WY 17, 1362

Honorable J. Overby Smith OpinionNo.tfl>!-l389 Chairman, IndustrialAccident Board Xe: Under Section 6 of Article Valton Building 8306of Vernon's civil Austin, Texas Statutes, should the first day which an injured enployee is unable to perforE his regular task for any part of such day be countedas the first day of incapacity for purposes Dear Xr. Smith: of this section?

You have requested the opinion of this o.Cficeconcerning Section 6 of Article 8306 of Vernon's civil Statutes as it applies to determinewhen an incapacitatedemployee becomes entitled to \workoenls compensationbenefits. Section 6 of Article 8306 of ‘v'ernonls 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 full wages,but if incapacity extendsbeyond one week cotxpensation 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, shallbe scppliedas and when needed and according to the terms and provisions of said Section 7, If incapacitydoes not follow at once after the inflictionof the in.jury or within eight days thereofbut does result subsequently, compensation shallbegin to accrue with the eighth day after the date incapacity commenced. In any event the er;ployee shall be entitled to the medicalaid, hospital service, chiropractic service,and medicines provided In this law. Provided further that if such incapacity continuesfor four (4) weeks or longer, compensation- shallbe com-_.. .

Honorable J. Cverby Smith,page 2 (W-1389)

puted from the Inceptiondate of such Incapacity." The questionyou have submitted is as follows: "Should the firstday 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?" The answer toyoz question depends upon the meaning to be given to the terms "eighthday after the injury” and "eighth day after the date incapacity commenced"as used in Section 6 of Article 8306. Although the specificquestionyou ask has not heretofore been passed upon by our appellate courts, nonetheless, a considerationof cases in which the computation of the compensation allowedby Section 6 of Article8306has been either approved as made by the trial court or refer-ed by the appellate court indicate that your questionmust be answered in the affirmative.

First, in the case of United EmployersCasualty 30. v. Oden, 150 S.W.2d 114 (Civ.App.1941, ZrrorDism., .Judgm. Cor.)t page 117 we find stated:

9,

. . .The compensationperiod begins on the date when incapacityarises and ends iFjall events at the exniration of 401 weeks after the date when the accidental ln.juries are sustained. Texas Employers Ins. AssIn.

V. Guidry, 128 Tex. 433, 99 S.W.2d 900; Traders & General Ins. Co. v. Watson, Tex. Civ.App., 131 S.W.2d 1103; Maryland Cas. Co. v. Abbott, Tex.Civ.App., 131 S.W.2d 171.

. ..It (Emphasisours)
In ICT InsuranceCompany v. Gunn, 294 S.>!.2d 435 (Civ.App. 1956) the following statements of theCourt bear upon the question at hand, at page 444:

"Appellanttsfourthpoint Is substantially that the co-rt erred in entering judgmentfor workmen's compensationbenefits for the full period of 401 weeks after June 15, 1955,when the jury found that the injury occurred on June 29, 1954, for the reason that, as a matter of law, compensationbenefits for total disability can be recoveredonly for a periodHonorable .J.Overby Smith, page3(W-l389)

of 401 weeks after date of injury rather than after date disability commenced.

It

. . . "It is without disEute that appelleewas injured on .June29, 195 , and M-at his total disability began on .June15, 1955, all of which,,isfound in the findings of the jury.

. . . Continuing at page 445: II

. . .itbeing without dispute that 50 weeks lapsed from the date of injury to the date of appellee's total permanent disability, that the judgment entered by the trial court must be creditedwith 50 weeks at $25 per week, or a total credit of $1,250,and the judgment enteredby the trial cozt is reformed.

. . .' Since, as held in the Oden Case, supra, the 401 week period began to run on the 29thday of .June, 1954, and credi .ting50 weeks from tms date carries through the 14th day of June, 1955, thus allowing the claimant com:pensation from the first day of his incapacitywithout regard to the time of day.

We consider to be directly in point Royal Indernity Co. v. Jones, ---7-

201 S.W.2d 129 (Tex.Civ.App.1947, error rei. n.r.e.)wherein the claimant was injured on .July18, 1945, and became incapacitated on November 30, 1945. The court awarded compensation from December 7, 1945, thus holding that December 7, 1945, was the eighth day after the claimants incapacity commenced, which of necessity counted November 30, 1945, as the first day of Incapacitywithout regard to the time of day that the incapacity commenced.

In view of the foregoing holdingsyour question is hereby answered in the affirmative and you are advised that the first day, regardless of the time of day, wherein an injured employee is unable to performhis regular task is to be considered the first day of incapacity.. . ‘-

.’ ’
Honorable .J.Overby Smith,page 4 (W-1389)

SUMMARY Under the provisionsof Section 6 of Article 8306 of Vernon's Civil Statutes, the first day, regardlessof time of day, wherein an injured employee is unable to perform his regular task shallbe considered and counted as the firstday of incapacity. Very trulyyours, WILL !JILSON AttorneyGeneral of Texas

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APPROVED: CPINION CCMMITTEE
:I. V. Geppert, Chairman St Bailey See Csborn Xarietta Payne 

### LN By:w
. 0. Assistant

REVIEWED FOR THE ATTORNEY GENERAL 3Y: L,eonard?assmore