Maryland Casualty Co. v. Moore

74 S.W.2d 769, 1934 Tex. App. LEXIS 887

• Court: Court of Appeals of Texas
• Decided: July 25, 1934
• Docket: No. 9404.
• Status: Published

Opinion

SMITH, Justice.

Appellee was awarded compensation by tbe Industrial Accident Board under tbe provisions of tbe Workmen’s Compensation Act (Vernon’s Ann. Oiv. St. arts. 8308-8309), and, in an appeal by tbe insurer, was likewise awarded compensation in tbe district court.

This appeal presents tbe primary question of whether tbe appellee may recover in tbe district court for medical and surgical expenses incurred by him on account of bis injuries, in tbe absence of a showing that bis claims for those items bad been previously “passed upon and adjudicated” by tbe Industrial Accident Board. Appellant contends that in tbe absence of such showing tbe district court was without jurisdiction of those claims. We overrule this contention presented in appellant’s first, second, and third propositions.

Tbe rule seems to be that claims for medical and surgical expenses, and the like, are merely incidental to the claim for compensation, and need not be specifically adjudicated by the accident board, in passing upon the principal claim, in order to give jurisdiction thereover to the district court in a trial de novo on appeal thereto. Lumbermen’s Recip Ass’n v. Behnken, 112 Tex. 103, 246 S. W. 72, 28 A. L. R. 1402; Great American Ind. Co. v. McElyea (Tex. Civ. App. Wr. Ref.) 57 S. W.(2d) 966; Choate v. Hartford Accident & Ind. Co. (Tex. Civ. App. Wr. Gr.) 54 S.W. (2d) 901; Commercial Cas. Ins. Co. v. Hilton (Tex. Civ. App. Wr. Gr.) 55 S.W. (2d) 120; Aetna Life Ins. Co. v. Culvahouse (Tex. Civ. App. Wr. DFWJ.) 10 S.W.(2d) 803. Appellant relies upon the decision in Lumbermen’s Recip. Ass’n v. Wilmoth, (Tex. Com. App.) 12 S.W.(2d) 972, to support its contention. In that ease, however, it was held, simply, that a physician, a stranger to the proceeding before the Industrial Accident Board, would not be permitted to intervene in the claimant’s suit in the district court and set up a claim for fee for rendering first aid to the injured employee, without having first presented his claim to the Industrial Accident Board. That is not the question presented here. We overrule appellant’s first, second, and third propositions.

In its fourth proposition appellant complains of the decree awarding compensation to appellee as for 59 per cent total disability for' a period of 120 weeks. Appellant insists that the evidence did not support that finding as to disability. That was a question of fact, of course, to be determined by the trial judge. It may be true, as appellant insists, that the evidence was somewhat meager upon this issue, yet there certainly, was some substantial, material evidence to warrant the court’s finding, which is therefore binding upon this court.

The judgment is affirmed.