Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
June 26, 1978
JOHN L. HILL,,
Attorney General
Honorable Cue D. Boykin, Chairman Opinion No. H-1194
Texas Industrial Accident Board
L.B.J. Building Re: Whether a completed com-
Austin, Texas promise settlement agreement
constitutes a claim for compen-
sation within article 8307,
section 9a(eX2), V.T.C.S.
Dear Mr. Boykin:
You ask whether the submission to the Board of a compromise
settlement agreement constitutes a “claim for compensation” within the
meaning of the following provision of the Workmen’s Compensation Law:
ln those cases in which a claimant makes a fifth
claim for compensation within any five-year period,
the Board shall automatically notify the attorney
general who shall investigate to determine if the
probability of fraud exists in connection with the
current claim or any of the prior claims.
V.T.C.S. art. 8307, S 9afeX2). You explain that on occasion, a claimant enters
into a compromise settlement agreement with the carrier without having
filed a formal claim for compensation. The agreement must be filed with the
Industrial Accident Board, as it cannot become effective without Board
approval. V.T.C.S. art. 8307, 5 12; Starnes v. Texas Employers’ Insurance
Association, 549 S.W.2d 46 (Tex. Civ. App. - Dallas 1977, writ ref’d n.r.e.);
American Employers insurance Co. v. Due, 166 S.W.2d 160 (Tex. Civ. App. -
Beaumont 1942, writ ref’d w.o.m.1. You state that the Board has traditionally
considered compromise settlement agreements, when submitted on forms you
provide, to be claims for compensation within section 4a of article 8307. You
wish to know whether they are to be considered claims within section 9a(e)(2).
Article 8307, section 4a, provides in part:
Unless the Association or subscriber have notice of
the injury, no proceeding for compensation for injury
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Honorable Cue D. Boykin - Page 2 (H-1194)
under this law shall be maintained . . . unless a claim for
compensation with respect to such injury shall have been
made within six (6) months after the occurrence of the
injury. . . .
This statute does not prescribe the form for making a claim. -Johnson v. American
General Insurance Co., 464 S.W.2d 83 (Tex. 1971); Prince v. Tlexas Employers’
Insurance Association, 466 S.W.2d 642 (Tex. Civ. App. - !Eastland 1971, writ ref’d
n.r.e.1. Section 4a is construed liberally in favor of the claimant. Harleysville
Mutual Insurance Co. v. Frierson, 455 S.W.2d 370 (Tex. Civ. App. - Houston n4th
Dist.1 1970, no writ). A ouroose of filing the claim is to eive information to
identify the injury and s&d as a basis-for proper investigation. Johnson v.
American General Insurance Co., e; Prince v. Texas Employers’ Insurance
Association, m. Your Compromise Settlement Agreement form includes such
information as the accident date and the emolovee’s reason for not returning to
work, if any. The form refers to the compromise of “this claim for workmen’s
compensation insurance.” The settlement form records the existence of a claim,
and gives some of the information that a compensation claim should give. The
Board’s administrative construction of its statute is entitled to respect. Pacific
Employers Insurance Co. v. Brannon, 242 S.W.2d 185 (Tex. 1951).
It has been held that the filing of timely notice of injury and Board approval
of a compromise agreement within six months after the date of injury “was
sufficient to show that the claim had been filed within time and in such manner as
to confer jurisdiction on the Board.”
S.W.2d 262, 264 (Tex. Civ. App. - Wac
A.&n v. Kennedy, 143 S.W.2d 583 (Tex. 1940) (after agreement entered and
aooroved, Board lost jurisdiction to consider any claim, plaintiff not required to file
claim unless agreement cancelled); Central Suiety & ms. Corporation v. McGowan,
93 S.W.2d 472. 475 (Tex. Civ. ADD. - Texarkana 1936. writ dism’d) (Board took
cognizance of &aim by approving’s’ettlement agreement):
Since the purpose of a claim is to give information as to what happened and
to serve as a proper basis for investigation, Johnson v. American General Insurance
Co., B at 86, we believe that a compromise settlement agreement submitted
KBoard approval constitutes a claim for purposes of the investigation required by
section 9a(e)(2) of article 8307, V.T.C.S. This conclusion is consistent with the
purpose of the statute which is to prevent the payment of fraudulent claims.
Certainly the mere fact that a carrier has agreed to a compromised settlement
does not eliminate the possibility of fraud.
You also ask whether section 9a(h) of article 8307 precludes the Board from
approving a compromise settlement agreement when it constitutes a person’s fifth
claim for compensation within a five year period. Section 9a(h) provides:
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. . .
Honorable Cue D. Boykin - Page 3 (H-1194)
Pending an investigation and hearing or appeal of allega-
tions of fraud under this section, the Board may not approve
a compromise settlement agreement or make a final award
in connection with the worker’s claims then pending before
the Board.
The filing of five claims within five years does not without more constitute
fraud. However, since an investigation is required upon a fifth claim being made
within five years, we believe that the Board may not approve a compromise
settlement agreement until the investigation has been completed within the 60 days
allowed. Sec. 9a(e)(3). The Board is not precluded from approving the agreement if
the investigation is concluded and there is no finding of a reasonable probability of
fraud.
SUMMARY
The filing of a compromise settlement agreement on the
form provided by the Industrial Accident Board constitutes a
claim for compensation within article 8307, section 9afeIf2)
for purposes of the required investigation. Section 9afhl
prevents the Board from approving a compromise settlement
agreement submitted on behalf of a worker pending the
conclusion of the required investigation. The filing of five
claims within five years does not in itself constitute fraud.
Attorney General of Texas
APPROVED:
5
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
jsn
p. 4804