                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00059-CV


LIBERTY MUTUAL INSURANCE                                         APPELLANTS
COMPANY AND TEXAS
DEPARTMENT OF INSURANCE,
DIVISION OF WORKERS‘
COMPENSATION

                                         V.

RICKY ADCOCK                                                        APPELLEE


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         FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

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                                     OPINION

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                                I.    Introduction

      In one issue, Appellants Liberty Mutual Insurance Company and the Texas

Department of Insurance, Division of Workers‘ Compensation assert that the trial

court erred by granting summary judgment for Appellee Ricky Adcock, arguing
that the Division had jurisdiction in 2009 to review a 1997 award of Lifetime

Income Benefits (LIBs) to Adcock. We affirm.

                   II.   Factual and Procedural Background

      This is the Once-In-A-Lifetime case. Because this case turns on statutory

construction, we need not conduct an extensive recitation of the factual and

procedural background.     Suffice it to say that in 1991, Adcock received a

compensable on-the-job injury, and in 1997, the Division‘s Appeals Panel held

that Adcock was entitled to LIBs due to the total and permanent functional loss of

use of his right foot above the ankle and right hand up to and including the right

wrist. This decision was not appealed.

      Several years later, Liberty Mutual, the workers‘ compensation carrier,

sought to reopen Adcock‘s case, asserting that Adcock was no longer entitled to

LIBs because he no longer had the total and permanent functional loss of use

that was the basis of his award. The issues certified by the hearing officer and

agreed to by the parties were:

      (1) Is Claimant entitled to lifetime income benefits (LIBs) as of this date
          based on total and permanent loss of use of his hands and legs?

      (2) As a result of the decision and order of the Appeals panel in Appeal No.
          970981, does the Division have jurisdiction to determine continuing
          entitlement to lifetime income benefits (LIBs)?

After a hearing officer determined that Adcock was entitled to continued LIBs, the

Division‘s Appeals Panel found that the Division had jurisdiction to reopen the

case but that Adcock continued to be entitled to LIBs.



                                         2
      On appeal to the district court, Adcock argued that based on the statutory

language in labor code section 408.161 and on principles of res judicata and

collateral estoppel, the case could not be reopened. The Division intervened,

asserting that it had jurisdiction. The trial court agreed with Adcock‘s premise

that the Division could not reopen the 1997 case and granted Adcock‘s summary

judgment. In its final judgment, it stated, ―[T]he Court enters judgment that the

Texas Department of Insurance—Division of Workers‘ Compensation, and by

extension this Court, lacks jurisdiction to revisit the issue of [LIBs] awarded to

Plaintiff in 1997.‖ This appeal followed.

                                 III.   Jurisdiction

      Labor code section 408.161 states that ―lifetime income benefits are paid

until the death of the employee‖ for the loss of certain, statutorily specified body

parts. See Tex. Lab. Code Ann. § 408.161(a) (West 2006). It also provides that

―the total and permanent loss of use of a body part is the loss of that body part.‖

Id. § 408.161(b) (West 2006).

      Liberty Mutual and the Division argue that the Division can revisit whether

the loss of use of a body part is permanent, asserting that ―lifetime‖ as used in

the statute refers to eligibility and duration, not entitlement. They contend that

because the legislature has vested the Division with exclusive jurisdiction to

resolve workers‘ compensation disputes, ―[n]either the nature of the income

benefit nor the existence of a prior order bars the Division from exercising its

exclusive jurisdiction,‖ and that this is consistent with the legislature‘s recognition


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that an employee‘s entitlement to benefits can change over the life of the claim.

