Opinion issued February 9, 2016

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00508-CV

———————————

FRANCISCO CHAMUL, Appellant

V.

AMERISURE MUTUAL INS. CO., Appellee

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2012-14219

O P I N I O N

Francisco Chamul suffered a serious work-related injury and filed a 

worker’s compensation claim seeking lifetime-income benefits. His application 

was denied. After completing the administrative review process, the trial court 

granted summary judgment against him. 
2

In two issues, he contends that the trial court erred by (1) applying an overly 

restrictive definition to an undefined statutory term—imbecility—in support of 

summary judgment for the insurer and (2) finding that his treating physician’s 

affidavit qualifies as a sham affidavit and therefore is incompetent summary 

judgment evidence. 

We reverse and remand. 

Background

A. Legal background concerning “imbecility” as statutory standard for 

benefits

The Labor Code provides for lifetime-income benefits for employees who 

suffer certain devastating injuries. TEX. LAB. CODE ANN. § 408.161(a)–(b) (West 

2015). Among the list of qualifying injuries is “a physically traumatic injury to the 

brain resulting in incurable insanity or imbecility.” Id. § 408.161(a)(6). This basis 

for lifetime-income benefits dates back to 1917. See Act of Mar. 28, 1917, 35th 

Leg., R.S., ch. 103, § 1, Part I, sec. 11a, 1917 Tex. Gen. Laws 269, 275; see also 

Lumbermen’s Reciprocal Ass’n v. Gilmore, 258 S.W. 268, 269 (Tex. Civ. App.—

Texarkana 1924) (quoting imbecility provision from workers’ compensation 

statute of 1917), aff’d, 292 S.W. 204 (Tex. 1927). Despite the long-standing use of 

“imbecility” as a standard, the Labor Code does not define the term, and its 

meaning has proven to be anything but clear.
3

Further complicating the matter is that the terminology used to address and 

differentiate between various levels of intellectual deficits is constantly evolving.

See Caroline Everington, Challenges to Conveying Intellectual Disabilities to 

Judge and Jury, 23 WM. & MARY BILL RTS. J. 467, 484–85 (2014). Terms are 

coined and then fall in disfavor. “Feeble-minded” and “imbecile” were used in the 

early twentieth century. See Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584 (1927) (using 

both terms interchangeably in much-criticized opinion while discussing woman 

subject to involuntary sterilization); Tomoe Kanaya et al., The Flynn Effect and 

U.S. Policies: The Impact of Rising IQ Scores on American Society Via Mental 

Retardation Diagnosis, 58 AM. PSYCHOLOGIST 778, 788 (2003) (noting that 

intellectual-capacity labels are “continually supplanted by newer ones over time. 

For example, terms such as imbecile and feeble-minded were considered scientific 

and acceptable in the first quarter of the 20th century but were replaced after time 

with successive euphemisms.” (emphasis omitted)). A more recent example of 

changing terminology is the shift from using the term “mentally retarded” to 

“intellectually disabled.” See Ex parte Cathey, 451 S.W.3d 1, 5 (Tex. Crim. App. 

2014). 

Whatever meaning the Legislature attached to the term “imbecility” when it 

included the standard in the lifetime-income-benefits provision in 1917, it is clear 

that the term has little medical significance today. The medical experts in this case 
4

agree that the term “imbecility” is no longer part of the language of medicine for 

diagnosing patients or developing treatment plans to address their afflictions. 

Chamul’s treating physician stated that the term “imbecility” is “offensive” and not 

used by members of the medical profession to her knowledge. Amerisure’s 

selected neuropsychiatric expert included in his report the following statement: 

“Please note that use of imbecility or incurable insanity is pejorative. I only use it 

because it is administratively/statutorily required and does not reflect my personal 

or professional language use.” 

The Legislature updates statutes to remove “demeaning” terms and phrases 

and replace them with more acceptable terms, but it has not yet chosen to retire 

“imbecility” as a standard for benefits. Cf. TEX. GOV’T CODE ANN. § 392.001 

(West 2013) (stating that demeaning terms create invisible barriers to inclusion of 

individuals with disabilities); TEX. GOV’T CODE ANN. § 325.0123 (West 2013) 

(discussing statutory revisions to use phrase “intellectual disability” instead of 

“mental retardation”). We can infer nothing from this inaction because a 

“legislature legislates by legislating, not by doing nothing, not by keeping silent.” 

Sanchez v. Schindler, 651 S.W.2d 249, 252 (Tex. 1983) (quoting Wycko v. 

Gnodtke, 105 N.W.2d 118, 121–22 (Mich. 1960)). “[L]egislative silence . . . may 

reflect many things, including implied delegation to the courts or administrative 

agencies, lack of consensus, oversight, or mistake.” Brown v. De La Cruz, 156 
5

S.W.3d 560, 566 (Tex. 2004). Here, we know only that the terminology has 

remained unchanged.

Charging the hearing officers and the courts with construing a statutorily 

undefined term that is now outdated and considered offensive presents challenges. 

Adding to the challenge is the dearth of case law attempting to define the term.

