This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on January 31, 2017, in (city), Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the issue by determining that the respondent/cross-appellant (claimant) is entitled to lifetime income benefits (LIBs) from September 20, 2016. The hearing officer made clear in his decision that the claimant is not entitled to LIBs from September 20, 2016, based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with Section 408.161, but is entitled to LIBs from September 20, 2016, based upon the total and permanent loss of use of both feet at or above the ankle.

The appellant/cross-respondent (self-insured) appealed the hearing officer’s determination that the claimant is entitled to LIBs based upon the total and permanent loss of use of both feet at or above the ankle. The self-insured contends that the hearing officer erred in finding entitlement to LIBs based on a condition not certified for resolution by the benefit review officer and not litigated or argued by either party at the CCH. The claimant responded, urging affirmance. The claimant cross-appealed the hearing officer’s finding of fact that the claimant was not entitled to LIBs from September 20, 2016, based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with Section 408.161. The claimant contended that the evidence does not support the hearing officer’s finding. The self-insured responded to the claimant’s cross-appeal, urging affirmance.

DECISION

Reversed and rendered.

The parties stipulated that the claimant sustained an injury on (date of injury). Records in evidence establish that the claimant was a K-9 officer and patrol deputy for the employer and was injured in a motor vehicle accident on the date of injury.

The Benefit Review Conference (BRC) Report lists the issue in dispute as follows: “[i]s the [c]laimant entitled to [LIBs] from [October 29, 2016] through the present based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with [Section 408.161]?” On the claimant’s motion without objection from the self-insured at the CCH and upon a finding of good cause, the issue was amended regarding the date of entitlement: “[i]s [the] [c]laimant entitled to [LIBs] from September 20, 2016, based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with [Section 408.161]?”

The hearing officer found in Finding of Fact No. 3 that the claimant does not suffer from imbecility as a naturally flowing result of his (date of injury), traumatic brain injury. Finding of Fact No. 3 is supported by sufficient evidence. However, the hearing officer determined the claimant is entitled to LIBs from September 20, 2016, because he found that the claimant has the permanent and total loss of use of both feet at or above the ankle as a result of the compensable injury.

Section 410.151(b) and 28 TEX ADMIN. CODE § 142.7 (Rule 142.7) essentially provide that issues not considered at a BRC may only be added by consent of the parties or upon a showing of good cause.  While consent may be inferred if the parties actually litigated an issue not otherwise identified, the record in this case does not establish that the parties litigated that the claimant is entitled to LIBs based upon the total and permanent loss of use of both feet at or above the ankle. The specific issue before the hearing officer as certified and amended at the CCH was whether the claimant is entitled to LIBs from September 20, 2016, based on a physically traumatic injury to the brain resulting in incurable imbecility. The hearing officer’s determination that the claimant is entitled to LIBs from September 20, 2016, based upon the total and permanent loss of use of both feet at or above the ankle exceeded the scope of the issue before him. Because there is sufficient evidence to support the hearing officer’s finding that the claimant does not suffer from imbecility as a naturally flowing result of his (date of injury), traumatic brain injury, which was the specific issue at the CCH, we reverse the hearing officer’s determination that the claimant is entitled to LIBs from September 20, 2016, and we render a new decision that the claimant is not entitled to LIBs from September 20, 2016, based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with Section 408.161. We note this decision does not preclude the claimant from filing a claim for LIBs based upon a different theory of entitlement contained in Section 408.161.

SUMMARY

We reverse the hearing officer’s determination that the claimant is entitled to LIBs from September 20, 2016, as exceeding the scope of the issue, and we render a new decision that the claimant is not entitled to LIBs from September 20, 2016, based on a physically traumatic injury to the brain resulting in incurable imbecility in accordance with Section 408.161.

The true corporate name of the insurance carrier is CASS COUNTY (a self-insured governmental entity) and the name and address of its registered agent for service of process is

TRACY SEILER, RISK MANAGEMENT SERVICES DIRECTOR

TEXAS ASSOCIATION OF COUNTIES

1210 SAN ANTONIO

AUSTIN, TEXAS 78701.

Carisa Space-Beam
Appeals Judge

CONCUR:

K. Eugene Kraft
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 5, 2015, in El Paso, Texas, with (hearing officer) presiding as hearing officer. The hearing officer resolved the disputed issue by deciding that appellant (claimant) is not entitled to lifetime income benefits (LIBs) from (date of injury), through the date of the CCH based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility.

The claimant appealed the hearing officer’s determination urging that the hearing officer applied an incorrect standard in defining imbecility.

The respondent (self-insured) responded, urging affirmance of the hearing officer’s determinations.

DECISION

Reversed and remanded.

The claimant was injured on (date of injury), when he fell from a ladder and struck the ground sustaining, among other conditions, a closed head injury and concussion. Following a course of treatment, the claimant was examined on June 4, 2014, by (Dr. C), appointed by the Texas Department of Insurance, Division of Workers’ Compensation (Division) to determine maximum medical improvement (MMI) and impairment rating (IR). Dr. C certified that the claimant reached MMI on April 11, 2014, and assigned an IR of 14% pursuant to Table 2 on page 142 of the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000) which indicates that mental impairment exists but that the ability remains to perform satisfactorily most activities of daily living.

The claimant argues that he is entitled to LIBs due to his traumatic brain injury which has resulted in severe cognitive dysfunction which affects his personal, non-vocational life and has rendered him permanently unemployable.

Section 408.161(a)(6) provides that LIBs are paid until the death of the employee for a physically traumatic injury to the brain resulting in incurable insanity or imbecility. We have addressed this section of the 1989 Act in Appeals Panel Decision (APD) 121131-s, decided on August 27, 2012. In that case we affirmed a hearing officer’s decision finding entitlement to LIBs under Section 408.161(a)(6) as supported by sufficient evidence. We noted in that decision, the hearing officer considered the evidence in light of several factors including the definitions of imbecility contained in BLACK’S LAW DICTIONARY 749 (6th ed. 1990), DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 105 (28th ed. 1994), and WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991).We further noted that the hearing officer 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). In the Burnett case the appellate court cited a Virginia 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’” and determined that it means:

[A]n 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 cognitive processes. [Citation omitted.]

In Modreski, supra, the Michigan Supreme Court cited the decision of the appellate board stating:

We conclude that a worker’s mental illness is “insanity” if he suffers severe social dysfunction and that a worker’s intellectual impairment is “imbecility” if he suffers severe cognitive dysfunction. 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.

In the case on appeal, the hearing officer determined that the claimant’s injury resulted in neither incurable insanity nor imbecility. In the Discussion section of her decision the hearing officer stated:

As for the issue of whether or not [the] [c]laimant is entitled to LIBs because of “imbecility,” the standard that will be used in our case 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 hearing officer did not discuss any factors in reaching her decision regarding entitlement to LIBs for incurable imbecility other than the definition of imbecility contained in WEBSTER’S, supra, as mentioned above.

We note that in a recent case, the court of appeals, first district, citing Lumbermen’s Reciprocal Ass’n v. Gilmore, 258 S.W. 268, 269 (Tex. Civ. App.–Texarkana 1924), stated the term “imbecility” has been in use in the Labor Code for almost a century, always without an assigned definition. The court went on to state that dictionary entries published closer in time to the enactment of the legislation would be more instructive. The court specifically referenced the following definition of imbecility from the 1910 edition of BLACK’S LAW DICTIONARY:

A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to the physical wants and habits . . . the test of legal capacity in this condition, is the stage to which the weakness of mind has advanced, as measured by the degree of reason, judgment, and memory remaining.

See Chamul v. Amerisure Mutual Ins. Co., 2016 Tex. App. LEXIS 1263 (Tex. Civ. App.–Houston [1st Dist.] 2016 no writ history).

The court further 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).

We hold that the hearing officer erred in linking her analysis of the claimant’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, supra, and Chamul, supra. Accordingly, we reverse the hearing officer’s determination that the claimant is not entitled to LIBs from (date of injury), through the date of the CCH based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility and remand the issue to the hearing officer for further action consistent with this decision.

REMAND INSTRUCTIONS

On remand, the hearing officer is to weigh the evidence and apply the correct legal standard by considering additional factors such as those discussed in APD 121131-s, supra, and Chamul, supra, to determine whether or not the claimant is entitled to LIBs from (date of injury), through the date of the CCH based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility. The hearing officer is to make findings of fact, conclusions of law, and a decision regarding the issue that are consistent with this decision. The hearing officer is not to consider additional evidence on remand.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.  See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is El PASO INDEPENDENT SCHOOL DISTRICT (a self-insured governmental entity) and the name and address of its registered agent for service of process is

JUAN CABRERA, SUPERINTENDENT

6531 BOEING DRIVE

EL PASO, TEXAS 79925.

K. Eugene Kraft
Appeals Judge

CONCUR:

Carisa Space-Beam
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on May 4, 2012, in [City], Texas, with [hearing officer] presiding as hearing officer. The hearing officer determined that the respondent (claimant) is entitled to lifetime income benefits (LIBs) from [a day after date of injury], through the present based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility.

The appellant (self-insured) appeals, contending that the medical evidence was insufficient to meet the standard of incurable insanity or imbecility and that there is no evidence that the claimant has been incurably insane (or suffered from imbecility) since May of 2004. The appeal file does not contain a response from the claimant.

DECISION

Affirmed in part and reversed and remanded in part.

The background facts are largely undisputed. The claimant was a cadet in the [Academy]. The claimant testified that while participating in boxing drills in April and [month and year of injury], he was knocked unconscious, and on the latter occasion, on [date of injury], he was hospitalized. Medical records in evidence indicate the claimant had “suffered a traumatic brain injury with hemorrhage” and that the claimant was hospitalized for 2-1/2 weeks. The self-insured accepted “a compensable head/brain injury.” The claimant was eventually certified as having reached maximum medical improvement on March 17, 2006, with a 20% impairment rating based on tables related to mental status impairment in Chapter 4 of the Guides to the Evaluation of Permanent Impairment, fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the American Medical Association prior to May 16, 2000).

