Industrial Acc. Bd. of Tex. v. Hudson, 10016

• Decision Date: 13 February 1952
• Docket Number: No. 10016,10016
• Citation: 246 S.W.2d 715
• Parties: INDUSTRIAL ACCIDENT BOARD OF TEXAS et al. v. HUDSON.
• Court: Texas Court of Appeals

Page 715

246 S.W.2d 715

INDUSTRIAL ACCIDENT BOARD OF TEXAS et al. v. HUDSON.

No. 10016.

Court of Civil Appeals of Texas, Austin.

Feb. 13, 1952.

Price Daniel, Atty. Gen., Joe S. Moore, Asst. Atty. Gen., for Industrial Accident Board of Texas.

Robertson, Jackson, Payne, Lancaster & Walker and Claude Williams, all of Dallas, for General Accident Fire & Life Assur. Corp., Ltd.

White & Yarborough and W. E. Johnson, all of Dallas, for appellee.

GRAY, Justice.

This suit was brought by appellee seeking a writ of mandamus requiring the Industrial Accident Board to make a final decision in his claim for compensation filed with the Board. H. K. Ferguson Company was appellee's employer and General Accident Fire and Life Assurance Corporation, Ltd., was the insurance carrier. The insurance carrier was made a party to the suit and, with the Board, has appealed from a judgment awarding appellee the writ of mandamus as prayed for.

For the purposes of this appeal the facts are undisputed and show: On or about December 29, 1949, appellee sustained an injury to his left knee while in the employ of H. K. Ferguson at Grand Saline, Texas. Appellee filed his claim for compensation with the Board and the same was set down for hearing on May 2, 1950. On that date the insurance carrier made demand that a surgical operation be performed. On May 9, 1950, the Board notified appellee to present himself to Dr. Brandon Carrell at Dallas for a physical examination. Appellee did report to Dr. Carrell who made the examination, and on May 15, 1950, made his report to the Board wherein an operation was recommended. On June 15, 1950, the Board ordered appellee to submit to the operation at the hands of Dr. Carrell. Appellee declined to submit to the operation and requested the Board to proceed to a final disposition of his case. By letter dated July 5, 1950, the Board notified appellee's attorneys that the Board would 'not set the case for hearing until the order of June 15, 1950, is complied with.' On August 2, 1950, appellee's attorneys urged the Board to take further action on appellee's claim and to enter a final ruling and decision. On August 28, 1950, the Board, on its own motion, reviewed its order of June 15, 1950. It found its previous order had not been complied with, and further:

'The Board finds and orders that, since said previous order has not been complied with by the Claimant. J. C. Hudson, said previous order is now superseded and supplemented by the following order, to-wit:

'The Board finds that written demand for performance of surgical operation was made by General Accident Fire and Life Assurance Corporation, Ltd., and the Board caused to be made by Dr. Brandon Carrell of Dallas, Texas, a report in writing as to the advisability of performance of surgical operation; that it is the opinion of examiner for the Board that a surgical operation is advisable and will effect a cure or will materially benefit claimant and will improve claimant's condition. Therefore, said Board unanimously agrees with Dr. Carrell's recommendation and so finds; and unanimously directs the said J. C. Hudson to submit himself to a surgical operation on his left knee at the hands of Dr. Brandon Carrell of Dallas, Texas, at the Baylor Hospital in Dallas, Texas, on September 7th, 1950. The said J. C. Hudson is further ordered and directed to present himself to Dr. Brandon Carrell on September 6, 1950, in order to make arrangements for said operation. The expense incident to said operation in the reasonable value thereof is to be provided and paid for by General Accident Fire & Life Assurance Corporation, Ltd. The Insurance Carrier, General Accident Fire & Life Assurance Corporation, Ltd., is also directed to pay claimant weekly compensation during his hospitalization and until further orders of this Board. Said Insurance Carrier is also ordered and directed to pay claimant all unpaid compensation that might be due for previous lost time, if any, within five days after claimant submits to such operation.'

On September 8, 1950, appellee's attorneys advised the Board that appellee would not comply with its order of August 28. On September 13, the Board sent said attorneys its letter, which in part reads:

'We acknowledge receipt of your letter of September 8, 1950.

'It is still the unanimous opinion of this Board that your client should submit to the operation on his knee which has heretofore been ordered by this Board. Therefore, this Board refuses to take any further action in the above case until our order of August 28, 1950, has been complied with. We feel that it is for the best interests of your client to have this operation, and his welfare is the main concern of this Board.

'If the provisions of Section 12e of Article 8306 of the Revised Civil Statutes of Texas are meaningless and our procedure thereunder is not authorized or...