author: Chief Justice THOMAS.

text:
    Bettie BELL, Appellant, v. ZURICH AMERICAN INSURANCE COMPANY, Appellee.
    No. 05-09-00284-CV.
    Court of Appeals of Texas, Dallas.
    Oct. 20, 2009.
    Supplemental Opinion Denying Rehearing March 2, 2010.
    Rehearing Overruled April 13, 2010.

      Before Chief Justice THOMAS and Justices O’NEILL and MURPHY.
   OPINION

Opinion By

Chief Justice THOMAS.

Appellant Bettie Bell raises two issues in this appeal from a judgment in a workers’ compensation case involving the impairment rating governing appellant Bell’s claim for benefits. Bell generally contends the trial court erred in granting the partial summary judgment in favor of appellee Zurich American Insurance Company. We affirm the judgment in part and reverse the judgment in part and render judgment that Bell’s impairment rating is 10 percent.

Background

Bell sustained a compensable injury to the lower back while in the course of her employment. Her employer carried workers’ compensation insurance coverage through Zurich. Bell filed a workers’ compensation claim. A benefit contested case hearing was conducted by the Division to resolve the issue of the percentage of Bell’s impairment rating. See Tex. Lab. Code Ann. § 401.011(24) (Vernon Supp. 2009) (“impairment rating” means percentage of permanent impairment of whole body resulting from compensable injury); 28 Tex. Admin. Code § 130.1(c)(1) (2009) (Tex. Dep’t Ins., Div. of Workers’ Comp., Impairment Income Benefits). The Division considered the findings of two doctors. See Tex. Lab.Code Ann. § 408.121 (Vernon 2006) (injured worker may become entitled to receive impairment benefits based on impairment rating assigned by physician). Bell’s treating doctor, Bernie McCaskill, M.D., assessed Bell’s impairment rating as 10 percent based on the American Medical Association’s (AMA’s) Guides to the Evaluation of Permanent Impairment, Fourth Edition. Stuart Small, M.D. was appointed by the Division to act as a designated doctor for assignment of Bell’s impairment rating. See Tex. Lab.Code Ann. § 408.125 (Vernon 2006); 28 Tex. Admin. Code § 126.7(a) (2009) (Tex. Dep’t Ins., Div. of Workers’ Comp., General Provisions Applicable to All Benefits). Dr. Small assigned a 20 percent impairment rating based on the Division’s Advisory 2003-10.

Zurich disputed Dr. Small’s determination of 20 percent impairment rating because it was based upon a workers’ compensation Advisory rather than the AMA’s Guides. The hearing officer issued a decision and order determining that Bell has a 20 percent impairment rating based on application of Division Advisory 2003-10. The labor code provides for review of a hearing officer’s decision by the Division’s appeals panel. See Tex. Lab.Code Ann. § 410.203 (Vernon 2006). Zurich appealed the hearing officer’s ruling to the Division’s appeals panel, but the appeals panel did not reverse that decision, which became the final action of the Division. See Tex. Lab.Code Ann. § 410.204(c) (Vernon 2006).

Zurich appealed the Division’s decision to the trial court. See Tex. Lab.Code Ann. §§ 410.251, 410.252 (Vernon 2006). Zurich contended Bell’s impairment rating is 10 percent and the 10 percent impairment rating results in a reduction of impairment income benefits and precludes Bell’s entitlement to supplemental income benefits. See Tex. Lab.Code Ann. § 408.142(a) (Vernon 2006) (if injured worker is assigned impairment rating of 15 percent or higher, worker may become eligible for supplemental income benefits after expiration of impairment income benefits).

Zurich filed a motion for summary judgment. The trial court granted Zurich’s summary judgment in part. The trial court found Dr. Small’s impairment rating should be set aside because it was based on a Division Advisory and Dr. Small should be afforded an opportunity to render an appropriate impairment rating in conformity with statutory requirements. The trial court reversed the hearing officer’s decision and reversed and set aside the Division’s 20 percent impairment rating. Bell filed this appeal asserting the trial court erred in granting Zurich partial summary judgment. On appeal, Zurich concedes the trial court’s judgment should be reversed in part.

Standard of Review

The standard for reviewing a traditional motion for summary judgment is well-established. See Sysco Food Sens. v. Trapnell, 890 S.W.2d 796, 800 (Tex.1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). We review a summary judgment de novo to determine whether a party’s right to prevail is established as a matter of law. Dickey v. Club Corp., 12 S.W.3d 172, 175 (Tex.App.-Dallas 2000, pet. denied). A party moving for traditional summary judgment is charged with the burden to establish that there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam).

Discussion

It is clear from the facts presented to us that the only issue under dispute between the parties and to be resolved by the trial court was the extent of impairment suffered by Bell. In its motion for summary judgment, Zurich asserted that as a result of the invalidity of Advisory 2003-10, Dr. Small’s 20 percent impairment rating is invalid. The trial court granted Zurich summary judgment in part, finding that Dr. Small’s impairment rating should be set aside because it was based upon an invalid Advisory.

In Texas Department of Insurance, Division of Workers’ Compensation v. Lumbermens Mutual Casualty Company, 212 S.W.3d 870 (Tex.App.-Austin 2006, pet. denied), Lumbermens filed suit against the Division seeking judicial review of a Division decision in a contested case hearing applying the Advisories 2003-10 and 2003-10B. Lumbermens sought a declaration that the Advisories are inconsistent with rule 130.1 and that their issuance and application is outside the Division’s statutory authority. Lumbermens, 212 S.W.3d at 873-74. See 28 Tex. Admin. Code § 130.1(c)(2) (“A doctor who certifies that an injured employee has reached [maximum medical improvement] shall assign an impairment rating for the current compen-sable injury using the rating criteria contained in the appropriate edition of the AMA Guides to the Evaluation of Permanent Impairment, published by the American Medical Association (AMA Guides).”) In Lumbermens, the Austin court of appeals affirmed a district court declaration that Division Advisories 2003-10 and 2003-10B regarding impairment rating methods constituted an invalid attempt by the Division at ad hoc rulemaking and that the application of the Advisories was an ultra vires act by the Division. Lumbermens, 212 S.W.3d at 875. The court of appeals held that the Advisories contradict the fourth edition of the Guides and thus contradict labor code section 408.124 and Division rule 130.1, affirmed the trial court’s declaration that issuance of the Advisories was invalid, and enjoined their continued use. Lumbermens, 212 S.W.3d at 876-77. See Tex. Lab.Code Ann. § 408.124(a) (Vernon 2006) (“An award of an impairment income benefit, whether by the commissioner or a court must be based on an impairment rating determined using the impairment rating guidelines described by this section.”).

Following the Lumbermens decision, the Division issued Texas Department of Insurance Commissioners’ Bulletin No. B-0033-07 which provides that Advisories 2003-10 and 2003-10B “shall no longer be used in determining impairment ratings.” Tex. Dep’t of Ins. Commissioners’ Bulletin No. B-0033-07 (July 18, 2007); Fireman’s Fund Ins. Co. v. Weeks, 259 S.W.3d 335, 342 (Tex.App.-El Paso 2008, pet. denied). Subsequent Division appeals panels have overturned contested case hearing decisions in which the impairment rating adopted by the hearing officer was based on the application of the Advisories. See Appeal No. 071186, 2007 WL 2446096, at *2 (Tex. Dep’t of Ins., Div. of Workers’ Comp., Aug. 1, 2007); Appeal No. 071068, 2007 WL 2446093, at *2 (Tex. Dep’t of Ins., Div. of Workers’ Comp., July 25, 2007). See also Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 526 (Tex.1995) (workers’ compensation act “specifically requires all determinations of impairment to be made under the Guides.”); 28 Tex. Admin. Code § 130.1(c)(2)(B)(i) (appropriate edition of AMA Guides for certifying examinations conducted on or after October 15, 2001 is fourth edition of AMA Guides); Lumbermens Mut., 212 S.W.3d at 876 (“[T]he fourth edition of the Guides is the only permissible source for determining impairment ratings within the Texas workers’ compensation system.”).

Accordingly, it is not appropriate under the Guides for an examining doctor to base his determination of an impairment rating on Advisory 2003-10 or 2003-10B. Dr. Small’s impairment rating was based on Advisory 2003-10, and it is, therefore, invalid. See Weeks, 259 S.W.3d at 343 (Advisories 2003-10 and 2003-10b invalid from issuance); Appeal No. 071186, 2007 WL 2446096, at *2 (adoption of impairment rating based on Advisories is legal error and must be reversed). We affirm the trial court’s judgment reversing the Division’s impairment rating of 20 percent, and we overrule Bell’s issues complaining of such action by the trial court.

