Grace Period for Texas Employers Without Workers’ Compensation Insurance Coverage–Texas Non Subscriber Defense Attorneys

The Texas Department of Insurance, Division of Workers’ Compensation (DWC) is providing a grace period for employers without workers’ compensation insurance coverage or that terminated their coverage (non-subscribers) to report their non-coverage status to DWC without penalty. This grace period also extends to non-subscribers with five or more employees that have not previously reported on-the-job injuries, illnesses, and fatalities to DWC. Historically, non-subscriber reporting rates are low, and DWC is offering this grace period to increase compliance with required state reporting. This grace period allows non-subscribers that have not previously reported their non-coverage status, to submit the DWC Form-005, Employer Notice of No Coverage or Termination of Coverage (DWC Form-005), without an administrative penalty during the February 1, 2016, through April 30, 2016, reporting period.

Additionally, this grace period also allows non-subscribers with five or more employees that have not previously reported their injuries, illnesses, and fatalities, to submit the DWC Form-007, Employer’s Report of Non-Covered Employee’s Occupational Injury or Disease (DWC Form-007) without an administrative penalty for injuries, illnesses, and fatalities occurring on or after May 1, 2016. By law, non-subscribers must annually notify DWC of their decision not to obtain workers’ compensation insurance coverage by submitting the DWC Form-005 and must also report each onthe-job injury, occupational illness, or fatality resulting in more than one day of lost time to DWC by filing DWC Form-007. Nonsubscribers that fail to comply with state requirements are subject to administrative penalties. Non-subscribers can file the DWC Form-005 with DWC online, by fax, or by mail. The DWC Form-007 may be filed by fax or by mail. Non-subscriber Reporting Requirements A non-subscriber must file the DWC Form-005, Employer Notice of No Coverage or Termination of Coverage to DWC:  between February 1 and April 30 each year;  within 30 days of hiring its first employee; or  within 10 days of DWC’s request. Non-subscribers with five or more employees must report each fatality, occupational disease, and onthe-job injury that results in more than one day of lost time to the DWC.

Non-subscribers must submit the DWC Form-007, Employer’s Report of Non-Covered Employee’s Occupational Injury or Disease to the DWC within the seventh day of the month following the month in which:  the death occurred;  the employee was absent from work for more than one day as a result of the on-the-job injury; or  the employer acquired knowledge of the occupational disease. Additional information on non-subscriber reporting requirements is available on the TDI website  at www.tdi.texas.gov/wc/employer/index.html.

 

 

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

Martindale AVtexas[2]

TDI-DWC Informal Posting: Attorneys’ Fees Rules for Texas Workers’ Compensation Lawyers

Texas Workers’ Compensation Attorneys and System Stakeholders should be aware of a new TDI-DWC Informal Posting: Attorneys’ Fees Rules for Texas Workers’ Compensation Lawyers:

Informal Posting: Attorneys’ Fees Rules

To: Workers’ Compensation System Participants

From: Emily McCoy, Director, Office of Workers’ Compensation Counsel

Date April 1, 2016

RE: Informal Posting: Amended 28 TAC §152.3 regarding approval or denial of fee by the commission, amended §152.4, regarding guidelines for legal services provided to claimants and carriers, and new §152.6, regarding attorney withdrawal. The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) is accepting comments on an informal working draft of amended 28 Texas Administrative Code (TAC) §152.3, §152.4, and new §152.6, available at http://www.tdi.texas.gov/wc/rules/drafts.html. The informal working draft was posted on the TDI-DWC website on April 1, 2016 and the comment period closes on April 29, 2016 at 5 p.m. Central time. The informal working draft is not a formal rule proposal and comments received will not be treated as formal public comments for the purposes of the Administrative Procedure Act. There will be an opportunity to formally comment once the rule is proposed and published in the Texas Register. Informal comments may be submitted by email to InformalRuleComments@tdi.texas.gov or by mail or delivery to: Texas Department of Insurance, Division of Workers’ Compensation Maria Jimenez Workers’ Compensation Counsel MS – 4D 7551 Metro Center Drive, Suite 100 Austin, Texas 78744 -1645 Amendments to §152.3, concerning approval or denial of a fee by the commission, and §152.4, concerning guidelines for legal services provided to claimants and carriers, update the attorney fee rules for the first time since 1991. The amendments reflect changes in the industry over the 25 years since the rules were originally adopted, and are designed to ensure there is quality representation available within the workers’ compensation system. Additionally, they allow more time at the beginning of a dispute for preparation and case management in order to encourage early resolution of claim disputes. New §152.6, concerning attorney withdrawal, requires attorneys to comply with the Texas Disciplinary Rules of Professional Conduct when withdrawing from a claim and helps to prevent an attorney’s withdrawal from having a material adverse effect on the client.

 

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

Martindale AVtexas[2]

Traumatic Brain Injury, Claim of Lifetime Benefits in Texas Workers’ Compensation Litigation

