# Linda Baldwin v. Zurich American Insurance Co. > Texas Court of Appeals, 3rd District (Austin) · January 27, 2015 URL: https://www.frixlaw.com/law-library/cases/4044380 ## Case - **Court:** Texas Court of Appeals, 3rd District (Austin) - **Decided:** January 27, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4044380 ## Opinion text ^SuojJS January 27, 2015 No. 03-14-00457-CV In the UNITED STATES COURT of APPEALS for the THIRD CIRCUIT LINDA BALDWIN, Plaintiff - Appellant ZURICH AMERICAN INSURANCE COMPANY, Defendant - Appellee On Appeal from the 261st District Court of Travis County,Texas CAUSE NO. D-l-GN-13-001281, Gisela D. Triana, Judge Presiding REPLY APPELLATE BRIEF ON SUBMISSION AMENDED r^RECEIVEDN JAN 2 7 Z015 THIRD COURT OF AFPtyis * V JEFFREY D.KYiF S Linda Baldwin 10151 Dorrel Lane Apartment 1164 Las Vegas, NV 89149 512 605-7638 PRESS FIRMLY TO SEAL U.S. POSTAGE PAID LAS VEGAS.NV 89130 iiiiiiiii -rin'i- sjj-'J- UNITCOSTATES HnuOMT r o s m t SCItVICE 1006 7871 $5.75 00015614-06 FROM: ft JU^ £? '^ru TO: 7^ 6»vJt fw >n. "Sox iAS^ . = .:.' L k^o+n p^JNOo 127ll-aS^lj_ ily 2013 VISITUSATUSPS.C0M( UNITEDSTATES x9.5 ORDER FREE SUPPLIES ONLINE POSTAL SERVICE, TABLE OF CONTENTS Indignity of Parties and Pro se ii Index of Authorities iv Equitable Toll 6 Statement of Reply Issues Presented 1 Standard Review of Equitable Toll 6 Statement of the Case 2 Statement of Reply Issues Presented 1 Statement of Facts 3 Summary of the Argument 4 Argument and Authority 6 1. Ms. Baldwin exhausted her administrative remedies, and was aggrieved by a flnal decision of the TWCC appeal panel, and is entitled to judicial review under Texas Labor Code Sec. 410.251 6 1. Ms. Baldwin could not have brought constitutional challenge at the administrative level 7,8 Prayer 9 Certificate of services 10 APPENDEX 11 Zurich signed affidavit 1 Designated Doctor Examine March 5, 2008 2 Designated Doctor Examine April 15, 2010 3 Functional Capacity Evaluation 03/10/08 (missing records) 4 Dr. Manish Patel Examine 04/24/08 (missing records) 5 Dr. Umesh G. Gadaria Examine 05/14/08 (missing records) 6 W DENTITY OF PARTIES AND COUNSEL The following is a complete list of all parties to the court's final judgment, as well as the name and address of all and appellant as pro se, and the name of the trail judge presiding below. PARTIES APPLELANT, Plaintiff, pro se 11051 Dorrell Lane Apartment 1164 Las Vegas, Nevada 89166 Ms. Linda Baldwin, Pro se APPLELEE Defendant: Zurich American Insurance Company Jessica McCarthy, Attorney for Defendant Robert D. Stokes Lynette Phillips FLAHIVE, OGDEN & LATSON P.O. Drawer 201329 Austin, Texas 78720 TRIAL JUDGE PRESIDING BELOW The Honorable Gisela D. Triana 200th District Court Travis County, Texas TABLE OF CONTENTS PAGE STATEMENT OF REPLY ISSUES PRESENTED FOR REVIEWl 1 FACTS 3 ZURICH AMERCIAN INSURANCE FAILED TO PROVIDE DR. FERNADEZ ALL OF MS. BALDWIN MEDICAL RECORDS PURSAUNTDWC Rule 126.7 (i) TATEMENT OF REPLY ISSUES PRESENTED FOR REVIEW 4 EQUITABLE TOLL 5,6,7 STANDARD OF REVIEW EQUITABLE TOLL 6 ARGUMENT AND AUTHORITIES 6 in CASE LAW Waffle House,Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010) 1 SEC v. Blavin, 760 F.2d 706, 711 (6th Cir. 1985) 3 Rodriquez v. Elo, 195 F. Supp. 2d 1253 6 Collier v. City of Pasadena 7 STATUE DWC Rule 126.7 (i) 5 Texas Labor Code sec. 410.251 6 GOVERMENTMENT CODE Code sec. 662.003 8 PRAYER 9 CERTIFICATE OF SERVICE 10 APPENDEX 11 IV STATEMENT OF REPLY ISSUES PRESENTED FOR REVIEW Issue Number One Ms. Baldwin exhausted her administrative remedies and is seeking judicial review of a final decision of the TWCC Appeal Panel. That the Appeal Panel cited lack of jurisdiction as its reason for missing Ms. Baldwin's appeal does not deprive the district court ofjurisdiction over the appeal. Ms. Baldwin's petition in the district court challenges the TWCC Appeal Panel's finding of a lack of jurisdiction. Reply Issue Number Two Equitable tolling is a principle of law stating that a limitation shall not bar a claim in cases where the equitable tolling cannot be applied against the United States since the Spending Clause has been interpreted by the Supreme Court to only vest Congress with the authority to waive sovereign immunity, and statutes of limitation are interpreted as a condition on the waiver of sovereign immunitythat limit thejurisdictionof a court to hear cases against the United States. Reply Issue Number Three Newly Discovered Evidence means a party seeking a new trial on grounds of newly discovered evidence must demonstrate that: (1) the evidence has come to his or her knowledge since the trial, (2) the failure to discover the evidence soonerwas not due to a lack of diligence, (3) the evidence is not cumulative, and (4) the evidence is so material it would probably produce a different result if a new trial were granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). No. 03-14-00457-CV In the UNITED STATES COURT of APPEALS for the THIRD CIRCUIT LINDA BALDWIN, Plaintiff - Appellant ZURICH AMERICAN INSURANCE COMPANY, Defendant - Appellee On Appeal from the 261st District Court of Travis County, Texas CAUSE NO. D-l-GN-13-001281, Gisela D. Triana, Judge Presiding REPLY APPELLATE BRIEF ON SUBMISSION Amended TO THE HONORABLE COURT OF APPEALS, on or about March 6, 2013, the Honorable Judge Hurley heard the case between Linda Baldwin v. Zurich American Insurance on a cause of action under workers' compensation and a misrepresentation by the carrier. At this summary judgment hearing, the Defendant Zurich American Insurance agreed to compensate Plaintiff Linda Baldwin and that her workers' compensation would not be affected by this Order. The Defendant failed to disclose how Ms. Baldwin was going to be compensated for the workers' compensation claim. The order was signed July 17, 2013, by both parties agreed. CR818. SEC v. Blavin, 760 F.2d 706, 711 (6th Cir. 1985). On October 5, 2012, Ms. Baldwin filed her Original Petition in the Travis County District Court of Austin, Texas, under