Untitled Texas Attorney General Opinion ( 1977 )

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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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Honorable Cue D. Boykin - Page 2 (H-1105)
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
p. 4521