ENTITLEMENT TO LIBS

This is a case of first impression in defining incurable insanity or imbecility. Prior to September 1, 1997, Section 408.161(a)(6) provided that LIBs are payable for “an injury to the skull resulting in incurable insanity or imbecility.” The legislature changed the law for compensable injuries occurring on or after September 1, 1997, to provide for LIBs in the case of “a physically traumatic injury to the brain resulting in incurable insanity or imbecility.” Most of the Appeals Panel decisions in the past discussing terms of “incurable insanity or imbecility” focused on whether an injury to the skull occurred or whether such an injury caused the claimant’s mental deficits based on the language of the 1989 Act prior to September 1, 1997.

The claimant testified that he attempted to return to various jobs but was unable to do so because of seizures, and stress leading to violent outbursts. The hearing officer, in his Background Information, recites that the claimant was referred to [Dr. H], a psychologist, in November 2005. Dr. H believed the claimant had cognitive deficits and had sustained a traumatic brain injury. Dr. H concluded because of “this pattern of test performance one should be very concerned with the [claimant’s] ability to function adequately in situations that are volatile, unclear, or require problem solving.”

The hearing officer, in the Background Information, recites other treatment the claimant received from a psychiatrist. The claimant testified that although he had been advised not to drive he did so in order to look for and maintain employment. The claimant had two motor vehicle accidents due to seizures and then had a third accident due to seizures while driving in May 2011. The claimant’s drivers license was eventually either revoked or surrendered. [Dr. A], the claimant’s treating doctor, in a report dated June 2, 2005, noted that the claimant “seemed to deteriorate” since his initial injury on [date of injury]. In a report dated April 11, 2011, Dr. A noted that the claimant was not qualified to drive because of his brain injury. Dr. A in a report dated May 5, 2011, noted that the claimant “has developed schizophrenia, hallucinations, seizure disorder and bipolar disorder.” In a report dated May 13, 2011, Dr. A noted the Section 408.161(a)(6) provision of a physical traumatic injury to the brain resulting in incurable insanity or imbecility and stated that the claimant's “actions over the past 6-12 months would seem to qualify [the claimant] under this.” [Dr. PL], a self-insured required medical examination psychiatrist, in a report dated May 26, 2011, diagnosed a traumatic brain injury and related seizures and chronic headaches which according to [Dr. L], a psychiatrist, also resulted in a significant personality change and two psychiatric syndromes. Dr. PL stated that the psychiatric syndromes “[i]ncluded 293.83 Mood Disorder (Depressed Features) due to a General Medical Condition (Traumatic Brain Injury), and 293.82 Psychosis (auditory hallucinations and paranoid features) due to a General Medical Condition (Traumatic Brain Injury).” Dr. PL concluded that in her opinion “the traumatic brain injury is the precipitating factor which led to seizures, chronic headaches, and subsequently to the cognitive deterioration, personality and mood disturbances, impulsive aggression and perceptual distortions which warrant the diagnoses mentioned above.”

Dr. L, the treating psychiatrist, in a report dated May 26, 2011, noted that the claimant “has not maintained sustained improvement or remission despite over six years of treatment by multiple specialists.” Dr. L concluded that the claimant “is currently suffering from mania, episodic hallucinations, and is unable to drive because of recurrent seizures.” Based on the evidence, the hearing officer found that the brain injury is irreversible and rendered the claimant “permanently unemployable and significantly affects the non-vocational quality of his life by eliminating his ability to engage in a range of usual cognitive processes.”

The hearing officer in his Background Information cited Section 408.161(a)(6) and noted that the same language of “incurable insanity or imbecility” occurs in the workers’ compensation acts of other states. The hearing officer further noted that the Appeals Panel in several cases has used a definition of “incurable insanity or imbecility” using Black’s Law Dictionary and Dorland’s Illustrated Medical Dictionary 105 (28th ed. 1994). Appeals Panel Decision (APD) 961340 decided August 21, 1996, noted:

BLACK’S LAW DICTIONARY 749 (6th ed. 1990) refers the reader to the definition of insanity for a definition of imbecility; that DORLAND’S, supra, at 820, defines imbecility as the condition of being an imbecile; moderate or severe mental retardation; and that WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991) defines imbecility as the quality or state of being imbecile or an imbecile, and that it defines imbecile as 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 hearing officer, in the Background Information, goes on to comment:

Those definitions imply more of a congenital and generic condition and not one caused by an industrial accident. The Appeals Panel decisions have not discussed the terms “incurable insanity or imbecility” beyond the above definitions, and have not discussed them in any recent decisions. The majority of the decisions focus on whether an injury to the skull occurred, or whether such an injury caused the claimant’s deficits, based on the language of the [1989] Act prior to September 1, 1997.

The hearing officer, in this case, cites National Union Fire Insurance Company v. Burnett, 968 S.W.2d 950 (Tex. App.-Texarkana 1998 no pet.), a case where the appellate court held that severe depression without evidence of psychosis (id at 956) does not fall within the definition of “incurable insanity.” Nonetheless, the Burnett case has some instructive language on the definition of incurable insanity or imbecility. The Burnett court cited a Virginia court (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’” and determined that it means:

[A]n 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. [Citation omitted.]

The hearing officer also cited 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.” That court cited the decision of the appellate board stating:

We conclude that a worker’s mental illness is “insanity” if he suffers severe social dysfunction and that a worker’s intellectual impairment is “imbecility” if he suffers severe cognitive dysfunction. 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.

The hearing officer concluded, based on the evidence and related legal arguments that the claimant is entitled to LIBs based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility. We hold that the hearing officer did not err in determining that the claimant is entitled to LIBs based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility. The hearing officer’s determination that the claimant is entitled to LIBs based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility is supported by sufficient evidence and is affirmed.

DATE OF ELIGIBILITY TO LIBS

The hearing officer’s determination of entitlement to LIBs states that the claimant is entitled to LIBs from [a day after date of injury], through the present (May 4, 2012, was the date of the CCH). The hearing officer does not discuss why he chose [a day after date of injury], as the beginning eligibility date for LIBs. We note that [a day after date of injury], is the day after the stipulated date of injury. Former 28 TEX. ADMIN. CODE § 131.1(b) (Rule 131.1(b)) provided that LIBs begin to accrue as provided by Section 408.082 and are payable retroactively from the date of disability. The Texas Department of Insurance, Division of Workers’ Compensation (Division) adopted the repeal of Rule 131.1 effective January 9, 2008, concerning the initiation of LIBs based on the Texas Court of Appeals’ ruling in Mid-Century Insurance Company v. Texas Workers’ Compensation Commission, 187 S.W.3d 754 (Tex. App.-Austin 2006, no pet.). In Mid-Century, the court held that the legislature specifically reserved LIBs for seven enumerated categories of injurious conditions that include both immediately qualifying injuries and those evolving or deteriorating over time. The court noted that the legislature further provided that LIBs are payable “for” those conditions. The court specifically held:

An employee is eligible to receive LIBs on the date that the employee suffers from one of the conditions specified in Section 408.161. Section 408.161 does not permit payment of LIBs prior to that date. Once an employee is adjudicated eligible to receive LIBs, however, LIBs should be paid retroactively to the date the employee first became eligible.

The hearing officer determined (and we affirmed) that the claimant is entitled to receive LIBs in this case. Therefore, LIBs should be paid retroactively to the date the claimant first became eligible. In this particular case, clearly the records the hearing officer relies on were generated much later than [a day after date of injury]. In fact, the claimant testified that he worked, or attempted to work, and go to college sometime in the years between 2006 and 2011. The claimant is only entitled to LIBs from the date that he became “incurably insane” or an “imbecile.” Most of the doctors that commented on the claimant’s condition do not attempt to address a specific date that the claimant achieved this condition. Dr. A, in his report dated May 13, 2011, stated that the claimant’s actions over the past 6-12 months would seem to qualify the claimant under Section 408.161(a)(6).

We reverse that portion of the hearing officer’s determination that finds the claimant entitled to LIBs from [a day after date of injury], through the present and remand the case for further consideration consistent with this decision. There are a number of potential dates that the hearing officer could consider that the claimant became eligible for LIBs; however, the date of [a day after date of injury] (the date after the compensable injury) is not supported by any of the medical evidence or doctors’ assessments.

REMAND INSTRUCTIONS

On remand, the hearing officer is to determine a date that the claimant became eligible for LIBs that is supported by the evidence. No new evidence is required, however, the parties are to be allowed to comment on the evidence in the record.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202, as amended effective June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of time in which a request for appeal or a response must be filed. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is STATE OFFICE OF RISK MANAGEMENT (a self-insured governmental entity) and the name and address of its registered agent for service of process is

For service in person the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

300 W. 15TH STREET

WILLIAM P. CLEMENTS, JR. STATE OFFICE BUILDING, 6TH FLOOR

AUSTIN, TEXAS 78701.

For service by mail the address is:

JONATHAN BOW, EXECUTIVE DIRECTOR

STATE OFFICE OF RISK MANAGEMENT

P.O. BOX 13777

AUSTIN, TEXAS 78711-3777.

Thomas A. Knapp

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on September 22, 2011. With regard to the sole disputed issue before her, the hearing officer determined that the respondent (claimant) is entitled to lifetime income benefits (LIBs) from March 2, 2007, through March 2, 2010, based on the loss of both feet at or above the ankle.

The appellant (carrier) appealed, contending that the hearing officer’s decision is contrary to the intent of the legislature, that there should be a provision in the statute which would lessen or eliminate the amount of LIBs paid under the circumstances of this case and that the hearing officer’s decision constitutes an unconstitutional violation of the carrier’s property rights and due process. The claimant responded, urging affirmance.

DECISION

Affirmed.

