                                                                               ACCEPTED
                                                                           03-14-00808-CV
                                                                                   5443753
                                                                THIRD COURT OF APPEALS
                                                                           AUSTIN, TEXAS
                                                                      5/27/2015 9:45:13 PM
                                                                         JEFFREY D. KYLE
                                                                                    CLERK



         No. 03-14-00808-CV                               FILED IN
                 IN THE 3RD COURT OF APPEALS       3rd COURT OF APPEALS
                                                       AUSTIN, TEXAS
                        AUSTIN, TEXAS              5/27/2015 9:45:13 PM
                                                     JEFFREY D. KYLE
                                                           Clerk
               Rosendo Morales, Appellant
                           V.
   Texas Department of Insurance-Division of Workers’
Compensation and Commissioner Ryan Brannan, in his official
                   capacity, Appellees

On appeal from the 146th District Court of Bell County, Texas;
  Cause No. 269,135-B, the Honorable Jack Weldon Jones
                         Presiding

       ROSENDO MORALES APPELLANT’S BRIEF

                                 BRADLEY DEAN McCLELLAN
                                 State Bar No. 13395980
                                 Richard Pena
                                 Law Offices of Richard Pena, P.C
                                 State Bar No. 00000073
                                 Law Offices of Richard Pena, P.C.
                                 1701 Directors Blvd., Suite 110
                                 Austin, Texas 78744
                                 Brad.McClellan@yahoo.com
                                 (512) 327-6884 telephone
                                 (512) 327-8354 facsimile
                                 Counsel for Appellant


                         May 27, 2015
                 Oral Argument Requested
                       IDENTITY OF PARTIES & COUNSEL

PLAINTIFF/APPELLANT:                          P.O. Box 12548 (MC-018), Capital
Rosendo Morales c/o                           Station
Law Offices of Richard Pena, P.C.             Austin, Texas 78711-2548
1701 Directors Blvd.                          512-475-4208
Austin, Texas 78744                           512-320-0167 facsimile.
                                              Addrienne.butcher@texasattorneyge
TRIAL AND APPELLATE ATTORNEY                  neral.gov
FOR PLAINTIFF:                                Attorneys      for    DWC     and
Bradley Dean McClellan                        Commissioner
State Bar No. 13395980
Richard Pena                                  OTHER DEFENDANT BELOW:
Law Offices of Richard Pena, P.C              Texas Mutual Insurance Company,
State Bar No. 00000073                        the Insurance Carrier
1701 Directors Blvd. Suite 110                c/o
Austin, Texas 78744                           Scott Placek
Brad.McClellan@yahoo.com                      Matthew Foerster
Fax 512.327.8354                              Arnold & Placek, LLC
Telephone 512.327.6884                        203 East Main Ave, Ste. 203
                                              Round Rock, TX 78664
                                              Fax: 512 341.7121
DEFENDANT/APPELLEE:                           Attorneys for Defendant
Texas Department of Insurance –               TMIC
Division of Workers' Compensation,
DWC, a governmental unit organized
and existing under the law of the
State of Texas, and Commissioner
Ryan Brannan, in his official capacity
7551 Metro Center Drive, Suite 100
Austin, TX, 78744

Attorneys for DWC and Commissioner:
Adrienne Butcher,
Assistant Attorney General
Administrative Law Division
Office of the Attorney General of
Texas
                                                                              ii
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
                               TABLE OF CONTENTS

TABLE OF AUTHORITIES                                              iv-vi

IDENTITY OF PARTIES & COUNSEL                                        ii

STATEMENT OF THE CASE                                                 vii

ISSUES PRESENTED                                                      ix

ROSENDO MORALES APPELLANT’S BRIEF                                    1
SUMMARY OF ARGUMENT                                                  6
STATEMENT OF FACTS                                                   3
ARGUMENT & AUTHORITIES                                               10
 Issue No. 1: Whether the District Court has jurisdiction to determine a
declaratory judgment action brought to properly construe, interpret,
and enforce applicable Texas statutes against the state agency and the
head of the state agency after administrative remedies have been
exhausted and a live controversy remains with allegations that the state
defendants have violated the statutes in question by failing to properly
apply the law?                                                        10

CONCLUSION                                                          43
PRAYER                                                              44
CERTIFICATE OF COMPLIANCE                                           46
CERTIFICATE OF SERVICE                                              46

APPENDIX                                                            47




                                                                            iii
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
                                            INDEX OF AUTHORITIES
Cases
Beacon Nat 'I Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex. App.-Austin
  2002, no pet.) .................................................................................................................... 30
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000) ................ 33
Brooks v. Northglen Ass'n, 141 S.W.3d 158, 163 (Tex. 2004) ..................... 10, 18
Calvert v. Employees Ret. Sys. of Tex., 648 S.W.2d 418, 419 (Tex. App.--
  Austin 1983, writ ref'd n.r.e.) ..................................................................................... 34
Campos v. Texas Prop. & Cas. Ins. Guar. Ass'n, 282 S.W.3d 226, 230 (Tex.
  App.—Austin 2009, no pet.) ....................................................................................... 17
City of El Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009) .................... 12
City of McKinney v. Hank's Rest. Group, L.P., 412 S.W.3d 102, 112 (Tex.
  App.—Dallas 2013, no pet.) ........................................................................................ 12
Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 712 (1945)...................... 35
Harvel v. Tex. Dep't of Ins.-Div. of Workers' Comp., 13-14-00095-CV, 2015
  Tex. App. LEXIS 5159, 2015 WL 2452703 (Tex. App. Corpus Christi--May
  21, 2015, motion for rehearing to be filed) .......................................................... 12
Hawkins v. El Paso First Health Plans, Inc., 214 S.W.3d 709, 716-18 (Tex.
  App.--Austin 2007, pet. filed). ..................................................................................... 35
Houston General Insurance Co. v. Association Casualty Insurance Co., 977
  S.W.2d 634 (Tex. App.—Tyler, no pet.) .................................................................. 43
Howell v. Texas Workers' Compensation Com'n, 143 S.W.3d 416, 433 (Tex.
  App.--Austin 2004, pet. denied). ................................................................................ 43
Kuntz v. Khan, No. 03-10-00 160-CV, 2011 Tex. App. LEXIS 446, 2011 WL
  182882,(Tex. App.--Austin 2011, no pet.) ............................................................ 30
Mid-Century Insurance Company v. Texas Workers’ Compensation
  Commission, 187 S.W.3d 754 (Tex. App.—Austin 2006, no pet.). ............... 39
Nat'l Am. Ins. Co. and TDI-DWC and Commissioner Bordelon in his official
  capacity v. Tex. Prop. & Cas. Ins. Guar. Ass'n, No. 03-09-00680-CV, 2013
  WL 4817637, 2013 Tex. App. LEXIS 10865 (Tex. App.--Austin Aug. 28,
  2013, no pet.) ................................................................................................................ 8, 18
Nat'l Am. Ins. Co. v. Tex. Prop. & Cas. Ins. Guar. Ass'n for Paula Ins. Co., 2013
  Tex. App. LEXIS 10865, 2013 WL 4817637 (Tex. App.--Austin Aug. 28,
  2013, no pet.) .................................................................................................................... 35
Roal Global Corp. v. City of Dallas, 2015 Tex. App. LEXIS 5205 (Tex. App.
  Dallas--May 21, 2015, no pet. h.) .............................................................................. 12


                                                                                                                                     iv
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
Severiano DeLeon v. Royal Indemnity Company, 396 S.W.3d 597 (Tex. App.--
  Austin 2010) rev’d on other grounds Severiano DeLeon v. Royal Indem.
  Co., 396 S.W.3d 527 (Tex. 2012) ........................................................................ 25, 26
Spawglass Constr. Corp. v. City of Houston, 974 S.W.2d 876, 878 (Tex. App.--
  Houston [14th Dist.] 1998, pet. denied) .................................................................. 34
Subchapter F of Chapter 410 .......................................................................................... 16
Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex.1993) .. 32
Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004) 32
Tex. DOT v. Sefzik, 355 S.W.3d 618, 621-622 (Tex. 2011). ................................. 14
Tex. Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994). ....................... 13
Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 634-35
  (Tex. 2010) ......................................................................................................................... 13
Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 859-60
  (Tex. 2002) ......................................................................................................................... 13
Tex. Prop. & Cas. Guar. Ass'n v. Nat'l Am. Ins. Co., 208 S.W.3d 523, 533 (Tex.
  App.--Austin 2006, pet. denied). ............................................................................... 15
Tex. Workers' Compensation Ins. Fund v. Tex. Workers' Compensation
  Comm'n & Watts, 124 S.W.3d 813, 820 (Tex. App.--Austin 2003, pet.
  denied) ........................................................................................................................... 20, 22
Texas Ass'n of Business v. Texas Air Control Bd., 852 S.W.2d 440 at 446 (Tex.
  1993) .................................................................................................................................... 33
Texas Dep. of Ins., Div. of Workers’ Compensation v. Lumbermens Mut. Cas.
  Co., 212 S.W.3d 870 (Tex App.—Austin 2006, pet. denied) ............... 8, 20, 24
Texas Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994) ...................... 37
Texas Government Code section 2001.171 .............................................................. 16
Texas Liquor Control Bd. v. Canyon Creek Land Corp., 456 S.W.2d 891, 895
  (Tex.1970) .......................................................................................................................... 38
Texas Mun. Power Agency v. Public Util. Comm'n, 100 S.W.3d 510, 520 (Tex.
  App.--Austin 2003, pet. denied) ................................................................................. 39
Texas Mun. Power Agency v. Public Utility Com'n of Texas, 253 S.W.3d 184,
  189 (Tex. 2007) ................................................................................................................ 37
Texas Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855
  (Tex. 2002) ......................................................................................................................... 35
Texas State Employees Union/CWA Local 6184 v. Texas Workforce Comm'n,
  16 S.W.3d 61, 65 (Tex. App.-Austin 2000, no pet.). ........................................... 33
Texas Workers' Compensation Commision v. Garcia, 893 S.W.2d 504 (Tex.
  1995) ..................................................................................................................................... 38
Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd., 974 S.W.2d 906,911 (Tex.
  App.--Austin 1998, pet. denied) ................................................................................ 31
                                                                                                                                               v
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
Statutes
Tex. Civ. P. & Rem. Code § 37.006 .......................................................................... 10, 18
Tex. Civ. Prac. & Rem. Code §37.003(a) ..................................................................... 43
Tex. Civ. Prac. & Rem. Code §5.062(a) ........................................................................ 43
TEX. INS. CODE § 462.017(b) .............................................................................................. 17
Tex. Lab. Code §410.204(a) ............................................................................................ 22
TEX. LAB. CODE § 408.123(a). ............................................................................................ 27
TEX. LAB. CODE § 410.252(b) ............................................................................................. 17
Texas Labor Code § 410.254 .............................................................................................. 7
Texas Labor Code §410.252(b)(1) ............................................................................... 17
Texas Labor Code Section 401.011(12) ........................................................................ 7
Texas Labor Code Section 408.124(c) ........................................................................ 26
Texas Labor Code Sections 401.011(23) & (24) .................................................... 27
Other Authorities
Camp v. Greene County Tech. et. al, decided October 17, 2008, 2008 WL
  4686198 (Ark.Work.Comp.Com.)                                        29
DWC APPEAL NO. 050140, 2005 TX Wrk. Comp. LEXIS 57 (decided March
  14, 2005)                                                           40
DWC APPEAL NO. 94994, 1994 TX Wrk. Comp. LEXIS 6081, September 9,
  1994                                                                41
DWC APPEAL NO. 951802, 1995 TX Wrk. Comp. LEXIS 4964, December 13,
  1995                                                                42
DWC Appeal No. 990005, 1999 TX Wrk. Comp. LEXIS 3029, decided
  February 19, 1999                                                   42
DWC Appeals Panel Decision No. 080375, May 15, 2008, 2008 WL 2233469
                                                                      28
DWC Appeals Panel No. 071023-s, decided July 23, 2007, 2007 TX Wrk.
  Comp. LEXIS 54.                                                     40




                                                                                                                          vi
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
                           STATEMENT OF THE CASE

      This case involves primarily questions of law and statutory violations

by a state agency and agency official and the workers’ compensation

insurance carrier which arose out of an actual workers’ compensation

dispute and the improper interpretation and application of the

Legislature’s statutory terms by both the workers’ compensation insurance

carrier and the Texas Department of Insurance-Division of Workers’

Compensation (DWC), which is the state agency charged with properly

applying, enforcing, and interpreting the Texas Labor Code and Texas

Insurance Code along with the DWC Commissioner in his official capacity.

Rosendo Morales is the injured Texas worker.           The injured worker has

workers’ compensation coverage through the other Defendant below, the

Texas Mutual Insurance Company. The administrative judge ruled in favor

of the Defendant Insurance Carrier, and Rosendo Morales appealed and the

final DWC administrative decision as improperly limiting his impairment

rating to not include the four level cervical fusion and seeking declaratory

judgment relief. CR 47.        Rosendo Morales filed for judicial review in the

146th District Court of Bell County challenging the final DWC

determinations and seeking a declaratory judgment of proper statutory

enforcement and interpretation under the Texas Labor Code and the Texas
                                                                     vii
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
Insurance Code. CR 4, 47. The DWC filed an original answer and general

denial in part arguing sovereign immunity from suit. CR 74. Texas Mutual,

the Insurance Carrier, finally answered and filed special exceptions. CR 21.

The Honorable Judge Jack Jones granted the DWC Defendants’ plea to the

jurisdiction and dismissed the DWC and the Commissioner from the

lawsuit, and he granted Texas Mutual’s Plea to the Jurisdiction, CR 288-

289. Plaintiff brings this interlocutory appeal challenging the plea to the

jurisdiction dismissing DWC and the DWC Commissioner from the case and

granting DWC’s plea to the jurisdiction.




                                                                         viii
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
                                ISSUE PRESENTED

Issue No. 1: Whether the District Court has jurisdiction to determine a
declaratory judgment action brought to properly construe, interpret, and
enforce applicable Texas statutes against the state agency and the head of
the state agency after administrative remedies have been exhausted and a
live controversy remains with allegations that the state defendants have
violated the statutes in question by failing to properly apply the law?




                                                                          ix
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
              No. 03-14-00808-CV
                          IN THE 3RD COURT OF APPEALS
                                 AUSTIN, TEXAS

                Rosendo Morales, Appellant
                            V.
    Texas Department of Insurance-Division of Workers’
 Compensation and Commissioner Ryan Brannan, in his official
                    capacity, Appellees

  On appeal from the 146th District Court of Bell County, Texas;
    Cause No. 269,135-B, the Honorable Jack Weldon Jones
                           Presiding

            ROSENDO MORALES APPELLANT’S BRIEF
To the Honorable Justices of the 3rd Court of Appeals:

      A state agency is not free to misinterpret and misapply the laws of the

Texas Legislature, and the Courts of this State are duty bound to make sure

the laws of this State are properly applied, interpreted and enforced. Texas

citizens have a right to seek declaratory judgments concerning statutory

rights especially where administrative remedies have been exhausted. This

Court previously allowed a declaratory judgment action against the DWC in

Tex. Dep’t of Ins. v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870 (Tex. App.—

Austin 2006, pet. denied), which resulted in erroneous applications of the law


                                                                            1
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
from dicta. For almost a decade now, the Lumbermens declaratory judgment

decision unleashed the DWC and the Commissioner and insurance carriers

such as Texas Mutual, to erroneously deprive severely injured workers like

Mr. Morales proper impairment ratings. Workers who undergo insurance

carrier approved and paid for spinal fusion surgeries occurring before the

worker’s recovery stabilizes at maximum medical improvement must have

such surgeries and the effects of such surgeries considered and rated when

impairment ratings are assigned.

       A state agency may not prevent a parties challenge that a statute is not

being properly applied, interpreted and enforced.      The state agency is a

necessary party for such a declaration, and such a declaration would be

unenforceable without the proper state agency. The final decision of the

Texas Department of Insurance-Division of Workers’ Compensation and

Commissioner Brannan, collectively the DWC, refused to allow a proper rating

for a four level cervical spinal fusion surgery which occurred prior to

maximum medical improvement.

      The Defendants, the Texas Department of Insurance-Division of

Workers’ Compensation, DWC, and the Commissioner and the Defendant

Texas Mutual Insurance Carrier, appear to wish to avoid clear legal statutory


                                                                             2
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
construction and proper statutory application questions raised by the

Plaintiff, Rosendo Morales, the injured worker. Mr. Morales believes his legal

positions are correct, but the Defendants apparently do not want a clear

statement of the law even though in other cases the Defendants have sought

declaratory legal determinations.

      This case involves a proper request for declaratory judgment with a

challenge to the DWC Defendants improper enforcement of the law.             A

justiciable controversy exists; exhaustion of administrative remedies

occurred; and clear questions of law concerning statutory interpretations and

failure to apply and enforce the law properly exist. Mr. Morales asserts the

legal declarations should be decided in his favor and help bring an end to this

litigation and protect his right to the limited recovery of workers’

compensation benefits for impairment ratings for permanent anatomic and

functional loss. Especially, the DWC and the Commissioner cannot avoid the

law and cannot hide from being required to follow the law and to properly

interpret, apply, and enforce the law as written by the Legislature.


                               STATEMENT OF FACTS

     Rosendo Morales, a Texas worker, suffered severe injuries on November

22, 2010 while in the course and scope of his employment with his employer,

                                                                             3
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
Perry & Perry Builders, Inc.1         Texas Mutual Insurance Company provided

workers compensation insurance as the Insurance Carrier on the date of the

worker’s injuries.2         It is undisputed that Mr. Morales sustained a

compensable left shoulder contusion, left upper arm contusion, right heel

contusion, right knee contusion, right knee meniscal tear and arthritis, neck

contusion, and C5-6 radiculopathy on November 22, 2010.3             The parties

stipulated that Claimant reached maximum medical improvement on the

statutory date of December 26, 2012.4 Prior to reaching maximum medical

improvement, Mr. Morales underwent a multi-level cervical spinal fusion

fusing his cervical spine closed across four levels of his spine.   The DWC was

asked to determine the proper impairment rating (and good cause for Texas

Mutual missing the first scheduled hearing).5          The DWC hearing officer

determined that neither the impairment rating was 13% with 8% other body

parts and only 5% for the cervical spine and rejected the other impairment

rating which had 8% for the other body parts and 27% for the fused cervical

spine6 and the Insurance Carrier was ordered to pay workers’ compensation


1 CR 61 DWC Hearing Decision
2 CR 61
3 CR 61
4 CR 62
5 CR 58
6 CR 61

                                                                              4
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
benefits consistent with the decision.7 The live pleadings of the Plaintiff are

attached as Appendix 2, Plaintiff’s First Amended Petition and Suit for

Declaratory Judgment and Exhibit “A” DWC Contested Case Hearing Decision

signed October 22, 2014, and DWC finality notice of January 27, 2014.

Rosendo Morales filed his lawsuit for declaratory judgment against the

Insurance Carrier and the DWC and the DWC Commissioner.8 The DWC also

filed a plea to the jurisdiction asserting sovereign immunity.9   Mr. Morales

asked that the District Court declare his real rights to enforce the statute in

compliance with statutory provisions which the DWC and the DWC

Commissioner and the Insurance Carrier defendants who have not followed

and not properly applied and properly enforced the Texas Labor Code

provisions. 10

     The District Court granted the DWC and the Commissioner plea to the

jurisdiction along with Texas Mutual’s Plea to the jurisdiction.11        This

interlocutory appeal was brought by Rosendo Morales challenging the

granting of the plea to the jurisdiction and dismissal of the DWC and the DWC

Commissioner from this matter.
7 CR 62
8 CR 47 Plaintiff’s 1st Amended Petition and Suit for Declaratory Judgment
9 CR 60, 105
10 CR 50-51
11 CR 287,288

                                                                             5
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
                          SUMMARY OF THE ARGUMENT

      A state agency which intervenes in a lawsuit may not be dismissed on

jurisdictional grounds from the lawsuit it joined avoid being a necessary party

to a statutory declaration lawsuit concerning the statutes the agency is

charged to regulate and to enforce and to properly apply. Further, when the

state agency acts beyond and in derogation of its statutory authority, the state

official is a proper party to a lawsuit alleging such ultra vires acts under

Heinrich. This is especially clear when administrative remedies have been

exhausted.       This Court of Appeals previously rejected the DWC and the

Commissioner’s argument that only judicial review between the parties is

permissible:12

      The Division argues that because the carriers are permitted to seek
      judicial review of hearing decisions applying the advisories under
      section 410.251 of the labor code, they are barred from bringing
      declaratory judgment actions under the UDJA challenging the same
      decisions.

