Appeals Panel Reverses LIBs Denial in Head Injury Case
The Appeals Panel has reversed the decision of a Hearing Officer who concluded that that a claimant had failed to establish entitlement to Lifetime Income Benefits (LIBs) under § 408.161. That section provides for the recovery of LIBs by a compensably injured employee who sustains a physically traumatic injury to the brain resulting in incurable insanity or imbecility.
In Appeals Panel Decision Number 152492, decided February 22, 2016, the appeals panel considered the appeal of a claimant who had sustained a closed head injury in a work-related fall. Following a course of treatment, the claimant was examined on June 4, 2014, by a designated doctor to determine MMI and IR. The DD certified that the claimant reached MMI on April 11, 2014, and assigned an IR of 14% pursuant to Table 2 on page 142 of the Guides which indicates that mental impairment exists but that the ability remains to perform satisfactorily most activities of daily living. The claimant argued that he is entitled to LIBs due to his traumatic brain injury which resulted in severe cognitive dysfunction which affects his personal, nonvocational life and rendered him permanently unemployable.
The Hearing Officer determined that the claimant’s injury resulted in neither incurable insanity nor imbecility. In the Discussion section of her decision the Hearing Officer stated:
As for the issue of whether or not [the] [c]laimant is entitled to LIBs because of “imbecility,” the standard that will be used in our case is that of a mentally deficient person, especially a feebleminded person having a mental age of three to seven years and requiring supervision in the performance of [routine] daily tasks or caring for himself.
The Hearing Officer did not discuss any factors in reaching her decision regarding entitlement to LIBs for incurable imbecility other than the definition of imbecility referenced above. The Appeals Panel observed that at least three other definitions of imbecility have been considered by courts when reviewing LIBs entitlement:
The Barnett/Burnett definition: “An irreversible brain injury which renders the employee permanently unemployable and so affects the non-vocational quality of his life by eliminating his ability to engage in a range of cognitive processes.”
The Modreski definition: “We conclude that a worker’s mental illness is “insanity” if he suffers severe social dysfunction and that a worker’s intellectual impairment is “imbecility” if he suffers severe cognitive dysfunction. Social or cognitive dysfunction is “severe” if it affects the quality of the worker’s personal, non-vocational life in significant activity comparably to the loss of two members or sight of both eyes, and is incurable if it is unlikely that normal functioning can be restored.”
The 1910 dictionary definition: A more or less advanced decay and feebleness of the intellectual faculties; that weakness of mind which, without depriving the person entirely of the use of his reason, leaves only the faculty of conceiving the most common and ordinary ideas and such as relate almost always to the physical wants and habits . . . the test of legal capacity in this condition, is the stage to which the weakness of mind has advanced, as measured by the degree of reason, judgment, and memory remaining.
All three definitions were mentioned in a recent decision from the First Court of Appeals, Chamul v. Amerisure Mutual Ins. Co., 2016 Tex. App. LEXIS 1263 (Tex. Civ. App.– Houston [1st Dist.] 2016 no writ history).
The Appeals Panel held that the hearing officer erred in linking her analysis of the claimant’s entitlement to LIBs for a physically traumatic injury to the brain resulting in incurable imbecility solely to a single factor rather than considering additional factors such as those found in these three definitions. The case was remanded to the hearing officer to reconsider her decision regarding entitlement in light of these definitions.
The decision is frustrating in that the Appeals Panel failed to set out a specific standard or definition of “imbecility” for the hearing officer to apply. This is one of the criticisms of the court of appeals’ decision in Chamul as well. The court of appeals recently overruled the carrier’s motion for rehearing in Chamul. The carrier’s deadline for requesting a petition for review with the Texas Supreme Court in Chamul is April 21, 2016.
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