Texas Workers' Compensation Commission v. Garcia

statutory process implement section ed a in sections 23.51-.57 of the tax code.

1-d-l permis- legitimate had a enacting purpose in sections 23.51-57.

sible

But was it reasonable lawmakers 23.56(3) single corpora-

enact section out

tions nonresident aliens for exclu- owned point beyond

sion? There is a which the go violating Equal without

state cannot Allied,

Protection Clause. 358 U.S. at 23.56(3) at 441. Section is not ra- S.Ct.

tionally promotion open- related to the

space land because it is irrational to exclude corporation using

a tax abatement that is open spaces simply it is

its land as because pur- nonresident aliens.

owned When land,

pose preservation open-space is the permissible Equal

how can it be under the corpo-

Protection to allow a domestic Clause

ration to undertake the exact kind of same corporation that a

land use owned nonres- foreign

ident cannot aliens undertake? The

corporation corporation and the domestic equally preserve open space.

would

Accordingly, I would hold that section 23.-

56(3) Equal violates the Protection Clauses

the United States Constitution and the Texas

Constitution.

TEXAS WORKERS’ COMPENSATION

COMMISSION, al., Appellants, et GARCIA, Jr., al., Appellees.

Hector et

No. 04-91-00565-CV. Texas, Appeals

Court of

San Antonio.

Aug. 1993.

Rehearing Sept. Denied Moore, Ratliff, Marc

Scott Shannon O. Simione, McGinnis, Carolyn Knisely, Porter Pitner, Lochridge Kilgore, A. Car- Joseph & Potter, Smith, Cain, Harry G. ey E. Delmar Div., III, Atty. Gen., Litigation Asst. Gen. Austin, appellants. Becker, Richards, Gray Bill

David R. & Whitehurst, Whitehurst, & Harkness Wat- Puente, son, Austin, Law Offices Robert R. Antonio, Puente, appel- R. of Robert San lees.

OPINION REEVES, Chief Justice. action, declaratory judgment

In this Com- court declared the 1989 Workers’ trial (the Act1) unconstitutional. pensation Act upon appeal called to review We are the constitu- decision. Before we reach issues, justi- we must decide whether tional controversy must also de- ciable exists. We plaintiffs’ against the termine whether suit by sovereign im- defendants is state barred justiciable find controver- munity. We that a plaintiffs, sy at least as to of the exists some by sovereign that the suit is not barred Act immunity. hold that the We further unconstitutional. County filed on

Plaintiffs suit Maverick 30, declaratory seeking November Janu- injunctive relief. The Act took effect Eagle ary Pass 1991. Defendants Electric,2 Compen- the Texas Auto Workers’ Commission, Chapman in George sation of the com- capacity as executive director his Compen- Association mission. Texas Consumers, Globe, Inc., Inc., Klinck sation Store, Inc., Esquina Drug and La Klinck on the intervenors were added suit as of the defendants. side presented Eagle Auto no defense Pass Electric Act is 1. The new found Tex.Rev.Civ.Stat.Ann. (Vernon through appealed judgment. 8308-11.10 art. 8308-1.01 and has not statutory Supp.1992). All citations to sections Act noted. are to the unless otherwise status, 1986). rights, or person A whose injunction hearing non Following temporary by a statute December, 1990, granted legal relations are affected trial court other any question of con- injunctive against “may defen- have determined temporary relief validity arising under the statute ground provisions certain or on the struction dants status, rights, The merits ... a declaration of of the Act were unconstitutional. and obtain thereunder.” jury. signed legal court other relations tried without a or Tex. were 37.004(a) (Ver- 22, 1991, judgment May declar- the final Ann. & Rem.Code Civ.Prac. 1986). declaratory judgment “is an large portions of Act unconstitutional. A ing non instrumentality wielded in the interest court found that the unconstitutional to be justice scope should preventative Act in and its portions could not be severed from the liberal, not be and should entirety, accordingly kept declared the en- be wide and Findings fact Cobb v. hedged Act unconstitutional. about technicalities.” tire Harrington, filed. 144 Tex. 190 S.W.2d and conclusions of law were (1945). speedy intended as a It “is sought perfect ap- Defendants direct remedy of the effective determination court, supreme supreme peal to the but the controversy a real rights parties of the when juris- appeal for want of court dismissed wrong has arisen and even before perfected ap- then diction. Defendants actually Id. been committed.” peal to this court. difference between de- The essential claratory purely adviso- judgment and the Standing I. ry in the fact that the former is opinion lies argument initial that none Defendants’ adjudication binding of the contested plaintiffs standing none because litigants, though unaccompa- rights of the They injury under the Act. have suffered whereas, relief; by consequential nied therefore, opinion argue, that the trial court’s judges merely opinion latter is one, court, advisory and that that and this court, adjudicates nothing, and is bind- jurisdiction lack of this suit. ing on no one. State, v. Douglas Oil Co. It is fundamental that a court has 1935), (Tex.Civ.App. rev’d on jurisdiction advisory opinion to render an — Austin Royalty Federal Co. grounds other sub nom. controversy yet ripe, on a that is not or to State, Tex. 98 S.W.2d 993 speculative, hypothetical, decide a case on Camarena, contingent fact situations. v. Tex declaratory prerequisite a to the As Comm’n, 149, Employment as 754 S.W.2d a real con judgment process, there must be (Tex.1988). Standing requires in 151 some troversy parties, the which will be between peculiar person individually terest and judicial actually by the declara determined general public. a member of the not as City sought. Eng’rs v. tion Board Water of (Tex. Bass, 323, Hunt v. 664 324 Antonio, Ill, 155 Tex. San of 1984). aspect justiciability, As an of the (1955). 722, Hughes set 724 Chief Justice standing question plaintiff is whether the has of perhaps the classic definition out what is personal such a stake in the outcome of the “controversy” v. Ha in Aetna Ins. Co. Life controversy as to warrant his invocation worth: jurisdiction justify the the court’s and to controversy justiciable is thus distin- A powers on his exercise of the court’s remedial dispute of a guished from a difference or Seldin, 490, 422 behalf. U.S. 498- Warth character; hypothetical or abstract 99, 2197, 2205, 45 L.Ed.2d 343 95 S.Ct. moot. The contro- one that is academic or concrete, touch- versy must be definite and having legal parties purpose declaratory judgment ing “is the relations It must be a real uncertainty legal adverse interests. to settle and to afford relief from status, controversy admitting of rights, substantial insecurity respect and and relations; through a decree of a conclu- specific relief legal and other and it is be' character, distinguished from an as liberally and administered.” sive construed Tex. (Ver- 37.002(b) advising the law would be opinion what Civ.Prac. & Rem.Code Ann. injured.” upon a “if when we find hypothetical state of facts. Where he is Because working admitting employee there a concrete case that as for subscrib- is such pur- ing employer elected to continue an immediate and definitive determination chasing compensation coverage af- workers’ legal rights parties in an the January 1, 1991, Garcia no ter has adversary proceeding upon the facts al- remedies, he rights common elect law leged, judicial may appro- function injured respect by provi- has been in this priately adjudica- although exercised hold has sions of Act. We that Garcia rights litigants tion of standing bring challenge to the consti- require process pay- the award tutionality of the Act. damages. ment of 240-41, 300 U.S. S.Ct. B. Fuller (citations omitted). (1936) L.Ed. 617 by employed was John Ira Fuller minimum, Art. Ill [A]t [of irreducible Texas, although Arlington, General Motors requires Constitution] the United States hearings plant was at the time of the party authority invokes who the court’s temporarily He a member shut down. personally that he has “show suffered union, a union the United Auto Workers injury some or threatened re- actual affiliated with Texas He suf AFL-CIO. putatively illegal sult conduct of the his occupational from an disease to fers defendant,” “fairly injury and that the can by repetitious physical trauma. knees caused action” and challenged traced to “is Act, alleged He that under the terms of likely by deci- to be redressed a favorable report he his period during which must sion.” injury file a claim Valley Forge College Christian v. Americans elapsed, already ineligible and he is to recov State, Separation United Church Act, though er benefits under the even Inc., 464, 472, S.Ct. U.S. occupational eventually will dis his disease (citations omitted). (1982) L.Ed.2d 700 him. able mind, With rules we will review these surgery had both in 1983 Fuller knees plaintiff of each in turn. situation told him he could or 1984. His doctor perform job, he longer his but Fuller said

A. Garda by refused retirement General was medical His to return to work. Motors had Garcia, employee of Hector Jr. is an aggra- to be medical condition will continue Pass, Eagle Eagle Auto Electric in Pass he He filed type vated of work does. Eagle under Texas. Pass a subscriber Act injury claim on under the former Act, currently the former and Garcia is cov approximately and settled it in 1986. He has compensa company’s ered workers’ years of medical remain- four future benefits that he tion carrier. Garcia testified does ing under the settlement. not wish to be covered the Act. He is not claiming compensable injury. The court Act the The court found that under the immediately “will and found that Garcia claim period during Fuller “must file a which January 1, after irreparably harmed and already he compensation elapsed, has and by rights compen losing his workers’ any potentially ineligible to recover will be coverage the old work sation benefit under repetitive disables benefits when his trauma law; compensation by having ers’ similar injury that Fuller’s him.” The court found Act; by having rights and [new] under the per- “in all disable him from will likelihood job right except resigning his of election ordinary forming his tasks as a worker (citations Eagle Pass.” omit with Defendant “probably and that he will General Motors” ted). benefits, have no to obtain medical benefits, disability or benefits has failed to Defendants assert Garcia under Act.” yet standing has not establish because he standing as- injured. They may have attack Fuller’s indicate he Defendants been injury claim serting that Fuller settled his complaint regarding coverage under the Act he constitutionality of the Act because Act, that he was not the former under that act. We accepted benefits under hearings. They has time of the employed at the retain the benefits of agree. One cannot injury due to claim of future argue constitutionality of attacking the act while physical of his condition the deterioration important provisions. Fa of its one or more contingent. hypothetical Mallonee, U.S. S.Ct. hey v. standing. that Fuller lacks While We find (1947); 1552, 1557, L.Ed. 2030 Walker occupational times to file notice of his Sys., 753 S.W.2d Employees Retirement compensation and to file a claim for disease denied). (Tex.App writ . —Austin untimely fil- elapsed, the Act excuses §§ ings certain circumstances. 5.02- under D. Union Plaintiffs premature. complaint Fuller’s .03. plaintiffs discuss the union We will Act, a claim under the be that he files is a volun together. The Texas AFL-CIO these his tardiness will be excused under consisting approximately tary association compensa- and his future claim for sections approximately local unions and 800 affiliated considered on its merits. His tion will be 215,000 union members. affiliated individual complaint ripe become if his failures will promote rights of work- organized It is timely timely notify and to file a claim through bargaining collective ing people in the of benefits. result denial Its are em- other lawful activities. members variety occupations in- ployed in a wide Rivero C. industrial, office, agricultural, and cluding Osvaldo S. Rivero is resident Val perma- building members are trades. Some County, an on-the- Verde Texas who suffered A employees, and some are seasonal. nent job January injury on 1991. He makes large number of the affiliated union members per employer less than hour. His is a $8.50 compensation insur- are covered workers’ insur subscriber workers’ ance. ance, compensation claim. and Rivero filed a Gunn, presi- Joe D. the Texas AFL-CIO’s began receiving weekly He benefit check dent, purposes is to testified that one of its salary working, higher than his while general. a voice for workers serve as greater than his benefits would have been traditionally participated in has AFL-CIO under the former Act. Texas, rights in that affect workers’ lawsuits alleged that Rivero the Act discriminates and it on behalf also lobbies against hourly wage, him because his quality and character Texas workers. injury, nationality, and the nature his his compensation act is an issue the workers’ employment. alleged nature of his He also paramount to the AFL-CIO. Gunn concern unreasonably that the Act denies him resort the Act to reduce asserted threatens to his common law remedies and to a mean- substantially legal rights protections jury ingful trial. employees and of the Texas AFL-CIO’s although. The court found that Rivero’s represented by af- employees members injury “may prove permanently to be disabl- filiated unions. that, highly given ... ing it is doubtful The court found that the AFL-CIO Impairment un- operation of the Guidelines standing bring this suit on behalf of its Act, that Plaintiff Rivero will der the [new] other- its members would members because significant become

receive benefits ever right, own standing to sue wise have un- eligible supplemental for income benefits protect to the AFL-CIO seeks the interests Act.” The court also found [new] der the purpose, and by germane are to its this suit workers, significant of includ- that “a number the relief re- neither the claim asserted nor Rivero, the Plaintiff who sus- ing potentially participation of individu- quested require the disabling injuries that 15% tain will have less the in inasmuch as al this lawsuit members ...” impairment based on the Guides deprive to the AFL-CIO’s Act threatens under the by membership protections secured standing ar Defendants attack Rivero’s irreparable and threatens challenging Texas constitution guing estopped he is that 70 Brown, represented by the In Texas v. 378

harm to workers who are State AFL-CIO 1964, (Tex.Civ.App. 917 writ the The court also found that S.W.2d AFL-CIO. — Austin n.r.e.), that standing complained refd the union the the has to maintain this AFL-CIO employers’ representative on the Texas Em employer an that is capacity action its as a posi ployment used his official Commission subscriber under the former Act. pas attempt tion to secure and to to secure Union, Legal No. 2 Texas Services Local sage Unemploy to the Texas amendments n a labor (“Local 2”), union 73 to whose 75 Act Compensation ment detrimental the employed are Texas members Rural working who interests men and women are (TRLA) attorneys, para- Legal Aid offices as might become claimants for benefits under secretaries, legal legals, receptionists. and brought act. union an action for 2 AFL- Local is affiliated with the Texas declaratory judgment employer as an cov organized promote Local 2 CIO. by Unemployment Compensation ered rights working people through collective “ Act, ‘mouthpiece’ as and hundreds activities, bargaining other lawful and it and working and women in of thousands of men bargaining negotiates collective contracts belong orga the State of Texas who to labor bargain- with TRLA. The current collective rejecting nizations.” at 919. Id. While provide ing agreement requires TRLA to standing employer, claim union’s as Id. compensation coverage for its em- workers’ 921, jurisdiction at court did assume ployees wage supplement continuation presented by the rule on the issues union. pay- employees’ compensation workers’ Union, at 922. Id. See also International brought ments. this action on behalf of Controls, Inc., v. UAW Johnson itself and on behalf of its members who are denied) 1991, (Tex.App. 558 writ — Dallas directly immediately affected the Act. union, (employee and his on behalf other 2 The trial found Local court that has situated, challenged employees similarly standing to on behalf of its members. sue employer’s practice as violative of the work The court found that 2 has stand- also Local act; standing was ers’ union’s ing party bargaining to a collective as questioned). impaired potentially im- contract injury to Even in the absence of it paired the Act. self, standing solely an association have argue standing lacking Defendants representative of members. Our its presented have no “evi- because unions Business supreme court Texas Ass’n v. of its members have suffered dence Bd., 440, Texas Air S.W.2d Control injury ef- compensable after the Act took (1993) recently adopted the test asso fect. Supreme standing ciational set out Union, UAW v. Court International recognized This state has a labor union’s Brock, 274, 281, 477 U.S. 106 S.Ct. standing to behalf of members. sue on (1986); and Hunt v. 91 L.Ed.2d 228 Bldg. El Paso & Constr. Trades Council Washington Apple Advertising State Comm’n, Highway Texas 231 S.W.2d 533 Comm’n, 333, 343, U.S. 97 S.Ct. (Tex.Civ.App. Austin), on other rev’d — 2441, 53 L.Ed.2d 383 (1950), grounds, 149 Tex. bring standing to suit association has [A]n High brought against union a labor suit behalf of its members when: Commission, members, way its individual (a) its members would otherwise highway engineer seeking a declar the state (b) standing right; in their own to sue atory judgment prevail defendants’ protect germane interests it seeks to ing wage for El rate determination Paso (c) organization’s purpose; neither substandard, unlawful, County and void. requested nor the claim asserted the relief union, seeking to court held individual requires participation mouthpiece union in the El labor in the lawsuit. members locality, a sufficient interest Paso had Brock, 2523; at 106 S.Ct. institute U.S. subject matter to enable 343, Hunt, at 244. 432 at 97 S.Ct. Id. at 536. U.S. proceedings. maintain

71 may not be enacted may or by plation that findings made precise are the These It is ef- Legislature.3 by future in this case. trial court 2 of Local the members applies fect. of the part prong the first As by represented many workers of the Hunt, three-prong set out Brock and test De- unions. and its affiliated the AFL-CIO members, allege that its must the association plaintiffs have spite fact that the union them, suffering are immediate one of who has filed a union worker not named injury the chal as a result of or threatened Act, that there we conclude under the claim make a lenged of the kind that would action injury to the of actual is a sufficient threat brought if had justiciable case the members justiciable satisfy the membership to unions’ Warth, at right. 422 U.S. in their own suit Business, requirement. Texas Ass’n issue 511, 2211-12. See also Schweiker 95 S.Ct. at (some of association’s at 447 Panthers, 34, 8,n. 101 Gray 453 40 U.S. the administra- had been assessed members (1981) 8, 2633,. n. 69 L.Ed.2d 460 2638 S.Ct. challenges, and penalties the association tive elderly helping dedicated to (organization risk remain at a substantial other members challenge regula standing to Medicaid had large injury An shared penalty). “adversely of its affected” some tions that injury. people number of is nonetheless members). injury A substantial risk High- Safety v. National Center Auto See Business, Ass’n 852 sufficient. Texas Admin., 1322, F.2d way Safety 793 Traffic City at 447. See also Pennell v. S.W.2d (D.C.Cir.1986). 1331 849, Jose, 485 U.S. 108 S.Ct. San (association (1988) of landlords had L.Ed.2d sat undisputed that the unions It is standing pleadings that members based Hunt prongs third isfy the second and ordinance). likely would be harmed rent seeking and Brock test. The unions Supreme Court noted Pennell quali in the interests protect their members’ ordi [of likelihood of enforcement “[t]he compensa ty of the workers’ and character nance], probability that with the concomitant They Act threatens alleged act. tion what a landlord’s rent will be reduced below substantially legal rights and to reduce able to obtain he or she would otherwise be These inter protections of their members. Ordinance, in the is a suffi absence purposes, germane to the unions’ ests are injury satisfy Art. threat of actual cient rights of work promoting the which include requirement plaintiff chal ‘[a] Ill’s who addition, there no reason to re ers. lenges a statute must demonstrate a realistic quire members of the unions individual sustaining injury as a danger of a direct partic participate in this ease. Individual operation or enforce result of the statute’s required there are conflicts of ipation is when ” (quoting at at 855 ment.’ Id. 108 S.Ct. there organization, when interest within Workers, 289, 298, Babbitt v. Farm U.S. specific factual information is need for (1979)). 2301, 2308, 60 L.Ed.2d 895 99 S.Ct. decision, or when the basis for the illuminate to be made. Likewise, damage determinations speculative to conclude there are Cooper, E. Wright, A. Miller & against enforced 13 C. the Act will be Fed § 3531.9 unions of the members of the associated eral AND Procedure Practice proper “If in ease the association If Act is and of Local 2. AFL-CIO declaration, injunction, other or some respects urged by seeks a unconstitutional relief, reasonably unions, prospective it can form of application to union workers remedy, granted, will injure supposed that the surely them be the state defendants will of those members of inure to the benefit the amount of their bene- by the reduction of Hunt, injured.” trial, actually 432 U.S. fits, jury right to a association the denial of their Warth, (quoting at 2441 dealing hypo- at 97 S.Ct. are not and so on. We 2213). at 95 S.Ct. an act under contem- U.S. thetical act. It is not election; Victoria, might be defeated at the City amendment Coalson v. Council See (Tex.1980) (declaratory judg- declaratory judgment passed, would then if it constitutionality pro- to determine ment suit proper). premature posed since charter amendment 72 1991) (paren- (July, and OFFICIALS U-3 the unions have we hold that Because ties omitted). theses

standing bring suit on behalf of to members, whether we need not decide that is well settled one Thus it standing bring to suit on their own also have by the un rights been violated have whose behalves. may bring a a state official lawful action of violation, and remedy prevent the suit to Garcia, AFL-CIO,4 and Local against the state not a suit that that suit is standing bring this action. statutory authoriza requiring legislative or Agric. Env’t Dep’t & tion. Director Immunity Sovereign II. 264, Ass’n, Printing Indus. 600 S.W.2d v. parties plain turn now from the We Cobb, (Tex.1980); at 712. 190 S.W.2d 265-66 question parties tiff to the defendant —to Co., 798 v. Marathon Oil also Bullock See sovereign immunity. The Commission 1990, 353, (Tex.App. — Austin defendants, complain Chapman, the state writ) (suit action as challenging agency’s immunity sovereign bars that the doctrine of authority is not scope of its being outside against postured as proceeding them legislative or against requiring the state suit plaintiffs. authority). Accordingly, a suit statutory original for the doctrine of sov- basis declaratory judgment that seeking a sovereign immunity ereign was acting pursuant to an un agents are state’s without sued in its own courts could not be against the not an action law is constitutional is founded undoubted- its consent. “The rule immunity, sovereign rule of state within the maxim, ‘The ly upon Anglo the old Saxon Ass’n, Skating 583 S.W.2d v. Texas Bullock wrong,’ phrase as false King can do no 1979, 888, (Tex.Civ.App. writ — Austin ancient.” Buchanan many cases as it is Indus., n.r.e.); Inc. v. St. Majestic refd State, 289, (Tex.Civ.App.— 239-40 89 S.W.2d Clair, (Tex.Civ.App.— 537 S.W.2d refd). principle This Amarillo writ n.r.e.), though refd even Austin writ early as 1847. recognized Texas state, Ameri judgment binding on the DeYoung, Tex. Hosner v. Mann, Labor v. can Fed’n of writ). 1945, no (Tex.Civ.App. 279-80 wrong,” King “the can do no Because — Austin King’s the act of the “wrongdoing” must be argue Chapman The Commission and King never authorized agents. Since complained are unau- if the even activities “wrongfully,” a suit to agents to act his (such as, of an un- the enforcement thorized is not considered such activities control law), according Director the constitutional applies sovereign itself. This “against” the may brought only against the work- suit law of unconstitutional to the enforcement individual- compensation commissioners ers’ authority. acting outside of lawful parties to this suit. ly, not made who were brought suit was Significantly, Director Smith, Against Suits State —Differences Department against the director of Immu- Immunity Against Suit and Between and others Agriculture and Environment Texas, Liability, in State nity From BaR Defending Suing enjoin department “and other State Enti- Governmental rights. affecting It is fallacious workers’ point AFL-CIO is lawsuits out that the 4. The defendants unions, labor not workers. insulat- suggest an association of local the AFL-CIO is somehow recognize They argue the associational that to working men the concerns and needs ed from requires to “reach standing the AFL-CIO us women, represent them does not or that it layers find through of association to two down labor merely an association of local because it is someday may or live individuals who Even individual workers. rather than of unions compensable new act.” under the have claims were limited the AFL-CIO if the concerns of already how We have seen is a non-issue. This local strictly of its associated to the best interests having recognized as has been the AFL-CIO standing find, unions, do not we do not defendants which bring of its suit on behalf in this state to represent the argue unions do not that the local seen, Further, also some as we have members. By advanc- member workers. interests of their as a purposes are to serve of the AFL-CIO unions, the AFL-CIO ing the local the interests of workers, legislation lobby favor- voice thereby of the locals' advances concerns (and against legislation it consid- able to workers workers), participate members. and to ers detrimental

73 Director, provisions to set these in order agencies_” 600 at first three of S.W.2d proper raised defen- In section question No was as to out the tests for violation. ease, present plaintiffs In the opinion, spend dants. we then some IV of the will against brought their suit addressing the Commission the the chal- specifics time of and its executive director. we lenged portions of Act. In section V apply the tests we have articulated will Bagg The state defendants cite v. Univer courts, open course of violations of the due Branch, sity Medical Texas 726 S.W.2d of law, equal protection provisions of our 1987, (Tex.App. Dist.] 582 [14th —Houston challenged provisions of constitution to n.r.e.). only ref d That holds that writ case passes determine the Act the Act to whether injunctive involving the when one seeks relief constitutional muster. will follow We activity must agency, plaintiff of state a. of the Act has with a discussion whether authority agen individual in sue some at the by jury and the violated the trial cy agency than the at 584- rather itself. Id. impairment provision of of the Tex- contracts Bagg traditionally, 85. Yet even states that Closely connected with Constitution. in authority the individuals sued include the jury trial discussion will an examination agencies. at n. 2. directors Id. 585 attorney in- provisions relating the Act’s defendants us no The state have cited to fees. discuss volvement and We will also none, authority, and we know that states plaintiffs’ points provides cross Act —that members, commission not the hybrid judicial an unconstitutional method commission’s executive or the com director review, against that it low discriminates itself, declaratory mission must sued in a wage and seasonal will then workers. We seeking un judgment action to establish the severability Act’s clause in sec- consider the fact, constitutionality of a In state law. VI, VII, finally, we will tion in section authority contrary. example An is certain points address the intervenors’ Indep. Edgewood Kirby, Sch. 777 Dist. v. erroneously and that evidence was excluded (Tex.1989), supreme 391 S.W.2d which the erroneously de- pleading leave to file a declaratory court affirmed a trial court’s nied. public judgment financing school violates Texas constitution. A. Constitutional Construction defendants in that suit were the Commission Education, er of of Edu State Board constitutionality assessing In cation, officials, other state and a number of statute, strong presumption of a exists Kirby Edgewood Indep. school districts. v. validity. v. favor of the statute’s Vinson Dist., (Tex. 859, Sch. 761 S.W.2d 1 860 n. (Tex.1989). 263, Burgess, 773 S.W.2d 266 1988), rev’d, App. 391 777 S.W.2d — Austin act presumed that the has not (Tex.1989). may practical While it make unreasonably arbitrarily. v. ed Smith bring injunction against spe sense to suit 827, (Tex.1968). Davis, 426 831 S.W.2d individuals, the practicality cific does same expediency is the wisdom and of the law agency compel the conclusion that an prerogative, Id. A legislature’s not ours. declaratory judg party not be a to a constitutionality challenging the of a party challenging constitutionality of ment suit proof has the burden to establish statute agency the law the enforces. invalidity. Spring Indep. Branch Sch. sovereign We conclude doctrine of Stamos, (Tex. v. Dist. immunity against does not bar this suit dism’d, 1985), appeal 475 U.S. state defendants. 1170, 89 L.Ed.2d S.Ct.

