Kelly v. Industrial Acc. Bd.
| Citation | 358 S.W.2d 874 |
| Decision Date | 20 June 1962 |
| Docket Number | No. 10984,10984 |
| Parties | Ross Sterling KELLY, a Minor, by and through his Next Friend, E. H. Kelly, Appellant, v. INDUSTRIAL ACCIDENT BOARD of Texas et al., Appellees. |
| Court | Court of Appeals of Texas. Court of Civil Appeals of Texas |
Dunnam, Dunnam & Dunnam, Waco, for appellant.
Will Wilson, Atty. Gen., W. O. Shultz and Pat Bailey, Asst. Attys. Gen., Austin, for appellees.
Ross Sterling Kelly, appellant, a minor, by his next friend E. H. Kelly, filed his petition in the 53rd Judicial District Court of Travis County, Texas, seeking the issuance of a writ of mandamus ordering and directing the Industrial Accident Board of Texas, and J. Overby Smith, Walter Buckner and Leonard Carlton, its members, appellees, to set for hearing immediately or within a reasonable time the claim of appellant for compensation under the Workmen's Compensation Act and to hear and render a final decision thereon. National Security Corporation, an appellee, as insurance carrier for appellant's employer at the time of his injury, was also named as party defendant. On hearing the Trial Court entered judgment denying the petition for writ of mandamus from which judgment appellant has perfected this appeal. Appellant will be hereafter referred to as 'claimant', appellee Industrial Accident Board and its members will be referred to as the 'Board' and National Security Corporation will be referred to as 'insurer'.
On August 31, 1961, claimant was an employee of Piccadilly Cafeteria of Waco, Inc. at Waco, Texas, on which date claimant alleged hs sustained an accidental injury to his back while acting in the scope of his employment and for which injury he filed his claim for compensation under the Workmen's Compensation Act, the employer being at the time of his injury subject to the Workmen's Compensation Act and carrying a policy of Workmen's Compensation insurance with National Security Corporation, as insurer. On October 2, 1961 claimant gave notice of his injury, and later filed his claim for compensation with the Board in compliance with the provisions of Section 4a, Art. 8307, Vernon's Ann.Civil Statutes. The insurer has at all times denied liability and refused to pay any compensation to claimant.
The Board mailed a notice to claimant on October 25, 1961 that his claim would be heard by the Board on November 28, 1961, a copy of which notice, to which was attached a copy of the statement of the claimant on a form prepared by the Board, was sent to the employer and the insurer.
Shortly before the date set for the hearing, claimant's attorney telephoned J. Overby Smith, the then Chairman of the Board, and asked him if the Board would proceed with the hearing and make a final decision without the written statement of a doctor or a chiropractor, stating that he and his client did not intend to furnish such statement. Mr. Smith then advised him that the Board would not have a hearing unless it was furnished a report of the treating or examining physician or chiropractor who had treated claimant to be filed with the Board on or before the date of the hearing.
Following the conversation between the claimant's attorney and Chairman Smith, on November 28, 1961, claimant's attorney wrote the Board enclosing claimant's affidavit as to his physical condition and incapacity, and asked that the claim be set for immediate hearing 'without the necessity of the submission by the claimant of a statement of any physician.' He also requested a reply § to whether the Board would set the case for hearing without the submission of the medical evidence. On November 30, 1961, the Board in a letter signed by Mr. Smith, the Chairman, and Mr. Buckner, a member, acknowledged receipt of the claimant's attorney's letter of November 28, 1961 and stated:
On the trial claimant offered in evidence his affidavit as to the nature and extent of his injury, which was filed with the Board in connection with his claim, which was admitted by the Court for the sole purpose of showing what information was offered to the Board for its action. The affidavit also contained a statement that claimant had not been paid any compensation by the insurer; that he did not have access to any medical records and was without any funds to pay a doctor for a written statement as to his physical condition and that he did not know any doctor who would prepare and give him a medical statement without the payment of a fee therefor.
Appellant's sole point of error is that the Trial Court erred in failing to issue a writ of mandamus ordering and directing the Industrial Accident Board and its members to immediately and within a reasonable time thereafter set for hearing the claim of appellant and render a final decision thereon.
In three counterpoints appellees assert that there was no error by the Trial Court in refusing to issue the writ of mandamus for the reasons that (1) appellant failed to show that the Board had a duty to enter an award without having a report of the examining or treating physician or chiropractor presented to or filed with the Board pursuant to Rule 5.08; (2) appellant had failed to show that he had exhausted his administrative remedies before the Board; and (3) the evidence is insufficient to authorize the issuance of a writ of mandamus.
Art. 8309a, V.C.S., provides that when an injured employee of a subscriber under the Workmen's Compensation Act has sustained an injury in the course of employment and filed claim for compensation and given notice as required by law, the Board shall hear his claim for compensation within a reasonable time. While it is within the Board's discretion to decide what may be a 'reasonable time' for hearing the claim, nevertheless it is mandatory for the Board to definitely fix a date upon which the claim shall be heard.
In the instant case, although the Board notified the claimant and the other necessary interested parties that appellant's claim would be heard on November 28, 1961, nevertheless such hearing was conditioned upon claimant's compliance with the Board's Rule 5.08(b) by submitting a report by claimant's physician giving his opinion of the injury and unless such medical evidence was filed with the Board, no final decision would be made granting or refusing an award to claimant.
Sec. 4, Art. 8307, V.C.S., provides in part as follows:
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