                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00109-CV


SHANNON KING                                                        APPELLANT

                                         V.

ZURICH AMERICAN INS. CO.                                             APPELLEE


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          FROM THE 348TH DISTRICT COURT OF TARRANT COUNTY

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                        MEMORANDUM OPINION1
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      In this worker’s compensation case, appellant Shannon King appeals the

trial court’s determination of her ineligibility for supplemental income benefits

(SIBs). We will affirm the judgment that Ms. King is ineligible for SIBs because

her impairment rating is below 15%.




      1
       See Tex. R. App. P. 47.4.
                               Background Facts

        Ms. King was injured on the job. She was sent to Dr. Joseph Jacko for a

determination of her impairment rating and maximum medical improvement date,

which determine her eligibility for SIBs under worker’s compensation. See Tex.

Lab. Code Ann. § 408.142(a)(1) (Vernon 2006).         Dr. Jacko’s first evaluation

resulted in an impairment rating of 10%, below the minimum 15% impairment

rating to qualify for SIBs. Id. Ms. King filed a request for a benefits review

conference, known as a ―DWC-45,‖ on October 6, 2005. Her request was denied

for lack of medical records, and Ms. King filed another DWC-45 on January 18,

2006.     In response to this second request, the Department of Worker’s

Compensation (DWC) requested that Dr. Jacko reevaluate his ratings. The DWC

then deleted the DWC-45 from Ms. King’s records.

        Dr. Jacko reevaluated Ms. King on February 23, 2006. He wrote the DWC

to admit that he miscalculated her impairment rating and that the correct

impairment rating was 20%. On September 17, 2007, an administrative hearing

was held. Zurich argued to the DWC that the 20% rating was invalid because Dr.

Jacko based the rating on DWC Advisories that had been declared invalid. See

Tex. Dep’t of Ins. v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870, 875 (Tex.

App.—Austin 2006, pet. denied) (holding that the DWC Advisories were an

invalid attempt at ad hoc rulemaking and were an ultra vires act by the DWC);

Appeal No. 071023-s (Tex. Dep’t of Ins., Div. of Worker’s Comp., July 23, 2007)

(―[T]he adoption of an [impairment rating] that is based on the Advisories is legal

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error and must be reversed.‖). Ms. King responded that because there was no

pending dispute regarding the impairment rating at the end of the first quarter of

benefits (which ended June 10, 2007), the 20% rating had become final under

the rules of the department and Zurich could not now complain. See 28 Tex.

Admin. Code § 130.102(h) (―If there is no pending dispute regarding . . . the

impairment rating prior to the expiration of the first quarter, . . . the impairment

rating shall be final and binding.‖).    The DWC determined that because Ms.

King’s first DWC-45 was denied or deleted, there was no ―pending dispute‖ as

required by rule 130.102(g) at the end of the first quarter. It held that the 20%

impairment rating was final. Zurich appealed the decision to the Commission

Appeals Panel, which reversed the decision, stating that Dr. Jacko’s amended

rating did not resolve the original dispute, and therefore a dispute was pending

and the 20% rating had not become final. The appeals panel sent the case back

for another contested case hearing to determine her correct impairment rating.

         Ms. King was sent to another doctor, Dr. Stauch, for another examination.

Dr. Stauch gave her an impairment rating of 5%. At the third hearing, DWC

determined that Dr. Jacko’s rating was not supported by the DWC guidelines and

that Dr. Stauch’s rating was the correct rating. Ms. King appealed this decision

to the DWC appeals panel.         The appeals panel affirmed the order of the

contested case hearing. Ms. King then filed for judicial review in the district

court.




                                     3
      Ms. King filed a motion for partial summary judgment on the issue that the

20% rating was final. Zurich filed a motion for partial summary judgment arguing

that the 20% rating was not final.      Zurich also filed a traditional motion for

summary judgment, claiming that the 20% rating is invalid and the only valid

rating is Dr. Stauch’s 5% rating.

