In some limited cases, the compensable injury is so severe that the IW is entitled to LIBs. LIBs are income benefits that are paid until the IW's death. Subject to Section 408.061 regarding maximum weekly benefits, the amount of LIBs is equal to 75% of the IW's AWW, and benefits are increased at a rate of 3% a year. Section 408.161(c). Section 408.161 provides as follows:
(a) Lifetime income benefits 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;
(6) for a compensable injury that occurs on or after September 1, 1997, a physically traumatic injury to the brain resulting in incurable insanity or imbecility (for compensable injuries which occurred prior to September 1, 1997, there has to have been an actual injury to the skull which resulted in incurable insanity or imbecility); or
(7) for a compensable injury that occurs on or after June 17, 2001, third degree burns that cover at least 40 percent of the body and require grafting, or third degree burns covering the majority of either both hands or one hand and face.
(b) For purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of the body part.
Whether or not an IW has presented sufficient credible evidence to establish entitlement to LIBs is a question of fact for the HO to resolve. APD 042178.
Accrual Date.
LIBs accrue and become payable on the date that the IW suffers from one of the conditions listed in Section 408.161(a), and not before. Once an IW is adjudicated eligible to receive LIBs, LIBs should be paid retroactively to the date the IW first became eligible. Mid-Century Ins. Co. v. Texas Workers' Compensation Commission, 187 S.W. 3d 754 (Tex. App.-Austin 2006, no pet.).
Burns.
The IW sustained a compensable injury in (Year of Injury) resulting in burns to various parts of his body, including his hands. The IW contended that he has third degree burns covering the majority of both hands and is entitled to LIBs under Section 408.161(a)(7). The AP reversed the HO's determination that the IW is not entitled to LIBs and rendered a decision that the IW is entitled to LIBs because the medical evidence supported the IW's contention and the HO's determination was contrary to the great weight and preponderance of the evidence. APD 050314.
Incurable Insanity/Imbecility.
For injuries occurring on or after September 1, 1997, an IW seeking LIBs under Section 408.161(a)(6) must prove that there has been a physically traumatic injury to the brain resulting in incurable insanity or imbecility. For injuries occurring prior to September 1, 1997, an IW seeking LIBs under Section 408.161(a)(6) must prove that there was an injury to the skull resulting in incurable insanity or imbecility.
Brain Injury (injuries on or after September 1, 1997).
The IW suffered a traumatic brain injury with hemorrhage while participating in boxing drills and was hospitalized for 2 ½ weeks in 2000. The IC accepted “a compensable head/brain injury.” The HO considered the evidence presented in light of several factors, including the definitions of insanity and imbecility contained in Black’s Law Dictionary and Dorland’s Illustrated Medical Dictionary, and commented that those definitions “imply more of a congenital and generic condition and not one caused by an industrial accident.” The HO noted that the majority of APDs at that time focused on whether an injury to the skull occurred, or whether the injury caused the IW’s deficits based on Section 408.161 applicable prior to September 1, 1997. The HO cited National Union Fire Insurance Company v. Burnett, 968 S.W.2d 950 (Tex. App.—Texarkana 1998, no pet.), and Modreski v. General Motors Corporation, 326 N.W.2d 386 (1981), a Michigan Supreme Court case regarding a definition of the terms “insanity” and “imbecility”. The HO determined that the IW was entitled to LIBs based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility. The AP, stating that this was a case of first impression in defining incurable insanity or imbecility, affirmed the HO’s determination. The AP noted that Burnett contained instructive language on the definition of incurable insanity or imbecility and cited a Virginia court case (Barnett v. D.L. Bromwell, Inc., 6 Va. App. 30, 366 S.E.2d 271 (1988)), which applied a nontechnical meaning of the term “imbecility” to mean an irreversible brain injury which renders the employee permanently unemployable and so affects the non-vocational quality of his life by eliminating his ability to engage in a range of usual cognitive processes. The AP also noted that Modreski stated that a worker’s mental illness is “insanity” if he or she suffers severe social dysfunction and a worker’s intellectual impairment is “imbecility” if he or she suffers severe cognitive dysfunction, and that social or cognitive dysfunction is “severe” if it affects the quality of the worker’s personal, non-vocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored. APD 121131-s.