In its motion for summary judgment, Zurich further asserted that as a result of the invalidity of Advisory 2003-10, Dr. McCaskill’s 10 percent impairment rating is the only viable and valid impairment rating. Therefore, Zurich contends that as a matter of law, Bell’s impairment rating is 10 percent. The trial court’s judgment does not order an impairment rating as to Bell. On appeal, Bell argues that if the 20 percent impairment rating is not valid, the trial court should have entered a judgment setting at least a 10 percent impairment rating. Zurich concedes the judgment should be reversed with regard to the trial court’s ruling that there is no valid impairment rating and that the designated doctor, Dr. Small, should be afforded an opportunity to render an impairment rating in conformity with statutory requirements, rather than based on the Division’s Advisory. Zurich contends this Court should render judgment on the issue of Bell’s 10 percent impairment rating.

In a judicial review case, the court or jury must adopt the specific impairment rating of one of the physicians in the underlying administrative case. Tex. Lab. Code Ann. § 410.306(c) (Vernon 2006). In other words, the requirement that the impairment rating match one of the physicians’ findings is part of the substantive statutory scheme. Garcia, 893 S.W.2d at 528. See also Appeal No. 071186, 2007 WL 2446096, at *2 (Division appeals panel reversed invalid impairment rating based on Advisory 2003-10 and rendered decision of only other impairment rating in evidence before Division).

In the present case, there are only two impairment ratings assigned for Bell that were in evidence before the Division: Dr. Small’s 20 percent impairment rating utilizing Division Advisory 2003-10 and Dr. McCaskill’s 10 percent impairment rating utilizing the Fourth Edition of the AMA’s Guides. The trial court was bound by the ratings that were presented for its consideration and was required to adopt the specific rating of one of the physicians in the case. As a result of the invalidity of Division Advisories 2003-10, Dr. Small’s 20 percent impairment rating is invalid, leaving Dr. McCaskill’s 10 percent impairment rating as the only viable and valid impairment rating the trial court could adopt. See Tex. Lab.Code Ann. § 410.306(c).

In its judgment, the trial court found Dr. Small’s rating was invalid and Dr. Small should be “afforded an opportunity to render an appropriate rating.” Here, the appeals panel did not reverse the hearing officer’s decision, and the hearing officer’s decision is the final decision on the merits for the purpose of the district court’s review. To the extent that the trial court’s judgment contemplates this matter being reconsidered by the Division, the labor code does not permit such reconsideration or the Division’s reopening of evidence of Bell’s impairment rating. See Tex. Workers’ Comp. Comm’n v. Harris County, 132 S.W.3d 139, 146 (Tex.App.-Houston [14th Dist.] 2004, no pet.) (“Although we can understand why it might seem appropriate to remand the issue of appellant’s impairment rating to the appeals panel, no mechanism in the labor code allows for such a remand.”); Tex. Workers’ Comp. Comm’n v. Tex. Mut. Ins. Co., 119 S.W.3d 886, 887 (Tex.App.-Dallas 2003, no pet.) (“[Njothing in the labor code allows the trial court to send matters back to the appeals panel. Further, no mechanism exists in the code for addressing matters remanded from the trial court, and there are no applicable time deadlines that would ensure the appeals panel’s timely determination of those matters.”).

On appeal Bell contends an impairment rating of 14 percent should be assigned, because in answer to deposition on written questions Dr. Small stated that if he had utilized the AMA Guides to calculate Bell’s impairment rating, Bell would have had a 14 percent impairment rating. However, that statement by Dr. Small was not before the Division and the Division was not presented with any evidence of a 14 percent impairment rating. On judicial review, evidence of the extent of impairment is limited to that presented to the Division. Tex. Lab.Code Ann. § 410.306(c). See also Garcia, 898 S.W.2d at 528 (fact finder may not find impairment rating other than one of percentages in evidence before Division); Ausaf v. Highlands Ins. Co., 2 S.W.Bd 363, 367 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) (amended certification of maximum medical improvement not admissible in district court because was not evidence presented to Division). The only exception to this rule is where the trial court makes a threshold finding that the claimant’s condition has substantially changed, which did not occur in the case at bar. See Tex. Lab.Code Ann. § 410.307(a) (Vernon 2006). Because there was no evidence of a 14 percent impairment rating presented to the Division, we conclude Bell’s argument that the trial court should have assigned her a 14 percent impairment rating is ill-founded.

We overrule Bell’s issues to the extent she complains of the trial court’s failure to affirm the Division’s impairment rating of 20 percent. We sustain Bell’s issues to the extent she complains the trial court erred in failing to enter judgment that Bell’s impairment rating is 10 percent.

Conclusion

We reverse the trial court’s judgment in part and render judgment that Bell’s impairment rating is 10 percent. In all other respects, we affirm the trial court’s judgment.

Opinion by Chief Justice THOMAS (Ret.).

Appellant Bettie Bell has filed a motion for rehearing containing three issues. For the reasons stated herein, we deny appellant’s motion for rehearing.

In the second issue of her motion for rehearing, appellant asserts this Court lacks jurisdiction over this appeal. Appellate jurisdiction is fundamental and can be raised at any time during the appeal. See Tullos v. Eaton Corp., 695 S.W.2d 568, 568-69 (Tex.1985). Therefore, in this supplemental opinion, we address the second issue of appellant’s motion for rehearing.

Appellant asserts the trial court's judgment in this matter is void because the proposed judgment was not filed with the Texas Department of Insurance, Division of Workers’ Compensation (Division) at least thirty days before the judgment was signed. See Tex. Lab.Code Ann. § 410.258(a) (Vernon 2006). Section 410.258(f) of the labor code provides that a judgment entered or settlement approved by the trial court in a proceeding involving judicial review of a final workers’ compensation administrative decision under chapter 410 of the labor code must comply with the section 410.258(a), or the judgment entered or settlement approved is void. Tex. Lab.Code Ann. § 410.258(f).

We presume regularity of the judgment absent controverting evidence. See Casillas v. State Office of Risk Mgmt., 146 S.W.3d 735, 738 (Tex.App.-El Paso 2004, no pet.). In accordance with the presumption of regularity of judgment, the complaining party carries the burden to establish why the reviewing court may not apply the presumption. S. Ins. Co. v. Brewster, 249 S.W.3d 6, 14 (Tex.App.-Houston [1st Dist.] 2007, pet. denied).

Here the record and the trial court’s judgment are silent as to whether the proposed judgment complied with section 410.258(a) of the labor code. See Ins. Co. of State of Pa. v. Orosco, 170 S.W.3d 129, 134-135 (Tex.App.-San Antonio 2005, no pet.) (reviewing court presumes regularity of judgment absent controverting evidence; both judgment and record silent on whether parties complied with section 410.258(a); judgment not void); Casillas, 146 S.W.3d at 739 (Tex.App.-El Paso 2004, no pet.) (judgment and record silent on question of compliance with section 410.258; judgment not void). Therefore, appellant has failed to carry her burden. We deny appellant’s second issue of her motion for rehearing.

In the first and third issues of her motion for rehearing, appellant asserts arguments not presented by appellant’s pre-submission brief to this Court. Having waived such arguments by her presubmission brief, appellant may not resurrect them via a motion for rehearing. Tex. R.App. P. 38.1(i); Coastal Liquids Trans, v. Harris County Appraisal Dist, 46 S.W.3d 880, 885 (Tex.2001). We deny appellant’s first and third issues of her motion for rehearing.

Accordingly, we overrule appellant’s motion for rehearing.

      . Effective September 1, 2005, the legislature dissolved the Texas Workers' Compensation Commission and created the Division of Workers’ Compensation within the Texas Department of Insurance. Act of June 1, 2005, 79th Leg., R.S., ch. 265, § 8.001, 2005 Tex. Gen. Laws 469, 607. In this opinion, we will refer to the agency as the Division.

      . Bell complains about various documents and trial court proceedings. However, she gives no substantive argument regarding any error or impact on this appeal. She cites no case or controlling law to provide this Court with authority in support of her assertions. Bell has accordingly waived these complaints due to inadequate briefing. See Tex.R.App. P. 38.1(h), (i).

      . The Honorable Linda Thomas, Chief Justice (Ret.), Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    TEXAS BUILDERS INSURANCE COMPANY, Appellant, v. Calvin MOLDER, Appellee.
    No. 08-07-00200-CV.
    Court of Appeals of Texas, El Paso.
    Oct. 30, 2009.

      Mark Siefken, Maclnnes, Shigham, Lively & Siefken, Austin, TX, for Appellant.
    W. Bradley Parker, The Parker Law Firm, P.C., Bedford, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Texas Builders Insurance Company appeals from a summary judgment affirming a decision by the Texas Workers’ Compensation Commission Appeals Panel in favor of Calvin Molder. Molder suffered an on-the-job injury to his right shoulder on March 12, 2001 as he worked beneath a bulldozer and the bulldozer pan fell on him. Molder subsequently filed a claim for workers’ compensation benefits. Texas Builders Insurance (TBI) provides workers’ compensation insurance coverage to Molder’s employer, Buzzard Roost Construction. On April 23, 2001, Stephen L. Hall, D.O., performed arthroscopic surgery on Molder’s shoulder and repaired a small full-thickness rotator cuff tear, debrided the glenoid labrum, and performed a suba-cromial decompression. Dr. Hall noted that the lateral acromion and AC joint had significant spurring which probably led to the rotator cuff tear. Molder continued to have problems with the shoulder and Dr. Hall performed a second surgery on September 12, 2001 for what he termed a “recurrent rotator cuff tear.” He repaired a large rotator cuff tear and again debrid-ed the glenoid labrum. Because Molder continued to suffer from shoulder pain, Dr. Hall referred him to John Sklar, M.D., a pain management doctor. Karl Erwin, M.D., the TWCC designated doctor, examined Molder on May 13, 2002 and determined that he had reached maximum medical improvement (MMI) on that date with a 2% impairment rating (IR).

