PJC General Negligence 2022

W ORKERS ’ C OMPENSATION —L IFETIME I NCOME B ENEFITS

PJC 25.3

PJC 25.3 Duration of Total Loss of Use—Question If you answered “Yes” to Question [ 25.2A ], then answer the following ques tion. Otherwise, do not answer the following question. QUESTION ______ What is the duration of such total loss of use? [ first body part ] [ second body part ] Beginning date: ____________ ____________ Ending date or “Permanent”: ____________ ____________ COMMENT When to use. PJC 25.3 should be used if there is a dispute about the beginning date or the permanence of an injury found to have produced a total loss of use of any of the members enumerated in Tex. Lab. Code §408.161(a)(2)–(5). If the evidence indicates a different beginning or ending date for each member alleged to have resulted in total loss of use, separate questions should be posed for each such member. Burden of proof. The burden of proof should be placed appropriately in accor dance with the decision of the appeals panel. See PJC 15.1. Source of question and instructions. Tex. Lab. Code §408.161(a)(2)–(5) refers to the loss of certain enumerated members. Such losses, by their nature, are perma nent. Tex. Lab. Code § 408.161(b) provides that the total and permanent loss of use of a body part is the loss of that body part. Thus, a claim for lifetime income benefits under a total loss of use theory requires a finding (or conclusive evidence) that any such total loss of use be permanent. Region XIX Service Center v. Banda , 343 S.W.3d 480, 485 (Tex. App.—El Paso 2011, pet. denied). The Code states that “[a]n employee is entitled to timely and accurate income bene fits 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). Life time income benefits are to be paid when the permanent loss of use of certain body parts occurs. Tex. Lab. Code §408.161. Thus, when viewed in context, the statute requires that carriers begin paying benefits to employees once eligibility is established. 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 lifetime income benefits. Tex. Lab. Code §408.161(a); Liberty Mutual Insurance Co. v. Adcock , 412 S.W.3d 492 (Tex. 2013). See also Mid-Century Insurance Co. v. Texas

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