cause number Dl-GN-12-003139, under tort and worker compensation claim compensable injury. CR28. On February 21, 2013, Ms. Baldwin wrote a letter to Chief of Proceedings that their decision was an error causing her not to be compensated pursuant to Texas Workers' Compensation Law. CR84. On March 22, 2013, the Assistant Commissioner, Mr. Barry, responded via letter that Ms. Baldwin was entitled to a judicial review of an Appeal Panel under Texas Labor Code section 410.251. CR82. On April 18, 2013, Ms. Baldwin filed her second petition under cause number D-l-13-001281, after she received notice from the Division of Workers, Compensation. CR82. On May 13, 2013, the Defendant filed his Summary Judgment stated that Ms. Baldwin will be compensated and the decision of this court will not affect the decision of Ms. Baldwin's Workers' Compensation Claim. CR20. STATEMENT OF THE FACTS Ms. Baldwin was employed by Extended Stay Hotels as a night attendant working as a night Attendant standing long periods of time on a hard concrete floor, withrepetitive motion in both upper extremities which later caused Ms. Baldwin chronic pain.CR108. Ms. Baldwin notified her employer on two incidents of injury. The first incident was reported on March 1, 2006, complaining of ankle pain, carrier number 2230233349. CR314. The second incident was on August 20, 2007. An incident report was filled out by the employer on this date noting Ms. Baldwin's complaint of wrist pain. The insurance carrier claim number is 2230161474. CR-313. Ms. Baldwin was examined by Ms. Nancy Howe, P.T., of Select Physical Therapy, who was a therapist designated from the carrier, Zurich American Insurance, and ordered by treating physician Dr. Petal, on or about March 10, 2008 to examine her condition. The insurance ID no. is 22301614740084. CR320. Ms. Baldwinwas diagnosed with visible swelling of her ankles at 53.5 cm. Left wrist also appeared to have edema. CR292. In the physical therapy report, the injuryoccurred March 1, 2006 and August 20, 2008. On March 31, 2010, the Texas Department of Insurance Division of Workers' Compensation sent a letter to the carrier, Zurich American Insurance, attention Natalie Jackson, Insurance Adjuster, asking to please provide to the designated doctor all medical records pertaining to the claimant's injuries before April 15, 2010, per DWC Rule 126.7(i). CR-338. On July 26, 2011, Zurich Services Corporation approved Dr. William Jackson of BrownHandCenter; 3107 Oak Creek Drive, #120, Austin, Texas, authorizing treatment endoscopic assisted median nerve decompression, left forearm. Authorization #110726-218717. CR323. On February 15, 2008, the Divisionof Workers' Compensation ordered Zurich American Insurance to please provide to the designated Doctor Jim Fernandez all of the medical records pertaining to Ms. Baldwin since the date of March 5, 2008. ZURICH AMERCIAN INSURANCE FAILED TO PROVIDE DR. FERNANDEZ ALL OF MS. BALDWIN'S MEDICAL RECORDS PURSUANT TO DWC Rule 126.7 (I) The following records were not reviewed by Dr. Fernandez regarding the appointment March 5, 2008, and April 15, 2010,which did not reflect in his report: 1. 3/10/08 Functional Capacity Examination. CR320 and CR90 2. 05/14/08 Dr. Umesh G. Gadaria, MD., F.A.C.S. CR709, CR710, CR11, CR712 and CR713.04/24/08 Dr. Manish Patel, MD. CR238,7/l/2008 Jennifer Vasquez, OTR. CR572,6/l/2009 M.F. Lenis, M.D CR572. On March 5, 2008, Dr. Fernandez noted that Ms. Baldwin's medical records (FCE) report was not available to him and in the presents he will be willing to amend his report,and additionally many other medical records were not available to him. The report was copied to Zurich American Insurance's Workers' Compensation on March 5, 2008. Dr. Fernandez never received the FCE report form the Carrier, Zurich American Insurance Co., by the requested date of April 15, 2010, nor did he ever receive them. CR341. June 12, 2012, Contested Case Hearing (CCH) was held at the Austin Field Office on both cases: AU-11148351-01-CC-HD46 and AU-08103562-03-CC-HD46.On June 22, 2012the hearing officer signed an order that the Carrier Zurich Insurance is relieved of liability for August 20, 2007 and March 1, 2006 after hearing Ms. Baldwin testify that the Designated doctor do not have all her medical records in addition to reviewing all Ms. Baldwin complete medical records.CR451. The Texas Department of Insurance, Division of Workers' Compensation ( DWC ) determined that Baldwin did not sustain a compensable injury on March 1, 2006 and that Zurich was relieved of liability. CR448-52. November 11, 2012, Zurich American Insurance co. provided a sworn affidavit all facts are true and correct. Everything provided to the designated Doctor was not correct or complete pursuant to DWCRule 126.7 (i) which is false and misleading. EQUITABLE TOLL On June 26, 2012, Ms. Baldwin received a letter denying her Workers' Compensation claim. CR486. Pursuant to the Texas Labor Code, Ms. Baldwin had 15 days, exclusive of weekends and holiday as listed in The Government Code sec. 662.003, to appeal the hearing officer's decision, and Ms. Baldwin filed her appeal by transmittal that was provided to her on July 10, 2012, by the DWC representative. CR85 and CR96. STANDARD OF REVIEW EQUITABLE TOLL Equitable tolling is a principle of law stating that a statute of limitations shall not bar a claim in cases where the plaintiff, despite use of due diligence, could not or did not discover the injury until after the expiration of the limitations period. For example, when pursuing one of several legal remedies, the statute of limitations on the remedies not being pursued will be equitably tolled if the plaintiff can show: • Timely notice to the adverse party is given within applicable statute of limitations of filing first claim • Reasonable good faith conduct on part of the plaintiff. It has been held that equitable tolling applies principally if the plaintiff is actively misled by the defendant about the cause of action