Opinion issued February 9, 2016




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                            NO. 01-14-00508-CV
                          ———————————
                     FRANCISCO CHAMUL, Appellant
                                        V.
                AMERISURE MUTUAL INS. CO., Appellee


                  On Appeal from the 190th District Court
                           Harris County, Texas
                     Trial Court Case No. 2012-14219


                                OPINION

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

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

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

granted summary judgment against him.
      In two issues, he contends that the trial court erred by (1) applying an overly

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

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

affidavit qualifies as a sham affidavit and therefore is incompetent summary

judgment evidence.

      We reverse and remand.

                                   Background

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

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

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

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

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

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

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

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

Texarkana 1924) (quoting imbecility provision from workers’ compensation

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

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

meaning has proven to be anything but clear.



                                          2
      Further complicating the matter is that the terminology used to address and

differentiate between various levels of intellectual deficits is constantly evolving.

See Caroline Everington, Challenges to Conveying Intellectual Disabilities to

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

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

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

both terms interchangeably in much-criticized opinion while discussing woman

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

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

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

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

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

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

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

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

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

2014).

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

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

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


                                         3
agree that the term “imbecility” is no longer part of the language of medicine for

diagnosing patients or developing treatment plans to address their afflictions.

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

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

selected neuropsychiatric expert included in his report the following statement:

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

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

or professional language use.”

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

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

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

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

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

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

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

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

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

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

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

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


                                          4
S.W.3d 560, 566 (Tex. 2004). Here, we know only that the terminology has

remained unchanged.

      Charging the hearing officers and the courts with construing a statutorily

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

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

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

neurocognitive injury.

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

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

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

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

subdural hematoma with diffuse cerebral edema, and intercranial pressure that

required bilateral decompression craniectomies. He also suffered spinal cord

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

where he remained in a coma for 36 days.

      Chamul was transferred to the Mentis Neuro-Rehabilitation Facility for

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

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

diagnosed Chamul with neurocognitive problems, including significant memory




                                       5
deficiencies that negatively impacted his visual memory, ability to learn, and

ability to retain new verbal information.

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

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

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

and understanding interpersonal dynamics. Chamul is not capable of living

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

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

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

mentally incapacitated because of his work related injuries.”

      Approximately two years after beginning treatment with Dr. Ivanhoe,

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

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

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

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

      Chamul was also examined by Wallace Stanfill, a certified rehabilitation

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

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

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

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


                                            6
any degree of competitive work, even unskilled employment.” Instead, “[h]is

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

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

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

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

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

unemployable.

      Amerisure retained neuropsychiatrist Dr. Andrew Brylowski to examine

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

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

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

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

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

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

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

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

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

C.    The definition of “imbecility” used in Chamul’s administrative and
      judicial proceedings thus far

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

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

                                        7
and courts have adopted a definition of “imbecility” from a dictionary published in

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

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

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

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

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

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

1996).


1
      The Supreme Court discussed the concept of “mental age” in Penry v. Lynaugh,
      492 U.S. 302, 339–40, 109 S. Ct. 2934, 2958 (1989), abrogated by Atkins v.
      Virginia, 536 U.S. 304, 122 S. Ct. 2242 (2002):

           Mental age is “calculated as the chronological age of nonretarded
           children whose average IQ test performance is equivalent to that of the
           individual with mental retardation.” Such a rule should not be adopted
           today. . . . [T]he “mental age” concept, irrespective of its intuitive
           appeal, is problematic in several respects. As the AAMR [American
           Association for Mental Retardation—now American Association on
           Intellectual Developmental Disabilities] acknowledges, “[t]he
           equivalence between nonretarded children and retarded adults is, of
           course, imprecise.” The “mental age” concept may underestimate the
           life experiences of retarded adults, while it may overestimate the ability
           of retarded adults to use logic and foresight to solve problems. The
           mental age concept has other limitations as well. Beyond the
           chronological age of 15 or 16, the mean scores on most intelligence tests
           cease to increase significantly with age. As a result, “[t]he average
           mental age of the average 20 year old is not 20 but 15 years.”

