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No Way Around it: Evidence of Impairment is Limited on Judicial Review is Limited to that
Presented to Division
The long-running litigation related to injured worker Daniel Samudio’s correct impairment rating
continues following the Texas Supreme Court’s decision in American Zurich Ins. Co. v. Samudio,
370 S.W.3d 363 (Tex. 2012) (Samudio I). TEXAS LABOR CODE § 410.306(c), provides, “Except as
provided by Section 410.307, evidence of extent of impairment shall be limited to that presented to
the division. The court or jury, in its determination of the extent of impairment, shall adopt one of
the impairment ratings under Subchapter G, Chapter 408.” In Samudio I, the Court held that if on judicial review a trial court finds that no valid impairment rating was presented to the Division in
the underlying contested case, the trial court may remand the claim to the Division to determine a
valid rating. Samudio I, at 368. The case was remanded to the trial court following Samudio I.
On remand, Mr. Samudio filed a motion for summary judgment on the issue of the correct
impairment rating. Attached to the motion was an affidavit and medical report supporting the 20%
impairment rating awarded by the Division in the contested case. The Carrier objected that this
evidence of impairment was not admissible because it was not presented to the Division. The trial
court overruled the objection, admitted the evidence, and granted summary judgment for Samudio.
The Houston Court of Appeals reversed and rendered explaining, “the evidence that Samudio
presented at summary judgment is precisely the type of evidence that the statute forbids, and
therefore, the trial court could not consider it.” American Zurich Ins. Co. v. Samudio, No. 01-15-
00478-CV, 2016 WL 4485818 *6 (Tex. App.–Houston [1st Dist.] Aug. 25, 2016) (Samudio II). The
court held that the Carrier had established as a matter of law that the 20% impairment rating was