or is prevented in some extraordinary way from asserting his or her rights of the defendant. Rodriquez v. Elo, 195 F. Supp. 2d 1253. ARGUMENT AND AUTHORITIES I. Ms. Baldwin exhausted her administrative remedies, and was aggrieved by a final decision of the TWCC appeal panel, and is entitled to judicial review under Texas Labor Code Sec. 410.251. The TWCC appeal panel dismissed Ms. Baldwin's appeal because they found it to be untimely. The panel further determined that the untimely nature of the appeal deprived them of jurisdiction over the matter and, therefore, the hearing officer's decision below had become final. CR444. As such, the appeal panel's decision was a final determination of Ms. Baldwin's claim. Ms. Baldwin disagrees with the appeal panel's determination. The only recourse available to challenge that determination was to seek judicial review in the district court. When filing her Original Petition for Judicial Review, Ms. Baldwin complied with and properly pled the statutory requirement of Texas Labor Code in her second petition in which she had equitable toll. (Collier v. City of Pasadena) governing judicial review of a TWCC appeal panel decision. There, jurisdiction is proper in the district court. Therefore Ms Baldwin complied with statutory requirement of the Texas Labor Code sec. 410.251, which governs judicial review of a TWCC appeal panel decision, and jurisdiction is proper in the district Court Zurich argues that because Ms. Baldwin did not file her case within the 45-day statute of limitation of the Texas Labor Code, the district court could not have jurisdiction, because this prevented Ms. Baldwin from exhausting her administrative remedies. Therefore, because Ms. Baldwin made every effort to timely file her case and was prevented from doing so, through no fault of her own, her appeal to the appeals panel should be deemed timely. Additionally, the court's dismissal of Ms. Baldwin's case violated her statutory and constitutional rights to judicial review. The Texas Labor Code explicitly provides for judicial review of a final determination of the TWCC appeals panel. Moreover, Ms. Baldwin has a colorable constitutional claim for violation of her due process rights. The trial court's dismissal of her case denies her the opportunity for judicial review of these claims. Therefore, it was an error for the court to grant Zurich's plea and dismiss. Ms. Baldwin also contends that the court erred by dismissing her cause of action without affording her the opportunity to conduct discovery and present evidence. Once the court decided to delve into the merits of her claim, the court shouldhave granted Ms. Baldwin's requests to conduct discovery on the limited issue of jurisdiction and to then present any further evidence supporting jurisdiction to the court. Had Ms. Baldwin been provided this opportunity she could have presented evidence supportingnot only her initial claims but also supporting possible constitutional causes of action that would provide a separate basis for jurisdiction. The court further erred by not granting Ms. Baldwin's requests to amend her petition to include more information supportive of jurisdiction. Courts are required to provide the Plaintiff an opportunity to amend her workers' compensation claim prior to dismissal. Therefore, it was error for the court to dismiss without allowing Ms. Baldwin to amend her petition. Ms. Baldwin's constitutional right and equitable tolling rises out - when Zurich filed its misleading sworn affidavit which misled through the legal system caused a delay in Baldwin's workers' compensation and tort claims and benefits, which caused Ms. Baldwin serious injury by its action. Therefore, she could not have brought them at this lower administrative hearing because they did not exit. Apelles's argument is that those claims are barred because she did not present them at the within 45 day statue of limitation in which, Ms. Baldwin never reached the appeal panel decision. PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant, Linda Baldwin, Respectfully prays, that this honorable Court grant Appellant's point of error, that the judgment below be reversed and this cause remanded for trial on the merits, and for such and further relief to which Appellant may be entitled. ispectfully^ubmitted, Linda Baldwin 10151 Dorrel Lane Apartment 1164 Las Vegas, NV 89166 512 605-7638 CERTIFICATE OF SERVICE I, Linda Baldwin, hereby certifythat on this January 24 of, 2015,1 served a true and correct copy of Appellant's Brief, via certified mail, return receipt requested, as follows: Third Court of Appeal P.O. Box 12547 Austin, Texas 78711-2547 Jessica McCarthy, Attorney for the Defendant Robert D. Stokes Lynette Phillips Flahive, Ogden, Latson P.O. Box Drawer 201329 Austin, Texas 78720 Texas Department of Insurance Division of Worker's Compensation 7551 Metro Center Drive, Suite 100 Austin, Texas 78744-1609 v--^ T'TnHa RalHwin Linda Baldwin 10151 Dorrell Lane Apartment 1164 Las Vegas, NV 89166 512 605-7638 APPENDEX Zurich signed affidavit 1 Designated Doctor Examine March 5, 2008 2 Designated Doctor Examine April 15, 2010 3 Functional Capacity Evaluation 03/10/08 (missing records) 4 Dr. Manish Patel Examine 04/24/08 (missing records) 5 Dr. Umesh G. Gadaria Examine 05/14/08 (missing records) 6 >( CAUSB NO. D-l-GN-12-003139 LINDA BALDWIN, IN THE DISTRICT COURT Plaintiff, vs. § TRAVIS COUNTY, TEXAS ZURICH AMERICAN INSURANCE COMPANY, Defendant § 353rd DISTRICT COURT AFFIDAVIT OF LYNETTE PHILLIPS THE STATB OF TEXAS § COUNTY OF TRAVIS § BEFORE ME, the undersigned Notary Public, on this day appeared Lynette Phillips ("Affiant") who upon first being duly sworn upon his oath deposed and stated: 1. "My name is Lynette Phillips. I am over the age of twenty-one years and am fully competent to make this Affidavit. I have personal knowledge of the facts stated in this Affidavit-, which are true and correct." 