On September 15, 2002, Molder felt his shoulder pop while lifting his arm over his head to remove his shirt. In significant pain, Molder went to an emergency room where he was diagnosed with incision site opening and an acute shoulder sprain/ strain. Molder was instructed to return to Dr. Hall for examination. Dr. Hall determined that all of Molder’s pathology was related to the March 12, 2001 injury. On November 19, 2002, TBI disputed com-pensability based on its claim that Molder had sustained a new injury. The dispute was submitted to TWCC for resolution and a contested case hearing was held on May 21, 2003. The evidence submitted to the Hearing Officer included the records of Drs. Hall and Sklar. Dr. Hall wrote a letter to Dr. Sklar on January 28, 2003 advising him that Molder continued to have shoulder pain and questioned whether Molder had suffered a new injury or aggravated the injured shoulder. Dr. Hall informed Dr. Sklar that he believed all of Molder’s shoulder pain stemmed from the initial injury and recommended that Molder seek a second opinion. Like Dr. Hall, Dr. Sklar concluded that Molder’s current shoulder problems were related to the original injury. More specifically, he commented: “The way I would explain the current episode is that possibly the previous surgical repair had left his shoulder inheritably (sic) weak and now something has come loose or torn again in his shoulder.” Dr. Sklar concluded that Molder had not reached MMI and the prior determination of MMI should be rescinded. On July 29, 2003, the Hearing Officer determined that Molder had suffered a compen-sable injury to his right shoulder on March 12, 2001 and the strain which occurred on September 15, 2002 was caused by or was the result of the compensable injury. The Hearing Officer specifically found that “[t]he March 12, 2001 compensable injury includes the condition of the Claimant’s right shoulder after September 15, 2002.”, Consequently, the Worker’s Compensation Commission ordered TBI to pay benefits to Molder. TBI did not appeal this decision.

At some point prior to January 28, 2003, Molder became dissatisfied with Dr. Hall, and he sought a second opinion from John Conway, M.D., an orthopedic surgeon, on March 2, 2004. On May 5, 2004, Molder had a third and final surgery. Dr. Conway performed extensive glenohumeral de-bridement and repaired a full thickness tear of the supraspinatus rotator cuff and a tear of the infraspinatus rotator cuff. He also performed subacromial decompression with extensive resection of suba-cromal, subdeltoid, subclavicular and sub-coracoid fibrosis.

In July 2004, TWCC’s benefit review officer submitted a letter of clarification to Dr. Erwin requesting that he reconsider the MMI date and IR based on the medical reports submitted to him, including Dr. Conway’s operative report. Dr. Erwin stood by his previous findings, concluding that Dr. Conway’s findings could not have been present during the May 13, 2002 examination. Dr. Erwin concluded that the new pathology was the result of Molder’s usual or customary daily activities. The benefit review officer sent a second letter to Dr. Erwin stating that “the new tear of the infraspinatus tendon and the supraspinatus tendon are a direct result of the initial 3-12-01 injury and as such, are subject to a reconsideration of the maximum medical improvement date and impairment rating.” The letter further advised Dr. Erwin that “[cjompensability or whether the continued problems resulted from activities of daily living is not a consideration.” Dr. Erwin again refused to reconsider the MMI date and IR. Consequently, the benefit review officer designated a new doctor, Daniel Foster, D.O., to assess MMI and IR. Dr. Foster examined Molder on February 8, 2005 and reviewed the relevant medical reports. He determined that Molder reached MMI on March 20, 2003 with a 16% IR.

TWCC later sent Dr. Foster a letter of clarification with a peer review report from Dr. Brian Buck who concluded that Dr. Foster’s IR had not been done in accordance with the AMA Guides to the Evaluation of Permanent Impairment, 4th edition, because Dr. Foster had based the IR on Molder’s condition after the third surgery rather than at the time of Molder reached statutory MMI. Dr. Buck also took issue with Dr. Foster’s failure to round up the range of motion number for shoulder flexion resulting in a 7% upper extremity impairment rating rather than the 8% impairment rating found by Dr. Foster. Dr. Foster reviewed Dr. Buck’s report and concluded that it did not change his opinion on the MMI date and IR.

On May 19, 2005, a contested case hearing was held to determine when Molder reached maximum medical improvement, his impairment rating, and whether Dr. Foster had been properly appointed as the designated doctor in accordance with Section 408.0041 of the Texas Labor Code and TWCC Rule 130.5. In a decision filed on August 1, 2005, the Hearing Officer found that Molder reached statutory MMI on March 17, 2003 with a 16% IR as certified by Dr. Foster. The Hearing Officer also found that Dr. Foster was properly appointed. The Appeals Panel determined that the Hearing Officer’s decision was the final decision because it would otherwise be affirmed. Consequently, it became final on August 1, 2005.

During the appeals process, Molder filed claims for supplemental income benefits (SIBs). On December 13, 2005, a contested case hearing was held to determine whether Molder was entitled to supplemental income benefits for the first through eighth quarters. TBI asserted that the applications for the second through seventh quarters had not been timely filed. Additionally, it argued that Molder was not entitled to SIBs for the first through eighth quarters because he failed to show he had no ability to work. In a decision filed on December 15, 2005, the Hearing Officer found that Molder was entitled to SIBs for the first through eighth quarters and he was unemployed as a direct result of the impairment from the compensable injury. On March 17, 2006, the Appeals Panel sent notice that the Hearing Officer’s decision became final on that same date.

On September 9, 2005, TBI filed suit in the district court seeking judicial review of the Appeals Panel’s August 1, 2005 decision. It also filed suit seeking judicial review of the Appeals Panel’s March 17, 2006 decision. The trial court consolidated the cases and they proceeded under a single cause number. Molder filed a motion for traditional and no evidence summary judgment on all of the issues presented by TBI. TBI also filed a motion for summary judgment. The trial court granted Molder’s motion for summary judgment and TBI filed notice of appeal.

APPLICABLE LAW AND STANDARD OF REVIEW

The dispositive issues in this appeal are whether Dr. Foster was properly appointed as the second designated doctor and whether the IR certified by Dr. Foster is valid. To determine the impairment rating, the certifying doctor evaluates the permanent effect of the employee’s injury according to statutory guidelines. Tex. Lab.Code Ann. § 408.124; Rodriguez v. Service Lloyds Insurance Company, 997 S.W.2d 248, 253 (Tex.1999). The impairment rating represents the percentage of permanent impairment to the whole body. Tex.Lab.Code Ann. § 401.011 (Vernon Supp. 2009); Rodriguez, 997 S.W.2d at 253.

An injured worker qualifying for impairment income benefits receives seventy percent of his average weekly wage. Tex. Lab.Code Ann. § 408.126. These benefits are available from the date MMI is certified and continue for three weeks for every percentage point of impairment. Tex.Lab. Code Ann. § 408.121(a); Fulton v. Associated Indemnity Corporation, 46 S.W.3d 364, 366 (Tex.App.-Austin 2001, pet. denied). If the impairment rating is fifteen percent or greater, the employee may qualify for supplemental income benefits which provide long-term disability compensation. Tex.Lab.Code Ann. § 408.142(a); Fulton, 46 S.W.3d at 366. Medical benefits are not dependent on the impairment rating. See Tex.Lab.Code Ann. § 408.021(a); Fulton, 46 S.W.3d at 366.

The Labor Code provides for a modified de novo review of an appeals panel’s decision on issues of compensability, eligibility, or the amount of income or death benefits. National Liability & Fire Insurance Company v. Allen, 15 S.W.3d 525, 528 (Tex.2000); see Tex.Lab.Code Ann. § 410.301(a). Modified de novo review means: (1) the trial court is informed of the TWCC Appeals Panel’s decision; (2) evidence of the extent of impairment is limited to that presented to the TWCC, unless the court makes a threshold finding that the claimant’s condition has substantially changed; and (3) the court is required to adopt the specific impairment rating arrived at by one of the physicians in the case. Tex. Lab.Code Ann. §§ 410.304, 410.306-.307; Texas Workers’ Compensation Commission v. Garcia, 893 S.W.2d 504, 528 (Tex.1995). The party appealing the decision on an issue described in Section 410.301(a) has the burden of proof by a preponderance of the evidence. Tex.Lab.Code Ann. § 410.303.