And they add that to hold otherwise would be nonsensical because an injured

worker who improved would continue to receive LIBs, even though he no longer

met the statutory criteria.1

       Adcock responds that once he became eligible for LIBs, no further review

was permitted because no such review is provided for in the statute‘s plain

language. He points out that given the severity of injuries to which LIBs apply, 2 it

would violate due process and be ―inherently cruel and unfair to subject such frail

individuals to the stress and uncertainty of what amounts to a lifetime of

litigation.‖

A. Standard of Review

       We review an issue of statutory construction on the same basis that we

review a summary judgment: de novo. See Tex. R. Civ. P. 166a(c); Travelers

Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Mann Frankfort Stein &


       1
       This argument leads to the inescapable conclusion that, if Liberty Mutual
and the Division are correct, LIBs can be relitigated at any time and for an
unlimited number of times.
       2
        LIBs are paid until the death of the employee for total and permanent loss
of sight in both eyes; loss of both feet at or above the ankle; loss of both hands at
or above the wrist; loss of one foot at or above the ankle and the loss of one
hand at or above the wrist; an injury to the spine that results in permanent and
complete paralysis of both arms, both legs, or one arm and one leg; a physically
traumatic injury to the brain resulting in incurable insanity or imbecility; or third
degree burns that cover at least 40% of the body and require grafting, or third
degree burns covering the majority of either both hands or one hand and the
face. See Tex. Lab. Code Ann. § 408.161(a)(1)–(7).


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Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); City of

Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008). Further,

      [i]n construing statutes, we ascertain and give effect to the
      Legislature‘s intent as expressed by the language of the statute. We
      use definitions prescribed by the Legislature and any technical or
      particular meaning the words have acquired.           Otherwise, we
      construe the statute‘s words according to their plain and common
      meaning, unless a contrary intention is apparent from the context, or
      unless such a construction leads to absurd results. We presume the
      Legislature intended a just and reasonable result by enacting the
      statute. When a statute‘s language is clear and unambiguous, it is
      inappropriate to resort to rules of construction or extrinsic aids to
      construe the language.

City of Rockwall, 246 S.W.3d at 625–26 (citations omitted). Our practice when

construing a statute is to recognize that ―the words [the Legislature] chooses

should be the surest guide to legislative intent,‖ Presidio Indep. Sch. Dist. v.

Scott, 309 S.W.3d 927, 930 (Tex. 2010), and we must ―‗take statutes as [we] find

them.‘‖ RepublicBank Dallas, N.A. v. Interkal, Inc., 691 S.W.2d 605, 607 (Tex.

1985) (quoting Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66, 70 (1920)).

B. Analysis

      We begin our analysis with the well-established principle that an

administrative agency may exercise only those powers that the legislature

―confers upon it in clear and express language, and [that it] cannot erect and

exercise what really amounts to a new or additional power for the purpose of

administrative expediency.‖ Tex. Natural Res. Conservation Comm’n v.

Lakeshore Util. Co., 164 S.W.3d 368, 377 (Tex. 2005).          This is because an

administrative agency is a creature of the legislature, with no inherent authority of


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its own. Id. However, 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.‖ Id. at 378.

      In this case, the agency is the Division, which possesses exclusive

jurisdiction regarding claims arising under the Texas Workers‘ Compensation Act

(TWCA). See In re Metro. Transit Auth., 334 S.W.3d 806, 810 (Tex. App.—

Houston [1st Dist.] 2011, orig. proceeding). ―‗Construction of a statute by the

administrative agency charged with its enforcement is entitled to serious

consideration, so long as the construction is reasonable and does not contradict

the plain language of the statute.‘‖ Mid-Century Ins. Co. of Tex. v. Ademaj, 243

S.W.3d 618, 623 (Tex. 2007) (quoting Tarrant App. Dist. v. Moore, 845 S.W.2d

820, 822 (Tex. 1993)); State v. Pub. Util. Comm’n of Tex., 883 S.W.2d 190, 196

(Tex. 1994) (―[T]he contemporaneous construction of a statute by the

administrative agency charged with its enforcement is entitled to great weight.‖).

But see TGS-NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432, 438 (Tex.

2011) (stating that deference to an agency‘s interpretation is not conclusive or

unlimited).

