                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-12-00722-CV

                                       Jesus CERVANTES,
                                             Appellant

                                               v.
                               NEW HAMPSHIRE INSURANCE
                      NEW HAMPSHIRE INSURANCE COMPANY,
    Texas Department of Insurance, Division of Workers’ Compensation, and Ron Bordelon,
              in his official capacity as Workers’ Compensation Commissioner,
                                           Appellees

                  From the 293rd Judicial District Court, Maverick County, Texas
                               Trial Court No. 11-02-26260-MCV
                          Honorable Cynthia L. Muniz, Judge Presiding

Opinion by:      Catherine Stone, Chief Justice

Sitting:         Catherine Stone, Chief Justice
                 Marialyn Barnard, Justice
                 Rebeca C. Martinez, Justice

Delivered and Filed: July 10, 2013

AFFIRMED

           Jesus Cervantes appeals a summary judgment granted in favor of New Hampshire

Insurance Company and an order dismissing his declaratory judgment claim against the Texas

Department of Insurance, Division of Workers’ Compensation, and Ron Bordelon, in his official

capacity as Workers’ Compensation Commissioner. Cervantes asserts the trial court erred in

granting summary judgment because he raised a genuine issue of material fact regarding the

validity of the designated doctor’s certification of maximum medical improvement and
                                                                                  04-12-00722-CV


assignment of a 5% impairment rating. Cervantes also asserts the trial court erred in dismissing

his declaratory judgment claim against the Division and Bordelon. We affirm the trial court’s

summary judgment and dismissal order.

                                         BACKGROUND

       Cervantes was injured while lifting a heavy box, aggravating a prior injury to his neck

and low back. On July 1, 2010, the designated doctor selected by the Division, Dr. Bruce G.

Kinzy, certified that Cervantes reached maximum medical improvement as of June 30, 2010, and

assigned a 5% impairment rating. Based on the evidence presented at a contested case hearing,

the hearings officer determined that Cervantes reached maximum medical improvement on June

30, 2010, and had an impairment rating of 5%. After an appeals panel affirmed the hearings

officer’s decision, Cervantes sought judicial review.

       In his petition, Cervantes challenged the appeals panel’s decision, asserting that Dr.

Kinzy’s report was invalid because Dr. Kinzy did not comply with the applicable rules requiring

him to perform a complete medical examination of Cervantes and to state the analysis he

performed before certifying an impairment rating and a date on which maximum medical

improvement was reached. Cervantes also asserted a declaratory judgment claim against the

Division and Bordelon, seeking a declaration that the Division and Bordelon were required to

abide by the Division’s rules by determining that Dr. Kinzy’s certification failed to comply with

the rules.   The trial court dismissed the declaratory judgment claim and granted summary

judgment upholding the appeals panel’s decision.

                                     SUMMARY JUDGMENT

       We review a summary judgment de novo. Provident Life & Acc. Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003). In reviewing the granting of a traditional summary judgment, we

consider all the evidence in the light most favorable to the respondent, indulging all reasonable
                                               -2-
                                                                                      04-12-00722-CV


inferences in favor of the respondent, and determine whether the movant proved that there were

no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon

v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). In reviewing the granting of a no-

evidence summary judgment, we apply the same legal sufficiency standard as we apply in

reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.

2003). A no-evidence summary judgment is improperly granted if the respondent brings forth

more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. at 751.

       In the absence of a finding by the trial court that a substantial change of the worker’s

condition has occurred, evidence of the extent of impairment is limited to that presented to the

division during the appeals process. TEX. LAB. CODE ANN. §§ 410.306(c), 410.307 (West 2006

& Supp. 2012); American Zurich Ins. co. v. Samudio, 370 S.W.3d 363, 366-67 (Tex. 2012). In

the instant case, there is no allegation or finding that a substantial change of condition occurred;

therefore, the trial court was required to adopt one of the physician’s specific impairment ratings

presented to the division. TEX. LAB. CODE ANN. § 410.306(c) (West Supp. 2012); Tex. Workers’

Comp. Comm’n v. Garcia, 893 S.W.2d 504, 528 (Tex. 1995); Fireman’s Fund Ins. Co. v. Weeks,