III. Texas Constitution urge grant the trial Plaintiffs us to fact of law findings Plaintiffs contend features of and conclusions that several court’s courts, finding by open the Act violate the due course of the same level of deference as trial, law, jury so. equal protection, right to the trier of fact. We decline to do reviewing constitutionality legislative provisions contracts act, findings of the are not bound Texas Constitution. We will examine we except of action this restriction trial court when include evalu law cause and that credibility the witnesses. arbitrary ation of Re when balanced unreasonable Handy Dan tail Merchants Hard Ass’n purpose of the statute. against the and basis ware, Inc., (Tex.App.— 696 S.W.2d 54-55 Inc., Sterling Drug, Moreno v. 787 S.W.2d writ). [1st Houston We must Dist.] (Tex.1990); Lucas, independently Id. review all the evidence. at Sax, 690; 648 S.W.2d at 666. 55. abridge power common abolish or actions, provide it an “ade- reviewing law but must also provisions of our Bill When Rights, the of its final section or alternative.” quate of admonition substitute” “reasonable Moreno, Sax, should be borne in mind: at 787 648 S.W.2d 667. Accord 355; Lucas, at 690. against transgressions of at 757 S.W.2d guard To the S.W.2d delegated, high powers equivalent we declare an herein This substitute is individualized everything Rights” that in this “Bill of quid pro general a rather than or societal gov- excepted general powers of of out Lucas, 690. quo. 757 at “When S.W.2d ernment, and shall forever remain invio- rights guaranteed by the state con- individual thereto, late, contrary or and all laws involved, rights are individual stitution following provisions, void. shall be Hanlon, LeCroy 713 perspective is used.” v. I, (Tex.1986). § art. 335, 342 S.W.2d Tex.Const. Open B. Courts Due of Law C. Course

The Texas contains two Constitution which, process al separate provisions, due 19, above, tra quoted is the Section though they guarantee process, both due are roughly It process guarantee. due ditional Krusen, not coterminous. Nelson v. 678 process fifth clauses of the parallels the due (Tex.1984). 918, I, 921 Article sec S:W.2d fourteenth to the United amendments 19, of this state shall tion states: “No citizen 661; Sax, Constitution. 648 S.W.2d States life, privi deprived liberty, property, of be supra Braden, includes both 1 at 68. It G. immunities, any in manner leges or or dis protection. procedural and substantive Tex. franchised, except by the due course the Const, I, 19, commen interpretative art. I, pro 13 of the land.” Article section law tary. amend It differs the fourteenth vides, open, in part: “All courts shall First, it important respects. ment two him, injury every person for done his peo directly to the grants rights affirmative lands, goods, person reputation, shall have or Second, expands protec process due ple. remedy by law.” This due course of last “life, beyond liberty, property” or tion provi provision, open known courts immunities, other protect privileges, sion, process guarantee. due Sax v. is a may disenfran citizens manner which (Tex.1983). Votteler, 661, 664 648 S.W.2d a rights has had Every Texas bill of chised. guarantees the courts will be specifically Braden, provision. 1 G. course of law due may remedy open seek so individuals supra at 67. according 1 G. Bra- to due course of law. den, the State The Constitution recognized Supreme Court has Comparative An Texas: Annotated significantly broader 19 afford section Analysis (1977). comparable 50 There is no constitution. than the federal protection open provision. federal constitutional Castle, Inc., v. City Mesquite Aladdin’s Magna guarantee courts is “embodied 283, 293, 1070, 1077, 71 102 S.Ct. 455 U.S. part our constitu and has been a Carta decision 152 In that L.Ed.2d Lucas republic.” v. tional law since our that states pointed also out Supreme Court (Tex. States, 687, 690 757 S.W.2d United more free to read own constitutions 1988). broadly federal constitu- than read the reject in favor of their analysis and to tion open establish an order to constitutional analyses corresponding violation, own show litigant must courts Id. cognizable guarantees. common the statute restricts accomplish that ob reasonably necessary to rational rela apply courts The federal (3) operate in an in must not rights ject; the law tionship test when fundamental ease, unduly manner, unjust In such a or be arbitrary are not affected. terests rational upheld sought. if it bears a will be See proportion statute to the end harsh (Tex. legitimate 95, interest. relationship Calvert, to a state Thompson v. 489 S.W.2d Cleveland, City Moore v. East 46, See 1972); Hays, 114 Tex. 263 S.W. Wylie v. 1935-36, 499-500, 1932, 97 S.Ct. U.S. Johnny (1924); City Houston v. (1977). In to the feder L.Ed.2d 531 contrast Co., Auto Parts Frank’s constitution, process re due al substantive (Tex.Civ.App. [14th Dist.] — Houston under the Texas con mains a vital doctrine n.r.e.); & Co. Humble Oil writ refd Ref. Eggemeyer, 554 Eggemeyer v. stitution. See 405, 413 City Georgetown, 428 S.W.2d (Tex.1977). 137, 140-41 supreme Our writ); City (Tex.Civ.App. of — Austin application fashioned a test for the court has (Tex. Rhone, 222 S.W.2d v. Coleman rigorous than the federal 19 more of section refd). The writ Civ.App. — Eastland test. rational basis prongs and third factor in the second critical power of the police the The line where Richards, at 301 S.W.2d is reasonableness. the barrier of substantive state encounters Rhone, Oil, 413; 602; Humble 428 S.W.2d susceptible exact process is not due 222 S.W.2d at 649. general power rule the definition. As a with, exceed, does not commensurate but Equal Protection D. duty provide for the real needs of the health, people safety, in their comfort the Texas clause of the equal protection The consistently may be men, and convenience as “All free when provides: Constitution guaran- private property rights. The equal compact, have they form a social process deprive the tee of due does not men, man, set of is entitled rights, and no or private property state of the to take emoluments, or separate public to exclusive proper power the exercise of such public ser- privileges, but consideration manner, but it is essential that and lawful I, § This clause art. vices.” Tex.CoNST. power purpose ac- be used the conjunction equal for with the should be read complishing, appropri- and in manner amendment, “Equali- provides: rights which accomplishment of, purposes ate to the be denied or ty under the law shall not large A which it exists. discretion creed, for sex, race, color, or abridged because of necessarily Legislature vested self-op- origin. This amendment is national determine not what the interests I, § art. 3a. erative.” Tex.Const. public require, but measures are what necessary protection of such inter- equal protec test for a section 3 The there is room a ests. By v. out in Whitworth tion violation is set fair difference If necessity opinion as to the and reason- (Tex.1985). num, 194, 197 The 699 S.W.2d of ableness legislative on a enactment court, relying on Sullivan Uni supreme subject which lies within the domain of League, 616 S.W.2d versity Interscholastic power, the courts will not hold police (Tex.1981), purpose of held that the void. legitimate must related to the statute Richards, 157 Tex. State v. drawn and the classifications state interest added) (citations (1957) (emphasis rationally related to must be the statute omitted). Similarly in situated purpose. the statute’s equally under must be treated dividuals today apply we is a distilla test a ra there is statutory classification unless test and the tests used tion of the Richards Whitworth, 699 doing for not so. (1) tional basis involving section 19. in other Texas cases statute must not at 197. The object be within the of the law must overinclusive, create unrea (2) overbroad police power; scope legislature’s of the Id.5 presumptions. and irrebuttable appropriate and sonable used must be the means for section 3 than a stricter test Texas has fashioned some debate over whether 5. There is Temporary percent are 70 IV. Discussion income benefits the Act of the difference between worker’s aver- portions The trial court found that several weekly wage injury age before and the Act violated of the one or more consti- weekly injury, earnings worker’s after within just provisions It is ap- tutional discussed. the limits of maximum and minimum propriate point provi- at this to discuss weekly weekly benefits. minimum bene- question. sions of the Act called into We will percent all tiers fit for is 15 state attempt every particular to discuss average weekly weekly maximum wage. The Rather, we will our Act. confine discussion temporary benefit for income benefits is 100 major changes the two areas in which percent average weekly wage. state challenged provi- and in which occurred weekly paid These benefits are are simi- adjudica- sions are located: benefits and temporary disability lar to the former Act’s systems. tion payments. System A. Benefits earning per than For workers less $8.50 hour, temporary per- income benefits brings changes The Act dramatic weeks, cent of the for the first 26 difference benefits, creating a multi-tiered thereafter, percent and 70 with the limit that scheme of benefits that follow one after the weekly temporary income benefits cannot other. than percent be more 100 worker’s earnings year by actual for a divided 52. Temporary 1. Benefits Income If is a dispute there about whether the designated “temporary first tier is The worker has achieved maximum medical im- benefits,” eight days income which accrue provement, by the must be seen worker disability begins after until the worker “designated designated doctor.” The doctor improvement.” achieves “maximum medical or, picked by agreement parties is § improvement 4.28. Maximum medical agree, by do not the Texas Workers’ point “the after which further material recov- report Compensation The Commission. of ery lasting improvement injury from or to an designated “presumptive the has doctor longer reasonably anticipated, can no weight.” The must base rul- commission its probability” on reasonable or based medical ing report great weight on this “unless the of expiration of 104 the the weeks from date the other is to medical evidence the con- accrue, begin income benefits whichever trary.” § 4.25. 1.03(82). “Disability” § occurs first. is de- inability as “the and retain fined to obtain Impairment 2. Income Benefits wages pre- employment equivalent to the tiers, wage inju- impairment injury compensable because The next two income of 1.03(16). (§ 4.26) § ry.” presumes supplemental The Act ev- benefits income (§ 4.28), ery designed longer has maximum for worker reached medical benefits impairments. Recovery improvement the end of the 104th week. term of benefits solely period temporary 104-week the second two is based on the for income tiers impairment ratings found in percentage is the in the nation. the benefits shortest Lucas, of federal "rational basis” test. 757 sis' of Sullivan is reminiscent intermediate Cf. Lucas, C.J., (Phil- dissenting) scrutiny." n. 5 (Phillips, at 707 S.W.2d at 757 omitted). C.J., (citation Harrington, Rights lips, dissenting) The Texas Bill and Civil of court, Liberties, noting that 17 Texas Tech Whitworth while Sullivan was L.Rev. amendment, emphasized decided under said Whitworth Whitworth, its reliance on Sullivan. the fourteenth important that are "articulate[s] 699 S.W.2d at and n. 5. Sulli- Sullivan factors I, van, amendment, interpreting § the decided under art. which is constitu- the fourteenth Whitworth, apply scrutiny opinion.” purported to the tional basis for minimal rational barring the S.W.2d at 197 n. We believe that Whit- basis test. struck down a rule participating scrutiny worth test is than the minimal underclass transfer student from stricter sports year varsity for rational basis test it is intolerant of over- one because irrebutta- because Sullivan, legislation and irrebutta- broad and overinclusive ble classifications made it overbroad. Whitworth, Phillips presumptions. 699 S.W.2d at at 173. Chief Justice ble See 616 S.W.2d As " Sullivan, out, 197; analy- equal protection at 173. pointed ‘strict can con- impairment income benefits and February, for printing, dated “second injury. from tinue until weeks the date of Permanent Guides Evaluation benefits, edition, which published by exception of lifetime Impairment, third With (“the below, supplemental income Medical Association....” American will be discussed Guides”). only long-term pro- § 4.24. “All determinations benefits benefits are the Act, However, impairment under this whether before who vided the Act. workers court, temporary must made commission duration of received the maximum guide.” (104 weeks) with the above-named accordance dura- maximum benefits (300 Id. impairment tion of income benefits weeks), supplemen- would not be entitled to begin if the Impairment income benefits § 4.29. 401-week tal income benefits. achieving impairment has after maxi- worker provided maximum of benefits duration improvement. They mum medical continue nation. the Act is the shortest expiration of 401 until the earlier injury, from the date of the end of a weeks supplemental bene- qualify To income period computed at of three the rate weeks (1) fits, must meet criteria: the worker four impairment percentage point each impairment rating from worker’s (thus, percent impair- with a 100 a worker (2) more; percent Guides must be impairment ment receive 300 weeks of would worker to work or must not returned benefits), income or the worker’s death. earning percent the worker’s less than 80 4.26(c). § Impairment are paid benefits average weekly wage “as a result direct weekly percent at a rate of 70 of the worker’s (3) impairment;” has not worker wage, average weekly subject to a maximum lump received sum percent average weekly the state (4) benefits; “in income worker 4.26(b). wage. good attempted employment faith obtain impairment rating disputed, If the ability employee’s commensurate with “designated by must be seen a doc- worker 4.28(b). § If the not enti- work.” worker is by designated tor.” A is one chosen doctor supplemental tled to benefits for consecu- or, agreement parties if cannot months, tive the worker ceases to be entitled agree, by designated the commission. If the income benefits for additional by parties, is one chosen the com- doctor 4.28(f). injury. § adopt impairment rating must mission per- Supplemental income benefits are 80 hand, found this doctor. On the other percent of cent of between 80 the difference commission, the doctor is chosen weekly average wage and cur- the worker’s report has “presumptive weight.” doctor’s subject earnings, maximum rent same ruling The commission’s must be based impairment minimum as income benefits. designated report doctor’s “unless the 4.28(n). § must be established Entitlement great weight of the other medical evidence is by the worker quarterly by a statement filed contrary, in which case the commission 4.28(k). Fail- § with the insurance carrier. rating adopt impairment shall one file the carrier ure to the statement relieves 4.26(g). § the other doctors.” liability supplemental income benefits get The worker can income period during is for the which a statement lump if the benefits sum worker has. not filed. Id. months, three returned to work at least earning percent at is least 80 4. Income Benefits Lifetime average weekly wage. No other worker’s Death Benefits paid lump in a benefits under Act can be accepting lump-sum A benefits sum. worker are “lifetime The last two tiers benefits get supplemental income benefits. 4.31) cannot (§ bene- income and “death benefits” (§ 4.41). per- are 75 fits” Lifetime benefits Supplemental Income Benefits average weekly wage, cent of the worker’s weekly maximum benefit payable not to Supplemental income benefits are exceed average longer percent limit of of the state eligible eligible worker who is 2.Benefit Review Conference. except increase weekly wage, that benefits §§ 6.11-.15. per year regardless of the percent three paid un- limit. Lifetime income benefits dispute step in the resolution The first eyes; loss of both conference, til the worker’s death for de- process is the benefit review hand; feet; hands; “nonadversarial, and a in- both a foot both the Act as scribed arms, proceeding.” dispute resolution formal injury causing paralysis of both spinal by a presided § over benefit 6.11. legs, leg; an arm and a or a skull both officer, employee of the commis- review insanity im- “resulting in injury incurable dis- tries to settle sion. The review officer becility.” rights, and parties of their putes, informs the paid at the rate of 75 Death benefits are file contains all that the commission’s ensures average weekly percent of the worker’s medical, pertinent informa- wage, other weekly subject bene- wage, to the maximum re- testimony is taken or No formal tion. average corded, subject to is not percent limit of the state and the conference fits procedure. Normal- of evidence or paid legal the rules weekly wage. They are held, ly, review conference unless benefit dies from a of a worker who beneficiaries other admin- parties may proceed death injury. The duration of compensable hearings. istrative by section 4.43. benefits is controlled at benefit review Any not raised issues pre- and cannot be conference are waived System Adjudication B. subsequent proceedings, both be- sented courts, unless changes in commission and the significant makes fore The Act also good cause exists the commission determines adjudication system. The former Act’s parties agree that raising them or the for not trial de system with informal administrative 6.31(a). Further, they may raised. replaced with a in the courts has been novo previous stage presented at a issues limit- more formal and elaborate subsequent presented if not each waived clearly, judicial goal, ed review. 6.62(b). 6.42(a)(1), §§ stage. level. at the administrative resolve conflicts settled, the review officer If the case is not disputed report of all prepares a written Program. §§ 5.41-.42. 1.Ombudsman the officer’s recommendations. issues with power to issue an officer has the The review program Act creates an ombudsman The pay to interlocutory pay to or not order persons claim- injured workers and to assist 6.15(e). § carrier is The insurance benefits. obtaining The benefits. ing death benefits injury subsequent the to be reimbursed from employees of the commis- ombudsmen are pursuant to any overpayments made fund for are set out The ombudsmen’s duties sion. has been agreement Id. If no this order. 5.41(b): section reached, go either to arbitra- parties the can meet with or otherwise Ombudsmen shall hearing, but not to case tion or to a contested workers, injured in- provide information to 6.21(a). both. and communicate vestigate complaints, carriers, and employers, §§ insurance 6.21-.28. 3.Arbitration. injured providers on behalf of health care may agree go to to arbitration. parties The An shall otherwise workers. ombudsman employees of the com- are also Arbitrators claimants, employers, unrepresented assist and federal meet state who must mission protect them to parties to enable and other randomly as- are Arbitrators qualifications. rights in the workers’ reject arbitra- party may one signed. Each qualified specially least one system. At days of the is held within 30 tor. Arbitration designated employee Testimony in each office shall is under assignment. arbitrator’s ombudsman, request- under or and duties arbitrator required oath recording An person’s primary party. re- electronic be that ed a chapter shall made, stenographic hearing must be sponsibility. interrogatories prescribed by the expense form recording is at the of the permitted hearing the parties Prior party requesting it. The arbitrator commission. testifying exchange reports, all medical materiality of the shall judge of relevance and records, offered, wit- conformity expert reports, to rules witness medical but evidence statements, identity and location required. evidence is not ness parties to any witness known must enter his or her award The arbitrator facts, all knowledge photo- of relevant days day after seven the last within documentary par- graphs and evidence that a The award a final order of the arbitration. into Failure to ty intends to offer evidence. binding parties. all An commission and party pre- to a evidence known disclose if it can be vacated arbitrator’s award subsequent at hear- its introduction cludes fraud, by corruption, mis- procured a court unless ing before the commission or arbitrary capri- representation; it was for failure dis- good cause is shown cious; or it was outside the commission’s close. jurisdiction. suit The to vacate the award juris- competent hearing in a court of must hearing, must filed After the officer days findings within of the award or within diction includes a written decision that issue days party law, the appealing of the date knew a determina- of fact conclusions suit, known of but due, or should have a basis are and an award tion whether benefits not later than months after an order hearing The officer shall of benefits due. denying compensation expiration or after the separate, written decision on attor- make period. death If an of the income or benefit final ney’s fees. The officer’s decision is vacated, award is the ease is sent back to panel. ap- If appealed appeals unless proceed- another commission for arbitration pealed, binding pending ap- the decision is ing. peal. Hearing. §§

4.Contested Case 6.31-.34. 5.Appeals §§ Panel. 6.41-.45. elected, parties If are arbitration is panel purpose appeals The hearing. entitled a contested ease hear- review the decisions contested case hearing is an administrative trial the dis- appeal party desiring to ing officers. A puted issues in the case. Issues raised hearing decision must file written officer’s may not be the benefit review conference panel days within appeal appeals with the hearing in a case unless considered contested receipt of the decision. The other parties or the commission finds consent response. file party days has 15 a written good cause for failure to raise the issues response request appeal and earlier. either rebut nature of written briefs that hearing support officer’s decision. a benefit review conference is sched-

When uled, hearing case contested is automatical- appeals only the panel shall consider days ly set within 60 of the conference. case hear- developed at contested record 6.12(b). hearing, § At the re- electronic panel’s ing, and the briefs. The decision made, cording stenographic is and a record- writing and not later than must be issued may requesting party’s ing be made at the days response written is filed. after the expense. hearing presides, The officer hearing may affirm officer’s The decision the witnesses, of the swears controls admission decision, a and render reverse decision evidence, and is the finder of fact. one, and or that decision remand new reverse judge the and officer is the sole of relevance hearing than time to the officer no more one evidence, materiality weight the and of the of development of for further consideration credibility given to be the evidence. final in the The decision is the evidence. need Rules of evidence not be followed. judicial timely appeal a review. for absence Discovery depositions limited to on writ- is §§ Review. 6.61-.64. 6.Judicial questions provider, care ten health all administra- permitted party A that has exhausted depositions other as witnesses shown, judicial the review of remedies seek by hearing good the officer for cause tive finding the of a substantial appeals panel by filing suit within 40 the doctors after decision 6.62(j). change § of condition. days Trial is limited to the decision. eligibility compensability or for or issues than com- review of issues other Judicial the amount of income or death benefits. pensability eligibility for or the amount by to issues decided the is further limited by governed the income or death benefits is judicial appeals panel on which review is rule, and is conducted substantial evidence party appealing particular sought. The judicial provided manner for review of a issue, in the rather than the claimant as of the Ad- contested case under section 19 law, proof former has the burden Register Procedure and Texas ministrative preponderance of the evidence on that issue. Act.6 Act, with the former the court contrast Attorney’s §§ Fees. 4.09-.091. appeals jury tell the the decision of the must disputed panel on all issues submitted Attorney’s approved must be fees jury, the court jury, and a trial without a They or a court. are based on commission appeals must consider the decision of present- attorney’s expenses time and panel. by written evidence to the commission ed subject of 25 court. The fee is to a maximum impairment Evidence of the extent of recovery. The com- percent of the worker’s presented to com- limited to the evidence following mission, mission or court must consider the jury adopt and the must one of (1) approving attorney’s fee: according factors impairment ratings made to sec- 6.62(d). required, novelty and the time and labor only exception § tion 4.26. involved, court, difficulty questions and the hearing, when the after a this rule is required perform legal services skill change of the worker’s finds substantial (2) charged in customarily properly; the fee has occurred since the commission condition (3) services; 6.62(e). locality legal § for similar proceedings. Evidence of a sub- (4) controversy; amount involved change from the stantial of condition must be attorney benefits to the claimant the com- appeared same doctors who before (5) experi- mission, responsible securing; or evidence it must be new evidence attorney ability performing ence and not have discovered earlier that could been the services. diligence, and it must be evidence with due probably produce a different re- would must also have their fees Defense counsel Id. change If of condition sult. substantial the court. approved the commission or disputed, designated doctor must veri- apply law- factors that to workers’ same findings fy change, again his or her lawyers. yers apply to defense pre- “unless the presumed to be correct Constitutionality ponderance of the other medical evidence V. the Act must come from the doctors who [which apply the constitutional standards We now is to the appeared commission] before the challenged provi- previously discussed to the 6.62(f). If, contrary.” § after review of this sions of the Act. evidence, change the court finds substantial condition, A. A.M.A. Guides new medical evidence 6.62(h). extent of is taken. that the Act’s use of The trial court found evidence must from and is limited This awarding compen- Guides as a basis impair- or doctors who made the same doctor in at least five was unconstitutional sation Id. ratings ment before the commission. (1) per- the Guides respects: do not include ratings many centage impairment for disabl- change in finding of substantial The court’s injuries, including trauma and jury. ing mental to the condition not be disclosed 6.62(i). thou- finder, pain syndrome, which disable in chronic The fact its determina- thereby depriving annually, adopt sands of workers impairment, extent of must tion of the injuries; remedy for their given by of a impairment ratings those workers one of the new (Vernon Supp.1992). art. 6252-13a 6. Tex.Rev.Civ.Stat.Ann. the a benefit

