Compensation case to determine impairment rating

Texas Case Law

BARRIGAN v. MHMR SERVICES, 03-05-00742-CV (Tex.App. [3rd
Dist.] 1-4-2007) Wendy K. Barrigan, Appellant v. MHMR
Services for the Concho Valley, Self Insured, Appellee.
No. 03-05-00742-CV. Court of Appeals of Texas, Third
District, Austin. Filed: January 4, 2007.

Appeal from the district court of Tom Green County, 340th
Judicial District, No. C-05-0161-C, Honorable Thomas J.
Gossett, Judge Presiding.

Before Chief Justice LAW, Justices PATTERSON and PEMBERTON.

MEMORANDUM OPINION

JAN P. PATTERSON, Justice.

This is an appeal from a jury verdict in a workers’
compensation case to determine the appropriate impairment
rating governing appellant Wendy Barrigan’s claim for
benefits. In six issues Barrigan challenges the trial
court’s denial of her plea to the jurisdiction, the trial
court’s instructions to the jury on burden of proof, the
admissibility of expert testimony offered at trial, and the
legal and factual sufficiency of evidence. For the reasons
discussed below, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL BACKGROUND

Barrigan was employed by appellee MHMR Services of the
Concho Valley and suffered a back injury when she lost
control of a buffer machine while working as part of a
cleaning crew. As a result of her injury, Barrigan
underwent a two-level spinal fusion surgery. On November
18, 2003, Dr. Mark Sanders, an orthopedic surgeon and
designated doctor appointed by the Texas Workers’
Compensation Commission,[fn1] examined Barrigan and
determined that she had reached maximum medical improvement
(MMI). Dr. Sanders also determined that Barrigan’s
impairment rating was 20%. Dr. Sanders based his assignment
of Barrigan’s impairment rating on two advisory opinions
issued by the Commission-Commission Advisory Opinions
2003-10 and 2003-10b.[fn2] In relevant part, Commission
advisory 2003-10 provides:

2. Clarification of Rating for Spinal Fusion(s).

For spinal fusion, the impairment rating is determined by
the preoperative x-ray tests for “motion segment integrity”
(page 102, 4th Edition of the Guides to the Evaluation of
Permanent Impairment). If preoperative x-rays were not
performed, the rating may be determined using the following
criteria:

a. One level uncomplicated fusion meets the criteria for
DRE Category II,[fn3] Structural Inclusions. This spinal
abnormality is equivalent to a healed “less than 25%
Compression Fracture of one vertebral body”.

b. Multilevel fusion meets the criteria for DRE Category
IV, Structural Inclusions, as this multilevel fusion is
equivalent to “multilevel spine segment structural
compromise” per DRE IV.

* * *

4. In the Texas workers’ compensation system, the injured
employee’s impairment rating is based on the employee’s
condition on the date of maximum medical improvement or the
date of statutory maximum medical improvement, whichever is
earlier.

Commission advisory 2003-10b is identical to 2003-10 with
the following addition:

c. Health care providers may utilize the range-of-motion or
other methodology if indicated (as with any condition in
the 4th Edition Guides) that most accurately reflects the
impairment rating evident for each injured worker.

After receiving Dr. Sanders’s impairment rating, MHMR asked
for clarification based on Dr. Sanders’s use of the
advisory opinions to assess Barrigan’s impairment rating.
In response, Dr. Sanders re-evaluated Barrigan on June 8,
2004, and performed range-of-motion testing to determine
the appropriate impairment rating. Range-of-motion testing
is an alternative method of testing, which can be used as
allowed in the fourth edition of the Guides to the
Evaluation of Permanent Impairment,[fn4] when there is a
dispute as to the category of impairment to assign a
patient. The range-of-motion testing performed by Dr.
Sanders showed Barrigan to have a 27% impairment rating.
Based on the range-of-motion testing, Dr. Sanders
reaffirmed his original impairment rating of 20%.

MHMR then requested that Barrigan submit to a “required
medical examination” by another physician to obtain an
alternate impairment rating. See Tex. Lab. Code Ann.
§ 408.004(a) (West 2006). As part of its RME
request, MHMR asked the examining doctor to disregard the
Commission’s 2003 advisory opinions. The Commission
appointed Dr. Paul Foxcroft to re-evaluate Barrigan on
behalf of MHMR.

