Court of Appeals of Texas,

Eastland.

Mika Deen SIMPSON, Appellant

v.

INDUSTRIAL INDEMNITY COMPANY (FREMONT), Appellee.

No. 11–00–00047–CV.

|

Nov. 2, 2000.

Attorneys & Firms

Ray J. McQuary, for Mika Deen Simpson.

Ricky D. Green and Charles E. Morse, for Industrial Indemnity Company (Fremont).

Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.

OPINION

TERRY McCALL, Justice.

*1 Mika Deen Simpson appeals the trial court’s summary judgment in favor of Industrial Indemnity Company (Fremont) that affirmed the decision of the Texas Workers’ Compensation Commission appeals panel. We find that Simpson failed to preserve error, and we affirm.

Simpson suffered a back injury in the course and scope of his employment with Bechtel Group, Inc. He first sought treatment with a medical doctor, an osteopath, and then a chiropractor. Each of these physicians eventually assigned him a “0%” impairment rating.¹ Simpson disputed that rating. The Commission, pursuant to TEX. LAB. CODE ANN. § 408.125 (Vernon 1996), chose a “designated doctor” to examine Simpson. Because TEX. LAB. CODE ANN. § 408.122(b) (Vernon1996) requires that, “[t]o the extent possible, a designated doctor must be in the same discipline and licensed by the same board of examiners as the employee’s doctor of choice,” the Commission chose a chiropractor as the designated doctor.

The designated chiropractor found that Simpson had reached “maximum medical improvement” (MMI) and that he had an impairment rating of 0 percent. Simpson’s condition subsequently worsened, and he sought treatment from a medical doctor. The medical doctor found that Simpson had a 25 percent impairment rating but made no finding that he had reached MMI. The designated chiropractor reconsidered his previous findings and found that Simpson had reached MMI and had an impairment rating of 7 percent. The Commission’s hearing officer concluded that the designated chiropractor’s findings were correct, and the appeals panel affirmed her decision.

Simpson then filed a petition for judicial review based on his contention that Section 408.122(b) required the Commission to designate a medical doctor to replace the designated chiropractor because he changed from a chiropractor to a medical doctor as his treating doctor. He also argued that the designated chiropractor had to defer to the 25 percent impairment rating found by the medical doctor because the medical doctor based his conclusion in part on his reading of an MRI of Simpson’s back. Simpson contended that the designated chiropractor lacked the necessary skills and training to read an MRI.

Simpson filed a motion for summary judgment on both of the grounds that he raised in his petition. Industrial filed its own motion for summary judgment, arguing that the Commission did not have to designate a medical doctor when Simpson changed treating doctors and that the 25 percent impairment rating was invalid because the medical doctor did not find that Simpson had reached MMI. The trial court denied Simpson’s motion and granted Industrial’s motion. On appeal, Simpson argues only that the trial court erred in concluding that Section 408.122(b) did not require the Commission to designate a medical doctor when he changed treating doctors.

The opinion of the appeals panel affirming the hearing officer’s decision appears in the record. The appeals panel summed up Simpson’s argument to the Commission as follows:

*2 Claimant contended at the hearing and continues to contend on appeal that the great weight of the other medical evidence is contrary to the report of the designated doctor … because [the designated doctor] did not have a later obtained MRI report and because [the designated doctor] is a chiropractor and … claimant’s current treating doctor, is a medical doctor. (Emphasis added)

The record contains nothing that shows that Simpson requested the Commission to designate a medical doctor in place of the designated chiropractor. Nor does the record reflect that Simpson objected to the Commission’s failure to designate a medical doctor. The record shows that Simpson merely argued that the designated chiropractor’s findings were entitled to less weight than Simpson’s treating medical doctor’s findings.²

Because he did not raise the issue to the Commission, Simpson could not raise it in his appeal to the district court, and he cannot raise it here. Judicial review of issues other than those involving compensability, income, or death benefits is governed by the judicial review provisions of the Administrative Procedure Act³ and the substantial evidence rule. TEX. LAB. CODE ANN. § 410.255 (Vernon 1996). A court reviewing a case under the substantial evidence rule must reverse the administrative decision if, among other things, the decision violates a statutory provision. TEX. GOV’T CODE ANN. § 2001.174(2)(A) (Vernon 2000). The reviewing court is confined to the agency record in reviewing an administrative decision under the substantial evidence rule. TEX. GOV’T CODE ANN. § 2001.175(e) (Vernon 2000); Railroad Commission of Texas v. Pend Oreille Oil & Gas Company, Inc., 817 S.W.2d 36, 40 (Tex.1991); Southwestern Bell Telephone Company v. Public Utility Commission, 571 S.W.2d 503, 510 (Tex.1978); Texas Employment Commission v. Schepps Dairy, Inc., 591 S.W.2d 330, 332 (Tex.Civ.App.-Eastland 1979, no writ).

Simpson did not request that the Commission choose another designated doctor, nor did he object to the Commission’s failure to do so. That issue does not appear in the agency record. Because the Commission did not have the chance to address the issue, neither the district court nor this court can do so. Cf. TEX. LAB. CODE ANN. § 410.302 (Vernon 1996) (judicial review of compensability, income, or death benefit issues is limited to those issues decided by the appeals panel); TEX.R.APP.P. 33.1 (to preserve error, a party must make a timely objection or request to the trial court and secure a ruling thereon). We cannot address Simpson’s sole issue on appeal because he did not preserve error.⁴

The judgment of the trial court is affirmed.

	Footnotes
1		See TEX. LAB. CODE ANN. § 408.123 (Vernon 1996).
2		The report of a designated doctor chosen by the Commission has “presumptive weight” unless the great weight of the other medical evidence is to the contrary. Section 408.125(e).
3		TEX. GOV’T CODE ANN. § 2001.171 et seq. (Vernon 2000).
4		Simpson did not raise the issue of whether the trial court erred in granting Industrial’s motion for summary judgment on the ground that the 25 percent impairment rating was invalid because the medical doctor did not find that Simpson had reached MMI. He has thus waived that ground. Malooly Brothers, Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970).