A trial court is limited to reviewing only those issues decided by the appeals panel and upon which judicial review is sought. Tex.Lab.Code Ann. § 410.302(b). TBI’s petition challenged the Appeals Panel’s determination that: (1) Dr. Daniel Foster was properly appointed as the designated doctor; (2) Molder reached statutory maximum medical improvement on March 17, 2003; (3) Molder’s impairment rating is 16% as certified by Dr. Foster; (4) Molder was entitled to SIBs for the first through eighth quarters; and (5) TBI was not relieved of liability for SIBs due to Molder’s failure to timely file an application for supplemental income benefits for the first through seventh quarters. Molder sought summary judgment on all of these issues. TBI’s motion for summary judgment was based on three grounds: (1) Dr. Foster was improperly appointed as the second designated doctor, and therefore, his MMI date and IR should not be considered; (2) Dr. Erwin properly determined the MMI date as March 13, 2002 and the IR as 2%; and (3) Molder is not entitled to supplemental income benefits because his IR does not exceed 15%.

We review all summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). The standard for reviewing a traditional summary judgment is well established: (1) the mov-ant must demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether a disputed issue of material fact exists that would preclude summary judgment, we take all evidence favorable to the non-movant as true; and (3) we indulge every reasonable inference and resolve any doubts in favor of the non-movant. Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548-49 (Tex.1985). When competing motions for summary judgment are filed and the trial court grants one motion and denies the other, we review the summary judgment evidence presented by both sides and determine all questions presented. FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).

APPOINTMENT OF THE SECOND DESIGNATED DOCTOR

In its petition, TBI challenged the Division’s determination that Dr. Foster was properly appointed as the second designated doctor. Both parties sought traditional summary judgment on this ground. In Issues One and Two, TBI contends that Dr. Foster was improperly appointed, and therefore, his determinations as to the date of maximum medical improvement and impairment rating are invalid and should not have been considered by the Division or the district court.

Section 408.0041(a) provides that at the request of an insurance carrier or an employee or on the commissioner’s own order, the commissioner may order a medical examination to resolve any question about: (1) the impairment caused by a compensable injury; (2) the attainment of maximum medical improvement; (3) the extent of the employee’s compensable injury; (4) whether the injured employee’s disability is a direct result of the work-related injury; (5) the ability of the employee to return to work; or (6) issues similar to those listed in (a)(1) through (a)(5). Tex.Lab.Code Ann. § 408.0041(a)(Vernon Supp. 2009). A medical examination requested under Subsection (a) must be performed by the next available doctor on the Division’s list. of designated doctors whose credentials are appropriate for the issue in question. Tex.Lab.Code Ann. § 408.0041(b). In a case where the Division has previously assigned a designated doctor, the Division’s rules require that it use the same doctor again provided the doctor is still qualified and available. 28 Tex.Admin.Code § 126.7(h)(Rule 126.7(h)). Otherwise, the Division shall select the next available doctor on its designated doctor list. Id. The Workers’ Compensation Appeals Panel has held that a second doctor is appropriate only in those cases where the first designated doctor is unable or unwilling to comply with the required AMA Guides or requests from the Commission for clarification. See Texas Workers’ Compensation Commission Appeal No. 022492 (November 13, 2002); Texas Workers’ Compensation Commission Appeal No. 011607 (August 28, 2001).

TBI states its argument in terms of the district court having abused its discretion but the issue properly framed is whether the movant showed there is no genuine issue of material fact and he is entitled to summary judgment as a matter of law. It is undisputed that the Division sent two requests to Dr. Erwin to reconsider the MMI and IR because the condition of Molder’s shoulder had changed after the clinical MMI date and he had required additional shoulder surgery. The first issue we must address is whether the Division’s requests for clarification were appropriate. If they were not, Dr. Erwin was correct in refusing to reconsider the MMI date and IR and Molder was not entitled to summary judgment on this issue.

After an employee has been certified by a doctor as having reached maximum medical improvement, the certifying doctor is required to evaluate the condition of the employee and assign an impairment rating using the impairment rating guidelines described by Section 408:124. Tex.Lab.Code Ann. § 408.123(a)(Vernon 2006). MMI must be certified before an impairment rating is assigned. 28 Tex.Admin.Code § 130.1(b)(2)(Rule 130.1(b)(2)). According to Rule 130.1(b)(1), maximum medical improvement or MMI is:

(A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated;
(B) the expiration of 104 weeks from the date on which income benefits begin to accrue; or
(C) the date determined as provided by Texas Labor Code § 408.104.

28 Tex.Admin.Code § 130.1(b)(l)(Rule 130.1(b)(1)).

MMI under (b)(1)(A) is referred to as clinical MMI while MMI under (b)(1)(B) is referred to as statutory MMI. In certifying MMI, the doctor reviews medical records, performs a complete medical examination for the purpose of determining MMI, and assigns a specific MMI date. 28 Tex.Admin.Code § 130.1(b)(4)(Rule 130.1(b)(4)). The impairment rating for the current compensable injury must be based on the employee’s condition as of the MMI date considering the medical record and the certifying examination. 28 Tex.Admin.Code § 130.1(c)(3). The preamble of Rule 130.1(c)(3) clarifies that the IR must be based on the injured worker’s condition as of the date of MMI and should not be based on changes in the injured employee’s condition occurring after that date, such as when the injured employee’s condition changes as a result of surgery that takes place after the date of MMI. See Texas Worker’s Compensation Commission Appeal No. 072242 (February 13, 2008)(discussing Rule 130.1(c)(3)). In response to public comment on Rule 130.1, the Division, in the preamble, has noted that where the claimant reaches MMI clinically, rather than with the expiration of 104 weeks or the extended date in the event of spinal surgery, future changes in the injured worker’s condition may cause the MMI date to change and that “[i]n the event the MMI date is changed due to a post-MMI change in the injured employee’s conditions, there should be a re-evaluation of the IR as of the new MMI date.” Texas Worker’s Compensation Commission Appeal No. 072242 (February 13, 2008)(quoting the preamble); Texas Workers’ Compensation Commission Appeal No. 040313-s (April 5, 2004). Furthermore, the designated doctor is required to rate the entire compensable injury. Texas Workers’ Compensation Commission Appeal No. 951158 (August 21,1995).

Dr. Erwin initially determined the clinical MMI date to be May 13, 2002 with a 2% impairment rating. The summary judgment evidence established that on September 15, 2002, Molder suffered what was diagnosed at the time as an acute right shoulder strain/sprain and incision site opening. A dispute arose as to the extent of Molder’s injury and on July 29, 2003, a Hearing Officer determined that the shoulder strain suffered on September 15, 2002 was caused by or was the result of the compensable injury which occurred on March 12, 2001. The Hearing Officer concluded that “[t]he March 12, 2001 compen-sable injury includes the condition of [Molder’s] right shoulder after September 15, 2002.” TBI did not appeal this decision and it became final. In May 2004, Molder had a third surgery on the shoulder because the two prior surgeries had failed. Given the post-MMI change in Molder’s condition, the benefit review officer correctly informed Dr. Erwin that the MMI date and IR should be reconsidered. Dr. Erwin flatly refused to do so. The Division acted properly by appointing a second designated doctor to determine Molder’s MMI date and IR pursuant to Rule 130.1(c)(3). See Texas Workers’ Compensation Commission Appeal No. 043168 (January 20, 2005)(where the designated doctor refused to rate the compensa-ble thoracic injury because he did not believe it was part of the compensable injury, the Appeals Panel held that when a designated doctor refuses to provide an IR for the compensable injury based on the designated doctor’s opinion that the claimant does not have a compensable injury, one of the remedies is to appoint another designated doctor). The trial court properly granted summary judgment in favor of Molder and against TBI on this issue.

MAXIMUM MEDICAL IMPROVEMENT

TBI does not raise a specific issue on appeal challenging the portion of the summary judgment finding that Molder reached statutory maximum medical improvement on March 17, 2003. At best, TBI’s brief can be construed as asserting that Dr. Foster’s MMI certification is invalid because he was improperly appointed as the second designated doctor. Because we have upheld the appointment of Dr. Foster and TBI has not raised any other argument pertinent to the MMI certification, we affirm the portion of the summary judgment finding that Molder reached statutory maximum medical improvement on March 17, 2003.

IMPAIRMENT RATING

In its petition, TBI challenged the Division’s determination that the IR is 16% as certified by Dr. Foster. TBI based its argument in part on its claim addressed in Issue One that Dr. Foster was improperly appointed as the second designated doctor. Because we have rejected that argument, the related contention is without merit.

TBI argues alternatively that even if Dr. Foster was properly appointed, his IR certification is erroneous because it is based on Molder’s condition after the statutory MMI date of March 17, 2003, and includes the May 2004 surgery. TBI contends that Dr. Foster should have limited his evaluation of Molder to the first two surgeries and the strain which occurred on September 15, 2002. TBI also asserts that Dr. Erwin’s 2% IR should have been adopted. The trial court granted Molder’s motion for summary judgment on the ground that Dr. Foster’s 16% IR certification is valid.