2. "I am an attorney, in the law firm of Flahive, Ogden & Latson, Attorneys at Law, P.C., and counsel for Zurich American Insurance Company in the matters of Linda Baldwin v, Zurich American Insurance Company, DocketNos. AU-1148351-01-CG-HD46 and AU- 08103562-03-CC-DH46, before the Texas Department of Insurance, Division of Workers Compensation." 3. "The document attached hereto'as Exhibit B-l is a true and "correct copy of the Decision and Order from the. Texas Department of Insurance, Division of Workers Compensation, in relation to Ms. Baldwin's claims." AJHD AVIT Of LYNETTE PHILLIPS PAGEl 2OO3/0I57/O3O3323'.CCC1 | 533 "The documents attached hereto as Exhibit B-2 axe true and correct copies of the Notice from the Appeals Panel of the Texas Department of Insurance, Division of Wotkers Compensation, in relation to Ms. Baldwin's claims," Further Affiant sayeth not. SUBSCRIBED AND SWORN TO BTORB MB on this ay of December 2012. ;, State of Texas AfFiDAvrr of Lynette Phillips PAGB2 {2003/rafi7/fl3C332S7JXXll} 534 Designated Doctor Exam Jim Fernandez, MD 888-428-1119 I Linda Baldwin — i ! August 20, 2007 ? Zurich American Insurance i DWCClaim number [ 08103562-51 j Date of Service ! March 5, 2008 r Treating Physician ! Michael M. Albrecht, MD History of Present Illness TTtave beirTasked by the Texas. Department of Insurance Workmen's Compensation Division to perform a Designated Doctor Evaluation for the purposes of determining maximum medical improvement, impairment rating, and the ability of the employee to return to work. This information is based on the medical information provided, as well as the interview and examination with the patient today. Brief history: The patient is a 53-year-old female working as an attendant at a hotel. According lb her history, she states her symptoms actually started in the spring of 2007, when the actual reported date of injury is 08/20/07. She states that in that spring, she started having pain in the radial aspect of the left wrist. She saw Dr, Adler, who diagnosed her with tendinitis and performed an injection. $he stated that the injection helped but, after a few months the injection wore off and her pain came back four times worse than it was before. It sounds like at this time is where the report of the injury occurred. She had been followed by Dr. Albrecht. who recommended a nerve test and therapy. She subsequently saw Dr. Straus, who recommended a hand specialist. She was referred to Dr. Patel, who recommended surgery bilaterally; however, she states that she does not want surgery or injections. At this point, she feels like she is slowly improving. She has been off work since September- She complains of pain and soreness along the volar aspect of the wrist arid radially, bilaterally, on the lelt greater than the rightside. She has been wearing a brace on the leftside, although not usingthe metal placements. Intermittently she will get numbness and tingling in both hands throughout which is relieved with moving. Symptoms are aggravated with motion and relieved with rest and Lyrica and Celebrex, She takes f50 mg at night of Lyrica and Celebrex once a day. Past medical history: Hypertension. Past surgical history: Hysterectomy and left middle finger. Allergies: None. Medications: plovan, Lyrica, and Celebrex. Medical Documents Reviewed if I I 8-pg7 776 11/16/2007. Dr. Straus. Designated Doctor Evaluation; He reports that the patient is not atMM I.The patient complains of pain, numbness and tingling in the wrists and the hands. Diagnosed with repetitive motion, probable flexor carp/ radialis tendinitis. He recommehded a referral to a hand surgeon and physicaltherapy. Dr. Albrecht Office notes. On 08/21/2007, diagnosed with carpaltunnel syndrome and de Quervain's, On 09/24, diagnosed with flexor carpi radiatis tendinitis. On 11/01, reports he has nothing more to offer. On 12/01, refers her to Dr. Patel. 09/05/2007. Eleetrodiagnosticstudy denoting mild right sensory carpal tunnel syndrome. 09/20/2007; MR! of the right wrist, which was normal. 10/29/2007. MR! of the leftwrist, Which was norma), 12/17/2007; Dr. Patel. Office notes. He diagnosed her with bilateral carpal tunnel syndrome, left de Quervain's tenosynovitis, bilateral flexor carpi radialis tendinitis, and possible early cubital tunnel syndrome. He reports the patient does hot want injection or surgeries. He recommended hand physical therapy and referring to Dr. McCarty, pain management. Office note on01717 reports that the patient was doing: better. He has kept her off work and recommended work hardening and possible FCE. Results of Examination The patient is oriented times three, in mild distress, cooperative with the exam. There are no skin changes, swelling, or atrophy noted Strength testing is 5/5. Sensation is intact and reflexes are symmetrical at the bilateral upper extremities. She has a negative Tinei's at the wrist and at the elbow. She does have some mild pain at the right wrist with compression over the anterior wrist She has positive Finkelstein's on the left, negative on the right. She has discfete tenderness along the anterior aspect of the right wrist overlying the flexor tendons, (ass .so on the left side. Range of motion measured today using a goniometer showed both wrist extension of 5Q\ both wrist flexion of50*. both wrist radial deviation of 20*. and ulnar deviation of 30° on the right and 20* on the left. Diagnosis Compensable 1 Leftde Queryaih's tenosynovitis. 2. Bilateral flexorcarpi radialis tendinitis. 3. Mild rightsensory carpal tunnel syndrome diagnosed on nerve study, although this is not clinically significant. Questions / Purpose of Evaluation 1. Determine maximum medical improvement or MMI. The patient is slowly getting better, although still has some pain and limitations; However, the patient does not want to have any injections or surgery, and wants to give this more time. Therefore, she will go ahead and be placed at maximum medicalimprovement for these reasons as oftoday's date, 03/05/08. Supplemental Information on Linda Baldwin Review of Medical History Physical Examination •I i 779 4/22/2010 101Jl AM FROMi Fax TOl U (S12) 32HB903 PAiiB: 002 OF 0C4 •nji.. •'.