Western Alliance Ins. Co. v. Tubbs, 4366

• Decision Date: 20 May 1965
• Docket Number: No. 4366,4366
• Citation: 400 S.W.2d 850
• Parties: WESTERN ALLIANCE INSURANCE COMPANY, Appellant, v. Lilburn A. TUBBS, Appellee. . Waco
• Court: Texas Court of Appeals

Page 850

400 S.W.2d 850

WESTERN ALLIANCE INSURANCE COMPANY, Appellant, v. Lilburn A. TUBBS, Appellee.

No. 4366.

Court of Civil Appeals of Texas Waco.

May 20, 1965.

Rehearing Denied March 24, 1966.

Ulmer W. Spinney, William G. Washington, Austin, for appellant.

W. Lance Corsbie, Waco, for appellee.

WILSON, Justice.

The workmen's compensation claimant recovered judgment for medical services under Art. 8306, Sec. 7, Vernon's Ann.Civ.St., against appellant, the carrier.

By a previous satisfied judgment, not in issue here, claimant was awarded total and permanent disability benefits and medical expenses then accrued. Claimant thereafter sustained a separation of the same fractures which constituted the injuries resulting in the first judgment. The carrier refused to pay for medical expenses alleged to result from the re-injury. A claim for cost of medical services was denied by the Industrial Accident Board, and claimant appealed to the District Court. Although claimant's petition sought recovery of workmen's compensation for the re-injury, none was awarded, and no claim for compensation is before us.

The carrier complains that the judgment includes sums for medical services incurred after the date of the decision of the Board appealed from. Its position is that under the provisions of Art. 8307, Sec. 5 (Acts 1957, 55th Leg., p. 1186, ch. 397, Sec. 2) ¹ the first final judgment in a workmen's compensation case becomes res judicata as to all medical expense 'which could have been claimed up to the date of such first final judgment', but any subsequent medical expense 'must be submitted to the Board, and the Board's award thereon may include only such cost or expense as was incurred for services furnished to the employee not more than six months prior to the date of such award.'

Before the 1957 amendment to Art. 8307, as now, Sec. 5 of that Article provided that all questions unsettled by agreement arising under the workmen's compensation law should be settled by decision of the Board, subject to the right of appeal from the decision. Although it was settled that a claim for compensation before the Board and final decision of the Board thereon was prerequisite to jurisdiction of the courts to adjudicate compensation, Industrial Accident Board v. Glenn, 144 Tex. 378, 190 S.W.2d 805, 807, it was held that after such claim was denied by the Board the court upon trial de novo on appeal 'had jurisdiction to determine all issues between the parties regardless of whether' asserted before the Board . Lumberman's Reciprocal Ass'n. v. Behnken, 112 Tex. 103, 246 S.W. 72, 75, 28 A.L.R. 1402. It was accordingly the uniform holding before the 1957 amendment that the employee's claim for medical and hospital expenses under Art. 8306, Sec. 7 is 'merely incidental to the claim for compensation, and need not be specifically adjudicated by the accident board' in order to confer jurisdiction over the claim in a trial de novo appeal. Maryland Casualty Co. v. Moore, 129 Tex. 174, 102 S.W.2d 1118, approving id., Tex.Civ.App., 74 S.W.2d 769, 770; Great American Indemnity Co. v. Beaupre, Tex.Civ.App., 191 S.W.2d 883, 888, writ ref. n.r.e.

Has the Legislature evidenced intention to make any change in this rule by adding the second paragraph to Sec. 5 of Art. 8307? The statute directs by its first sentence that no award of the Board, and no judgment of the court, 'having jurisdiction of a claim against the association' for medical services, etc., shall include expenses for items not actually furnished and received 'prior to the date of said award or judgment.' The carrier's contention would require a construction of this provision that there must be action by the Board before a court has jurisdiction of a claim for expenses incurred after the award. This, the amendment does not say. It excludes from the Board's jurisdiction expenses for items not furnished before the date of the award, and it excludes from the court's jurisdiction expenses for items not furnished before the date of judgment. Although the Board may have jurisdiction of the claim arising before the award and may make an award thereon, a court also has its own separate jurisdiction under the established rule without Board action. We find no language there evidencing intent to change the rule.

The second sentence of the added paragraph makes the first final award 'or' judgment res judicata as to expenses only up to the date of award. Again there is no manifestation of an intent to alter the existing holding. The third sentence fixes a six-month limitation period for expenses which may be claimed prior to each successive award by the Board, which is given 'continuing jurisdiction' in the same case. This sentence does not restrict the jurisdiction of the courts further than it limits that of the Board. It is true that each of such successive Board awards is made subject to suit to set them aside by a court of competent jurisdiction. This, however, is...