(2) irrational to base use the Guides to legislature’s of by the generated were never numbers impairment when determine benefits Guides, man- purpose is unreasonable the Guides intended for such that the use of and reasonably arbitrary and not related to role physician’s and by the Act abuses the dated interest of the any disability or societal individual making in of evalua- process (3) State; are to determine the Guides used tions. impairment, extent of a worker’s medical the Act uti- Dr. also testified that Smith to worker’s abili- which has no relevance arbitrary manner. He lizes the an Guides ty employment obtain retain other to and —in very specifi- testified that the Guides “state words, significantly compro- workers can be impairment rating cally number that the function in the mised their abilities to correspon- put to into one-to-one not be labor force but have minimal or nonexistent concept disability any other dence with ratings, thus them of impairment depriving paid.” Act money is to be under which compared right compensation as to rating from the uses the Guides (4) law; the im- past law and the common percentage computing the as a factor in pairment ratings used the Guides have no specifically dis- paid, amount method (5) basis; adequate or scientific and medical approved by the Guides. of of of the method evaluation aver- “because Guides, weekly age wage, and use of the testimony expert echoed Other medical effectively the Act will reduce benefits for Dr. Marvin those Nortin Hadler views. majority of Texas Workers.” University School of of North Carolina Act’s utilization of The court found impairment rating Medicine testified courts, open the Guides violates due produced by the Guides is not relevant law, protection, right equal course of and unreliable, inadequate disability, and is jury provisions trial of the Texas Constitu- concept injury. Dr. John measure of Jury tion. trial in relation to the Guides will Gunn, physician orthope- former and Fuller’s “E” be discussed in subsection below. Cowboys, surgeon dic Dallas testified complicated pages are 250 Guides do not consider that the Guides They and technical medical material. were changes in the treatment occurred designed used and to be doctors trained injuries since lower extremities personnel. They impairments medical define that the Guides could 1958. He testified extremities; bodily systems: following impair- used a true measure to obtain respirato- spine pelvis; system; and nervous ment. system; ry system; cardiovascular hemato- ear, nose, system; system; poietic visual open argue Defendants throat, structures; digestive sys- and related be provision courts not been violated tem; urinary reproductive systems; en- law has been restrict cause no common skin; system; docrine and mental and behav- plaintiffs had They ed. assert that all cover At the the Act took ioral disorders. time and therefore have age under the former Act effect, specified edition Guides rights. They con waived their common law longer print super- had been was replaced Act the former statu tend that the subsequent seded edition.7 scheme, rather tory workers’ and, remedy law cognizable than a common Engleberg George L. Doctors Alan subject open therefore, courts Guides, is not Smith, at two editors of testified Moreno, editor, challenge. Both 787 S.W.2d Engleberg, Dr. the chief testi- trial. Hosp., Doctors and Rose v. Act is and arbi- fied that the unreasonable (Tex.1990) Guides, open pro held that the courts way that it trary in the it utilizes the statutory apply claims. fairly, that it vision does does not the Guides use Further, fact, continually evolving. seek redress for tion. workers cannot the Guides instance, syndrome, pain ratings injuries trauma, a chronic mental such For hernias anatomic asthma, knees, hyperextension occupational diagnoses present which are not knee, solely crepitus joint because statutorily-mandated the they third edition of Guides, by the Guides. are not addressed have been added in the most recent edi- Legislature sought to achieve the seem- The claim at issue in those cases was the statutorily wrongful goals increasing benefits ingly conflicting created death action. §§ premiums Rem.Code ANN. 71.- lowering See Tex.Civ.PRAC. while for em- to workers & (Vernon 1986). 001-.011 As the Rose court ployers. noted, potential negligence action would 1987, July Legislature created In the 70th have died with the decedent had it not been on Workers’ the Joint Select Committee preserved by legislature wrongful in the the state’s Compensation Insurance “because death statute. 801 S.W.2d at 845. system poorly compensation workers’ contrast, compensation In the workers’ law perceived to out of con- understood and did not create a new cause of action where on Workers’ trol.” Joint Select Committee had existed at common law. In one never Insurance, Report A to the Compensation stead, “change[d] common law rule of Legislature, 71st Texas December injuries liability” for accidental in the work (hereinafter, Re- “Joint Select Committee Light place. Middleton v. Texas Power & Indeed, sys- port”). perceived some that the (1916), Go., 108 Tex. 185 S.W. collapse. nearing was in crisis and tem aff'd, 63 L.Ed. 527 249 U.S. 39 S.Ct. high Large employers asserted that work- (1919). Thus, say plaintiffs it is not true to impeded compensation ers’ costs business cognizable never had a common law-cause growth management’s and were a factor action. But the existence of the former for expand operations other decisions Act, Act, and now the new the common law profit mar- employers states. said Small negligence employ. theirs to action would be eliminated, forcing gins or were reduced words, legislature In other because lay-offs, many to choose between cessation negli once restricted workers’ common law operations, cancellation of of business actions, gence it does not mean policies assumption of the insurance legislature disappeared. have forever time, At the same labor attendant risks. easily compensa could as eliminate workers’ argued interests that Texas benefits were injured altogether, in which case tion laws Thus, among the lowest the nation. pre-existing be left with their workers would perception runaway insurance rates and a remedies. Both acts restrict common law high were the costs and low benefits action and cognizable common law causes of puzzling premises underlying the creation subject open scrutiny. therefore courts Joint Select Committee. open part of the courts test is The second Id. whether the restriction is unreasonable against purpose arbitrary when balanced Act, purpose of the as set out and basis of the statute. Analysis Bill follows: Senate is as bring a well-established [T]he proposes law to reform the This bill new cannot common law cause of action compensation of Texas workers’ laws effectively abrogated by ab- compensation restructuring the workers’ legislative showing basis sent Texas, giving agency agency of outweighs the denial of the the statute ability adequately administer and to more constitutionally-guaranteed right of re- compensation laws of enforce the workers’ test, applying this we consider dress. state, providing a more rational purpose of the statute general both adjudicating mechanism for effective litigant’s right the extent to which the consistency claims, providing more to redress is affected. decision-making process, providing for Sax, at 665-66. monitoring ongoing data collection Act, system to ensure its continued effec- in its purpose of the as reflected of the workers’ equi- This reform language, provide adequate, “to tiveness. own workers, provide a more injured timely benefits to table and mechanism employers....” understandable and reasonable cost at a reasonable injured workers is in- compensating purpose reflected 2.51(g)(2). This fair, just, Act; bring a more history tended to Texas legislative throughout the sys- pure impairment sys- legislature adopted a equitable workers’ and system was impairment The employers and tem in the Act. in terms costs to tem adopted legislature wanted injured employees. because the to benefits (cid:127) subject less objective system; one to more Analysis, Bill S.B. Second Called Senate accuracy prediction than dispute and more Session, (emphasis add- December disability system. system wage loss or ed). Legisla- Hearings on Tex.H.B. Before Glasgow, a of the Joint member Senator Oversight on Com- tive Committee Workers’ Committee, expressed goals Select C.S., Leg., Tape at 9 pensation, 2d 71st follows: 1989) (transcript (April available from Members, system I when we started Office). legisla- Senate Staff Services everyone goal that what think was to purpose adopting Guides was ture’s objec- up to do come with an we wanted is compen- rising costs of workers’ control injured for benefits for work- tive standard adoption “ob- insurance of an sation injured To for ers. increase the benefits system. jective” injury-evaluation up To come an efficient workers. is a fundamental difference between There system delivering benefits. To those “impairment” “disability.” The and Guides have medical cost containment. To have themselves, safety chapter, unequiv- safety regulation in in the first and the work- place. litigation control the cost and ocal on this. To rising on get a handle rates. That’s what proper

. of medical The accurate and use goals our were. impairment in con- information to assess disability determinations de- nection with 1 on Debate Tex.S.B. the Floor of the that, (Nov. C.S., pends recognition whereas Senate, on the Leg., 5 at Tape 71st 2d matter, 20, 1989) impairment is a medical disabil- (transcript available Senate ity Office). of the interaction between arises out Staff Services and external demands. Thus, legislature accomplish sought to Guides, “im- Consequently, as used goals in several the new Act. Our review of pairment” indi- means an alteration an legislative history the Act’s extensive con- vidual’s status that is assessed health primary goals vinces us that the two means; “disability,” which is as- medical sought legislature lowering were to achieve means, an by nonmedical means sessed system increasing the costs of the and capacity to alteration of individual’s injured goals benefits to workers. social, personal, occupational de- meet efficient, consistent, make more mands, regulatory statutory or meet rational, objective; and contain medical stated, “impair- Simply requirements. costs; litigation implement wrong is is with the health ment” what safety regulations, stronger are laudable and individual; “disability” gap is the legitimate of themselves. can also can between what individual do achieved, fairly argued goals, if that these the individual needs or wants to what help legis- will to contain costs. Whether do. goal lowering met costs lature remains legislature “impaired” seen. The itself was unsure is is An individual who met, goal necessarily

whether that would be and the Impairment “disabled.” record this case is inconclusive because it disability only medi- gives rise to when the empirical early is data to have capacity too cal condition limits the individual’s collected. Our review of the Act con- pertain been to nonmedi- to meet demands that however, us, vinces failed the other cal fields and activities. On primary goal, that of hand, meet its second to meet the individual able increasing demands, to workers. particular benefits the individual set respect to those de- not “disabled” with objective standard mentioned Sen- mands, though a medical evalua- even Glasgow readily apparent in the ator most impairment. tion reveal impair- second- and third-tier benefits. For supplemental income benefits the ment physician injuries does not in- employ- determine sustained in the course of itself,

dustrial loss of use or economic by industry loss for ment should be borne purpose paying disability a bene- regardless of at fault.” who was Research fit. Papers, Chapter compensa- 1 at 3. Workers’ tion a (italics is trade-off. Guides, original; at 1-2 boldface added). The footnote at the second sentence Replacement proportion of a substantial quoted paragraph of the second reads: “The justified by lost is a feature of [of income] commonly example impact used of the of the compensation workmen’s which distin- finger loss of the fifth of the left hand illus- guishes program from other forms of point. trates the If the individual is a bank exchange social insurance. for the ben- president, occupational impact likely is compensation, efits of workmen’s workers hand, negligible. On the other a concert right renounced their to seek for redress pianist likely totally to be disabled.” damages pain suffering economic disability/impairment distinction is under the common law. In no other social critical purpose when the historical of work- program, Security insurance such as Social compensation ers’ statutes is examined. As unemployment compensation, did work- by described the National Commission on any right ers surrender of value ex- report State Workmen’s Laws utilized change for benefits. by legislature, primary purpose “[t]he Report National Commission at 37. This replace proportion these benefits is to some principle acknowledged by universal our loss, wage potential.” actual or The Re- supreme providing court. “In the worker a port of the National Commission on State prompt form of remuneration loss for (1972) Compensation Workmen’s Laws at 33 earning capacity, statutory scheme is in (hereinafter, Report). National Commission liability negli- lieu of common law based on Thus, objectives one of the Commission’s five Co., gence.” Royal Paradissis v. Indem. compensation system for a modern workers’ (Tex.1974) added). (emphasis S.W.2d closely is that “cash benefits should be tied to Co., See also Barnett v. Aetna Ins. Life [the worker’s] disabled loss of income.... (Tex.1987) (“The avowed compensation replace Workmen’s should a purpose compensation of workers’ is to com- proportion substantial of the worker’s lost pensate injured individuals for their loss of remuneration.” National Commission Re- earning capacity. designed It was not port at 36-37. compensate employee earnings for his lost recognized The Joint Select Committee ”) (citations omitted) injury itself. objective. purpose sys- this “The of most added). (emphasis

tems, originally currently, both is to deal accomplished purpose. The former Act inju- consequences with the of work-related compensation, by This fixed the Act on the including employment ries loss of due to the employee’s average weekly basis of the injury.” Papers Research the Joint Select absolutely wages, upon accrues to him his Compensation Committee on Workers’ In- suffering any personal injury in the course 1988) (here- surance, Chapter (Sept. 4 at 115 employment incapacitates him of his which inafter, Papers). Research Thus the Joint earning wages ... full whether or adopted policy objec- Select Committee negligence employ- not due to the “(a) provide tempo- tive a that would It is the substitute intended and er.... rary high replace proportion benefits that damages ordinarily provided the Act for (b) earnings, of after-tax lost benefits for recoverable at common law or statute permanent disability substantially allevi- injuries on account of suffered an em- ate the economic duress that occurs or death, ployee or because of his when due expected to occur because of the disabili- negligence employer.... ty.” Report Joint Select Committee at 6. Middleton, at 185 S.W. by the

As described Joint Select Commit- tee, Thus, theory compensa- “the basic of workers’ under workers’ tion, therefore, schemes, given up their com- personal is that the cost of workers have is not ing use the Guides which employers law sue rnon system that intended. exchange for a negligence par- compensate them least supposed to added). Guides, (emphasis 6at earning tially capacity as the for loss inju- argue scheduled Defendants injury. The Act does of an industrial result Act under former constituted ries this, regard not do at least Act, former impairment system. Under the It com- supplemental income benefits. injury specific to a workers who sustained of pensates disability, basis of loss not the recovery body the member were limited to income, earning capacity, solely or loss of but injuries in article provided in schedule of the impairment, which or on the basis of however, workers, 12. Such section earn- may not related to the worker’s lost they incapacity for total could also recover ability retain capacity or to obtain and ing particular injury the the prove that to could employment. also to and affected other member extended recognized The Joint Select Committee bodies, impaired or then- portions of their impairment not a alone was sufficient totally to general health to such an extent as injured compensation for an measure of Argo- incapacitate them. permanently designated rec- as “critical” its worker. Newman, 361 S.W.2d 871 naut Ins. Co. v. per- “[cjhange to for ommendation the basis (Tex.1962); Underwriters v. Consolidated manency impairment a benefits to (1943). for- 141 170 463 Langley, Tex. S.W.2d education, adjustment age, mula for injury specific if the limited to the Even Re- type work.” Joint Select Committee of member, options two to re- the worker had added). port (emphasis at 14 An alternative total of use of cover for loss change to that recommendation was to the es- could seek to the member. worker subsequent adjust- impairment basis to “with had longer member no tablish either the wages earning ment actual loss or lost for utility body, or any part as substantial capacity available claimants whose for injured that worker could that it was so pre- wages significantly remain below the procure employment requiring and retain (em- injury level extended time” Id. for support- of that member. Evidence use added).

phasis ing support would either of these definitions recovery total loss of use. Travelers These critical recommendations were not for (Tex. Seabolt, v. implemented in the Act. The Act takes the Ins. Co. 1962); Employer’s impairment rating and Texas Ins. Ass’n physician’s translates Sauceda, (Tex.App. An- directly considering into benefit without —San writ). education, age, occupation, tonio also 2 State See the worker’s Bar of Jury Charges PJC training, capacity, ability Texas, experience, earning Pattern Texas option, job, described perform employability, to or 25.05 second injured as favorable to disability factors. Seabolt more other relevant worker, disability-type proof of the allowed then- The editors of the Guides foresaw em- of whether the worker’s consideration chapter potential The first includes misuse. injury. by the ployability affected had been following admonition: partial incapacity, disabili- Even cases system legal or Each administrative part ty played a in determin- considerations impairment permanent basis uses recovery. ing the amount disability rating its own needs to define partial incapacity, In translating knowledge of a all other eases process im- including any disfigurement which will into an medical condition estimate occupational pair the future usefulness or degree capacity individual’s to which the injured employee, social, occupational opportunities personal, or de- meet accord- mands, compensation shall be determined statutory regulatory or to meet taking incapacity, impair- percentage ing limited requirements, things any pre- encourage among account other each into ment. We physi- nature incapacity, im- translation of vious make “one-to-one” occupa- disability, injury disfigurement, pairment creat- cal in essence injured employee, tion age most, and the many, dence also indicates that if not injury. at the time of these workers will not receive sufficient benefits provi under the income 3, 1923, R.S., April Act of Leg., 38th ch. replace sions to earning capacity lost (formerly 1923 Tex.Gen.Laws 384 art. they will inability suffer due to their to re 12) added). (emphasis Damages turn to work. negligence in a ac Texas, rating injuries for Section 12 indemnify injured tion are intended per can be impact influenced pecuniary sons for the losses have suf injury injured ability has on the workers’ fered, place nearly order to them in as perform his or her usual work. The position they same occupied would have but result is that a Texas worker with a Sec- Krusen, injury. for the See Nelson v. specific injury appropri- tion can under 924-25; Burlington-Rock S.W.2d at Island ate rating, circumstances receive a Newsom, (Tex. 734, R. Co. v. benefits, greater generated by than that a writ). Civ.App. pure The — Waco pure impairment rating, based to some impairment-based system adequate is not an upon injury’s possible extent economic or for reasonable substitute workers’ com impact. negligence mon law arbitrary actions. It is Papers, Research eh. at 52. recovery unreasonable to limit the of seriously injured Thus, experiment workers in an even under the article section Lucas, compensation to lower rates. See injuries, schedule of the worker could seek at 691. For this reason prove the Act’s use to a injury fact-finder that the open of the Guides violates the courts and more severe than recovery the scheduled provisions due course of our constitution.9 by proof allowed injury of how the affected Act, his earning capacity. or her The new argue legisla- Defendants that because the concerning benefits, second- and third-tier provided substitute, ture inquiry has our is permits no consideration of individualized at an According argument, any end. to this conditions, earning medical capacities, work substitute will do. To take an extreme ex- histories, myriad aor of other relevant com- ample, legislature could decree that a pensation factors. $100, paid dollar, worker will be or even one any injury sustained, for no matter how se- In an effort to predictability, objec achieve Obviously, vere. inadequate this would be an tivity, efficiency, compen and lower workers’ substitute for the workers’ common law rates, sation insurance legislature has rights employers to sue their negligence for provide injured failed to workers an ade damages. adequate The test calls for an or quate substitute to obtain redress for their substitute, merely reasonable not a substi- injuries.8 supplemental provi benefits tute. of provide sions the Act are intended to extra injured seriously the most argue Defendants legislature is But, legal workers. the medical and any testimo free to use system rational for the deliv- ny most, overwhelming many, benefits, ery not of and that the use seriously injured the most purpose workers who will for Guides is rational. The job performing disabled from their testimony, will be defendants cite medical some ineligible supplemental witnesses, for plaintiffs benefits. The evi indicating from Pryor, argues See Ellen Smith Flawed given Promises: A 9. The dissent that we have short goals Critical lowering Evaluation the American Medical Asso- shrift to other than rates benefits, increasing ciation’s "Guides to the Evaluation Permanent that the Act’s use of Impairment," rationally (1990) goals Guides is related to the of consis- Harv.L.Rev. (book review) (‘‘[P]olicy appreci- tency, objectivity, makers should and uniform treatment of simi- 'accurate,' however, 'objective,' larly ignores, ate that the search for an situated workers. purely system always plain 'medical' is and will be what to us is the fact that the goal providing fruitless. And must resist the seductive but has sacrificed its increased hope scientifically medically injured false use of benefits to workers in order to achieve so, ratings system bypass goals. authored can doing the need to these other In it has failed to necessary any provide adequate make the hard choices for loss workers an substitute (footnote omitted). system.”) rights. assessment common law is as if his is entitled benefits Guides are most accurate evaluation However, prevent an adult would impairment available. severe as one that medical compensate adequately working.” not Id. at 110 S.Ct. at 890. that does however, Secretary’s regulations, law loss their common workers Under rights not rational. entitlement to benefits a child could show impairment correspond- when his or her use of the Guides violates Act’s one specified criteria to ed all medical equal provision protection of the Texas presumed impairments appearing on list ways. least three In addi Constitution enough preclude gainful work. severe classification, percent to the 15 which tion that the Sec- Supreme Court determined below, unreasonably Act will be discussed retary’s determining child disabili- method injured injuries are classifies workers whose statutory ty conform to the stan- failed to Guides, recognized by those whose 541-42, at 897. dard. Id. at 110 S.Ct. recognized. injuries This classifi so conclusion, the stated: reaching this Court rationally the Act’s cation related to compar- process No decision restricted increasing purpose of benefits for workers. fixed, ing medical evidence to a claimants’ Third, the Act also creates an irrebuttable respond finite of medical criteria can set presumption improve- that maximum medical adequately variety the infinite of medi- expiration of 104 ment occurred thereof, and combinations cal conditions opportunity The Act offers no for weeks. varying impact of such conditions due injured presumption. workers to rebut characteristics, individual to the claimant’s problem presumption with this is The not diag- evolution of medical and the constant require duration. It is that the maxi- Guides techniques. nostic improvement mum reached medical 539, 110 Id. at S.Ct. at 896. impairment rating given. an is This before ensures that worker’s condition will have Zebley realize that does not con- While we impairment rating stabilized before an is as- every medi- demn utilization of a fixed set of cases, signed. In those will be there benefits, dispensing illus- cal criteria some, improve- in which maximum medical applying problems trative of the inherent weeks, ment is reached the end of 104 not rigid listings to vari- impairment the infinite required, contrary a doctor is to the dictates ety char- of medical conditions individual Guides, impairment to render an rat- example, acteristics. For the Court stated ing anyway. This classification fur- does not shortcomings listings are remed- the purposes ther of the Act. steps in ied for adults additional the Sec- not retary’s Adult who test. claimants do Supreme Plaintiffs cite us to the Court qualify listings still for benefits under the Zebley, ease of Sullivan v. U.S. im- opportunity show have the that their 885,107 (1990), S.Ct. L.Ed.2d 967 while amici prevent them from pairments in fact work- argue forcefully no that that case is of rele- ing. Id. at S.Ct. vance the determination whether however, children, may constitutionally incorporate simi- Act For there Zebley impair- opportunity. was whether lar Children whose Guides. issue enough quite to rise regulations promulgated by Secretary ments are not severe disabling level presumptively Human set Health and Services to determine disability listings; impairments properly carried the com- children child out children, any by Congress. might and all statute enacted not disable mand them, actually due Supple- under the but which disable statute awarded benefits nausea, Security symptomatic pain, Program Income to disabled effects such as mental medication, etc., persons. “disability” in or due The statute defined side effects of individualized, age, educational back- inquiry particular functional terms circumstances; and children problems ground, on an into the effect of medical statutory impairments or combinations ability to stan- with unlisted adult’s work. equivalent to disability explicitly impairments that are not linked dard child categories of any fisting these disability; “a child one to the standard for adult —all benefits, simply limitation, child claimants are bodily impairments. denied Without such impairments “compara- even their argued, are of it is availability long-term severity” ble actually to ones that provide would income benefits would an undesirable (though presumptively) not render incentive malinger for workers to or other- adult disabled. wise returning avoid to work. Defendants argue long that so as this rationale is reason- 535-36, Id. at (emphasis S.Ct. at 894 purely able arbitrary, the decision to (footnotes omitted). original) greater draw the line at percent than 15 application The Act’s of the Guides suffers purely legislative function. from the shortcomings. same There is no opportunity for qualify workers who cannot percent The 15 threshold determines enti- impaired under the Guides to show that any long-term tlement to benefits under they in fact wage earning capacity; have lost explanation Act. Defendants offered no impairments, workers with unlisted no mat- percent figure. source of the 15 Wit- disabling, ter how severe or ineligible directly nesses who were involved in the benefits; injuries quite workers with legislative process leading up to the Act had enough severe presumptively to rise to the no idea where this number came from. We severe percent rating level of a 15 might, due absolutely have been cited to no evidence factors, actually individual be more severe- legislature upon before the per- which the 15 ly significantly, disabled. Most the Act does figure instance, cent could be based. For any adjustment not allow for individualized there legislative is no indication in the record relating wage factors to loss of earning ca- percent impairment that once a 15 rating is pacity. reached, significant numbers of workers are require long-term so disabled as to benefits.

B. Fifteen Percent Threshold Likewise, there signifi- is no indication that The trial court also found that the 15 cant numbers of workers who will not reach percent impairment rating threshold as a percent level long- have no need of qualification supplemental for benefits “is ar term benefits. testimony The medical at tri- itself, bitrary in and of and further that it is al condemned arbitrary the number as and upon impermissible based an arbitrary concept inappropriate as an use of the use of the AMA Guides.” The court found Guides, agree. and we must that the utilization of the threshold will result The trial findings court in its noticed and many, most, in denial of benefits to if not gave study credence to a Florida that showed significantly disabled workers and “creates only percent injured seven workers arbitrary unreasonable and classification impairment ratings obtain in excess of 15 legitimate pur which serves no state ” percent. Attorney Phil Hardberger, recog- pose .... expert nized Texas workers’ argue Defendants that the Act’s limitation law, experience, per- estimated that his supplemental income benefits to those injured ineligi- cent of all workers would be workers who have impairment received an supplemental ble for income benefits. Attor- rating percent greater of 15 is not uncon- ney Southers, Frank another workers’ com- legislature’s stitutional pre- because it is the pensation expert, law confirmed this testimo- rogative supple- to draw that line. Because ny. percent He described the 15 threshold designed only mental income benefits are for “centerpiece” as the of the Act because it employees permanently those who are long-term determines entitlement to benefits seriously impaired after maximum medical under the Act. recovery, argument goes, perfectly it is legislature witness, defendants’,10 including reasonable for the to limit those Each ac- knowledged severely benefits the workers with the most serious there would be disabled witness, Barth, physical impairments. 10. One defendants’ Dr. Peter S. serious He indicated that professor, per- justified reserving an economics testified that the 15 limited impair- seriously injured cent threshold is reasonable because resources for more workers. true, percent generally very certainly ments below 15 are not While the latter statement is down, But hoped it would.11 while percent but not reach the 15 workers who would benefit, legis- that, “hoped providing for” this “[t]he threshold. The trial court found most, many, if not lature ensured test will result in utilization of this threshold injured most, profoundly Texas workers the most many, signif- if not denial of benefits Gutzman, ineligible significant for most ben- will be icantly Dr. disabled workers.” by the Act. provided efits orthopedic surgeon, testified that serious disks, including problems, back herniated vein, supreme Texas court In a similar intervention, surgical both with without persons catastrophi- “In the held: context percent threshold. fail to meet the 15 would be- cally injured by negligence, medical we these can be He testified that individuals arbitrary to limit it is unreasonable lieve totally disabled. speculative experiment to recovery their in a liability rates whether insurance determine Engleberg gave examples Dr. numerous Lucas, will decrease.” injuries types that can in less than a result percent percent rating, a zero even rationally percent is not The 15 threshold rating, yet significant result disabilities purpose to increase related to the statute’s prevent perform- from that would worker injured workers. Its effect compensation for job. skin ing or her These included Further, his just the classifica- opposite. conditions, disorders, respiratory pulmonary absolutely arbitrary tion that there was injuries, impairments, prob- speech visual justification no for decision to offered lems, resulting employment, epilepsy percent or ratings those of 15 make system. injuries He also the nervous supplemental income bene- eligible more for showing provided two detailed case studies only provided by long-term benefits fits —the person impair- percent one who received a 27 percent ratings with 14 the Act—and those yet disability, rating, ment and a suffered for ineligible or less those benefits.12 percent person second received a 10 who is demon- arbitrariness of classification disability rating and suffered so establishing strated evidence significant that his income had diminished. who suffer relative handful the workers curtail, injuries perhaps signifi- serious many changes While the Act ben- contains earning eligi- cantly, capacities will workers, improvements in eficial to such as supplemental ble It is under- benefits. benefits, delivery of stricter enforcement scored, too, severely examples of dis- by the provisions, lifetime medical benefits rea- percent, ratings below 15 abled workers with necessary sonable and medical care related relatively injuries— and minor workers with features, injuries, compensable safety earning ability that do not affect those —who accomplished all of these could been percent 15 more. ratings receive of or imposition the the use without of draconian arbitrary percent cut- percent effect of the 15 Guides and 15 threshold. presumption legislature If the off to create an irrebuttable been successful is injured cost-cutting goal, may that worker who has received Texas businesses en- impairment rating percent 15 not joy Legislative history below does lower rates. indicates need, supplemental not was unsure whether the is entitled creates an unrea- Act cause insurance rates to come income benefits.13 also would rating is was ser- 13.If a worker’s disputed, medical unanimous that many testimony impairment rating injured not receive a workers would resolved iously dispute "presumptive greater. 15 even admit- designated And Barth weight” given a to the percent testimony ted that he did not know where the 15 findings percent the commission and the doctor. figure came from. judicial court, review, case of must be trial designated doctor’s evidence unless based on was course too tried, 11. When case it great weight of other medical is to testimony to determine the Act's affect on insurance early Even an individual worker contrary. rates. and have able to overcome these presumptions rating adjusted or her suggest his the Guides upward impairment that rat- While impairment more, 15 does not that ings destroy to the nearest five it percent be rounded up percent, Guides, all who are inherent workers is not a of the and it certain- presumption requirement a rat- Act. unable to establish 15 is not a percent impairment ly requirement 90 43, 136, 138,

sonable 78, classification between those workers 55 S.Ct. L.Ed. 80-81 (1910). percent who receive a impairment or more

