Argued December 6, 2012
On Petition for Review from the Court of Appeals for the Second District of Texas.
Justice Guzman delivered the opinion of the Court, in which Justice Johnson, Justice Willett, Justice Lehrmann, Justice Boyd, and Justice Devine joined.
OPINION
EVA M. GUZMAN JUSTICE
A fundamental constraint on the courts’ role in statutory interpretation is that the Legislature enacts the laws of the state and the courts must find their intent in that language and not elsewhere. Under the guise of agency deference, an agency asks us to judicially engraft into the Texas Workers’ Compensation Act a statutory procedure to re-open determinations of eligibility for permanent lifetime income benefits—a procedure the Legislature deliberately removed in 1989. The Legislature’s choice is clear, and it is not our province to override that determination. This is especially true because, as we held in Texas Mutual Insurance Co. v. Ruttiger, the Act is a comprehensive statutory scheme, and therefore precludes the application of claims and procedures not contained within the Act.[1] In light of the Act’s comprehensive nature, we decline to judicially engraft into it a procedure the Legislature deliberately removed. Accordingly, we affirm the judgment of the court of appeals.
I. Background
In 1991, Ricky Adcock suffered a compensable injury to his right ankle. Though he underwent reconstructive surgery, he developed reflex sympathetic dystrophy in the injured ankle. In 1997, the appeals panel determined that Adcock was entitled to Lifetime Income Benefits (LIBs) because "the great weight and preponderance of the evidence is that the claimant has the total and permanent loss of use of his right hand at his wrist" in addition to the stipulated loss of use of Adcock’s right foot. Liberty Mutual Insurance Company (Liberty), the workers’ compensation carrier for Adcock’s employer, did not seek judicial review of that decision.
Over a decade later, Liberty sought a new contested case hearing on Adcock’s continuing eligibility for LIBs based on Liberty’s belief that Adcock may have regained the use of his extremities. The hearing officer determined that Liberty could re-open the previous LIB determination but ultimately concluded Adcock remained entitled to LIBs based on his loss of use of his right hand and both feet. The appeals panel affirmed.
Both parties sought judicial review. Adcock moved for summary judgment, contending the hearing officer lacked jurisdiction to re-open the previous LIB determination. The Texas Department of Insurance, Division of Workers’ Compensation (the Division) subsequently intervened, asserting that it has jurisdiction to re-open LIB determinations.[2] The trial court granted Adcock’s motion for summary judgment. The court of appeals affirmed, noting the Legislature had specifically removed the procedure to re-open LIB determinations in 1989 and the current Act only provides for ongoing review of temporary income benefits. 353 S.W.3d 246, 249–52.
II. Discussion
"Enforcing the law as written is a court’s safest refuge in matters of statutory construction, and we should always refrain from rewriting text that lawmakers chose . . . ." Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009). We review issues of statutory construction de novo, and our primary objective in construing a statute is to ascertain and give effect to the Legislature’s intent. Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). The plain meaning of the text, given the context of the statute as a whole, provides the best expression of legislative intent. Id.; Ruttiger, 381 S.W.3d at 454.
Although we have held that "when the Legislature expressly confers a power on an agency, it also impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties, " an agency has no authority to "exercise what is effectively a new power, or a power contradictory to the statute, on the theory such a the power is expedient for administrative purposes." Pub. Util. Comm’n of Tex. v. City Pub. Serv. Bd. of San Antonio, 53 S.W.3d 310, 316 (Tex. 2001).
The narrow question before us is whether the current version of the Act contains a procedure to re-open LIB determinations. Liberty and the Division assert that if an employee medically improves and no longer meets the statutory requirements for eligibility for LIBs, the Division has "necessarily implicit" authority to re-open the LIB determination. Adcock counters that the plain language of the statute indicates the LIB determination is permanent and offers no procedure to reopen it. We agree with Adcock.
A. Plain Language
Section 408.161(a) of the Texas Workers’ Compensation Act (Act) states that "[l]ifetime income benefits are paid until the death of the employee for" loss of one foot at or above the ankle and one hand at or above the wrist. Tex. Lab. Code § 408.161(a)(4). Moreover, "the total and permanent loss of use of a body part is the loss of that body part." Id. § 408.161(b). And importantly, the Act does not provide any procedure to re-open the LIB determination. Id. § 408.161. On the contrary, the Legislature’s express mandate that LIBs "are paid until the death of the employee" manifests its intent to make LIB determinations permanent.[3] Id. § 408.161(a).
Liberty argues that the term "lifetime" in LIBs "pertains to the duration of a worker’s eligibility for benefits; it does not determine entitlement." But the statute does not state that LIBs "may be paid" until the employee’s death; rather, it mandates LIBs "are paid" until the employee’s death. Id. Thus, when, as here, the Division has determined that an employee is eligible for LIBs, the plain language of the statute mandates that such benefits continue until the employee’s death.