On August 5, 2004, Dr. Foxcroft examined Barrigan and
determined that Barrigan’s impairment rating was 10%. Dr.
Foxcroft did not criticize Dr. Sanders’s evaluations of
Barrigan and independently verified the range-of-motion
testing performed by Dr. Sanders. Dr. Foxcroft agreed with
Dr. Sanders that Barrigan had reached MMI in November 2003.
Nevertheless, Dr. Foxcroft dismissed the range-of-motion
testing as unnecessary and opined that Dr. Sanders’s use of
the Commission advisory opinions was in direct
contravention of the Guides, which Dr. Foxcroft understood
to be the law in Texas.

In light of Dr. Foxcroft’s opinion, MHMR challenged
Barrigan’s impairment rating as assigned by Dr. Sanders. A
benefit review conference was held on September 7, 2004,
but did not settle the dispute. On October 24, 2004, the
Commission held a contested case hearing in the San Angelo
field office to determine Barrigan’s impairment rating.
During the hearing, the parties stipulated that Barrigan’s
MMI date was November 18, 2003. After the hearing, the
hearing officer issued a decision and order finding that
Barrigan’s impairment rating was 20%.

MHMR appealed this decision to the Commission Appeals
Panel. The decision became final and appealable through
operation of law on January 18, 2005. MHMR then filed suit
for judicial review in Tom Green County under section
410.301 of the labor code. See Tex. Lab. Code Ann. §
410.301 (West 2006).

Before trial, Barrigan filed a plea to the jurisdiction and
an evidentiary challenge to the testimony of Dr. Foxcroft.
The trial court held a pre-trial hearing on both the plea
to the jurisdiction and Barrigan’s evidentiary challenge.
At the conclusion of the hearing, the trial court denied
the plea to the jurisdiction and denied Barrigan’s
challenge to Dr. Foxcroft’s testimony. The case was then
submitted to trial before a jury. At the end of trial, the
jury returned a verdict finding that Barrigan’s impairment
rating was 10%. The trial court entered judgment in
accordance with the jury verdict. It is from this judgment
that Barrigan appeals.

DISCUSSION

Barrigan raises six issues on appeal. First, Barrigan
argues that the trial court failed to properly assign the
burden of proof in its charge to the jury. Barrigan also
challenges the legal and factual sufficiency of the
evidence to support the jury’s verdict. In addition,
Barrigan complains that the trial court erred in allowing
the testimony of Dr. Foxcroft at trial. Finally, in two
issues, Barrigan contends that the trial court erred in
denying her plea to the jurisdiction. Because we conclude
that Barrigan’s issues are without merit, we affirm the
judgment of the trial court.

Burden of Proof

In her first issue, Barrigan contends that the trial court
failed to properly assign the burden of proof in its charge
to the jury following the close of evidence at trial. In
relevant part, the trial court charged the jury as follows:

Your answers should be based on a preponderance of the
evidence. Preponderance of the evidence means the greater
weight and degree of the credible evidence introduced to
you and admitted in this case.

* * *

Question 1

What is Wendy Barrigan’s impairment rating?

20%: ________________________________

10%: ________________________________

Barrigan contends that this question improperly placed the
burden of proof upon her to establish by a preponderance of
the evidence that the proper impairment rating was 20%.

At the beginning of trial, the trial court instructed the
jury as follows:

The Plaintiff, MHMR Services, has the burden of proof to
prove by a preponderance of the evidence their case and
what they feel the proper impairment rating should be, and
because they are the Plaintiff, they get to go first in the
evidence.

The record thus reflects that the trial court properly
assigned the burden of proof to MHMR.

The record also reflects that throughout the course of the
trial, from voir dire to closing argument, Barrigan’s
counsel repeatedly emphasized to the jury that MHMR had the
burden to prove Barrigan’s impairment rating by a
preponderance of the evidence. During voir dire, Barrigan’s
counsel explained that MHMR had the burden of proof and
analogized this burden to a golfer who has finished play
and is in the clubhouse simply waiting for the other
golfers to finish. Barrigan’s counsel also referred to the
scales of justice and told the venire panel that Barrigan
did not have to bring any evidence to prevail because MHMR
had the burden of proof. Later, during opening statements,
Barrigan’s counsel again told the jury that MHMR had the
burden of proof and referred to his prior golf analogy, as
well as the scales of justice and a teeter-totter. Then,
during closing arguments, Barrigan’s counsel stated to the
jury, “[Y]ou will recall early on and throughout this whole
trial, we have been talking about the burden of proof.”
Barrigan’s counsel again told the jury that MHMR had the
burden of proof and referred again to the see-saw and
teeter-totter analogies, as well as to the scales of
justice.

