Untitled Texas Attorney General Opinion

The Attorney General of Texas March 24, 1983 JIM MATTOX Attorney General Mr. H. S. Harris, Jr. Opinion No. JM-21 Supreme Court Building P. 0. BOY 12546 Chairman Austin. TX. 76711.2548 Texas Industrial Accident Board Re: Workers' Compensation 5121475-2501 200 East Riverside Drive statutes pertaining to payment T&x 9101674.1367 Austin, Texas 78704 of lump sum benefits in cases Telecopier 5121475.0266 involving fatality 1607 Main St.. Suite 1400 Dear Mr. Harris: Dallas. TX. 752014709 214,742.6944 You have asked us to construe sections of the workers' compensation laws providing for lump sum payment of death benefits in 4624 Alberta Ave., Suite 160 certain cases involving fatality. You suggest that the requirements El Paso. TX. 79905.2793 of section 8(d), article 8306, V.T.C.S., are inconsistent with those 915/533-3464 of sections 15 and 17 of the same article. LO Dallas Ave., Suite 202 Section 15 states that in cases where death or incapacity results Houston, TX. 77002-6966 from an injury, e lump sum payment of benefits may be made. It also 7131650-0666 provides that in cases where manifest hardship and injury would otherwise result, the board may compel payment of its award in a lump sum. Section 17 provides for lump sum payment of benefits to 606 Broadway. Suite 312 non-resident alien beneficiaries when certain requirements are met. Lubbock, TX. 794013479 6061747.5236 Both sections 15 and 17 were enacted in 1917. Acts 1917, 35th Leg., ch. 103, 1615, 17, at 280-81. 4309 N. Tenth. Suite 6 Article 8306, section 8 was amended in 1973. Acts 1973, 63rd McAllen, TX. 76501-1665 5121662-4547 Leg., ch. 88, 84. at 187-88. Section 8(d) currently reads in part: The benefits payable to a widow, widower, or 200 Main Plaza, Suite 400 children under this section shall not be paid in e San Antonio. TX. 76205.2797 lump sum except in events of remarriage or in case 5121225.4191 of bona fide disputes as to the liability of the association for the death. (Emphasis added). An Equal Opportunity/ Affirmative Action Employer Thus, section 8 appears to bar lump sum payment under circumstances where sections 15 and 17 would permit it. You first ask: 1. May the Industrial Accident Board award lump sum benefits to a surviving spouse or child where there is no bona fide dispute as to the liability of the insurance carrier? p. 94 .? _ Mr. H. S. Harris, Jr. - Page 2 (JM-21) The Texas Supreme Court discussed article 8306, section 8 in Twin City Fire Insurance Company v. Cortez. 576 S.W.2d 786 (Tex. 1979). The court stated that article 8306, section 8 restricts lump sum death benefits to the two situations listed in section 8(d). Id. at 789. Accord, Walters v. Fidelity & Casualty Company of New York. 611 S.W.2d 934, 937 (Tex. Civ. App. - Eastland 1981, writ ref'd n.r.e.); Walden v. Royal Globe Insurance Company, 577 S.W.2d 296, 299-300 (Tex. Civ. APP. - Beaumont 1979, writ ref'd n.r.e.). Thus, where payments are made to a widow, widower, or children as a result of the death of the insured, lump sums may be paid in only two circumstances: (1) to a widow or widower upon remarriage, or (2) in case of bona fide disputes as to the liability of the association. The 1973 amendment to section 8 was intended to change the prior practice of paying death benefits in a lump sum. Walters v. Fidelity 8 Casualty Company of New York, supra; Walden v. Royal Globe Insurance Company, s. Your first question is answered in the negative because neither of the conditions requisite to payment of a lump sum is present. Your second question is as follows: 2. May the Industrial Accident Board approve a lump sum settlement agreement by a s"rviving spouse or a child and the insurance carrier, in a fatal case, where there is no bone fide dispute as to the liability of the insurance carrier, but only a dispute as to the proper beneficiary or beneficiaries? No provision of the workers' compensation law authorizes lump sum payment to settle a dispute as to the proper beneficiary. Sections 8 and 8a of article 8306 state the persons to whom death benefits are payable. The lest sentence of section 8a provides that "[tlhe compensation provided for in this law shall be paid weekly to the beneficiaries herein specified, subject to the provisions of this law." (Emphasis added). Sections 8a end 8(d) also provide for weekly payments. There is no conflict between section 8a end section 8(d). Section 8(d) provides that lump sum payments may be made in disputes as to the liability of the association; section 8a provides that where there is no dispute es to liability. beneficiaries must be paid weekly. Therefore, we conclude that lump sum payments may not be made to beneficiaries when the only dispute is to whom payments must be made. You next ask: 3. May the Industrial Accident Board award lump sum benefits to a surviving spouse or child or other beneficiary, where there is no bona fide dispute es to the lisbility of the insurance p. 95 i Mr. H. S. Harris, Jr. - Page 3 (JM-21) carrier, but where the board finds 'manifest hardship end injury would otherwise result' as authorized in section 15? Your third question was answered by the Eastland Court of Civil Appeals in Walters v. Fidelity 8 Casualty Company of New York, supra at 937. The widow of the deceased employee attested that she had no income or funds, and that she was ii&g under a severe economic hardship. She argued that the trial court should have awarded a lump sum payment of death benefits. The appellate court discussed section 8(d) and stated as follows: Since there is neither a remarriage nor a settlement, we hold that the trial court correctly denied lump sum payment of future death benefits to Mrs. Welters. See also Twin City Fire Insurance Company v. Cortez, supra at 789. Section 15 now applies only in cases where the insured's injury results in incapacity. not death. You finally ask the following question: 4. Despite the provision of section 17, are the restrictions on lump sum payments described in section 8(d) applicable in cases involving the payment of fatal benefits to non-resident alien beneficiaries? Your last question concerns whether lump sum payments may be made to non-resident alien beneficiaries es provided in section 17. Section 8(d), as the latest expression of legislative intent repeals inconsistent provisions of section 17. See State v. Easley, 404 S.W.2d 296, 300 (Tex. 1966); Allied Finance Company of Bay City v. J.M. Falkner, 397 S.W.2d 846, 847 (Tex. 1966). Thus, payments to the non-resident alien beneficiaries of a deceased insured may be made to a widow or widower only in the event of remarriage or to other beneficiaries in cases of bona fide disputes as to liability of the association. SUMMARY Article 8306, section 8(d), V.T.C.S., restricts lump sum payment of death benefits to two situations: (1) upon remarriage of the widow or widower or (2) in the case of bone fide disputes as to the liability of the association. Thus, the Texas Industrial Accident Board may not award lump sum payments to an unremarried widow or widower or p. 96 Mr. H. S. Harris, Jr. - Page 4 (JM-21) to other beneficiaries where there is no dispute as to the liability of the insurance carrier. There is no provision in the Workers' Compensation Act permitting a lump *urn payment in the settlement of a dispute as to proper beneficiaries. Thus, no lump sum payment may be made in that circumstance. The board may award lump sum payments pursuant to sections 15 and 17 of article 8306, V.T.C.S., to the insured where he Jdkh? survives but is incapacitated, but not to the beneficiaries of a deceased insur d. Very truly you m JIM MATTOX Attorney General of Texas TOM GREEN First Assistant Attorney General DAVID R. RICHARDS Executive Assistant Attorney General Prepared by Patricia Hinojosa Assistant Attorney General APPROVED: OPINION COMMITTEE Susan L. Garrison, Chairman Jon Bible Rick Gilpin Patricia Hinojosa Jim Moellinger p. 97