Joe Ballard v. Arch Insurance Company and Transforce Inc. , 478 S.W.3d 950 ( 2015 )

Affirmed and Opinion filed October 29, 2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00647-CV
JOE BALLARD, Appellant
V.
ARCH INSURANCE COMPANY AND TRANSFORCE, INC., Appellees
On Appeal from the 113th District Court
Harris County, Texas
Trial Court Cause No. 2012-68526
OPINION
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 and sought compensation for vision loss associated with 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.
I. FACTUAL AND PROCEDURAL BACKGROUND
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,
causing the intraocular pressure to spike in his left eye, which he claims resulted in
permanent blindness in his left eye. The Carrier Parties contend Ballard’s vision
loss resulted from 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 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
Carrier Parties filed a summary-judgment motion in which they asserted as
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traditional summary-judgment grounds that Ballard’s date of MMI was January 25,
2011, his impairment rating is zero percent, Dr. Philip Rothenberg, the doctor
designated by the Division of Workers’ Compensation, had the appropriate
credentials to address Ballard’s eye injury, and Ballard’s eye injury did not extend
to his glaucoma. The Carrier Parties also asserted a no-evidence ground that there
was no evidence the compensable injury extended to glaucoma. The trial court
granted the motion in its entirety and Ballard now challenges that ruling on appeal.
II. STANDARD OF REVIEW
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. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In reviewing a no-evidence summary
judgment, we ascertain whether the nonmovant pointed out summary-judgment
evidence raising a genuine issue of fact as to the essential elements attacked in the
no-evidence motion. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206–
08 (Tex. 2002). In our de novo review of a trial court’s summary judgment, we
consider all the evidence in the light most favorable to the nonmovant, crediting
evidence favorable to the nonmovant if reasonable jurors could, and disregarding
contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez,
206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if
reasonable and fair-minded jurors could differ in their conclusions in light of all of
the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007). When, as in this case, the order granting summary
judgment does not specify the grounds upon which the trial court relied, we must
affirm the summary judgment if any of the independent summary-judgment
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grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d
868, 872 (Tex. 2000).
III. ANALYSIS
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, 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.
Texas Labor Code section 408.0041(a) provides for the appointment of a
designated doctor to resolve any question about the impairment caused by a
compensable injury, the attainment of MMI, and the extent of an employee’s
compensable injury. Tex. Lab. Code Ann. § 408.0041(a) (West, Westlaw through
2015 R.S.). Section 408.0041(b) states that the medical examination shall be
1
We presume for the sake of argument that Ballard timely presented this argument to the
trial court and obtained a ruling on his objection.
4
performed by the next available doctor on the Division of Workers’
Compensation’s list of certified designated doctors whose credentials are
appropriate for the area of the body affected by the injury and the injured
employee’s diagnosis as determined by commission rule. Id. § 408.0041(b).
Texas Labor Code section 408.0043(b) provides that a designated doctor “who
reviews a workers’ compensation case must hold a professional certification in a
health care specialty appropriate to the type of health care that the injured
employee is receiving.” Id. §§ 408.0043(b), 408.0043(a)(4).
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
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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 Code sets up a scheme for reviewing
applications for workers’ compensation benefits that is similar to other
administrative-review schemes. See Tex. Lab. Code Ann. 410.001 et. seq. (West,
Westlaw through 2015 R.S.); Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801,
803–04 (Tex. 2001). The statutory scheme requires a claimant to exhaust the
claimant’s administrative remedies before filing a claim in the trial court. See Am.
Motorists Ins. Co., 63 S.W.3d at 803–04; Tex. Lab. Code Ann. § 410.302 (b)
(West, Westlaw through 2015 R.S.) (providing “[a] trial under this subchapter is
limited to issues decided by the appeals panel and on which judicial review is
sought”). To present an issue to the trial court, a claimant must have presented the
issue at the contested case hearing and to the Appeals Panel. See Trinity Universal
Ins. Co. v. Berryhill, No. 14-03-00629-CV, 2004 WL 744417, at *3–4 (Tex.
App.—Houston [14th Dist.] Apr. 8, 2004, no pet.) (mem. op.) (noting there was no
indication the issue was before the contested case hearing, concluding it was not
before Appeals Panel, and determining claimant was precluded from seeking
judicial review of the issue); Southern Ins. Co. v. Brewster, 249 S.W.3d 6, 16 (Tex.
App.—Houston [1st Dist.] 2007, pet. denied) (holding that “the issues decided by
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the appeals panel are those decided in the contested-case hearing”). Under the
statutory regime, a claimant is prohibited from raising new issues at later stages of
review. See Tex. Lab. Code Ann. § 410.151(b) (West, Westlaw through 2015
R.S.); Tex. Lab. Code Ann. § 410.202(a), (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 TEXAS LABOR CODE ANN. §408.0041 and Rule 126.7?”
