Untitled Texas Attorney General Opinion ( 1969 )

July 9, 1969
John Kinross-Wright, M. D. Opinion No. M- 431
Commissioner, Department of
Mental Health and Mental Re: Whether a psychologist
Retardation employed by the Richmond
Box S, Capitol Station State School who con-
Austin, Texas 78711 tracted tuberculosis
from a patient is
entitled to the benefits
provided by Article
6822a, V.C.S.
Dear Dr. Kinross-Wright:
Your recent request for an opinion is quoted as
follows:
"An employee at the Richmond State
School, under control and management of
this Department, has apparently con-
tracted tuberculosis from a patient to
which she administered a psychological
examination, which examination was given
in an enclosed area and lasted approxi-
mately two hours. X-rays made later
confirmed the person examined to be in-
fected with tuberculosis. The employee
consulted a well-known chest specialist
in Houston and medication to control
the tuberculosis has been initiated and
will have to be continued for at least
one year.
"Your opinion is respectfully
requested as to whether or not those
appropriations made to the Richmond
State School described in Section 8 of
Article V of H. B. No. 5. Acts 60th
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Dr. Kinross-Wright, page 2 (M-431)
Legislature, First Called Session,
1968, may be used to pay the neces-
sary drugs, medical and laboratory
expenses incurred by this employee
in combating the illness she has
contracted."
We assume for the purposes of this opinion that
a request for payment of the expenses described has been
or will be made to the Governor and his approval obtained
as required by Section 8 of Article V of H. B. No. 5, Acts
of the 60th Legislature, First Called Session, 1968 (Gen-
eral Appropriations Bill). This section of the act pro-
vides:
~"Sec. 8. PAYMENTS FOR INJURIES.
Pursuant to Chapter 377, Acts, 1959,
Fifty-sixth Legislature, Regular Session
(Codified as Article 6822a), appropria-
tions made in this Act for consumable
supplies and materials, current and
recurring operating expense, general
operating expenses, other operating ex-
penses, or general institutional expense,
may also be expended for paying necessary
drug, medical, hospital and laboratory
expenses for the care and treatment of
any State employee injured while perform-
ing the duties of any hazardous position
to which he is assigned by his State
employment. For the purposes of this
Section, 'hazardous position' shall mean
one for which the regular and normal
duties inherently involve the risk or
peril of bodily injury or harm.
"The expenditure of any appropria-
tion for the purposes authorized by this
Section shall have the approval of the
Governor, shall be made only to the ven-
dors of necessary drugs, medical, hospital
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Dr. Kinross-Wright, page 3 (M-431)
or laboratory services, and shall not
exceed the amounts appropriated for the
purposes stipulated in the preceding
paragraphs nor result in jeopardizing
the financing of the regular functions
or services of therespective State
agency.
"Where a State employee has re-
ceived benefits through payments by
the State pursuant to this Section,
and also has received other liability
benefits as a consequence of the same
injury, such employee shall pay to the
State Treasury all sums received or
paid in his behalf as damages, for medi-
cal and hospital bills, up to but not
in excess of the amounts of any such
payments made by the State. No agency
of this State who makes payments pur-
suant to this Section shall present
the name of any employee who has failed
to comply with this paragraph to the
State Comptroller for the issuance of
any Treasury warrant payable to such
an employee.
"The provisions of this Section
shall not apply to any agency of the
State authorized to provide workmen's
compensation insurance for its em-
ployees."
The pre-existing statute authorizing the legis-
lature to make an appropriation of this nature is Article
6822a, V.C.S., which provides as follows:
"Section 1. The Legislature is
hereby authorized to appropriate
public funds for the purpose of paying
for drugs and medical, hospital, labora-
tory. and funeral expenses of state
employees injured or killed while engaged
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Dr. Kinross-Wright, Page 4 (M-431)
in performance of a necessary govern-
ment function assigned to the employee,
or where the duties of such employee
require the employee to expose himself
to unavoidable dangers peculiar to the
performance of a necessary governmental
function.
"Sec. 2. Agencies of the state
are hereby authorized to expend appro-
priated funds for the purpose of paying
for drugs and medical, hospital, labcra-
tory, and funeral expenses to those
state employees under their jurisdiction
and control only when such employees
are engaged in the activi>ies described
in Section 1 of this Act, and only to
the extent authorized by appropriations
made by the Legislature.
"Sec. 3. The payment of the
expenses provided for in Section 1 of
this Act is authorized to be made in
addition to other prerequisites of
employment now authorized by law.
Acts 1959, 56th Leg., p. 838, ch. 377."
The Legislature has authorized the Richmond
State School funds for, inter u, "other operating
expense." But before a State employee can be held to
be qualified to receive the benefits of Section 8, Arti-
cle V of House Bill No. 5, he must meet the tests esta-
blished by the Legislature in Section 8, viz. be
"injured while performing the duties of any hazardous
position to which he is assigned by his State employ-
ment." (Emphasis supplied.) While a definition is
furnished by the statute for the term "hazardous position,"
none is furnished for the term "injured."