IW sustained a closed head injury and concussion when he fell from a ladder and struck the ground in (Year of Injury). The HO determined that the IW is not entitled to LIBs from September 13, 2013, through the date of the CCH based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility. The HO stated in her decision that regarding “imbecility,” the standard that will be used is that of a mentally deficient person, especially a feebleminded person having a mental age of three to seven years and requiring supervision in the performance of routine daily tasks or caring for himself. The HO did not discuss any other factors in reaching her decision regarding entitlement to LIBs for incurable imbecility besides the definition of imbecility contained in the dictionary. The AP cited to Chamul v. Amerisure Mutual Insurance Company, 2016 Tex. App. LEXIS 1263 (Tex. Civ. App.–Houston [1st Dist.] 2016 no writ history), in which the court noted that attaching a narrow definition to limit a benefit without statutory text to support that interpretation violates the rule of liberal construction and would result in the exclusion of claimants having a mental age of less than three years from receiving LIBs. See Barchus v. State Farm Fire & Cas. Co., 167 S.W.3d 575 (Tex. App.–Houston [14th Dist.] 2005, pet. denied). The AP held that the HO erred in linking her analysis of the IW’s entitlement to LIBs for a physically traumatic injury to the brain resulting in incurable imbecility solely to a single factor rather than considering additional factors such as those discussed in APD 121131-s, and Chamul. The AP reversed the HO’s determination that the IW is not entitled to LIBs and remanded the LIBs issue to the HO. APD 152492.
The IW sustained multiple injuries, including a closed head injury, in a MVA in (Year of Injury). The IW asserted that the compensable injury included Post-traumatic Alzheimer's Dementia and that he is entitled to LIBs. The IW's court appointed guardian testified that the IW requires constant around the clock care. The AP affirmed the HO's determination that the compensable injury included Post-traumatic Alzheimer's Dementia and that the IW was entitled to LIBs due to a physically traumatic injury to the brain resulting in incurable imbecility. APD 041416.
Depression.
The IW sustained her compensable injury in (Year of Injury) when she fell from a ladder and sustained a closed head injury. In the months following the injury, the IW began complaining of multiple symptoms including headaches, depression, memory defects, inattentiveness, and suicidal thoughts. No doctor documented any external trauma to the head. The trial court found that the IW was entitled to LIBs because she had sustained a head injury resulting in depression and because her depression qualifies as incurable insanity. The court of appeals determined that the IW was not entitled to LIBs. The appeals court noted that, according to dictionary references, the term "psychosis" is now used in lieu of what was formerly termed "insanity." There was no evidence that the IW suffered from any psychotic disorder symptoms, and psychosis is distinguishable from depression by its symptoms. Because the court of appeals determined that depression does not equate to incurable insanity, it did not discuss injury to the skull. National Union Fire Insurance Company v. Burnett, 968 S.W.2d 950, (Tex. App.-Texarkana 1998, no pet.). (Due to the DOI this case was decided under law predating the 1989 Act; however, the proposition of law remains valid under the current Act.)
Skull Injury (Injuries Prior to September 1, 1997).
The IW sustained his compensable injury in (Year of Injury), when the truck he was sitting in was struck by lightning. Following the injury, the IW was adjudicated to be incompetent, and the court appointed a guardian. The IW presented evidence that the lightning strike caused part of his brain to die, and that he now suffered from incurable imbecility. No evidence was presented to show that the IW sustained a blow to his skull or any injury to his skull. The HO properly determined that the IW was not entitled to LIBs because he did not sustain an injury to his skull. APD 951336.
