Untitled Texas Attorney General Opinion

OFFICE OF THE ATTORNEY GENERAL OF TEXAS AUSTIN Industrial Aooident Board Austin, Texas, G6ntleman: Your lett6T of Suns Z ur repueat ror th8 ih3rpr4tdam or thi6 p6rRgreph 8 or S8OtiOri 4 Of Atil~ls 0 Statutbs, and ear lnterpretatlon of xamln6tloaw ooatala- 6d th8lWin,, lWX&J re any ~nployee olaf.ming; to submit him08irr0r iohno or hia or it8 own seleotioa in euoh exaralnaticpn.Re- preeent to partlafpa.tar rukai Qf th8 smployes ta,mlbmft to uuoh eraminfatioa ahall daprfva him bi'b%s right to oompeneatioa, during the sontinua~t%e.,,of zmeh retusal, When a right to oempensa’ttan&ktthu8 sUsp6nded 110OOEWBZi8~* tioa sbd.1 be p&;ysb,&8 ia'ree&~eOtto the geriod or Industrial Accident Board, Page 2. auspenslon. If any employee shall persist in inaanltary or InJurioua practices which tend to either Imperil or retard hi8 moovery, or shall refuse to eubrsitto euoh mdlcal or eurglcal treat- ment or other remedial treatment reOOgniZ8d by the State, as Is reasonably eseential to promote hi8 reoovery, the Board may In it8 disoretion order or direct the As8OOiatiOn to reduoe or suspend th8 compensation of any suoh injured employee. NO oom- pensation shall be reduoed or suspended under the term of thle Scotion without reasonable notioe to tho eqloyee and an opportunity to be heard. Vhen authorized by the board, the Aesooiation ehall have the privilege of ,hvlng any Injured employee examined by a physlolan or physicians of its own seleotion, at reaeonable times, at a place or plaoes suitable to the ooulitlon of the injUr8d employee and convenient and accessible to hti. The Aasooiation shall pay for such examination and the reasonable expenee lnoldent to the injured employee in eubmltthg thereto. The Injured amployee shall have the prlvllege to have a phyalolan of his own 06hotion pr666at 60 participate ia suoh exam- lnetlon. Provided, when.such exaaimtlon i.8direoted by the board at the Npuest .ofthe A88OCiatfOa, the Aesooiation ehall pay the ie8 of the phy6iolan 8elsoted by the ermployee, auoh ree to be Sixed by the Board.* There is nothlng in the above artiole which refer8 in any way to a "phy8ioal lxan&mtion.W It doss provlde.Zor a ameUlonl exanination~ or an examination made by one or Pore physlolans. ?iepresume, therarore, that what you desire la our oanetruotion of an ~examinatlon by a physician" within the oontemplation of eaid Artioleg sin08 thie ie the only kind of an ex8mInatlon provide&under said statute, we will 'sotreat your question in thie reply. Under aald Art1018 the oourts have held that the Indua- trial Aooldent Board is not osmpel~led to Poroe an aWlOyee to eubmlt to an e~xaralnation.If, howeveti,the Board, in it8 di8Cr6tiOu, thlnke that an examkmtion should be made by a phycriolan or phy8iolan8, It hae~thq power to r8qulre the 8m- ploy88 to submit to said rxamln#ationat the hand8 of phy8i- olana which have been duly designated by the Board. Industrial Accident Board, Page 3. In Texas Y&ployers Insuranoe Aes'n. v. Arnold, 105 S.W. (2d) 687, the oourt held that the Board, as well as the trial court.(after same hed been appealed to the trial oourt), bad the power to require the injured employee to stand an exam- lnatloc by a dootor, but that neither the Board nor the trial oourt were oo!npelled80 to do. In Indemnity Inauranoe Co . vs. Murphy, 53 S.if. (ed) 506, the oourt held that the Board had the POwar to oompel the employee to submit to a medloal examination and that after the oause reached the trial oourt, it had the same power. In Petroleum Casualty Co. v. Brletow, 35 S.W. (2d) 246, the Court held thst the trial court might, but was not required to make the Injured 8mplOy88 have an ax-ray eremination. In United States Fidelity k Guaranty Cc. v. N8ttl8a, 35 S.la.(2d) 1045, the Court held that the app8llat8 0cul.t would not reverse a case because the trial OOUX?t FefU8ad to require a medical sraminatlon, unless it appeared that the trial oourt hed sbused it8 disoretion. In 74 6. W. (2d) l.22, Trader0 k General Insuranoe Co. v. Law, the oourt statmd thnt an arbitrary retuaal on the part or the trial oourt to require the employee or Olaimant to stand a mediaal axamination would doubtless be reveralble error. While each of the oaaea above olted (and a number oi others oould be added along thd 00~18 line) hold in general language that the board or the trial ocurt may require the olaimant or employee to atand a medical euualnatlon, wld -8, W8 think, w&d be OOIltrollsd by the general rule Or law aa laid down by our buprems Comt in Aufltin & N.U. Rall- way vs. Cluok, 97 Tex. 172, 77 f3.W. 402, whloh ha8 bean followed up to the present time. Therein the Supreme Court stated that the owrt aould not require a party to subs&t to a medical eraminatlon, but that the complainant or injured employee could be asked whether he was dlllng to stlbaitto a medical