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Ballard v. Arch Insurance Company
October 29, 2015
478 S.W.3d 950
Published Opinion

Ballard v. Arch Insurance Company

Court of Appeals of Texas, Houston (14th Dist.).

Joe BALLARD, Appellant


ARCH INSURANCE COMPANY and Transforce, Inc., Appellees

NO. 14–14–00647–CV


Opinion filed October 29, 2015

*952 On Appeal from the 113th District Court, Harris County, Texas, Trial Court Cause No. 2012–68526

Attorneys & Firms

Jonathan Brian Zumwalt, Houston, TX, for Appellant.

George P. Pappas, Houston, TX, for Appellee.

Panel consists of Chief Justice Jamison and Busby.


Kem Thompson Frost, Chief Justice

This is an appeal of a summary judgment in favor of an employer and a workers’ compensation carrier. The employee suffered a compensable injury to his left eye. The employee claimed the injury aggravated his pre-existing glaucoma. In this appeal we are presented with questions about the qualifications of the designated doctor, and whether or not the record contains fact issues regarding the extent of the employee’s injury, the employee’s date of maximum medical improvement (MMI), and the employee’s impairment rating. We affirm.


Appellant Joe Ballard suffers from chronic glaucoma. Ballard was working for appellee Transforce, Inc. delivering auto parts when a customer, angry about the delivery of an incorrect order, hit Ballard in the left eye with a box. Ballard sought medical treatment from ophthalmologists Dr. Florence Wooten and Dr. Michael Mapp. Dr. Wooten noticed a contusion. Transforce, Inc. and Arch Insurance Company (hereinafter the “Carrier Parties”) agreed the contusion was a compensable injury and paid for the treatment.

Ballard alleges that the contusion aggravated his pre-existing glaucoma, not the compensable injury. Ballard and the Carrier Parties participated in a benefit review conference. After the benefit review conference, Ballard requested a contested case hearing. At the contested case hearing, the parties presented evidence to a hearing officer. The hearing officer determined Ballard was not entitled workers’ compensation benefits for his vision loss. The officer determined Ballard’s date of MMI was January 25, 2011, and his permanent *953 impairment rating is zero percent. Ballard appealed that determination to the Appeals Panel of the Workers’ Compensation Division. The Appeals Panel did not issue a decision and the hearing officer’s decision became final.

Ballard then sought review in the trial court, where he challenged the conclusions of law that he had reached MMI, that he had an impairment rating of zero percent, and that the compensable injury did not include his glaucoma. The trial court granted the motion in its entirety and Ballard now challenges that ruling on appeal.


In a traditional summary-judgment motion, if the movant’s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).


Ballard challenges the trial court’s summary judgment in favor of the Carrier Parties in four issues. Ballard asserts the trial court erred in granting summary judgment because (1) fact issues preclude determining the Carrier Parties proved as a matter of law that Ballard reached MMI on January 25, 2011, (2) fact issues preclude finding the Carrier Parties proved as a matter of law that Ballard’s impairment rating is zero percent, (3) Dr. Rothenberg was not qualified to give an opinion on the medical issues in the case, and (4) the interests of justice excuse any failure by Ballard to preserve error. We address Ballard’s third issue first.

A. Dr. Rothenberg’s Qualifications

Because the parties disputed Ballard’s impairment rating and date of MMI, the Division of Workers’ Compensation appointed a designated doctor, Dr. Rothenberg, *954 to evaluate Ballard. Ballard argues that Dr. Rothenberg’s opinion should have been excluded because Dr. Rothenberg is not qualified to evaluate Ballard’s condition.1 In particular, Ballard argues that Dr. Rothenberg is a plastic surgeon rather than an ophthalmologist and therefore Dr. Rothenberg did not have the appropriate experience to examine Ballard.


In support of his argument that Dr. Rothenberg, as a plastic surgeon, is not qualified to perform an eye examination, Ballard argues that Texas Administrative Code section 127.130(b)(6) requires an eye exam to be conducted by an ophthalmologist. The provision does not apply in this case. See Tex. Admin. Code § 127.130(b)(6) (West, Westlaw through 2015 R.S.). It applies to eye examinations conducted after January 1, 2013, and the exam in this case occurred in January 2011. See id. But, Ballard argues even if the statute does not apply, this statute shows the Legislature intended for eye exams to be conducted by ophthalmologists. Section 127.130(b)(6) provides, “[t]o examine injuries and diagnoses relating to the eyes, including the eye and adnexal structures of the eye, a designated doctor must be a licensed medical doctor, doctor of osteopathy, or doctor of optometry.” Dr. Rothenberg is a licensed medical doctor. Accordingly, even if section 127.130(b)(6) applied to this case, it would not preclude Dr. Rothenberg from examining Ballard’s injuries. See id.

