Second Injury Fund v. Johnson

BRADY, Justice,

dissenting.

I respectfully dissent.

Subrogation in workers’ compensation cases is a statutorily created right. It must be specifically granted by the Legislature. The Legislature created and set out the authority of the Second Injury Trust Fund in Art. 8306, Sec. 12c, Sec. 12c-l, and Sec. 12c-2. No right of subrogation is granted in this or any other statute.

The section of the Workers’ Compensation Act which deals with rights of subro-gation is Art. 8307, Sec. 6a. That section reads specifically and solely in terms of the “association” with regard to subrogation rights. The “association” and the “Second Injury Trust Fund” are not the same thing.

There is no equitable right of subrogation. Aetna Life Ins. Co. v. Otis Elevator Co., 204 S.W. 376 (Tex.Civ.App.1918); and most recently it was held that there is no equitable right of subrogation as to workers’ compensation medical benefits paid by an insurance carrier; Finch v. Texas Emp. Ins. Ass’n., 535 S.W.2d 201 (Tex.Civ.App.1976, writ ref’d n.r.e.). Right of the carrier to be subrogated to the rights of the injured employee is strictly statutory.

Appellant bases its contention on the rather emotional argument that the right of subrogation here would make more funds available to compensate other handicapped persons unable to recover from two sources and would prevent the unjust enrichment of those who recover from two sources. However, it is not the office of this Court to legislate. It is solely within the province of the Legislature to provide adequate funding for the programs it has created. The Legislature of this State has met many times since the creation of the Second Injury Trust Fund, and none has granted any right of subrogation to take back the benefits already paid to an injured workman.

The case of Industrial Accident Board v. Texas Employers’ Insurance Association, 162 Tex. 244, 345 S.W.2d 718 (1961) is instructive. There the Supreme Court of this State recognized that the second injury fund is merely a creation of statute and “it is only when the facts meet the requirements of the act that the fund has any rights.” This case was an affirmance of a previous holding by this Court denying any recovery for the fund. Industrial Accident Board v. Texas Employers’ Ins. Ass’n, 336 S.W.2d 216 (Tex.Civ.App.1960). Further, by explanation, the Supreme Court stated that payments into the fund are fixed in an arbitrary amount by the legislature, and are not “obtained by proceedings for compensation for an injury.” Under Miears v. Industrial Accident Board, 149 Tex. 270, 232 S.W.2d 671 (1950) a suit involving the Second Injury Fund, held that the Workers’ Compensation Act should be construed liberally in favor of the injured workman. The rule has been followed consistently. See Chief Justice Pope’s opinion in Harris v. Casualty Reciprocal Exchange, 632 S.W.2d 714, 718 (Tex.1982).

I would affirm the judgment of the trial court.