The IW sustained a compensable injury in (Year of Injury) when he fell and struck his head. The trial court found that the IW sustained an injury to the skull structures resulting in incurable insanity or imbecility, but denied the IW LIBs because he did not fracture his skull. The court of appeals reversed the judgment of the trial court and rendered judgment that the IW is entitled to LIBs. The appeals court held that an "injury to the skull" does not require a fracture of the skull to meet the "injury to the skull" requirement in Section 408.161(a)(6). Barchus v. State Farm Fire & Cas. Co., 167 S.W. 3d 575 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).
Injury to the Spine.
Section 408.161(a)(5) provides that an IW that sustains a compensable injury to the spine which results in permanent and complete paralysis of both arms, both legs, or one arm and one leg is entitled to LIBs. Claimed entitlement to LIBs pursuant to subsection (a)(5) is frequently argued and evaluated in connection with entitlement to LIBs pursuant to subsections (a)(2) and (a)(3) (see TOTAL LOSS OF USE, infra). While there are similarities between entitlement to LIBs based upon an injury to the spine and total loss of use, what needs to be proven is different. APD 011861. Whether or not the IW has presented sufficient credible evidence to establish a spinal injury resulting in permanent and complete paralysis is a question of fact for the HO to resolve. APD 031510.
The IW sustained a compensable injury while picking up a machinery part. Initially, the IW thought he had just pulled a muscle, but several days later he began to experience weakness in his leg along with a limp. The IW sought medical care, was diagnosed with a lumbar strain, and was given conservative care. The IW returned to work after receiving treatment, but a few weeks later his symptoms returned. The IW was diagnosed as having a compression of the spinal cord in the cervical spine, he received surgery, and again returned to work. After several months the IW began to experience weakness in his legs. The IW returned to his doctor who felt the IW's spinal cord had been damaged. The doctor further believed that part of the problem was the development of scar tissue at the spinal cord which would eventually get worse and cause loss of voluntary motor control of the IW's legs. Both of the IW's legs are now paralyzed. The HO accepted the IW's medical evidence which showed that the IW's paralysis was caused by the compensable injury and the resulting treatment, despite contrary medical evidence submitted by the IC. The HO determined that the IW was entitled to LIBs. The cause of the IW's paralysis in both legs, and his entitlement to LIBs presented factual questions for the HO to resolve. APD 002197.
The IW had lumbar spine surgery for his compensable back injury. The AP affirmed the HO's determination that due to the compensable injury, the IW had totally and permanently lost the functional use of his legs. The AP construed that determination to be the equivalent of a finding that the IW's legs no longer possessed any substantial utility as members of his body. The AP reversed the HO's determination that the IW is not entitled to LIBs because the IW's legs were not completely paralyzed and rendered a decision that the IW is entitled to LIBs based on the total and permanent loss of use of both feet at or above the ankle. The AP cited prior APDs and court decisions in rejecting the argument that because the IW had a spinal injury, the only way the IW could prove entitlement to LIBs was to show permanent and complete paralysis of his legs under Section 408.161(a)(5). The AP noted that the court in Hartford Underwriters Insurance Co. v. Burdine, 34 S.W.3d 700 (Tex. App.-Fort Worth 2000, no pet.), a pre-1989 Act case, had approved entitlement to LIBs based on the total and permanent loss of use of the legs and/or feet, as total loss of use is defined in Travelers Insurance Co. v. Seabolt, 361 S.W.2d 204 (Tex. 1962), where the injury was to the spine, and that the court in Pacific Employers Insurance Co. v. Dayton, 958 S.W.2d 452 (Tex. App.-Fort Worth 1997, pet. denied) had rejected the argument that the standards applied to loss of use under the prior law should not apply to cases decided under the 1989 Act. APD 070063-s.
Revisiting Entitlement to LIBs.