           Not surprisingly, courts have long been reluctant to rely on the concept
           of mental age as a basis for exculpating a defendant from criminal
           responsibility.

      (Internal citations and parentheticals omitted.)
                                             8
      The hearing officer considered the evidence—which included Dr. Hite’s

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

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

      The evidence presented at the Contested Case Hearing reveals that
      although Claimant likely meets the initial portion of the definition
      [that “the affected individual will . . . require supervision in the
      performance of routine tasks”], Claimant has not been shown to
      exhibit the mental age range in question [“a mental age of three to
      seven years”].

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

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

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

sought judicial review of the decision.

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

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

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

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

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

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

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

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

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



                                          9
      Amerisure also argued that the affidavit of Chamul’s treating physician, Dr.

Ivanhoe, should be disregarded as incompetent summary-judgment evidence

because it is a sham affidavit.

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

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

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

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

closer to a mental age of 11 years, the trial court granted Amerisure’s summary-

judgment motion and denied Chamul’s. Thus, Chamul remained without lifetime-

income benefits.

      Chamul timely appealed.

                                  Summary Judgment

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

traumatic brain injury resulted in “imbecility” to meet the requirement for lifetime-

income benefits.

A.    Standards of review

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

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

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

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


                                         10
defendant moving for summary judgment on a cause of action asserted against it

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2003).

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

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

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


                                        11
definitions prescribed by the Legislature and any technical or particular meaning

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

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

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

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

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

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

meaning of the words chosen.”); Fitzgerald v. Advanced Spine Fixation Sys., 996
S.W.2d 864, 866 (Tex. 1999) (explaining that “it is a fair assumption that the

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

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

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

297 (Tex. 1988).

B.    The source of the mental-age based definition of “imbecility” that was
      applied to Chamul’s claim

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

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

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

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

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

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

                                            12
2756–58, 2763–68 (2015). It can be traced to the now-repudiated eugenics

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

Sarah Fender, BIOETHICS     IN   HISTORICAL PERSPECTIVE 11 (Palgrave MacMillan

2013).

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

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

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

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

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

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

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

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

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

the government-mandated involuntary sterilization program that led to the

infamous 1927 case of Buck v. Bell, 274 U.S. 200, 47 S. Ct. 584 (1927).2 There, the

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

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




2
      See Fieger v. Thomas, 74 F.3d 740, 750 (6th Cir. 1996) (noting that Buck has been
      repudiated except for its discussion of selective enforcement).

                                          13
child out-of-wedlock,3 did not have constitutional protection against involuntary

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

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

207, 47 S. Ct. at 585.

      While Justice Holmes and some others in that era used the terms “feeble-

minded” and “imbecile” interchangeably,4 a prominent eugenicist, Henry Herbert

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

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

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

(citing Henry Herbert Goddard’s Report on Committee on Classification of Feeble-

Minded, 15 J. PSYCHO-ASTHENICS 61–67 (1910)). Under Goddard’s system,

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

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

3
      Scholarly research later revealed that neither the plaintiff nor her daughter had low
      IQ. Instead, the plaintiff’s foster parents were intent to institutionalize her after
      their nephew raped her, which led to the birth of a daughter, who actually excelled
      in school until her young death. See Paul A. Lombardo, Three Generations, No
      Imbeciles: New Light on Buck v. Bell, 60 N.Y.U. L. REV. 30, 53–54, 61 (1985).
4
      See James W. Ellis & Ruth A. Luckasson, Mentally Retarded Criminal
      Defendants, 53 GEO. WASH. L. REV. 414, 421 n.38 (1985) (stating that terms
      “‘idiots,’ ‘imbeciles,’ ‘morons,’ and ‘feebleminded,’ [were] all used to describe
      different degrees of mental retardation. The terminology was used without precise
      uniformity . . . . On occasion each term has been used as an umbrella term to
      include all levels of disability.”); see also A DICTIONARY OF MEDICAL SCIENCE
      428 (Lea Brothers & Co., 23d ed. 1903) (defining “feeblemindedness” as “[w]eak
      mental condition[] in which are included dementia, idiocy, and imbecility.”).