We review Barrigan’s claim of jury charge error under the
harmless error rule. See Tex. R. App. P. 44.1(a). Although
we recognize that the trial court did not include an
instruction assigning the burden of proof to MHMR in its
charge to the jury, we conclude that this omission, if
error, was harmless. See Tex. R. App. P. 44.1(a)(1). Given
the trial court’s instructions at the beginning of trial
and counsel’s comments throughout the trial, Barrigan has
not shown that the omission of an instruction in the jury
charge assigning the burden of proof to MHMR probably
caused the rendition of an improper judgment. Id. We
overrule Barrigan’s first issue.

Legal and Factual Sufficiency

In her second and third issues, Barrigan contends that the
evidence was legally and factually insufficient to support
the jury verdict. In reviewing the legal sufficiency of the
evidence, we view the evidence in the light most favorable
to the judgment, crediting favorable evidence if a
reasonable juror could, and disregarding contrary evidence
unless a reasonable juror could not. City of Keller v.
Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The test for legal
sufficiency is whether the evidence would enable reasonable
and fair-minded people to reach the judgment being
reviewed. Id. at 827-28. In reviewing the factual
sufficiency of the evidence, we consider and weigh all of
the evidence in the record, and we may overturn a judgment
only if it is so against the great weight and preponderance
of the evidence as to be clearly wrong and manifestly
unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Dyson
v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985) (citing In
re King’s Estate, 244 S.W.2d 660, 661 (Tex. 1951)).

At trial, MHMR submitted documentary evidence including the
medical records of Barrigan’s treating physician Dr. Robert
LeGrand; the medical report of Dr. Sanders, the designated
doctor; and the medical records of Dr. Foxcroft, the
physician appointed by the Commission to evaluate Barrigan
on behalf of MHMR. In addition to these records, Dr.
Foxcroft testified at trial that based on his experience,
his review of Barrigan’s medical records, and his physical
examination of Barrigan, he determined her impairment
rating to be 10%.

Viewing the record as a whole, crediting favorable evidence
if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not, we find that
reasonable and fair-minded people could have considered the
medical records submitted by MHMR and Dr. Foxcroft’s
testimony and concluded that Barrigan’s impairment rating
was 10%. We hold that the evidence was legally sufficient to
support the jury verdict. See City of Keller, 168 S.W.3d at
807, 827-28. Having reviewed the record, we likewise hold
that the evidence was factually sufficient to support the
jury verdict. See Cain, 709 S.W.2d at 176.

Admission of Dr. Foxcroft’s Testimony

In her fourth issue on appeal, Barrigan challenges the
trial court’s admission of Dr. Foxcroft’s testimony on the
grounds that Dr. Foxcroft was not qualified to testify as
an expert witness in orthopedic surgery and that Dr.
Foxcroft’s testimony was unreliable.

Rule 702 of the Texas Rules of Evidence allows a witness
qualified as an expert by knowledge, skill, experience,
training, or education to testify on scientific, technical,
or other specialized subjects if the testimony would assist
the trier of fact in understanding the evidence or
determining a fact issue. Tex. R. Evid. 702. Whether an
expert is qualified is, under rule 104(a), a preliminary
question to be decided by the trial court. Tex. R. Evid.
104(a). The party offering expert testimony bears the
burden of proving that the witness is qualified under rule
702. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d
713, 718 (Tex. 1998). The offering party must prove that the
witness “possesses special knowledge as to the very matter
on which he proposes to give an opinion.” Id. (internal
quotes and citation omitted). We review the trial court’s
acceptance of an expert witness’s qualifications for abuse
of discretion. Id. at 718-19.