Section 410.203(b) was amended effective September 1, 2011, to allow the Appeals Panel to affirm the decision of a hearing officer as prescribed in Section 410.204(a)(1). Section 410.204 was amended by amending subsection (a) and adding subsection (a-1). Section 410.204(a) provides, in part, that the Appeals Panel may issue a written decision on an affirmed case as described in subsection (a-1). Subsection (a-1) provides that the Appeals Panel may only issue a written decision in a case in which the panel affirms the decision of a hearing officer if the case: (1) is a case of first impression; (2) involves a recent change in law; or (3) involves errors at the CCH that require correction but do not affect the outcome of the hearing. We view this case as a case of first impression.

The background facts are undisputed. On (date of injury), the claimant suffered a catastrophic crush injury to both legs resulting in the amputation of the left leg above the knee and amputation of the right leg below the knee on the date of injury. The parties stipulated that the claimant suffered a compensable injury resulting in bilateral leg amputation at or above the ankle in the course and scope of his employment on (date of injury).

The hearing officer commented in the Background Information that the claimant was fitted for bilateral leg prostheses and returned to part-time work in September 2007, and then full-duty work in November 2007, “earning greater than his pre-injury wages.” The hearing officer also commented that the claimant is currently fully ambulatory with the use of bilateral leg prostheses.

Section 408.161(a)(2) provides that LIBs are paid until the death of the employee for “(2) loss of both feet at or above the ankle.” There are no other qualifiers to this provision and the stipulated facts establish that the claimant has had both feet amputated at or above the ankle. A prior CCH, held on March 3, 2010, determined that the claimant was entitled to LIBs “as of the date of this hearing (March 3, 2010).” The hearing officer’s decision in that case was allowed to become final on June 18, 2010. The parties represent that case has been appealed to District Court. The CCH in the present case involves entitlement to LIBs from March 2, 2007 (the day after the injury and amputation) to March 2, 2010 (the day before the prior CCH).

First addressing the carrier’s argument that Section 408.161(a)(2) is unconstitutional and violates the carrier’s right to due process, the Appeals Panel has many times held that the Texas Department of Insurance, Division of Workers’ Compensation (Division) is an administrative agency of the State of Texas, and does not have the power to determine the constitutionality of statutes, citing State Board of Pharmacy v. Walgreen Tex. Co., 520 S.W. 2d 845, 848 (Tex. Civ. App.–Austin 1975, writ ref’d n.r.e). Appeals Panel Decision (APD) 010851, decided June 7, 2001, and APD 030330-s, decided April 2, 2003. The Appeals Panel’s jurisdiction is limited to reviewing Division CCH decisions and orders. Sections 410.202 and 410.203

The carrier cites Section 402.021 for authority that the 1989 Act “serves to step in and place the claimant in the same position financially and medically as he was prior to the incident.” Our review of Section 402.021 only expresses the intent of the legislature that injured employees be treated with dignity, fairly and have access to prompt, high-quality medical care. In any event, it would be impossible to place the claimant in the same position medically as he was prior to the compensable injury. He will always have the loss of both feet no matter how well he adapts.

The carrier attempts to draw an analogy between LIBs and supplemental income benefits (SIBs) by saying that the injured worker loses entitlement to SIBs upon gaining employment and earning wages commensurate with the pre-injury wage and that LIBs should be treated similarly. We disagree. To be entitled to SIBs one of the core requirements is that the injured worker has not returned to work or has returned to work earning less than 80% of the employee’s average weekly wage as a direct result of the employee’s impairment. There is no similar provision in Section 408.161. Had the legislature intended to condition the payment of LIBs on inability to earn wages or the pre-injury wage they would have added such a provision to Section 408.161. We read every word, phrase, and expression in a statute as if it were deliberately chosen and presume the words excluded from the statute are done so purposefully. See Mid-Century Ins. Co. v. Tex. Workers’ Comp. Commission, 187 S.W.3d 754 (Tex. App.-Austin 2006, no pet.).

Finally, we would note that any decision by the Appeals Panel to the effect that LIBs were not payable if the claimant returned to work, at or greater than his pre-injury wage or that the carrier was entitled to some kind of reduction would be contrary to the express provision of Section 408.161 and result in impermissible informal rule making. See Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248 (Tex. 1999).

Although not argued at the CCH in this case, we find the courts’ holding in Mid-Century, supra, to be instructive. In Mid-Century, the carrier sought to have 28 TEX. ADMIN. CODE § 131.1(b) (Rule 131.1(b)) be declared invalid to the extent it required carriers to pay LIBs retroactively from the date of an employee’s disability, rather than from the date the employee first qualified for those benefits. The Court of Appeals held that:

An employee is eligible to receive LIBs on the date that employee suffers from one of the conditions specified in [S]ection 408.161. Section 408.161 does not permit payment of LIBs prior to that date. Once an employee is adjudicated eligible to receive LIBs, however, LIBs should be paid retroactively to the date the employee first became eligible.

Applying that principle to the case at hand, the claimant first became eligible for LIBs on the (date of injury), when both feet were amputated above the ankle. The claimant was adjudicated to be eligible to receive LIBs at the prior CCH on March 3, 2010. The prior 2010 CCH only awarded LIBs from the date of the prior CCH because the issue was worded to say “Is the [c]laimant entitled to [LIBs] as of this date . . . .” We hold, with the guidance given in Mid-Century, supra, that once LIBs eligibility was judicially or administratively determined, which in this case was March 3, 2010, LIBs should be paid retroactively to the date the employee first became eligible, which in this case was the date of injury (date of injury), when both claimant’s legs were amputated above the ankle.

A more recent case Liberty Mutual Ins. Co. v. Adcock, 2011 Tex. App. LEXIS 8407 (Tex. App. Fort Worth, October 20, 2011), holds that the Division has no implied right to review LIBs under Section 408.161 after the initial administrative and appellate remedies have been exhausted. In Adcock, the Division had determined that the claimant in that case was entitled to LIBs due to the total and permanent functional loss of use of his right foot above the ankle and right hand up to and including the right wrist. Several years later the carrier sought to reopen the case asserting the injured worker was no longer entitled to LIBs because he no longer had total and permanent functional loss of use of the body parts that were the basis of the award. The court concluded that there was no implied right to review LIBs under Section 408.161 after the initial administrative and appellate remedies had been exhausted. We distinguish the Adcock case from the situation in this case because in the instant case the claimant is only seeking the remedy to which he was originally entitled. We apply the holding in Mid-Century, supra, that directs that once LIBs eligibility is judicially, or in this case administratively determined, LIBs are to be paid retroactively to the date the claimant first became eligible.

Finding no legal error and sufficient evidence to support the hearing officer’s decision, the decision of the hearing officer is affirmed.

The true corporate name of the insurance carrier is ZURICH AMERICAN INSURANCE COMPANY and the name and address of its registered agent for service of process is

CORPORATION SERVICE COMPANY

211 EAST 7TH STREET, SUITE 620

AUSTIN, TEXAS 78701-3218.

Thomas A. Knapp
Appeals Judge

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises 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 3, 2010. With regard to the sole disputed issue, the hearing officer determined that the respondent (claimant) is entitled to lifetime income benefits (LIBs) based on the loss of and/or total and permanent loss of use of both feet at or above the ankle as of April 22, 2010.

Appellant 1 (carrier) appealed, contending that the hearing officer’s determination was against the great weight and preponderance of the evidence and that the hearing officer erred in failing to give presumptive weight to the designated doctor’s opinion regarding whether the claimant sustained the loss (use) of both feet at or above the ankle. Appellant 2 (Subsequent Injury Fund (SIF)) appealed, contending that the hearing officer erred in failing to give the designated doctor’s report presumptive weight and that the designated doctor had not given an opinion on “loss of use” of both feet at or above the ankle. The claimant responded to the carrier and SIF’s appeals, urging affirmance.

DECISION

Reversed and remanded.

The parties stipulated that the claimant sustained a compensable injury to his right foot on ______________, and that the claimant has a below-the-knee amputation of the left lower extremity unrelated to a compensable injury. It is also undisputed that the claimant is a diabetic.

Section 408.161(a) provides in part that LIBs are paid until the death of the employee for the loss of both feet at or above the ankle. Section 408.161(b) provides that for purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of that body part. In Appeals Panel Decision (APD) 022129, decided October 3, 2002, the Appeals Panel compared Sections 408.161(a) and (b) with the predecessor statutes; took note of the pertinent commentary in 1 MONTFORD, BARBER & DUNCAN, A GUIDE TO TEXAS WORKERS’ COMP. REFORM § 4b.31 at 4-135 footnote 468; and held that “total loss of use” of a member of the body means that such member no longer possesses any substantial utility as a member of the body, or the condition of the injured worker is such that the worker cannot get and keep employment requiring the use of such member, which is the test set forth in Travelers Insurance Company v. Seabolt, 361 S.W.2d 204 (Tex. 1962). See also APD 100384, decided May 26, 2010. We have also noted that the Seabolt test is disjunctive and that a claimant needed only satisfy one prong of the test in order to establish entitlement to LIBs. See APD 100384.

Section 408.162 entitled “[SIF] Benefits” provides that:

1. (a)If a subsequent compensable injury, with the effects of a previous injury, results in a condition for which the injured employee is entitled to [LIBs], the insurance carrier is liable for the payment of benefits for the subsequent injury only to the extent that the subsequent injury would have entitled the employee to benefits had the previous injury not existed.

2. (b)The [SIF] shall compensate the employee for the remainder of the [LIBs] to which the employee is entitled.

It is undisputed that the prior amputation of the below-the-knee left lower extremity constituted the loss of one foot at or above the ankle for purposes of Section 408.161(b). See The Second Injury Fund v. Adelina Conrad, 947 S.W.2d 278 (Tex. Civ. App.—1997).

