Opinion
No. 04-16-00663-CV
11-08-2017
UNIVERSITY OF TEXAS SYSTEM, Appellant v. Margot MENJIVAR, Appellee
MEMORANDUM OPINION
From the 438th Judicial District Court, Bexar County, Texas
Trial Court No. 2013-CI-15666
Honorable Gloria Saldana, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Marialyn Barnard, Justice Rebeca C. Martinez, Justice Irene Rios, Justice AFFIRMED
Appellee Margot Menjivar filed the underlying lawsuit challenging a decision by the Appeals Panel of the Texas Department of Insurance, Division of Workers' Compensation ("Department") that her first certification of maximum medical improvement (MMI) and impairment rating (IR) was final. A jury found the first certification was not final based on compelling medical evidence that Menjivar received improper or inadequate treatment for her injury before the certification date. University of Texas System appeals asserting the evidence is legally insufficient to support the jury's finding. We affirm the trial court's judgment.
Maximum medical improvement is "the point at which the employee's injury will not materially improve with additional rest or treatment." Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 253 (Tex. 1999). "The date of maximum medical improvement is fixed when an examining doctor certifies that no further material recovery or lasting improvement can reasonably be anticipated." Id.
An employee's impairment rating "is the percentage of the whole body's permanent impairment." Rodriguez, 997 S.W.2d at 253. An employee receives three weeks of impairment income benefits for each percentage point of impairment. TEX. LAB. CODE ANN. § 408.121(a) (West 2015).
BACKGROUND
On March 31, 2011, Menjivar was working for the University when she fell and injured her shoulder. On April 1, 2011, she was examined by Dr. Matilda Perkins who ordered physical therapy. On May 6, 2011, Dr. Perkins ordered an MRI which was not undertaken until July 27, 2011. The MRI revealed a rotator cuff tear.
On August 10, 2011, Menjivar was examined by Dr. Andrew Whaley who ordered a DEXA scan to determine the extent of her osteoporosis and gave her an injection for her pain. On September 16, 2011, Dr. Whaley opined that Menjivar was not "amenable to a cuff repair" due to her osteoporosis, but she "is probably going to be best served with a reverse shoulder arthroplasty." Because Dr. Whaley did not perform that type of procedure, he referred her to Dr. Anil Dutta. Dr. Whaley informed Menjivar that if she was not determined to be a candidate for reverse shoulder arthroplasty "she may be as good as she is going to get. She has a horrible injury to the shoulder but unfortunately there is not much we can offer her surgically."
On October 26, 2011, Menjivar had her first office visit with Dr. Dutta. Dr. Dutta noted Menjivar "has had a significant injury" but could not provide "a strong prognostic decision" without the MRI imaging. Although Menjivar had additional office visits with Dr. Dutta on November 23, 2011, and December 21, 2011, the notes reflect that Dr. Dutta still did not have the MRI images on either of those visits. In his November 23, 2011 note, Dr. Dutta stated he could not make any decisions or provide any additional injections until he had the MRI imaging.
On January 4, 2012, Menjivar had another office visit. Dr. Dutta's January 6, 2012 notes state the MRI images "were not available on Epic charting system" but "were reviewed over the holiday season." The "findings [were] consistent with a partial thickness tear." The notes state Dr. Dutta discussed the findings and treatment options with Menjivar, including surgical and nonsurgical options, and Menjivar decided to "continue another trial of nonoperative treatment, including a subacromial injection and exercise program." Dr. Dutta's plan was to schedule another clinical review in six to eight weeks at which he would "assess [Menjivar's] response to continued nonoperative treatment."
On February 1, 2012, Dr. Juan Capello, a designated doctor selected by the Department, performed a first certification of MMI and IR. Dr. Capello examined Menjivar and performed a functional abilities evaluation. Dr. Capello opined Menjivar reached MMI on August 10, 2011 and assigned a zero percent IR.