•',3l Designated Doctor Examination Jim Fernandez, MD a*? ..*w U J L-i-^ Ph 512-343-3668 Fx 800-482-0591 Claimant __ j Linda Baldwin DOI _ | August 20, 2007 Date of Service >Apr£ 15,2010 DWC Claim .08103562_52 number Insurance Carrier Zurich American Insurance Company History of Present Illness I have been asked by the Texas Department of Insurance, Workers' Compensation Division to perform a Designated Doctor evaluation for purposes of determining the extent of the employee's compensable injury. The conclusions are based off the interview and examination with the patient as well as past medical history. I previously performed a Designated Doctor evaluation on 03/05/08 where I had found her to be at MMI and an impairment rating was given at that time regarding her wrist injury. The patient had been working as a laundry attendant in a hotel, and in 2007 started having symptoms in the left radial wrist and then bilateral wrists subsequently. An injection was performed, which initially helped, but the symptoms came back. She had nerve tests, which were normal; seen by different hand specialists and subsequently placed at MMI and impairment rating. In that interval history, she -nates her current symptoms are pain in both hands that radiates up to the elbow. She states, in 2008, she started having some pain that would go up into the left shoulder, across the neck, and into the front of her forehead and the right side of her face, with associated numbness, tingling, and twitching sensation. She states that the right hand has numbness throughout and even into the forearm with wrist flexion, and similar symptoms on the left side. She has some mild discomfort in the left ring and little fingers, more so than the other fingers. She has neck pain that is aggravated with elevating her shoulder, and again her face twitches at intermittent times; there are no aggravating factors for this. She reports that she had seen Dr. Lown and Dr. Lown wanted tests, but was unable to perform these because his office was in a bad location for the patient. She was last seen six months ago. She reports being evaluated by her primary physician for any blood pressure or heart-related issues. Again, her job involved working at a hotel with laundry service, twisting and folding all day. Medications: Diovan and aspirin. 251 4/22/2010 \'}li\ AH KKum t*K il'I »i .3iii iimjv' ...w-. .... -. ... injur- '; • RE: UndaBaldwin /. i " 001: 08/20/2007 OOE: 04/15/2010 i. ..• j j Pago 2 o(3 _ _ . .. _ _ .. _ _ L":—VL.L\'J ,[ A Medical Documents Reviewed _ Medical information provided: Office notes from Dr. Ira Lown for bilateral hand complaints. Repeat nerve conduction study performed by Dr. Aung 02/10/09, which was normal; no evidence of carpal tunnel syndrome or neuropathy or radiculopathy. An RME performed by Dr. Pamplin on 09/21/09. Results of Examination The patient is alert and oriented x3, cooperative with the exam. She has pain with left shoulder range of motion testing; this pain is throughout the whole arm. She has a dull sensation to light touch at the left thumb, index, middle, and little fingers, and then the dullness switches to the right ring ringer. Her reflexes are symmetrical; however, she states that she has pain in her shoulder with testing the reflexes at the elbow on the left side; although I am tapping on my thumb, she is complaining of pain in her shoulder; tapping overlying the volar and radial aspect of the left wrist causes pain to shoot up to the shoulder and the neck. Strength testing is intact. Questions / Purpose of Evaluation Determine the extent of the employee's compensable injury? The compensable injury includes the bilateral wrists only. The complaints of pain up into the shoulder and to the neck with twitching in the face I cannot correlate these with her overuse injury of the wrists. The proximal symptoms reported by the patient started in 2008 when her overuse injury of the wrists and hands was in 2007. I do believe she may need further evaluation and treatment for the neck, face, and shoulder symptoms, but these do not seem to be work related and I am uncertain of the exact etiology. E-signature Dictated but not read: Jim Fernandez, MD L2246 Physical Medicine and Rehabilitation, Board Certified Designated Doctor, 4m Edition Maximum Medical Improvement/Impairment Rating TEXAS IMPAIRMENT ANO TESTING SOLUTIONS 5401 S FM 1626 STE 170-626 KYLE. TX 78640 PHONE 512343.3668 FAX 800 482.0591 252 4/22/2310 10:21 AH FROMl Fax TOt +1 (512) 3288905 PAGE: 0O4 0? 004 fnj'j; RE: Linda Baldwin DOI: 08/20/2007 ' ' / |l DOE: 04/15/2010 Page 3of3 i .I- V i..^ I -J [^. l%_^ I DISCLAIMER: _ _ _ The opinions rendered in his case are iteTopinkxis of this evaluator only. The evaluation has been conducted on the basis of the medical examination and the documentation that is provided today with the assumption that the material is true and correct. This opinion is based on clinical assessment, examination, and the provided documentation and has been evaluated as directed by the American Medical Association Guides to Evaluation of Permanent Impairment. Fourth ErMUon. Fourth Printing. cc: Linda Baldwin Ira Lown, MD Zurich American Insurance Company Texas Department of Insurance, Workers' Compensation Division TEXAS IMPAIRMENT AND TESTING SOLUTIONS 5401 S FM 1626 STE 170-626 KYLE. TX 78640 THOME 512 343 3668 FAX 800 482 059' 253 >U/10/2098 03:21 5124828199 SELECT PAGE 02/30 WRKSTRATEGIES Keeping America on the Job! Select Physical Therapy Red River Austin,TX FUNCTIONAL CAPACITY EVALUATION NAME: Linda Baldwin REFERRED BY: Dr. Patel EMPLOYER: Extended Stay Hotel PHYSICIAN: Dr. Patel DATE OF INJURY: 8/20/07 INSURANCE CARRIER: Zurich DATE OF EVALUATION: 3/3/08 INSURANCE REP.: Sarah Majee DATE OF REPORT: 3/10/08 INSURANCE l.D. NO.: 22301614740084 I.D. NO.: 022R250 DATEOFBIRTH:^H| DIAGNOSIS: Bilateral CarpalTunnel Syndrome VITAL SIGNS