In the instant case, the claimant, a construction superintendent, sustained a compensable injury on ______________, when some lumber fell from a truck hitting the claimant’s right foot. The claimant sustained a fracture of the right second metatarsal. On October 22, 2008, the claimant had right leg surgery in the form of an open reduction internal fixation with allograft secured by a plate and screws. The claimant was diagnosed with Charcot arthropathy changes and collapsing of the midfoot. The claimant was subsequently referred to (Dr. S), a board certified podiatric surgeon. Dr. S recommended a right midfoot fusion which Dr. S testified would improve the claimant’s quality of life but would not increase the function of the right foot. The surgery was denied by the carrier.

(Dr. J), in a report dated March 1, 2010, states that he was appointed as the designated doctor to determine maximum medical improvement (MMI), impairment rating (IR) and return to work ability.^[1] In that report Dr. J opined the claimant had reached MMI on March 1, 2010, with an eight percent IR and attached a Texas Workers’ Compensation Work Status Report (DWC-73) releasing the claimant to return to work as of March 1, 2010, with restrictions. The restrictions included no standing, kneeling, bending, pushing (etc.) and “[n]o driving/operating heavy equipment” and “[c]an only drive automatic transmission.” In a subsequent report dated July 27, 2010, Dr. J stated he “was asked to determine if the [claimant] sustained loss of both feet at or above the ankle.” Dr. J diagnosed the claimant with “[s]tatus post left below-the-knee amputation” and “[n]onunion of metatarsals with Charcot arthropathy, right foot.” In bold print Dr. J cites the question he was answering as: “Has the examinee sustained loss of both feet at or above the ankle? The total and permanent loss of use of [a] body part is the loss of that body part.” In his report, Dr. J stated that “[t]he [claimant] has loss of left foot above the ankle (BKA) [below knee amputation]. The [claimant] has not sustained loss of the right foot above the ankle. He has nonunion of fractures with Charcot arthropathy.” There is no dispute that Dr. J was asked to give an opinion whether the claimant has lost the use of both feet at or above the ankle.

The hearing officer in the Background Information portion of her decision writes:

[Dr. J’s] opinion regarding the loss of both feet at or above the ankle is a credible medical opinion, however, it does not carry presumptive weight pursuant to [Section] 408.0041. Additionally, [Dr. J] did not give an opinion on “loss of use” of both feet at or above the ankle.

Section 408.0041(e) provides, in part, that the report of the designated doctor has presumptive weight unless the preponderance of the evidence is to the contrary. Section 408.0041(a) provides the Texas Department of Insurance, Division of Workers’ Compensation (Division) may order a medical examination to resolve any question about: (1) the impairment caused by the compensable injury; (2) the attainment of [MMI]; (3) the extent of the employee’s compensable injury; (4) whether the injured employee’s disability is a direct result of the work-related injury; (5) the ability of the employee to return to work; or (6) issues similar to those described by Subdivisions (1) - (5). See also 28 TEX. ADMIN. CODE § 126.7(d) (Rule 126.7(d)).^[2]

While the cited list does not specifically provide for appointment of a designated doctor to resolve the question of loss of use of both feet at or above the ankle, we hold that subsection 408.0041(a)(6) which provides for appointment of a designated doctor for “issues similar to those described by Subdivisions (1) - (5)” can include a question to determine loss of use of both feet at or above the ankle. More specifically if the Division appoints a designated doctor to perform a medical examination to resolve any question listed in Section 408.0041(a) Subsections (1) through (6) the designated doctor’s opinion has presumptive weight unless the preponderance of the medical evidence is to the contrary. Section 408.0041(e) and Rule 126.7(d). The hearing officer does not make a finding that Dr. J’s opinion was contrary to the preponderance of the medical evidence and, in fact, comments that Dr. J’s opinion regarding the loss of both feet at or above the ankle “is a credible medical opinion” but does not carry presumptive weight. We hold that the hearing officer erred in failing to give presumptive weight to Dr. J’s opinion.

The hearing officer also erred when she stated in the Background Information that Dr. J “did not give an opinion on ‘loss of use’ of both feet at or above the ankle.” As previously noted, Dr. J, in bold print, defined the question that he was answering and noted that the total and permanent loss of use of a body part is the loss of that body part. It was Dr. J’s opinion, using the cited definition, that the claimant had not sustained the total and permanent loss of use of the right foot at or above the ankle.

There was conflicting medical and testimonial evidence regarding what physical activity the claimant could perform using his right foot. The hearing officer is the sole judge of the weight and credibility to be given to the evidence. Section 410.165(a).

We reverse the hearing officer’s determination that the claimant is entitled to LIBs based on the loss and/or total and permanent loss of use of both feet at or above the ankle as of April 22, 2010, because the hearing officer failed to give presumptive weight to the designated doctor’s report. We remand the case for the hearing officer to give presumptive weight to the designated doctor’s report, determine if the preponderance of the other medical evidence is to the contrary of the designated doctor’s report, and then determine if the claimant is entitled to LIBs based on the loss of use of both feet at or above the ankle, and if so, as of what date.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Division, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

MR. RON O. WRIGHT, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Thomas A. Knapp

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

1. There is no Request for Designated Doctor (DWC-32) in evidence.

   ↑

2. We note that this provision is now found in Rule 127.1 of the new designated doctor rules effective February 1, 2011.

   ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing was held on March 2, 2010. The hearing officer resolved the sole issue by deciding that the respondent (claimant) is entitled to lifetime income benefits (LIBs) based on the loss of use of both hands and both feet as of January 8, 2003. The appellant (self-insured) appealed, arguing that the conditions of which the claimant allegedly suffers are not supportive of a determination of entitlement to LIBs. Additionally, the self-insured argues that the evidence is insufficient to support a determination of entitlement to LIBs as of January 8, 2003. The claimant responded, urging affirmance of the hearing officer’s determination of LIBs entitlement as of January 8, 2003.

DECISION

Reversed and remanded.

The parties stipulated that on ___________, the claimant sustained a compensable injury. The medical records indicate that the claimant had cervical spinal surgery on October 13, 2001, and on January 6, 2005, and that the claimant had lumbar spinal surgery on February 2, 2006.

The claimant claims entitlement to LIBs based on one or more of the provisions in Section 408.161(a) to include subsections:  (2) loss of both feet at or above the ankle; (3) loss of both hands at or above the wrist.  Section 408.161(b) provides that for purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of that body part.  In Appeals Panel Decision (APD) 022129, decided October 3, 2002, the Appeals Panel compared Sections 408.161(a) and (b) with the predecessor statutes; took note of the pertinent commentary in 1 MONTFORD, BARBER & DUNCAN, A GUIDE TO TEXAS WORKERS’ COMP. REFORM § 4b.31 at 4-135 footnote 468; and held that “total loss of use” of a member of the body means that such member no longer possesses any substantial utility as a member of the body, or the condition of the injured worker is such that the worker cannot get and keep employment requiring the use of such member, which is the test set forth in Travelers Insurance Company v. Seabolt, 361 S.W.2d 204 (Tex. 1962).  See APD 941065 decided September 21, 1994.  We have also noted that the Seabolt test is disjunctive and that a claimant needed only satisfy one prong of the test in order to establish entitlement to LIBs.  See APD 022129.

The hearing officer found that the evidence was sufficient to establish that the claimant no longer possesses any substantial utility of and/or total and permanent loss of use of both hands and both feet as a member of the body. There is sufficient evidence to support that finding.

Additionally, the hearing officer found that the evidence was sufficient to establish that the claimant’s condition is such that he cannot get and keep employment requiring the use of both hands and both feet as of January 8, 2003. In Mid-Century Ins. Co. v. Tex. Workers’ Comp. Comm’n, 187 S.W.3d 754, 758 (Tex. App.-Austin 2006, no pet.), the court held that an employee is eligible to receive LIBs on the date that the employee suffers from one of the conditions specified in Section 408.161 and further that Section 408.161 does not permit payment of LIBs prior to that date. The Court additionally held that once an employee is adjudicated eligible to receive LIBs, LIBs should be paid retroactively to the date the employee first became eligible. In its appeal, the self-insured correctly notes that the only information regarding the specific date of January 8, 2003, is a progress note of that date which states: “MRI reviewed C3-4 stenosis, 4-5 in lesser degree. Still very weak in general, needs a walker to ambulate. [Received] a functional capacity, [referred] rehab-P.T.” This progress note is insufficient to establish a date when the claimant became eligible to receive LIBs under the standard set out in Mid-Century. In evidence were various other medical records of differing dates which discussed the reasons the claimant would be unable to get and keep employment requiring the use of his hands and feet.

The hearing officer was persuaded that the evidence presented was sufficient that the claimant has a loss of both hands and both feet, that the claimant no longer possesses any substantial utility of both hands and both feet, and that the claimant’s condition is such that he cannot get and keep employment requiring the use of both hands and both feet as a result of the compensable injury he sustained on ___________. Although that finding is supported by the evidence, the hearing officer’s determination of the date of January 8, 2003, as the date of the claimant’s eligibility for LIBs is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Therefore, we reverse the hearing officer’s determination that the claimant is entitled to LIBs based on the loss of use of both hands and both feet as of January 8, 2003, and remand this case to the hearing officer to find a date of eligibility to receive LIBs supported by the evidence.

Pending resolution of the remand, a final decision has not been made in this case.  However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods.  See APD 060721, decided June 12, 2006.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

RG, SUPERINTENDENT

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Margaret L. Turner

CONCUR:

Thomas A. Knapp
Appeals Judge

Veronica L. Ruberto
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on April 5, 2007. The two disputed issues were:

(1) Is the respondent (clamant) entitled to lifetime income benefits (LIBs) as of this date based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility?; and

(2) If the claimant is entitled to LIBs, on what date did those benefits begin to accrue?

The hearing officer resolved the disputed issues by deciding that: (1) the claimant is entitled to LIBs as of this date based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility; and (2) the claimant’s LIBs began to accrue on _________. The hearing officer also determined that good cause did not exist to add the issue of LIBs based on loss of use of both feet at or above the ankles. The appellant (carrier) appealed the hearing officer’s determination that the claimant’s LIBs began to accrue on _________. The claimant responded, urging affirmance.

