Lara, Aida T. v. Pacific Employers Insurance Company--Appeal from 120th District Court of El Paso County

Becker v. State COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
)

AIDA T. LARA,

)
No. 08-01-00503-CV)

Appellant,

)
Appeal from)

v.

)
120th District Court)

PACIFIC EMPLOYERS INSURANCE

)
of El Paso County, Texas

COMPANY,

)
)
(TC# 97-1231)

Appellee.

)
MEMORANDUM OPINION

Aida T. Lara filed suit in the district court appealing the determination by the Texas Workers' Compensation Commission (the Commission) that she had an impairment rating of 9 percent. Based on the jury's finding of a 9 percent impairment rating, the trial court entered a take nothing judgment in favor of Pacific Employers Insurance Company. We affirm.

FACTUAL SUMMARY

On April 19, 1995, forty-one-year-old Aida T. Lara, who was employed by Levi Strauss, suffered an on-the-job injury as she pulled a cart weighing about thirty pounds. She had immediate onset of pain in her neck, thoracic spine, and lumbar spine. She subsequently filed a claim for workers' compensation benefits.

Lara informed her examining physician that she had no prior back pain but medical records showed that she had reported back pain to Dr. Jose Ruffier only two weeks before the work-related injury. In fact, Dr. Ruffier had ordered an MRI of Lara's cervical spine which was performed on March 27, 1995. It revealed narrowing of the intervertebral space at C5-6. Her physician diagnosed her at that time with degenerative disc disease of the cervical spine with radiculitis. Shortly after her injury, Lara was evaluated by Dr. Joseph Neustein who diagnosed cervical sprain, thoracic sprain, and lumbosacral sprain. Lara underwent a spinal MRI on July 13, 1995 which indicated disc herniation at C5-6 and L4-5. For several months, Lara's treatment consisted of heat, ultrasound, electrical stimulation, and massage, but she reported no improvement. On October 27, 1995, Dr. Neustein reported that Lara had reached maximum medical improvement and he determined that her impairment rating was 31 percent. Dr. Neustein noted that some of Lara's impairment likely preceded the work-related injury and the Commission should take that into account.

The Commission selected Dr. Rodney J. Simonsen to perform an independent medical examination. Dr. Simonsen evaluated Lara on December 27, 1995 and January 31, 1996. Applying the AMA Guides to the Evaluation of Permanent Impairment, Third Edition, Second Printing (February 1989), Dr. Simonsen determined her impairment rating to be 9 percent. In his report, Simonsen noted that Lara had demonstrated considerable theatrics and had magnified her symptoms, particularly when he evaluated her range of motion. In Dr. Simonsen's opinion, Lara had bulging but not herniated discs. It is unclear whether Dr. Neustein agreed or disagreed with Dr. Simonsen's assessment of impairment rating. (1)

Following an unsuccessful benefit review conference and contested case hearing, the hearing officer found Lara's impairment rating to be 9 percent. Lara appealed her impairment rating to the Commission appeals panel, which affirmed. Lara appealed this decision by filing a petition in the district court. She alleged that her impairment rating should be 31 percent rather than 9 percent. At trial, the jury viewed Dr. Simonsen's videotaped deposition, heard portions of Lara's deposition testimony, and reviewed documentary evidence produced by both parties. Based upon this evidence, the jury found that Lara's impairment rating to be 9 percent rather than 31 percent. Consequently, the trial court entered a take-nothing judgment in favor of her employer's insurance carrier, Pacific Employers Insurance Company (PEIC).

IMPAIRMENT RATING

In her sole issue on appeal, Lara contends that her impairment rating should be 46 percent as a matter of law. (2) Alternatively, she requests that judgment be rendered that her impairment rating is 31 percent. (3) In making both arguments, Lara challenges Dr. Simonsen's determination of the 9 percent impairment rating. More specifically, she takes issue with Dr. Simonsen's consideration of the McKenzie evaluation and Waddel testing and his alleged failure to apply the statutory guidelines for assessing impairment rating. She also asserts that Dr. Simonsen was not authorized to reinterpret the MRI films as there was no dispute as to whether Lara had disc herniations.