rating and those who do not. legislative presumption That a of one fact from evidence of another reasons, percent For these the 15 thresh- process constitute a denial of due of law or old equal protection violates the and due equal protection law, a denial of the provisions course of our constitution. it is essential that there shall be some rational connection between the fact Designated C. Doctor proved presumed, and the ultimate fact The Act establishes for the first time the inference of one fact from “designated Texas a doctor” whose find proof of another shall be so unreason- ings given “presumptive weight” on the purely arbitrary able as to be a mandate. ' issues of ratings and determina So, also, not, it guise regu- must under tions of maximum improvement. medical evidence, lating presentation operate The trial court found that the effect of the preclude party right from the presumptions given designated doctor’s present his defense to the main fact thus testimony arbitrarily “is to subordinate the presumed. diagnosis treating of the worker’s doctor and presumption We will review the in favor of give weight opinions unreasonable designated light doctor in of these fac- designated patient’s doctor who is not the tors. treating doctor.” The court found that the First, constitutionally presumption a valid “presumption is unsound medical must be party operates rebuttable point arbitrary of view and from an adminis against. giving public A law the act of a point presumption trative of view. This raising prima official the effect of facie arbitrary contrary to reasonable medical presumption, deprive per which does not standards.” The court also found son pre affected of the to rebut the designated provision doctor usurps the fact- sumption, deny process. does not due finding responsibility of the Commission and Jackson, 213, Weatherly v. 123 Tex. provision the courts. The court found the (1934); State, S.W.2d Green v. course, equal protection, violates the due (Tex.Civ.App. - Beaumont by jury provisions trial of the Texas Consti n.r.e.). Supreme writ ref d Court tution. of Florida reached a similar result North McCann, Usery Defendants cite the case of v. Turner West Trailer Sales v. 217 So.2d 310 Co., (Fla.1968). Mining El khorn rejected 428 U.S. 96 S.Ct. There the court chal lenge providing 49 L.Ed.2d 752 Before the appoint to a statute for the challenge corat in that designated case was to the ment of a doctor when a conflict constitutionality statutory presumptions exists the medical evidence submitted at years’ employment hearing coal miners with ten before the commission. It held pneumoconio- in the mines process long who suffer from that there is no due violation as lung presumed sis—black permitted disease —are to as the worker is to cross-examine designated have contracted that disease from their em the doctor and to offer rebuttal ployment, and that coal miners with ten evidence. Id. at 312. The statute in at issue years’ employment Usery in explicitly presumptions the mines who die from made the re- buttable, respiratory presumed disease will be to and the Court noted that the effect pneumoconiosis. presumptions simply from In died review of the was to shift the ing presumptions Usery, Supreme going the in the burden of forward with evidence from Mobile, operator. Court relied on the test articulated in the claimant to the mine 428 U.S. Turnipseed, J. & at K.C.R. Co. 219 U.S. at 96 S.Ct. 2898. benefits, ing supplemental supplemental do not need income need for income benefits. no mat- words, way profound disabling injuries In other there is no to avoid the ter how application may testimony mechanical of the Guides. If the be. The was uncontroverted testimony support percent many

medical does not a 15 individuals will find themselves in this impairment rating, individuals cannot establish a situation. level, by testimony at the commission hearings, evidence At the commission the evidence preponderance of the other medical given presumptive designated the doctor is of hearing change of condition weight whether the at substantial in the determinations of presumption court. And since the maximum medical im- before the worker has reached judicial carry to the rating otherwise over provement, and does not what 4.25(b), no to presumption is assigned injury. process, §§ there to the review should be 4.26(g). rebut. The commission’s determinations designated

these areas shall be based the ra- that there be a Tumipseed requires great weight report the doctor’s “unless proved the fact tional connection between the con- the other medical evidence is to presumed, that the infer- fact and the trary.” 4.25(b), 4.26(g). §§ must proof fact from of another ence of one purely as be arbi- not so unreasonable be review, if judicial In a sub- the context trary. at 138. De- at 31 S.Ct. 219 U.S. occurred, change stantial condition has presumption favor argue that the fendants jury may the review the evidence of designated rational doctor has these the impairment presented the extent of at com- designated bases: because doctors are mission, impair- adopt one the and must they are aligned party, more with either by ratings ment one the doctors made likely “it is objective, and because If the commission. a substantial before give greater the of fact to rational for trier change by of condition has been found the testimony weight of a disinterested to the occurred, jury court to have the review testimony of a self-inter- witness than impair- the new of extent of medical evidence ested one.” impair- adopt ment and must one of the new ratings origi- ment made the doctors who favor creating presumption of the nally appeared before the commission. doctor, hoped designated 6.62(j). inject into the who more a doctor likely objective than the doctors chosen any jury is allowed choose one of companies. the insurance the workers or impairment ratings made either before Glasgow: Again, Senator the commission the court before trying to What we’re do GLASGOW: change case of a substantial of condition. get controversy we’re under out of this stage judicial This that at the in the indicates injured employee, law current where process impairment rating review when doctor, in- lawyer, gets his through chosen, weight presumptive given doctor, company gets a the insur- surance designated longer applies.14 doctor malingering, company says guy this ance jury may ratings already choose him, wrong go he nothing can there’s adduced. in- work tomorrow. And the back to Thus, injured worker’s doctor and his presumption of the correctness sured — totally perma- report lawyer’s saying guy’s designated can be re- doctor’s go to great weight nently and can’t ever work butted of other medical disabled understanding: part legislature's of the record to trier was also the mitted This standpoint giving you appeal But Once in the fact.... MCFARLAND: admissible, court, level, then, judicial the commission’s record is appeal review designat- presumption but [in favor of level, a, quote, continuing presumption to that. ed terminates in absence sub- doctor] understanding my not the case. that is It's change pre- stantial sumption of condition no further understanding been that has shared That is given physician designated to the Smith, Glasgow by Representative Senator and presumption And even if the there. Senator Montford. physician evidentiary designated from an Senate, 1 on the Floor of Debate on Tex.S.B. standpoint on substantial 12, (Dec. 1989) C.S., Tape Leg., 2d 3 at 13 71st exists, change that’s of condition (transcript Staff Services available from Senate made, law. Once that determination trier of Office). carried to the trier of fact. that’s not suggesting What we’re here MCFARLAND: designated physician's findings are ad- is the

again.... simply trying say presump- So what we’re conflicted. cannot that the We get dueling reliability do is out from under this doc- tion of the conclusions of the doctor, concept.... trying non-aligned by excluding tor We’re to find an fac- other independent pay- qualifica- doctor that’s not on tors such as the doctor’s medical tions, familiarity company, roll of the insurance his or her with the worker’s on the condition, payroll lawyer injured for the and the nature extent of the work- examination, er, objective.... operates “purely arbitrary” in a and he can be somewhat manner. Debate on Tex.S.B. 1 on the Floor of the (Dee. Senate, C.S., Leg., Tape 71st 2d at 19 designated We conclude that the Act’s doc- 1989) 12, (transcript available from Senate provision tor does not violate the due course Office).

Staff Services law, equal protection, jury or the trial Usery, proved provisions In the fact was a miner of our constitution. years’ employment

with ten in the mines has pneumoconiosis; presumed Opt fact was that D. Out Provision the miner contacted the disease from his The trial court concluded employment. The rational relation between employees Act “does not authorize of em supported by agreement these facts was ployers who are subscribers of workers com pneumoconiosis by of all is caused 1, pensation January insurance on 1991 to dust, breathing coal and that the likelihood of rights elect to retain their law common but developing upon miner’s the disease rested employees does allow hired on or after Janu both the concentration of dust the miner has 1,1991 ary right pursuant to exercise that exposed exposure been to and the duration of Section 3.08 of Act violation of’ the 28, to the dust. 428 U.S. at 96 S.Ct. at 2898. equal protection provision of the Texas Con by supported was also the fact that Con- stitution. gress had before it medical evidence indicat- arguments against finding this ing pneumoconio- the noticeable incidence of (1) equal protec- twofold: it is not denial of years’ employ- sis in cases of miners with ten employees quit jobs in tion to force 29, ment in the at at mines. Id. 96 S.Ct. opt order to out of the created facts, light 2898. In of these held: Court (2) Act; employees hired before the ef- Congress surely entitled to select du- already fective date of the Act have had their employment, ration of exclusion opportunity opt out of the workers’ com- degree exposure of dust and other pensation system.15 factors, signaling point relevant support argument, amici cite operator

which the come first must forward Co., Light pneumoconio- with evidence of the Middleton v. Texas Power & cause of death, (1919), sis or as the U.S. 39 S.Ct. 63 L.Ed. 527 ease be. We certainly say point. which is not in In that case the presumptions, cannot factors, Supreme equal protec- by excluding oper- other Court addressed relevant argument employers tion em- “purely arbitrary” in a vis-a-vis ate manner. ployees, rather than between different 29-30, Id. at 96 S.Ct. at 2899. employees. classes of The fundamental dif- Act, “proved” In the the fact is that the employers employees ferences between designated doctor reached medical conclu- application the court have no stressed regarding injured sions worker. The case where our concern cate- is different presumed fact is that those conclusions are gories of workers. reliable, or at least more reliable than those employed prior parties. of the doctors hired Amici insist that workers jobs opinion change wanted to have the of a to 1991 “retain the election,” aligned party thereby doctor not with either cases secure a new and that the testimony parties where the difference the classifications is medical between R.S., 16.01, 28, 1917, C.S., Leg., Leg., § ch. 2d ch. 1989 Tex.Gen.Laws 15. See Act of Mar. 35th 3a, 269, 270-71, § 3a). 1917 Tex.Gen.Laws re- (formerly art. 8306 Act, by Compensation pealed Texas Workers' 71st may opt out system, employees if new merely required to make the former the method cynical suggestion to con- is no rational basis system, This fails the new there election. of have, through employees con- hired denying right that most workers to sider for that present em- employment tinued with their date. the Act’s effective before pay acquired seniority, promotions, ployers, pre-1991 presumption that workers The increases, in- greater responsibilities, and advantageous the Act as as will find the retirement, vacation, insurance, creased overbroad, overinclusive, un- former one is quit jobs benefits. Workers who their other reasonable, irre- presumption and creates a opt compensation out the new to workers’ by any resignation. action buttable short system would lose these valuable benefits. equal protection provision violates the This suggestion that also fails to consider provisions and due course of our constitution. may very to many workers find it difficult job employment equivalent new secure Jury by Trial leave, E. they must even in the best economic workers, result is that most to climates. The that The trial court found a trial difficulties, be avoid these losses and will compensability relating eligibility issues system to the new while forced submit of income or death for or the amount benefits recently may employed colleagues their more by appeals limited to issues decided simple a election. extricate themselves with except extraordi panel; that under certain mockery equal protection to It makes a circumstances, nary on these issues evidence suggest employed worker on that a who presented at the is limited to that adminis only opt December 1990 can out of level; adopt trative that fact finder must by job, quitting or her his while rating previously under made 1,1991 person January can exercise hired Guides; respect to de that with certain right by a mere election. terminations, findings designated of the by the Act is not classification created correct; presumed are that historical doctor rationally purpose Act’s related traditionally been consid factors have providing greater benefits to workers. The juries by ered workers’ by “rational basis” defendants asserted education, cases, training, age, such as prior employed is that the workers to 1991 may by be the fact finder considered already opt had a chance to out of the disability determining eligibility or the system; once former within workers’ awarded; to be that some amount benefits compensation system, they have vested by preponderance issues determined right present See the continuance laws. by evi the evidence and some substantial Middleton, not a 185 S.W. at 560. This is dence; may injured com workers treating groups reason two different- repetitive before pelled engage lawsuits ly. dealing merely We are not with claim; obtaining single injury of a resolution prior amendment of the law. As we have percent and that 80 to 90 of cases were already seen, parties proclaim, and as all going Act without settled under the former very Act different from the old one. new findings, court to trial. Based on these Changes by have been described defendants judicial pro concluded that the Act’s review “sweeping.” stated that the as Defendants deny injured their visions workers traditional system. legislature has “overhauled” old jury trial. right to fact, legislature repealed the former right jury is in the to trial secured may many entirety. inAct There right “The to trial Texas Constitution. former workers who were satisfied jury Legislature inviolate. The shall remain system, this Act and con- but who examine pass laws be needed shall such rights are better clude their served same, regulate purity and to maintain its employees pre-1991 common law. Yet I, § 15. efficiency.” art. opportunity opt out of have never had Tex.Const. Republic and “All the system, quitting jobs. constitutions short of preserved right of Texas have true that do not State While those workers by jury, language.” in the Cock- trial same have vested the continuation 94 Cox, (1886). trial,” many so issues from the

rill v. 65 Tex. 672 This but withdraw right by jury in provision protects jury’s to trial determination that the shell or jury have been jury those cases where would The form of a trial remains. law, right proper at common or where that jury trial in created in such a case would be a existed at the time the Constitution was only. question this Act name The is whether adopted in 1876. State v. Credit Bureau point. has reached (Tex.1975). Laredo, Inc., 291 by by jury, A as described the su- trial jury provision There is a second trial found preme court: judiciary in the article of our constitution. something hearing than a be- means more in In the trial of all causes the District in fore a commission.... With us civil shall, Courts, plaintiff or defendant orderly it a due and trial cases means court, upon application open in made statutory [persons], before the number of right by jury; jury of trial but shall service, jury properly qualified for such empaneled in be civil case unless de- jurisdiction impartial, residing within the case, jury party manded to the and a court, according and selected of the drawn paid by party demanding jury, fee be statute, duly impaneled under the di- sum, exceptions for such and with such jurisdiction, competent rection of court of Legislature. may prescribed impartial verdict and sworn to render an V, provisions § art. 10. The two Tex.Const. evidence, according to the law and the Bureau, meaning. are not identical in Credit hearing presence in and under to be Judiciary at 292. The Article duly supervision of a court authorized provision than that found in the is broader evidence, empowered to rule on the Rights. Bill Id. It is not limited to those and, except justices in courts of right jury of action trial causes where case, peace, charge on the law of the applies in to the trial of existed but if, and to set aside the verdict in the except adversary proceed- “all causes” those court, opinion contrary to the it is ings that have been determined for some law and evidence. jury special reason to be unsuitable for trial. White, 196 S.W. at 511-12. Former Chief Id. at 292-93. jurors’ qualifications Pope adds that Justice injured question is no here that There jurors challenged by litigants; jury right in 1876 had the to a trial workers investigators; are not witnesses or evidence injuries. litigant A on their suits based court; presented open before them by jury, “entitled to a trial in the consti- full rather than the function is to decide the facts sense, practice prevailed in if that tutional law, sphere, in that their function is laws, state, according existing at to then judge; independent of the deliberate adoption present of ... our the time of the open private; and their verdict is returned White, state of 1876.” White v. Constitution Pope, Jury, The 39 Texas court. Jack (1917) (em- 570, 196 108 Tex. S.W. (1961). L.Rev. added). Bureau, 530 phasis See also Credit jury right trial means court also said: S.W.2d at 291. The White of fact is ultimate determination of issues right prior “In existed cases where the jury proper guidance to be under Constitution, denied, it cannot be and this right and direction of the court.... arising applies to eases of a similar character jury party each preserved trial is when subsequently to the under statutes enacted present to a opportunity fair has one at adoption of the Constitution.” 196 S.W. he claims to jury the evidence on which of fact. raise issue mandate is that “the The constitutional (1969). § Jury “The by jury inviolate.” 47 Am.JuR. right of trial shall remain 2d to all issues of fact civil actions pass laws to extends is directed law, involve the it, purity at least where such issues maintain its regulate “and to Jury the case.” 47 Am.Jur. legisla- merits of efficiency.” It is conceivable 2d “jury system called a ture could create a diligence with reasonable right jury

The to a trial remains been discovered result, likely produce a cases, different and that will though in even in inviolate civil denied qualification that medical further instance, with the right court of if the to the first the doctors whose must come from evidence appeal jury appeal and a trial on are secured. opinion presented to the testimony or was Business, at Ass’n Texas of commission. Cockrill, 674; 19; Tex. n. at Swinford Logue, (Tex.Civ.App.— S.W.2d refers to is- “Compensability” presumably 1958, orig. proceeding). Middleton Waco any recov- deny the worker sues that would held the former workers’ ery, worker was within such as: whether the right by jury impair the to trial act did injured, employment when scope the of appeals the allowed of the Indus because act intoxicated or en- the worker was whether gaged horseplay, injury trial Accident Board’s decisions courts the arose in whether of jury dispute, a trial of the matters of or God the intentional act “where out an act or 3.01, §§ Act, 3.02. party, a and so on. See the in the third under law as embodied by proof Thus, The of for these issues is burden had.” at access be 185 S.W. 561-62. of All other preponderance the evidence. jury disputed the of fact at to a trial of issues issues to be reviewed under the substan- are required stage proceeding to some of the is tial rule. evidence Cockrill, satisfy the constitution. See Tex. (at stage proceeding at 673-74 some a course, impairment and Of the amount of facts).

jury pass upon must allowed to be directly tied supplemental income benefits is recently supreme has indicated Our court impairment rating. Only a to the worker’s that the trial must be de novo. “Even if the jury concerning trial is limited available jury a right to is denied before an adminis get a impairment. In order to extent of dispositive agency, question trative is higher impairment rating, the worker has to correspond whether a trial de novo and the change of To show a substantial condition. ing right jury constitutionally to trial is evi- do this the worker must medical upon judicial required agency’s change review the of dence a substantial condition of of Business, opin- Ass’n decision.” Texas 852 from the same doctor or doctors whose added). (emphasis ion the commission. This presented at 450 n. 19 was new or evidence must either evidence provided A limited trial de novo is on the discoverable earlier evidence that in- compensability, eligibility issues of for find diligence. judge The has to with due benefits, or come death and the amount produce a different this evidence would a pure income or death benefits. It is not result if it were admitted at trial. If sub- trial de novo. Judicial review is limited to disputed, change stantial of condition is by panel appeals issues decided designated judge require the doctor must judicial sought, the on which review is court verify there does exist substantial jury appeals panel’s inform must change designated condition. The doctor’s decision, is admissi- the commission’s record findings presumed correct.16 If the des- evidence, fact finder is limited ble change ignated to a substantial doctor admits impairment the evidence extent condition, by recog- it must verifiable except presented to the commission cases tests, signs laboratory diagnostic nized judge finds a substantial where trial The by physical examination. confirmable condition, change of and the fact finder must change finding of condition of substantial by rating given decide, one of impairment jury. choose an judge for the not the issue must, appeared met, the commis- judge the doctors who before If all hurdles are these telling jury limited is a sion. evidence also without there substantial condition, hearing change question change of condition submit substantial jury not make an inde- jury. not have does new evidence or evidence that could change There is no at the commission are unavailable. 16. It is unclear how substantial condi- provision designated the Act the use of evidence proven if the doctor or tion is to be findings presented physicians. were other the other doctors whose right action deter- pendent decision—its function is to to have their cause of impairment ratings jury jury trial adopt peers one of the made mined of their —a opinion previously been a doctor whose in the full This constitutional sense. constitution; inviolate; presented to commission. it is secured our adulterated, purity may or its not be procedure trial outlined above pursuit efficiency compromised. In its the extent of does not afford rates, legislature has lower insurance injured right jury trial “in workers the to a constitutionally-mandated duty neglected its White, the full constitutional sense.” See purity efficiency of the preserve and jury’s at 512. It is the S.W. role —not jury trial Texas. judge’s, determine not the commission’s—to addition, jury In are the facts. the court and provisions that the Act’s re- We conclude required adopt one of the Guides, percent garding the use of the the 15 ratings section 4.26 or section made under threshold, judicial and its scheme of review 6.62, thereby foreclosing any independent re- I, V, article section 15 and article violate testimony foreclosing view of the medical section 10 of our constitution. any respect consideration of evidence with disability, the true nature of the worker’s Hybrid F. Judicial Review earning capacity, or future loss of loss of jury Closely trial related effectively earnings. The Guides control hybrid judicial re question is the issue of review, case from start to finish. Judicial Act view. The trial court concluded that the jury, depart cannot whether court or powers separation violate the does not impairment ratings developed that were provision the Texas Constitution proceeding pursuant in the administrative or 1) II, by creating hybrid § (Tex.Const. art. change finding. to a substantial of condition judicial Plaintiffs chal review. issues, jury such as extent of Traditional finding point. cross lenge this their first injury, employment, future likelihood of eligibility compensability, The issues earnings future loss of cannot be considered and the amount of income or death benefits judicial process. in the review There is thus evi- preponderance are tried under a application escape no from the mechanical 6.62(c). § All “other” is- dence standard. percent arbitrary the Guides and subject to review under the substan- sues are threshold. 6.64(b). tial evidence test. jury requirement The Act’s that the must Hybrid impermissible. review is South predetermined impairment select between Comm’n, Bell Tel. v. Public western Co. Util. arbitrary presumptive ratings, effect (Tex.1978); Southern 571 S.W.2d threshold, repu- percent the 15 and the Act’s Eng’rs, Canal Co. v. State Board Water disability historical considerations diation of (1958); 159 Tex. 318 S.W.2d Guides, any reliance on the eliminate Assocs., Dickerson-Seely Inc. v. Texas & effectively meaningful jury for the role Comm’n, Employment 784 S.W.2d deny jury trial in the full constitu- workers a writ). (TexApp. dis right at the time tional as that existed sense — Austin hybrid review is pute in this case is whether adoption. of the constitution’s impermissible required statute when appropriate to reiterate that in ex- It is single only when the review of a case Act, given up change for the workers have required single in the review of a issue within right redress at com- to seek economic distinguish the above a case. Defendants injuries while on the mon law for suffered they prohibit by arguing that three cases job. again appropriate It is also to observe only when standards hybrid review different unique in compensation is that workers applied the same issue with of review are only program in social insurance in a case. of val- which workers surrendered telephone rate Bell was a exchange National Com- Southwestern ue in for benefits. Utility Regu- appealed the Public law in- case under Report at 37. At common mission Act, latory provided for de novo review enjoyed which jured the constitutional workers applying the two standards otherwise tion of of one issue—confiscation—and two; ap- to be review. issue or were provided for substantial evidence isolated brought to review together court in “all suits plied 506. The held decisions, orders, kind generally specify regulations, .. rules Board_” judicial at 621. long review so as con- Id. and nature acts other requirements safeguards and stitutional re- Dickerson-Seely the identical reached They transgressed transgressed. were Employment the Texas case sult. case, however, by requirement in this were persons that certain ruled Commission part judicial of an that some review Dickerson-Seely’s employees, and therefore by the decision be determined administrative Dickerson-Seely pay unemploy- ordered preponderance of the evidence another contributions, inter- plus ment part by substantial evidence. Id. at penalties, for them. Dickerson-See- est and preponderance test is The of evidence in were ly argued persons question fact-finding ordinarily a test and a feature contri- independent contractors for whom no trial de evi- of a novo. substantial paid Dickerson-Seely were butions owed. test is the determination of a dence one for protest and assessed contributions under question. The latter test a feature law That appealed the case to the district court. of a trial determine reasonableness held that the Commission’s decision court only agency of a order or decision where and supported by substantial evidence and questions of law are to be determined sought. appeal to the all relief On denied by judge a retrial of the fact issues a or appeals, Dickerson-Seely agreed court of jury The courts con- is avoided. cannot by judicial of review was that manner trial, types hybrid duct both of even a novo, argued that because trial de but type trial of in the same suit. gave power the Commission the added). (emphasis supreme court Id. applicant’s employment sta- to determine an held that the mixture of standards was “so discretion, decision that issue tus its conflicting impos- inharmonious to be must be reviewed the substantial evidence types of execution. The two trial are sible of at of 575. The court standard. diametrically opposed to each Id. at other.” rejected it appeals argument because opinion 512. At least four in the times types have it two of review would combine emphasized types the two trial court of proceeding. Id. at 576. the same permitted Id. are not in the same lawsuit. (1) would a factual determina- This entail facts, holding, at 511-12. Neither the preponderance from a of the evidence tion language support nor the of the statute de- (2) one, except a at trial as to all issues but argument held fendants’ statute was legal determination of substantial evidence required only unenforceable because it support agency’s as to decision confiscation issue to be tried under two inter- It is question employment status.... nally contradictory methods of review. court a well-settled that a cannot conduct supreme court Bell Southwestern preponderance in which of the trial both un- relied on Southern Canal. The statute review evidence a substantial evidence consideration in set out der Southern Canal are utilized. judicial type applied review to be Engi- The court held that the fact finder was orders of State Board Water Id. question employment The court found the unconsti- to determine the neers. statute fact, status, attempted prepon- like all because it to mix the at- issues tutional trial presented in the of both trial de novo substantial derance evidence tributes Thus, with the court found fault in the same lawsuit. court. Id. evidence “Now, argument, obviously, Dickerson-Seely’s cannot not because 623-24. courts trial, hybrid require of em- types a review the issue conduct both even would standards, trial, be- ployment status both but type of in the same suit. The two require employment diametrically opposed Id. at it would review of to each other.” cause added). issues ques- by one and all other (emphasis There was no status standard history Legislative shows that under ’proceed- the same level. the other standard in Act, only per- of one the former three-tenths ing. compensation claims of all workers’ cent hold that the Act creates unconsti- We jury. actually tried to a House Com- were hybrid system of review. tutional Compensa- mittee the Whole on Workers’ hybrid urge that if we find the Defendants tion, Leg., 1st 23-24 Tex.H.B. 71st C.S. unconstitutional, apply we of review 10, 1989); (Apr. on Workers’ Subcommittee severability only void the Act’s clause to Leg., Compensation, 71st 1st C.S. Tex.S.B. calling novo re- part of section 6.62 for de 11,1989). Figures at trial (Apr. introduced This we decline to do for the reasons view. percentage. Evidence suggest an even lower of the sever- set out below our discussion 500,000 approximately claims showed ability issue. one year, only or one-tenth of filed jury also percent, trial. Evidence went Attorney’s Fees and Involvement G. percent to 14 of costs indicated that of the 13 recurring themes of the One fees, attorney’s percent five related to legislative debate was that “friction” costs attorneys. Floor debates went to claimants’ much high and that there was too were too purporting to and evidence offered at trial attorney controversy involvement in the lawyers that claimants without demonstrate complained system. Legislators time received similar as those money going, again large amount of suggest the ease with which representation workers, injured but rather not to the participate could unrepresented an worker attorneys. system. the former perspective, put complaints into by To these adjudication system created briefly adjudication sys- reviewed, Act, will examine previously we is which we have disputed Act. A claim tem under the former to that of the former Act’s. stark contrast pre-hearing for a conference. nothing pertina- was scheduled than the Act’s more Given Guides, Pre-hearing were informal medi- complex conferences cious reliance on commission, at 15 to 20 minute intervals. ations scheduled process hearings before the “to purpose of these conferences was myriad possibilities of waiver of vital and the attempt adjust the claim amica- process, and settle the aver- step in that issues at each 13, 1977, May Leg., medicine, bly. worker, ...” Act of 65th age untrained law R.S., 292,1977 repealed by labyrinth ch. Gen.Laws to enter the well-advised Act, Compensation 71st attorney. accompanied by Texas Workers’ C.S., 16.01, § Tex.Gen. Leg., 2d ch. written, Act, discourages as yet And 10(b)). (formerly art. Laws in- attorneys representing participation of workers, pre- discourage jured not resolved at a while it does not If the claim was conference, by attorneys representing car- hearing an award was entered representation All court found employers. Board. issues The trial the Industrial Accident riers and award, Act, including respect, com- violated the by the this were addressed jury, by trial guarantees for loss of pensability, entitlement benefits constitutional courts, reasonable- course of law. wage earning capacity, open and the and due necessity medical care. Either ness and only limited benefits. provides The Act award, and appeal the Board’s party could majority injured workers will never all issues. to a trial de novo on was entitled necessary to percent threshold reach the 15 Attorneys rep- incredibly trigger longer-term benefits. system was ef- Statistically, the percent limited to 25 resenting workers are resolving claims. ficient and successful by time and ex- recovery, capped percent to 90 The trial court found that 80 low, recovery the 25 penses.17 When administrative resolved at the claims were attorney's necessary fees in- reasonable and disputes determi- If the carrier a commission by of the carrier’s supplemental the worker as result curred the worker is entitled to nation that subject the 25 dispute. are not These fees those benefits or the amount of income benefits cap percent of section 4.09. prevails, the carrier is liable for and the worker recovery are paid, regardless example As we percent will limit the amount example talking provided about we set out an performed, has of how much work been or 32-year-old la- plaintiffs. trial A many system navi- how times has been grade borer a 10th education recovery, gated.18 there is there is When no earning years per two worked the last $5 recovery fee. there is When sufficient disc, hour. He suffers herniated lumbar justify representation, be diluted undergoes laminectomy one-level and discec- expense cap, either time successful, tomy, reasonably but is which is through required trips system number of range left loss of of motion with some recovery. to obtain symptoms. reaches maximum radicular He Employers and not so limited. carriers are year and re- improvement medical after one attorneys paid Their will be based on the impairment rating percent. of 13 ceives an large regardless hours worked of how employment, part-time He work- returns recovery, regardless hour, per ing small whether a week two hours for $3.85 lose, regardless many years injury. win or how recov- after the date of the His ery trips through taken. calculated follows: Temporary income benefits: = = First 26 75% weeks of $200 $150. = 3,900.00 x 26 weeks $150 $ = = Second 26 weeks 70% of $200 $140. = 3,640.00 x 26 weeks $140 Impairment income benefits: = x 3 weeks 39 weeks. = x 39 weeks 5.460.00 $140 $13,000.00 TOTAL RECOVERY attorney attorneys practice in The maximum fee for this case is Several who the They compensation field testified. attorney’s must cover workers’ That the time $3250. agreed attorney’s pro- all that the Act’s fees expenses taking for and the case from the longer economically it no feasi- visions made judicial through benefit review conference compensa- ble for them to handle workers’ ap- review. It also assumes commission the They tion also testified that col- cases. proves light amount as that reasonable of spoken leagues they had with were of the 4.09(c). the factors set out at section Under opinion. same Act, the former the worker would entitled temporary disability per to total at enough say, $153.85 It to defendants partial for and permanent prevent week 104 weeks argue, the Act does not a work- that disability per at hiring attorney. benefits week for er from an It is true that it $102.51 weeks, $46,445.87. recovery by reducing a the amount attor- for total does not. But persevered through to 18. Even a worker has conference to contest the worker's entitlement supplemental dispute process and income benefits entire resolution has ob- the amount of Thus, 4.28(1). satisfactory impairment rating process § quarter. a and each be- tained fits, bene- process gins again. beginning. It he must be that this From was estimat- or she aware disagreeable begin again particularly ed at a carrier can all over at each three-month trial that receiving supplemental potentially to interval. can contest a worker's entitlement Workers bene- finally every run required are file carrier 27 times before those benefits fits to with the benefits (1) average recovery quar- quarter report stating they earning a are out. If the worker’s each that dollars, average weekly wage only couple it percent ter is a thousand less than 80 (2) attorney impairment; certainly a to take as a direct result of the disincentive earned; (3) worker, again, through process. wages actually again amount that and good though prevailing sought jobs faith Even worker's reasonable have in commensu- 4.28(k). paid by ability necessary attorney's § to and carrier, fees will be rate their work. A attorney who will disputing carrier on this for a worker loses worker’s statements quarterly may request nothing. report a benefit review receive neys arbitrary and only in fees below amount We hold that it is irration- can collect that effort, attorney’s justifying discourage legal representation time and al to discourages attorney participation nothing prohibit doing on behalf one side to while injured obtaining representation. workers. other side from point pro- Defendants ombudsman found, be, accept- an as the court gram, arguing that it serves those to assist injured goal able an to maximize worker’s represented by attorney. workers not portion recovery and to minimize the suggest They §See also that the bene- 6.41. attorney’s portion. worker’s What the Act duty fit parties officer’s to advise all review however, accomplished, strip injured is to rights responsibilities provides their representation. workers of This can needed adequate guidance unrepresented to an majority of have no result in the cases other 6.13(a)(2). sug- worker. See There is no than to reduce or even eliminate workers’ gestion in the Act that ombudsman can recovery. provide any any hearing, such assistance par- could have denied all requirement and there is no that the om- ties access counsel. It could created attorney. even be an we are budsman While simple, system informal where commis- certain that most benefit officers will review unrepresented par- sion mediates between duty take provide information to all reality, up playing ties. it set field parties seriously, officer in a also sits requires effectively and then representation judicial capacity parties’ must review the only. primary A pur- denies it to workers impartially. poor These contentions sub- pose provide more Act is to benefits representation pro- for the zealous stitutes to view workers. It strains reason such a attorney, especial- own vided the worker’s system and it will effectuate conclude ly opposed through- the worker will be when purpose. enacted is not process by out a carrier possibly rationally statutory purpose related to attorneys. employer and their increased conclude that it vio- benefits. We argued Even if it could be that this advice provision equal protection lates the of our adequate provide will workers with informa- Further, system is arbi- constitution. interests, represent tion their own it must attorney trary discouragement rep- in its require money that such cases realized only, resentation to one side means injured If re- up. work workers are problem delivering used to redress the quired buy any reports, medical where will injured greater benefits to workers is not they get money to do so? If workers reasonably accomplish necessary to that ob- case, investigate the will the need to where attorney compensation ject. of they will to money come from? How be able due course law therefore also violates the they to, talk If want exam- to witnesses? for provision of constitution. ple, or not a im- question whether doctor’s correct, pairment rating where will Impairment H. of Contracts get money in order to talk doctor of the Act provision found to with him? How will have a conference impairment provi violate of contracts to up money pay for come to workers That section sion is section 4.06. was also depositions experts? or While it is true that law provi found to the due course of violate a benefit review officer release benefits sions. order, interlocutory to in an the worker 6.15(e), § likely that these funds will be it is I, 16 of our consti Article section injured up meeting used worker’s liv- attainder, provides tution that bill ex “[n]o expenses. ing, litigation, rather than law, law, post any facto or law retroactive contracts, impairing obligation of shall be argue that is no