B. The Legislature’s Comprehensive Benefits Scheme
We recently determined that "[t]he Act effectively eliminates the need for a judicially imposed cause of action outside the administrative processes and other remedies in the Act." Ruttiger, 381 S.W.3d at 451. "It is apparent that the Act prescribes detailed, [Division]-supervised, time-compressed processes for carriers to handle claims and for dispute resolution." Id. at 443. We observed: "[k]ey parts of the [workers' compensation] system are the amount and types of benefits, the delivery system for benefits, the dispute resolution processes for inevitable disputes that arise among participants, the penalties imposed for failing to comply with legislatively mandated rules, and the procedures for imposing such penalties." Id. at 450 (emphasis added). Further, we questioned "to what extent the judiciary will respect the Legislature’s function of addressing the concerns and adjusting the rights of the parties in the workers’ compensation system as part of its policy-making function." Id. In answering that question, we ultimately held that "[t]he Act effectively eliminates the need for a judicially imposed cause of action outside the administrative processes and other remedies in the Act." Id. at 451. In sum, the Legislature devised a comprehensive workers’ compensation system, with specific benefits and procedures based on the public policy of the State of Texas. We concluded in Ruttiger that the Court should not alter the Act’s comprehensive scheme, and we reaffirm that principle today.
The Act’s comprehensive framework requires that we respect the Legislature’s choice to not include a procedure to re-open the LIB determination. Before its comprehensive reform of the workers’ compensation system in 1989, the Legislature specifically incorporated such a procedure, providing that:
[u]pon its own motion or upon the application of any person interested showing a change of condition, mistake, or fraud, the Board at any time within the compensation period, may review any award or order, ending, diminishing or increasing compensation previously awarded, within the maximum and minimum provided in this Law, or change or revoke its previous order denying compensation, sending immediately to the parties a copy of its subsequent order or award.
Act of May 20, 1931, 42d Leg., R.S., ch. 155, § 1, 1931 Tex. Gen. Laws 260. But the Legislature repealed this provision as part of its reform of the workers’ compensation system in 1989. See Act effective Jan. 1, 1991, 71st Leg., 2d C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 114; see also Ruttiger, 381 S.W.3d at 439 ("The key, and most controversial, reforms were in the areas of employee benefits and dispute resolution."). Because the Legislature specifically chose to remove the authority to re-open the permanent LIB determination as part of its reforms, we must credit that choice. See Entergy, 282 S.W.3d at 443 ("It is, of course, axiomatic that the deletion of language better indicates the Legislature’s intent to remove its effect, rather than to preserve it.").
As part of its revised comprehensive scheme of the workers’ compensation system, the Legislature established a dichotomy containing two distinct classes of income benefits: temporary benefits and permanent benefits. Temporary benefits are only paid as long as certain conditions (e.g., medical conditions) continue to exist, whereas permanent benefits continue until the occurrence of a statutory, terminating event (e.g., death).
With respect to temporary benefits, the Act lays out specific procedures to re-open benefits determinations. For example, supplemental income benefits (SIBs), a form of temporary benefits, are based upon an employee’s demonstration of an active effort to obtain employment. Tex. Lab. Code § 408.1415(a). The Act expressly allows carriers to "request a benefit review conference to contest an employee’s entitlement to supplemental income benefits or the amount of supplemental income benefits." Id. § 408.147(a). The Act also specifies the procedures for evaluating whether SIBs should end, allowing a medical evaluation once every twelve months, id. § 408.149(a), and permitting the Division to designate a doctor for a medical evaluation to determine if the employee’s condition has sufficiently improved to allow him to return to work, id. § 408.151(b).
Similarly, temporary income benefits (TIBs)—another form of temporary benefits—are contingent on the employee’s recovery. "An employee is entitled to temporary income benefits if the employee has a disability and has not attained maximum medical improvement." Id. § 408.101. "’Disability’ means the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage." Id. § 401.011(16). "If the report of a designated doctor indicates that an employee has reached maximum medical improvement or is otherwise able to return to work immediately, the insurance carrier may suspend or reduce the payment of temporary income benefits immediately." Id. § 408.0041(k). Because TIBs and SIBs are paid until the employee reaches statutorily sufficient medical improvement, eligibility determinations require periodic evaluation.
While temporary benefits require continuous monitoring to determine whether the employee has achieved the statutory level of improvement, permanent benefits require no such monitoring. This is because such benefits are permanent determinations, only terminating on the occurrence of a specific statutorily mandated life event. For example, death income benefits (DIBs) are paid to eligible beneficiaries when an injury to an employee results in death. Id. § 408.181(a). The statute sets out eligibility requirements for children, spouses, and parents. Id. § 408.182. Once eligible, benefits continue until the occurrence of some specific event, whether it be death, remarriage, or attaining a certain age. Id. § 408.183. There is no provision that allows a carrier to reassess DIBs after eligibility is established. Further, a carrier is permitted to pay DIBs through an annuity, thus removing the act of paying the benefits from the carrier’s purview. Id. § 408.181(d). According to Division rules, such an annuity is not assignable by the beneficiary. 28 Tex. Admin. Code § 132.16(d)(6). By authorizing use of a method providing a non-assignable right to payment, the Legislature indicated that the right to DIBs exists until the statutory contingency is met—with no procedure for further review.