Standard of Review in the Trial Court

The Texas Workers' Compensation Act mandates four levels of income benefits: (1) temporary income benefits; (2) impairment income benefits; (3) supplemental income benefits; and (4) lifetime income benefits. See generally Tex.Lab.Code Ann. 408.081-408.162 (Vernon 1996 and Vernon Supp. 2003); see also Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504, 513 (Tex. 1995). Temporary income benefits compensate for lost wages while an injured employee is convalescing. Garcia, 893 S.W.2d at 513. They accrue when the employee suffers a disability and continue until "maximum medical improvement." Garcia, 893 S.W.2d at 513; Tex.Lab.Code Ann. 408.101, 408.102 (Vernon 1996). A claimant who is left with an "impairment" after reaching maximum medical improvement becomes eligible for impairment income benefits. Garcia, 893 S.W.2d at 513; Tex.Lab.Code Ann. 408.121, 408.122 (Vernon 1996 and Vernon Supp. 2003). An impairment is defined as any anatomic or functional abnormality or loss existing after maximum medical improvement that results from a compensable injury and is reasonably presumed to be permanent. Tex.Lab.Code Ann. 401.011(23)(Vernon Supp. 2003). The claimant's "impairment rating," which is the percentage of permanent impairment of the whole body, is determined by a physician utilizing the American Medical Association's Guides to the Evaluation of Permanent Impairment (the "Guides"). Garcia, 893 S.W.2d at 513-14; Tex.Lab.Code Ann. 401.011(24), 408.124 (Vernon Supp. 2003). An impairment determination may be made by both the claimant's and the carrier's physician. See Garcia, 893 S.W.2d at 514. If an impairment rating is disputed, the claimant must be examined by a "designated doctor" selected by the Commission. Tex.Lab.Code Ann. 408.125. The designated doctor's rating has presumptive weight and the Commission shall base the impairment rating on that report unless the great weight of the other medical evidence is to the contrary. Tex.Lab.Code Ann. 408.125. If the great weight of the medical evidence contradicts the impairment rating contained in the report of the designated doctor chosen by the Commission, the Commission shall adopt the impairment rating of one of the other doctors. Id.

There are two standards for judicial review, substantial evidence and modified de novo. Rodriguez v. Service Lloyds Insurance Company, 997 S.W.2d 248, 252-53 (Tex. 1999); Tex.Lab.Code Ann. 410.255, 410.301. As explained in Garcia, review under the latter standard is not pure de novo because it is modified in the following respects: (1) the jury is informed of the Commission's decision but it is not required to accord that decision any particular weight; (2) evidence of the extent of impairment is limited to that presented to the Commission unless the court determines that the claimant's condition has substantially changed; (4) and (3) the jury is required to adopt the specific impairment rating arrived at by one of the physicians in the case. (5) Garcia, 893 S.W.2d at 528. Additionally, the trial is limited to those issues decided by the Commission appeals panel and on which review is sought. Tex.Lab.Code Ann. 410.302.

If the dispute involves compensability or eligibility for or the amount of income or death benefits, a district court reviews the Commission appeals panel decision under a modified de novo standard. Rodriguez, 997 S.W.2d at 253; Garcia, 893 S.W.2d at 515. Because the impairment rating impacts the amount of income benefits, Lara's judicial review of her impairment rating was subjected to a modified de novo standard. See Rodriguez, 997 S.W.2d at 253. As the appealing party, Lara had the burden of proof by a preponderance of the evidence. See Tex.Lab.Code Ann. 410.303.

