Honorable J. Overby Smith          Opinion No. W-1426
Chairman
Industrial Accident Board          Re:   Under Section 6 of
State ,InsuranceBuilding                 Article 8306 of Vernon's
Austin, Texas                            Civil Statutes, should
                                         the first day which an
                                         injured employee is un-
                                         able to perform his
                                         regular task for any
                                         part of such day be
                                         counted as the first
                                         day of incapacity for
Dear Mr. Smith:                          purposes of this section?
         This is a reconsideration of Opinion No. m-1389
which is hereby withdrawn.
         You have requested the opinion of this office concern-
ing Section 6 of Article 8306 of Vernon's civil Statutes as it
applies to determine when an incapacitated employee becomes
entitled to workmen's compensation benefits.
         Section 6 of Article 8306 of Vernon's civil Statutes,
provides:
             "No compensation shall be paid under this
        law for an injury which does not incapacitate
        the employee for a period of at least one week
        from earning full wages, but if incapacity ex-
        tends beyond one week, compensation shall begin
        to accrue on the eighth day after the Injury.
        The medical aid, hospital services, chiroprac-
        tic services, and medicines, as provided for in
        Section 7 hereof, shall be supplied as and when
        needed and according to the terms and provi-
        sions of said Section 7. If incapacity does
        not follow at once after the infliction of the
        injury or within eight days thereof but does
        result subsequently, compensation shall begin
        to accrue with the eighth day after the date
        incapacity commenced. In any event the employee
        shall be entitled to the medical aid, hospital
        service, chiropractic service and medicines
Honorable J. Overby Smith, page 2.   (ww-1426)



        provided in this law. Provided further that if
        such incapacity continues for four (4) weeks or
        longer, compensation shall be computed 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?"
         You advise that the interpretation of the Industrial
Accident Board of the waiting period is:
             "The seven (7) day waiting period shall
        be made up of seven (7) calendar days. The
        first day to be counted as a full day of lost
        time shall be the first day in which the
        injured employee is unable to perform his
        regular tasks for any part of the day."
         A "yes" or "no" answer to your question would not be
satisfactory since either will still leave In doubt the ques-
tion as to which is the "eighth" day specified in the statute
on which compensation is to begin. The fundamental question
then is: When does compensation begin? The memorandum of the
Board does not answer the question. The best way to answer
this question is by illustration.
         Suppose the injury or the incapacity occurs on Monday.
The first day after the injury or incapacity is Tuesday. The
second day is Wednesday. The third day is Thursday. The fourth
day is Friday. The fifth day is Saturday. The sixth day is Sun-
day. The seventh day is Monday. The eighth day is Tuesday.
Compensation begins to accrue on Tuesday.
         Insofar as the fundamental rules of statutory con-
struction apply in this particular instance, they support our
conclusion in the above illustration.
         At the beginning of Section 6, the Legislature pro-
vided no compensation for a "period of at least one week from
earning full wages." Seemingly in an effort to leave no doubt
about this, it said that incapacity must "extend beyond one
week" and compensation should then begin to accrue on the
eighth day after the injury." Again, when incapacity did not
Honorable J. Overby Smith, page 3.   (WW-1426)


occur simultaneously with the injury, the statute provides
for compensation to accrue on the "eighth day after the date
incapacity commenced."
         The primary rule of statutory construction is that the
legislative intent must govern, and clearly in this Act, the
Legislature intended not a waiting period of 6 days, or 6+ days
or 6-3/4 days, but at least one week -- seven days, or more, but
not less.
        The definition of a period of time or the stating of a
formula for determining lapse of time generally contains the
unit of measurement (such as in days, weeks, or months) and the
starting point or event (such as date of service, date of inca-
pacity) separated by a preposition. This statute uses "from"
and "after!' The legal interpretation of these words is found in
41-A Tex.Jur. p. 385, "From" or "After," Sec. 15:
              "The general rule is to exclude the first
        day and to include the last in computing time
        'from' or 'after' a specified day or event. . . .'
        This has always been the law in Texas, supported by a
long line of Supreme Court decisions, one of the latest being
Home Ins. Co. of New York v. Rose, 152 Tex. 222, 255 S.W.ad.
861, a unanimous decision of 1953.
        We are unable to find any decision wherein a court is
called upon, and does rule upon, the specific question you ask
about Section 6 of this Act. In the avalanche of decisions con-
struing this Act, however, there may be found cases that approve
or affirm calculations of benefits made in the trial court by a
judge or jury which may not appear to be in accordance with our
formula. Likewise such calculations may be found that are in
accord.
        There is a line of decisions construing Section 10 of
the Act and which are concerned with computing the period of maxi-
mum benefits up to 401 weeks, originating with Texas Employers
Ins. AssIn v. Quidry, 128 Tex. 433, 99 S.W.2d 900 (1937) and
Jones v. Texas Employers Ass'n., 128 Tex. 437, 99 S.W.2d 903.
        Admittedly, some of these decisions may be susceptible
of logical interpretations arriving at a conclusion contrary to
ours as well as in support thereof. However, we doubt the pro-
piety of their applicability to the instant question since, as
Honorable J. Overby Smith, page 4.   (ww-1426 )



stated, they are construing Section 10, and since further, the
Court, itself, seems to Infer a distinction at the beginning of
page 904 of the Jones case. We think the plain wording of the
statute, however, clearly supports the conclusion reached here-
in.
                           SUMMARY
             To determine the date on which compensa-
             tion begins under Section 6 of Article
             8306 of Vernon's Civil Statutes, count
             as the "first day" the day that follows
             immediately the date of injury or incapa-
             city, and continue to count the days in
             consecutive numerical order and begin
             compensation on the "eighth day."
                                 Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas




SJ:wb:zt                             Assistant

APPROVED:
OPINION COMMITTEE
Morgan Nesbitt, Chairman
Cecil C. Rotsch
Robert Shannon
L. P. Lollar
Jack Goodman
REVIEWED FOR THE ATTORNEY GENERAL
By: Leonard Passmore
