constitute sufficient notice to invoke the 90-day rule. During the trial, the presiding judge expressed concern about the misleading nature of the handwritten note and whether it comported with notions of proper notice and fairness in a proceeding. While we are not required to defer to the trial court’s conclusions, we agree that a form containing the notation “not valid” may confuse or mislead an individual about her rights and obligations. Indeed, Albertson’s conceded during oral argument that the notation may be misleading. Of course, Albertson’s was responsible for this confusion and is estopped from arguing on appeal that the form is valid when it clearly indicated to Lara that it was not. Despite what Albertson’s may have intended the notation to reflect, at the very least the words “not valid” would lead any individual to conclude that the form was somehow defective. Consequently, Form TWCC-69 constitutes insufficient written notification to Lara to trigger the 90-day rule under Rule 130.5(e). Similarly, Form EES-19 provided to Lara around July 14, 1995 was insufficient to trigger the 90 day rule. Lara stipulated that she received Form TWCC-69 and Form EES-19 in mid-July 1995. As in Form TWCC-69, Form EES-19 listed Dr. Hollander as the treating doctor and indicated an IR of 5 percent and a MMI date of June 3, 1995. The second notice received at the same time and containing the same erroneous information gives rise to such confusion about its validity that it failed to provide Lara with sufficient written notification of her MMI and IR to start the running of the 90-day dispute period. Because we find no error in the trial court’s application of the law to the stipulated facts, we overrule Albertson’s sole issue and affirm the judgment finding that the impairment rating and corresponding date of maximum medical improvement are not final.



Rule 130.5(e) and other subsections of Rule 130.5 were repealed effective January 2, 2002, and revised to include new provisions for requesting designated doctor examinations related to maximum medical improvement and impairment ratings. See TEX. ADMIN. CODE § 130.5 (West 2002).


Lara raises an alternative argument on appeal to defend the trial court’s determination in her favor. She urges us to follow a recent opinion issued by the Austin Court of Appeals holding Rule 130.5 invalid because it severely restricts the statutory period afforded an injured worker to achieve maximum medical improvement. Fulton v. Associated Indemnity Corporation, 46 S.W.3d 364, 372 (Tex.App.-Austin 2001, pet. denied). Because Lara failed to challenge the validity of the rule below, we decline to consider it here.

End of Document