Opinion
No. 05-03-00728-CV.
Opinion Filed May 5, 2004.
On Appeal from the 336th District Court, Grayson County, Texas, Trial Court Cause No. 96-0664.
Reverse and Render.
Before Justices WRIGHT, MOSELEY and RICHTER.
MEMORANDUM OPINION
This is a worker's compensation case. In its first issue, appellant claims the trial court erred when it determined appellee was entitled to 401 weeks of benefits calculated from the date of the employee's incapacity, as opposed to the date of injury. In its second issue, appellant complains that the trial court awarded appellee pre-judgment interest on a stipulated recovery amount. The facts are well-known to the parties, were stipulated in the trial court, and we do not recite them in detail. Because all dispositive issues are clearly settled in the law, we issue this memorandum opinion. Tex.R.App.P. 47.1. We reverse and render judgment that the appellee, plaintiff below, take nothing by her suit.
The case was submitted to the trial court on Stipulation of Evidence. The trial court certified the Stipulation of Evidence as correct. As a result, the stipulated facts are binding on the parties and this Court. Tex. R. Civ. P. 263. This Court reviews the trial court's judgment de novo. Walker Eng'g, Inc. v. Bracebridge Corp., 102 S.W.3d 837, 839 (Tex. App.-Dallas 2003, pet. denied).
The appellee in this case was injured on November 20, 1987. She intermittently missed work from November 1987 through August 1994 due to her injuries. She underwent a diskectomy in 1991 and had lifting, bending, pushing and pulling restrictions in place ever since. The parties stipulated she was totally and permanently disabled beginning on November 9, 1997.
Section 6 and 10 of former article 8306 provide that permanent disability benefits may be awarded to an injured employee for 401 weeks only when the beginning of the incapacity is simultaneous with the date of the initial injury. See Maryland Cas. Co. v. Duke, 825 S.W.2d 232, 235-36 (Tex. App.-Texarkana 1992, writ denied). Where incapacity arises later, benefits are measured from the date the incapacity commences and extend to a maximum of 401 weeks from the date of the injury. Id.; but see Fid. Cas. Co. of New York v. Stephens, 832 S.W.2d 68, 70 (Tex. App.-Beaumont 1992, no writ.)
Act of March 28, 1917, 35th Leg., R.S., ch. 103, Part I, § 6, 1917 Tex. Gen. Laws 269, 271-272, repealed by Act of December 13, 1989, 71st Leg., 2nd C.S., ch. 1, § 16.01(7), 1989 Tex. Gen. Laws 1, 114.
Act of June 18, 1981,67th Leg., R.S., ch. 861, 1981 Tex. Gen. Laws 3290, repealed by Act of December 13, 1989, 71st Leg., 2nd C.S., ch.1, § 16.01(7), 1989 Tex. Gen. Laws 1, 114.
This Court has recently addressed this very issue in a memorandum opinion. See Dallas County v. Pavlu, No. 05-01-02050-CV, 2003 WL 282683 (Tex. App.-Dallas 2003, no pet.) (mem. op.). Duke was followed by the Pavlu Court. Id. at *3. Pavlu held that when the incapacity arises after the date of injury, benefits are measured from the date the incapacity commences and extend to a maximum of 401 weeks from the date of injury. Id. (citing Duke, 825 S.W.2d at 235). The parties' Stipulation of Evidence provides that July 28, 1995, is 401 weeks from appellee's date of injury. The parties further agreed that if indemnity benefits ended 401 weeks from the date of injury, the appellee would not be entitled to further benefits. Because we conclude the 401 week period started on the date of injury, rather than the subsequent date of incapacity, we reverse the judgment of the trial court.
Our resolution of appellant's first issue obviates our need to address the second issue. Tex.R.App.P. 47.1. We reverse the judgment of the trial court and render judgment that appellee, plaintiff below, take nothing by her suit.