The 3rd Court rejected the DWC’s similar arguments and concluded: “that the

trial court had jurisdiction over the declaratory judgment action pursuant to

the UDJA.”13 This matter is not different.

     In this matter, Rosendo Morales has sought declaratory judgments that

12 Texas Dep. of Ins., Div. of Workers’ Compensation v. Lumbermens Mut. Cas. Co.,
212 S.W.3d 870, 874 (Tex App.—Austin 2006, pet. denied)
13 Lumbermens at 875

                                                                               6
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
assert the DWC Defendants and Commissioner and the Insurance Carrier have

not properly interpreted, applied, and enforced the Texas Workers’

Compensation Act under Texas Labor Code Provisions.            Included in the

declarations of law sought are the proper application, interpretation, and

enforcement of TEXAS LABOR CODE. The legal resolution of the declarations will

likely resolve the underlying administrative controversy where the material

facts are not disputed. Without declarations, these legal questions will arise

again and again and again. Workers’ compensation system participants are

entitled to a final declaration of, interpretation, and enforcement of the

statutory terms by the Judicial Branch subject only to changes in the laws by

the Texas Legislature.

     Texas Courts are duty bound to properly construe statutory requirements

especially where the Legislature’s will is clearly ignored.

      Here the DWC’s and the Commissioner’s position appears to be that it is

only allowed to intervene under Texas Labor Code § 410.254, but that the

DWC is somehow not a necessary or proper party in such suits enforcing the

statutes which the DWC is required to enforce appears to create a dichotomy.

This allows the DWC to continually misapply and misinterpret the law and act

in violation of the law without being held accountable.       The DWC and the


                                                                            7
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
Commissioner’s       similar    jurisdictional    pleas   arguing   immunity   from

declaratory judgments were rejected by this Court of Appeals in 2006 in DWC

v. Lumbermens and in 2013, last year, in the Nat’l Ins. and DWC &

Commissioner v. TPCIGA decisions.14 The DWC and the Commissioner are

clearly necessary to have the Texas Workers’ Compensation Act and other

applicable statutes properly applied in workers’ compensation disputes

concerning legal rights.

      If the DWC and the Commissioner are correct, then the Judicial Branch

of Texas government would lose its oversight of the Executive Branches

proper application, proper interpretation, and proper enforcement of the laws

adopted by the Texas Legislature and state agencies would be free to violate

the very statutes which the agency and the state official is bound to uphold.

      This case involves a justiciable controversy, properly exhausted

administrative remedies, and clear questions of law concerning statutory

interpretations, alleged statutory violations by the DWC and failure to

properly apply the law. The DWC and the Commissioner cannot avoid the law



14Texas Dep. of Ins., Div. of Workers’ Compensation v. Lumbermens Mut. Cas. Co.,
212 S.W.3d 870 (Tex App.—Austin 2006, pet. denied); Nat'l Am. Ins. Co. and
TDI-DWC and Commissioner Bordelon in his official capacity v. Tex. Prop. & Cas.
Ins. Guar. Ass'n, No. 03-09-00680-CV, 2013 WL 4817637, 2013 Tex. App. LEXIS
10865 (Tex. App.--Austin Aug. 28, 2013, no pet.)
                                                                              8
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
and cannot hide from being required to follow the law when the state agency’s

actions violate the statutory requirements.

      Appellant is not seeking damages from the state Defendants. Appellant

is seeking to enforce the statutory rights violated by the Defendants.




                                                                           9
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
                            ARGUMENT & AUTHORITY

Issue No. 1: Whether the District Court has jurisdiction to determine a
declaratory judgment action brought to properly construe, interpret,
and enforce applicable Texas statutes against the state agency and the
head of the state agency after administrative remedies have been
exhausted and a live controversy remains with allegations that the state
defendants have violated the statutes in question by failing to properly
apply the law?

   1. The District Court erred in Dismissing the DWC and the
      Commissioner.

     The DWC and the Commissioner appear to allege declaratory relief is not

available at all against the DWC and the Commissioner.        Texas Mutual, in

response to Plaintiff’s Interrogatory No. 5 conceded: “However, in the event

the Court permits this declaratory judgment action to proceed, the DWC

and its commissioner would be necessary parties.” All parties involved

will be affected by the declaratory judgment action and to be of any force and

effect, the UDJA unequivocally mandates:

      (a) When declaratory relief is sought, all persons who have or claim any
          interest that would be affected by the declaration must be made
          parties. A declaration does not prejudice the rights of a person not a
          party to the proceeding.

TEX. CIV. P. & REM. CODE § 37.006. See Brooks v. Northglen Ass'n, 141 S.W.3d

158, 163 (Tex. 2004) (The Texas Supreme Court noted that no fault and no
                                                                             10
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
prejudice lies with non-parties to the UDJA). The injured worker has properly

included the workers’ compensation insurance carrier, and the Texas

Department of Insurance-Division of Workers’ Compensation, DWC and the

Commissioner in this declaratory action.

      A state agency may not avoid being a necessary party to a statutory

declaration lawsuit concerning the statutes the agency is charged to regulate,

to interpret, to apply, to adjudicate, and to enforce. This is especially clear

when administrative remedies have been exhausted and a live controversy

exists.    The 3rd Court of Appeals previously rejected the DWC and the

Commissioner’s argument that:15

      The Division argues that because the carriers are permitted to seek
      judicial review of hearing decisions applying the advisories under
      section 410.251 of the labor code, they are barred from bringing
      declaratory judgment actions under the UDJA challenging the same
      decisions.

The 3rd Court rejected the DWC’s similar arguments and concluded: “that the

trial court had jurisdiction over the declaratory judgment action pursuant to

the UDJA.”16

     The Texas Supreme Court has held that the UDJA waives a municipality's

immunity against claims challenging the validity of its ordinances. City of El

15 Texas Dep. of Ins., Div. of Workers’ Compensation v. Lumbermens Mut. Cas. Co.,
212 S.W.3d 870, 874 (Tex. App.—Austin 2006, pet. denied)
16 Lumbermens at 875

                                                                              11
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
Paso v. Heinrich, 284 S.W.3d 366, 373 n.6 (Tex. 2009). The Court explained

that that the governmental entity retains its immunity from suit when the

claimant does not challenge the validity of a statute but rather challenges a

government officer's application of a statute to the claimant. 284 S.W.3d at

372-73 & n.6. The affected parties remedy is an ultra vires suit against the

government officer in his or her official capacity for prospective relief. Id. at

369-74. This would support DWC Commissioner being a party in this matter

to properly apply the statutes in question and provide a valid interpretation

and application and enforcement of statutes.

     Contrast this matter with Roal Global Corp. v. City of Dallas, 2015 Tex.

App. LEXIS 5205 (Tex. App. Dallas--May 21, 2015, no pet. h.);            City of

McKinney v. Hank's Rest. Group, L.P., 412 S.W.3d 102, 112 (Tex. App.—Dallas

2013, no pet.); Harvel v. Tex. Dep't of Ins.-Div. of Workers' Comp., 13-14-00095-

CV, 2015 Tex. App. LEXIS 5159, 2015 WL 2452703 (Tex. App. Corpus Christi-

-May 21, 2015, motion for rehearing to be filed) (13th Court of Appeals

determined sovereign immunity bars the claims against state agency and that

a Heinrich challenge was not alleged.).




                                                                              12
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
   2. Declaratory Statutory Challenges Require State Agency to be a
      Party

     Recent Texas Supreme Court cases also support that the state agency is a

proper party in a declaratory action to determine parties’ rights under the

statute that the agency regulates and enforces especially where the state

agency’s violates the statutory terms. Tex. Lottery Comm'n v. First State Bank

of DeQueen, 325 S.W.3d 628, 634-35 (Tex. 2010); Tex. Natural Res.

Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 859-60 (Tex. 2002); Tex.

Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex. 1994).

     In DeQueen subsequent to Heinrich, the Texas Supreme Court reiterated

that Declaratory Judgment Act suits to construe statutes are expressly allowed

jurisdictionally against a state agency. Texas Lottery Commission v. First State

Bank of DeQueen, 325 S.W.3d 628 (Tex. 2010).               The DWC and the

Commissioner are proper parties because without them the statutory legal

questions and statutory application would not be applicable to the DWC and

the Commissioner. The Supreme Court in DeQueen reiterated that jurisdiction

over the state agency existed and citing to Leeper explained:

       [T]he DJA permits statutory challenges and governmental entities may
      be bound by those challenges, the DJA contemplates entities must be
      joined in those suits. Leeper, 893 S.W.2d at 446.

The Texas Supreme Court further explained in DeQueen that statutory

                                                                             13
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
clarification, as expressly sought in this matter, that the state agency is a

proper party:17

     Next, the Commission asserts that the DJA does not waive immunity
     because it applies only to suits involving constitutional invalidation and
     not to those involving statutory interpretation. But the language in the
     DJA does not make that distinction. In Leeper, . . . . the DJA discussion
     was in the context of a statutory clarification. . . . . The decision on
     this claim may ultimately impact actions taken by officers of the
     Commission, but that does not deprive the trial court of jurisdiction.
     [Leeper] at 445 (noting that the DJA allows courts to declare relief
     "whether or not further relief is or could be claimed"). The trial court
     properly exercised jurisdiction over this claim.

Subsequent to DeQueen, the Texas Supreme Court in Sefzik explained:18

     As noted, we dismissed Heinrich's claims seeking declaratory and
     injunctive relief against governmental entities, brought under the UDJA,
     because the entities were immune. In so doing, we necessarily concluded
     that the UDJA does not waive the state's sovereign immunity when the
     plaintiff seeks a declaration of his or her rights under a statute or other
     law. Very likely, the same claim could be brought against the appropriate
     state official under the ultra vires exception, but the state agency remains
     immune. See id. at 372-73. As we have consistently stated, the UDJA does
     not enlarge the trial court's jurisdiction but is "merely a procedural
     device for deciding cases already within a court's jurisdiction." Tex. Parks
     & Wildlife Dep't v. Sawyer Trust, 354 S.W.3d 384, 2011 Tex. LEXIS 640, *8
     (2011) (quoting Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
     444 (Tex. 1993)).

Sefzik would have allowed a claim for statutory rights enforcement and

declaration to be brought as long as the appropriate state official be named—

which the DWC Commissioner is named herein to cover the Heinrich

17 DeQueen, 325 S.W.3d 628 at 635.
18 Tex. DOT v. Sefzik, 355 S.W.3d 618, 621-622 (Tex. 2011).

                                                                              14
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
determination where the state official is ignoring the law, the state official is a

proper party.



     3. Under Labor Code Section 410.255, the DWC is a proper party for
        all other issues, which likely includes the Proper Enforcement of
        the Law for Assigning Impairment Ratings.


       If this declaratory judgment action is viewed properly as an issue beyond

just entitlement to impairment rating income benefits, then Labor Code

section 410.255 would require the DWC be made a party under a “substantial

evidence review” standard. This Court of Appeals explained the two judicial

review avenues under Chapter 410 of the Texas Labor Code:19

       Section 410.301 HN4 provides that suits "regarding compensability or
       eligibility for or the amount of income or death benefits" are governed
       by modified de novo review. Tex. Lab. Code Ann. § 410.301. Substantial-
       evidence review is reserved as the default for any other type of
       reviewable appeals panel decision. See id. § 410.255.

To anticipate the DWC’s response that 410.255 would mandate venue in

Travis County—such is not accurate because 410.252 controls judicial review

and requires venue in the county of the worker’s residence under either

subchapter F (410.255) or subchapter G (410.301) of Chapter 410 of the

Texas Labor Code. So even if Labor Code section 410.255 applies to network

19Tex. Prop. & Cas. Guar. Ass'n v. Nat'l Am. Ins. Co., 208 S.W.3d 523, 533 (Tex.
App.--Austin 2006, pet. denied).
                                                                                   15
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
issues and then Texas Government Code section 2001.171 et seq. applies in

this case (though such assertion is definitely contested), venue is still

mandatory in Dallas County.             Under Texas Government Code section

2001.176(b)(1) a petition must be filed in Travis County “unless provided

otherwise by statute.” Travis County is the default if the specific statute

does not provide otherwise—here it provides local venue.

      Texas Labor Code section 410.252(b)(1) statutorily mandates venue in

the worker’s county of residence (Dallas County) at the time of the injury.

This is consistent with the administrative hearings in this matter being held in

the local DWC field office within 75 miles of the worker’s residence under

Texas Labor Code section 410.005. Worth noting is section 410.252 precedes

section 410.255, and both of these sections are part of Subchapter F of

Chapter 410. Any attempt to say section 410.252 does not apply to section

410.255 would be contrary to the express language of the statute.

      This Court of Appeals previously addressed whether the backup

mandatory Travis County venue under the Guaranty Act controlled over the

required mandatory county of an injured worker’s residence under the Texas

Workers’ Compensation Act. See respectively, TEX. INS. CODE § 462.017(b) and

TEX. LAB. CODE § 410.252(b).          See TEX. LAB. CODE § 410.252(b)(1) (party


                                                                             16
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
bringing suit must file petition in county where employee resided at time of

injury); Campos v. Texas Prop. & Cas. Ins. Guar. Ass'n, 282 S.W.3d 226, 230 (Tex.

App.—Austin 2009, no pet.).           In Campos v. TPCIGA, this Court properly

determined      that   the    mandatory      venue     under   Texas   Labor   Code

§410.252(b)(1) the Texas Workers’ Compensation Act trumped the conflict

with the Insurance Code. This Court determined:20

            In our view, the specific venue provision of the Workers'
       Compensation Act controls over the general venue provision of the
       Guaranty Act.

The DWC is a proper party under Texas Labor Code Section 410.255.



     4. Declaratory Relief is Proper & Needed When the DWC Misapplies
        the Law and Violates the Law.

      The DWC and the Commissioner appear to allege declaratory relief is not

available at all against the DWC and the Commissioner. All parties involved

will be affected by the declaratory judgment action and to be of any force and

effect, the UDJA unequivocally mandates:

      (a) When declaratory relief is sought, all persons who have or claim any
      interest that would be affected by the declaration must be made parties.
      A declaration does not prejudice the rights of a person not a party to the
      proceeding.


20Campos v. Texas Prop. & Cas. Ins. Guar. Ass'n, 282 S.W.3d 226, 231 (Tex.
App.—Austin 2009, no pet.)
                                                                                 17
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
TEX. CIV. P. & REM. CODE § 37.006. See Brooks v. Northglen Ass'n, 141 S.W.3d

158, 163 (Tex. 2004) (The Texas Supreme Court noted that no fault and no

prejudice lies with non-parties to the UDJA). If the Appellees, the DWC and

the Commissioner, were not parties, then they would not be bound to follow

the District Court’s declarations.


   5. The DWC and Commissioner Previously Have Been Determined
      Proper Parties in UDJA Actions

     This Court of Appeals recently emphasized that a declaratory judgment

action is allowed for Texas Labor Code proper statutory enforcement matters

and are proper where a party “asked the court to declare its rights and status

under    certain    statutory     provisions”    involving    the   Texas   Workers’

Compensation Act. Nat'l Am. Ins. Co. and TDI-DWC and Commissioner Bordelon

in his official capacity v. Tex. Prop. & Cas. Ins. Guar. Ass'n, No. 03-09-00680-CV,

2013 WL 4817637, 2013 Tex. App. LEXIS 10865 (Tex. App.--Austin Aug. 28,

2013, no pet.) (mem. op.).            This Court rejected the DWC’s and the

Commissioner’s position that the trial court did not have jurisdiction to

construe the statutes in issue and determined in part that “the trial court had

jurisdiction to construe the statutes in issue.”       Id.   The statutes in issue all

were sections of the Texas Workers’ Compensation Act under the Texas Labor


                                                                                   18
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
Code. The parties were an insurance carrier, TPCIGA acting on behalf of an

insurance carrier in receivership, and the DWC and the Commissioner.           This

Court should also allow a declaratory judgment to proceed to enforce

compliance with the statutory terms. As the 3rd Court of Appeals explained in

upholding the right to declaratory relief in the Nat’l American case:21

       A declaratory judgment action is proper only if a justiciable controversy
       exists as to the rights and status of the parties and the controversy will be
       resolved by the declaration sought. Bonham State Bank v. Beadle, 907
       S.W.2d 465, 467 (Tex. 1995).

A clear controversy exists with regards to the DWC and the Commissioner’s

proper application of the statutory requirements and that workers should

have spinal fusion surgeries occurring before maximum medical improvement

included in any assigned impairment ratings.



     6. Insurance Carriers Are Allowed Declaratory Actions Against the
        TWCC and the DWC (now the DWC)—Why Not Injured Workers?

       In 2003, this Court of Appeals allowed one insurance carrier to bring a

declaratory judgment action against the injured worker and the Texas

Workers’ Compensation Commission, the predecessor to the DWC, after

having exhausted administrative remedies was proper under the Uniform

Declaratory Judgment Act.         Tex. Workers' Compensation Ins. Fund v. Tex.
21   Id.
                                                                                 19
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
Workers' Compensation Comm'n & Watts, 124 S.W.3d 813, 820 (Tex. App.--

Austin 2003, pet. denied). This Court of Appeals in TWCIF v. TWCC allowed a

declaratory action but agreed with the TWCC’s statutory interpretation.

     In 2006, this Court of Appeals in Lumbermens upheld the jurisdiction of

the district court under the Uniform Declaratory Judgments Act, UDJA after an

analogous matter arising out of a Chapter 410 proceeding. Texas Dep. of Ins.,

Div. of Workers’ Compensation v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870

(Tex. App.—Austin 2006, pet. denied). The Lumbermens court stated:

     The UDJA does not confer jurisdiction on trial courts; rather, it is merely a
     procedural device for deciding cases already within a court's jurisdiction.
     ...

     Accordingly, we hold that the trial court had jurisdiction under the UDJA
     and overrule the Division's second issue.

Lumbermens at 875. The authority clearly exists to use the UDJA, specifically

§37.004, to pursue a declaration of statutory interpretation even when a rule

violates the Texas Workers’ Compensation Act for cases which administrative

remedies have been exhausted under Chapter 410.

     The 3rd Court in the Lumbermens case, TWCIF v TWCC, and the Nat’l Amer.

and TDI-DWC v. TPCIGA, simply allowed and upheld declaratory judgments

with the DWC as a proper party. In each case including the case decided last

year, the DWC objected to the declaratory actions; however, the 3rd Court of

                                                                               20
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
Appeals allowed each declaratory action to proceed and determined the

meaning of the statutes in question.              These three declaratory actions

determined statutory rights in matters like this one arising after exhaustion of

administrative remedies under Chapter 410 of the Texas Labor Code. This is

a case challenging the state agency and the insurance carrier’s improper

application, interpretation, and lack of compliance and enforcement of state

laws.     When the Legislature declares a 6.25% state sales tax rate, a state

agency could not try to declare and misapply a 7% state sales tax. When the

Legislature declares complete and accurate and detailed written notice be

provided to workers, a state agency and its official head cannot simply allow a

website link to be provided.