Before turning to that body of law, we consider the evidence of Chamul’s 

neurocognitive injury.

B. Factual background concerning Chamul’s injury and his diagnoses

While working as a brick mason for Camarat Masonry, Francisco Chamul 

fell from a scaffold onto a concrete slab more than 10 feet below. He suffered a 

serious head injury. Specifically, he had multiple fractures of his skull, a left 

subdural hematoma with diffuse cerebral edema, and intercranial pressure that 

required bilateral decompression craniectomies. He also suffered spinal cord 

injuries, fractured ribs, and more. He was transported to Ben Taub Medical Center 

where he remained in a coma for 36 days.

Chamul was transferred to the Mentis Neuro-Rehabilitation Facility for 

rehabilitation. Approximately six months later, he underwent his first extensive 

neuropsychological evaluation performed by Dr. Francisco Perez. Dr. Perez 

diagnosed Chamul with neurocognitive problems, including significant memory 
6

deficiencies that negatively impacted his visual memory, ability to learn, and 

ability to retain new verbal information. 

Chamul’s next evaluation was by Dr. Cindy B. Ivanhoe at The Institute for 

Rehabilitation and Research in Houston. Dr. Ivanhoe testified that Chamul suffers 

from seizures and cognitive problems that affect his memory, thought organization, 

and understanding interpersonal dynamics. Chamul is not capable of living 

independently, needs to be supervised, is unable to operate a motor vehicle, and is 

permanently unable to return to competitive employment as a result of his brain 

injury. She further stated: “It is my opinion that Francisco Chamul is permanently 

mentally incapacitated because of his work related injuries.”

Approximately two years after beginning treatment with Dr. Ivanhoe, 

Chamul was examined by Dr. Stanley Hite, a doctor appointed by the Division of 

Workers’ Compensation. According to Dr. Hite, Chamul functions at the level of 

an 11 or 12 year-old, is unable to care for himself, and will need a caretaker for the 

rest of his life. Dr. Hite opined that Chamul’s condition will not improve. 

Chamul was also examined by Wallace Stanfill, a certified rehabilitation 

counselor. After assessing Chamul, Stanfill concluded that he ‘has experienced a 

total and permanent loss of the functioning of his brain from a vocational 

standpoint.” While agreeing that Chamul “is marginally functional in many basic 

areas,” Stanfill opined that he “is not considered to be cognitively able to engage in 
7

any degree of competitive work, even unskilled employment.” Instead, “[h]is 

current level of functioning would [be] at best more in keeping with sheltered 

employment,” which is consistent with Dr. Ivanhoe’s assessment.

Felix Chamul is Chamul’s father and primary caregiver. He stated in his 

affidavit that his son is unable to manage his medical and financial affairs and 

needs assistance with dressing and grooming. He believes that Chamul is 

unemployable. 

Amerisure retained neuropsychiatrist Dr. Andrew Brylowski to examine

Chamul. Dr. Brylowski concluded that, although Chamul had a significant, 

traumatic brain injury with diffuse brain swelling, he “did not sustain any type of 

irreversible brain injury which would rise to the level of rendering him 

permanently unemployable because of eliminating his ability to engage in a range 

of usual cognitive processes.” Dr. Brylowski diagnosed Chamul with 

“malingering,” concluding that he inaccurately reported information during the 

examination. Dr. Brylowski opined that “any cognitive, conative, neuroendocrine, 

sensory and motor function, or brainstem/cranial nerve function can be treated and 

managed to help [Chamul] reintegrate into the workforce.” 

C. The definition of “imbecility” used in Chamul’s administrative and 

judicial proceedings thus far

At the contested-hearing level, the hearing officer noted that the Labor Code 

does not define “imbecility” and concluded that past administrative appeals panels 
8

and courts have adopted a definition of “imbecility” from a dictionary published in 

1991; this definition “contemplates that the affected individual will not only 

require supervision in the performance of routine tasks, but will have a mental age1

of three to seven years.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991)

In support of that statement, the hearing officer cited two sources: Liberty Mutual

Insurance Co. v. Camacho, 228 S.W.3d 453 (Tex. App.—Beaumont 2007, pet. 

denied) and Appeals Panel Decision No. 961340, 1996 WL 487735 (Aug. 21, 

1996). 

 

1 The Supreme Court discussed the concept of “mental age” in Penry v. Lynaugh, 

492 U.S. 302, 339–40, 109 S. Ct. 2934, 2958 (1989), abrogated by Atkins v. 

Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002):

Mental age is “calculated as the chronological age of nonretarded 

children whose average IQ test performance is equivalent to that of the 

individual with mental retardation.” Such a rule should not be adopted 

today. . . . [T]he “mental age” concept, irrespective of its intuitive 

appeal, is problematic in several respects. As the AAMR [American 

Association for Mental Retardation—now American Association on 

Intellectual Developmental Disabilities] acknowledges, “[t]he 

equivalence between nonretarded children and retarded adults is, of 

course, imprecise.” The “mental age” concept may underestimate the 

life experiences of retarded adults, while it may overestimate the ability 

of retarded adults to use logic and foresight to solve problems. The 

mental age concept has other limitations as well. Beyond the 

chronological age of 15 or 16, the mean scores on most intelligence tests 

cease to increase significantly with age. As a result, “[t]he average 

mental age of the average 20 year old is not 20 but 15 years.” 