Dr. Rothenberg holds a professional certification in plastic surgery and his experience matrix indicates he has experience in performing surgery on the eyes, providing follow-up care for eyes, and prescribing eye medication after surgery. The hearing officer indicated the evidence strongly supports a determination that Dr. Rothenberg is qualified to evaluate Ballard’s injuries. Ballard was hit in the eye and suffered a contusion. Dr. Rothenberg is a specialist certified in surgery with experience performing eye surgery and taking responsibility for follow-up, including prescribing medication. Dr. Rothenberg had the qualifications to evaluate Ballard’s impairment and date of MMI related to the contusion. Ballard argues that Dr. Rothenberg’s experience matrix is “self-serving,” but Ballard did not present any evidence that Dr. Rothenberg’s experience matrix is inaccurate.

Ballard also asserts that Dr. Rothenberg did not perform an appropriate examination. The Carrier Parties assert Ballard waived this issue by failing to present it to the Appeals Panel. The Labor *955 Code sets up a scheme for reviewing applications for workers’ compensation benefits that is similar to other administrative-review schemes. See (c) (West, Westlaw through 2015 R.S.).

At the contested case hearing, only one issue was presented regarding Dr. Rothenberg: “Was Dr. Philip Rothenberg, M.D. appointed as the designated doctor in accordance with Labor Code section 408.041.

Ballard now seeks to raise the issue of whether Dr. Rothenberg’s report should be excluded for failure to follow the American Medical Association guidelines. We conclude this issue was not before the Appeals Panel because Ballard did not raise the issue at the contested case hearing and the Appeals Panel was limited to the issues presented at the contested case hearing. See Southern Ins. Co., 249 S.W.3d at 16.

*956 Because Ballard has waived any issue relating to whether Dr. Rothenberg performed an evaluation that complied with American Medical Association guidelines and because Dr. Rothenberg was qualified to perform the designated doctor evaluation, the trial court did not abuse its discretion by considering Dr. Rothenberg’s opinions as part of the summary-judgment evidence. See Abilene Indep. Sch. Dist. v. Marks, 261 S.W.3d 262 (Tex.App.–Eastland 2008, no pet.). We overrule Ballard’s third issue.

B. Extent of the Compensable Injury

Under his first and second issues, Ballard argues that his compensable injury included the aggravation of his Humphrey v. AIG Life Ins. Co., No. 14–08–00973, 2010 WL 2635643, at *5 n.3 (Tex.App.–Houston [14th Dist.] Jul. 1, 2010, pet. denied) (noting that workers’ compensation benefits are available only when a claimant proves a causal connection between the injury and the disability) (mem.op.).

Ballard asserts the record contains a fact issue on the extent of the compensable injury because evidence in the record shows the compensable injury aggravated his pre-existing glaucoma.3 The record contains the following evidence:

• Dr. Mitchell Porias performed a peer review in December 2010. Dr. Porias reviewed Dr. Wooten’s treatment notes. Dr. Porias concluded that Ballard’s current complaints relate to pre-existing glaucoma. Dr. Porias determined “there is no causal relation between the injury and his current treatment.”

• Dr. Rothenberg filed a medical report on January 25, 2011. In his report, Dr. Rothenberg concluded there was no permanent impairment from the compensable injury. Dr. Rothenberg determined Ballard attained MMI on January 25, 2011. He determined Ballard’s impairment rating is zero percent.

*957 • In April 2011, Dr. Wooten challenged Dr. Rothenberg’s report, characterizing his conclusion that there is no causal relationship between the compensable injury and the current treatment as “premature.” Dr. Wooten stated that “[t]he aggravation of Mr. Ballard’s intraocular pressure may be caused by or at least aggravated by the injury.” Dr. Wooten reached this conclusion because a “recognized connection” between trauma and elevated intraocular pressure showed “a causal connection, even if attenuated, could exist between the injury and later treatment for glaucoma.”

• Dr. Porias performed a second peer review in June 2011. In that review, he addressed whether or not Ballard’s current treatment was a result of the compensable injury. Dr. Porias stated:

I would opine that this is a pre-existing of advanced glaucoma[,] that the optic nerve imaging and visual field loss that occurred and examined approximately one week after the injury would be untenable. Retinal nerve fibers do not show this kind of loss unless there has been a chronic process.

Dr. Porias noted “there is a small possibility that the cataract surgery[,] I feel that this is an old preexisting.”

• In August 2011, Ballard saw Dr. Charles Miller. Dr. Miller determined that Ballard had iritis was treated.

• In January 2012, after the contested benefit case hearing, Dr. Michael Mapp sent a letter to the Division stating that Ballard’s pre-existing glaucoma before the injury.

• In August 2012, Dr. Mapp sent a second letter stating the permanent damage to Ballard’s eyesight is a result of glaucoma and make it more difficult to manage.”

Ballard argues that this evidence creates a fact issue regarding whether or not the compensable injury extended to the blindness in his left eye. The record contains evidence that several doctors concluded the compensable injury did not aggravate Ballard’s pre-existing glaucoma.

Ballard points to the opinions of Dr. Wooten and Dr. Mapp to assert he has raised a fact issue, but neither doctor attested to more than the theoretical possibility that trauma could exacerbate id.