HEIGHT: 64" WEIGHT: 230 lbs. HAND DOMINANCE: RIGHT RESTING HEART RATE: 81 bpm RESTING BLOOD PRESSURE: 132/80mm/Hg Starting Time: 9:15am Ending Time 12:45pm PURPOSE OF ASSESSMENT; Determine Physical /Functional Capability. CONCLUSION The results of this evaluation indicate that Linda Baldwin functions in the SEDENTARY Physical Demand Category as defined bythe U.S. Department of Labor (DOT) Work Classification Level In an 8 hour time period as indicated byherability to lift 10#occasionally and tolerate sitting on a constant basis. She demonstrated the ability totolerate standing, reaching to floor and desk level on a frequent basis, and walking, climbing stairs, reaching overhead, stooping, kneeling, and crouching on an occasional basis. She was also limited In her ability to perform fingering and simple grasp activities with her left hand. She was not able to tolerate crawling. She did not meet her occupational demands of lifting, pushing and pulling up to 40#, and tolerating overhead reaching, grasping and walking on a frequent basis. During validity testing, Ms. Baldwin had a varied performance. Her Coefficients of variance during push and pull were outside of expected values, but they were within expected values during pinch testing. She terminated grip testing due to pain. She had minimal change In physiological measurements, like heart rate and blood pressure, during dynamic lifting, and did not have expected changes In body mechanics, like accessory muscle use, indicating poor effort. During postanal tolerance testing, she did havean elevation in heart rate and blood pressure consistent with good effort, but again body mechanics were not consistent with increasing fatigue or pain. Overall Ms. Baldwin gave fair effort throughout the test Ms. Baldwin would be a good candidate for vocational retraining for an occupation that is sedentary, in order to preventcontinuing strain on her injuries. PHYSICAL DEMAND LEVEL: SEDENTARY (U.S. Department of Labor Standards) Thank you for referring Linda Baldwin to Select Physical Therapy - Red River Austin, TX. If you have any further questions regarding this evaluation, please do not hesitate to contact us. Professionally, MMntS&sx.ff*r Nancy Howe, PT Physical Therapist cc: Dr. Patel file 3200 Red River St., ste 101 -Austin «TX- 78705 -(512) 476-8857 -(512) 482-8199 ©SelectMark2007 287 r SeledWark 2007 292 Functional Capacity Evaluation :•!*: Linda Baldwin DOB: nstjivmco I.O. No.: ^2301*514/40004 MATERIAL HANDLING Waist to Should er Dynam c Lift Test •Jucnsionai Lift Hoart Kate HPL RFT Fi»»FT ii) lbs. *5npm .1 Piin 10 lbs. 9*hpm fi Piin • >l:*rt Heart Rote 76 bpm HR increase: Yos :;iart Heart Rate: 36 bom HR Increase: Mo | Comments; rieose rarer lo FOCUS Report for details. Floor to Waist Dynamic Lift Test 1 Mean Rate j RPL i • )ccasional Lift RFT Frequent Ult Heart Rate RPL HFT i /Qibs. a/* bom | 8 Pain 10 lbs. '•}6 bpm / P.iln 1 Start Heart Rata UQ bpffl HR increase: Yes Start Heart Rote: H2 bpm MR increase: Y >s | Comments: 1 Pfewstt itfer lo FOCUS Report tor details. Floor to Shoulder Dynamic Lift Test i Occasional Lift Heart Rate RPL RFT Frequent Lift Heart Rate RPL RFT ' io lbs. 9* bpm a Pain Ofos. 38 bpm Pain j Start Heart Rate 02 bpm HR Increase: Yes Start Heart Rote: 95 bpm HR Increase: No | Comments: Please iefer to FOCUS Report for details. I.ift Capacity Performance: inconsistent Expected Linear Heart Rats Increase Minimal changes in body mechanics that would be consistent with pain or fatigue noted during dynamic lifting. Lifts were terminated due to subjectivecomplaints of "tJiscomfort" in wri9t. Carry Testing Occasional Carry Heart Rate RPL RFT Frequent Carry Heart Rate RPL RFT i 10 lbs. Bimanual 90 bpm .'/tax Carry NAibs. NAbpm NA N/A lbs. Right N/A bpm N/A N/A N/A lbs. N/A bom N/A TET N/A lbs. Left N/A bpm N/A N/A N/A lbs. N/A bpm N/A N/A Start Heart Rate 89 bpm HR Increase: Yes Start Heart Rate: NA bpm HR Increase: Comments: 25* Distance. See FOCUSReportfordetailsof occasionalcarry. Frequent carry tested duringpositional tolerance testing with 10Ubox, but client was able to perform carry for only 3 repetitions. Push / Pull Testing Occasional Occasional Frequent Heart Rate RPL RFT Pu3h PuN PuslVPuil 20 lbs. 25 lbs. NAIbS. NAbpm I NA Peak Heart Rale: 63 bpm Peak Hoart Rate: 00 bpm Start Heart Rate: NA bpm HR Increase: Comments: See FOCUS Report for details of occasional push and pull Frequent push/pull not tested during positionaltolerance testing due to Inability to tower weight sufficiently. Additional Test ng Occasional N/A Heart Rate RPL RFT Frequent N/A Heart Rate RPL RFT N/A lbs. N/A bpm N/A N/A N/A lbs. N/A bpm N/A WT Start Heart Rate N/A bom HR Increase: N/A Start Heart Rate: N/A bpm HR Increase: N/A Comments: N/A •RPL - Rate of Perceived Load •RFT - Reason for Termination Post Material Handling Blood Pressure: Pretest 138/80 mmHg Post test 145/75 mmHg 3200 Red River St.. ste 101 Austin • TX»78705 • (512) 476-8857 • (512) 482-8199 vmw © SelectMark 2007 293 Functional Capacity Evaluation :•»: I imla ir Baldwin DOU: Msuranco l.'J. Mo.: ^JOUjH740034 POSITIONAL TOLERANCE: Frequency Communis :ittinq Constant Mo iletlcit observed. ^landing froquent No deficit observed. Walking Occasional Mo deficit observed. l3t3irClimbing Occasional Mo deficit observed. Climb Ladders Mot Tosted No deficit observed. Roach Desk Level Froquent Mo deficit observed. Reach Overhead Occasional Mo deficit observed. Roach Floor Level Frequent Mo deficit observed. balance Frequent Mo deficit observed. 