THEA~TORNEYGENERAL

OP ?!rExAs

Mr. J. Overby Smith, Chairman IndustrialAccident Board Austin, Texas
Opinion No. NW-1059

Re: Whether the IndustrialAccident Board has jurisdiction to consider the cost or expense of medical aid, etc., Dear Mr. Smith: under the facts stated.

In your letter of recent date you requested the opinion of this office regardingwhether or not the IndustrialAccident Board has jurisdiction to consider the cost or expense of medical aid, hospital services,nursing, chiropractic services,medicines or prosthetic appliances (hereinafterreferred to as "medicalservices")under the stated circumstances,in view of Section 5, Article 

### 8307, Vernon's Civil Statutes,as amended by House Bill 

### 433,Acts of the 55th Legislature,Regular Session, 1957, Chapter 397, Page 

### 1186,Section 2.

You stated the facts as follows:

"In claim number 

### ~-13819,the claimant alleged injuries occurring on December 22, 19%. On September 

### 7, 1960, the Board entered the first final award of this Boardwhich found the claim to be compensableunder the Act, The award orderedpayment of compensationbenefits and approved and orderedpaid the cost and expense of various medical aid, hospital services, nursing, medicines and other items of expense presented to the Board.

"Thisaward was timely appealed and a suit to set aside the award was timely filed in a District Court of competent jurisdiction. The claimwas then tried 'denova' before a jury and the first final judgmentwas entered by the court on February 10, 1961. This judgmentMr. J. Overby Smith,page 2. (w-1059 1

also found the claim to be compensableand ordered compensationbenefitspaid. The judgment also allowed and orderedpaid each of the medical and hospital expenseswhich had been previously allowed by the BOardIs award as entered on September7, 1960. The judgment,however,made no reference to certainhospital and medical expenses Incurred by the claimantduring the period from September7, 1960 and the date the judgmentwas entered, February 10, 1961. On February 27, 1961 the claimant submitted to the Board for considerationcertainmedical and hospital expenses incurredand accrued between the period of September7, 1960 and February 10, 1961. The claimant requested the Board to consider the liability of the insurance company for these Incurred expenses."

The amendatoryparagraph added to Section 5 by House Bill 433, reads as follows:

"Notwithstandingany other provision of this law, as amended, no award of the Board, and no judgment of the court,having jurisdictionof a claim against the association for the cost or expense of items of medical aid, hospital services,nursing, chiropractic services,medicines or prosthetic appliances furnished to an employee under circumstances creatinga liabilitytheref'or on the part of the associationunder the provisions of this law, shall include in such award or judgment anyj'cost or expense of any such items not actually furnished to and received by the employeeprior to the date of said award or judgment. The first such final award or judgment rendered on such claim shallbe res judicata of the liabilityof the association for all such cost or expensewhich couldhave been claimedup to the date of saidaward or judgment and of the issue that the injury of said employee Is subject to the provisions of this law with respect to such items, but shallnot be res judicata of the obligation of the association to furnish or pay for any such items after the date of said award or judgment.. .

Mr. J. Overby Smith,page 3. (w-1059 1

After the first such final award or judgment, the Board shallhave continuing jurisdiction in the same case to render successiveawards to determine the liabilityof the association for the cost or expense of any such items actually furnished to and received by said employee not more than six (6) monthsprior to the date of each such successiveaward, until the association shallhave fully discharged its obligationunder this law to furnishall such medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances to which said employeemay be entitled;provided, each such successiveaward of the Board shall be subject to a suit to set aside saidaward by a court of competent jurisdiction, in the
samemanner as provided In the case of other awards under this law."

You asked the following questionswhich we have rephrased:

1. Does the Board have jurisdiction

to considerthe cost or expense of medical services furnished to and received by the workman when such costs or expenseswere incurred during the interveningperiod between the date of the Board's first final award and the date judgmentwas entered by the Court?

Does the fact that the Court's judgm&t does not refer to the medical services mentioned in questionnumber 1 serve to give the Board jurisdictionover the cost
or expense of such medical services?

3. Does the Board have jurisdictionto consider the cost or expense of suchmedical serviceswhile the appeal from the Board's order or award is pending before the proper court?
Regardingyour first question, the IndustrialAccident Board does not have jurisdictionto consider and rule on the cost or expense of medical services furnished to and received by the workman during such interveningperiod. ItMr. J. Overby Smith,page 4. (w-1059 1

iswell-settled that once an award or order is appealed to the proper court, the court gains jurisdictionover all parties and issues involved in the controversy,the Board's order is vacated, and the Board is divested of all jurisdictionover the claim. Southern Casualt Co. v. Fulkerson, 

### 45 S.W.2d 152 ~~~rnWAn;;,;;;;;;Texas Emplzyers InsuranceAssociationv. 

### 328 s.w.2d33

%-Industrial Accident Board,v.'TexasEmployers InsuranceAssoc;ation 342 S.W.2d 

### 213 (Civ.App. 1961). In Southern Casualty ho. v. Fulkerson, supra, the Court statedas follows:

The legal effect of the institution of a suit by any interestedparty in a court of competent jurisdiction against all otherparties before the board is to oust the board of any further jurisdictionover the case and to vest the court with jurisdictionover all parties and issues involved."

When claim number T-13819was appealed, the Board's award was vacated and the Board's jurisdictionover such claim ceased. By such appeal the court gained jurisdiction
over all parties and issues involved In such claim including the claim for medical services furnished to the workman prior to the date of the judgment. The Board would not have had jurisdictionover such claim for medical servicesprior to said amendment, and the amendment does not have the effect of conferring jurisdictionon the Board over such claim. With respect to the present case, the effect of the amendatory paragraph is to confer on the Board continuing jurisdiction to hear and determine the liabilityof the association for medical services furnished to and received by the workman, if any, after the date of the judgment.

The fact that the judgment in question does not mention the cost or expense of medical servicesreceived during the interveningperiod does not serve to broaden the Board's jurisdictionto cover these matters, and, therefore, your second question is answered in the negative.

As previously indicatedonce the Board's order or award is appealed to the proper court, the Board's jurisdiction over the controversyceases and the court acquires jurisdiction to hear and determineall issues involved In the controversy,and, therefore,we answer your third question in the negative.Mr. J. Overby Smith,page 5. (w-1059 1

SUMMARY

The Board does not have jurisdiction to hear and determine the liabilityof the association for the cost or expense of the medical services furnished to and received by the workman during the intervening period of September7, 1960, to February 10, 1961, and the fact that the judgment entered on February 10, 1961, did not mention such items does not serve to broaden the Board's jurisdiction. While an award or order of the Board is pending before the proper court on appeal, the Board has no jurisdictionto hear and determine the liabilityof the association for the cost or the expense of medical services furnished to and received by the workman after the date of the Board's award but before the date of judgment.

Yours very truly,

WILL WILSON Attorney General of Texas

JBMcM:mm:zt

APPROVED: OPINION COMMITTEE W. V. Geppert

William H. Pool, Jr. RaymondV. Loftin, Jr. Houghton Brownlee

REVIEWEDFOR THE ATTORNEY GENERAL BY: Morgan Nesbitt Joe B. McMaster AssistantAttorney General