                      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



                           - 2145 -
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




                          -2146-
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



                          -2147-
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



                             -2148-
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.'

                         -2149-
                                                              .




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.




                          - 2150-
.   .   .




            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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