# American Zurich Insurance Company v. Daniel Samudio > Texas Court of Appeals, 1st District (Houston) · December 18, 2015 URL: https://www.frixlaw.com/law-library/cases/4075359 ## Case - **Court:** Texas Court of Appeals, 1st District (Houston) - **Decided:** December 18, 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/4075359 ## How later opinions describe it (automated extraction) - holding that former act did not impair right to jury trial because it authorized “a jury trial of the matters in dispute, under the law as embodied in the Act ” ## Opinion text ACCEPTED 01-15-00478-CV FIRST COURT OF APPEALS HOUSTON, TEXAS 12/18/2015 10:19:04 AM CHRISTOPHER PRINE CLERK No. 01-15-00478-CV FILED IN 1st COURT OF APPEALS In the First District Court of Appeals HOUSTON, TEXAS Houston, Texas 12/18/2015 10:19:04 AM ________________ CHRISTOPHER A. PRINE Clerk AMERICAN ZURICH INSURANCE COMPANY, Appellant, v. DANIEL SAMUDIO, Appellee. ________________ ON APPEAL FROM THE 127TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY , TEXAS TRIAL COURT CAUSE NO . 2006-18753 ________________ BRIEF OF APPELLEE ________________ DOYLE LLP KEELING & DOWNES, P.C. Michael P. Doyle Byron C. Keeling State Bar No. 06095650 State Bar No. 11157980 mdoyle@doylelawfirm.com bck@keelingdownes.com Patrick M. Dennis Anna E. Williams State Bar No. 24045777 State Bar No. 24088638 pdennis@doylelawfirm.com aew@keelingdownes.com 2402 Dunlavy Street, Suite 200 1500 McGowen, Suite 220 Houston, Texas 77006 Houston, Texas 77004 Telephone: (713) 571-1146 Telephone: (832) 214-9900 Facsimile: (713) 571-1148 Facsimile: (832) 214-9908 Attorneys for Appellee Keith Morris, as the administrator of the Estate of Daniel Samudio IDENTITY OF PARTIES AND COUNSEL Appellant: American Zurich Insurance Company Appellate and Trial Counsel: Robert D. Stokes David Owen Cluck Greg D. Solcher FLAHIVE, OGDEN & LATSON P.O. Drawer 201329 Austin, Texas 78720 Telephone: (512) 435-2150 Facsimile: (512) 867-1705 Appellee: Keith Morris, as Administrator of the Estate of Daniel Samudio Appellate and Trial Counsel: Byron C. Keeling Michael P. Doyle Anna E. Williams Patrick M. Dennis KEELING & DOWNES, P.C. DOYLE LLP 1500 McGowen, Suite 220 2402 Dunlavy Street, Suite 200 Houston, Texas 77004 Houston, Texas 77006 Telephone: (832) 214-9900 Telephone: (713) 571-1146 Facsimile: (832) 214-9908 Facsimile: (713) 571-1148 Brief of Appellee i TABLE OF CONTENTS Page Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v Reference Citation Guide. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Standard of Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 I. The Trial Court Correctly Ruled that Dr. Machado’s 20% Impairment Rating Conformed With the AMA Guides. . . . . . . . . . . 11 A. The Evidence of Samudio’s Impairment Supports Dr. Machado’s 20% Impairment Rating. . . . . . . . . . . . . . . . . 12 B. The Trial Court Had No Discretion to Adopt Any Impairment Rating Other Than Dr. Machado’s 20% Rating. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 C. Zurich’s Attacks on Dr. Machado’s 20% Impairment Rating for Samudio Are Irrelevant.. . . . . . . . . . . . . . . . . . . . . 19 Brief of Appellee ii TABLE OF CONTENTS (cont’d) Page II. The Trial Court Did Not Err in Declining to Formally Remand Samudio’s Impairment Rating to the DWC for a New Determination.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 A. The Trial Court Had No Basis for Remanding Samudio’s Impairment Rating to the DWC After Samudio Died. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 B. The Trial Court Had No Basis for Remanding Samudio’s Impairment Rating to the DWC After Samudio Received All of His Benefits. . . . . . . . . . . . . . . . . . 31 III. The Trial Court Correctly Ordered Zurich to Pay Samudio’s Reasonable and Necessary Attorney’s Fees. . . . . . . . . . . . . . . . . . . . 34 A. Samudio Was the Prevailing Party on the Issue for Which Zurich Sought Judicial Review. . . . . . . . . . . . . . . . . . 36 B. Samudio is Entitled to Recover Attorney’s Fees for His Counsel’s Work in Defending Against Zurich’s First Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 C. Samudio is Entitled to Recover Attorney’s Fees for His Counsel’s Work in Defending the Trial Court’s Fee Awards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Appendix. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Brief of Appellee iii INDEX OF AUTHORITIES Cases Page(s) American Zurich Ins. Co. v. Samudio, 370 S.W.3d 363 (Tex. 2012).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Arthur Andersen v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Austin v. Weems, 337 S.W.3d 415 (Tex. App.—Houston [1st Dist.] 2011, no pet.). . . . . . . . 20 Ballard v. Arch Ins. Co., No. 14-14-00647-CV, 2015 WL 6560531 (Tex. App.—Houston [14th Dist.] Oct. 29, 2015, no pet. h.).. . . . . 18, 19, 20 Cervantes v. New Hampshire Ins. Co., No. 04-12-00722-CV, 2013 WL 3486824 (Tex. App.—San Antonio July 10, 2013, pet. denied). . . . . . . . . . . . . . . . . 31 City of Tyler v. St. Louis S.W. Ry. Co., 405 S.W.2d 330 (Tex. 1966).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Commissioner v. Jean, 496 U.S. 154 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Dean Foods Co. v. Anderson, 178 S.W.3d 449 (Tex. App.—Amarillo 2005, pet. denied). . . . . . . 36, 37, 40 Discover Prop. & Cas. Ins. Co. v. Tate, 298 S.W.3d 249 (Tex. App.—San Antonio 2009, pet. denied). . . . . . . . . . 40 Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433 (Tex. 2009).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Fin. Ins. Co. v. Ragsdale, 166 S.W.3d 922 (Tex. App.—El Paso 2005, no pet.).. . . . . . . . . . . . . . . . . 34 Brief of Appellee iv INDEX OF AUTHORITIES (cont’d) Cases Page(s) FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 G & H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Helfman Motors, Inc. v. Stockman, 616 S.W.2d 394 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.). . . . . . . . 38 In re Estate of Pilkilton, No. 05-11-00246, 2013 WL 485773 (Tex. App.—Dallas Feb. 6, 2013, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . 20 In re Gallardo, No. 13-14-00203-CV, 2015 WL 730920 (Tex. App.—Corpus Christi Feb. 19, 2015, no pet.). . . . . . . . . . . . . . . . . . 33 Insurance Co. of the State of Pa. v. Orosco, 170 S.W.3d 129 (Tex. App.—San Antonio 2005, no pet.). . . . . . . . . . . . . 36 Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492 (Tex. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27 Liberty Mut. Ins. Co. v. Montana, 49 S.W.3d 599 (Tex. App.—Fort Worth 2001, no pet.).. . . . . . . . . . . . . . . 38 Lumbermens Mut. Cas. Co. v. Portillo, No.13-10-00470-CV, 2011 WL 2976869 (Tex. App.—Corpus Christi July 21, 2011, no pet.). . . . . . . . . . . . . . . . . . 34 Nauslar v. Coors Brewing Co., 170 S.W.3d 242 (Tex. App.—Dallas 2005, no pet.). . . . . . . . . . . . . . . . . . 34 OHBA Corp. v. City of Carrollton, 203 S.W.3d 1 (Tex. App.—Dallas 2006, pet. denied). . . . . . . . . . . . . . . . . 32 Brief of Appellee v INDEX OF AUTHORITIES (cont’d) Cases Page(s) Old Republic Ins. Co. v. Rodriguez, 966 S.W.2d 208 (Tex. App.—El Paso 1998, no pet.).. . . . . . . . . . . . . . . . . 14 Old Republic Ins. Co. v. Stafford, No. Civ. A. 3:03-CV-1611, 2005 WL 2026853 (N.D. Tex. Aug. 22, 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Phillips v. Bramlett, 407 S.W.3d 229 (Tex. 2013).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Public Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d 368 (Tex. 2001).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248 (Tex. 1999).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Russell v. Russell, No. 14-13-01100-CV, 2015 WL 5723109 (Tex. App.—Houston [14th Dist.] Sept. 29, 2015, no pet. h.). . . . . . . . . . . 28 State Bar of Tex. v. Gomez, 891 S.W.2d 243 (Tex. 1994).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 State Office of Risk Mgmt. v. Joiner, 363 S.W.3d 242 (Tex. App.—Texarkana 2012, pet. denied).. . . . . . . . 12, 17 State Office of Risk Mgmt. v. Ramirez, No. 04-09-00541-CV, 2010 WL 2601667 (Tex. App.—San Antonio June 20, 2010, pet. denied). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Texas Dep’t of Ins., Workers’ Comp. Div. v. De Los Santos, 446 S.W.3d 800 (Tex. App.—San Antonio 2014, no pet.). . . . . . . . . . . . . 33 Texas Dept. of Ins., Div. of Workers’ Comp. v. Lumbermens Mut. Cas. Co., 212 S.W.3d 870 (Tex. App.—Austin 2006, pet. denied). . . . . . . . . . . . . 9, 10 Brief of Appellee vi INDEX OF AUTHORITIES (cont’d) Cases Page(s) Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Texas Mun. League Intergovernmental Risk Pool v. Burns, 209 S.W.3d 806 (Tex. App.—Fort Worth 2006, no pet.).. . . . . . . . . . . 42-43 Texas Nat. Res. Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368 (Tex. 2005).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Texas Workers’ Comp. Comm’n v. Texas Builders Ins. Co., 994 S.W.2d 902 (Tex. App.—Austin 1999, pet. denied). . . . . . . . . . . . . . . 32 Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504 (Tex.1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86 (Tex. App.—Houston [14th Dist.] 2008), rev’d on other grounds, 330 S.W.3d 211 (Tex. 2010). . . . . . . . . . . . . . . . . 42 Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762 (Tex. App.—Dallas 2007, pet. denied). . . . . . . . . . . . . . . 36 Statutes 28 TEX. ADMIN CODE § 130.1 (Vernon Supp. 2015). . . . . . . . . . . . . . . . . . . . 24, 29 TEX. LABOR CODE ANN. § 401.011 (Vernon Supp. 2015). . . . . . . . . . . . . . . . . . . . 7 TEX. LABOR CODE ANN. § 403.006 (Vernon Supp. 2015). . . . . . . . . . . . . . . . 31, 33 TEX. LABOR CODE ANN. § 408.041 (Vernon Supp. 2015). . . . . . . . . . . . . . . . . . . 33 TEX. LABOR CODE ANN. § 408.083 (Vernon Supp. 2015). . . . . . . . . . . . . . . . . . . 32 TEX. LABOR CODE ANN. § 408.122 (Vernon Supp. 2015). . . . . . . . . . . . . . . . . . . . 3 Brief of Appellee vii INDEX OF AUTHORITIES (cont’d) Statutes Page(s) TEX. LABOR CODE ANN. § 408.123 (Vernon Supp. 2015). . . . . . . . . . 24, 25, 29, 30 TEX. LABOR CODE ANN. § 408.124 (Vernon Supp. 2015). . . . . . . . . . . . . . . passim TEX. LABOR CODE ANN. § 408.143 (Vernon Supp. 2015). . . . . . . . . . . . . . . . . . . 33 TEX. LABOR CODE ANN. § 408.147 (Vernon Supp. 2015). . . . . . . . . . . . . . . . . . . 33 TEX. LABOR CODE ANN. § 408.221 (Vernon Supp. 2015). . . . . . . . . . . . . 35, 38, 41 TEX. LABOR CODE ANN. § 410.209 (Vernon Supp. 2015). . . . . . . . . . . . . . . . . . . 31 TEX. LABOR CODE ANN. § 410.210 (Vernon Supp. 2015). . . . . . . . . . . . . . . . . . . 31 TEX. LABOR CODE ANN. § 410.302 (Vernon Supp. 2015). . . . . . . . . . . . . . . . . . . . 8 TEX. LABOR CODE ANN. § 410.306 (Vernon Supp. 2015). . . . . . . . . . . . . . . . . 9, 18 Other American Medical Association Guides to the Evaluation of Permanent Impairment § 2.1 (4th ed. 1993). . . . . . . . . . . . . . . . . . . . . . 25 Div. Workers’ Comp., Appeal No. 061713-s, 2006 WL 3064080 (Oct. 20, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Div. Workers’ Comp., Appeal No. 061940, 2006 WL 3187285 (Oct. 25, 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Tex. Workers’ Comp. Comm’n, Appeal No. 042108-s, 2004 WL 2421582 (Oct. 20, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Tex. Workers’ Comp. Comm’n, Appeal No. 051587, 2005 WL 2507672 (Aug. 22, 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Brief of Appellee viii REFERENCE CITATION GUIDE The Parties This Brief may refer to the parties as follows: Appellant American Zurich Insurance Company “Appellant” or “Zurich” Appellee Keith Morris, as the administrator of the Estate of Daniel Samudio “Appellee” or “Samudio” The Record on Appeal This Brief will refer to the record as follows: Clerk’s Record “CR __” First Supplemental Clerk’s Record “I Supp. __” Reporter’s Record “RR __” Zurich’s Brief of Appellant “App’t Br. at __” Brief of Appellee ix STATEMENT REGARDING ORAL ARGUMENT Appellee Keith Morris, as the administrator of the Estate of Daniel Samudio, respectfully submits that oral argument is unnecessary in this case. This case presents no novel issues of law or fact, and this Court may easily resolve the case on the briefs and the record. Nonetheless, if the Court sets the case for oral argument, Appellee would request the opportunity to participate in the oral argument. Brief of Appellee x STATEMENT OF THE CASE Nature of the Case: This case is a judicial review of an impairment rating that the Division of Worker’s Compensation assigned to Samudio in 2006. (CR 129). Trial Court: The Honorable R.K. Sandill, 127th Judicial District Court, Harris County, Texas. Course of Proceedings: The trial court originally entered a judgment in Samudio’s favor back in 2008. This Court affirmed the trial court’s judgment, but on June 29, 2012, the Texas Supreme Court reversed this Court’s judgment and remanded the case back to the trial court. Samudio passed away on August 7, 2013, and Appellant continued the case against Keith Morris, the administrator of Samudio’s estate. (CR 18, 21). On December 12, 2013, Appellant filed a motion for summary judgment. (CR 10). On May 22, 2014, Samudio filed a cross-motion for summary judgment. (CR 845). Trial Court’s Disposition: On October 7, 2014, the trial court signed an order granting Samudio’s cross-motion for summary judgment and implicitly denying Appellant’s motion for summary judgment. (CR 922) (attached at Tab A). After the parties agreed to submit the issue of attorney’s fees to the trial court, the trial court signed a final judgment in Samudio’s favor. The trial court’s judgment awarded attorney’s fees to Samudio under Section 408.221 of the Texas Labor Code. (CR 1346) (attached at Tab B). Brief of Appellee xi ISSUES PRESENTED Pursuant to Rule 38.2(a) of the Texas Rules of Appellate Procedure, Samudio objects to Appellant’s characterization of the issues presented in this appeal. Samudio identifies the following issues: 1. Did the trial court correctly comply with this Court’s mandate of August 21, 2012, on remand from the Texas Supreme Court? 2. Did the trial court correctly grant Samudio’s motion for summary judgment and deny Appellant’s cross-motion for summary judgment? 3. Did the trial court correctly order Appellant to pay Samudio’s reasonable and necessary attorney’s fees under Section 408.221 of the Texas Labor Code? Brief of Appellee xii No. 01-15-00478-CV In the First District Court of Appeals Houston, Texas ________________ AMERICAN ZURICH INSURANCE COMPANY, Appellant, v. DANIEL SAMUDIO, Appellee. ________________ ON APPEAL FROM THE 127TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY , TEXAS TRIAL COURT CAUSE NO . 