The hearing officer concluded Dr. Rothenberg was appointed as the designated
doctor in accordance with Texas Labor Code section 408.041. In challenging this
issue before the Appeals Panel, Ballard asserted that Dr. Rothenberg did not follow
the American Medical Association’s examination guidelines and therefore his
report should not be adopted. The Appeals Panel did not issue a decision, so the
hearing officer’s decision became final. See Tex. Lab. Code Ann. § 410.204(c)
(West, Westlaw through 2015 R.S.). That decision contained the conclusion of
law that Dr. Rothenberg was 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 Tex. Lab.
Code Ann. § 410.151(b) (West, Westlaw through 2015 R.S.); Trinity Universal
Ins. Co., 2004 WL 744417, at *3 (noting that although waiver was raised
throughout the administrative process, the particular waiver claim raised in the
judicial process had not been raised); Krueger v. Atascosa County, 155 S.W.3d
614, 620 (Tex. App.—San Antonio 2004, no pet.) (holding claimant could not raise
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issue not decided by Appeals Panel). By failing to present this issue to the
Appeals Panel, Ballard waived the issue. See Tex. Lab. Code Ann. § 410.302 (b)
(providing “[a] trial under this subchapter is limited to issues decided by the
appeals panel and on which judicial review is sought”); Am. Motorists Ins. Co., 63
S.W.3d at 803–04; Trinity Universal Ins. Co., 2004 WL 744417, at *3; Southern
Ins. Co.,249 S.W.3d at 16.
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 glaucoma. We conclude the Carrier Parties
asserted both traditional and no-evidence summary-judgment grounds that
Ballard’s compensable injury did not include glaucoma. 2 A compensable injury is
“damage or harm to the physical structure of the body.” Tex. Lab. Code Ann. §
401.011(26) (West, Westlaw through 2015 R.S.). The aggravation of a pre-
existing condition is a compensable injury. See Peterson v. Continental Cas. Co.,
997 S.W.2d 893, 895 (Tex. App.—Houston [1st Dist.] 1999, no pet.). To prove the
2
In Ballard’s petition, he sought to challenge the conclusion of law that the compensable
injury did not extend to glaucoma. In their summary-judgment motion, the Carrier Parties wrote
“there is no evidence that Plaintiff’s condition has substantially changed or that his compensable
injury extends to the left eye glaucoma.” We conclude Ballard asserted a challenge to the
Division’s finding that the compensable injury did not cause his glaucoma and that the Carrier
Parties asserted a no-evidence ground with respect to causation.
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aggravation of a pre-existing condition, a claimant need not provide expert
testimony, but a claimant must have evidence showing a reasonable medical
probability that the compensable injury contributed to, or probably contributed to,
the aggravation of the pre-existing condition. See Klein Indep. Sch. Dist. v.
Wilson, 834 S.W.3d 3, 4 (Tex. 1992); 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.
 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
3
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.
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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 glaucoma could
have momentarily been worsened[,] however[,] based on the findings of
the optic nerve imaging and the visual fields, angle recession and
previous history of cataract surgery[,] I feel that this is an old pre-
existing.”
 In August 2011, Ballard saw Dr. Charles Miller. Dr. Miller determined
that Ballard had glaucoma before the compensable injury. Dr. Miller
stated that the ongoing treatment need for both eyes “is not related to the
injury sustained in 2010.” According to Dr. Miller, the compensable
injury for a corneal abrasion and subsequent 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 became more difficult to manage after the injury. In particular,
Dr. Mapp noted that the traumatic iritis resulting from the injury may
have made it more difficult for Ballard to control his eye pressure. The
eye pressure fluctuation required intervention. Dr. Mapp concluded that,
as a result of intervention, Ballard’s eye pressure stabilized and was
controlled without glaucoma therapy. Dr. Mapp noted that Ballard’s eye
pressure fluctuation could have damaged an optic nerve in his left eye,
but Dr. Mapp could not determine whether the injury caused damage
because he had no documentation of Ballard’s 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. He wrote,
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“glaucoma may have been a pre-existing condition, but that does not
negate the fact that trauma to the eye may exacerbate the 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 to cause blindness. No doctor
affirmatively stated that the trauma probably aggravated Ballard’s pre-existing
glaucoma; instead, their opinions were limited by the word “may.” The record
does not contain any causation evidence linking the compensable injury to an
aggravation of Ballard’s 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 glaucoma. Dr. Mapp stated generally that
trauma to the eye can exacerbate glaucoma. Specifically, Dr. Mapp opined that
traumatic iritis could have caused an eye pressure spike that could have damaged
Ballard’s optic nerve, but Dr. Mapp did not state that the trauma Ballard suffered
made Ballard’s glaucoma more difficult to control. Nor did Dr. Mapp address
whether trauma could make glaucoma more difficult to control permanently. Dr.
