Yarborough v. Industrial Acc. Bd.
| Decision Date | 09 June 1976 |
| Docket Number | No. 12453,12453 |
| Parties | Charles D. YARBOROUGH et al., Petitioners, v. INDUSTRIAL ACCIDENT BOARD, Respondent. |
| Court | Texas Court of Appeals |
Frank H. Pope, Jr., Law Offices of Yarborough & Pope, Inc., Bedford, the petitioners.
John L. Hill, Atty. Gen. of Texas, Anthony J. Sadberry, Asst. Atty. Gen., Austin, for respondent.
Petitioners, Eddie B. Carter and the law offices of Yarborough & Pope, Inc., brought this action in the trial court seeking a writ of mandamus to compel Respondent, Industrial Accident Board, to hold a final hearing on a workman's compensation claim.
Upon hearing, the court sustained certain special exceptions to a Petitioners' petition and dismissed the case. We reverse this judgment and remand the case to the trial court.
Petitioners alleged that Eddie B. Carter received serious accidental injuries in a motor vehicle accident while in the course and scope of his employment for Bridgeport Drapery and Carpet Company, which company was insured at this time with a policy of workman's compensation insurance issued by National Automobile & Casualty Insurance Company.
A guardianship was established on Carter's behalf and his mother was appointed temporary guardian. As temporary guardian, she appointed Petitioner's law firm as attorneys for Carter to pursue his claim.
At a prehearing conference held before the Fort Worth office of the Board, the parties hereto failed to reach a settlement as Carter's attorneys demanded lifetime (open) medical benefits, which insurer refused to offer, even though the insurer did offer Carter total and permanent lump sum compensation benefits.
Four days later, the Industrial Accident Board, on its own motion, canceled a final hearing which had previously been set for September 26, 1975. Then on October 6, 1975, the Board entered a 'nonappealable' order. Petitioners then brought this proceeding in mandamus.
In its order of October 6, the Board ordered the insurer to pay Carter's guardian 26 weeks at $70 per week compensation benefits, with $59.50 (85%) per week to be paid to Carter's guardian, and $10.50 (15%) per week to be paid to the law offices of Yarborough & Pope, Inc., as attorney's fees. This order stated that it 'is not a final award of the Board and no appeal shall be taken therefrom.'
Although Petitioners are before us on a number of points of error, their principal complaint, and the primary reason for bringing the mandamus action, is to force the Board to hold a final hearing in which this administrative proceeding can be finally determined.
At the trial of this case, the Board, represented by the Attorney General, levied a number of special exceptions to Petitioner's petition, which exceptions were sustained and the case was dismissed.
The only question raised by special exception that we need notice, and the one that goes to the heart of this matter, is the Board's assertion that under Tex.Rev.Civ.Stat.Ann. art. 8309a (Supp.1975), it has the discretion to issue the 'nonappealable' order complained of above.
Article 8309a is as follows:
'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...
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