     The TWCIF v. TWCC and the Lumbermens cases were brought as a

declaratory judgment action in conjunction with challenging a final decision

from the Chapter 410 dispute process in the Texas Labor Code. Likewise, the

Nat’l Amer. v. TPCIGA also was brought as a declaratory judgment action

subsequent to a final Chapter 410 contested case hearing yet in a separate

proceeding. These cases illustrate the need for an actual controversy and that

Courts are allowed to address declaratory judgments on matters within their

jurisdiction after administrative remedies have been exhausted. Unlike those


                                                                              21
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
cases, the DWC intervened in this matter.

   7. The Predecessor to Texas Mutual, the Texas Workers’
      Compensation Insurance Fund, Pursued an Allowed Declaratory
      Action Against the TWCC and the DWC.

     In 2003, this Court of Appeals allowed one insurance carrier, the

predecessor to Texas Mutual, to bring a declaratory judgment action against

the injured worker and the Texas Workers’ Compensation Commission, the

predecessor to the DWC, after having exhausted administrative remedies in a

dispute against one worker and that such was allowed under the Uniform

Declaratory Judgment Act.          Tex. Workers' Compensation Ins. Fund v. Tex.

Workers' Compensation Comm'n & Watts, 124 S.W.3d 813, 820 (Tex. App.--

Austin 2003, pet. denied). The 3rd Court of Appeals in TWCIF v. TWCC allowed

a declaratory action but agreed with the TWCC’s statutory interpretation.

This Court properly determined the legal dispute over the meaning of an

"issue," as used in Tex. Lab. Code §410.204(a), refers to the disputed

determinations made by the hearing officer in rendering the final decision.

Clearly, the state agency was a necessary party to the declaratory action.

     Texas Mutual has sought declaratory judgments under the Texas

Workers’ Compensation Act in other matters in which Texas Mutual won the

declaration, and this Court of Appeals determined the DWC’s plea to the


                                                                             22
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
jurisdiction was granted in error.           Texas Mutual Insurance Co. v. Texas

Department of Insurance, Division of Workers' Compensation, 214 S.W.3d 613

(Tex. App.--Austin 2006, no pet.).

     Texas Mutual and the DWC (its predecessor the TWCC) successfully

sought declaratory judgments against a chiropractor for the proper

application of the Texas Labor Code (the Texas Workers’ Compensation Act).

Howell v. TWCC & Texas Mutual, 143 S.W.3d 416, 429 (Tex. App. --Austin 2004,

pet. denied). , and this Court of Appeals explained:

       Unlike an advisory opinion, these declarations did not concern
     hypothetical claims or abstract questions of law. The declarations went to
     the heart of the controversy between the parties. . . . A trial court has the
     discretion to enter a declaratory judgment as long as it will serve a useful
     purpose or will terminate the controversy between the parties.


     In prior legal brief, 2006 TX App. Ct. Briefs LEXIS 276 , Texas Mutual

successfully asserted a need for declaratory judgment relief against the DWC.

Tex. Mut. Ins. Co. v. Tex. Dept. of Ins., Div. of Workers' Compensation, 214 S.W.3d

613, 619 (Tex. App.—Austin 2006, no pet.) Texas Mutual argued entitlement

to a declaration and that the attached final DWC contested case hearing

officer’s decision confirmed this (emphasis added):

     First, the attached decision confirms that Texas Mutual's declaratory
     judgment action challenging the validity of Rule 110.1 is ripe. Texas
     Mutual seeks declaratory judgment that the Rule cannot validly extend a

                                                                                23
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
     policy past the date that the statute would require. . . .

     Texas Mutual is entitled to appeal the attached decision. TEX. LABOR
     CODE § 410.252. But that potential appeal is not the exclusive remedy
     available to Texas Mutual. Only by a declaratory judgment action such
     as the one in the case at bar can Texas Mutual resolve the scope of the
     Division's statutory authority over cancellation, non-renewal, and
     offers of renewal not accepted. The declaratory judgment action would
     thus be proper even if there were also an APA appeal of a particular
     order


   8. Prior Declaratory Judgment over Impairment Ratings and AMA
      Guides

     In 2006, this Court of Appeals in Lumbermens upheld the jurisdiction of

the district court under the Uniform Declaratory Judgments Act, UDJA, after

an analogous matter arising out of a Chapter 410 proceeding. Texas Dep. of

Ins., Div. of Workers’ Compensation v. Lumbermens Mut. Cas. Co., 212 S.W.3d

870 (Tex. App.—Austin 2006, pet. denied). The Lumbermens court stated:

     The UDJA does not confer jurisdiction on trial courts; rather, it is merely a
     procedural device for deciding cases already within a court's jurisdiction.
     ...

     Accordingly, we hold that the trial court had jurisdiction under the UDJA
     and overrule the Division's second issue.

Lumbermens at 875. The authority clearly exists to use the UDJA, specifically

§37.004, to pursue a declaration of statutory interpretation even when a rule

or mere agency position violates the Texas Workers’ Compensation Act.


                                                                               24
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
      Mr. Morales has in part requested a declaratory judgment ruling that

spine impairment ratings under the Texas Workers’ Compensation Act must

take into consideration spinal surgeries and the effects of spinal surgeries

when the surgeries occur prior to maximum medical improvement, MMI,

being reached.       This legal question of whether spinal surgery occurring

before MMI must be considered in assigning an impairment rating was

expressly left open by this Court in Severiano DeLeon v. Royal Indemnity

Company, 396 S.W.3d 597 (Tex. App.--Austin 2010) rev’d on other grounds

Severiano DeLeon v. Royal Indem. Co., 396 S.W.3d 527 (Tex. 2012).

     9. Lumbermens Was Wrong to Try to Exclude Consideration of Pre-
        MMI Spinal Surgeries as the DeLeon decision determined that Pre-
        MMI Spinal Surgeries Question Would Be Left Open.

     Insurance Carriers and the DWC and the DWC Commissioner have used the

Lumbermens dicta inappropriately to try to exclude all spinal surgeries, even

pre-MMI, from consideration (and this is evidently taught to a number of

designated doctors).22         Subsequent to Lumbermens, this Court’s DeLeon

decision expressly distanced itself from this dicta, with this Court noting that

it would leave open and not reach Mr. DeLeon’s arguments including




22Tex. Dep’t of Ins. v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870 (Tex. App.—
Austin 2006, pet. denied)
                                                                               25
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
considering pre-MMI surgery, this Court stated: 23

      Therefore, we need not reach the issue of whether pre-MMI
      surgery may be taken into account under the AMA Guides when
      assessing an impairment rating for a spine impairment.

      A major flaw from allowing the DWC and insurance carriers to apply the

dicta from the Lumbermens decision was created in part because no worker

was in that appeal to point out the pertinent provisions of the AMA Guides,

was from looking at one sentence of the AMA Guides in isolation and not with

respect to Table 70 which provides express “specific disorder” categories for

“previous spine operations,” the MMI date, or even the definition of

“impairment” under the WC Act.              Attached as Appendix No. 3 are the

applicable pages from the AMA Guides to the Evaluation of Permanent

Impairment, 4th Edition, which is allowed to be used by the Legislature under

Texas Labor Code Section 408.124(c).

      Under Table 70, Mr. Morales is entitled to a range of categories, and, as

discussed below, the Range of Motion model should be used if Table 70 does

not contain a specific rating.

      The line taken out of context from the AMA Guides in the Lumbermens

decision to somehow, and somewhat inexplicably, exclude spinal fusion
23Severiano DeLeon v. Royal Indemnity Company, 396 S.W.3d 597 (Tex. App.--
Austin 2010) rev’d on other grounds Severiano DeLeon v. Royal Indem. Co., 396
S.W.3d 527 (Tex. 2012)
                                                                           26
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
surgeries from impairment ratings is:

        With the Injury Model, surgery to treat an impairment does not modify
        the original impairment estimate, which remains the same in spite of
        any improvement or failure to improve with regards to symptoms that
        follow the surgery and irrespective of whether the patient has a
        favorable or unfavorable response to treatment. [Emphasis added, AMA
        Guides, p. 100, left column, paragraph 3].

Under Texas Labor Code Sections 401.011(23) & (24) the Legislature’s

definitions are as follows:

        (23) “Impairment” means 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.
        (24) “Impairment rating” means the percentage of permanent
        impairment of the whole body resulting from a compensable injury.

The “impairment” must be from an examination done after MMI has been

reached and be based upon the doctor’s evaluation of the injured worker’s

condition after MMI.     24   So surgery occurring after MMI, at least under the

law, would not affect the original impairment rating, but surgery occurring

before an impairment is reached is certainly included.

        In the Molder decision, the El Paso Court properly emphasized that MMI

must be reached before an impairment rating may be evaluated, and the

impairment rating is based on the employee’s condition as of the date of MMI.

In Molder, the Court of Appeals explained DWC Rule 130.1 and left the


24   TEX. LAB. CODE § 408.123(a).
                                                                             27
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
medical judgment to the doctor to include the surgery (emphasis added):25

      Rule 130.1(c)(3) requires that assignment of an impairment rating for
      the current compensable injury be based on the injured employee's
      condition as of the MMI date considering the medical record and the
      certifying examination. 28 Tex. Admin. Code § 130.1(c)(3). . . .


      An “impairment” is permanent and not determined until after MMI is

reached and clearly not the same as an “injury” under the AMA Guides.

Surgery to treat an “impairment” is legally different from surgery to treat an

“injury.” In discussing the impact of surgery with regards to MMI, the DWC

Appeals Panel explained in DWC Appeals Panel Decision No. 080375, May 15,

2008, 2008 WL 2233469:

      28 TEX. ADMIN. CODE § 130.1(c)(3) (Rule 130.1(c)(3)) provides that
      the assignment of an IR for the current compensable injury shall be
      based on the injured employee's condition as of the MMI date
      considering the medical record and the certifying examination. . . . In
      response to public comment on Rule 130.1, the Division, in the
      preamble, noted that in the situations where the claimant reaches MMI
      clinically, rather than with the expiration of 104 weeks or the extended
      date in the event of spinal surgery, future changes in the injured
      worker's condition may cause the MMI date to change and that “[i]n the
      event the MMI date is changed due to a post-MMI change in the injured
      employee's conditions, there should be a re-evaluation of the IR as of
      the new MMI date.”




25Tex. Builders Ins. Co. v. Molder, 311 S.W.3d 513 (Tex. App. El Paso 2009, no
pet.)
                                                                                 28
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
Surgery after MMI perhaps does not legally affect the impairment rating, but

certainly pre-MMI surgery does. In this matter, Mr. Morales had a multi-level

pre-MMI fusion surgery to treat his “injury” not surgery to treat his

“impairment,” which would refer to his post-MMI and post-surgery

permanent condition. The Arkansas Workers’ Compensation Commission

properly explained such in an administrative decision:

      . . . a single level fusion was not geared to treat an impairment, but
      rather an injury, a recurrent herniated nucleus pulposus lumbar 4-5
      right.

Camp v. Greene County Tech. et. al, decided October 17, 2008, 2008 WL

4686198 (Ark.Work.Comp.Com.)(allowing rating after and considering

surgery but under Arkansas law apportioning out prior impairments). The no

inclusion of multi-level fusion surgery by the designated doctor results from

the erroneous interpretation applied from Lumbermens and clearly left open

in DeLeon likely because such misinterpretation violates and contradicts the

AMA Guides requirements, DWC rules, and the WC Act.

      Further under the Range of Motion model used by the physician to rate

the multi-level fusion of Mr. Morales, the AMA Guides expressly provide for

ratings of surgical fusions when Table 70 cannot be used or to help decide a

category under Table 75 of the AMA Guides, which starts with a 10% rating


                                                                          29
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
for a one level cervical fusion—the DWC’s designated doctor here only

assigned a 5% rating for the cervical spine, when Mr. Morales undisputed

underwent a four level cervical fusion.        The DWC’s enforced rating is clearly

erroneous and legally invalid.

10. The DWC and the Commissioner Relied Below on Inapplicable and
  Distinguishable Decisions

     The Appellees relied upon easily distinguishable cases.        In the District

Court, the Appellees relied in part upon Beacon Nat 'I Ins. Co. v. Montemayor,

86 S.W.3d 260, 267 (Tex. App.-Austin 2002, no pet.). In Beacon v. Montemayor,

the 3rd Court of Appeals explained:

     The UDJA waives this immunity when a party seeks a court's construction
     of a statute or rule. City of LaPorte v. Barfield, 898 S.W.2d 288, 297, 38
     Tex. Sup. Ct. J. 533 (Tex. 1995). Beacon's action does not seek
     construction of a statute or rule; . . . .

This shows that the party seeking the declaration in Beacon did not seek

proper statutory construction or clarification unlike the declaratory requests

here.

     Further, the Appellees below cited to Kuntz v. Khan, No. 03-10-00 160-CV,

2011 Tex. App. LEXIS 446, 2011 WL 182882,(Tex. App.--Austin 2011, no

pet.)(mem. op.). Kuntz v. Khan rejected a declaratory judgment because “the

effect of a favorable ruling in either lawsuit would be the same—if Khan


                                                                                30
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
prevails in either suit, the result would be a determination that the

Department has no authority to regulate eyebrow threading.” Kuntz v Khan

addressed a suit directly against and enforceable against the state agency

versus here where the DWC and the Commissioner are not necessary parties

to a judicial review action under Chapter 410.301          without the legal

declaratory relief sought.

     Likewise the DWC below relied upon Young Chevrolet, Inc. v. Tex. Motor

Vehicle Bd., 974 S.W.2d 906,911 (Tex. App.--Austin 1998, pet. denied), which

also involved direct actions against the state regulatory agency as a party

creating enforceability against the agency without the need for a declaration.

The DWC and DWC Commissioner are not parties to mere judicial review

actions under Texas Labor Code Section 410.301-302.

     Kuntz v Khan and other cases involving direct judicial challenges to a

state agency are in direct contrast here where the DWC is not a mandatory

party under Chapter 410 disputes except under Section 410.255, and the only

method to enforce proper statutory construction and enforcement against the

DWC and the Commissioner is, simply and legally, to make the DWC and the

Commissioner a party, in fact a necessary party for legal declarations of

statutory meanings, rights, applications, and proper enforcement especially


                                                                           31
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
where violations of the law are alleged.

     To bind the regulatory state agency, the DWC and the Commissioner, in

his official capacity, are necessary and proper parties when declaratory relief

is sought to ensure compliance and that state officials do not act ultra vires.


   11.       The District Court Has Jurisdiction over all the Claims

     The Appellant has exhausted his administrative remedies before the DWC

and the Commissioner with an unfavorable ruling based upon statutory

construction and misapplication and refusal to comply with the law by the

Appellees.    When reviewing a plea to the jurisdiction, the pleadings are

construed in favor of the non-movant. See Tex. Dep't of Parks & Wildlife v.

Miranda, 133 S.W.3d 217, 226 (Tex.2004); Tex. Ass'n of Bus. v. Tex. Air Control

Bd., 852 S.W.2d 440, 446 (Tex. 1993). “The general test for standing in Texas

requires that there (a) shall be a real controversy between the parties, which

(b) will be actually determined by the judicial declaration sought.” Tex. Ass'n of

Bus., 852 S.W.2d at 446.

      To prevail, the party asserting the plea to the jurisdiction must show

that even if all the allegations in the plaintiff's pleadings are taken as true,

there is an incurable jurisdictional defect apparent from the face of the

pleadings, rendering it impossible for the non-movant’s claims to confer

                                                                                  32
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
jurisdiction on the trial court. Texas State Employees Union/CWA Local 6184 v.

Texas Workforce Comm'n, 16 S.W.3d 61, 65 (Tex. App.-Austin 2000, no pet.). A

court deciding a plea to the jurisdiction is not required to look solely to the

pleadings, but may consider evidence relevant to the jurisdictional issue and

must do so when necessary to resolve the jurisdictional issues which have

been raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554-55 (Tex. 2000).

A court should construe the pleadings in the non-movant’s favor and look to

the non-movant's intent. Texas Ass'n of Business v. Texas Air Control Bd., 852

S.W.2d 440 at 446 (Tex. 1993). A court does not address the merits of the

case in a plea to the jurisdiction; instead, the movant must establish why the

merits of the non-movant’s claims should not be reached. Bland Indep. Sch.

Dist., 34 S.W.3d at 554. The DWC and the Commissioner have not shown that

an injured worker’s suit to properly enforce compliance with statutory terms

falls outside the jurisdiction of the District Court because administrative

remedies have been exhausted, and the pleadings illustrate why the DWC and

the Commissioner must be parties to be able to enforce any declarations

against the state agency and its administrative head when the agency fails to

properly follow the Legislature’s laws and acts in violation of the state laws.

   12.         Resolution of the Controversy with Declaratory Action


                                                                                  33
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
     The judicial declaration sought by Rosendo Morales will help determine

and likely resolve the underlying controversy concerning the proper inclusion

of spinal fusion surgeries in the impairment ratings assigned to injured

workers.



   13.         Texas Courts are “Duty-Bound” to Construe Statutes

      Texas District Courts are inherently vested with the power to construe

statutes, and Courts are not bound by an agencies interpretation or

application, especially if in error. If a declaratory judgment action terminates

the uncertainty or controversy giving rise to the lawsuit, the District Court is

duty-bound to declare the rights of the parties as to the matters on which the

parties join issue. Spawglass Constr. Corp. v. City of Houston, 974 S.W.2d 876,

878 (Tex. App.--Houston [14th Dist.] 1998, pet. denied); Calvert v. Employees

Ret. Sys. of Tex., 648 S.W.2d 418, 419 (Tex. App.--Austin 1983, writ ref'd n.r.e.).

Without the DWC and the Commissioner, the enforcement of the statutes

proper application would not be available to a judge.



   14.        Live Justiciable Controversy Exists

      Appellant also has clearly asserted that the DWC and the Commissioner


                                                                                34
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
interpretation and application of the laws in question violate the statutes of

Texas and the statutory responsibility, authority and limits placed upon the

DWC and the Commissioner and that statutory interpretation and validity of

application of the Texas Workers’ Compensation Act are in dispute.               A

justiciable controversy regarding whether a state agency or officer has acted

beyond statutory authority provides a jurisdictional basis for a UDJA action

seeking construction of that statutory authority. This type of UDJA action does

not implicate sovereign immunity. Cobb v. Harrington, 144 Tex. 360, 190

S.W.2d 709, 712 (1945); see also Texas Natural Res. Conservation Comm'n v. IT-

Davy, 74 S.W.3d 849, 855 (Tex. 2002) (“Private parties may seek declaratory

relief against state officials who allegedly act without legal or statutory

authority.”). A suit for declaratory relief is not a suit against the State because

it does not seek to impose liability or money damages against the state agency.

IT-Davy, 74 S.W.3d at 853.

15. Declaratory Actions Allowed Even After Prior Final Judgments
    under Chapter 410 of the Texas Labor Code to Determine Statutory
    Rights

     This Court of Appeals recently allowed a declaratory judgment action

against the DWC, the Commissioner, and an insurance carrier to determine

statutory rights after a previous final judgment under a Texas Labor Code


                                                                                35
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
Chapter 410 dispute.       Nat'l Am. Ins. Co. v. Tex. Prop. & Cas. Ins. Guar. Ass'n for

Paula Ins. Co., 2013 Tex. App. LEXIS 10865 (Tex. App.--Austin Aug. 28, 2013,

no pet.). This Court, in allowing the declaratory action to proceed, explained

that it was not a collateral attack on the prior judgment because: “the

controversy underlying the Guaranty Association's declaratory judgment

action concerns NAIC's rights vis-a-vis the Guaranty Association under section

410.033 of the Labor Code and the Guaranty Act. The declaratory judgment

action regarding reimbursement thus involves the existence of a statutory

right . . . .”   Clearly, declaratory actions over statutory rights and the proper

enforcement of those rights under the Labor Code and the Code of Criminal

Procedure are allowed where, as here, a live controversy exists and

administrative remedies have been exhausted.