Barrigan argues that Dr. Foxcroft was not qualified to
render an opinion on her impairment rating because he was
not board certified in orthopedic surgery by the American
Board of Medical Examiners and his orthopedic training is
only recognized in Canada. Barrigan also asserts that Dr.
Foxcroft is unqualified because he has no privileges to
perform surgery at any hospital in the United States. The
record reflects that Dr. Foxcroft earned his medical degree
in 1965 from the University of Cape Town in South Africa.
Dr. Foxcroft received orthopedic training at the University
of Canada and completed his orthopedic residency in Canada
in 1983. Dr. Foxcroft has been licensed to practice medicine
in Texas since 1983 and has practiced orthopedic surgery
from 1983 to 2000 in Brownwood, Texas. Dr. Foxcroft is a
member of the Texas Orthopedic Association and the Academy
of Disability Evaluating Physicians. In addition, Dr.
Foxcroft has been selected, trained, and approved to give
opinions on maximum medical improvement and impairment
ratings as a designated doctor by the Commission since
1995. During his appointment with the Commission, Dr.
Foxcroft has conducted over 1,000 examinations as a
designated doctor.

Based on this evidence, we conclude the trial court did not
abuse its discretion in accepting the qualifications of Dr.
Foxcroft. See id. Barrigan’s primary complaint regarding
Dr. Foxcroft’s qualifications is that he is not board
certified in the United States. However, Barrigan cites no
authority, and we have found none, to support the
proposition that a doctor certified in a foreign country is
not qualified to provide expert testimony under rule 702.
The rule requires only that a witness be “qualified as an
expert by knowledge, skill, experience, training, or
education.” Tex. R. Evid. 702. It does not require that a
witness receive or acquire this “knowledge, skill,
experience, training, or education” in a particular country
or from a particular institution. MHMR has demonstrated
that Dr. Foxcroft is qualified to opine on Barrigan’s
impairment rating based on his many years of orthopedic
education, training, and experience, as well as his training
and experience as a designated doctor, appointed and
approved by the Commission, who has performed over 1,000
patient evaluations.

As part of her challenge to Dr. Foxcroft’s testimony,
Barrigan also contends that Dr. Foxcroft’s opinions were
not reliable because Dr. Foxcroft did not use the
advisories published by the Commission to reach his
conclusions regarding Barrigan’s impairment rating and
because he disregarded the range-of-motion testing
performed by Dr. Sanders. We disagree.

Rule 702 requires that expert testimony be both relevant
and reliable before it may be admitted by the trial court.
Id.; Gammill, 972 S.W.2d at 726. The reliability
requirement of rule 702 focuses on the principles,
research, and methodology underlying an expert’s
conclusions. E.I. du Pont de Nemours & Co. v. Robinson, 923
S.W.2d 549, 557 (Tex. 1995). Under this requirement, expert
testimony is unreliable if it is no more than “subjective
belief or unsupported speculation.” Id. (quoting Daubert v.
Merrell Dow Pharms., Inc., 509 U.S. 579, 590 (1993)).
Expert testimony is also unreliable if there is too great
an analytical gap between the data relied upon by the
expert and the opinion offered. Gammill, 972 S.W.2d at 727.
In applying this reliability standard, the trial court does
not decide whether the expert’s conclusions are correct;
rather, the trial court determines only whether the
analysis used to reach those conclusions is reliable. Id.
at 728. We review the trial court’s reliability
determination for abuse of discretion. Guadalupe-Blanco
River Auth. v. Kraft, 77 S.W.3d 805, 806 (Tex. 2002).

Dr. Foxcroft examined Barrigan and applied the fourth
edition of the Guides to determine that Barrigan’s
impairment rating was 10%. Dr. Foxcroft testified that the
impairment rating was based on his physical examination of
Barrigan and the history related to him by Barrigan. The
primary methodology for determining impairment ratings is
the injury model set forth in the fourth edition of the
Guides. Under this model, a doctor uses objectively
verifiable evidence to place patients into one of eight
diagnosis-related estimate (DRE) categories. The assigned
DRE category then determines the patient’s impairment
rating. Dr. Foxcroft testified that he did not use the
Commission advisories in his determination of Barrigan’s
impairment rating because the advisories are discretionary.
That is, the Commission does not require doctors to use the
advisories when determining an impairment rating. When asked
why he chose not to use the advisories, Dr. Foxcroft
testified that he understood the law to require him to
follow the Guides, but that use of the Commission
advisories was discretionary. Dr. Foxcroft’s testimony is
consistent with the labor code which expressly requires the
use of the Guides when determining an impairment rating for
the purpose of awarding impairment benefits.[fn5] Tex. Lab.
Code Ann. § 408.124 (West 2006).