The hearing officer’s finding of no good cause to add the issue of LIBs based on loss of use of both feet at or above the ankles and the determination that the claimant is entitled to LIBs as of this date based on a physically traumatic injury to the brain resulting in incurable insanity or imbecility, have not been appealed and have become final pursuant to Section 410.169.

DECISION

Reversed and remanded for reconstruction of the record.

Section 410.203(a)(1) requires the Appeals Panel to consider the record developed at the CCH. The CCH was recorded on one compact disc (CD). The CD indicated that it contained 1 track, which was 47 minutes and 6 seconds long. The entire CD had no sound at all. The file indicates that there was no court reporter and the file does not contain a transcript. Consequently, we must remand the case to the hearing officer for reconstruction of the CCH record.

Pending resolution of the remand, a final decision has not been made in this case. However, since reversal and remand necessitate the issuance of a new decision and order by the hearing officer, a party who wishes to appeal from such new decision must file a request for review not later than 15 days after the date on which such new decision is received from the Texas Department of Insurance, Division of Workers’ Compensation, pursuant to Section 410.202 which was amended June 17, 2001, to exclude Saturdays and Sundays and holidays listed in Section 662.003 of the Texas Government Code in the computation of the 15-day appeal and response periods. See APD 92642, decided January 20, 1993.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RUSSELL OLIVER, PRESIDENT

6210 EAST HIGHWAY 290

AUSTIN, TEXAS 78723.

Veronica L. Ruberto

CONCUR:

Thomas A. Knapp
Appeals Judge

Margaret L. Turner
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on December 5, 2006. The hearing officer determined that while the appellant/cross-respondent (claimant) has totally and permanently lost the functional use of his legs, the claimant’s legs have not been permanently paralyzed due to the compensable spinal injury and therefore the claimant “is not entitled to lifetime income benefits [LIBs] based on the loss of and/or the total and permanent loss of use of both feet as of this date.”

The claimant appealed asserting that if his legs are not functional, they have no use as a member of his body and therefore he is entitled to LIBs citing Section 408.161 and case authority. The respondent/cross-appellant (self-insured), in a response and timely cross-appeal, contends that the hearing officer correctly followed the principles of statutory construction in deciding the case and appeals the hearing officer’s determination that the claimant has totally and permanently lost the functional use of his legs on a sufficiency of the evidence basis. The claimant filed a response to the self-insured’s cross-appeal, urging that the evidence sufficiently supports the hearing officer’s decision that he has lost the functional use of his lower extremities.

DECISION

Affirmed in part and reversed and a new decision rendered in part.

The parties stipulated that the claimant sustained a compensable injury on ___________. The claimant testified that he was a 21 year employee of the self-insured and that on ___________, he injured his low back moving/lifting some computer monitors. The claimant’s testimony indicates that he had nonwork-related spinal surgery in January 1999. The medical records indicate that the claimant “underwent a posterior spine reconstructive surgery with multiple level laminectomy and a decompression of his lumbar spine” with instrumentation, fusion L3 through L5, and pedicle screws bilaterally and a cage placed at L4-5 in December 2001. Other medical records indicate that the claimant “has a terribly failed back syndrome.”

TOTAL AND PERMANENT LOSS OF FUNCTIONAL USE OF THE LEGS

The self-insured appeals the hearing officer’s determination that due to the compensable injury, the claimant has totally and permanently lost the functional use of his legs. The hearing officer’s determination that the claimant has totally and permanently lost the functional use of his legs is supported by sufficient evidence and is affirmed. We construe the hearing officer’s determination to be the equivalent of a finding that the claimant’s legs no longer possess any substantial utility as members of his body.

ENTITLEMENT TO LIBS

The applicable statutory provision is Section 408.161 which states in pertinent part:

§ 408.161. LIFETIME INCOME BENEFITS.

1. (a)Lifetime income benefits are paid until the death of the employee for:

   ***

2. (2)loss of both feet at or above the ankle;

   ***

   (5)an injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg;

(b)For purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of that body part.

We have affirmed the hearing officer’s finding that due to the compensable injury, the claimant has totally and permanently lost the functional use of his legs. The self-insured contends, based on principles of statutory construction, that with a spinal injury, the claimant can only be entitled to LIBs if he meets the requirements of Section 408.161(a)(5). The hearing officer comments, in his Background Information, that Section 408.161(a)(5) “requires a showing of total and complete paralysis of the affected limbs before a spinal injury will entitle the claimant total LIBs for ‘loss’ of the extremities.” The hearing officer found that the claimant had totally and permanently lost the functional use of his legs but was not entitled to LIBs because the claimant’s legs were not completely paralyzed due to the compensable injury.

The Appeals Panel has addressed this argument previously in Appeals Panel Decision (APD) 94689, decided July 8, 1994, a case in which the injured employee slipped and fell injuring her low back. The injured employee in that case had two spinal surgeries and eventually it was determined she could not get and keep employment that requires use of the legs. The Appeals Panel, in that case, commented that it was clear that the hearing officer believed that to qualify for LIBs the claimant had to show paralysis of her lower extremities. The Appeals Panel in APD 94689 quoted Section 408.161 of the 1989 Act and compared it to the corresponding section in the “old law,” (pre-1989 Act) provision which was commonly cited as TEX. REV. CIV. STAT. ANN., art. 8306 § 11a (Vernon 1967). The Appeals Panel, stated:

Obviously these two provisions [the pre-1989 Act and 1989 Act] are very similar and in fact virtually identical in equating the loss of use of [a] member with its loss. This would indicate that the Texas legislature in enacting the 1989 Act did not intend to change the substantive law in this area. This view is further supported in 1 MONTFORD, BARBER & DUNCAN, A GUIDE TO TEXAS WORKERS’ COMP REFORM § 4B.31 at 4-134-5 (1991):

Commentary-Section 4.31

* * *

b.Section 4.31(b) [Now Section 408.161(b)]: Definition of loss. A key term in the determination of lifetime income benefits is “loss.” Under Section 4.31(b) the total and permanent loss of use of [a] member is considered to be the same as the loss of that member. “Total loss” appears to be the same concept as “total loss of use,” a concept for determining benefits for specific injuries under prior law.

Montford then cites with approval the following prior law definition of total loss of use found in the Texas Pattern Jury Charges:

“Total loss of use” of a member of the body exists whenever by reason of injury such member no longer possesses any substantial utility as a member of the body or the condition of the injured member is such that the worker cannot get and keep employment requiring the use of such member. 1 MONTFORD, BARBER & DUNCAN, A GUIDE TO TEXAS WORKERS’ COMP REFORM § 4B.31 at 4-135 footnote 468.

APD 94689, supra, went on to point out that the above definition of total loss of use was approved by the Texas Supreme Court in Travelers Insurance Co. v. Seabolt, 361 S.W.2d 204, 206 (Tex. 1962) and has consistently been applied since then. APD 94689 concluded that:

Under the prior law this definition of loss of use has been applied to cases where the claimant asserted loss of use of the legs due to a spinal injury. See, e.g., Service Lloyds Insurance Company v. Slay, 800 S.W.2d 359 (Tex. App.-El Paso 1990, writ denied).[^[1]] Thus we hold in the present case that the correct standard in determining whether the claimant is entitled to LIBs is whether her legs no longer possess any substantial utility as members of her body or whether the condition of her legs is such that she cannot get and keep employment requiring the use of legs.

APD 992445, decided December 16, 1999, was also a case in which the injured employee sustained a compensable spinal injury, had spinal surgery, and eventually the condition worsened rendering the injured employee unable to walk. A doctor testified that although the injured employee had some motor or sensory function in his lower extremities, “the claimant has no substantial utility of either leg, he is a functional paraplegic.” APD 992445 discusses Sections 408.161(a)(2) and 408.161(a)(5), cites Seabolt, supra, and notes that the Seabolt test is disjunctive. The carrier in that case, as in the present case, argued that the injured employee must meet the requirements of Section 408.161(a)(5) to be entitled to LIBs, and that the Seabolt case is inapplicable because the injured employee’s injury is to the spine rather than to the legs. APD 992445, discusses APD 972171, decided December 8, 1997, a case in which the injured employee was found to be entitled to LIBs, holding:

We decline to follow the argument of the carrier and dicta in Appeal No. 972171, supra, that with a spinal injury, a claimant can only be entitled to LIBs if they meet the requirements of Section 408.161(a)(5). [APD 94689, supra, and APD 982995, decided February 4, 1999], specifically rejected this argument on the basis that the legislature did not intend in 1989 to change the prior law regarding LIBs, and under prior law the definition of loss of use was applied to cases where the claimant asserted loss of use of the legs due to a spinal injury. See Service Lloyds Insurance Co. v. Slay, 800 S.W.2d 359 (Tex. Civ. App.-El Paso [1990], writ den’d).

In APD 030009, decided February 6, 2003, the Appeals Panel affirmed a hearing officer’s decision awarding LIBs under Section 408.161(a)(2) where the injured employee had a spinal injury resulting in severe limitations in his ability to use his legs to the point that the limitations prevented the injured employee from getting and keeping employment requiring the use of his legs, and rejected the argument that because a spinal injury was involved, the only way the injured employee could prove entitlement to LIBs was to show permanent and complete paralysis of his legs under Section 408.161(a)(5).

