      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


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