3loop Occasional No deficit observed. Kneel Occasional Mo deficit observed. Crouch Occasional Mo deficit observed. Crawl Unable Attempted and unable to assume position. MANIPULATIVE ABILITY! Frequency Comments R Object Handling Frequent No deficit observed. L Object Handling Frequent No deficit observed. R Fingering Frequent No deficit observed. L Fingering Occasional No deficit observed. R Simple Hand Grasp Frequent No deficit observed. L Simple Hand Grasp Occasional No deficit observed. R Firm Hand Grasp Frequent No deficit observed. L Firm Hand Grasp Frequent No deficit observed. R Fine/Gross Manipulation Frequent No deficit observed. L Fine/Gross Manipulation Frequent No deficit observed. Additional Positional and Postural Tolerance Comments: Client completed 3 positional tolerance circuits in 25 minutes, terminating due to increased pain Inknees, leftfootand bilateral wrists.She attempted, but was not able to. tolerate crawling due towrist pain. She was consistently (through all threecircuits) able to tolerate 15seconds during pegmoving activities using herleft hand before stopping duetoleft wrist Irritation. She terminated kneeling after 40 seconds(HR = 95 bpm) inthe first circuit one minute in the second circuit, and 25 seconds (HR = 88 bpm) In the third circuit due to knee pain.She terminatedoverhead reach after 15seconds (HR = 90 bpm) in the firstcircuit, one minute in the second circuit, and 55 seconds (HR a 86 bpm) in the third circuit due to increased bilateral wrist pain. She terminatedcrouching after 40 seconds (HR » 88 bpm) in the first circuit, 15 seconds (HR = 96 bpm) in the second circuit, and 40 seconds (HR = 90 bpm) in the third circuit Her overal pace was slow with minimal change in body mechanics consistent with fatigue or increasing pain levels. She did, however, have an increase in blood pressure, heart rate and respiration rate, indicating good effort Beginning blood pressure was 135/75 mmHg and beginning heart rate was 73 bpm. Ending blood pressure was 150/70 mmHg and ending heart rate was 91 bpm. Highest heart rate was 116 bpm. POST TEST VITAL SIGNS: Heart Rate: 91 bpm Blood Pressure: 150/70 mm/Hg POST TEST PAIN LEVEL: 6/10 ADDITIONAL INFORMATION: NA 3200 Red River St, ste 101 • Austin • TX • 78705 • (512) 476-8857 • (512) 482-8199 vi4i07 9 © SetectMark 2007 194 I •• rtinctional Capacity Evaluation **: l tn«1.i U;tldwin noi3:| insurance I 0. No.: v>2301r51474U0a4 3200 Red River St., ste 101 • Austin• TX • 78705 • (512) 476-8857 • (512) 482-8199 «i4iar 10 © SelectMark 2007 595 LINDA BALDWIN DOB: 24 April 2008 Ms. Baldwin continues to have symptoms, and she feels like they are actually getting worse. She was given an impairmentrating. However, she feels, and I agree with her,thatshe is not at MMI. EXAM: Physical examination reveals she still has a positive Tinel's over the median nerves bilaterally as well as difliise pain with deep palpation of the flexor tendons at the wrist, as well as over her extensor tendons in both hands. IMPRESSION: 1. Bilateral carpal tunnel syndrome; 2. Bilateral hand and wrist extensor/flexor tenosynovitis. PLAN: I discussed the diagnosis with the patient. She did not really get all of her iontophoresis treatments due to some delay in the insurance or getting the medication. She does have some refillson that, and I wrote her a new prescription to go back and get the iontophoresis treatments with a therapist. In addition, I sent her back to Dr. Powell for a repeat nerve conduction study. Work status per treating physician. I will see the patientback in four weeks for re-evaluation. Manish V. Patel, M.D. -,e* ij- Board Certified In Orthopaedic Surgery Fellowship Trained in Hand andUpper Extremity Surgery \*W0':-^ MVP:kms/rcd DD: 042508 DT: 042508 238 3\ ln\Ut . .n i •'• RE: BALDWIN, L. 12/17/07 ,iw„ w-» ""' Page two IMPRESSION: 1. Probable bilateral carpal tunnel syndrome, mild, worse on the left than the right; 2. De Quervain's tenosynovitis, left wrist; 3. Flexor extensor carpi radialis tendonitis, both wrists; 4. Possible early onset cubital tunnel syndrome, both sides, more notable on the left than the right. PLAN: At this point, the patient has vehemently noted she does not want any type of surgical intervention. She isvery concerned about the possible complications of that surgery. The patient also notes that at this point she does not want another injection, specificaily at the carpal tunnel syndrome, because she thinks itmay make her symptoms worse. After spending greater than 30 minutes with this patient during her interview, we ait going to start off with a change in anti-inflammatory. We are going to go back to the Celebrex. She was given a prescription for this with subsequent refills and samples. She was counseled on the effects. Also, we are going tohave her go back to physical therapy again. This time we are going to an upper extremity specialist for more in-depth treatment of both hands and wrists. The patient was counseled that if this fails to improve her condition, she would most likely need or should consider very seriously injection either into the carpal tunnel area or the tendon areas to help relieve the inflammation in those regions. However, we are going to try this initially with formalized physical therapy and have recommended iontophoresis with dexamethasone which can be pushed through the skin tohelp facilitate the delivery of this medication. Also, the patient was given samples and a prescription for Lyrica 75 mg to be taken two by mouth every night before bed for a dose of 150 mg to help with the pain that she is having, as well. We will have her check back with us inone month for follow-up visit. In the interim, we are going to have her seen by Dr. Mccarty's office, a multidisciplinary pain management specialist, because with her history of flat affect and continued problems, it is possible she maybe suffering from depressive episodes. We will get a referral to hisoffice as soon as possible. William Fox, P.A.