The Department may request an examination by a designated doctor if an employee's treating doctor fails to respond to a request for an evaluation of MMI or certifies the employee has not reached MMI. See 28 Tex. Admin. Code § 130.4; Tex. Mut. Ins. Co. v. McGahey, No. 04-15-00175-CV, 2016 WL 2753981, at *3 (Tex. App.—San Antonio May 11, 2016, no pet.) (describing procedure for requesting designated doctor). We note statutory MMI is not reached until the end of the 104th week after the date temporary income benefits began to accrue. See 28 Tex. Admin. Code § 130.4(a).
On March 28, 2012, Menjivar had another office visit with Dr. Dutta. Dr. Dutta's April 3, 2012 notes state Menjivar had "failed conservative treatment." Dr. Dutta was "going to recommend a scope, decompression, a clavicle resection, and cuff repair for comprehensive treatment of her problems."
On April 18, 2012, Menjivar had another office visit with Dr. Dutta. Dr. Dutta's May 1, 2012 notes state he was "going to again submit for surgery" and was "not sure why [Menjivar] is having trouble getting this approved." The notes further state Dr. Dutta contested the decision made by Dr. Capello.
On April 18, 2012, Dr. Dutta wrote a letter contesting the 0% impairment rating. The letter states Menjivar has "a full-thickness rotator cuff tear" which has not been "addressed surgically." The letter further states "it has been well established in the literature that full-thickness tears that are repairable and are repaired result in significant improvement in shoulder function and quality of life." The letter concludes Dr. Dutta was offering Menjivar the opportunity to have her rotator cuff tear "addressed with surgery."
On August 8, 2012, Menjivar had an office visit with Dr. Mark Alan Foremen because there was a possibility that Dr. Dutta was going to be deployed. Dr. Foreman also recommended surgery.
Menjivar was next examined by Dr. Foreman on September 18, 2012. Dr. Foreman's notes state Menjivar had been approved for surgery "as long as we do it in the next week and a half." Dr. Foreman performed the surgery on September 20, 2012.
Menjivar pursued administrative proceedings challenging the finality of Dr. Capello's first certification of MMI and IR. On May 31, 2013, the Department's hearing officer issued his decision concluding the first certification was final. On August 16, 2013, the Department's Appeals Panel agreed with the hearing officer's decision. Menjivar then filed the underlying lawsuit seeking judicial review of the Department's decision.
At trial, Menjivar testified regarding her injury and treatment, and her medical records were introduced into evidence. Menjivar testified the surgery Dr. Foreman performed helped "with the pain, but not that much with the arm movement." Menjivar explained before the surgery, she did not "have any movement from my arm, and now I do." Menjivar continued to be prescribed medication for her pain, and Dr. Foreman gave her an injection for the pain two or three months before trial. On recross-examination, Menjivar further explained that prior to the surgery, she "could not do anything with her arm almost. The pain was intolerable. I could hardly move or lift anything. And after the surgery I am at least able to lift some things."
Dr. Casey Gregory Cochran was retained by the Department to review Dr. Capello's certification. Dr. Cochran testified his primary clients are insurance carriers who send him patient charts to review. Dr. Cochran served on a medical quality review panel for six years to determine whether medical treatment was appropriate or excessive. Dr. Cochran testified he is not an orthopedic surgeon but did an orthopedic rotation during his residency training. Dr. Cochran testified he is board certified in occupational and preventative medicine and holds additional credentials in disability and impairment medicine. Dr. Cochran also taught the designated doctor certification course in Texas for eighteen years and still served as a designated doctor. Dr. Cochran stated a designated doctor is not required to be a surgeon to certify MMI or to assign an IR.
