Texas Family Code – Section 158.206

• 158.206. LIABILITY AND OBLIGATION OF EMPLOYER;

WORKERS’ COMPENSATION CLAIMS.  (a) An employer receiving an order

or a writ of withholding under this chapter, including an order or

writ directing that health insurance be provided to a child, who

complies with the order or writ is not liable to the obligor for the

amount of income withheld and paid as required by the order or writ.

(b)  An employer receiving an order or writ of withholding

who does not comply with the order or writ is liable:

(1)  to the obligee for the amount not paid in

compliance with the order or writ, including the amount the obligor

is required to pay for health insurance under Chapter 154;

(2)  to the obligor for:

(A)  the amount withheld and not paid as required

by the order or writ;  and

(B)  an amount equal to the interest that accrues

under Section 157.265 on the amount withheld and not paid;  and

(3)  for reasonable attorney’s fees and court costs.

(c)  If an obligor has filed a claim for workers’

compensation, the obligor’s employer shall send a copy of the

income withholding order or writ to the insurance carrier with whom

the claim has been filed in order to continue the ordered

withholding of income.

Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995.

Amended by Acts 1995, 74th Leg., ch. 341, § 4.07, eff. Sept. 1,

1995;  Acts 1997, 75th Leg., ch. 911, § 46, eff. Sept. 1, 1997;

Acts 1999, 76th Leg., ch. 859, § 2, eff. Sept. 1, 1999;  Acts

1999, 76th Leg., ch. 1580, § 1, eff. Sept. 1, 1999;  Acts 2001,

77th Leg., ch. 1023, § 39, eff. Sept. 1, 2001.

Texas Family Code – Section 158.213

• 158.213. WITHHOLDING FROM WORKERS’ COMPENSATION

BENEFITS.  (a) An insurance carrier that receives an order or writ

of withholding under Section 158.206 for workers’ compensation

benefits payable to an obligor shall withhold an amount not to

exceed the maximum amount allowed to be withheld from income under

Section 158.009 regardless of whether the benefits payable to the

obligor for lost income are paid as lump sum amounts or as periodic

payments.

(b)  An insurance carrier subject to this section shall send

the amount withheld for child support to the place of payment

designated in the order or writ of withholding.

Added by Acts 2003, 78th Leg., ch. 610, § 9, eff. Sept. 1, 2003.

Texas Family Code – Section 158.009

• 158.009. MAXIMUM AMOUNT WITHHELD FROM EARNINGS. An

order or writ of withholding shall direct that any employer of the

obligor withhold from the obligor’s disposable earnings the amount

specified up to a maximum amount of 50 percent of the obligor’s

disposable earnings.

Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995.

Amended by Acts 1997, 75th Leg., ch. 911, § 37, eff. Sept. 1,

1997.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

CS08-002A (5-08)
1

THE STATE
OF TEXAS
Provided by
Texas Department of Insurance
Division of Workers’ Compensation