The Appellate Standard of Review

When attacking the legal sufficiency of the evidence to support an adverse finding on an issue for which it had the burden of proof, i.e., challenging the trial court's finding as a matter of law, the appellant must demonstrate on appeal that the evidence conclusively established all the vital facts in support of the issue. Sterner v. Marathon Oil Company, 767 S.W.2d 686, 690 (Tex. 1989); Elias v. Mr. Yamaha, Inc., 33 S.W.3d 54, 59 (Tex.App.--El Paso 2000, no pet.). A party attempting to overcome an adverse fact-finding as a matter of law must surmount two hurdles. Sterner, 767 S.W.2d at 690; Elias, 33 S.W.3d at 59. First, the record must be examined for evidence that supports the finding, while ignoring all evidence to the contrary. Sterner, 767 S.W.2d at 690; Elias, 33 S.W.3d at 59. Second, if there is no evidence to support the finding, then the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner, 767 S.W.2d at 690; Elias, 33 S.W.3d at 59. Only if the contrary position is conclusively established will the point of error be sustained. Elias, 33 S.W.3d at 59.

46 percent Impairment Rating

Before beginning our review of the evidence, we must address Lara's argument that the evidence established her impairment rating is 46 percent as a matter of law. Under the modified de novo standard, the jury was correctly asked to choose between two impairment ratings, 9 percent and 31 percent. See Tex.Lab.Code Ann. 410.306(c). It was not authorized to select a different impairment rating, such as 46 percent or 43 percent, based on the evidence before it. See Garcia, 893 S.W.2d at 528 (noting that if three doctors testify, respectively opining that the claimant is 10, 14, and 20 percent impaired, the jury must return one of those three numbers as its verdict; it may not consider the entirety of the testimony to find, for example, an impairment rating of 16 percent). Lara's contention that her impairment rating is 46 percent as a matter of law is therefore without merit.

31 percent Impairment Rating

In reviewing Lara's contention that her impairment rating is 31 percent as a matter of law, we must first review the record to determine whether any evidence supports the jury's adverse finding of a 9 percent impairment rating, while ignoring all evidence to the contrary. The jury had before it Dr. Simonsen's videotaped deposition testimony and written reports in which he explained the basis for the 9 percent impairment rating. Dr. Simonsen based his impairment ratings for the cervical and lumbar spine according to the criteria of the AMA Guides to the Evaluation of Permanent Impairment (Third Edition). With respect to the cervical spine, he determined that the MRI films showed a bulging disc but not "frank herniation." His conclusion was buttressed by his clinical findings. Thus, the Guides called for a 4 percent impairment rating. Dr. Simonsen found that the range of motion measurements were invalid due to inconsistency and symptom magnification, and consequently, he did not award any range of motion loss for the cervical spine. Due to Lara's abnormal MRI scan, he determined that her impairment rating was 4 percent. He concluded that Lara's thoracic spine did not meet the Spine Specific Disorders and did not assess a rating for it. He further found that her range of motion could not be adequately evaluated and gave zero percent for thoracic range of motion impairment. In Dr. Simonsen's opinion, Lara's lumbosacral spine met the criteria for a "II-B" lumbar spine specific disorder which awards a 5 percent impairment rating. Once again, however, he determined that Lara's range of motion measurements were invalid due to inconsistency. As stated in the Appeal Commission's panel decision, which the jury had in evidence before it, it was permissible for Dr. Simonsen to invalidate the range of motion measurements based upon inconsistencies found during the exam as well as what he termed Lara's symptom magnification and theatrics. (6) All of this evidence supports the 9 percent impairment rating found by the jury.

Lara's Challenge to Dr. Simonsen's Testimony

Lara acknowledges Dr. Simonsen's testimony and the written evidence, but challenges his conclusion. She vigorously argues that although Dr. Simonsen initially applied the AMA Guides to the Evaluation of Permanent Impairment (Third Edition, Second Printing), he improperly disregarded the prior MRI findings and invalidated the range of motion findings through the use of other tests not authorized by the AMA Guides as well as his own subjective opinion. We understand her to challenge the reliability of his expert opinion in the context of this legal sufficiency challenge. In Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997), the Supreme Court held that the legal sufficiency of expert testimony to support a finding can be reviewed by examining the reliability of the expert's data and methodology using the Robinson factors for the admissibility of that same testimony. Havner, 953 S.W.2d at 713-14; E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)(adopting the holding setting forth the standards of the admissibility of expert testimony in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 113 S. Ct. 2786, 2795, 125 L. Ed. 2d 469 (1993)). To preserve a complaint that scientific evidence is unreliable, and thus no evidence, a party must object to the evidence before trial or when the evidence is offered. Melendez v. Exxon Corporation, 998 S.W.2d 266, 282 (Tex.App.--Houston [14th Dist.] 1999, no pet.), citing Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998). Because Lara did not raise any of these objections at trial, her complaints regarding the reliability of Dr. Simonsen's expert opinion will not render the evidence insufficient to support the 9 percent impairment rating. Even if Lara had preserved her complaints, they are without merit for the reasons stated below.

