                IN THE SUPREME COURT OF TEXAS
                                          444444444444
                                            NO . 11-0934
                                          444444444444


                LIBERTY MUTUAL INSURANCE COMPANY, PETITIONER,

                                                  v.

                               RICKY ADCOCK, RESPONDENT,

                                                  v.

 TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS’ COMPENSATION,
                           RESPONDENT

           4444444444444444444444444444444444444444444444444444
                              ON PETITION FOR REVIEW FROM THE
                     COURT OF APPEALS FOR THE SECOND DISTRICT OF TEXAS
           4444444444444444444444444444444444444444444444444444


                                    Argued December 6, 2012

      JUSTICE GUZMAN delivered the opinion of the Court, in which JUSTICE JOHNSON , JUSTICE
WILLETT , JUSTICE LEHRMANN , JUSTICE BOYD , and JUSTICE DEVINE joined.

      JUSTICE GREEN filed a dissenting opinion, in which CHIEF JUSTICE JEFFERSON and JUSTICE
HECHT joined.

       A fundamental constraint on the courts’ role in statutory interpretation is that the Legislature

enacts the laws of the state and the courts must find their intent in that language and not elsewhere.

Under the guise of agency deference, an agency asks us to judicially engraft into the Texas Workers’

Compensation Act a statutory procedure to re-open determinations of eligibility for permanent

lifetime income benefits—a procedure the Legislature deliberately removed in 1989.                The
Legislature’s choice is clear, and it is not our province to override that determination. This is

especially true because, as we held in Texas Mutual Insurance Co. v. Ruttiger, the Act is a

comprehensive statutory scheme, and therefore precludes the application of claims and procedures

not contained within the Act.1 In light of the Act’s comprehensive nature, we decline to judicially

engraft into it a procedure the Legislature deliberately removed. Accordingly, we affirm the

judgment of the court of appeals.

                                         I. Background

       In 1991, Ricky Adcock suffered a compensable injury to his right ankle. Though he

underwent reconstructive surgery, he developed reflex sympathetic dystrophy in the injured ankle.

In 1997, the appeals panel determined that Adcock was entitled to Lifetime Income Benefits (LIBs)

because “the great weight and preponderance of the evidence is that the claimant has the total and

permanent loss of use of his right hand at his wrist” in addition to the stipulated loss of use of

Adcock’s right foot. Liberty Mutual Insurance Company (Liberty), the workers’ compensation

carrier for Adcock’s employer, did not seek judicial review of that decision.

       Over a decade later, Liberty sought a new contested case hearing on Adcock’s continuing

eligibility for LIBs based on Liberty’s belief that Adcock may have regained the use of his

extremities.    The hearing officer determined that Liberty could re-open the previous LIB

determination but ultimately concluded Adcock remained entitled to LIBs based on his loss of use

of his right hand and both feet. The appeals panel affirmed.



       1
           381 S.W.3d 430, 451 (Tex. 2012).

                                                 2
        Both parties sought judicial review. Adcock moved for summary judgment, contending the

hearing officer lacked jurisdiction to re-open the previous LIB determination.                The Texas

Department of Insurance, Division of Workers’ Compensation (the Division) subsequently

intervened, asserting that it has jurisdiction to re-open LIB determinations.2 The trial court granted

Adcock’s motion for summary judgment. The court of appeals affirmed, noting the Legislature had

specifically removed the procedure to re-open LIB determinations in 1989 and the current Act only

provides for ongoing review of temporary income benefits. 353 S.W.3d 246, 249–52.

                                             II. Discussion

        “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 . . . .” Entergy Gulf States,

Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009). We review issues of statutory construction de

novo, and our primary objective in construing a statute is to ascertain and give effect to the

Legislature’s intent. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). The plain meaning of

the text, given the context of the statute as a whole, provides the best expression of legislative intent.

Id.; Ruttiger, 381 S.W.3d at 454.

        Although we have held that “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,” an agency has no authority to “exercise what is effectively a new power,



        2
          In 2005, the Legislature abolished the Texas Workers’ Compensation Commission and
transferred its functions to the Texas Department of Insurance, Workers’ Compensation Division.
See Act of May 29, 2005, 70th Leg., R.S., ch. 265, § 8.001, 2005 Tex. Gen. Laws 469, 607–08.

