A case to watch
The 13th Court of Appeals heard oral argument on January 11th in Accident Fund v. Rodrigo Mendiola, Cause No. 13-21-00361-CV. Although there are several evidentiary issues in the carrier’s appeal, the primary issue is whether the “old law” standard for determining an injured workers’ entitlement to Lifetime Income Benefits (LIBs) can be applied to the “new law.” This case is of interest because it narrowly focuses on the applicability of the old law case of Travelers insurance Company v. Seabolt, 361 S.W. 2d 204, 206 (Tex.1962) to new law cases. The case squarely challenges the past practice of the agency and of the courts which until now have applied Seabolt without question. The trial court applied the Seabolt standard in awarding Mr. Mendiola LIBs rather than the express requirements of the current statute.
Texas Labor Code section 408.161(b) is the current law governing LIBs entitlement. In this case, Mr. Mendiola had to prove that he had lost one foot at or above the ankle, which he proved, and that he had lost one hand at or above the wrist, which Accident Fund argued that he could not prove. The standard of “total and permanent loss of use” of a body part under section 408.161 is now based on the specific impairment of the body part. It is an analysis of function. In contrast, the old law statute and the Seabolt standard were based on general disability and the injured worker’s ability to work using the body part. Under the old law standard, a worker could qualify for LIBs if he could show that the body part in question no longer had “any substantial utility as a member of the body,” or that the worker could not “procure and retain employment requiring the use of the body part.” The trial court ruled that he met that standard. But under section 408.161(b), in addition to having had a partial leg amputation, Mr. Mendiola had to prove that one of his hands was totally and permanently useless. Accident Fund’s argument brought to light through traditional means of statutory construction that it was legal error for the court to ignore the requirement under new law that Mr. Mendiola’s hand had to be proved totally useless in order for him to qualify for LIBs. Given that the worker testified that he could use his hand for many functions, some of which were compatible with work, Accident Fund argued he did not meet the statutory requirement.
The 13th Court will decide whether the plain and ordinary use of the phrase “total loss of use” should be applied as written to LIBs cases, or whether it is appropriate to expand the meaning of the term by grafting the Seabolt standard into the new law.