INDUSTRIAL ACCIDENT BOARD v. GLENN et al., 190 S.W.2d 805

SLATTON, Justice. O. E. Glenn and the compensation carrier, Petroleum Casualty Company (the insurer for the Humble Pipe Line Company) brought this action in the District Court of Travis County in the nature of a mandamus proceeding against the Industrial Accident Board. Glenn et al. sought the writ of mandamus to compel the Industrial Accident Board to approve a compromise settlement agreement which had been entered into by O. E. Glenn, an employee of the Humble Pipe Line Company, and the Petroleum Casualty Company, the carrier of the pipe line company’s compensation insurance.

It was averred that Glenn received an arm injury on December 26, 1941, in the course of his .employment, which resulted in a permanent partial disability to his forearm above the wrist or to his hand, estimated to be- at from fifteen to twenty per cent. Thereafter Glenn and the insurance carrier entered into a settlement agreement which provided that for 12% weeks the claimant was entitled to receive $20 per week, aggregating $248.28, and the parties subtracted the compensation already paid for 12% weeks as for total disability from 150 weeks, thus leaving 137% weeks of partial permanent disability.

The parties averred that the average weekly wage of Glenn was $50.77 and that under

Section 12 of

Article 8306, by • multiplying the maximum rate of $20 per week by 20% (which was the maximum percentage of partial permanent disability as estimated by the doctor), they arrived at the sum of $4 per week as compensation for the 137% weeks, aggregating a total of $550.28.

It further appears that the Industrial Accident Board declined to approve the compromise settlement agreement ⅛ the following reasons only: ■“You have not figured the amount of' cóhipensation due- for the claimant’s percentage of disability in accordance- with the B'o'alrd’s rule, -which is: - “Sixty per cent of the claimant’s average weekly wage ($50.77 x 60% equals $30.46), multiplied by 17.5%, being a split between 15'% and 20% that the doctor gives as the claimant’s remaining permanent partial disability, produces a compensation rate of $5.33 per week. 150 weeks to the hand less twelve weeks, previously paid for temporary total disability, leaves a remainder of 138 weeks.

After discounting 138 weeks there remains 127¾ weeks to this specific member (hand) which multiplied by 17.5 per cent of sixty per cent of his average weekly wage $5.33 per week, amounts to $680.70. “Should you be willing to raise the compromise settlement agreement to the above figure, the Board will be willing to approve it, otherwise, the Board has declined to approve it as presented.” The trial court ruled that it had not the right to compel the Industrial Accident Board through a writ of mandamus to approve a compromise settlement agreement entered into between a compensation carrier and a compensation claimant.

The ruling was invoked by the Industrial Accident Board by a plea in abatement. Glenn et al. appealed to the Austin Court of Civil Appeals, and the Court of Civil Appeals decided that the trial court had the right to compel by the writ of mandamus the approval of the compromise settlément agreement by the Industrial Accident Board. The Honorable Court of Civil Appeals further held that since Glenn and the insurance carrier had correctly computed the rate of compensation as provided in'

Section 12 of

Article 8306, that the writ should issue in the district court as prayed for. 184 S.W.2d 302. This- court, in an opinion by the writer handed down on the 18th day of April, 1945, ruled that the Industrial Accident Board could not be compelled by a writ of mandamus to approve a compromise settlement agreement which had been entered into between a compensation claimant and a. compensation carrier, and ruled that the Court of Civil Appeals had followed the prior opinions of the Supreme Court of Texas in approving the method used for computing compensation under the aforesaid

section of the compensation law, . • ■ The Supreme Court, on July 18, 1945, in an opinion edited by Associate Justice-Simpson, ruled that the method usfcd-'by the Industrial Accident Board, under the undisputed facts as provided under the aforesaid

section of the compensation law, had correctly calculated the compensation due by the insurance carrier to the compensation claimant, and reversed the judgment of the Court of Civil Appeals and affirmed the judgment of the district court. The cause is now pending in this court on motion for a rehearing. It is the opinion of the court that under appropriate provisions of

Section 12 of

Article 8307 that the Industrial Accident Board cannot be required by a writ of mandamus to approve a compromise settlement agreement between a compensation insurance claimant and an insurance carrier. The provision of

Section 12 of

Article 8307 reads: “Where the liability of the association or the extent of the injury of the employe is uncertain, indefinite or incapable of being satisfactorily established, the board may approve any compromise, adjustment, settlement or commutation thereof made between the parties.” It is readily seen from the wording of the statute that whether the board ápproves or disapproves a compromise settlement agreement is within the discretion of the board.