2006-18753 ________________ BRIEF OF APPELLEE ________________ TO THE HONORABLE JUSTICES OF THE FIRST COURT OF APPEALS: Appellee Keith Morris, as the administrator of the Estate of Daniel Samudio, respectfully files this Brief of Appellee in support of his request that this Court affirm the trial court’s final judgment in Cause No. 2006-18753, American Zurich Insurance Company v. Daniel Samudio, in the 127th Judicial District Court of Harris County, Texas. The trial court correctly granted summary judgment in Samudio’s favor and properly awarded attorney’s fees to Samudio. Brief of Appellee xiii INTRODUCTION This case — an action seeking judicial review of an impairment rating for a workers’ compensation claimant — has a long procedural history. In a prior appeal, the Texas Supreme Court remanded the case to the trial court with instructions that the trial court determine whether a valid impairment rating had ever been presented to the DWC and, if not, that it send the case back to the DWC for a new impairment rating. On remand, the trial court granted summary judgment in Samudio’s favor, agreeing with Samudio that while the DWC’s designated doctor may have used an improper methodology to calculate a 20% impairment rating for Samudio, the doctor’s 20% rating was nonetheless a valid rating. Other evidence presented to the DWC showed that Samudio had suffered a compression fracture of greater than 50%, and such an injury requires a 20% rating. And by the time the case reached the trial court on remand, it was no longer possible to remand the case to the DWC. Samudio passed away on August 7, 2013. The DWC cannot assess a new impairment rating on a dead claimant. Because Samudio and his counsel prevailed on the issue for which Zurich sought judicial review, Samudio was entitled to recover his reasonable and necessary attorney’s fees, which the trial court properly awarded. This Court should affirm the trial court’s judgment in Samudio’s favor. Brief of Appellee 1 STATEMENT OF FACTS Pursuant to Rule 38.2(a)(1)(B) of the Texas Rules of Appellate Procedure, Samudio offers the following Statement of Facts: The Injury On October 16, 2001, Samudio fell backwards from a ladder in the course of a job that he was performing for his employer, HC Beck, Ltd. (CR 654). Samudio suffered injuries to his head, back, and left arm. (CR 660, 556). His back injuries were especially severe. (CR 654). On October 27, 2001, Samudio underwent an MRI, which revealed that he had suffered a compression fracture at his L1 and L2 discs. (CR 556). Samudio was later diagnosed with lumbar radicular syndrome, post-traumatic instability at his L1 to L3 discs, and spinal stenosis from his T11 to L3 discs. (CR 556-557). Over the next two years, Samudio had four surgeries to repair his injured back, including a laminectomy and a multilevel spinal fusion. (CR 557-558). DWC Proceedings Because of his extensive injuries, Samudio sought workers’ compensation benefits. (CR 31-33). The Division of Workers’ Compensation (“DWC”) appointed a designated doctor, Dr. Gaston Machado, to determine the extent of Samudio’s Brief of Appellee 2 injuries, and Dr. Machado assigned Samudio a 20% impairment rating. (CR 33).1 Zurich never evaluated Samudio, nor did it go through any of the steps necessary to create a viable, alternative impairment rating for Samudio. (CR 33). Consistent with Dr. Machado’s findings, the DWC ruled that Samudio had suffered a 20% impairment rating and ordered that Zurich pay benefits accordingly. (CR 33). The Ensuing Litigation Zurich filed the present action on March 22, 2006. (CR 129). In Zurich’s Original Petition, Zurich asked the trial court to set aside the DWC’s decision in Samudio’s favor, asserting that Dr. Machado’s 20% impairment rating violated the AMA Guides to the Evaluation of Permanent Impairment and was therefore invalid. Zurich requested that the trial court either hold that Samudio had no impairment rating at all or determine that Samudio’s impairment rating was 10% rather than 20%. (Id.). On August 7, 2007, Samudio filed a motion to dismiss Zurich’s lawsuit for lack of jurisdiction. Samudio argued that Zurich’s claims raised no justiciable controversy because (i) the Texas Labor Code required a court to adopt one of the impairment ratings that the parties had presented to the DWC and (ii) the only rating that any 1 Effective September 1, 2005, the operations of the former Texas Workers’ Compensation Commission became the responsibility of the Texas Department of Insurance Division of Workers’ Compensation. TEX . LABOR CODE ANN . § 402.001(b) (Vernon Supp. 2015). Any reference in the Texas Labor Code to the former TWCC is presumed to refer to the current DWC. Id. § 401.025. This brief will use DWC to refer both to the former TWCC and the current DWC. Brief of Appellee 3 party had ever presented to the DWC was Dr. Machado’s impairment rating. The trial court signed an order granting Samudio’s motion to dismiss. (See CR 6). This Court affirmed the trial court’s order.2 On June 29, 2012, the Texas Supreme Court reversed this Court’s judgment and remanded the case back to the trial court. (CR 891).3 The supreme court stated: While [the Texas Labor Code] limits the evidence that a trial court may consider in reviewing an impairment rating assigned by the Division and precludes the court from assigning a rating that was not presented to the agency, it does not prevent the court from setting aside an invalid rating and remanding to the Division for further proceedings. (CR 896). The supreme court directed the trial court to determine on remand whether any of the parties had presented to the DWC an impairment rating consistent with the AMA Guides to the Evaluation of Permanent Impairment and, if not, to remand the case to the DWC for a new impairment determination. (Id.). Procedural History on Remand Daniel Samudio died on August 7, 2013. (CR 18). After Samudio’s counsel filed a suggestion of death, Zurich amended its pleadings to assert its claims against Keith Morris, the administrator of Samudio’s estate. (CR 21). 2 American Zurich Ins. Co. v. Samudio, 317 S.W.3d 336, 349 (Tex. App.—Houston [1st Dist.] 2010), rev’d, 370 S.W.3d 363 (Tex. 2012). 3 American Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 369 (Tex. 2012). Brief of Appellee 4 Subsequently, both Zurich and Samudio filed motions for summary judgment. (CR 10, 845). The trial court granted Samudio’s motion for summary judgment. (CR 922). The parties agreed to submit the issue of Samudio’s reasonable and necessary attorney’s fees to the trial court. (CR 1346). On February 27, 2015, the trial court signed a final judgment awarding $80,519.53 in trial fees, $49,000.00 in appellate fees for the first appeal, and up to $60,000 in appellate fees for Zurich’s current appeal. (Id.). SUMMARY OF ARGUMENT The trial court correctly granted Samudio’s motion for summary judgment. The Texas Supreme Court directed the trial court on remand to determine whether the parties had presented to the DWC an impairment rating that conformed with the AMA Guides. Consistent with the supreme court’s mandate, the trial court determined that even though the DWC’s designated doctor, Dr. Gaston Machado, had improperly relied on DWC advisories in calculating his 20% impairment rating for Samudio, Dr. Machado’s 20% impairment rating nonetheless conformed with the AMA Guides because evidence that the parties presented to the DWC was sufficient to show that Samudio had suffered a compression fracture of greater than 50% — an injury that warrants a 20% rating under the AMA Guides. Brief of Appellee 5 Moreover, the trial court correctly ordered Zurich to pay Samudio’s reasonable and necessary attorney’s fees. Under Section 408.221(c) of the Labor Code, an award of attorney’s fees is mandatory to a claimant who prevails on an issue for which a carrier sought judicial review. Zurich sought judicial review of the DWC’s decision holding that Samudio had a 20% impairment rating. Samudio was the prevailing party on that issue. And because Section 408.221 permits a prevailing claimant to recover the fees that he incurs “as a result” of a carrier’s unsuccessful judicial review proceeding, a claimant may recover all of the fees that he incurs “as a result” of a carrier’s appeal from a DWC decision, including those fees necessary to enforce his right under Section 408.221 to recover his attorney’s fees. Zurich’s arguments in this appeal have no merit. Accordingly, this Court should affirm the trial court’s judgment in Samudio’s favor. STANDARD OF REVIEW Zurich and Samudio filed competing motions for summary judgment. “When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides’ summary judgment evidence and determine all questions presented.” FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). “The reviewing court should render the judgment that the trial court should have rendered.” Id. If the trial court’s summary judgment does not specify the grounds for its judgment, “the reviewing Brief of Appellee 6 court must affirm summary judgment if any of the summary judgment grounds are meritorious.” Id. ARGUMENT A claimant, like Samudio here, may receive impairment income benefits from his employer’s workers’ compensation carrier if he continues to have an impairment even after reaching maximum medical improvement. TEX. LABOR CODE ANN. §§ 401.011(24), 408.124 (Vernon Supp. 2015). The amount of the claimant’s benefits will depend on his “impairment rating,” a percentage which expresses the extent to which the claimant’s injury permanently impaired his body. Id. § 408.124. “The greater this percentage, the greater the amount the employee receives as impairment income benefits.” Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 253 (Tex. 1999). The DWC will typically assign a “designated doctor” to examine the claimant and calculate the claimant’s impairment rating. TEX. LABOR CODE ANN. § 408.124 (Vernon Supp. 2015). The claimant and the carrier may retain their own respective physicians to examine the claimant and calculate an impairment rating. Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 513 (Tex. 1995). Whether it comes from a designated doctor or from one of the parties’ physicians, any impairment rating must comply with the requirements of the AMA Guides to the Brief of Appellee 7 Evaluation of Permanent Impairment. TEX. LABOR CODE ANN. § 408.124(c) (Vernon Supp. 2015). The DWC has exclusive jurisdiction to resolve any dispute over the proper impairment rating for a claimant. Id. § 408.124. In a contested case hearing that raises such a dispute, the designated doctor’s impairment rating carries presumptive weight. Id. § 408.125(c). The claimant or carrier may try to rebut this presumption by offering an impairment rating from one of their own physicians. The DWC may not arbitrarily assess an impairment rating for the claimant. If the preponderance of medical evidence is contrary to the designated doctor’s impairment rating, the DWC must adopt one of the impairment ratings that it receives from “one of the other doctors.” Id. See Garcia, 893 S.W.2d at 514. A party may seek judicial review of an impairment rating. Under Section 410.303 of the Labor Code, a party who seeks judicial review of an impairment rating bears the burden of proving his challenge by a preponderance of the evidence. TEX. LABOR CODE ANN. § 410.303 (Vernon Supp. 2015). The trial court in such a judicial review proceeding must review a DWC’s impairment rating for a claimant under a modified de novo standard. Garcia, 893 S.W.2d at 528. The modified de novo standard in Section 410.303 of the Labor Code restricts the factfinder’s discretion to decide the relevant fact issues. Id. Brief of Appellee 8 Specifically, the trial court, like the DWC, may not arbitrarily assess an impairment rating for a claimant. The trial court — or, as appropriate, a jury as the finder of fact — must adopt one of the impairment ratings that the designated doctor or one of the parties’ physicians actually presented to the DWC. Id. § 410.306(c). As the Texas Supreme Court explained in Garcia: [T]he jury is required to adopt the specific impairment rating arrived at by one of the physicians in the case. . . . For example, if three doctors testify, respectively opining that the claimant is 10, 14, and 20 percent impaired, the jury must return one of those three numbers as its verdict. It may not consider the entirety of the testimony to find, for example, an impairment rating of 16 percent. Garcia, 893 S.W.2d at 528. Here, the only impairment rating in evidence at the contested case hearing was Dr. Machado’s 20% impairment rating. (CR 32). Both then and now, the DWC required that physicians use the fourth edition of the AMA Guides to calculate an impairment rating. See TEX. LABOR CODE ANN. § 408.124(c) (Vernon Supp. 2008). Because the medical community had expressed concerns about how to apply the AMA Guides to patients who had undergone spinal fusion surgery, the DWC issued two bulletins, Advisories 2003-10 and 2003-10b, recommending that physicians assign Category DRE IV — equivalent to a 20% impairment rating — to any patients who received a multilevel fusion.4 At the time, 4 See Texas Dep’t of Ins. v. Lumbermens Mutual Cas. Co., 212 S.W.3d 870 (Tex. App.— Austin 2006, pet. denied) (discussing the history of the advisories). Brief of Appellee 9 Dr. Machado was required to — and therefore did — consider the advisories in calculating his impairment rating for Samudio. (CR 32).5 After the DWC issued its opinion finding that Samudio had a 20% impairment rating, and after Zurich filed this lawsuit seeking judicial review, the Austin Court of Appeals held that the DWC had acted outside its authority in issuing Advisories 2003-10 and 2003-10b. Texas Dep’t of Ins. v. Lumbermens Mutual Cas. Co., 212 S.W.3d 870 (Tex. App.