The opinion
BARCUS, J.
I regret that I cannot agree with my associates in the disposition of this cause. I do not think the evidence is sufficient to support a finding by the court oí jury that appellee was either totally or permanently disabled. Appellee testified that since the injury she had worked for Miss Odie, for A. C. Patton & Co., for Goldstein-Migel Company, for Sanger Bros., and for a firm at Georgetown, and that she had never quit work for any of said concerns on account of sickness except when working for Miss Odie. She testified that in the fall of the year before this cause was tried in 1926, she worked in Georgetown for six weeks at one time, and had received $20 per week wages when she had only received $15 at the time of the injury, and that she was able to continue the work but the firm had let her out because they did not need her services. Neither she nor any other witness was even asked the question as to whether her injuries were permanent. There is not in the entire statement of facts a single line of testimony that her disabilities will continue. The only thing on which the jury could base its finding that she was permanently disabled is the fact that, at the time of trial, something over four years had ‘elapsed since the injury and appellee and her witnesses testified that she was still suffering as a result therefrom. I do not think the jury was authorized to base said finding on said presumption. There were only two doctors who testified on the trial of the case, one placed on the stand by appellee and one by appellant, and each of said doctors testified that, in his opinion, at the time of trial appellee had entirely recovered from her injury. Lumbermen’s Reciprocal Ass’n v. Wells (Tex. Civ. App.) 283 S. W. 208 ; Lumbermen’s Reciprocal Ass’n v. Coody (Tex. Civ. App.) 278 S. W. 856 .
In my opinion, the plea in abatement filed by appellant should have been sustained. I do not think under the facts in this case the Industrial Accident Board was authorized to reopen the award or to set aside its former award, and for said reason I do not think the district court had any jurisdiction to hear or determine this cause. The Work
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men’s Compensation Act provides that the Industrial Accident Board, after an award 5s made, may at any time during the period of compensation review or set aside or in any way amend its former award on its motion' or on the application of any person interested showing “a change of’ conditions, mistake or fraud.” Section 12d art. 8306, Revised Statutes. In the petition for review filed with the Industrial Accident Board, as well as in the suit filed in the district court, ap-pellee does not claim there was any change of conditions or any mistake or fraud in the making and entering of the awafd on the agreed settlement which she had with appellant. Her only contention is that appellant was to pay the doctor’s bills, which they had failed and refused to pay. The Workmen’s Compensation Act provides specifically that where an award is made and the insurance company fails or refuses to comply therewith, the Industrial Accident Board may certify that fact to the commissioner of insurance and have the company’s right to do business in Texas forfeited. Section 5, art.. 8307, Revised Statutes. In addition to the power given the board, the party in whose favor the award has been made, where the i company refused to pay same, may bring suit in a court of competent jurisdiction for the amount of the award, plus 12 per cent, damages and reasonable attorney’s fees. Section 5a, art. 8307, Revised Statutes. Where the Legislature has provided a specific penalty to he inflicted and a specific remedy for the enforcement of a statute, said penalties and remedies exclude all others, and, in my opinion, the Industrial Accident Board cannot simply, because the insurance company refuses to pay an award, reopen the case and make an entirely different award.
In my opinion, appellee is not entitled to have the agreed jaward as entéred by the Industrial Accident Board set aside for failure.-on the part of the insurance company to pay the doctor’s bill, since it appears without dispute in the record that she has never paid the same and is. not obligated to pay it. It appears that Goldstein-Migel- Company has paid the doctor’s hill in question and that no claim or demand, request, or obligation as shown by the record is now resting on appel-lee. In her testimony appellee does not claim to have suffered any loss or injury by failure of the insurance company to carry out the contract she claims it made with her at the time of the settlement. It is shown without dispute that the insurance company agreed to and did pay her $600 in addition to the amounts she had already been paid, and she doeb not claim that the compromise settlement and agreement was entered
into
by reason of any mistake or fraud, or that any changed conditions have taken place since the time she made the settlement agreement.