Quick for Designated Doctors
The Texas Department of Insurance, Division of Workers’ Compensation’s (TDIDWC)
medical treatment guideline is the Official Disability Guidelines – Treatment
in Workers’ Comp, excluding the return to work pathways, (ODG) [137.100]. Health
care provided in accordance with the TDI-DWC treatment guidelines is presumed
reasonable. The TDI-DWC disability duration guideline is The Medical Disability
Advisor, Workplace Guidelines for Disability Duration, excluding all sections and
tables relating to rehabilitation, (MDA) [137.10]. These guidelines should be used
for the evaluation of expected or average return to work time frames. Workers’
Compensation Health Care Networks may adopt different treatment and disability
duration guidelines. If reference to such treatment and disability duration guidelines
is appropriate, and the Designated Doctor does not follow the TDI-DWC guidelines,
the Designated Doctor should provide an explanation with references to the
guidelines. Designated doctors should render opinions based on a reasonable medical
probability.
When performing an examination, a designated doctor should consider the following
information in order to properly address any of the following issues. The sections
below correspond to the “Reason For Request” section of DWC Form-032, Request
for Designated Doctor.
A. Maximum Medical Improvement (MMI)
• MMI is defined in part as the earliest date after which, based on reasonable
medical probability, further material recovery from or lasting improvement to an
injury can no longer be reasonably anticipated [401.011(30)(A)].
• The date of MMI may not be prospective or conditional, but it may be before the
date of the certifying exam [130.1(b)(4)(C)].
• Do not conduct an IR exam if you find the injured employee is not at MMI.
Designated Doctors cannot be paid for IR exams for an injured employee that is
not at MMI.
When documenting the exam:
• If the determination is that the injured employee has not reached MMI, give the
reasons you believe the injured employee has not reached MMI [130.6(b)(1)].
These reasons should be either consistent with the ODG or sufficient rationale
should be provided why the ODG does
CS08-002A (5-08)
2
• If there was a prior certification of an MMI date by an authorized doctor and you find that the injured employee either was not at MMI or reached MMI on a different date, provide an explanation with clinical documentation to support your MMI date [130.6(b)(2)].
B. Impairment Rating (IR)
• The IR is based on the injured employee’s condition as of the MMI date or the statutory MMI date, which ever is the earliest [130.1(c)(3)]. The statutory MMI date is 104 weeks after the 8th day of disability.
• Impairment is any anatomic or functional abnormality or loss existing after MMI which results from a compensable injury and is reasonably presumed to be permanent [401.011(23)].
• The appropriate edition of the AMA Guides for certifying examinations on or after October 15, 2001, is the fourth edition (1st, 2nd, 3rd, or 4th printing, including corrections and changes as issued by the AMA prior to May 16, 2000) [130.1(c) (2)(B)(i)]. If you are addressing an injury in which the first certifying examination was made before October 15, 2001, the appropriate edition of the AMA Guides is the third edition [130.1(c)(2)(B)(ii)].
• If you were asked to address MMI in addition to IR and determine that the injured employee has not reached MMI at this time, you should not assign an IR [130.6(b)(4)]. Also, do not conduct an IR exam if you find the injured employee is not at MMI. Designated Doctors cannot be paid for IR exams for an injured employee that is not at MMI.
When documenting the exam:
• An IR is the percentage of permanent impairment of the whole body resulting from a compensable injury [401.011(24)]. Assign a whole body IR for the entire compensable injury. Also, rate all parts of the compensable injury and give a 0% IR for parts with no permanent impairment.
• Include a description and explanation of clinical findings related to each impairment and describe how the findings relate to the criteria in the AMA Guides [130.1(c)(3)(D)].
• If you are asked to address an IR in addition to an extent of injury dispute, provide multiple certifications that take into account the various interpretations of the extent of injuries [130.6(b)(5)].
C. Extent of Injury
• An extent of injury question arises when there is a dispute as to whether the claimed compensable injury or established compensable injury includes additional body parts or injury conditions.
• An injury means damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease [401.011(26)].
• An aggravation of a pre-existing condition is included in the compensable injury. An aggravation is an enhancement, acceleration, or worsening of the underlying condition.
CS08-002A (5-08)
3
• Further harm caused by medical care for the compensable injury is part of the compensable injury.
• If a condition arises out of or naturally results from the compensable injury, it extends to and is included in the compensable injury.
When documenting the exam:
• Include in your report the claimed compensable injury or established compensable injury as identified by the information provided by the requestor or other parties. That information should also describe the incident(s) that were a cause of the injury.
• For the extent of injury question, explain whether the work incident that was a cause of the injury was also a cause of the additional injury or condition, or whether the additional injury or condition was a natural progression of the injury.
D. Disability a Direct Result of the Injury
• Disability is an economic concept which means the inability because of a compensable injury to obtain and retain employment at wages equivalent to the pre-injury wage [401.011(16)].
• Direct result may be established by evidence that an injured employee sustained an injury with lasting effects and could not reasonably perform the pre-injury employment.
• The compensable or claimed injury need only be a cause of disability.
When documenting the exam:
• Include in your report the claimed compensable injury or established compensable injury as identified by the information provided by the requestor or other parties. From this information determine and state in your report what the compensable or claimed injury is. Base your direct result determination on your determination of the claimed compensable injury or established compensable injury.
• Explain how the employee’s inability to perform the pre-injury employment is or is not a direct result of the compensable injury.
E. Return to Work
When documenting the exam:
• Explain whether the injured employee can return to any form of employment, and if so, identify any restrictions.
• When applicable reference the MDA in determining the injured employee’s capacity to return to work and explain how the MDA was used in making the determination.
• If it is determined that the employee can return to work, with or without restrictions, file a Work Status Report (DWC Form-73) within seven days of the
CS08-002A (5-08)
4
exam [126.7(o)].
• If you change the injured employee’s work status, provide an explanation on the change in the employee’s condition to support the change in work status. Also, file a Work Status Report (DWC Form-73) within seven days of the exam [126.7(o)].
F. Return to Work for Supplemental Income Benefits
When documenting the exam:
• For the dates covered by the parties, if the injured employee was unable to perform any type of work in any capacity, specifically explain in your report how the injury causes a total inability to work.
• For the dates covered by the request, if the injured employee has any ability to work, describe what the injured employee can do and complete a Work Status Report (DWC Form-73).
G. Other Similar Issues
• When the compensability of the injury has been denied or disputed, determine if there is an injury resulting from the claimed incident.
• An injury means damage or harm to the physical structure of the body and a disease or infection naturally resulting from the damage or harm. The term includes an occupational disease [401.011(26)].
This reference guide refers to Texas Labor Code §401.011 (General Definitions), and 28 Texas Administrative Code §§126.7 (Designated Doctor Examinations: Requests and General Procedures), 130.1 (Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment), 130.6 (Designated Doctor Examinations for Maximum Medical Improvement and/or Impairment Rating), 137.10 (Return to Work Guidelines) and 137.100 (Treatment Guidelines).

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

IN THE SUPREME COURT OF TEXAS

NO. 09-0340

INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, PETITIONER,
v.
CARMEN MURO, RESPONDENT

ON PETITION FOR REVIEW FROM THE
COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS

Argued March 3, 2011
JUSTICE MEDINA delivered the opinion of the Court.
The Texas Workers’ Compensation Act authorizes the award of lifetime income benefits to
employees who lose certain body parts or suffer certain injuries in work-related accidents. The
specific body parts and injuries that qualify an employee for this type of benefit are enumerated in
section 408.161 of the act. See TEX. LAB. CODE § 408.161(a)(1)–(7). That enumeration includes,
among others, “loss [or lost use] of both feet at or above the ankle.” Id. § 408.161(a)(2), (b).
The question here concerns the standard for awarding lifetime income benefits under section
408.161. The employee in this case injured her hips, an injury and body part not enumerated in
section 408.161. The hip injuries, however, affected the use of her feet to the extent that she could
no longer work. Although her feet were not injured, per se, the employee was awarded lifetime
income benefits because her hip injuries prevented her from continuing to work. The issue then is
whether the statute authorizes the award of lifetime benefits for injuries to body parts not
enumerated in the statute, that is, whether the occurrence of one of the injuries identified in section
408.161 is a prerequisite to the award of lifetime benefits or whether other injuries that result in the
employee’s total and permanent incapacity, such as the hip injuries here, are enough.
Affirming the employee’s award of lifetime income benefits, the court of appeals concluded
that section 408.161 does not limit the award of lifetime income benefits to the specific injuries and
body parts enumerated in the statute. 285 S.W.3d 524, 529 (Tex. App.—Dallas 2009). We
conclude, however, that section 408.161 limits the award of lifetime benefits to the injuries
enumerated therein and that an employee does not lose the use of a body part, within the statute’s
meaning, without some evidence of an injury to that body part. Because there is no evidence that
the employee suffered one of the enumerated injuries in this case, we reverse and render.
I
Carmen Muro was seriously injured at work in 1996. She slipped and fell on a restroom
floor, injuring her hips, lower back, right shoulder, and neck. Her injuries resulted in several
surgeries, including the replacement of both her hips, a surgical repair of her right shoulder, and a
cervical fusion. Complications with her left hip required additional surgery and the replacement of
her first artificial hip. During this period, she received workers’ compensation benefits. Muro
eventually returned to her job in revenue management with her employer but left again in 1999
because she had difficulty walking from the parking lot and sitting at her desk. Unable to work,
Muro sought lifetime income benefits.
2
The workers’ compensation act enumerates certain catastrophic injuries for which an
employee may recover lifetime income benefits. TEX. LAB. CODE § 408.161(a). The enumerated
injuries include the loss of both feet, the loss of both hands, or the loss of a hand and a foot, among
others. Id. § 408.161(a)(2), (3), (4). Muro asserted that she was entitled to lifetime benefits because
her workplace accident caused her to lose the use of her right hand and both feet. Her employer’s
workers’ compensation carrier, the Insurance Company of the State of Pennsylvania, disagreed. It
refused to pay benefits beyond 401 weeks, asserting that Muro’s circumstances did not qualify her
for lifetime income. To resolve this dispute over benefits, the Texas Workers’ Compensation
Commission (“TWCC”) scheduled a contested case hearing.
The TWCC hearing officer concluded that Muro was entitled to lifetime income benefits
“based on the total and permanent loss of use of both feet at or above the ankle, or one foot at or
above the ankle and one hand at or above the wrist.” The TWCC appeals panel declined to reverse
the hearing officer’s decision, and the carrier, having exhausted the administrative process, appealed
to the district court. See id. § 410.251 (authorizing judicial review).
In the district court, a jury heard testimony from several witnesses regarding the nature and
extent of Muro’s injuries and disability. Dr. Hooman Sedighi, a TWCC-appointed physician,
testified that the injuries to, and surgeries on, Muro’s hips and right shoulder limited her ability to
use her legs and right arm and that these limitations likewise affected the use of her feet and right
hand. Muro’s feet and hands, however, were, according to the doctor, “functioning fine” and “near
normal function.” Dr. Sedighi’s neurological exam revealed Muro’s motor assessment to be “fourplus
out of five in both upper and lower extremities without any focal myotomal deficits.” He
3
explained that such testing utilizes a gradation that “goes from zero, meaning absolutely no motor
strength whatsoever, to five, being normal.” Dr. Sedighi further testified that pinprick or sensation
testing indicated that Muro had normal sensation in her feet and hands. Although her feet and right
hand were functional, Dr. Sedighi concluded that the injury to Muro’s shoulder and hips had
“diminished the ability to use both lower extremities and the right upper extremity” to the extent that
she “would be considered totally disabled from any and all work.”
Dr. Charles Crane, Muro’s treating physician, also testified that Muro was completely
disabled. In his opinion, the injury to Muro’s hips had impaired the use of her feet to the extent that
she could no longer obtain and retain employment requiring their use. Finally, Muro and her
daughter testified about Muro’s daily life, her limitations, and her inability to function without
assistance.
The jury found that Muro had the “total and permanent loss of use of both feet at or above
the ankle” and the “total and permanent loss of use of one foot at or above the ankle and one hand
at or above the wrist.” On this verdict, the district court rendered judgment for Muro, awarding her
lifetime income benefits and attorney’s fees. The insurance carrier appealed, and the court of
appeals affirmed the district court’s judgment. 285 S.W.3d 524. A petition for review to this Court
followed, and we granted the petition to consider the requirements of section 408.161 and Muro’s
award of lifetime income benefits.
II
Lifetime income is the greatest income benefit a worker can receive under the workers’
compensation act. In addition to lifetime income, the act provides for three lesser awards: temporary
4
income benefits, impairment income benefits, and supplemental income benefits. See TEX. LAB.
