July 9, 1969 

John Kinross-Wright, M. D. Opinion No. M- 431 

Commissioner, Department of 

Mental Health and Mental Re: Whether a psychologist 

Retardation employed by the Richmond 

Box S, Capitol Station State School who conAustin, Texas 78711 tracted tuberculosis 

from a patient is 

entitled to the benefits 

provided by Article 

6822a, V.C.S. 

Dear Dr. Kinross-Wright: 

Your recent request for an opinion is quoted as 

follows: 

"An employee at the Richmond State 

School, under control and management of 

this Department, has apparently contracted tuberculosis from a patient to 

which she administered a psychological 

examination, which examination was given 

in an enclosed area and lasted approximately two hours. X-rays made later 

confirmed the person examined to be infected with tuberculosis. The employee 

consulted a well-known chest specialist 

in Houston and medication to control 

the tuberculosis has been initiated and 

will have to be continued for at least 

one year. 

"Your opinion is respectfully 

requested as to whether or not those 

appropriations made to the Richmond 

State School described in Section 8 of 

Article V of H. B. No. 5. Acts 60th 

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Dr. Kinross-Wright, page 2 (M-431) 

Legislature, First Called Session, 

1968, may be used to pay the necessary drugs, medical and laboratory 

expenses incurred by this employee 

in combating the illness she has 

contracted." 

We assume for the purposes of this opinion that 

a request for payment of the expenses described has been 

or will be made to the Governor and his approval obtained 

as required by Section 8 of Article V of H. B. No. 5, Acts 

of the 60th Legislature, First Called Session, 1968 (General Appropriations Bill). This section of the act provides: 

~"Sec. 8. PAYMENTS FOR INJURIES. 

Pursuant to Chapter 377, Acts, 1959, 

Fifty-sixth Legislature, Regular Session 

(Codified as Article 6822a), appropriations made in this Act for consumable 

supplies and materials, current and 

recurring operating expense, general 

operating expenses, other operating expenses, or general institutional expense, 

may also be expended for paying necessary 

drug, medical, hospital and laboratory 

expenses for the care and treatment of 

any State employee injured while performing the duties of any hazardous position 

to which he is assigned by his State 

employment. For the purposes of this 

Section, 'hazardous position' shall mean 

one for which the regular and normal 

duties inherently involve the risk or 

peril of bodily injury or harm. 

"The expenditure of any appropriation for the purposes authorized by this 

Section shall have the approval of the 

Governor, shall be made only to the vendors of necessary drugs, medical, hospital 

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Dr. Kinross-Wright, page 3 (M-431) 

or laboratory services, and shall not 

exceed the amounts appropriated for the 

purposes stipulated in the preceding 

paragraphs nor result in jeopardizing 

the financing of the regular functions 

or services of therespective State 

agency. 

"Where a State employee has received benefits through payments by 

the State pursuant to this Section, 

and also has received other liability 

benefits as a consequence of the same 

injury, such employee shall pay to the 

State Treasury all sums received or 

paid in his behalf as damages, for medical and hospital bills, up to but not 

in excess of the amounts of any such 

payments made by the State. No agency 

of this State who makes payments pursuant to this Section shall present 

the name of any employee who has failed 

to comply with this paragraph to the 

State Comptroller for the issuance of 

any Treasury warrant payable to such 

an employee. 

"The provisions of this Section 

shall not apply to any agency of the 

State authorized to provide workmen's 

compensation insurance for its employees." 

The pre-existing statute authorizing the legislature to make an appropriation of this nature is Article 

6822a, V.C.S., which provides as follows: 

"Section 1. The Legislature is 

hereby authorized to appropriate 

public funds for the purpose of paying 

for drugs and medical, hospital, laboratory. and funeral expenses of state 

employees injured or killed while engaged 

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Dr. Kinross-Wright, Page 4 (M-431) 

in performance of a necessary government function assigned to the employee, 

or where the duties of such employee 

require the employee to expose himself 

to unavoidable dangers peculiar to the 

performance of a necessary governmental 

function. 

"Sec. 2. Agencies of the state 

are hereby authorized to expend appropriated funds for the purpose of paying 

for drugs and medical, hospital, labcratory, and funeral expenses to those 

state employees under their jurisdiction 

and control only when such employees 

are engaged in the activi>ies described 

in Section 1 of this Act, and only to 

the extent authorized by appropriations 

made by the Legislature. 

"Sec. 3. The payment of the 

expenses provided for in Section 1 of 

this Act is authorized to be made in 

addition to other prerequisites of 

employment now authorized by law. 

Acts 1959, 56th Leg., p. 838, ch. 377." 

The Legislature has authorized the Richmond 

State School funds for, inter u, "other operating 

expense." But before a State employee can be held to 

be qualified to receive the benefits of Section 8, Article V of House Bill No. 5, he must meet the tests established by the Legislature in Section 8, viz. be 

"injured while performing the duties of any hazardous 

position to which he is assigned by his State employment." (Emphasis supplied.) While a definition is 

furnished by the statute for the term "hazardous position," 

none is furnished for the term "injured." 