      The trial court granted Zurich’s partial summary judgment motion. The

court denied Ms. King’s motion for partial summary judgment and Zurich’s

traditional motion for summary judgment.      Zurich then filed its first amended

motion for summary judgment, claiming that since the 20% rating was not final, it

was invalid and the only valid rating was Dr. Stauch’s 5% rating, which made Ms.

King ineligible for SIBs. The court granted Zurich’s amended motion. Ms. King

then appealed and in eleven points of error, complains of the denial of her motion

for partial summary judgment and the trial court’s orders granting Zurich’s partial

motion for summary judgment and its motion for full summary judgment.

                               Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,


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Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).        A plaintiff is entitled to

summary judgment on a cause of action if it conclusively proves all essential

elements of the claim. See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710

S.W.2d 59, 60 (Tex. 1986). A defendant who conclusively negates at least one

essential element of a cause of action is entitled to summary judgment on that

claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010); see

Tex. R. Civ. P. 166a(b), (c).

      When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both parties’

summary judgment evidence and determine all questions presented.            Mann

Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle Bank Nat’l Ass’n,

300 S.W.3d 746, 753 (Tex. 2009).        The reviewing court should render the

judgment that the trial court should have rendered. Mann Frankfort, 289 S.W.3d

at 848.

                                  Discussion

      I.   Finality of the 20% impairment rating under Rule 130.102(h)2

      Because all of Ms. King’s points of error require a determination of whether

the 20% impairment rating had become final under the rules of the DWC, we




      2
        Ms. King’s motions and briefs reference rule 130.102(g). This rule was
renumbered in 2009 and is now rule 130.102(h). See 34 Tex. Reg. 2138 (2009)
(codified as an amendment to 28 Tex. Admin. Code § 130.101–.109).


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address her points of error 3A, 3B, 4A, 4B, and 5 first. See Tex. R. App. P.

47.1.0.

        Ms. King argues that the 20% impairment rating became final under

section 130.102(h) of the administrative code.          See 28 Tex. Admin. Code

§ 130.102(h) (Tex. Dep’t of Ins., Div. of Workers’ Comp., Eligibility for

Supplemental Income Benefits; Amount). That rule states, ―If there is no pending

dispute regarding . . . the impairment rating prior to the expiration of the first

quarter, . . . the impairment rating shall be final and binding.‖ Id.

        The parties agree that Ms. King disputed Dr. Jacko’s initial rating by filing a

request for a benefits review conference. The first request was denied. The

second request resulted in a letter of clarification sent to Dr. Jacko. In response

to the letter, Dr. Jacko reexamined Ms. King and gave her a new impairment

rating of 20%. He wrote that he ―erred in assigning her first impairment rating‖

and was ―not sure why [he] previously assigned her an impairment rating of

10%.‖

        Ms. King claims that after the letter of clarification was sent, the original

dispute request was ―deleted‖ from the records. Ms King failed to attach as an

exhibit to any of her motions the page of the DWC’s records showing the

deletion.3 However, the Texas Administrative Code states that ―[a] dispute may

        3
       The DWC appeals panel notes that the deletion was marked in an entry
marked ―Sequence 16.‖ The only copy of the DWC electronic notes in the court
record, which were attached as an exhibit to Zurich’s motion for partial summary
judgment, ends at Sequence 15.


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not be revoked or withdrawn to allow . . . the first valid assignment of [impairment

rating] to become final except by agreement of the parties.‖ 28 Tex. Admin.

Code § 130.12(b)(3) (Tex. Dep’t of Ins., Div. of Workers’ Comp., Finality of the

First Certification of Maximum Medical Improvement and/or First Assignment of

Impairment Rating). There is no evidence of agreement between the parties that

the dispute be revoked or withdrawn; it appears to have been a unilateral act by

the DWC.

