This appeal is brought pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on November 30, 1998. He (the hearing officer) made the following findings of fact:
FINDINGS OF FACT
5.Claimant [respondent] does not currently have permanent and complete paralysis of any of his arms or legs.
6.Both of Claimant’s hands possess substantial utility as members of the body.
7.Neither of Claimant’s legs possesses substantial utility as members of Claimant’s body.
8.The condition of Claimant’s left hand and of both of Claimant’s legs is such that Claimant cannot procure or retain employment requiring the use of these body parts.
9.Claimant’s condition is deteriorating so that he will eventually reach the point that he is unable to ambulate and will be confined to a wheelchair.
10.Claimant’s legs are so spastic that he is currently able to take only a few erratic steps.
11.Claimant can move the thumb on his left hand but is unable to control the movements of his other fingers on the left hand.
12.Claimant’s right hand shows no apparent impairment.
The hearing officer concluded that the claimant is entitled to lifetime income benefits (LIBS). The appellant (carrier) appealed, stated that the 1989 Act changed the law concerning LIBS, contended that the hearing officer erred in applying Aloss of use provisions of Section 408.161(b) and in interpreting the provisions of Section 408.161(b)(5), said that Findings of Fact Nos. 5 and 6 indicate that the claimant is not entitled to LIBS, argued that Afuture disability cannot support a determination of entitlement to LIBS, urged that the great weight of the evidence indicates that the claimant is not entitled to LIBS, and requested that the Appeals Panel reverse the decision of the hearing officer and render a decision that the claimant is not entitled to LIBS. The claimant filed a lengthy response that contains many irrelevant statements that need not be addressed and essentially states that the evidence is sufficient to support the decision of the hearing officer and requests that it be affirmed.
DECISION
We affirm.
Section 408.161(a) provides:
(a)[LIBS] are paid until the death of the employee for:
(1)total and permanent loss of sight in both eyes;
(2)loss of both feet at or above the ankle;
(3)loss of both hands at or above the wrist;
(4)loss of one foot at or above the ankle and the loss of one hand at or above the wrist;
(5)an injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg; or
(6)a physically traumatic injury to the brain resulting in incurable insanity or imbecility.
It appears that the hearing officer treated the issue before him as one concerning Section 408.161(a)(5) and also followed the practice of making additional findings of fact so that if his decision based on Section 408.161(a)(5) and Service Lloyds Insurance Co. v. Slay, 800 S.W.2d 359 (Tex. Civ. App.-El Paso 1980, writ den’d) was reversed his decision contained additional findings of fact on which the Appeals Panel could render a decision rather than having to remand the case. Without deciding whether the additional findings of fact were necessary, we commend him for taking action to avoid a possible remand and do not find the additional findings of fact to be inconsistent with his conclusion that the claimant is entitled to LIBS.
In his statement of the evidence in his Decision and Order the hearing officer summarizes some of the evidence, including a November 1998 letter in which a doctor states that the claimant suffers from quadriplegia, and includes a quotation from another doctor that states that the claimant Awill certainly require institutionalization. A video of the claimant taken in June 1998 shows him walking and pushing a lawn mower with difficulty.
The carrier contends that the law concerning entitlement to LIBS was changed in the 1989 Act. In the discussion in his Decision and Order, the hearing officer cites Slay, supra. On page 363, the court wrote:
Section 11a(5) of the Texas Workers’ Compensation Act (Vernon 1967) provides: AIn cases of the following injuries, the incapacity shall conclusively be held to be total and permanent, to wit:
(5)An injury to the spine resulting in permanent and complete paralysis of both arms or BOTH LEGS or of one arm and one leg. [Emphasis added.]
Section 10(b) of the Act provides:
If the injury is one of the six (6) enumerated in Section 11a . . . the association shall pay the compensation for the life of the employee, . . .
The concept of total and permanent incapacity was not included in the 1989 Act; however the language concerning LIBS in Section 11a(5) of the prior Workers’ compensation act and in Section 408.161(a)(5) is identical. On page 364 the court wrote:
The testimony of the initial treating doctor (Dr. N), a board certified neurologist, was that Appellee’s condition grew progressively worse as it pertained to the function of his legs. He testified that he could only walk a few steps. The doctor testified that Appellee’s condition would get worse and that eventually he would be in a wheelchair. In the last deposition of Dr. N he stated that he had last seen Appellee in October of 1987 and was of the opinion that: AHe will not have any useful movement to his legs. [Emphasis added.] The crucial question propounded to the doctor is set forth below:
Do you have an opinion based on reasonable medical probability whether or not James Slay has suffered an injury to his spine which will in the future result in permanent and complete paralysis of both his legs? For the purposes of this question, complete paralysis means complete loss of all practical function of both legs? Do you have an opinion about that?
The doctor answered AYes. He was then asked, AWhat is your opinion? To which the doctor answered, AI think he’s going to be paralyzed. The doctor was also of the opinion that further surgery could not cure the vascular problems in the spinal cord because the Aspinal cord does not regenerate. He did not believe surgery offered any hope.
The evidence before the jury was sufficient to support the finding that Appellee had suffered Atotal loss of use of both legs.
The hearing officer properly applied the law in Slay, supra, to the facts before him and the evidence is sufficient to support his determinations.
We affirm the decision and order of the hearing officer.
Tommy W. Lueders – Appeals Judge
CONCUR:
Thomas A. Knapp – Appeals Judge
Alan C. Ernst – Appeals Judge