                            NUMBER l3-13-0021g-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


LUMBERIVIENS MUTUAL
CASUALTY COMPANY,                                                           Appellant,



NOE PORTILLO,                                                                 Appellee.


                   On appealfrom the 398th District Gourt
                         of Hidalgo Gounty, Texas.


           MEMORANDUM OPINION ON REHEARING
           Before Justices Garza, Benavides, and Perkes
       Memorandum Opinion On Rehearing by Justice Benavides

      We issued our original opinion in this cause on June 5,2014. Appellee Noe

Portillo filed a motion for rehearing. After due consideration, and within our plenary

power, we sua sponte withdraw our previous opinion and judgment and substitute the

following opinion and accompanying judgment in their   place.   See Tex. R. App. p. 1 9.1 .
Portillo's motion for rehear¡ng is dismissed as moot.

        ln this judicial review of a worker's compensation award, appellant Lumbermens

Mutual Casualty Company ("Lumbermens") challenges the twenty-percent impairment

ratingassignedtoappelleePortillo. SeeTex.LAB.CoDEANN.S410.30l (West,Wesflaw

through 2013 3d C.S.). By two issues, which we consolidate into one, Lumbermens

asserts that the evidence           is legally insufficient to support Portillo's         twenty-percent

impairment rating.r We reverse and render.

                           l.      FACTUAL AND PRoCEDURAL BAcKcRoUND

        This case is before us for the second           time.    See Lumbermens Mut. Cas. Co. v.

Po¡'tillo, No. 13-10-00470-CV,2011 WL 2976869, at -1 (Tex.                  App.-Corpus Christi Juty
21,2011, no pet.) (mem.          op.).   ln the first appeal, we reversed the trial court's granting

of Portillo's plea to the jurisdiction and remanded the case to the trial court for further

proceedings consistent with our          opinion. /d at -3.
        Portillo suffered       a work-related injury to his lower back on July 26,2001.
Lumbermens is the insurance carrier that provided workers' compensation coverage in

this case. During his treatment for the work-related injury, Portillo undenruent spinal

fusion surgery on his L4-L5 vertebrae and L5-Sí vertebrae on August                     26,2002.      After

Portillo reached maximum medical improvement2 (MMl), Portillo's surgeon and treating


        r   Lumbermens's orig¡nal two issues attack Dr. Guillermo Pechero's impa¡rment rat¡ng report. By
Lumbermens's first ¡ssue, it asserts that the trial court reversibly erred by admitting Dr. Pechero's report
because ¡t was legally insufficient to support the trial court's judgment. By its second issue, Lumbermens
asserts that Dr. Harold Nachimson's ten-percent impairment rating was the sole valid impa¡rment rating for
the trial court to use as a matter of law in its judgment. Furthermore, Lumbermens briefs these two issues
in a consolidated argument. Accordingly, we construe both issues as a challenge to the ¡egal sufficiency of
the evidence supporting the twenty-percent impairment rating.

        2   "Maximum medical improvemeni' is defined as the earlier of: (1) the earliest date after which,
based on reasonable medical probabil¡ty, further mater¡al recovery from or lasting improvement to an injury
can no longer reasonably be anticipated; (2) the exp¡ration of 104 weeks from the date on wh¡ch jncome
physician, Guillermo Pechero, M.D., determined Porlillo's permanent impairment to be at

twenty percent and suómitted his findings to the Texas Department of lnsurance's

Workers' Compensation Division 3 ("the Division"), the state agency charged with

administering and operating the workers' compensation system in Texas.                    See Tex. Lne.

CoDE ANN. S      402.001 (West, Westlaw through 2013 3d C.S.).