—Austin 2006, pet. denied). The court in Lumbermens ruled that the advisories were invalid. Id. at 877. Subsequently, on July 18, 2007, the DWC issued a bulletin stating that Advisories 2003-10 and 2003-10b “shall no longer be used in determining impairment ratings.” Commissioner’s Bulletin B-0033-07, July 18, 2007. When the present case reached the Texas Supreme Court, the supreme court ruled that the trial court could properly exercise jurisdiction over Zurich’s judicial review proceeding even though Dr. Machado’s 20% rating was the only impairment rating in evidence before the DWC. American Zurich Ins. Co. v. Samudio, 370 S.W.3d 363, 364 (Tex. 2012). The supreme court directed the trial court on remand to determine whether any impairment rating in conformance with the fourth edition 5 The DWC required that a certifying physician consider the advisories in calculating an impairment rating for a claimant who had undergone a multilevel spinal fusion. See, e.g., Div. Workers’ Comp., Appeal No. 061940, 2006 WL 3187285, *2 (Oct. 25, 2006); Div. Workers’ Comp., Appeal No. 061713-s, 2006 WL 3064080, *5 (Oct. 20, 2006); Tex. Workers’ Comp. Comm’n, Appeal No. 051587, 2005 WL 2507672, *1 (Aug. 22, 2005); Tex. Workers’ Comp. Comm’n, Appeal No. 042108-s, 2004 WL 2421582, *2 (Oct. 20, 2004). Brief of Appellee 10 of the AMA Guides was presented to the DWC and, if not, to remand the matter to the DWC for a new impairment determination. Id. at 369. On remand, the trial court correctly determined that even though Dr. Machado considered Advisories 2003-10 and 2003-10b in calculating his impairment rating for Samudio, Dr. Machado’s 20% impairment rating nonetheless conformed with the fourth edition of the AMA Guides. I. The Trial Court Correctly Ruled that Dr. Machado’s 20% Impairment Rating Conformed With the AMA Guides The trial court on remand did exactly what it was supposed to do under the Texas Supreme Court’s mandate. Under the supreme court’s mandate, the trial court was to determine whether a “rating made in conformance with the Guides was presented to the agency.” Samudio, 370 S.W.3d at 369. On May 22, 2014, Samudio filed a motion for summary judgment arguing, among other things, that the evidence conclusively established that Dr. Machado’s 20% impairment rating conformed with the fourth edition of the AMA Guides. (CR 845). The trial court granted Samudio’s motion, effectively determining that Dr. Machado’s rating, which was indisputably presented to the DWC, conformed with the AMA Guides. (CR 922). Zurich argues that because Dr. Machado considered Advisories 2003-10 and 2003-10b in calculating his impairment rating for Samudio, Dr. Machado’s 20% impairment rating is necessarily invalid. See App’t Br. at 16. But the fact that Dr. Brief of Appellee 11 Machado relied upon the advisories in calculating his impairment rating does not mean that his 20% rating is inconsistent with the AMA Guides. The advisories relate to spinal fusions. There are other conditions besides multilevel fusions that may give rise to a 20% impairment rating under the AMA Guides. As Samudio noted in his motion for summary judgment, “it is undisputed that a vertebral compression fracture greater than 50% (i.e., 50.0000001% or greater) entitles a workers’ compensation claimant to a 20% impairment rating.” (CR 845-46).6 The summary judgment evidence shows that Samudio suffered a vertebral compression fracture of greater than 50%. Thus, the trial court correctly ruled that Dr. Machado’s 20% impairment rating conformed with the AMA Guides. A. The Evidence of Samudio’s Impairment Supports Dr. Machado’s 20% Impairment Rating In remanding this case, the Texas Supreme Court tasked the trial court with a “purely legal” question — to determine “whether the proffered rating was made in accordance with statutory requirements.” Samudio, 370 S.W.3d at 368. In resolving that “purely legal” question, the trial court did not need to approve Dr. Machado’s methodology or to agree with all of Dr. Machado’s factual or legal assumptions. See State Office of Risk Mgmt. v. Joiner, 363 S.W.3d 242, 247 (Tex. App.—Texarkana 6 Zurich does not deny that a compression fracture of greater than 50% requires a 20% impairment rating. Dr. Casey Cochran, one of Zurich’s experts, admitted as much in his deposition. (CR 888). Brief of Appellee 12 2012, pet. denied). Rather, the trial court needed only to determine whether Dr. Machado’s 20% impairment rating for Samudio conformed with the AMA Guides. Samudio, 370 S.W.3d at 369. On remand, Keith Morris, as the administrator of Samudio’s estate, filed Samudio’s motion for summary judgment in the trial court in March 2014. (CR 42, 845). Not only had Samudio died by March 2014, but so too had Dr. Machado. (CR 21, 848). In Dr. Machado’s absence, Samudio attached the affidavit of his treating physician, Dr. Jose Rodriguez, in support of his motion for summary judgment. Among other things, Dr. Rodriguez’s affidavit explained: 1. that the injury for which Samudio sought workers’ compensation benefits included a compression fracture of the L1 and L2 vertebrae in Samudio’s lumbar spine; 2. that Dr. Rodriguez himself, in reports going back to 2002, had expressed the opinion that Samudio had suffered a compression fracture of greater than 50%; 3. that the radiologist who had reviewed Samudio’s x-ray images confirmed that Samudio suffered an “approximately 50% compression deformity of L1 vertebral body;” 4. that it is normal for radiologists to provide an approximation of a compression fracture; and 5. that a compression fracture of greater than 50% at the L1 vertebrae would place Samudio in the DRE IV category, which is equivalent to a 20% impairment rating. (CR 857-59). Brief of Appellee 13 Zurich objects that Dr. Rodriguez’s affidavit is irrelevant because Samudio did not offer Dr. Rodriguez’s testimony to the DWC. See App’t Br. at 16-20. In support of its argument, Zurich relies on Section 410.306(c) of the Labor Code. Id. Section 410.306(c) states that except for evidence of a substantial change in the claimant’s condition, the evidence in a judicial review proceeding of the extent of the claimant’s impairment “shall be limited to that presented to the division.” TEX. LABOR CODE ANN. § 410.306(c) (Vernon Supp. 2015). But especially under circumstances like those here, Section 410.306(c) did not bar Samudio from offering Dr. Rodriguez’s affidavit as summary judgment evidence. See, e.g., Old Republic Ins. Co. v. Rodriguez, 966 S.W.2d 208, 210 (Tex. App.—El Paso 1998, no pet.). Rodriguez is on point. In Rodriguez, the claimant’s physician, Dr. Palafox, assigned the claimant a 31% impairment rating. Dr. Palafox died before trial in the carrier’s judicial review proceeding. At trial, the claimant offered the testimony of another physician, Dr. Moreno, to explain Dr. Palafox’s records and findings. The claimant had not previously offered Dr. Moreno’s testimony to the DWC. Nonetheless, the court of appeals concluded: Dr. Moreno explained the procedures used during medical examinations to assess impairment ratings, discussed the American Medical Association guidelines for impairment ratings, and explained how the guidelines are used by doctors to arrive at the percentage impairment ratings employed in workers’ compensation cases. The statute does not prohibit all evidence not presented to the Commission. It prohibits only evidence of the extent of impairment not presented to the Commission. Brief of Appellee 14 Id. at 209 (emphasis added). The issue that the Texas Supreme Court asked the trial court to address on remand was whether Dr. Machado’s 20% impairment rating conformed with the fourth edition of the AMA Guides. Dr. Machado, having passed away in 2011, was unavailable to explain how his 20% impairment rating conformed with the AMA Guides. Relying on evidence of Samudio’s impairment presented to the DWC, Dr. Rodriguez explained how Dr. Machado’s 20% impairment rating conformed with the Guides. Specifically, Dr. Rodriguez attested that because Samudio had suffered a compression fracture of greater than 50%, a 20% impairment rating was consistent with the AMA Guides. (CR 857-60). Dr. Rodriguez did not offer any “new” impairment rating. To the contrary, Dr. Rodriguez confirmed the same 20% impairment rating that Dr. Machado had previously presented to the DWC — albeit on the basis that Samudio had suffered a compression fracture of greater than 50%, not on the basis of Advisories 2003-10 or 2003-10b. Dr. Rodriguez’s affidavit is consistent with, and necessarily arises from, the evidence of Samudio’s impairment presented to the DWC: • Evidence that Samudio suffered a compression fracture was presented to the DWC. Dr. Rodriguez noted in his affidavit that the radiologist who had reviewed the x-rays of Samudio’s back confirmed that Samudio had suffered an “approximately 50%” compression fracture. (CR 858; Brief of Appellee 15 see also CR 872). Dr. Machado, in a report previously presented to the DWC, discussed at length the same radiologist’s findings and stated: “The results showed a 50% compression deformity of the L1 vertebral body . . . .” (CR 159). Dr. Ronald Flasner, in another report presented to the DWC, noted that Samudio “sustained a compression fracture at L1 and L2.” (CR 678). • Evidence that Samudio’s compression fracture was greater than 50% was presented to the DWC. Dr. Rodriguez stated in his affidavit that “[w]ithin reasonable medical probability, Mr. Samudio’s compression fracture of the L1 vertebrae was more than 50%.” (CR 858).7 Dr. Machado, in his report presented to the DWC, specifically noted that Dr. Rodriguez, as Samudio’s treating physician in 2003, had reviewed Samudio’s x-rays and determined that Samudio’s fracture might be even more serious than described in the radiologist’s report. (CR 159) (noting that “there was some splaying of the predicates at L1, which implies that the fracture was unstable”).8 Dr. Flasner, in his report 7 Zurich protests that Dr. Rodriguez’s affidavit “contradicts the opinion of the radiologist who read the X-ray in question.” App’t Br. at 18 (citing CR 872). The radiologist reported that Samudio had suffered an “approximately 50% compression deformity.” (CR 872). Dr. Rodriguez noted in his affidavit that the term “approximately 50%,” as used in the radiologist’s report, does not mean “50% or less.” (CR 859). “That would be a distortion of the radiologist’s statement.” (Id.). 8 In a report dated November 8, 2002, Dr. Rodriguez stated: “Lateral projections confirm that [Samudio] has more than 50% compression of the superior end plate of L1.” (CR 870). Brief of Appellee 16 presented to the DWC, noted that Samudio’s fracture had rapidly degenerated from the time of his injury and, by April 2002, was at 50% and continuing to degenerate. (CR 678) (stating that as of April 24, 2002, Samudio’s compression fracture had “gone from about 10% to 20% to 50%,” and that Samudio had still not reached maximum medical improvement”). The question on remand to the trial court was not whether Dr. Machado’s methodology was correct: indeed, a jury as factfinder did not need to approve Dr. Machado’s methodology to adopt his impairment rating. Joiner, 363 S.W.3d at 247. Rather, the question on remand was whether Dr. Machado’s 20% impairment rating conformed with the AMA Guides. Samudio, 370 S.W.3d at 369. Dr. Machado’s 20% impairment rating conformed with the AMA Guides. Evidence presented to the DWC showed that Samudio suffered a compression fracture of greater than 50%. See supra at 16-17. At a minimum, the preponderance of the evidence presented to the DWC was not so contrary to Dr. Machado’s 20% impairment rating that it necessarily rebutted the statutory presumption favoring his rating. TEX. LABOR CODE ANN. § 408.124(c) (Vernon Supp. 2015). Thus, Dr. Machado’s 20% impairment rating had a sufficient evidentiary basis from the evidence that the parties presented to the DWC. Whether or not Dr. Machado’s methodology was correct, his 20% impairment rating was valid; and a jury as Brief of Appellee 17 factfinder could properly have adopted a 20% impairment rating for Samudio under the modified de novo standard of review. Because the evidence presented to the DWC — and provided to the trial court as part of the summary judgment record — was sufficient to enable a factfinder to determine that Samudio suffered a compression fracture of greater than 50%, the trial court correctly ruled that Dr. Machado’s 20% impairment rating conformed with the AMA Guides. B. The Trial Court Had No Discretion to Adopt Any Impairment Rating Other Than Dr. Machado’s 20% Rating If, based on the evidence presented to the DWC, the jury could properly have adopted Dr. Machado’s 20% impairment rating for Samudio, then the trial court necessarily had to find that Samudio had a 20% impairment rating. Under the modified de novo standard, a trial court must adopt one of the impairment ratings that the parties actually presented to the DWC. TEX. LABOR CODE ANN. § 410.306(c) (Vernon Supp. 2015); see Garcia, 893 S.W.2d at 528.9 If only one impairment rating was presented to the DWC, and if the evidence presented to the DWC is sufficient to show that the rating was valid under the AMA Guides, then the trial court is “required to accept” that rating. Ballard v. Arch Ins. Co., No. 14-14- 9 Section 410.306(c) of the Labor Code requires that on judicial review of a DWC decision determining a claimant’s impairment rating, the reviewing court’s rating “must match one of the doctors’ findings,” and the only relevant fact question is “which doctor’s rating should prevail.” Garcia, 893 S.W.2d at 528; see TEX . LABOR CODE ANN . § 410.306(c) (Vernon Supp. 2015). Brief of Appellee 18 00647-CV, 2015 WL 6560531, *7 (Tex. App.