Honorable J. Overby Smith Opinion No. W-1426 

Chairman 

Industrial Accident Board Re: Under Section 6 of 

State ,Insurance Building Article 8306 of Vernon's 

Austin, Texas Civil Statutes, should 

the first day which an 

injured employee is unable 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which is hereby withdrawn.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 concerning 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 extends beyond one week, compensation shall begin 

to accrue on the eighth day after the Injury. 

The medical aid, hospital services, chiropractic services, and medicines, as provided for in 

Section 7 hereof, shall be supplied 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 

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 question 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 Sunday. The seventh day is Monday. The eighth day is Tuesday. 

Compensation begins to accrue on Tuesday. 

Insofar as the fundamental rules of statutory construction apply in this particular instance, they support our 

conclusion in the above illustration. 

At the beginning of Section 6, the Legislature provided 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 incapacity) 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 construing 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 maximum 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 propiety 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 herein. 

SUMMARY 

To determine the date on which compensation 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 incapacity, 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