         Subsequently,      the Division referred Portillo to its designated doctor,                Harold

Nachimson, M.D., for an additional examination and assessment. See                      d.   S 408.0041

(West, Westlaw through 2013,               3d C.S.). After the examination, Dr. Nachimson
concluded that Portillo had an impairment rating of ten                   percent.   On November            5,

2003, Dr. Pechero wrote a letter to the Division that disagreed with Dr. Nachimson's

impairment     rating. Specifically,     Dr. Pechero cited the Divlsion's Advisory 2003-10, which

allowed Portillo's impairment rating to be placed at twenty percent.a On December 30,

2003, citing Advisory 2003-10, Dr. Nachimson amended Portillo's impairment rating from

ten percent to twenty percent. As a result, Lumbermens sought the opinion of an outside

physician, James Obermiller, M.D.




benefits begin to accrue; or (3) the date determined as provided by labor code section 4O8.l04 (prov¡ding
an injured worker a method to extend the statutory period for maximum medical improvement following
spinal surgery). See TEX. LAB. CoDE ANN. S 401 .01 1(30) (West, Wesflaw through           20 j   3 3d   C.S.).
Portillo's MMI date is not at issue in this appeal.

        3 The Division is formerly known as the Texas Workers Compensation
                                                                           Commission. For clarity,
we w¡ll utilize "the Division" throughout this opinion, unless otherwise noted.

         4 Advisory 2003-10, and subsequentty Advisory 2003-lOB, (collectively ,,the
                                                                                        Advisories,') were
issued by the Div¡sion in 2003 and 2004 as additional aids for doctors to use in evaluating a cla¡mant's
impairment rat¡ng. See TEx. WoRKERS' CoMp. CoMM'N ADV|SoRY 2003-10 (Juty 22, 2OO3); Advisory
2003-108 (Feb.24,2004). The Advisories, however, were invalidated by the Austin Court of Appeals as
an ultra vires act by the Division. See Tex- Dep'tof lns., Div. of Workers'Comp. v. Lumbermens Mut. Cas.
Co., 212 S.W.3d 870,876-77 (Tex. App.-Austin 2006, pet.             denied). Following the Austin   Court,s
decision, the Texas Department of lnsurance repealed the Advisories. See ÐeLeon v. Royat tndem. Co.,
396 S.W.3d 527, 528 (f ex.2012) (citing TEX. DEp'r oF lNS. CoMrflssroNER's BULL. No. 3-0033-07).
          Dr. Obermilleropined in a January 19,2004letterthat Dr. Nachimson's amended

impairment rating was not in accordance with the statutorily-mandated AMA Guides to

the Evaluation of Permanent lmpairment (the "AMA Guides"), Fourth Edition. See rd g

408J24 (West, Westlawthrough 2013 3d C.S.) (mandating thatthe Division shall use the

AMA Guides for determining the existence and degree of an employee's impa¡rment);

see a/so 28 TEX. ADM|N. CoDE 130.1(c)(2)(B) (2013) (Tex. Dep't of lns., Div. of Workers'

Comp.) (adopting the use of the AMA Guides, Fourth Edition for certifying examinations

conducted on or after Oct. '15,    2001). Dr. Obermiller did not examine Portillo prior to
issuing his opinion. After reviewing Dr. Obermiller's opinion, Dr. Nachimson wrote a

letter to the Division stating that he concurred with Dr. Obermiller's opinion that

according to the AMA Guides, Fourth Edition, Portillo did not qualify for a twenty percent

impairment      rating. However, Dr. Nachimson declined to change his        twenty-percent

impairment rating because he believed that the higher rating was mandated by the

Division's Advisory 2003-1 0.

          On August 26,2004, pursuant to section 410.15'l of the labor code, a contested

hearing was held regarding Portillo's impairment rating. See          rd g 410.151    fl/Vest,

Westlaw through 2013, 3d C.S.). At the conclusion of the hearing, the hearing officer

found Portillo's impairment rating to be twenty percent. Lumbermens appealed to the

Division's appeals panel, see id. S 410.202 (West, Westlaw 2013, 3d C.S.), which

affirmed the hearing officer's decision.

          On April 7,2010, Lumbermens sought judicial review of the appeals panel's

decision through a bench trial in the 398th District Court of Hidalgo County, the trial court

in this   appeal. See ld $ 410.301. At trial, the trial court heard arguments from counsel
and admitted several pieces of evidence, includlng: (1) Dr. Nachimson's ten-percent

impairment rating report; (2) Dr. Pechero's twenty-percent impairment rating report; (3)

Dr. Nachimson's deposition by written questions; (4) the AMA Guides, Fourth Edition; and

(5) the Division's Advisory 2003-10 and Advisory 2003-lOB.