CODE §§ 408.101, 408.121, 408.142, 408.161. These benefits accrue when a compensable injury
causes a decrease in the employee’s earnings and are generally paid weekly by the insurance carrier
“as and when they accrue.” Id. §§ 401.011(25), 408.081(b). A claimant’s combined eligibility for
temporary income benefits, impairment income benefits, and supplemental income benefits
generally terminates 401 weeks after the date of injury. Id. § 408.083(a). But the 401-week
limitation does not apply to lifetime income benefits, which, as the name implies, are payable until
the injured employee’s death. Id. § 408.161(a).
Section 408.161(a) provides for the payment of lifetime income benefits under seven
circumstances:
(1) total and permanent loss of sight in both eyes;
(2) loss of both feet at or above the ankle;
(3) loss of both hands at or above the wrist;
(4) loss of one foot at or above the ankle and the loss of one hand at or above the
wrist;
(5) an injury to the spine that results in permanent and complete paralysis of both
arms, both legs, or one arm and one leg;
(6) a physically traumatic injury to the brain resulting in incurable insanity or
imbecility; or
(7) third degree burns that cover at least 40 percent of the body and require grafting,
or third degree burns covering the majority of either both hands or one hand and the
face.
Id. § 408.161(a)(1)–(7). The statute equates the loss of the use of an enumerated body part with its
loss, stating that “the total and permanent loss of use of a body part is the loss of that body part.”
Id. § 408.161(b). The statute does not elaborate further on what it means to lose the use of one of
5
the enumerated body parts, but we have written on the question under an earlier version of the
workers’ compensation act. See Travelers Ins. Co. v. Seabolt, 361 S.W.2d 204 (Tex. 1962).
III
In Seabolt, the Court “sought to clarify the law regarding the total loss of use” of specific
body parts identified in the workers’ compensation act. Angelina Cas. Co. v. Holt, 362 S.W.2d 99,
100 (Tex. 1962). The act at that time used the term “member” instead of “body part,” but otherwise
equated the loss of use of a member or body part with its loss, as it does now. See Seabolt, 361
S.W.2d at 205 (citing former act).1 Seabolt observed that the phrase “total loss of the use of a
member” embraced two concepts, one narrow, relating to the absence of any utility in the body part,
and the other “somewhat broader concept,” recognizing that the member might possess some utility
as a part of the body and yet “its condition be such as to prevent the workman from procuring and
retaining employment requiring the use of the injured member.” Id. at 205–06.
Seabolt then proposed the following definition:
A total loss of the 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.
1 The former act provided that for purposes of lifetime benefits “the total and permanent loss of use of a member
shall be considered to be the total and permanent loss of the member” and that the “total loss of use” of a member is
“equivalent to” and is to “draw the same compensation” as the “total and permanent loss of such member.” TEX. REV.
CIV. STAT.ANN. art. 8306, §§ 10(b), 11a (repealed by Acts 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7)–(9), 1989 Tex.
Gen. Laws 114). The act now provides that the “total and permanent loss of use of a body part is the loss of that body
part.” TEX. LAB. CODE § 408.161(b).
6
Id. at 206.2 The insurance carrier points out that this definition uses the adjective “injured” to
describe the affected member, indicating that the enumerated member must itself be injured before
a loss of use can occur. The carrier submits that an employee therefore does not lose the use of an
enumerated body part without some evidence of an injury to it.
The carrier requested a jury instruction on this principle, tendering the Seabolt definition,
but the court refused, submitting the following instruction instead: “‘Loss of use’ means the
condition of the body part is such that the Defendant cannot get and keep employment requiring the
use of that body part. Loss of use does not require amputation.” Because the court’s charge omitted
any requirement of injury to a statutory body part, the carrier complains that Muro was able to
recover lifetime benefits for the total loss of use of her feet and her right hand, even though these
body parts remained uninjured and functional.
Muro responds that the statute does not expressly require evidence of an injury to a statutory
body part but rather only the “total and permanent loss of use” of such body part. See TEX. LAB.
CODE § 408.161(b). Muro submits that any injury that results in the “total and permanent loss of
use” of a statutory body part is enough. Therefore, evidence of her hip and shoulder injuries and
their effect on her feet and right hand are enough to satisfy the statute.
The court of appeals agreed that Muro did not need evidence of an injury to her right hand
and feet to support the jury’s finding of lost use. 285 S.W.3d at 529. Citing five cases from other
courts of appeals, the court concluded “that injury to one part of the body can support a loss of use
2 This definition was subsequently incorporated into the Texas Pattern Jury Charges. See COMM. ON PATTERN
JURY CHARGES,STATE BAR OF TEX.,TEXAS PATTERN JURY CHARGES–WORKMEN’S COMPENSATION PJC 26.04 (1970).
7
finding for another part of the body, bringing the injury within the category of injuries encompassed
by the [lifetime income benefits] statute.” Id. (citing Galindo v. Old Republic Ins. Co., 146 S.W.3d
755, 760 (Tex. App.—El Paso 2004, pet. denied); Hartford Underwriters Ins. Co. v. Burdine, 34
S.W.3d 700,705-06 (Tex. App.—Fort Worth 2000, no pet.); Second Injury Fund of the State of Tex.
v. Avon, 985 S.W.2d 93, 95 (Tex. App.—Eastland 1998, pet. denied); Tex. Gen. Indem. Co. v.
Martin, 836 S.W.2d 636, 638 (Tex. App.—Tyler 1992, no writ); Tex. Employers’ Ins. Ass’n v.
Gutierrez, 795 S.W.2d 5, 6 (Tex. App.—El Paso 1990, writ denied)). In short, the court of appeals
concluded that Muro was entitled to lifetime income benefits because injuries to her hips and right
shoulder affected her ability to use her feet and right hand to the extent that she could not continue
to work.
A
Four of the five cases on which the court of appeals relies were decided under article 8306
of the Texas Revised Civil Statutes, an earlier version of the workers’ compensation act. See TEX.
REV. CIV. STAT. ANN. art. 8306 (repealed by Acts 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01, 1989