C. Date Ballard Attained Maximum Medical Improvement

In his first issue, Ballard asserts that the trial court erred in granting the Carrier Parties’ summary-judgment motion because Ballard raised a fact issue regarding his date of MMI. A doctor may certify an impairment rating when the employee reaches MMI. Id.

Ballard does not state which evidence raises a fact issue, nor does he explain whether he believes he has not yet reached MMI or reached MMI on another date. The record contains reports from Dr. Miller, Dr. Porias, Dr. Wooten, and Dr. Rothenberg. Only two of the doctors, Dr. Wooten and Dr. Rothenberg, address the date of MMI. Dr. Rothenberg stated that the date of maximum medical improvement was January 25, 2011. The Carrier Parties argue the trier of fact could not consider Dr. Wooten’s opinion because she is not certified to perform MMI or impairment rating evaluations. Even presuming for the sake of argument that the trier of fact could consider Dr. Wooten’s opinion, her opinion does not raise a fact issue because she provided the same date of MMI as Dr. Rothenberg. Dr. Wooten wrote that Ballard’s date of MMI was on or near January 25, 2011. Because all of the evidence regarding MMI showed Ballard reached MMI on or near January 25, 2011, the trial court did not err in granting summary judgment on the Carrier Parties’ claim that they proved as a matter of law Ballard attained MMI on January 25, 2011. See Ausaf v. Highland Ins. Co., 2 S.W.3d 363, 367 (Tex.App.—Houston [1st Dist.] 1999, pet. denied) (limiting jury’s consideration of evidence to valid impairment ratings *959 presented to Division). We overrule Ballard’s first issue.

D. Ballard’s Impairment Rating

Dr. Rothenberg determined Ballard’s impairment rating from the compensable injury is zero percent. Ballard argues the Carrier Parties have not proved his impairment rating is zero percent as a matter of law.

To obtain impairment benefits, an employee must be certified by a doctor as having reached MMI and must be assigned an impairment rating by a certifying doctor. Tex. Lab. Code Ann. § 410.306(b).

Under his second issue, Ballard makes two main arguments. First, Ballard argues Dr. Rothenberg’s impairment rating is invalid and should not be considered as evidence. Second, Ballard points to evidence in the record and argues it creates a fact issue regarding his impairment rating.

Ballard asserts Dr. Rothenberg’s impairment rating is invalid because (1) Dr. Rothenberg is not qualified to provide an impairment rating, (2) Dr. Rothenberg did not follow the appropriate guidelines for issuing an impairment rating because he did not physically examine Ballard, and (3) this court should reject Dr. Rothenberg’s impairment rating because his findings are inconsistent with the findings of the other providers in this case. We already have rejected Ballard’s first two complaints. With respect to Ballard’s third contention, our review of the record indicates that Dr. Rothenberg’s findings are consistent with the findings of the other providers.

The record before the trial court contained only two impairment ratings. Dr. Rothenberg stated that Ballard’s contusion had resolved and Ballard had a zero percent impairment rating as a result of the compensable injury. Even presuming for the sake of argument that (1) Ballard preserved error regarding his claim that Dr. Wooten’s impairment rating is admissible evidence, and (2) Dr. Wooten’s impairment is admissible evidence, Dr. Wooten’s *960 impairment rating does not raise a fact issue because it does not address the compensable injury. Dr. Wooten stated that because Ballard’s “vision is 20/400[,] the corresponding percentage of loss noted in the PDR for Ophthalmology’s impairment rating is 90%.”

We already have rejected Ballard’s argument that the compensable injury includes aggravation of his pre-existing Weeks, 259 S.W.3d at 340.

The only other impairment rating in the record is Dr. Rothenberg’s impairment rating of zero percent. If there is a valid rating, the trier of fact must accept an impairment rating from a physician in the case. Am. Zurich Ins. Co., 370 S.W.3d at 366.


The trial court did not err in granting the Carrier Parties’ summary-judgment motion because Dr. Rothenberg was qualified to conduct a designated-doctor examination of Ballard, and the record does not contain any fact issues with respect to (1) the extent of the compensable injury, (2) Ballard’s date of MMI, and (3) Ballard’s impairment rating. Accordingly, the judgment of the trial court is affirmed.



We presume for the sake of argument that Ballard timely presented this argument to the trial court and obtained a ruling on his objection.


In Ballard’s petition, he sought to challenge the conclusion of law that the compensable injury did not extend to glaucoma and that the Carrier Parties asserted a no-evidence ground with respect to causation.


We presume for the sake of argument that this issue is fairly encompassed within the first issue Ballard presented to the Appeals Panel. In his fourth issue, Ballard asserts “to the extent that Appellees argue that the issue of intraocular pressure was not raised by Appellant initially, this also violates all notions of equity.” We need not address this issue because we presume Ballard preserved error. Ballard’s fourth issue is overruled.


Ballard argues that the Division of Workers’ Compensation was not required to accept Dr. Rothenberg’s impairment rating because id. § 410.306(c).

End of Document