Similarly, LIBs—like DIBs—are permanent income benefits. LIBs are paid upon the establishment of eligibility—here by the loss of use of two limbs—until the occurrence of a particular event: the death of the employee. Tex. Lab. Code §§ 408.161(a)(4), (b). Unlike temporary benefits, the statute provides no express statutory procedure to re-open an eligibility determination for LIBs or to assess the medical improvement of the employee. In addition, LIBs, like DIBs may be paid through an annuity. Id. § 408.161(d). Such an annuity is likewise not assignable by the beneficiary. 28 Tex. Admin. Code § 131.4(d)(5). As with DIBs, the Legislature has authorized the use of a payment method that provides a non-assignable right to payment for the life of the obligation. Construing the Act in accordance with this dichotomy, the Legislature has established LIBs as a permanent right to benefits with no procedure to re-open that determination. When the Legislature expresses its intent regarding a subject in one setting, but, as here, remains silent on that subject in another, we generally abide by the rule that such silence is intentional.[4] Thus, the Legislature’s express provision of procedures for re-evaluating temporary benefit eligibility and the absence of such a procedure for permanent benefits indicates a deliberate choice, and we must respect the Legislature’s prerogative to establish the rights and procedures in the workers’ compensation system. Therefore, we decline Liberty’s invitation to judicially engraft a procedure inconsistent with the dichotomy the Legislature constructed. Ruttiger, 381 S.W.3d at 450; Entergy, 282 S.W.3d at 443.[5]
Liberty responds that if—as we hold today—the LIB determination is permanent, this will harm injured employees because they will not be able to obtain LIBs if their initial request is denied but their medical condition subsequently deteriorates. But the Legislature’s scheme for payment of LIBs belies this argument. Specifically, section 408.081 states that "[a]n employee is entitled to timely and accurate income benefits as provided by this chapter, " and further requires that income benefits be paid weekly without action by the commissioner. Tex. Lab. Code §§ 408.081(a), (b). Section 408.161 indicates that LIBs are to be paid when the permanent loss of use of certain body parts occurs. Id. § 408.161. Thus, when viewed in context, the statute requires that carriers begin paying benefits to employees once eligibility is established. See Ruttiger, 381 S.W.3d at 454 ("legislative intent emanates from the Act as a whole"). There is no restriction on when such eligibility may be established. Rather, the statute contemplates that whenever a compensable injury leads to a qualifying permanent loss of use, eligibility occurs and the employee becomes entitled to permanent LIBs. This is in direct contrast to the termination of LIBs, which specifically occurs at the employee’s death. Tex. Lab. Code § 408.161(a).
C. Response to the Dissent
The dissent argues that: (1) despite the statute’s failure to include a procedure to re-open the LIB determination, the Act’s general definition of "impairment" implies such a procedure; (2) the Act also necessarily implies the authority of the Division to re-open the LIB determination; (3) our remand in American Zurich Insurance Co. v. Samudio, 370 S.W.3d 363 (Tex. 2012), requires us to allow the Division to re-open LIB determinations; and (4) the Legislature’s framework credits the Division as "being able to predict the future and knowing absolutely which claimants will always be entitled to" LIBs. These assertions, however, are unavailing.
To support its first argument, the dissent relies on the Act’s general definition of "impairment" as "reasonably presumed to be permanent" to conclude that the finding of permanency is merely a prediction. Tex. Lab. Code § 401.011(23). The dissent searches for support in our observation in Insurance Co. of State of Pennsylvania v. Muro that all injuries under section 408.161 result in impairments. 347 S.W.3d 268, 275 (Tex. 2011). But the dissent fails to consider that in Muro, we heavily relied on the fact that the Legislature’s deletion of certain language in the Act indicated its intent to change the former law. Id. ("Because the Legislature chose both to retain the enumerated injuries and to repeal the ‘other loss’ clause, it clearly did not intend to continue the broader application of lifetime income benefits formerly recognized by some courts of appeals under the old-law’s ‘other loss’ clause."). This generic definition of impairment does not re-inject into the Act an entire procedure for re-opening LIB determinations that the Legislature previously removed.
Additionally, the dissent contends that principles of agency deference necessarily imply the authority for the Division to re-open the LIB determination. See R.R. Comm’n of Tex. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011) ("We have long held that an agency’s interpretation of a statute it is charged with enforcing is entitled to ‘serious consideration, ‘ so long as the construction is reasonable and does not conflict with the statute’s language."). But such deference is in direct conflict with the "well-established principle that" administrative agencies "may exercise only those powers that the Legislature confers upon [them] in clear and express language, and cannot erect and exercise what really amounts to a new or additional power for the purpose of administrative expediency." See Tex. Natural Res. Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368, 377 (Tex. 2005) (emphasis added). Here, the Legislature deliberately removed the procedure for re-opening the LIB determination, and that deliberate silence neither creates ambiguity nor confers authority to an agency. See id.; Entergy, 282 S.W.3d at 443.
