Untitled Texas Attorney General Opinion

@ffice of tfie 3ttornep @eneral
&date of Qexas
DAN MORALES
Al-rORNEY
GEF4ERAL December IS. 1992

Mr. Todd K Brown Opinion No. DM-189
ExaativeDilcctol
Texas Workers’ Compensation Be: Whetha the former workers’ compen-
Commission sation laws authorize the Indd Accident
Southfield Bldg., 4000 South M-35 Board or its suweesor to pay for the cost of
m Texas 78704 agency ordered medical examinations of
claimants (RQ4w

Dear Mr. Brown:

You ask whether under former V.T.C.S. article 8307,. section 4(a), repealed by
Acts 1989, 7l.s Leg., 2d C.S., ch. 1, 0 16.01(10)-(12), a provision of the former
workers’ compensation laws, the cost of a physical examination of a workers’
compensation claimam ordered by the Industrial Accident Board or its successor, the
Workers’ Compensation Commission, is to be borne by the state. You note that although
article 8307 including the provisions of former section 4(a) at issue here wxs repealed with
the adoption of the 1989 Texas Workers’ Compensation Act, the repealed provisions still
govern the commission’s p rowssing of claims ari*g tiom injuries incurred prior to
Janusq 1, 1991, the &bctive date of the new act. See Acts 1989,71st Leg., 2d C.S., ch.
1. $5 16.01 (repealer), 17.18 (repealed law continued in e&ct for injuries sustained prior
to January 1. 1991).

The physical exami& which you ask about is provided for in former section
4(a) as follows in pertinent part:
The Board . . . . may require any employee claiming to have
sustained injury to submit himself for examination before such Board
or someone acting under its authority at some reasonable time and
place within the State, and as offen as may be reasonably ordered by
the Board to a physician or physicians, a chiropractor or
chiropractors authorized to practice Under the laws of this State.
There is no provision stating who is to bear the cost of such examination. Notably, the’
counterpart provisions of the new 1989 Workers’ Compensation Act, V.T.C.S. article
8308-4.16, provide tbat the cost of an examination ordered by the successor of the
Industrial Accident Board under the law, the Workers’ Compensation Commissions is to
bepaidbythe insulancecaniel.

p. 999
Mr. Todd K. Brown - Page 2 (DM-189)

You indicate that the commission, and its predecessor the board, have long
construed the old law provisions at issue here, to leave to the state agency the
responsibiity of paying the costs of the agency-ordered exsminations provided for therein.
You note that other provisions of section 4, found in subsection (b), permit the insurance
carrier, the “association,” to require that a claimant be examined by physicians or
chiropractors of the association’s choosing, but specify that “[t]he Association shall pay
for such examination and the reasonable expense incident to the employee in submitting
thereto” - suggesting that where the legislature has intended in these provisions that
others than the state agency are to bear costs, it has so specified. See a%0 V.T.C.S. art.
8307, Q 4(b) (provision where claimant selects own physician or chiropractor to
participate in examination requested by association, association shall pay such physician’s
or chiropractor’s fses, as determined by board), (e) (provision where claimant appeafs
board decision, board may require claimant to pay cost of preparing bosrd records for
submission to reviewing court) (repealed 1989).

We believe that the board’s and commission’s long standiig construction of the
provisions of section 4(a) at issue here is reasonable, and would be given considerable
deference by a court. See, e.g., Culvert v. Karkme, 427 S. W.2d 605 (Tex. 1968).
Therefore we conclude that the commission may continue to implement this construction
and itself pay the cost of physical examina tions of claimants ordered by the board or
commission under the above-quoted provisions of section 4(a).

SUMMARY

The long-standing construction by the Industrial Accident Board
and its successor, the Workers’ Compensation Commission, of the
provisions of section 4(a) of former V.T.C.S. article 8307 as leaving
to the state agency the responsibility for paying the cost of board or
commission ordered physical examinations of claimants is reasonable.

DAN MORALES
Attorney General of Texas

p. 1000
Mr. Todd K. Brown - Page 3 (DM-189)

WILLPRYOR
FiA.ssistantAnomeyGeneral

MARYKELLER
Deputy Assistant Attorney General

RENEAHJCKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opiion Committee

Prepared by Wfiam M. Walker
Assistant Attorney General

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