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Mr. William 3. Burke Opinion NO. c-706 ExecutiveDirector State Board of Control Re: Construction of Section 8 of P. 0. Drawer GG Article V of House Bill 12, Capitol Station 78711 Acts of the 59,th Le Austin, Texas Regular Session, tislature, 19 5, (General AppropriationAct) relating to payment for injuries for state employees injuredwhile performing the duties of any hazardousposition towhich Dear Mr. Burke: he is assigned.

Your request for an opinion on the above subject matter concerns the following facts contained in your request, which are summarizedas follows:

A state employeewhile performing duties of a hazardousposition was severelyburned on the left arm, back, shoulders,neck, face and hands resulting from an electrical explosionand ensuing fire which occurred on the fifth floor,west end of the Sam Houston Office Building. He receivedmedical treatment at and was confined toa hospital.

Pursuant to theprovisions of Section 8 ofArticle V of House Bill 12 of the 59th Legislature,Regular Session, 1965, (GeneralAppropriationAct), a requestwas made to the Governor by the Board of Control for the approval to pay such expense for the employee's injuriesand care that was not covered or defrayed by hospitalizationcarried by the employee. The Governor approved the payment of suchhospital,medical and related expenses of the employeeassociated with the above described injury. Upon submitting the voucher forpayment, the Comptroller of Public Accounts questioned thevalidity of an item of expense, to wit: the examination in testing the employee's eyes for evidence of injury, theprescribing and replacement of lenses and frames of the employee'sglasses. Section 8 of Rouse fill 12, supra., limits expenditure of monies governed thereby to "payingnecessary drug,medicall: hospital and laboratory expenses for the care and treatment of the injured employee.
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Mr. William J. Burke, page 2 (c-706)

You state in your request that the examinationand testing of the employee's eyes for evidence of injury revealed that:
"His eyes were uninjured due to the fact that he wears prescriptionglasses. The lense of the glasses and the frames of his glasseswere ruined by the spewingmolten metal and electricarc. Without theprotection of eye glasses he very likely ccjdldhave lost his eye sight--orat best could not have escaped the area without eye damageand sight impairment--thede under the circumstances 7ree or amount of loss without glasses) is speculativebut nonetheless certain--the scarred lenses attest to this fact."
The Legislature has defined the practice ofmedicine in Article 4510, Vernon's Civil Statutes,as follows:

"Anyperson shall be regardedas practicing medicine within themeaning of this law: "(1)Who shallpubliclyprofess to be a physician or surgeon and shall diagnose, treat, or offer to treat, any disease or disorder,mental or physical, or any physical deformity or injury, by any system or method, or to effect cures thereof; (2)or who shall diagnose, treat, or offer to treat any disease or disorder,mental or physical or any physical deformity or injury by any system or method and to effect cures thereof and charge therefor,directly or indirectly, money or other compensation;
II II

. . . The Legislaturehas defined thepractice of optometry inArticle 4552,Vernon's Civil Statutes,as follows:

"Thepractice of optometry is defined to be the employment of objective or subjective means, without the use of drugs, for thepurpose of ascertainingand measuring thepowers of vision of thehuman eye, and fitting lenses or prisms to correct or remedy any defect or abnormal condition of vision. Nothingherein shallbe construed to permit optometrists to treat the eyes for any defectwhatsoever in any manner nor to administer nor to prescribe **-3410-**Mr. William J. Burke, page 3 (c-706)

any drug or physical treatmentwhatsoever,unless such optometrist is a regularly licensed physician or surgeon under the laws of this State. ,l 1,

. . . In Baker v. State, 240 S.W. 924 (Tex.Crim. 1922), the Courtmade the following observation:

"It seems obvious that defects of vision may result from disease of the eye and other organs of the body. It is concededand the optometrist must discern that the impairment which he seeks to remedy by lenses is not consequent upon disease. It follows that, while the eye operatesupon mechanicalprinciples, it cannot be treatedas a mechanism alone. Its vitality as an element of the human body cannot be overlooked. Other organs of the body function uponmechanical principles; for example, theheart as a pump, themuscles as levers; but they, like the eye, are nevertheless organs of the human body, and each organ is, to a degree, interrelatedwith all the others."
With regard to the replacement of the lenses and frames of the eyeglassesdestroyed by the electrical explosion and ensuing fire, the discussion concerning an eyeglass frame inWilliamson v. Lee Optical of Oklahoma, 75 S.Ct. 461, 348 U.S. 483 (1955) is applicable to th facts involved in your request. In thi Williamson case, iteis stated:

"An eyeglass frame, considered in isolation, is only a piece ofmerchandise. But an eyeglass frame is not used in isolation,as Judge Murrah said in dissentbelow; it is used with lenses; and lensespertaining as thex do to thehuman eye, enter the field of health.
Under the facts submitted,you are advised that the fees and charges for the examinationand testing of the employee's eyes for evidence of injury, the fitting of new prescription lenses and the replacement of frames and lenses are properly payable under the language of Section 8, Article V, House Bill 12, Acts of the 59th Legislature,Regular Session (1965),and the authority granted in the letter of approval from the Governor. -3411-Mr. William J. Burke, page 4 (c-706)

SUMMARY
Where an employee is injured the necessary fees and charges for an examinationand testing of the employee's eyes for evidence of injury, the fitting of prescription lenses and the replacement of frames for the lenses is roperly payable under the language of Section fiof Article V of House Bill 12, Acts of the 59th Legislature,Regular Session, 1965, wherein it authorized thepaying of necessary drugs,medical, hospital and laboratory expenses for the care and treatment of a state employee injured while performing duties to which he was assigned.
Very truly yours,
WAGGONER CARR Attorney General of Texas

John Reeves Assistant Attorney General
JR:sck
APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman Wade Anderson Mark White, Jr. John Banks J. C. Davis

APPROVED FOR THE ATTORNEY GENERAL BY: T. B. Wright

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