Tex. Dep’t of Ins. v. Lumbermens Mut. Cas. Co.
212 S.W.3d 870 (Tex. App.--Austin 2006, pet. denied)
On behalf of Petroleum Casualty Company, we helped obtain a declaration that two “advisories” issued by the Texas Department of Insurance, Division of Workers’ Compensation were invalid. The Division is required by statute to use the AMA’s Guides to the Evaluation of Permanent Impairment in determining an injured worker’s impairment. By rule the Division adopted the fourth edition of the Guides. Subsequently, the Division issued two “advisories”which created standards for assessing impairment in the context of spinal fusion surgeries which were inconsistent with the Guides. These advisories resulted in unjustified increases in impairment ratings. It was held that because the advisories contradict the fourth edition of the Guides, their issuance was invalid, their application is an ultra vires act, and their continued use is enjoined.