Opinion issued February 9, 2016
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-14-00508-CV
———————————
FRANCISCO CHAMUL, Appellant
V.
AMERISURE MUTUAL INS. CO., Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2012-14219
O P I N I O N
Francisco Chamul suffered a serious work-related injury and filed a
worker’s compensation claim seeking lifetime-income benefits. His application
was denied. After completing the administrative review process, the trial court
granted summary judgment against him.
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In two issues, he contends that the trial court erred by (1) applying an overly restrictive definition to an undefined statutory term—imbecility—in support of summary judgment for the insurer and (2) finding that his treating physician’s affidavit qualifies as a sham affidavit and therefore is incompetent summary judgment evidence.
We reverse and remand.
Background
A. Legal background concerning “imbecility” as statutory standard for benefits
The Labor Code provides for lifetime-income benefits for employees who suffer certain devastating injuries. TEX. LAB. CODE ANN. § 408.161(a)–(b) (West 2015). Among the list of qualifying injuries is “a physically traumatic injury to the brain resulting in incurable insanity or imbecility.” Id. § 408.161(a)(6). This basis for lifetime-income benefits dates back to 1917. See Act of Mar. 28, 1917, 35th Leg., R.S., ch. 103, § 1, Part I, sec. 11a, 1917 Tex. Gen. Laws 269, 275; see also Lumbermen’s Reciprocal Ass’n v. Gilmore, 258 S.W. 268, 269 (Tex. Civ. App.—Texarkana 1924) (quoting imbecility provision from workers’ compensation statute of 1917), aff’d, 292 S.W. 204 (Tex. 1927). Despite the long-standing use of “imbecility” as a standard, the Labor Code does not define the term, and its meaning has proven to be anything but clear.
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Further complicating the matter is that the terminology used to address and differentiate between various levels of intellectual deficits is constantly evolving. See Caroline Everington, Challenges to Conveying Intellectual Disabilities to Judge and Jury, 23 WM. & MARY BILL RTS. J. 467, 484–85 (2014). Terms are coined and then fall in disfavor. “Feeble-minded” and “imbecile” were used in the early twentieth century. See Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584 (1927) (using both terms interchangeably in much-criticized opinion while discussing woman subject to involuntary sterilization); Tomoe Kanaya et al., The Flynn Effect and U.S. Policies: The Impact of Rising IQ Scores on American Society Via Mental Retardation Diagnosis, 58 AM. PSYCHOLOGIST 778, 788 (2003) (noting that intellectual-capacity labels are “continually supplanted by newer ones over time. For example, terms such as imbecile and feeble-minded were considered scientific and acceptable in the first quarter of the 20th century but were replaced after time with successive euphemisms.” (emphasis omitted)). A more recent example of changing terminology is the shift from using the term “mentally retarded” to “intellectually disabled.” See Ex parte Cathey, 451 S.W.3d 1, 5 (Tex. Crim. App. 2014).
Whatever meaning the Legislature attached to the term “imbecility” when it included the standard in the lifetime-income-benefits provision in 1917, it is clear that the term has little medical significance today. The medical experts in this case
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agree that the term “imbecility” is no longer part of the language of medicine for diagnosing patients or developing treatment plans to address their afflictions. Chamul’s treating physician stated that the term “imbecility” is “offensive” and not used by members of the medical profession to her knowledge. Amerisure’s selected neuropsychiatric expert included in his report the following statement: “Please note that use of imbecility or incurable insanity is pejorative. I only use it because it is administratively/statutorily required and does not reflect my personal or professional language use.”
The Legislature updates statutes to remove “demeaning” terms and phrases and replace them with more acceptable terms, but it has not yet chosen to retire “imbecility” as a standard for benefits. Cf. TEX. GOV’T CODE ANN. § 392.001 (West 2013) (stating that demeaning terms create invisible barriers to inclusion of individuals with disabilities); TEX. GOV’T CODE ANN. § 325.0123 (West 2013) (discussing statutory revisions to use phrase “intellectual disability” instead of “mental retardation”). We can infer nothing from this inaction because a “legislature legislates by legislating, not by doing nothing, not by keeping silent.” Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex. 1983) (quoting Wycko v. Gnodtke, 105 N.W.2d 118, 121–22 (Mich. 1960)). “[L]egislative silence . . . may reflect many things, including implied delegation to the courts or administrative agencies, lack of consensus, oversight, or mistake.” Brown v. De La Cruz, 156
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S.W.3d 560, 566 (Tex. 2004). Here, we know only that the terminology has remained unchanged.
Charging the hearing officers and the courts with construing a statutorily undefined term that is now outdated and considered offensive presents challenges. Adding to the challenge is the dearth of case law attempting to define the term. Before turning to that body of law, we consider the evidence of Chamul’s neurocognitive injury.
B. Factual background concerning Chamul’s injury and his diagnoses
While working as a brick mason for Camarat Masonry, Francisco Chamul fell from a scaffold onto a concrete slab more than 10 feet below. He suffered a serious head injury. Specifically, he had multiple fractures of his skull, a left subdural hematoma with diffuse cerebral edema, and intercranial pressure that required bilateral decompression craniectomies. He also suffered spinal cord injuries, fractured ribs, and more. He was transported to Ben Taub Medical Center where he remained in a coma for 36 days.
Chamul was transferred to the Mentis Neuro-Rehabilitation Facility for rehabilitation. Approximately six months later, he underwent his first extensive neuropsychological evaluation performed by Dr. Francisco Perez. Dr. Perez diagnosed Chamul with neurocognitive problems, including significant memory
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deficiencies that negatively impacted his visual memory, ability to learn, and ability to retain new verbal information.
Chamul’s next evaluation was by Dr. Cindy B. Ivanhoe at The Institute for Rehabilitation and Research in Houston. Dr. Ivanhoe testified that Chamul suffers from seizures and cognitive problems that affect his memory, thought organization, and understanding interpersonal dynamics. Chamul is not capable of living independently, needs to be supervised, is unable to operate a motor vehicle, and is permanently unable to return to competitive employment as a result of his brain injury. She further stated: “It is my opinion that Francisco Chamul is permanently mentally incapacitated because of his work related injuries.”
Approximately two years after beginning treatment with Dr. Ivanhoe, Chamul was examined by Dr. Stanley Hite, a doctor appointed by the Division of Workers’ Compensation. According to Dr. Hite, Chamul functions at the level of an 11 or 12 year-old, is unable to care for himself, and will need a caretaker for the rest of his life. Dr. Hite opined that Chamul’s condition will not improve.
Chamul was also examined by Wallace Stanfill, a certified rehabilitation counselor. After assessing Chamul, Stanfill concluded that he ‘has experienced a total and permanent loss of the functioning of his brain from a vocational standpoint.” While agreeing that Chamul “is marginally functional in many basic areas,” Stanfill opined that he “is not considered to be cognitively able to engage in
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any degree of competitive work, even unskilled employment.” Instead, “[h]is current level of functioning would [be] at best more in keeping with sheltered employment,” which is consistent with Dr. Ivanhoe’s assessment.
Felix Chamul is Chamul’s father and primary caregiver. He stated in his affidavit that his son is unable to manage his medical and financial affairs and needs assistance with dressing and grooming. He believes that Chamul is unemployable.
Amerisure retained neuropsychiatrist Dr. Andrew Brylowski to examine Chamul. Dr. Brylowski concluded that, although Chamul had a significant, traumatic brain injury with diffuse brain swelling, he “did not sustain any type of irreversible brain injury which would rise to the level of rendering him permanently unemployable because of eliminating his ability to engage in a range of usual cognitive processes.” Dr. Brylowski diagnosed Chamul with “malingering,” concluding that he inaccurately reported information during the examination. Dr. Brylowski opined that “any cognitive, conative, neuroendocrine, sensory and motor function, or brainstem/cranial nerve function can be treated and managed to help [Chamul] reintegrate into the workforce.”
C. The definition of “imbecility” used in Chamul’s administrative and judicial proceedings thus far
At the contested-hearing level, the hearing officer noted that the Labor Code does not define “imbecility” and concluded that past administrative appeals panels
8
and courts have adopted a definition of “imbecility” from a dictionary published in 1991; this definition “contemplates that the affected individual will not only require supervision in the performance of routine tasks, but will have a mental age1 of three to seven years.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991) In support of that statement, the hearing officer cited two sources: Liberty Mutual Insurance Co. v. Camacho, 228 S.W.3d 453 (Tex. App.—Beaumont 2007, pet. denied) and Appeals Panel Decision No. 961340, 1996 WL 487735 (Aug. 21, 1996).
1 The Supreme Court discussed the concept of “mental age” in Penry v. Lynaugh, 492 U.S. 302, 339–40, 109 S. Ct. 2934, 2958 (1989), abrogated by Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002):
Mental age is “calculated as the chronological age of nonretarded children whose average IQ test performance is equivalent to that of the individual with mental retardation.” Such a rule should not be adopted today. . . . [T]he “mental age” concept, irrespective of its intuitive appeal, is problematic in several respects. As the AAMR [American Association for Mental Retardation—now American Association on Intellectual Developmental Disabilities] acknowledges, “[t]he equivalence between nonretarded children and retarded adults is, of course, imprecise.” The “mental age” concept may underestimate the life experiences of retarded adults, while it may overestimate the ability of retarded adults to use logic and foresight to solve problems. The mental age concept has other limitations as well. Beyond the chronological age of 15 or 16, the mean scores on most intelligence tests cease to increase significantly with age. As a result, “[t]he average mental age of the average 20 year old is not 20 but 15 years.”
Not surprisingly, courts have long been reluctant to rely on the concept of mental age as a basis for exculpating a defendant from criminal responsibility.
(Internal citations and parentheticals omitted.)
9
The hearing officer considered the evidence—which included Dr. Hite’s opinion that, while Chamul is unable to care for himself, he functions at the level of an 11 or 12 year-old—and stated his determination as follows:
The evidence presented at the Contested Case Hearing reveals that although Claimant likely meets the initial portion of the definition [that “the affected individual will . . . require supervision in the performance of routine tasks”], Claimant has not been shown to exhibit the mental age range in question [“a mental age of three to seven years”].
Thus, the decision of the hearing officer was that Chamul was not entitled to lifetime-income benefits for his work-related injury. Chamul was informed that the Appeals Panel was allowing the hearing officer’s decision to become final. Chamul sought judicial review of the decision.
Both Chamul and the insurer, Amerisure Mutual Insurance Company, filed summary-judgment motions with the trial court. Amerisure highlighted the issue presented in the competing motions: “The crux of the cross motions for summary judgment in this case turn on the definition of ‘imbecility.’” Amerisure argued that “imbecility” should be interpreted to mean a “feebleminded person having a mental age of three to seven years . . . .” Chamul, on the other hand, argued for a more general definition: “an irreversible brain injury, which renders the employee permanently unemployable and so affects the non-vocational quality of his life by eliminating his ability to engage in a range of usual cognitive processes.”
10
Amerisure also argued that the affidavit of Chamul’s treating physician, Dr. Ivanhoe, should be disregarded as incompetent summary-judgment evidence because it is a sham affidavit.
The trial court applied Amerisure’s “imbecility” definition. The court also found that Dr. Ivanhoe’s affidavit is a sham affidavit and, as a result, disregarded it. Based on the remaining evidence, including various physicians’ statements that Chamul had not been reduced to a mental age of three to seven years, but, instead, closer to a mental age of 11 years, the trial court granted Amerisure’s summary-judgment motion and denied Chamul’s. Thus, Chamul remained without lifetime-income benefits.
Chamul timely appealed.
Summary Judgment
Both parties moved for summary judgment on the issue whether Chamul’s traumatic brain injury resulted in “imbecility” to meet the requirement for lifetime-income benefits.
A. Standards of review