Defendants also there against is directed attorney prohibition an in a civil made.” The right constitutional to obligation of injured impairment contracts proceeding. not hold of the We do that an itself; any that rather than the contract law a constitutional to an attor- worker has perform part obligation to ney compensation releases of the proceeding. in a workers’ impair undertaking, does not violate the the contractual or that to Section 4.06 4.06(d) provision. ment of change, contracts Section amounts a material or mo extent to provides any payments made do not that it; State, impairs difies it. Cardenas any other payment affect the of benefits from 128, (Tex.App. Antonio S.W.2d — San source, agree including bargaining collective 1984, writ); I, art. inter TexConst. involving ments the one Local such as prohibition, pretive commentary. The how Moreover, interpretation of section some ever, absolute, yield is not and must to a 4.06 to affect a worker’s contract were found subsequent police power. valid exercise of agree rights bargaining a collective under State, Ass’n v. Texas State Teachers ment, there is no violation (Tex.App. writ — Austin provision because the enactment contracts n.r.e.). refd valid compensation of a statute is a workers’ plaintiffs, One of the union Local Mfg. police power. exercise of the See Grove bargaining effect a collective contract Co., v.Co. Cardinal Constr. contemplates employer partially will (Tex.Civ.App. Dist.] [14th — Houston injured compensation supplement n.r.e.). workers’ 1976, writ refd earnings. to benefits cushion their loss Nor 4.06 the due does section violate provision agreement, 17.0 of that Under provisions. course of Plaintiffs have not law agrees injured employer pay to to an worker cognizable shown that a common law cause receiving worker’s benefits action has been restricted that section 4.06 compensa- “the difference between worker’s arbitrary operates unjust manner. an (%rds) tion benefits and two-thirds employee’s salary” up weekly to a maximum Wage I. and Seasonal Low Workers per week for a maximum six $200 The court found that the Act creates a Act, months. Section 4.06 of the as found employees earning classification less between court, operates penalize employ- the trial “to earning than hour and those above per $8.50 employer, by ees whose contract or other- found the Act that amount. It also wise, provides wage programs or benefit weekly average wage for sea- calculates the supplement the Act.” benefits under in a sonal workers different manner than workers, and this method non-seasonal purpose of section 4.06 is allow will reduce calculation the benefits employer begin payments, including medi- which workers are entitled. The seasonal benefits, injured cal worker before court that the Act unrea- concluded creates compensation carrier has determined com- sonable classifications between workers earn- pensability. employer, also allows the ing more do per hour or and those who $8.50 agreement request with the or at the written not, and seasonal and non-seasonal between employee, supplement income bene- Nevertheless, workers. concluded court paid by any fits the carrier amount that computing bene- Act’s methods does exceed the difference between the earning per fits for under hour workers $8.50 payments level of income benefit and the and for workers do not violate the seasonal employee’s preinjury pay. net If ad- these point, In their constitution. second cross made, employer are vances must be re- plaintiffs challenge this argument, without injury by if the imbursed the carrier is found equal protection grounds. conclusion on compensable to be and the carrier initiates compensation. carrier must im- Act, reduce all benefits Under income pairment payments income benefit to payable percentage are at some of the work any (“AWW”). employee equal employ- amount to weekly wage A average er’s payments are not according er made that reimbursed is calculated worker’s AWW reimbursable, calculating and remit amount The formula for section 4.10. employer. employer An reduction workers is AWW seasonal different notify calculating not non that does the commission of the the formula for the AWW injury compliance with the Act waives seasonal for non-sea workers. AWW workers, including part- sonal both full- and reimbursement. to seasonal are no workers similar time, wages paid in the there equals the sum of the pattern could be injury employment immediately preceding the workers whose 13 weeks unanticipated yardstick to cover employee If the has worked used as divided employment during the 13-week immediately preced- breaks in than the 13 weeks fewer simi- measuring period because workers injury, wage if at the time of ing the have a would also or cannot be lar to seasonal workers injury has not been fixed are distinc- determined, pattern. These equals “the usual seasonal work the AWW of sea- calling a different treatment employer pays a similar em- tions wage that an 4.10(b). workers. § workers and non-seasonal services.” sonal ployee for similar adjusts sea- workers calculation The seasonal employee,19 a seasonal If the worker is accurately wages to more workers’ sonal however, temporary income the worker’s the course average wages over measure calculated based on a 13-week benefits are year. of a work “adjusted as often as neces- period, but are employee could sary wages the to reflect the ignored the erratic If the had during earn reasonably expected and based pattern workers work of seasonal are period temporary income benefits wages earned of those workers on the AWW 4.10(d). purposes § of determin- paid.” For they working, were during the weeks when benefits, ing or death other income benefits employment dur- ignoring their lack of while comput- of the seasonal worker the AWW off-season, placed sea- it would have ing the wages “by dividing the amount of the total ed position in a better income sonal workers employee during the by the earned they in had they than would have been injury by immediately preceding the months injured. Conversely, if seasonal work- been If determines this 50.” Id. the commission wage to the same 13-week ers were limited “the commission computation impractical, workers, many sea- period non-seasonal the time of the compute the AWW as of shall placed in a worse workers would be sonal just fair and injury in a manner that is employment during lack of position due to parties.” Id. both immediately any portion the 13 weeks injury. preceding the part-time and full-time respect With workers, permits to be the Act their benefits equal Accordingly, is no denial of there wages for the average of their based on of benefits for protection in the calculation injury. respect With preceding 13 weeks because non-seasonal workers seasonal and workers, measuring period is to seasonal similarly the two kinds of workers prior during the 12 months wages earned were, situated, is a there or even injury. distinction is rational This differently. treating them basis for rational a clear difference it is based on because and non- patterns between seasonal work Act makes a distinction also unexpected work Barring workers. seasonal temporary income benefits calculation of workers would interruptions, non-seasonal less than workers who earn $8.50 between year but for the entire have worked § more. 4.23. per and those who earn hour interruption in em- injury. unexpected If an per or more are earning hour $8.50 Workers during the 13 week occur ployment should temporary income benefits receive entitled to provid- legislature has measuring period, the percent of the difference at the rate of 70 bridged interruption can be ed that the and the worker’s the worker’s AWW between render- wages of a similar worker using the 4.23(c). injury. weekly earnings after the ing similar services. the maximum may not exceed These benefits 4.11, section weekly under contrast, benefit allowed would By seasonal workers per this suit was $426 at the time of if there were which year the full even have worked minimum may they fall below the Nor interruptions week. injury unexpected if no 4.12. Furthermore, provided under section weekly benefit occurred. patterns in work who, year.” throughout employee not continue does employee” is "an A "seasonal conduct, 4.10(d). employee's regular § course of as engages cyclical employment that in seasonal says you make more cannot percent, and earning per than hour are less $8.50 Workers you compensation than money on workers’ temporary benefits for to income entitled working. you making were injury rate of were while after the at the first 26 weeks of the difference between percent Floor of the 1 on the on Tex.S.B. Debate weekly and the worker’s worker’s AWW (Dee. C.S., Senate, Tape 1 at 14 Leg., 2d 71st injury. higher- earnings As with after 1989) (transcript available Senate workers, may not exceed this amount income added). Office) (emphasis Services Staff than weekly benefit or be less the maximum weekly the minimum benefit. are not higher-income workers The reason limiting to subject cap their benefits to a other distinction between There is one year is earnings previous for the actual their higher-income work- of lower- and treatment likely are more higher-income workers cap ceiling Act contains a second ers. The by weekly limited benefits to have applica- that is temporary income benefits on per than statutory cap of week overall $426 In addi- lower-income workers. ble to Because of the over- lower-income workers. week, cap per the Act tion $426 statutory cap, higher-income workers all received work- provides that the benefits wages actual to work- likely prefer more to “may per than hour earning ers less $8.50 Higher paid compensation benefits. ers’ percent employee’s not exceed 100 likely return therefore more workers are previous year.” earnings actual is little or no economic to work because there 4.23(d). stay at home. benefit statutory There is a rational basis for the earning more distinction between workers contrast, impossible By it would be almost earning less per than hour and those $8.50 hour, earning only per for workers $5 The distinction is based than that amount. enough hours to ever reach example, to work finding approximately 40 legislative per week. The statutory cap of $426 make percent of lower-income workers would pre- statutory cap is therefore ineffective money compensation in workers’ bene- more exceeding wages for low- vent benefits from if they wages would earn in fits than Consequently, a second workers. er-income cap placed were not on their bene- additional prevent in order to benefits cap was needed Glasgow As stated: fits. Senator exceeding ac- workers from for lower-income per- treated cap income workers Texas are of 100 wages. Low tual This additional just exactly everybody fig- years’s wages like else. We is a ration- previous cent weekly wage just exactly average avoiding might ure their otherwise al method for what They’re everybody statutory else. not treated for lower- like disincentive have been comes, any differently.... disparity to return to work. income workers bad, cap it looks because the Thus, equal protection there is no denial of increased_ I don’t think it’s unreason- for workers in the calculation of benefits So to treat them little different. able those per than hour and earning more $8.50 cut of the aver- what we did is raise their earning less. seventy per- age weekly wage from ... cent, ... seventy-five percent. And that, put a we what we did addition VI. SEVERABILITY percent it. cap of one hundred on What provides: the Act 17.17 of Section that, you looking at don’t we found workers, applica- of this Act or its any provision If cap income

put a on those low held any person or circumstance is get tion to forty percent them on workers’ about invalid, invalidity affect other does not they make compensation benefits applications of this Act provisions or money compensation more on workers’ invalid given effect without the can be working. do And so than benefits this end application, and to provision or people to do is receive what we want those benefit, provisions of this Act are declared but a fair workers’ severable. cap is a hundred capped it. And the we Act, Compensation given the analysis Texas 71st our Workers’ C.S., 17.17, Leg., § Act, 2d ch. 1989 Tex.Gen. by the it doubtful that established is 1, 122. Laws guidelines replacing the Guides with similar salvage not would section 4.24. An entire statute should be declared unconstitutional: defendants, review, regard hybrid With in provisions unless all the are connected relying on Southwestern Bell Southern other, subject-matter, dependent on each Canal, urge us to strike Act’s de novo the operating together purpose, for the same provision thereby review review sanction in meaning or otherwise so connected that all issues under the substantial evidence presumed legislature it cannot the only hybrid test. If review the uncon- were passed have the one would without we have provision, perhaps stitutional would If, other.... when unconstitutional however, is, argument. this out, consider portion is that which stricken remains itself, if complete capable being many. Even to chose

is in one of we were in apparent review, executed single accordance that alone would standard intent, wholly independent legislative of not Act. save the entire rejected, that which it must stand. provisions Act we Removal of the Rose, (quoting 801 S.W.2d at 844 Western on the held unconstitutional —reliance State, Tel. 62 Tex. Union Co. v. Guides, threshold, percent opt out the 15 (1884)). provision, by jury hybrid provision, the trial specific provisions will look at two We first judicial review, provisions regarding and the have held we unconstitutional —the use very attorney’s fees and involvement —leaves Guides, hybrid provision compelling and the operative portions little of the Act in judicial review. are portions effect. If these unconstitutional addressing The Act contains a section down, that struck we must conclude that any provision use of the Guides. If of sec- not, in which is of West- remains the words 4.24, adopts which tion Guides deter- Union, “complete “capable ern itself’ or mining impairment, held “is unconstitutional being appar- executed accordance with judgment subject in a final that is not intent, legislative independent of wholly ent appeal, Compensation the Texas Workers’ Furthermore, rejected.” that which was by adopt objective shall im- Commission rule apparent that the constitutional and unconsti- guidelines pairment guidelines similar to subject- provisions tutional “are connected published the American Medical Associa- matter, other, dependent operating each on Act, Compensation Texas tion.” Workers’ purpose, together the same or otherwise 17.171, C.S., Leg., 2d Tex. 71st ch. meaning so it cannot be connected that 1,122. argue Gen.Laws Defendants presumed passed would have provision prevent should the entire Act from Undoubtedly, the one without the other.” being declared unconstitutional based on a provisions relating to and the the Guides finding that section 4.24 unconstitutional. argument percent together foun- prompts This several comments. threshold form the certainly judgment note first We that our dation which the entire on subject appeal and so section 17.171 is not created rests. Without structure Act Second, yet operative. the fact that the com- system must col- this foundation the benefits upon impair- mission be called draft system, lapse. And without benefits guidelines bearing have no ment should adjudication requirement there for an is no severability current 4.24. section conclude, in the system. are forced We Third, many provisions we have held clause, severability language of the other than section 4.24 unconstitutional. Act cannot be provisions constitutional Even section 4.24 were unconstitution- provisions. given without the invalid effect al, the Act so the remainder of would be Act, in its We hold therefore the unconstitutional gutted removal of Fourth, entirety, is unconstitutional. provisions, that it could stand.

105 sufficiently derlying data should be reliable VII. Exclusion and Denial of Evidence Pleading testimony provide to of the witness for the Leave to File of finder). fact assistance final to be dis Two matters remain trial argue The intervenors that the cussed. in excluding if the trial erred Even court excluding in and court erred certain evidence testimony, have not shown intervenors denying supplemental in leave to them file a Tex.R.App.P. was the error harmful. pleading days seven of trial. within 81(b)(1). testimony court The trial excluded the court the testimo actuary study of an also excluded and actuarial conduct- request ny professor

ed a law school offered at the the State Board Insurance, and expert which evaluated the costs in constitutional law and on causes of compared past the Act as to the for- benefits of and defenses available under and action study exception Act By mer Act. The concluded that the present common law. bill provide greater at less profes would overall benefits that the advised the court defendants injured cost in than would for workers have testified to the reasonable sor would objected former Act. Plaintiffs on constitutionality of the Act. This ness and ground that the evidence unreliable. was testimony properly under the was excluded opinion precluding rule the admission of tes entirely Opinions based on inadmis concerning timony law. Carr v. domestic sible facts or data be admitted 806, (Tex.1965); Radkey, 393 S.W.2d type reasonably facts are of a relied or data Nat’l American Bank & Trust Co. First upon by experts in the field. Tex.R.Civ. Trust, Mortgage 577 S.W.2d Wis. so, Evid. 703. Even data relied facts or (Tex.Civ.App.—Beaumont writ refd upon must themselves be The actu reliable. n.r.e.); 2 R. Ray, Texas Law of Evidence ary samples have testified and would (Texas Practice and CRIMINAL Civil study accepted used for the methods followed 1980). practices actuarial and was reviewed oth itself, however, study er actuaries. The stat complain that Intervenors also currently ed “far that the data available leave to denying the court erred them file perfect” required preparers intervention, plea supplemental motion data; rely “[n]on-Texas outdated informa venue, answer with to transfer and amended tion; data; judgment”; non-insurance days They of trial. assert seven possible that it not near- predict was pleading allega was needed to answer the Act precisely; term effects of the and that plaintiffs tions of two new added the month significance “statistical cannot be attributed trial. The motion for leave was filed before to the calculations of SB1 benefits.” 23,1991, day trial, April on the second study court excluded both the and the testi day presented to the court on the third mony relying upon study. plaintiffs The additional were added in trial. say excluding cannot We court erred filed plaintiffs’ petition third amended March determine, this evidence. The court must objection only 1991. Plaintiffs’ type only that the facts or are of the data continuing participation one to the field, by experts also upon relied in the but all; they intervenors the case at did not such reliance is reasonable. 33 S. surprised they contend that were harmed or Goode, Shaelot, &M. O. WellboRN Guide pleading. Texas Rules of Evidence.- Civil days (Texas 1988). Pleadings tendered within seven § 703.3 Practice CRIMINAL filed leave of court trial shall be after court could concluded obtained, granted and leave testimony shall be unless study, opinion therefore the it, showing operate filing will as a upon were un there is based so infected opposite prove surprise party. trustworthy data that Tex.R.Civ.P. would Id.; helpful Thomp supplemental pleading to the fact finder. Intervenors’ See (Tex. Mayes, largely previous pleading. to their son v. identical n.r.e.) (un- App.—Eastland writ In both move to transfer venue Tra- refd Cardozo, the social interest by County, they to dismiss due to the stated Justice vis move (in certainty this case justiciable controversy, they by symmetry or seek to served lack a Act) necessary parties exemplified by have not the new must be bal- abate because (and joined, they allege plaintiffs lack stand- in this against the social interest been anced interest) by In they general denial. ing, and file served case the constitutional pleading they mention the new supplemental so- or other elements of equity and fairness allegation specifically in their that plaintiffs making In those decisions cial welfare. an alle- plaintiffs standing lack and add playing a level field which seek to insure right to gation lines, Rivero has waived his that we do drawing those constitutional constitutionality by ac- challenge the Act’s vacuum, experience and but “from so not mentioned, cepting under it. As brief, benefits reflection; it- from life study and allege surprise. plaintiffs failed to Cardozo, Nature Benjamin N. The self.” supple- they could have since the (1921). doubtful Process, In p. 112-113 the Judicial prede- pleading mental was so identical to its many pendency of the months showing surprise, leave cessor. Without faithfully ad- appeal, process that been pleading. granted have been file the should has indeed been hered to and the result Metropolitan & Loan Sav. Goswami different con- reasonable minds have reached (Tex.1988). Ass’n, 487, 490 Act in relation to the clusions about the new spirit, In I write to Texas Constitution. error, however, In- was not harmful. The begun review complete partial historical regarding contentions the new tervenors’ Peeples. opinion in the of Justice fully litigated. plaintiffs were attorneys’ to the issue of With reference VIII. Conclusion (Section F majority and G of the Section fees judgment portion of the trial court’s dissent), agree I Peeples’ of Justice provisions holding designated doctor nothing constitution- Peeples there is Justice reversed, Act are unconstitutional is of the limitation in the new ally infirm in the 25% provisions that those and it is rendered Act, Act. The similar to that of old portion the trial not unconstitutional. labyrinth procedural infirmity in the lies holding that the Act does judgment court’s Act, majori- hoops of the new detailed hybrid not create an unconstitutional injured workers must ty, through which reversed, it is ren- judicial review is unconstitutionally un- creating an jump thus create an unconstitu- dered that the Act does equal protec- playing field violative of level system judicial hybrid review. tional look analogy, we need tion. For a historical holding judgment portion of the trial court’s vote promise of the only as far as the the im- 4.06 of the Act violates that section poll realistically abridged the barriers provi- and due course pairment of contracts literacy Harper v. Vir- tests. See taxes and reversed, Texas sions of the Constitution Elections, 383 U.S. ginia State Board of that section 4.06 does and it is rendered L.Ed.2d 169 86 S.Ct. provisions. In all other re- violate those spects, judgment should, is affirmed. judicial in the branch While we do, enactments of give great deference to the

BIERY, Justice, concurring. branch, lose we must never legislative experiment in self- genius of this sight of the opinion of Chief Justice I concur with the sovereign, people are government: majority in by the Reeves. As set forth ex- sovereign people, as will constitutionality opinion, Section C of amend- pressed in their constitution per- from the must be viewed of a statute make, superior people choose ments appropri- the means are spective of whether body. legislative any enactment of accomplish reasonably necessary to ate and legislature, declared the will of the oper- “[W]here the statute objective and whether statutes, opposition to that of stands in in its unjust arbitrary manner. Ulti- in an ates Constitution, the in the people, declared judgment call is a mately, such a decision by the latter ought governed judges will differ. As upon reasonable minds which inalienable, inherent, ral, not derived rather than the former.” The FEDERALIST even (Alexander Hamilton). preexisting legislature and as No. 78 I, Article section constitutions. done in the Although much mischief was no citizen explains that Constitution Texas process, the idea name of substantive due prop- deprived of his state shall be of this property take another’s that one law of course of the erty except the due purpose is a fun- justifying public without protects The due course the land. liberty. of the limita- speaking damental only procedural but requires not citizens governmental power to deal with tions of due course. also substantive Phil- property, the first Chief Justice private lips omitted). said: (citations and footnote Id. at 140 sys- powers government, City of under our Light