       The trial court signed a final judgment on January 18, 2013 that set aside the

appeals panel's decision, but still assigned Portillo's impairment rating at twenty percent.

Lumbermen filed a motion for new trial that was overruled by operation of               law.   This

appeal followed.

                     ll.     STANDARD oF REvtEw AND AppLtcABLE          LAw

       Under the Texas Workers Compensation Act, district courts review disputes

involving compensability or eligibility for the amount of income or death benefits under a

modified de novo standard. See Rodriguez v. Svc. Lloyds lns. Co., 997 S.W.2d 24g,ZS3

(Tex. 1999) (citing Tex. LAB. CoDE ANN. S 410.301; Tex. Workers' Comp. Comm'n                     v.

Garcia,893 S.W.2d 504,515 (Tex. 199b)).

       The party appealing bears the burden of proof by a preponderance of evidence.

TEX. LAB. CoDE ANN. S 410.303 (West, Wesflaw through 2013 3d             C.S.).   tn a bench trial,

the court in rendering its judgment shall consider the decision of the appeals       panel.    /d. g

410.304(b) (West, Westlaw through 2013 3d            C.S.). Furthermore, the opinion of the
designated doctor regarding impairment is accorded no special weight. Garcia, gg3

S.W.2dat515. The evidence         at trial shall be adduced as in other civil trials, and the facts

and evidence from the Division's record are admissible to the extent allowed under the

Texas Rules of Evidence. TEX. LAB. CoDE ANN. g 4i0.306(a), (b) (West, Wesflaw

through 2013 3d    c.s.).   Evidence of the extent of impairment is limited to that presented
to the Commission unless the court makes a threshold finding that the claimant,s
condition has substantially     changed. Garcia, 893 S.W.2d at 515 (citing     TEX. LAB. CoDE

ANN. S 410.306).

       An employee receives impairment income benefits according to the employee,s

impairment   rating. Rodrlguez,997 S.W.2d at 253. The doctor expresses the rating          as

a percentage of permanent impairment to the whole body.              TEX. LAB. CoDE ANN. SS

401.011(24) (West, Westlaw through 2013              3d C.S.), 408.124. To determine the
impairment rating, an examining doctor evaluates the permanent effect of the employee's

injury under statutory guidelines. /d. (citing TEX. LAB. CoDE ANN. g a08.124); see a/so

AM. MED. Ass'N, GUTDES To rHE EvALUATtoN oF PERMANENT IMPA|RMENT (4th ed. .l9gS)

("AMA Guides"). Furthermore, as discussed in Note 4 of this opinion, impairment ratings

based upon Advisory 2003-10 or Advisory 2003-108 ("the Advisories") are invalid

pursuant   to the holding in lexas Depañment of lnsurance, Division of               Workers'

Compensation v. Lumbermens Mutual Casualty Co., 212 S.W.3d B7O, 876-77 (Tex.

App.-Austin 2006, pet. denied). See DeLeon v. Royal lndem. Co.,396 S.W.3d 527,

528 (Tex. 2012) (citing TEX. DEp'r oF lNS. CoMMtsstoNER's Bull. No. 3-0033-07)

(recognizing that the Texas Department of lnsurance repealed the Advisories following

the Lumbermens decision)).

                       lll.    DR. PEcHERo's IMpAtRMENT RATTNG REpoRT

       As a threshold matter, we note that Lumbermens does not challenge Dr. pechero's

credentials, skills,   or experience to provide an impairment rating under the         Texas

Workers' Compensation         Act.   Essentially, Lumbermens's issue on appeal is whether Dr.

Pechero's twenÇ-percent impairment rating for Portillo amounts to "no evidence" due to
its unreliability, or, stated another way, whether the rating report ¡s reliable and thus

"some evidence" to support the judgment in Portillo's favor.

A.       Standard of Review

         ln considering whether an impairment rating submitted to the Division is valid, a

reviewing court is not making a determination of impairmenl. Am. Zurich lns. Co.             v.

Samudio,370 S.W.3d 363, 368 (Íex. 2012). lnstead, the court is deciding a purely tegal

question: whether the proffered rating was made in accordance with                    statutory

requirements. /d.