As discussed above, Rule 130.1(c)(3) requires that assignment of an impairment rating for the current com-pensable injury be based on the injured employee’s condition as of the MMI date considering the medical record and the certifying examination. 28 Tex.Admin.Code § 130.1(c)(3). The Division has interpreted Rule 130.1(c)(3) to mean that the IR cannot be based on changes occurring after the MMI date, including surgery. See e.g., Texas Workers’ Compensation Commission Appeal No. 042230 (November 1, 2004); Texas Workers’ Compensation Commission Appeal No. 042270 (November 2, 2004); Texas Workers’ Compensation Commission Appeal No. 042405 (November 17, 2004). Where, as here, a new MMI date is certified due to a post-MMI change in the employee’s condition, there must be a reevaluation of the IR as of the new MMI date. Because TBI denied treatment for the September 15, 2002 injury, it was necessary for the Commission to resolve the extent of injury at a contested case hearing, and on July 29, 2003, the Hearing Officer rendered a decision on that issue. Thus, the extent of injury issue was not resolved until several months after the statutory MMI date of March 17, 2003. Molder was not examined by a doctor qualified to certify IR on, or even near, the statutory MMI date.

We first consider TBI’s argument that the IR must be based only on the two prior surgeries and the “sprain” which occurred on September 15, 2002. TBI seeks to invalidate the 16% IR because Dr. Foster purportedly considered the rotator cuff tears diagnosed and repaired after September 15, 2002. This contention is without merit because the IR must be based on Molder’s condition as of the statutory MMI date. The certifying doctor is required to rate the entire compensable injury based on the examination and the medical evidence before the doctor. Whether Molder’s shoulder condition on March 17, 2003 included the two rotator cuff tears which were subsequently diagnosed and surgically repaired in 2004 is an issue left to the medical judgment of the designated doctor. The 16% IR is therefore not invalid merely because Dr. Foster considered Molder’s condition after September 15, 2002.

However, Dr. Foster’s report reflects that in assessing a 16% IR, he considered impairment from Molder’s third shoulder surgery which occurred after the statutory MMI date. In addition to assessing an impairment rating of 18% for Molder’s decreased range of motion (ROM), Dr. Foster added 10% for the distal clavicle resection performed as part of the third surgery for a combined whole body IR of 16%. Because the 16% IR is based, at least in part, on the surgery which occurred after the statutory MMI date, the IR violates the Division’s interpretation of Rule 130.1(c)(3). Molder was not entitled to summary judgment that his IR is 16% as certified by Dr. Foster. But TBI was not entitled to summary judgment that Dr. Erwin’s 2% IR is correct. Dr. Erwin’s IR is invalid because it was made four months before Molder aggravated the shoulder on September 15, 2002, and ten months before the statutory MMI date. Dr. Erwin’s 2% IR assessment is not based on Molder’s condition on March 17, 2003 and thus it violates Rule 130.1(c)(3).

We overrule Issue One in its entirety. We overrule that portion of Issue Two in which TBI argued that Dr. Erwin’s 2% IR should have been adopted. We sustain Issue Two in part based on our conclusion that Molder was not entitled to summary-judgment that his IR is 16% as certified by Dr. Foster. Our ruling requires that the case be remanded to the Division for reconsideration of the IR as of the statutory MMI date. We recognize that it will be difficult for the designated doctor to assess the IR as of the statutory MMI date because the doctor did not examine Molder at that time. The Division has also conceded the inherent difficulty in requiring doctors to certify IR under these circumstances, but in TWCC Appeal No. 041413 (July 30, 2004), the Division sanctioned a procedure for assessing IR after the statutory MMI date. In that case, the claimant had back surgery after the statutory MMI date and the designated doctor made the IR certification post-surgery. The certifying doctor submitted two impairment ratings. First, using the statutory MMI date, “Dr. A” assessed a 7% IR based on Table 49(II)(C) of the Guides for an unoperated disc with medically documented injury. Dr. A noted that he could not provide any impairment based on loss of range or motion or neurological deficits because he had not examined the patient on the statutory MMI date. Second, Dr. A provided an alternate IR based on the findings of his examination and assessed an IR based on Table 49(II)(F) multiple operative levels, with or without residual symptomatology (12%), and impairment for loss of ROM (14%), and loss of sensation in the SI nerve root (2%) combined for a whole person IR of 26%. The Appeals Panel concluded that the 26% IR violated Rule 130.1(c)(3) because it considered impairment from the claimant’s surgery which occurred after the statutory MMI date. The Appeals Panel also noted that the 7% IR failed to consider ROM. In calculating the correct IR, the Appeals Panel took components from each of the two impairment ratings submitted by the doctor. It took the 7% impairment rating for a specific disorder under Table 49(II)(C) and combined it with the 14% impairment for loss of ROM and the 2% impairment for loss of sensation in the SI nerve root for a combined whole person IR of 22%. We do not have the components necessary to calculate the IR.

SUPPLEMENTAL INCOME BENEFITS

In Issue Three, TBI raises several arguments challenging Molder’s eligibility for supplemental income benefits. We have found, however, that the 16% IR certified by Dr. Foster is invalid because it takes into consideration the third shoulder surgery which occurred after the statutory MMI date. It cannot be determined whether Molder is qualified for SIBs until the IR issued is resolved on remand. It is therefore unnecessary to address TBI’s arguments about the SIBs.

CONCLUSION

Having overruled Issue One, we affirm the portion of the summary judgment finding that Dr. Foster was properly appointed as the second designated doctor. We also affirm the portion of the summary judgment finding that Molder reached statutory maximum medical improvement on March 17, 2003. Having sustained Issue Two in part, we reverse the portion of the summary judgment finding that Molder’s IR is 16% as certified by Dr. Foster. In the absence of a valid IR of 15% or greater, the portion of the summary judgment finding Molder is entitled to SIBs for the first through eighth quarters must also be reversed. Ordinarily, we would remand the case to the trial court for further proceedings but there are no other issues for the district court to resolve. We therefore remand the case to the Texas Department of Insurance, Division of Workers’ Compensation, for the designated doctor to reassess Molder’s impairment rating as of the statutory MMI date as required by Rule 130.1(c)(3) and for further proceedings consistent with this opinion.

      . The Texas Workers' Compensation Commission is now known as the Texas Department of Insurance, Division of Workers’ Compensation. Tex. Lab.Code Ann. § 402.00 l(b)(Vernon 2006).

      . A decision of a Hearing Officer regarding benefits is final in the absence of a timely appeal by a party and is binding during the pendency of an appeal to the appeals panel. Tex.Lab.Code Ann. § 410.169 (Vernon 2006).

      . Molder testified at the May 21, 2003 hearing that he and Dr. Hall had parted acrimoniously and he was no longer receiving treatment from him. Dr. Hall noted in a letter to Dr. Sklar dated January 28, 2003 that he was no longer treating Molder.

      . At oral argument, Molder’s attorney advised us that reference to "activities of daily living” is "Code-speak” for injuries that are not incurred in the course and scope of employment.

      . The parties stipulated that March 17, 2003 is the statutory MMI date pursuant to Tex. Lab.Code Ann. § 401.011.

      . The Supreme Court of Texas entered a docket equalization order transferring this appeal from the Second Court of Appeals to the Eighth Court of Appeals. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on any relevant issue. See Tex. R.App.P. 41.3.

      . Former Rule 130.5(d)(2) provided the same as Rule 126.7(h). The Appeals Panel based its decision on former Rule 130.5(d)(2) and the parties cited that rule in their briefs. Rule 126.7(h) became effective while the case was pending in the district court. Therefore, we cite to the current version of the rule.

      . Section 408.104 pertains to MMI after spinal surgery.

      . The Division has rejected an argument that Rule 130.1(c)(3) should not be strictly applied where the carrier delays or denies diagnostic testing with the result that surgery occurred after the statutory MMI date. TWCC Appeal No. 042230 (November 1, 2004). The Appeals Panel found that Rule 130.1(c)(3) contained no exception based on delay caused by the carrier and concluded that the surgery for the compensable injury could not be taken into account in determining the IR. In a concurring opinion, one of the Appeals Panel judges questioned the fairness of strict application of Rule 130.1(c)(3) in a case where the carrier caused the delay. TWCC Appeal No. 042230 (J. Gary L. Kilgore, concurring). Noting that the claimant could potentially receive a lower IR if the carrier delayed the claimant's surgery beyond the statutory MMI date, Judge Gilmore expressed concern that such an application of the rule could promote gamesmanship. Because Molder prevailed in the proceedings below, this issue has not been developed and is not ripe for our review in this appeal.


author: FELIPE REYNA, Justice.

text:
    Bret “Doc” BERKMAN, Appellant, v. CITY OF KEENE, Appellee.
    No. 10-08-00073-CV.
    Court of Appeals of Texas, Waco.
    Nov. 4, 2009.

      Keith Bradley, Bradley & Cain, LLC, D. Scott Cain, Cain & Associates, Cleburne, for Appellant.
    Thomas P. Brandt, Fanning Harper & Martinson PC, Dallas, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.