A party moving for Rule 166a(c) summary judgment must conclusively prove all of the elements of its cause of action as a matter of law. TEX. R. CIV. P. 166a(c); Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001); Rhone Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). A
11
defendant moving for summary judgment on a cause of action asserted against it must negate as a matter of law at least one element of the plaintiff’s theory of recovery or plead and prove each element of an affirmative defense. Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
“When both sides move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review both sides’ summary judgment evidence and determine all questions presented.” FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); accord Gillebaard v. Bayview Acres Ass’n, 263 S.W.3d 342, 348 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). The reviewing court should render the judgment that the trial court should have rendered. See Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004); Comm’rs Court of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); Gillebaard, 263 S.W.3d at 347–48. The propriety of summary judgment is a question of law. We, therefore, review the trial court’s grant of one party’s motion and denial of the other’s using the de novo standard. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
We review issues of statutory construction de novo as well. Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). We rely on the plain meaning of the text chosen by the Legislature. Id. “We use
12
definitions prescribed by the Legislature and any technical or particular meaning the words have acquired.” City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). Otherwise, we construe the statute’s words according to their plain and common meaning unless a contrary intention is apparent from the context or such a construction leads to absurd results. Id. at 625–26; Fresh Coat, Inc. v. K–2, Inc., 318 S.W.3d 893, 901 (Tex. 2010) (“Presuming that lawmakers intended what they enacted, we begin with the statute’s text, relying whenever possible on the plain meaning of the words chosen.”); Fitzgerald v. Advanced Spine Fixation Sys., 996 S.W.2d 864, 866 (Tex. 1999) (explaining that “it is a fair assumption that the Legislature tries to say what it means . . . .”). The Texas Supreme Court has held that the Texas Workers’ Compensation Act should be liberally construed to confer benefits upon injured workers. Lujan v. Houston Gen. Ins. Co., 756 S.W.2d 295, 297 (Tex. 1988).
B. The source of the mental-age based definition of “imbecility” that was applied to Chamul’s claim
The mental-age based definition of imbecility that was found in the 1991 dictionary entry and later adopted by Chamul’s hearing officer and relied on by the trial court to deny his claim appears to slice out an age range (i.e., three to seven years), thereby indicating that higher and lower age ranges exist. There is a historical context to this stratification. See Michael Clemente, Note, A Reassessment of Common Law Protections for “Idiots,” 124 YALE L.J. 2746,
13
2756–58, 2763–68 (2015). It can be traced to the now-repudiated eugenics movement of the late-nineteenth to mid-twentieth century. Id. at 2763–64; see Sarah Fender, BIOETHICS IN HISTORICAL PERSPECTIVE 11 (Palgrave MacMillan 2013).
Eugenics was a social movement that sought to control human heredity. See BIOETHICS IN HISTORICAL PERSPECTIVE at 11. Its adherents emphasized the genetic source of traits and believed that good traits could be accentuated in a population by good breeding and bad traits could be minimized by selective sterilization. Jennifer S. Geetter, Coding for Change: The Power of the Human Genome to Transform the American Health Insurance System, 28 AM. J. L. & MED. 1, 1–19 (2002) (discussing eugenics movement as precursor to scientific study of genetics). These ideas were eventually repudiated, but, before that would occur, many social and governmental programs were enacted based on these beliefs. See id. One was the government-mandated involuntary sterilization program that led to the infamous 1927 case of Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584 (1927).2 There, the United States Supreme Court held that a “feeble-minded” woman, who was said to have been born to a “feeble-minded” mother and to have had a “feeble-minded”
2 See Fieger v. Thomas, 74 F.3d 740, 750 (6th Cir. 1996) (noting that Buck has been repudiated except for its discussion of selective enforcement).
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child out-of-wedlock,3 did not have constitutional protection against involuntary sterilization. 274 U.S. at 205–07, 47 S. Ct. at 584–85. In a harshly worded opinion, Justice Holmes wrote that “[t]hree generations of imbeciles is enough.” 274 U.S. at 207, 47 S. Ct. at 585.
While Justice Holmes and some others in that era used the terms “feeble-minded” and “imbecile” interchangeably,4 a prominent eugenicist, Henry Herbert Goddard, sought to differentiate between levels of deficits. He created a three-tier system for classifying “feeble-minded” individuals’ cognitive abilities. See A Reassessment of Common Law Protections for “Idiots,” 124 YALE L.J. at 2763 (citing Henry Herbert Goddard’s Report on Committee on Classification of Feeble-Minded, 15 J. PSYCHO-ASTHENICS 61–67 (1910)). Under Goddard’s system, “idiots” had an IQ of 25 or below with a calibrated mental age of up to two years; “imbeciles” had an IQ between 25 and 50 with a calibrated mental age of three to
3 Scholarly research later revealed that neither the plaintiff nor her daughter had low IQ. Instead, the plaintiff’s foster parents were intent to institutionalize her after their nephew raped her, which led to the birth of a daughter, who actually excelled in school until her young death. See Paul A. Lombardo, Three Generations, No Imbeciles: New Light on Buck v. Bell, 60 N.Y.U. L. REV. 30, 53–54, 61 (1985).
4 See James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal Defendants, 53 GEO. WASH. L. REV. 414, 421 n.38 (1985) (stating that terms “‘idiots,’ ‘imbeciles,’ ‘morons,’ and ‘feebleminded,’ [were] all used to describe different degrees of mental retardation. The terminology was used without precise uniformity . . . . On occasion each term has been used as an umbrella term to include all levels of disability.”); see also A DICTIONARY OF MEDICAL SCIENCE 428 (Lea Brothers & Co., 23d ed. 1903) (defining “feeblemindedness” as “[w]eak mental condition[] in which are included dementia, idiocy, and imbecility.”).
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seven years; and “morons” had an IQ between 50 and 75 with a calibrated mental age of eight to 12 years of age. Id. at 2763 (again citing Journal of Psycho-Asthenics 1910 Report).
Some dictionaries published after this eugenics era incorporated the tier system into their definitions of these words. See, e.g., MCGRAW-HILL DICTIONARY OF SCIENTIFIC AND TECHNICAL TERMS 1052 (6th ed., 2003) (defining “imbecile” as “person of middle-grade mental deficiency; the individual’s mental age is between 3 and 7 years”).
Over time, the eugenics movement lost support and was repudiated. BIOETHICS IN HISTORICAL PERSPECTIVE at 11; Lisa Powell, Note, Eugenics and Equality: Does the Constitution Allow Policies Designed to Discourage Reproduction Among Disfavored Groups?, 20 YALE L. & POL’Y REV. 481, 482–89 (2002); see Eric M. Jaegers, Note, Modern Judicial Treatment of Procreative Rights of Developmentally Disabled Persons: Equal Rights to Procreation and Sterilization, 31 U. LOUISVILLE J. FAM. L. 947, 956 (1992) (“Beginning in the 1930s and 1940s, a variety of factors initiated a gradual decline in support for eugenic theories. First, as scientific understanding of mental retardation became more sophisticated, researchers were able to disprove or discredit many premises upon which eugenics was based.”).
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Nonetheless, references to Goddard’s tier system continue to be included in definitions for these terms in dictionaries published decades later. See, e.g., THE AMERICAN HERITAGE COLLEGE DICTIONARY 692 (Houghton Mifflin Co., 4th ed. 2007) (defining “imbecile” as “person of moderate to severe mental retardation having a mental age from three to seven years”); WEBSTER’S NEW WORLD COLLEGE DICTIONARY 723 (Houghton Mifflin Harcourt Publishing Co., 5th ed. 2014) (defining “idiot” as “disabled person mentally equal or inferior to a child two years old”); Id. at 726 (defining “imbecile” as “disabled person mentally equal to a child between three and eight years old”); id. at 952 (defining “moron” as “disabled person mentally equal to a child between eight and twelve years old: an obsolescent term”); but see id. at 726 (also defining “imbecile” as “very foolish or stupid person”) and THE OXFORD ENGLISH DICTIONARY 670 (Clarendon Press, 2d ed. 1989) (defining “imbecile” as follows: “In general sense: Weak, feeble; esp. feeble of body, physically weak or impotent.”).
Thus, dictionary definitions that describe an “imbecile” as having a mental age between three and seven—including the 1991 dictionary definition—are referring to this three-tier classification system conceptualized by Goddard.
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C. How the 1991 dictionary definition became incorporated into administrative and judicial analysis of qualifications for lifetime-income benefits
The mental-age based “imbecility” definition was first used in the context of a workers’ compensation claim in 1996. See Appeal No. 961340, 1996 WL 487735 (Tex. Work. Comp. Comm’n Aug. 21, 1996). There, the administrative appeals panel noted the lack of a statutory definition of “imbecility” and looked to Webster’s Ninth New Collegiate Dictionary, dated 1991, for insight. Cf. Jaster v. Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014) (stating that court will look to dictionaries and other sources to determine common, ordinary meaning of statutory terms left undefined). That 1991 dictionary defined “imbecility” as the quality or state of being an imbecile; it defined “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.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991). That appeals panel decision and its age-specific definition was later quoted in another appeals decision. See Appeal No. 020660, 2002 WL 971165, at *1 (Tex. Work. Comp. Comm’n Apr. 19, 2002).
Meanwhile, some of the other states with “imbecility” as the standard in their lifetime-income-benefits statutes were adopting much broader definitions. In Barnett v. Bromwell, Inc., 366 S.E.2d 271 (Va. Ct. App. 1988) (en banc), that court
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noted that “imbecility” was an “obsolete” medical term and adopted a “functional,” “non-technical” approach to defining it. Id. at 272–74. The court defined the term to mean “an irreversible brain injury which renders the employee permanently unemployable and so affects the non-vocational quality of his life by eliminating his ability to engage in a range of usual cognitive processes . . . .” Id. at 274.
Likewise, Michigan adopted a general definition in Redfern v. Sparks-Withington Co., 268 N.W.2d 28, 37 (Mich. 1978), holding as follows:
We conclude that . . . a worker’s intellectual impairment is “imbecility” if he suffers severe cognitive dysfunction . . . . [C]ognitive 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 [another basis for qualifying for lifetime income benefits in some workers’ compensation statutes], and is incurable if it is unlikely that normal functioning can be restored.
Id. at 37.
The Texarkana Court of Appeals compared the Virginia court’s definition to the 1991 dictionary definition in National Union Fire Insurance Co. v. Burnett, 968 S.W.2d 950 (Tex. App.—Texarkana 1998, no pet.). After discussing these two alternative approaches to defining ‘imbecility,” the court determined that neither was helpful to answer the issue before it: whether the undefined statutory term “incurable insanity” included a diagnosis of depression without psychosis. Id. at 956.
19
The 1991 dictionary definition was referenced again in 2007 by the Beaumont Court of Appeals. See Liberty Mut. Ins. Co. v. Camacho, 228 S.W.3d 453 (Tex. App.—Beaumont 2007, pet. denied). Amerisure relies heavily on Camacho, asserting that it was “a similar case concerning entitlement to lifetime income benefits due to imbecility” and that the definition of imbecility that was used in that case “is the same definition” applied to deny Chamul’s benefits.
In Camacho, the Beaumont Court of Appeals noted that the jury had been instructed that an “imbecile” is “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.” 228 S.W.3d at 461. But the Camacho court was not asked to determine whether the age-specific definition was legally correct or the trial court erred by supplying that definition to the jury. See id. Instead, the issue was whether a different jury instruction was erroneous: that the jury was to “give no special weight” to the decision of the Texas Workers’ Compensation Commission in its deliberations. Id. at 459.
Just three years ago, these competing definitions were compared again by another workers’ compensation appeals panel. See Appeal No. 121131-s, 2012 WL 12359072 (Tex. Work. Comp. Comm’n Aug. 27, 2012). That panel discussed that the hearing officer in the underlying contested hearing had noted the 1991
20
dictionary definition of “imbecility” and compared it to the more general definition found in the Virginia Barnett opinion. See id. at *3. Without endorsing either approach over the other, the panel concluded that the hearing officer did not err by determining that the claimant was entitled to lifetime-income benefits. See id.
Based on Camacho and these earlier appeals-panel decisions, Amerisure argues that “imbecility,” in the context of a lifetime-income-benefits claim, means “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.” Amerisure reads this definition narrowly to require that the claimant establish a mental age between three and seven years.