Further, the dissent’s reliance on Samudio is misplaced. Samudio involved workers’ compensation impairment income benefits. 370 S.W.3d at 365. The Act mandates that the Division assign an impairment rating determined in accordance with certain criteria. Id. at 368. In Samudio, although the carrier and employee agreed the employee was impaired, they disagreed on the extent of the impairment. Id. at 366. Because the Act mandated the Division assign a valid impairment rating but no valid impairment rating was before the Division, we remanded the claim to the Division to consider a valid impairment rating. Id. at 368. Thus, Samudio stands for the proposition that the Division must comply with the Act’s mandates (which was to assign a valid impairment rating). In this case, the Act mandates that the carrier make payments until the employee’s death because the Division determined Adcock is eligible for permanent LIBs. See Tex. Lab. Code § 408.161. Reopening that determination would not enforce the mandate—it would violate it. If the Legislature determines that the employers and employees of Texas are best served by allowing for re-opening LIB determinations, it may craft a review procedure in the statute—as it has done with temporary benefits and previously did with LIBs. This Court, however, must avoid such policy determinations.
Lastly, the dissent asserts that our construction of the comprehensive scheme requires the Division to predict with certainty which claimants will always be entitled to LIBs, a requirement that is unworkable because the future is unknowable. Yet common law and statutory claims, and their procedures for recovering future damages, have long been a cornerstone of our court system. The question is not whether future damages are absolutely knowable but whether the plaintiff proved such damages within a reasonable degree of certainty. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 247 (Tex. 2008). It is not grounds to re-open a judgment simply because a plaintiff incurred fewer future medical expenses than the judgment awarded. Here, the question is whether the Division could determine that an employee lost the use of two limbs. Tex. Lab. Code §§ 408.161(a)(4), (b). The Division made that determination over a decade ago, and the record indicates no difficulty in doing so. The requirement that an injury be permanent is a familiar concept to the courts and the Legislature and does not yield absurd results.
III. Conclusion
We defer to the Legislature to craft statutes and we interpret them as written. The Legislature previously included a procedure to re-open LIB determinations—which it removed in 1989. Currently, the Legislature only allows temporary benefit determinations (not permanent benefit determinations like LIBs) to be re-opened. We will not judicially engraft into this comprehensive statute a procedure the Legislature deliberately removed. Accordingly, the Division had no jurisdiction to re-open Adcock’s LIB determination, and we therefore affirm the judgment of the court of appeals.
Justice Green, joined by Chief Justice Jefferson and Justice Hecht, dissenting.
The Court today holds that, once awarded, lifetime income benefits (LIBs) are irrevocable and must be paid for the rest of a claimant’s life, even when it can be established at a later date that the claimant’s injury is no longer total and permanent. While the Court’s rationale makes sense for anatomical losses, it defies reason for functional losses. Advances in medicine and science offer previously unforeseen therapies and treatments that enable some persons who once seemed permanently injured to regain functionality. The Court says none of this matters, that the Legislature intended to foreclose any reopening of a finding of total and permanent loss of use, even when evidence would show that the claimant has recovered. Because I read the Labor Code’s scheme governing income benefits as giving the Texas Department of Insurance, Division of Workers’ Compensation (the Division) jurisdiction to ensure that only claimants who meet the statutory eligibility criteria receive LIBs, I respectfully dissent.
I. Background
In March 1991, Ricky Adcock sustained on-the-job injuries to his right foot and his right hand. Six years later, he was awarded LIBs. Liberty Mutual, the worker’s compensation insurance carrier for Adcock’s employer, did not appeal that decision to the trial court and began issuing payments pursuant to the order.[1] More than ten years later, Liberty Mutual sought a new hearing, asserting that it had received video evidence of Adcock walking and handling objects, indicating that his condition had improved enough that he no longer had total and permanent functional loss of his ankle and hand, and he was therefore not entitled to LIBs. At a contested case hearing, the parties agreed on the following questions to be certified to the hearing officer:
(1) Is [Adcock] entitled to lifetime income benefits (LIBs) as of this date based on total and permanent loss of use of his hands and legs?
(2) As a result of the decision and order of Appeals Panel in Appeal No. 970981, does the Division have jurisdiction to determine continuing entitlement to lifetime income benefits (LIBs)? The video evidence presented at the hearing clearly demonstrated that, at one time, Adcock could walk and handle objects. The hearing officer issued its decision and order, finding that it had jurisdiction to hear the case but that, despite the video evidence, Adcock remained entitled to LIBs. The appeals panel affirmed. Adcock appealed to the district court, arguing that the Division lacked jurisdiction to hear the case under section 408.161 of the Labor Code, and asserting res judicata and collateral estoppel.
II. The Division’s Jurisdiction
The Court holds that jurisdiction to determine continuing eligibility for LIBs cannot be found in the plain language of the Act, and therefore our inquiry can go no further. I disagree. When construing a statute, "[w]e rely on the plain meaning of the text as expressing legislative intent unless a different meaning is . . . apparent from the context." Tex. Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). Additionally, we are not constrained to the text of the statute if "the plain meaning leads to absurd or nonsensical results." Molinet v. Kimbrell, 356 S.W.3d 407, 411 (Tex. 2011). I believe that disallowing the Division jurisdiction in these cases will lead to absurd and nonsensical results, which the Legislature did not intend.