                                                    3
or a power contradictory to the statute, on the theory such a the power is expedient for administrative

purposes.” Pub. Util. Comm’n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 316

(Tex. 2001).

       The narrow question before us is whether the current version of the Act contains a procedure

to re-open LIB determinations. Liberty and the Division assert that if an employee medically

improves and no longer meets the statutory requirements for eligibility for LIBs, the Division has

“necessarily implicit” authority to re-open the LIB determination. Adcock counters that the plain

language of the statute indicates the LIB determination is permanent and offers no procedure to re-

open it. We agree with Adcock.

                                         A. Plain Language

       Section 408.161(a) of the Texas Workers’ Compensation Act (Act) states that “[l]ifetime

income benefits are paid until the death of the employee for” loss of one foot at or above the ankle

and one hand at or above the wrist. TEX . LAB. CODE § 408.161(a)(4). Moreover, “the total and

permanent loss of use of a body part is the loss of that body part.” Id. § 408.161(b). And

importantly, the Act does not provide any procedure to re-open the LIB determination. Id.

§ 408.161. On the contrary, the Legislature’s express mandate that LIBs “are paid until the death

of the employee” manifests its intent to make LIB determinations permanent.3 Id. § 408.161(a).




       3
         The dissent concedes the statute no longer contains a procedure to re-open the LIB
determination, indicating that “the Legislature cannot and need not envision every circumstance that
may arise in the workers’ compensation context” and that it “happened to leave a particular
circumstance unaddressed.” __ S.W.3d __, __ (Green, J., dissenting).

                                                  4
       Liberty argues that the term “lifetime” in LIBs “pertains to the duration of a worker’s

eligibility for benefits; it does not determine entitlement.” But the statute does not state that LIBs

“may be paid” until the employee’s death; rather, it mandates LIBs “are paid” until the employee’s

death. Id. Thus, when, as here, the Division has determined that an employee is eligible for LIBs,

the plain language of the statute mandates that such benefits continue until the employee’s death.

                     B. The Legislature’s Comprehensive Benefits Scheme

       We recently determined that “[t]he Act effectively eliminates the need for a judicially

imposed cause of action outside the administrative processes and other remedies in the Act.”

Ruttiger, 381 S.W.3d at 451. “It is apparent that the Act prescribes detailed, [Division]-supervised,

time-compressed processes for carriers to handle claims and for dispute resolution.” Id. at 443. We

observed: “[k]ey parts of the [workers’ compensation] system are the amount and types of benefits,

the delivery system for benefits, the dispute resolution processes for inevitable disputes that arise

among participants, the penalties imposed for failing to comply with legislatively mandated rules,

and the procedures for imposing such penalties.” Id. at 450 (emphasis added). Further, we

questioned “to what extent the judiciary will respect the Legislature’s function of addressing the

concerns and adjusting the rights of the parties in the workers’ compensation system as part of its

policy-making function.” Id. In answering that question, we ultimately held that “[t]he Act

effectively eliminates the need for a judicially imposed cause of action outside the administrative

processes and other remedies in the Act.” Id. at 451.           In sum, the Legislature devised a

comprehensive workers’ compensation system, with specific benefits and procedures based on the



                                                  5
public policy of the State of Texas. We concluded in Ruttiger that the Court should not alter the

Act’s comprehensive scheme, and we reaffirm that principle today.

        The Act’s comprehensive framework requires that we respect the Legislature’s choice to not

include a procedure to re-open the LIB determination. Before its comprehensive reform of the

workers’ compensation system in 1989, the Legislature specifically incorporated such a procedure,

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.

Act of May 20, 1931, 42d Leg., R.S., ch. 155, § 1, 1931 Tex. Gen. Laws 260. But the Legislature

repealed this provision as part of its reform of the workers’ compensation system in 1989. See Act

effective Jan. 1, 1991, 71st Leg., 2d C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 114; see also

Ruttiger, 381 S.W.3d at 439 (“The key, and most controversial, reforms were in the areas of

employee benefits and dispute resolution.”). Because the Legislature specifically chose to remove

the authority to re-open the permanent LIB determination as part of its reforms, we must credit that

choice. See Entergy, 282 S.W.3d at 443 (“It is, of course, axiomatic that the deletion of language

better indicates the Legislature’s intent to remove its effect, rather than to preserve it.”).

