                                            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
