# Johnson v. Second Injury Fund

> Texas Supreme Court · April 10, 1985 · 28 Tex. Sup. Ct. J. 351

URL: https://www.frixlaw.com/law-library/cases/9672647

## Case

- **Full name:** Walter JOHNSON Et Ux, Petitioners, v. the SECOND INJURY FUND of the State of Texas, Respondent
- **Court:** Texas Supreme Court
- **Decided:** April 10, 1985
- **Citations:** 28 Tex. Sup. Ct. J. 351; 688 S.W.2d 107; 1985 Tex. LEXIS 834
- **Precedential status:** Published
- **Opinion:** Dissent by Hill
- **Judges:** Robertson, Hill, Campbell, Gonzalez
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9672647

## How later opinions describe it (automated extraction)

- stating that "it is a settled rule [of statutory construction] that the express mention or enumeration of one person, thing, consequence, or class is equivalent to an express exclusion of all others" (quoting State v. Mauritz-WellsCo., 175 S.W.2d 238, 241 (Tex. 1943))
- holding that because the legislature enacted a provision expressly delineating how the second injury fund was to obtain its monies and that method did not include sub- rogation, the right of subrogation granted an insurance carrier was not available to the fund
- stating "it is a settled rule that the express mention or enumeration of one person, thing, consequence or class is equivalent to an express exclusion of all others"
- stating that “legal maxim Expressio unius est exclusio alterius is an accepted rule of statutory construction in this state” through which “express mention or enumeration of one person, thing, consequence or class is equivalent to an express exclusion of all others”
- applying interpretative maxim expressio unius est exclusio alterius, meaning that express mention of one consequence is equivalent to express exclusion of all others