A. The Statute Indicates Jurisdiction to Consider Continuing Eligibility to Receive LIBs
Section 408.161 of the Texas Labor Code provides that "[l]ifetime income benefits are paid until the death of the employee" when an impairment qualifies under the statute. Tex. Lab. Code § 408.161(a). Additionally, "the total and permanent loss of use of a body part is the loss of that body part" for purposes of entitlement to LIBs. Id. § 408.161(b). The Division is charged with reviewing an employee’s condition and awarding LIBs when the claimant is entitled to them. See id. § 402.00114 (providing that "the division shall: (1) regulate and administer the business of workers’ compensation in this state; and (2) ensure that this title and other laws regarding workers’ compensation are executed"); see also id. § 408.161 (establishing the requirements for entitlement to LIBs).As the Court explains, administrative agencies are creatures of the Legislatureand, therefore, may exercise only the powers the Legislature confers upon themin clear and express language.__ S.W.3d at__; Tex. Natural Res. Conservation Comm’n v. Lakeshore Util. Co., 164 S.W.3d 368, 377–78 (Tex. 2005). As the Court also recognizes, however, "[w]hen the Legislature expressly confers power on an agency, it also impliedly intends that the agency have whatever powers are reasonably necessary to fulfill its express functions or duties." Lakeshore Util. Co., 164 S.W.3d at 378. "In deciding whether an agency has acted within its powers, a court should also determine whether an agency’s power is implied in the statute." Id. at 377–78 (emphasis added). We recently held in American Zurich Insurance Co. v. Samudio, 370 S.W.3d 363 (Tex. 2012), that the trial court had the power to remand an impairment rating decision to the Division even though "the statute [was] silent as to the court’s power to remand" because the "regulatory scheme as a whole illustrate[d]" that was the Legislature’s intent. 370 S.W.3d at 368. Likewise, the overall income benefit scheme indicates the Legislature’s intent for the Division to have jurisdiction to consider continuing eligibility for LIBs.
We determine legislative intent by reading the statute as a whole and interpreting the legislation to give effect to the entire act and not just its isolated portions. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). We may be "aided by the interpretive context provided by the surrounding statutory landscape." LTTS Charter Sch., Inc. v. C2 Constr., Inc., 342 S.W.3d 73, 75 (Tex. 2011) (internal quotation marks omitted). The Division is charged with the duty to "administer and operate the workers’ compensation system." Tex. Lab. Code § 402.001(b). And it must "provide appropriate income benefits and medical benefits in a manner that is timely and cost-effective." Id. § 402.021(b)(3). As the Division is charged with the efficient and cost- effective administration of benefits, it follows that the Legislature intended that the Division have the power to ensure that those who are permanently impaired receive just compensation and those whose impairments are not permanent do not receive a windfall. Without the implied power to determine continuing eligibility for LIBs, the Division could not ensure that income benefits are administered in a cost-effective way. It is unlikely that the Legislature would require the workers’ compensation system and its carriers to allocate resources in such a way as to require the payment of lifetime benefits, often for decades, to workers who do not meet the statutory criteria.
Although we held in Texas Mutual Insurance Co. v. Ruttiger, 381 S.W.3d 430 (Tex. 2012), that a common law cause of action for breach of the duty of good faith and fair dealing against a workers’ compensation insurance carrier "operate[d] outside the administrative processes and other remedies in the Act and [was] in tension with . . . the Act’s goals or processes, " id. at 450, here an action to determine continuing eligibility for LIBs is not in tension with the Act; rather, it is consistent with the Legislature’s intent to give the Division the responsibility of properly administering benefits. I agree with the Court that the Legislature has enacted a comprehensive scheme for workers’ compensation. __ S.W.3d at__. As discussed below, however, the Legislature cannot and need not envision every circumstance that may arise in the workers’ compensation context. And the Court should not be required to order absurd results if the Legislature happened to leave a particular circumstance unaddressed. See R.R. Comm’n v. Lone Star Gas Co., 844 S.W.2d 679, 689 (Tex. 1992) (noting that requiring the Legislature to anticipate all circumstances would defeat the purpose of delegation).
As Adcock and the Court point out, other income benefits in the Act, such as supplemental income benefits and temporary income benefits, have a cap on the length of time an employee may receive benefits, while an award of LIBs does not. See __ S.W.3d at__ (citing Tex. Lab. Code §§ 408.0041(k), .011(16), .101, .1415(a), .147(a), .149(a), .151(b)). Adcock and the Court argue this is significant and indicates the Legislature’s intent that LIBs be awarded until the claimant dies, regardless of whether his condition may have improved. But the Legislature’s use of "lifetime" does not mean there can be no cap; rather, it denotes the maximum possible duration of the benefit—an employee is eligible to receive up to a lifetime’s worth of benefits, but he is entitled to those benefits only if he meets the statutory condition. Section 408.161 provides that LIBs "are to be paid until the death of the employee for" the total and permanent loss, or loss of use, of statutorily specified body parts. Tex. Lab. Code § 408.161(a) (emphasis added). The word "for" limits the required payment of LIBs, thus conditioning the entitlement to LIBs upon a total and permanent loss of, or loss of use of, those body parts. Id. § 408.161(a), (b). As long as an employee is still entitled to the LIBs by virtue of his condition, the award is indefinite. So, while the Legislature did not expressly provide for a review process of a grant of LIBs, the plain language of the statute signals the Legislature’s intent to allow the Division to ensure that LIBs are paid only to those entitled to them and that those entitled to them are actually receiving the benefits.