The Co. v. Texas Power & See also of (or tem, They (Tex.1968) Garland, 511, are but are nowhere absolute. 518 431 S.W.2d authority people, from the and grants utility’s of interfering private with a dinance purposes. The stricken); limited to their true are rights franchise Falfwrrias rights people are inher- Laredo, fundamental of the Creamery City Co. v. of govern- yielded 1955, ent and have been 351, Antonio (Tex.Civ.-App 355 . San They subjects of authority. are the mental n.r.e.) (portion inspection of milk writ refd authority. pow- Constitutional individual unduly as burdensome ordinance stricken never transcend constitutional ers can served). light of ends subject to the rights. police power opinion upon a Pope relied in this Justice imposed by the limitations Constitution Brandéis, acknowledged by statement Justice government; it upon every power of justices, great by as one of the the dissent impair suffered to invade or will not be court, said, who, speaking for a unanimous citizen, those fundamental liberties of the “[Tjhis many warned that court has times rights natural which are the chief concern may not be taken for person’s property one protec- of the Constitution and for whose private person without of another benefit by All people. tion it was ordained purpose, though even com- justifying public grants power interpreted in of are to be pensation paid.” Thompson v. Consoli- Magna light of the maxims of Charta 364, Co., 80, 55, 57 S.Ct. dated Gas 300 U.S. transmuted into and the Common Law as (1936). 376, 510, 524 81 L.Ed. things Rights; the Bill of and those which not defend the use of substantive regarded We do those maxims forbid cannot be any other constitutional doc- any grant authority by process due within of made implementation subterfuge for the people agents. to their trine as a agenda. yet And social of a court’s own Dallas, 350, 235 Spann City v. 111 Tex. of court, we, intermediate free neither are as an (citations omitted). (1921) 513, S.W. 515 mandated constitu- ignore supreme court today principles remain vital That such satisfy philosophy our own tional doctrine to by Eggemeyer Eggemeyer, 554 illustrated restraint, judicial our own notions of social of (Tex.1977). supreme There the 137 history. policy, or our own selective view court, Pope, held speaking through Justice apply appellate court must This intermediate provision prohibits that our due course of law as inter- provisions of our constitution separate proper- spouse’s of one the transfer supreme preted by our court. spouse in action. ty to the other a divorce Pope said: process Justice was used Substantive due to overturn Supreme Court rights prop- United States protection of one’s to own ground legislative on the impor- enactments erty to be one of the most is said rights litigants property right deprived had purposes government. That tant e.g. process.1 fundamental, of due See natu- without the benefit described as has been 1918, through From 1790 Supreme 741 Court History, 1. Between 1889 States Supreme down as uncon- power Court struck police approved exercise of state and 803 state challenged. 106 federal statutes stitutional 422 cases in which was 369 of passed. Jethro K. thousands Supreme Court statutes out of Lie- Charles Warren, United trial, Hasp., open courts. jury We Adkins v. Children’s U.S. (1923) (struck many lacking the statute to be parts 67 L.Ed. down a found S.Ct. provide wage minimum law for virtue of their failure ade- District Columbia relinquishment liberty quate contract for the women as a violation substitute rights, process Fifth workers’ under the due clause of the common law Amendment); Bailey arbitrariness when v. Drexel Furniture unreasonableness Co., purpose against S.Ct. 66 L.Ed. 817 balanced statute. 259 U.S. (1922) (overturned Congress’s rights If second at- historical common law to be labor, action, abrogated it seems tempt regulate using by legislative child time axio- by adding regulatory matic that schemes taxing power, 10% tax on the such should labor; all provide playing firm field for those profits employing net child level statute, act an affected and fulfill the cove- court declared the unconstitutional powers that all will of the reserved nant our contract invasion social Thus, parent- states); Dagenhart, fairly. treated intellectual Hammer v. 247 U.S. our (over- (1918) 251, 529, process age 62 L.Ed. 1101 is not federal substantive due 38 S.Ct. the 1916, by early twentieth the Labor Act which artifice the centu- turned Child of abused Court, rather, Supreme prohibited passage ry in but fundamental the interstate com- labor, goods produced principles as into the constitutional fabric merce of child woven sovereign people. Those police an unconstitutional invasion of of Texas the state York, 45, power); principles history seek not to make Lochner v. New and our 198 U.S. (1905) (overturned 539, democracy majoritarianism, but 25 49 L.Ed. 937 mere S.Ct. limiting day in a between the working York law the strike reasonable balance New protec- industry rights majority adequate of baking to ten hours on substan- the and the part not a of the process liberty and of contract tion those who are tive due conclusion, majority. grounds). logical power Lest we Carried to its structure or forget, it who process only powerless would allow was the few fled the substantive due not but, labor, despotism Europe just exploitation presum- of child of to establish more legislation society attempts build that ably, prohibiting overrule which level would many. beings playing other for the few as well as ownership of human be- field employed legislation would of of mechanisms are trial cause such be a violation Some law, by jury, rule of rights. due course of the and property equal protection, which we reaffirm all of process part due not Substantive today. jurisprudence our federal constitutional to- will, its day2 process legislature substantive Can substitute and federal due statute, opinion through sovereign in of our this case. Our for that not the basis proper- people expressed not as in the Constitution? Is in this ease does turn on decision contract, final arbiter ty liberty catch- to be the of its rights, or other enactments, Rather, process. powers? legislative phrases due own Are of substantive prohibitions, question transgress as it which constitutional reviewed the statute we answering provisions obligatory? these impacts several written nevertheless questions negative speaking sovereign people Rights, in the Texas Bill of in the law, majority, against by the James equal protection, due domination including course 1035, (1990) (treatment pris- 108 178 A Bicentennial L.Ed.2d Enduring Constitution, berman. Perspective 1987). 1941, (West drugs against antipsychotic at 354 After his will oner only 36 federal 145 state statutes process totals implicates due potential substantive vio- Notwithstanding Id. 651, 672, declared unconstitutional. lation); Wright, Ingraham 430 U.S. v. process, of substantive due the United the demise (1977) (cor- S.Ct. L.Ed.2d 711 97 51 Supreme Court has not States abandoned punishment poral public schools involves sub- nor, responsibilities, judicial the other review issue); process but see Graham v. stantive due Connor, hand, majority in the vast of cases to has it failed 392-94, 109 S.Ct. U.S. legislative give deference to enactments. due 1869-70, (1989) (rejecting use 104 L.Ed.2d analysis process in U.S.C. of substantive due exists, general exception to a to this rule An cases). 1983 excessive force extent, rights Washing- in civil cases. See limited 210, 220, Harper, U.S. 110 S.Ct. ton powers what their said, pow powers, do accumulation of all “The Madison forbid, authorize, but what may justly ... do not ... same hands ers pronounced ” FEDERALIST No. 47. very definition tyranny. n n n n V n ^[*] n ^[*] an inter- designed to be courts were [T]he peo- sovereign intent of The historical and the body people between mediate system of to create an inefficient ple was order, things, among other legislature, in theory of limit- on a government established limits as- within the keep the latter No one powers ed and checks balances. interpreta- authority. The signed to their assume too government could branch peculiar proper of the law is tion preservation “the power. much To Madison is, A constitution province of the courts. great de- liberty requires that the three fact, regarded by the must power separate and partments of should be It therefore judges, a fundamental law. as legislatures That diffused distinct.” Id. meaning, to ascertain its belongs to them rather among a number of members power meaning particular as the well few, that their offices were elective than a legislative body. from the proceeding act appointive hereditary, provid- rather than happen be an irreconcil- If there should despotism “An no comfort. elective ed two, ... able variance between fought for....” government we preferred to the ought to be Constitution the State Notes on JeffeRson, Thomas statute, people the intention (Library of Amer- Virginia, in WRITINGS this agents. their Nor does intention of 1984) (emphasis original). in In Democ- ica suppose supe- by any means conclusion America, Tocqueville racy in Alexis de saw judicial legislative the riority the to democracy potentially more threaten- is of supposes power that the power. aristocracy: ing liberty monarchy than to of both_ people superior is to the only, controlling king’s power physical is “[A] desires, influencing actions whereas but (Alexander Hamil- No. Federalist physical majority the is invested with both added). ton) (emphasis authority, much and moral which acts as upon at the upon the will as behavior and opinion prevents our The dissent contends prevents act and the same moment both the legislative people, acting through their the do it.” Alexis desire to Tocqueville, governing. Yet when representatives, de (J.P. Mayer, ed. America, legislature in excess of its constitution- acts DEMOCRACY Lawrence, Li- George trans. Perennial & govern; authority, people it not the who al is 1969). despotism] brary would “[Democratic governed. The people who are it is the milder; it would widespread more people, the but the servant legislature is not them.” degrade men rather than torment acting in within a people, their behalf of the Id. at 691. limited, authority. delegated legislative on encroach- primary cheek recognized by principles were Chief These ment, executive of the ballot box and short echoed Hamilton Marshall who Justice John veto, judicial principle of review. Alex- is the juris- constitutional in his effort to erect our perhaps the most Hamilton set forth ander judicial of review. prudence on the foundation argument for the absolute neces- compelling legisla- boldly that “an act of the He declared sity judicial government in a of review constitution, ture, void.” to the is repugnant powers: limited (1 Craneh) 137, Madison, Marbury v. 5 U.S. emphatically the It is L.Ed. 60 contrary ... to the Con- legislative No act judicial department duty of the province and stitution, deny valid. To this would can be Those who say the law is. Id. what deputy greater is to affirm that principle that the constitution controvert the principal; the servant than his legisla- give to the paramount law would master; representatives above his omnipotence and practical and real ture “a superior people people are of the nothing what we themselves; reduce to acting virtue of would that men act, greatest politi- sovereign people are bound improvement on do we deemed institutions, uphold and the cal written constitution.” our oath rule of law guarantees. defend those constitutional Id. 178.3 gave it be the intention of those who Could GARCIA, JJ., join. CHAPA power, say using Justice, CHAPA, concurring and looked constitution should not be into? dissenting. arising That a ease under constitution examining should be decided without opinion I Justice concur with Chief under arises? instrument which it Biery response Reeves and the of Justice judiciary emphasizing duty extravagant This is too to be maintained. “preserve, protect, the state con- and defend” Id. at 179. honestly, objectively, and coura- stitution If we are to take our constitutional duties reviewing constitutionality geously seriously we cannot dismiss due course of piece legislation upon called to do so. when law, equal protection, right to trial and the Const, However, XVI, § I re- art. Tex. sovereign people by jury guaranteed by the spectfully of the dissent with the conclusion smoke-screen, “garb,” to themselves mere majority as to that the Act is constitutional dressing. Texas or window Our forbearers weight to provision granting presumptive rebelliously emphatic exercising were opinions designated doctor. sovereignty placing great value on these Act the first time establishes for liberties: “designated findings Texas a doctor” whose guard against transgressions To given “presumptive weight” issues high powers delegated, we herein declare ratings and determinations everything Rights” in this “Bill of creating improvement. maximum medical excepted powers gov- general out designated presumption favor of ernment, and remain invio- shall forever doctor, inject a doc- hoped thereto, late, contrary all laws or to likely more tor into the who was following provisions, the shall be void. by the objective than chosen be the doctors Const, I, § art. 29. companies. The Tex. or the insurance workers doing question is whether succeeded easily to be into defer- Were we seduced constitutionally. it ring legislature in matters of eco- all to fail to regulation, nomic and were we the The trial court that the effect of found honestly objectively the constitu- review given presumptions designated doctor’s the any piece tionality legislation of of when testimony arbitrarily the “is to subordinate so, upon to do would abdicate our called we diagnosis treating the doctor and worker’s duty the above opinions to honor Constitution act the give weight unreasonable it, repudiate in conflict with and we would designated patient’s doctor not the the who is “preserve, protect, and defend” that the treating our oath doctor.” The court found Const, XVI, § art. “presumption 1. from a medical that Constitution. unsound Tex. sovereign arbitrary an adminis- people point of Texas wish to of view and from If the rights by presumption is relinquish point the of trial trative of view. This fundamental law, arbitrary contrary medical jury, equal protection, to reasonable due course is, courts, of our The court also found open there under the rule standards.” law, provision usurps the fact- by designated the doctor process an amendment which finding responsibility the commission sovereign people can and until act. Unless way he to de- Marbury, act con- Yet went out of his declared an dismissed.” In Marshall though that no one had gress no one had clare unconstitutional an act unconstitutional even Congress’s presumed to author- challenged constitutionality. Nor was such before be outside Marbury ity. can said to be necessary While v. Madison the decision. Marshall declaration activism, than, example judicial juris- it does neverthe- say nothing "We lack needed to more judicial the the branch’s the because less form cornerstone of diction to issue of mandamus writ original jurisdic- obligation legislative enactments authority to ensure that is not within our III; denied, pass case specified in writ constitutional muster. tion as Article HI ratmg provement and what provision The court found the the courts. 4.25(b), §§ injury. course, assigned to the should be equal protection, violates the due commission’s determinations 4.26(g). The by jury provisions of the Texas Consti- trial designated based on the these areas is to be agree I the trial court for the tution.1 with weight of great the report “unless following doctor’s reasons. con- is to the medical evidence the other constitutionally presumption must A valid However, 4.25(b), 4.26(g). §§ trary.” operates fairly party it rebuttable only is chosen designated fact that the doctor giving public act of a against. A law the doctors dispute between when there is prima raising facie official the effect by the and those hired hired the worker deprive per presumption, which does not guarantees that in the employer carrier or fairly rebut the son affected of not medical evidence will usual case the other deny presumption, process. one due does testimony against preponderate Jackson, 213, Tex. Weatherly v. party is able designated doctor unless one State, 259, (1934); Green S.W.2d medical evidence to success- obtain sufficient (TexApp. — Beaumont Thus, fully challenge designated doctor. n.r.e.). writ refd obviously unfairly weight” “great burden Mobile, Turnipseed, In & Co. v. J. K.C.R. party greater whose resources favors the 35, 43, 55 L.Ed. 219 U.S. S.Ct. and obtain the possible to consult make (1910), Supreme the United States 80-81 agrees with the evidence that most medical leg established further limitations Court diagnosis. Although it is true preferred articulating follow presumptions, islative greater general degree resources to some ing test: position place party in a more favorable one legislative presumption of one That a litigations, here act in most than another of another fact evidence placed in legislature2 the worker was process of law or constitute a denial of due position. a less favorable law, equal protection of the a denial of the it is essential that there shall be some review, pre- judicial In context of connection between the fact rational to favor the sumption provision continues presumed, proved and the ultimate fact through the party greater resources and that the inference of one fact from adjudication process. remainder of the proof of another shall not be so unreason- change of condition initial substantial arbitrary purely as to be a mandate. able court, court must hearing before So, also, not, guise regu- it must under desig- accept presumption favor evidence, lating presentation operate the by preponder- nated doctor unless rebutted preclude party the from the presented. evidence ance of the medical the main fact thus present his defense to Thus, greater resources is party the the with presumed. stage process. the again at this favored Thus, in re- these factors we must consider hearing critical to the entire initial This viewing presumption whether the favor precedent judicial a condition process since in the Act is designated doctors outlined the to a new evidence presentation to the constitutional. change entirely jury depends on a substantial finding by court at this testimony the trial hearings, of condition commission the At the party the with the hearing. Consequently, given presumptive designated doctor is of the greater potential has the greater resources weight in the determination of whether evi- eventually presenting new im- succeed maximum medical has reached worker cognizant prior law correctly We remain majority opinion points out the must 1. The why Compensation by Constitution offers Act con- replaced several reasons significantly the Texas the Workers' process protection than broader due jury that it was the presumptions, and tained no constitution, recog- clearly the federal which is credibility of all wit- appropriately assessed City Supreme Court. nized the United States witnesses, nesses, what including medical Castle, Inc., Mesquite 455 U.S. v. Aladdin’s testimony. any, given weight, to be 1070, 1077, 283, 293, S.Ct. 71 L.Ed.2d 152 employment in the mines who Moreover, years’ specifi- with ten jury. the Act dence presumed to are pneumoconiosis from commission’s evidence suffer cally provides that the jury by their em known to the from decision be made contracted disease have court, notifying having the effect with ten thus that coal miners ployment and findings found jury of which doctor’s mines who die from years’ employment in the potential the commission and favor with presumed to respiratory disease will finding responsibility of usurping fact The statute pneumoconiosis. died from have provision of the jury. Consequently, this rebutta- presumptions these explicitly made unconstitutionally denies the worker due Act ble, simply to shift the effect was and their which is by providing presumption process evidence going forward with burden of party with unfairly rebuttable more Id., operator. the mine the claimant to by usurping the fact the most resources agreed It was at 2898. 96 S.Ct. U.S. responsibilities.3 finder’s by breathing caused pneumoconiosis is presump argue that the also Defendants of a miner’s the likelihood coal dust and that designated has a doctor tion favor upon both developing the disease rested doctors, designated rational basis —because miner has been of dust concentration party, are aligned with either are not who exposure to the duration of exposed to and objective “it is likely and because more to be addition, the United States dust. In give of the fact for the trier rational indi it medical evidence Congress had before testimony a disinter weight to the greater pneumoco- incidence of cating the noticeable testimony of a self- than to the witness ested years’ miners with ten in cases of niosis may rational for one.” While interested light of these mines. employment fact, discharge of proper in the the trier of facts, the held: Court duties, give weight to the testimo more its surely to select du- Congress entitled witness, Tinkle v. see ny of the disinterested employment, to the exclusion ration of Henderson, (Tex.App.— exposure other degree of dust denied), usurpation of it is a Tyler writ factors, point at signaling the relevant greater responsibilities to have must come forward operator which espe This is weight legislatively mandated. pneumoconio- the cause of evidence of with when the cially present in the statute so death, We as the case be. sis designated doc presumption favor presumptions, certainly say that the cannot is, as we shall fairly tor is not rebuttable factors, oper- by excluding other relevant because see, arbitrary and unreasonable arbitrary” manner. “purely ate in a between is no rational connection there presumed. the fact proved and facts 29-30, at 2899. Id. at 96 S.Ct. argue presumption Defendants legislative nothing in the are cited to We arbitrary or irrational considered cannot be designated doctors to indicate that record might merely because in their inherently accurate more will be fac of other relevant consideration excluded hired workers diagnoses than doctors tors, qualifica medical such as the doctor’s assume, as we cannot even carriers. We tions, familiarity the worker’s his or her do, designated doc- urged to apparently condition, the and extent of and the nature that all impartial or every case be will in tors argument, support In of this examination. professional their abandon hired doctors will Usery Turner Elkhorn rely on defendants pays them please whoever 2882, responsibilities to Co., Mining 428 U.S. S.Ct. presump- The unreliable. (1976). and are therefore the court Before L.Ed.2d 752 when, as in inappropriate particularly tion is constitutionality challenge the case was case, adopted procedures present the the that coal miners statutory presumptions Thus, credibility all fact finders witnesses. primary system, judicial it is the testimony our 3. Under to exer- weigh of vari- juries the undue influences must be free from function credibility each the respect, and assess fact ous witnesses one. In or their in this their discretion cise court, judge hearings the trial before the usurped. finding responsibilities will be gauging the charged responsibility of with the is

H3 from the common law. changes stray too far unfairly rebuttal more available make is, the people the judges That have denied the most resources. party with judge- meaningful changes right to make Usery, Supreme held that a Court says legis- rules of law. The court made presumption does not constitute denial rights away common-law tried to take lature equal protection if there is process due adequate substitute. providing an without the fact rational connection between some Then, refusing to consider all the evidence presumed and proved and the ultimate fact it adequacy, the court strikes the statute’s proof one fact from that the inference of permit message? Courts will down. as to be a another is not so unreasonable major changes in legislative tinkering but arbitrary Usery, purely mandate. 428 U.S. observers, For some this the common law. at 2898. at 96 S.Ct. apply to what rules will is a case about Act, “proved” In the the fact on-the-job injuries. But involving lawsuits designated reached medical conclu doctor governs. really case is about who regarding injured sions worker. First, the presumed is that those conclusions are court’s rationale is twofold. fact and, conversely, says the common accurate that the conclusions court the 1989 act alters disagree are inaccurate. to make whole- of the doctors who law too much. The act seeks open change, There is no rational connection between sale which the constitution’s Second, designated diagnosed permit. provision fact that the doctor does not courts accomplish all injured accuracy diag says and the of that act does not worker the court arbitrary “purely particular nosis. The Act creates a it does not increase goals; workers, Turnipseed, 219 U.S. at one of several mandate.” benefits to which was piece goals. S.Ct. Therefore it is not a rational legislation, the constitution’s and it violates agree desig- I the trial with court equal protection process due and substantive provision is unconstitutional. nated doctor This, nutshell, guarantees. in a is what previously In addition to the discussed con- respectfully I dissent court has said. infirmities, provision stitutional violates judicial power. exercise of this unwarranted courts, open process, equal pro- due requirements tection of our constitution be- democracy people in a think When the arbitrarily grants cause it conclusive effect to or a judges have allowed the common law doctor, opinion especially one who one hand, statutory get they are scheme to out of treating physician.4 is not the rights their to seek a cure from within all, legislatures in the legislature. After are GARCIA, J., joins. governing, governing some- business of rules. change for a court-made times calls PEEPLES, Justice, dissenting. “Indeed, great office of statutes is to appeal The core issue in this is not what remedy in the common law as defects workplace society provide should rules adapt changes developed, and to accidents, government which branch of but Munn v. Illi- of time and circumstances.” entitled to make those rules. The court nois, 134, 24 L.Ed. 94 U.S. Texas, people acting through denied the course, changes may not violate ability such governor, Of Biery’s concurrence Justice an old statute because the 1989 the constitution. rewrite Well, there’s-no, any- following colloquy between Senators Par- PARKER: 4. The Glasgow regarding presumption pro- thing ker and world now.... in the is instructive: testimony, vision other medical GLASGOW: Medical your question testimony. So the answer to PARKER: gonna rely on these insurance doc- got wrong, we’re not you prove him Or PARKER: now, gonna rely agency on this tors we’re clearly wrong, you? don't designated when we're well. doctor to tell us Senate, the Floor of the Debate on Tex.S.B. 1 on Is that the difference? C.S., 19-20, Leg., Tape Tape 2 at 1 1 at 71st (Dec. 2d rely going Well no. We're to GLASGOW: upon 12, 1989) (transcript available from Senate only presumptive and it can that but it’s Office). Services Staff anything the world. be rebutted with in 114 elementary

goes length very to us be The is to some make an Let clear: court’s result point disputes: required by precedent. that courts have the Texas no one When duty the judicially Supreme upheld to review statutes and to void Court first workers’ 1916, broadly they if the in it them violate constitution. I act stated heartily agree legal But proposition. right, that if that individuals have no enforce with violated, court, legislature the clearly prevent the constitution has not been able to equally important changing have an constitutional common-law rules. Middleton v. we Co., 96, duty uphold against Light Power 185 to statutes constitutional Texas & 108 Tex. 556, (1916), 152, by aff'd, 39 attack who were outvoted the 249 U.S. those S.W. 559 227, (1919). legislature. legislative majority 63 The and the S.Ct. L.Ed. 527 The United Supreme always people who elected them are entitled to no States Court has followed See, review, e.g., like v. power, less. Judicial all can be the same rule. Duke Power Co. Inc., judicial engage Study Group, If abused. we review with Carolina Environmental 59, 32, 2620, hostility the stat- n. instead of deference toward 438 U.S. 87-88 & 98 S.Ct. 32, ute, (1978); power. n. 595 we abuse our 2638 & 57 L.Ed.2d Middle Co., Light v. Texas & 249 U.S. ton Power Expansive interpretations of thé bill of 152, 163, 227, 231, 39 527 63 L.Ed. S.Ct. may they rights rights but add to individual White, (1919); New York Central R.R. Co. v. majority’s power also subtract from the to 250-52, 198-202, 247, 188, 243 U.S. 37 S.Ct. legislate. agree rights if I the bill of Illinois, (1917); Munn 94 61 L.Ed. 667 v. legislature, a topic makes off-limits to the 113, (1877). 134, 24 L.Ed. 77 U.S. against legislation. must fast courts stand the question: begs But that the what limits has Later Texas eases have said in dictum that rights legislature may repeal The the the bill set? court holds that under Middleton guarantee adequate an the constitutional courts common-law rules substitute —“All States, open, every person provided. ... shall Lucas v. 757 shall See United 687, (Tex.1988); Kru remedy by due v. course of law”—means S.W.2d 690 Nelson sen, 918, (Tex.1984); legislature significantly change the cannot 922 Sax Votteler, 661, (Tex.1983); court-made That is excessive ex- 667 Le rules. S.W.2d Galveston, judiciary’s City power tension of to define bohm v. 154 Tex. the (1955). judicial expansively turf it off- is not what to declare That said,1 legislature. Middleton and it is not the Texas limits what rules, by pensation provided, vested ”[N]o one has a interest in substitution themselves, law; the common and it is Legislature governing within another law such lia- Legislature change power of the them or bility remedy. providing a different entirely repeal Mid- [citations omitted].” them Legislature question Was the without is: Co., Light dleton v. & 108 Tex. Texas Power upon power completely change to thus the law ' qualified 185 S.W. The court subject? inquiry This no concern by saying legislature could this statement change; it account of the takes no wisdom party proof that not make a liable without it it; of the it is limited to the naked reason for duty, legislature legal but breached a could Legislature's question power. of the employer’s Id. The eliminate an defenses. court Legislature possessed power, That employ- made then similar statements about conceded, must be unless be true right bring loss in reliance ee’s of his suit employee protected the Constitution agreed court common-law causes action. The of the common continuance rules right away not take a vested could in the law for his benefit determination passage, action had accrued id. before employer’s liability injuries those for such as preserve right but said no one has a Act deals. no one has which the That might apply the common-law rules right present laws vested in the continuance of injury: future particular subject, is a in relation to a funda- employee That which is withdrawn from the challenge. proposition; open it is not mental merely against employer, of action his changed by Legislature laws so law, as determined the rules of the common long destroy prevent do injury. future This is noth- in the event of his rights. adequate There enforcement vested ing than a to him the more or less denial right, right, property in a cannot be or a a vested Legislature law of certain rules of the common rule mere law. employer's for the future determination of liability added). (emphasis court S.W. at personal injuries incurred to him for service, and, legislature may change com- plan of com- observed that the in the latter’s in the

