           THEA~TORNEYGENERAL
                       OP    ?!rExAs




Mr. J. Overby Smith, Chairman
Industrial Accident Board
Austin, Texas
                            Opinion No. NW-1059
                            Re:   Whether the Industrial Acci-
                                  dent Board has jurisdiction
                                  to consider the cost or ex-
                                  pense 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 ex-
         pense 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 judg-
         ment 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 medi-
         cal 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 liabil-
         ity 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 associa-
        tion for the cost or expense of items of
        medical aid, hospital services, nursing,
        chiropractic services, medicines or prosthetic
        appliances furnished to an employee under cir-
        cumstances creating a liability theref'oron
        the part of the association under the provisions
        of this law, shall include in such award or
        judgment anyj'costor 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 judg-
        ment rendered on such claim shall be res judi-
        cata 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 judg-
        ment 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 dis-
                 charged its obligation under this law to
                 furnish all such medical aid, hospital ser-
                 vices, 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 in-
                curred 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 ser-
                vices 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 Acci-
        dent 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 institu-
         tion 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 fur-
         ther 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 dur-
ing 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 jurisdic-
tion over the controversy ceases and the court acquires jur-
isdiction 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 inter-
              vening 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 ser-
              vices 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



                                      Joe B. McMaster
JBMcM:mm:zt                           Assistant Attorney General

APPROVED:
OPINION COMMITTEE
W. V. Geppert
William H. Pool, Jr.
Raymond V. Loftin, Jr.
Houghton Brownlee
REVIEWEDFOR THE ATTORNEY GENERAL
BY: Morgan Nesbitt
