Affirmed and Memorandum Opinion filed January 27, 2015.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00731-CV

                        SABRINA TAYLOR, Appellant
                                        V.
THE HARTFORD INSURANCE COMPANY OF THE MIDWEST, Appellee

                   On Appeal from the 215th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2011-57408



                 MEMORANDUM OPINION

      This case concerns a judicial review of a workers’ compensation appeals
panel decision. The claimant, Sabrina Taylor, appeals from the trial court’s grant
of summary judgment favoring the carrier, The Hartford Insurance Company of the
Midwest. Taylor contends that the trial court improperly sustained a contest to her
affidavit of indigence and considered inadmissible evidence in granting the
summary judgment. She further asserts the trial court improperly failed to reach
the merits concerning her impairment rating. We affirm.

                                        Background

       The Texas Labor Code provides a three-step process for the administrative
resolution of disputes within the Texas Workers’ Compensation Commission. Tex.
Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 514-15 (Tex. 1995)
(discussing Chapter 410 of the Texas Labor Code, “Adjudication of Disputes”).
When a dispute arises, an informal benefit review conference is held. Id.; see also
Tex. Lab. Code §§ 410.021-.034. If that does not resolve the dispute by agreement
among the parties, a contested case hearing is held before a hearing officer
involving formal evidentiary and discovery rules. Garcia, 893 S.W.2d at 515; see
also Tex. Lab. Code §§ 410.151-.169.1 The hearing officer’s written decision is
considered final unless it is appealed to an internal appeals panel. Garcia, 893
S.W.2d at 515; see also Tex. Lab. Code §§ 410.201-.209. After exhaustion of
these administrative remedies, judicial review of the Commission’s final decision
may be sought. Tex. Lab. Code § 410.251; Garcia, 893 S.W.2d at 515. In a trial
based on judicial review of issues regarding compensation or eligibility for or the
amount of income or death benefits, the issues are limited to those decided by the
appeals panel and on which judicial review is sought. Tex. Lab. Code §§ 410.301-
.302. The party seeking such review must specifically set forth in its pleadings
“the determinations of the appeals panel by which the party is aggrieved.” Id. §
410.302.     The party seeking judicial review bears the burden of proof by a
preponderance of the evidence. Id. § 410.303.

       Taylor was injured on the job on December 16, 2005.                     Her resulting


       1
          Parties may agree to arbitrate their dispute rather than proceeding with the contested
case hearing. Tex. Lab. Code § 410.104(a); see also id. §§410.102-.121 (provisions governing
arbitration of workers’ compensation disputes).

                                               2
workers’ compensation claim was the subject of a benefit review conference on
August 27, 2010, but when issues remained unresolved, a contested case hearing
was held on October 14, 2010. According to the hearing officer’s Decision and
Order, the disputed issues raised and addressed in that proceeding were:

       1.    Does the compensable injury sustained on 12-16-05 include an
       injury to the lumbar and cervical disc bulges, depression, and head
       trauma (occipital lobe)?
       2.     What is the date of maximum medical improvement (MMI)?
       3.     What is the Claimant’s impairment rating (IR)?

The hearing officer determined that Taylor’s compensable injury of that date
included depression but did not include lumbar or cervical disk bulges or head
trauma. The hearing officer further found that Taylor reached maximum medical
improvement on December 24, 2007 and that her impairment rating is 9%. The
appeals panel did not disturb the hearing officer’s determinations. 2

       In her original petition in the district court, Taylor specifically complained
regarding the denial of coverage for injuries to certain body parts, including disk
bulges and head trauma as well as the sciatic nerve. She requested Hartford be
held medically and financially responsible for “all aspects of care involving
injuries to the claimant’s Cervical and Lumbar Disk Bulges, [Sciatic Nerve,] and
Head Trauma.”        Hartford filed a no-evidence motion for summary judgment,
which the trial court initially denied. Hartford subsequently filed a motion to
reconsider, and the trial court granted summary judgment favoring Hartford.

                                         Discussion

       In her first issue, Taylor asserts that the trial court erred in sustaining a

       2
         The appeals panel did not issue a written decision regarding Taylor’s timely appeal in a
timely manner. Because of its failure to do so, pursuant to Texas Labor Code section 410.204(c),
the hearing officer’s decision became the final decision of the appeals panel.