259 S.W.3d 335, 339 (Tex. App.—El Paso 2008, pet. denied).

       New Hampshire Insurance Company moved for summary judgment on the ground that

Dr. Kinzy’s evaluation contained the only impairment rating presented to the Division. In his

response, Cervantes sought to raise a genuine issue of material fact by asserting that Dr. Kinzy’s

certification was invalid because Dr. Kinzy failed to conduct the requisite physical examination

and provide the requisite analysis prior to his certification. Cervantes attached no evidence to his

response in support of his assertion. Attached to New Hampshire Insurance Company’s motion

for summary judgment, however, is a Division form 069 Report of Medical Evaluation signed by

Dr. Kinzy on July 1, 2010. Attached to this report is a document entitled TDI DWC Designated
                                                -3-
                                                                                                  04-12-00722-CV


Doctor Evaluation which is a summary prepared by Dr. Kinzy relating to his July 1, 2010

examination of Cervantes. The evaluation summarizes the medical records Dr. Kinzy reviewed,

the history of Cervantes’s injury, and Cervantes’s interim history since his last evaluation,

response to treatment, and current complaints. The evaluation summarizes the basis upon which

Dr. Kinzy certified that Cervantes: (1) reached maximum medical improvement as of June 30,

2010; and (2) qualified for a 5% impairment rating. Finally, in the conclusion of the evaluation,

Dr. Kinzy states, “This evaluation has been conducted on the basis of a thorough medical

examination….”        Attached to the TDI DWC Designated Doctor Evaluation is a document

entitled “Physical Examination” listing an exam date of July 1, 2010, and documenting Dr.

Kinzy’s physical examination of Cervantes. 1

        Accordingly, since Dr. Kinzy’s impairment rating was the only evidence presented to the

Division, and the summary judgment evidence conclusively established that he conducted a

physical examination prior to certifying the impairment rating, the trial court did not err in

granting summary judgment in favor of New Hampshire Insurance Company.

                                                  DISMISSAL

        Chapter 410, Subchapter G of the Texas Labor Code provides a method for challenging a

final decision of the appeals panel regarding a worker’s impairment rating. TEX. LAB. CODE

ANN. §§ 410.301-410.308 (West 2006 & Supp. 2012). “When a statute provides a method for


1
  In his brief, Cervantes argues that the physical examination was not complete because it did not document an
examination of Cervantes’s cervical spine. In his July 1, 2010 report, however, Dr. Kinzy stated, “The carrier has
stated the lumber herniated disc has been accepted but no other injuries are accepted as part of his work related
injury.” Accordingly, Dr. Kinzy was assessing an impairment rating based on the compensable injury to
Cervantes’s lumber spine. Because extent of injury was not included as an issue in the benefits review conference
and was not an issue considered by the hearings officer, it could not have been considered by the trial court as a
basis for invalidating Dr. Kinzy’s certification. See TEX. LAB. CODE ANN. § 410.302(e) (West 2006); Tex. Dept. of
Ins., Div. of Workers’ Comp. v. Jackson, 225 S.W.3d 734, 736-37 (Tex. App.—Eastland 2007, no pet.) (explaining
three-step administrative process for resolving workers’ compensation disputes and that each step is limited to the
scope of the prior proceeding); State Office of Risk Mgmt. v. Cole, No. 03-10-00034-CV, 2011 WL 2437672, at *4
(Tex. App.—Austin June 16, 2011, no pet.) (mem. op.) (acknowledging distinction between extent-of-injury and
impairment rating issues).

                                                       -4-
                                                                                 04-12-00722-CV


attacking an agency order, a declaratory judgment action directed at that order will not lie.”

Young Chevrolet, Inc. v. Tex. Motor Vehicle Bd., 974 S.W.2d 906, 911 (Tex. App.—Austin

1998, pet. denied).   “This follows because a party is generally not entitled to redundant

remedies.” Id.; see also SWEPI LP v. R.R. Comm’n of Tex., 314 S.W.3d 253, 268 (Tex. App.—

Austin 2010, pet. denied). Both Cervantes’s declaratory judgment action and the grounds on

which he sought judicial review of the appeals panel’s decision are directed at his challenge to

the validity of Dr. Kinzy’s certification based on his allegation that Dr. Kinzy did not comply

with the applicable rules. “If [Cervantes] prevailed in both actions, the relief would be the

same.” Young Chevrolet, Inc., 974 S.W.2d at 911. Accordingly, the trial court did not err in

dismissing Cervantes’s declaratory judgment claim. See id.

                                         CONCLUSION

       The trial court’s summary judgment and dismissal order are affirmed.

                                                Catherine Stone, Chief Justice




                                              -5-