-C.:kms/rcd DD: 121807 DT: 122007 Manish V. Patel, M.D. Board Certified in Orthopaedic Surgery Fellowship Trained in Hand and Upper Extremity Surgery MVP:kms/red 237 U.SADARrA,M.D, FAe,S.,;PA Plastic A Hand Surgery 1015 East 32nd Street, Ste 208 Austin, TX 78705-2700 (512) 478-0993 (512) 478-1002 fax 05/14/08 BALDWIN, LINDA INITIAL OFFICE VISIT / NEW PATIENT Page three DIAGNOSIS: I believe thispatient clinicallyshows the following: 1) bilateral carpal tunnel syndrome 2) bilateral nerve compression of the elbow with anterior interosseous tiervecompression 3) bilateral de Qiiervarn's: syndrome 4) flexor carpi radial tendonitis. REGOMMENDATION/DISCUSSION: I will attempt to obtain patient's other medical records for reviews© I can complete evaluation on this patient. I will re-check this patient in approximatelyone week. UMESH G, GADARIA, M.D., F.A.C.S. UGG/pg 713 U. GADARIA, M.D., F.A.C.S., PA Plastic &Hand Surgery 1015 East 32nd Street, Ste 208 Austin, TX 78705-2700 (512) 478-0993 (512) 478-1002 fax 07/22/08. BALDWIN, LINDA OFFICE VISIT / FOLLOW-UP Linda returns to office today for follow-up, accompanied by her daughter. Patient continues to have significant problem with both upper extremities, which is well documented at herinitial visit. Patient continues to be si^ificantly symptomatic in spite of goingto therapy. However, she is not conducive to undergoingsurgery. Allergies^ past medical history, social history, familyhistoryand prior surgeries are reviewedand unchanged compared; to previous evaluation. PHYSICAL EXAMINATION: Shows well-developed, well-nourished, stable, healthy- appearing, obese, Blackfemale who is welioriented in timeandspace. Vital signs are stable. Patient is in no acute distress. Height is 5'4", weight is 227 lbs. Head is normocephalic. ENTis within normal limits. Neck is soft, supple. Chest is clear. Heart shows NSR. Abdomen is obese, Neuro exam is grossly normal. Examination of patient's right upper extremity shows decreased sensation in median nerve distribution as compared to ulnar nerve distribution. Grind test is negative. Phaien'stest ispositive. Finkelstein's test is weakly positive. Allen's test is negative. Tinel's sign over the median nerve at the wrist is noted. Patient is also tender over the median nerve at the level ofelbow and pronator teres area. Some weakness ofFPL again is noted. So is the weakness of FDP to the index finger. DIAGNOSIS: 1) Bilateral carpal tunnel syndrome^ 2) Bilateral median nerve compression at level of elbow is suspected and cannot be ruled out. 3) de Quervain's syndrome. 4) FCR tendonitis. RECOMMENDATION: Patient is advised to continue therapy. Once therapy is completed,she will come back for evaluation. UMESH G. GADARIA, M.D., F.A.C.S. UGG/pg 709 U. (5A6ARIA, M.D., F.A.C.S., PA; Plastic ., F.A.C.S. UGG/pg 710 U. GADARIA, M.D., F.A.CS., P.A. Plastic <& Hand Surgery 1015 East 32fld Street, SU 208 Austin^ TX 78705-2700 (512) 478-0993 (512) 478^1002 fax 05/14/08 BALDWIN, LINDA INITIAL. OFFICE VISIT / NEW PATIENT DOI: 08/20/2007 WORK RELATED CHIEF COMPLAINT: 1) Tingling and numbness in right and left hands. 2) Pain and discomfort, left hand/wrist. 3) Significant nocturnal symptoms of waking up 2-3 times per night. HISTORY OF PRESENT ILLNESS: This is a 53-year-old,hypertensive, Black female who was working at Extended Stay Hotel doing multiple positions. Patient was required to perform repetitive motion during her entire workday. Patientwas finally seenby Dr. Adler and evaluated. Since Dr. Adler does not accept worker's compensation,she was seen by Dr. Albercht who diagnosed this patient to have bilateral carpal tunnel syndrome. She also has been seen by Dr. Manish Patel who also apparently attempted to treat her conservatively for carpal tunnel syndrome. Patient states that steroid injections.gave her significant side effects including irritation, heart palpatation, "not feeling right". Patient is currently taking Lyrica and Celebrex for her problems. On further questioning, if is quite apparent that patient did not want to consider surgical release ofher carpal tunnel as treatment ofchoice. Patient was recently declared at MMI, which puzzles trie as patient has byno means reached MMI inmyopinion with persistent symptoms and pathology that couldbe helped with surgical intervention. Patient describes her pain as throbbing and aching, to an extent that her quality of life is affected. Patient denies any history of neck pain, chest pain, shoulder pain, elbow pain. She also complains of weakness of the right andleft index finger. However, it occurs intermittently. She was treated with therapy, splinting and attempted steroid injection without anysignificant change in her symptoms. Patient's last nerve conduction studies completed by Dr. Powell are reported as normal. ALLERGIES: None known; I would qualify patient for having unusual reaction to steroids. MEDICATIONS: Lyrica, Celebrix. SOCIAL HISTORY: Patient is single and confirms not being pregnant- Patient Is menopausal. Patient denies use ofdiet pills, illicit drugs, alcohol or tobacco. Patientis in excellent health. Continued on next page 711 No. 03-14-00457-CV In the UNITED STATES COURT of APPEALS for the THIRD CIRCUIT LINDA BALDWIN, Plaintiff - Appellant ZURICH AMERICAN INSURANCE COMPANY, Defendant - Appellee On Appeal from the 261st District Court of Travis County, Texas CAUSE NO. D-l-GN-13-001281, Gisela D. Triana, Judge Presiding REPLY BRIEFF WORD COUNT CERTIFICATION To the honorable Judge of said Court: I certify that this document brief was prepared with Microsoft Word 2010, and that, according to that program's word-count function, the sections pursuant to rule, contain 2,300 words. Res^eefitolly submitted, indacaidwin, Pro se 10151 Dorrell Lane Apt. 1164 Las Vegas, NV 89166 (512)605-7638 CERTIFICATE OF SERVICE I, Linda Baldwin, hereby certify that on this January 24, day of, 2015,1 served a true and correct copy of Appellant's Brief, via certified mail, return receipt requested, as follows: Third Court of Appeal P.O. Box 12547 Austin, Texas 78711-2547 Jessica McCarthy, Attorney for the Defendant Robert D. Stokes Lynette Phillips Flahive, Ogden, Latson P.O. Box Drawer 201329 Austin, Texas 78720 Texas Department of Insurance Division of Worker's Compensation 7551 Metro Center Drive, Suite 100 Austin, Texas 78744-1609 Linda Baldwin 10151 Dorrell Lane Apartment 1164 Las Vegas, NV 89166 512 605-7638 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4044380. Public record. Not legal advice.