      Because the dispute was not revoked or withdrawn by agreement of the

parties, it could only no longer be pending if it had been resolved. Ms. King

produced no evidence of resolution, and she points to no case law supporting her

contention that deletion from the electronic record system is the same thing as a

resolution of a claim. On the contrary, the DWC appeals panel stated that the

deletion ―does not indicate that the dispute regarding the [impairment rating] was

resolved.‖   Therefore, as of February 23, 2006, Ms. King had two different

impairment ratings—10% and 20%. On February 15, 2008, she received a third

impairment rating of 5%. It was not until June 30, 2008, that DWC made a final

determination as to Ms. King’s rating. The evidence supports the trial court’s

determination that the 20% impairment rating was not made final by rule

130.102(h). We therefore hold that the trial court did not err in granting Zurich’s

motion for partial summary judgment and denying Ms. King’s motion for partial

summary judgment on the issue of finality. We overrule Ms. King’s points 3A,

3B, 4A, 4B, and 5.

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      II.   Ms. King’s Impairment Rating

      Ms. King’s points of error 2A and 2B complain of the trial court’s

determination that Ms. King’s impairment rating is 5% as certified by Dr. Stauch.

The Texas Workers’ Compensation Act requires that the trial court adopt one of

the impairment ratings assigned by the doctors in the case. Tex. Lab. Code Ann.

§ 401.011(15) (Vernon Supp. 2010); Am. Zurich Ins. Co. v. Samudio, 317 S.W.3d

336, 346 (Tex. App.—Houston [1st Dist.] 2010, pet. filed). In the present case,

there are three possible impairment ratings: Dr. Jacko’s first rating of 10%, Dr.

Jacko’s second rating of 20%, and Dr. Stauch’s rating of 5%. Therefore the trial

court must have chosen one of these ratings.

      Dr. Jacko admitted that his first impairment rating was incorrect, and

neither party argues that it is Ms. King’s correct rating. Dr. Jacko’s second

rating was based on advisories which have been held to be invalid and were

withdrawn by the DWC. See Lumbermens, 212 S.W.3d at 876–77; Comm’r

Bulletin # B-0033-07 (July 18, 2007). Dr. Jacko’s second rating is therefore

invalid.    See Deleon v. Royal Indem. Co., No. 03-08-00532-CV, 2010 WL

323128, at *3–4 (Tex. App.—Austin Jan. 27, 2010, pet. filed) (mem. op.)

(holding that an impairment rating based on the withdrawn advisories was

invalid); Appeals Panel No. 071023-s (July 23, 2007) (―[T]he adoption of an

[impairment rating] that is based on the Advisories is legal error and must be

reversed.‖). Because both of Dr. Jacko’s impairment ratings are incorrect, the

only valid impairment rating for Ms. King is Dr. Stauch’s rating of 5%. The

                                   8
evidence therefore supports the trial court’s determination that Ms. King’s

impairment rating was 5%. The court did not err in granting summary judgment

on the determination of Ms. King’s impairment rating. We overrule Ms. King’s

points 2A and 2B.

      III. Ms. King’s Entitlement to Supplemental Income Benefits

      Ms. King’s points 1A and 1B address her entitlement to SIBs. Her point 4C

addresses Zurich’s amended motion for full summary judgment in which Zurich

argued that Ms. King’s impairment rating made her ineligible for SIBs. As a

matter of law, Ms. King is only entitled to SIBs if her impairment rating is 15% or

more. See Tex. Lab. Code Ann. § 408.142(a)(1). Because we affirmed the trial

court’s determination that Ms. King’s impairment rating is 5%, we also agree that

she does not meet the impairment rating threshold for SIBs. Because she is not

eligible for SIBs, the trial court did not err in granting Zurich’s amended motion for

full summary judgment. Neither did the trial court err in determining that the

other criteria for SIBs eligibility were moot because she does not meet the

impairment rating threshold. We overrule Ms. King’s points of error 1A, 1B, and

4C.




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                                      Conclusion

     Having overruled all of Ms. King’s points of error, we affirm the trial court’s

judgment.



                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: February 17, 2011




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