H5 revising said that statutes “adequate The court then says. But the substi Constitution may rights also redefining in dictum repeated has been common-law tute” statement binding policy general this and the accept justified by public I it as on so often that Nevertheless, Supreme holding the Texas its court. court summarized welfare. The provides a substitute utes impossible to out scheme such damages above a certain statutes especially a supreme court decisions son). statutory Court has never struck “adequate None that set totally substitute for common-law comprehensive and bring a of these decisions involved withdrew the as this statute. The recent up substitute” obstacles that made suit for common-law down a statute on time limit dealt concept right to seek well-thought- (Lucas) (Sax, with stat rights. seems rules, Nel that as follows: when it is when well established common-law interest of tion tion for person tive action of other able exercise Thus withdrawing common-lawremedies remedies, ^[1] it or injuries to one’s it is arbitrary or unreasonable. reputation” be seen reasonable general or when type police welfare. ^[2] is not sustained sustained “lands, goods, it is a reason- in the power legislative causes substituting Legisla- of ac- only ac- originated to have Lebohm. There that it was The court stressed Id. at 955. provision struck down a of the Galves- court power “by gener- denying denying liability on ton charter for defects actions all causes of al law abolish [to] held city and sidewalks. The court streets injuries against growing out of sim- cities for city “arbitrarily” a well- that a cannot abolish of streets.” ple negligence in the maintenance rehearing right to sue. On established court; question That was not before city suggested original opinion under city provision, and the court issue was a compensation act would also be the workers’ general public policy no could think of unconstitutional because it abolished justify a law reasons to such welfare injuries. workplace in tort for to sue Id. city limits of Galveston. within rehearing court’s answer on The Lebohm any nor Middleton nor Neither Lebohm city’s suggestion spells out the mean- to the supreme suggests court case other “adequate principle ing of the substitute” judiciary strictly weighs adequacy of a today. original opinion apply that we the one statutory as detailed as substitute supreme legislative court bodies had said simply say that Instead the cases before us. “arbitrarily ac- may not abolish causes of arbitrary legislature may not be in abolish- rehearing, Perhaps, tion.” said the court on ing actions. The court Le- common-law open courts we should have said that give the bench and bar to bohm cautioned legislative provision “prohibit[s] bodies proper respect emphasis the court withdrawing legal remedies arbitrarily all “arbitrarily” in its hold- placed the word having from one a cause of action well estab- is, statutory That ing. 275 at 954. defined in the common law.” lished and well upheld common law will be substitute for the added). (emphasis 275 S.W.2d at 954 truly arbitrary. unless it is as constitutional “arbitrarily” the word court stressed Today’s does not follow from these decision compensation act noted that the workers’ bold, judicial It is a new exertion cases. “simply a different but certain substituted legislature in a field hegemony over the adequate legal remedy for the one that gives us part of the constitution law.” Id. where existed at common law, rights of the common and therefore in the rules mon-law as well as common-law defenses right by deprived action. of a constitutional no one is rules, may change defensive common law through legislative If it may change enactment.... change law rule of it not also common pre- has not undertaken [The constitution] Legislature liability? power cannot the common law. serve inviolate the rules of and not in the other. exist in the one instance extent that we are That of rules to the Legislature governed by adopted it was upon question decision of this We rest the authority may alter it. Id. at 561 the same proposition what to us is the evident seems added). (emphasis property interest that no one has vested or authority. the act Ignoring goals does not other Because constitution statute. deprive power the legislature clearly (efficiency, objectivity, pre- to enact this furthers statute, duty uphold it is our to it. uniformity, consistency in dictability, assessment), claim the court holds that the holding arbitrary In that the 1989 law is accomplish act goal not of increas- does today court viewed the has statute with ing benefits and is therefore unconstitutional. hostility and I not deference. make that (5) not even the commis- The court will allow reasons, for statement several which any (1) sion to revise the AMA Guides to meet fully The more stated below. court refus- judicial objections, though legisla- even my suggestion toes address that workers ture commission any objections expressly said can waive constitutional an if a given opportunity act. Even it violate the constitution- should such would be rights plaintiffs particular al of these to force court the act invalid. finds them, the act on there will be workers who addition, assumption pervad- there is object object- provisions; do not its ing opinion be identi- the court’s that should ing, they objections waive constitutional is an fied outset —that the 1989 act at the workers, may to the act. For such the act insurer-employer benefits scheme to reduce constitutionally apply. says The court this opinion can read the court’s workers. One raised, plaintiff no issue was not but good learning thing one about without standing to this uncon- assert that statute is act. accept provi- as persons stitutional who lawsuit; private This sions. is not a many The is that the act makes truth importance public issue of tremendous law, improvements whose over the common right which no one has the to concede the inju- remedy workplace as a for deficiencies rights who future workers want with, if begin ries known. To work- are well (2) apply The court has act to to them. in- ers to resort to common-law suits had against legisla- stressed evidence benefits, they stead of workers’ downplayed omitted ture’s conclusions and or sometimes would have to wait months and legislature. supporting the If the evidence years “[C]om- their suits were tried. before jury, acting be a we were would modern remedies not known in [are] mon-law approach. are a valid But we court review- speed economy.” times for either or ing legislature. an act of We owe the Duke Environmental Power Co. Carolina level of legislative judgment a deference com- Inc., Study 98 S.Ct. Group, U.S. give jury parable to the deference we ver- 2620, 2640, At com- 57 L.Ed.2d majority opinion reads like a brief dict. law, interim mon would workers receive reasoning against the law instead of payments waiting Frequently for while trial. reviewing legislation dispassionate court they at trial most work- would lose because legislature’s to evalu- deference employer place injuries are not caused society’s problems differently from us. ate law, fault. at common workers would And (3) arguments court would has used trial; waiting while receive benefits compen- invalidate much of the old workers’ have to return to work would either law, 1913, upheld by sation enacted recovery make meet —and risk a lower ends Supreme Texas 1916 and Court capacity out earning else hold lost —or Supreme Court United States until trial. challenged seriously never since then. judicial say, unsound reason- Needless it is clearly adequate substi- law is legislation ing that would invalidate that ev- reme- tute cumbersome common-law for this See, Lebohm, eryone e.g., admits is valid. dy. act: Under the 1989 (on (court rehearing) 275 S.W.2d at 954-55 injury every workplace kind of (cid:127) Almost original opinion implicitly that its concedes compensated. need not will Workers if it the ad- would unsound undermined cause, prove negligence proximate mittedly compen- constitutional old workers’ act). (4) is no de- comparative negligence selectively sation The court has legislature’s goals enacting stated fense.

H7 employee injuries when an during tempo- many occur Wage replacement (cid:127) per- lifting, negligently his back from a strains rary-benefit period is increased injuries would not be Those forms his work. weekly under the old maximum of $252 law) negligence (zero compensated in a common-law to under the common act lawsuit, they compensated under are but in- wage replacement Minimum $438. statutes.) In other compensation workers’ weekly from creases $42 $64. wider-inclusive because eases the act will be Lump-sum are limited. settlements (cid:127) they than employees will recover less some wasting prevents workers from This law; an recovered at common could have having away and then a settlement suffers men- example be a worker who would relief, prevents other them seek consortium, compensa- trauma and loss of tal bargaining away right to life- under the work- at common law but not ble larger lump time medical benefits for a system. Similarly, pain compensation ers’ sum. compensa- in most workers’ compensable not away cannot contract too The worker (cid:127) statutes, compensable at common tion but is lawyer. recovery of the to a much law. that under the old legislature was aware ac- Legislative substitutes for common-law lawyers workers with recovered law they ($10,000 judged or will tions must be as a whole average minus of $7500 $2500 fees), always held unconstitutional. It is attorneys’ without while workers proper parts of the law and to take isolated lawyers average recovered an of $8500. judge the judge separately; them we should promptly begin payments Insurers must (cid:127) (like statute) law, con- whole which old deny compensability. They or cannot compromises sists of and trade-offs. delay. saving interest in general true that a societal Benefits are more uniform and standard (cid:127) justify cap damages at money did not on varying instead of venue and law- States, 757 S.W.2d issue Lucas United yer ability. (Tex.1988). But here we are consid- ad- The commission order benefits (cid:127) statutory ering a scheme that makes detailed hardship. vanced cases of trade-offs, simple cap damages. not a on given duty The commission is (cid:127) supreme expressly held court Lebohm power workplace safety. to ensure general welfare public policy and the report safety Workers who violations statutory may justify a substitute for the protected from retaliation. at 954-55. common law. given strong The commission enforce- (cid:127) al compensation statutes have Workers’ powers. ment ways proper and valid exer been considered An ombudsman office is established (cid:127) right compromise legislature’s of the cises aspects workers with all assist Employers different interests. and balance system. right give up defenses and the common-law they reviewing proof negligence; A receive court should take into account to insist liability. Employ improvements the common law limited but more certain all these over dam give up ees to common-law and assess the statute as a whole. Because necessarily they but limited compensation ages; receive more certain workers’ statutes any recovery liability fault. See compromises, such based on without rest on trade-offs and Co., Royal Indem. statute must be somewhat over- and under- Paradissis v. (Tex.1974); Inevitably, Middleton v. Texas in individual cases. inclusive 96, 185 Co., Light 108 Tex. S.W. a workers’ act will Power & some cases adequacy employees do not assess be over-inclusive in that some will We specific case. operates in a though their suit would not the trade-off as recover even law; always who would example There will be individuals at common succeeded law money at common employee injured through his have recovered more would be an (and employ statutory system injured by something else than under a negligence, own less at common (Many, who would have owed employer’s not the fault. ers job employment, law), ting taking com his on new that does not mean workers’ but job possibly staying existing are unconstitutional. with his pensation statutes losing rights. I think his common-law turn to a review the I now constitutional standing challenge opt-out gives him analysis on act and consider the court’s provisions apply to workers em- own terms. ployed by subscribing employers before the I.Standing. has effective date.3 Because Garcia act’s standing injured, I lacks been think he plaintiff hold Rivero I would act. challenge provision other act standing challenge to most of the and challenge standing to plaintiff that Garcia has plaintiffs not have The union should stand- provision. my view opt-out But challenge constitutionality ing to statute’s they standing lack plaintiffs other because do alleging of their mem- that even one without injured. allege that not even have been interpret injury. I do not bers has suffered majority the cases cited to hold that a standing. He Plaintiff Rivero has may any constitu- challenge union statute’s injured receiving and is benefits under been of tionality by simply alleging that some its Though temporary the new act. his benefits day many members one be affected. (and salary greater pre-injury than are his this when con the reader should remember standing Because Rivero and Garcia of sidering the court’s characterization act, agree I challenge the it is to heart of “draconian”), found act as the trial court constitutionality. proper for us consider its compensable injury probably not be his will impairment guidelines and he will under the Constitutionality II. of the Act. probably qualify supplementary benef adjudicative factfinding This is an its.2 AMA A. Guides. must other accept, this court unlike the find act, portions certain of benefits Under ings legislative prompted facts by ratings based on the are determined legislature to enact See Minne the statute. Medical Guides con- American Association’s Co., Creamery v. Clover U.S. sota Leaf cerning physical impairment instead lost 456, 464, 715, 724, L.Ed.2d 101 S.Ct. argument earning capacity. The court’s (1981); Bradley, v. 110- Vance 440 U.S. goes invalidating the use of the AMA Guides 939, 949-50, L.Ed.2d 171 99 S.Ct. (1) essentially like had this: (1979); Handy Retail Merchants Ass’n goals, two real which were increase Hardware, Inc., Dan 54-55 costs; all and to decrease other benefits (Tex.App. Dist.] [1st — Houston (such efficiency, objectivity, predict- goals as writ). just uniformity, consistency) ability, are estopped holds The court Rivero is two, it does not subspecies of these accepted challenging the act he has because really act achieves these matter whether the disagree. He temporary benefits. I should (2) impairment goals. of an latter The use tempo- accept able to the initial round (focusing system physical on challenge next levels of rary benefits and (fo- disability system body) instead supplemental impairment and benefits un- cusing earning capacity) loss of does not on Rivero nor other constitutional. Neither faffs to increase benefits and therefore system plaintiff attacks the of tem- statute’s “primary” two legislature’s one of achieve benefits, much porary which to be more seem (3) is goals. AMA Guides uncon- Use the com- than the statute and beneficent old stitutional, court, pure says the “The because mon law. adequate system is not an impairment-based com- yet for workers’ plaintiff been or reasonable substitute Though Garcia has system negligence try [A] law actions.... injured, faces the whether mon he decision quit- compensate work- rights by adequately that does not preserve his common-law 11(A)(2) provision opt-out discussed section explained 3.The terms are in section 2.These 11(C)of this dissent. this dissent.

H9 goals, is able to reason overriding rights common law the loss of their ers for achieve the Guides do not legislature has sacri- the AMA “[T]he not rational.” consistency, uni- providing purpose. benefits But goal legislature’s its increased ficed objectivity injured to achieve these formity, predictability, workers order [efficiency, consistency, objectivi- goals not neces- goals other that are themselves laudable In increasing uniform do- ty, predictability, lowering treatment]. sarily linked to costs so, provide workers an ing it has failed to benefits. law adequate for their common substitute legislature’s con- supports the The record rights.” system produced inconsis- that the old cern conclusions, the court reaching these cases; similarly-situated results in tent offered those has relied on the evidence subjective evaluations old rested attacking and has not even men- the statute equal justice under law goal of of cases. One supporting the much of the evidence tioned similarly-situated equal is the treatment statutory method legislature’s choice of this goal indeed, a valid persons. That — achieving goals reforming the law. worthy legislature was enti- goal—which The court of the 1989 act. pursue. Goals tled to many legislative statements of canvasses analysis is the Another flaw in the court’s intent, legislature had which show that must apparent assumption that statute goals enacting in this statute. several contrary, goals. meet all its On the goals court identifies the various stated rationally any of its several statute furthers (1) legislative history: adjudi- the act and the rational-basis test. purposes, it satisfies the (one cating efficiently legislator more claims Co., Creamery See Minnesota v. Clover Leaf delivery spoke streamlining the of bene- 456, 465, 66 449 101 S.Ct. U.S. fits); (2) increasing objectivity, predictabili- (1981); Bradley, 440 Vance v. L.Ed.2d ty, uniformity, consistency and in claim as- 93, 97, 943, L.Ed.2d 171 99 S.Ct. U.S. (that is, similarly-situated employ- sessment cited the court do The authorities benefits; similar benefits ees should receive has a much not convince me that Texas vary gender, with race or or with should not than the equal protection standard stricter (3) skill); lawyer increas- different venue or in a case such federal rational-basis standard (4) controlling ing benefits; containing and this, suspect involve a as which does not (5) costs; litigation containing rising and right. or fundamental classification Concerning goals, rates. the last two several legislators expressed rationally legisla- the desire to reduce The act is related to the objectivity costs.” con- goals increasing “transaction ture’s streamlining process. I sistency all The court refers to and documents (and statute, like all statutes grant that the says goals “primary”: and then are these two decisions), judicial may perfect. not be Of decreasing increasing benefits and costs. premi- it is too soon to tell whether course consistency, predictability, Having redefined decrease, be- litigation ums and costs will uniformity, efficiency objectivity, given a statute has not been cause the costs, only decreasing opinion then mean pro- the Act will chance. “Whether in Guides, fact being impair- the AMA reasons that ques- goals] is not the mote of several [one assessing and not oriented to ment-oriented Equal Protection Clause is satisfied tion: the Because disability, do not increase benefits. [legislature] could by our conclusion of its two main the act does not achieve one ” might. rationally that it have decided court, says it follows that goals, Co., Creamery Minnesota v. Clover Leaf guidelines violate the constitution. (emphasis at 725 101 S.Ct. U.S. key reasoning is the elimi- flaw this original). consistency, uniformity, goals of nation of the people streamlining mentions that some The court objectivity, predictability, and the old statute goals better off under Having collapsed those would be procedure. every But that true of costs, equates the common law. is decreasing the court then into system. true of compensation is decreasing workers’ increasing costs as benefits statute; it rests on a misstatement old Texas under the old statute because impair- goals. fared and some worse The court mentions some workers better act’s only part system, but they would fared under common- ment is of the whole than point being the evidence law rules. On shows essential- then condemns statute many ly impairment work- knew statute. employer ers’ cases there is truth, mix ap- uses a statute which, liability, negligence or other means (1) proaches: Temporary These benefits. compen- receive no that such workers would disability, looking at are assessed under rules. at all common-law sation They worker impairment. last until the analysis The court’s means that whenever recovery maximum or until 104 reached attempts among a balance statute strike passed, occurs sooner. weeks have whichever may conflicting goals, a void the statute court ordinarily temporary § be- 4.23. benefit goals. it does not achieve one of the because injury, gins days seven and the within analysis ignores when But this the fact that a maximum benefit raised from under $252 a balance between increase). statute seeks strike (a percent the old act to $438 directions, it goals pull different (2) Impairment temporary After benefits. impossible to all of them. achieve end, employee receive addi- benefits impairment tional benefits based on his rationally The use AMA Guides (3) wage Supplemental 4.26. bene- level. goals consistency, predict- related Those ex- workers whose fits. efficiency, ability, objectivity, and uniform supplemental percent given ceeds similarly-situated treatment workers. impairment long-term benefits based on unfairly Only by characterizing the act’s wage legislature simply Here the de- loss. the court it is unconstitu- goals does conclude injured seriously more workers cided that tional. get supplementary and less could benefits disability. Impairment versus injured seriously workers could not. holding opinion the court’s is its that crux of compensation, three With these tiers of adjustment does allow for the 1989 law not provides a based statute mix of benefits on employ- relating to an individualized factors loss, physical wage impairment, medical capacity; wage-earning loss of instead ee’s expenses. same true of statutes is body. impairment act focuses on to many other The court errs in states. essence, says unconstitu- In court it is nothing than condemning this as more an law (which system impairment tional to have an impairment statute. damage body, physical or on to the focuses (which loss) disability system a fo- and not view, nothing irrational my or there is loss). work, inability wage on cuses to impairment using unconstitutional about says improper it is for a The court compensation in part of a workers’ physical impair- compensate primarily for using disability approach entirely. a stead of ment; open-courts provi- the constitution’s pre Perhaps legislators we as would requires compensation that workers’ sion emphasize more and wage loss ferred capacity. earning on focus loss of statutes poli impairment that is a physical less. But cy not rise to level of difference. does The act is an reasoning The court’s is this: violation. a constitutional system, injury impairment focuses which capacity; body, earning not on to the loss of specific-injury scheme is The old statute’s goals is primary of the act’s two one part system, but impairment most for the benefits; sys- impairment increase the act’s it seriously suggested that no one has goal rationally further its tem does court’s under the anal- unconstitutional. Yet increasing not ade- benefits because does ysis, old law also be unconstitu- would capacity; earning quately compensate for lost impair- today’s because under decision tional it violates the thus constitution. speaks That systems be valid. ment cannot section, today’s how decision de- argued about far preceding I have in the volumes As beginning parts from mainstream. analysis faulty etc). thumb, Article for loss of a that rationale for weeks The court is aware contains an repealed § old law would 12 of the condemning the 1989 law which also injuries. These specific Having extensive list the old law cannot be sound. doom by per multiplied a benefits were systems are unconstitu- scheduled held that wage rate to deter centage worker’s tional, that the old the court tries to show recovery. approach not an im- mine his net specific-injury was law’s rized this well-settled body, physical harm to certain members of the ic-injury system in these words: because under injury ries, how the failure to the scheduled finder under part of its earning wages. injury based tional. The court injury could nevertheless recover capacity.” With the utmost disability system. That old workers’ say pairment system. impairment-based, then the old law’s recognizes der the old this is incorrect and shows essentially the worker not overall compensation scheme would benefits. specific-injury set-up injury grasp article argument law a worker with recovery injury today’s a fundamental feature of the if could seek to affected his or her The court summarizes this harm in parts therefore impairment system, To be systems also be as follows: supreme principle was more severe than decision allowed of the old law were 12 schedule of is, precise, law. doing unconstitutional, argues respect, I prove are unconstitu- it focused on only specific court summa- of the impairment- “Thus, the old law by proof a disturbing the court to a fact- job general- specific- earning specif- not a must inju- even un- impairment injury’s impairment to the disability. That general disability; the evidence had scheduled benefits. cific-injury show that disability beyond the scheduled benefits could certain circumstances specific injury did not extend to and affect permanently incapacitate him. An his incapacity health to such an extent as injury of three cluded from extended to and The Wilson which the body generally or particular beyond injured employee, body health, affect on expanded supreme case, at 194. The fact remains that if he injured member: court went on employee ^[2] general health caused total specific injury caused total is, specific particular and he was limited to the alleges into body generally. affected other employee the evidence had to show [sic] court cases It was not sufficient body generally impair a impaired a however, injury recovering specific general-injury might member also to show that the had proves that the there was recover his injury say omitted]. only spe- totally portions employee’s [citations Without general or the case, total case pre- for ^[1] an injury evidence, has been sustained a were When such the scheduled benefits particular body body member of the for which according part to what of the limited Compensation provides great- Act much injured, the Workmen’s even there was a was [i.e., earning capacity. a specific employee’s a measure of er effect on the liability insur- specific injury], the of the disability, law It is true that under the old statutory ance carrier is limited to the work, inability could be considered amount, though injury even the loss orof of a assessing extensiveness of loss of use particular actually results to that member words, in In other consid- specific member. permanent incapacity in total and par- ering particular member was whether work, employee of three su- [citations lost, tially totally jury could consider lost or preme cases omitted]. court (its di- physical harm done to it either the Wilson, as a member v. 522 minished usefulness Employers Texas Ins. Ass’n added). (Tex.1975) employment 192, 194 body) utility (emphasis or the loss S.W.2d law, injury. Ins. Co. Thus, specific by the See Travelers even if a caused under the old (Tex.1962); Seabolt, 2 204 v. 361 S.W.2d injury totally permanently disabled a only working, he could receive worker from PatteRN JURY Texas, Bar Texas State (1989). (for But even if there 25.05 example, 200 CHARGES PJC the scheduled benefits member, total knee, specific 60 was total loss of leg of a below the weeks for loss 122 Minnesota v. it, of the trial court. See injury to it caused those

impairment of or the Co., 456, 464, Creamery 449 U.S. disability, employee could recover Clover total Leaf 715, 724, 727, limited, 470, He 66 L.Ed.2d 659 scheduled benefits. 101 S.Ct. (1981) (“States earning required to convince his lost are not not recover for all could legisla differently, injuries to of their capacity. put To it the courts of the correctness compensated accord- is not the function of specific judgments.... members were tive injured body ing member of the their evaluation of to what courts to substitute (i.e., system), according to impairment legislature”); legislative facts for that injury 93, 110-12, disability the caused the amount of 99 Bradley, v. 440 U.S. Vance (i.e., totally disabling (1979); disability system). 949-50, A 939, 171 59 L.Ed.2d S.Ct. (or use) specific member was loss loss of of a Handy Dan Ass’n v. Retail Merchants (Tex. rate under compensated Hardware, Inc., 44, at a fixed scheduled 696 54-55 8306, writ). physical 1985, article 12. This was old App. [1st Dist.] — Houston system, though the benefits var- Legislation presumed to be constitution- rate, wage they do employee’s ied with attacking it the burden is on the one al and the 1989 act. under unconstitutionality. Spring Branch to show say that the old prepared Unless we 556, Stamos, 695 S.W.2d Indep. Sch. Dist. v. set-up specific injury is unconstitution- law’s Votteler, (Tex.1985); 648 S.W.2d Sax v. al, im- say that the 1989 law’s how can we (Tex.1983); Bd. Bar- Texas State calculating pairment provisions when College, Barber ber Exam’rs v. Beaumont —used temporary period beyond the benefits (Tex.1970); Inc., Smith —are 454 S.W.2d not an- The court does unconstitutional? (Tex.1968); Davis, v. 426 S.W.2d striking down the Its rationale for swer. McCraw, Armory Bd. Texas Nat’l Guard also invalidate the old law’s 1989 law would Tex. says specific-injury provisions, which some- Thus, decide judges at all levels do not we of the rationale. thing about the soundness good judgment is a legislative whether one, personally. agree with it or whether we supporting Disregard evidence simply ask courts do not appellate And The court cor- reasonableness. statute’s support evidence to whether there was some to a trial rectly says that courts do not defer In- judge’s findings in this case. the trial concerning the rea- findings of fact court’s the forces determine whether stead we legislation. Appellate courts sonableness have demonstrated legislative vote lost finding adjudicative court’s defer to a trial beyond the legislative judgment was issues, (facts concerning private such as facts pale. legislature’s negligence) but defer to (facts underlying legislative facts findings on give proper purports to defer- The court choices). A lone trial court does policy judg- right make legislature’s ence to the to determine the the same discretion have ments, proceeds to credit but it then goals legislature’s as of the reasonableness (and findings of testimony of witnesses ordinary private finding facts in in has court) the evi- from which differ the trial litigation. opin- supporting legislature. dence page detailing page after Nevertheless, goes ion on for the court’s discus much of against testified testimony from those who goals to defer to the act’s seems sion of highlights court evidence statute. The to those of the findings instead of trial court’s the use of the against from four witnesses the evi The court has stressed legislature. argu- mentioning one without stat AMA Guides against the reasonableness dence recogni- The court’s of them. supporting ment favor evidence downgraded the ute and guide- support of the arguments in reviewing an tion of it, simply though we were “The in this one sentence: is found give defer lines judgment in which we ordinary testimony, some cite medical findings. defendants That is trial court’s ence to the witnesses, indicating plaintiffs reviewing the approach. When erroneous accurate evaluation statute, are the most give Guides constitutionality we defer of a is the This impairment available.” findings, not medical implied legislature’s ence to the job do not injuries on the that most striking down ture hell-bent on of a court work would negligence. The act employer act, reviewing involve dispassionately not a court employees a many of those give most govern- a coordinate branch a statute from give law would not remedy that the common rationally to valid if it related ment to see credit trial court did not Perhaps the them. goals. enti- legislature But this evidence. legisla- defer to the Because we should act it and conclude tled to consider legisla- about the need for this ture’s decision some workers a sensible balance: strikes court’s, trial the court tion and not the recoveries, many large while give up tort give weight to evidence to cite and incorrect (who in their nothing would recover others fairly criticizing the AMA Guides without lawsuits) predictable obtain a modest but tort supporting weight to the evidence giving recovery. states example, For fifteen other their use. sum, invali- disagree I with the court’s In adopted guidelines statute (1) Guides, which rests on of the AMA dation systems, and their workers’ narrow, of the act’s incomplete statement determining twenty-one others use them (2) condemnation goals, an erroneous By giving impression impairment. system, though impairment even act as an gone deep off the end and stands Texas has condemn the analysis would also the same Guides, using the AMA the court alone (3) features, and dis- specific-injury old law’s legisla- given proper deference to the supports the regard the evidence that fac- judgment, which has considerable ture’s I sustain the legislature’s enactment. would support. tual AMA Guides as legislature’s to use the with, begin promote predict- To the Guides it did. ability, consistency, uniformity by using objective measuring injury. more methods of B. Fifteen PERCENT Threshold. adjudi- goals Those should be rational 11(A)(2),the statute As stated in section system. cation sequences of benefits. authorizes three addition, supporting there was evidence Temporary are received for benefits the AMA Guides from several doctors. employee until the has reached weeks or “state of Three doctors termed Guides event occurs recovery, maximum whichever agreed that there is no the art” and several temporary termi- these benefits first. When determining study better written or text for nate, may impairment employee receive (Dr. impairment. expert plaintiffs An for the Afterward, employee re- benefits. Smith) George proper admitted that it is if his supplemental ceive benefits the AMA Guides to determine the extent use percent. The court strikes down exceeds 15 degree impairment. There was evi- supplementary percent this 15 threshold for impair- dence that the Guides are the best (1) “an unreasonable it is benefits because not at ment evaluation available. Courts are the 15 of workers who have classification” liberty that a to decide reasonable not, do percent impairment and those who other instead should have believed witnesses (2) presump- an “irrebuttable it creates of these. the threshold do not tion” that workers below benefits. supplemental need nation’s fifth