Not surprisingly, courts have long been reluctant to rely on the concept 

of mental age as a basis for exculpating a defendant from criminal 

responsibility.

(Internal citations and parentheticals omitted.)
9

The hearing officer considered the evidence—which included Dr. Hite’s 

opinion that, while Chamul is unable to care for himself, he functions at the level 

of an 11 or 12 year-old—and stated his determination as follows:

The evidence presented at the Contested Case Hearing reveals that 

although Claimant likely meets the initial portion of the definition

[that “the affected individual will . . . require supervision in the 

performance of routine tasks”], Claimant has not been shown to 

exhibit the mental age range in question [“a mental age of three to 

seven years”].

Thus, the decision of the hearing officer was that Chamul was not entitled to 

lifetime-income benefits for his work-related injury. Chamul was informed that the 

Appeals Panel was allowing the hearing officer’s decision to become final. Chamul 

sought judicial review of the decision. 

Both Chamul and the insurer, Amerisure Mutual Insurance Company, filed 

summary-judgment motions with the trial court. Amerisure highlighted the issue 

presented in the competing motions: “The crux of the cross motions for summary 

judgment in this case turn on the definition of ‘imbecility.’” Amerisure argued that 

“imbecility” should be interpreted to mean a “feebleminded person having a 

mental age of three to seven years . . . .” Chamul, on the other hand, argued for a 

more general definition: “an irreversible brain injury, which renders the employee 

permanently unemployable and so affects the non-vocational quality of his life by 

eliminating his ability to engage in a range of usual cognitive processes.” 
10

Amerisure also argued that the affidavit of Chamul’s treating physician, Dr. 

Ivanhoe, should be disregarded as incompetent summary-judgment evidence 

because it is a sham affidavit.

The trial court applied Amerisure’s “imbecility” definition. The court also 

found that Dr. Ivanhoe’s affidavit is a sham affidavit and, as a result, disregarded 

it. Based on the remaining evidence, including various physicians’ statements that 

Chamul had not been reduced to a mental age of three to seven years, but, instead, 

closer to a mental age of 11 years, the trial court granted Amerisure’s summaryjudgment motion and denied Chamul’s. Thus, Chamul remained without lifetimeincome benefits.

Chamul timely appealed.

Summary Judgment

Both parties moved for summary judgment on the issue whether Chamul’s 

traumatic brain injury resulted in “imbecility” to meet the requirement for lifetimeincome benefits.

A. Standards of review

A party moving for Rule 166a(c) summary judgment must conclusively 

prove all of the elements of its cause of action as a matter of law. TEX. R. CIV. P.

166a(c); Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 

2001); Rhone Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). A 
11

defendant moving for summary judgment on a cause of action asserted against it 

must negate as a matter of law at least one element of the plaintiff’s theory of 

recovery or plead and prove each element of an affirmative defense. Nelson v. 

Chaney, 193 S.W.3d 161, 165 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

“When both sides move for summary judgment and the trial court grants one 

motion and denies the other, the reviewing court should review both sides’

summary judgment evidence and determine all questions presented.” FM Props. 

Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); accord

Gillebaard v. Bayview Acres Ass’n, 263 S.W.3d 342, 348 (Tex. App.—Houston 

[1st Dist.] 2007, pet. denied). The reviewing court should render the judgment that 

the trial court should have rendered. See Tex. Workers’ Comp. Comm’n v. Patient 

Advocates of Tex., 136 S.W.3d 643, 648 (Tex. 2004); Comm’rs Court of Titus Cty. 

v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); Gillebaard, 263 S.W.3d at 347–48. The 

propriety of summary judgment is a question of law. We, therefore, review the trial 

court’s grant of one party’s motion and denial of the other’s using the de novo 

standard. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003).

We review issues of statutory construction de novo as well. Tex. Lottery 

Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010). We 

rely on the plain meaning of the text chosen by the Legislature. Id. “We use 
12

definitions prescribed by the Legislature and any technical or particular meaning 

the words have acquired.” City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 

2008). Otherwise, we construe the statute’s words according to their plain and 

common meaning unless a contrary intention is apparent from the context or such a 

construction leads to absurd results. Id. at 625–26; Fresh Coat, Inc. v. K–2, Inc., 

318 S.W.3d 893, 901 (Tex. 2010) (“Presuming that lawmakers intended what they 

enacted, we begin with the statute’s text, relying whenever possible on the plain 

meaning of the words chosen.”); Fitzgerald v. Advanced Spine Fixation Sys., 996 

S.W.2d 864, 866 (Tex. 1999) (explaining that “it is a fair assumption that the 

Legislature tries to say what it means . . . .”). The Texas Supreme Court has held 

that the Texas Workers’ Compensation Act should be liberally construed to confer 

benefits upon injured workers. Lujan v. Houston Gen. Ins. Co., 756 S.W.2d 295, 

297 (Tex. 1988).