      Further, the state agency is a necessary party when the authority of the

state agency’s actions and rules are questioned as violating the will of the

Legislature. The DWC and the Commissioner being joined in this matter

makes this declaratory action proper so as to be enforced against the DWC

and the Commissioner to not violate the statutes.             This Court previously

explained:

   The UDJA grants any litigant whose rights are affected by a statute the

                                                                                    36
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
  opportunity to obtain a declaration of those rights under the statute
  and requires that all relevant parties be joined in any declaratory
  judgment suit. Tex. Civ. Prac. & Rem. Code Ann. §§ 37.004, .006 (West
  1997); City of Waco v. Texas Nat. Res. Comm'n, 83 S.W.3d 169, 179 (Tex.
  App.-Austin 2002, pet. denied) (UDJA claim not barred by sovereign
  immunity because UDJA serves to clarify rights already guaranteed by
  legislature). Therefore, when the State is a necessary party to a statutory
  cause of action, such as a UDJA action for interpretation of a statute,
  sovereign immunity is expressly waived because, were the State not
  joined, the right to a declaration would have no practical effect. See City
  of La Porte v. Barfield, 898 S.W.2d 288, 297 (Tex.1995) (construing Texas
  Educ. Agency v. Leeper, 893 S.W.2d 432, 446 (Tex.1994)); see also Beacon
  Nat'l Ins. Co. v. Montemayor, 86 S.W.3d 260, 267 (Tex. App.--Austin 2002, no
  pet.) (“The UDJA waives [sovereign] immunity when a party seeks a court's
  construction of a statute or rule.”); Star Houston v. Texas Dep't of Transp.,
  957 S.W.2d 102, 111 (Tex. App.--Austin 1997, pet. denied) (holding that
  sovereign immunity did not bar declaratory judgment determining whether
  agency has wrongfully construed a statute); City of Austin, 728 S.W.2d at
  910-11 (holding UDJA action brought against government entity to
  determine scope of entity's authority not barred by sovereign immunity). A
  UDJA action exists whether or not further relief can be obtained.
  Leeper, 893 S.W.2d at 446. Thus, when a party brings a declaratory
  judgment action to interpret an agency's statutory authority, immunity
  from suit is waived by the UDJA. This does not mean, however, that
  immunity from damages is waived except as to a declaration of the parties'
  rights and the potential award of attorney's fees. UDJA actions for statutory
  interpretation do not implicate the policy concerns of protecting the
  legislature's policy-making discretion and avoiding raids on the public
  treasury embodied in the sovereign immunity doctrine-rather, they serve to
  clarify the rules and requirements imposed by the legislature on the
  administrative agencies.

(Emphasis added.) Texas Mun. Power Agency v. Public Utility Com'n, 100

S.W.3d 510, 515-516 (Tex. App.--Austin 2003, pet. denied) (cited to favorably

by Texas Mun. Power Agency v. Public Utility Com'n of Texas, 253 S.W.3d 184,


                                                                            37
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
189 (Tex. 2007). Appellant does not seek damages from the DWC or the

Commissioner, but does seek to clarify and to enforce the proper compliance

with the statutory requirements on the administrative agency and its head

official who are violating the law.           The DWC should not be allowed to

continue to improperly interpret and fail to enforce the Texas Labor Code.


     16.    Declaratory           Actions      under   the   Texas   Workers’
       Compensation Act

      The initial challenge to the 1989 Texas Workers’ Compensation Act in

Garcia was primarily a declaratory judgment action.26 The Texas Supreme

Court reiterated as to the declaratory action against the then TWCC and the

Executive Director looking at the terms and Constitutionality of the 1989

Act:27

      Standing, which is a necessary component of subject matter jurisdiction,
      requires a) a real controversy between the parties, which b) will be
      actually determined by the judicial declaration sought.

The DWC and the Commissioner’s actions ignore the statutory requirements

to be applied against insurance carriers and employers and in favor of

workers and health care providers.



26
   Texas Workers' Compensation Commission v. Garcia, 893 S.W.2d 504, 517-518
(Tex. 1995).
27 Garcia at 513.

                                                                            38
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
     Appellant has exhausted all applicable administrative remedies under

Chapter 410 of the Texas Labor Code. A UDJA claim is sui generis; and, all

other things being equal, the district court's subject matter jurisdiction over it

exists independently of any administrative remedies. Texas Liquor Control Bd.

v. Canyon Creek Land Corp., 456 S.W.2d 891, 895 (Tex.1970); Cobb, 190 S.W.2d

at 713; see Texas Mun. Power Agency v. Public Util. Comm'n, 100 S.W.3d 510,

520 (Tex. App.--Austin 2003, pet. denied).             Even if the UDJA claims in this

matter could not be brought independently, the claims certainly could be

brought within the jurisdiction created by the exhausted administrative

dispute.

     The Third Court of Appeals in Mid-Century Insurance Company v. Texas

Workers’ Compensation Commission, 187 S.W.3d 754 (Tex. App.—Austin 2006,

no pet.), determined that a rule exceeded the statutory authority of the DWC

and noted that:

     Mid-Century Insurance Company (Mid-Century) sought a declaration that
     this rule exceeds the Division's statutory powers and is thus invalid. See
     Tex. Civ. Prac. & Rem. Code Ann. § 37.004 (West 1997).

Id. at 756.   Without declaratory actions, the statutes could be ignored by the

DWC and the Commissioner with enforcement only on a piece-meal basis by

litigants who are able to challenge improper agency actions.


                                                                                   39
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
       Whether the District Court, or any Court, ultimately rules in Appellant’s

favor or not—the District Court certainly can declare rights of the interested

parties, an injured worker and an insurance carrier, directly affected by the

applicable state agency and agency head, under the statutes as a matter of law

especially where administrative remedies have been exhausted.          See Tex.

Workers' Compensation Ins. Fund v. Tex. Workers' Compensation Comm'n, 124

S.W.3d 813 (Tex. App.--Austin 2003, pet. denied).


     17.       ENFORCABILITY: UDJA is Especially Necessary where the
       DWC Refuses to Recognize Chapter 410 District Court Rulings as
       Legally Binding

The DWC’s position on individual Chapter 410 judicial review cases is that

mere district court reversals of a final DWC decision under Chapter 410 of the

Texas Labor Code are not binding as to the DWC’s interpretation even if it is

improper as to any other case. The DWC Appeals Panel has reiterated:28

      that the decision of a [city 1] District Court had no effect "beyond its
      factual context" and did not bind the Texas Workers' Compensation
      Commission (Commission) as a matter of stare decisis in the
      Commission's interpretation of the 1989 Act.

This shows the Catch-22 that the DWC places all parties under that the DWC

and Commissioner’s disregard for a court decision beyond “its factual content”


28DWC APPEAL NO. 050140, 2005 TX Wrk. Comp. LEXIS 57 (decided March
14, 2005)
                                                                             40
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
unless, as here, the DWC and Commissioner are made parties or intervene.

This matter is of significant public importance and concerns the very line

drawn as to the entry into course and scope of employment by Texas peace

officers.

Only after the appellate decision upholding declaratory judgment in

Lumbermens become final did the DWC Appeals Panel follow the declaration:29

     Lumbermens Mutual        Casualty Company filed suit against the Division
     seeking in part a        declaratory judgment that the Advisories are
     inconsistent with 28     TEX. ADMIN. CODE § 130.1 (Rule 130.1) and that
     their issuance and       application is outside the Division's statutory
     authority.

     The Advisories have been declared invalid and their application an ultra
     vires act. Lumbermens, supra. Therefore, the adoption of an IR that is
     based on the Advisories is legal error and must be reversed. Prior
     Appeals Panel decisions applying the Advisories to rate impairment for
     spinal fusion surgery have been overruled by the Lumbermens case.

The DWC will follow a declaratory judgment as to statutory rights and its

prior errors, but will not apply a District Court’s reversal of a single workers’

compensation dispute decision beyond the single workers’ compensation

claim.      The DWC’s own decisions signify why declaratory judgments are

allowed and clearly necessary in this matter.



29DWC Appeals Panel No. 071023-s, decided July 23, 2007, 2007 TX Wrk.
Comp. LEXIS 54.

                                                                              41
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
     Here are several more final DWC decisions from over the years refusing

to follow the law in District Court cases:

   (1)        DWC APPEAL NO. 94994, 1994 TX Wrk. Comp. LEXIS 6081,

      September 9, 1994: “. . . nor is the Commission joined as a party. The

      decision is without effect, therefore, beyond its factual context, and

      certainly the Commission is not bound by such a general judgment

      of a district court, through stare decisis, in its interpretation of the

      Section 409.021.” (Emphasis added.)

   (2)       DWC APPEAL NO. 951802, 1995 TX Wrk. Comp. LEXIS 4964,

      December 13, 1995, emphasizing: “We do not consider the Appeals

      Panel bound by this district court opinion in a case involving other

      parties and in which the commission did not participate.”

   (3)       DWC Appeal No. 990005, 1999 TX Wrk. Comp. LEXIS 3029,

      decided February 19, 1999: “The Appeals Panel is not bound by a

      district court opinion in a case involving other parties and in which

      the Commission did not participate. Texas Workers' Compensation

      Commission Appeal No 94994, decided September 9, 1994.” (Emphasis

      added.)




                                                                           42
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
The DWC and the Commissioner should be a party to a proceeding in which

legal determinations are sought to bind the DWC and the Commissioner to

follow the law. This underlying legal questions have not been declared and

determined and are not yet up on appeal, but the declarations sought under

the statutes are critical to resolving this matter.

   18.      Declaratory Judgment Prevents Continued Erroneous
     Statutory Interpretation by the DWC and the Commissioner

     In the workers’ compensation area, after final administrative decisions as

here, both insurance carriers and injured workers’ have sought declaratory

rulings concerning the validity and applicability of the DWC and the

Commissioner statutes and rules. See Mid-Century, supra; Fulton v. Associated

Indemnity Company, 46 S.W.3d 364 (Tex. App—Austin 2002, pet. denied);

Houston General Insurance Co. v. Association Casualty Insurance Co., 977

S.W.2d 634 (Tex. App.—Tyler, no pet.).             Venue of the main action shall

establish venue of a counterclaim, cross claim, or third-party claim properly

joined under the Texas Rules of Civil Procedure or any applicable statute. TEX.

CIV. PRAC. & REM. CODE §5.062(a); Howell v. Texas Workers' Compensation

Com'n, 143 S.W.3d 416, 433 (Tex. App.--Austin 2004, pet. denied).              A

declaratory judgment simply declares the rights, status, or other legal

relations of the parties; and under Tex. Civ. Prac. & Rem. Code §37.003(a), (b),

                                                                              43
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
a trial court has the “power to declare rights, status, and other legal relations

whether or not further relief is or could be claimed,” and declaration has the

“force and effect of a final judgment or decree”. Howell at 432. Without the

DWC and the Commissioner present, Appellant’s pleadings and claims for

relief would have little effect if not arguably result in an inability to be

enforced against the DWC and the Commissioner at all if in fact the DWC and

the Commissioner are not a party.

                                     CONCLUSION

      This Court should allow Rosendo Morales to proceed with the

declaratory judgment claim and keep as parties both the DWC and the

Commissioner, in his official capacity. The jurisdiction exists due to the live

controversy, exhaustion of administrative remedies, and the state agency and

state official are necessary parties for proper enforceability of the statutes and

to ensure proper compliance with statutory terms alleged to be violated.

Otherwise only the few who continue to fight will have a chance for justice on

a piece by piece basis and the harm may occur again and again. The purpose

of the Declaratory Judgment Act is to make the laws clear to all affected and to

make sure the laws are properly applied and not violated by the state agency

and the head of the state agency. The Judiciary oversees the Executive Branch


                                                                               44
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
both to uphold its proper actions but to also to protect Texans’ rights to make

sure the laws are properly applied and correctly interpreted and rightly

enforced.

                                       PRAYER

      Rosendo Morales, Appellant, respectfully prays and ask that this Court

reverse the ruling of the District Court on the plea to the jurisdiction granted

to the DWC and the Commissioner, and this Court should not allow the

dismissal of the DWC and the Commissioner, and that this Court determine

that the District Court has jurisdiction to determine the declaratory judgment

matters sought by Appellant including against the DWC and the

Commissioner.      Appellant ask for all other relief to which he is entitled

including costs of court.

                                Respectfully,
                                /s/ Brad McClellan
                                Bradley Dean McClellan
                                State Bar No. 13395980
                                Of Counsel, Law Offices of Richard Pena, P.C.
                                Richard Pena
                                Law Offices of Richard Pena, P.C
                                State Bar No. 00000073
                                1701 Directors Blvd., Suite 110
                                Austin, Texas 78744
                                Brad.McClellan@yahoo.com
                                (512) 327-6884 telephone
                                (512) 327-8354 facsimile
                                Attorney for Appellant

                                                                                45
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
                          CERTIFICATE OF COMPLIANCE

I certify that I have 10,480 word count checked by the word program in
compliance with the Texas Rules of Appellate Procedure.

                                     /s/ Brad McClellan
                                     Bradley Dean McClellan

                             CERTIFICATE OF SERVICE

     I certify that a copy of the foregoing Appellants’ Brief was served on the
through counsel of record by the method indicated below on May 27, 2015.

 Adrienne Butcher, Assistant Attorney General          Via efiling/eservice
 Administrative Law Division
 Office of the Attorney General of Texas
 P.O. Box 12548 (MC-018), Capital Station
 Austin, Texas 78711-2548
 512-475-4208
 Facsimile: (512) 320-0167
 adrienne.butcher@texasattorneygeneral.gov
 Attorneys for DWC and Commissioner

 Courtesy copy provided to other Defendant         Via efiling/eservice
 below
 Scott Placek & Matthew Foerster
 Arnold & Placek, LLC
 203 East Main Ave, Ste. 203
 Round Rock, TX 78664
 Attorneys for Defendant
                                  /s/ Brad McClellan
                                  Bradley Dean McClellan




                                                                              46
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
                                      APPENDIX

   1.     Order Granting Plea to the Jurisdiction of the DWC

   2.     First Amended Petition and Suit for Declaratory Judgment including
          the Final DWC Decision and Order

   3.     AMA Guides Sections for Spine Impairments




                                                                         47
No. 03-14-00808-CV Rosendo Morales Appellant’s Brief
                                    CAUSE NO.269,135.8

ROSENDO MORALES,                                     $   IN THE DISTRICT COURT OF
       Plaintffi                                     $
                                                     $
v.                                                   $                                        ho
                                                                                              @
                                                     $                                        .4r
TEXAS MUTUAL INSURANCE                               $                                        G,          {lr:
                                                                                              |*rt
                                                                                              (-t              II
coMPANY,                                             $
                                                                                               I
                                                                                                          q
                                                                                                          lm
       Defendant,                                    $   BELL COUNTY,                         .E*         X


&                                                    $
                                                                                              -r
                                                                                                          f5ilq
                                                                                                          ilt
                                                                                             4 '_
                                                     $                                                 f'ry

TEXAS DEPARTMENT OF INSURANCE.                       $
                                                                                             r\,       nu
                                                                                                          ,\**,,

                                                                                             C'I
DIVISION OF WORKERS'                                 $                                       @
COMPENSATION and COMMISSIONER                        $
ROD BORDELON,IN HIS OFFICIAL                         $
CAPACITY,                                            $
       Defendants.                                   $    l46THJUDICIAL DISTRICT

                                             ORDER

       On November 2l     , 2014, the parties in the above-referenced    case appeared before the

Court for a hearing on Defendants Division of Workers' Compensation and Commissioner Rod

Bordelon's Plea to the Jurisdiction, filed July 29, 2014. After considering the parties' arguments,

the applicable law, and the pleadings and record in this case, the Court finds that Defendants

Division of Workers' Compensation and Commissioner Rod Bordelon's Plea to the Jurisdiction

is meritorious and should be granted.

       Accordingly, the Court GRANTS Defendants Division of Workers' Compensation and

Commissioner Rod Bordelon's Plea        to the Jurisdiction.    Defendants Division   of   Workers'

Compensation and Commissioner Rod Bordelon are hereby DISMISSED from this case, and all

requested relief against them is DENIED.




                                                                                                               t
                                                                                                      qii'ilrrTF
                                                                                 SCAN
                                                                                /4-B       U             pfl"{L

                                               lllllrilrilltl                                       287
                                                    ORIGINf,,                                     Filed 5l??12O1 4 2:1 9:08 PM




                                          cAusE No. 269,135-8
                                                    s
                                                        E                      IN THE DISTRICT COURT
ROSENDO MORALES,
                  Plaintiff                             s
V.                                                      s
                                                        I
                                                        s                         BELL COUNTY, TEXAS
TEXAS MUTUAL INSURANCE CO.,
                   Defendant                            $
&                                                       $
Texas Department of lnsurance-Division of               s
Workers' Compensation and Commissioner                  s
Rod Bordelon, in his officialcapacity,                  s
                Defendants                              $                      t46th tuolclAL DlsrRlcr

                     FIRST                                                        TORY    J

                                      & REOUEST FOR DISCLOSURE

PLAINTIFF, ROSENDO MORALES, in            the above-entitled and numbered cause, files this Plaintiff's

First Amended petition, Request for Declaratory Judgment and Request for Disclosure, and

shows the Court:

                                     I.   DISCOVERY CONTROL PIAN


1.    plaintiff requests discovery to be conducted under Level 2 Discovery Control Plan-By Rule.

See TEX. R. ClV. P. $190.3.


                                      II. INTRODUSTION & PARTIES

Z.    This is a suit for judicial review lawsuit of a final administrative decision of the Texas

Department of tnsurance-Division of Workers' Compensation and for a declaratory judgment

concerning the Texas Workers' Compensation Act.

3.    plaintiff is Rosendo Morales, a severely injured worker, who resided and resides in Bell

County.

4.    Defendant is the TEXAS MUTUAL lnsurance company, the lnsurance carrier for purposes

of Workers' Compensation. Texas MUtual has been served and has answered.


Cause No. 269,135-8 Morales v. Texas Mutual lns, Co & OWC Plaintlff s 1't Amended Jeltrqn-&-EED
                                                                                                                           ssF#t
                                                                                                                             trq'
                                                                                                                    47
5.   Texas Department        of lnsurance, Division of Workers' Compensation and Commissioner

Rod Bordelon, in his official capacity, which are necessary parties because statutory

construction    of the    agency's interpretation and improper application                  of the Workers'

Compensation Act (the Texas WC Act) is challenged, are defendants, the DWC
                                                                           and the

Commissioner herein. Texas Department of lnsurance                 -    Division   of Workers' Compensation,

DWC, is a Eovernmental unit organized and existing under                  the law of the State of Texas, and

Commissioner Rod Bordelon, in his official capacity, in his official capacity as the Commissioner

of the Workers' Compensation Division are located at the Texas Department of lnsurance-

Division of Workers' Compensation, 7551 Metro Center Drive, Suite 1.00, Austin, TX, 78744.

plaintiff requests service on the DWC and the Commissioner at the above address'

                                        III. JURISDICTION & VENUE


6.    This Court has jurisdiction under Texas Labor Code Section 410.252 because Rosendo

Morales, the injured worker and Plaintiff, resided in Bell County at the time of his injury'

                                     IV. BRIEF STATEMENT OF FACTS


7.     Rosendo Morales the injured worker and Claimant, suffered a compensable injury on

November 22, 2O1O, while in the course and scope of his employment with Perry                        &   Perry


Builders lnc., Employer, which provided workers' compensation insurance on the date of inlury

through Texas Mutual lnsurance Company'

B.     Mr. Morales reached maximum medical improvement by statute on December 26, 2012.

g.    After a Texas Department of lnsurance-Division of Workers' Compensation                          (DWC)


contested case hearing, the challenged disputed issue                    was: "1. What is the      Claimant's


impairment rating?" The final DWC determination was a 13% impairment rating as determined



Cause No. 269,135-8 Morales v. Texas Mutual lns. Co & DWC Plaintiff s   l"Amended JeIiIlQn4-B.EO



                                                                                                               48
by the designated doctor, and plaintiff disputes and disagrees with
                                                                    this rating including that it is


              erroneous.    See attached   plaintiff Exhibit "A" DWC hearings decision of october 24,
invalid and

2013, and notice of becoming the final administrative decision on January 27,201'4'

                   V.RELIEFsoUcHTAsToWoRKERS,CoMPENSATIoNCLAIM

10.    Rosendo Morales is aggrieved by and seeks relief from and reversal                    of the final   DWC


                                                                                   rating
decision and order and contested case hearing decision and order on the impairment

issue (see attached Exhibit A), and specifically Rosendo Morales requests this Court to

determine that his impairment rating is either 35% as assigned by Dr. Weeks or a32Yo based on

Dr. Weeks alternative rating for the cervical spine injury.