—Houston [14th Dist.] Oct. 29, 2015, no pet. h.). Here, the only impairment rating in evidence at the contested case hearing in the DWC was Dr. Machado’s 20% impairment rating. Although Dr. Machado relied on the DWC advisories for his 20% rating, the evidence presented to the DWC was sufficient to enable a reasonable factfinder to determine that Samudio suffered a compression fracture of greater than 50% — an impairment that justifies a 20% rating under the AMA Guides. See supra at 15-17. Consequently, the trial court had no discretion to adopt any impairment rating for Samudio other than Dr. Machado’s 20% rating. Because the trial court could not adopt any impairment rating other than Dr. Machado’s 20% rating, the trial court did not err in granting summary judgment in Samudio’s favor. See Ballard, 2015 WL 6560531, at *7. C. Zurich’s Attacks on Dr. Machado’s 20% Impairment Rating for Samudio Are Irrelevant Zurich complains that Dr. Rodriguez’s affidavit contradicts Dr. Machado’s deposition testimony. See App’t Br. at 18-19. But Zurich misses the point. Any court that reviews an impairment rating for a workers’ compensation claimant must ask two preliminary questions: 1. What impairment ratings did the parties and the designated doctor present to the DWC?, and Brief of Appellee 19 2. Is there sufficient evidence presented to the DWC showing that those impairment ratings are valid under the AMA Guides? If there are two or more ratings presented to the DWC that find sufficient support in the evidence presented to the DWC, then a factfinder in a judicial review proceeding may adopt one of those ratings for the claimant. Garcia, 893 S.W.2d at 528. If only one rating presented to the DWC finds sufficient support in the evidence presented to the DWC, then the trial court must adopt that rating. Ballard, 2015 WL 6560531, at *7. What Zurich is essentially suggesting is that if its judicial review proceeding had gone to trial, Zurich would have offered Dr. Machado’s deposition testimony to try to persuade the factfinder not to adopt Dr. Machado’s 20% impairment rating. Zurich’s argument might have some merit if Zurich had offered an alternative impairment rating to the DWC. But it did not do so. Thus, Dr. Machado’s deposition testimony is irrelevant. Because Dr. Machado’s 20% rating was the only rating presented to the DWC, and because there was some evidence presented to the DWC sufficient to support it, the trial court had no discretion to adopt any rating other than Dr. Machado’s rating. Id.10 10 Even outside the workers’ compensation context, the fact that the evidence conflicts on an issue does not mean that the evidence is insufficient to support a finding on that issue. See In re Estate of Pilkilton, No. 05-11-00246, 2013 WL 485773, *4 (Tex. App.—Dallas Feb. 6, 2013, no pet.) (not designated for publication); see also Austin v. Weems, 337 S.W.3d 415, 427 (Tex. App.— Houston [1st Dist.] 2011, no pet.) (noting that the jury, as factfinder, was the judge of contradictory evidence). Here, because there was legally sufficient evidence presented to the DWC supporting a 20% impairment rating under the AMA Guides, a fact finder could adopt a 20% rating for Samudio. Brief of Appellee 20 Even if Dr. Machado’s deposition were arguably relevant, he hardly made any conclusive concession in his deposition. At best, his deposition is inconclusive. Dr. Machado testified: Q: You gave him twenty with the advisory; is that correct? A: Advisory, that’s correct. Q: Okay. If you take the advisory out, what DRE category does he fall into? A: Well, I think he’d probably go — I still say he go IV, Category IV. ... A: . . . . We are talking about something that happened in 2004, an injury that occurred in 2001. That’s six — six years ago. That’s a long time. I’m just shooting in the dark here to tell you how much he’s doing and how much he’s going to do in the future. Q: So would it be fair to say that based on your knowledge today, you can’t say that Mr. Samudio is below a twenty percent impairment rating? A: Well, I can’t say he’s not below, but I can’t say he’s above either. Q: Okay. And right now, based on the information that you have and based on your examination of Mr. Samudio and based on all of the other things that you had to rely on, would you stand by the impairment rating that you gave at the time that you gave it? A: That is correct. (CR 77-78, 93). Brief of Appellee 21 Irrespective of Dr. Machado’s testimony, there was at least some evidence presented to the DWC that would have justified a 20% impairment rating for Samudio under the AMA Guides. Samudio relied on that same evidence in support of his motion for summary judgment. Consequently, the trial court correctly ruled that Dr. Machado’s 20% impairment rating conformed with the AMA Guides; and because the trial court could not have adopted any rating other than Dr. Machado’s 20% impairment rating for Samudio, the trial court properly granted summary judgment in Samudio’s favor. II. The Trial Court Did Not Err in Declining to Formally Remand Samudio’s Impairment Rating to the DWC for a New Determination The Texas Supreme Court directed the trial court to determine whether any of the impairment ratings presented to the DWC conformed with the AMA Guides and, if not, to remand the case to the DWC for a new impairment determination. Samudio, 370 S.W.3d at 369. Because the trial court correctly determined that Dr. Machado’s 20% impairment rating for Samudio conformed with the AMA Guides, see supra at 11-18, the trial court did not need to remand the case to the DWC for a new impairment determination. Accordingly, this Court may affirm the trial court’s judgment without reaching the question of whether the trial court should have — or even could have — remanded the case to the DWC. Brief of Appellee 22 In Samudio’s motion for summary judgment, Samudio asserted, as an alternative basis for judgment, that “the relief sought by Zurich — remand — is not available.” (CR 848). Samudio observed: No such relief is available because Mr. Samudio is deceased. No proceeding or new rating could be completed at the DWC without Mr. Samudio. In addition, the designated doctor, Dr. Machado, who would be instructed to perform any new rating is also deceased. Here, remand is not available because both of the two parties that would be involved in further proceedings are deceased. (CR 854). Zurich complains that the trial court, by failing to remand Samudio’s 20% impairment rating formally to the DWC, necessarily disregarded the Texas Supreme Court’s mandate. See App’t Br. at 28. But even aside from the fact that Dr. Machado’s 20% impairment rating for Samudio conformed with the AMA Guides, the trial court had two valid reasons — unknown to the Texas Supreme Court at the time of its mandate — for concluding that it could not remand the case to the DWC: (i) Samudio died after the supreme court released its mandate; and (ii) by the time Samudio died, he had already received all of the benefits to which he would have been entitled under a 20% rating. A. The Trial Court Had No Basis for Remanding Samudio’s Impairment Rating to the DWC After Samudio Died If, as Zurich claims, the trial court impliedly found that the remedy of remanding Samudio’s impairment rating to the DWC was unavailable, then the trial Brief of Appellee 23 court was undoubtedly correct in doing so. The very purpose of a remand would be for the DWC to assign a new impairment rating for Samudio. Samudio, 370 S.W.3d at 369. Section 408.123 of the Labor Code specifies the procedure for the DWC to assign a new impairment rating: After an employee has been certified by a doctor as having reached maximum medical improvement, the certifying doctor shall evaluate the condition of the employee and assign an impairment rating using the impairment rating guidelines described by Section 408.124. If the certification and evaluation are performed by a doctor other than the employee’s treating doctor, the certification and evaluation shall be submitted to the treating doctor, and the treating doctor shall indicate agreement or disagreement with the certification and evaluation. TEX. LABOR CODE ANN. § 408.123(a) (Vernon Supp. 2015); see also 28 TEX. ADMIN. CODE § 130.1(c)(3) (2015). Under the plain terms of Section 408.123, a physician — either the designated doctor or the claimant’s treating doctor — must examine the claimant to be able to assign an impairment rating for the claimant. TEX. LABOR CODE ANN. § 408.123(a) (Vernon Supp. 2015). See State Office of Risk Mgmt. v. Ramirez, No. 04-09-00541- CV, 2010 WL 2601667, *2 (Tex. App.—San Antonio June 30, 2010, pet. denied) (not designated for publication) (“In assigning an impairment rating, a doctor must perform a complete medical examination of the employee . . . .”). The supreme court itself expressly recognized as much. See Samudio, 370 S.W.3d at 367 (acknowledging that Section 408.123 requires that before a physician may assign an impairment rating for a claimant, the physician must examine the claimant). Brief of Appellee 24 Yet, that is impossible here. No one can examine Samudio now that he has died. 1. The DWC Had No Jurisdiction to Assign a New Impairment Rating for Samudio After He Died Zurich argues that the trial court had no choice other than to remand Samudio’s impairment rating to the DWC. But Zurich’s argument begs the question: Just what was the DWC supposed to do on remand? Zurich suggests that the DWC could have assigned a posthumous impairment rating for Samudio. However, Zurich cites no statutory provision that would have enabled the DWC to do so. Section 408.123 of the Labor Code requires a physical examination. Because Samudio is dead, neither the DWC nor any new doctor can now examine him. Only two doctors actually examined Samudio before his death: his designated doctor, Dr. Machado, who likewise is dead; and his treating doctor, Dr. Rodriguez, who agrees with Dr. Machado that Samudio had a 20% impairment rating. (CR 857). As Zurich concedes, an impairment rating must comply with the fourth edition of the AMA Guides. The AMA Guides themselves explicitly require a medical examination. See AMA Guides to the Evaluation of Permanent Impairment § 2.1 (4th ed. 1993) (“According to the Guides, the first step in assessing an individual’s impairment is gathering thorough and complete historical information on the medical condition(s) and then carrying out a medical evaluation supported by appropriate tests Brief of Appellee 25 and diagnostic procedures.”). Because no one can examine a deceased claimant, the DWC has no way to assign any new impairment rating for Samudio. Nor can the DWC arbitrarily assess any posthumous impairment rating for Samudio other than Dr. Machado’s 20% rating. To assess any such rating, the DWC would have to apply procedures other than those in Section 408.123 of the Labor Code, presumably relying — if Zurich has its way — on the opinion of a doctor who never actually examined Samudio. The Texas Workers’ Compensation Act, as reflected in the Labor Code, “precludes the application of claims and procedures not contained within the Act.” Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492, 493 (Tex. 2013).11 The DWC simply has no authority to assign a new impairment rating for a claimant outside the requirements of Section 408.123. An agency like the DWC may “exercise only those powers that the Legislature confers upon [it] in clear and express language.” Texas Nat. Res. Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368, 377 (Tex. 2005). See Public Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d 310, 316 (Tex. 2001) (noting that an agency has no authority to “exercise what is effectively a new power, or a power contradictory to the statute, on the theory such a power is expedient for administrative purposes”). 11 Indeed, the Texas Supreme Court expressly recognized that Zurich’s expert, Dr. John Obermiller, could not assign an impairment rating for Samudio because Dr. Obermiller “never examined Samudio.” Samudio, 370 S.W.3d at 367. Brief of Appellee 26 Zurich is well aware of this. At the trial court’s request, the parties scheduled a benefit review conference with the DWC to discuss whether the DWC could assign a new impairment rating for Samudio. (CR 918). The parties disagree about what exactly took place at the benefit review conference. (Compare CR 915 with CR 917). But Zurich itself reported back to the trial court: Mr. Craddock [the DWC benefit review officer] acknowledged the difficulty in having the claimant seen by a designated doctor for the assignment of a new impairment rating. The original designated doctor is dead, so a re-designation would have to occur. In addition, the claimant is also dead, so no re-examination could occur. Mr. Craddock agreed that the Division would have to engage in an equity measure (essentially waiving the requirement of an examination) in order to get Mr. Samudio a certification of MMI and impairment rating from a second designated doctor, should that become necessary. (CR 915) (emphasis added). Essentially, Zurich reported to the trial court that the DWC would have to make up an entirely new procedure as an “equity measure” to assign another impairment rating to Samudio — something the DWC has no power to do. Adcock, 412 S.W.3d at 493. Zurich complains that even if the DWC had no authority to assign a new impairment rating for Samudio, the trial court nonetheless had a duty to remand Samudio’s impairment rating to the DWC under the supreme court’s mandate. A trial court must comply with a higher court’s mandate “in the absence of changed circumstances,” and the power to determine those changed circumstances “lies alone with the trial court.” City of Tyler v. St. Louis S.W. Ry. Co., 405 S.W.2d 330, 332 Brief of Appellee 27 (Tex. 1966).12 Unquestionably, the circumstances here have changed: Samudio passed away after the supreme court issued its mandate. The Labor Code gives the DWC only the power to assign impairment ratings for the living, not for the dead. Because Samudio passed away in 2013, the DWC cannot assign him a new impairment rating. The trial court did not err in declining to remand this case for the DWC to do something that it had no power to do. 2. The Trial Court Committed No Harmful Error in Ruling that Samudio Had a 20% Impairment Rating As is true in any appeal, Zurich, as the appellant, must show that the trial court committed harmful error. TEX. R. APP. P. 44.1. Proof of harm is a necessary gate through which Zurich must pass to prevail on appeal. See, e.g., Phillips v. Bramlett, 407 S.W.3d 229, 243 (Tex. 2013); G&H Towing Co. v. Magee, 347 S.W.3d 293, 297- 98 (Tex. 2011). Zurich has not shown — and cannot show — that it has suffered any harm. By granting summary judgment for Samudio, the trial court upheld a 20% impairment rating for Samudio. Even if the trial court had remanded Samudio’s impairment rating to the DWC, the only valid rating that the DWC could possibly have assigned to Samudio is a 20% impairment rating. 12 A trial court “is given a reasonable amount of discretion to comply with the mandate.” Russell v. Russell, No. 14-13-01100-CV, 2015 WL 5723109, *3 (Tex. App.