The self-insured, in its response in this case, cites case law on statutory construction that every provision of a statute must be given meaning and therefore the claimant, who had an injury to the spine and not his legs, can only be found entitled to LIBs under Section 408.161(a)(5). The self-insured argues that when the legislature enacted Section 408.161(a)(5), it intended LIBs entitlement to be limited to permanent and complete paralysis of the extremities as a result of a spine injury. The “old law” provision in art. 8306, § 11(a)(5) had a similar provision regarding an injury to the spine resulting in permanent and complete paralysis of both arms or both legs or of one arm and one leg. As has been noted in both APD 94689, supra and APD 992445, supra, the provisions of the pre-1989 Act and the comparable provisions in Section 408.161 are “virtually identical” in equating the loss of use of a member with its loss. As noted in APD 94689 this would indicate that the legislature did not intend to change the substantive law in this area where the definition of loss of use was applied to cases in which the claimant asserted entitlement to LIBs based on the loss of use of the legs due to a spinal injury. We would further note that in 1997 the legislature amended Section 408.161 to allow for LIBs for a brain injury resulting in incurable insanity or imbecility, and that the legislature again amended Section 408.161 in 2001 providing LIBs for certain burn injuries and that neither amendment changed Sections 408.161(a)(2) and 408.161(a)(5). The 1989 Act was again amended in 2005 with no change to Sections 408.161(a)(2) and (a)(5). This would indicate to us that the legislature did not intend to change the interpretation that the courts and the Appeals Panel have given to Sections 408.161(a)(2) and (a)(5).

The self-insured also cites Hartford Underwriters Insurance Co. v. Burdine, 34 S.W.3d 700 (Tex. App.-Fort Worth 2000, no pet.), a case in which the injured employee sustained an injury to her lumbar spine but was found to be entitled to LIBs based on the total loss of use of the legs and/or feet as defined in Seabolt, supra. The self-insured contends that Burdine is a pre-1989 Act case that was appealed on issues relating to the weight of the evidence on total loss of use and not to the point of statutory construction raised by the self-insured in this case and therefore has little precedent. Nonetheless, Burdine has approved entitlement to LIBs based on total and permanent loss of use of the legs and/or feet, as defined in Seabolt, where the injury was to the spine. In Slay, supra, the court also affirmed entitlement to LIBs based on a spine injury which resulted in total loss of use of both legs.

In Texas Employer’s Insurance Association v. Gutierrez, 795 S.W.2d 5 (Tex. App.-El Paso 1990, writ denied) the court stated that a finding of total loss of use of the leg also encompasses the loss of the foot at or above the ankle. See also Texas General Indemnity Co. v. Martin, 836 S.W.2d 636 (Tex. App.-Tyler 1992, no writ) where the court stated if the leg cannot be used, neither can the foot. In Pacific Employers Insurance Company v. Dayton, 958 S.W.2d 452 (Tex. App.-Fort Worth 1997, pet. denied), the court noted that the definition of “total loss of use” as applied to the 1989 Act should include the requirements of Section 408.161 that the loss of use be both total and permanent, and 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. Id 459.

Considering the applicable law, we reverse the hearing officer’s decision that the claimant is not entitled to LIBs based on the loss of and/or the total and permanent loss of use of both feet as of this date and render a new decision that the claimant is entitled to LIBs.

SUMMARY

We affirm the hearing officer’s determination that due to the compensable injury the claimant has totally and permanently lost the functional use of his legs. We reverse the hearing officer’s determination that the claimant is not entitled to LIBs based on the loss of and/or the total and permanent loss of use of both feet and render a new decision that the claimant is entitled to LIBs based on the total and permanent loss of use of both feet at or above the ankle as of the date of the CCH.

The true corporate name of the insurance carrier is (a certified self-insured) and the name and address of its registered agent for service of process is

CT CORPORATION SYSTEM 

350 NORTH ST. PAUL, SUITE 2900

DALLAS, TEXAS 75201.

Thomas A. Knapp

CONCUR:

Cynthia A. Brown
Appeals Judge

Margaret L. Turner
Appeals Judge

1. The Slay case involved an injured employee who had a neck and upper back injury and the jury found the injury produced permanent total loss of use of both legs. The appeals court affirmed the trial court’s award of LIBs based on a total loss of use of both legs; however, Slay does not expressly mention the definition of total loss of use set forth in Seabolt.

   ↑

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was held on November 30, 2005, and concluded on January 17, 2006. With regard to the only issue before her the hearing officer determined that the respondent (claimant) was entitled to lifetime income benefits (LIBs) “based on total and permanent loss of use of both hands and both feet.”

The appellant (carrier) appealed contending, among other things, that the standard set out in Travelers Insurance Company v. Seabolt, 361 S.W.2d 204 (Tex. 1962) (Seabolt) was not followed and that the “[e]vidence conclusively establishes that the condition of the claimant’s feet and hands does not preclude claimant from obtaining and retaining employment requiring the use of the feet or hands.” The claimant responds citing medical reports that support his position and urges affirmance.

DECISION

Reversed and rendered.

The claimant, a truck driver, testified how on ___, he tripped and fell on some boxes injuring his neck. The parties stipulated that on ___, the claimant sustained a compensable cervical injury. The medical records indicate that the claimant had cervical spinal surgery on ___ and March 2, 1999, involving multiple level diskectomy fusion from C3 through C6-7. The record also indicates that he requested and apparently received supplemental income benefits (SIBs) from April 2004 through early October 2005 based on good faith job searches.

Although not specifically referenced the claimant apparently claims entitlement to LIBs based on one or more of the provisions in Section 408.161(a) to include subsections: (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; and (5) an injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg. Section 408.161(b) provides that for purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of that body part. In Appeals Panel Decision (APD) 022129 decided October 3, 2002, the Appeals Panel compared Sections 408.161(a) and (b) with the predecessor statutes; took note of the pertinent commentary in 1 MONTFORD, BARBER & DUNCAN, A GUIDE TO TEXAS WORKERS’ COMP. REFORM § 4b.31 at 4-135 footnote 468; and held that “total loss of use” of a member of the body means that such member no longer possesses any substantial utility as a member of the body, or the condition of the injured worker is such that the worker cannot get and keep employment requiring the use of such member, the test set forth in Seabolt, supra. See APD 941065 decided September 21, 1994. We have also noted that the Seabolt test is disjunctive and that a claimant needed only satisfy one prong of the test in order to establish entitlement to LIBs. See APD 022129. The hearing officer in this case apparently found entitlement based on Sections 408.161(a)(2) loss of both feet at or above the ankle (See Finding of Fact 11 and Conclusion of Law 3) and 408.161(a)(3) loss of both hands at or above the wrist (See Finding of Fact 10 and Conclusion of Law No. 3). Although there was some evidence of paralysis and “quadriparesis” the hearing officer’s determination does not appear to have been based on Section 408.161(a)(5) injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg.

(Dr. ER), apparently a Texas Department of Insurance, Division of Workers’ Compensation (Division) doctor, in a report dated May 10, 2005, recites how the claimant’s compensable injury “resulted in quadriparesis” and comments on the claimant’s clinical history. In response to two questions Dr. ER said:

YES-He has lost complete permanent to paralysis [sic] to both arms and legs. He had a complete paralysis of arms and legs. He did have partial paralysis of arms and legs with spastic symptoms, difficulty walking, unable to use his right hand, which is his dominant side.

YES-The claimant has some use of his arms and his legs, but there [sic] will not enable him in any way to perform any sort of work even at a sedentary level because of the spasticity [muscles are stiff and the movements awkward] and weakness of his hands and arms and leg. There will be no way that he would be employed.

Similarly (Dr. L) who the hearing officer identifies as a board-certified neurologist and required medical examination doctor, in a report dated January 26, 2005, responded to questions that the claimant has not only “quadriparesis but bilateral claw hands, which means he is unable to perform any type of work at the present time.” (Dr. P), the treating doctor in a report dated September 20, 2004, was referred to the language of Section 408.161(a)(2), (3) and (4), marked “yes” that claimant suffered a “total loss of both feet at or above the ankle,” a “total loss of both hands at or above the wrist” and a “total loss of one foot at or above the ankle and one hand at or above the wrist.” Dr. P explained that the claimant had “quadriparesis and there is severe or marked weakness of hands and arms” and that “[h]e cannot walk w/o assistance.” Dr. P concludes that “‘Severe Quadriparesis’ renders the patient completely disabled.”

However, Dr. P in a report dated April 15, 2004, comments that the claimant “states that he walks three miles every day and that is what keeps him going and in good physical health.” (Dr. FR) in a report dated March 18, 2005, comments that the claimant is able to walk with the aid of a cane, that he uses both arms and that there “is no complete paralysis of either both arms or both legs or one arm or one leg” referring to Section 408.161(a)(5). Dr. FR also comments that the claimant is “able to do some sedentary work.”

The carrier points out that the claimant applied for and apparently received SIBs for the third, fourth, fifth, sixth and eighth quarters where he sought employment with 269 different employers on 269 different dates (with qualifying periods from early April 2004 to early October 2005). The evidence reflects that the claimant’s contact with the 269 potential employers was made in person. The carrier also points out that the claimant’s testimony was that his left hand and left arm “is pretty normal” (CCH transcript page 19).

The claimant, apparently in 2001, attended college and at some time received a Bachelor’s Degree in Business Administration. (Transcript page 16). The evidence also indicates that the claimant applied for a position as a “sub teacher because he feels that he is able to perform that type of job and one is able to work when needed.” (Carrier Exhibit J page 19). The claimant apparently obtained an elementary school teaching position (possibly in 2003, Transcript page 16) but “couldn’t keep up with [the] work” because he had “difficulty trying to keep their attention because of the constant pain” but not because he had the loss of use of his legs and arms.

Not mentioned in the hearing officer’s decision is a DVD video admitted as Carrier’s Exhibit D. That video has segments from the morning of January 18, 2005, and the afternoon of January 28, 2005. The video shows the claimant walking, carrying his cane, putting the cane in the back of his pickup truck with his right hand, opening doors, getting in and out of his large pickup truck, carrying papers in his left hand and negotiating stairs with difficulty. The video contradicts Dr. L’s January 26, 2005, comment that the claimant “is unable to perform any type of work at the present time.” We note that the videos of January 18 and January 28, 2005, were taken in the same general timeframe as Dr. L’s report. The video also contradicts Dr. P’s September 20, 2004, report that the claimant “cannot walk without assistance.” The video does support Dr. P’s April 15, 2004, comment that the claimant walks three miles a day, Dr. FR’s March 18, 2005, report, and the claimant’s testimony that he can drive.