                                           14
seven years; and “morons” had an IQ between 50 and 75 with a calibrated mental

age of eight to 12 years of age. Id. at 2763 (again citing Journal of Psycho-

Asthenics 1910 Report).

      Some dictionaries published after this eugenics era incorporated the tier

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

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

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

3 and 7 years”).

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

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

Equality: Does the Constitution Allow Policies Designed to Discourage

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

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

Rights of Developmentally Disabled Persons: Equal Rights to Procreation and

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

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

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

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

upon which eugenics was based.”).




                                        15
      Nonetheless, references to Goddard’s tier system continue to be included in

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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




                                         16
C.    How the 1991 dictionary definition became incorporated into
      administrative and judicial analysis of qualifications for lifetime-income
      benefits

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comp. Comm’n Apr. 19, 2002).

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

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

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


                                         17
noted that “imbecility” was an “obsolete” medical term and adopted a “functional,”

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

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

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

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

       Likewise, Michigan adopted a general definition in Redfern v. Sparks-

Withington Co., 268 N.W.2d 28, 37 (Mich. 1978), holding as follows:

       We conclude that . . . a worker’s intellectual impairment is
       “imbecility” if he suffers severe cognitive dysfunction . . . .
       [C]ognitive dysfunction is “severe” if it affects the quality of the
       worker’s personal, non-vocational life in significant activity
       comparably to the loss of two members or sight of both eyes [another
       basis for qualifying for lifetime income benefits in some workers’
       compensation statutes], and is incurable if it is unlikely that normal
       functioning can be restored.

Id. at 37.

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

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

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

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

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

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

956.



                                           18
      The 1991 dictionary definition was referenced again in 2007 by the

Beaumont Court of Appeals. See Liberty Mut. Ins. Co. v. Camacho, 228 S.W.3d
453 (Tex. App.—Beaumont 2007, pet. denied). Amerisure relies heavily on

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

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

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

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

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

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

supervision in the performance of routine daily tasks or caring for himself.” 228
S.W.3d at 461. But the Camacho court was not asked to determine whether the

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

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

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

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

at 459.

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

another workers’ compensation appeals panel. See Appeal No. 121131-s, 2012 WL
12359072 (Tex. Work. Comp. Comm’n Aug. 27, 2012). That panel discussed that

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


                                         19
dictionary definition of “imbecility” and compared it to the more general definition

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

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

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

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

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

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

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

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

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

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

      Amerisure obtained summary judgment that Chamul did not meet the

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

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

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

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

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

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

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

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


                                          20
compensation statute be liberally construed to confer benefits upon injured workers

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

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

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

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

therefore, must be rejected.

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

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

always without an assigned definition. See Lumbermen’s Reciprocal Ass’n, 258
S.W. at 269. It is appropriate to reference a dictionary to discern the common,

ordinary meaning of a statutory term that has been left undefined. See Jaster, 438
S.W.3d at 563. However, not all dictionaries are equal.

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

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

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

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

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

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

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

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

                                        21
source for discerning the common, ordinary understanding of the term at the time it

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

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

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

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

      Contemporaneous dictionaries included more generalized definitions and did

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

Dictionary provides this general definition of “imbecility”:

      A more or less advanced decay and feebleness of the intellectual
      faculties; that weakness of mind which, without depriving the person
      entirely of the use of his reason, leaves only the faculty of conceiving
      the most common and ordinary ideas and such as relate almost always
      to physical wants and habits . . . the test of legal capacity in this
      condition, is the stage to which the weakness of mind has advanced,
      as measured by the degree of reason, judgment, and memory
      remaining.

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

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

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




                                          22
       A DICTIONARY OF MEDICAL        Weakness of intellect; nearly allied to
       SCIENCE (1903)                 idiocy


       BOUVIER’S LAW DICTIONARY       A form of mental disease consisting in
       1492 (West Publishing Co.      mental deficiency, either congenital or
       1914)                          resulting from an obstacle to the
                                      development of the faculties supervening in
                                      infancy. Idiocy.


