Manasco v. Lumbermens Mut. Cas. Co.
| Decision Date | 28 August 1997 |
| Docket Number | No. 09-96-272,09-96-272 |
| Citation | 951 S.W.2d 286 |
| Parties | Stan MANASCO, Appellant, v. LUMBERMENS MUTUAL CASUALTY CO., Appellee. CV. |
| Court | Texas Court of Appeals |
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.
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:
§ 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 previously decided at a contested case hearing in a decision and order issued September 22, 1993, from which no appeal was taken within fifteen days by appellant Manasco.
On or about January 20, 1992, appellant sustained an injury while working for BPCC Inc. Appellee was the workers' compensation carrier for BPCC, Inc. Appellant received workers' compensation benefits under the policy. On October 23, 1992, his treating physician, Dr. Gerald Davis, certified appellant had reached MMI and assigned a thirty percent IR. The carrier disputed this IR and requested the Texas Workers' Compensation Commission (TWCC) designate a doctor to determine Manasco's IR. Dr. Holmes was appointed by the TWCC, and he reported that appellant had reached MMI and had an IR of seven percent.
A Benefit Review Conference (BRC) was held on May 17, 1993, on the issue of IR, with the claimant asserting the thirty percent rating assigned by Dr. Davis and the carrier asserting Dr. Holmes' seven percent rating. The BRC recommended the claimant be assigned a seven percent impairment rating based on the designated doctor's finding and the presumptive weight accorded that finding. A Contested Case Hearing (CCH) was held on September 20, 1993, and the Hearing Officer issued her decision and order on September 22, 1993. The Hearing Officer found the designated doctor's opinion had not been overcome by the great weight of contrary medical evidence. Appellant had no attorney, but relied upon the services of an ombudsman. Appellant did not appeal the decision.
Thereafter, on January 26, 1994, appellant had back surgery performed by Dr. Heilman. Following surgery, appellant by his attorney requested a BRC be held on the issues of MMI and IR based upon a substantial change of condition. He argued that he experienced a substantial change of condition and additional evidence should be admitted before both the Commission and the trial court on the issues of MMI and IR. His appeal was denied before all of the review tribunals because of his failure to timely appeal the September 22, 1993, ruling of seven percent impairment. He then brought action in the District Court of Orange County, Texas.
On May 21, 1996, appellant filed a motion for summary judgment, asserting that evidence of his subsequent back surgery should be considered in the trial court in determining his impairment. On June 3, 1996, appellee Lumbermens filed its reply and a cross-motion for summary judgment urging that the determinations by the Commission on MMI and IR were final. A hearing was held on the cross-motions for summary judgment on June 28, 1996, and the trial court granted appellee's cross-motion for summary judgment and signed a final judgment to that effect on July 29, 1996. Appellant has appealed.
In his original petition filed in district court, appellant pleaded that in its decision the Appeals Panel denied him additional benefits, thus, his administrative remedies had been exhausted. Appellant urged the court that he is entitled to receive additional compensation benefits and medical treatment, that a "substantial change of condition" due to the subsequent back surgery entitled him to re-open the issues of MMI and impairment.
Appellant's first point of error contends the Labor Code should be construed to allow claimants to present evidence of substantial change of condition at the administrative level.
Point of error number two urges the Labor Code allows consideration of substantial change of condition in all cases in the district court.
Therefore, the issue before us is: should the ...
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Lumbermens Mut. Cas. Co. v. Manasco
...insurance carrier, concluding that the issue could not be reopened. The court of appeals reversed. Manasco v. Lumbermens Mutual Cas. Co., 951 S.W.2d 286 (Tex.App.--Beaumont 1997) We hold that a claimant may not use section 410.307 to reopen his impairment rating after his time for appeal ha......