In conducting his review, Dr. Cochran reviewed Menjivar's medical records. Dr. Cochran opined Menjivar received adequate and proper treatment prior to Dr. Capello's certification exam, including medication, physical therapy, and injections. Dr. Cochran opined Menjivar did not meet the treatment guidelines for rotator cuff repair surgery. Specifically, Menjivar did not have a positive response to anesthetic injection or loss of abduction, and she had advanced osteoporosis. Dr. Cochran also opined Menjivar did not meet the treatment guidelines for reverse arthroplasty suggested by Dr. Whaley because she did not have significant osteoarthritis of the joint. Dr. Cochran explained reverse arthroplasty is only used if a patient has both a rotator cuff tear and arthropathy. Dr. Cochran was unsure of the reason Dr. Whaley would recommend reverse arthroplasty when Menjivar did not have arthropathy.
Dr. Cochran further opined that Dr. Capello's assessment of MMI was proper. Dr. Cochran explained MMI does not mean a person is symptom-free because some people are never symptom- free; instead, MMI is "that point where they're not going to get substantially better based upon what treatments our guidelines recommend." Dr. Cochran further explained people continue to receive treatment after reaching MMI. Dr. Cochran also opined Dr. Capello's assessment of IR was accurate.
Dr. Cochran was asked about the steps a physician's office can take when seeing a new patient who has existing medical records and films. Dr. Cochran responded the physician's office could call the other physician's office and that office has ten days to respond to the request by law. Dr. Cochran further stated the physician's office could call the place that performed the imaging studies and could usually have the films the same day or the next day.
Dr. Cochran agreed MMI and IR are not based on actual improvement but on anticipated treatments and expected improvement. After reviewing Dr. Foreman's notes, Dr. Cochran stated surgery might be considered based on Dr. Foreman's observations that Menjivar had positive impingement, weakness in abduction, and a rotator cuff tear; however, Dr. Cochran opined Menjivar did not meet the treatment guidelines for surgery. With regard to Dr. Dutta's and Dr. Foreman's opinions that Menjivar could expect improvement after surgery, Dr. Cochran testified her failure to meet the guidelines for surgery would have "colored [his] expectation." Dr. Cochran testified improvement chances increase when people meet the guidelines. Dr. Cochran also noted Menjivar did not have a good result from surgery although the University agreed to pay for the surgery and postoperative care.
After hearing the evidence, the jury was instructed that a certification of MMI and IR becomes final "if an injured worker fails to present compelling evidence of improper and inadequate treatment of the injury before the date of the certification." The jury found the first certification of MMI and IR did not become final. The trial court entered judgment based on the jury's finding. The University appeals.
JUDICIAL REVIEW AND STANDARD OF REVIEW
Menjivar was entitled to seek judicial review of the Appeals Panel's decision under a modified de novo review. See Rodriguez, 997 S.W.2d at 254; Liberty Mut. Ins. Co. v. Burk, 295 S.W.3d 771, 776 (Tex. App.—Fort Worth 2009, no pet.). "The fact finder 'does not review [the appeals panel decision] for reasonableness, but rather independently decides the issues by a preponderance of the evidence.'" Liberty Mut. Ins. Co., 295 S.W.3d at 776 (quoting Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 531 (Tex. 1995)). "The party challenging the appeals panel decision bears the burden of proof by a preponderance of the evidence." Id.; see also TEX. LAB. CODE ANN. § 410.303 (West 2015).
In this appeal, the University challenges the legal sufficiency of the evidence to support the jury's finding. See Liberty Mut. Ins. Co., 295 S.W.3d at 777 (noting appellant can challenge legal sufficiency of the evidence issues). Because Menjivar had the burden of proof at trial, we sustain the University's legal sufficiency challenge to the jury's finding "if our review of the evidence demonstrates a complete absence of a vital fact, or if the evidence offered is no more than a scintilla." Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2013). "More than a scintilla exists when the evidence would enable reasonable and fair-minded people to reach different conclusions." Id. "We regard evidence that creates a mere surmise or suspicion of a vital fact as, in legal effect, no evidence." Id. "We consider the evidence in the light most favorable to the judgment, 'crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.'" Id. (quoting City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005)).