B. The source of the mental-age based definition of “imbecility” that was 

applied to Chamul’s claim

The mental-age based definition of imbecility that was found in the 1991 

dictionary entry and later adopted by Chamul’s hearing officer and relied on by the 

trial court to deny his claim appears to slice out an age range (i.e., three to seven

years), thereby indicating that higher and lower age ranges exist. There is a 

historical context to this stratification. See Michael Clemente, Note, 

A Reassessment of Common Law Protections for “Idiots,” 124 YALE L.J. 2746, 
13

2756–58, 2763–68 (2015). It can be traced to the now-repudiated eugenics 

movement of the late-nineteenth to mid-twentieth century. Id. at 2763–64; see 

Sarah Fender, BIOETHICS IN HISTORICAL PERSPECTIVE 11 (Palgrave MacMillan 

2013). 

Eugenics was a social movement that sought to control human heredity. See

BIOETHICS IN HISTORICAL PERSPECTIVE at 11. Its adherents emphasized the genetic 

source of traits and believed that good traits could be accentuated in a population 

by good breeding and bad traits could be minimized by selective sterilization. 

Jennifer S. Geetter, Coding for Change: The Power of the Human Genome to 

Transform the American Health Insurance System, 28 AM. J. L. & MED. 1, 1–19

(2002) (discussing eugenics movement as precursor to scientific study of genetics). 

These ideas were eventually repudiated, but, before that would occur, many social 

and governmental programs were enacted based on these beliefs. See id. One was 

the government-mandated involuntary sterilization program that led to the 

infamous 1927 case of Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584 (1927).

2 There, the 

United States Supreme Court held that a “feeble-minded” woman, who was said to 

have been born to a “feeble-minded” mother and to have had a “feeble-minded” 

 

2 See Fieger v. Thomas, 74 F.3d 740, 750 (6th Cir. 1996) (noting that Buck has been 

repudiated except for its discussion of selective enforcement).
14

child out-of-wedlock,

3 did not have constitutional protection against involuntary 

sterilization. 274 U.S. at 205–07, 47 S. Ct. at 584–85. In a harshly worded opinion, 

Justice Holmes wrote that “[t]hree generations of imbeciles is enough.” 274 U.S. at 

207, 47 S. Ct. at 585.

While Justice Holmes and some others in that era used the terms “feebleminded” and “imbecile” interchangeably,4

a prominent eugenicist, Henry Herbert 

Goddard, sought to differentiate between levels of deficits. He created a three-tier 

system for classifying “feeble-minded” individuals’ cognitive abilities. See 

A Reassessment of Common Law Protections for “Idiots,” 124 YALE L.J. at 2763

(citing Henry Herbert Goddard’s Report on Committee on Classification of FeebleMinded, 15 J. PSYCHO-ASTHENICS 61–67 (1910)). Under Goddard’s system, 

“idiots” had an IQ of 25 or below with a calibrated mental age of up to two years; 

“imbeciles” had an IQ between 25 and 50 with a calibrated mental age of three to 

 

3 Scholarly research later revealed that neither the plaintiff nor her daughter had low 

IQ. Instead, the plaintiff’s foster parents were intent to institutionalize her after 

their nephew raped her, which led to the birth of a daughter, who actually excelled 

in school until her young death. See Paul A. Lombardo, Three Generations, No 

Imbeciles: New Light on Buck v. Bell, 60 N.Y.U. L. REV. 30, 53–54, 61 (1985).

4 See James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal 

Defendants, 53 GEO. WASH. L. REV. 414, 421 n.38 (1985) (stating that terms 

“‘idiots,’ ‘imbeciles,’ ‘morons,’ and ‘feebleminded,’ [were] all used to describe 

different degrees of mental retardation. The terminology was used without precise 

uniformity . . . . On occasion each term has been used as an umbrella term to 

include all levels of disability.”); see also A DICTIONARY OF MEDICAL SCIENCE

428 (Lea Brothers & Co., 23d ed. 1903) (defining “feeblemindedness” as “[w]eak 

mental condition[] in which are included dementia, idiocy, and imbecility.”).
15

seven years; and “morons” had an IQ between 50 and 75 with a calibrated mental 

age of eight to 12 years of age. Id. at 2763 (again citing Journal of PsychoAsthenics 1910 Report). 

Some dictionaries published after this eugenics era incorporated the tier 

system into their definitions of these words. See, e.g., MCGRAW-HILL DICTIONARY 

OF SCIENTIFIC AND TECHNICAL TERMS 1052 (6th ed., 2003) (defining “imbecile” as 

“person of middle-grade mental deficiency; the individual’s mental age is between 

3 and 7 years”).

Over time, the eugenics movement lost support and was repudiated. 

