Manasco v. Lumbermens Mut. Cas. Co., 09-96-272

• Court: Court of Appeals of Texas
• Citation: 951 S.W.2d 286
• Docket Number: No. 09-96-272,09-96-272
• Parties: Stan MANASCO, Appellant, v. LUMBERMENS MUTUAL CASUALTY CO., Appellee. CV.
• Decision Date: 28 August 1997

Page 286

951 S.W.2d 286 Stan MANASCO, Appellant,
v.
LUMBERMENS MUTUAL CASUALTY CO., Appellee. No. 09-96-272 CV. Court of Appeals of Texas,
Beaumont. Submitted June 12, 1997.
Decided Aug. 28, 1997.

Page 287

Mike Jacobellis, Tonahill, Hile, Leister & Jacobellis, Beaumont, for appellant.

Donald F. Lighty, Jacqueline M. Stroh, Benckenstein, Norvell & Nathan, Beaumont, for appellee.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

STOVER, Justice.

This is an appeal from the granting of a summary judgment. Appellant questions the propriety of the summary judgment granted to a workers' compensation insurance carrier.

This appeal requires judicial interpretation of a section of the Texas Workers' Compensation Act, TEX. LAB.CODE ANN. § 410.307 (Vernon 1996):

§ 410.307. Substantial Change of Condition

(a) Evidence of the extent of impairment is not limited to that presented to the commission if the court, after a hearing, finds that there is a substantial change of condition. The court's finding of a substantial change of condition may be based only on:

(1) medical evidence from the same doctor or doctors whose testimony or opinion was presented to the commission;

(2) evidence that has come to the party's knowledge since the contested case hearing;

(3) evidence that could not have been discovered earlier with due diligence by the party; and

(4) evidence that would probably produce a different result if it is admitted into evidence at the trial.

(b) If substantial change of condition is disputed, the court shall require the designated doctor in the case to verify the substantial change of condition, if any. The findings of the designated doctor shall be presumed to be correct, and the court shall base its finding on the medical evidence presented by the designated doctor in regard to substantial change of condition unless the preponderance of the other medical evidence is to the contrary.

(c) The substantial change of condition must be confirmable by recognized laboratory or diagnostic tests or signs confirmable by physical examination.

(d) If the court finds a substantial change of condition under this section, new medical evidence of the extent of impairment must be from and is limited to the same doctor or doctors who made impairment ratings before the commission under Section 408.123.

(e) The court's finding of a substantial change of condition may not be made known to the jury.

(f) The court or jury in its determination of the extent of impairment shall adopt one of the impairment ratings made under this section.

In order to interpret the above statute, we must briefly review relevant portions of the Texas Workers' Compensation Act, beginning with TEX. LAB.CODE ANN. § 410.301 (Vernon 1996) providing:

Page 288

§ 410.301. Judicial Review of Issues Regarding Compensability or Income or Death Benefits

(a) Judicial review of a final decision of a commission appeals panel regarding compensability or eligibility for or the amount of income or death benefits shall be conducted as provided by this subchapter.

(b) A determination of benefits before a court shall be in accordance with this subtitle.

In 1989 the legislature enacted a new Workers' Compensation Act restructuring workers' compensation in Texas. The Act significantly departs from prior law with regard to the adjudicatory powers of the Texas Workers' Compensation Commission. Under the Act, the commission now resolves disputed claims through a three-stage hearing process: 1) the benefit review conference (BRC), 2) the contested case hearing (CCH), and 3) the administrative appeal. The procedures involved in this process have been examined by the Supreme Court of Texas under both the federal and state constitutions and declared to be constitutional. Texas Workers' Compensation Comm'n v. Garcia, 893 S.W.2d 504 (Tex.1995).

The benefit review conference, like the former prehearing conference, is an informal proceeding aimed at resolving the disputed issues by mutual agreement. TEX. LAB.CODE ANN. § 410.021 (Vernon 1996). The presiding "benefit review officer," after informing the parties of their rights and responsibilities, mediates a dispute. Id. 410.026(a). The officer may direct questions to the parties, but he or she may not take testimony or make a formal record. Id. 410.026(c), (d). The officer does, however, prepare a written report detailing each issue not settled at the conference. Id. 410.031. This report must include the officer's recommendation regarding those issues and a recommendation regarding the payment or denial of benefits. Id.

The parties then proceed to a "contested case hearing," a formal evidentiary proceeding with sworn testimony and prehearing discovery procedures. ¹ Id. §§ 410.151-.169. The hearing officer decides the disputed issues by written decision containing factual and legal findings. Id. § 410.168(a). The hearing officer's decision is binding during the pendency of an administrative appeal and is final in the absence of appeal. Id. § 410.169.

Any party may appeal the hearing officer's decision to an appeals panel within the commission. Id. § 410.202. The request for appeal and the opposing party's response must "clearly and concisely rebut or support the decision of the hearing officer on each issue on which review is sought." Id. § 410.202(c). After considering these briefs and the record from the contested case hearing, the appeals panel may affirm the decision of the hearing officer, reverse and render a new decision, or remand no more than one time to the hearing officer for further consideration and development of the record. Id. § 410.203.

The Act disposes of a trial de novo from the commission's ruling. Instead, the commission's final decision may be appealed to the courts under what the Supreme Court of Texas has described as "modified de novo review." Garcia, 893 S.W.2d at 530. Under this modified de novo review, all issues regarding compensability of the injury may be tried by jury. Id. at 528; see TEX. LAB.CODE ANN. §§ 410.301, 410.304. The party appealing the commission's ruling bears the burden of proof by a preponderance of the evidence. TEX. LAB.CODE ANN. § 410.303.

Appellant, Stan Manasco, sought to reopen the issues of Maximum Medical Improvement (MMI) and Impairment Rating (IR) before the hearing tribunals because of a substantial change of condition. These issues were...