Tex. Gen. Laws 114). The Legislature repealed that version of the act when it reformed the
workers’ compensation system in 1989. These reforms created a new regulatory agency, benefits
structure, and dispute resolution process. See generally Tex. Workers’ Comp. Comm’n v. Garcia,
893 S.W.2d 504, 510–16 (Tex. 1995) (discussing changes). The changes were subsequently codified
in Title 5 of the Texas Labor Code. Act of May 22, 1993, 73rd Leg., R.S., ch. 269 § 1, 1993 Tex.
Gen. Laws 987, 1173.
8
Injuries occurring before January 1, 1991 (the effective date of the reform bill), are
commonly referred to as “old-law cases.” Injuries occurring on or after January 1, 1991, are
commonly referred to as “new-law cases.” Old-law cases can be useful in understanding the new
act, but their relevance to any particular provision requires a careful comparison of the old and new
law.
Although the new law significantly changed the workers’ compensation system, it did not
wholly replace the old law’s treatment of lifetime income benefits. The old law enumerated six
injuries for which lifetime income benefits were to be paid, describing the enumerated injuries as
conclusively establishing a worker’s total and permanent incapacity. See TEX. REV. CIV. STAT.
ANN. art. 8306, §§ 10(b), 11a (repealed by Acts 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7)–(9),
1989 Tex. Gen. Laws 114). Section 408.161 of the new law incorporates these same six injuries,
adding serious burns as a seventh specific injury qualifying for lifetime benefits. TEX. LAB. CODE
§ 408.161(a)(1)–(7). Section 408.161, however, no longer expressly equates the enumerated injuries
with total and permanent incapacity. Id. § 408.161. But, under either version of the act, lifetime
benefits are payable for certain statutory injuries, such as the loss of both feet, the loss of both hands,
or a combination of the two. Compare TEX. LAB. CODE § 408.161(a)(2)–(4), with TEX. REV. CIV.
STAT.ANN. art. 8306, § 11a(2)–(4) (repealed). And as already mentioned, both versions equate the
total and permanent loss of use of an enumerated body part with its loss. Compare TEX.LAB.CODE
§ 408.161(b), with TEX. REV. CIV. STAT. ANN. art. 8306, §§ 10(b), 11a (repealed).3
3 See supra note 1.
9
The respective laws differ, however, in their approach to other serious injuries, resulting in
a workers’ total incapacity. The new law does not directly address any other serious injuries not
enumerated in the act, while the old law does address the subject, but does so inconsistently.
The old law indicates that the six enumerated injuries are the exclusive means of proving a
worker’s entitlement to lifetime benefits, but the old law also states that the enumeration is a nonexclusive
list. For example, section 10(b) provides that, if the claimant’s injury is “one of the six
(6) enumerated in Section 11a,” the claimant is entitled to lifetime benefits; however, “in no other
case of total and permanent incapacity” can the claimant recover benefits for a period in excess of
401 weeks from the date of injury. TEX. REV. CIV. STAT. ANN. art. 8306, § 10(b) (repealed).
Section 10(b) thus indicates that the nature of the injury (its enumeration in the statute) is more
important than the extent of the incapacity resulting from the injury.
Section 11a, however, indicates the opposite. After enumerating the six injuries, that section
concludes with the following paragraph, commonly referred to as the “other loss” clause:
The above enumeration is not to be taken as exclusive but in all other cases
the burden of proof shall be on the claimant to prove that his injuries have resulted
in permanent, total incapacity.
Id. art. 8306, § 11a (repealed). In contrast to section 10(b), the “other loss” clause focuses on the
nature of the worker’s incapacity, rather than the injury itself, suggesting that the injury’s nature (its
enumeration in the statute) is less important than the degree of incapacity or disability the injury
produces. Clearly, the old law is conflicted on the purpose served by its six enumerated injuries.
Given this inconsistency in the old law, a number of courts opted to apply section 11a’s “other loss”
clause to extend lifetime benefits to workers whose non-enumerated injuries resulted in total and
10
permanent incapacity. See, e.g., City of Del Rio v. Contreras, 900 S.W.2d 809, 810–11 (Tex.
App.—San Antonio 1995, pet. denied) (holding the old law to be “at best ambiguous” on the issue
of exclusivity and resolving the ambiguity in the worker’s favor).
Most of the court of appeals’ case authority here is premised on this application of the “other
loss” clause. See 285 S.W.3d at 529 (citing Avon, 985 S.W.2d at 95 (jury’s finding of total and
permanent loss of use of both legs supports recovery of lifetime income under the provision for the
“loss of both feet at or above the ankle”); Martin, 836 S.W.2d at 638 (total and permanent loss of
use of a leg “necessarily inflicts” the loss of use of the attached foot at or above the ankle);
Gutierrez, 795 S.W.2d at 6 (finding of the total loss of use of a leg encompasses the loss of a foot
at or above the ankle)). The “other loss” clause, however, did not survive the act’s reformation.
Because this provision is not part of the current act, the old-law cases that apply it are neither
relevant nor useful to our understanding of section 408.161.
B
The court of appeals does cite one new-law case that applies section 408.161 under
circumstances similar to the present case. See Galindo, 146 S.W.3d 755. In Galindo, the worker
sought an award of lifetime income benefits after an exposure to sulfur dioxide gas rendered him
a “pulmonary invalid.” Galindo, 146 S.W.3d at 759–60. Pulmonary injuries are not mentioned in
section 408.161. See TEX. LAB. CODE § 408.161(a)(1)–(7) (enumerating the seven injuries that
qualify for lifetime benefits). Because the worker’s injury was not one enumerated in the statute,
the trial court summarily denied the worker’s claim. The court of appeals, however, reversed the
summary judgment, concluding that the worker’s pulmonary injury raised fact questions about
11
whether the worker had permanently lost the use of both hands, or both feet, “or even all four
extremities.” Galindo, 146 S.W.3d at 760. The Galindo court thus focused on the workers’ total
and permanent incapacity rather than the nature of the injury producing that incapacity, just as oldlaw
cases had done when applying the “other loss” clause. Similarly, the court here focuses on