Barrigan also complains that Dr. Foxcroft’s disregard of
the range-of-motion testing performed by Dr. Sanders is
further evidence that Dr. Foxcroft’s testimony is
unreliable. We find this complaint to be without merit.
According to the fourth edition of the Guides, a physician
should only resort to range-of-motion testing as a
differentiator when it is not otherwise possible to
determine the patient’s appropriate DRE category according
to the injury model.[fn6] Based upon his physical
examination of Barrigan, Dr. Foxcroft testified that he was
able to determine Barrigan’s impairment rating without the
need of a differentiator such as range-of-motion testing.
Although Dr. Foxcroft agreed that Dr. Sanders conducted the
range-of-motion testing properly and he did not dispute the
results of Dr. Sanders’s range-of-motion testing, Dr.
Foxcroft testified that it was simply unnecessary. He
explained that it was not necessary to perform the
range-of-motion testing as a differentiator because he had
no problem assessing the appropriate DRE category for
Barrigan without it.

On this record, we cannot say that the trial court abused
its discretion in admitting Dr. Foxcroft’s testimony.
Barrigan has not shown that the principles or analysis
employed by Dr. Foxcroft to determine Barrigan’s impairment
rating were unreliable. See Gammill, 927 S.W.2d at 728. The
crux of Barrigan’s complaints is that Dr. Foxcroft reached
the wrong conclusion, but the trial court is not called upon
to decide whether the expert’s conclusions are correct when
it evaluates reliability under rule 702. Id. We overrule
Barrigan’s fourth issue.

Plea to the Jurisdiction

In her fifth and sixth issues, Barrigan argues that the
trial court improperly denied her plea to the jurisdiction
because MHMR’s petition for judicial review was untimely
and MHMR failed to comply with labor code section
408.123(e) — also known as the “90-day” rule. Tex.
Lab. Code Ann. § 408.123(e) (West 2006). We reject
Barrigan’s arguments.

The Texas Labor Code sets up a hybrid method of seeking
judicial review of an appeals panel decision. To seek
judicial review on issues regarding compensability or
eligibility for benefits, a party must file its petition
for judicial review not later than the “40th day after the
date on which the decision of the appeals panel was filed
with the [Commission].” Tex. Lab. Code Ann. §
410.252 (providing 40-day deadline for judicial review),
.301(a) (judicial review of decision regarding
compensability or eligibility for benefits shall be
conducted as provided in this subchapter) (West 2006). For
judicial review of all other issues, the labor code
specifies that review will be conducted as provided in
subchapter G, chapter 2001, of the government code. Id.
§ 410.255(a) (West 2006). While review under section
410.301 of the labor code requires a party to file its
petition for review within 40 days, the government code
gives a party only 30 days in which to file a petition for
judicial review. Tex. Gov’t Code Ann. § 2001.176(a)
(West 2000).

Based on this distinction, Barrigan argues that MHMR’s
petition did not properly invoke the trial court’s
jurisdiction because MHMR failed to file suit against the
Commission within 30 days. Barrigan contends that MHMR was
required to file suit within 30 days because MHMR does not
simply challenge Barrigan’s impairment rating as allowed
under section 410.301 of the labor code, but instead,
challenges the Commission’s rulemaking authority to
promulgate the advisories in the first instance. Thus,
Barrigan maintains that MHMR was required to file its
petition for judicial review within 30, not 40, days.

The sole claim raised in MHMR’s petition asserts that MHMR
was aggrieved by the appeals panel determination that
Barrigan’s impairment rating was 20%. There is no mention
of the Commission’s rulemaking authority, the Commission’s
rules, or the advisories. The Texas Supreme Court has
recognized that a challenge to a patient’s impairment
rating is a challenge to compensability or eligibility for
benefits. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d
248, 253 (Tex. 1999). We conclude that MHMR’s petition for
judicial review properly asserted a challenge to Barrigan’s
impairment rating, thereby challenging compensability and
eligibility for benefits, and was timely filed within 40
days after the appeals panel decision was filed with the
Commission. See Tex. Lab. Code Ann. §§
410.252, .301. We overrule Barrigan’s fifth issue.

