                           July 25, 1988
JIM MATTOX
ATMRNEY    O&NERAL


   Mr. Joseph C. Gagen           Opinion No.   JM-931
   Chairman
   Texas Industrial Accident     Re: Authority of the Industrial
      Board                      Accident  Board to approve    a
   200 East Riverside            settlement agreement that would
   Austin, Texas 78704           terminate liability for future
                                 medical expenses   (RQ-1353)

   Dear Mr. Gagen:

         You ask:

               Does the authority    of the    Industrial
            Accident Board over medical expenses incurred
            after a final award, judgment, or settlement,
            extend to approving    compromise  settlement
            agreements that would terminate all liability
            for future medical expenses?

   The Industrial Accident Board  (the "board") is an adminis-
   trative body created by statute and possessing only those
   powers conferred  on it by statute.       mmercial   Casualty
   Insurance                  87  'S.W.2d ::81    (Tex.   1935).
   V.T.C.S. artf)'8:;7, § 1.'

        We believe that the determination      of the board's
   authority  to approve a compromise     settlement  agreement
   subsequent to a final award of the board or a judgment of a
   court is governed by different statutory provisions     than
   those apposite to the determination of the board's authority
   to approve compromise settlement agreements subsequent to an
   original compromise settlement agreement. We will therefore
   treat these two elements of your question separately.

            AUTHORITY  OF BOARD TO APPROVE     COMPROMISE
            SETTLEMENT AGREEMENT REGARDING FUTURE MEDICAL
            EXPENSES SUBSEQUENT TO FINAL AWARD OF BOARD
            OR JUDGMENT OF COURT.

        Attorney General Opinion JM-361 (1985) dealt with the
   question of whether the board may approve, while a case is



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Mr. Joseph C. Gagen - Page 2   (JM-931)


                                                                 --.



pending before the board, a compromise settlement  agreement
which terminates liability for future medical expenses,   if
the carrier had admitted liability and the injury was one
conclusively held to be total and permanent     pursuant  to
article 8306, section lla, V.T.C.S.

     Noting that section    12 'of article   8307, V.T.C.S.,
authorized the board to approve a compromise        settlement
agreement ll[w]here the liability of the association or the
extent of the injury is uncertain,"    JM-361 concluded   that
where the carrier had admitted liability      and where the
injury was one for which as a matter of law incapacity was
total and permanent,    there was no Wncertaintyl@      as to
liability or extent of injury within the meaning of section
12. The opinion ruled that uncertainty as to amounts        of
future medical  expenses was not "uncertainty"     within  the
meaning   of section 12 such that the board would           be
authorized to approve a compromise      settlement   agreement
regarding only future medical expenses, where liability    and
extent of injury had been established.

     In our opinion,  it follows from the ruling in JM-361
that the board has no authority to approve a compromise
settlement agreement  that would terminate    liability   for
future medical expenses after a final award of the board or
a judgment of a court, because the proceedings of the board
or a court in rendering a final award or judgment would
necessarily  have determined   "liabilityql and "extent of
injury" such that there would be no remaining  "uncertainty"
within the meaning of section 12 which would authorize   the
board to approve a compromise settlement agreement regarding
future medical expenses.. That a final award by the board or
a judgment of a court1 would have resolved uncertainty as to
liability or extent of injury is apparent from a reading   of
pertinent parts of section 5 of article 8307:

           fill questions arisins under this law. if
        not settled bv aoreement     of the varties
        interested therein and within the vrovisions
        of this law, shall. extent as otherwise
        provided. be determined by   the Board.    Any
        interested party who is not willing and does
        not consent to abide by the final ruling and
        decision of said Board shall, within    twenty



     1. Of course, an award or judgment is not final     until
all appellate remedies have been exhausted.




                        p. 4673
Mr. Joseph C. Gagen - Page 3   (JM-931)




       (20) days after the rendition of said final
       ruling and decision by said Board, file with
       said Board notice that he will not abide by
       said final ruling and decision. And he shall
       within twenty    (20) days after giving      such
       notice bring suit in the county where the
       injury occurred, or in the county where the
       employee   resided at the time the injury
       occurred (or, if such employee is deceased,
       then in the county where the employee resided
       at the time of his death), to set aside said
       final ruling and decision, and said Board
       shall    proceed    no    further   toward    the
       adjustment   of    such    claim,   other    than
       hereinafter   provided. . . .     Whenever .such
                                                     *
                  rouoht. the riohts and liau
       of the narties thereto shall b        determined
       bv the orovisions      of this la:.     (Emphasis
       added.)

     The liability of the association and the extent of the
injury are the two key issues to be determined by the board
or by a court in a worker's compensation case. We find no
provision of law relieving the board or a court from the
duty to determine liability and extent of injury in render-
ing a final award or judgment. Once liability and extent of
injury are finally determined  by the board or by a court,
there would remain no uncertainty   as to the liability   or
extent of injury that would authorize the board under
section 12 to approve a subsequent compromise     settlement
agreement regarding future medical expenses.