       2 BENJAMIN W. POPE, LEGAL      destitute of strength, either of body or of
       DEFINITION 707 (1919)          mind,—weak, feeble, impotent, decrepit


       WEBSTER’S COLLEGIATE           weakness, esp. of mind; . . . foolishness;
       DICTIONARY (G. & C.            absurdity; fatuity
       Merriam, 3d ed. 1920)

       JAMES A. BALLENTINE, A         feebleness of mind
       LAW DICTIONARY 218 (1923)


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

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

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

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

included in the workers’ compensation statute.

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

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

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

Amerisure relies from 1991.
                                        23
      2.     Liberal construction suggests a broader definition

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

and protect injured employees.” Barchus v. State Farm Fire & Cas. Co., 167
S.W.3d 575, 578 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (analyzing

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

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

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

the Act is liberally construed to confer benefits upon injured workers. See Lujan,
756 S.W.2d at 297.

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

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

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

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

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

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

suggesting that others also would fit within the description.

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

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

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

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


                                         24
enlargement within statutory definitions indicate that lists are nonexclusive;

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

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

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

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

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

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

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

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

than seven years of age might qualify.

      3.     Applying the 1991 dictionary definition would lead to absurd
             results

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

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

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

“idiots” and “morons.” Doing so would lead to the absurd result that lifetime-

income benefits would be available to an employee who suffered a traumatic brain

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

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

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

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

                                         25
625–26 (Tex. 2008) (stating that statutory terms are given their plain and common

meaning unless such a construction leads to absurd results).

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

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

compensation statute:

      To interpret the term “imbecility” to mean only those employees
      whose I.Q.s fall precisely within the range of 20 to 49 would lead to
      the absurd result that an employee with an I.Q. of less than 20 would
      not fall within the definition of the term. We do not find such a
      restrictive meaning necessarily inherent in the term, nor do we
      attribute such an unreasonable result to an intent by the legislature.

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

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

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

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

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

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

while construction of statute by administration charged with its enforcement is

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

of validity attaches to it); see also Fulton v. Associated Indem. Corp., 46 S.W.3d
364, 370 (Tex. App.—Austin 2001, pet. denied) (“We liberally construe workers’

compensation legislation to carry out its evident purpose of compensating injured

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

                                         26
restrictions on an employee’s rights that are not found in the plain language of the

Act.”).

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

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

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

E.    The trial court erred by granting summary judgment based on the
      narrow, age-specific definition

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

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

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

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

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

that narrow definition.

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

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

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

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

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


5
      In Chamul’s second issue, he contends that the trial court erred by finding that Dr.
      Ivanhoe’s affidavit is a sham affidavit. Amerisure had argued that Dr. Ivanhoe’s
      affidavit “appear[ed] to be a sham affidavit created exclusively for the purpose of
      attempting to create a fact issue where one does not exist.” To the extent any
                                           27
ability to care for himself, perform work and non-work related tasks, and

communicate.

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

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

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

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

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

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

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

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

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

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

unemployable.

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

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

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


      conflict between her affidavit and testimony leads to the conclusion that the
      affidavit qualifies as a sham affidavit, that conclusion would be limited to that part
      of the affidavit that conflicts: Dr. Ivanhoe’s statement that Chamul’s cognitive
      deficits “results in him having the mental capacity and behavior of a three to seven
      year old child.” The remainder of the affidavit remains relevant and admissible.
      See Farroux v. Denny’s Rests., Inc., 962 S.W.2d 108, 111 (Tex. App.—Houston
      [1st Dist.] 1997, no pet.) (adopting “sham affidavit” doctrine and analyzing
      whether single paragraph in affidavit presented fact issue).
                                            28
permanently unemployable because of eliminating his ability to engage in a range

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

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

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

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

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

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

judgment for Amerisure was erroneous.

      We sustain Chamul’s first issue.

                                    Conclusion

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

appellate court should determine all questions presented and render the judgment

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

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

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

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

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




                                              Harvey Brown
                                              Justice


                                         29
Panel consists of Justices Jennings, Higley, and Brown.




                                        30