Muro’s incapacity or disability and, as in Galindo, that disability stems from a non-statutory injury
or impairment.
Concepts of “impairment” and “disability” are not interchangeable under the new law,
however. The act defines “impairment” as “any anatomic or functional abnormality or loss existing
after maximum medical improvement that results from a compensable injury and is reasonably
presumed to be permanent.” TEX. LAB. CODE § 401.011(23). “Disability,” on the other hand, is
defined as “the inability because of a compensable injury to obtain and retain employment at wages
equivalent to the preinjury wage.” Id. § 401.011(16). The injuries enumerated in section 408.161
all result in impairments, but whether they also result in disabilities will “depend upon the nature
of the employee’s pre-injury job.” Mid-Century Ins. Co. v. Tex. Workers’ Comp. Comm’n, 187
S.W.3d 754, 760 (Tex. App.—Austin 2006, no pet.). Section 408.161 therefore defines lifetimeincome-
benefits eligibility in terms of specific impairments rather than general disabilities. See id.
(noting that § 408.161 defines eligibility without regard to the existence of a disability); cf. Consol.
Underwriters v. Langley, 170 S.W.2d 463, 464 (Tex. 1943) (noting that “[w]here injury results to
a particular member of the body, compensation for the loss of which is specifically provided by
statute, the liability of the insurer is limited to that amount, even though the loss of or injury to that
particular member actually results in total permanent incapacity of the employee to labor”).
12
The statute merely provides that lifetime income benefits are to be paid for the seven injuries
or conditions enumerated in section 408.161. Compare TEX.LAB.CODE § 408.161, with TEX.REV.
CIV. STAT.ANN. art. 8306, § 11a (repealed). Had the Legislature intended for total and permanent
incapacity to serve generally as the basis for the award of lifetime income benefits under the new
law, it would have retained the old law’s “other loss” clause or replaced the specific injuries and
conditions enumerated in section 408.161 with a disability system focused on the worker’s inability
to work. Because the Legislature chose both to retain the enumerated injuries and to repeal the
“other loss” clause, it clearly did not intend to continue the broader application of lifetime income
benefits formerly recognized by some courts of appeals under the old-law’s “other loss” clause.
C
The evidence in this case indicates that physical injuries to Muro’s hips, shoulder, back, and
neck limited or impaired her ability to use her feet and right hand. There was no evidence, however,
that these physical injuries extended to the hand or feet, either directly or indirectly as was the case
in Burdine, another decision on which the court of appeals relies. See 285 S.W.3d at 529 (citing
Burdine, 34 S.W.3d at 707).
In Burdine, the worker’s injury involved her back and “the associated nerve roots” which
extended “down the legs into the feet.” Burdine, 34 S.W.3d at 706. The treating physician testified
that the injury had caused a “muscular malfunction” rendering the worker unable to lift her feet, a
condition referred to as “footdrop.” Id. The physician further testified that the worker was totally
disabled and that the loss of her legs and feet at or above the ankles was a permanent condition for
which he had prescribed an electric wheelchair. Id. at 706–07. The injury in Burdine therefore
13
extended to the worker’s feet and resulted in her inability to “get and keep employment requiring
[their] use.” Burdine, 34 S.W.3d at 707 (quoting Seabolt’s definition of “total loss of use”). This
evidence of an injury to a body part enumerated in the statute distinguishes Burdine from the present
case.4
Under the old law, we said that an injury to one body part or system could extend to and
affect another body part or system and thereby amplify the benefits otherwise due an injured worker.
Tex. Employers’ Ins. Ass’n v. Wilson, 522 S.W.2d 192, 194 (Tex. 1975); Travelers Ins. Co. v.
Marmolejo, 383 S.W.2d 380, 381–82 (Tex. 1964). But Muro does not contend that her injuries
extended to her feet or right hand. The expert testimony confirms that they did not. Muro urges
instead that injuries to her hips, back, neck, and shoulder were sufficient to support the underlying
award of lifetime income benefits. We cannot agree.
The Legislature has limited the award of lifetime income benefits to the specific injuries and
body parts enumerated in section 408.161; nothing in the statute authorizes the substitution of other
injuries or body parts for those enumerated. TEX.LAB.CODE § 408.161. The injury to the statutory
body part may be direct or indirect, as in Burdine, but the injury must extend to and impair the
statutory body part itself to implicate section 408.161. Because there is no contention here that
Muro’s feet and right hand ceased to possess “any substantial utility as a member of the body”5 and
no evidence of injury to these body parts that prevented her from procuring and retaining
4 Burdine is also an old-law case, and the result in the case might also be justified under the former act’s “other
loss” clause. TEX. REV. CIV. STAT. ANN. art. 8306, § 11a (repealed).
5 Seabolt recognized this as an alternative definition for the “total loss of use of a member.” The Division of
Workers’ Compensation adjudicated the “substantial utility” theory of recovery against Muro, and it is not an issue in
this appeal. See Seabolt, 361 S.W.2d at 205–06.
14
employment requiring their use, we conclude that Muro is not entitled to the award of lifetime
income benefits. See Seabolt, 361 S.W.2d at 206.
III
The insurance carrier also complains about the award of attorney’s fees. An insurance carrier
that seeks judicial review of a TWCC appeals panel’s final decision regarding, among other things,
benefits eligibility is liable for reasonable and necessary attorney’s fees incurred by a prevailing
claimant in the appeal. TEX. LAB. CODE § 408.221(c). Muro was accordingly awarded attorney’s
fees because she prevailed in the district court, and the court of appeals affirmed that award. Our
determination that Muro is not entitled to lifetime income benefits under section 408.161 requires
that we also reverse her award of attorney’s fees.
* * *
The court of appeals’ judgment is reversed and judgment is rendered denying the claimant
an award of lifetime income benefits under section 408.161 of the workers’ compensation act.
_____________________________
David M. Medina
Justice
Opinion Delivered: August 26, 2011