       Without joining the opinion or issuing a separate opinion, Chief Justice Gray concurs in the dismissal for want of jurisdiction noting, "I simply cannot join much of the sweeping language and purported analysis of broad or narrow interpretation of the waiver of immunity. This contract is not for the provision of goods or services to the City of Keene.”

   OPINION ON REHEARING

FELIPE REYNA, Justice.

Bret “Doc” Berkman filed suit against the City of Keene alleging that the City was obligated to furnish water and sewer services to his property at no charge under an agreement between the City and Berk-man’s predecessors in title. The trial court granted the City’s summary-judgment motion. On original submission, we reversed the judgment and remanded this cause for further proceedings. The City contends in its motion for rehearing that the case should be dismissed for want of jurisdiction because of its immunity from suit. We agree.

According to the agreement which is the basis for the underlying suit, the City agreed to furnish up to 1.2 million gallons of water per year to the property at no charge and to furnish sewer services to the property at no charge. The City agreed to furnish water and sewer services under these terms for 35 years if the property was “used on a continuous basis from the date of this agreement forward as a home for children who are wards of the State” or for 20 years if the property ceased to be used for this purpose.

The City contends on rehearing that its immunity from suit has not been waived and thus the trial court lacked subject-matter jurisdiction. Berkman responds that the City’s immunity is waived by section 271.152 of the Local Government Code. See Tex. Loc. Gov’t Code Ann. § 271.152 (Vernon 2005).

“Governmental immunity from suit defeats a trial court’s jurisdiction.” See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 323 (Tex.2006). Such immunity protects political subdivisions like the City from lawsuits except when that immunity has been waived by the Legislature. Id. at 324. Section 271.152 waives immunity from suit for breach-of-contract claims arising from “a contract subject to [chapter 271, subchapter I]” of the Local Government Code. Tex. Loc. Gov’t Code Ann. § 271.152; see Ben Bolt, 212 S.W.3d at 327.

A contract subject to this subchapter is statutorily defined as “a written contract stating the essential terms of the agreement for providing goods or services to the local governmental entity that is properly executed on behalf of the local governmental entity.” Tex. Loc. Gov’t Code Ann. § 271.151(2) (Vernon 2005). Citing Ben Bolt and Dallas Area Rapid Transit v. Monroe Shop Partners, Ltd., 293 S.W.3d 839 (Tex.App.-Dallas 2009, pet. filed), Berkman argues that the “ ‘goods and services’ provision of the statute ha[s] been loosely and broadly interpreted to allow suits for breach of contracts against governmental entities.” However, we believe he reads these decisions too “loosely and broadly.”

The Supreme Court in Ben Bolt held that an insurance contract between a school district and a self-insurance fund qualified as a written contract for the provision of goods and services under the statute. See Ben Bolt, 212 S.W.3d at 327. As noted, section 271.151(2) defines the requisite contract as one for the provision of “goods or services to the local governmental entity.” Tex. Loc. Gov’t Code Ann. § 271.151(2) (emphasis added). The Fund in Ben Bolt argued that the contract at issue provided for services to the school district but not to the Fund, whose waiver of immunity was at issue. See Bolt, 212 S.W.3d at 327. The Supreme Court disagreed, apparently for two reasons. First, the Court observed that Fund members (like the Ben Bolt school district) elected a governing board and a subcommittee of that board resolved claim disputes. Id. “To that extent, at least, the Fund’s members provide services to the Fund.” Id.

Perhaps more importantly, the Court observed that “the statute’s legislative history indicates that, by enacting section 271.152, the Legislature intended to loosen the immunity bar so ‘that all local governmental entities that have been given or are given the statutory authority to enter into contracts shall not be immune from suits arising from those contracts.’ ” Id. (quoting House Comm, on Civil PRACTICES, Bill Analysis, Tex. H.B. 2039, 79th Leg., R.S. (2005)). The Court concluded that “entering into ‘a written contract stating the essential terms of [an] agreement for providing goods or [insurance] services to [a ] local governmental entity’ clearly does [constitute a waiver of immunity under the statute].” Id. (emphasis added) (quoting Tex. Loc. Gov’t Code Ann. § 271.151(2)). Thus, it appears that the Court has construed the statute broadly to waive governmental immunity for any local governmental entity which is a party to a written contract for the provision of goods or services to a local governmental entity regardless of whether the entity being sued is the recipient or provider of such goods or services. See Tex. Ass’n of Sch. Bds. Risk Mgmt. Fund v. Benavides Indep. Sch. Dist., 221 S.W.3d 732, 738-39 (Tex.App.-San Antonio 2007, no pet.).

The Dallas Court stated in DART, “Our Court has read the waiver provision of section 271.152 broadly. Once the trial court determines whether a contract falls within the provisions of section 271.152, then any class of breach falls within it.” DART, 293 S.W.3d at 841 (citing City of Mesquite v. PKG Contracting, Inc., 263 S.W.3d 444, 447 (Tex.App.-Dallas 2008, pet. filed)). In PKG Contracting, the Dallas Court construed the statute broadly only in considering whether a particular breach-of-contract claim was included within the waiver of immunity where the parties did not dispute that the contract itself fell within the provisions of section 271.152. See PKG Contracting, 263 S.W.3d at 447 (rejecting city’s claim that waiver of immunity applied only to “claims of breach of the essential, written terms of an agreement, not for implied duties”).

In DART however, the court arguably construed the statute broadly in considering whether it applied to the contract at issue. The contract at issue was a “CONTRACT OF SALE AND DEVELOPMENT” “which called for DART to sell, and Monroe to purchase and develop, certain historically significant property near a DART rail station.” DART, 293 S.W.3d at 840. Monroe sued DART for breach of contract. Id. at 839-40. DART argued that its governmental immunity was not waived by section 271.152 because the contract was merely a real estate sales contract and not a contract for goods or services. See id. at 840-41. The Dallas Court disagreed, observing that the contract required Monroe to provide “pre-closing and post-closing development services ... related to the construction on the property” which would be of some benefit to DART. Id. at 840-41. Thus, the court held that the contract included “promises by Monroe to provide services to DART.” Id. at 841.

The Fourteenth Court has likewise construed the statute in broad fashion. See Clear Lake City Water Auth. v. Friendswood Dev. Co., Ltd., 256 S.W.3d 735, 748-50 (Tex.App.-Houston [14th Dist.] 2008, pet. dism’d). The contract at issue in Friendswood Development was entitled “Sales Agreement and Lease of Facilities.” Id. at 738. “Friendswood Development was to arrange for the construction of water distribution lines, sanitary sewer lines, and drainage facilities to provide service to houses Friendswood Development proposed to build on its land; and the Authority agreed to purchase or lease the completed ‘Facilities.’” Id. at 739. The court recognized that Friendswood Development’s obligation to arrange for the construction of these items appeared to be “directed towards and to benefit the Subdivision and its residents, rather than the Authority,” but nevertheless concluded that under “the Ben Bolt court’s liberal construction of the applicable statute,” the agreement was one for the provision of services to the Authority. Id. at 750-51.

We would not go so far as the Fourteenth Court did in Friendswood Development. Rather, we are more persuaded by the interpretation advanced by the First Court in East Houston Estate Apartments, L.L.C. v. City of Houston, 294 S.W.3d 723 (Tex.App.-Houston [1st Dist.] 2009, no pet.). In that case, the court began its discussion of section 271.152 by referring to both statutory and common law requirements that a waiver of immunity must be clear and unambiguous. Id. at 733-34 (citing Tex. Gov’t Code Ann. § 311.034 (Vernon Supp. 2009); Tooke v. City of Mexia, 197 S.W.3d 325, 332-33 (Tex.2006)). The court held that the statute does not apply to contracts “in which the benefit that the [local governmental entity] would receive is an indirect, attenuated one.” Id. at 736.

If every contract that confers some attenuated benefit on a governmental entity constitutes a contract for a “service,” the limitation of contracts covered by section 271.152 to “contract for goods or services provided to the entity” loses all meaning. Nothing in the statute nor in its legislative history supports such an interpretation. Had the legislature intended to waive immunity from liability for every contract participated in by the State, it could have done so. We must interpret the limitation as having some meaning.

Id. at 736.

Here, Berkman contends that the parties’ agreement includes the provision of at least two services to the City: (1) use of the property as a children’s home; and (2) the filing of an annexation petition for the property. However, these are at best “indirect” or “attenuated” benefits to the City. See id. at 736.

The City has no independent obligation to provide for the welfare of children who are wards of the State. Thus, the commitment to use the property as a children’s home is at most the provision of a service to the State rather than the City. Cf. id. at 736-37 (benefit of funds under agreement “ran directly from the federal government and Chase Bank to [the apartments], not to the City”). To the extent that the needs of parentless children in the City are met, this would be an indirect benefit to the City.

Nor does the filing of an annexation petition constitute the provision of a service to the City. At most, the filing of the annexation petition provided an indirect benefit to the City in this instance by ultimately expanding the City’s tax base.

