Pamela Johnson v. Texas Mutual Insurance Company

• Court: Court of Appeals of Texas
• Decided: August 23, 2019
• Docket: 03-18-00532-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-18-00532-CV

Pamela Johnson, Appellant

v.

Texas Mutual Insurance Company, Appellee

FROM THE 345TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-15-001439, THE HONORABLE JAN SOIFER, JUDGE PRESIDING

MEMORANDUM OPINION

Pamela Johnson appeals from a no-evidence summary judgment rendered in favor

of Texas Mutual Insurance Company on Johnson’s petition for judicial review of a Division of

Workers’ Compensation (DWC) decision. On appeal, Johnson argues that the district court erred

by excluding her summary-judgment evidence. We will affirm.

BACKGROUND

On February 9, 2013, Johnson sustained a compensable work-related injury.

Texas Mutual accepted liability for her injuries, including a right knee sprain and left ankle

sprain. However, Johnson claimed that her injury included left ankle Complex Regional Pain

Syndrome (CRPS) and tendinosis/tendinitis of the left posterior tibial tendon. She further

disputed the date of her maximum medical improvement (MMI), her impairment rating, and the

period of disability. Johnson initiated a dispute-resolution process at the DWC to resolve the disputed

issues. The DWC administrative law judge (ALJ) issued a decision and order finding that

Johnson’s compensable injury included tendinosis/ tendonitis, but not left ankle CRPS; that

Johnson had not yet reached MMI and therefore should not be assigned an impairment rating;

and that Johnson did not have disability from February 12, 2013 through December 31, 2013.

Johnson appealed the ALJ’s decision and order, but the DWC Appeals Panel affirmed the ALJ’s

decision on all issues. Johnson then filed a petition seeking judicial review challenging the

panel’s findings.

In June 2015, Texas Mutual requested that an independent doctor assess whether

Johnson had reached MMI and, if she had, to assign her an impairment rating. See Tex. Lab.

Code § 408.0041(a)–(b) (providing that insurance carrier may request designated doctor to

perform medical examination to resolve questions about work-related injury). The doctor opined

that Johnson reached MMI on February 24, 2015, and assigned an impairment rating of zero

percent. Johnson initiated another dispute-resolution process at the DWC to challenge the

designated doctor’s findings. The ALJ issued a decision and order finding that Johnson reached

MMI on February 24, 2015, and assigned her a zero percent impairment rating.

Johnson then filed another petition seeking judicial review of the ALJ’s decision,

and the district court consolidated the two pending cases. Johnson moved for a traditional

summary judgment on all issues, and Texas Mutual filed a no-evidence motion for

summary judgment and objections to Johnson’s summary-judgment evidence. See Tex. R. Civ.

P. 166a(c), (i). The district court sustained Texas Mutual’s objections, leaving Johnson with no

summary-judgment evidence, and granted Texas Mutual’s no-evidence motion for summary

judgment. Johnson timely appealed. She appears pro se before our Court.

2 DISCUSSION

We review a trial court’s granting of summary judgment de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When, as here, both parties move

for summary judgment and the trial court grants one motion and denies the other, we determine

all questions presented and render the judgment the trial court should have rendered. Merriman

v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). In a no-evidence motion, the respondent

has the burden to produce some evidence raising a genuine issue of material fact. Town of Dish

v. Atmos Energy Corp., 519 S.W.3d 605, 608 (Tex. 2017). If the non-movant fails to raise an

issue of material fact, the court must grant the motion. Id.

Johnson argues the district court erred by sustaining Texas Mutual’s objection to

Johnson’s exhibits, resulting in the court improperly granting Texas Mutual’s no-evidence

motion for summary judgment. We review the exclusion of evidence for an abuse of discretion.

Sanders v. Shelton, 970 S.W.2d 721, 727 (Tex. App.—Austin 1998, pet. denied). Johnson’s sole

argument is that the district court “should have considered” her exhibits as evidence. Johnson is

pro se, and we construe pro se filings liberally and with patience. Veigel v. Texas Boll Weevil

Eradication Found., 549 S.W.3d 193, 195 n.1 (Tex. App.—Austin 2018, no pet.). However, pro

se litigants must comply with the same rules and standards as those represented by attorneys.

Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005). An appellant must adequately brief an

issue on appeal by providing a clear and concise argument with appropriate citations to

authorities. See Tex. R. App. P. 38.1(i). Construing Johnson’s brief liberally, Johnson does not

assert an argument supported by legal authority showing that the district court abused its

discretion by sustaining Texas Mutual’s objections to her exhibits. We have “no duty—or even a

right—to perform an independent review of the record and applicable law to determine whether

3 there was error.” Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.).

We conclude that Johnson has waived her evidentiary issue. And because Johnson did not

provide evidence in response to Texas Mutual’s motion, she failed to raise a genuine issue of

material fact. Therefore, we overrule Johnson’s issues on appeal.

CONCLUSION

We affirm the district court’s judgment.

__________________________________________ Edward Smith, Justice

Before Chief Justice Rose, Justices Kelly and Smith

Affirmed.

Filed: August 23, 2019