Kristeen Marie Sooy v. Jeffrey T. Sooy--Appeal from 73rd Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-06-00509-CV

Kristeen M. SOOY,

Appellant

v.

Jeffrey T. SOOY,

Appellee

From the 73rd Judicial District Court , Bexar County, Texas.

Trial Court No. 2006-CI-04282

Honorable Joe F. Brown, Jr., Judge Presiding (1)

Opinion by: Rebecca Simmons , Justice

Sitting: Alma L. L pez, Chief Justice

Phylis J. Speedlin , Justice

Rebecca Simmons , Justice

Delivered and Filed: February 21, 2007

AFFIRMED

On May 16, 2006, Appellant Kristeen Sooy and Appellee Jeffrey T. Sooy were divorced in Bexar County, Texas. On May 22, 2006, Jeffrey Sooy received an Impairment Income Benefit payment from the Texas Department of Insurance, Division of Workers' Compensation in the amount of $16,920.00 for an injury that occurred during the marriage. Kirsteen filed a motion for new trial seeking a portion of the payment. The trial court denied the motion holding that the monies were the separate property of Jeffrey. Because an Impairment Income Benefit payment is compensation for injuries and not lost earnings, it is separate property under Tex. Fam. Code Ann. 3.001 (Vernon 2006). We, therefore, affirm the trial court's decision.

Factual Background

Jeffrey T. and Kristeen Sooy were married on December 10, 1994. On January 6, 2003, Jeffrey injured his back while working for the Boeing Company. As a result of the injury, Jeffrey filed a Workers' Compensation claim ("WC claim"). Jeffrey initially received income benefits from the WC claim, but the benefits ceased prior to the parties' divorce on May 16, 2006. Although Jeffrey was no longer receiving the income benefits, he continued to undergo medical treatment and evaluations. Jeffrey was awarded a twenty percent whole person impairment rating as a result of a May 1, 2006, evaluation determining that he had reached his maximum medical improvement. Accordingly, Jeffrey was entitled to an Impairment Income Benefit, a one-time payment in the amount of $16,920.00. The benefit check, made payable to Jeffrey Sooy, arrived at Kristeen's residence on May 22, 2006. Kristeen demanded fifty percent of the funds, alleging that the Impairment Income Benefit, as part of a workers' compensation claim, was community property. When Jeffrey refused to divide the benefit, Kristeen filed a motion for new trial, and in the alternative, a motion to divide an undivided community asset. The trial court denied the motions and Kristeen filed this appeal.

Analysis

A. Characterization of Workers' Compensation Claims

A spouse's personal injury damages that are not characterized as recovery for "loss of earning capacity during marriage," are the claimant spouse's separate property. Tex. Fam. Code Ann. 3.001 (Vernon 2006). On the other hand, any workers' compensation payment intended to replace earnings lost during a claimant spouse's marriage is community property. Tex. Fam. Code Ann. 3.008(b) (Vernon 2006). Additionally, any workers' compensation a spouse receives is "characterized in the same manner as the income being replaced," regardless of when the claim was filed. John J. Sampson et al., Sampson & Tindall's Texas Family Code Annotated 36-37 (Thomson West 16th ed. 2006).

B. Impairment Income Benefits as Separate Property

Impairment is defined as "any anatomical or functional abnormality or loss existing after maximum medical improvement that results from a compensable injury and is reasonably presumed to be permanent." Tex. Lab. Code Ann. 401.011(23) (Vernon 2006). When a claimant's impairment continues after reaching maximum medical improvement, as determined by a physician, the claimant is eligible for Impairment Income Benefits. Tex. Lab. Code Ann. 408.121-.122 (Vernon 2006). The Impairment Income Benefit is calculated based upon the claimant's average weekly wage. See Tex. Lab. Code Ann. 408.126 (Vernon 2006) (calculating the benefit as 70% of the weekly wage paid for a period of 3 weeks per percentage point of impairment). Although pre-impairment wages are used to calculate the Impairment Income Benefit, the benefits are "for the impairment itself," and are payable "without regard to post-injury wages or wage earning capacity." Texas Workers' Comp. Comm'n v. Garcia, 893 S.W.2d 504, 514 (Tex. 1995). Therefore, any Impairment Income Benefits a claimant receives are related to the personal injury, and not to the loss of earning capacity.

Jeffrey T. Sooy's WC claim physician determined that Jeffrey had suffered a 20% impairment rating at the time of maximum medical improvement. This determination entitled Jeffrey to 60 weeks (3 weeks per percentage point) of Impairment Income Benefits equal to 70% of his average weekly salary prior to the incident. Because Jeffrey's Impairment Income Benefits are for the injury itself, rather than his loss of wages during marriage, the benefits constitute a personal injury award under Tex. Fam. Code Ann. 3.001 (Vernon 2006). As a personal injury award, the benefits are Jeffrey's separate property, and may not be divided as part of the divorce estate. Graham v. Franco, 488 S.W.2d 390, 396 (Tex. 1972). Accordingly, Appellant Kristeen Sooy's sole appellate issue is overruled.

Conclusion

Because Jeffrey Sooy's Impairment Income Benefit is compensation for his injuries suffered from a work-related accident and not compensation for his lost wages, it is his separate property. We, therefore, affirm the order of the trial court.

Rebecca Simmons, Justice

1. The Honorable Martha Tanner of the 73rd Judicial District Court signed the Agreed Decree of Divorce; the Honorable Joe F. Brown, Jr. of the 57th Judicial District Court presided over the Motion for New Trial and Alternatively, Motion to Divide Undivided Community Asset.