For these reasons, the agreement at issue is not “a contract subject to [chapter 271, subchapter I]” of the Local Government Code. See Tex. Log. Gov’t Code Ann. § 271.152; E. Houston Estate Apartments, 294 S.W.3d at 735-37. Therefore, the City’s immunity from suit was not waived. See E. Houston Estate Apartments, 294 S.W.3d at 737.

The City’s motion for rehearing is granted. The opinion and judgment of this Court dated July 15, 2009 are withdrawn, and the opinion and judgment we issue today are substituted therefor. We reverse the trial court’s judgment and render a judgment of dismissal for want of jurisdiction.

Chief Justice GRAY concurring with note.

      . Because immunity from suit deprives a trial court of subject-matter jurisdiction, it may be raised for the first time in a motion for rehearing in the court of appeals. See Travis Cent. Appraisal Dist. v. Norman, 274 S.W.3d 902, 912 (Tex.App.-Austin 2008, pet. granted).

      . Although it is not entirely clear from the Court's opinion in Ben Bolt, we believe this is the correct interpretation because the Court: (1) construed the pertinent statutory language as applying to any written contract for the provision of goods or services to “a " local governmental entity rather than “the ” local governmental entity; (2) later repeated its observation that the Fund had entered a contract "for providing [insurance] services to [a] local governmental entity”; and (3) did not make further mention of its observation that, to a limited extent, Fund members provided services to the Fund. See Ben Bolt-Palito Blanco Consol. Indep. Sch. Dist. v. Tex. Political Subdivisions Prop./Cas. Joint Self-Ins. Fund, 212 S.W.3d 320, 327-28 (Tex.2006); Tex. Ass’n of Sch. Bds. Risk Mgmt. Fund v. Benavides Indep. Sch. Dist., 221 S.W.3d 732, 738-39 (Tex.App.-San Antonio 2007, no pet.); see also Ben Bolt, 212 S.W.3d at 330 (Willett, J., dissenting) (criticizing this aspect of the majority opinion). But cf. Clear Lake City Water Auth. v. Friendswood Dev. Co., Ltd., 256 S.W.3d 735, 749-50 (Tex.App.-Houston [14th Dist.] 2008, pet. dism’d) (concluding that Ben Bolt decision focused on Fund members’ provision of services to the Fund).

      . These are two of the three requirements which served as consideration for the conveyance by Berkman’s predecessors in title of three small tracts of land to the City. The other requirement was the City's agreement to furnish water and sewer services at no charge for a specified period of time.


text:
    In re: ESTATE OF Bertha May RUSSELL, Deceased.
    No. 08-07-00187-CV.
    Court of Appeals of Texas, El Paso.
    Nov. 18, 2009.

      R. Kevin Spencer, Spencer & Waterbury, Dallas, TX, for Appellant.
    John M. Lane, Wichita Falls, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

Bertha May Russell executed a will on February 20, 2002. Following her death, the will was admitted to probate in Montague County, Texas. After probate and the appointment of her son, Kenneth Russell, as the independent executor, three of Mrs. Russell’s granddaughters — Beth Bridgens, Connie Wilkerson, and Harva Kuykendall (collectively Appellees) — filed a will contest challenging her testamentary capacity and alleging undue influence, lack of testamentary intent, and malicious tor-tious interference with inheritance. A jury found that Mrs. Russell had testamentary capacity at the time she executed the will, but it found undue influence, tor-tious interference, and malice. The trial court refused to uphold the punitive damages and that part of the verdict was set aside. Kenneth Russell brings this appeal and, in five points of error, challenges the jury’s findings. We affirm.

FACTUAL BACKGROUND

Because of the familial relationships, we shall refer to the parties by their given names, for the most part. Bertha May Russell was born in 1903 and died on November 20, 2003. She and her husband, E.P. Russell, were the parents of Kenneth Russell, Clois Russell, and Eva Lou Kuyk-endall. E.P. Russell died in 1984. Eva Lou is the mother of the Appellees and she passed away on December 19, 2001. Kenneth has two sons, Danny and William. Clois was described by Kenneth Russell as being unable to function without help, “he can’t read nor write, and he has this saliva control problem, and he don’t understand about things.”

Mrs. Russell executed a will prior to 1998 with the assistance of a Texas attorney named Greg Underwood. In procuring the execution, Kenneth contacted Underwood, instructed him as to the contents of the will, and then took his mother to Underwood’s office to sign it. Mrs. Russell executed a second will, dated July 6, 1998, and a third will, dated November 27, 2000, both of which were drafted by attorney Brian Powers. Mrs. Russell executed her final will on February 20, 2002. Powers prepared this one as well.

SUFFICIENCY OF THE EVIDENCE

In Points of Error One, Two, Three, and Four, Kenneth challenges both the legal and factual sufficiency of the evidence to support the jury’s findings. We apply the following standards in evaluating his arguments.

Standards of Review

A “no evidence” or legal insufficiency point is a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. Serrano v. Union Planters Bank, N.A., 162 S.W.3d 576, 579 (Tex.App.-El Paso 2004, pet. denied). There are two separate “no evidence” claims. Id. When the party having the burden of proof suffers an unfavorable finding, the point of error challenging the legal sufficiency of the evidence should be that the fact or issue was established as “a matter of law.” Id. When the party without the burden of proof suffers an unfavorable finding, the challenge on appeal is one of “no evidence to support the finding.” Id.; In re Estate of Livingston, 999 S.W.2d 874, 876 (Tex.App.-El Paso 1999, no pet.). An appellate court will sustain a legal sufficiency or “no-evidence” challenge if the record shows: (1) the complete absence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex.2005); El Paso Independent School District v. Pabon, 214 S.W.3d 37, 41 (Tex.App.-El Paso 2006, no pet.). In conducting our review, we con sider the evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822. Even if evidence is undisputed, it is the province of the trier of fact to draw from it whatever inferences it wishes so long as more than one inference is possible. Id. at 821. But if the evidence allows only one inference, neither the trier of fact nor the reviewing court may disregard it. Id. We are also mindful that the trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony. Id. at 819. When there is conflicting evidence, it is the province of the trier of fact to resolve such conflicts. Id. at 820. In every circumstance in which a reasonable trier of fact could resolve conflicting evidence either way, the reviewing court must presume it did so in favor of the prevailing party, and disregard the conflicting evidence in its sufficiency review. Id. at 821. If the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the trier of fact must be allowed to do so. Id. at 822. So long as the evidence falls within this zone of reasonable disagreement, we may not substitute our judgment for that of the trier-of-fact. Id. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827.

Factual sufficiency complaints concede conflicting evidence on an issue, but maintain the evidence against the jury’s finding is so great as to make the finding erroneous. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275 (Tex.App.-Amarillo 1988, writ denied). We may set aside a verdict only if the evidence is so weak, or is so against the great weight and preponderance of the evidence, that it is clearly wrong and unjust. Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex.2001). We are not permitted to pass upon witness credibility, nor will we substitute our judgment for that of the jury even if the evidence would clearly support a different result. Rather, we will sustain the challenged finding if the there is competent evidence of probative force to support it. The fact that we may conclude that the evidence preponderates toward an affirmative answer based on our review of the record is not an appropriate ground for reversal.

Undue Influence

Appellant first argues there was no evidence or insufficient evidence supporting the setting aside of the 2002 will based upon undue influence. Undue influence implies the existence of testamentary capacity in the testator that was subjected to and controlled by a dominant power or influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963); Green v. Earnest, 840 S.W.2d 119, 121 (Tex.App.-El Paso 1992, writ denied). Before a will may be set aside on the ground of undue influence, the contestant must prove:

• the existence and exertion of an influence;
• the effective use of that influence to subvert or overpower the mind of the testator at the time the will was executed; and
• the execution of a will which the testator would not have executed but for such influence.

Rothermel, 369 S.W.2d at 922; Green, 840 S.W.2d at 121.

Relevant Facts

Appellant offers the following arguments with regard to undue influence:

• There was no evidence of opportunity to influence his mother;
• There was no evidence or insufficient evidence to show Mrs. Russell’s susceptibility to influence;
• There was no showing that Mrs. Russell’s mind and desires were overpowered or subverted at the time of the will execution;
• There was no showing that Mrs. Russell was incapable of changing the 2002 will; and
• The 2002 will disposition was not unnatural considering the circumstances.
• Appellees respond with reference to the following incidents.

The Underwood Will: Kenneth admitted that prior to 1998, he contacted Greg Underwood, instructed him as to the will’s contents, and then took his mother to Underwood’s office. He was, in fact, “the one that dictated what to do and what we wanted.”

Q. Okay. Your mother was there?
A. Well, she said you take care of it before we ever went up there — before we ever went to his office. Said, now, you do — if they don’t want to offer anything, you take care of it because I can’t. She said she couldn’t function enough to— she didn’t know enough about it, in other words, how to fix it and everything.
Q. Okay. Had she visited with Underwood prior to that?
A. No.

He also confirmed that his mother deferred to him “on all matters,” including financial matters.

