In an old Texas workers' comp claim, who pays for a medical exam the board orders, the state or the insurance company?

Plain-English summary

Texas overhauled its workers' compensation system in 1989, but the old law did not vanish overnight. For workers hurt before January 1, 1991, the repealed provisions kept governing how their claims were handled. The Executive Director of the Texas Workers' Compensation Commission ran into a gap in that older law and asked the Attorney General to fill it: when the agency orders an injured worker to undergo a medical examination, who foots the bill, the state or the insurance carrier?

The old provision, former article 8307, section 4(a), let the Industrial Accident Board make a claimant submit to a physical exam, but it never said who pays for it. The Attorney General noticed that the surrounding parts of the same statute were not silent about costs. When the insurance carrier (the statute called it the "association") asked for its own exam, the law said the association had to pay; and when a claimant picked a doctor to take part in that exam, the association paid that doctor too. There was even a provision making a claimant who appealed pay for preparing the record. The pattern suggested that when the legislature wanted someone other than the agency to pay, it said so plainly, and its silence about the agency's own exams pointed the other way.

On top of that, the board and the commission had for years read section 4(a) as making the agency itself pay for the exams it ordered. Texas courts give that kind of long-standing agency interpretation considerable weight. So the Attorney General concluded the agency's reading was reasonable and the commission could keep paying those costs itself for the older claims. The opinion pointed out that the new 1989 Act flipped this: under its counterpart provision, the insurance carrier pays for a commission-ordered exam.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The statutes at issue were already repealed when the opinion issued and applied only to pre-1991 injury claims; the workers' compensation law has been recodified into the Labor Code since then, so confirm current law before relying on anything described here.

Background and statutory framework

The request came from the Executive Director of the Texas Workers' Compensation Commission and concerned former V.T.C.S. article 8307, section 4(a). That section was repealed by Acts 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(10)-(12) when the 1989 Texas Workers' Compensation Act was adopted, but section 17.18 of the same act continued the repealed law in effect for injuries sustained before January 1, 1991, the new act's effective date. So the old provisions still governed the commission's processing of those earlier claims.

Former section 4(a) provided in pertinent part that the Board could require any employee claiming injury to submit to examination, before the Board or someone acting under its authority, at a reasonable time and place within the state and as often as reasonably ordered, by a physician or chiropractor authorized to practice in Texas. The provision did not state who bears the cost of the examination. By contrast, the counterpart in the new 1989 Act, V.T.C.S. article 8308-4.16, provides that the cost of an examination ordered by the commission is to be paid by the insurance carrier.

The Attorney General looked to the rest of section 4 for context. Subsection (b) let the insurance carrier (the "association") require a claimant to be examined by physicians or chiropractors of the association's choosing but specified that the association "shall pay for such examination and the reasonable expense incident to the employee in submitting thereto." Where a claimant selected his own physician or chiropractor to participate in an examination the association requested, the association had to pay that provider's fees as determined by the board. And subsection (e) let the board require a claimant who appealed a board decision to pay the cost of preparing the board records for submission to the reviewing court (all repealed in 1989). The opinion read this to mean that when the legislature intended someone other than the state agency to bear costs, it said so expressly.

The commission and its predecessor board had long construed section 4(a) to leave the cost of agency-ordered examinations to the state agency. Citing the rule that a long-standing administrative construction is given considerable deference by a court (Calvert v. Kadane, 427 S.W.2d 605 (Tex. 1968)), the Attorney General concluded that the agency's construction was reasonable and that the commission could continue to implement it and pay the cost of board- or commission-ordered claimant examinations itself.

Common questions

For an old Texas workers' comp claim, who paid for an exam the board ordered?
The opinion concluded the state agency (the Industrial Accident Board or its successor commission) paid for examinations it ordered under former section 4(a), because the agency had long read the silent statute that way and the reading was reasonable.

Why didn't the insurance carrier have to pay under the old law?
The opinion reasoned that the old statute spelled out cost responsibility in other places (for example, making the carrier pay for exams the carrier requested) but said nothing about agency-ordered exams, which suggested the legislature did not intend to shift that cost to the carrier. The agency's contrary practice of paying filled the gap.

Did the 1989 reforms change this?
Yes. The opinion noted that the newer 1989 Workers' Compensation Act, in V.T.C.S. article 8308-4.16, requires the insurance carrier to pay for a commission-ordered examination. The old rule described here applied only to injuries before January 1, 1991, that were still governed by the repealed law.

Citations

• V.T.C.S. art. 8307, § 4(a) (board may require claimant examination; silent on cost), § 4(b) (association-requested examinations; association pays), § 4(e) (appealing claimant may be required to pay record-preparation cost) (repealed 1989)
• V.T.C.S. art. 8308-4.16 (1989 Act counterpart; insurance carrier pays for commission-ordered examination)
• Acts 1989, 71st Leg., 2d C.S., ch. 1, § 16.01 (repealer), § 17.18 (repealed law continued for injuries before January 1, 1991)
• Calvert v. Kadane, 427 S.W.2d 605 (Tex. 1968)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0189
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0189.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; garbled case names were verified against the official reporters. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

December 15, 1992

Mr. Todd K. Brown
Executive Director
Texas Workers' Compensation Commission
Southfield Bldg., 4000 South IH-35
Austin, Texas 78704

Opinion No. DM-189

Re: Whether the former workers' compensation laws authorize the Industrial Accident Board or its successor to pay for the cost of agency-ordered medical examinations of claimants

Dear Mr. Brown:

You ask whether under former V.T.C.S. article 8307, section 4(a), repealed by Acts 1989, 71st Leg., 2d C.S., ch. 1, § 16.01(10)-(12), a provision of the former workers' compensation laws, the cost of a physical examination of a workers' compensation claimant 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 was repealed with the adoption of the 1989 Texas Workers' Compensation Act, the repealed provisions still govern the commission's processing of claims arising from injuries incurred prior to January 1, 1991, the effective date of the new act. See Acts 1989, 71st Leg., 2d C.S., ch. 1, §§ 16.01 (repealer), 17.18 (repealed law continued in effect for injuries sustained prior to January 1, 1991).

The physical examination 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 often 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 that the cost of an examination ordered by the successor of the Industrial Accident Board under the law, the Workers' Compensation Commission, is to be paid by the insurance carrier.

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 responsibility of paying the costs of the agency-ordered examinations 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 also V.T.C.S. art. 8307, § 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 fees, as determined by board), (e) (provision where claimant appeals board decision, board may require claimant to pay cost of preparing board records for submission to reviewing court) (repealed 1989).

We believe that the board's and commission's long standing 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., Calvert v. Kadane, 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 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.

Very truly yours,

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by William M. Walker
Assistant Attorney General