Court of Appeals of Texas,

Corpus Christi-Edinburg.

Abelardo IBARRA

v.

GONZALES COUNTY, TEXAS (Self-Insured).

No. 13-95-355-CV.

|

March 20, 1997.

Attorneys & Firms

Forrest Penney, Jr., Paul S. Watkins and Kelley F. Whalen, for Abelardo Ibarra.

David Charles Payne and C. Rex Hall, for Gonzales County, Texas.

Before Justices DORSEY, CHAVEZ and RODRIGUEZ.

OPINION

Opinion by Justice DORSEY.

*1 Abelardo Ibarra appeals a summary judgment granted in favor of Gonzales County in the County’s suit contesting an award of benefits by the Texas Worker’s Compensation Commission to Ibarra. A hearings examiner and an appeals panel at the Commission found against the County, where the sole issue was whether the County preserved its right to contest Ibarra’s impairment rating by disputing it within ninety days of receiving notice of the rating. The County appealed the ruling of the Commission by filing an appropriate action in the 25th District Court of Gonzales County. The district court granted the County’s motion for summary judgment, holding that the County had timely disputed appellant’s impairment rating, and referred the case back to the Commission, assessing costs against appellant. We reverse and remand.

Background

Appellant, a Gonzales County employee, was injured in August 1991 while driving a loaded dump truck over a county bridge that collapsed. Appellant sought workers’ compensation benefits for his injuries. In October 1992 appellant’s treating doctor, G.T. Kappmeyer, D.C., referred appellant to Chester Y. Smith, D.C., for the purpose of determining appellant’s “impairment rating.” The impairment rating is important because it determines the amount of long-term benefits an injured worker will receive through the workers’ compensation system.¹ The Labor Code directs that an impairment rating should be assigned “[a]fter an employee has been certified by a doctor as having reached maximum medical improvement.”²

On October 27, 1992 Dr. Smith assessed appellant’s impairment rating at 25%. The County’s adjuster received Dr. Smith’s report on December 3, 1992, but the report was not on the required “Report of Medical Evaluation” form (form TWCC-69). On April 13, 1993 the adjuster received a TWCC-69 from Dr. Kappmeyer which stated that appellant’s date of “maximum medical improvement” was October 30, 1992. The County then disputed appellant’s impairment rating, assessing an impairment rating of 5%.

At a contested case hearing, a hearings examiner for the Commission determined that the County had received notification that appellant had reached maximum medical improvement when it received Dr. Smith’s report on December 3, 1992 and that it therefore had not timely disputed appellant’s impairment rating. An appeals panel of the Commission upheld the hearings examiner’s finding, and the County sought review of the decision in the district court. The district court granted the County’s motion for summary judgment, and this appeal ensued.

Standard of Review

A. Trial court review

The appeal of a ruling of the Commission to district court on an issue other than compensability of the injury or the amount of income and death benefits is determined by the court under the substantial evidence rule. Tex. Lab.Code Ann. § 410.255 (Vernon 1996); Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 515 (Tex.1995); see also Tex. Gov’t Code Ann. § 2001.171 et seq. (Vernon Pamph.1997) (setting out standards and procedures for trial court review of administrative agency decisions). “Substantial evidence” is that which is more than a scintilla, although it need not preponderate. See Olivarez v. Aluminum Corp. of Am., 693 S.W.2d 931, 932 (Tex.1985). When conducting a substantial evidence review, the trial court reviews the evidence before the administrative agency and determines whether the agency’s decision was “reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole.” Tex. Gov’t Code Ann. § 2001.174(2)(E) (Vernon Pamph.1997). In other words, the trial court must determine whether the agency’s decision is reasonably supported by more than a scintilla of reliable and probative evidence.

B. Appellate court review

*2 In the present case, Gonzales County sought and obtained summary judgment in the district court. Accordingly, we apply the standard of review for summary judgments set out by the supreme court. Those standards are:

1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.

2. In deciding whether a disputed material fact issue exists, we accept as true evidence favorable to the non-movant.

3. We indulge in every reasonable inference and resolve any doubts in the non-movant’s favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In order to prevail on its motion for summary judgment, therefore, the County was required to show that there was no issue of fact regarding the date that it received notice of appellant’s maximum medical improvement, and that the Commission’s determination was not supported by substantial evidence. We do not believe the County carried this burden.

Discussion

Although the Texas Workers Compensation Act does not set a deadline for disputes of impairment ratings, the Commission’s rules provide that “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) (West 1996). The rules also provide that a doctor who determines that a claimant has reached maximum medical improvement “shall complete and file a medical evaluation report.” 28 Tex. Admin. Code § 130.1(a) (West 1996). Under the Act, if there is no maximum medical improvement, then there is no entitlement to either impairment income benefits or to supplemental income benefits. See Tex. Lab.Code Ann. §§ 408.122, 408.142 (Vernon 1996). The report of maximum medical improvement and impairment rating must be submitted on the TWCC-69 form. Id.

In the present case, the hearings examiner determined that the County’s adjuster received the TWCC-69 form from Dr. Kappmeyer on December 3, 1992, at the same time it received Dr. Smith’s report. The examiner based this determination on several facts:

1. The County received notification of appellant’s 25% impairment rating when it received Dr. Smith’s report on December 3, 1992;

2. Dr. Smith’s report refers to Dr. Kappmeyer as the attending physician and notes that the reason for the referral was to determine appellant’s impairment rating;

3. The TWCC-69 form submitted by Dr. Kappmeyer reflects the 25% impairment rating as determined by Dr. Smith and says “see attached, Dr. Smith’s reports;”

4. The County was aware that “an impairment rating is the companion of maximum medical improvement,” and that the County had received a document “the condition precedent to which is a finding of maximum medical improvement.”

Based on these facts, the hearings examiner determined that “it is … reasonable to infer that the treating doctor dispatched the TWCC-69 and the Smith report to which it refers and that it was misfiled or lost in the bureaucracy of the Self-Insured,” and “the most logical conclusion is that Dr. Smith sent his report to Dr. Kappmeyer.”

*3 Viewing the evidence in the light most favorable to appellant, as we must, we cannot say that the examiner’s determination was not supported by substantial evidence. The TWCC-69 form submitted by Dr. Kappmeyer refers to Dr. Smith’s report, “attached.” This indicates that the TWCC-69 form was attached to Dr. Smith’s report at some time. Indulging the reasonable inference in favor of appellant and resolving any doubts in his favor, we hold that the hearings examiner’s determination that the TWCC-69 was attached to Dr. Smith’s report when the report was received by the County’s adjuster is supported by substantial evidence. The County therefore received notice of appellant’s impairment rating and maximum medical improvement on December 3, 1992. Because the County did not contest the impairment rating within ninety days, it waived the right to do so and the impairment rating became final.

The County argues that the impairment rating was invalid because it was assessed three days before the date of appellant’s maximum medical improvement, which runs contrary to the rule. See Tex. Lab.Code Ann. § 408.123(a) (Vernon 1996). However, nothing in the record indicates that this issue was presented to the Commission, so we hold that the County waived this argument.

We sustain appellant’s point of error, REVERSE the summary judgment of the trial court, and REMAND this case for further proceedings consistent with this opinion.

	Footnotes
1		See Tex. Lab.Code Ann. §§ 408.121, 408.142 (Vernon 1996).
2		Tex. Lab.Code Ann. § 408.123(a) (Vernon 1996).