The Court argues that because the provisions governing death income benefits (DIBs)—a form of permanent benefit that is paid to a deceased employee’s beneficiaries until the occurrence of a specified event—contain no procedure for ensuring continuing eligibility, LIBs must likewise be paid in perpetuity with no mechanism for ensuring continuing eligibility. See__ S.W.3d ___ at (citing Tex. Lab. Code §§ 408.181(a), .181(d), .182, .183). But the Court misses a critical difference—death is permanent; loss of use may be, but only time will tell. DIBs are paid until triggering events that are sure to occur—either beneficiaries will reach a certain age, or they will die, for example. See Tex. Lab. Code § 408.183. LIBs for anatomical losses work the same way—they are permanent, even when a claimant uses a prosthesis and is thus fully functional. LIBs for functional losses such as Adcock’s are different, however. They are paid "for" the total and permanent loss of use of certain body parts—something that lacks the certainty of death and amputations.[2]
The Court holds, and I agree, that the Division has jurisdiction to later consider a claimant’s eligibility for LIBs when LIBs have previously been denied. See __ S.W.3d at__. Just as the Act must be construed to impliedly allow an injured employee to subsequently establish eligibility for LIBs based upon a change of condition after LIBs were denied, the Act should also be construed to impliedly allow an insurance carrier to establish, based upon a change of condition, that eligibility no longer exists for a claimant receiving LIBs. The Legislature must have intended an effective and efficient exercise of the Division’s power to award LIBs, including the power to assess LIB entitlement, whether previously awarded or previously denied, to determine if the statutory criteria for receipt of benefits are satisfied. See Samudio, 370 S.W.3d at 368–69 (explaining that the overall regulatory scheme suggested that the trial court had the authority to remand to the Division despite the lack of an express provision in the statute).
I recognize that we are to construe the Act liberally in favor of employees and not supply "by implication restrictions on an employee’s rights." In re Poly-Am., L.P., 262 S.W.3d 337, 350 (Tex. 2008) (orig. proceeding) (quoting Kroger Co. v. Keng, 23 S.W.3d 347, 349 (Tex. 2000)). However, the Legislature could not have intended that "liberally construing the statute" would include permitting employees who are not entitled to LIBs to receive them. Moreover, this interpretation does not act as a "restriction" on an employee’s rights because an employee does not have a right to LIBs unless his or her injury qualifies under the statute. A contrary interpretation of section 408.161 would lead to nonsensical results. See Kimbrell, 356 S.W.3d at 411.
The Court holds that the words "total and permanent" and "death" foreclose the Division from evaluating a claimant’s continuing eligibility to receive LIBs.__ S.W.3d at__ . But the determination that an injury is permanent can be "nothing more than a prediction" that the condition will continue indefinitely. Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 338 (Tex. 1963), superseded by rule on other grounds as recognized in Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235 (Tex. 2007); cf. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 272 (Tex. 2004) (defining a permanent nuisance as an activity which is presumed to continue indefinitely). We have explained that the "injuries enumerated in section 408.161 all result in impairments, " Ins. Co. of State of Pa. v. Muro, 347 S.W.3d 268, 275 (Tex. 2011), and "impairment" is defined in the Act to include an injury that "is reasonably presumed to be permanent, " and therefore may change at a later time. Tex. Lab. Code § 401.011(23) ("’Impairment’ means any anatomic or functional abnormality or loss existing after maximum medical improvement that results from a compensable injury and is reasonably presumed to be permanent."). Although LIBs are awarded on a presumption that an impairment will continue indefinitely, with modern medicine and science we cannot preclude the possibility that a functional impairment may improve. The workers’ compensation system and the individual carrier should not have to continue to pay LIBs in the rare and fortunate event that a LIB claimant’s condition improves and the claimant no longer has total and permanent loss of use. I agree with Liberty Mutual and the Division that the Division must have jurisdiction to determine a claimant’s continuing eligibility for LIBs when there is evidence that his or her impairments are no longer total and permanent.