11.    Further the erroneous 13% impairment rating assigned by the designated doctor is invalid

and the designated doctor is not entitled to presumptive weight on judicial review.

                                     VI.   DECIARATORY JUDGMENT


 tZ.    Rosendo Morales asserts the need for declaratory relief in this matter under the Uniform

Declaratory Judgments Act including under Texas Civil Practice                      &   Remedies Code section


 37.OO4. Rosendo Morales       further requests a declaratory judgment ruling that spine impairment

 ratings under the Texas Workers' Compensation Act must take into consideration spinal

surgeries and the effects of spinal surgeries when the surgeries occur prior                     to maximum

 medical improvement being reached. This legal question of whether spinal surgery occurring

 before MMt must be considered in assigning an impairment rating was left open in Severiano

 DeLeon   v.   Royol lndemnity Company,396 S,W.3d 597, 2010 Tex' App. LEXIS 565 (Tex' App'-'

 Austin 20IQl rev'd on other grounds Severiano DeLeon v. Royal lndem. Co., 396 S.W.3d 527,

 2012 Tex. LEXIS 972, 55 Tex. Sup. Ct. J' 108 (Tex' 2012).




 Cause No. 269,135-8 Morales v. Texas Mutual lns' Co & DWC   Plainti   s 1" Amend




                                                                                                                  49
13.   plaintiff requests this Court declare that under Texas Labor Code Sections 401'01L and

Chapter 408 concerning impairment ratings that the DWC designated doctor's report
                                                                                  is legally

                                                                                          type
invalid because while clearly aware or the pre-MMl surgery completely ignored the serious

of a spinal fusion surgery. This requires a declaration of the parties' rights under the           Texas


Workers, Compensation         Act. The date of maximum medical improvement under the Texas

Workers' Compensation Act means:

         (30) "Maximum medical improvement" means the earlier of:
               (A) the earliest date after which, based on reasonable medical probability,
        further material recovery from or lasting improvement to an injury can no longer
        reasonably be anticiPated;
                 (B) the expiration    of 104 weeks from the date on which income benefits begin to
        accrue; or
                 (C)   the date determined as provided by Section 408'104'

The Legislature has defined "impairment" 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."            Under Section 401.011 (23) the Legislature's

definitions are as follows:

                  (23)  "lmpairment" means 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'
                 (24) "lmpairment rating" means the percentage of permanent impairment of
         the whole body resulting from a compensable injury'

The Court should declare and enforce against the DWC Defendants and Texas Mutual that an

"impairment" must be from an examination done after MMI has been reached and must be

 based upon the doctor's evaluation of the injured worker's condition after MMI including full

 considerationofthesurgeriesandtheeffectsof surgerypriortoMMl beingreached, TheDWC

 Defendants and Texas Mutual have misinterpreted and failed                to properly apply the law.   The




 Cause No. 269,135-8 Morales v. Texas Mutual lns. Co & DWC Plaintifl s 1" Amended Petit



                                                                                                           50
                                                not ignore and must consider            an
DWC Defendants and Texas Mutual may

                                                                               pre-MMl
rating that does not follow the Texas Workers' Compensation Act which requires

                                                                                      This Court
surgeries and the effects of the surgery to be considered in assigning an impairment.

should so declare and enforce.

14.   Further, plaintiff requests this Court to declare that the statutory version of the AMA

Guides adopted under Texas Labor Code Section 408.124(c), specifically the fourth edition of

the "Guides to the Evaluation of Permanent lmpairment," published by the American Medical

Association (the AMA Guides). The DWC Defendants and Texas Mutual have misinterpreted

and failed   to properly apply the AMA          Guides      and     Defendants may not ignore and must

consider invalid an impairment rating that does not follow the AMA Guides which require pre-

MMI surgeries and the effects of the surgery to be considered in assigning an impairment. This

Court should so declare and enforce.

15.   Mr. Morales requests this Court to declare that spinal surgeries and the effects of surgery

occurring before maximum medical improvement is reached must be considered in assigning an

impairment rating to injured workers under the Texas Workers' Compensation Act' Answering

this statutory and administrative rule interpretation will affect the validity of the impairment

ratings for spinal injuries under the Texas Workers' Compensation Act.

15. The DWC Defendants and Texas Mutual                    have not properly applied or interpreted the

statutory provisions affecting the DWC Defendants, Texas Mutual lnsurance Company and

injured workers with regards            to   spinal surgeries occurring before maximum medical

improvement and the required consideration of such surgeries in assigning impairment ratings

under the Texas Workers' Compensation Act and the applicable administrative rules concerning



Cause No. 269,135-8 Morales v. Texas Mutual lns. Co &   owc plaintiff   s 1" Amen



                                                                                                      51
maximum medical improvement, spinal surgeries, and impairment ratings.

17. This Court should declare that the Texas Workers' Compensation Act and the AMA Guides
require that impairment ratings must take into consideration spinal surgeries and the effects of

spinal surgeries occurring prior to an injured worker reaching maximum medical improvement

and that any impairment ratings that do not consider such surgeries are legally invalid' lf               a



conflict exists between the Texas Workers'Compensation Act and the AMA Guides, this Court

should declare the Texas Workers'Compensation Act controls and requires pre-MMl surgeries

and their effects to be considered in determining an impairment and impairment rating of                   a



worker including Mr. Morales.

18.   plaintifl Rosendo Morales,        is entitled   to recover reasonable and      necessary attorney fees


that are equitable and just under Texas Civil Practice & Remedies Code section 37.009 because

this is a suit in part for declaratory relief including the construction, validity, and the correct

application of several statutes and administrative rules. Plaintiff also requests this Court award

attorney fees pursuant to the Texas Workers' Compensation Act.

                         VII. REQUEST FOR DISCLOSURE TO AtL DEFENDANTS

19. Under the authority          of Texas Rule of Civil Procedure 194, Plaintiff Rosendo Morales

requests that Defendants DWC and Commissioner Bordelon and Defendant Texas Mutual

tnsurance Company disclose, within 30 days of the service of this request or 50 days if served

with the original petition, the information or material described in rule 794.2.

                                                 VIII.   PRAYER


For these reasons, Rosendo Morales asks the Court                   to grant the relief requested herein

including for the Court        to determine that he is entitled to a 35% impairment rating or


Cause No. 269,L35-8 Morales v. Texas Mutual lns. Co & DWC Plaintiff s 1st Amended Petition   EIED



                                                                                                              52
alternatively a31%rating. Mr. Morales asks this Courtto declare that spinal surgeries and the

effects of such surgeries occurring prior to maximum medical improvement must be considered

in assigning impairment ratings under the Texas Workers' Compensation Act and under the

AMA Guides and that any impairment ratings that do not consider such surgeries are invalid'

Mr. Morales asks the Court to set aside as null and void the final DWC decision and order. Mr'

Morales also asks that the Court rule in his favor and enter judgment for the relief requested

herein and     to award his reasonable and necessary attorney fees as allowed under the

declaratory judgment act and under the Texas Workers' Compensation Act, court costs and all

other relief to which he is entitled.

                                          Respectfully submitted,
                                          /s/   Brad McClellan
                                          Bradley Dean McClellan
                                          State Bar No. L3395980
                                          Of Counsel, The Law Offices of Richard Pena,           P.C.
                                          170l. Directors Blvd., Suite 110
                                          Austin, Texas 78744
                                          Brad. McClella n @va hoo.com
                                          Fax 512.3?7.8354
                                          Telephone 512.327.5884
                                          ATTORNEYS FOR ROSENDO MORALES


                                        CERTIFICATE OF SERVICE


I   certify that on May 22,201.4, a true and correct copy of the above and below was served on:

Attention: Matthew Foerster                        Via eservice and email
Arnold & Placek, LLC
203 East Main Ave, Ste. 203
Round Rock, TX 78664
Fax: 512 347.772.1
Attorneys for Defendant
                                                           /s/ Brad McClellan
                                                            Brad McClellan




Cause No. 269,135-8 Morales v, Texas Mutual lns. Co & DWC Plaintiff s 1st Amendedfelilion EBED




                                                                                                        53
                                    TH)ffiS DEPARTNfl HNT OF IN$UHAN#E
                                  Drvr$rol{ SF WORKER$' f; SNfl PHNSATIOF{
                         Sl prefitre hablnr c$fl una persona de hahla hispnna flcerca de ests
                         corr.fi$    encia o d* su reclaruo, sirvase llamar sl l-fr0{h251-7gl!
                                                 .ianuary    ?,'l   ,   2Qt4

   L}T}T OFtsTfiE$      OP RICHARD   PENJ{                          Appenlll{ur
   EHJhI}I,BY   D.   }{CCLEI,LAN
   L?mt sIHEssoEs fifl;vD gTE rLo                                   Dochet No:    1LtS6576*02-Al
   AIJStrlit, fH ?fi?44*;tr"14{
                                                                    Carrier No:   99LUUUUtldUlrH /
                                                                    Ernployeer    fln*$tlflfl   Mt"lt}Br   ErC


                                                                    HrnpNoyen     FERRY & PERRY BUTTHfiR$ INC


                                                                    Date of
                                                                    Injury:       ll<Ivsuhar      A*r      2o1o



    Atler review by the Appeals Panel this Noti*e is ths desision filed with the Deput! flommissioner of
    Hear,ingm regnrrling the matters in dispute and in respCIfi$€ to a refltusst for review by the Appeals Panel of
    the Hearing Oflicer's ffeslsisn and Order. Accordingly, this constitutes notice that the Hoarins OificcCs
    D$pisiqn and Order sifined on ectoher a* . :otr               h$cnrns flnql on the date listed at the top of this
    notice under the    provisions of $410"169 or $410.20a(e) of the Texas Labor Code, If ths Hearing
    Officer's Decision and Order became {lnElunder $410,16{}, a ns-tlss uf untirxely appeal is enclosed.


    If you are not satisfied with this decision and desire to hnve the dispute resolved in rsurt, then you must
    file a lawsuit in the appropriate di*trict cr:urt nffilatsilha$ the 45th ilav after rhe darc ,on w-hioh the
    Division of Workers' Comnensatisn mailq.d the Barties the decision CIf the Appeals Pilnel pursuant to
    MAcopy*fanysHeh[awguitmusthe{ileduiIfiultnneuus1ywiththe
                           'I'HXAS
    CHIEF CLERK OF PROCEEffiINffiS,                    IIE-FARTh.{Er\T OF IN$URAN'flE, DIVISIOI{
    OF WORKERS'CCII4PENSATION, P.O HfiX I77S7" AU$TIN, TEXAS, 78V44*77&7.
    Claimants that are not represented by fln ftttCIrney may consult with an attorney of their choice
    for further assistance-



                                                                    Sineerely,


                                                                    TEXAS DEPARTMENT OF INSURANCE
                                                                    DWISION OF WORKERS' COMFENSATION




                                             Plaintiffs Exhibit A
DROS (BevJred 1?-1 3)                            An Equal Spportunity Hmployrr



                                                                                                                  54
THIS LETTER           TIA.S    ILSO SEIIE fO llHE FOLLOIIINGT

    ROSENDO MORALES                                     TEXAS MUTUAJ, INSURANCE   CO
                                                        6210 E HIGHVIAY 290
                                                        AUSTTN, TX 78723-1.026




    ATTORNEY      AT    I,AW
     SCOTT D. BOUTON
     PO BOX 2689
     PELUGERVILLE, TX 78591-2689


INFOR}IATIOil COPIES I{ERE AI.SO SENT fOr

     PERRY    E   PERRY tsUII,DERS INC
     PO BOX 1048
     ROCKDAT,E,       TX ?656?-1"048




DR00 (RevhEd 12-13)                           An Equ&l Opportunfty EmployEl


                                                                                       55
                                  TEXAS ITEPARTMENT OF INSTIRANCE
                                 DIVISION OF WORI(ERS' COMPENSATION
                   $i prefiere hablar con una persona de habla hispana acerca de esta
                   corespondencla o de su reclamo, slrvase llamar al 1-800-252-7031.
                                              0ctober 2lr,       2013

       tAW OFFICES OF RICHARD      PENA                         DWC No:         r r r56576
       BBADLEY   D.                                             Docket No:      r r r56576-oe-cc
       l70l 0rREGT0RS   BLVD STE lt0
                  ''ICCLELLAN
       AUSTIt'l, TX 78744*l l4l+                                Carrier No:     9910000628987
                                                                Employee:       ROSENDO }IORALES
                                                                Employer:       PERRY    E   PERRY BUILDERS INC

                                                                Date of
                                                                lnjury:       November   22, 2010


      The Heaiing Officer has reached a decision and entered an order in the above referenced claim.
      Copies of the decision and a fact sheet are attached explaining what to do if you waflt to appeal this
      Hearing   fficer's decision or if the other party   appeals the decision.


      Please note that if the Canier has been ordered to pay benefits in accordance with this decision,
      those benefits, unless otherwise noted, include both indemnity and medicalbenefits.


      lf you have questions or require assistiilnce, please call 1-800€52.7031. To expedite the handling of
      reguests for appeal and respo;rses to requests for appeal, all conespondence should be addressed to
      the:


                               CHIEF CLEHK OF PROCEEDINGS, HEARINGS
                                TEXAS DEPARTMENT OF INSUHANCE
                               DIVISION OF WORKERS' GOMPENSATION
                                         POST OFFICE BOX 17787
                                        AUSTI N, TEXAS 7 87 44.N 87


                                                                Sincerely,

                                                                Texas Department of lnsurance
                                                                Division of Workers' Compensation




)R0B6w.o+oe1                                  tui Equal Opporiunlty Emphyer


                                                                                                                  56
       THIS LETTEH WAS ALSO SET{TTOT}IE TOLLOIIIIING;

       HOSENDO MORALES                                                TDflS   MUTUAL INSUHANCE CO
                                                                      6210 E HIGHWAYEgO
                                                                      AUSTTN. TX 7872S-.t026




       ATTOHNEYATLAW
       SCOTT D. BOUTON
       PO BOX P68e
       -
       PFLUGEBVILLE, TX 78691 -268S




       INFORMATION COPIES VI'EHE ALSO SENT TO:

       PEHHY & PEHHY BUILDEHS INC
       PO BOX 104S
       ROCKDALE, TX 76567.1048




DROS                                         Ar Equal Opportunfi Emptoyer
                                                                                                    wA 1r15657642-CC
                                                                                                           57
                      TEI(AS DEPARTI\'IENT OT INST]RANCE
                    DTVISION OF WORKER'S' COMPENSATION
                                     WACO FIELD O.E['ICE
                                         wAco, rExAs
                                                                                         o!?Hm
                                                                                         ocr 2 2   ilBts
                                                 $
ROSEI{DO MORALES,
              CI,AIIT,IAIAIT                     $
                                                 $
                                                                                  @rucs
                                                 $                     DOCKET NO.
v.
                                                 $              wA.1r.-1s6576-02-CC-WA41
                                                 $
IEXA.S MUTUAL INSTJRAI{CE
                                                  $
COMPAI\IY,
           CARBIER                                $


                                     DECISION AFID ORDER

This case is decided pursuant to Chapter 410 of the Texas Work*o' Compensation Act
                                                                                   and

Rules of the Division of Workers' Compensation adopted thereunder.

                                              ISSI.IES

A benefit review conference was held on luue          4,2}ll,
                                                          to mediate resolutiou of the disputed
issue; however, the parties were unable to reach an agteement. After a continuance from
                                                                                             JuIy
 24,ZOl3, a contested case hearing was held    on luty 30,2013,  followed   by a continuancE   on
August lb, 2013, atrd a cortested case hearing held on October 14, 2013, to decide the following
disputed issue:

       l.         What is the Claimant's impairment rating?

The Hearing Officer added the following issue:

       2.         Did Cafiier have good cause for failing to aPpear at the scheduled
                  contested case hearing on July 30, 2013?

Though not certified, the following issue was added becarxe it was achrally litigated:

       3.         Is venue proper in the Waco Field Office of the Texas Department
                  of Insurance, Division of Workers' Compensation?

                                       PARTIES PRESENT

Clnimant appeared and wae represented by Bradley D. McClellan, attorneyr at the contested case
hearings on July 30, 2013, and on October 14, 2013. Carrier failed to appear at the coutested




                                                                                                     58
                                                                                 CONFIDENTIAL
                                                                                    T[r   laborCodc
                                                                                       !4fi1.083




 case hearing on   luly 30, 2013; and was     represetrted by Scott D. Bouton, attortrey, at the hearing
 on October 14,2013.

                                           OTT'ICIAL NOTICE

 Official notice was takeu of the MapQuest mileage guides.

                                        EYII}ENCE PRESENIED

 The following wihesses testified:

        ForClaimant: Clairnant.

        For Carrier: None.

 The following exhibits   v1,s1s   sdmitted into evidence:

        Hearing Officer's Exhibits: HO-l through HO-7.

        Clsimant's Exhibits: C-l thrcugh C-12.

        Carrier's Exhibits: CR-A through CR-O.

                                   BACKGROT]ND INE ORI\,IATION

 Concerning the issue of Carrier's failure to appear, a benefit review conference was held on June
4, 2013, following a request 1s sfuange venue from Waco to Austin. Following the benefit
review conference held in the Austin Field Office on Juue 4,20L3, the contestedlase hearing
was scheduled to be held in the Austin Field Office on JuIy 24,20t3. Due to a subsequenl
 change of venue, the contested case hearing was not held in the Arutin Field Office on Juty
                                                                                                 Z+,
 2013, but was continued on June 27, 2013, and rescheduled to be held in the Waco Field Office.
 On June 27,2OL3, the parties, including Carrier, were sent notice of the scheduled contested case
hearing to be held in the Waco Field Office on fuly 30, 2013. Carrier failed to appear for the
conteeted case hearing scheduled for 10:30 AM on Tuesday, July 30, 2013. Carrieriisponded
                                                                                                  to
the 10-day show cause letter that was mailed to Carrier oo rUyio, iOtr, and requested that the
hearing be rescheduled to permit it to present evidence on the d.isputed issue.
                                                                                        Following a
continuance from August 19, 2013, a cootrsted case hearing was held on october
                                                                                       14, 2013. At
the contested case hearing on october 14, z0r3; Mr. scott b. Boutou,
                                                                           the attomey representing
Carrier, explained.that he was in Laredo, Texas, representitrg Carrier on
                                                                             July lo,iolS,and was
unable to attend the scheduled cotrte$ted case for tUat aate; hiwever,
                                                                        Mr. Boutondid not explain
                                                                                              r
whv Carrier was unable to attend ttre scheauteJ
                                                     ";;;J;;;    hearing for ruty ro,     zorg.
At the contested   case hearing on October 14, 2013, h/tr. Bouton stated that Carrier
                                                                                      would not
stipulate that venue was proper in the waco Field office of the
                                                                Texas Deparment of Inswance,




                                                                                                       59
                                                                                 CONFIDENTIAL
                                                                                     Ter IabsCodc
                                                                                        $402.083




  Division of Workers' Compensation. Ivfr. Bouton contended that vetrue was proper either,in the
  Waco Field Office or the Austin Ficld Office, and that Carrier betieved that venue was orooer in
  the Austin Field office. claimant testified that he lived and resided .t
 I*                    November 20, 2010, the date of his compensable injury,-anrl that he wanted
  his conte$ted case hearing to be conducted in the Waco Field Offrce; Official Notice was taken
  of the MapQuest mileage guide (MapQuest) and also.made a Hearing Officer's exhibit.
                                                                                   -I
  According to MapQuest, it is 35.09 miles one-way from Cleimant's residence in Temple; Texas,
  to the Waco Field Office of the Texas Department of Insruanc+, Division of Worker's
  Compensation located at 801' Austin Avenue, Wflco, Texasi and it is 57.32 miles oue-way from
  Qlnimant's residence in Temple, Texas, to the Austin Field Offrce of the Texas.Department of
  Insglssss, Division of Worker's Compensation located at 4616 W Howard I-ane, Suite 130;
 Austin, Texas. Claimant contended that venue wa$ proper in the Waco Field OfEce of the Texas
 Department of Insurance, Divisiou of Worker's Compensation, and cited Texas Labor Code
  $410.005 concenring venue for a contested case hearing.. According to Texas Labor Code
 $410.005(a), the statue states that'lrnless the division determines that good cause exists for the
 selection of a diffrient location, a benefit review couference or a contested case hearing may not
 be conducted at a site more than 75 miles from the claimant's residence at the time of the injury."
 Itr this case, Claimant indicated that he wanted the contested case hearing to be held in the Waco
 Field Office of the Texas Departrnent of Insurance, Divisiou of rfforkEr's Compensation, and
 there was no good cause determination that the contested case hearing should be held at atry
 other location other than the'Waco Field Office of the Texas Department of Insuance, Divisiotr
 of Workers' Compensation.