The distinction between a "disease" and an
"injury" has been the subject of much litigation under
the Workmen's Compensation Act of this State. Since
the Legislature has excluded from the operation of said
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Dr. Kinross-Wright, page 5 (M-431)
section those state agencies authorized to provide
Workmen's Compensation insurance for their employees,
we believe the legislature intended that the term
"injured" be used and defined in the same sense that
it is used in the Workmen's Compensation Act.
Article 8306, Section 20, Vernon's Civil
Statutes, provides as follows:
"Wherever the terms 'injury' or
'personal injury' are used in the
Workmen's Compensation Law of this
state, such terms shall be con-
strued to mean damage or harm to
the physical structure of the body
and such diseases or infection as
naturally result therefrom. . .'
The courts give liberal construction to the
Workmen's Compensation Act, and if a reasonable doubt
exists as to the right of an employee to compensation,
it should be resolved in favbr of such right. Bailey
v. American General Insurance Company, 154 Tex. 430,
279 S.W.2d 315 (1955). In the Bailey case, supra, the
Supreme Court defined the terms "physical structure of
the body" and "harm" as used in Article 8306, Section
20, as follows:
"The phrase 'physical structure of
the body' as it is used in the sta-
tute, must refer to the entire body,
not simply to the skeletal structure
or to the circulatory system or to
the digestive system. It refers to
the whole, to the complex of per-
fectly integrated and interdependent
bones, tissues and organs which
function together. . .the structure
should be considered that of a
living person not as a static, inani-
mate thing.
"The ordinary as well as legal
connotation of 'harm' is that it is
of broader import than 'damage.'
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.
Dr. Kinross-Wright, page 6 (M-431)
Damage embraces direct physical
injury to a cell, tissue or organ
system: 'harm' to the physical
structure of the body embraces also
imoairment of use or control of
physical structures, directly caused
by the accident." (Emphasis supplied.)
The distinction between an accidental injury
and occupational disease is that an accidental injury can
be traced to a reasonably definite time, place and cause,
whereas an occupational disease is of slow and gradual
development, and the time, place and cause of it are not
susceptible of definite ascertainment. Barron vs. Texas
Employers' Ins. Ass'n., 36 S.W.Zd 464 (Tex.Comm.App. 1931).
See also Texas Emplovers' Ins. Ass'n. v. McKay, 146 Tex.
569, 210 S.W.2d 147 (1948): Texas Employers' Insurance
Association v. Bradford, 381 S.W.2d 234 (Tex.Civ.App. 1964,
error ref. n.r.e.): Solomon v. Massachusetts Bondinq and
Insurance Co., 347 S.W.2d 17 (Tex.Civ.App. 1961, error
ref.).
In the case of Barron v. Texas Employers' Ins.
Ass'n., supra, the employee contracted tuberculosis as
the result of inhaling gas from an oil well. He was able
to point with reasonable certainty to the time, place and
cause of the tuberculosis. The court held that the em-
ployee had suffered an "injury" within the meaning of the
word as used in the Workmen's Compensation Act, in the
following language:
"A disease contracted as the
direct result of unusual condi-
tions connected with the work,
and not as an ordinary or reason-
ably to be anticipated result of
pursuing the same should be con-
sidered as an accidental injury."
From the cases cited we conclude that the State
employee in question was "injured" as that term is used
in the statute in question.
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. . .
Dr. Kinross-Wright, page 7 (M-431)
Whether the State employee was injured while
performing the duties of a "hazardous position" is con-
trolled by the definition supplied in Section 8, Article
V, House Bill No. 5, quoted as follows:
"For the purposes of this Section,
'hazardous position' shall mean one
for which the regular and normal
duties inherently involve the risk
or peril of bodily harm."
The patients of Richmond State School are
impaired mentally, and often physically, or they would
not qualify for admission to the school. In our opin-
ion this State employee, required in the performance
of her normal duty to expose herself at close quarters
to the infirmities, mental and physical, of these
patients, was in a position where her duties inherently
involved the risk or peril of bodily injury or harm, and
was occupying a "hazardous position" as defined by the
statute. That the injury suffered, tuberculosis, was
not one of the particular perils expected does not in
our opinion bar this employee's qualification under the
definition contained in Section 8.
If in fact the employee's tuberculosis was,
in reasonable medical probability, caused by her exposure
to the tubercular patient on the occasion in question,
we conclude that the State employee in question does
qualify for the benefits authorized by Section 8 of Arti-
cle V, House Bill No. 5, 60th Legislature, First Called
Session, 1968.
SUMMARY
An employee of Richmond State School
contracting tuberculosis as the result of
conducting a psychological examination of
a tubercular patient may have necessary drug,
medical, hospital or laboratory expenses
paid from the appropriations made to Richmond
- 2151-
.
Dr. Kinross-Wright, page 8 (M-431)
State School for "other operating expense"
pursuant to Article 6822a, Vernon's Civil
Statutes, and Section 8, of Article V,
House Bill No. 5, Acts of the 60th Legisla-
ture, First Called Session, 1968.
Prepared by Tom Neely
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Co-Chairman
Terry Goodman
Robert C. Crouch
Ralph Rash
Malcolm Quick
Hawthorne Phillips
Executive Assistant
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