eXan&natlon, and it he refused, that taot could be argued to the jury against his right to reoover as well as against his testimony that he had reoelved any j.ajury. The correct X%18, W8 thtnk, iS aOCUZ’at8ly stated in 24 Tex. Jude. 441 as iolltis: ~NotwlthBtMding the iact that the plaint~rr in a personal InJury aotlon may reruse to eubmlt to % phyaloal ezaminatlon, the reZUM1 to eubm%t to an 8Xamination by diaintere8t8d phyafoiane may be Industrial Accident Board, Page 4. brought beiore the jury to be considered by them in determining the oredlblllty and su??lclenoy o? the testimony or the plelntl??.W Seotion 4, Artlole 8307, whloh Is here under &view, Provides for the appointment o? a phyelolan by the Board to examine the Injured employee under the conditions namad therein, and provldee: "Rerueal or the employee to 8Ubmlt to 8uOh examination shall d8PriV8 him or his right to oompeneation during the oontlnaance o? suoh rerueal. When a~right to oomgeneatlon Is thus euepended, no oompeneatlon shell be payable in raapeot to the- period o? the eu8panolon.* Ir the Injured employee reiueee to 8Ubmlt to a medlaal exemlnatlon at the hands o? the phyelolan appointed under the provisions o? said Artlole, then the Board has the right and the authority to deprive him o? any and 611 oompensatlon during the oontinuanos a? eueh miU881. The quelttlono? the kind o? an eraminatlon the doctor shall pVrk8la left entirely to the dlsoretlon of the phyal- elan. The law prwldee that the injured employee may, I? h8 desires, have his oam pbysioian present while the examlna- tlon 16 being made, and I? the eramination is being mad8 at the request o? the Aeeoolatlon, the ?ee oharged by the employee*8 doctor muat also bb paid by the Aseociation. The Leglalature has not attempted to atate the kind or exam- lnetlon.that'the dootor must or can make. It Is a proree- slonal examination and the phyelalan has the right to make same In euoh manner as will enable him to glve.an accurate diagnosis of the oaee and enable him to give an expert medloal opinion relative to the 8xtent and duration o? the disease or Injury or malady caused by the aoaldent. The statute doe8 not authorize the phyeldl~anto perrow an operation; but It does authorize him to make a complete and ?ull examlnatlon o? the injured employee. 1n support or our oonstruatlon or the Article under re- view we call attention to Saotlon 12b, ArtlCl8 6306, whloh provIdee that In olalms ?or hernia the Board oan order an operation and I? the emplopee retuses to submit to an opera- tion, he oan then only reoover oompeneaticn ?or 1noaPaoltY under the general provisions o? the Workmen8 Compeneation Law, not to exceed one year. In Tally vs. Texas lWPlOYm8nt Insuranoe A8sooiation, 46 S. W. (2d) 988,'the OQurt had thle 35 % Industrial Aooldent Board, Page 5. particular _ .. seotlon under review end held that earn8wae valid ano tnat a fall~e o? the employee to eubmit to an operation llmltsd him ln hls recovery under the Workmen6 Companeatlon AOt. The de?lnltlon o? the term %tedloal sxamlnatlonW wee dlsous8ed In 8X part8 Vaughan, 246 S.W. 373, the Court of Criminal Appeala, In passing upon an ordinance of the City of Dallas wblch required all wOrksr8 in restaurants to hav4 a Wedioal examlnetlonW to detennlne I? they had any in?eotioue or oontagioas diSea8e. The court stated that the t8IWIWmedloal examiiafit.ion*as used in said ordinance meant *an examination by a reputable physlolen deolarlng that the pertion Is free from eJ1 Infeatlous or oontagloue di8eaee,n leaving it entirely to the dootor waking the examination to.use such meana and methods 88 he, the do&or, deemed neoeesary from a plVf~s8iO11~1 or msdloal standpoint In Order to give the required certlrlc8te. Under the eecond paragraph of aectlon 4, Article 8507, quoted by you In your inquiry I? you by your rules have authoriced eam8, the A8oOci4dOa ha6 the right to have 8n injured amployee examined by a phyelolan 8elected by the Aesooiation, provided the employee may take with him his the ~pployee*e, psreonal physlolan to be preeent to perti- olpate In such sxaminetlon. I? the injured employee ri?uree to subrait to said examlnatlon then the Beard may thereafter, under the provlelone of the rirst paragraph under aald Artlole, deprive the employee o? all ocmpeneatlon during th8 period of time which he, the employee, oontinu88 to n3roeeto submit to said axtmlnation. The injured employee doss not have the right to take with him Into the examlnatlon anyone exoept hla own personal phy8lolan. The Injured aaployee and the examining phyelolan can by agreement pennlt any other peraon to be present at said examlnatlon. I? either objects, no one exoept the phyalcien appointed to m8k8 the sx8mfnation and the employee*r phyeloian oan be present. Yo,uravery truly ATTGRNEY GENXRAL OF Tr#ZfiS George w. Berous APPROVED JUL 13,,L939 atent As181 "=?!!k5~