In regard to the issue of impairment rating (IR), Claimant, a welder, sr:stained a comperuable left
shoulder contusiorl le,$ upper arm contusioq righJ heel contusion" right knee coniusion, right
hee meniscal teat and arthritis, neck contusion, and C5-6 radiculopath| injury on Novemb erl1,
2010. The parties stipulated ttrat Claimant reached maximum *"ticai improvement
                                                                                        lMIvtg on
the statutory date of December ?;6,2012, for the compensable injury of Nivemb er 22,2010,
                                                                                                as
certified by Anil Tirk-arampant Bangale, M.D., the Division-selected designated doctor, and
Trenton D. Weets, D.C., the treating doctor referral.

 Dr. Bangale was appointed as the designated doctor by ttre Division to evaluatE
                                                                                       Claimant for the
com,Pensable     iujury to determine MMI, IR, and extent of injury. Dr. Bangale evaluated
                                                                                               Claimant
    January 4,2073, and determined that Claimant reached irflral oo an iniorrect
 9n                                                                                    statutory date of
 Novenrber 22,2012, and assigned, a, 13% IR for the compensable injury
                                                                              that included 77o IR for
 the left shoulder contusion and Ieft upper arm contusion;-0%
                                                                 IR for tU- righih*i contusion; tr,
for the right knee contusiou and righf knee meniscal tear and artt'itis;
                                                                             aod 5% IR for the neck
contusion and C5-5 radiculopathy under DRE Category II for
                                                                    the **i"uf qpir;- Following a
letter of clarification, Dr. Bangali amended his prioicertifi*tioo
                                                                       and determined that claimant
reached MMI on the statutory date of December 26, z0lz,
comgeryable injury- colcerning his placement of Claimant "g"ir
                                                               and        ilip"d ;JiE m. for the
                                                                   uuder DRE category tr for the
cervical spine, Dr. Bangale stated ttrat [e was awarc that
                                                             Claimant haa *o"rgd" a multi-level
spinal fusion of the cervical spine. Dr. Bangale firrther stated
                                                                 that Claimant dijnothave signs     of




                                                                                                           60
                                                                         CONFIDENTIAL
                                                                             Tex. I*bor Code
                                                                                [4{r2.083




cervical radiculopathy based otr his clinical exnmination sf f,leimnnt and there was tro loss of
motion segmeff integrity.

Dr, Weeks, the freating doctor referral,     evaluated Claimant on December 4, 20L2, flnd
determined that Claimant reached   MMI on Decembpr 4,201?,, and assigned a l7% IR for the
compensabte injury. Dr. Weeks ag.eed with the IR that p1, $engele assigned for the
compensable injtuy except Dr:, Weeks opined that Claimant should be assigned 107o IR under
DRE Category Itr for the cervical spine rather thau the 5% IR that Dr. Bangale had assigned
under DRE Category tr. Dr. Weeks subsequently reevaluated Claimant on April g, 2013, and
determined that Claimant reached MMI on the statutory date of Decembei 26, 2012, and
assigned a35% IR for the compensable injury. Dr. lVeeks reiterated that he agreed with the IR
that Dr. Bangale assigned for the compensable injrtry except Dr. Weeks opined that Claimant
should be assigned 27% IR under the Range of Motion (ROM) Model for the cervical spine
rather than the 5% IR that Dr. Bangale assigned under DRE Category II of the cervicat spine.
Dr. Weeks indicated that he used the ROM Model instead of the DRE Model because Claimant
had undergone a multi-level cervical fusion surgery.

Based on the evidence presented in the hearing, thg preponderance of the evidence is not
contary to the determination by Dr. Bangale, the Division-selected designated doctor. that
Cleimant's IR is 13% for the compensable injury. In addition, Carrier did not have good cau$e
for failing to appear at the scheduled contested case hearing on Iuly 30,,2013, and venue is
proper in the Waco Field Office of the Texas Department of hsurance, Division of Workers'
Compensation.

Even though alt the evtdence presented wa.s trot discussed, it was con'sidered. The Findings   of
Fact and conclusions ofLaw are based on all ofthe evidence preseuted.

                                      FIhIDINGS OF ['ACT

1.     The parties stipulated to the following facts:

       A.     On Novemb er ?2,2010, Cleimant was the employee of perry & perry Builders,
              Inc., Employer.

      B'      On Novemb e1 22,2010, Employer provided worker$' compeusation insuanc+
              with Texas Mufual Insurance Compauy, Carrier.

      C'      It is undisputed that llaimant sustained a compensable left shoulder contusion,
              left upper arm contusion, right heel contusion, right knee contusi*, ,ight
                                                                                         ko**
              meniscal tear and arthdtis, neck contusion, andt5-6 radiculopathy
                                                                                    inirry o1
              November ZZ,Z0LO,




                                                                                                    61
                                                                  l_
                                                                   I     CONFIDEruTTET I
                                                                    I
                                                                    I         n*.0"
                                                                           r"* I$orcodc I
                                                                                                  I
                                                                                                      '




     D.     Anil Tukararrpant Bangale, M,D., was appointed as the designated doctor by the
            Division to evaluate Claimsnt foi the compensable injruy of November2?,,20L0,
            to determine MMI, IR, and extent of injrrry:

     E.     Claimant reached stflhilory MMI on December 26,2ill2,fot the compensable
            injrrry of November 22,2010, as certified by Anil Tukarampant Bangale, M.D.'
            the Division-selected designated doctor, and Trenton D. \Veeks, D.C., the treating
            doctor referral.

2.   Carrier delivered to Claimant a single document stating the tnre corporate name'of
     Carrie+ and the name and steet address of Carrier's regiitered agen! which docr:ment
     was aduriued into evidence as Hearing Officer's Exhibit Number 2.

3.   On Jr:ne 27,20L3, Carrier was sent notice by the Division of the scheftrled contested case
     heariug to be held on at 10:30 AM on Tuesday, July 30; 2013, in the Waco Field Office
     of the Texas Departrnent of Insurance, Division of Workers' Compensation.

4.   Carrier failed to appear at the scheduled contested case heiring on July 30, 2013, and was
     sent a 10-day show cause letter on July 30, 2013.

5.   Carrier timely responded to the 10-day show cawe letter and requested that the contested
     case hearing be rescheduled to permit it to present evidence on the disputed issue and to
     show cause why it failed to appear for the scheduled contested case hearing ou July 30,
     2013.                                                                                    :




6.   The contested case hearing was rescheduled and held on Monday, October 14, 2013, and
     Carrier did not offer a good cause explanation why Carrier was unable to atteud the
     scheduled contested case hearing on fuly 30, 2013.

7_   Claimant lived and resided at                                      on November 20, 2010,
     the date of his compensable injuy.

8.   The Waco Field Office of the Texas Deparfinent of Insuance, Division of Worker's
     Compensatiou, is located within 75 miles-of Claimant's residence and it is 35.09 miles
     one-way from Claimant's residence in Temple, Texas, to the Waco Field Office of the
     Texas DePartment of Insurance, Division of Worker's Compensatiou located at 801
     Austin Avenue, Waco, Texas.

o    There has not been a good cause determination by the Division that the contested case
     !**io$ should be held at ary other location other than the Waco Field Office of the
     Texas Departnent of Insurance, Division of Vy'orkers' Compen$ation and the Divisiou
     scheduled the contested case hearing in accordance with Texas Labor Code
                                                                              9410.00S(a).




                                                                                                      62
                                                                                                CONFIDENTIAL
                                                                                                   Tcx. LrborCodo
                                                                                                      f,4d2.083




  10.    The deteruiuation of    Anil Tukarampant Bangale, M.D., the Division-selected designated
         doctor, that'claimant's IR i8 1396 for the compensable injury of Novembet 22,2010, is
         not cotrtrary to the preponderance of the widence.

                                             CONCT,USIONS                 OI'LAW
            .         'i:   ..        , r'
         The Texas .Department, of                Insurance,                    of                Compensation, has
        jruisdiction to hear this csse.

 ?.     Venue:is proper in thg Waco Field.Office of the Texas. Departrnent of rnsurance, Division
        of Workers' Compensatiou.,

 3.     Caryer did not hpve good cause for failing to apppar at the scheduled contested case
        hearing on July,30,      2013.       ..



 4.     Claimant's IR is 13%.

                                                     DECISION

 Yg*     is propea in.the V{aco Field ofEce of th+ Texas Depa4ment of Insuance, pivision of
 Workersl C.9m. pensation, Carrier did not have good caqse,foi foil,"s tq appefl[ qt the scheduled
 contested case hearing on July 30, 20ll: Claimantls IR.is l3%. -
                                  t


                                                           ORDER

 larrier is ordered, to pay.r benefits in accordatce with thi$, decipion, the Texas Workers,
 Compensation Acq and the Commissioner'q Rules. Aecnred;but unpaid incomq
                                                                               benefits, if any,
 shall be paid in a l,rmp sum together *"ith ioter"st as providea'by lu*".
                                                                                           .
                                                                                 ..,.,,,

Pl_!nr::grporare name             of the iruuance               carrier is IEf,'{S,MUTUAL, INSURAIICE
CoMPAIIY'       and the name and address of its registerea agent             foi r"*i."      i*
                                       l;             ,.    .   ,   :,
                                                                         ,-.,                  "rprol**
                                 *,",UHJ;TH+f#ft?THf,
                                             ,q,usTIN, TEn           G;dzs
                                                                                fl-   '*
Sigded this 22nd day of Ocrober, 2013.




Wes Peyton
Heariug Officer




                                                                                                                      63
American Medical Association
Physicians dedicated to the health of America




Guides to the
Evaluation of
Permanent
Impairment


Fourth Edition
Chapter 1




                                                           IIIlPainnent
                                                           Evaluation




I     s it possible to improve estimates of the severity
      of human impairments, basing them on accepted
      medical standards? Can those estimates be used
                                                           1.1 Impairment, Disability,
                                                           Handicap
in comparing, evaluating, and adjudicating claims of
ill health and impairment arising in workers' compen-      Impairment is defined in the Guides as an alteration
sation cases, Social Security Administration cases,        of an individual's health status. Impairment, accord-
and other types of cases?                                  ing to the Guides, is assessed by medical means and
      This book, Guides to theEvaluation o/Permanent       is a medical issue. An impairment is a deviation
Impairment (Guides), began to take form during the         from normal in a body part or organ system and its
1950s under the premise that the answer to the first       functioning. The Guides defines "permanent impair-
question is "yes." An ad hoc committee appointed by        ment" as one that has become static or stabilized
the Board of Trustees of the American Medical Asso-        during a period of time sufficient to allow optimal
ciation (AMA) gave impetus to the effort. The first        tissue repair, and one that is unlikely to change in
edition of the Guides was published in 1971, and           spite offurther medical or surgical therapy.
those involved with succeeding editions have sought              The Guides definition of an impairment closely
to improve and refine it, to the end that it could be      parallels that of the World Health Organization
useful anywhere when questions arise about people's        (WHO), which has defined an impairment as "any
physical and mental functioning and capabilities.          loss or abnormality of psychological, physiological,
      The Guides provides a standard framework and         or anatomical structure or function. "1
method of analysis through which physicians can                  In the Guides, impairments are defined as condi-
evaluate, report on, and communicate information           tions that interfere with an individual's "activities of
about the impairments of any human organ system.           daily living," some of which are listed in the Glossary
The book uses up-to-date information on impairment         (p. 315). Activities of daily living include, but are
and illness provided by knowledgeable clinicians and       not limited to, self-care and personal hygiene; eating
scholars. In the physician's office, the book can be       and preparing food; communication, speaking, and
an aid to making the diagnosis of an impairment and        writing; maintaining one's posture, standing, and
following the course of therapy.                           sitting; caring for the home and personal finances;
                                                           walking, traveling, and moving about; recreational
                                                           and social activities; and work activities.
                                                                                   Concepts oflmpairment Evaluation     1/3


12 Structure and Use of the Guides                          13 Are the Guides Criteria
                                                            Obj ective and Authoritative?
 Using the Guidesrequires integrating previously
gathered medical information with the results
                                                             The contributors to the Guides understand the impor-
ofa current medical evaluation. The evaluation
                                                             tance of having objective data on the functioning of
should be carried out in accordance with the direc-
                                                             normal persons' organ systems in order to evaluate
tions in the Guides, and it should be based on three
                                                             those of impaired individuals. For many systems (eg,
components.
                                                             the respiratory, cardiovascular, visual, auditory, endo-
      First, certain types of information, described in
                                                             crine, hematologic, and digestive systems), medically
Chapter 2, are needed to document the nature of an
                                                             accepted and scientifically derived data on normal
impairment and its consequences. Chapter 2 specifies
                                                            functioning are available. The Guides generally makes
how to acquire information and defines a format for
                                                             use of these data and references their sources.
analyzing, recording, and reporting the information.
                                                                   If the Guides contributors have been unable to
Second, the Guides chapters on the organ systems
                                                            identify objective data on the normal functioning
contain protocols or descriptions of ways to evaluate
                                                            of an organ system, they have estimated the exten t
a particular body part, function, or system. Third, the
                                                            of impairments on the basis of clinical experience,
chapters contain tables relating to the evaluation
                                                            judgmen t, and consensus. The estimates of the well
protocols. If the physician has followed the protocols
                                                            qualified persons contributing to this book, most of
and tables, then the reported findings will be con-
                                                            them physicians, would be more convincing than
gruent with the Guides criteria.
                                                             those of most others in estimating the severity of
      In practice, the first key to effecting an accurate   people's impairments.
impairment evaluation is a review of office and hospi-
                                                                  It should be understood that the Guides does not
tal records maintained by the physicians who have
                                                            and cannot provide answers about every type and
cared for the patient since the onset of the medical
                                                            degree of impairment, because of the considerations
condition. Such records include clinical notes, medi-       noted above and the infinite variety of human disease,
cal consultation reports, hospital records, admission       and because the field of medicine and medical prac-
and discharge summaries, notes on operations, pathol-       tice is characterized by constant change in under-
ogy and laboratory test reports, and reports on spe-        standing disease and its manifestations, diagnosis,
cial tests and diagnostic procedures. Using multiple        and treatment. Further, human functioning in every-
sources of information and attempting to ensure that        day life is a highly dynamic process, one that presents
the sources are objective can help eliminate bias, an       a great challenge to those attempting to evaluate
error introduced by selecting or encouraging one            impairment.
outcome over another.                                             The physician's judgment and his or her experi-
      Before judgments according to the Guides are          ence, training, skill, and thoroughness in examining
accepted, the history and course of the medical con-        the patient and applying the findings to Guidescri-
dition must be analyzed. This analysis should include       teria will be factors in estimating the degree of the
findings from previous examinations, the treatment          patient's impairment. These attributes compose part
and responses to treatment, and the impact of the           of the "art" of medicine, which, together with a foun-
condition on the patient's activities. Before ajudg-        dation in science, constitute the essence of medical
ment regarding impairment is made, it must be               practice. The evaluator should understand th~t.o~her
shown that the problem has been present for a period        considerations will also apply, such as the senSItIVIty,
of time, is stable, and is unlikely to change in future     specificity, accuracy, reproducibility, and interpreta-
months in spite of treatment.                               tion oflaboratory tests and clinical procedures, and
      In evaluating an impairment, it is important          variability among observers' interpretations of the
to obtain enough clinical information to characterize        tests and procedures.
it in accordance with the Guides requirements. Once
this task is accomplished, the evaluator's findings
may be compared with the clinical information already
available about the individual. If the evaluator's find-    1.4 Is the Guides Widely Used?
ings are consistent with the results of previous clini-
cal studies, the findings may be compared with the
Guides criteria to estimate the impairment. If the          In a word, yes. Recently compiled data from a
findings are not consistent with those of earlier stud-     1991 AMA survey indicate that in 40 of 53 jurisdic-
ies, there should be communication between the              tions (38 states and two territories), use ofthe Guides
involved physicians and clinical studies as needed to       is mandated or recommended by law in workers' compen-
resolve any disparities.                                    sation cases, or the book is frequently used in such
Chapter 2




                                                          Records
                                                          and Reports



E        stimating the extent of permanent
         impairments is most effective when there is
         sufficient medical and nonmedical informa-
tion to justify the estimates and minimize adversarial
                                                               Compare this approach with some impairment
                                                          evaluations wherein physicians examine and report
                                                          on patients without a standard protocol. In such
                                                          instances, it is impossible to compare reports, because
situations. This chapter describes how the Guides can     there is no assurance that the physicians have
help provide consistent and reliable acquisition,         examined the same body parts or systems in the same
analysis, communication, and utilization of medical       way. For example, one physician may measure flexion
information.                                              of the hip or knee, but another may not mention those
     The major objective of the Guides is to define the   movements. Or one physician may report that the
assessment and reporting of medical impairments so        patient can flex the arm 90°, while another may not
that physicians can collect, describe, and analyze        measure the range of motion. Without standardization
information about impairments in accordance with a        of evaluations and reporting procedures, an individual
single set of standards. Two physicians, following the    reading these reports would have difficulty deciding
methods of the Guides to evaluate the same patient,       which report to believe. This outcome is neither rea-
should report similar results and reach similar con-      sonable nor fair, and it tends to give rise to avoidable
clusions. Moreover, if the clinical findings are fully    confrontation.
described, any knowledgeable observer may check the            When physicians follow the Guides to measure and
findings with the Guides criteria.                        report their impairment estimates, the persons who
     If two physicians who examine a patient and          receive the evaluations may be held accountable for
use the methods of the Guides do not obtain similar       assessing the results in accordance with the Guides
results and reach similar conclusions, then the book      recommendations. Because issues of medical fact
can be used to resolve the discrepancies. Analysis of     should have been settled by this stage in the process,
the records and reports in question will disclose the     the recipients of the evaluations should not find it
disparities, which should be in matters of fact rather    necessary to choose among conflicting opinions.
than opinion. If the patient's medical condition is            By consulting the standardized medical evalua-
stable, then different physicians should reach the        tion protocols and reference tables and reviewing the
same general conclusion. Ifwidely disparate evalua-       recommendations of the Guides, the recipient may
tions occur, then the stability of the medical condi-     verify whether or not all necessary information was
tion and the matter of permanent impairment               collected. If it was, the correctness of the evaluation
would be in question.                                     may be ascertained by comparing it with the Guides
                                                                                                 Records and Reports   2/9


