COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00059-CV
LIBERTY MUTUAL INSURANCE APPELLANTS
COMPANY AND TEXAS
DEPARTMENT OF INSURANCE,
DIVISION OF WORKERS‘
COMPENSATION
V.
RICKY ADCOCK APPELLEE
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FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. Introduction
In one issue, Appellants Liberty Mutual Insurance Company and the Texas
Department of Insurance, Division of Workers‘ Compensation assert that the trial
court erred by granting summary judgment for Appellee Ricky Adcock, arguing
that the Division had jurisdiction in 2009 to review a 1997 award of Lifetime
Income Benefits (LIBs) to Adcock. We affirm.
II. Factual and Procedural Background
This is the Once-In-A-Lifetime case. Because this case turns on statutory
construction, we need not conduct an extensive recitation of the factual and
procedural background. Suffice it to say that in 1991, Adcock received a
compensable on-the-job injury, and in 1997, the Division‘s Appeals Panel held
that Adcock was entitled to LIBs due to the total and permanent functional loss of
use of his right foot above the ankle and right hand up to and including the right
wrist. This decision was not appealed.
Several years later, Liberty Mutual, the workers‘ compensation carrier,
sought to reopen Adcock‘s case, asserting that Adcock was no longer entitled to
LIBs because he no longer had the total and permanent functional loss of use
that was the basis of his award. The issues certified by the hearing officer and
agreed to by the parties were:
(1) Is Claimant entitled to lifetime income benefits (LIBs) as of this date
based on total and permanent loss of use of his hands and legs?
(2) As a result of the decision and order of the Appeals panel in Appeal No.
970981, does the Division have jurisdiction to determine continuing
entitlement to lifetime income benefits (LIBs)?
After a hearing officer determined that Adcock was entitled to continued LIBs, the
Division‘s Appeals Panel found that the Division had jurisdiction to reopen the
case but that Adcock continued to be entitled to LIBs.
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On appeal to the district court, Adcock argued that based on the statutory
language in labor code section 408.161 and on principles of res judicata and
collateral estoppel, the case could not be reopened. The Division intervened,
asserting that it had jurisdiction. The trial court agreed with Adcock‘s premise
that the Division could not reopen the 1997 case and granted Adcock‘s summary
judgment. In its final judgment, it stated, ―[T]he Court enters judgment that the
Texas Department of Insurance—Division of Workers‘ Compensation, and by
extension this Court, lacks jurisdiction to revisit the issue of [LIBs] awarded to
Plaintiff in 1997.‖ This appeal followed.
III. Jurisdiction
Labor code section 408.161 states that ―lifetime income benefits are paid
until the death of the employee‖ for the loss of certain, statutorily specified body
parts. See Tex. Lab. Code Ann. § 408.161(a) (West 2006). It also provides that
―the total and permanent loss of use of a body part is the loss of that body part.‖
Id. § 408.161(b) (West 2006).
Liberty Mutual and the Division argue that the Division can revisit whether
the loss of use of a body part is permanent, asserting that ―lifetime‖ as used in
the statute refers to eligibility and duration, not entitlement. They contend that
because the legislature has vested the Division with exclusive jurisdiction to
resolve workers‘ compensation disputes, ―[n]either the nature of the income
benefit nor the existence of a prior order bars the Division from exercising its
exclusive jurisdiction,‖ and that this is consistent with the legislature‘s recognition
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that an employee‘s entitlement to benefits can change over the life of the claim.
And they add that to hold otherwise would be nonsensical because an injured
worker who improved would continue to receive LIBs, even though he no longer
met the statutory criteria.1
Adcock responds that once he became eligible for LIBs, no further review
was permitted because no such review is provided for in the statute‘s plain
language. He points out that given the severity of injuries to which LIBs apply, 2 it
would violate due process and be ―inherently cruel and unfair to subject such frail
individuals to the stress and uncertainty of what amounts to a lifetime of
litigation.‖
A. Standard of Review
We review an issue of statutory construction on the same basis that we
review a summary judgment: de novo. See Tex. R. Civ. P. 166a(c); Travelers
Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Mann Frankfort Stein &
1
This argument leads to the inescapable conclusion that, if Liberty Mutual
and the Division are correct, LIBs can be relitigated at any time and for an
unlimited number of times.
2
LIBs are paid until the death of the employee for 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 the 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 brain resulting in incurable insanity or imbecility; or third
degree burns that cover at least 40% of the body and require grafting, or third
degree burns covering the majority of either both hands or one hand and the
face. See Tex. Lab. Code Ann. § 408.161(a)(1)–(7).