      Further, we must construe the provisions of the TWCA liberally in favor of

the injured worker, to effectuate the purposes for which it was enacted: ―‗[A]

strained and narrow construction of [the TWCA] would be improper. Moreover, it

would be injudicious to construe the statute in a manner that supplies by

implication restrictions on an employee‘s rights that are not found in . . . [the]


                                          6
plain language.‘‖ In re Poly-Am., L.P., 262 S.W.3d 337, 350 (Tex. 2008) (orig.

proceeding) (quoting Kroger v. Keng, 23 S.W.3d 347, 349 (Tex. 2000)); Tex.

Gen. Indem. v. Workers’ Comp. Comm’n, 36 S.W.3d 635, 640 (Tex. App.—

Austin 2000, no pet.) (―[T]he liberal construction we apply to workers‘

compensation legislation [is] to carry out its evident purpose of compensating

injured workers and their dependents.‖).

      The legislature is well aware of how to afford the Division the opportunity to

review awards made to claimants under the TWCA. Under the prior TWCA,

article 8306, section 12d specifically allowed review upon a change of condition,

mistake, or fraud, 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. Provided, when such previous order
      has denied compensation, application to review same shall be made
      to the Board within twelve months after its entry, and not afterward.
      Review under this Section shall be only upon notice to the parties
      interested.

Act of May 20, 1931, 42nd Leg. R.S., ch. 155, § 1, sec. 1, 1931 Tex. Gen. Laws

260, 260 (emphasis added), repealed by Act effective Jan. 1, 1991, 71st Leg.

2nd C.S., ch. 1, sec. 16.01(7), 1989 Tex. Gen. Laws 114, 114. This language

was not included in the recodification of the TWCA into the labor code.




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      Further, under the present TWCA, the legislature has provided for

quarterly review of eligibility for Supplemental Income Benefits (SIBs), Tex. Lab.

Code Ann. § 408.143(b) (West 2006). A SIBs recipient‘s status is reviewable

annually, and his or her medical condition is reviewable after two years. Id.

§§ 408.149, .151 (West 2006).       For Temporary Income Benefits (TIBs), a

recipient‘s treating physician reviews and prepares a work status report when

there is a change in the ability to work. 28 Tex. Admin. Code Ann. § 129.5(d)(2)

(2009) (Tex. Dep‘t of Ins., Div. of Workers‘ Comp., Work Status Reports). And

Death Income Benefits are subject to review due to a change in marital status or

status as a minor. Tex. Lab. Code Ann. § 408.183 (West 2006 & Supp. 2010).

      In sum, the statutory language stating that LIBs are ―paid until the death of

the employee,‖ and the legislature‘s clear intent when enacting the TWCA to

provide for review under several other circumstances but not once entitlement to

LIBs has been established, 3 indicates to us that the legislature gave the Division


      3
       The Texas Supreme Court recently compared these benefits, stating,

            Lifetime income is the greatest income benefit a worker can
      receive under the workers‘ compensation act. In addition to lifetime
      income, the act provides for three lesser awards: temporary income
      benefits, impairment income benefits, and supplemental income
      benefits. These benefits accrue when a compensable injury causes
      a decrease in the employee‘s earnings and are generally paid
      weekly by the insurance carrier ―as and when they accrue.‖ A
      claimant‘s combined eligibility for temporary income benefits,
      impairment income benefits, and supplemental income benefits
      generally terminates 401 weeks after the date of injury. But the 401-
      week limitation does not apply to lifetime income benefits, which, as
      the name implies, are payable until the injured employee’s death.

                                        8
no express or implicit authority for further review of LIBs after eligibility is

determined.