Interpolating, Measuring, and Rounding Off                  1 % to 3%), combining that percent with any other
In general, an impairmen t value that falls between         impairment percent by means of the Combined
those appearing in a table or figure of the Guides may      Values Chart (p. 322).
be adjusted or interpolated to be proportional to the             In some instances, as with the recipients of
interval of the table or figure involved, unless the        transplanted organs who are treated with immunity-
book gives other directions.                                suppressing pharmaceuticals or persons treated with
     Unless generally accepted standards exist, as          anticoagulants, the pharmaceuticals themselves may
with many laboratory tests, two measurements made           lead to impairments. In such an instance, the physi-
by the same examiner and involving a patient or a           cian should use the appropriate parts of the Guidesto
patient's functions may be expected to lie within           evaluate the impairment related to the pharmaceuti-
10% of each other.                                          cal. Ifinformation in the Guides is lacking, the physi-
     Measurements should be consistent between two          cian may combine an estimated impairment percent,
trained observers; if they have been made by one            the magnitude of which would depend on the severity
observer on separate occasions, they also should be         of the effect, with the primary organ system impair-
consistent. Repeating measurements may increase             ment, by means of the Combined Values Chart.
their credibility.                                                A patient may decline treatment of an impair-
     A final estimated whole-person impairment              ment with a surgical procedure, a pharmacologic
percent, whether it is based on the evaluation of           agent, or other therapeutic approach. The view of
one organ system or several organ systems, may be           the Guides contributors is that if a patient declines
rounded to the nearer of the two nearest values             therapy for a permanent impairment, that decision
ending in 0 or 5.                                           should neither decrease nor increase the estimated
                                                            percentage of the patient's impairment. However,
                                                            the physician may wish to make a written comment in
Pain
                                                            the medical evaluation report about the suitability
In general, the impairment percents shown in the
                                                            of the therapeutic approach and describe the basis of
chapters that consider the various organ systems
                                                            the patient's refusal.
make allowance for the pain that may accompany the
impairing conditions. Chronic pain, also called the
chronic pain syndrome, is evaluated as described in
the chapter on pain (p. 303).
                                                            2.3 General Comments on
                                                            Evaluation
Using Prostheses in Evaluations
The general view of the Guides is that if an individu-
al's prosthesis or assistive device can be removed or       The Guides attempts to take into account all relevant
its use eliminated relatively easily, the organ system      considerations in estimating or rating the severity and
should be tested and evaluated without the device.          extent of permanent impairment and the effects of
For example, a hearing aid should be removed before         the impairment in terms of the individual's everyday
auditory acuity is tested. However, the examiner may        activities. An impairment should not be considered
choose to test the system with the assistive device in      "permanent" until the clinical findings, determined
place also and then report both sets of results.            during a period of months, indicate that the medical
      If the assistive device is not easily removable, as   condition is static and well stabilized.
with an implanted lens, the organ system's functioning           A physician who is asked to reevaluate an indi-
should be evaluated with the device in place. The           vidual's impairment must realize that change may
visual system should be tested with the patient's           have occurred, even though a previous evaluator
glasses or con tact lenses in place if they are used.       considered the impairment to be permanent. For
                                                            instance, the condition may have become worse as a
                                                            result of aggravation or clinical progression, or it may
Adjustments for Effects of Treatment or                     have improved. The physician should assess the cur-
Lack of Treatment                                           rent state of the impairment according to the criteria
In certain instances, the treatmen t of an illness may      in the Guides.
result in apparently total remission of the patient's            Valid assessment of a change in the impairment
signs and symptoms. Examples include the treatment          estimate would depend on the reliability of the previ-
of hypothyroidism with levothyroxine and the treat-         ous estimate and the reliability of the evidence on
ment of type I diabetes mellitus with insulin. Yet it       which it was based. If there were no valid previous
is debatable as to whether the patient has regained         evaluation, information gathered earlier could be
the previous status of normal good health. In these         used to estimate impairment according to Guides
instances, the physician may choose to increase the         criteria. However, if there were insufficient informa-
impairment estimate by a small percentage (eg,
3/94   Guides to the Evaluation of Permanent Impairment



       3.3 The Spine                                                      This approach to the evaluation of spine
                                                                    impairments was developed with the advice of an
                                                                    ad hoc committee of authorities knowledgeable about
       Symptoms related to the back and spine are among             the musculoskeletal system, orthopedic surgery,
       the most common of adults' everyday complaints. In           neurosurgery, internal medicine, rehabilitation,
       most instances, people accept and tolerate the symp-         impairment evaluation, and medical science. It is
       toms as one of the consequences of growing older,            acknowledged that the approach is different from
       making minor concessions in activity. When the symp-         that of previous Guides editions, and that future
       toms follow an injury or illness, sorting out the injury     developments may lead to refinement or to a different
       or illness component from the age-related compo-             recommendation altogether.
       nent may be difficult or impossible.                               The evaluator assessing the spine should use
             One of the purposes of the Guides is to lead to        the Injury Model, if the patient's condition is one
       similar results when different clinicians evaluate           of those listed in Table 70 (p. 108). That model,
       illnesses and impairments. For evaluating spine              for instance, would be applicable to a patient with
       impairments, past Guides editions have used a system         a herniated lumbar disk and evidence of nerve root
       based on assessing the degree of spine motion and            irritation. If none of the eight categories ofthe Injury
       assigning impairment percents according to limit-            Model is applicable, then the evaluator should use
       ations of motion. Impairment percents related to the         the Range of Motion Model.
       range of motion were to be combined with percents                  All persons evaluating impairments according
       based on diagnoses or therapeutic approaches and             to Guides criteria are cautioned that either one orthe
       neurologic impairments.                                      other approach should be used in making the final
             One concern with the range of motion system            impairment estimate. If one component were used
       has been that in applying it, other clinical data and        according to Guides recommendations, then a final
       diagnostic information tend to be ignored. Also, some        impairment estimate using the other component usu-
       physicians are concerned about the accuracy and              ally would not be pertinent or germane. However, if
       reproducibility of mobility measurements, while              disagreemen t exists about the category of the Injury
       others believe the system fails to account for the effects   Model in which a patient's impairment belongs, then
       of aging.                                                    the Range of Motion Model may be applied to pro-
             Spine mobility measurements, which are carried         vide evidence on the question.
       out with inclinometers, are more difficult to perform              The newer Injury Model, which may also be
       than are measurements of ranges of motion of the             called the "Diagnosis-Related Estimates (DRE)
       extremities, for which the hinged goniometer is used.        Model;' is described in sections 3.3a through 3.3i of
       With the latter technique, visualizing and measuring         this chapter (pp. 95 through 106). Information on
       movement is easier, one extremity's movement may             using the Range of Motion Model, which has also been
       be checked against that of the other, and the patient's      called the "Functional Model;' is presented in section
       willingness to cooperate may be less of a factor.            3.3j. The Guides user is reminded that each evaluation
             Notwithstanding the concerns about inclino-            should include a complete, accurate medical history
       meters, a recent study of objective methods for              and a review of all pertinen t records, a careful and
       examining patients with chronic low-back pain and            thorough physical examination, a complete descrip-
       self-reported, everyday disabilities identified seven        tion of the patient's current symptoms and their
       clinical measurements that distinguish well between          relationship to daily activities, and all findings of
       the patients with pain and normal subjects.68 Four           relevant laboratory, radiologic, and ancillary tests.
       of the seven measurements are made with an                         It is emphasized that if an impairment evalua-
       inclinometer.                                                tion is to be accepted as valid under the Guides cri-
             In this edition of the Guides, the contributors        teria, the impairment being evaluated should be a
       have elected to use two approaches. One component,           permanent one, that is, one that is stable, unlikely to
       which applies especially to patients' traumatic              change within the next year, and not amenable to
       injuries, is called the "Injury Model:' This part            further medical or surgical therapy (refer to defini-
       involves assigning a patient to one of eight categories,     tion in Guides Chapter 1 and Glossary).
       such as minor injury, radiculopathy, loss of spine                 All spine impairment estimates shown in the
       structure integrity, or paraplegia, on the basis of          tables of this section are estimates of whole-person
       objective clinical findings. The other component is          impairments.
       the "Range of Motion Model;' described above and
       recommended in previous Guides editions.
                                                                                         The Musculoskeletal System    3/95



3.3a The Spine History                                           Findings of atrophy should be related to possible
                                                            explanations for the abnormality other than spine
                                                            impairment, for instance, previous joint surgery or
Much of the historical part of the impairment evalua-       hypertrophy of the contralateral side from overuse.
tion should be based on the patient's own statements        Other objective findings may be present relating to
rather than on secondhand information. While the            the motor and sensory systems, ranges of motion,
medical history that the physician gathers should           and sciatic nerve tension. Examination of the vascu-
consider objective data from others, the physician          lar system and a follow-up of any possibly significant
should be cautious about using only information from        information from the history and physical examina-
others, especially subjective information. It is not        tion will prepare the physician to make reasonable
appropriate to question the patient's integrity. Ifinfor-   recommendations.
mation from the patient does not make sense, or                  The physician should note any physical findings
there are inconsistencies in the history, the physician     that are not consistent with the medical history. The
should note this and describe the discrepancies in          physician should identify any information based on
the record.                                                 the patient's verbal responses or interpretation and
     The medical history of the patient's spine-related     not confuse it with objective clinical findings.
symptoms and complaints must describe the chief                  It is difficult to separate the cervical, thoracic,
complaint and the pain, numbness, weakness, ana-            lumbar, and sacral spine regions functionally, because
tomic location, frequency, and duration, then describe      the signs related to the different regions commonly
specifically how the condition interferes with daily        overlap. Upper lumbar spine impairments tend to
activities (Fig. 61, p. 96). The physician should elicit    behave more like those of the thoracic region than
the facts about when the condition started, the cir-        those of the lower lumber region, and the involved
cumstances, the relationship to any previous spine          nerve plexuses expand the effects from the different
problems, any precipitating events or factors, and          levels. For instance, the brachial plexus is made up
the impact of the problem on daily activities.              of nerve trunks from both the cervical and the upper
     The history should use the patient's description       thoracic regions, and the sciatic nerve includes
in his or her own words as to how the symptoms              components from both the lower lumbar and the
developed, the cause, the response to treatment,            sacral regions.
and the results of special studies that have been                With the Injury or DRE Model, the main spine
performed. The physician should review the roent-           regions are termed the cervicothoracic, thoracolum-
genograms personally, or report the roentgenographic        bar, and lumbosacral regions. With this model, the
findings as being those of another reviewer. It is          cervicothoracic spine is considered to comprise 35%
helpful to record the patient's future plans, should        of total body function, the thoracolumbar spine 20%,
the present symptoms and limitations not improve.           and the lumbosacral spine 75%. Under the Range of
A review of systems and of the medical history are          Motion or Functional Model, the main regions are
needed to provide potentially useful information            called the cervical, thoracic, and lumbar regions.
and to identify any complicating problems and               With that model, the cervical spine is considered to
requirements for diagnosis or care.                         be involved with 80% of the individual's functioning,
                                                            the thoracic spine is involved with 40%, and the
                                                            lumbosacral spine is involved with 90%. However, the
                                                            structural, neurologic, vascular, and other activities
3.3b The Spine Examination                                  mediated by the spine regions overlap and are difficult
                                                            to separate.
Many aspects of the physical examination are covered             With both the Injury Model and the Range of
in other parts of the Guides. Much of the information       Motion Model, the normal percent offunction of the
pertaining to the examination for spine injury and          spine or the whole person is 100%.
impairment is neurologic in nature; thus, the physi-             For the purposes of this book, the cervical
cian must have a good grasp of neurologic principles        region may be considered to represent the cervico-
and understand the material covered in the Guides           thoracic region, the thoracic region to represent the
chapter on the nervous system (p. 139) and in Sec-          thoracolumbar region, and the lumbar region to
tion 3.lk (p. 46) of this chapter. Guided by the            represent the lumbosacral region.
history (Fig. 61, p. 96), the physician should focus
attention on spine-related physical findings, such as
motor abilities, reflexes, muscle atrophy, anal tone,
and the need for assistive devices.
                                                                                       The Musculoskeletal System    3/99



     Figure 63 (p. 98) illustrates the measurements       Structural Inclusions
for angular motion. If the difference in motion, mea-     Certain spine fracture patterns may lead to signifi-
sured by flexion and extension films, between two         cant impairment and yet not demonstrate any of the
angles (such as angles A and B in Fig. 63) is more than   findings involving the differentiators. Therefore, with
15° at the lumbosacral joint or more than 11° at any      the Injury Model, "structural inclusions" are
other joint, there is loss of structural integrity.       included in some of the DRE categories. If the patient
     The importance of careful and accurate roent-        has a condition that meets the definition of a category
genographic studies cannot be overemphasized.             that includes a structural inclusion, the physician
                                                          need not determine if the other criteria for that
                                                          category are present.
Special Studies
                                                               If the patient demonstrates the structural
The patient may have undergone roentgenographic,
                                                          inclusions of two categories, the physician should
dye, electromyographic or electrodiagnostic, cysto-
                                                          place the patient in the category with the higher
metric, or other types of studies. The examining
                                                          impairment percent.
physician should determine when, where, and by
whom the studies were made, the findings, and who
interpreted them. These records should be summa-
rized in the history form (Fig. 61, p. 96) and included
with the Report of Medical Evaluation (p. 11).
                                                          3.3c Impressions, Diagnoses, and
                                                          Impairment Estimates
Differentiators
In using the Injury Model, the physician or examiner      Impressions should be expressed in logical fashion,
may use certain clinical procedures or determina-         progressing from symptoms, such as "back and leg
tions in placing the patient's impairment in the proper   pain;' to a documented diagnosis that mayor may
category. These "differentiators" are described in        not be remediable, such as "L5 nerve root compres-
Table 71 (p. 109) and are listed below.                   sion due to a herniated disk between L4 and L5:'
     No differentiator is required to place a patient          Impairment estimates are based on the his~ory,
in any impairmen t category. However, if a differen ti-   objective findings and data, impression, and any other
ator is present, it provides important evidence as to     information collected during the evaluation. The
the category in which the patient belongs.                physician's report should describe and explain any
                                                          qualifications or inconsistencies that may be present
    Imp-ainnent CategQ..I'Y. Differentiators
                                                          (Report of Medical Evaluation, p. 11). The impair-
    Guarding                                              men t evaluation report may consider reI evan t factors,
    Loss of reflex (es)
                                                          such as the patient's literacy, general capability,
    Decreased muscle circumference
                                                          and overall health.
    Electrodiagnosis
    Lateral motion roentgenograms
    Loss of bowel or bladder control
    Bladder studies                                       3.3d Evaluating Impairments:
    Range of Motion Model
                                                          The Injury or Diagnosis-related
     If the physician cannot decide into which DRE
category the patient belongs, the physician may refer
                                                          Estimates Model
to and use the Range of Motion Model, which is
described in Section 3.3j (p. 113). Using the proce-      The Injury Model relies not only on the medical history
dures of that model, the physician combines an            and physical examination, but also on medical data
impairment percent based on the patient's diagnosis       other than those that relate to the range of motion.
with a percent based on the patient's spine motion             What is called osteoarthritis of the spine is due
impairment and a percent based on neurologic              more to increments of age than to injury or illness,
impairment, ifit is present. The physician uses the       while similar structural changes in the hip or
estimate determined with the Range of Motion Model        glenohumeral joint are more likely to be injury
to decide placement within one of the DRE categories.     related. For example, roentgenographic evidence of
The proper DRE category is the one having the             aging changes in the spine, called osteoarthritis, are
impairment percent that is closest to the impairment      found in 40% of people by age 35 years,67 and there is
percent determined with the Range of Motion Model.        a poor correlation with symptoms, while roentgeno-
                                                          graphic evidence of osteoarthritic changes of the hip
                                                          are found in 5% to 7% of70-year-olds, in whom the
                                                          correlation with acute injury is greater.
3/100   Guides to the Evaluation of Permanent Impairment



             The Injury Model attempts to document physio-            63, p. 98). Adverse conditions are possible for each
        logic and structural impairments relating to insults          spine segment or region, and appropriate DREs are
        other than common developmental findings, such                given for all of the regions.
        as (1) spondylolysis, found normally in 7% of adults;              In the Injury Model, the lumbosacral spine seg-
        (2) spondylolisthesis, found in 3%; (3) herniated             ment is considered to represent 75% of total body
        disk without radiculopathy, found in more than                function; the cervicothoracic spine is considered
        30% of individuals by age 40years53,62, 71; and (4) aging     to represent 35% oftotal body function; and the
        changes, common in 40% of adults after age 35 years.67        thoracolumbar spine is considered to represent 20%
             The Injury Model relies especially on evidence           of total body function. Thus, the maximum whole-
        of neurologic deficits and uncommon, adverse struc-           person spine impairments are 75% for the lumbo-
        tural changes, such as fractures, dislocations, and loss      sacral spine and, without long-tract signs, 35% for the
        of motion segment integrity. Under this model, DREs           cervicothoracic spine and 20% for the thoraco-
        are differentiated according to clinical findings that        lumbar spine.
        are verifiable using standard medical procedures.                  Having a whole-person impairment estimate
             With the Injury Model, surgery to treat an               greater than 35% for the cervicothoracic spine (Table 73,
        impairment does not modify the original impairment            p. 110) or an estimate greater than 20% for the
        estimate, which remains the same in spite of any              thoracolumbar spine (Table 74, p. 111) depends on
        changes in signs or symptoms that may follow the              the existence of documentable long-tract nervous
        surgery and irrespective of whether the patient has           system signs of bowel and bladder or lower-extremity
        a favorable or unfavorable response to treatment.             impairment. If these signs or differentiators, which
                                                                      are explained in Table 71 (p. 109), are present, the
                                                                      examiner may combine an appropriate long-tract
                                                                      impairment percent with the percent for the specific
        3.3e General Approach and                                     DRE category. Tables 73 and 74 (pp. 110 and Ill)
        Directions                                                    explain further the combining of DRE category
                                                                      percents with percents related to long-tract signs.
                                                                           Long-tract-sign-related percents are combined only with
        The medical history, physical examination, and                cervicothoracic and thoracolumbar spine impairments.
        clinical workup described in Sections 3.3a through                 To express a spine impairment and a bladder
        3.3c will guide the examiner to the appropriate               impairment, or any other combination of organ sys-
        impairment category. Is there radiculopathy of the            tem impairments, as an impairment of the whole
        lumbosacral spine? This impairment is in lumbosa-             person, the whole-person impairment estimates for
        cral impairment category III (Table 72, p. 110). Loss         the respective organ systems should be combined
        of motion segment or structural integrity of the lum-         using the Combined Values Chart (p. 322).
        bosacral spine is in category IV. Impairment due to a              Spine-related complaints in category II involve
        vertebral body fracture with both radiculopathy and           mild to moderately impaired spine function but are
        instability would be in category III, IV, or V (Table 70,     considered to be minor impairments. Categories III
        p. 108), and a vertebral body fracture without either         through VIII relate to specific, documentable find-
        characteristic would be in category II, III, or IV. Cate-     ings more serious than those that most people develop
        gories and tables are provided for the cervicothoracic        without injuries or illnesses and include radiculopathy,
        (Table 73, p. 110), thoracolumbar (Table 74,                  loss of motion segment integrity, potentially unstable
        p. 111), and lumbosacral (Table 72, p. 110) regions.          vertebral body fractures, dislocations, multilevel
             The physician should start with Table 70 (p. 108)        neurologic dysfunction, and severe neurologic losses.
        as a guide toward the appropriate category for the            In the last category are the cauda equina-like syn-
        spine impairment. A series of differentiators (Table 71,      dromes associated with loss oflower-limb function,
        p. 109) describes clinical criteria that correlate with       bowel and bladder dysfunction, and paraplegia.
        serious physiologic dysfunction or structural change,
        which the physician should use to help define the
        patient's impairment. The dysfunctions include
        documentable neurologic compromise of the limbs
        (Table 71, p. 109, differentiators 2, 3, and 4) or of
        bowel or bladder function (Table 71, differentiators
        6 and 7) and documentable loss of normal spine motion
        segment integrity (Table 71, differentiator 5; Figs. 62 and
3/108   Guides to the Evaluation of Permanent Impairment




        Table 70. Spine Impairment Categories for Cervicothoracic, Thoracolumbar, and Lumbosacral Regions.