BIOETHICS IN HISTORICAL PERSPECTIVE at 11; Lisa Powell, Note, Eugenics and 

Equality: Does the Constitution Allow Policies Designed to Discourage 

Reproduction Among Disfavored Groups?, 20 YALE L. & POL’Y REV. 481, 482–89

(2002); see Eric M. Jaegers, Note, Modern Judicial Treatment of Procreative 

Rights of Developmentally Disabled Persons: Equal Rights to Procreation and 

Sterilization, 31 U. LOUISVILLE J. FAM. L. 947, 956 (1992) (“Beginning in the 

1930s and 1940s, a variety of factors initiated a gradual decline in support for 

eugenic theories. First, as scientific understanding of mental retardation became 

more sophisticated, researchers were able to disprove or discredit many premises 

upon which eugenics was based.”).
16

Nonetheless, references to Goddard’s tier system continue to be included in 

definitions for these terms in dictionaries published decades later. See, e.g., THE 

AMERICAN HERITAGE COLLEGE DICTIONARY 692 (Houghton Mifflin Co., 4th ed. 

2007) (defining “imbecile” as “person of moderate to severe mental retardation 

having a mental age from three to seven years”); WEBSTER’S NEW WORLD

COLLEGE DICTIONARY 723 (Houghton Mifflin Harcourt Publishing Co., 5th ed. 

2014) (defining “idiot” as “disabled person mentally equal or inferior to a child 

two years old”); Id. at 726 (defining “imbecile” as “disabled person mentally equal 

to a child between three and eight years old”); id. at 952 (defining “moron” as 

“disabled person mentally equal to a child between eight and twelve years old: an 

obsolescent term”); but see id. at 726 (also defining “imbecile” as “very foolish or 

stupid person”) and THE OXFORD ENGLISH DICTIONARY 670 (Clarendon Press, 2d 

ed. 1989) (defining “imbecile” as follows: “In general sense: Weak, feeble; esp. 

feeble of body, physically weak or impotent.”).

Thus, dictionary definitions that describe an “imbecile” as having a mental 

age between three and seven—including the 1991 dictionary definition—are 

referring to this three-tier classification system conceptualized by Goddard.
17

C. How the 1991 dictionary definition became incorporated into 

administrative and judicial analysis of qualifications for lifetime-income 

benefits 

The mental-age based “imbecility” definition was first used in the context of 

a workers’ compensation claim in 1996. See Appeal No. 961340, 1996 WL 487735 

(Tex. Work. Comp. Comm’n Aug. 21, 1996). There, the administrative appeals 

panel noted the lack of a statutory definition of “imbecility” and looked to 

Webster’s Ninth New Collegiate Dictionary, dated 1991, for insight. Cf. Jaster v. 

Comet II Constr., Inc., 438 S.W.3d 556, 563 (Tex. 2014) (stating that court will 

look to dictionaries and other sources to determine common, ordinary meaning of 

statutory terms left undefined). That 1991 dictionary defined “imbecility” as the 

quality or state of being an imbecile; it defined “imbecile” as “a mentally deficient 

person, especially a feebleminded person having a mental age of three to seven 

years and requiring supervision in the performance of routine daily tasks or caring 

for himself.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991). That 

appeals panel decision and its age-specific definition was later quoted in another 

appeals decision. See Appeal No. 020660, 2002 WL 971165, at *1 (Tex. Work. 

Comp. Comm’n Apr. 19, 2002). 

Meanwhile, some of the other states with “imbecility” as the standard in 

their lifetime-income-benefits statutes were adopting much broader definitions. In 

Barnett v. Bromwell, Inc., 366 S.E.2d 271 (Va. Ct. App. 1988) (en banc), that court 
18

noted that “imbecility” was an “obsolete” medical term and adopted a “functional,” 

“non-technical” approach to defining it. Id. at 272–74. The court defined the term 

to mean “an irreversible brain injury which renders the employee permanently 

unemployable and so affects the non-vocational quality of his life by eliminating 

his ability to engage in a range of usual cognitive processes . . . .” Id. at 274.

Likewise, Michigan adopted a general definition in Redfern v. SparksWithington Co., 268 N.W.2d 28, 37 (Mich. 1978), holding as follows:

We conclude that . . . a worker’s intellectual impairment is 

“imbecility” if he suffers severe cognitive dysfunction . . . . 

[C]ognitive dysfunction is “severe” if it affects the quality of the 

worker’s personal, non-vocational life in significant activity 

comparably to the loss of two members or sight of both eyes [another 

basis for qualifying for lifetime income benefits in some workers’ 

compensation statutes], and is incurable if it is unlikely that normal 

functioning can be restored.

Id. at 37. 

The Texarkana Court of Appeals compared the Virginia court’s definition to 

the 1991 dictionary definition in National Union Fire Insurance Co. v. Burnett, 

968 S.W.2d 950 (Tex. App.—Texarkana 1998, no pet.). After discussing these two 

alternative approaches to defining ‘imbecility,” the court determined that neither 

was helpful to answer the issue before it: whether the undefined statutory term 

“incurable insanity” included a diagnosis of depression without psychosis. Id. at 

956. 
19

The 1991 dictionary definition was referenced again in 2007 by the 

Beaumont Court of Appeals. See Liberty Mut. Ins. Co. v. Camacho, 228 S.W.3d 

453 (Tex. App.—Beaumont 2007, pet. denied). Amerisure relies heavily on 

Camacho, asserting that it was “a similar case concerning entitlement to lifetime 

income benefits due to imbecility” and that the definition of imbecility that was 

used in that case “is the same definition” applied to deny Chamul’s benefits.

