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 

Texas Workers’ 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 section 4(a), repealed by 

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, is to be borne by the state. You note that although 

article 8307 including the provisions of former section 4(a) at issue here wxs repealed with 

the adoption of the 1989 Texas Workers’ Compensation Act, the repealed provisions still 

govern the commission’s p rowssing of claims ari*g tiom injuries incurred prior to 

Janusq 1, 1991, the &bctive date of the new act. See Acts 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 $5 16.01 (repealer), 17.18 (repealed law continued in e&ct for injuries sustained prior 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) as follows in pertinent part: 

The Board . . . . may require any employee claiming to have 

sustained injury to submit himself for examination before such Board 

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 Under the laws of this 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. 

p. 999 
Mr. Todd K. Brown - Page 2 (DM-189) 

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 of paying the costs of the 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 of the 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, it has 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 examina tions of claimants ordered by the board or 

commission under the above-quoted provisions of section 4(a). 

SUMMARY 

The long-standing construction by the 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 of board or 

commission ordered physical examinations of claimants is reasonable. 

DAN MORALES 

Attorney General of Texas 

p. 1000 
Mr. Todd K. Brown - Page 3 (DM-189) 

WILLPRYOR 

FiA.ssistantAnomeyGeneral 

MARYKELLER 

Deputy Assistant Attorney General 

RENEAHJCKS 

Special Assistant Attorney General 

MADELEINE B. JOHNSON 

Chair, Opiion Committee 

Prepared by Wfiam M. Walker 

Assistant Attorney General 

p. 1001