DAN MORALES

Al-rORNEY GEF4ERAL 

## @ffice of tfie 3ttornep @eneral &date of Qexas December IS. 1992

Mr. Todd K Brown Opinion No. DM-189 ExaativeDilcctol TexasWorkers’ Compensation Be: Whetha the former workers’ compenCommission sation laws authorize the Indd Accident Southfield Bldg., 4000 South M-35 Board or its suweesor to pay for the cost of m Texas 78704 agency ordered medical examinations of claimants (RQ4w Dear Mr. Brown: You ask whether under former V.T.C.S. article 8307,.section 4(a), 

### repealedby Acts 1989, 7l.s Leg., 2d C.S., ch. 1, 0 16.01(10)-(12), a provision of the former workers’ compensation laws, the cost of a physical examination of a workers’ compensation claimam ordered by the Industrial Accident Board or its successor, the Workers’ Compensation Commission, isto beborne bythe state. You note that although article 8307 including the provisions offormer section 4(a) atissue here wxsrepealed with the adoption ofthe 1989 Texas Workers’ Compensation Act, the repealed provisions still govern the commission’s prowssing of claims ari*g tiom injuries incurred prior to Janusq 1, 1991,the &bctive date ofthe new act. SeeActs 1989,71st Leg., 2d C.S., ch. 1. $5 16.01 (repealer), 17.18 (repealed law continued in e&ct for injuries sustained prior to January 1. 1991). The physical exami& which you ask about is provided for in former section 4(a) asfollows inpertinent part:

The Board

. . ..may require any employee claiming to have sustained injury to submit himself for examination before suchBoard or someone acting under its authority at some reasonable time and place within the State, and as offen as may be reasonably ordered by the Board to a physician or physicians, a chiropractor or chiropractors authorized to practice Underthe laws ofthis State. There is no provision stating who is to bear the cost of such examination. Notably, the’ counterpart provisions of the new 1989 Workers’ Compensation Act, V.T.C.S. article 8308-4.16, provide tbat the cost of an examination ordered by the successor of the Industrial Accident Board under the law, the Workers’ Compensation Commissions is to bepaidbythe insulancecaniel.

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You indicate that the commission, and its predecessor the board, have long construed the old law provisions at issue here, to leave to the state agency the responsibiity ofpayingthe costs ofthe agency-ordered exsminations provided for therein. You note that other provisions of section 4, found in subsection (b), permit the insurance carrier, the “association,” to require that a claimant be examined by physicians or chiropractors ofthe association’s choosing, but specify that “[t]he Association shall pay for such examination and the reasonable expense incident to the employee in submitting thereto” - suggesting that where the legislature has intended in these provisions that others than the state agency are to bear costs, ithas so specified. See a%0 V.T.C.S. art. 8307, Q 4(b) (provision where claimant selects own physician or chiropractor to participate in examination requested by association, association shall pay such physician’s or chiropractor’s fses, as determined by board), (e) (provision where claimant appeafs board decision, board may require claimant to pay cost of preparing bosrd records for submission to reviewing court) (repealed 1989). We believe that the board’s and commission’s long standiig construction of the provisions of section 4(a) at issue here is reasonable, and would be given considerable deference by a court. See, e.g., Culvert v. Karkme, 427 S.W.2d 605 (Tex. 1968). Therefore we conclude that the commission may continue to implement this construction and itself pay the cost of physical examinations of claimants ordered by the board or commission under the above-quoted provisions ofsection 4(a). SUMMARY The long-standing construction bythe Industrial Accident Board and its successor, the Workers’ Compensation Commission, of the provisions of section 4(a) of former V.T.C.S. article 8307 as leaving to the state agency the responsibility for paying the cost ofboard or commission ordered physical examinations ofclaimants isreasonable.

DAN MORALES Attorney General ofTexas

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WILLPRYOR FiA.ssistantAnomeyGeneral MARYKELLER Deputy Assistant Attorney General RENEAHJCKS Special Assistant Attorney General MADELEINE B.JOHNSON Chair, Opiion Committee Prepared byWfiam M.Walker Assistant Attorney General

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