        As part of its revised comprehensive scheme of the workers’ compensation system, the

Legislature established a dichotomy containing two distinct classes of income benefits: temporary

benefits and permanent benefits. Temporary benefits are only paid as long as certain conditions


                                                   6
(e.g., medical conditions) continue to exist, whereas permanent benefits continue until the

occurrence of a statutory, terminating event (e.g., death).

       With respect to temporary benefits, the Act lays out specific procedures to re-open benefits

determinations. For example, supplemental income benefits (SIBs), a form of temporary benefits,

are based upon an employee’s demonstration of an active effort to obtain employment. TEX . LAB.

CODE § 408.1415(a). The Act expressly allows carriers to “request a benefit review conference to

contest an employee’s entitlement to supplemental income benefits or the amount of supplemental

income benefits.” Id. § 408.147(a). The Act also specifies the procedures for evaluating whether

SIBs should end, allowing a medical evaluation once every twelve months, id. § 408.149(a), and

permitting the Division to designate a doctor for a medical evaluation to determine if the employee’s

condition has sufficiently improved to allow him to return to work, id. § 408.151(b).

       Similarly, temporary income benefits (TIBs)—another form of temporary benefits—are

contingent on the employee’s recovery. “An employee is entitled to temporary income benefits if

the employee has a disability and has not attained maximum medical improvement.” Id. § 408.101.

“‘Disability’ means the inability because of a compensable injury to obtain and retain employment

at wages equivalent to the preinjury wage.” Id. § 401.011(16). “If the report of a designated doctor

indicates that an employee has reached maximum medical improvement or is otherwise able to return

to work immediately, the insurance carrier may suspend or reduce the payment of temporary income

benefits immediately.” Id. § 408.0041(k). Because TIBs and SIBs are paid until the employee

reaches statutorily sufficient medical improvement, eligibility determinations require periodic

evaluation.

                                                  7
       While temporary benefits require continuous monitoring to determine whether the employee

has achieved the statutory level of improvement, permanent benefits require no such monitoring.

This is because such benefits are permanent determinations, only terminating on the occurrence of

a specific statutorily mandated life event. For example, death income benefits (DIBs) are paid to

eligible beneficiaries when an injury to an employee results in death. Id. § 408.181(a). The statute

sets out eligibility requirements for children, spouses, and parents. Id. § 408.182. Once eligible,

benefits continue until the occurrence of some specific event, whether it be death, remarriage, or

attaining a certain age. Id. § 408.183. There is no provision that allows a carrier to reassess DIBs

after eligibility is established. Further, a carrier is permitted to pay DIBs through an annuity, thus

removing the act of paying the benefits from the carrier’s purview. Id. § 408.181(d). According to

Division rules, such an annuity is not assignable by the beneficiary. 28 TEX . ADMIN . CODE

§ 132.16(d)(6). By authorizing use of a method providing a non-assignable right to payment, the

Legislature indicated that the right to DIBs exists until the statutory contingency is met—with no

procedure for further review.

       Similarly, LIBs—like DIBs—are permanent income benefits. LIBs are paid upon the

establishment of eligibility—here by the loss of use of two limbs—until the occurrence of a

particular event: the death of the employee. TEX . LAB. CODE §§ 408.161(a)(4), (b). Unlike

temporary benefits, the statute provides no express statutory procedure to re-open an eligibility

determination for LIBs or to assess the medical improvement of the employee. In addition, LIBs,

like DIBs may be paid through an annuity. Id. § 408.161(d). Such an annuity is likewise not

assignable by the beneficiary. 28 TEX . ADMIN . CODE § 131.4(d)(5). As with DIBs, the Legislature

                                                  8
has authorized the use of a payment method that provides a non-assignable right to payment for the

life of the obligation. Construing the Act in accordance with this dichotomy, the Legislature has

established LIBs as a permanent right to benefits with no procedure to re-open that determination.

