July 9, 1969

John Kinross-Wright, M. D. Opinion No. M- 431 Commissioner, Department of Mental Health andMental Re: Whether a psychologist Retardation employed by theRichmond Box S,Capitol Station State School who conAustin, Texas 78711 tracted tuberculosis from a patient is entitled to thebenefits provided byArticle 6822a, V.C.S. Dear Dr. Kinross-Wright:

Your recent request for an opinion isquoted as follows:
"Anemployee at the Richmond State

School, under control and management of this Department, has apparently contracted tuberculosis from apatient to which she administered apsychological examination, which examination was given in an enclosed area and lasted approximately twohours. 

### X-raysmade later confirmed the person examined tobe infectedwith tuberculosis. The employee consulted awell-known chest specialist inHouston andmedication to control the tuberculosis has been initiated and will have tobe continued for at least oneyear.
"Your opinion is respectfully requested as towhether ornot those appropriations made to the Richmond State School described in Section 8 of Article V ofH. B.No. 5.Acts 60th

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Legislature, First Called Session, 1968, may be used to pay the necessary drugs, medical and laboratory expenses incurred by this employee incombating the illness shehas contracted."
We assume for the purposes of this opinion that a request for payment of the expenses described has been orwill be made to theGovernor andhis approval obtained as required by Section 8 ofArticle V ofH. B.No. 5,Acts of the 60th Legislature, First Called Session, 1968 (GeneralAppropriations Bill). This section of the act provides:
~"Sec.8. PAYMENTS FOR INJURIES.

Pursuant toChapter 377,Acts, 1959, Fifty-sixth Legislature, Regular Session (Codified asArticle 6822a), appropriations made in thisAct for consumable supplies andmaterials, current and recurring operating expense, general operating expenses, other operating expenses, orgeneral institutional expense, may alsobe expended for paying necessary drug, medical, hospital and laboratory expenses for the care and treatment of any State employee injured while performing the duties ofanyhazardous position towhich he is assigned by his State employment. For the purposes of this Section, 'hazardous position' shall mean one forwhich the regular and normal duties inherently involve the risk or peril ofbodily injury orharm.
"The expenditure of any appropriation for the purposes authorized by this Section shall have the approval of the Governor, shall be made only to thevendors ofnecessary drugs, medical, hospital

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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 inhis behalf as damages, formedical and hospital bills, up tobut not in excess of theamounts of any such payments made by the State. No agency of this State who makes payments pursuant to this Section shall present the name ofany employee who has failed tocomply 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 toprovide workmen's compensation insurance for its employees."
The pre-existing statute authorizing the legislature tomake an appropriation of this nature isArticle 6822a, V.C.S., which provides as follows:

"Section 1. The Legislature is hereby authorized toappropriate public funds for the purpose of paying fordrugs and medical, hospital, laboratory. and funeral expenses of state employees injured orkilled while engaged

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in performance ofanecessary government function assigned to the employee, 

### orwhere theduties of such employee require the employee to expose himself tounavoidable dangers peculiar to the performance of anecessary governmental function.
"Sec. 2. Agencies of the state arehereby authorized to expend appropriated funds for the purpose ofpaying for drugs andmedical, hospital, labcratory, and funeral expenses to those state employees under their jurisdiction and control onlywhen such employees are engaged in the activi>iesdescribed in Section 1 of thisAct, 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 thisAct isauthorized tobe made in addition to other prerequisites of employment now authorized by law. Acts 1959, 56th Leg., p. 838, ch. 377."
The Legislature has authorized theRichmond State School funds for, interu, "other operating expense." But before a State employee can be held to be qualified to receive thebenefits of Section 8,Article V ofHouse Bill No. 5, he must meet the tests established by the Legislature in Section 8,viz. be "injured while performing theduties of anyhazardous position towhich he is assigned by his State employment." (Emphasis supplied.) While adefinition 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 ofmuch litigation under theWorkmen's Compensation Act of this State. Since the Legislature has excluded from the operation of said

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section those state agencies authorized toprovide 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 isused in theWorkmen'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 tomean damage orharm to the physical structure of thebody 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 thebody" and "harm"as used inArticle 8306, Section 20, as follows:

"Thephrase 'physical structure of thebody' as it isused in the statute, must refer to the entire body, not simply to the skeletal structure or to the circulatory system or to thedigestive system. It refers to thewhole, to the complex of perfectly integrated and interdependent bones, tissues and organs which function together.
. .the structure should be considered that ofa living person not as a static, inanimate thing.
"The ordinary aswell as legal connotation of 'harm' is that it is ofbroader import than 'damage.'

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

Damage embraces direct physical injury toa cell, tissue or organ system: 'harm' to the physical structure of thebody embraces also imoairment ofuse 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 ofdefinite 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 oilwell. Hewas able to pointwith reasonable certainty to the time, place and cause of the tuberculosis. The court held that the employee had suffered an "injury"within themeaning of the word asused in theWorkmen's Compensation Act, in the following language:

"Adisease contracted as the direct result ofunusual conditions connected with thework, and not as an ordinary or reasonably tobe anticipated result of pursuing the same should be considered as an accidental injury."
From the cases cited we conclude that the State employee inquestion was "injured" as that term isused in the statute inquestion.

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

Whether the State employee was injured while performing the duties ofa "hazardous position" iscontrolled by thedefinition supplied in Section 8,Article V, House Bill No. 5,quoted as follows:

"For the purposes of this Section, 'hazardous position' shall mean one forwhich the regular and normal duties inherently involve the risk or peril ofbodily harm."
The patients ofRichmond State School are impaired mentally, and often physically, or theywould not qualify for admission to the school. In our opinion this State employee, required in the performance ofher 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 orperil ofbodily injury orharm, 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 inquestion, we conclude that the State employee inquestion does qualify for thebenefits authorized by Section 8 ofArticle V, House Bill No. 5, 60th Legislature, First Called Session, 1968.

SUMMARY

An employee ofRichmond 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 toRichmond

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

State School for "other operating expense" pursuant toArticle 6822a, Vernon's Civil Statutes, and Section 8, ofArticle V, House BillNo. 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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