D. Overly narrow, age-specific definition does not control
Amerisure obtained summary judgment that Chamul did not meet the definition of “imbecility” in the trial court. The trial court’s holding was explicitly based on the narrow definition urged by Amerisure and adopted by the hearing officer. We conclude that the trial court erred by granting summary judgment to Amerisure. In doing so, we reject the narrow definition that would place a burden on claimants to establish a mental age of between three and seven years for three reasons. First, the 1991 dictionary from which the narrow definition was obtained was not an appropriate source to discern the meaning of a term incorporated into a statute more than 70 years earlier. Second, the mandate that the workers’
21
compensation statute be liberally construed to confer benefits upon injured workers suggests that Section 408.161 of the Labor Code should not be read to require proof of a mid-range mental age—a result achieved only through the most narrow reading of the statute and the definition possible. See Lujan, 756 S.W.2d at 297. Third, applying the 1991 dictionary definition would lead to absurd results and, therefore, must be rejected.
1. Consulting a dictionary to understand the common meaning of a statutory term
The term “imbecility” has been in the Labor Code for almost a century, always without an assigned definition. See Lumbermen’s Reciprocal Ass’n, 258 S.W. at 269. It is appropriate to reference a dictionary to discern the common, ordinary meaning of a statutory term that has been left undefined. See Jaster, 438 S.W.3d at 563. However, not all dictionaries are equal.
“In the absence of a specific amendment, a statute should be given the meaning which it had when enacted.” Taylor v. Firemen’s & Policemen’s Civil Serv. Comm’n of City of Lubbock, 616 S.W.2d 187, 189 (Tex. 1981) (noting that statute in question was adopted in 1947 and, therefore, looking to dictionary definition at that time); cf. Porter v. State, 996 S.W.2d 317, 320 (Tex. App.—Austin 1999), supplemented, 65 S.W.3d 72 (Tex. App.—Austin 1999, no pet.) (examining “the meaning the statute had when it was enacted”). This is because a dictionary published close in time to the enactment of the legislation is a superior
22
source for discerning the common, ordinary understanding of the term at the time it was incorporated. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXT 419 (Thomson/West, 1st ed. 2012). A dictionary published 70 years later is not as elucidating. Accordingly, we must consider other dictionaries published closer in time to the enactment of this legislation.
Contemporaneous dictionaries included more generalized definitions and did not limit “imbecility” to a mid-mental-age range. The 1910 edition of Black’s Law Dictionary provides this general definition of “imbecility”:
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 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.
BLACK’S LAW DICTIONARY 632 (2nd ed. 1910). This definition remained in effect for more than 40 years. See BLACK’S LAW DICTIONARY (4th ed. 1951). Other contemporaneous dictionaries defined “imbecility” in similar, general terms:
23
A DICTIONARY OF MEDICAL SCIENCE (1903)
Weakness of intellect; nearly allied to idiocy
BOUVIER’S LAW DICTIONARY 1492 (West Publishing Co. 1914)
A form of mental disease consisting in mental deficiency, either congenital or resulting from an obstacle to the development of the faculties supervening in infancy. Idiocy.
2 BENJAMIN W. POPE, LEGAL DEFINITION 707 (1919)
destitute of strength, either of body or of mind,—weak, feeble, impotent, decrepit
WEBSTER’S COLLEGIATE DICTIONARY (G. & C. Merriam, 3d ed. 1920)
weakness, esp. of mind; . . . foolishness; absurdity; fatuity
JAMES A. BALLENTINE, A LAW DICTIONARY 218 (1923)
feebleness of mind
Chamul refers us to an even more recent definition of “imbecility.” See BLACK’S LAW DICTIONARY (10th ed. 2014) (defining “imbecile” as “person afflicted with severe mental retardation”). But, like the 1991 definition on which Amerisure relies, this definition fails to elucidate the meaning of the term when it was included in the workers’ compensation statute.
Because we are to consider the definition of the term when it was included in the challenged statute, we rely more on the general definitions quoted above, which date from 1903 to 1923, than on the age-specific definition on which Amerisure relies from 1991.
24
2. Liberal construction suggests a broader definition
“The primary purpose of the Texas Workers’ Compensation Act is to benefit and protect injured employees.” Barchus v. State Farm Fire & Cas. Co., 167 S.W.3d 575, 578 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (analyzing predecessor statute, rejecting argument that “injury to the skull” required “fracture” of skull, and concluding that liberal construction of statute prohibits reading into statute requirement that skull be fractured). Thus, when a fair reading permits it, the Act is liberally construed to confer benefits upon injured workers. See Lujan, 756 S.W.2d at 297.
Contrary to this requirement, Amerisure is arguing for the most restrictive reading possible of the definition it proposes. The 1991 definition is “a mentally deficient person, especially a feebleminded person having a mental age of three to seven years . . .” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991) (emphasis added). The definition does not limit the term to only those with a mental age of three to seven; it says, instead, especially those of that category, suggesting that others also would fit within the description.
While we have not found a case directly on point, in our view, the term “especially” is analogous to “including” and signals that the statutory provision is broader in scope than the particular example that follows the term of enlargement. See In re E.C.R., 402 S.W.3d 239, 246 n.6 (Tex. 2013) (noting that terms of
25
enlargement within statutory definitions indicate that lists are nonexclusive; specifically analyzing provisions using term “including”); Tex. W. Oaks Hosp. v. Williams, 371 S.W.3d 171, 179 (Tex. 2012) (holding that Legislature’s use of term “including” meant that statutory definition was nonexclusive). Attaching a narrow definition to limit a benefit without statutory text to support that interpretation violates the rule of liberal construction. See Barchus, 167 S.W.3d at 580. Therefore, even if we were to conclude that the 1991 definition accurately states the meaning of “imbecility” in the context of a lifetime-income-benefit award, the definition, itself, leaves open the possibility that someone with a mental age higher than seven years of age might qualify.
3. Applying the 1991 dictionary definition would lead to absurd results
If we were to accept Amerisure’s definition and hold that “imbecility” refers to individuals with a mental age between three and seven, this would exclude from the statute’s application the two other tiers of the three-tier classification system: “idiots” and “morons.” Doing so would lead to the absurd result that lifetime-income benefits would be available to an employee who suffered a traumatic brain injury serious enough to leave her at a functional age of three to seven years but denied to a worker more seriously injured and left at a functional age of below three years of age. Because such an absurd result could not have been intended by the Legislature, we must reject it. See City of Rockwall v. Hughes, 246 S.W.3d 621,
26
625–26 (Tex. 2008) (stating that statutory terms are given their plain and common meaning unless such a construction leads to absurd results).
The Virginia Court of Appeals also noted the absurdity of this result in its en banc decision in Barnett, while construing “imbecility” in that state’s workers’ compensation statute:
To interpret the term “imbecility” to mean only those employees whose I.Q.s fall precisely within the range of 20 to 49 would lead to the absurd result that an employee with an I.Q. of less than 20 would not fall within the definition of the term. We do not find such a restrictive meaning necessarily inherent in the term, nor do we attribute such an unreasonable result to an intent by the legislature.
Barnett, 366 S.E.2d at 274; see Burnett, 968 S.W.2d at 955 (discussing Barnett).
We agree that a definition that denies lifetime-income benefits to the most severely injured worker but permits them for those with mid-level deficits does not comport with legislative intent. To the extent past appeals panels have relied on this narrow 3-to-7-years definition, we are not bound by those interpretations given the absurd results that would follow. See Barchus, 167 S.W.3d at 578 (stating that, while construction of statute by administration charged with its enforcement is entitled to thoughtful consideration, it is not binding on courts and no presumption of validity attaches to it); see also Fulton v. Associated Indem. Corp., 46 S.W.3d 364, 370 (Tex. App.—Austin 2001, pet. denied) (“We liberally construe workers’ compensation legislation to carry out its evident purpose of compensating injured workers and their dependents. An agency may not supply by implication
27
restrictions on an employee’s rights that are not found in the plain language of the Act.”).
We conclude that the 1991 definition must be rejected because it has not been shown to mirror the understanding of the term when it was incorporated into the legislation, is overly narrow, and would lead to absurd results.
E. The trial court erred by granting summary judgment based on the narrow, age-specific definition
The hearing officer stated in the decision denying lifetime-income benefits that Chamul “likely meets” the definition of imbecility except for the “mental age of three to seven years” requirement. The trial court expressly stated that it applied a narrow “imbecility” definition, which required a mental age of three to seven years, in its determination of the summary-judgment motions. We have rejected that narrow definition.
The record reveals that there was a great deal of evidence presented to the hearing officer and attached to the summary-judgment motions concerning the severity of Chamul’s head injury and resulting impairment. While his treating physician was hesitant to describe him as having a functional age of three to seven years old,5 she did describe in detail how his injury has negatively impacted his
5 In Chamul’s second issue, he contends that the trial court erred by finding that Dr. Ivanhoe’s affidavit is a sham affidavit. Amerisure had argued that Dr. Ivanhoe’s affidavit “appear[ed] to be a sham affidavit created exclusively for the purpose of attempting to create a fact issue where one does not exist.” To the extent any
28
ability to care for himself, perform work and non-work related tasks, and communicate.
The record also contains a report from Dr. Hite, an affidavit from rehabilitation expert Wallace Stanfill, and an affidavit from Chamul’s father and caretaker, Felix Chamul. In Dr. Hite’s report, he explained that Chamul’s condition will not improve and that he will need a caretaker for the rest of his life. Likewise, Stanfill explained in his affidavit that “while Mr. Chamul is marginally functional in many basic areas, he is not considered to be cognitively able to engage in any degree of competitive work, even unskilled employment. His current level of functioning would [be] at best more in keeping sheltered employment.” Finally, Felix Chamul, the father and caretaker of Francisco Chamul, stated in his affidavit that Chamul is unable to manage his medical and financial affairs and is unemployable.
There is, however, contrary evidence in the record. Dr. Brylowski, the neuropsychiatrist retained by Amerisure, testified that Chamul “did not sustain any type of irreversible brain injury which would rise to the level of rendering him
conflict between her affidavit and testimony leads to the conclusion that the affidavit qualifies as a sham affidavit, that conclusion would be limited to that part of the affidavit that conflicts: Dr. Ivanhoe’s statement that Chamul’s cognitive deficits “results in him having the mental capacity and behavior of a three to seven year old child.” The remainder of the affidavit remains relevant and admissible. See Farroux v. Denny’s Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (adopting “sham affidavit” doctrine and analyzing whether single paragraph in affidavit presented fact issue).
29
permanently unemployable because of eliminating his ability to engage in a range of usual cognitive processes.” He further stated that any cognitive problems could be treated and managed to help Chamul reintegrate into the workplace.
Based on the competing summary-judgment evidence, we conclude that a fact issue exists as to whether the deficiencies caused by the traumatic brain injury Chamul suffered in the course of his employment meet the requirements of “imbecility” under the statute. Because this is a material fact issue, summary judgment for Amerisure was erroneous.
We sustain Chamul’s first issue.
Conclusion
When faced with competing summary judgments, the general rule is that an appellate court should determine all questions presented and render the judgment that the trial court should have rendered. Patient Advocates of Tex., 136 S.W.3d at 648. Here, though, a fact issue exists that precludes summary judgment for either party. See Coker v. Coker, 650 S.W.2d 391, 394–95 (Tex. 1983). Accordingly, the trial court’s order granting Amerisure’s motion for summary judgment is reversed, and the cause is remanded for further proceedings consistent with this opinion.
Harvey Brown
Justice
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Panel consists of Justices Jennings, Higley, and Brown.

