Texas Supreme Court Finds Claimant Not Entitled to LIBs
The Texas Supreme Court has issued another important decision regarding Lifetime Income Benefits. On August 28, 2015, the court rendered a judgment that a claimant had failed to meet the statutory standard for entitlement to LIBs, reversing a 2013 ruling that had been issued by the El Paso Court of Appeals.
In Dallas National Insurance Co. v. De La Cruz, No. 13-0814, the court considered the case of Gloria De La Garza, an employee of Kona Kreek restaurant, who fell in 2014, injuring her knee and back. De La Cruz eventually submitted to a two-level 360 degree lumbar fusion as well as arthroscopic surgery to her knee. Despite the surgeries, De La Cruz continued to experience pain and numbness in her legs and continued to seek treatment for back and knee pain. De La Cruz and her doctor documented complaints of radiculopathy, an impairment rating for radiculopathy, and a “dermatomal loss on right side of L2 and left side L3.” De La Cruz also claimed that she was required to use a cane, and had complaints of pain radiating to her toes.
Based on those complaints, De La Cruz sought LIBs from the carrier, which denied her claim on the basis that she failed to meet the statutory criteria for entitlement. Section 408.161 of the Act, provides that LIBs are recoverable when, among other things, an injured worker suffers “total loss of use of both feet at or above the ankle.”
The Division determined that De La Cruz was not entitled to LIBs, following which she filed suit for judicial review in a district court in El Paso County. There, the trial court found that De La Cruz suffered an injury to both of her feet resulting in total and permanent loss of use of each foot. The court rendered judgment that De La Cruz was entitled to LIBs. The carrier appealed the case to the El Paso Court of Appeals, where a three-judge panel affirmed the judgment.
Dallas National sought review from the Texas Supreme Court.
De La Cruz argued that the judgment was correct, relying upon a 2000 decision from the Fort Worth Court of Appeals, Hartford Underwriters v. Burdine. The carrier argued that the case was controlled by a 2011 Supreme Court decision, Ins. Co. of the State of Pa. v. Muro.
In Burdine, the worker’s injury involved her back and “the associated nerve roots” which extended “down the legs into the feet.” The treating physician testified that the injury had caused a “muscular malfunction” rendering the worker unable to lift her feet, a condition referred to as “foot drop.”
In contrast, the employee in Muro suffered injuries to her hips and right shoulder which limited her ability to use her legs and right arm. She claimed that these limitations affected the use of her feet and right hand to such an extent that she had total loss of use of both feet and one hand. The record demonstrated, however, that Muro’s feet and hands were “functioning fine” and “near normal function.”
In Muro, the Supreme Court observed that the injury in Burdine had extended to the claimant’s feet and had resulted in her inability to “get and keep employment requiring [their] use.” There was no evidence, however, that Muro’s physical injuries extended to the hand or feet, either directly or indirectly as was the case in Burdine. The court held that the statute required the presence of an actual injury to the hands or feet in order to meet the definition of total loss of use. Because Muro’s hands and feet were uninjured by the accident, she did not qualify for LIBs.
De La Garza argued that her injuries, radiculopathy and a bilateral dermatomal loss in her legs, together with pain that radiated into her toes, made her case more like Burdine and less like Muro. The Supreme Court disagreed:
In sum, there is evidence that the injury to De La Cruz’s back affected her lower extremities, including her feet. But, as we concluded in Muro, absent evidence of damage or harm to the physical structure of the enumerated body part or parts—in this case both feet at or above the ankles—and that the injury to the member or members caused the permanent total loss of use of them, the evidence is legally insufficient to meet statutory requirements for LIBs under Section 408.161. . . . Here, there is no such evidence.
The decision in De La Cruz reinforces the reasoning in Muro that the legislature intended that LIBs be reserved for only the most catastrophic injuries and that they not be generally available to employees who’s injuries do not meet the enumerated statutory list.
FOLIO