                                               3
contest to her affidavit of indigence. Although Taylor suggests that Hartford filed
the contest, it was actually filed by the Harris County District Clerk. Regardless,
on November 7, 2013, we ordered the clerk and the district court reporters to
prepare and file the appellate record in this case without Taylor having to make
advance payment of costs because the record of the indigence hearing was not
timely filed pursuant to Texas Rule of Appellate Procedure 20.1j(4). See Taylor v.
The Hartford Ins. Co. of the Midwest, No. 14-13-00731 (Tex. App.—Houston
[14th Dist.] Nov. 7, 2013, order). Thus, Taylor already has received the relief she
seeks under her first issue. We therefore overrule this issue as moot.

      In her second issue, Taylor contends the trial court considered inadmissible
evidence in granting summary judgment. Specifically, she insists that the trial
court should have stricken the deposition of Dr. Naveendra Korivi as it constituted
new evidence presented in the trial court which had not been before the workers’
compensation hearings officer or appeals panel. No such deposition appears in the
appellate record as being attached to Hartford’s motion for summary judgment or
its motion for reconsideration. Regardless, the motion for summary judgment
explicitly sought only a no-evidence summary judgment on grounds that Taylor
could produce no-evidence to support one or more elements of her cause of action.
See Tex. R. Civ. P. 166a(i) (governing no-evidence motions for summary
judgment); see also Poplin v. Amerisure Ins. Co., No. 01-13-00102-CV, 2013 WL
5885101 (Tex. App.—Houston [1st Dist.] Oct. 31, 2013, pet. denied) (mem. op.)
(affirming no-evidence summary judgment in judicial review of workers’
compensation appeals panel).

      Once a party moving for no-evidence summary judgment asserts that there is
no evidence of one or more essential elements of a claim or defense on which the
non-movant would have the burden of proof at trial, the burden then shifts to the

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non-movant to produce evidence raising a fact question on the challenged
elements. Tex. R. Civ. P. 166a(i); Rogers v. Tex. Sterling Const., L.P., No. 14-05-
01061-CV, 2007 WL 925784, at *2 (Tex. App.—Houston [14th Dist.] March 29,
2007, no pet.) (mem. op.). Consequently, the merit of such a motion does not turn
on any evidence submitted by the movant; indeed, “if a motion brought solely
under subsection (i) attaches evidence, that evidence should not be considered
unless it creates a fact question.” Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex.
2004).     There is no indication in the record that the trial court improperly
considered the evidence of which Taylor complains. Accordingly, we overrule her
second issue.

      In her third issue, Taylor asserts that the trial court erred in failing to adopt
one of two possible impairment ratings: the one found by the hearing officer and
left undisturbed by the appeals panel or the one that Taylor proffered through her
physician-expert, citing Labor Code section 410.306. As Hartford points out,
however, judicial review under these circumstances is limited to those issues
decided by the appeals panel and on which judicial review is sought by the party
seeking such review. See Tex. Lab. Code §§ 410.301-.302. In fact, the party
seeking review must specifically set forth in its pleadings “the determinations of
the appeals panel by which the party is aggrieved.” Id. § 410.302. As described
above, Taylor’s pleadings in this case sought review only regarding the denial of
coverage for injuries to certain body parts, including disk bulges and head trauma
as well as the sciatic nerve.           She requested Hartford be held medically and
financially responsible for “all aspects of care involving injuries to the claimant’s
Cervical and Lumbar Disk Bulges, [Sciatic Nerve,] and Head Trauma.” Taylor’s
pleadings do not challenge the determination as to her impairment rating.3 She

      3
          The only possible mention of an impairment rating in Taylor’s petition is “. . . Hartford .
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therefore has no basis to complain on appeal regarding the trial court’s failure to
make a ruling in regards to her impairment rating. See id. § 410.302; Tex. Mut.
Ins. Co. v. Ochoa, No. 04-09-00401-CV, 2010 WL 2844464, at *4 (Tex. App.—
San Antonio July 21, 2010, no pet.) (mem. op.). We overrule her third issue.

       Having overruled each of Taylor’s issues on appeal, we affirm the trial
court’s judgment.



                                             /s/       Martha Hill Jamison
                                                       Justice



Panel consists of Justices Boyce, Jamison, and Donovan.




. . has covered the costs associated with [the injury] Plaintiff sustained on December 16, 2005
with a Maximum Medical Improvement Rate of 9% as of December 24, 2007 . . . .” Even the
most liberal construction of Taylor’s pleadings cannot stretch this phrase into a challenge of her
impairment rating.

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