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At a Glance:
Barchus v. State Farm Fire & Cas. Co.
June 28, 2005
167 S.W.3d 575
Published Opinion

Barchus v. State Farm Fire & Cas. Co.

Court of Appeals of Texas,

Houston (14th Dist.).

Kenneth BARCHUS, Appellant,



No. 14–04–00320–CV.


June 28, 2005.

Attorneys & Firms

*576 Jeffrey L. Raizner, Houston, for appellants.

Scot A. Schwartzberg, Houston, for appellees.

Panel consists of Chief Justice FROST.



Appellant, Kenneth Barchus, appeals the trial court’s judgment in favor of appellee, State Farm Fire & Casualty Company, in his appeal from the Texas Workers’ Compensation Commission’s (the “Commission”) decision denying him lifetime income benefits for a work-related injury sustained in 1995. We reverse and render judgment that Barchus is entitled to lifetime income benefits.

On February 11, 1995, Barchus was on his way to the bank to make a deposit in the course and scope of his employment for Barchus Barber Shop when he fell and struck his head. Barchus sustained TEX. LAB.CODE ANN. § 408.161 (Vernon Supp.2004–05).

A hearing was held before a hearing officer, who determined that Barchus was not entitled to LIBs. Barchus appealed the hearing officer’s decision to a Commission appeals panel, which affirmed the hearing officer’s decision. Barchus appealed the Commission panel’s decision to the trial court. After a bench trial, the trial court entered a final judgment that Barchus was not entitled to recover LIBs under the Act.

section 408.161(a)(6) that was in effect at the time Barchus sustained his injuries in 1995, provided LIBs for

an injury to the skull resulting in incurable insanity or imbecility.

Act of May 22, 1993, 73rd Leg., R.S., ch. 269, § 1, 1993 Tex. Gen. Laws 1188, amended by Act of June 20, 1997, 75th Leg., R.S., ch. 1443, § 7, 1997 Tex. Gen. Laws 5524 (emphasis added). section 408.161(a)(6) provides for LIBs for

a physically traumatic injury to the brain resulting in incurable insanity or imbecility.

section 408.161(a)(6).

In its findings of fact, the trial court found, among other findings, that:

4. As a result of the February 11, 1995 incident, Plaintiff did not fracture the bony structure of his skull.

5. As a result of the February 11, 1995 incident, Plaintiff did sustain an injury to the skull structures, including and causing damage to the brain.

* * *

7. As a result of the February 11, 1995 incident, Plaintiff suffered “incurable insanity or imbecility” within the meaning of Tex. Lab.Code Section 408.161(a)[6].1

In its conclusions of law, the trial court stated, among other conclusions, that:

2. Plaintiff did not suffer an injury to his skull within the meaning of the pre–1997 version of Tex. Lab.Code § 408.161(a)(6). According[ly], Plaintiff Kenneth Barchus is not entitled to lifetime income benefits.

3. Pursuant to Texas Workers’ Compensation Commission Appeals Panel, Appeal No. 951336 (See, 1995 WL 571372), an “injury to the skull” requires a fracture of the bony structure of the skull.

* * *

6. Despite the Court’s finding that the injury resulted in incurable insanity or imbecility, the Court concludes that such injury did not rise to the level of an “injury to the skull” as required by the pre–1997 version of Tex. Lab.Code Section 408.161(a)(6).

Thus, while finding that Barchus had sustained an injury to the “skull structures” and suffered from “incurable insanity or imbecility,” the trial court concluded that Barchus was required to show that he had sustained a section 408.161(a)(6).

State Farm asserts that Barchus argues on appeal that the “skull” and the “brain” are the same or interchangeable. We observe that the “skull” and the “brain” are not the same.2 However, Barchus *578 does not contend that “skull” and "brain” are the same, but that an “injury” to the skull is required under the statute, not a “fracture of the skull to satisfy its requirement that there be an “injury to the skull” to be entitled to LIBs.

Statutory construction is a question of law subject to de novo review. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003)).

Whether or not the statute is ambiguous, we may consider, among other matters, the administrative agency’s construction of the statute. Liberty Mut. Ins. Co. v. Montana, 49 S.W.3d 599, 601 (Tex.App.-Fort Worth 2001, no pet.).

The primary purpose of the Texas Workers’ Compensation Act is to benefit and protect injured employees. Yeldell v. Holiday Hills Retirement & Nursing Ctr., 701 S.W.2d 243, 245 (Tex.1985).

A Commission appeals panel decision addressed the pre–1997 version of section 408.161(a)(6), “only insanity or imbecility resulting from an injury which also involves the skull is currently eligible for LIBS.” Id.

In concluding that Barchus was required to establish that he had suffered a Tex. Workers’ Comp. Comm’n, Appeal No. 012250, 2001 WL 1472175, at *1 (Oct. 31, 2001).

The pre–1997 version of fracture of the skull, rather than a more broadly defined “injury,” it could have done so.

To the extent the Commission has concluded that a claimant must show evidence that he fracture of his skull. We sustain this issue.

The trial court found that Barchus “did sustain an injury to the skull structures,” and that he “suffered ‘incurable insanity or imbecility’ within the meaning of Tex. Lab.Code Section 408.161(a)[6].” These factual findings have not been challenged on appeal. Accordingly, we reverse the judgment of the trial court and render judgment that Barchus is entitled to LIBs for the injury he sustained on February 11, 1995.



Emphasis added.


The brain is defined as “The portion of the central nervous system (CNS) located within the skull that is responsible for the coordination and control of all vital activities....” AMERICAN JURISPRUDENCE PROOF OF FACTS, 3D SERIES, ATTORNEY’S ILLUSTRATED MEDICAL DICTIONARY B32 (2002). The skull is defined as “The bony framework of the head; includes the bones encasing the brain and the bones of the face.” Id. at S37.


This very issue was addressed by the Legislature when it amended the statute after the 1995 appeals panel decision. The Senate debate, in part, on the amendment reflects the change:

SEN. BARRIENTOS: Mr. President, Members, one of the provisions of the bill that was to address a problem case that exists now arose in the lifetime income benefits. A worker had brain damage from an electrocution, but because the statu[te] requires an injury to the skull, lifetime benefits were denied. This amendment addresses that case by changing an injury to the skull to a physically traumatic injury to the brain. And that language will insure that those whose condition would otherwise qualify for lifetime benefits will not be denied those benefits [because] there was not a blow to the skull ...

SEN. RATLIFF: Sen. Barrientos, you and I have—and our staffs have worked together on this and the amendment will be acceptable. We’re talking about a brain injury that is the result of a traumatic injury and so the amendment is acceptable.

Debate on Tex. H.B. 3522 on the Floor of the Senate, 75th Leg., R.S. (May 22, 1997).


See, e.g., Tex. Workers’ Comp. Comm’n, Appeal No. 992869, 1999 WL 1567551, at *3 (Feb. 4, 2000) (affirming denial of LIBs and finding evidence supported hearing officer’s factual findings that claimant did not sustain injury to his skull in his fall at work, and that while claimant did not suffer from imbecility, he was insane, but that his insanity was not incurable).

End of Document