The quoted statute says “the board may approve”, as distinguished from the phrase “the board shall approve”, thus indicating by clear and unmistakable language that under the statute the sound discretion of the board is required in determining whether it approves or disapproves such a settlement agreement. It is settled by the decisions of this court that mandamus will not issue to compel the performance of

an act which involves the exercise of discretion or judgment. Beach et al. v. McKay, 108 Tex. 224, 191 S.W. 557. The approval of such an agreement by the Industrial Accident Board is neither an award of compensation nor a denial thereof. Commercial Casualty Insurance Co. v. Hilton, 126 Tex. 497, 87 S.W.2d 1081. What is the effect of the board's action in refusing to approve a compromise settlement agreement?

If the approval of such an agreement by the board is neither a grant of compensation nor a denial of an award for compensation, it necessarily follows, we think, that a disapproval of such an agreement cannot be given any greater force or effect.

Therefore, under the facts appearing here, the claim of Glenn for compensation upon the board’s disapproval of the compromise settlement agreement remains pending in the Industrial Accident Board, and under such facts it is the established rule in this court that where the cause of action is derived from a statute and not from the common law, as is the case in a suit for workmen’s compensation, the provisions of the statute must be complied with or an action is not maintainable in the courts. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084.

What, then, are the rights of a compensation claimant and the compensation carrier under facts like these? Under appropriate provisions of the Workmen’s Compensation Act, either the claimant or the insurance carrier has the right to seek a final award on the claim filed by Glenn (which is still pending) and, being dissatisfied therewith, may appeal therefrom through compliance with the provisions of the workmen’s compensation statutes to the courts. The jurisdiction of the courts in suits involving workmen’s compensation is appellate in character, even though the trial in such cases is de novo.

It must be shown, among other things, that the Industrial Accident Board has made a final award on a claim for compensation before the jurisdiction of the courts can be invoked. Talley v. Texas Employers Insurance Association, Tex.Com.App., 48 S.W.2d 988; Petroleum Casualty Co. v. Webb, 127 Tex. 91, 92 S.W.2d 236. It may be conceded, without deciding, that the writ of mandamus is available to the parties in interest for the purpose of compelling the Industrial Accident Board to proceed to hear and determine a claim for compensation on the refusal of the board to act, but this is not the purpose of this suit.

It is sought here to compel the board to act on a claim filed before it in a specific manner. In; a word, the parties seek to control the discretion or judgment of the board and thereby avoid the necessity of procuring from the board a final award and an appeal therefrom. The equitable remedy of a writ of mandamus is not available as a substitute for a legal remedy provided by law. Navarro County v. Tullos, Tex.Civ.App, 237 S.W. 982 (writ refused). Thus it indisputably appears that the parties have not exhausted their rights before the Industrial Accident Board provided by the Workmen’s Compensation Act.

There being no final award by the board on the claim for compensation filed by Glenn, the parties have not the right to invoke = the jurisdiction of the district court until they have exhausted the rights given them by .the workmen’s compensation law. This ruling necessarily approves the action of the trial court in sustaining the board’s plea in abatement to the mandamus proceedings filed in the district court by Glenn and the insurance company, and requires a reversal of the judgment of the Court of Civil Appeals which holds to the contrary. This being true, our discussion of the proper

interpretation of

Section 12 of

Article 8306 contained in the opinion dated April 18, 194S, and the opinion dated July 18, 1945, is not necessary to a decision of this cause, and is therefore dictum. A majority of the court as it is now constituted is of the opinion that we should withdraw both former opinions of the court and substitute therefor this opinion. Accordingly, the former opinions and orders of this court are withdrawn. The judgment of the Court of Civil Appeals is reversed and the judgment of the trial court which sustained the plea in abatement is affirmed. ALEXANDER, C. J., and SHARP and SIMPSON, JJ., dissenting. TAYLOR, J., not sitting.