                        WY   17, 1362



Honorable J. Overby Smith          Opinion No. tfl>!-l389
Chairman, Industrial Accident
    Board                          Xe:   Under Section 6 of Article
Valton Building                          8306 of Vernon's civil
Austin, Texas                            Statutes, should the first
                                         day which an injured en-
                                         ployee is unable to per-
                                         forE his regular task for
                                         any part of such day be
                                         counted as the first day
                                         of incapacity for purposes
Dear Xr. Smith:                          of this section?
          You have requested the opinion of this o.Cficecon-
cerning Section 6 of Article 8306 of Vernon's civil Statutes
as it applies to determine when an incapacitated employee be-
comes entitled to \workoenlscompensation benefits.
            Section 6 of Article 8306 of ‘v'ernonls
                                                  civil     Statutes
provides:
          "NO compensation shall be paid under
     this law for an injury which does not in-
     capacitate the employee for a period of at
     least one week from earning full wages, but
     if incapacity extends beyond one week cotx-
     pensation shall begin to accrue on the eighth
     day after the injury. The medical aid, hos-
     pital services, chiropractic services, and
     medicines, as provided for in Section 7 here-
     of, shall be scpplied as and when needed and
     according to the terms and provisions of said
     Section 7, If incapacity does not follow at
     once after the infliction of the in.juryor
     within eight days thereof but does result sub-
     sequently, compensation shall begin to accrue
     with the eighth day after the date incapacity
     commenced. In any event the er;ployeeshall
     be entitled to the medical aid, hospital ser-
     vice, chiropractic service, and medicines
     provided In this law. Provided further that
     if such incapacity continues for four (4)
     weeks or longer, compensation-shall be com-
                                   _.. .



Honorable J. Cverby Smith, page 2 (W-1389)


     puted from the Inception date of such Incapacity."
          The question you have submitted is as follows:
          "Should the first day regardless of time
     of day in which the injured employee is unable
     to perform his regular task for any part of
     the day, be considered and counted as the
     first day of incapacity?"
          The answer to yoz question depends upon the meaning
to be given to the terms "eighth day after the injury” and
"eighth day after the date incapacity commenced" as used in
Section 6 of Article 8306. Although the specific question you
ask has not heretofore been passed upon by our appellate courts,
nonetheless, a consideration of cases in which the computation
of the compensation allowed by Section 6 of Article 8306 has
been either approved as made by the trial court or refer-ed
by the appellate court indicate that your question must be
answered in the affirmative.
          First, in the case of United Employers Casualty 30.
v. Oden, 150 S.W.2d 114 (Civ.App. 1941, Zrror Dism., .Judgm.
Cor.)t   page 117 we find stated:
          9,
            . . .The compensation period begins on
     the date when incapacity arises and ends iFj-
     all events at the exniration of 401 weeks
     after the date when the accidental ln.juries
     are sustained. Texas Employers Ins. AssIn.
     V. Guidry, 128 Tex. 433, 99 S.W.2d 900;
     Traders & General Ins. Co. v. Watson, Tex.
     Civ.App., 131 S.W.2d 1103; Maryland Cas.
     Co. v. Abbott, Tex.Civ.App., 131 S.W.2d
     171. . ..It (Emphasis ours)
          In ICT Insurance Company v. Gunn, 294 S.>!.2d435
(Civ.App. 1956) the following statements of the Court bear
upon the question at hand, at page 444:
          "Appellantts fourth point Is substantially
     that the co-rt erred in entering judgment for
     workmen's compensation benefits for the full
     period of 401 weeks after June 15, 1955, when
     the jury found that the injury occurred on
     June 29, 1954, for the reason that, as a
     matter of law, compensation benefits for total
     disability can be recovered only for a period
Honorable .J.Overby Smith, page3(W-l389)


     of 401 weeks after date of injury rather
     than after date disability commenced.
          It
               .   .   .



          "It is without dis ute that appellee was
     injured on .June29, 195E , and M-at his total
     disability began on .June15, 1955, all of
     which,,isfound in the findings of the jury.
     . . .
          Continuing at page 445:
          II
           . . .it being without dispute that 50
     weeks lapsed from the date of injury to the
     date of appellee's total permanent disability,
     that the judgment entered by the trial court
     must be credited with 50 weeks at $25 per
     week, or a total credit of $1,250, and the
     judgment entered by the trial cozt is re-
     formed. . . .'
           Since, as held in the Oden Case, supra, the 401
week period began to run on the 29th day of .June,1954, and
credi.ting 50 weeks from tms date carries through the 14th
day of June, 1955, thus allowing the claimant com:pensation
from the first day of his incapacity without regard to the
time of day.
          We consider to be directly in point Royal Indernity
                                                    ---7-
Co. v. Jones, 201 S.W.2d 129 (Tex.Civ.App. 1947, error rei.
n.r.e.) wherein the claimant was injured on .July18, 1945, and
became incapacitated on November 30, 1945. The court awarded
compensation from December 7, 1945, thus holding that December
7, 1945, was the eighth day after the claimants incapacity com-
menced, which of necessity counted November 30, 1945, as the
first day of Incapacity without regard to the time of day that
the incapacity commenced.
          In view of the foregoing holdings your question is
hereby answered in the affirmative and you are advised that
the first day, regardless of the time of day, wherein an in-
jured employee is unable to perform his regular task is to
be considered the first day of incapacity.
                                                             .   .   ‘-




                                .’      ’


Honorable .J.Overby Smith, page 4 (W-1389)


                     SUMMARY
          Under the provisions of Section 6 of
     Article 8306 of Vernon's Civil Statutes,
     the first day, regardless of time of day,
     wherein an injured employee is unable to
     perform his regular task shall be con-
     sidered and counted as the first day
     of incapacity.
                                     Very truly yours,
                                     WILL !JILSON
                                     Attorney General of Texas

                                    LN
                               By :w. 0.
::OS:mkh                             Assistant
APPROVED:
CPINION CCMMITTEE
:I.V. Geppert, Chairman
St Bailey
See Csborn
Xarietta Payne
REVIEWED FOR THE ATTORNEY GENERAL
3Y: L,eonard?assmore