In an unappealed 1999 CCH decision, the IW was found to have no substantial use of his legs as a result of a compensable spinal injury as of the date of the CCH, that the loss of leg function was permanent, and, therefore, the IW was entitled to LIBs. However, by August 2001 the IC discovered the IW could walk very well. The IC initiated the dispute resolution process to terminate entitlement to LIBs. At the subsequent CCH the HO found that as of the date of the CCH the IW had substantial use of his legs; that his condition had materially changed after the prior CCH; that the IC using due diligence could not have discovered the IW had use of his legs before the prior CCH; and that there is no jurisdiction to terminate LIBs. The AP reversed and rendered that there was jurisdiction to terminate LIBs and that the IW's LIBs are terminated as of the date of the subsequent CCH. In so finding the AP noted that an IW is entitled to certain medical benefits during his or her lifetime, and that the Division retains jurisdiction to resolve disputes regarding medical treatment; as LIBs may be paid for an IW's lifetime, the AP perceived no rational basis for holding that the Division has no continuing jurisdiction to resolve disputes over entitlement to these benefits. APD 020432-s.
Subsequent Injury Fund (SIF).
[Cross-reference: Liability of Subsequent Injury Fund Carrier Reimbursement (C21) ].
Sections 408.162 and 131.3 provide that if a subsequent compensable injury, along with the effects of a prior compensable injury, result in a condition which entitles an IW to LIBs, the second IC is liable for benefits only to the extent that the subsequent injury would have entitled the IW to benefits had there been no prior injury. The SIF pays the IW the difference between the LIBs amount and the TIBs, IIBs, and SIBs amounts paid by the second IC. APD 990321.
Total Loss of Use.
An IW who, as a result of the compensable injury, has suffered a total and permanent loss of use of both feet at or above the ankles; both hands at or above the wrists; or one foot at or above the ankle and one hand at or above the wrist, is entitled to LIBs pursuant to Section 408.161(a)(2), (3), or (4) and (b).
Standard for Loss of Use.
In determining whether an IW is entitled to LIBs based upon a total loss of use resulting from injury, the test, is (1) whether the member no longer possesses any substantial utility as a member of the body or (2) whether the condition of the injured member is such that it keeps the IW from getting and keeping employment requiring the use of the member. See Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204 (Tex. 1962); APD 94689. The IW need not prove both prongs of the test to establish entitlement to LIBs. The IW need only prove one of the two prongs to establish entitlement to LIBs. APD 941065. In addition, to qualify for LIBs, the total loss of use must be permanent. Pacific Employers Ins. Co. v. Dayton, 958 S.W. 2d 452 (Tex. App. -Fort Worth 1997, pet. denied).
Loss of Use Established.
The IW sustained a compensable injury which included diabetes and motor sensory polyneuropathy, affecting his lower extremities. The IW's doctor testified that the IW's feet, at or above the ankles, no longer possessed any substantial utility as members of his body and that, due to the condition of his feet, the IW was not able to get and keep employment requiring the use of the feet. The doctor further stated that the IW's condition was expected to be permanent. The IW testified that he was confined to a wheelchair. The IC presented evidence to contradict the IW's doctor. The AP affirmed the HO's determination that the IW was entitled to LIBs based upon the total and permanent loss of use of both feet. APD 012441.
Loss of Use Not Established.
The IW sought entitlement to LIBs based upon a total loss of use of her hands. The IW testified regarding the activities she could not perform, and presented medical evidence regarding her upper extremity condition and her ability to work. The IC presented conflicting evidence to establish that the IW's condition was not as severe as she claimed it to be. The HO determined that the IW was not credible, partially because a video depicted her doing activities which she testified she could not do. The AP affirmed the HO's determination that the IW was not entitled to LIBs based upon a total and permanent loss of use of her hands. APD 040368.
Loss of Use - Evidence of Condition at Time of Trial Considered.