        Liberty Mutual and the Division rely on Deep East Texas Self Insurance

Fund, Appeal No. 020432-s, 2002 WL 971079 (Tex. Workers‘ Comp. Comm‘n

Apr. 10, 2002), as authority to support their jurisdictional argument. In Deep East

Texas, after the claimant received an award of LIBs in 1999 upon a finding of

loss of permanent function in his legs, he was videotaped in situations showing

that he could walk independently without a walker, cane, or other device. Id. at

*1–2.    The Appeals Panel considered whether the Commission (now the

Division) had jurisdiction to reopen the issue of entitlement to LIBs and decided,

in a 2-to-1 decision, that there was ―no rational basis for holding that the

Commission has no continuing jurisdiction to resolve disputes over entitlement to

these [LIB] benefits.‖ Id. at *2, 4. The majority reached this decision despite

acknowledging (1) that there was ―no express provision in the 1989 Act or in the

Commission‘s rules authorizing and providing a mechanism for the raising, and

resolving, of a disputed issue concerning continued entitlement to LIBs once

initially determined;‖ (2) that agencies, as creatures of statute, may ―exercise only

those specific powers conferred upon them by law in clear and express




Ins. Co. of State of Pa. v. Muro, No. 09-0340, 2011 WL 3796569, at *2 (Tex. Aug.
26, 2011) (citations omitted) (emphasis added); see also Region XIX Serv. Ctr. v.
Banda, 343 S.W.3d 480, 485 (Tex. App.—El Paso 2011, pet. filed) (―The loss of
use must also be permanent for a claimant to qualify for lifetime income benefits.‖
(emphasis added)).

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language,‖ with no additional authority implied by judicial construction; and (3)

that the predecessor statute‘s language authorizing review of any award or order

previously awarded if there was a change of condition, mistake, or fraud was not

carried over into the 1989 Act. Id. at *3–4.

      Further, according to the Deep East Texas majority, a contested case

hearing is not the proper forum to determine an administrative violation such as

obtaining benefits by fraud, and the Appeals Panel has no authority to order

administrative penalties and repayment of fraudulently obtained income benefits;

rather, the State Office of Administrative Hearings sets the hearing, under labor

code section 415.034. Id. at *4; see also Tex. Lab. Code Ann. § 415.034 (West

2006) (stating that on the request of the charged party or the commissioner, the

State Office of Administrative Hearings shall set a hearing and the hearing shall

be conducted in the manner provided for a contested case under government

code chapter 2001). But the majority stated that its jurisdictional determination

and rendition of a new decision that the claimant was not entitled to future LIBs

eliminated the need for the self-insured to initiate a section 415.031

administrative violation proceeding. Deep E. Tex., 2002 WL 971079, at *4; see

also Tex. Lab. Code Ann. § 415.031 (West 2006) (―Any person may request the

initiation of administration violation proceedings by filing a written allegation with

the division.‖); GuideOne Ins. Co. v. Cupps, 207 S.W.3d 900, 902, 908 (Tex.

App.—Fort Worth 2006, pet. denied) (stating that under labor code section

415.008, the Commission has authority to resolve the claims—such as


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GuideOne‘s fraud, conversion, negligent misrepresentation, and Theft Liability

Act claims against Cupps for allegedly fraudulently obtaining SIBs—first, through

administrative remedies such as through a benefit review conference or

administrative violation proceeding, before the courts may grant relief).        The

Deep East Texas majority‘s conclusion would render section 415.031

meaningless, among others.4 See Barron v. Cook Children’s Health Care Sys.,

218 S.W.3d 806, 809 (Tex. App.—Fort Worth 2007, no pet.) (stating that we

should not adopt a construction that would render a law or provision

meaningless).




      4
        Labor code section 415.008 provides that a person commits a Class B
administrative violation if, to obtain a payment of a workers‘ compensation
benefit, he knowingly or intentionally makes, among other things, a false or
misleading statement, misrepresents or conceals a material fact, or conspires to
do one of these acts. See Tex. Lab. Code Ann. § 415.008(a), (b) (West 2006).
For committing a Class B administrative violation under section 415.008, the
violator is liable for full repayment plus interest. Id. § 415.008(c). We have not
encountered a LIBs case involving section 415.008. Cf. Cupps, 207 S.W.3d at
908 (involving SIBs).