        Where the trial court admits expert testimony and the appellant challenges, on

appeal, the expert testimony as constituting "no evidence," we consider whether the

expert testimony is reliable under a de novo standard of       review. Mo. Pac. R.R. Co.     v.

Navano,90 S.W3d 747,750 (Tex. App.-San Antonio 2002, no pet.). Generally, in

determining whether there is no evidence of probative force to support the trial court's

finding, we must view the evidence in the light most favorable to the verdict and must

credit favorable evidence     if   reasonable fact-finders could and disregard contrary

evidence unless reasonable fact-finders could       not.     See Del Lago Partners, !nc.     v.

Smith,307 S.W.3d 762,770 (Tex.2010) (citing        Ciúy of   Kellerv. Witson,68 S.W.3d    BO2,

822-27 (Tex. 2005)); see a/so Menell Dow Pharm., lnc. v. Havner,953 S.W.2d 706,711

(Tex.   1997). A no-evidence challenge will be sustained only     if:   (l) there is a complete
absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove   a vital fact is no more than a mere scintilla; or (4) the         evidence

establishes conclusively the opposite of a vital   fact.   City of Keller, 168 S.W.3d at 810.
Less than a scintilla of evidence exists when the evidence is "so weak as to do no more

than create a mere surmise or suspicion" of      fact. Kng   Ranch, Inc. v. Chapman, 118

S.W.3d 742, 751 (Tex. 2003) (internal citations omitted). More than            a   scintifia of

evidence exists when the evidence "rises to a level that would enable reasonable and

fair-minded people to differ in their conclusions." /d.

B.     Discussion

       It is undisputed that only two impairment rating reports are before us in this appeal:

Dr. Pechero's August 12, 2003 twenty-percent impairment rating report, admitted as

Defendant's Exhibit    1   ,   and Dr. Nachimson's ten-percent impairment rating       report,

adm¡tted as Plaintiffs Exhibit 3.

       1.   Dr. Pechero's Report

       The relevant portions of Dr. Pechero's impairment rating report state the following:

      [Portillo] has been under my care for injuries sustained to the lumbar spine
      as a result of a workþlrelated incident. lnitial examination revealed some
      spasms and tenderness to the low back. [Portillo] was able to flex to the
      knees with reproducible back pain. Repetitive toe raises and heel walking
      were performed poorly secondary to pain. Negative [straight-leg raises]
      both in sitting and lying position. Neurological examination was intact.
      Sensation was intact. X-rays of the lumbar spine revealed degenerative
      disc disease with collapse of L4-L5 and L2-L3 with a lateral fusion at L2-13
      noted on the right. MRI of the lumbar spine and thoracic spine revealed
      bilateral fact hypertrophy at L5-S1, disc protrusion noted at a higher level
      and af T11-12 and a disc bulge with hypertrophy with spinal stenosis at
      L4-L5. [Portillo] at this time was not a surgical candidate due to multiple
      medical problems. [Portillo] reported that epidural injections and nerve
      root block injections did not help.

      On follow up visits [Portillo] continued with pain and sensitization at L5-S1
      nerve root down the left leg. He had decreased sensation consistent with
      an S1 nerve root. Weakness of the S1 nerve root. Decreased reflex at S1
      bilateral. Weakness and instability to the lower extremities.

      Subsequently IPortillo] undenvent bilateral lumbar laminectomy with
      discectomy, foraminotomy bilaterally, posterior lateral fusion, with
       instrumentation and harvesting of bone graft with bone marrow implantation
       and allograft bone graft, and revision of scar on 8126102. [Portillo] did as
       well as can be expected postoperatively. The patient attended work
       hardening and physical therapy programs. The patient was advised on
       conservative treatment.

       ln my opinion[,] the patient has reached MMI and range of motion testing
       was done using AMA Guides to the Evaluation of Permanent lmpairment,
       4th Edition. The patient was placed in the Lumbosacral Category lV:
       Loss of Motion Segment lntegrity. The impairment assigned for
       Lumbosacral DRE is: 20o/o. ln summary the final estimate of impairment is
       20o/oWP.