4
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); City of
Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). Further,
[i]n construing statutes, we ascertain and give effect to the
Legislature‘s intent as expressed by the language of the statute. We
use definitions prescribed by the Legislature and any technical or
particular meaning the words have acquired. Otherwise, we
construe the statute‘s words according to their plain and common
meaning, unless a contrary intention is apparent from the context, or
unless such a construction leads to absurd results. We presume the
Legislature intended a just and reasonable result by enacting the
statute. When a statute‘s language is clear and unambiguous, it is
inappropriate to resort to rules of construction or extrinsic aids to
construe the language.
City of Rockwall, 246 S.W.3d at 625–26 (citations omitted). Our practice when
construing a statute is to recognize that ―the words [the Legislature] chooses
should be the surest guide to legislative intent,‖ Presidio Indep. Sch. Dist. v.
Scott, 309 S.W.3d 927, 930 (Tex. 2010), and we must ―‗take statutes as [we] find
them.‘‖ RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.
1985) (quoting Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920)).
B. Analysis
We begin our analysis with the well-established principle that an
administrative agency may exercise only those powers that the legislature
―confers upon it in clear and express language, and [that it] cannot erect and
exercise what really amounts to a new or additional power for the purpose of
administrative expediency.‖ Tex. Natural Res. Conservation Comm’n v.
Lakeshore Util. Co., 164 S.W.3d 368, 377 (Tex. 2005). This is because an
administrative agency is a creature of the legislature, with no inherent authority of
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its own. Id. However, when the legislature expressly confers a power on an
agency, ―it also impliedly intends that the agency have whatever powers are
reasonably necessary to fulfill its express functions or duties.‖ Id. at 378.
In this case, the agency is the Division, which possesses exclusive
jurisdiction regarding claims arising under the Texas Workers‘ Compensation Act
(TWCA). See In re Metro. Transit Auth., 334 S.W.3d 806, 810 (Tex. App.—
Houston [1st Dist.] 2011, orig. proceeding). ―‗Construction of a statute by the
administrative agency charged with its enforcement is entitled to serious
consideration, so long as the construction is reasonable and does not contradict
the plain language of the statute.‘‖ Mid-Century Ins. Co. of Tex. v. Ademaj, 243
S.W.3d 618, 623 (Tex. 2007) (quoting Tarrant App. Dist. v. Moore, 845 S.W.2d
820, 822 (Tex. 1993)); State v. Pub. Util. Comm’n of Tex., 883 S.W.2d 190, 196
(Tex. 1994) (―[T]he contemporaneous construction of a statute by the
administrative agency charged with its enforcement is entitled to great weight.‖).
But see TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex.
2011) (stating that deference to an agency‘s interpretation is not conclusive or
unlimited).
Further, we must construe the provisions of the TWCA liberally in favor of
the injured worker, to effectuate the purposes for which it was enacted: ―‗[A]
strained and narrow construction of [the TWCA] would be improper. Moreover, it
would be injudicious to construe the statute in a manner that supplies by
implication restrictions on an employee‘s rights that are not found in . . . [the]
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plain language.‘‖ In re Poly-Am., L.P., 262 S.W.3d 337, 350 (Tex. 2008) (orig.
proceeding) (quoting Kroger v. Keng, 23 S.W.3d 347, 349 (Tex. 2000)); Tex.
Gen. Indem. v. Workers’ Comp. Comm’n, 36 S.W.3d 635, 640 (Tex. App.—
Austin 2000, no pet.) (―[T]he liberal construction we apply to workers‘
compensation legislation [is] to carry out its evident purpose of compensating
injured workers and their dependents.‖).
The legislature is well aware of how to afford the Division the opportunity to
review awards made to claimants under the TWCA. Under the prior TWCA,
article 8306, section 12d specifically allowed review upon a change of condition,
mistake, or fraud, providing that
[u]pon its own motion or upon the application of any person
interested showing a change of condition, mistake or fraud, the
Board at any time within the compensation period, may review any
award or order, ending, diminishing or increasing compensation
previously awarded, within the maximum and minimum provided in
this Law, or change or revoke its previous order denying
compensation, sending immediately to the parties a copy of its
subsequent order or award. Provided, when such previous order
has denied compensation, application to review same shall be made
to the Board within twelve months after its entry, and not afterward.
Review under this Section shall be only upon notice to the parties
interested.
Act of May 20, 1931, 42nd Leg. R.S., ch. 155, § 1, sec. 1, 1931 Tex. Gen. Laws
260, 260 (emphasis added), repealed by Act effective Jan. 1, 1991, 71st Leg.
2nd C.S., ch. 1, sec. 16.01(7), 1989 Tex. Gen. Laws 114, 114. This language
was not included in the recodification of the TWCA into the labor code.
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Further, under the present TWCA, the legislature has provided for
quarterly review of eligibility for Supplemental Income Benefits (SIBs), Tex. Lab.
Code Ann. § 408.143(b) (West 2006). A SIBs recipient‘s status is reviewable
annually, and his or her medical condition is reviewable after two years. Id.