Wooten stated that an attenuated connection could exist between Ballard’s injury
and his later treatment for glaucoma, but she was unable to say this connection did
exist. Dr. Miller explained that it was possible that the trauma could “momentarily
worsen” glaucoma, but he explained that Ballard’s loss was due to a chronic
process. There is no causation evidence in the record showing that the
compensable injury aggravated Ballard’s pre-existing glaucoma. See Ins. Co. of N.
Am. v. Myers, 411 S.W.2d 710, 714 (Tex. 1996) (holding evidence insufficient to
prove injury was a producing cause of death when evidence expressed no more
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than a medical possibility injury caused aggravation of pre-existing brain tumor).
Because the record contains no causation evidence, the trial court did not err in
granting summary judgment for the Carrier Parties on the ground that no evidence
shows the compensable injury extended to glaucoma in the left eye. See 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. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248,
253 (Tex. 1999). MMI is the point at which the employee’s injury will not
materially improve with additional rest or treatment. 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.
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App.—Houston [1st Dist.] 1999, pet. denied) (limiting jury’s consideration of
evidence to valid impairment ratings 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. Fireman’s Fund Ins. Co. v. Weeks, 259 S.W.3d 335, 340 (Tex. App.—El
Paso 2008, pet. denied). An impairment rating is defined as “the percentage of
permanent impairment of the whole body resulting from the current compensable
injury.” Id. When a party challenges the Division of Workers’ Compensation’s
impairment rating, the trier of fact is informed of the impairment rating assigned
by the Division. Tex. Lab. Code Ann. § 410.306(c); Am. Zurich Ins. Co. v.
Samudio, 370 S.W.3d 363, 366 (Tex. 2012). In determining the extent of
impairment, the finder of fact must adopt the specific rating of one of the
physicians in the case. Tex. Lab. Code Ann. § 410.306(c). Evidence of the extent
of impairment is limited to that presented to the Division, unless the court makes a
threshold finding that the claimant’s condition has changed substantially, in which
case new evidence may be introduced.4 Tex. Workers’ Compensation Comm’n v.
4
Ballard argues that the Division of Workers’ Compensation was not required to accept
Dr. Rothenberg’s impairment rating because Texas Labor Code section 408.1225(c) allows the
trial court to disregard an impairment rating if the preponderance of other medical evidence is to
the contrary. Section 408.1225(c) does not apply to impairment ratings; it applies to the
designated doctor’s determination of whether an employee has reached MMI. See Tex. Lab.
Code Ann. § 408.1225(c). Under Texas Labor Code section 410.306(c), the trial court is not
required to accept Dr. Rothenberg’s impairment rating, but it must accept an impairment rating
13
Garcia, 893 S.W.2d 504, 515 (Tex. 1995). The Division of Workers’
Compensation’s record is admissible to the extent allowable under the Texas Rules
of Evidence. 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 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%.”
that was presented to the Division. See id. § 410.306(c).
14
We already have rejected Ballard’s argument that the compensable injury
includes aggravation of his pre-existing glaucoma. In her impairment rating, Dr.
Wooten did not distinguish between Ballard’s vision loss from his pre-existing
glaucoma and his vision loss from the compensable injury. To the contrary, Dr.
Wooten’s impairment rating encompasses Ballard’s overall vision loss, including
vision loss from Ballard’s pre-existing glaucoma. Because Dr. Wooten’s
impairment rating does not rate Ballard’s impairment from the compensable injury,
Dr. Wooten did not provide an “impairment rating that determined the percentage
of permanent impairment of the whole body resulting from the current
compensable injury.” 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. Tex. Lab. Code Ann.
§ 410.306(c). Dr. Rothenberg’s impairment rating is the only valid impairment
rating that determines the extent of Ballard’s impairment from the compensable
injury. Accordingly, the trier of fact was required to accept Dr. Rothenberg’s
impairment rating. The trial court did not err in granting summary judgment for
the Carrier Parties on the ground that they conclusively proved Ballard’s
impairment rating is zero percent. Accordingly, we overrule Ballard’s second
issue. See Tex. Lab. Code Ann. § 410.306(c); Am. Zurich Ins. Co., 370 S.W.3d at
366.
IV. CONCLUSION
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
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(3) Ballard’s impairment rating. Accordingly, the judgment of the trial court is
affirmed.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jamison and Busby.
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