On a separate page entitled "Lumbosacral Diagnosis Related Estimates," Dr. Pechero

wrote the following:

       This patient was placed in Lumbosacral Category           lV:   Loss of Motion
       Segment Integr¡ty

       Discription [sic] and Verification: The patient has loss of motion segment
       integrity. Loss of motion segment or structural integrity is defined as at
       least 5-mm of translation of one vertebra on another, or angular motion at
       the involved motion segment that is 11 degree more than that at an
       adjacent motion segment. Loss of structural integrity at the lumbosacral
       joint is defined as at least 15 degrees more angular motion than at the L4
       and L5 motion segment. A documented history of muscle guarding and
       pain is present. Neurologic abnormalities need not be present.

       Structural inclusions: (1) Greater than 50% compression of one vertebral
       body without residual neurologic compromise; (2) multilevel spine segment
       structural compromise as with fractures or dislocations, without residual
       neurologic motor compromise.

       The impairment assigned for Lumbosacral DRE        is:   20%

Finally, on the last page of his report, Dr. Pechero included the following chart for Portillo

entitled "Lumbosacral Range of Motion":



        Movement           Descriotion                                 Ranqe
        Lumbar Flexion     T12 ROM                                      42 45     45
                           Sacral ROM                                   11   l0   11
                           True lumbar flexion anqle                   3l    35   34
                               loo/o ot 5 degrees?                    I         lNol             I

                               Max¡mum true lumbar flexion angle
                               % lmpairment
                                                                      tGï--f--l
                                                                        t^rp
                                                                      nol^
        Lumbar                 TI2 ROM                                           t26 27          I
                                                                                     -To-l
        Extension              Sacral ROM                                        ltt
                               True lumbar flexion angle              I  15                 17   I

                               10o/o or 5 degrees?                    I Yes
                               Maxrmum true lumþar elitension angle
                               % lmpairment

        Straight   Leg         Right SLR                                  40      41       42
        Raising    (SLR),      10o/o or 5 degrees?                        Yes
        Right                  Maximum SLR                                42
        Straight   Leg         LEN   sLK                                          44       44
        Raising    (SLR),      10% or 5 degrees?                          Yes
        Left                   Maximum SLR                                45
        Lumbar     Right Lat   T12 ROM                                145         46  45
                                                                      ln
                                                                                                 I


        Flexion                Sacral ROM                                          12 10         I


                               True lumbar flexion angle              lgs        -t41 35

                                                                      E= l
                                                                                                 I

                               10o/o ot 5 degrees?                    I Yes
                               Maximum true lumbar flexion angle
                                                                                       l         I

                               % Impairment                           Oo/o   W
       Lumbar Left             T12 ROM                                                      44 I
       Lateral Flexion         Sacral ROM                                                   121
                               True lumbar flexion angle              134                  _a_l
                               10o/o or 5 degrees?
                               Maxrmum lrue lumþar llexton angle
                                                                      ITã-
                               % lmpairment
       Lumbar                  t osmon                                lBlankl
       Ankylosis in            % lmpairment                           O% WP
       Lateral Flexion

      Lumbermens objected to the admission of Dr. Pechero's report on the grounds

that it was unreliable because it was based upon the repealed Advisories rather than the

AMA Guides. ln the alternative, Lumbermens argued that, even if the Advisories were

not expressly referenced, Dr. Pechero failed to establish how he reached his opinion of

twenty-percent impairment rating, and the other evidence established that Dr. Pechero

could only reach twenty-percent impairment through the application of the Advlsories.

We will address each argument in turn.

      2. Analysis

                                                 10
       We first note that Dr. Pechero's report does not mention or cite to the Advisories in

reaching its impairment rating.       Io   the contrary, several references are made in Dr.

