On July 17, 2017 a
Motion,Ex Parte
was filed
involving a dispute between
Davis, Joseph Andre,
and
City Of Houston,
State Of Texas Department Of Insurance Division Of Workers,
Texas Department Of Insurance Division Of Workers Comp,
Third Party Adminstator,
Tristar Risk Management,
for WORKERS COMPENSATION
in the District Court of Harris County.
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CAUSE NO. 2017 47204
JOSEPH ANDRE DAVIS, IN THE DISTRICT COURT
55TH JUDICIAL DISTRICT
TEXAS DEPARTMENT OF
INSURANCE, DIVISION OF HARRIS COUNTY, TEXAS
WORKERS’ COMP CITY OF
HOUSTON,
Objection to Defendants Motion to ompel and Motion to take Judicial
Notice
Comes Now Joseph Andre Davis in objection to efendants MOTION TO
COMPEL DEPOSITION OF PLAINTIFF and show as follows
Per Sec. 410.307. There is SUBSTANTIAL CHANGE OF CONDITION
If substantial change of condition is disputed, the court shall require the designated
doctor in the case to verify the substantial change of condition, if any. The
findings of the designated doctor shall be presumed to be correct, and the court
shall base its finding on the medical evidence presented by the designated doctor in
regard to substantial change of condition unless the preponderance of the other
medical evidence is to the contrary.
Plaintiff respectfully request that the designated doctor in this case be
required to verify the substantial change of condition since defendants are
contesting it as required by Sec. 410.307. of the Texas labor code.
In a jury trial, the court, before submitting the case to the jury, shall inform
the jury in the court's instructions, charge, or questions to the jury of the appeals
panel decision on each disputed issue described by Section 410.301(a) that is
submitted to the jury.
Plaintiff Disputed issues are for Maximum Medical Improvement and Impairment
Rating. And nothing else.
Per Sec. 410. 302.of the Texas labor code ADMISSIBILITY OF
RECORDS; LIMITATION OF ISSUES.A trial under this subchapter is limited to
issues decided by the appeals panel and on which judicial review is sought. The
pleadings must specifically set forth the determinations of the appeals panel by
which the party is aggrieved.
The Defendants are digging and looking for evidence outside of the appeals
panel decision. Additionally, a deposition has already taken place in the lower
court furthermore, Defendant request is not on which judicial review is sought.
Judicial review is sought for Maximum Medical Improvement and Impairment
Rating.
Why are they not contesting that?
It has already been determined that I was entitled to Workers Comp.
Defendants Motion correctly states under their MOTION TO COMPEL
DEPOSITION OF PLAINTIFF 1.1 This is an Appeal of a Workers’
Compensation case in which the Plaintiff, JOSEPH ANDRE DAVIS is appealing
the Division of Workers Compensation Appeal Panel decision with regards to
Maximum Medical Improvement and Impairment Rating.
I have answered their Interrogates and objected to issues not decided by the
appeals or has nothing to do with this case. Evidence in this case is limited to
issues decided by the appeals panel and on which judicial review is sought. The
pleadings must specifically set forth the determinations of the appeals panel by
which the party is aggrieved.
Per Sec. 410.305. CONFLICT WITH RULES OF CIVIL PROCEDURE. (a) To
the extent that this subchapter conflicts with the Texas Rules of Civil Procedure or any other
rules adopted by the supreme court, this subchapter controls.
(b) Notwithstanding Section 22.004, Government Code, or any other law, the supreme
court may not adopt rules in conflict with or inconsistent with this subchapter
SUBCHAPTER F. JUDICIAL REVIEW--GENERAL PROVISIONS
c. 410.255. JUDICIAL REVIEW OF ISSUES OTHER THAN COMPENSABILITY
OR INCOME OR DEATH BENEFITS. (a) For all issues other than those covered under
Section 410.301(a), judicial review shall be conducted in the manner provided for judicial review
of a contested case under Subchapter G, Chapter 2001, Government Code.
(b) Judicial review conducted under this section is governed by the substantial evidence
rule.
SUBCHAPTER G. JUDICIAL REVIEW OF ISSUES REGARDING COMPENSABILITY
OR INCOME OR DEATH BENEFITS
Sec. 410.301. JUDICIAL REVIEW OF ISSUES REGARDING COMPENSABILITY
OR INCOME OR DEATH BENEFITS. (a) Judicial review of a final decision of the appeals
panel regarding compensability or eligibility for or the amount of income or death benefits shall
be conducted as provided by this subchapter.
(b) A determination of benefits before a court shall be in accordance with this
subtitle.
Sec. 410.302. ADMISSIBILITY OF RECORDS; LIMITATION OF ISSUES. (a)
The records of a contested case hearing conducted under this chapter are admissible in a trial
under this subchapter in accordance with the Texas Rules of Evidence.
(b) A trial under this subchapter is limited to issues decided by the appeals panel
and on which judicial review is sought. The pleadings must specifically set forth the
determinations of the appeals panel by which the party is aggrieved.