Invalidation of ROM Findings

Lara generally asserts that Dr. Simonsen had no authority to invalidate the range of motion findings based upon his conclusion that she was magnifying her symptoms. In her view, Dr. Simonsen was restricted to performing the measurements required by the AMA Guide (Third Edition) and could not invalidate them even if he concluded that Lara had intentionally restricted her ROM. As already noted in this opinion, the Workers' Compensation Commission Appeals Panel has repeatedly held that an evaluating physician is permitted to invalidate ROM findings based upon the doctor's observation and clinical experience. Nothing in the AMA Guide (Third Edition) requires the type of mechanistic approach advocated by Lara and we decline to read it into the AMA Guide (Third Edition).

 
The Herniated Discs Issue

In his assessment, Dr. Simonsen found that Lara had bulging, but not herniated discs in her cervical and lumbar spine. This resulted in an award of 4 percent and 5 percent impairment, respectively, rather than awards of 6 percent and 7 percent. Lara complains that Dr. Simonsen was not authorized to disregard the prior MRI findings that Lara had herniated discs in her cervical and lumbar spines because neither party had disputed that diagnosis. Lara cites no authority in support of this position. Section 1.2 of the AMA Guides to the Evaluation of Permanent Impairment (Third Edition) requires the evaluating physician to analyze the history and course of the medical condition, beginning with the circumstances of onset, and including findings on previous examinations, the course of treatment, responses to treatment, and the impact of the medical condition on life activities. Therefore, the AMA Guides supports Dr. Simonsen's evaluation of Lara's injury. Further, the existence of a herniated disc is an integral part of an impairment rating. Therefore, it was appropriate for Dr. Simonsen to consider the nature and extent of Lara's injury in making his impairment rating assessment.

The McKenzie Evaluation and Waddel Testing

Lara also takes issue with Dr. Simonsen's utilization of the McKenzie evaluation and Waddel testing during his examination. She maintains that only the AMA Guides may be considered in making an impairment rating. Dr. Simonsen explained that with the McKenzie evaluation, he asks the patient to perform repeated movements in order to assess what effect the different movements have on the patient's pain level and other symptoms. Once he determines which movements aggravate the symptoms, he prescribes different movements and exercises designed to eliminate the symptoms. For example, a patient with a herniated disc in the lumbar spine frequently feels increased pain if she repeatedly bends forward. If she bends backward, however, the pain will often centralize in the lumbar spine or disappear completely. Dr. Simonsen explained that because people bend forward some 200 to 400 times every day, and often never bend backward, constant pressure on the front of the disc can eventually cause it to bulge. Performing the opposite movement may relieve the patient's pain. Dr. Simonsen believed the McKenzie system is more sensitive than motor and sensory testing. Although Dr. Simonsen determined that Lara's pain was made significantly worse during flexion movements, and he criticized her prior therapy for including flexion movements, there is no evidence that he used the McKenzie system rather than the tests prescribed by the AMA Guides in determining her impairment rating. Further, the AMA Guides contemplate that the evaluating physician will assess the patient's condition, course of treatment and response to treatment.