The IW began working for the employer as a food service worker. Two years later she was transferred to a full-time custodian position. In the summer of 2000 the IW began to experience numbness, pain, and a lack of grip strength in her hands. The IW was diagnosed with CTS and ulnar entrapment to the left elbow and received surgery on both wrists and left arm. Following the surgeries the IW underwent a FCE and was determined to have the ability to perform only sedentary to light work. The IW attempted working a job in a hotel laundry and later as a custodian at an airport but quit because she was unable to perform the two jobs due to her limitations. A CCH was held on December 19, 2002. The HO determined the IW was not entitled to LIBs, and the AP affirmed the HO's determination. On January 20, 2003, the IW returned to her orthopedic specialist and told him she could no longer perform housework due to the condition of her hands. The orthopedic surgeon noted in his report that the IW's difficulty would prevent her from performing work activities and that the IW was "unable to work." In the summer of 2004 the IW returned to the orthopedic surgeon, who released the IW to work with the limitations of the previous FCE. At the time of the trial the IW could not grasp objects and had constant pain in her hands, elbows, and shoulders. She was able to perform only a little housework, could drive a car, could hold a telephone for a limited time, and could write although not a lot. The IW was also able to brush her hair and teeth as well as dress herself, although these activities required much time to complete. The trial court reversed the Division's determination and ordered the IW was entitled to recover LIBs based on the jury's finding that the work injury resulted in the total loss of use of both hands at or above the wrists. The appellate court held the evidence, including the evidence of the IW's condition at the time of trial, sufficiently supported the jury's verdict and affirmed the IW's entitlement to LIBs. El Paso Independent School District v. Pabon, 214 S.W.3d 37 (Tex. App.-El Paso 2006, no pet.). [Note: It does not appear that the LIBs issue at the CCH was limited to entitlement to LIBs "as of the date of the CCH" as in the Jackson case, summarized below.]
Loss of Use - Evidence of Deterioration After CCH not Allowed at Trial.
The IW injured his leg and left knee while in the course and scope of his employment. The disputed issue at the CCH was whether the IW was entitled to LIBs based on the total and permanent loss of use of both feet "as of the date of the hearing." The HO determined that the IW was not entitled to LIBs as of the date of the CCH, and the AP affirmed the HO's determination. The IW sought judicial review of the AP decision. Prior to the trial the parties exchanged motions in limine. The Division's motion included a request that no party argue or present any evidence on any issue other than the IW's entitlement to LIBs as of the date of the CCH; however, the trial court denied the Division's request, allowed the IW to file a trial amendment, and announced that it would allow evidence of the IW's disability as of the date of the trial. The Division then appealed the trial court's denial of its plea to the jurisdiction, contending that the trial court's jurisdiction was limited to the issues decided by the AP, and, therefore, the trial court could only consider whether the IW was entitled to LIBs as of the date of the CCH. The court of appeals agreed with the Division and ruled that the trial court lacked jurisdiction to consider the IW's eligibility for LIBs beyond the date of the CCH. In so ruling, the court noted that the HO determined the IW's eligibility for LIBs "as of the date of the hearing," and whether the IW is entitled to LIBs as of the date of the trial is a related but separate question. The court reasoned that to allow consideration of later facts would convert the trial from an appeal to a trial de novo. The court further noted that the HO is the only individual with authority to excuse exhaustion of administrative remedies upon a showing of good cause (good cause for not raising an issue at the BRC), and that the legislature made clear that the HO is to make the initial determination in workers' compensation disputes and all subsequent proceedings are limited to a review of the HO's determination. The court also stated that because the legislature did not afford trial courts the authority to excuse exhaustion of administrative remedies, the court assumes that the legislature determined that the benefits of having HOs make all initial determinations outweigh any potential efficiencies that may be gained with a complete trial de novo. The appeals court held that the trial court lacked jurisdiction to consider the IW's eligibility for LIBs beyond the date of the CCH and remanded the case to the trial court. Texas Department of Insurance, Division of Workers' Compensation v. Jackson, 225 S.W.3d 734, (Tex. App.-Eastland 2007, no pet.).
Prosthesis.
The HO determined that the IW was entitled to LIBs based upon the total and permanent loss of use of both feet at or above the ankle and the AP affirmed. The IC argued that because the IW wore a prosthesis on his right leg, he was able to undertake certain tasks and therefore the member had substantial utility. The argument was rejected analogizing it to an argument that a blind man that has a seeing eye dog is not really blind. APD 952100.