Pechero's report to the AMA Guides, Fourth Edition. The AMA Guides, Fourth Edition

states that "two approaches" are used to evaluate spine impairments. See AMA Guides

al 3194. The first is known as the "lnjury Model," also known as "Diagnosis-Related

Estimates" (DRE), which assigns patients to "one of eight categories, such as minor

injury, radiculopathy, loss of spine structure integrity, or paraplegia, on the basis of

objective clinical findings."   ld.   The second is known as the "Functional Model" or
"Range   of Motion Model" which measures the degree of spine motion and              assigns

"impairment percents according to limitations of mot¡on."          /d   According to the AMA

Guides, "[i]mpairment percents related to the range of motion were to be combined with

percents based on diagnoses or therapeutic approaches and neurologic impairments." /d

      The AMA Guides list specific procedures and inskuctions for physicians to follow

regarding the examination of     a patient, the review of special studies, comparing     the

patient's findings with    the criteria of        impairment categories, and determining

whole-person impairment using the impairment          table. /d at 31101. According to the
AMA Guides, lumbosacral spine impairments are described as "diagnosis-related

estimates (DREs) and are [classified] in categories."     /d.   The whole-person impairment

percents are based in categories designated I through      Vlll.   See rd

      DRE Lumbosacral Category             lV:    Loss of Motion Segment lntegrity has a
twenty-percent whole-person impairment and contains the following language:


      DescrÍption and Verification: The patient has loss of motion segment
      integrity (differentiator 5, Table 71, p. 109). Loss of motion segment or
      structural integrity is defined as at least 5 mm of translation of one vertebra

                                                 11
        on another, or angular motion at the involved motion segment that is l1o
        more than that at an adjacent motion segment. (Figs. 62 and 63, p. 98).
        Loss of structural integrity at the lumbosacral joint is defined as at least 'l50
        more angular motion than at the L4 and L5 motion segment.

        A documented history of muscle guarding and pain is present. Neurologic
        abnormalities need not be present. lf they are present, the examiner
        should consider using category V.

        Structural Inclusions: (1) Greater than 50% compression of one vertebral
        body without residual neurologic comprom¡se; (2) multilevel spine segment
        structural compromise, as with fractures or dislocations without residual
        neurologic motor compromise.

The AMA Guides explain "loss of motion segment integrity" in the following detail:

        A motion segment of the spine is defined as two adjacent vertebrae, an
        intercalated disk, and the vertebral facet joints. Loss of motion segment or
        structural integrity is defined as abnormal back-and-forth motion
        (translation) or abnormal angular motion of a motion segment with respect
        to an adjacent motion segment.

        The loss of integrity is defined as an antero-posterior motion or slipping of
        one vertebra over another . . . greater than 5mm for vertebra in the . . .
   .    lumbar spine; or a difference in the angular motion of two adjacent motion
        segments greater than l lo in response to sp¡ne flexion and extension.
        Motion of the spine segments is evaluated with flexion and extension
        roentgenograms.lsl Loss of integrity of the lumbosacral joint is defined as
        an angular motion between L-5 and S-1 that is 150 greater than the motion
        at the L-4, L-5 level.




       lf the difference in motion, measured by flexion and extension films,
       between two angles . . . is more than 'l5o at the lumbosacral joint or more
       than 11o at any other joint, there is a loss of structural integrity.

       The importance of careful and accurate roentgenographic studies cannot
        be overemphasized.

/d at 3/98-99.
       The AMA Guides further state that:

       s "Roentgenograms" are commonly called x-rays. See      ATToRNEy's ILLUSTRATED MED|CAL
DrcïoNARy, R3l (lda G. Dox et al. eds., 1997).

                                                 12
       lf the physician cannot place a patient's impairment in one of the categories,
       or if there is disagreement about the most appropriate category, [the
       physicianl should use the Range of Motion Model . . . to evaluate the
       magnitude of the impairment and identify the most appropriate category. . .

ld. a|31109.

       Lumbermens asserts that Dr. Pechero's report is "devoid of any analysis" to

establish Portillo's twenty-percent impairment rating. We         agree. lf no basis for   an

expert's opin¡on ¡s offered, or the basis offered provides no support, the opinion is merely

a conclusory statement and cannot be considered probative         evidence.    See City of San

Antonio v. Pollock,284 S.W.3d 809, 818 (Tex. 2009).