In a report dated March 18, 2005, Dr. FR notes that the claimant “uses both arms, although he may have some weakness in both hands and unable to do finer movements with his hands. There is no complete paralysis of either both arms or both legs, or one arm or one leg.” Dr. FR goes on to state that the claimant “could be able to do some sedentary work.” Subsequently in a May 10, 2005, report Dr. ER does not differentiate among the body members and simply states that the claimant cannot work at a “sedentary level because of the spasticity [defined as the muscles are stiff and the movements awkward in Dorland’s Illustrated Medical Dictionary (28th edition 1994)] and weakness of his hands and arms and leg.” As pointed out above the DVD video and supporting medical evidence clearly refute Dr. ER’s comment on the leg (or legs). Similarly, Dr. L in his reports of January 26 and March 28, 2005, only refers to “bilateral claw hands” without specific reference to left or right or that they no longer possess any substantial utility. The DVD video shows the claimant walking carrying his four pronged cane in his right hand and putting the cane in the back of his pickup truck with his right hand. The claimant opens and closes the door of his pickup truck with his left hand and on errands holds papers in his left hand. In answers to interrogatories (Carrier’s Exhibit K) the claimant stated that he can drive, apparently without limitations, but is “unable to reach overhead” and has “club hands mostly to my right hand.” As mentioned previously, it appears undisputed that the claimant can, and does, regularly drive his pickup truck without difficulty. The claimant, at the CCH, testified that his “left arm is pretty normal” and that he can grasp things in his left hand. That testimony is supported by the DVD video. We reverse the hearing officer’s determination that the claimant does not possess the ability to get and keep employment requiring the use of his hands (Finding of Fact No. 8) and that the claimant has a total and permanent loss of use of both of his hands (Finding of Fact No. 10).

We acknowledge that the record contains conflicting evidence. The dissent correctly notes that Dr. ER noted in his May 2005 report that the claimant cannot perform any sort of work because of the spasticity and weakness in his hands. However in that same report, Dr. ER fails to mention any problems the claimant may be having with his left hand. Dr. P’s September 2004 report lacks credibility. In the September 2004 report, Dr. P opines that the claimant’s “function of his upper and lower extremities has been lost in or about an 85 to 90%.” This conclusion is contradicted not only by the DVD surveillance but also by medical records which track the claimant’s progress. The records evidence that the claimant increased the distance he walked from 1 ½ miles to 2 miles every other day to 3 miles a day (by April 15, 2004). Further, Dr. P notes in a report dated January 31, 2002, that the claimant is “improving considerably and is generally better.” In the January 31, 2002, report Dr. P also notes that the claimant has no sensory abnormality and no muscle atrophy. In a report dated August 11, 2003, Dr. P notes that the claimant is “doing his regular daily activities” and in a report dated November 25, 2003, notes that the claimant is ambulating with the aid of a cane, but is able to walk without it. Dr. M’s August 2000 report as noted by the dissent does note an obvious wasting of interosseous musculature of the claimant’s hands but also notes that the claimant cannot drive which is contradicted by the claimant’s answers to interrogatories in evidence, his testimony, and the DVD surveillance video.

In summary, Section 408.161(a) provides that LIBs are paid for: (2) loss of both feet at or above the ankle or (3) loss of both hands at or above the wrist. Section 408.161(b) provides that for purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of that body part. The Texas Supreme Court in Seabolt, supra, defined a total loss of use of a member exists whenever, due to the injury, such member no longer possesses any substantial utility as a member of the body or “the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.” Clearly based on the evidence and DVD video the claimant has not lost his feet or hands. The question becomes whether he no longer possesses any substantial utility of his hands and feet or that the condition of his hands or feet is such that he cannot procure and retain employment requiring the use of his hands and feet. While the medical evidence may be conflicting, it is uncontradicted that the claimant had tried to obtain an elementary school teaching position and the reason for leaving that program was for other reasons “([inability] to work with kids...difficulty trying to keep their attention because of the constant pain)” rather than the loss of use of his hands or feet. Furthermore, the great weight of the evidence, both testimonial and on the DVD video, is that the claimant can, and does drive which requires use of the hands and feet. Because the claimant cannot perform “minor fine movements” with his hands obviously does not preclude him from doing gross movements including driving. For these reasons, we hold that the claimant has not met the requirements to prove that he has a total loss of use of his hands and feet, that he no longer possesses any substantial utility of his hands and feet and that he cannot procure and retain some employment requiring the use of his hands and/or feet.

We hold that the claimant has failed to prove that he has a loss of both feet at or above the ankle or a loss of both hands at or above the wrist or a loss of one foot at or above the ankle and loss of one hand at or above the wrist with total loss of use as defined in Seabolt, supra. We reverse the hearing officer’s decision that the claimant is entitled to LIBs based on total and permanent loss of use of both hands and both feet and render a new decision that the claimant is not entitled to LIBs.

The true corporate name of the insurance carrier is TEXAS MUTUAL INSURANCE COMPANY and the name and address of its registered agent for service of process is

RUSSELL RAY OLIVER, PRESIDENT

6210 HIGHWAY 290 EAST

AUSTIN, TEXAS 78723.

Thomas A. Knapp

CONCUR:

Margaret L. Turner
Appeals Judge

DISSENTING OPINION:

I respectfully dissent. I would affirm the hearing officer’s determination that the claimant is entitled to LIBs based on the hearing officer’s findings that the claimant does not possess fine motor functions of his hands, that he suffers quadriparesis as a result of his compensable injury, that he does not possess the ability to get and keep employment requiring the use of his hands, and that he has a total and permanent loss of use of both of his hands. It is undisputed that the claimant sustained a compensable cervical injury for which he underwent two surgeries at multiple disc levels.

Section 408.161(a) provides in pertinent part that LIBs are paid until the death of the employee for: (3) loss of both hands at or above the wrist. Subsection (b) of Section 408.161 provides that for purposes of Subsection (a), the total and permanent loss of use of a body part is the loss of that body part. In Seabolt, supra, the Texas Supreme Court explained that “[a] total loss of use of a member exists whenever by reason of injury, such member no longer possesses any substantial utility as a member of the body, or the condition of the injured member is such that the workman cannot procure and retain employment requiring the use of the member.” The court further explained that “[s]hould the evidence be sufficient in law to satisfy either of the two requirements stated above the judgment should be affirmed, otherwise a reversal must be ordered.” The court also explained that “[a]lthough a member may possess some utility as a part of the body, if its condition be such as to prevent the workman from procuring and retaining employment requiring the use of the injured member, it may be said that a total loss of the use of a member has taken place.”

In Pacific Employers Insurance Company v. Dayton, 958 S.W.2d 452 (Tex. App.-Fort Worth 1997, pet. denied), a LIBs case decided under the 1989 Act, the court 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 and, therefore, rejected the contention that the trial court’s charge to the jury regarding total loss of use, which contained the Seabolt standard, contained an incorrect statement of the law. The court also noted that the definition of “total loss of use” as applied to the 1989 Act should include the requirement of Section 408.161 that the loss of use be both total and permanent.

In Hartford Underwriters Insurance Company v. Burdine, 34 S.W.3d 700 (Tex. App.-Fort Worth 2000, no pet.), a LIBs case decided under the law prior to the 1989 Act, the court affirmed a judgment awarding LIBs based on a jury finding that the injured employee, who had suffered a back injury, had suffered a total and permanent loss of use of both feet at or above the ankles, and in doing so the court specifically cited former Article 8306 Section 11a(2) (providing for LIBs for the loss of both feet at or above the ankle), after noting the provision regarding total and permanent loss of use in former Article 8306 Section 10(b). Although in discussing other court decisions, the court in Burdine mentioned the “other loss” provision in former Article 8306 Section 11a (providing that “[t]he above enumeration is not to be taken as exclusive. . .”), which provision is not in Section 408.161, the court’s decision in Burdine was not based on the “other loss” provision of former Article 8306 Section 11a as asserted by the carrier in its appeal in the instant case. The court stated that “[q]uestions three and four specifically tracked the language of Section 11a(2) and clearly supported a finding of total and permanent loss of use of both feet at or above the ankles for purposes of an award of lifetime benefits.” The court rejected the contention that evidence of the employee’s back injury did not support the jury’s findings that the employee suffered an injury to both her legs or feet at or above the ankles. There was evidence that the injury to the nerve roots in the lower back caused a muscular malfunction in the feet and the medical records indicated that the back injury resulted in problems with the functioning of both her legs and both feet at or above the ankles. The court also noted that there was evidence to support the jury’s finding of total loss of use under the Seabolt standard.

There is conflicting evidence in the present case, but I believe that there is sufficient evidence to support the hearing officer’s decision with regard to LIBs entitlement based on total and permanent loss of use of both hands and that such determination is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Medical evidence supporting the hearing officer’s determination with regard to the claimant’s hands consists of several medical reports. Dr. ER noted in May 2005 that the claimant’s right hand is clinched to the extent that he cannot extend his fingers, that the claimant’s quadriparesis is secondary to his work-related spinal cord injury, and that the claimant cannot perform any sort of work because of the spasticity and weakness of his hands. Dr. L noted in January 2005 that the claimant has developed bilateral claw hands associated with radiculopathies, that he has severe atrophy of the interoseous muscles of both hands, that the claimant is unable to perform any fine movements with his hands, and that the claimant is unable to perform any type of work. Dr. L also noted that the claimant’s work-related cervical injury left him not only with quadriparesis, but also with bilateral claw hands, and that the claimant has multiple cervical radiculopathies bilaterally. Dr. L explained in March 2005 that the claimant’s bilateral chronic radiculopathies, which left him with claw hands, means that the claimant has chronic flexion contractures of his hands and, therefore, cannot perform any work that requires a minor fine movement. Dr. P noted in September 2004 that the claimant has quadriparesis, severe or marked weakness of his hands, loss of fine grip, and limited range of motion of his upper extremities. Dr. P wrote in March 2004 that as a result of his work injury, the claimant has permanent spinal cord damage resulting in quadriparesis, which he noted was severe muscle weakness of both upper and lower extremities, and that the claimant is considered permanently and totally physically disabled from any type of gainful work activity. Dr. P noted in April 2000 that with regard to the use of the upper extremities, the claimant has no digital dexterity, but has clumsy movements of both his upper extremities. Dr. P noted in May 2000 that he felt that the claimant will not be able to work due to his lack of fine control and that his condition is permanent. (Dr. M) noted in August 2000 that the claimant had obvious wasting of the interosseous musculature of his hands.

