Personal Injury Lawyer Austin Texas
Tags: Workers Comp
Lifetime Income Benefits
Dallas National contends that the trial court abused its discretion by finding both legally and factually sufficient evidence to support the determination that Morales's injury falls within the enumerated injuries established by the Workers' Compensation Act*fn6 ("the Act") in circumstances where a worker suffers certain, specific injuries or conditions, thereby entitling Morales to LIBS.
Lifetime income benefits are paid to an employee for:
(1) total and permanent loss of sight in both eyes;
(2) loss of both feet at or above the ankle;
(3) loss of both hands at or above the wrist;
(4) loss of one foot at or above the ankle and the loss of one hand at or above the wrist;
(5) an injury to the spine that results in permanent and complete paralysis of both arms, both legs, or one arm and one leg;
(6) a physically traumatic injury to the brain resulting in incurable insanity or imbecility; or
(7) third degree burns that cover at least 40 percent of the body and require grafting, or third degree burns covering the majority of either both hands or one hand and the face.
TEX.LAB.CODE ANN. § 408.161(a).
Both Dallas National and Morales refer us to Insurance Co. of State of Pennsylvania v. Muro, 347 S.W.3d 268 (Tex. 2011), the most recent case from the Texas Supreme Court discussing Section 408.161. Dallas National argues that Morales failed to meet the burden of proof set out in Muro, and that Morales failed to establish a specific, statutory injury of the exclusive type found in Section 408.161. Rather, he proved a general incapacity, which cannot serve as a basis for an award of LIBS. Dallas National contends that, under Muro, Morales's other injuries, i.e. his leg pain, do not entitle him to LIBS. Finally, Dallas National argues that the Muro court rejected a case relied on by Morales's counsel, Hartford Underwriters Ins. Co. v. Burdine, 34 S.W.3d 700, 707 (Tex.App.--Fort Worth 2000, no pet.)(upholding award of LIBS where evidence showed that claimant's back injury involved the back and "associated nerve roots" which extended into the feet, resulting in claimant's inability to use feet as a permanent condition and rendering claimant totally disabled).
The Legislature has limited the award of lifetime income benefits to the specific injuries and body parts enumerated in section 408.161; nothing in the statute authorizes the substitution of other injuries or body parts for those enumerated. TEX.LAB.CODE § 408.161. The injury to the statutory body part may be direct or indirect, as in Burdine, but the injury must extend to and impair the statutory body part itself to implicate section 408.161.
Muro, 347 S.W.3d at 276.
Under the Texas Labor Code, a worker is entitled to receive SIBS if the following requirements are met: (1) the worker has an impairment rating of 15 percent or higher; (2) the worker has not returned to work or has returned to work earning less than 80 percent of the employee's average weekly wage as a direct result of the employee's impairment; (3) the worker has not elected to commute a portion of the impairment income benefit under Section 408.128; and
(4) the worker has attempted in good faith to obtain employment. TEX.LAB.CODE ANN. § 408.142.
Dallas National Insurance v. Morales (Tex. App. - El Paso, 2012).