       Lumbermens points out that "while [Portillo's] injury involved L[4]-L5 and the

L5-S1, there is no mention of roentgenograms that show 150 more angular motion in the

sagittal plane of L5 and 51 than at L4 and L5 as required by [the AMA Guides]" to support

Dr. Pechero's finding of "loss of mot¡on segment integrity." Dr. Pechero's impairment

rating report mentions that Portillo "has loss of motion segment integr¡ty," and also notes

that x-rays were taken of Portillo's lower back which revealed "degenerative disc

disease." However, the report does not mention or cite any spine flexion and extension

roentgenograms conducted on Portillo to show the requisite 150 more angular motion in

the sagittal plane of L5 and S1 than at L4 and L5 as articulated by the AMA Guides.

       Furthermore,    Dr. Pechero's report contains         a   page entitled "Lumbosacral
Diagnosis Related Estimates," which essentially restates the requirements for a Category

lV impairment, without noting how it relates to Portillo's   case.   See AMA Guides at 3/102.

Undertitle 28, section 130.1 of the administrative code, a doctor assigning an impairment

rating must: (1) identify objective clinical or laboratory findings of permanent impairment


                                              13
for the current compensable injury; (2) document specific laboratory or clinical findings of

an impairment; (3) analyze specific clin¡cal and laboratory findings of an impairment; (4)

compare the results of the analysis with the impairment criteria and provide the following:

(i) A description and explanation of specific clinical findings related to each impairment,

including zero percent [ . . . ] impairment ratings; and (ii) A description of how the findings

relate to and compare with the criteria described in the applicable chapter of the AMA

Guides. The doctor's inability to obtain required measurements must be explained; (5)

assign one whole body impairment rating for the current compensable ¡njury; and (6) be

responsible for referring the injured employee to another doctor or health care provider for

testing, or evaluation, if additional medical information is required. The certifying doctor is

responsible for incorporating all additional information obtained into the report required by

this rule: (i) Additional information must be documented and incorporated into the

impairment rating and acknowledged          in the required report; (ii) lf the        additional

information is not consistent with the clinical findings of the certifying doctor, then the

documentation must clearly explain why the information is not being used as part of the

impairment   rating.   28 TEX. ADMIN. Cooe g'l 30.1 (cX3) (201 3) (Tex. Dee'r   or   lNS., Dtv. oF

WoRKERS'CoMP.).

       Here, Dr. Pechero did not conduct an analysis under section 130.1(c)(3), but

instead included the DRE Category lV "description and verification" and "structural

inclusions" language. Furthermore, the record shows that Dr. Pechero conducted

range-of-motion tests pursuant      to the AMA Guides, Fourth Edition, but, again, Dr.
Pechero made no reference to the findings from such tests in support                 of   Portillo's

assigned twenty-percent     rating. See AMA Guides at 3/109. ("lf the physician cannot
place a patient's impairment ¡n one of the categories, or if there is disagreement aboutthe

most appropriate category, [the physician] should use the Range of Motion Model").

without more support, such statements and findings cannot be considered as evidence         in

determining an impairment      rating. See Pollock,284 S.W.3d at 818.
        Lumbermens next argues that Dr. Pechero's reference          to Portillo's multi-level
lumbar fusion surgery in his impairment rating report is "significant" because the AMA

Guides, see AMA Guides at 3/100, state that surgery to treat an impairment does not

modify the original impairment estimate, which remains the same in spite of any changes

in signs or symptoms that may follow the surgery and inespective of whether the patient

has a "favorable or unfavorable response to treatment; however the Advisories state that

"multilevel fusion meets the criteria for DRE Category   lV."     See TEX. WoRKERS' CoMp.

Cotr¡tr¡'t.r ADVtsoRy   2003-10 (July 22, 2003). As such, Lumbermens argues that any

reference to Portillo's multilevel fusion to support the DRE Category lV twenty-percent

impairment rating is unreliable, invalid, and thus no evidence.

       We decline to read the AMA Guides as expansively as Lumbermens urges.

lnstead, we read the provision of the AMA Guides cited by Lumbermens narrowly as

reference to surgeries that may take place after a patient's original impairment rating was

estimated. See AMA Guides at 3/100. The AMA Guides' "General Approach and

Directions" for impairment-category examiners states that a "physician should start with

Table 70 (p. 3/108) as a guide toward the appropriate category for spine impairment."

