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               The Attorney           General of Texas
                               December   14, 1977




        Honorable  Cue D. Boykin                     Opinion   No.   H-1105
        Texas Industrial   Accident Board
        Lyndon Baines Johnson Building               Re:   Computation    of
        P. 0. Box 12757 - Capitol Station            benefits   due a State
        Austin, Texas    78711                       employee with a spe-
                                                     cific injury under
                                                     the workmen's    com-
        Dear   Mr.   Boykin:                         pensation   statutes.

              You inquire about the relationship      between accrued
        sick leave and workmen's     compensation   benefits  for State
        employees   who sustain a specific injury. Article       8309g,
        which provides workmen's,compensation       insurance  for State
        employees,   adopts numerous provisions     of the Workmen's
        Compensation   Law.   V.T.C.S.  art. 8309g, 9 15(a); see
        V.T.C.S.   art. 6674s, 6 7. Among the provisions       adopted
        and made applicable    to State employees    is article 8306,
        section 12, which provides     compensation   for certain in-
        juries.    This section reads in pertinent     part:

                        For the injuries enumerated     in the
                      following  schedule the employee     shall
                      receive in lieu of all other compen-
                      sation except medical aid, hospital
                      services and medicines    as elsewhere
                      herein provided   a weekly compensation
                      equal to . . . [a percentage     of weekly
                      wages] for the respective    periods
                      stated herein.   . . .

        V.T.C.S.  art. 8306, § 12.     There follows a schedule detail-
        ing the number of weeks' compensation      provided   for various
        specific injuries,   primarily   the loss of limbs.     For example,
        an employee who has lost a hand receives       compensation   for
        150 weeks.    Section 12 also provides    compensation   for loss
        of use of a limb and other partial incapacities.

              Article  8309g provides that a State   employee "is not
        entitled   to weekly payments of compensation   under this
        article until he has exhausted   his accrued sick leave."




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sec. 12; Attorney General Opinion H-701 (1975).        You ask whether
this provision   requires that the period of sick leave used by an
emplovee who sustained    a permanent   specific injury be deducted
from the weeks of compensation     owing to him under article 8306,
section 12.    If this deduction   is made, a State employee who has
lost a hand in a job-related     injury, and who takes three weeks
of accrued sick leave, would receive 147 weeks of compensation
under article 8306, section 12, instead of 150 weeks.

      In our opinion,    article 83099, section 12 does not pro-
vide for the offsettiny      of sick leave and compensation       for a
specific injury.      See City of Corpus Christi v. Herschba,           536
S.W.2d 653 (Tex. Civ. App. -- Corpus Christi 1976, writ ref'd
n.r.e.): Attorney General Opinion H-338 (1974) at 9. Article
83099, section 12 refers instead to the timing of weekly com-
pensation   payments,   since an employee may not receive them
while he is using accrued sick leave.        It does not expressly
permit the offsetting     of sick leave and workmen's      compensation;
however,   in some cases, the postponement     of compensation      while
the employee    is on accrued sick leave will have the effect of
offsetting   the two kinds of benefits.      For example, an employee
who sustains the total temporary      loss of use of a limb is
entitled   to compensation    under the specific    injury provision
for the duration of such loss.       Texas Employers     Ins. Ass'n v.
Patterson,   192 S.W.Zd 255 (Tex. 1946).      If he remains on s?x
leave for the duration of the total temporary         loss, he will
never become entitled to weekly compensation         payments.     If he
exhausts his accrued sick leave part way through the period of
total loss, he may collect weekly compensation         payments only
for the remainder     of that period.    See Guzman v. Phoenix=-
co., 411 S.W.2d 642 (Tex. Civ. App. -- San Antonio           1967, writ
ref'd n.r.e.).     See also Texas Employees     Ins. Ass'n v. Guidry,
99 S.W.2d 900 (Tex. CoG'n       App. 1937, opinion adopted).

      Compensation    for a permanent   specific   injury is not as
closely tied to a period of incapacity.          It is in the nature of
liquidated   damages, United Employers      Casualty Co. v. Knight,
139 S.F7.2d 613 (Tex. Civ. App. -- Beaumont        1940, writ dism'd
jdqmt. car.), given to compensate       the partial incapacity     that
presumptively    results from the injuries listed in article 8306,
section 12.    Traders    & General Ins. Co. v. Maxwell,     142 S.W.Zd
685 (Tex. Civ'; App. -- Texarkana      1940, writ.dism'd    jdqmt. car.).
A showing of incapacity      for work is not essential     to recovery
for a specific    injury.    Fidelt y Union Casualty    Co. v. Munday;
44 S.W.2d 926 (Tex. Comm'n App. 1932, jdqmt. adopted):           Stahl
v. Firemen's   Fund Indemnity=,        295 S.W.2d 473 (Tex. Civ. App.
-- Waco 1956, no writ).       When an employee has exhausted      his




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        Honorable   Cue   D. Boykin     - Page    3   (H-1105)



        sick leave or has returned to work he still has a permanent
        incapacity  that should be compensated   in accord with article
        8306, section 12.   Since the employee's   incapacity  is permanent,
        the postponement  of his eligibility   for weekly compensation   pay-
        ments does not effectively   reduce the time period during which
        he may receive compensation   under the specific injury provision.

              Recovery for a specific injury under article 8306, section
        12 is to be "in lieu of all other comnensation          exceot medical
        aid. . . ." See Zurich General Accident          & Liability    Ins. Co.
        v. Holmes, 29m.W.2d       373, 377 (Tex. Civ. App. -- Beaumont        1956,
        writ ref'd n.r.e.).     It is suqqested      that sick leave pay is
        compensation   within this provision,      and for this reason must be
        offset against the award for a specific injury.           In our opinion,
        "all other compensation"     refers to compensation      under the Workmen's
        Compensation   Act, and not compensation       from other sources.     See
        Murb v. Houston Fire and Casualty        Ins. Co., 310 S.W.2d 420 (E.
        Civ. ADD.
               __   -- San Antonio   1958, writ ref'd n.r.e.).        The employee's
        earnings after the injury do not reduce his recovery            for a‘specif-
        ic injury.    See Stahl v. Firemen's      Fund Indemnity    Co., supra:
        Sick leave forState     employees   is provided by the Appropriations
        Act and is earned throughout      their employment.     General Appropria-
        tions Act, Acts 1977, 65th Leg., art. V, 9 7b, at 3146.             It is
        part of the employee's     remuneration    for work for the State, see
        Attorney General Opinions H-1083        (1977); H-797 (1976), and not
        the "compensation"    referred   to in section 12 of article 8306.

                                      SUMMARY

                    State employees   who sustain a permanent
                    specific injury entitling     them to work-
                    men's compensation   benefits   should receive
                    the compensation   scheduled   in article 8306,
                    section 12 without deduction      for accrued
                    sick leave used.

                                          /\Very      truly   yours,




                                                Attorney   General     of Texas

        APPROVED:




        DAVID   M. KENDALL,




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    Honorable   Cue   D. Boykin   - Page   4   (H-1105)




    C. ROBERT mATH,   Chairman
    Opinion Committee

    jst




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