 

 

 

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

Martindale AVtexas[2]

Lifetime Income Benefits in Texas Workers’ Compensation Law–Dallas/Ft Worth Workers’ Compensation Defense Lawyers

Lifetime Income Benefits are paid when there is a combination of injuries that prevents a Claimant from working.  
These benefits are paid at the rate of 75% of his or her average weekly wage.  The benefit amount rises at the rate of 3% per year.  
 
The benefits may be paid by annuity, but the purchase of an annuity by the insurance carrier does not relieve the insurance carrier of the responsibility to pay the benefits timely and appropriately.  

These combinations include:

  • total and permanent loss of sight in both eyes
  • loss of both feet at or above the ankle
  • loss of both hands at or above the wrist
  • loss of one foot at or above the ankle and loss of one hand at or above the wrist
  • an injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg
  • a physically traumatic injury to the burn resulting in incurable insanity or imbecility
  • third degree burns that cover at least 40% of the body
  • third degree burns covering the majority of both hands or one hand and the face
  • the total and permanent loss of use of a body part is the same as the total loss of that body part.

 

 

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

Martindale AVtexas[2]

New DWC Form-154, Workers’ Compensation Complaint Form

The Texas Department of Insurance, Division of Workers’ Compensation (TDI-DWC) has finalized new DWC Form-154,
Workers’ Compensation Complaint Form.
Title 28 Texas Administrative Code §180.2(a) states that any person may submit a complaint to TDI-DWC for alleged administrative
violations. Labor Code §402.023(c) states, in part, that TDI-DWC shall develop and post on its website a simple, standardized
form for filing complaints. New DWC-Form-154 provides a simple, standardized form for the filing of workers’ compensation
complaints and may be submitted via email, fax, or mail. A person may also submit a complaint without using the form through
TDI-DWC’s website, email, fax, written correspondence, or in person.
An informal draft of DWC Form-154 was posted on the TDI-DWC website on December 11, 2015, with an informal comment
period ending on January 4, 2016. The finalized DWC Form-154 is available in English and Spanish on the TDI-DWC website at
http://www.tdi.texas.gov/forms/form20numeric.html, and is effective March 1, 2016.
New DWC Form-154, Workers’ Compensation Complaint Form

The Limited Settlement Options in a Texas Workers’ Compensation Claim–Texas Insurance Defense Attorneys

The Workers’ Compensation Act provides a four-step dispute resolution process—a benefit review conference, a contested case hearing, review by an administrative appeals panel, and judicial review. Tex. Lab. Code §§ 410.021, 410.151, 410.202, Tex. Lab. Code § 410.251; see generally Tex. Mut. Ins. Co. v. Ruttiger, 381 S.W.3d 430, 437 (Tex. 2012). At each step, settlements are tightly controlled and limited. First, there is the benefit review conference, a non-adversarial, informal dispute resolution proceeding to discuss the facts, review available information to evaluate the claim, delineate the disputed issues, and, if possible, “resolve disputed issues by agreement of the parties in accordance with this subtitle and the policies of the division.” Tex. Lab. Code § 410.021. An agreement or settlement should be reduced to writing and signed by the parties and the benefit review officer, and the settlement does not take effect until “it is approved by the director in accordance with section 408.005.” Tex. Lab. Code § 410.029. Section 408.005 provides further that “[a] settlement must be signed by the commissioner and all parties to the dispute,” and that “the commissioner shall approve a settlement if the commissioner is satisfied that . . . the settlement reflects adherence to all appropriate provisions of law and the 6 policies of the division.” Tex. Lab. Code § 408.005(d), 408.005(e)(2).

Thus, at the very first step, settlements must adhere to all appropriate provisions of law. If the benefit review conference fails to produce a settlement, the matter proceeds to a contested-case hearing that is generally limited to the issues raised at the benefit review conference. Tex. Lab. Code § 410.151(b). After a hearing, the hearing officer issues a written decision that includes findings of fact and conclusions of law, and determines whether benefits are due, and awards benefits due. Tex. Lab. Code § 410.168. Then the matter may proceed to an appeals panel that considers the record and the hearing officer’s decision. Tex. Lab. Code § 410.203. The decision of the appeals panel is final in the absence of a timely appeal for judicial review. Tex. Lab. Code § 410.205. Last, an aggrieved party may seek judicial review of the final decision of the appeals panel “regarding compensability or eligibility for or the amount of income or death benefits.” Tex. Lab. Code § 410.301(a). At this last stage settlements are still tightly controlled and limited:  The party who initiated the proceeding must file any proposed judgment or settlement made by the parties to the proceeding, including a proposed default judgment, with the division not later than the 30th day before the date on which the court is scheduled to enter the judgment or approve the settlement. Tex. Lab. Code § 410.258(a). 

The commissioner shall review the proposed judgment or settlement to determine compliance with all appropriate provisions of the law. If the commissioner determines that the proposal is not in compliance with the law, the division may intervene as a matter of right in the proceeding not later than the 30th day after the date of receipt of the proposed judgment or settlement. Tex. Lab. Code § 410.258(c).  If the division intervenes in the proceeding, the commissioner shall inform the court of each reason the commissioner believes the proposed judgment or settlement is not in compliance with the law. The court shall give full consideration to the information provided by the commissioner before entering a judgment or approving a settlement. Tex. Lab. Code § 410.258(e). Ultimately, the court may not approve a settlement except on a finding that “the settlement adheres to all appropriate provisions of the law,” Tex. Lab. Code § 410.256(b)(2), and “[s]ettlement of a claim or issue must be in compliance with all appropriate provisions of the law.” Tex. Lab. Code 410.256(g). Otherwise the settlement is void. Id. Notably, the restrictions on settlements apply equally across the four-step process: before the Division and a court, a settlement should only be approved if (1) the settlement accurately reflects the agreement between the parties; (2) the settlement adheres to all appropriate provisions of the law; and (3) under the law and facts, the settlement is in the best interest of the claimant. Compare Tex. Lab. Code § 408.005(e) with Tex. Labor Code § 410.256(b). Additionally, the requirement that settlements adhere to the law is mandatory because subsection 410.256(g) specifies that settlements that do not comply with section 410.256’s requirements are void. See Tex. Lab. Code § 410.256(g); see generally Crosstex Energy Servs. v. Pro Plus, Inc., 430 S.W.3d 384, 392 (Tex. 2014) (discussing when statutes are mandatory). Thus, in matters of workers’ compensation, settlements are tightly controlled and limited, and settlements must comply with all appropriate provisions of the law.

 

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

Martindale AVtexas[2]

Attorneys’ Fees and Fee Shifting in Texas Work Injury Case Involving Prescription Drug Use