Dr. Simonsen explained that Waddel testing is named after an English orthopaedic surgeon, Gordon Waddel. It is one method of determining whether a patient is giving truthful responses. The examining physician uses light touch and then asks the patient for a reaction. For example, the examiner might place the weight of his hands on the patient's shoulders. If the patient were to state that it caused terrible pain, the examiner might suspect that the patient was not being honest. With respect to Lara, light touch caused severe pain in the neck and lower back. When Dr. Simonsen merely placed his hands on Lara's shoulders, she complained of severe pain in the lower back. Additionally, he placed his hands on Lara's hips and rotated her a few degrees to the right and then the left. The movement should not cause any pain in the spine because the examiner is rotating the upper body as a unit and there is no rotation of the spine. When Lara complained of horrible pain in the spine, he formed the opinion that she was not being truthful. Because it is appropriate for an examining physician to invalidate range of motion measurements if he concludes that a patient is magnifying her symptoms, Dr. Simonsen's use of Waddel testing to assist him in assessing the truthfulness of Lara's responses is proper.

CONCLUSION

The record before us reflects that the 9 percent impairment rating is supported by some evidence. Consequently, Lara's sufficiency challenge fails. Her sole issue on appeal is overruled and the judgment of the trial court is affirmed.

 

July 3, 2003 ANN CRAWFORD McCLURE, Justice

 

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

1. Lara's counsel informed Dr. Neustein of Dr. Simonsen's impairment ratings for the cervical and lumbar spine at 4 percent and 5 percent, respectively, and asked him whether he agreed or disagreed with them. In the same paragraph of the letter, counsel also asked Dr. Neustein whether he agreed that the impairment ratings should be 6 percent and 7 percent based upon the AMA Guides. In his reply letter, Dr. Neustein stated simply that he agreed but did not indicate whether his agreement was with Dr. Simonsen's impairment ratings or with the impairment ratings suggested by counsel.

2. In her original brief, Lara asserted that her impairment rating should be 54 percent as a matter of law. However, she modified the proposed figure to 46 percent in her reply brief. At oral argument, Lara's counsel alternatively suggested an impairment rating of 43 percent. Given that the prayer in Lara's reply brief requests reversal and a rendition of a 46 percent impairment rating, we will restrict our analysis to her contention that her impairment rating should be 46 percent as a matter of law.

3. In stating her argument in the reply brief, Lara argues that the 31 percent impairment rating is "more credible" than the 9 percent impairment rating. Because she requests rendition of judgment for either a 46 percent or 31 percent impairment rating, we are restricting our review to legal sufficiency. To the extent Lara may have intended to raise a factual sufficiency challenge in the reply brief by stating that the 31 percent impairment rating is "more credible," it will not be addressed as Lara did not raise this issue in her original brief. See Smith v. Hues, 540 S.W.2d 485, 489 (Tex.Civ.App.--Houston [14th Dist.] 1976, writ ref'd n.r.e.). The Texas Rules of Appellate Procedure do not allow an appellant to include in a reply brief a new issue in response to some matter pointed out in the appellee's brief but not raised by appellant's original brief. Tex.R.App.P. 38.3; see also Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 424 (Tex. 1996)(holding that issue of disqualification of counsel "not properly raised" where only reference to the issue was in reply brief); Barrios v. State, 27 S.W.3d 313, 322 (Tex.App.--Houston [1st Dist.] 2000, pet. ref'd).

4. Tex.Lab.Code Ann. 410.306(c), 410.307.

5. Tex.Lab.Code Ann. 410.306(c).

6. The Appeals Panel Decision, admitted as Defendant's Exhibit 6, stated as follows:

 

The claimant contends that her IR should be greater than nine percent and states that Dr. [Simonsen] should not have invalidated cervical and lumbar ROM testing. In Texas Workers' Compensation Commission Appeal No. 960311, decided March 27, 1996, we stated that 'a doctor may through observation and his clinical experience determine either a normal ROM, or that measured limitations are invalid.' In Texas Workers' Compensation Commission Appeal No. 960868, decided June 20, 1996, we stated that 'a doctor can invalidate even otherwise valid [ROM] measurements based upon clinical evaluation'; and in Texas Workers' Compensation Commission Appeal No. 960034, decided February 5, 1996, we held that a designated doctor had a proper basis for discounting the ROM measurements where those measurements were significantly inconsistent with the doctor's observations of the claimant's motions.