Clois’ Power of Attorney: There were numerous contradictions between the testimony of Kenneth and Brian Powers. Powers testified that Clois had the mental wherewithal to legally execute the power of attorney and understood that he needed help. Powers thought that he might have recommended to Clois that he sign a power of attorney. He could not recall Kenneth instructing him to create the document and he doubted that had occurred. Kenneth, on the other hand, cast doubt on Powers’ attorney/client safeguards and described a relationship in which Kenneth called the shots, Powers drafted the documents, and then Powers procured the execution in Kenneth’s absence. Kenneth explained that he called Powers and told him that Eva Lou had a power of attorney over Clois and that he wanted to “undo” hers and grant one in his favor. Kenneth then drafted a check from Clois’ account made payable to Powers, and Clois endorsed it. Clois had no idea what the document was, he could not have understood what the document was, and “[he] just signed it because [Powers] asked him to sign it.”

Clois’ Will: Kenneth and Powers created another legal document on behalf of Clois and for Kenneth’s benefit. Powers testified that Clois had the requisite mental capacity to execute the will, and understood the bounty of his assets, and wanted to execute it. Kenneth testified Clois originally had a will dividing his estate between siblings Kenneth and Eva Lou. When Kenneth became upset with Eva Lou, he called Powers because he “needed to change the will to me because I could divide with her but she wouldn’t divide with me.” A new will was drafted, leaving all of Clois’ estate to Kenneth. As with the power of attorney, Clois endorsed the check to Powers.

Decedent’s File with Brian Powers: Powers testified that Mrs. Russell’s file contained three sticky, Posb-It type notes. These were the only items in the file except for unsigned copies of the first three wills (1998, 2000, and 2002). One of the notes bore Kenneth’s phone number, but the file did not contain a phone number for Mrs. Russell. The next note referenced a power of attorney that was to be prepared on behalf of Mrs. Russell and it listed Kenneth’s address and phone number. The third note read:

Kenneth Russell, mother’s will, add, quote, the round dining room table I am presently using is to go to my grandson, William D. Russell, that’s Billy, and then his social security number is on it also.

This specific gift was denoted in the 1998 will and all subsequent wills.

Decedent’s Quality of Fairness: Kenneth, Danny Russell, and Connie Wilkerson all testified that Mrs. Russell was fair and equal when it came to her family. Powers testified that with the exception of the 2002 will, all previous wills were set up to distribute her estate in equal proportion to each of her children, and then to then-decedents, per stirpes.

Analysis

There is ample evidence to show (1) the existence and extension of an undue influence by Kenneth in the procurement of the 2002 will; (2) the effective operation of such influence so as to subvert or overpower the Mrs. Russell’s mind when executing the document; and (3) Mrs. Russell would not have executed the will but for Kenneth’s influence. Indeed, some of the strongest testimony came from Kenneth himself. We overrule Point of Error One.

Disinheritance

Kenneth next complains that there was no evidence or insufficient evidence to support the jury’s finding that Mrs. Russell did not intend to disinherit her granddaughters. Historically, Texas courts have treated questions of intent as uniquely within the realm of the fact finder because the determination of an individual’s intent in taking a particular action is so dependent on an evaluation of witnesses and credibility. See City of Dallas v. Jennings, 142 S.W.3d 310, 314 (Tex.2004); State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 378 (Tex.1993); Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex.1986); see also In re Estate of Steed, 152 S.W.3d 797, 804 (Tex.App.-Texarkana 2004, pet. denied)(in the context of answering the legal question of a party’s domicile, an individual’s intent to make a location a permanent home is a fact question); Guthrie v. Suiter, 934 S.W.2d 820, 831 (Tex.App.-Houston [1st Dist.] 1996, no writ)(summary judgment precluded by fact question regarding testator’s capacity and intent following brain surgery); Russell v. City of Bryan, 797 S.W.2d 112, 115 (Tex.App.-Houston [14th Dist.] 1990, writ de-niedXgrantor’s intent in executing deed is a fact question); Turboff v. Gertner, Aron & Ledet Investments, 763 S.W.2d 827, 830 (Tex.App.-Houston [14th Dist.] 1988, writ denied) (in contract law, the question of the parties’ intent in signing a document is one for the fact finder); Lee-Emmert v. Macatee, Inc., 410 S.W.2d 489, 490 (Tex.Civ.App.-Dallas 1966, no writ)(intent to waive a defense in estoppel context is a fact question); Manziel v. Williams, 262 S.W.2d 437, 438 (Tex.Civ.App.-Texarkana 1953, no writ) (whether party possessed the required intent to deceive for purposes of establishing fraud cause of action is a fact question).

Testamentary intent does not depend on the testator’s realization that he is making a will, but rather in his intent to express his testamentary wishes in the instrument offered for probate. Luker v. Youngmeyer, 36 S.W.3d 628, 630 (Tex.App.-Tyler 2000, no pet.). To determine whether the testator intended a particular document to be a testamentary disposition of his property, the court may consider the facts and circumstances surrounding the instrument’s execution. Id., citing Shiels v. Shiels, 109 S.W.2d 1112, 1113 (Tex.Civ. App.-Texarkana 1937, no writ).

Appellees point out that the prior wills established their grandmother’s intent that they share in her estate. They would have inherited per stirpes under either of the previous wills had they been offered to probate. From all the evidence presented, a fair-minded jury could consider the 2002 will “unnatural” in the context of the testimony regarding the fair and equitable treatment Mrs. Russell showed her children and grandchildren. Consequently, we reject Kenneth’s argument that the mere execution of the 2002 will is sufficient to establish Mrs. Russell’s intent regarding her granddaughters’ inheritance. We overrule Point of Error Two.

Tortious Interference with Inheritance

Kenneth next complains that a directed verdict should have been granted with regard to the tortious interference claim. Texas recognizes a cause of action for tortious interference with inheritance rights. King v. Acker, 725 S.W.2d 750, 754 (Tex.App.-Houston [1st Dist.] 1987, no writ). In so holding, the court relied upon the Restatement (Second) of Torts, § 774B (1979):

One who by fraud, duress or other tor-tious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.

Id. Appellees respond that Kenneth, in concert with Powers, established a history of interfering with family inheritances that inured to Kenneth’s benefit at Eva Lou’s expense. The conflicting and contradictory testimony between Kenneth and Powers created a reasonable expectation that the jurors would discredit testimony of one or the other. We agree with Appellees that the evidence was sufficient to enable a reasonable and fair-minded jury to conclude that (1) there was an intended inheritance, and (2) Kenneth tortiously interfered with it. We overrule Point of Error Three.

Malice

Kenneth next attacks the jury’s finding that his interference with Appellees’ inheritance was malicious. Malice is defined to mean a specific intent by the defendant to cause substantial injury or harm to the claimant. Tex.Civ.Prac. & Rem.Code Ann. § 41.001(7)(Vernon 2008). Specific intent means that the actor desires to cause the consequences of his act, or he believes the consequences are substantially certain to result from it. Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex.1985). Malice may be proven by direct or circumstantial evidence. See Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 921 (Tex.1998); Mission Resources, Inc. v. Garza Energy Trust, 166 S.W.3d 301, 314 (Tex.App.-Corpus Christi 2005, pet. filed).

Once again we agree with Appellees that the evidence was sufficient to enable reasonable and fair-minded jurors to conclude that (1) there was an intended inheritance, and (2) Kenneth tortiously interfered with the inheritance, (3) knowing the consequences, and (4) he specifically intended to cause substantial injury or harm to Appel-lees by way of his actions. Kenneth’s actions therefore constituted a show of malice. We overrule Point of Error Four.

COSTS OF COURT

In his final issue, Appellant argues that absent the requisite “good faith and just cause” finding, the final judgment incorrectly allows for recovery of costs, and Appellees should not and cannot recover their costs of this suit. We disagree.

Rule 131 provides that “[t]he successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided.” Tex.R.Civ.P. 131. Kenneth directs us to the Texas Probate Code to support his argument Appel-lees cannot recover costs without a finding that they have prosecuted this proceeding in good faith and with sufficient cause. Section 243 provides:

When any person designated as a executor in a will or an alleged will, or as administrator with the will or alleged will annexed, defends it or prosecutes any proceeding in good faith, and with just cause, for the purpose of having the will or alleged will admitted to probate, whether successful or not, he shall be allowed out of the estate his necessary expenses and disbursements, including reasonable attorney’s fees, in such proceedings.

Tex.Prob.Code Ann. § 243 (Vernon’s 2003). As Appellees point out, the judgment merely taxed court costs; it did not grant attorneys’ fees or other expenses. Appellees did not seek fees pursuant to the Probate Code and were not required to plead for costs under Rule 131. City of Irving v. Dallas/Fort Worth Int’l Airport Bd., 894 S.W.2d 456 (Tex.App.Fort Worth 1995, writ denied). Moreover, the judgment taxed costs against Kenneth and Clois individually. It makes no recitation that the costs are to be paid from the estate. Consequently, the order does not violate section 243, and since costs were properly awarded pursuant to Rule 131, a finding of “good faith and just cause” was unnecessary. We overrule Point of Error Five. Having overruled all issues for review, we affirm the judgment of the court below.