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The Attorney General of Texas 

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 a State 

employee with a specific injury under 

the workmen's compensation 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 injuries. This section reads in pertinent part: 

For the injuries enumerated in the 

following schedule the employee shall 

receive in lieu of all other compensation 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 detailing 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 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 12 refers instead to the timing of weekly compensation 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. 

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 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 

P. 4525 
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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 payments 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‘specific 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 Appropriations 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 workmen'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