Court of Appeals of Texas,

Eastland.

Jerry A. SCHMIDT, Appellant

v.

HARTFORD UNDERWRITERS INSURANCE COMPANY, Appellee.

No. 11–97–00205–CV.

|

Aug. 26, 1998.

Attorneys & Firms

Jerry A. Schmidt, pro se.

Richard E. Griffin, William Todd Barnett and Ryan Chadwick, for Hartford Underwriters Insurance.

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

OPINION

PER CURIAM.

*1 Jerry A. Schmidt sustained injuries to his cervical spine, his lumbar spine, and his left knee. Dr. Roberta Kalafut examined Schmidt and determined that he had an impairment rating of 6 percent. Dr. Kalafut forwarded her findings to Schmidt’s treating physician, Dr. Sam Daggubati, who concluded that Schmidt’s impairment rating was 5 percent. Schmidt disputed both of these impairment ratings, and Dr. Jack Chitwood was appointed to examine Schmidt. Dr. Chitwood concluded that Schmidt’s impairment rating was 10 percent. Dr. Rodney Simonsen was selected as the “second designated doctor.” Dr. Simonsen initially assessed that Schmidt incurred a 6 percent whole person impairment on his lower extremity, a 5 percent impairment for his lumbar spine, and a 4 percent impairment for his cervical spine for a combined total impairment rating of 15 percent. Dr. Simonsen then determined that the appropriate procedure under the American Medical Association Guide required the combining of all regional spinal impairment ratings resulting in a 1 percent adjustment to his prior calculations. Therefore, Dr. Simonsen concluded that Schmidt’s “whole person” impairment rating was 14 percent. The Workers’ Compensation Commission officer determined that Schmidt had a 14 percent impairment rating as concluded by Dr. Simonsen. In Appeal No. 961665, the Commission’s appeals panel affirmed the hearing officer’s decision. Schmidt filed this suit, challenging the decision of the appeals panel. The trial court granted Hartford Underwriters Insurance Company’s motion for summary judgment and entered a take-nothing judgment. Schmidt appeals. We affirm.

Schmidt has maintained at all pertinent times that his impairment rating should be 15 percent, Dr. Simonsen’s initial determination. This is the only issue presented to the trial court. TEX. LABOR CODE ANN. § 410.302 (Vernon 1996). TEX. LABOR CODE ANN. § 410.306(c) (Vernon 1996) limits evidence of extent of impairment to “that presented to the commission.”¹ The only impairment ratings presented to the Commission were Dr. Kalafut’s figure of 6 percent, Dr. Daggubati’s figure of 5 percent, Dr. Chitwood’s figure of 10 percent, and Dr. Simonsen’s adjusted figure of 14 percent.

In order to determine if the trial court erred in granting the motion for summary judgment, we must consider the summary judgment evidence in the light most favorable to the non-movant, indulging all reasonable inferences in favor of the non-movant, and determine whether the movant proved that there was no genuine issue of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979). The figure of 15 percent impairment was not presented in evidence either to the Commission or to the trial court. The trial court did not err in granting Hartford’s motion for summary judgment. Appellant’s contentions on appeal are overruled.

*2 The judgment of the trial court is affirmed.

	Footnotes
1		Section 410.306(c) provides for exceptions under TEX. LABOR CODE ANN. § 410.307 (Vernon 1996) to this limitation. We note that none of the exceptions listed in Section 410.307 were raised or apply.