§§ 408.149, .151 (West 2006). For Temporary Income Benefits (TIBs), a
recipient‘s treating physician reviews and prepares a work status report when
there is a change in the ability to work. 28 Tex. Admin. Code Ann. § 129.5(d)(2)
(2009) (Tex. Dep‘t of Ins., Div. of Workers‘ Comp., Work Status Reports). And
Death Income Benefits are subject to review due to a change in marital status or
status as a minor. Tex. Lab. Code Ann. § 408.183 (West 2006 & Supp. 2010).
In sum, the statutory language stating that LIBs are ―paid until the death of
the employee,‖ and the legislature‘s clear intent when enacting the TWCA to
provide for review under several other circumstances but not once entitlement to
LIBs has been established, 3 indicates to us that the legislature gave the Division
3
The Texas Supreme Court recently compared these benefits, stating,
Lifetime income is the greatest income benefit a worker can
receive under the workers‘ compensation act. In addition to lifetime
income, the act provides for three lesser awards: temporary income
benefits, impairment income benefits, and supplemental income
benefits. These benefits accrue when a compensable injury causes
a decrease in the employee‘s earnings and are generally paid
weekly by the insurance carrier ―as and when they accrue.‖ A
claimant‘s combined eligibility for temporary income benefits,
impairment income benefits, and supplemental income benefits
generally terminates 401 weeks after the date of injury. But the 401-
week limitation does not apply to lifetime income benefits, which, as
the name implies, are payable until the injured employee’s death.
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no express or implicit authority for further review of LIBs after eligibility is
determined.
Liberty Mutual and the Division rely on Deep East Texas Self Insurance
Fund, Appeal No. 020432-s, 2002 WL 971079 (Tex. Workers‘ Comp. Comm‘n
Apr. 10, 2002), as authority to support their jurisdictional argument. In Deep East
Texas, after the claimant received an award of LIBs in 1999 upon a finding of
loss of permanent function in his legs, he was videotaped in situations showing
that he could walk independently without a walker, cane, or other device. Id. at
*1–2. The Appeals Panel considered whether the Commission (now the
Division) had jurisdiction to reopen the issue of entitlement to LIBs and decided,
in a 2-to-1 decision, that there was ―no rational basis for holding that the
Commission has no continuing jurisdiction to resolve disputes over entitlement to
these [LIB] benefits.‖ Id. at *2, 4. The majority reached this decision despite
acknowledging (1) that there was ―no express provision in the 1989 Act or in the
Commission‘s rules authorizing and providing a mechanism for the raising, and
resolving, of a disputed issue concerning continued entitlement to LIBs once
initially determined;‖ (2) that agencies, as creatures of statute, may ―exercise only
those specific powers conferred upon them by law in clear and express
Ins. Co. of State of Pa. v. Muro, No. 09-0340, 2011 WL 3796569, at *2 (Tex. Aug.
26, 2011) (citations omitted) (emphasis added); see also Region XIX Serv. Ctr. v.
Banda, 343 S.W.3d 480, 485 (Tex. App.—El Paso 2011, pet. filed) (―The loss of
use must also be permanent for a claimant to qualify for lifetime income benefits.‖
(emphasis added)).
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language,‖ with no additional authority implied by judicial construction; and (3)
that the predecessor statute‘s language authorizing review of any award or order
previously awarded if there was a change of condition, mistake, or fraud was not
carried over into the 1989 Act. Id. at *3–4.
Further, according to the Deep East Texas majority, a contested case
hearing is not the proper forum to determine an administrative violation such as
obtaining benefits by fraud, and the Appeals Panel has no authority to order
administrative penalties and repayment of fraudulently obtained income benefits;
rather, the State Office of Administrative Hearings sets the hearing, under labor
code section 415.034. Id. at *4; see also Tex. Lab. Code Ann. § 415.034 (West
2006) (stating that on the request of the charged party or the commissioner, the
State Office of Administrative Hearings shall set a hearing and the hearing shall
be conducted in the manner provided for a contested case under government
code chapter 2001). But the majority stated that its jurisdictional determination
and rendition of a new decision that the claimant was not entitled to future LIBs
eliminated the need for the self-insured to initiate a section 415.031
administrative violation proceeding. Deep E. Tex., 2002 WL 971079, at *4; see
also Tex. Lab. Code Ann. § 415.031 (West 2006) (―Any person may request the
initiation of administration violation proceedings by filing a written allegation with
the division.‖); GuideOne Ins. Co. v. Cupps, 207 S.W.3d 900, 902, 908 (Tex.