—Houston [14th Dist.] Sept. 29, 2015, no pet. h.). Brief of Appellee 28 Section 408.123 of the Labor Code specifies that the first doctor to assign an impairment rating for a claimant is the designated doctor — here, Dr. Machado, who assigned Samudio a 20% impairment rating. TEX. LABOR CODE ANN. § 408.123(a) (Vernon Supp. 2015). Whether a rating comes from the designated doctor or some other physician, the claimant’s treating doctor — here, Dr. Rodriguez — must review any impairment rating and “indicate agreement or disagreement.” Id. Dr. Rodriguez agrees with Dr. Machado that “Mr. Samudio’s impairment rating is 20% for his work injury of October 16, 2001.” (CR 859). A doctor must first examine the claimant before he may assign an impairment rating for the claimant. TEX. LABOR CODE ANN. § 408.123(a) (Vernon Supp. 2015); see supra at 24. Besides the late Dr. Machado, Dr. Rodriguez is the only available doctor who actually examined Samudio: Dr. Rodriguez initially examined Samudio in November 2002, he treated Samudio from 2002 to 2006, and he performed Samudio’s two surgeries. (CR 857-58). Consequently, Dr. Rodriguez is the only available doctor who at this stage could possibly provide an impairment rating that would comply with Section 408.123 of the Labor Code. An assignment rating must be based on objective clinical or laboratory findings. 28 TEX. ADMIN. CODE § 130.1(c)(3) (2015). Here, in agreeing that Samudio’s impairment rating is 20%, Dr. Rodriguez relied on his own documented clinical findings, including his initial evaluation report in November 2002 stating that Brief of Appellee 29 Samudio had a compression fracture of “more than 50%.” (CR 857-58; see CR 870). Dr. Rodriguez also relied on specific laboratory findings — all of the “available diagnostic images,” including the March 2002 x-ray images of Samudio’s compression fracture. (CR 858-59). Zurich complains that Dr. Rodriguez’s opinion about Samudio’s impairment rating is invalid under Section 408.122 of the Labor Code. See App’t Br. at 18. Section 408.122, which is entitled “Eligibility for Impairment Income Benefits,” does not apply here: it describes the procedure for a “finding of impairment” — i.e., a determination of whether the claimant has suffered any impairment at all. TEX. LABOR CODE ANN. § 408.122 (Vernon Supp. 2015). Zurich does not dispute that Samudio suffered an impairment and was eligible to receive impairment income benefits. The Texas Supreme Court explicitly acknowledged that Samudio suffered some compensable impairment: [N]o one presented evidence to the Division that Samudio’s impairment rating was zero, and it is undisputed that he had suffered some permanent impairment. Samudio, 370 S.W.3d at 367. The only question now is the level of Samudio’s impairment — in other words, Samudio’s impairment rating. Section 408.123, not Section 408.122, defines the procedure for assigning an impairment rating. TEX. LABOR CODE ANN. § 408.123(a) (Vernon Supp. 2015). Brief of Appellee 30 Under Section 408.123, Dr. Rodriguez, who actually examined Samudio, is the only available doctor who can assign an impairment rating for Samudio. Based on objective clinical and laboratory findings, Dr. Rodriguez has confirmed that Samudio suffered a compression fracture of greater than 50%, which entitles Samudio to a 20% impairment rating.13 Thus, the trial court’s summary judgment in Samudio’s favor is not harmful error to Zurich: even if the trial court arguably erred in failing to remand Samudio’s impairment rating to the DWC, the only rating that the DWC could possibly assign to Samudio is a 20% rating, which is exactly the same rating that the trial court agreed to be conclusively established under the summary judgment evidence. B. The Trial Court Had No Basis for Remanding Samudio’s Impairment Rating to the DWC After Samudio Received All of His Benefits Not only did Samudio’s death negate any reason for the trial court to remand Samudio’s impairment rating to the DWC, but so too did the fact that by the time of Samudio’s death, he had already received all of the benefits to which he would have been entitled under a 20% rating. Under Texas workers’ compensation law, a carrier may not recover benefits back from a claimant after it has already paid those benefits to the claimant. TEX. LABOR CODE ANN. §§ 403.006, 410.209-.210 (Vernon Supp. 13 Cf. Cervantes v. New Hampshire Ins. Co., No. 04-12-00722-CV, 2013 WL 3486824, *2 (Tex. App.—San Antonio July 10, 2013, pet. denied) (not designated for publication) (holding that the trial court did not err in granting summary judgment upholding the designated doctor’s impairment rating for the claimant where the designated doctor was the only doctor whose rating was presented to the DWC). Brief of Appellee 31 2015); see Texas Workers’ Comp. Comm’n v. Texas Builders Ins. Co., 994 S.W.2d 902, 904 (Tex. App.—Austin 1999, pet. denied). Zurich itself admits as much. See App’t Br. at 29. Because the DWC assessed a 20% impairment rating for Samudio back in 2005, Zurich paid impairment income benefits to Samudio based on a 20% rating. By statute, Samudio continued to receive those benefits until June 23, 2009 — during the pendency of the original appeal of this case. TEX. LABOR CODE ANN. § 408.083 (Vernon Supp. 2015). As of June 23, 2009, Samudio received all of the benefits that he could possibly have received under the Texas workers’ compensation laws. In short, he won. He received full payment of impairment income benefits based on a 20% rating; and after Zurich paid those benefits to Samudio, it could no longer get them back from him. Samudio asked the trial court to grant summary judgment because, among other reasons, there was no longer any justiciable issue for the trial court to resolve. (CR 854). For a trial court to exercise subject matter jurisdiction, a case must raise a justiciable controversy. State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994). “To constitute a justiciable controversy, there must exist a real and substantial controversy involving a genuine conflict of tangible interests and not merely a theoretical dispute.” OHBA Corp. v. City of Carrollton, 203 S.W.3d 1, 5 (Tex. App.—Dallas 2006, pet. denied). Brief of Appellee 32 Here, there is no longer any justiciable issue as between Zurich and Samudio: even if Zurich is correct that Samudio’s impairment rating should be less than 20%, Zurich cannot recover from Samudio any of the benefits that it already paid to him. Zurich’s remedy at this point is solely against the Texas Subsequent Injury Fund (“SIF”), which is authorized to reimburse carriers if they overpaid benefits to a claimant. See TEX. LABOR CODE ANN. § 403.006(b)(4) (Vernon Supp. 2015). The Labor Code specifies the procedures by which a carrier may recover from the SIF. E.g., id. §§ 408.0041, 408.143, 408.147.14 None of those procedures authorizes a carrier to continue pursuing a judicial review proceeding even after the claimant has received full payment of benefits. Essentially, Zurich suggests that even though it may never recover the benefits that it fully paid to Samudio under a 20% rating, it was entitled to continue pursuing its judicial review action against Samudio and to force Samudio’s attorneys to continue defending the action even after they had successfully done what Samudio had retained them to do — secure full benefits for Samudio. Zurich’s position is particularly troubling in light of Zurich’s claim that Samudio’s attorneys are not 14 The Texas Workers’ Compensation Act is a comprehensive statutory scheme, and therefore, it bars a court from applying or enforcing any remedies or procedures that are not specified in the Act. In re Gallardo, No. 13-14-00203-CV, 2015 WL 730920, *8 (Tex. App.—Corpus Christi Feb. 19, 2015, no pet.) (not designated for publication); see also Texas Dep’t of Ins., Workers’ Comp. Div. v. De Los Santos, 446 S.W.3d 800, 805-06 (Tex. App.—San Antonio 2014, no pet.) (holding that a trial court exceeded its authority in ordering the SIF to pay benefits to a claimant where the Act did not grant Texas courts any authority to make such an order). Brief of Appellee 33 entitled to recover any fees for the work that Zurich forced them to do in continuing to defend the case even after Samudio received all of the benefits that he was entitled to receive under a 20% rating. See App’t Br. at 35-37.15 There was no longer any justiciable controversy after Samudio received full payment of his benefits. Absent any justiciable controversy, the trial court lacked subject matter jurisdiction over Zurich’s claims, and there was nothing for the trial court to remand to the DWC. Accordingly, the trial court did not err in granting summary judgment in Samudio’s favor.16 III. The Trial Court Correctly Ordered Zurich to Pay Samudio’s Reasonable and Necessary Attorney’s Fees A carrier that files an unsuccessful judicial review action is liable for the claimant’s reasonable and necessary attorney’s fees. Financial Ins. Co. v. Ragsdale, 166 S.W.3d 922, 930 (Tex. App.—El Paso 2005, no pet.). Specifically, Section 408.221(c) of the Texas Labor Code provides: 15 To support its argument that it necessarily had to continue pursuing its claims against Samudio, Zurich relies on the unpublished opinion in Lumbermens Mut. Cas. Co. v. Portillo, No. 13-10-00470-CV, 2011 WL 2976869 (Tex. App.—Corpus Christi July 21, 2011, no pet.) (not designated for publication). But Portillo is distinguishable. The claimant in Portillo was still alive. And nothing in Portillo suggests that the claimant had received all of the benefits he was entitled to receive; instead, it states merely that the carrier intended to seek reimbursement for past overpayments from the SIF rather than from the claimant. Id. at *2. 16 A trial court may properly grant summary judgment if it lacks subject matter jurisdiction over an action. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). Even if a trial court dismisses a case for lack of subject matter jurisdiction, it retains jurisdiction to grant attorney’s fees to the prevailing party. “A trial court’s dismissal for lack of subject-matter jurisdiction does not prevent the concurrent award of attorney’s fees under [a] mandatory award provision.” Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 257 (Tex. App.—Dallas 2005, no pet.). Brief of Appellee 34 An insurance carrier that seeks judicial review under Subchapter G, Chapter 410, of a final decision of the appeals panel regarding compensability or eligibility for, or the amount of, income or death benefits is liable for reasonable and necessary attorney’s fees as provided by Subsection (d) incurred by the claimant as a result of the insurance carrier’s appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier . . . . TEX. LABOR CODE ANN. § 408.221(c) (Vernon Supp. 2015) (emphasis added). Zurich sought judicial review of a single issue, “What is claimant Samudio’s impairment rating?” After years of protracted litigation, the trial court ruled that Samudio was the prevailing party on this issue, agreeing with the DWC that Samudio’s impairment rating was 20%. (CR 922). Applying Section 408.221(c) of the Labor Code, the trial court awarded $80,519.53 in fees and expenses in the trial court, $49,000.00 in fees for the first appeal, and up to $60,000.00 in fees for the present appeal. (CR 1346-47). Zurich raises three objections to the trial court’s fee award. First, Zurich contends that Samudio was not the prevailing party on Zurich’s claims. Second, Zurich contends that Samudio is not entitled to recover any fees for the first appeal. Third, Zurich contends that Samudio is not entitled to recover any fees for the work that Zurich necessarily forced Samudio’s attorneys to do in defending the trial court’s fee awards. Each of Zurich’s three objections to the trial court’s fee award lacks merit. Brief of Appellee 35 A. Samudio Was the Prevailing Party on the Issue for Which Zurich Sought Judicial Review Zurich argues that Samudio “is not entitled to recover attorneys’ fees in this case because he has not proved that he is a prevailing party under the act.” App’t Br. at 32. Curiously, Zurich does not cite any definition for the term “prevailing party.” Although Section 408.221(c) does not itself define the term, courts have ruled that a “prevailing party is one who is vindicated by the trial court’s judgment.” Insurance Co. of the State of Pa. v. Orosco, 170 S.W.3d 129, 134 (Tex. App.—San Antonio 2005, no pet.); see also Dean Foods Co. v. Anderson, 178 S.W.3d 449, 454 (Tex. App.—Amarillo 2005, pet. denied) (holding that a party “prevails” if he “successfully prosecutes the action or successfully defends against it, prevailing on the main issue, even though not to the extent of its original contention”) (emphasis added). The purpose of Section 408.221(c) is to place the burden of the claimant’s fees on the carrier in the event that the carrier chooses to file an unsuccessful judicial review action. Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762, 768 (Tex. App.—Dallas 2007, pet. denied). As the Amarillo Court of Appeals has explained: In enacting that statute, it appears that the intent of the legislature was to ensure that if the insurance carrier appealed an award, thereby delaying the payment of benefits to an injured worker, it ran the risk of having to pay the claimant’s attorney’s fees if its appeal was not well taken. Additionally, there is another valid reason for the statute and the apparent legislative intent. While a worker is not required to have an attorney to represent him or her in TWCC proceedings, in an appeal to the district court, the worker must obtain an attorney or run the risk of Brief of Appellee 36 representing himself or herself with the pitfalls that may await a non- legally trained participant in a court of record. Dean Foods Co., 178 S.W.3d at 454-55. Zurich filed this action asking the trial court to set aside the DWC’s final decision approving Dr. Machado’s 20% impairment rating for Samudio. (CR 129). The Texas Supreme Court remanded this action for the trial court to resolve that specific issue. Samudio, 370 S.W.3d at 368. The trial court granted Samudio’s motion for summary judgment and found that Samudio had a valid 20% impairment rating. (CR 922). Consequently, Samudio was the prevailing party on Zurich’s judicial review action: he successfully defended against Zurich’s request that the trial court set aside the DWC’s final decision. Because Samudio was the prevailing party, the trial court correctly awarded attorney’s fees to Samudio. B. Samudio is Entitled to Recover Attorney’s Fees for His Counsel’s Work in Defending Against Zurich’s First Appeal Zurich argues that the trial court’s fee award to Samudio improperly includes $49,000.00 in fees for the work that Samudio’s attorneys performed in defending against Zurich’s first appeal. See App’t Br. at 33. In short, Zurich contends that even though Samudio ultimately was the prevailing party, Samudio may not recover any fees for what Zurich characterizes as an “unsuccessful” appeal. Id. Under Zurich’s argument, a trial court must parse an attorney’s fee statements, and even if the attorney ultimately secured a successful judgment, the court must eliminate any fees Brief of Appellee 37 for work that the attorney may have performed in pursuing unsuccessful motions or arguments. While Zurich’s argument might describe the rule in federal court, it has never been the rule in Texas state court. The Andersen factors for a fee award emphasize the ultimate “results obtained,” not the success of an attorney’s work on individual tasks. Arthur Andersen v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). See Helfman Motors, Inc. v. Stockman, 616 S.W.2d 394, 399 (Tex. App.