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

July 25, 1988

Mr. Joseph C. Gagen

Chairman

Texas Industrial Accident Board

200 East Riverside

Austin, Texas 78704

Opinion No. JM-931

Re: Authority of the Industrial Accident Board to approve a settlement agreement that would terminate liability for future medical expenses (RQ-1353)

Dear Mr. Gagen:

You ask:

Does the authority of the Industrial Accident Board over medical expenses incurred after a final award, judgment, or settlement, extend to approving compromise settlement agreements that would terminate all liability for future medical expenses?

The Industrial Accident Board (the “board”) is an administrative body created by statute and possessing only those powers conferred on it by statute. Commercial Casualty Insurance Co. v. Hilton, 87 S.W.2d 1081 (Tex.1935). V.T.C.S. art. 8307, s 1.

We believe that the determination of the board’s authority to approve a compromise settlement agreement subsequent to a final award of the board or a judgment of a court is governed by different statutory provisions than those apposite to the determination of the board’s authority to approve compromise settlement agreement subsequent to an original compromise settlement agreement. We will therefore treat these two elements of your question separately.

AUTHORITY OF BOARD TO APPROVE COMPROMISE SETTLEMENT AGREEMENT REGARDING FUTURE

MEDICAL EXPENSES SUBSEQUENT TO FINAL AWARD OF BOARD OR JUDGMENT OF COURT.

Attorney General Opinion JM-361 (1985) dealt with the question of whether the board may approve, while a case is pending before the board, a compromise settlement agreement which terminates liability for future medical expenses, if the carrier had admitted liability and the injury was one conclusively held to be total and permanent pursuant to article 8306, section 11a, V.T.C.S.

Noting that section 12 of article 8307, V.T.C.S., authorized the board to approve a compromise settlement agreement “[w]here the liability of the association or the extent of the injury is uncertain,” JM-361 concluded that where the carrier had admitted liability and where the injury was one for which as a matter of law incapacity was total and permanent, there was no “uncertainty” as to liability or extent of injury within the meaning of section 12. The opinion ruled that uncertainty as to amounts of future medical expenses was not “uncertainty” within the meaning of section 12 such that the board would be authorized to approve a compromise settlement agreement regarding only future medical expenses, where liability and extent of injury had been established.

In our opinion, it follows from the ruling in JM-361 that the board has no authority to approve a compromise settlement agreement that would terminate liability for future medical expenses after a final award of the board or a judgment of a court, because the proceedings of the board or a court in rendering a final award or judgment would necessarily have determined “liability” and “extent of injury” such that there would be no remaining “uncertainty” within the meaning of section 12 which would authorize the board to approve a compromise settlement agreement regarding future medical expenses. That a final award by the board or a judgment of a court [FN1] would have resolved uncertainty as to liability or extent of injury is apparent from a reading of pertinent parts of section 5 of article 8307:

All questions arising under this law, if not settled by agreement of the parties interested therein and within the provisions of this law, shall, except as otherwise provided, be determined by the Board. Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall within twenty (20) days after giving such notice bring suit in the county where the injury occurred, or in the county where the employee resided at the time the injury occurred (or, if such employee is deceased, then in the county where the employee resided at the time of his death), to set aside said final ruling and decision, and said Board shall proceed no further toward the adjustment of such claim, other than hereinafter provided…. Whenever such suit is brought, the rights and liability of the parties thereto shall be determined by the provisions of this law. (Emphasis added.)

The liability of the association and the extent of the injury are the two key issues to be determined by the board or by a court in a worker’s compensation case. We find no provision of law relieving the board or a court from the duty to determine liability and extent of injury in rendering a final award or judgment. Once liability and extent of injury are finally determined by the board or by a court, there would remain no uncertainty as to the liability or extent of injury that would authorize the board under section 12 to approve a subsequent compromise settlement agreement regarding future medical expenses.

Moreover, section 5 makes the only specific provision for the board’s handling of medical expense claims after a final award by the board or a judgment of a court.

