State News : Texas

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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

invalid. Id.