In Camacho, the Beaumont Court of Appeals noted that the jury had been 

instructed that an “imbecile” is “a mentally deficient person, especially a 

feebleminded person having a mental age of three to seven years and requiring 

supervision in the performance of routine daily tasks or caring for himself.” 228 

S.W.3d at 461. But the Camacho court was not asked to determine whether the 

age-specific definition was legally correct or the trial court erred by supplying that 

definition to the jury. See id. Instead, the issue was whether a different jury 

instruction was erroneous: that the jury was to “give no special weight” to the 

decision of the Texas Workers’ Compensation Commission in its deliberations. Id. 

at 459. 

Just three years ago, these competing definitions were compared again by 

another workers’ compensation appeals panel. See Appeal No. 121131-s, 2012 WL 

12359072 (Tex. Work. Comp. Comm’n Aug. 27, 2012). That panel discussed that 

the hearing officer in the underlying contested hearing had noted the 1991 
20

dictionary definition of “imbecility” and compared it to the more general definition 

found in the Virginia Barnett opinion. See id. at *3. Without endorsing either 

approach over the other, the panel concluded that the hearing officer did not err by 

determining that the claimant was entitled to lifetime-income benefits. See id.

Based on Camacho and these earlier appeals-panel decisions, Amerisure 

argues that “imbecility,” in the context of a lifetime-income-benefits claim, means

“a mentally deficient person, especially a feebleminded person having a mental age 

of three to seven years and requiring supervision in the performance of routine 

daily tasks or caring for himself.” Amerisure reads this definition narrowly to 

require that the claimant establish a mental age between three and seven years.

D. Overly narrow, age-specific definition does not control

Amerisure obtained summary judgment that Chamul did not meet the 

definition of “imbecility” in the trial court. The trial court’s holding was explicitly

based on the narrow definition urged by Amerisure and adopted by the hearing 

officer. We conclude that the trial court erred by granting summary judgment to 

Amerisure. In doing so, we reject the narrow definition that would place a burden 

on claimants to establish a mental age of between three and seven years for three

reasons. First, the 1991 dictionary from which the narrow definition was obtained 

was not an appropriate source to discern the meaning of a term incorporated into a 

statute more than 70 years earlier. Second, the mandate that the workers’ 
21

compensation statute be liberally construed to confer benefits upon injured workers

suggests that Section 408.161 of the Labor Code should not be read to require 

proof of a mid-range mental age—a result achieved only through the most narrow 

reading of the statute and the definition possible. See Lujan, 756 S.W.2d at 297. 

Third, applying the 1991 dictionary definition would lead to absurd results and, 

therefore, must be rejected.

1. Consulting a dictionary to understand the common meaning of a 

statutory term

The term “imbecility” has been in the Labor Code for almost a century, 

always without an assigned definition. See Lumbermen’s Reciprocal Ass’n, 258 

S.W. at 269. It is appropriate to reference a dictionary to discern the common, 

ordinary meaning of a statutory term that has been left undefined. See Jaster, 438 

S.W.3d at 563. However, not all dictionaries are equal. 

“In the absence of a specific amendment, a statute should be given the 

meaning which it had when enacted.” Taylor v. Firemen’s & Policemen’s Civil 

Serv. Comm’n of City of Lubbock, 616 S.W.2d 187, 189 (Tex. 1981) (noting that 

statute in question was adopted in 1947 and, therefore, looking to dictionary 

definition at that time); cf. Porter v. State, 996 S.W.2d 317, 320 (Tex. App.—

Austin 1999), supplemented, 65 S.W.3d 72 (Tex. App.—Austin 1999, no pet.) 

(examining “the meaning the statute had when it was enacted”). This is because a 

dictionary published close in time to the enactment of the legislation is a superior 
22

source for discerning the common, ordinary understanding of the term at the time it 

was incorporated. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE 

INTERPRETATION OF LEGAL TEXT 419 (Thomson/West, 1st ed. 2012). A dictionary 

published 70 years later is not as elucidating. Accordingly, we must consider other 

dictionaries published closer in time to the enactment of this legislation.

Contemporaneous dictionaries included more generalized definitions and did 

not limit “imbecility” to a mid-mental-age range. The 1910 edition of Black’s Law 

Dictionary provides this general definition of “imbecility”:

A more or less advanced decay and feebleness of the intellectual 

faculties; that weakness of mind which, without depriving the person 

entirely of the use of his reason, leaves only the faculty of conceiving 

the most common and ordinary ideas and such as relate almost always 

to physical wants and habits . . . the test of legal capacity in this 

condition, is the stage to which the weakness of mind has advanced, 

as measured by the degree of reason, judgment, and memory 

remaining. 