In her sixth issue on appeal, Barrigan argues that the
trial court improperly denied her plea to the jurisdiction
because MHMR failed to comply with section 408.123(e) of
the labor code. See id. § 408.123(e). Known as the
“90-day” rule, section 408.123(e) provides:

Except as otherwise provided by this section, an employee’s
first valid certification of maximum medical improvement
and first valid assignment of an impairment rating is final
if the certification or assignment is not disputed before
the 91st day after the date written notification of the
certification or assignment is provided to the employee and
the carrier by verifiable means.

Id. Because Barrigan did not raise this issue before the
appeals panel, we conclude that it has been waived. Section
410.302(b) of the labor code provides that judicial review
of an appeals panel decision is limited to issues decided
by the appeals panel. Id. § 410.302(b). Texas courts
have consistently held that issues not raised before an
appeals panel may not be reviewed at trial in district
court. See Hefley v. Sentry Ins. Co., 131 S.W.3d 63, 65
(Tex.App.-San Antonio 2003, pet. denied); Marts v.
Transportation Ins. Co., 111 S.W.3d 699, 706 (Tex.App.-Fort
Worth 2003, pet. denied); St. Paul Ins. Co. v. Mefford, 994
S.W.2d 715, 720 (Tex.App.-Dallas 1999, pet. denied); ESIS,
Inc. v. Johnson, 908 S.W.2d 554, 562 (Tex.App.-Fort Worth
1995, writ denied). Although Barrigan does not dispute that
she failed to raise the 90-day rule before the appeals
panel, she argues instead that compliance with the 90-day
rule is jurisdictional and therefore may be raised at any
time. This argument is contrary to the plain language of
section 410.302. Because Barrigan failed to raise the
90-day rule before the appeals panel, this issue has been
waived, see Hefley, 131 S.W.3d at 65; Marts, 111 S.W.3d at
706; St. Paul Ins. Co., 994 S.W.2d at 720; ESIS, Inc., 908
S.W.2d at 562, and we conclude the trial court properly
denied Barrigan’s plea to the jurisdiction. We overrule
Barrigan’s sixth issue.

CONCLUSION

Having overruled Barrigan’s issues on appeal, we affirm the
judgment of the trial court.

Affirmed

[fn1] 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. Because this change does not affect the outcome of
this appeal, we refer to the agency as the Commission.

[fn2] In Texas Department of Insurance v. Lumbermens Mutual
Casualty Company, No. 03-05-00785-CV, 2006 Tex. App. LEXIS
10976 (Tex.App.-Austin Dec. 21, 2006, no pet. h.) (op. on
reh’g), this Court invalidated the Commission’s issuance
and application of the advisory opinions as an ultra vires
act. We conclude, however, that the Court’s decision in
Lumbermens does not affect the outcome of this case.

[fn3] The fourth edition of the Guides to the Evaluation of
Permanent Impairment uses eight diagnosis-related estimate
(DRE) categories to classify a patient’s injury.

[fn4] The fourth edition of the Guides to the Evaluation of
Permanent Impairment is published by the American Medical
Association, and the Commission is required to use the
Guides when determining the existence and degree of an
injured worker’s permanent impairment. Tex. Lab. Code Ann.
§ 408.124 (West 2006); 28 Tex. Admin. Code §
130.1(c) (2006) (adopting the fourth edition of the Guides
for use in Texas).

[fn5] Dr. Foxcroft’s decision not to use the Commission’s
advisory opinions is likewise consistent with this Court’s
recent opinion in Texas Department of Insurance v.
Lumbermens Mutual Casualty Company, 2006 Tex. App. LEXIS
10976, at *17, which invalidated the Commission’s issuance
and application of the advisory opinions. Accordingly, we
express no opinion on the reliability of Dr. Foxcroft’s
testimony in the event he had chosen to use and apply the
advisory opinions.

[fn6] Dr. Foxcroft testified that range-of-motion testing is
one of several differentiators specified in the fourth
edition of the Guides.