## Opinion text

HILL, Chief Justice,
dissenting.
I respectfully dissent. The constraints of stare decisis prevent my joining the ma *110 jority. The outcome of this case is controlled by a prior decision of this court, Industrial Accident Board v. Guidry, 162 Tex. 160 , 345 S.W.2d 509 (1961). In that case this court forthrightly stated:
By placing the Second Injury Fund Sections, supra, into the Workmen’s Compensation Act and by remaining silent as to the manner in which a claim against the Second Injury Fund is to be perfected and considered, the legislature undoubtedly intended that the established procedure of administrative disposition by the Board, and all pertinent provisions of the Act for that matter, be equally applicable to a claim against the Second Injury Fund as they are applicable to claims against insurance carriers. A proceeding by a claimant against the Second Injury Fund does not differ materially from a proceeding by a claimant against the insurance carrier.
Id. at 512 [Emphasis theirs]. See also State v. Bleeker, 348 S.W.2d 639 (Tex.Civ. App. — Eastland 1961, writ ref d). The majority’s reliance on Industrial Accident Board v. Parker, 348 S.W.2d 188 (Tex.Civ. App. — Texarkana 1960, writ ref’d n.r.e.), for the proposition that a caveat to the in pari materia reading of the Workers’ Compensation Act exists is misplaced. Parker , decided a year before Guidry , is a court of appeals opinion dealing with the same question as Guidry which contained no caveat. When this court writes on any issue, its opinion and not a court of appeals opinion represents the law of the state.
The Workers’ Compensation Act provides that the “association shall be subrogated to the rights of the injured employee” when the employee claims compensation benefits and additionally pursues an action against a third party. TEX.REV.CIV.STAT.ANN. art. 8307, § 6a (Vernon Supp.1985). “Association” is defined as “Texas Employers’ Insurance Association or other insurance company authorized under this Act to insure the payment of compensation to injured employees or to the beneficiaries of deceased employees.” Id. at 8309, § 1 (Vernon 1967). In construing the Workers’ Compensation Act in pari materia, as we must, and in light of our decision in Industrial Accident Board v. Guidry, I would hold that the legislature intended that the Fund be entitled to the same statutory subrogation rights as private insurance carriers. In a subrogation proceeding, the Fund acts in the capacity of an insurance carrier; it “is entitled to the same protection and privileges which the legislature has given insurance carriers.” Guidry. See also COUCH ON INSURANCE 2d (Rev. ed.) § 61:418 (1983) (subrogation right extends beyond insurance carrier to any agency- which makes payment to the injured employee).
The majority attempts to distinguish this case from the Guidry line by its conclusion that the Second Injury Fund provisions of the Workers’ Compensation Act are silent on notice and filing requirements while the statute specifically provides for the Fund’s method of funding. The majority embarks on a tortuous path in pursuing this misper-ceived distinction and in treating this as a funding case instead of a subrogation case. This novel approach avoids the only true issue in the case: whether the Fund is entitled to the privileges of subrogation as set out in the Workers’ Compensation statute. This case is simply not a funding case, it is a “compensation recoupment suit.” Myers v. Thomas, 143 Tex. 503 , 186 S.W.2d 811, 812 (1945) (emphasis added). Guidry did not hold that all provisions except those effecting funding be equally applicable to a claim against the Second Injury Fund. The Guidry court italicized all to underscore and emphasize its holding that each and every pertinent provision of the Workers’ Compensation Act was to be equally applicable to a claim against the Second Injury Fund.
Funding of the Second Injury Fund involves the influx of new monies into the Fund’s operating revenue by statutory mandate. In our state, as in most, this is achieved by requiring insurance carriers to deposit unpaid death benefits into the Second Injury Fund. TEX.REV.CIV.STAT. ANN. art. 8306 § 12c-2 (Vernon Supp. 1985). Other states maintain their Second *111 Injury Funds by special appropriations or a small percentage assessment against insurance carriers. See Larson, The Law of Workman’s Compensation § 59.31(b) (1983). In contrast, however, subrogation involves a regenerative process; old monies are recycled through the system when an injured worker, such as Johnson, recovers from a third party tortfeasor. The majority’s “funding” analysis is but a straw man.
The Second Injury Fund provisions, including the funding provision, were en-grafted onto the Workers’ Compensation Act which contained a statutory right of subrogation. With a workable statutory framework in place to compensate injured employees, it would have been ludicrous to have required the legislature to specifically insert each cog of that framework into the Second Injury Fund provisions when they were added to the Workers’ Compensation Act. This court refused to adopt that type of statutory construction in Guidry , and we should reject it here.
The majority opinion also ignores the history and purpose of the Second Injury Fund. Originally, the Workers’ Compensation Act allowed an employee, rendered totally and permanently disabled by successive injuries, recovery from the insurance carrier for the second injury only; he was denied any recovery for total and permanent disability. Acts 1917, 35th Leg., p. 269. The purpose of limiting recovery to the second injury was to encourage the employment of the physically handicapped by keeping premiums down. Miears v. Industrial Accident Board, 149 Tex. 270 , 232 S.W.2d 671, 672 (1950); Gilmore v. Lumberman’s Reciprocal Ass’n, 292 S.W. 204, 206 (Comm’n App., judgm’t adopted 1927); see also Larson at § 59.31(a).
Thirty years later, the legislature amended the Act to create the Second Injury Fund to compensate previously handicapped workers for the difference between recovery for the second injury, which is the carrier’s obligation, and recovery for permanent and total disability. Acts 1947, 50th Leg., p. 690, ch. 349, § 1. This Fund was created “to facilitate the employment of handicapped persons including a large number of returning veterans through the establishment of a Special Fund out of which such persons may be compensated when they sustain a subsequent injury.” Id. at § 2.
In Miears v. Industrial Accident Board, at 673, this court said:
In spite of the soundness of the reasoning behind the provisions of Section 12c, it is obvious that in cases to which it applied before the 1947 amendment the employee who was totally and permanently disabled as a result of the combined effect of successive injuries received less compensation than would otherwise be awarded for total and permanent disability. As a means of obviating the inequality of treatment resulting from such statutes, it was urged that “second-injury funds’’ should be created out of which additional compensation could be paid to such employees. [Emphasis added.]
There is no indication that the legislature intended to give workers who become totally and permanently disabled by successive injuries more benefits than workers who are totally and permanently disabled by a single injury. The overwhelming indication is to the contrary, that is the legislature intended to put previously handicapped workers on equal footing with workers who had no prior disability.
Far from creating consonance in the Act, the majority’s opinion will result in “disharmony and hiatus.” It will allow the worker who becomes totally and permanently disabled as a result of successive injuries to retain the amount he receives from the Second Injury Fund even when he recovers from a third-party tortfeasor. But, this same worker will have to reimburse the insurance carrier for the payment the carrier has made to him for the second injury. Moreover, the worker who becomes totally and permanently disabled as a result of a single injury will have to reimburse the insurance carrier for all of the payments made to him.
*112 Under the result I would reach, Johnson would have to reimburse the Second Injury-Fund for the $30,499.43 it paid to him, just as he would if he had received this money from a private insurance carrier. Johnson, however, would be left with his settlement with Texas Industries which gave him $162,500 in cash plus an annuity of $750 per month for life and required Texas Industries to reimburse the Texas Employer’s Insurance Association for the benefits it had paid to Johnson for the second injury-
In this case the law is plain and unambiguous; insurance carriers are given the right to subrogation and, in light of Gui-dry and the history and purpose of the Fund, and a reasonable reading of the statute as a whole, the right extends to the Second Injury Fund. Any other result frustrates the legislative purpose, and I, therefore, respectfully dissent.
CAMPBELL and GONZALEZ, JJ., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9672647. Public record. Not legal advice.