Opinion issued March 31, 2011.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-10-00271-CV
———————————
COMMERCE & INDUSTRY INSURANCE COMPANY, Appellant
V.
KIMBERLY FERGUSON-STEWART, BENEFICIARY TO BRUCE STEWART, DECEASED, Appellee
On Appeal from the 133rd District Court
Harris County, Texas
Trial Court Case No. 2006-45381
O P I N I O N
This appeal arises from a worker’s compensation case involving an injury to Bruce Stewart, deceased. After trial, the trial court entered judgment on the jury findings supporting the workers’ compensation award and also awarded attorneys’
2
fees in favor of Kimberly Ferguson-Stewart, Stewart’s beneficiary. On appeal, CIIC challenges the trial court’s exclusion of evidence showing Stewart’s history of prescription pain medication use. CIIC also claims, based on Transcontinental Insurance Co. v. Crump, 330 S.W.3d 211 (Tex. 2010), that Stewart waived her right to recover the fees by trying the reasonableness and necessity of those fees to the bench rather than the jury. We hold that the trial court did not abuse its discretion in excluding certain evidence of Stewart’s prescription drug use. We further hold that, under Crump, CIIC was entitled to have jury findings on the attorneys’ fees issues. We therefore reverse the attorneys’ fee award in light of the change in law occasioned by Crump and remand that issue to the trial court for a jury trial.
Background
On May 25, 2004, Stewart reported an on-the-job injury in which he sustained injuries when a large bolt fell from above, striking him on the neck and shoulder. No one witnessed the accident. Stewart went to the emergency room, where he received medical treatment and a prescription for pain medication. Stewart attempted to return to work, but the medication’s side effects made him unable to do so.
After exhausting its administrative remedies, CIIC sought judicial review of the findings that Bruce Stewart (1) sustained an injury in the course and scope of
3
employment on May 25, 2004, and (2) sustained disability from June 2, 2004 through September 21, 2004.1 The jury returned a verdict against CIIC, and the trial court entered judgment on the verdict. The trial court also entered an order granting Ferguson-Stewart’s motion for approval of attorneys’ fees, finding that the fees she incurred were reasonable and necessary. Discussion I. Workers’ Compensation Act Appeals
The Texas Supreme Court has held that a Texas Workers’ Compensation Commission (TWCC) Appeals Panel’s final decision may be appealed to the courts under a ―modified de novo review.‖ Texas Workers’ Compensation Comm’n v. Garcia, 893 S.W.2d 504, 530 (Tex. 1995). Under this modified de novo review, all issues regarding compensability of the injury may be tried by the jury or court. Id. at 528; see TEX. LAB. CODE ANN. §§ 410.301, .304 (Vernon 2006). The court, although informed of the TWCC’s decision, is not required to accord it any particular weight. Garcia, 893 S.W.2d at at 515. The fact finder does not review the Appeals Panel’s decision for ―reasonableness,‖ but rather independently decides the issues by a preponderance of the evidence. Id. at 531. The party
1 Stewart died after the period of disability, but before the administrative proceedings had concluded.
4
appealing the TWCC’s ruling bears the burden of proof by a preponderance of the evidence. TEX. LAB. CODE ANN. § 410.303 (West 2006). II. Evidentiary challenge
CIIC claims error in the trial court’s exclusion of: Medical records in which doctors described how Bruce Stewart engaged in drug-seeking behavior in connection with a prior work-related injury;
Pharmacy records demonstrating that between 2001 and 2004, Bruce Stewart received prescriptions from four different physicians for, among other drugs, hydrocodone’
The DWC’s unredacted order granting benefits in this case, which recites that Bruce Stewart’s death resulted from hydrocodone toxicity; and
Testimony from Bruce Stewart’s treating physician that Stewart’s ingestion of hydrocodone in excess of the prescribed amount did not comply with his treatment plan.
We review a trial court’s decision to exclude testimony under an abuse of discretion standard. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules and principles. C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 798 (Tex. App.—Houston [1st Dist.] 2004, no pet.). We must uphold an evidentiary ruling if there is any legitimate basis for it. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). Even if the trial court erred in its evidentiary ruling, we reverse only if the error probably
5
caused the rendition of an improper judgment. Auld, 34 S.W.3d at 906; see TEX. R. APP. P. 81(b)(1).
The record shows that CIIC, invoking Texas Rule of Evidence 402, sought to admit this evidence on general relevance grounds and for purposes of impeachment. See TEX. R. EVID. 402. Ferguson-Stewart objected to its admission on the grounds that the evidence was irrelevant or would have an unfairly prejudicial effect that would substantially outweigh any probative value. TEX. R. EVID. 401, 403.
The workers’ compensation statute makes employees ineligible for benefits if they are intoxicated—by ingesting alcohol or other drugs—at the time of the injury. TEX. LAB. CODE ANN. § 406.032(a)(1) (West 2006) (providing that ―[a]n insurance carrier is not liable for compensation if the injury occurred while the employee was in a state of intoxication.‖); see Tex. Mut. Ins. Co. v. Havard, No. 01-07-00268-CV, 2008 WL 598347 (Tex. App.—Houston [1st Dist.] Mar. 6, 2008, no pet.) (mem. op.). CIIC did not raise intoxication as a defense in the administrative proceeding. When CIIC proffered the evidence to the trial court, Ferguson-Stewart responded that Bruce Stewart
may have failed a past drug screen, but the fact is when he went back to work there, he passed the drug screen to start working, and then after the accident he passed another one. So the fact that he ever failed one before wouldn’t be relevant.
6
CIIC contends that the proffered evidence is relevant for the purposes of impeachment because it identifies a possible motive for Bruce Stewart to falsify or fabricate a worker’s compensation claim. Texas courts have consistently upheld the exclusion of evidence of a witness’s prior drug use for general impeachment purposes. See TEX. R. EVID. 608(b) (prohibiting use of ―specific instances of conduct of a witness, for the purpose of attacking or supporting the witness’[s] credibility, other than conviction of crime . . .‖); Lagrone v. State, 942 S.W.2d 602, 612 (Tex. Crim. App. 1997) (noting that, in adopting Rule 608(b), Texas courts ―implicitly abolished the impeachment of witnesses with evidence of drug addiction‖). Any connection between Bruce Stewart’s use of prescription pain medication and his worker’s compensation claim rests on speculation.2 The record thus supports the trial court’s exercise of discretion in excluding the evidence on the grounds that the danger of unfair prejudice substantially outweighed the evidence’s probative value. TEX. R. EVID. 403.
2 In particular, CIIC points to evidence that Stewart expressed his intent to ask for prescription pain medication to replace over-the-counter ibuprofen recommended by the doctor if he ―start[ed] hurting‖ and called for the prescription two hours later. This evidence equally supports an inference that Stewart needed stronger medication to combat his pain. See Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001). The trial court was within its discretion to exclude this evidence, given the issues the jury was to decide.
7
III. Attorneys’ fees
Under section 408.221(c) of the Labor Code, an insurance carrier that seeks judicial review of an appeals panel decision is liable for a claimant’s reasonable and necessary attorneys’ fees as a result of the appeal if the claimant prevails on an issue on which the carrier seeks judicial review. See TEX. LAB. CODE ANN. § 408.221(c) (West 2006). In her answer, Ferguson-Stewart pleaded for reasonable and necessary attorneys’ fees and expenses ―[u]nder Chapter 408, Subchapter L, § 408.221(c) of the Texas Labor Code.‖
We first address CIIC’s contention that Ferguson-Stewart failed to plead for attorneys’ fees. In Texas, a pleading must give fair and adequate notice to the opposing party sufficient to prepare a defense. Hagberg v. City of Pasadena, 224 S.W.3d 477, 482 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Where the opposing party fails to use special exceptions to identify alleged defects in a pleading, we construe the pleadings liberally in favor of the pleader. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex. 2000).
CIIC asserts that, by identifying some of her named attorneys in her fee request but not others, Ferguson-Stewart limited her recovery to the fees she incurred in connection with the named attorneys’ representation only. The pleading, however, contains no such exclusive language, and CIIC did not specially except to Ferguson-Stewart’s pleadings on that ground. We hold that
8
Ferguson-Stewart’s pleading gave CIIC fair and adequate notice of her intent to seek recovery of all reasonable and necessary attorneys’ fees she incurred in her defense. In its main contention on this issue, CIIC claims that Ferguson-Stewart waived her right to recover attorneys’ fees because she failed to secure jury findings on the reasonableness and necessity of the fees, instead submitting the fee request to the trial court in a post-trial motion. CIIC relies on Transcontinental Insurance Co. v. Crump, decided after the conclusion of trial in this case, in which the Texas Supreme Court held that ―an insurance carrier is entitled to have a jury determine the disputed amount of reasonable and necessary fees for which it is liable under 408.221(c).‖ 330 S.W.3d 211, 232 (Tex. 2010).
We agree that, in light of Crump, CIIC was entitled to jury findings on fees. Thus, we hold that the attorneys’ fees award must be reversed. CIIC states that we must go further—and render judgment in its favor upon our reversal—because Ferguson-Stewart waived her claim for fees by failing to secure jury findings in its support. We disagree. The trial court’s order recites that it held a hearing on the reasonableness and necessity of Ferguson-Stewart’s attorneys’ fees, and the trial court found that the fees incurred were reasonable and necessary.3 Ferguson-
3 The reporter’s record does not include this hearing, and CIIC does not challenge the legal sufficiency of the evidence before the trial court on the reasonableness and necessity of Ferguson-Stewart’s attorneys’ fees. We presume the evidence
9
Stewart pursued her claim for fees and obtained findings, albeit from the incorrect factfinder. When a party produces some evidence of fees, and the trial court errs in determining them, remand is appropriate. Cf. Tony Gullo Motors v. Chapa, 212 S.W.3d 299, 314–15 (Tex. 2006) (holding that plaintiff did not waive her request for attorney’s fees by failing to segregate recoverable fees from unrecoverable ones and remanding for new trial on issue); Lubbock Cnty. v. Strube, 953 S.W.2d 847, 858 (Tex. App.—Austin 1997, pet. denied) (remanding for new trial on attorney’s fees issue).
Remand for a jury trial is appropriate when a trial court improperly fails to heed the request for a jury. See Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 477 (Tex. 1997) (instructing trial court to conduct jury trial where trial court refused to empanel a jury). The remedy here is not a judgment on the merits, but instead a trial before the appropriate fact finder. Unlike most fee-shifting statutes, which allow, but do not require, a prevailing party to recover attorneys’ fees, the provision applicable to this proceeding makes the insurer liable for the claimant’s fees when the insurer seeks judicial review of compensability or eligibility issues and the claimant prevails. Compare TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (providing that ―a person may recover reasonable attorneys’ fees from an
presented at the hearing supports the trial court’s ruling. See TEX. R. APP. P. 34.6(c); Mason v. Our Lady Star of Sea Catholic Church, 154 S.W.3d 816, 819 (Tex. App.—Houston [14th Dist.] 2005, no pet).
10
individual or corporation . . .‖) with TEX. LAB. CODE ANN. § 408.221(c) (providing that ―an insurance carrier that seeks judicial review . . . of a final decision of the appeals panel regarding compensability or eligibility for, or the amount of, income or death benefits is liable for reasonable and necessary attorney’s fees . . . incurred by the claimant . . . if the claimant prevails on an issue on which judicial review is sought by the insurance carrier‖) (emphasis added). The supreme court’s analysis in Crump shows that its conclusion was not an obvious one. As the court observed, section 408.221 not only ―is silent on the critical judge-or-jury question,‖ but is also ambiguous, reasonably supporting conflicting conclusions on the issue. Id. at 229. The court also noted that, before the fee-shifting provision was added in 2001, the trial court, ―without the aid of a jury,‖ determined the amount of fees that a claimant’s attorney could recover. Id. at 229–30. We reverse the award of attorneys’ fees contained in the judgment and remand the issue of attorneys’ fees for jury trial.
Conclusion
We hold that the trial court did not abuse its discretion in excluding the evidence of Bruce Stewart’s history of prescription drug use. Following Crump,
11
we also reverse the award of attorneys’ fees contained in the judgment and remand the issue of Ferguson-Stewart’s attorneys’ fees for trial. We affirm the remainder of the judgment.
Jane Bland
Justice
Panel consists of Chief Justice Radack and Justices Alcala and Bland.

 

 

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

Martindale AVtexas[2]

Injury to Plaintiff’s Head/Skull in Texas Work Injury Defense Case

In The

 

Court of Appeals
Ninth District of Texas at Beaumont

____________________
NO. 09-06-305 CV

____________________
LIBERTY MUTUAL INSURANCE CO., Appellant

V.

MARIO CAMACHO, Appellee
On Appeal from the 359th District Court

Montgomery County, Texas

Trial Cause No. 01-10-06715-CV

 

OPINION

We resolve two principal questions in this appeal. First, we determine if the evidence in this workers’ compensation case is legally sufficient to support the jury’s finding that Mario Camacho suffered a skull injury. Second, we decide whether the trial court improperly instructed the jury to give the decision of the Texas Workers’ Compensation Commission no special weight. We answer both questions in the affirmative and reverse and remand the case for a new trial.

TRIAL TESTIMONY AND VERDICT

Camacho was a rancher with more than twenty years’ experience at the time of his injury and a long-term employee of JMR Ranching. In September 1991, Camacho’s horse reared up and struck him in the face. He fell from the horse to the ground. Selma Steele, co-owner of the ranch, received a telephone call about Camacho’s accident and arrived at the scene shortly thereafter. When she arrived, Camacho “had a big knot on his head and a knot over the left eye and his nose was bleeding.” While on the way to Steele’s home in her car, Camacho fell over and appeared to have gone to sleep. Steele took Camacho to the hospital. Camacho was initially treated at the Tomball Regional Hospital Emergency Room. Dr. John Sanders, the emergency room physician, diagnosed Camacho as having suffered a concussion. Dr. Sanders ordered the following tests: (1) a CT scan of the head, without contrast, which was reported as normal; (2) a bone scan, which was reported as normal with the exception of degenerative changes in the cervical spine; (3) an x-ray of the nasal bones, which was reported as showing no evidence of fracture; and (4) an x-ray of the cervical spine, which was reported as showing no acute fracture.

Dr. Susan Garrison, a physician certified by the American Board of Physical Medicine and Rehabilitation, reviewed Camacho’s records at Liberty Mutual’s request in 2005 in order to address whether Camacho suffered a skull injury due to his 1991 fall. Dr. Garrison, the only medical doctor to testify at trial, stated that Camacho’s tests, x-rays, bone scans, and CT scans showed “no evidence of injury to the skull as a result of that accident.” In her opinion, Camacho had a closed head injury but he “did not have an injury to the skull.” Dr. Garrison clarified that her opinions were based upon the reports of the tests administered at Tomball Regional because the actual films of the tests had been destroyed by the hospital. Dr. Garrison further testified that because the bone scan was done with contrast material, if Camacho had suffered a bone bruise of the skull, the test “would have lighted up, and it didn’t light up.” Dr. Garrison did not see or treat Camacho.