The distinction between a "disease" and an 

"injury" has been the subject of much litigation under 

the Workmen's Compensation Act of this State. Since 

the Legislature has excluded from the operation of said 

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Dr. Kinross-Wright, page 5 (M-431) 

section those state agencies authorized to provide 

Workmen's Compensation insurance for their employees, 

we believe the legislature intended that the term 

"injured" be used and defined in the same sense that 

it is used in the Workmen's Compensation Act. 

Article 8306, Section 20, Vernon's Civil 

Statutes, provides as follows: 

"Wherever the terms 'injury' or 

'personal injury' are used in the 

Workmen's Compensation Law of this 

state, such terms shall be construed to mean damage or harm to 

the physical structure of the body 

and such diseases or infection as 

naturally result therefrom. . .' 

The courts give liberal construction to the 

Workmen's Compensation Act, and if a reasonable doubt 

exists as to the right of an employee to compensation, 

it should be resolved in favbr of such right. Bailey 

v. American General Insurance Company, 154 Tex. 430, 

279 S.W.2d 315 (1955). In the Bailey case, supra, the 

Supreme Court defined the terms "physical structure of 

the body" and "harm" as used in Article 8306, Section 

20, as follows: 

"The phrase 'physical structure of 

the body' as it is used in the statute, must refer to the entire body, 

not simply to the skeletal structure 

or to the circulatory system or to 

the digestive system. It refers to 

the whole, to the complex of perfectly integrated and interdependent 

bones, tissues and organs which 

function together. . .the structure 

should be considered that of a 

living person not as a static, inanimate thing. 

"The ordinary as well as legal 

connotation of 'harm' is that it is 

of broader import than 'damage.' 

-2149- 
. 

Dr. Kinross-Wright, page 6 (M-431) 

Damage embraces direct physical 

injury to a cell, tissue or organ 

system: 'harm' to the physical 

structure of the body embraces also 

imoairment of use or control of 

physical structures, directly caused 

by the accident." (Emphasis supplied.) 

The distinction between an accidental injury 

and occupational disease is that an accidental injury can 

be traced to a reasonably definite time, place and cause, 

whereas an occupational disease is of slow and gradual 

development, and the time, place and cause of it are not 

susceptible of definite ascertainment. Barron vs. Texas 

Employers' Ins. Ass'n., 36 S.W.Zd 464 (Tex.Comm.App. 1931). 

See also Texas Emplovers' Ins. Ass'n. v. McKay, 146 Tex. 

569, 210 S.W.2d 147 (1948): Texas Employers' Insurance 

Association v. Bradford, 381 S.W.2d 234 (Tex.Civ.App. 1964, 

error ref. n.r.e.): Solomon v. Massachusetts Bondinq and 

Insurance Co., 347 S.W.2d 17 (Tex.Civ.App. 1961, error 

ref.). 

In the case of Barron v. Texas Employers' Ins. 

Ass'n., supra, the employee contracted tuberculosis as 

the result of inhaling gas from an oil well. He was able 

to point with reasonable certainty to the time, place and 

cause of the tuberculosis. The court held that the employee had suffered an "injury" within the meaning of the 

word as used in the Workmen's Compensation Act, in the 

following language: 

"A disease contracted as the 

direct result of unusual conditions connected with the work, 

and not as an ordinary or reasonably to be anticipated result of 

pursuing the same should be considered as an accidental injury." 

From the cases cited we conclude that the State 

employee in question was "injured" as that term is used 

in the statute in question. 

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. . . 

Dr. Kinross-Wright, page 7 (M-431) 

Whether the State employee was injured while 

performing the duties of a "hazardous position" is controlled by the definition supplied in Section 8, Article 

V, House Bill No. 5, quoted as follows: 

"For the purposes of this Section, 

'hazardous position' shall mean one 

for which the regular and normal 

duties inherently involve the risk 

or peril of bodily harm." 

The patients of Richmond State School are 

impaired mentally, and often physically, or they would 

not qualify for admission to the school. In our opinion this State employee, required in the performance 

of her normal duty to expose herself at close quarters 

to the infirmities, mental and physical, of these 

patients, was in a position where her duties inherently 

involved the risk or peril of bodily injury or harm, and 

was occupying a "hazardous position" as defined by the 

statute. That the injury suffered, tuberculosis, was 

not one of the particular perils expected does not in 

our opinion bar this employee's qualification under the 

definition contained in Section 8. 

If in fact the employee's tuberculosis was, 

in reasonable medical probability, caused by her exposure 

to the tubercular patient on the occasion in question, 

we conclude that the State employee in question does 

qualify for the benefits authorized by Section 8 of Article V, House Bill No. 5, 60th Legislature, First Called 

Session, 1968. 

SUMMARY 

An employee of Richmond State School 

contracting tuberculosis as the result of 

conducting a psychological examination of 

a tubercular patient may have necessary drug, 

medical, hospital or laboratory expenses 

paid from the appropriations made to Richmond 

- 2151- 
. 

Dr. Kinross-Wright, page 8 (M-431) 

State School for "other operating expense" 

pursuant to Article 6822a, Vernon's Civil 

Statutes, and Section 8, of Article V, 

House Bill No. 5, Acts of the 60th Legislature, First Called Session, 1968. 

Prepared by Tom Neely 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

George Kelton, Co-Chairman 

Terry Goodman 

Robert C. Crouch 

Ralph Rash 

Malcolm Quick 

Hawthorne Phillips 

Executive Assistant 

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