     Moreover, section 5 makes the only specific provision
for the board's handling of medical expense claims after a
final award by the board or a judgment of a court.

           Notwithstanding  any other provision    of
        this law, as amended, no award of the Board,
        and no judgment of the court, having juris-
        diction 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 therefor on the part of
        the association under the provisions of this
        law, shall include in such award or judgment
        any cost or expense of any such items not
        actually furnished to and received by the
        employee prior to the date of said award or




                        p. 4674
Mr. Joseph C. Gagen - Page 4      (JM-931)




        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
               nt. After the first such final award
               oment. the Board shall have continuinq
        iurisdiction    in the same case to render
        successive awards to determine the liabilitv
        gf the association for the cost or exoense of
        w    such items actuallv     furnished to and
        received bv said emulov e not more than six
        (6) months orior to tze date of each such
        successive award, until the association shall
        have fullv discharaed its oblicration under
        this law to furnish all such medical              aid,
        hosnital   services.   nursina.      ChirODraCtiC
                       . .
        services. medicines or DrOSthetiC       aDDliance
        $0    hich said emulovee mav be entitled:
        provyded, 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.
         (Emphasis added.)

The board possesses   only those powers conferred    on it by
statute.  We have found  no provisions authorizing  the  board
to approve compromise settlements subsequent to board awards
or court judgments, or to take other action regarding future
medical expenses.   Section 5 provides a procedure the board
may utilize  for the disposition     of claims    for medical
expenses incurred subsequent to a board award or court
judgment.

        AUTHORITY OF THE BOARD TO APPROVE   COMPROMISE
        SETTLEMENT   AGREEMENTS   REGARDING     FUTURE
        MEDICAL EXPENSES SUBSEQUENT TO AN ORIGINAL
        COMPROMISE SETTLEMENT AGREEMENT.

     We note at the outset that we have found no reported
cases dealing with a compromise  settlement agreement  made
subsequent to an original compromise settlement  agreement.
Many courts have stated that once an original    compromise




                           p. 4675
      Mr. Joseph C. Gagen - Page 5   (JM-931)




      settlement agreement is approved by the board, the agreement
      is binding on the parties until the original        settlement
      agreement is lawfully set aside by a court.        See. e.cr.,
      Luersen v. Trawerica      Insurance Co, 550 S.W.2d 171    (Tex.
      Civ. App. - Austin 1977, writ ref'd n1r.e.); Pearce v. Texas
      EmoloversJnsurance    Association  403 S.W.2d 493 (Tex. Civ.
      APP. - Dallas   1966,  writ ref'd' n.r.e.), reh*a denied,   412
      S.W.Zd 647 (Tex. 1967), and the authorities cited therein.

           In this vein, section 12b of article 8307, V.T.C.S.,
      now specifically  provides that the board "shall have no
      jurisdiction  to rescind or     set aside any    compromise
      settlement agreement  approved by the board or any agreed
      judgment approved by the court." Acts 1983, 68th Leg., ch.
      501, section 1.

           Section 12b now also provides a specific procedure  for
      the board's resolving disputes as to' medical       expenses
      arising pursuant    to compromise    settlement   agreements
      approved by the board or agreed judgments approved by the
      court :

                  Whenever  in any compromise     settlement
-..           agreement approved by the board or in any
              agreed judgment approved by the court, any
              dispute arises concerning     the payment   of
              medical, hospital,   nursing, chiropractic  or
              podiatry services or aids or treatment,     or
              for medicines   or prosthetic  appliances  for
              the injured employee as provided in Section
              7, Article     8306, Revised    Statutes,
              amended, or as provided    in such compromizi
              settlement agreements   or agreed judgments,
              all such disputes concerning      the payment
              thereof shall be first presented by any party
              to the Industrial Accident Board within    six
              months from the time such dispute has arisen
               (except where 'good cause' is shown for any
              delay) for the board's determination. . . .

           It is our opinion that approval of a compromise
      settlement agreement regarding medical expenses   subsequent
      to an original approved compromise     settlement  agreement
      would necessarily have the effect of rescinding or setting
      aside, at least to some extent, the original compromise
      settlement agreement  and would thus be barred by section
      12b. Section    12b provides a procedure   for the board's
      dealing with questions of medical expenses pursuant to a
      compromise settlement agreement or agreed judgment approved
      by a court.




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Mr. Joseph C. Gagen - Page 6     (JM-931)


                                                                 -.


                       SUMMARY

          After a final award of the board,    court
       judgment, or compromise settlement  agreement
       which has not been lawfully set aside, the
       Industrial Accident Board has no authority to
       approve a compromise settlement agreement  to
       terminate  liability   for   future   medical
       expenses.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARYRELLER
First Assistant Attorney General

MU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STBARLBY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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