BLACK’S LAW DICTIONARY 632 (2nd ed. 1910). This definition remained in effect 

for more than 40 years. See BLACK’S LAW DICTIONARY (4th ed. 1951). Other 

contemporaneous dictionaries defined “imbecility” in similar, general terms:
23

A DICTIONARY OF MEDICAL 

SCIENCE (1903)

Weakness of intellect; nearly allied to 

idiocy

BOUVIER’S LAW DICTIONARY

1492 (West Publishing Co. 

1914)

A form of mental disease consisting in 

mental deficiency, either congenital or 

resulting from an obstacle to the 

development of the faculties supervening in 

infancy. Idiocy.

2 BENJAMIN W. POPE, LEGAL 

DEFINITION 707 (1919)

destitute of strength, either of body or of 

mind,—weak, feeble, impotent, decrepit

WEBSTER’S COLLEGIATE 

DICTIONARY (G. & C. 

Merriam, 3d ed. 1920)

weakness, esp. of mind; . . . foolishness; 

absurdity; fatuity

JAMES A. BALLENTINE, A

LAW DICTIONARY 218 (1923)

feebleness of mind

Chamul refers us to an even more recent definition of “imbecility.” See BLACK’S 

LAW DICTIONARY (10th ed. 2014) (defining “imbecile” as “person afflicted with 

severe mental retardation”). But, like the 1991 definition on which Amerisure 

relies, this definition fails to elucidate the meaning of the term when it was 

included in the workers’ compensation statute.

Because we are to consider the definition of the term when it was included 

in the challenged statute, we rely more on the general definitions quoted above, 

which date from 1903 to 1923, than on the age-specific definition on which 

Amerisure relies from 1991.
24

2. Liberal construction suggests a broader definition

“The primary purpose of the Texas Workers’ Compensation Act is to benefit 

and protect injured employees.” Barchus v. State Farm Fire & Cas. Co., 167 

S.W.3d 575, 578 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (analyzing 

predecessor statute, rejecting argument that “injury to the skull” required “fracture” 

of skull, and concluding that liberal construction of statute prohibits reading into 

statute requirement that skull be fractured). Thus, when a fair reading permits it, 

the Act is liberally construed to confer benefits upon injured workers. See Lujan,

756 S.W.2d at 297.

Contrary to this requirement, Amerisure is arguing for the most restrictive 

reading possible of the definition it proposes. The 1991 definition is “a mentally 

deficient person, especially a feebleminded person having a mental age of three to 

seven years . . .” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991) 

(emphasis added). The definition does not limit the term to only those with a 

mental age of three to seven; it says, instead, especially those of that category, 

suggesting that others also would fit within the description. 

While we have not found a case directly on point, in our view, the term 

“especially” is analogous to “including” and signals that the statutory provision is 

broader in scope than the particular example that follows the term of enlargement. 

See In re E.C.R., 402 S.W.3d 239, 246 n.6 (Tex. 2013) (noting that terms of 
25

enlargement within statutory definitions indicate that lists are nonexclusive; 

specifically analyzing provisions using term “including”); Tex. W. Oaks Hosp. v. 

Williams, 371 S.W.3d 171, 179 (Tex. 2012) (holding that Legislature’s use of term 

“including” meant that statutory definition was nonexclusive). Attaching a narrow 

definition to limit a benefit without statutory text to support that interpretation 

violates the rule of liberal construction. See Barchus, 167 S.W.3d at 580. 

Therefore, even if we were to conclude that the 1991 definition accurately states 

the meaning of “imbecility” in the context of a lifetime-income-benefit award, the 

definition, itself, leaves open the possibility that someone with a mental age higher 

than seven years of age might qualify.

3. Applying the 1991 dictionary definition would lead to absurd 

results 

If we were to accept Amerisure’s definition and hold that “imbecility” refers

to individuals with a mental age between three and seven, this would exclude from 

the statute’s application the two other tiers of the three-tier classification system: 

“idiots” and “morons.” Doing so would lead to the absurd result that lifetimeincome benefits would be available to an employee who suffered a traumatic brain 

injury serious enough to leave her at a functional age of three to seven years but 

denied to a worker more seriously injured and left at a functional age of below 

three years of age. Because such an absurd result could not have been intended by 

the Legislature, we must reject it. See City of Rockwall v. Hughes, 246 S.W.3d 621, 
26

625–26 (Tex. 2008) (stating that statutory terms are given their plain and common 

meaning unless such a construction leads to absurd results).

The Virginia Court of Appeals also noted the absurdity of this result in its en 

banc decision in Barnett, while construing “imbecility” in that state’s workers’ 

compensation statute:

To interpret the term “imbecility” to mean only those employees 

whose I.Q.s fall precisely within the range of 20 to 49 would lead to 

the absurd result that an employee with an I.Q. of less than 20 would 

not fall within the definition of the term. We do not find such a 

restrictive meaning necessarily inherent in the term, nor do we 

attribute such an unreasonable result to an intent by the legislature.