App.—Fort Worth 2006, pet. denied) (stating that under labor code section
415.008, the Commission has authority to resolve the claims—such as
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GuideOne‘s fraud, conversion, negligent misrepresentation, and Theft Liability
Act claims against Cupps for allegedly fraudulently obtaining SIBs—first, through
administrative remedies such as through a benefit review conference or
administrative violation proceeding, before the courts may grant relief). The
Deep East Texas majority‘s conclusion would render section 415.031
meaningless, among others.4 See Barron v. Cook Children’s Health Care Sys.,
218 S.W.3d 806, 809 (Tex. App.—Fort Worth 2007, no pet.) (stating that we
should not adopt a construction that would render a law or provision
meaningless).
4
Labor code section 415.008 provides that a person commits a Class B
administrative violation if, to obtain a payment of a workers‘ compensation
benefit, he knowingly or intentionally makes, among other things, a false or
misleading statement, misrepresents or conceals a material fact, or conspires to
do one of these acts. See Tex. Lab. Code Ann. § 415.008(a), (b) (West 2006).
For committing a Class B administrative violation under section 415.008, the
violator is liable for full repayment plus interest. Id. § 415.008(c). We have not
encountered a LIBs case involving section 415.008. Cf. Cupps, 207 S.W.3d at
908 (involving SIBs).
We also note that current section 418.001 states that it is a state jail felony
if someone, with the intent to obtain payment of benefits of $1,500 or more under
chapter 418, knowingly or intentionally makes, among other things, a false or
misleading statement or misrepresents or conceals a material fact. See id.
§ 418.001 (West 2006). Section 418.001 has not yet been construed.
Neither party has explained how these sections might affect the
jurisdictional question before us. We infer that these sections may have been
intended as a replacement for former article 8306, section 12d, but they do not
include any express provision for review by the Division under the procedure
used in this case.
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The dissent disputed the idea that the Commission had jurisdiction to
continue to review the claimant‘s entitlement to LIBs. Deep E. Tex., 2002 WL
971079, at *5 (Chaney, J., dissenting). Specifically, Appeals Judge Chaney
stated that any remedy available to the insurance carrier under the case‘s
circumstances was in section 415.031. Id. She also pointed out, as we have
noted above, that the legislature did not continue the previous Act‘s specific
allowance for continued review into the present Act, and she noted that the
legislature‘s failure to carry the provision forward into the 1989 Act ―significantly
undermine[d] an argument that the Commission has an implied authority to make
such a modification.‖ Id. Finally, she pointed out that, as here, the carrier did not
appeal the original determination that the claimant was entitled to LIBs, and to
follow the majority‘s reasoning would do ―exactly what the . . . court [in
Lumbermens Mutual Casualty Co. v. Manasco, 971 S.W.2d 60 (Tex. 1998)]
state[d] is prohibited, namely permitting the carrier to ‗use a second set of
administrative proceedings to bootstrap a belated appeal‘ of a final benefits
determination.‖5 Id. at *6; see also Rodriguez v. Serv. Lloyds Ins. Co., 997
S.W.2d 248, 256 (Tex. 1999) (stating that in Manasco, the court ―rejected any
5
In Manasco, the supreme court interpreted the ―substantial change of
condition‖ language in section 410.307 to hold that a claimant could not obtain
reconsideration of his original, unappealed impairment rating by using a second
set of administrative proceedings to ―bootstrap‖ a belated appeal for judicial
review of that rating because allowing claimants to do so would distort the TWCA
beyond its intent. 971 S.W.2d at 64.
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notion that this section [410.307] created an independent, substantive right to
reopen the impairment issue after the claimant had failed to timely appeal‖).
We agree with the arguments set out by the Deep East Texas dissent.
See 2002 WL 971079, at *5–6; see also Poly-Am., L.P., 262 S.W.3d at 350; Tex.
Natural Res. Conservation Comm’n, 164 S.W.3d at 377–78. As acknowledged
by Liberty Mutual and the Division, there is no express language in section
408.161 that gives the Division the right to revisit the issue of LIBs entitlement
whenever it chooses, and the statutory scheme recounted above clearly shows
that the legislature knew how to include this authority if it so desired. Compare
Act of May 20, 1931, 42nd Leg. R.S., ch. 155, § 1, 1931 Tex. Gen. Laws 260,
260 (repealed 1989), with Tex. Lab. Code Ann. §§ 415.008, .031, .034, 418.001.
Therefore, we conclude that the Division has no implied right to review LIBs
under section 408.161 after the initial administrative and appellate remedies have
been exhausted, and we overrule Liberty Mutual‘s and the Division‘s sole issue.
See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009) (op.
on reh‘g) (―Enforcing the law as written is a court‘s safest refuge in matters of
statutory construction, and we should always refrain from rewriting text that
lawmakers chose.‖).
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Conclusion
Having overruled Liberty Mutual‘s and the Division‘s sole issue, we affirm
the trial court‘s judgment.
BOB MCCOY
JUSTICE
PANEL: DAUPHINOT and MCCOY, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).
DELIVERED: October 20, 2011
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