Workers Compensation Claim Sparks Dispute Regarding Plaintiff’s Orthopedic Impairment Rating

Court: Court of Appeals of Texas, Third District, Austin
Jurisdiction: Federal
Case Name: Barrigan v. MHMR Servs.
Citation: 2007 Tex. App. LEXIS 43


This was an appeal from a jury verdict in a workers’ compensation case to determine the appropriate rating of impairment for the appellant’s benefits claim.

The appellant (plaintiff) formerly worked as part of a cleaning crew for the appellee, a mental health services facility. She sustained a back injury after losing control of a buffer machine, which forced her to undergo a two-level spinal fusion surgery. The Texas Workers’ Compensation Board appointed an orthopedic surgeon to test the plaintiff. This orthopedic surgeon concluded that the plaintiff had reached full health progress (MMI). The doctor also rated her impairment at 20% based on two of the Commission’s advisory opinions.

Believing this rating to be too high, the appellee sought clarification. This led the orthopedic surgeon to perform another test using an alternative testing method. The orthopedic surgeon performed range-of-motion tests, which are advised by the Guide to the Assessment of Permanent Disability in cases where disability classification is contended. The test revealed the plaintiff’s impairment rating to be 27%. Therefore, the commission-appointed doctor reiterated that his original impairment rating was 20%.

The appellee requested that another physician perform an independent medical examination on the plaintiff to obtain a different impairment rating. The Commission appointed another orthopedic surgery expert who independently tested the plaintiff and assessed her impairment rating to be 10%. The Commission then held a case hearing after which it passed an order that the plaintiff’s impairment rating was 20%. The defendant appealed to the Commission Appeals Panel, failed, and filed a judicial review case under the labour code section 410.301. The plaintiff challenged the testimony of the second orthopedic surgery expert in her pretrial motions.

The Orthopedic Surgery Expert Witness

The second orthopedic surgery expert received his medical degree from the University of Cape Town in South Africa and completed orthopedic instruction and residency in Canada. The orthopedic surgery expert witness was licensed and practiced for 25+ years. Dr. Foxcroft was a member of the Academy of Disability Evaluating Physicians and the Texas Orthopedic Association. The expert had been chosen to opine on impairment ratings and maximum medical improvement on 1,000+ patients as a designated doctor by the Commission.

The orthopedic surgery expert witness testified that the impairment rating was based on his physical examination of the plaintiff as well as her history. The main approach for the calculation of impairment ratings was the injury template laid out in the fourth edition of the Guides. Under this model, the physician uses objectively verifiable evidence to place patients in one of the eight categories of diagnosis-related estimates (DREs). The allocated DRE classification will then establish the patient’s disability score. The orthopedic surgery expert witness testified that he followed the Guides because he understood Texas law to require it and disregarded the Commission’s advisory opinions, as it was discretionary.


The plaintiff argued that the orthopedic surgery expert witness was not qualified to testify in this case because he was not board certified in orthopedic surgery in the United States. The court rejected this argument and noted there was no authority to support the assertion that a foreign-trained doctor could not qualify as an expert under Rule 702.

The plaintiff also argued that the expert’s methodology was unreliable because he ignored the Commission advisory opinions and the range-of-motion tests in his assessment of her impairment rating. The court disagreed and noted that the Guides advised using range-of-motion tests only as a last resort differentiator if a rating cannot be decided using injury models. Therefore, the court could not conclude that the trial court abused its discretion in holding that the orthopedic surgery expert’s opinion was reliable.


The appellant’s motion to exclude the orthopedic surgery expert witness testimony was denied.