Barnett, 366 S.E.2d at 274; see Burnett, 968 S.W.2d at 955 (discussing Barnett).

We agree that a definition that denies lifetime-income benefits to the most 

severely injured worker but permits them for those with mid-level deficits does not 

comport with legislative intent. To the extent past appeals panels have relied on

this narrow 3-to-7-years definition, we are not bound by those interpretations given 

the absurd results that would follow. See Barchus, 167 S.W.3d at 578 (stating that, 

while construction of statute by administration charged with its enforcement is 

entitled to thoughtful consideration, it is not binding on courts and no presumption 

of validity attaches to it); see also Fulton v. Associated Indem. Corp., 46 S.W.3d 

364, 370 (Tex. App.—Austin 2001, pet. denied) (“We liberally construe workers’ 

compensation legislation to carry out its evident purpose of compensating injured 

workers and their dependents. An agency may not supply by implication 
27

restrictions on an employee’s rights that are not found in the plain language of the 

Act.”).

We conclude that the 1991 definition must be rejected because it has not 

been shown to mirror the understanding of the term when it was incorporated into 

the legislation, is overly narrow, and would lead to absurd results.

E. The trial court erred by granting summary judgment based on the 

narrow, age-specific definition

The hearing officer stated in the decision denying lifetime-income benefits 

that Chamul “likely meets” the definition of imbecility except for the “mental age 

of three to seven years” requirement. The trial court expressly stated that it applied

a narrow “imbecility” definition, which required a mental age of three to seven

years, in its determination of the summary-judgment motions. We have rejected 

that narrow definition.

The record reveals that there was a great deal of evidence presented to the 

hearing officer and attached to the summary-judgment motions concerning the 

severity of Chamul’s head injury and resulting impairment. While his treating 

physician was hesitant to describe him as having a functional age of three to seven 

years old,5she did describe in detail how his injury has negatively impacted his 

 

5

In Chamul’s second issue, he contends that the trial court erred by finding that Dr. 

Ivanhoe’s affidavit is a sham affidavit. Amerisure had argued that Dr. Ivanhoe’s 

affidavit “appear[ed] to be a sham affidavit created exclusively for the purpose of 

attempting to create a fact issue where one does not exist.” To the extent any 
28

ability to care for himself, perform work and non-work related tasks, and 

communicate. 

The record also contains a report from Dr. Hite, an affidavit from 

rehabilitation expert Wallace Stanfill, and an affidavit from Chamul’s father and 

caretaker, Felix Chamul. In Dr. Hite’s report, he explained that Chamul’s condition 

will not improve and that he will need a caretaker for the rest of his life. Likewise, 

Stanfill explained in his affidavit that “while Mr. Chamul is marginally functional 

in many basic areas, he is not considered to be cognitively able to engage in any 

degree of competitive work, even unskilled employment. His current level of 

functioning would [be] at best more in keeping sheltered employment.” Finally, 

Felix Chamul, the father and caretaker of Francisco Chamul, stated in his affidavit 

that Chamul is unable to manage his medical and financial affairs and is 

unemployable.

There is, however, contrary evidence in the record. Dr. Brylowski, the

neuropsychiatrist retained by Amerisure, testified that Chamul “did not sustain any 

type of irreversible brain injury which would rise to the level of rendering him 

 

conflict between her affidavit and testimony leads to the conclusion that the 

affidavit qualifies as a sham affidavit, that conclusion would be limited to that part 

of the affidavit that conflicts: Dr. Ivanhoe’s statement that Chamul’s cognitive 

deficits “results in him having the mental capacity and behavior of a three to seven 

year old child.” The remainder of the affidavit remains relevant and admissible. 

See Farroux v. Denny’s Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston 

[1st Dist.] 1997, no pet.) (adopting “sham affidavit” doctrine and analyzing 

whether single paragraph in affidavit presented fact issue).
29

permanently unemployable because of eliminating his ability to engage in a range 

of usual cognitive processes.” He further stated that any cognitive problems could 

be treated and managed to help Chamul reintegrate into the workplace. 

Based on the competing summary-judgment evidence, we conclude that a 

fact issue exists as to whether the deficiencies caused by the traumatic brain injury 

Chamul suffered in the course of his employment meet the requirements of 

“imbecility” under the statute. Because this is a material fact issue, summary 

judgment for Amerisure was erroneous. 

We sustain Chamul’s first issue.

Conclusion

When faced with competing summary judgments, the general rule is that an 

appellate court should determine all questions presented and render the judgment 

that the trial court should have rendered. Patient Advocates of Tex., 136 S.W.3d at

648. Here, though, a fact issue exists that precludes summary judgment for either 

party. See Coker v. Coker, 650 S.W.2d 391, 394–95 (Tex. 1983). Accordingly, the 

trial court’s order granting Amerisure’s motion for summary judgment is reversed,

and the cause is remanded for further proceedings consistent with this opinion.

Harvey Brown

Justice
30

Panel consists of Justices Jennings, Higley, and Brown.