B. The Division’s Interpretation of the Statute Is Entitled to Serious Consideration
If a statute is ambiguous, "[c]onstruction of [that] statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute." Mid-Century Ins. Co. of Tex. v. Ademaj, 243 S.W.3d 618, 623 (Tex. 2007) (internal quotation marks and citation omitted); see R.R. Comm’n. v. Tex. Citizens for a Safe Future & Clean Water, 336 S.W.3d 619, 624 (Tex. 2011) ("We have stated this principle in differing ways, but our opinions consistently state that we should grant an administrative agency’s interpretation of a statute it is charged with enforcing some deference."). In this case, both the hearing officer and the appeals panel held that the Division had jurisdiction to consider continuing eligibility to receive LIBs under section 408.161, and the Division has taken that position throughout these proceedings. The appeals panel reached a similar result in a decision the parties refer to as Deep East Texas Self Insurance Fund, Appeals Panel No. 020432-s, 2002 WL 971079 (Tex. Workers’ Comp. Comm’n Apr. 10, 2002), in which an insurance carrier challenged the claimant’s continuing entitlement to LIBs and sought to show that the claimant fraudulently obtained the award. Id. at *1–2. The appeals panel held that the Division had jurisdiction to consider a claimant’s continuing entitlement to LIBs, but the court of appeals in this case disagreed with the appeals panel’s reasoning in Deep East Texas, concluding that because the insurance company was claiming fraud, it should have sought a remedy under section 415.031. 353 S.W.3d 248, 252 (Tex. App.—Fort Worth 2011, pet. granted); see Tex. Lab. Code § 415.031 (allowing any person to initiate administrative violation proceedings). Unlike Deep East Texas, however, Liberty Mutual does not contend that Adcock obtained his LIBs by fraud; it merely challenges his continuing eligibility for LIBs. As I have discussed, it is reasonable and does not contradict the plain language of the statute to construe section 408.161 as impliedly allowing the Division to have jurisdiction to determine eligibility for LIBs. Therefore, I see no reason that the Division’s construction of the Act as conferring jurisdiction to determine Adcock’s continuing eligibly for LIBs should not be afforded serious consideration.
The Court asserts that the Legislature knows how to provide for review of income benefit determinations, as it has done with temporary income benefits, and the lack of an express review provision in section 408.161 indicates the Legislature’s intent to prohibit the Division from considering continuing eligibility to receive LIBs.__S.W.3d at __. However, "[t]he Legislature is not required to set forth in detail all the provisions necessary to govern the agency in the performance of its functions." Lone Star Gas Co., 844 S.W.2d at 689 (quoting State v. Tex. Mun. Power Agency, 565 S.W.2d 258, 273 (Tex. Civ. App.—Houston [1st Dist.] 1978, writ dism’d)) (internal quotation marks omitted). Liberty Mutual asserted at oral argument that typically in LIB cases the functional loss of use of an appendage worsens over time, so a determination of a claimant’s continuing eligibility for LIBs is not necessary. Just because the Legislature did not expressly provide for this unusual situation does not mean that it did not intend for the Division to possess the power to carry out its duties to effectively distribute workers’ compensation benefits. Cf. Samudio, 370 S.W.3d at 368–69 (explaining that, despite the lack of an express provision in the Workers’ Compensation Act, trial courts nevertheless have the authority to remand cases to the Division as evinced by the overall statutory scheme).
As the Court points out, article 8306, section 12d of the former Workers’ Compensation Act gave the reviewing commission power "to review any award or order, ending, diminishing or increasing compensation previously awarded" based on "a change of condition, mistake or fraud, " a provision that is absent from the current Act. Act of May 20, 1931, 42d Leg., R.S., ch. 155, § 1, art. 8306, 1931 Tex. Gen. Laws 260, 260–61, repealed by Act of Dec. 13, 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(7), art. 8306, 1989 Tex. Gen. Laws 114, 114. The current Act provides for specific review within each particular type of benefit. See 353 S.W.3d at 250 (explaining the review systems for supplemental and temporary income benefits). The absence of a broad review provision does not necessarily indicate the Legislature’s intent to deprive the Division of jurisdiction, as the Court contends. While the Legislature’s omission of a provision from an old statute to a new may signal an intent to change the law, see Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 443 (Tex. 2009), it may also signal a change in the statutory scheme, as is the case here. See Jones v. Fowler, 969 S.W.2d 429, 432–33 (Tex. 1998) (holding that the Legislature did not intend the deletion of a statutory provision in the Family Code to be a substantive change in light of changes to the entire statutory scheme). Under the former statute, benefits were paid "predictively, " meaning that they were set "at the time of adjudication based on a prediction of the injury’s future impact on employment." Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 516 (Tex. 1995). The current Act instead pays long-term benefits retrospectively, where "benefits are adjusted periodically over time based on actual lost wages for that period." Id. The Legislature did not merely amend the former statute and deliberately leave out the review provision; it significantly overhauled the entire workers’ compensation system, including provisions for how claims are evaluated and benefits are awarded. See id. at 513. A difference in language, therefore, is less indicative of intent in this circumstance. I recognize that the Legislature knows how to provide for review, as it did so with the other compensation schemes. See 353 S.W.3d at 249–50. It follows then that the Legislature also knows how to expressly prohibit the Division from considering continuing eligibility for LIBs. It did not do so here. I believe that the Legislature intended for the Division to have jurisdiction to determine continuing eligibility for an award of LIBs.