      We also note that current section 418.001 states that it is a state jail felony
if someone, with the intent to obtain payment of benefits of $1,500 or more under
chapter 418, knowingly or intentionally makes, among other things, a false or
misleading statement or misrepresents or conceals a material fact. See id.
§ 418.001 (West 2006). Section 418.001 has not yet been construed.

       Neither party has explained how these sections might affect the
jurisdictional question before us. We infer that these sections may have been
intended as a replacement for former article 8306, section 12d, but they do not
include any express provision for review by the Division under the procedure
used in this case.


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      The dissent disputed the idea that the Commission had jurisdiction to

continue to review the claimant‘s entitlement to LIBs. Deep E. Tex., 2002 WL

971079, at *5 (Chaney, J., dissenting).       Specifically, Appeals Judge Chaney

stated that any remedy available to the insurance carrier under the case‘s

circumstances was in section 415.031. Id. She also pointed out, as we have

noted above, that the legislature did not continue the previous Act‘s specific

allowance for continued review into the present Act, and she noted that the

legislature‘s failure to carry the provision forward into the 1989 Act ―significantly

undermine[d] an argument that the Commission has an implied authority to make

such a modification.‖ Id. Finally, she pointed out that, as here, the carrier did not

appeal the original determination that the claimant was entitled to LIBs, and to

follow the majority‘s reasoning would do ―exactly what the . . . court [in

Lumbermens Mutual Casualty Co. v. Manasco, 971 S.W.2d 60 (Tex. 1998)]

state[d] is prohibited, namely permitting the carrier to ‗use a second set of

administrative proceedings to bootstrap a belated appeal‘ of a final benefits

determination.‖5   Id. at *6; see also Rodriguez v. Serv. Lloyds Ins. Co., 997

S.W.2d 248, 256 (Tex. 1999) (stating that in Manasco, the court ―rejected any



      5
       In Manasco, the supreme court interpreted the ―substantial change of
condition‖ language in section 410.307 to hold that a claimant could not obtain
reconsideration of his original, unappealed impairment rating by using a second
set of administrative proceedings to ―bootstrap‖ a belated appeal for judicial
review of that rating because allowing claimants to do so would distort the TWCA
beyond its intent. 971 S.W.2d at 64.


                                         12
notion that this section [410.307] created an independent, substantive right to

reopen the impairment issue after the claimant had failed to timely appeal‖).

      We agree with the arguments set out by the Deep East Texas dissent.

See 2002 WL 971079, at *5–6; see also Poly-Am., L.P., 262 S.W.3d at 350; Tex.

Natural Res. Conservation Comm’n, 164 S.W.3d at 377–78. As acknowledged

by Liberty Mutual and the Division, there is no express language in section

408.161 that gives the Division the right to revisit the issue of LIBs entitlement

whenever it chooses, and the statutory scheme recounted above clearly shows

that the legislature knew how to include this authority if it so desired. Compare

Act of May 20, 1931, 42nd Leg. R.S., ch. 155, § 1, 1931 Tex. Gen. Laws 260,

260 (repealed 1989), with Tex. Lab. Code Ann. §§ 415.008, .031, .034, 418.001.

Therefore, we conclude that the Division has no implied right to review LIBs

under section 408.161 after the initial administrative and appellate remedies have

been exhausted, and we overrule Liberty Mutual‘s and the Division‘s sole issue.

See Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009) (op.

on reh‘g) (―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.‖).




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                                 Conclusion

      Having overruled Liberty Mutual‘s and the Division‘s sole issue, we affirm

the trial court‘s judgment.




                                                 BOB MCCOY
                                                 JUSTICE

PANEL: DAUPHINOT and MCCOY, JJ.; and CHARLES BLEIL (Senior Justice,
Retired, Sitting by Assignment).

DELIVERED: October 20, 2011




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