Sec. 410.304. CONSIDERATION OF APPEALS PANEL DECISION. (a) In a jury
trial, the court, before submitting the case to the jury, shall inform the jury in the court's
instructions, charge, or questions to the jury of the appeals panel decision on each disputed issue
described by Section 410.301(a) that is submitted to the jury.
(b) In a trial to the court without a jury, the court in rendering its judgment on an issue
described by Section 410.301(a) shall consider the decision of the appeals panel.
Sec. 410.307. SUBSTANTIAL CHANGE OF CONDITION. (a) Evidence of the
extent of impairment is not limited to that presented to the division if the court, after a hearing,
finds that there is a substantial change of condition. The court's finding of a substantial change
of condition may be based only on:
(1) medical evidence from the same doctor or doctors whose testimony or
opinion was presented to the division;
(2) evidence that has come to the party's knowledge since the contested case
hearing;
(3) evidence that could not have been discovered earlier with due diligence by
the party; and
(4) evidence that would probably produce a different result if it is admitted into
evidence at the trial.
(b) If substantial change of condition is disputed, the court shall require the designated
doctor in the case to verify the substantial change of condition, if any. The findings of the
designated doctor shall be presumed to be correct, and the court shall base its finding on the
medical evidence presented by the designated doctor in regard to substantial change of condition
unless the preponderance of the other medical evidence is to the contrary.
(c) The substantial change of condition must be confirmable by recognized laboratory
or diagnostic tests or signs confirmable by physical examination.
(d) If the court finds a substantial change of condition under this section, new
medical evidence of the extent of impairment must be from and is limited to the same
doctor or doctors who made impairment ratings before the division under Section 408.123.
(e) The court's finding of a substantial change of condition may not be made known to
the jury.
(f) The court or jury in its determination of the extent of impairment shall adopt one of
the impairment ratings made under this section.
Joseph Andre Davis
3714 Pinebrook hollow ln.
Spring Texas, 77386
Jdavis1103@hotmail.com
Tel: (832)257-8706
/s/Joseph Davis
CERTIFICATE OF SERVICE
I certify that on January 8, 2021 this reply to defendant was emailed to the Texas Workers’
Compensation Appeals Commission; and I certify that on this same date a complete copy of the
document filed with the Commission was mailed or hand delivered to the parties checked at the
addresses listed below.
Respectfully submitted,
Joseph Andre Davis
3714 Pinebrook hollow ln.
Spring Texas, 77386
Jdavis1103@hotmail.com
Tel: (832)257-8706
/s/Joseph Davis
CERTIFICATE OF SERVICE
I certify that on January 8, 2021, this reply to defendant was emailed to the Texas Workers’
Compensation Appeals Commission; and I certify that on this same date a complete copy of the
document filed with the Commission was mailed or hand delivered to the parties checked at the
addresses listed below.
Document Filed Date
January 08, 2021
Case Filing Date
July 17, 2017
Category
WORKERS COMPENSATION
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CAUSE NO. 2017 47204 JOSEPH ANDRE DAVIS, IN THE DISTRICT COURT 55TH JUDICIAL DISTRICT TEXAS DEPARTMENT OF INSURANCE, DIVISION OF HARRIS COUNTY, TEXAS WORKERS’ COMP CITY OF HOUSTON, Objection to Defendants Motion to ompel and Motion to take Judicial Notice Comes Now Joseph Andre Davis in objection to efendants MOTION TO COMPEL DEPOSITION OF PLAINTIFF and show as follows Per Sec. 410.307. There is SUBSTANTIAL CHANGE OF CONDITION If substantial change of condition is disputed, the court shall require the designated doctor in the case to verify the substantial change of condition, if any. The findings of the designated doctor shall be presumed to be correct, and the court shall base its finding on the medical evidence presented by the designated doctor in regard to substantial change of condition unless the preponderance of the other medical evidence is to the contrary. Plaintiff respectfully request that the designated doctor in this case be required to verify the substantial change of condition since defendants are contesting it as required by Sec. 410.307. of the Texas labor code. In a jury trial, the court, before submitting the case to the jury, shall inform the jury in the court's instructions, charge, or questions to the jury of the appeals panel decision on each disputed issue described by Section 410.301(a) that is submitted to the jury. Plaintiff Disputed issues are for Maximum Medical Improvement and Impairment Rating. And nothing else. Per Sec. 410. 