Notwithstanding any other provision of this law, as amended, no award of the Board, and no judgment of the court, having jurisdiction of a claim against the association for the cost or expense of items of medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances furnished to an employee under circumstances creating a liability therefor on the part of the association under the provisions of this law, shall include in such award or judgment any cost or expense of any such items not actually furnished to and received by the employee prior to the date of said award or judgment. The first such final award or judgment rendered on such claim shall be res judicata of the liability of the association for all such cost or expense which could have been claimed up to the date of said award or judgment and of the issue that the injury of said employee is subject to the provisions of this law with respect to such items, but shall not be res judicata of the obligation of the association to furnish or pay for any such items after the date of said award or judgment. After the first such final award or judgment, the Board shall have continuing jurisdiction in the same case to render successive awards to determine the liability of the association for the cost or expense of any such items actually furnished to and received by said employee not more than six (6) months prior to the date of each such successive award, until the association shall have fully discharged its obligation under this law to furnish all such medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances to which said employee may be entitled; provided, each such successive award of the Board shall be subject to a suit to set aside said award by a court of competent jurisdiction, in the same manner as provided in the case of other awards under this law. (Emphasis added.)

The board possesses only those powers conferred on it by statute. We have found no provisions authorizing the board to approve compromise settlements subsequent to board awards or court judgments, or to take other action regarding future medical expenses. Section 5 provides a procedure the board may utilize for the disposition of claims for medical expenses incurred subsequent to a board award or court judgment.

AUTHORITY OF THE BOARD TO APPROVE COMPROMISE SETTLEMENT AGREEMENTS REGARDING

FUTURE MEDICAL EXPENSES SUBSEQUENT TO AN ORIGINAL COMPROMISE SETTLEMENT

AGREEMENT.

We note at the outset that we have found no reported cases dealing with a compromise settlement agreement made subsequent to an original compromise settlement agreement. Many courts have stated that once an original compromise settlement agreement is approved by the board, the agreement is binding on the parties until the original settlement agreement is lawfully set aside by a court. See, e.g., Luersen v. Transamerica Insurance Co., 550 S.W.2d 171 (Tex.Civ.App.–Austin 1977, writ ref’d n.r.e.); Pearce v. Texas Employers Insurance Association, 403 S.W.2d 493 (Tex.Civ.App.–Dallas 1966, writ ref’d n.r.e.), reh’g denied, 412 S.W.2d 647 (Tex.1967), and the authorities cited therein.

In this vein, section 12b of article 8307, V.T.C.S., now specifically provides that the board “shall have no jurisdiction to rescind or set aside any compromise settlement agreement approved by the board or any agreed judgment approved by the court.” Acts 1983, 68th Leg., ch. 501, section 1.

Section 12b now also provides a specific procedure for the board’s resolving disputes as to medical expenses arising pursuant to compromise settlement agreements approved by the board or agreed judgments approved by the court:

Whenever in any compromise settlement agreement approved by the board or in any agreed judgment approved by the court, any dispute arises concerning the payment of medical, hospital, nursing, chiropractic or podiatry services or aids or treatment, or for medicines or prosthetic appliances for the injured employee as provided in Section 7, Article 8306, Revised Statutes, as amended, or as provided in such compromise settlement agreements or agreed judgments, all such disputes concerning the payment thereof shall be first presented by any party to the Industrial Accident Board within six months from the time such dispute has arisen (except where ‘good cause’ is shown for any delay) for the board’s determination….

It is our opinion that approval of a compromise settlement agreement regarding medical expenses subsequent to an original approved compromise settlement agreement would necessarily have the effect of rescinding or setting aside, at least to some extent, the original compromise settlement agreement and would thus be barred by section 12b. Section 12b provides a procedure for the board’s dealing with questions of medical expenses pursuant to a compromise settlement agreement or agreed judgment approved by a court.

SUMMARY

After a final award of the board, court judgment, or compromise settlement agreement which has not been lawfully set aside, the Industrial Accident Board has no authority to approve a compromise settlement agreement to terminate liability for future medical expenses.

Very truly yours,

Jim Mattox

Attorney General of Texas

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

To: Texas Workers’ Compensation System Participants

From: Patricia Gilbert, Executive Deputy Commissioner for Operations

Date: July 14, 2015

RE: Medical Records for Designated Doctor Examinations

The Division of Workers’ Compensation (DWC) reminds all system participants that 28 Texas Administrative Code § 127.10(a)(3) requires treating doctors and insurance carriers to provide all required medical records and any analyses to the designated doctor no later than three business days prior to a designated doctor examination. Additionally, if the required medical records are not received within one business day prior to an examination, the designated doctor shall reschedule the exam to occur no later than 21 days after receipt of the records. A new e-mail address for system participants to request assistance with medical records is listed at the end of this memorandum. Failure to provide medical records in accordance with the agency rule is an administrative violation and prevents the designated doctor from completing a certifying examination of the injured employee. Rescheduled examinations may result in unnecessary delays when processing a claim and bring increased cost to the system. Designated doctors are encouraged to reach out to the DWC for assistance obtaining medical records prior to examinations. DWC staff may contact treating doctors and insurance carriers that have not yet provided a complete set of required medical records to the designated doctor at any time before a scheduled examination, and will take necessary action to ensure all required medical records are received. The DWC asks all insurance carriers and treating doctors for full cooperation when contacted for assistance in obtaining medical records. Please contact DWC staff via e-mail at DDRecords@tdi.texas.gov for any questions.

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.