The Court characterizes the issue in this case as one of re-opening aprevious LIB adjudication.__ S.W.3d__, . I view Liberty Mutual’s claims as seeking a new determination of Adcock’s continuing eligibility to LIBs. As a new claim, as opposed to an appeal of the original LIB award, the Division’s process for determining a claimant’s continuing eligibility for LIBs should be the same as an original determination to grant or deny benefits. A claimant or insurance carrier may request a benefit review conference by giving notice to the other parties after attempting to resolve the dispute. See Tex. Lab. Code §§ 410.023–.025; 28 Tex. Admin. Code § 141.1. If the parties cannot resolve their dispute at the benefit review conference or arbitration, the parties may proceed to a contested case hearing, where a Division hearing officer hears the dispute and makes a record of the proceedings. See Tex. Lab. Code § 410.151. The parties may then appeal that decision to the Division’s appeals panel. See id. § 410.202. Further, the Act provides the Division with the power to monitor carrier actions. See id. § 414.002(a). It lists numerous actions that constitute administrative violations by an insurance carrier, including a carrier’s contest of a claim to benefits when evidence clearly indicates liability. See id. § 415.002. The Act allows for sanctioning and penalties when carriers violate such provisions of the Act, and therefore guards against potential harassing actions by carriers against claimants receiving LIBs. See id. § 415.021(a).[3] Because the Act already provides a procedure for contesting a claimant’s current eligibility to benefits, there was no need for the Legislature to include a separate provision in the statute.
III. Conclusion
Section 408.161 awards LIBs for functional impairments that equate to a total and permanent loss of body parts and other serious life-altering injuries. It is impossible for the Division or anyone else to know whether loss of use will actually be total and permanent. When, by good fortune or advances in medical science, a claimant’s impairments improve so that he no longer meets the statutory eligibility criteria for LIBs, he should not receive a windfall, as the Court would hold, merely because the Legislature failed to provide for this unique circumstance. Surely the Legislature did not intent such a nonsensical result. I would hold that the Division, which is charged with the effective administration of income benefits, has jurisdiction to consider a claimant’s continuing eligibility to receive LIBs. I respectfully dissent.
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Notes:
[1] 381 S.W.3d 430, 451 (Tex. 2012).
[2] In 2005, the Legislature abolished the Texas Workers’ Compensation Commission and transferred its functions to the Texas Department of Insurance, Workers’ Compensation Division. See Act of May 29, 2005, 70th Leg., R.S., ch. 265, § 8.001, 2005 Tex. Gen. Laws 469, 607–08.
[3] The dissent concedes the statute no longer contains a procedure to re-open the LIB determination, indicating that "the Legislature cannot and need not envision every circumstance that may arise in the workers’ compensation context" and that it "happened to leave a particular circumstance unaddressed." S.W.3d, (Green, J., dissenting).
[4] See In re Nalle Plastics Family Ltd. P’ship, S.W.3d, , 2013 WL 2150717, at *7 (Tex. May 17, 2013) (holding that the Legislature’s use of the word "costs" did not include attorney’s fees as the definition of "litigation costs" elsewhere included both costs and attorney’s fees); Tex. Natural Res. Conservation Comm’n v. IT-DAVY, 74 S.W.3d 849, 859 (Tex. 2002) ("[T]he Legislature knows how to clearly and unambiguously waive sovereign immunity from suit. . . . Here, neither section 5.351 nor 5.352 clearly and unambiguously waives the [Texas Natural Resource Conservation Commission]‘s sovereign immunity from suit for breach-of-contract claims."); Bally Total Fitness Corp. v. Jackson, 53 S.W.3d 352, 358 (Tex. 2001) ("The Legislature could have added similar language to Section 51.014(a)(3) and permitted appeals from orders refusing to decertify a class, but did not."); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 885 (Tex. 2000) ("Section 26.177(d) shows the Legislature knows how to provide a right of appeal to persons affected by a water quality plan or government action relating to a plan. Yet, the Legislature chose not to provide such a right to persons affected by section 26.179 plans or [Texas Natural Resource Conservation Commission] approval of plans.").
[5] Adcock also asserts that the doctrines of res judicata and collateral estoppel act to bar Liberty from re-litigating a previously determined issue. But because the statute grants no authority to re-open LIB determinations, these doctrines do not affect our analysis.
[1] If a party disputes the appeals panel decision, it "may seek judicial review by filing suit not later than the 45th day after the date on which the [D]ivision mailed the party the decision of the appeals panel." Tex. Lab. Code § 410.252(a). "A decision of the appeals panel regarding benefits is final in the absence of a timely appeal for judicial review." Id. § 410.205(a).
[2] The Court also argues that because LIBs, like DIBs, can be paid through a non-assignable annuity, the Legislature must intend that there be no mechanism other than the claimant’s death to end the payment of LIBs. S.W.3d at . That the Legislature allows payment through an annuity for benefits that truly are permanent—DIBs and LIBs for anatomical losses—however, does not mean that the Legislature intends to foreclose a process to ensure that claimants receiving LIBs for functional losses are actually entitled to those benefits.
[3] Although not raised by the parties, I do not believe that section 410.209 of the Labor Code, which provides for reimbursement of funds to an insurance carrier who has overpaid a claimant, applies in cases such as this. See id. § 410.209. Liberty Mutual and the Division do not contend that Adcock was not entitled to LIBs in 1997, and thus they are not arguing that the Division should "revers[e] or modif[y]" that decision as is required to trigger potential reimbursement. See id. Rather, I view this is an entirely new determination of a claimant’s current entitlement to LIBs and not an appeal of the original grant of LIBs.
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