THEA~TORNEYGENERAL 

OP ?!rExAs 

Mr. J. Overby Smith, Chairman 

Industrial Accident Board 

Austin, Texas 

Opinion No. NW-1059 

Re: Whether the Industrial Accident 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 regarding whether or not the 

Industrial Accident Board has jurisdiction to consider the 

cost or expense of medical aid, hospital services, nursing, 

chiropractic services, medicines or prosthetic appliances 

(hereinafter referred to as "medical services") 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 Board which found the 

claim to be compensable under the Act, The 

award ordered payment of compensation benefits 

and approved and ordered paid the cost and expense of various medical aid, hospital services, 

nursing, medicines and other items of expense 

presented to the Board. 

"This award was timely appealed and a suit to 

set aside the award was timely filed in a 

District Court of competent jurisdiction. The 

claim was then tried 'de nova' before a jury 

and the first final judgment was entered by 

the court on February 10, 1961. This judgment 
Mr. J. Overby Smith, page 2. (w-1059 1 

also found the claim to be compensable and 

ordered compensation benefits paid. The judgment also allowed and ordered paid each of the 

medical and hospital expenses which had 

been previously allowed by the BOardIs 

award as entered on September 7, 1960. 

The judgment, however, made no reference 

to certain hospital and medical expenses 

Incurred by the claimant during the period 

from September 7, 1960 and the date the 

judgment was entered, February 10, 1961. 

On February 27, 1961 the claimant submitted 

to the Board for consideration certain medical and hospital expenses incurred and 

accrued between the period of September 7, 

1960 and February 10, 1961. The claimant 

requested the Board to consider the liability of the insurance company for these 

Incurred expenses." 

The amendatory paragraph added to Section 5 by 

House Bill 433, reads as follows: 

"Notwithstanding any other provision 

of this law, as amended, no award of the 

Board, and no judgment of the court, having 

jurisdiction of 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 creating a liability theref'or on 

the part of the association under 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 

employee prior to the date of said award or 

judgment. The first such final award or judgment rendered on such claim shall be res judicata of the liability of the association for 

all such cost or expense which could have been 

claimed up to the date of said award 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 shall not 

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 shall have continuing jurisdiction 

in the same case to render successive awards to 

determine the liability of the association 

for the cost or expense of any such items 

actually furnished to and received by said 

employee not more than six (6) months prior 

to the date of each such successive award, 

until the association shall have fully discharged its obligation under this law to 

furnish all such medical aid, hospital services, nursing, chiropractic services, 

medicines or prosthetic appliances to which 

said employee may be entitled; provided, 

each such successive award of the Board shall 

be subject to a suit to set aside said award 

by a court of competent jurisdiction, in the 

same manner as provided In the case of other 

awards under this law." 

You asked the following questions which we have 

rephrased: 

1. Does the Board have jurisdiction 

to consider the cost or expense of medical 

services furnished to and received by the 

workman when such costs or expenses were incurred during the intervening period between 

the date of the Board's first final award 

and the date judgment was entered by the 

Court? 

Does the fact that the Court's 

judgm&t does not refer to the medical services mentioned in question number 1 serve 

to give the Board jurisdiction over the cost 

or expense of such medical services? 

3. Does the Board have jurisdiction to 

consider the cost or expense of such medical 

services while the appeal from the Board's 

order or award is pending before the proper 

court? 

Regarding your first question, the Industrial Accident Board does not have jurisdiction to consider and rule on 

the cost or expense of medical services furnished to and 

received by the workman during such intervening period. It 
Mr. J. Overby Smith, page 4. (w-1059 1 

is well-settled that once an award or order is appealed to 

the proper court, the court gains jurisdiction over all parties 

and issues involved in the controversy, the Board's order is 

vacated, and the Board is divested of all jurisdiction over 

the claim. Southern Casualt Co. v. Fulkerson, 45 S.W.2d 152 

~~~rnWAn;;,;;;;;; Texas Emplzyers Insurance Association v. 

328 s.w.2d 33 %-Industrial 

Accident Board,v.'Texas Employers Insurance Assoc;ation 

342 S.W.2d 213 (Civ. App. 1961). In Southern Casualty ho. v. 

Fulkerson, supra, the Court stated as follows: 

The legal effect of the institution of a suit by any interested party 

in a court of competent jurisdiction 

against all other parties before the 

board is to oust the board of any further jurisdiction over the case and to 

vest the court with jurisdiction over 

all parties and issues involved." 

When claim number T-13819 was appealed, the Board's 

award was vacated and the Board's jurisdiction over 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 

jurisdiction over such claim for medical services prior to 

said amendment, and the amendment does not have the effect of 

conferring jurisdiction on 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 liability of 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 services received during the intervening period does not serve to broaden the 

Board's jurisdiction to cover these matters, and, therefore, 

your second question is answered in the negative. 

As previously indicated once the Board's order or 

award is appealed to the proper court, the Board's jurisdiction over the controversy ceases and the court acquires jurisdiction to hear and determine all 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 liability of the 

association for the cost or expense of 

the medical services furnished to and 

received by the workman during the intervening period of September 7, 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 jurisdiction to hear and 

determine the liability of 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. 

Raymond V. Loftin, Jr. 

Houghton Brownlee 

REVIEWEDFOR THE ATTORNEY GENERAL 

BY: Morgan Nesbitt 

Joe B. McMaster 

Assistant Attorney General