The old Texas act was the expensive, providing benefits many most while with that workers The court reasons fifteenth lowest level satisfy per- the tenth or disabling injuries the 15 will employ- high premiums of nation. Because threshold and therefore will impairment cent “going choosing not to have ers were court supplemental benefits. The not receive bare” — coverage taking and their chances picking insurance there is no basis for argues also system. were the common-law Insurers num- with of some other figure fifteen instead abandoning the Texas market because part of the statute “draco- ber. It calls this high losses. nian.” percent Concerning selection of 15 completely ignored this situ- The court has number, Dr. Peter than some other legisla- rather

ation and also the evidence before 124 Opt-Out percent

Barth testified 15 was a sensible C. Provision. impairments cutoff line because 15 below act, employees Under 3.08 of the waive very percent generally In serious. rights against their action common-law addition, up the act doctors allows to round subscribing employers they give unless percent, to the which would nearest five employer days notice written within five a percent mean that twelve and one-half beginning employment. their Section 3.08 fifteen, qual- rounded to could be simply provision forward carries a similar ifying the worker additional benefits. one it unconsti- suggests old law. No The court mention this or does not evidence put the tutional to burden on workers to say why justified rejecting court is preserve writing. rights common-law legislature’s acceptance of it. provision that de- But the court voids the Any threshold or other classification will opt nies old a new chance to out workers be somewhat over-inclusive and somewhat post- pre- because its “classification” of legislature If the under-inclusive. had drawn rationally “not employees related to percent, percent, the line at or fourteen ten providing greater purpose act’s bene- change people that would the numbers of on holding completely fits That to workers.” line; side of there each but would still be misses the mark. Section 3.08 is not sub- “improperly” sup- who be some would denied provision procedural but a one. stantive plemental benefits and others would who procedural- makes no sense strike down “improperly” Douglas receive them. Justice retroactivity provisions because do not “every once observed line for the Court purposes. serve of the act’s one several leaves drawn some out might Village opt-out holding well have been included.” The court’s skirts a more Boraas, 1, 8, question: Belle Terre v. can U.S. 94 S.Ct. fundamental what basis 1536, 1540, might apply court L.Ed.2d 797 That is invalidate this statute as it line-drawing.4 employees opt inevitable there is to be Ne- who do not out but choose vertheless, says, provisions the court “Defendants of- instead of the common law? explanation put differently, any why fered no of the source of the 15 To it do figure. directly plaintiffs standing percent who attack this law as Witnesses were process legislative leading up might apply involved it to some future worker who by failing Act rights to the had no idea where this number waives his common-law preserve days in writing came from.” them within five employment his date? effect, the court has said that as a goes by As more matter of constitutional law each workers’ time there will be subjec- employees must be evaluated more who come under the act’s case hoc, provisions, having pre tively, case-by-case using ad ob- without waived jective legislature thought rights. standards. The serve their common-law Without otherwise, doubt, nothing in the will be who waive their constitution there workers objections bill-of-rights it that 1989 act. Sub- power. denies way fixing precisely, quoted approval the decision 4. The Court has often Jus- cal necessity explanation Legislature accepted Holmes’s must unless tice we inevitability legislative line-drawing: very any say can that it is wide of reasonable Coleman, Gas Co. v. mark.” Louisville & Elec. determined, legal When a as no distinction 32, 41, 423, 426, 277 U.S. 48 S.Ct. 72 L.Ed. be, night one doubts that it between J., (Holmes, (1928) dissenting). maturity, day, ex- childhood and other See, 221, Wilson, e.g., Schweiker 450 U.S. tremes, point has to be fixed or a line has to 1074, 23, n. 101 S.Ct. 1085 n. 67 L.Ed.2d 186 drawn, gradually picked out succes- Beazer, (1981); City Auth. v. New York Transit decisions, change sive to mark where takes 593 n. 1370 n. U.S. 99 S.Ct. place. regard itself Looked at without Valeo, (1979); Buckley v. 424 59 L.Ed.2d 587 necessity point line or behind it the seems 111, 111, 612, 1, n. 83 n. 96 S.Ct. 665 46 U.S. arbitrary. might nearly as well or as well be (1976); Village Belle Terre v. L.Ed.2d 659 or the But a little more to one side other. 1, 5, 1536, Boraas, 8 n. 1540 n. point 416 U.S. 94 S.Ct. when it is be, a line or there must seen that 5, (1974). logi- no mathematical or 39 L.Ed.2d 797 and that there is

125 law, in the old jeet may acquiesce do not the new very exceptions, persons few who to But statutory rights. apply. will still the court should and constitutional law waive State, (Tex. 551, 563 to permit operative v. 758 to remain as See Little S.W.2d new act denied, 934, Crim.App.), preserve cert. 488 U.S. 109 not their those who do workers (1988); 328, R. 102 L.Ed.2d 346 S.Ct. law—that Wayne right litigate to under common is, begin on employment who those workers PRO ISRAEL, LaFAVE & JEROLD H. CRIMINAL 7.3(d), 11.3, 15.1(d), 8.10(e), 10.2, §§ 1, give January after 1991 and do not CEDURE 26.5(c) (1984). 21.1(h), 20.6, Litigants may, written notice under 3.08. rights, example, waive their Miranda this says that no one has raised court indictment, right grand jury their to true, but the court must deal issue. That is jury (by guilty right by plea, to trial their to write with it we must decide how because trial, by nonjury volun acquiescence has judgment. plaintiff in case our No arbitration). consent, By they tary binding standing urge that this statute is unconsti- objection may waive their to an otherwise who com- persons tutional as to waive their search and seizure. Most unconstitutional acquiesce in rights mon-law the statute. by rights may constitutional be waived fail remains expressly I would state the law proper If preserve them at the time. ure after place applies to workers hired persons may rights in important waive crimi 1, January preserve do not their 1991 who cases, they certainly may nal waive their writing. rights in common-law apply to right to have the common law their lawsuits. civil Right Trial. D. to JURY The court has stricken this law because it courts, open equal protection, violates act Texas holding In violates the provisions and due course law Texas jury guarantees, trial the court Constitution’s may Rights. Bill of But individuals waive quoted has but failed follow Middleton protections. particular, may those Co., Light Texas Power & 108 Tex. right to litigate waive their work-related in- (1916), aff'd, S.W. 249 U.S. jury preserving at common suits law (1919). The Middle S.Ct. 63 L.Ed. days rights beginning within those five rejected a similar on the ton court attack employment. original act allowed statute because old litigants to to district court and have right opt appeal Those workers their who waive jury rules this statute make the trial under the substantive out of com plaints statute: this court As has sustained. time goes by there will more and more workers appeals the deci- The Act authorizes from jobs January began their who after courts, where a sions of the Board to constitutionally apply The act can to them dispute, under jury trial the matters nothing prevents because the constitution Act, may the law embodied waiving rights. them from their common-law had. may opt Workers out of the common-law tort Middleton, (emphasis at 562 add- 185 S.W. gener system way litigants in the same ed). in Middleton said this was court ally may opt out of court adequate jury trial. See, binding agreeing e.g., arbitration. Act, General Arbitration Texas Tex.Rev.Civ. away, legal peeled veneer all the When (Vernon seq. arts. et 1973 & Stat.Ann. simply the act today court held that Lacy City L.H. Supp.1993); Co. v. Lub juries applying improperly prevents from bock, (Tex.1977); Brazoria 559 S.W.2d 348 in workers’ traditional common-law rules Knutson, 172, 176 County v. 142 Tex. “There says, The court compensation cases. 740, 743 escape application the mechanical arbitrary percent and the though the has held the statute of the Guides Even court unconstitutional, “repudiat[es] historical The act holding ap- should not threshold.” disability its reliance give up considerations ply to those workers who complain about to those workers the Guides.” it. As agree procedures I say will substantive rules at these is to that the act of if (such Guides) the act as use of strengthens process the AMA are the administrative invalid, constitutionally just and workers have a significant meaning- it not makes a litigate right to constitutional under common- concerning prelude litigation. less to And rules, may law then it follows that the act not weight given designat- that must to a juries require apply to But the statute. if trial, jury surely opinions ed doctor’s in a it recovery the act’s substantive rules of are proper legislature try was to mini- for valid, surely then acted consti- hired-gun, dueling mize the use of doctors. tutionally required when that courts and holding I dissent the court’s from juries apply faithfully them cases when are jury guar- act violates the constitution’s trial reviewed in court. separately apart validity antees from the not court has honored what seems to of substantive rules. me truism: the substantive rules of valid, recovery requiring are a law courts and Hybrid E. Judicial Review. juries apply rules those to the facts is also appellees’ cross-point The court sustains guaran- jury valid and does not violate trial provide and holds that a statute not all, juries tees. After certain cases must e.g., different kinds of substantial review — negligence per follow the law of instead se of evidence review and de novo review—in negligence. common-law Pursuant stat- says opinion flatly, “Hybrid case. same ute, juries may negligent find a plaintiff impermissible.” disagree is I with review failing In to wear seat belt. DTPA authorities, reading which hold juries cases find whether a defendant violat- types contradictory have of re- list, laundry ed the which is different impermissible. A view same issue the common law. compensation case can involve sev- workers’ course, act, Jury trials under old did permits distinct This eral issues. statute give jury deciding free rein in decisions, judicial review of the commission’s regard issues without to the act’s substantive simply permits engage courts to in sub- contrary, juries rules. On the courts and review of stantial-evidence some issues applied (including spe- old act’s rules nothing novo de review of others.5 There is cific-injury impairment provisions), which wrong providing for different kinds varied from the common The rules law. judicial review of different issues. procedure always required courts supreme The court cites two court cases. juries instruct about the substantive ele- See Southwestern Bell Tel. Co. v. Public Util. proved ments that must be to establish a Comm’n, (Tex.1978); South- ground recovery or defense. See Tex. Eng’rs, ern Canal Co. v. State Bd. Water In fact it violate R.Civ.P. 277. would due (1958). 159 Tex. But 318 S.W.2d 619 process jury findings deny to let a make judicial each of those cases involved review life, liberty, litigant property without issue. In the issue one Southwestern Bell finding and evidence that the substantive publicly whether mandated rates were was elements of the claim had been established. confiscatory. issue In Southern Canal the 307, 314, Virginia, See Jackson v. 443 U.S. whether was reason- the board’s order 2781, 2786, S.Ct. L.Ed.2d able. juries The court criticizes the act because part

are not one of the control- allowed to consider cases de novo. Southern Canal (and Instead, they ling try limited statute courts to the ease de to the issues directed evidence) novo; usually presented to the com- another section directed the court mission; pan- jury appeals told reasonableness of an order determine the decision; el’s and the under the substantial-evidence rule. administrative record way utterly ineon- judicial in court. to look two kinds of review are admissible Another novo, using specified § de all other 5. The act mandates trial benefits." 6.62. Judicial review of governed procedures, “compensability evidence issues is for issues eli- substantial gibility for or the amount of income or death rule. 6.64. s by linking employee it to the fee found counsel’s with each other the court sistent a conflict of conflicting recovery; that create inharmonious would the statute “so incen- by giving counsel an impossible render it 818 interest defense as to execution.” by increasing the presented at 624. fee Southwestern Bell tive to increase his Apparently the interpret- pay. There the client to a similar conflict. court his has award statutes, arbitrary and concluding man- it is position ed two that each is that court’s from protect individuals exces- a kind of review of the same irrational to dated different issue, protecting in- pro- attorneys’ court the confiscation. The struck fees while sive If impossi- way. one it the court visions of statute because was surers in the same contradictory plaintiff court to use defense fees must saying ble for trial that identically, it tell how it types of of the same us review issue. treated shouldn’t done? could be opinion There no indication either to kind of that it is unconstitutional have one it —not legislature had evidence before for kind of review one issue another lawyers re- the court —that mentioned for a issue. It is true that review second $400,000,000 yearly fees ceived of some twelve-page opinion in Bell Southwestern system and that compensation workers’ phrase used the “in the same ease” several percent paid total only 40 amount cursory reading But times. the most legislature act- claims went workers. opinion shows that the case involved review rationally seeking to reduce amount ed the use of one issue and the court condemned by attorneys’ siphoned costs off reviewing for that contradictory standards proportion fees and to maximize lone issue. recovery kept How can it be the worker. require attor- unconstitutional to that termed F. ATTORNEYS’ FEES. neys’ hourly on an fees be assessed basis? attorneys’ The court invalidates act’s assumption The court’s is that unstated provisions reasoning: following fees on the greater net award workers will recover attorney hourly for a worker recover attorney. an But there evidence percent in no than fees but event more legislature law that under the old before recovery; recovery worker’s usu- will attorneys who had netted an aver- workers small, ally attorneys’ means the fee which age of those who did not use while $7500 small; comparable will also be there is no (re- attorneys average netted $8500 attorneys’ fees; ceiling on some defense Leedom). marks of Senator On what author- plaintiffs’ attorneys testified it would not appellate refuse ity this court to defer does be economical for them to workers’ handle legislature’s right to consider to the system; under cases this fee evidence? provision this is therefore unconstitutional Second, note the court fails to arbitrary “it is to dis- because irrational (or court) approve any at- must commission legal only courage representation one § torneys’ paid by 4.091. fee an insurer. See nothing prohibit doing side while the other the court men- in a footnote does And obtaining representation.” The side from 4.28(0(2), § makes the carrier tion which says provision also rational- court “not attorneys’ wrong- pay the worker’s fees ly statutory purpose in- related supplemental ben- fully disputes his claim for creased benefits.” pay But the worker does not efits. defense disagree reasoning I with this for several Third, wrongfully brought. if a claim is fees all, it is reasons. rational for First legislature established ombudsman limiting protect workers unrepresented workers. program to assist recovery can con- amount of the 5.41(b). away attorneys’ act tract fees. The old striking provision, the court cap attorneys’ on fees. In down this percent also has a 25 whatsoever to comparable protection; given deference Insurers do not need has would, opened up itself legislature. It has they can take care of themselves. protected law- course, judiciary criticism that be unworkable limit defense (on docket) limit at- yers challenge both strict earning sides of the constitutional eases). $400,000,000 year torneys’ fees. fees veteran-benefits addition, reasoning the court’s would Severability. G. attorneys’ provi- probably invalidate the fee act, employ- sion of the old which limited the uphold Because I would the entire statute attorneys’ fee percent ee’s to 25 but did not authority, being I legislature’s within the beyond attorneys. limit fees for It is defense only severability issue of because reach the attorneys’ how the court the me can hold that The this sever- the court does. act contains workers, espe- provisions are fee hostile to ability clause: essentially cially when the had old law the appli- any provision If Act or its of this provisions. may not be attrac- same The law any person to circumstance is cation or lawyers already good to who have a tive law invalid, invalidity the affect held does not that it practice, but does not make unconsti- Act provisions applications other or of this also tutional. is true that the law limits given invalid that can be without the effect lawyer recovery disproportionate of fees provision application, to this end and expended, surely the time that was with- but provisions the Act are declared this legislature’s power. in the severable. lawyers represent that The notion will not Act, Compensation 71st Texas Workers’ under the is nonsense. Of workers 1989 law C.S., 1, 17.17, Leg., ch. 1989 Tex.Gen. 2d course, lawyers might some successful (not codified). 1, 122 Laws not, they healthy because make fees other says The court that under Rose v. Doctors great considering kinds of cases. But the (Tex.1990), 841, Hospital, 801 S.W.2d 844-45 lawyers yearly by out our numbers turned (1) legislature whether would the test is the schools, say it is preposterous law few the the statute passed parts not have valid lawyers would take a workers’ (2) parts, remain the invalid the without hourly percent capped case for an at 25 fee der of the statute can stand itself recovery. the Even if under the 1989 act part. I operate independently severed attorneys only would earn a fraction question; agree not that we ask the first do $400,000,000, previous surely would the fees severability clause itself establishes legal sufficient into the work- attract talent legislature passed would have the statute compensation system. ers’ portions. The first Rose without stricken happened plainly should state has We what pertinent question not when there is legislature lawyers here. The said clause, interpret severability I do not percent not receive than 25 should more prior law and hold Rose to deviate from recovery. net And if the work- the worker’s v. See Bell Tel. Co. otherwise. Southwestern recovery comparison large er’s Comm’n, 503, 512 Public Util. 571 S.W.2d expended, lawyer lawyer’s time should be Drake, 381, (Tex.1978); 160 Tex. Eades v. spent, straight for time paid not (1960); Crudg 332 S.W.2d Jordan words, percent. legislature In other lim- 646-47 ington, 149 Tex. money lawyer the amount of can take ited (1950). act, from his client fees. the 1989 Under severability that we lawyers group clause itself states as a will not earn same $400,000,000 years. inquiry essentially the same as previous must make an earned standard; re- Rose the clause Brushing legislature’s aside the evidence that the second the remain- quires law more with- us to determine whether under the old workers netted them, “can without lawyers given of the act effect out than with the court sides der view, application.” The my provision invalid lawyers and voids the law. deny court concludes that the remainder the Texas Constitution does we reasoning Its is as follows: power protect individuals in severable. the AMA down use of way. National Ass’n have struck Walters v. Cf. Guides, Survivors, percent supple- the 15 threshold 105 S.Ct. Radiation 473 U.S. benefits, (1985) opt-out provision, (rejecting federal mental 87 L.Ed.2d 220 rules, arrogant prevent hybrid futile efforts judicial re- court’s jury trial so-called legislative through institu people, acting view, attorneys’ provisions. and the fee With tions, problems dealing with economic gone, especially the im- so much of the act century. Attor during the first third of this percent portant AMA and 15 thresh- Guides Jackson, sat who later ney General Robert old, legis- is now the act unworkable and Court, his book about on the entitled form. passed not have in this lature would history Struggle Judi episode in our reasoning fails because the court This greatest Four of the Supremacy cial unwilling legislature’s fall- give been Brandéis, (Holmes, justices history in our says position back chance. statute Cardozo) Stone, consistently dissented AMA are held invalid the that if the Guides judicial supremacy the doctrine of from “adopt objective commission shall rule Not one States matters. United economic guidelines guide- to similar the advo since 1941 has Supreme Court Justice American As- published lines Medical judicial supremacy over practiced cated Compensation sociation.” Texas Workers’ old nation’s affairs. Both the economic 17.171, Act, C.S., 1, § Leg., 71st 2d ch. 1989 agreed leg court court and modern (not codified). I would Tex.Gen.Laws 122 enact workers’ islatures guide- the commission to establish such allow change law totally the common statutes that obviously guidelines The new lines. would irra arbitrary are unless the statutes objection court’s the AMA meet Min Usery v. Turner Elkhorn tional. See print, copies out to Guides are are hard 2882, 2892, Co., 1,15, 49 96 ing 428 U.S. S.Ct. find, being are used for unintended (1976); York R.R. 752 New Central L.Ed.2d Why give purposes. will the court not even White, 188, 202-204, 37 S.Ct. v. 243 U.S. Co. satisfy 252-53, the commission a chance to the court’s 247, 61 L.Ed. 667 objections of impairment other to the use of substan- The old court used the doctrine guidelines? reading of the process a narrow tive due new, Congress’s powers to scope of enumerated guidelines in With more flexible self-govern- people’s curtail the efforts at place, objections jury the court’s trial Today’s open courts court uses the vanish; ment. attorneys’ provisions fees would pre- provision of Texas Constitution to objections primarily the no- those rested reforming from court- vent underlying guidelines tion too were law. The court also invokes substan- made stingy opt-out provision and inflexible. III(C), says in process. section tive due nothing operates to do how the with act constitution, sub- “In contrast the federal severability. nothing and therefore to do with process remains vital doctrine stantive due Concerning hybrid judicial review, we should course, under the Texas Constitution.” Of supreme example follow the court’s in South- precedents binding on Texas federal Utility v. Telephone western Bell Co. Public interpret judges when we Texas Consti- Commission, (Tex.1978): 571 508 Garcia, Davenport v. 834 S.W.2d tution. See sever the de novo and substantial evidence (Tex.1992); State, Heitman provisions review and allow one the other (Tex.Crim.App.1991). But we should to apply. from, repeat, and not the disastrous learn approach, only per- with the 15 Under vetoing experience of the old court’s federal provision invalid, the court cent threshold real- when constitution did not legislation act, uphold should the remainder of require it. ly the act which is severable under 17.17 of height At the of the old court’s emascula- Rose and the test. Deal, Stone, Brandéis, and of the New tion protested: Cardozo grasp court Ours is the first a statute power of courts to declare policy belongs to anoth itself a decision that subject guiding two unconstitutional is government er and to substitute institution ought which never principles of decision To legislature. judgment judicial that of absent from consciousness. unmistakable, though only day’s opinion are concerned has an is that courts One statutes, discredited, power to not with the old enact parentage: intellectual Practic- Deceptive Trade is that while unconsti- death statute or The other wisdom. power by they substantially the executive ground tutional exercise of es Act on the legislative government branches Both statutes changed the common law? restraint, subject judicial rights of drastically changed the common-law power upon check our own exercise providing a defendants without substitute For the our own sense agree any surely the court would kind. And of self-restraint. removal unwise laws statute rights in legislature was within its lies, courts, appeal books not to the but to abolishing actions for alien- the common-law processes democrat- the ballot and to ation of affections and criminal conversation government. ic providing kind of substitute.6 without legislature’s actions in all these

How can the only agency gov- are not the today’s Courts upheld under decision?7 instances be ernment that must be assumed to have wrong the question alone shows how far This govern. capacity to gone today. court has Butler, 1, 78-79, 87, United States v. U.S. I from the court’s deci- respectfully dissent (1936) 312, 325, 329, 80 L.Ed. S.Ct. compensation act of holding sion the workers’ Cardozo, JJ., (Stone, Brandéis, dissenting) & 1989 unconstitutional. added). (emphasis RICKHOFF, JJ., join uphold legislation economic un- We must BUTTS and clearly rights or is less it violates individual dissenting opinion. legislative authority

outside the bounds of set legislature, Like the we the constitution. duty-bound stay within our constitu- courts do not

tional role. And when we the

stay the constitutional bounds that within authority, to correct limit our there is no one and Heather M. Ian MANAHAN Scott our to be us. We forfeit much of Friend, Manahan, By Their Next legal respected fair enforcers of the rules Manahan, Appellants, Pamela M. ignore the rules that limit our own when we power and set aside the decisions two v. government on an coordinate branches of Haworth, Kimberly MEYER, Inc., Inez committed to them. issue the constitution Life and Safeco Insurance conclusion, expansive I observe Company, Appellees. employs to- constitutional doctrine the court No. 01-92-00146-CV. cases, day applied in future and we must be Texas, Appeals of Court of this decision need to think about where Dist.). (1st validity legal of a test of the Houston lead. “One scope is the extent and with which it doctrine Aug. safely applied.” ex rel. Ed- may be State 21, 1993. Rehearing Denied Oct. Reyna, 160 Tex. 333 S.W.2d wards v. 832, 838 seriously today’s majority entertain

Would challenge wrongful

a constitutional McMillan, adopted com- abolished that rule and 493 S.W.2d 729 6. See Felsenthal v. 1973) (criminal (Tex. part negligence place. conversation is of Tex parative in its See Tex.Civ Prac Turner, law); (Vernon Supp. as common Turner seq. §§ 33.001 et & Rem.Code Ann. (alienation affections); (Tex.1964) 1993). giving anything like defendants Without TexFam. 1993) (Vernon (abolishing ac 4.05 return, Code “adequate that statute substitute" in Ann. conversation); (abol §id. 4.06 tion for criminal gave away right law that the common took affections). ishing action for alienation of power legislature exceed its defendants. Did the contributory negligence? I think abolishing reviewing even find un- 7. A court could hostile not, analy- question might if the but it be a close legislature's modification of constitutional faithfully applied. today’s decision is sis of contributory negli- rule that the common-law absolutely negligence gence bars a suit.

Case Details

Case Name: Texas Workers' Compensation Commission v. Garcia

Court Name: Court of Appeals of Texas

Date Published: Aug 11, 1993

Citation: 862 S.W.2d 61

Docket Number: 04-91-00565-CV

Court Abbreviation: Tex. App.