Joe Ballard v. Arch Insurance Company and Transforce Inc.
2015 Tex. App. LEXIS 11089
| Tex. App. | 2015Background
- Ballard, with chronic glaucoma, was injured when a box struck his left eye, and the injury was treated as compensable.
- Ballard alleged the contusion aggravated pre-existing glaucoma, causing intraocular pressure spikes and possible permanent blindness.
- Carrier Parties maintained the injury did not extend to glaucoma and that any vision loss was due to pre-existing glaucoma.
- A designated doctor (Dr. Rothenberg) evaluated Ballard; issues included MMI date and impairment rating; the hearing officer's findings were reviewed.
- The trial court granted summary judgment on all issues; Ballard appealed challenging MMI date, impairment rating, designation of Dr. Rothenberg, and extended injury to glaucoma.
- Texas appellate court affirmed, holding Rothenberg qualified, no evidence of extended injury to glaucoma, MMI around January 25, 2011, and impairment rating zero percent.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dr. Rothenberg qualified to evaluate Ballard | Ballard argues Rothenberg lacks appropriate ophthalmic qualifications. | Carrier Parties contend Rothenberg is a designated doctor qualified by credentials and experience. | Rothenberg qualified to perform the designated-doctor evaluation. |
| Whether the compensable injury extended to glaucoma | Evidence shows possible aggravation of glaucoma by the injury. | Record lacks causation evidence linking injury to glaucoma; aggravation not shown. | No substantial evidence that the injury extended to glaucoma; no fact issue on extension. |
| Date of maximum medical improvement (MMI) | Ballard contends there is a fact issue about when MMI occurred. | Dr. Rothenberg and others indicate MMI around January 25, 2011; Wooten's opinion aligns. | BMIs found to be on or near January 25, 2011; no issue for summary judgment. |
| Ballard's impairment rating | Rothenberg's impairment rating should be re-evaluated; other ratings conflict. | Rothenberg's zero percent rating is the sole valid impairment rating for the compensable injury; Wooten's rating includes glaucoma. | Rothenberg's zero percent rating controlling; no fact issue validly supporting impairment >0%. |
Key Cases Cited
- Ausaf v. Highland Ins. Co., 2 S.W.3d 363 (Tex. App.—Houston [1st Dist.] 1999) (limits jury considerations to valid impairment ratings presented to the Division)
- Fireman’s Fund Ins. Co. v. Weeks, 259 S.W.3d 335 (Tex. App.—El Paso 2008) (impairment rating must reflect permanent impairment of the whole body from the current injury)
- Am. Zurich Ins. Co. v. Samudio, 370 S.W.3d 363 (Tex. 2012) (threshold for adopting an impairment rating under §410.306(c))
- M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22 (Tex. 2000) (traditional and no-evidence standards for summary judgment in medical disputes)
- Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (standard for de novo review of summary judgments in Texas )
- Tex. Workers’ Compensation Com’n v. Garcia, 893 S.W.2d 504 (Tex. 1995) (modulates admissibility of Division findings when substantial change in condition is shown)