Dr. Richard Pollock, a neuropsychologist, testified that he began treating Camacho in 1994. According to Dr. Pollock, Camacho’s hospital records reflected that he suffered a closed head injury in the accident. Dr. Pollock categorized Camacho as an incurable imbecile and testified that Camacho’s condition was permanent. Dr. Pollock also opined that Camacho “is not capable of living independently.”

Camacho testified at trial regarding the effects of his injury on his ability to work and to engage in daily activities of living. He did not testify about how his injury occurred.

At the conclusion of the trial, the trial court submitted one issue to the jury accompanied by instructions. The court submitted the following instructions pertinent to this appeal:

You are instructed that the Texas Workers’ Compensation Commission Appeals found that the Plaintiff did not sustain an injury to the skull that resulted in incurable imbecility. The party dissatisfied with the decision of the Appeals Panel may file suit in District Court for Judicial Review. The decisions of the Texas Workers’ Compensation Commission are to be given no special weight. You, as jurors, decide the weight and credibility of the evidence submitted before you. The jury returned its verdict, finding that Camacho “sustained an injury to his skull that resulted in incurable imbecility.” Subsequently, the trial court awarded Camacho lifetime income benefits in accordance with the jury’s verdict.

 

SKULL INJURY ISSUE

Liberty Mutual contends that Camacho failed to present legally sufficient evidence establishing that he suffered a skull injury. Although at trial it challenged whether Camacho’s injury caused his imbecility, on appeal, Liberty Mutual does not challenge that aspect of the jury’s finding. Rather, Liberty Mutual argues that the lifetime benefits provision required Camacho to prove an injury to the bones of his skull in order to recover lifetime benefits. The statutory language in effect at the time of Camacho’s injury provided, in pertinent part:

(a) Income benefits shall be paid until the death of the employee for:

. . . .

 

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

 

Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch. 1 § 4.31, 1989 Tex. Gen. Laws 42 (amended 1997) (current version at Tex. Lab. Code Ann. § 408.161(6) (Vernon 2006)).

Liberty Mutual contends that an injury to the “skull” is an absolute requirement under the version of the statute at issue, and that a brain or head injury, without a skull injury, is insufficient. (1) In support of its argument, Liberty Mutual cites Barchus v. State Farm Fire & Casualty Co., 167 S.W.3d 575 (Tex. App.-Houston [14th Dist.] 2005, pet. denied), and asserts that the Fourteenth Court of Appeals decided that the statute at issue requires an injury to the skull. However, in Barchus, the trial court’s finding that Barchus had sustained an injury to his skull was not challenged on appeal. Id. at 580. Rather, the issue addressed was whether the Compensation Act required the claimant to prove that his skull had been fractured in order to receive lifetime income benefits. See id. In contrast, the case before us requires that we interpret the statute’s meaning in its use of the term “skull” in order to determine whether a blow to the head, which results in imbecility, fulfills the requirements of the statute.

Standard of Review

The jury found that Camacho sustained an injury to his skull that resulted in incurable imbecility. Because Camacho’s claim was denied at the administrative level, Camacho had the burden to prove by a preponderance of the evidence that he sustained an injury to his skull. Tex. Lab. Code Ann. § 410.303 (Vernon 2006). In reviewing a jury verdict for legal sufficiency, we consider all of the evidence in the light most favorable to the prevailing party, “crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005); Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). Thus, on this record we must credit favorable evidence for Camacho if reasonable jurors could, and disregard evidence contrary to the jury’s finding that Camacho suffered a skull injury, unless reasonable jurors could not.

Statutory Construction

To resolve this appeal, we must determine whether a severe blow to the head causing bruising and a concussion that renders an employee an imbecile constitutes a skull injury for purposes of the lifetime benefits provision of the Workers’ Compensation Act. See Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch. 1 § 4.31, 1989 Tex. Gen. Laws 42 (amended 1997). The Act has never defined the term “skull.” See id.; see also Tex. Lab. Code Ann. § 401.011(Vernon 2006).

A court’s objective in construing a statute is to “determine and give effect to the Legislature’s intent.” Nat’l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). When the meaning of a word in a statute is not ambiguous, we ordinarily give the word its common meaning. Id.; Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). In ascertaining legislative intent, our review is not confined to isolated words, phrases, or clauses; rather, we examine the entire act. Meritor Auto., Inc. v. Ruan Leasing Co., 44 S.W.3d 86, 90 (Tex. 2001); see Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005) (instructing courts to construe words and phrases in context).

The Code Construction Act lists factors that may be considered in construing a statute, whether or not the statute is ambiguous on its face. Tex. Gov’t Code Ann. § 311.023 (Vernon 2005). These factors include, among other things, (1) the statute’s objectives; (2) the circumstances under which the statute was enacted; (3) the statute’s legislative history; (4) common law, former law, and similar provisions; (5) the consequences of the statutory construction; and (6) administrative construction of the statute. Id. § 311.023(1)-(6); In re Canales, 52 S.W.3d 698, 702 (Tex. 2001). We also presume that the Legislature intended a just and reasonable result. Tex. Gov’t Code Ann. § 311.021(3) (Vernon 2005); Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).

Commonly used dictionaries assist in determining a word’s common use. See generally Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005); Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 145 S.W.3d 170, 196 (Tex. 2004). One dictionary defines “skull” to mean:

1 a: the skeleton of the head of a vertebrate : the bony or cartilaginous case or framework that encloses and protects the brain and chief sense organs, supports the jaws, . . . and consists of the cranium, the bony capsules of the nose, ear, and eye, and the jaws b: the cranium together with those bones that are immovably fused with it (as the mammalian upper jaw) 2 : the seat of understanding or intelligence : MIND . . . .

Webster’s Third New International Dictionary 2135 (2002). In construing a statute, we are also required to examine the context of the statute and the Legislature’s intent. The context of the statute at issue does not limit itself to injuries to the bones of the skull; in fact, an injury to the bones of the skull that did not result in imbecility would not result in the award of lifetime income benefits. Thus, the statute appears to be triggered by two events: a blow to the head and an injury to the brain that results in imbecility or insanity. Thus, the context of the statute supports defining the term “skull” in a manner that includes a blow to the head that causes imbecility.

“The primary purpose of the Texas Workers’ Compensation Act is to benefit and protect injured employees.” Barchus, 167 S.W.3d at 578. If we accepted Liberty Mutual’s contention regarding the meaning of the word “skull,” imbeciles receiving a fracture or bone bruise would receive lifetime benefits, while imbeciles whose skulls had been harmed by a blow but who had no demonstrable bone injury would not. Since the purpose of the statute is to benefit and protect injured workers, and because both of these classes suffer from severe, permanent, and disabling injuries, it appears more consistent with the purposes of the Act to apply the broader definition of the term “skull” to allow the recovery of lifetime benefits to both classes of injured employees. “It is well settled that the Workers’ Compensation Act should be liberally construed in favor of the worker.” Lujan v. Houston Gen. Ins. Co., 756 S.W.2d 295, 297 (Tex. 1988) (citing Hargrove v. Trinity Universal Ins. Co., 152 Tex. 243, 245, 256 S.W.2d 73, 75 (1953)). Construing the term “skull” to require an injury to the bones of the skull, as opposed to an injury to “the seat of understanding,” would not protect workers who receive severe blows to the head but who do not suffer a skull fracture or other identifiable injury to the bones of the skull.

Liberty Mutual argues that we should utilize the more narrow definition of the term “skull” used by the Texas Workers’ Compensation Commission. While we generally consider an administrative agency’s interpretation of a term, it is not binding and carries no presumption of validity. Barchus, 167 S.W.3d at 578. The Barchus court stated: “To the extent the Commission has concluded that a claimant must show evidence that he fractured his skull to be entitled to [lifetime income benefits], we find that such conclusion is inconsistent with the plain language of the statute.” Id. at 580. We agree that adopting a narrow definition of “skull injury” that would require evidence of skeletal damage is inconsistent with the Legislature’s intent to compensate for life severely injured employees who are injured directly by a blow to their head. See id.

Finally, we note that the lifetime benefits provision at issue requires proof of an “injury” to the skull. Act of Dec. 12, 1989, 71st Leg., 2d C.S., ch. 1 § 4.31, 1989 Tex. Gen. Laws 42 (amended 1997). The term “injury” was broadly defined as “damage or harm to the physical structure of the body and those diseases or infections naturally resulting from the damage or harm.” Id., 1989 Tex. Gen. Laws 3 (see current version at Tex. Lab. Code Ann. § 401.011(26) (Vernon 2006) wherein the term is similarly defined). In this case, it was not disputed that Camacho suffered a closed head injury. A blow to the head that causes bruising and unconsciousness and results in a diagnosis of a closed head injury is, in our opinion, sufficient harm to the skull to meet this statute’s requirement of a skull injury. Therefore, we overrule Liberty Mutual’s legal sufficiency challenge to the jury’s finding that Camacho sustained a skull injury. Issue one is overruled.

JURY INSTRUCTION

In issue three, Liberty Mutual asserts that the trial judge improperly instructed the jury to “give no special weight” to the decision of the Texas Workers’ Compensation Commission. Camacho responds that the trial court’s instruction “was a correct statement of the law.” We review whether a trial court erred in giving a jury instruction under an abuse of discretion standard. Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990).

In jury trials, the Workers’ Compensation Act requires the trial court to inform the jury “of the appeals panel decision on each disputed issue . . . that is submitted to the jury.” Tex. Lab. Code Ann. § 410.304(a) (Vernon 2006). Following the Legislature’s enactment of the Act, the Texas Supreme Court in Texas Workers’ Compensation Commission v. Garcia, 893 S.W.2d 504, 528 (Tex. 1995), rejected a challenge to the constitutionality of this particular provision of the Act. The Supreme Court stated:

 

The Act does specify certain limiting procedures not found in a pure trial de novo. First, the jury is informed of the Commission’s decision. Because the jury is not required to accord that decision any particular weight, however, this procedure does not impinge on the jury’s discretion in deciding the relevant factual issues. We hold that this procedure does not violate a claimant’s right to trial by jury.

Id. The Supreme Court stated that the jury is not required to give the decision any “particular weight;” however, the Court did not affirmatively direct that juries are to give appeals-panel decisions “no special weight.” Id. Further, the Supreme Court did not direct trial courts to give an instruction to the jury regarding the weight, or lack thereof, of the appeals-panel’s decision. Id.