The video of the claimant is inconclusive regarding what work, if any, the claimant might be able to perform using his hands. The claimant is right-handed. On direct examination he testified that his right hand is constantly in a claw-hand position, but that he has a little more flexibility with his left hand, and showed the hearing officer his hands. The claimant did agree at the CCH during cross-examination that his left hand is “pretty normal” and that he can grasp things with his left hand, but he also explained on redirect examination that it is with a lot of difficulty that he can button a shirt with his left hand, that it was with great difficulty that he used a computer for his classes, that he does feel that his left hand has paralysis to some extent, and that his left hand is not completely normal. The claimant’s Applications for SIBs for the third through the eighth quarters reflect multiple job searches, but he also marked on each application that he was not able to work in any capacity and that his doctor had documented that he cannot do any type of work in any capacity. The record does not reflect that any employment resulted from the job searches for those quarters.

Based on the above, I would affirm the hearing officer’s decision of entitlement to LIBs.

Robert W. Potts
Appeals Judge

This appeal arises pursuant to the Texas Workers’ Compensation Act, TEX. LAB. CODE ANN. § 401.001 et seq. (1989 Act). A contested case hearing (CCH) was commenced on February 8, 2005, and concluded on April 11, 2005. With regard to the issues before him the hearing officer determined that the appellant/cross-respondent (claimant) is not entitled to lifetime income benefits (LIBs) based on the total and permanent loss of use of the upper extremities, lower extremities, or one upper extremity and one lower extremity, that respondent 2 (Subsequent Injury Fund (SIF)) is not liable for LIBs pursuant to Section 408.162, that the claimant’s _________, compensable injury does extend to and include complex Regional Pain Disorder (CRPS or RSD) of the bilateral upper extremities and right lower extremity and that respondent/cross-appellant 1 (self-insured) waived the right to contest compensability of the CRPS of the bilateral upper extremities and right lower extremity.

The claimant appealed the LIBs determination summarizing the evidence in some detail and contending that the hearing officer erred in not correctly applying Section 408.161, the case of Travelers Insurance Company v Seabolt, 361 S.W.2d 204 (Tex. 1962), and the Appeals Panel decisions. The self-insured appealed the extent-of-injury issue, the carrier waiver issue and conditionally appealed the SIF issue if the Appeals Panel reversed the LIBs entitlement issue. The self-insured also responded to the claimant’s appeal urging affirmance on the LIBs issue. The self-insured responded to the claimant and self-insured’s appeals, urging affirmance. The file does not contain a response from the claimant.

DECISION

Affirmed in part and reversed and rendered in part.

The claimant was employed as a deputy sheriff for the self-insured. The claimant has an extensive history of various injuries as set out by the hearing officer. The claimant testified how he was kicked in the left knee and sustained a dislocated knee cap on _________. In 1998 another hearing officer determined that the claimant sustained a compensable left knee injury on _________. That determination was affirmed in Texas Workers’ Compensation Commission Appeal No. 981814, decided September 17, 1998. A designated doctor found the claimant to be at maximum medical improvement (MMI) on September 22, 1999, with a 19% impairment rating (IR) which included a diagnosis of RSD and CRPS of the left lower extremity. The claimant testified that his right leg began bothering him in the “first part of 99.” The first medical documentation of “RSD type symptoms” spreading to both legs is in a February 2001 note from the claimant’s doctor, referencing “vein harnesting” in both legs in conjunction with a heart attack sometime in 2000.

ENTITLEMENT TO LIBS

Section 408.161 sets out the requirements for LIBs and provides LIBs for the loss of both feet at or above the ankle, loss of both hands at or above the wrist or the loss of one foot at or above the ankle and the loss of one hand at or above the wrist. The claimant’s appeal, after summarizing the evidence from his perspective, asserts that the hearing officer did not apply the legal standard for LIBs set out in Seabolt, supra. We disagree. The hearing officer not only saw and heard the evidence presented at the CCH, but also had the benefit of observing the claimant and his demeanor at the CCH. The hearing officer made five factual determinations to support his conclusion that the claimant did not meet the requirements for entitlement to LIBs. The hearing officer’s determination on this issue is supported by the evidence and is affirmed.

SIF NOT LIABLE FOR LIBS

In so far as this issue was contingently appealed and as we are affirming the hearing officer’s determination regarding the LIBs issue we also affirm the hearing officer’s determination that the SIF is not liable for LIBs.

EXTENT OF INJURY

There was conflicting medical evidence presented regarding this issue. Both the claimant’s treating doctor and a carrier peer review doctor testified at the CCH. The hearing officer, as the sole judge of the weight and credibility of the evidence could, and apparently did, accept the treating doctor’s reports and testimony on this issue. With conflicting evidence the hearing officer’s decision on this issue is supported by sufficient evidence and is affirmed.

CARRIER WAIVER

The hearing officer determined that the carrier waived the right to contest compensability of CRPS of the bilateral upper extremities and right lower extremity stating in his Background Information section:

Carrier filed a letter dated November 1, 2004, to dispute the extent of Claimant’s injury. Claimant’s Ex. 8 at 1. The evidence presented does not appear to indicate that Carrier disputed the claim or paid benefits within 7 days of the date of first written notice or within 60 days of the date of first written notice.

There was no evidence when the carrier received the first written notice of the present claimed injuries. Fairly clearly the carrier received notice of the left knee injury sometime in 1997 and the compensability of the left knee injury was resolved in Appeal No. 981814, supra. As indicated there was no specific evidence of a date when the carrier was given written notice of the claimed upper extremities and right lower extremity injuries. Such a date might have possibly been in February 2001.

The provisions of Section 409.021 in effect for compensable injuries that occurred before September 1, 2003, provides in pertinent part that for injuries occurring prior to September 1, 2003, an insurance carrier shall, not later than the 7th day after the receipt of written notice of an injury, begin the payment of benefits as required by the 1989 Act or notify the Texas Workers’ Compensation Commission and the employee in writing of its refusal to pay benefits. Prior to the March 13, 2000, change to Tex. W.C. Comm’n, 28 TEX. ADMIN. CODE § 124.3 (Rule 124.3), a carrier had 60 days to dispute the compensability of an injury or waived the right to do so. Based upon Appeals Panel decisions prior to March 13, 2000, every time the carrier was notified of a new diagnosis, condition, or claimed body part, the carrier had an additional 60 days from the date it received notice to dispute the diagnosis, condition, or body part, or it again waived. See Texas Workers’ Compensation Commission Appeal No. 980822, decided June 3, 1998; Texas Workers’ Compensation Commission Appeal No. 962415, decided January 9, 1997. In other words, prior to the adoption of Rule 124.3, the carrier would waive the extent of injury if it failed to dispute the additionally claimed diagnosis, condition, or body part within 60 days of receiving notice. When Rule 124.3 was changed effective March 13, 2000, it provided that the waiver provisions of Section 409.021 do not apply to issues of extent of injury.

Rule 124.3(e) provides that Section 409.021 and subsection (a) of Rule 124.3 do not apply to disputes of extent of injury. In TIG Premier Insurance Company v. Pemberton, 127 S.W.3d 270 (Tex. App.-Waco 2003, pet denied), the court stated that Section 409.021 pertains only to the “overall injury” and that Section 409.021(c)’s 60-day provision applies only to the carrier’s initial response to a notice that an employee has been injured.

In Texas Workers’ Compensation Commission Appeal No. 041738-s, decided September 8, 2004, the Appeals Panel considered the question of what is the nature of the injury that becomes compensable by virtue of carrier waiver and said that:

We hold that the injury that becomes compensable by virtue of waiver is not necessarily limited by the information listed on the first written notice of injury. Rather the nature of the injury will be defined by the information that could have been reasonably discovered in the carrier’s investigation prior to the expiration of the waiver period.

In Texas Workers’ Compensation Commission Appeal No. 042048-s, decided October 11, 2004, the Appeals Panel noted that “prior to deciding whether a case presents an issue of waiver or extent of injury, one must define what the original injury was.”

In this case the original injury was clearly the compensable left knee injury and the original waiver period would have been in 1997. There was no diagnosis or evidence of CRPS/RSD of the upper extremities or lower right leg during the waiver period. The additional CRPS/RSD injuries only arose at some later date, not documented prior to February 2001, or at the very earliest a spread to the right leg in June 2000, based on the treating doctor’s testimony. In any event, the additional CRPS/RSD injuries are clearly an extent-of-injury issue not subject to waiver under Rule 124.3(e). The hearing officer erred in finding that the carrier waived the right to contest compensability of CRPS of the bilateral upper extremities and right lower extremity.

We reverse that determination and render a new decision that the carrier did not waive the right to contest compensability on the extent of injury to the CRPS of the bilateral upper extremities and right lower extremity.

The true corporate name of the insurance carrier is (a self-insured governmental entity) and the name and address of its registered agent for service of process is

(NAME)

(ADDRESS)

(CITY), TEXAS (ZIP CODE).

Thomas A. Knapp

CONCUR:

Robert W. Potts
Appeals Judge

Margaret L. Turner
Appeals Judge