—Fort Worth 1981, writ ref’d n.r.e.) (affirming an attorney’s fee award even though it included fees for an injunction that became moot); see also Liberty Mut. Ins. Co. v. Montana, 49 S.W.3d 599, 604 (Tex. App.—Fort Worth 2001, no pet.). Section 408.221 of the Labor Code, which incorporates the Andersen factors, requires that a trial court consider “the benefits to the claimant that the attorney is responsible for securing.” TEX. LABOR CODE ANN. § 408.221(d)(6) (Vernon Supp. 2015). Although tailored to a judicial review proceeding, this language — consistent with the Andersen factors — emphasizes the ultimate result of an attorney’s work, not the success of an attorney’s work on individual tasks. Here, Samudio’s attorneys secured all of the benefits that Samudio was entitled to receive from Zurich under a 20% impairment rating, and the trial court confirmed that Samudio’s 20% impairment rating was valid. See supra at 31-32. Brief of Appellee 38 Zurich cannot validly complain that the work of Samudio’s attorneys on the first appeal was “unnecessary.” The ruling that prompted the first appeal was the trial court’s order dismissing Zurich’s claims because Dr. Machado’s 20% impairment rating was the only rating presented to the DWC. Zurich appealed the trial court’s order, and Zurich’s appeal necessitated the work of Samudio’s attorneys. This Court affirmed the trial court’s order. Significantly, the Texas Supreme Court did not reverse and render judgment in Zurich’s favor; it reversed and remanded the case for the trial court to determine whether Dr. Machado’s 20% rating conformed with the AMA Guides. The trial court on remand confirmed that Dr. Machado’s 20% rating conformed with the AMA Guides. The work of Samudio’s attorneys in the first appeal did not go to waste. Because some evidence presented to the DWC shows that Dr. Machado’s 20% rating is proper under the AMA Guides, then — as Samudio’s attorneys argued in the first appeal — the trial court had no choice other than to assess a 20% impairment rating for Samudio. The circumstances here are no different than a situation where a trial court initially denies a motion for summary judgment but later grants a directed verdict on similar arguments. Counsel’s work on an unsuccessful summary judgment motion (or a first appeal) is not “unnecessary” if the same or similar arguments are later vindicated through additional development of the evidence. Brief of Appellee 39 The trial court did not err in awarding $49,000 in fees for Samudio’s first appeal. Accordingly, this Court should affirm the trial court’s award of attorney’s fees to Samudio. C. Samudio is Entitled to Recover Attorney’s Fees for His Counsel’s Work in Defending the Trial Court’s Fee Awards Zurich argues that Samudio is not entitled to recover allegedly “improper ‘fees- for-fees.’” App’t Br. at 35-36 (citing Discover Prop. & Cas. Ins. Co. v. Tate, 298 S.W.3d 249, 260 (Tex. App.—San Antonio 2009, pet. denied)). Of course, Zurich was the party who originally sought judicial review of Samudio’s impairment rating. (CR 129). Zurich named Samudio as a defendant in the lawsuit. (Id.). Zurich filed the first appeal. (CR 6). And Zurich has now filed the present appeal. Zurich has continually pursued litigation against Samudio, and Samudio was entitled to defend himself, as the Labor Code provides. Because Zurich has failed in its litigation, the Labor Code entitled Samudio to recover fees for having to defend against Zurich’s failed litigation. Zurich’s argument defeats the very purpose of Section 408.221, which among other things was intended to ensure that injured workers have the ability to secure adequate legal representation in a judicial review proceeding. Dean Foods Co., 178 S.W.3d at 454-55. Attorneys will be less likely to represent injured workers if those attorneys must themselves bear the costs of pursuing an award of attorney’s fees. Brief of Appellee 40 The present case is a perfect example: Zurich takes the position that Samudio’s attorneys cannot recover any fees for any work after June 23, 2009, even though Zurich continues to press its claims against Samudio. See App’t Br. at 36.17 Under Zurich’s position, Samudio’s attorneys must defend Zurich’s continued claims pro bono — exactly the result that the Texas Legislature sought to avoid in amending Section 408.221 to ensure that the carrier, and not the claimant, assumed the risk of paying the claimant’s attorney’s fees in the event of an unsuccessful judicial review proceeding. Moreover, Zurich’s argument is contrary to the plain terms of the statute. Section 408.221(c) states that a carrier which unsuccessfully seeks judicial review of a DWC decision is liable for the attorney’s fees “incurred by the claimant as a result of the insurance carrier’s appeal.” TEX. LAB. CODE ANN. § 408.221(c) (Vernon Supp. 2015) (emphasis added). By its plain terms, Section 408.221(c) contains both a condition (“if the claimant prevails. . . .”) and a consequence (“[a]n insurance carrier . . . is liable for reasonable and necessary attorney’s fees . . . incurred by the claimant as a result of the . . . appeal”). If the condition occurs, then the consequence logically 17 Significantly, the federal government took a similar — and unsuccessful — position with respect to the Equal Access to Judgment Act, arguing that it does not permit a prevailing claimant to recover “fees for fees.” Commissioner v. Jean, 496 U.S. 154, 162 (1990). The Supreme Court ruled that if the government could impose the cost of litigating fee disputes on prevailing claimants, then “the financial deterrent that the EAJA aims to eliminate would be resurrected.” Id. at 164. Brief of Appellee 41 follows — the claimant may recover all of the reasonable and necessary fees he incurs as a result of the carrier’s judicial review proceeding. Zurich relies on the San Antonio Court of Appeals opinion in Tate, neglecting to mention the contrary opinion of this Court’s sister court, the Fourteenth Court of Appeals, in Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86 (Tex. App.— Houston [14th Dist.] 2008), rev’d on other grounds, 330 S.W.3d 211 (Tex. 2010). Interpreting the “as a result of” language in Section 408.221(c), the court of appeals in Crump stated: [I]f the claimant successfully performs the predicate — prevailing on an issue on which the carrier sought judicial review — the claimant is entitled to attorney’s fees incurred as a result of the appeal. Here, appellee, through her attorneys, was required to prepare and submit written evidence to the trial court supporting her request for attorney’s fees. . . . In addition, because the parties could not agree on the amount of appellee’s reasonable and necessary attorney’s fees, her attorney was required to set and attend a trial court hearing on that matter. We hold appellee incurred these attorney’s fees as a result of appellant’s appeal. Crump, 274 S.W.3d at 104 (emphasis added). Other courts have reached similar results. See, e.g., Old Republic Ins. Co. v. Stafford, No. Civ. A. 3:03-CV-1611, 2005 WL 2026853, *7 (N.D. Tex. Aug. 22, 2005) (“[T]he Court finds that Stafford is entitled to recover attorney’s fees for time spent on preparing his fee application. … The preparation of a fee application for fees that are specifically provided for by [Section 408.221(c)] necessarily result[s] from the carrier’s appeal.”) (emphasis added); Texas Mun. League Intergovernmental Risk Brief of Appellee 42 Pool v. Burns, 209 S.W.3d 806, 819-20 (Tex. App.—Fort Worth 2006, no pet.) (affirming an award of attorney’s fees resulting from a carrier’s appeal). Zurich argues that whether it “owes fees to Samudio’s attorneys is not a matter involving entitlement to or eligibility for benefits.” App’t Br. at 36. But Zurich’s argument effectively changes the language of Section 408.221(c) to say that it permits a claimant to recover only those fees incurred in defense of the carrier’s judicial review proceeding, as opposed to those fees incurred as a result of the carrier’s proceeding. Zurich’s argument thus fails to comply with one of the most basic rules of statutory construction — that a court must give effect to the plain terms of Section 408.221(c) as they are written. See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009). The trial court correctly awarded attorney’s fees for the fees that Samudio’s attorneys incurred as a result of Zurich’s judicial review proceeding, including the fees that Samudio’s attorneys necessarily incurred in pursuit of an award of attorney’s fees. Accordingly, this Court should affirm the trial court’s judgment. CONCLUSION Zurich’s arguments have no merit. The trial court correctly found that Dr. Machado’s 20% impairment rating for Samudio conformed with the AMA Guides; and because Samudio was the prevailing party on Zurich’s claims, the trial court correctly awarded reasonable and necessary attorney’s fees to Samudio. Samudio Brief of Appellee 43 respectfully requests that this Court affirm the trial court’s judgment in Samudio’s favor and grant Samudio all such further and additional relief to which he may show himself to be justly entitled. Respectfully submitted, KEELING & DOWNES, P.C. /S/ Byron C. Keeling By:__________________________________ Byron C. Keeling State Bar No. 11157980 bck@keelingdownes.com Anna E. Williams State Bar No. 24088638 aew@keelingdownes.com 1500 McGowen, Suite 220 Houston, Texas 77004 Telephone: (832) 214-9900 Facsimile: (832) 214-9908 DOYLE LLP Michael P. Doyle State Bar No. 06095650 mdoyle@doylelawfirm.com Patrick M. Dennis State Bar No. 24045777 pdennis@doylelawfirm.com 2402 Dunlavy Street, Suite 200 Houston, Texas 77006 Telephone: (713) 571-1146 Facsimile: (713) 571-1148 COUNSEL FOR APPELLEE DANIEL SAMUDIO Brief of Appellee 44 CERTIFICATE OF SERVICE I hereby certify that on the 18th day of December, 2015, the foregoing document was forwarded to the following via electronic service: Mr. Robert D. Stokes Mr. Gregory D. Solcher Mr. David Owen Cluck Flahive, Ogden & Latson P.O. Box 201329 Austin, Texas 78720 Telephone: (512) 435-2150 Facsimile: (512) 241-3305 Counsel for Appellant American Zurich Insurance Company /S/ Byron C. Keeling ____________________________ Byron C. Keeling Brief of Appellee 45 CERTIFICATE OF COMPLIANCE The undersigned certifies that this Brief of Appellee complies with the typeface requirements in Tex. R. App. P. 9.4(e) because it has been prepared in a conventional typeface no smaller than 14-point for text and 12-point for footnotes. Additionally, the undersigned certifies that this brief complies with the word- count limitations of Tex. R. App. P. 9.4(i )(2) because, excluding all parts exempted under Tex. R. App. P. 9.4(i)(1), the brief contains 10,796 words. /S/ Byron C. Keeling ________________________________ Byron C. Keeling Brief of Appellee 46 APPENDIX A Order, Oct. 7, 2014 (CR 922); B Judgment, Feb. 27, 2014 (CR 1346). Brief of Appellee 47 TAB A 5/22/2014 12:59:28 PM Chris Daniel • District Clerk Harris County Envelope No: 1338367 By: CABRERA, VALERY C f.\ CAUSE NO. 2006-18753 AMERICAN ZURICH INSURANCE § IN THE DISTRICT COURT SYSTEM § § VS. § § § HARRIS COUNTY, TEXAS ttL DANIEL SAMUDIO § 127fH JUDICIAL DISTRICT ORDER ON DEFENDANT'S AMENDED MOTION FOR SUMMARY JUDGMENT Came to be heard Defendant's Amended Motion for Summary Judgment, and the Court is of the opinion that the motion should be and hereby is GRANTED. Signed this z.y o£Clct-. . 2014. ~-=::: DISTRICT JUDGE 922 TAB B FILED Chrla Danlel -£ Dlatrlot CieriD""1 COMPANY § § vs § HARRIS COUNTY, TEXAS § § DANIBL SAMUDIO § 127™ JUDIOAL DISI'RICT FINAL JUDGMENT On October 7, 2014, tlus Court Granted Defendant's Amended Mohon for Summary Judgment~ fmdang that Defendant 1s the prevmhng party on ail 1SSues Subsequently, the parties sbpulated that the issue of reasonable and necessary attorneys" fees would be subnutted to the Court on written evidence, and a hearing was held on February 13, 2015 Havmg considered the evidence and bnefs submitted by the parties, the Court fmds that the following fees are reasonable and necessary fees incurred m the defense of tlus matter through October 7, 2014 a Doyle Rai.zner LLP Fees $69,140 50 b Doyle Raizner LLP Expenses $5;175 03 c Blackwell & H aag, P C Fees $3,334 00 d Tonya D Carter & Associates $2,570 00 e Keeling & Downes, PC (flrst appeal) $49,000 00 Defendant has also requested reunbursement of attorneys' fees should Plamh.ff ftle a second appeal of tlus matter a In the event of an appeal to the Court of Appeals $30,000 00 1346 b In the event of a Petition to the Texas Supreme Court $10,000 00 c In the event that a Petihon for Review is Granted $20,000 00 IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that Plamhff pay the amounts set for above Tlus ts a final order and is appealable Signed thls 27th day of February, 2015 DISTRICT JUDGE 2 1347 HYPERLINKED MATERIALS Clerk’s Record Excerpts Tab A (Appendix) CR 922 Tab B (Appendix) CR 1346-47 Tab C CR 857-60 Cases Tab 1 American Zurich Ins. Co. v. Samudio, 370 S.W.3d 363 (Tex. 2012) Tab 2 Arthur Andersen v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997) Tab 3 Ballard v. Arch Ins. Co., No. 14-14-00647-CV, 2015 WL 6560531 (Tex. App.—Houston [14th Dist.] Oct. 29, 2015, no pet. h.) Tab 4 City of Tyler v. St. Louis S.W. Ry. Co., 405 S.W.2d 330 (Tex. 1966) Tab 5 Dean Foods Co. v. Anderson, 178 S.W.3d 449 (Tex. App.—Amarillo 2005, pet. denied) Tab 6 Insurance Co. of the State of Pa. v. Orosco, 170 S.W.3d 129 (Tex. App.—San Antonio 2005, no pet.) Tab 7 Liberty Mut. Ins. Co. v. Adcock, 412 S.W.3d 492 (Tex. 2013) Tab 8 Old Republic Ins. Co. v. Rodriguez, 966 S.W.2d 208 (Tex. App.—El Paso 1998, no pet.) Tab 9 Old Republic Ins. Co. v. Stafford, No. Civ. A. 3:03-CV-1611, 2005 WL 2026853 (N.D. Tex. Aug. 22, 2005) Tab 10 Public Util. Comm’n v. City Pub. Serv. Bd., 53 S.W.3d 368 (Tex. 2001) Tab 11 State Office of Risk Mgmt. v. Joiner, 363 S.W.3d 242 (Tex. App.