302.of the Texas labor code ADMISSIBILITY OF RECORDS; LIMITATION OF ISSUES.A trial under this subchapter is limited to issues decided by the appeals panel and on which judicial review is sought. The pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved. The Defendants are digging and looking for evidence outside of the appeals panel decision. Additionally, a deposition has already taken place in the lower court furthermore, Defendant request is not on which judicial review is sought. Judicial review is sought for Maximum Medical Improvement and Impairment Rating. Why are they not contesting that? It has already been determined that I was entitled to Workers Comp. Defendants Motion correctly states under their MOTION TO COMPEL DEPOSITION OF PLAINTIFF 1.1 This is an Appeal of a Workers’ Compensation case in which the Plaintiff, JOSEPH ANDRE DAVIS is appealing the Division of Workers Compensation Appeal Panel decision with regards to Maximum Medical Improvement and Impairment Rating. I have answered their Interrogates and objected to issues not decided by the appeals or has nothing to do with this case. Evidence in this case is limited to issues decided by the appeals panel and on which judicial review is sought. The pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved. Per Sec. 410.305. CONFLICT WITH RULES OF CIVIL PROCEDURE. (a) To the extent that this subchapter conflicts with the Texas Rules of Civil Procedure or any other rules adopted by the supreme court, this subchapter controls. (b) Notwithstanding Section 22.004, Government Code, or any other law, the supreme court may not adopt rules in conflict with or inconsistent with this subchapter SUBCHAPTER F. JUDICIAL REVIEW--GENERAL PROVISIONS c. 410.255. JUDICIAL REVIEW OF ISSUES OTHER THAN COMPENSABILITY OR INCOME OR DEATH BENEFITS. (a) For all issues other than those covered under Section 410.301(a), judicial review shall be conducted in the manner provided for judicial review of a contested case under Subchapter G, Chapter 2001, Government Code. (b) Judicial review conducted under this section is governed by the substantial evidence rule. SUBCHAPTER G. JUDICIAL REVIEW OF ISSUES REGARDING COMPENSABILITY OR INCOME OR DEATH BENEFITS Sec. 410.301. JUDICIAL REVIEW OF ISSUES REGARDING COMPENSABILITY OR INCOME OR DEATH BENEFITS. (a) Judicial review of a final decision of the appeals panel regarding compensability or eligibility for or the amount of income or death benefits shall be conducted as provided by this subchapter. (b) A determination of benefits before a court shall be in accordance with this subtitle. Sec. 410.302. ADMISSIBILITY OF RECORDS; LIMITATION OF ISSUES. (a) The records of a contested case hearing conducted under this chapter are admissible in a trial under this subchapter in accordance with the Texas Rules of Evidence. (b) A trial under this subchapter is limited to issues decided by the appeals panel and on which judicial review is sought. The pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved. Sec. 410.304. CONSIDERATION OF APPEALS PANEL DECISION. (a) In a jury trial, the court, before submitting the case to the jury, shall inform the jury in the court's instructions, charge, or questions to the jury of the appeals panel decision on each disputed issue described by Section 410.301(a) that is submitted to the jury. (b) In a trial to the court without a jury, the court in rendering its judgment on an issue described by Section 410.301(a) shall consider the decision of the appeals panel. Sec. 410.307. SUBSTANTIAL CHANGE OF CONDITION. (a) Evidence of the extent of impairment is not limited to that presented to the division if the court, after a hearing, finds that there is a substantial change of condition. The court's finding of a substantial change of condition may be based only on: (1) medical evidence from the same doctor or doctors whose testimony or opinion was presented to the division; (2) evidence that has come to the party's knowledge since the contested case hearing; (3) evidence that could not have been discovered earlier with due diligence by the party; and (4) evidence that would probably produce a different result if it is admitted into evidence at the trial. (b) If substantial change of condition is disputed, the court shall require the designated doctor in the case to verify the substantial change of condition, if any. The findings of the designated doctor shall be presumed to be correct, and the court shall base its finding on the medical evidence presented by the designated doctor in regard to substantial change of condition unless the preponderance of the other medical evidence is to the contrary. (c) The substantial change of condition must be confirmable by recognized laboratory or diagnostic tests or signs confirmable by physical examination. (d) If the court finds a substantial change of condition under this section, new medical evidence of the extent of impairment must be from and is limited to the same doctor or doctors who made impairment ratings before the division under Section 408.123. (e) The court's finding of a substantial change of condition may not be made known to the jury. (f) The court or jury in its determination of the extent of impairment shall adopt one of the impairment ratings made under this section. Joseph Andre Davis 3714 Pinebrook hollow ln. Spring Texas, 77386 Jdavis1103@hotmail.com Tel: (832)257-8706 /s/Joseph Davis CERTIFICATE OF SERVICE I certify that on January 8, 2021 this reply to defendant was emailed to the Texas Workers’ Compensation Appeals Commission; and I certify that on this same date a complete copy of the document filed with the Commission was mailed or hand delivered to the parties checked at the addresses listed below. Respectfully submitted, Joseph Andre Davis 3714 Pinebrook hollow ln. Spring Texas, 77386 Jdavis1103@hotmail.com Tel: (832)257-8706 /s/Joseph Davis CERTIFICATE OF SERVICE I certify that on January 8, 2021, this reply to defendant was emailed to the Texas Workers’ Compensation Appeals Commission; and I certify that on this same date a complete copy of the document filed with the Commission was mailed or hand delivered to the parties checked at the addresses listed below.