FINALITY OF FIRST CERTIFICATION AND EXCEPTIONS TO FINALITY
Generally, an employee's first certification of MMI and assignment of IR is final if the certification and assignment are not disputed "before the 91st day after the date written notification of the certification [and] assignment is provided to the employee." TEX. LAB. CODE ANN. § 408.123(e) (West 2015). Section 408.123(f) of the Texas Labor Code, however, contains several exceptions to the general rule regarding finality. Id. at § 408.123(f). Pertinent to this appeal, an employee's first certification of MMI and assignment of IR may be disputed after the general date for finality if "compelling medical evidence exists of ... improper or inadequate treatment of the injury before the date of the certification [and] assignment." Id. at § 408.123(f)(1)(C).
SUFFICIENCY
Although couched in terms of a legal sufficiency review, the University's primary complaint on appeal is that the evidence is legally insufficient because Menjivar could not rely on the evidence in her medical records to provide compelling medical evidence that the treatment of her injury before the date of the certification was improper or inadequate. Instead, the University argues Menjivar was required to present expert testimony that her treatment was improper or inadequate. We disagree.
In support of its argument, the University relies on cases discussing when expert testimony is necessary to establish causation as to medical conditions. See State Office of Risk Mgmt. v. Adkins, 347 S.W.3d 394, 399-400 (Tex. App.—Dallas 2011, no pet.); W.C. LaRock, D.C., P.C. v. Smith, 310 S.W.3d 48, 56 (Tex. App.—El Paso 2010, no pet.). Even in that context, however, the Texas Supreme court has recognized "non-expert evidence alone is sufficient to support a finding of causation in limited circumstances where both the occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence." Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007); see also Ramirez v. Colonial Freight Warehouse Co., 434 S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (holding plaintiff's testimony regarding his pain after being hit by truck, as corroborated by his medical records, was sufficient evidence to defeat a no-evidence motion for summary judgment on causation, noting "complaints of pain and general soreness fall within the general knowledge and experience of lay persons").
In the instant case, the statute expressly allows an employee's first certification of MMI and assignment of IR to be disputed by compelling medical "evidence" TEX. LAB. CODE ANN. § 408.123. Menjivar's medical records are clearly medical evidence. See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995) (noting diagnoses contained in medical records are admissible); In re Estate of Kremer, No. 09-10-00066-CV, 2011 WL 846137, at *7 (Tex. App.—Beaumont Mar. 10, 2011, pet. denied) (mem. op.) (concluding medical records contained "a number of facts the jury was entitled to consider in reaching its conclusions on the ultimate issues"). Furthermore, it is certainly within the general experience and common sense of laypersons to evaluate whether delays in medical treatment are improper. In this case, the jury was presented with medical records documenting a two-month delay in Dr. Dutta obtaining the MRI images despite his notes that he could not make any prognostic decisions in the absence of those images. From this evidence, the jury could have believed Menjivar's treatment was improper due to the delay, and Dr. Dutta's treatment, in the absence of the MRI images, was inadequate.
Even if we were to agree, however, that some expert testimony was necessary to support the medical records, Dr. Cochran's testimony provides that support. With regard to Dr. Dutta's delay in obtaining the MRI images, Dr. Cochran testified MRI images could usually be obtained the same day a physician's office places a phone call to the location where the imaging studies were performed. Alternatively, Dr. Cochran testified the law required a former treating physician's office to provide those images to a subsequent treating physician's office within ten days of a request being made. Therefore, based on Menjivar's medical records and Dr. Cochran's testimony, the jury could have found Menjivar's treatment before the date of the first certification was improper based on the delays in her treatment caused by Dr. Dutta's delays in obtaining the MRI results.
CONCLUSION
Because the record contains more than a scintilla of evidence to support the jury's finding that Menjivar presented compelling medical evidence of improper or inadequate treatment of her injury before the date of certification, the evidence is legally sufficient to support the jury's finding. Accordingly, the University's issue is overruled, and the trial court's judgment is affirmed.
Rebeca C. Martinez, Justice