Honorable J. Overby Smith Opinion No. W-1426

Chairman IndustrialAccident 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 reconsiderationof OpinionNo. m-1389 which is hereby withdrawn.

You have requested the opinion of this office concerning Section 6 of Article 8306 ofVernon's civil Statutes as it applies to determinewhen an incapacitatedemployee becomes entitled to workmen's compensationbenefits.

Section 6 of Article 8306 of Vernon's civil Statutes, provides:
"No compensation shallbe paid under this

law for an injurywhich does not incapacitate the employee for a period of at least one week from earning fullwages, but if incapacity extends beyond one week, compensation shallbegin 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, shallbe suppliedas and when needed and according to the terms and provisions of said Section 7. If incapacitydoes 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 shallbe entitled to the medical aid, hospital service, chiropractic serviceand medicinesHonorable 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 shallbe computed from the inceptiondate of such incapacity."
The questionyou have submitted is as follows:
"Shouldthe 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 consideredand counted as the first day of incapacity?"
You advise that the interpretationof the Industrial Accident Board of the waiting period is:

"The seven (7) day waiting period shall be made up of seven (7) calendardays. The first day to be counted as a full day of lost time shallbe the first day inwhich the injured employee is unable to perform his regular tasks for any part of the day."
A "yes"or "no"answer to your questionwould not be satisfactory since eitherwill still leave In doubt the question as to which is the "eighth"day specified in the statute on which compensationis to begin. The fundamental question then is: When does compensationbegin? The memorandum of the Board does not answer the question. The best way to answer this question is by illustration.

Supposethe injury or the incapacity occurs on Monday. The first day after the injury or incapacity is Tuesday. The secondday is Wednesday. The third day is Thursday. The fourth day is Friday. The fifth day is Saturday. The sixth day is Sunday. The seventhday is Monday. The eighth day is Tuesday. Compensationbegins to accrue on Tuesday.

Insofaras the fundamentalrules of statutory constructionapply in this particular instance, they support our conclusion in the above illustration.

At the beginning of Section 6, the Legislatureprovided no compensation for a "periodof at least one week from earning fullwages." Seemingly in an effort to leave no doubt about this, it said that incapacitymust "extendbeyond one week" and compensation should then begin to accrue on the eighth day after the injury." Again, when incapacitydid notHonorable J. Overby Smith,page 3. (WW-1426)

occur simultaneouslywith the injury, the statuteprovides for compensationto accrue on the "eighthday after the date incapacity commenced."

The primary rule of statutory construction is that the legislative intentmust govern, and clearly in this Act, the Legislature intendednot 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 (suchas in days, weeks, or months) and the startingpoint or event (suchas date of service,date of incapacity) separatedby a preposition. This statuteuses "from" and "after!'The legal interpretationof these words is found in 41-A Tex.Jur.p. 385, "From"or "After,"Sec. 15:

"Thegeneral rule is to exclude the first day and to include the last in computing time 'from'or 'after'a specifiedday or event.

. . .' This has always been the law in Texas, supportedby a long line of Supreme Court decisions, one of the latestbeing 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 decisionwherein a court is called upon, and does rule upon, the specific questionyou 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 calculationsof benefits made in the trial court by a judge or jurywhich may not appear to be in accordancewith our formula. Likewise such calculationsmay be found that are in accord. There is a line of decisions construing Section 10 of the Act and which are concernedwith computing the period of maximum benefits up to 401 weeks, originatingwith Texas Employers Ins.AssIn v. Quidry, 128 Tex. 433, 99 S.W.2d 900 (1937) and Jones v. Texas EmployersAss'n., 128 Tex. 437, 99 S.W.2d 903.

Admittedly, some of these decisionsmay be susceptible of logical interpretationsarriving at a conclusion contrary to ours as well as in support thereof. However,we doubt the propiety of their applicabilityto the instant question since, asHonorable 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 supportsthe conclusionreached herein.
SUMMARY

To determine the date on which compensation begins under Section 6 of Article 8306 ofVernon's Civil Statutes, count as the "firstday" the day that follows immediatelythe date of injury or incapacity, and continue to count the days in consecutivenumerical order and begin compensationon the "eighthday."
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