       When the Legislature expresses its intent regarding a subject in one setting, but, as here,

remains silent on that subject in another, we generally abide by the rule that such silence is

intentional.4 Thus, the Legislature’s express provision of procedures for re-evaluating temporary

benefit eligibility and the absence of such a procedure for permanent benefits indicates a deliberate

choice, and we must respect the Legislature’s prerogative to establish the rights and procedures in

the workers’ compensation system. Therefore, we decline Liberty’s invitation to judicially engraft

a procedure inconsistent with the dichotomy the Legislature constructed. Ruttiger, 381 S.W.3d at

450; Entergy, 282 S.W.3d at 443.5


       4
          See In re Nalle Plastics Family Ltd. P’ship, __ S.W.3d __, __, 2013 WL 2150717, at *7
(Tex. May 17, 2013) (holding that the Legislature’s use of the word “costs” did not include
attorney’s fees as the definition of “litigation costs” elsewhere included both costs and attorney’s
fees); Tex. Natural Res. Conservation Comm’n v. IT-DAVY, 74 S.W.3d 849, 859 (Tex. 2002) (“[T]he
Legislature knows how to clearly and unambiguously waive sovereign immunity from suit. . . . Here,
neither section 5.351 nor 5.352 clearly and unambiguously waives the [Texas Natural Resource
Conservation Commission]’s sovereign immunity from suit for breach-of-contract claims.”); Bally
Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 358 (Tex. 2001) (“The Legislature could have added
similar language to Section 51.014(a)(3) and permitted appeals from orders refusing to decertify a
class, but did not.”); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000)
(“Section 26.177(d) shows the Legislature knows how to provide a right of appeal to persons
affected by a water quality plan or government action relating to a plan. Yet, the Legislature chose
not to provide such a right to persons affected by section 26.179 plans or [Texas Natural Resource
Conservation Commission] approval of plans.”).
       5
          Adcock also asserts that the doctrines of res judicata and collateral estoppel act to bar
Liberty from re-litigating a previously determined issue. But because the statute grants no authority
to re-open LIB determinations, these doctrines do not affect our analysis.

                                                 9
       Liberty responds that if—as we hold today—the LIB determination is permanent, this will

harm injured employees because they will not be able to obtain LIBs if their initial request is denied

but their medical condition subsequently deteriorates. But the Legislature’s scheme for payment of

LIBs belies this argument. Specifically, section 408.081 states that “[a]n employee is entitled to

timely and accurate income benefits as provided by this chapter,” and further requires that income

benefits be paid weekly without action by the commissioner. TEX . LAB. CODE §§ 408.081(a), (b).

Section 408.161 indicates that LIBs are to be paid when the permanent loss of use of certain body

parts occurs. Id. § 408.161. Thus, when viewed in context, the statute requires that carriers begin

paying benefits to employees once eligibility is established. See Ruttiger, 381 S.W.3d at 454

(“legislative intent emanates from the Act as a whole”). There is no restriction on when such

eligibility may be established. Rather, the statute contemplates that whenever a compensable injury

leads to a qualifying permanent loss of use, eligibility occurs and the employee becomes entitled to

permanent LIBs. This is in direct contrast to the termination of LIBs, which specifically occurs at

the employee’s death. TEX . LAB. CODE § 408.161(a).

                                    C. Response to the Dissent

       The dissent argues that: (1) despite the statute’s failure to include a procedure to re-open the

LIB determination, the Act’s general definition of “impairment” implies such a procedure; (2) the

Act also necessarily implies the authority of the Division to re-open the LIB determination; (3) our

remand in American Zurich Insurance Co. v. Samudio, 370 S.W.3d 363 (Tex. 2012), requires us to

allow the Division to re-open LIB determinations; and (4) the Legislature’s framework credits the




                                                 10
Division as “being able to predict the future and knowing absolutely which claimants will always

be entitled to” LIBs. These assertions, however, are unavailing.