                                                                                        Category                            Category   *
          Patient's condition                                                           I    II     III     IV       V      VI       VII      VIII
          Complaints or symptoms                                                        I
          Vertebral body compression, less than 25%                                          II
          Posterior element fracture, healed, stable, no dislocation or radiculopathy        II
          Transverse or spinous process fracture with dislocation of fragment,               II
          healed, stable
          Vertebral body compression fracture 25%-50%                                               III
          Posterior element fracture with spinal canal displacement or radiculopathy,               III
          healed, stable
          Radiculopathy                                                                             III
          Loss of motion segment integrity                                                                  IV
          Vertebral body compression, greater than 50%                                                      IV       V
          Multilevel structural compromise                                                                  IV       V
          Cauda equina syndrome without bowel or bladder impairment                                                         VI
          Cauda equina syndrome with bowel or bladder impairment                                                                    VII
          Paraplegia                                                                                                                         VIII
          Spondylolysis without loss of motion segment integrity or radiculopathy       I    II
          Spondylolysis with loss of motion segment integrity or radiculopathy                      III     IV       V
          Spondylolisthesis without loss of motion segment integrity or radiculopathy   I    II
          Spondylolisthesis with loss of motion segment integrity or radiculopathy                  III     IV       V
          Spondylolisthesis with cauda equina syndrome                                                                      VI      VII      VIII
          Vertebral body fracture without loss of motion segment integrity                   II      III    IV
          or radiculopathy
          Vertebral body fracture with loss of motion segment integrity                             III     IV       V
          or radiculopathy
          Vertebral body fracture with cauda equina syndrome                                                                VI      VII      VIII
          Vertebral body dislocation without loss of motion segment integrity                II     III     IV
          or radiculopathy
          Vertebral body dislocation with loss of motion segment integrity                           III    IV       V
          or radiculopathy
          Vertebral body dislocation with cauda equina syndrome                                                             VI      VII      VIII
          Previous spine operation without loss of motion segment integrity                  II     III     IV
          or radiculopathy
          Previous spine operation with loss of motion segment integrity                             III    IV       V
          or radiculopathy
          Previous spine operation with cauda equina syndrome                                                               VI       VII     VIII
          Stenosis, or facet arthrosis or disease, or disk arthrosis                    I    II

        *Long-tract categories VI, VII, and VIII for long-tract signs may be combined (Combined Values Chart, p. 322) with impairment percents of
         celVicothoracic categories II-V or thoracolumbar categories II-IV (see Tables 73 and 74, pp. 110 and Ill).
                                                                                               The Musculoskeletal System        3/109


    An impairment estimate in thoracolumbar cate-
gory VIII should be combined with an appropriate        Table 71. DRE Impairment Category Differentiators.
estimate from thoracolumbar category II, III, or N      In many cases, as with patients who have localized, severe pressure
using the Combined Values Chart (p. 322).               on spinal nerve roots, physicians can differentiate one type of
                                                        impairment from another. But it may be difficult to reach agreement
                                                        when the clinical findings are not obvious. The criteria below will
Example: An 18-year-old man fell from a roof and        help differentiate spine impairments and place them in impairment
suffered a TI2 burst fracture. Examination when the     categories for the cervicothoracic, thoracolumbar, and lumbosacral
                                                        regions.
man's signs and symptoms were stable indicated he            The more objective and important differentiators are marked
had neurologic impairment of the lower legs meet-       with an asterisk; the physician should use these to determine the
                                                        highest impairment category. If the physician cannot place a patient's
ing thoracolumbar category III criteria and bladder     impairment in one of the categories, or if there is disagreement
and bowel impairment meeting thoracolumbar cate-        about the most appropriate category, he or she should use the Range
gory VII criteria. To determine the whole-person        of Motion Model (Section 3.3j, p. 113) to evaluate the magnitude of
                                                        the impairment and identify the most appropriate category (see
impairment, the impairment percent for the radicu-      Sections 3.3b, p. 95, and 3.3f, p. 101).
lar signs would be combined with that for the cauda     1. Guarding
equina syndrome.                                        Paravertebral muscle guarding or spasm or nonuniform loss of range
                                                        of motion, dysmetria, is present or has been documented by a
Impairment: 15% (thoracolumbar category III or IIIB,    physician. Radicular complaints that follow anatomic pathways but
                                                        cannot be verified by neurologic findings belong with this type of
Table 74, p.lll) combined with 55% (thoracolumbar       differentiator.
category VII, Table 74) is 62% (Combined Values
                                                        2. Loss of reflexes
Chart, p. 322). Thus, the patient has a 62% whole-      Spine-injury-related loss of arm or leg reflexes is present; this may
person impairment.                                      be verified by differentiator 4 below.
                                                        3. Decreased circumference. atrophy
                                                        Spine-injury-related circumferential measurements show loss of girth
                                                        of 2 cm or more above or below the elbow or knee. The atrophy
                                                        cannot be explained by non-spine-related problems or contralateral
                                                        hypertrophy, as might occur with a dominant limb or greatly
                                                        increased use of a limb. The neurologic impairment may be verified
                                                        by differentiator 4 below.
                                                        4. * Electrodiagnostic evidence
                                                        Unequivocal electrodiagnostic evidence exists of acute nerve root
                                                        compromise, such as multiple positive sharp waves or fibrillation
                                                        potentials; or H-wave absence or delay greater than 3 mmlsec; or
                                                        chronic changes such as polyphasic waves in peripheral muscles.
                                                        5. * Loss of motion segment integrity
                                                        Flexion and extension comparison roentgenograms show significant
                                                        injury-related anterior-to-posterior translation of two adjacent
                                                        vertebral bodies of 5 mm or more in the lumbar or thoracic spine,
                                                        or of 3.5 mm or more in the cervical spine; or the roentgenograms
                                                        show 15° more angular motion in the sagittal plane of L5 and S1
                                                        than at L4 and L5, or 11° more angular motion in the sagittal plane
                                                        of a motion segment above L5 than in the adjacent motion segment.
                                                        See Figs. 62 and 63 (p. 98).
                                                        6. Loss of bowel or bladder control
                                                        Rectal examination indicates loss of sphincter tone, or there is loss
                                                        of bladder control requiring the use of an assistive device such as
                                                        a catheter.
                                                        7. * Bladder studies
                                                        Cystometrograms show unequivocal neurologic compromise of the
                                                        bladder with resulting incontinence.

                                                       *More objective and important differentiators.
3/110   Guides to the Evaluation of Permanent Impairment




         Table 72. DRE Lumbosacral Spine Impairment
         Categories.

          DRE impairment      Description                  % Impainnent of
          category                                         the whole person
                              Complaints or symptoms        0
                              Minor impairment: clinical    5
                              signs of lumbar injury are
                              present without radiculo-
                              pathy or loss of motion
                              segment integrity
          III                 Radiculopathy: evidence      10
                              of radiculopathy is present
          IV                  Loss of motion segment       20
                              integrity: criteria for this
                              condition are described in
                              Section 3.3b, p. 95
          V                   Radiculopathy and loss of 25
                              motion segment integrity
          VI                  Cauda equina-like syn-       40
                              drome without bowel or
                              bladder impairment
          VII                 Cauda equina syndrome        60
                              with bowel or bladder
                              impairment
          VIII                Paraplegia                   75



         Table 73. DRE Cervicothoracic Spine Impairment Categories:"

          DRE impairment      Description                                                            % Impairment of        Impairment (%) with
          category                                                                                   the whole person       long-tract signs· combined
                                                                                                                            VI (40) VII (60) VIII (75)
          I                   Complaints or symptoms                                                   0
          II                  Minor impairment: clinical signs of neck injury are present without      5                       43       62        76
                              radiculopathyor loss of motion segment integrity
          III                 Radiculopathy: evidence of radiculopathy is present                     15                       49       66        79
          IV                  Loss of motion segment integrity or multilevel neurologic compromise    25                       55       70        81
          V                   Severe upper extremity neurologic compromise: single-level or           35                       61       74        84
                              multilevel loss of function
          VI                  Cauda equina syndrome without bowel or bladder impairment               40                    The 40% impairment for
                                                                                                                            category VI must be combined
                                                                                                                            with the impairment percent
                                                                                                                            from the most appropriate
                                                                                                                            cervicothoracic impairment
                                                                                                                            category, II, III, IV, or V.
          VII                 Cauda equina syndrome with bowel or bladder impairment                  60                    The 60% impairment for cate-
                                                                                                                            gory VII must be combined
                                                                                                                            with the impairment percent
                                                                                                                            from the most appropriate
                                                                                                                            cervicothoracic impairment
                                                                                                                            category, II, III, IV, or V.
          VIII                Paraplegia                                                              75                    The 75% impairment for cate-
                                                                                                                            gory VIII must be combined
                                                                                                                            with the impairment percent
                                                                                                                            from the most appropriate
                                                                                                                            cervicothoracic impairment
                                                                                                                            category, II, III, IV, or V.

        *If a patient has an impairment in cervicothoracic spine impairment category VI, VII, or VIII, the appropriate impairment percent should be
         combined (Combined Values Chart, p. 322) with the percent in cervicothoracic impairment category II, III, IV, or V that best reflects
         the patient's condition.
               If the patient's bowel or bladder function is impaired and there is no cervicothoracic or lower-limb impairment that meets the criteria of
         categories VI, VII, or VIII, the impairment should be evaluated according to criteria in the Guides chapters on the digestive or urinary and
         reproductive systems.
3/112   Guides to the Evaluation of Pennanent Impainnent



        3.3j The Range of Motion Model                                  All impairment estimates shown in the tables of
                                                                   this section are expressed as whole-person impair-
                                                                   ments. Section 3.3k (p.135) explains how to express
        Determining the range of motion ofa patient's spine        a whole-person spine impairment as a regional spine
        is a clinically useful procedure,68 and it is the second   impairment. The tables in this section provide esti-
        of the two methods recommended in the Guidesfor            mates for judging ankylosis as well as range of motion
        evaluating spine impairment. This approach uses a          impairments.
        diagnosis-based component, based on Table 75                    Regional spine motion is a compound motion,
        (p. 113), a method for determining the range of            and it is essential to measure simultaneously the
        motion of the impaired spine region described in this      motion of both the upper and lower extremes of the
        section, and a component based on any spinal nerve         spine region being examined. Because the smalljoints
        deficit (Section 3.lk, p. 46).                             of the spine do not lend themselves readily to goni-
              The Range of Motion Model should be used             ometer measurements, and the difficulty of measur-
        only if the Injury Model is not applicable, or if more     ing a spine segment's mobility is compounded by
        clinical data on the spine are needed to categorize the!   motion above and below the measurement points,
        individual's spine impairment.                             using an inclinometer is a better way of obtaining
              The spine consists of three major regions: cervi-    accurate, reproducible measurements in a simple,
        cal, thoracic, and lumbar (Fig. 64, below). Under the      practical, and inexpensive way.
        Guides approach to impairment evaluation, the spine             The data on standards and normal functioning
        is considered to be equivalent to the whole person.        described in this section are based both on medical
        As described in Section 3.3b (p. 95), with the Range       studies and consensus judgments. The impairment
        of Motion Model, the cervical spine is considered to       measurements and estimates involving the three
        be involved with 80% of the individual's functioning,      major regions should be recorded in Figs. 77-80
        the thoracic spine involved with 40%, and the lumbo-       (pp.132-134).
        sacral spine involved with 90%.

                                                                   General Measurement Principles
        Figure 64. The Whole Spine Divided Into Regions            An individual's impairment should be evaluated
        Indicating the Maximum Whole-person Impairment             when the impairment has become stable after the
        Represented by Total Impairment of One Region              completion of all necessary medical, surgical, and
        (Range of Motion Model).                                   rehabilitative treatment. This principle precludes
                                                                   performing the evaluation when acute illness is pres-
                                                                   ent. Ifacute muscle spasm is present, this should be
                                                                   noted in the examiner's report; however, the mobility
                                                                   measurements would not be valid for estimating per-
                                 Cervical 80%                      manent impairment, because by definition the evalu-
                                                                   ation must be carried out when the acute condition
                                                                   has resolved.
                                                                        Pain, fear of injury, or neuromuscular inhibition
                                                                   may limit mobility by diminishing the patient's effort,
                                                                   leading to inaccurately low and inconsistent mea-
                                                                   surements and inflated impairment estimates. The
                                                                   reproducibility of a patient's performance is one indi-
                                                                   cator of an optimum effort.
                                                                        In measuring a range of motion, the examiner
                                 Thoracic 40%
                                                                   should select at least three consecutive measurements
                                                                   and calculate the mean or average of the three. If the
                                                                   average is less than 50°, three of the measurements
                                                                   must fall within 5° of it; if the average is greater than
                                                                   50°, three measurements must fall within lO% of it.
                                                                   Measurements may be repeated up to six times to
                                                                   obtain three consecutive measurements that meet
                                                                   these criteria. If inconsistency persists, all measure-
                                                                   ments of that part of the examination are invalid.
                                                                        An impairment based on loss of mobility is valid
                                                                   only if there is medical evidence of a documented
                                 Lumbosacral 90%                   injury or illness with a physiologic residual.
                                                                                                                     The Musculoskeletal System     3/113




 Table 75. Whole-person Impairment Percents Due to Specific Spine Disorders:"

  Disorder                                                                                                         % Impairment of the
                                                                                                                   whole person
                                                                                                                   Cervical    Thoracic    Lumbar
  I. Fractures:
     A. Compression of one vertebral body
                                  0%-25%                                                                            4          2            5
                                 26%-50%                                                                            6          3            7
                                    >50%                                                                           10          5           12
     B. Fracture of posterior element (pedicle, lamina, articular process, transverse process)                      4          2            5
     Note: An impairment due to compression of a vertebra and one due to fracture of a posterior
     element are combined using the Combined Values Chart (p. 322). Fractures or compressions of several
     vertebrae are combined using the Combined Values Chart.
     e. Reduced dislocation of one vertebra.                                                                         5         3            6
       If two or more vertebrae are dislocated and reduced, combine the estimates using the Combined Values
     Chart (p. 322).
       An unreduced dislocation causes impairment until it is reduced; the physician should then evaluate the
     impairment on the basis of the subject's condition with the dislocation reduced.
       If no reduction is possible, the physician should evaluate the impairment on the basis of the range of
     motion and the neurologic findings according to criteria in this chapter and the nervous system chapter.
  II. Intervertebral disk or other soft-tissue lesion
      A. Unoperated on, with no residual signs or symptoms                                                           0         0            0
     B. Unoperated on, stable, with medically documented injury, pain, and rigidityt associated with none
     to minimal degenerative changes on structural tests, such as those involving roentgenography
     or magnetic resonance imaging.                                                                                  4         2            5
     e. Unoperated on, stable, with medically documented injury, pain, and rigidityt associated with
     moderate to severe degenerative changes on structural tests; includes unoperated on herniated
     nucleus pulposus with or without radiculopathy                                                                  6         3            7
     D. Surgically treated disk lesion without residual signs or symptoms; includes disk injection                   7         4            8
     E. Surgically treated disk lesion with residual, medically documented pain and rigidity                         9         5           10
     F. Multiple levels, with or without operations and with or without residual signs or symptoms                 Add 1% per level
     G. Multiple operations with or without residual symptoms:
        1. Second operation                                                                                        Add 2%
        2. Third or subsequent operation                                                                           Add 1% per operation
  III. Spondylolysis and spondylolisthesis. not operated on
     A. Spondylolysis or grade I (1 %-25% slippage); or grade II (26%-50% slippage) spondylolisthesis,
     accompanied by medically documented injury that is stable, and medically documented pain and
     rigidity with or without muscle spasm                                                                           6         3            7
     B. Grade III (51 %-75% slippage) or grade IV (76%-100% slippage) spondylolisthesis, accompanied
     by medically documented injury that is stable and medically documented pain and rigidity with or without
     muscle spasm                                                                                                    8         4            9
  IV. Spinal stenosis. segmental instability. spondylolisthesis. fracture. or dislocation. operated on
     A. Single-level decompression    without spinal fusion and without residual signs or symptoms                   7         4            8
     B. Single-level decompression with residual signs or symptoms                                                  9          5           10
     e. Single-level spinal fusion with or without decompression without residual signs or symptoms                 8          4            9
     D. Single-level spinal fusion with or without decompression with residual signs or symptoms                   10          5           12
     E. Multiple levels, operated on, with residual, medically documented pain and rigidity with or without
     muscle spasm                                                                                                  Add 1% per level
        1. Second operation                                                                                        Add 2%
        2. Third or subse quent 0 peration                                                                         Add 1% pero peration

*Instructions:
 1. Identify the most significant impairment of the primarily involved region.
 2. The diagnosis-based impairment estimates and percents shown above should be combined with range of motion impairment estimates and
 with whole-person impairment estimates involving sensation, weakness, and conditions of the musculoskeletal, nervous, or other organ systems.
 3. List the diagnosis-based, range of motion, and other whole-person impairment estimates on the Spine Impairment Summary Form
 (Fig. 80, p. 134).
tTbe words "with medically documented injury, pain, and rigidity" imply not only that an injury or illness has occurred, but also that the
 condition is stable, as shown by the evaluator's history, examination, and other data, and that a permanent impairment exists, which is at least
 partly due to the condition being evaluated and not only due to preexisting disease.
                                                           Glossary




D         efinitions related to impairment assume
         importance, because terms associated with
          impairment evaluations may have special
                                                           Evaluation ofpermanent impairment is acquisition and
                                                           analysis of information, including clinical evaluation,
                                                           that is carried out according to Chapters 1 and 2 and
meanings in a legal context beyond their usual mean-       other applicable parts of the Guides.
ings in medical communications. This glossary pro-
                                                           Impairment rating consists of analyzing data accumu-
vides a guide to the terms that should be used in
                                                           lated in the course of an impairment evaluation and
reporting, analyzing, understanding, and discussing
                                                           comparing those data with Guides criteria to estimate
impairment evaluations and estimates carried out
                                                           the extent of the impairment. Impairment ratings
according to Guidescriteria. It also defines important
                                                           prepared according to Guides criteria are estimates of
terms in the fields of disability, workers' compensa-
                                                           impairment.
tion, and short- and long-term disability and consid-
ers Social Security System disability determinations       Impairment reporting is explaining the information
and the Americans with Disabilities Act ofl992.            acquired in the course of evaluating, analyzing,
                                                           and estimating the exten t of an impairmen t. An
                                                           impairment report should be prepared according to
Terms Used in Assessments According to                     the procedures described in Chapter 2 and other
Guides                                                     applicable parts of the Guides.

1. Impairment: Impairment is the loss, loss of use, or     2. Apportionment: This is an estimate of the degree to
derangemen t of any body part, system, or function.        which each of various occupational or nonoccupa-
                                                           tional factors may have caused or contributed to a
Permanent impairment is impairment that has become         particular impairment. For each alleged factor, two
static or well stabilized with or without medical treat-
                                                           criteria must be met:
ment and is not likely to remit despite medical
treatment.                                                    a. The alleged factor could have caused or contributed
     A permanent impairment is considered to be            to the impairment, which is a medical determination
unlikely to change substantially and by more than 3%       (see "causation;' p. 316).
in the next year with or without medical treatment.          b. In the case in question, the factor did cause or
If an impairment is not permanent, it is inappropriate     contribute to the impairment, which usually is a
to characterize it as such and evaluate it according to    nonmedical determination. The physician's analysis
Guides criteria.                                           and explanation of causation is significant.