The Supreme Court’s language in Garcia suggests that a juror is free to give the appeals-panel decision no weight, some weight, or significant weight, depending on that particular juror’s view of the evidence. See id. Although the jury is not bound to follow the appeals-panel decision, it may give it weight if it so chooses. In this case, however, by affirmatively instructing the jury to give the decision “no special weight,” the jurors were instructed to all but disregard the decision of the appeals-panel. There is a material difference between an instruction that leaves the jury free to accord the decision of the appeals-panel the weight the jury thinks it deserves, and an instruction that tells the jury to discount, if not disregard, the decision. Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1984) (“There is a material difference between an instruction that the happening ‘is not’ negligence and an instruction that the happening ‘does not necessarily imply’ negligence.”). “The jury does not need either instruction. This court has treated addenda to the charge as impermissible comments that tilt or nudge the jury one way or the other.” Id.

An instruction by a trial court that misstates the law or misleads the jury is improper. Steak & Ale of Tex., Inc. v. Borneman, 62 S.W.3d 898, 905 (Tex. App.-Fort Worth 2001, no pet.) (citing Jackson v. Fontaine’s Clinics, Inc., 499 S.W.2d 87, 90 (Tex. 1973)). “A requested instruction that is affirmatively incorrect is not ‘substantially correct’ as that term is used in Rule 278’s requirement that proposed questions and instructions be substantially correct.” Baylor Univ. v. Coley, 50 Tex. Sup. Ct. J. 621, 2007 WL 1162489, at *7 (Tex. April 20, 2007) (Johnson, J., concurring). Moreover, the Rules of Civil Procedure prohibit the trial court from making a “comment directly on the weight of the evidence” in its jury charge. See Tex. R. Civ. P. 277.

In some instances, it is error for the trial court to give the jury an instruction even when it is a substantially correct statement of the law. For example, in Acord v. General Motors Corporation, 669 S.W.2d 111 (Tex. 1984), the Supreme Court reversed a jury verdict based on charge error when the trial court instructed the jury that a manufacturer is not an insurer of the product it designs. 669 S.W.2d at 113, 116. Although the instruction was a correct statement of law, the Supreme Court found harmful error and said: “In a closely contested case as is the one at bar, to single out for the jury that General Motors was neither an insurer nor a guarantor of a perfect or accident-proof product, which incorporated ultimate safety features, was a comment on the case as a whole. As such, it constituted harmful error.” Id. at 116.

We hold that the instruction submitted by the trial court in this case constituted an impermissible comment that tilted or nudged the jury’s consideration of the decision of the appeals-panel. The instruction to the jury singled out one piece of evidence admitted at trial, and implied that the jury should treat the appeals-panel decision differently than it was to treat the other evidence admitted at trial; in that way, the instruction served to comment on the case as a whole. We further hold that the instruction the trial court submitted was not a substantially correct statement of law. For these two reasons, we conclude the trial court erred in instructing the jury to give the appeals-panel decision “no special weight.”

HARM

In cases involving an incorrect jury instruction, an appeals court reverses only if the instruction “‘was reasonably calculated to and probably did cause the rendition of an improper judgment.'” Bed, Bath & Beyond, Inc. v. Urista, 211 S.W.3d 753, 757 (Tex. 2006) (quoting Reinhart v. Young, 906 S.W.2d 471, 473 (Tex. 1995)). We examine the entire record to evaluate whether the instruction probably caused the rendition of an improper verdict. Id.

The appeals-panel decision involved both the issue of Camacho’s injury and the issue of his imbecility. The issue at trial regarding Camacho’s imbecility was closely contested. Dr. Garrison testified that Camacho was not an imbecile. The jury also heard Dr. Pollock’s testimony that Camacho’s testing showed that he functioned below a first grade level and that he had an IQ score in the upper 60’s. Dr. Pollock additionally testified that Camacho was not capable of independent living because of his severe cognitive impairment and that he functioned at an imbecilic level. However, Dr. Pollock acknowledged that the records of another neuropsychologist contained a contrary opinion that Camacho did not suffer from incurable imbecility. Liberty Mutual’s evidence also included a letter from Dr. Francisco Perez, a neuropsychologist. Dr. Perez’s letter states, “I don’t believe there is any evidence of a cerebral dysfunction or any sequela from a head injury.” The record also contains a report by Dr. Jeremiah Twomey, who practices occupational medicine, in which he opined, “I do not feel that the records I reviewed qualify him for lifetime benefits on the basis of psychological impairment to the level of imbecility.” Finally, the report of Dr. John Cassidy, a psychiatrist, states: “This patient does not meet [the] criteria of statute 408.161 (a) (6) of the TWCC Act for incurable insanity or imbecility.”

Camacho also addressed his physical limitations during his testimony at trial. Camacho testified that he continued to drive on the ranch, but not in the city, and that he could no longer train horses. Camacho indicated that he could bathe and dress himself, saddle and water horses, sometimes feed the cattle, load light things, participate in moving cattle from one pen to another, and assist in taking cattle to auctions.

The trial court instructed the jury that an imbecile was “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.” From the above discussion, it is apparent that the evidence on whether Camacho functioned as an imbecile conflicted.

The purpose of instructing the jury on the decision of the appeals-panel distinguishes it from cases when courts have found general instructions to the jury improper, but nevertheless, harmless. See generally Urista, 211 S.W.3d at 756 (harmless error rule applied to improper submission of unavoidable accident instruction). In this case, the instruction regards a specific piece of evidence: the appeals-panel decision. Because the instruction applies to specific evidence, there is a danger that the jury may infer from the instruction given here, that the trial judge disagrees with the appeals-panel’s resolution of the dispute. Also, the instruction in Urista was a substantially correct statement of law; here, the instruction is not substantially correct. Finally, under Urista’s facts, it was unclear whether the instruction caused the jury to find as it did. See id. at 758. Here, the jury rejected Liberty Mutual’s case that was supported by evidence from several physicians while accepting Camacho’s case that relied on the testimony of one expert witness who was not a physician.

In conclusion, the jury was entitled to give the decision of the appeals-panel whatever weight it thought the decision deserved. The trial court’s instruction to give the decision “no special weight” was an incorrect statement of the law and served to nudge the jury toward responding affirmatively in deciding whether the injury resulted in incurable imbecility. We hold that the erroneous submission of the instruction at issue probably caused the rendition of an improper verdict.

In issues two, four and five, Liberty Mutual raises additional issues. Because reviewing these issues would afford Liberty Mutual no greater relief than the relief granted herein, we do not address these three issues. See Tex. R. App. P. 47.1. Because the trial judge improperly instructed the jury, we reverse the judgment and remand this cause for the purpose of a new trial.

REVERSED AND REMANDED.

 

____________________________

HOLLIS HORTON

Justice

 

Submitted on March 22, 2007

Opinion Delivered June 21, 2007

Before Gaultney, Kreger, and Horton, JJ.

1. In contrast, since 1997, the compensation statute provides for lifetime benefits for “a physically traumatic injury to the brain resulting in incurable insanity or imbecility.” Tex. Lab. Code Ann. § 408.161 (a)(6) (Vernon 2006).

 

 

 

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

Martindale AVtexas[2]

Dallas Workers’ Compensation Attorney Caught Defrauding System

Dallas attorney and family members charged with defrauding workers comp out of $22 million

 

Published:

By Kevin Krause, Dallas Morning News

 

A Dallas attorney and his wife and his sister have been charged with bilking the government out of more than $22 million by billing the federal worker’s compensation program for bogus medical equipment, the U.S. attorney’s office said.

The attorney, Tshombe Anderson, 52, was arrested Friday.

His wife, Brenda Anderson, 45, and his sister, Lydia Bankhead, 61, were arrested on Wednesday and remain in federal custody.

They are accused of forming several alleged businesses to provide medical equipment to rehab patients that either wasn’t needed or wasn’t requested. The government reimbursed them based on false billings, officials said.

Tshombe Anderson worked as an attorney for Union Treatment Center from about February 2010 to May 2011, according to a federal complaint. The treatment and rehab center has offices in Austin, Corpus Christi, Killeen and San Antonio.

The center treated injured state and federal worker’s compensation patients.

Brenda Anderson joined the company in February 2010. Shortly afterward, she formed Best First Administration Durable Medical Equipment of Austin, which became the center’s “in-house” provider of medical equipment, the complaint said.

Under that arrangement, Brenda Anderson would provide the center’s patients with medical equipment prescribed by its doctors, and the worker’s comp program paid the bills.

The rehab center fired the couple in May 2011 after an audit found that they appeared to be involved in fraudulent billing.

But Brenda Anderson kept patient records from the center and used that information to continue billing the worker’s comp program for equipment that wasn’t necessary or needed, according to the complaint.

In January 2013, Tshombe Anderson formed Union Medical Supplies & Equipment LLC, managed by Bankhead and their mother. It also billed the government for bogus medical equipment supposedly provided to Union Treatment Center patients, the complaint said.

Federal authorities said that every transaction billed by Union Medical Supplies & Equipment “appears to be fraudulent.”

Authorities said Tshombe Anderson ran the same scheme with Sky-Care Medical Supplies & Equipment LLC, which he formed in May 2013. His sister-in-law was listed as its manager.

Other fraudulent billings were made in 2014 under an entity he formed called American Federal Union Claims Advocates LLC, the complaint said.

Tshombe Anderson received his law degree in 1999 from the University Of Arkansas. He has been disciplined by the Texas state bar four times between 2005 and 2011, records show. And in 2007, he received a public reprimand.

 

http://crimeblog.dallasnews.com/2015/08/dallas-attorney-and-family-members-charged-with-defrauding-workers-comp-out-of-22-million.html/

There is No Prohibition Against Communicating With Employer Of Insurance Carrier Through Insurance Defense Attorney–Texas Workers’ Compensation Law Attorneys

Texas Workers’ Compensation Law Attorneys–There is No Prohibition Against Communicating With Employer Of Insurance Carrier Through Insurance Defense Attorney
APPEAL 972657 – JANUARY 29, 1998
The Hearing Officer determined that Claimant was entitled to SIBs for the third quarter in spite of a job offer letter from the Employer. The Claimant took the “job offer” letter to his attorney and the attorney wrote for clarification. The Employer did not answer.
The Appeals Panel affirmed and stated that there is no prohibition against communicating with one’s employer or carrier through an attorney. They also stated that Rule 129.5 may be used as guidance in determining the bona fide nature of a job offer (Appeal 961570).

 

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

Martindale AVtexas[2]