/d   Table 70 states that if a patient has a condition of "previous spine operation øfhouf

loss of motion segment integrity or radiculopathy," the patient may meet the criteria for

DRE Category ll, lll, or lV; and if a patient had a "previous spine operation wifh loss of



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motion segment integrity or radiculopathy," the patient may meet the criteria for DRE

Categorylll, lV,orV.Seeld.at3/'108(emphasisadded). Thus,referencetoprevious

spine surgery in an impairment report is not unreliable per se under the AMA Guides,

Fourth Edition. Nevertheless, in this case, Dr. Pechero made no reference to Table 70 of

the AMA Guides in discussing Portillo's fusion surgery and supporting his twenty-percent

assignment. lnstead, Dr. Pechero's report appears to only cite the DREs. See Am.

Home Assur. Co. v. Poehler,323 S.W.3d 626, 631 (Tex. App.-Tyler 2010, pet. denied)

(finding no evidence in the record that a doctor used rable 70 of the AMA Guides to reach

an impairment rating).

       Finally, Dr. Pechero's November 5, 2003 letter to the Division in disagreement with

Dr. Nachimson's ten-percent impairment rating relies solely on the Advisories for support.

Specifically, Dr. Pechero wr¡tes that underthe Advisories, "multilevel fusion" surgery, like

the one performed on Portillo, "is equivalent to 'multilevel spine segment structural

compromise'per DRE lV, giving the patient [a] 20% [impairment rating]." lt is undisputed

that any reliance on the Advisories to support Portillo's twenty-percent impairment rating

fails under Lumbermens. See212 S.W.3d af 876-77.

       ln light of this record, we conclude that Dr. Pechero's report was unreliable and did

not constitute probative evidence of a twenty-percent impairment      rating.   See pollock,

284 S.W.3d at 818. Lumbermens established that Portillo's impairment rating of
twenty-percent was not supported by legally sufficient evidence. Lumbermens's sole

issue is sustained.

       Because we hold that the evidence supporting the twenty-percent impairment

rating was legally insufficient, the Division was presented with only one impairment rating,



                                            16
the ten-percent impairment rating made by Dr. Nachimson. Thus, Portillo's impairment

rating is ten percent. See Poehler, 323 S.W.3d at 632; cf. Am. Zurich Ins. Co               v.

Samudio,370 S,W.3d 363, 368-69 (permitting a remand to the Division for further

proceedings when the only impairment rating offered is invalid).

                                 lV.    ATroRñEy's FEES

        After we issued the original memorandum opinion in this cause, Lumbermens filed

a "Motion for Approval of Application for Attorney's Fees" in this Court with an attached

affidavit by Lumbermens's counsel and billing records. ln its motion, Lumbermens

asked this Court to grant an order finding that its counsel's attorney's fees incuned related

to this appeal were reasonable and necessary. See TEX. LAB. CoDE ANN. 5 408.222

(West, Westlaw through 2013 3d C.S.) (mandating that the amount of attorney's fees for

defending an insurance carrier in a workers' compensation action must be approved by

either the Division or "court," and determined by either the Division or court to be

reasonable and necessary), On June 27,2014 Portillo filed a response with the Court

stating that he was unopposed to Lumbermens's motion.

        On July 3, 2014, this Court issued an order of abatement and remanded the

cause   to the trial court for the limited purpose of holding a hearing to make                 a

determination of whether Lumbermens's attorney's fees incurred on and between April

17, 2013 and June 9, 2014 (1) should be approved and (2) such fees were reasonable

and necessary using the guidelines set forth in the labor    code.    See   id   On July   21   ,



2014, the trial court held a hearing and granted Lumbermens's motion for approval of

attorney's fees in the amount of $6,435.00, after finding that such fees were reasonable




                                             17
and necessary in this case.6 Subsequently, we reinstated the appeal. Because the

trial court has disposed of Lumbermens's pending motion, and it is no longer at issue

before us, we hereby dismiss it as moot.

                                          V.       CoNcLUStoN

       Having sustained Lumbermens's sole issue, we reverse the trial court's judgment

and render judgment that Portillo's impairment rating is ten percent.




                                                                     NA M. BENAVI




Delivered and filed the
9th day of October, 2014.




      6   Portillo did not contest Lumbermens's motion for approval of attorney's fees.

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