, -



# TheAttorney GeneralofTexas

December 14, 1977

Honorable Cue D. Boykin Texas Industrial Accident Board Lyndon Baines Johnson Building P. 0. Box 12757 -Capitol Station Austin, Texas 78711

Dear Mr. Boykin: Opinion No. H-1105
Re: Computation of benefits due aState employee with aspecific injury under theworkmen's compensation statutes.
You inquire about the relationship between 

### accrued sick leave andworkmen's compensation benefits for State employees who sustain aspecific 

### 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, 915(a); see V.T.C.S. art. 6674s, 6 7. Among theprovisions adopted andmade applicable toState employees is article 8306, section 12,which provides compensation for certain injuries. This section reads inpertinent part:

For the injuries enumerated in the following schedule the employee shall receive in lieu of all other compensation except medical aid, hospital services andmedicines as elsewhere herein provided aweekly compensation equal to . . . [apercentage ofweekly wages] for the respective periods stated herein.
. . . V.T.C.S. art. 8306, § 12. There follows a schedule detailing the number ofweeks' compensation provided for various specific injuries, primarily the loss of limbs. For example, anemployee who has lost ahand receives compensation for 150weeks. Section 12also provides compensation for loss of use of a limb and other partial incapacities. Article 8309g provides that aState employee "is not entitled toweekly payments of compensation under this article until hehas exhausted his accrued sick leave."

P. 4524Honorable Cue D. Boykin -Page 2 (H-1105)



### sec. 12;Attorney General Opinion H-701 (1975). You askwhether this provision requires that the period of sick leave used by an emplovee who sustained apermanent specific injury be deducted from theweeks of compensation owing tohim under article 8306, section 12. If this deduction ismade, aState employee who has lost ahand ina job-related injury, andwho takes three weeks of accrued sick leave, would receive 147weeks of compensation under article 8306, section 12, instead of 150weeks.
Inour opinion, article 83099, section 12does not provide 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 12refers instead to the timing ofweekly compensation payments, since an employee may not receive them while he isusing accrued sick leave. Itdoes not expressly permit the offsetting of sick leave and workmen's compensation; however, in some cases, the postponement of compensation while the employee ison accrued sick leave will have the effect of offsetting the two kinds ofbenefits. 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). Ifhe remains on s?x leave for the duration of the total temporary loss, hewill never become entitled toweekly compensation payments. Ifhe exhausts his accrued sick leave part way through the period of total loss, hemay collect weekly compensation payments only for the remainder of that period. co., 411 S.W.2d 642 (Tex. Civ. App.See Guzman v. Phoenix=-

-- 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 apermanent specific injury isnot as closely tied to aperiod of incapacity. It is in the nature of liquidated damages, United Employers Casualty Co. v. Knight, 139 S.F7.2d613 (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 forwork isnot essential to recovery for a specific injury. Fidelty Union Casualty Co. v.Munday; 44S.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, nowrit). When an employee has exhausted his

P. 4525. -

Honorable Cue D. Boykin -Page 3 (H-1105)

sick leave or has returned towork he still has apermanent incapacity that should be compensated in accord with article 8306, section 12. Since the employee's incapacity ispermanent, the postponement ofhis eligibility forweekly compensation payments does not effectively reduce the time period during which hemay receive compensation under the specific injury provision. Recovery for aspecific injury under article 8306, section 12 is tobe "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. -- SanAntonio 1958, writ ref'd n.r.e.). The employee's

__ earnings after the injury donot reduce his recovery for a‘specific injury. See Stahl v. Firemen's Fund Indemnity Co., supra: Sick leave forState employees isprovided by theAppropriations Act and is earned throughout their employment. General Appropriations Act, Acts 1977, 65th Leg., art. V, 9 7b, at 3146. It is part of the employee's remuneration forwork for the State, see Attorney General Opinions H-1083 (1977); H-797 (1976), and not the "compensation" referred to in section 12of article 8306.
SUMMARY
State employees who sustain apermanent specific injury entitling them toworkmen's compensation benefits should receive the compensation scheduled in article 8306, section 12without deduction for accrued sick leave used. /\Very truly yours,

Attorney General ofTexas
APPROVED:

DAVID M.KENDALL,

P- 4526-

Honorable Cue D. Boykin -Page 4 (H-1105)

C. ROBERT mATH, Chairman Opinion Committee jst

p. 4521