—Texarkana 2012, pet. denied) Tab 12 State Office of Risk Mgmt. v. Ramirez, No. 04-09-00541-CV, 2010 WL 2601667 (Tex. App.—San Antonio June 20, 2010, pet. denied) Tab 13 Texas Nat. Res. Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368 (Tex. 2005) Tab 14 Texas Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504 (Tex.1995) Tab 15 Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86 (Tex. App.—Houston [14th Dist.] 2008), rev’d on other grounds, 330 S.W.3d 211 (Tex. 2010) Tab 16 Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762 (Tex. App.—Dallas 2007, pet. denied) Texas Labor Code Tab 17 TEX. LABOR CODE ANN. § 408.122 (Vernon Supp. 2015) Tab 18 TEX. LABOR CODE ANN. § 408.123 (Vernon Supp. 2015) Tab 19 TEX. LABOR CODE ANN. § 408.124 (Vernon Supp. 2015) Tab 20 TEX. LABOR CODE ANN. § 408.221 (Vernon Supp. 2015) Tab 21 TEX. LABOR CODE ANN. § 410.306 (Vernon Supp. 2015) TAB C From 7137815712 Pa.ge· 215 Date· 5/1312014 11 :06:29 AM Fmm: 71:i-671-1148 To Jo~e RQdnguel MO P.ssion fracturc'l\1 Ll 11.nd L2 would not ho.vc OC()tmcd. At my iuili,r 1k.>cte>r wi!h personal knowledge of the act cvc:nJ. conditiou. opinion, ur nnltd th.at !lie radiologist who rcvil)wOO ~t. $11mudio's Ma1>0h 20, 2002 ima~s also confinutxl ''nppmx(mutdy 50% IX'llllprcs~oo defoirnity of LI vcnchral body." His opinion nppom-s to h¢ ctlll~i~ldl\I with mine: however. ! look effort~ to flrrthcr dcfioe the omouLlt oflhc Cl'llllprcsfiion frncture ·1ho r(!asnn that I took such cffo11~ i1' b~ause I was !he treating phytriciun nnd wn~ t:tskcd wilh dc!it~nnimng the nc~ssity of und pcrfom1iog spi.nnl surgery. It is nom1ctl for mdiologj~tt, liku l)r. R:uuan Mocharia, who 111£0 t'C!ld thu M:iroh 20, 2002 im flge11, to pl' oompres~lon.. be 11scd to &llSSC6t that a compression fran fhti11t1~ ot J .I in Mr. Saruu~c Rodtig11e:t, M.D., declare under llellnlty or pe1jury under lhe1 l~ws of the l;l\ited 3 EXHIBIT "A" 859 From 7137815712 Page: 515 Date: 5113/2014 11 :06:29AM From: 713-571 -1148 To: Jose Rodriguez MO P11ge: 6121 Date· 5112/2014 :2:31 ;33 PM States and the Stnte of Texas that the foregoiug is true :111d correct. Executed in May J_)-, 2014, a1 Houston, Texa BEFORE ME, the undersigned authority in and for snid couuty and state, on this dny pcrsom11ly appeared ~t:-e~, i"t,1.t!C?.J1!1JO proved to me through a cuirent ideutiflcAtion care or other document issued by tbe~·lederal govemmcnt containing his/her photograph :md signature 1·0 be the person whose nnrne ls imbscribeO Expires \":i~;?,i.~f.~S Aprll 2 4, 2017 4 EXHIBIT "A" 860 TAB 1 American Zurich Ins. Co. v. Samudio, 370 S.W.3d 363 (2012) 55 Tex. Sup. Ct. J. 1028 KeyCite Yellow Flag - Negative Treatment Distinguished by Liberty Mut. Ins. Co. v. Adcock, Tex., August 30, 2013 370 S.W.3d 363 Supreme Court of Texas. AMERICAN ZURICH INSURANCE COMPANY, Petitioner, v. Daniel SAMUDIO, Respondent. No. 10–0554. | Argued Jan. 10, 2012. | Decided June 29, 2012. Synopsis Background: Workers' compensation insurer filed petition for judicial review of decision of the Department of Insurance Division of Workers' Compensation, finding that claimant had a 20% impairment rating. The 127th District Court, Harris County, 2007 WL 5527082, Sharolyn P. Wood, J., dismissed petition and awarded claimant attorney fees. Insurer appealed. The Houston Court of Appeals, 317 S.W.3d 336, affirmed. Insurer sought further review, which was granted. Holdings: The Supreme Court, Lehrmann, J., held that: [1] Workers' Compensation Act did not deprive trial court of subject matter jurisdiction to review impairment rating, and [2] Act permitted trial court to reverse impairment rating and remand to Division. Reversed and remanded. West Headnotes (6) [1] Workers' Compensation Record Workers' Compensation Act section limiting evidence in an appeal to the trial court of the Department of Insurance Division of Workers' Compensation's impairment rating determination to evidence of impairment that was presented to the agency did not deprive trial court of subject matter jurisdiction to review impairment rating; while section did not allow a reviewing court to consider impairment evidence that was not before the Division, or to award an impairment rating that was not presented to the agency, it did not limit the trial court's subject matter jurisdiction. V.T.C.A., Labor Code § 410.306(c). 6 Cases that cite this headnote [2] Courts Jurisdiction of Cause of Action Subject matter jurisdiction limits speak to the power of courts to decide a particular type of controversy, not to the evidence that courts may consider or the scope of the remedy they can afford in a particular case. Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 American Zurich Ins. Co. v. Samudio, 370 S.W.3d 363 (2012) 55 Tex. Sup. Ct. J. 1028 [3] Workers' Compensation Remand in general Workers' Compensation Act section limiting evidence in an appeal to the trial court of the Department of Insurance Division of Workers' Compensation's impairment rating determination to evidence of impairment that was presented to the agency permitted trial court to reverse impairment rating and remand to the Division; in considering whether an impairment rating submitted to the Division was valid, a reviewing court was not making a determination of impairment, rather the court was deciding the purely legal question of whether the proffered rating was made in accordance with statutory requirements. V.T.C.A., Labor Code § 410.306(c). 6 Cases that cite this headnote [4] Statutes Intent The Supreme Court's fundamental purpose in construing statutes is to determine and give effect to the legislature's intent. 8 Cases that cite this headnote [5] Statutes Language and intent, will, purpose, or policy The words the legislature employed are the best indicators of legislative intent. 5 Cases that cite this headnote [6] Statutes Other Statutes When interpreting a statute, the Supreme Court may be aided by the interpretive context provided by the surrounding statutory landscape. 1 Cases that cite this headnote Attorneys and Law Firms *364 Robert D. Stokes, Gregory D. Solcher, Flahive, Ogden & Latson PC, Austin TX, for American Zurich Insurance Company. Byron C. Keeling, Ruth B. Downes, Keeling & Downes, P.C., Michael P. Doyle, Doyle Raizner LLP, David Q. Haag II, Blackwell & Haag, P.C., Houston TX, for Daniel Samudio. Nicholas Canaday III, Office of the Attorney General, Austin, TX, for Amicus Curiae Texas Department of Insurance Division of Workers' Compensation. Marcos Benjamin Guerra, Assistant Attorney General, for Amicus Curiae State Office Risk Management. Opinion Justice LEHRMANN delivered the opinion of the Court. Under the Texas Workers' Compensation Act, an injured worker's impairment income benefits are determined in part by the impairment rating assigned by the Texas Department of Insurance's Division of Workers' Compensation. TEX. LAB.CODE § 408.121(a)(1). In an appeal to the district court of the Division's impairment rating determination, unless there is evidence of a © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 American Zurich Ins. Co. v. Samudio, 370 S.W.3d 363 (2012) 55 Tex. Sup. Ct. J. 1028 substantial change in the worker's condition, the court may consider only evidence of impairment that was presented *365 to the agency, and may only adopt an impairment rating assigned by a doctor in the administrative proceedings. TEX. LAB.CODE § 410.306(c). We must decide whether a reviewing court lacks subject matter jurisdiction to resolve an impairment rating appeal if the only rating presented to the agency was invalid. We hold that the absence of a valid impairment rating does not deprive the court of jurisdiction. Consequently, we reverse the court of appeals' judgment and remand to the trial court. I. Background Daniel Samudio suffered a back injury during the course of his employment that was compensable under the Texas Workers' Compensation Act. See TEX. LAB.CODE § 401.11. He eventually had four surgeries to rectify the injury, including a spinal fusion and a laminectomy. His physicians did not order preoperative flexion or extension x-rays, which would have provided evidence of any loss of motion segment integrity, a factor in determining the level of impairment. See Am. Home Assur. Co. v. Poehler, 323 S.W.3d 626, 631 (Tex.App.-Tyler 2010, pet. pending). Petitioner Zurich American Insurance Company provided workers' compensation coverage to Samudio's employer. After Samudio filed a claim for medical benefits under the Act, the Division appointed Dr. Gaston Machado as the designated doctor in the case to determine the date Samudio reached maximum medical improvement and his impairment rating under section 408.123 of the Act. An injured worker who suffers a permanent functional or anatomical impairment after reaching maximum medical improvement is entitled to impairment income benefits, the duration of which depend on the assigned impairment rating. TEX. LAB.CODE §§ 408.123, 408.121(a)(1). The impairment rating represents “the percentage of permanent impairment of the whole body resulting from a compensable injury.” Id. § 401.011(24). Impairment income benefits equal seventy percent of the worker's average weekly wages; the benefits are paid for three weeks for each percentage point of impairment. Id. §§ 408.121(a)(1); 408.126. An impairment rating of more than fifteen percent may entitle the worker to supplemental income benefits after impairment income benefits would otherwise expire. Id. § 408.142(a)(1). Section 408.123 of the Act provides that an impairment rating “must be based” upon the fourth edition of the Guides to the Evaluation of Permanent Impairment, published by the American Medical Association. 1 The methodology for determining impairment ratings recognized in that edition of the Guides used objectively verifiable evidence to place injured workers into one of eight diagnosis-related estimate (DRE) categories. In cases where spinal fusion surgery like Samudio's had been performed, the Guides called for the impairment rating to be based upon pre-operative flexion and extension x-rays. At the time of the administrative proceedings to determine Samudio's impairment rating, however, the Division had implemented two advisories, Advisory 2003–10 and Advisory 2003–10B, which attempted to provide an alternative standard for establishing an impairment rating when no preoperative flexion or extension x-rays had been performed. Under the advisories, a physician could consider evidence of spinal *366 fusion surgery of the type Samudio had in assigning a DRE. In his initial report to the Division, Dr. Machado concluded that Samudio's impairment rating was twenty percent based on a Category IV DRE. He initially asserted that the rating was based upon the Guides, but later submitted a letter clarifying that he had relied on the advisories in light of the absence of the pre-operative flexion or extension x-rays called for in the Guides. Under the advisories, Machado included Samudio's spinal fusion surgery as a factor in calculating the impairment rating. 1 Although as originally enacted, section 408.124 required use of the third edition of the Guides, in 1999, the Legislature authorized the Commissioner of Workers' Compensation to adopt the fourth edition of the Guides. Act of May 30, 1999, 76th Leg., R.S., ch. 1426, § 12, 1999 Tex. Gen. Law 4865, 4869 (codified at TEX. LAB.CODE § 408.124(c)). American Zurich disputed the impairment rating, and the Division commenced a contested case hearing. At the hearing, the carrier submitted a letter from Dr. John Obermiller. Although he opined that Samudio's impairment rating would be properly calculated at ten percent, Obermiller never examined Samudio, and expressly stated that he was not providing an impairment rating. Instead, he explained that his purpose was to show that Machado's analysis did not conform to the Guides. After the close of the hearing, the hearing examiner issued a decision finding that Samudio had an impairment rating of twenty percent. The © 2015 Thomson Reuters. No claim to original U.S. Government Works. 3 American Zurich Ins. Co. v. Samudio, 370 S.W.3d 363 (2012) 55 Tex. Sup. Ct. J. 1028 examiner also specifically found that only one impairment rating was offered during the contested case proceeding. American Zurich appealed the examiner's decision to the appeals panel. In February 2006, the Division notified the parties that the hearing officer's decision was final. American Zurich then appealed to the district court. It contended that the impairment rating the Division assigned was invalid, and that Samudio had either no impairment rating, or that the correct rating was ten. While the appeal was pending, the Austin court of appeals decided Texas Department of Insurance Workers Compensation Division v. Lumbermens Mutual Casualty Co., 212 S.W.3d 870 (Tex.App.-Austin 2006, pet. denied). In that case, the court ruled that the advisories were inconsistent with the Guides and thus invalid, and enjoined their further use. Id. at 876–77. 2 After the Lumbermens decision, Samudio filed a plea to the jurisdiction contending that the trial court lacked subject matter jurisdiction because the trial court was not empowered to provide the relief American Zurich sought. Samudio argued that American Zurich's petition presented no justiciable controversy because the trial court was only empowered to award an impairment rating that was presented to the agency, and the only rating before the agency was the twenty percent rating advocated by Machado. The trial court granted Samudio's plea and dismissed the case, awarding Samudio $29,246.40 in attorney's fees under section 408.221(c) of the Act. The court of appeals affirmed. 317 S.W.3d 336, 348. 2 The Division issued Bulletin B–0033–77 providing that the advisories would no longer be used after we denied the Division's petition for review in Lumbermens. Albert Betts, Tex. Dep't of Ins., Comm'r's Bll. No. B–0033–07 (July 18, 2007), http://www.tdi.texas. gov/bulletins/2007/cc34.html. II. Jurisdiction In an appeal of an injured worker's entitlement to impairment income benefits, the Legislature has provided for a modified trial de novo. Tex. Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 515 (Tex.1995); TEX. LAB.CODE § 410.306(c). Under that standard, the trier of fact is informed of the impairment rating assigned by the Division. TEX. LAB.CODE § 410.304. Unless there has been a substantial change in the worker's condition, id. §§ 410.306(c), 410.307, evidence of the extent of impairment is limited to that *367 presented to the Division, and the trier of fact “shall adopt one of the impairment ratings under Subchapter G, Chapter 408.” Id. § 410.306(c). In affirming the trial court's dismissal for lack of subject matter jurisdiction, the court of appeals reasoned that only one impairment rating, Machado's, had been presented to the Division. 317 S.W.3d at 348. The court concluded that the trial court could not, therefore, grant American Zurich any relief, even assuming that the rating presented to the agency was invalid under Lumbermens. Id. at 348–49. A. Section 410.306(c) is not a jurisdictional limit [1] In Garcia, we rejected the contention that section 410.306(c) of the Act violated injured workers' right to trial by jury. 893 S.W.2d at 528–30 (Tex.1995). We equated the provision with procedural rules barring the presentation of witnesses or information that was not timely disclosed in a civil trial. Id. at 528 (citing TEX.R. CIV. P. 215.5). Section 410.306(c) shaped the manner of submitting the impairment issue to the jury and the scope of the permissible remedy. Id. at 528–529. But because the provision still left the determination of impairment within the jury's hands, it did not violate the right to trial by jury. Id. at 530. At no point did we suggest that section 410.306(c) could be seen as a limit on trial courts' subject matter jurisdiction. [2] Subject matter jurisdiction limits speak to the power of courts to decide a particular type of controversy, not to the evidence that courts may consider or the scope of the remedy they can afford in a particular case. See Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 74–75 (Tex.2000). In the case the court of appeals primarily relied upon, for example, State Bar of Texas v. Gomez, 891 S.W.2d 243 (Tex.1994), we concluded that the district court lacked subject matter jurisdiction in a case in which the plaintiffs sought to require Texas attorneys to provide pro bono legal services. Id. at 246. We noted that the case fell within our exclusive administrative power to regulate the bar. Id. The district court could not grant relief because it “would ... be cast in the impermissible role of effectively promulgating policies and regulations governing Texas lawyers.” Id. American Zurich's appeal of the impairment rating the Division assigned Samudio is the type of case for which judicial review is available under © 2015 Thomson Reuters. No claim to original U.S. Government Works. 4 American Zurich Ins. Co. v. Samudio, 370 S.W.3d 363 (2012) 55 Tex. Sup. Ct. J. 1028 the Act, so long as the appealing party has exhausted its administrative remedies. TEX. LAB.CODE §§ 410.251, 410.301. While section 410.306(c) does not allow a reviewing court to consider impairment evidence that was not before the Division, or to award an impairment rating that was not presented to the agency, it does not limit the trial court's subject matter jurisdiction. The court of appeals' decision was driven largely by its conclusion that the trial court was not empowered to set aside the impairment rating assigned by the division in the absence of a competing rating that was presented to the agency. See 317 S.W.3d at 349. We agree with the court that the trial court could not have awarded Samudio a rating of zero or, alternatively, of ten percent. While Obermiller opined that an appropriate impairment rating for Samudio would be ten percent, he never examined Samudio, as section 408.123 requires, and expressly disclaimed an intent to assess an impairment rating. Further, no one presented evidence to the Division that Samudio's impairment rating was zero, and it is undisputed that he had suffered some permanent impairment. We disagree with the court of appeals, however, that the trial court was left with *368 no alternative but to leave in place a putatively invalid impairment rating. B. Remand to the agency [3] Samudio contends that the trial court properly dismissed this case because section 410.306(c) deprived it of any power to set aside the impairment rating assigned by the Division, even if the rating was invalid. American Zurich and amicus curiae Texas Department of Insurance Workers' Compensation Division disagree. They maintain that, if the trial court concluded that the assigned rating was invalid, it could reverse the Division's decision and remand to the agency. 3 We agree with American Zurich and the Division. 3 Amicus curiae State Office of Risk Management agrees that section 410.306(c) does not preclude a reviewing court from setting aside an impairment rating, but disagrees that the court could remand to the agency. It contends that a remand is unnecessary because the parties could reinitiate the case at the agency if an impairment rating is invalidated. [4] [5] [6] Our fundamental purpose in construing statutes is to determine and give effect to the Legislature's intent. LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex.2011). The words the Legislature employed are the best indicators of that intent. Id. And we may be “aided by the interpretive context provided by ‘the surrounding statutory landscape.’ ” Id. at 75 (quoting Presidio Ind. Sch. Dist. v. Scott, 309 S.W.3d 927, 929–30 (Tex.2010)). The application of these principles lead us to conclude that a trial court may remand to the Division to allow it to determine a valid impairment rating if the court concludes that no valid impairment rating was presented to the agency in the underlying contested case. First, under section 410.306(c) the trier of fact, “in its determination of the extent of impairment, shall adopt one of the impairment ratings under Subchapter G, Chapter 408.” As the Division argues, if a rating does not comport with the Guides, as section 408.124 requires, it is not adopted “under subchapter G.” To the contrary, such an impairment rating would be invalid precisely because it was not adopted in compliance with section 408.124(b). Moreover, in considering whether an impairment rating submitted to the Division is valid, a reviewing court is not making a “determination of impairment.” Instead, the court is deciding a purely legal question: whether the proffered rating was made in accordance with statutory requirements. More importantly, the general statutory scheme laid out by the Legislature compels a remand to allow the Division to determine Samudio's impairment rating as of April 7, 2004, the date the parties stipulated he reached maximum medical improvement, if the trial court finds that Samudio's twenty percent rating is invalid. The Legislature established a detailed, very specific process for the assignment of impairment ratings and the resolution of ratings disputes. See TEX. LAB.CODE §§ 408.122–.125, 410.021–.209. And the Legislature unequivocally mandated that impairment ratings be determined according to the Guides. Id. § 408.124(b) (“For determining the existence and degree of an employee's impairment, the division shall use [the Guides]”). The regulatory scheme as a whole illustrates an intent that impairment ratings be determined by the Division, subject to limited de novo review. Id. § 410.306(c); Garcia, 893 S.W.2d at 515. Furthermore, no language in the Act prohibits a reviewing court from remanding to the agency. Instead, while a reviewing court cannot assign an impairment rating that was not presented to the Division, the statute is silent as to the court's power to remand. Accordingly, *369 section 410.306(c) does not preclude a trial court from remanding to the Division when the only impairment rating offered is invalid. To the contrary, a remand is © 2015 Thomson Reuters. No claim to original U.S. Government Works. 5 American Zurich Ins. Co. v. Samudio, 370 S.W.3d 363 (2012) 55 Tex. Sup. Ct. J. 1028 the course most consistent with the overall process established by the Legislature. The court of appeals erred in affirming the trial court's judgment dismissing American Zurich's appeal. III. Attorney's fees Finally, American Zurich contends that, to the extent the court of appeals erred in affirming the trial court's judgment, it also erred in awarding fees under section 408.221 of the Act. We agree. In light of our reversal, it is no longer true that Samudio prevailed on an issue on which judicial review was sought by the carrier. See TEX. LAB.CODE § 408.122(c). IV. Conclusion While section 410.310(c) limits the evidence that a trial court may consider in reviewing an impairment rating assigned by the Division and precludes the court from assigning a rating that was not presented to the agency, it does not prevent the court from setting aside an invalid rating and remanding to the Division for further proceedings. We therefore reverse the court of appeals' judgment and remand to the trial court. If the trial court determines that no rating made in conformance with the Guides was presented to the agency, it should remand to the Division for a new impairment determination. All Citations 370 S.W.3d 363, 55 Tex. Sup. Ct. J. 1028 End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works. © 2015 Thomson Reuters. No claim to original U.S. Government Works. 6 TAB 2 Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (1997) 40 Tex. Sup. Ct. J. 591 KeyCite Yellow Flag - Negative Treatment Declined to Extend by McGee v. Deere & Co., Tex.App.-Austin, March 24, 2005 945 S.W.2d 812 Supreme Court of Texas. ARTHUR ANDERSEN & CO., Petitioner, v. PERRY EQUIPMENT CORPORATION, Respondent. No. 95–0444. | Argued March 19, 1997. | Decided May 16, 1997. Purchasing corporation sued accounting firm, alleging violations of Deceptive Trade Practices Act (DTPA) in connection with firm's preparation of audited financial statements of acquired corporation. The 55th District Court, Harris County, Kathleen S. Stone, J., entered judgment for purchasing corporation, and the Houston Court of Appeals, First District, 898 S.W.2d 914, affirmed. On writ of error, the Supreme Court, Cornyn, J., held that: (1) purchasing corporation was “consumer” under DTPA although it did not pay for audit; (2) failure to instruct jury on proper measure of direct damages was reversible error; and (3) award of attorney fees under DTPA had to be dollar amount, not percentage of judgment. Reversed and remanded. West Headnotes (19) [1] Antitrust and Trade Regulation Accountants and tax preparers For purposes of Deceptive Trade Practices Act (DTPA) claim against accounting firm, purchasing corporation was a “consumer,” although it did not pay for audit, where purchasing corporation insisted as condition of sale that acquired corporation provide audited financial statements, acquired corporation hired accounting firm for that purpose, purchasing corporation then relied on those statements in reaching its decision to purchase acquired corporation, and accounting firm was aware that purchasing corporation had required audit and would rely on its accuracy and knew specific purpose for which it was conducted. V.T.C.A., Bus. & C. § 17.45(4). 23 Cases that cite this headnote [2] Antitrust and Trade Regulation Consumers, purchasers, and buyers; consumer transactions In determining whether plaintiff is consumer under Deceptive Trade Practices Act (DTPA), focus is on plaintiff's relationship to transaction. V.T.C.A., Bus. & C. § 17.45(4). 19 Cases that cite this headnote [3] Antitrust and Trade Regulation Measure and amount Under Deceptive Trade Practice Act (DTPA), amount of actual damages recoverable is total loss sustained as result of deceptive trade practice. V.T.C.A., Bus. & C. § 17.50(b)(1). 2 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 1 Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (1997) 40 Tex. Sup. Ct. J. 591 [4] Antitrust and Trade Regulation Grounds and Subjects Under Deceptive Trade Practices Act (DTPA), actual damages are those damages recoverable under common law, either direct or consequential. V.T.C.A., Bus. & C. § 17.50(b)(1). 16 Cases that cite this headnote [5] Damages Direct or indirect consequences Direct damages are necessary and usual result of defendant's wrongful act; they flow naturally and necessarily from the wrong. 50 Cases that cite this headnote [6] Damages Direct or indirect consequences Direct damages compensate plaintiff for loss that is conclusively presumed to have been foreseen by defendant from his wrongful act. 22 Cases that cite this headnote [7] Damages Proximate or Remote Consequences Consequential damages result naturally, but not necessarily, from defendant's wrongful acts; under common law, they need not be usual result of the wrong, but they must be foreseeable, and must be directly traceable to wrongful act and result from it. 68 Cases that cite this headnote [8] Antitrust and Trade Regulation Reliance; causation; injury, loss, or damage Foreseeability is not an element of producing cause under Deceptive Trade Practices Act (DTPA). V.T.C.A., Bus. & C. § 17.50(b)(1). 1 Cases that cite this headnote [9] Antitrust and Trade Regulation Grounds and Subjects Under Deceptive Trade Practices Act, if damages are too remote, too uncertain, or purely conjectural, they cannot be recovered. V.T.C.A., Bus. & C. § 17.50(b)(1). 10 Cases that cite this headnote [10] Fraud Difference between actual and represented value Fraud Difference between value and price paid Under common law, direct damages for misrepresentation are measured either by out-of-pocket damages, which measure difference between value buyer has paid and value of what he has received, or by benefit-of-the-bargain damages, which measure difference between value as represented and value received. 44 Cases that cite this headnote © 2015 Thomson Reuters. No claim to original U.S. Government Works. 2 Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (1997) 40 Tex. Sup. Ct. J. 591 [11] Antitrust and Trade Regulation Measure and amount Under Deceptive Trade Practices Act (DTPA), plaintiff may recover under damage theory that provides greater recovery, either out-of-pocket damages or benefit-of-the-bargain damages. V.T.C.A., Bus. & C. § 17.50(b)(1). 25 Cases that cite this headnote [12] Antitrust and Trade Regulation Measure and amount Under Deceptive Trade Practices Act(DTPA), both out-of-pocket and benefit-of-the-bargain measure of damages are determined at time of sale. V.T.C.A., Bus. & C. § 17.50(b)(1). 29 Cases that cite this [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4075359. Public record. Not legal advice.