       To support its first argument, the dissent relies on the Act’s general definition of

“impairment” as “reasonably presumed to be permanent” to conclude that the finding of permanency

is merely a prediction. TEX . LAB. CODE § 401.011(23). The dissent searches for support in our

observation in Insurance Co. of State of Pennsylvania v. Muro that all injuries under section 408.161

result in impairments. 347 S.W.3d 268, 275 (Tex. 2011). But the dissent fails to consider that in

Muro, we heavily relied on the fact that the Legislature’s deletion of certain language in the Act

indicated its intent to change the former law. Id. (“Because the Legislature chose both to retain the

enumerated injuries and to repeal the ‘other loss’ clause, it clearly did not intend to continue the

broader application of lifetime income benefits formerly recognized by some courts of appeals under

the old-law’s ‘other loss’ clause.”). This generic definition of impairment does not re-inject into the

Act an entire procedure for re-opening LIB determinations that the Legislature previously removed.

       Additionally, the dissent contends that principles of agency deference necessarily imply the

authority for the Division to re-open the LIB determination. See R.R. Comm’n of Tex. v. Tex.

Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011) (“We have long held

that an agency’s interpretation of a statute it is charged with enforcing is entitled to ‘serious

consideration,’ so long as the construction is reasonable and does not conflict with the statute’s

language.”). But such deference is in direct conflict with the “well-established principle that”

administrative agencies “may exercise only those powers that the Legislature confers upon [them]

in clear and express language, and cannot erect and exercise what really amounts to a new or

additional power for the purpose of administrative expediency.” See Tex. Natural Res. Conservation

                                                  11
Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368, 377 (Tex. 2005) (emphasis added). Here, the

Legislature deliberately removed the procedure for re-opening the LIB determination, and that

deliberate silence neither creates ambiguity nor confers authority to an agency. See id.; Entergy, 282

S.W.3d at 443.

       Further, the dissent’s reliance on Samudio is misplaced. Samudio involved workers’

compensation impairment income benefits. 370 S.W.3d at 365. The Act mandates that the Division

assign an impairment rating determined in accordance with certain criteria. Id. at 368. In Samudio,

although the carrier and employee agreed the employee was impaired, they disagreed on the extent

of the impairment. Id. at 366. Because the Act mandated the Division assign a valid impairment

rating but no valid impairment rating was before the Division, we remanded the claim to the Division

to consider a valid impairment rating. Id. at 368. Thus, Samudio stands for the proposition that the

Division must comply with the Act’s mandates (which was to assign a valid impairment rating). In

this case, the Act mandates that the carrier make payments until the employee’s death because the

Division determined Adcock is eligible for permanent LIBs. See TEX . LAB. CODE § 408.161. Re-

opening that determination would not enforce the mandate—it would violate it. If the Legislature

determines that the employers and employees of Texas are best served by allowing for re-opening

LIB determinations, it may craft a review procedure in the statute—as it has done with temporary

benefits and previously did with LIBs. This Court, however, must avoid such policy determinations.

       Lastly, the dissent asserts that our construction of the comprehensive scheme requires the

Division to predict with certainty which claimants will always be entitled to LIBs, a requirement that

is unworkable because the future is unknowable. Yet common law and statutory claims, and their


                                                 12
procedures for recovering future damages, have long been a cornerstone of our court system. The

question is not whether future damages are absolutely knowable but whether the plaintiff proved

such damages within a reasonable degree of certainty. See Columbia Med. Ctr. of Las Colinas, Inc.

v. Hogue, 271 S.W.3d 238, 247 (Tex. 2008). It is not grounds to re-open a judgment simply because

a plaintiff incurred fewer future medical expenses than the judgment awarded. Here, the question

is whether the Division could determine that an employee lost the use of two limbs. TEX . LAB. CODE

§§ 408.161(a)(4), (b). The Division made that determination over a decade ago, and the record

indicates no difficulty in doing so. The requirement that an injury be permanent is a familiar concept

to the courts and the Legislature and does not yield absurd results.

                                          III. Conclusion

       We defer to the Legislature to craft statutes and we interpret them as written. The Legislature

previously included a procedure to re-open LIB determinations—which it removed in 1989.

Currently, the Legislature only allows temporary benefit determinations (not permanent benefit

determinations like LIBs) to be re-opened. We will not judicially engraft into this comprehensive

statute a procedure the Legislature deliberately removed. Accordingly, the Division had no

jurisdiction to re-open Adcock’s LIB determination, and we therefore affirm the judgment of the

court of appeals.




                                                      ____________________________________
                                                      Eva M. Guzman
                                                      Justice

OPINION DELIVERED: August 30, 2013


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