Bill Text: TX HB790 | 2023-2024 | 88th Legislature | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Relating to the processes for and the adjudication and payment of certain claims under the workers' compensation system.
Spectrum: Moderate Partisan Bill (Republican 6-1)
Status: (Engrossed - Dead) 2023-04-26 - Referred to Business & Commerce [HB790 Detail]
Download: Texas-2023-HB790-Introduced.html
Bill Title: Relating to the processes for and the adjudication and payment of certain claims under the workers' compensation system.
Spectrum: Moderate Partisan Bill (Republican 6-1)
Status: (Engrossed - Dead) 2023-04-26 - Referred to Business & Commerce [HB790 Detail]
Download: Texas-2023-HB790-Introduced.html
By: Patterson | H.B. No. 790 |
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relating to certain claims for benefits, compensation, or | ||
assistance by certain public safety employees and survivors of | ||
certain public safety employees. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Title 5, Subtitle A, Section 408.0041, Labor | ||
Code, is amended by adding subsection (m) to read as follows: | ||
Sec. 408.0041. DESIGNATED DOCTOR EXAMINATION. (a) At the | ||
request of an insurance carrier or an employee, or on the | ||
commissioner's own order, the commissioner may order a medical | ||
examination to resolve any question about: | ||
(1) the impairment caused by the compensable injury; | ||
(2) the attainment of maximum medical improvement; | ||
(3) the extent of the employee's compensable injury; | ||
(4) whether the injured employee's disability is a | ||
direct result of the work-related injury; | ||
(5) the ability of the employee to return to work; or | ||
(6) issues similar to those described by Subdivisions | ||
(1)-(5). | ||
(b) Except as provided by Section 408.1225(f), a medical | ||
examination requested under Subsection (a) shall be performed by | ||
the next available doctor on the division's list of certified | ||
designated doctors whose credentials are appropriate for the area | ||
of the body affected by the injury and the injured employee's | ||
diagnosis as determined by commissioner rule. The division shall | ||
assign a designated doctor not later than the 10th day after the | ||
date on which the request under Subsection (a) is approved, and the | ||
examination must be conducted not later than the 21st day after the | ||
date on which the commissioner issues the order under Subsection | ||
(a). An examination under this section may not be conducted more | ||
frequently than every 60 days, unless good cause for more frequent | ||
examinations exists, as defined by commissioner rules. | ||
(b-1) A designated doctor, other than a chiropractor, is | ||
subject to Section 408.0043. A designated doctor who is a | ||
chiropractor is subject to Section 408.0045. To the extent of a | ||
conflict between this section and Section 408.0043 or 408.0045, | ||
this section controls. | ||
(c) The treating doctor and the insurance carrier are both | ||
responsible for sending to the designated doctor all of the injured | ||
employee's medical records relating to the issue to be evaluated by | ||
the designated doctor that are in their possession. The treating | ||
doctor and insurance carrier may send the records without a signed | ||
release from the employee. The designated doctor is authorized to | ||
receive the employee's confidential medical records to assist in | ||
the resolution of disputes. The treating doctor and insurance | ||
carrier may also send the designated doctor an analysis of the | ||
injured employee's medical condition, functional abilities, and | ||
return-to-work opportunities. | ||
(d) To avoid undue influence on a person selected as a | ||
designated doctor under this section, and except as provided by | ||
Subsection (c), only the injured employee or an appropriate member | ||
of the division's staff may communicate with the designated doctor | ||
about the case regarding the injured employee's medical condition | ||
or history before the examination of the injured employee by the | ||
designated doctor. After that examination is completed, | ||
communication with the designated doctor regarding the injured | ||
employee's medical condition or history may be made only through | ||
appropriate division staff members. The designated doctor may | ||
initiate communication with any doctor or health care provider who | ||
has previously treated or examined the injured employee for the | ||
work-related injury or with peer reviewers identified by the | ||
insurance carrier. | ||
(e) The designated doctor shall report to the division. The | ||
report of the designated doctor has presumptive weight unless the | ||
preponderance of the evidence is to the contrary. An employer may | ||
make a bona fide offer of employment subject to Sections 408.103(e) | ||
and 408.144(c) based on the designated doctor's report. | ||
(f) Unless otherwise ordered by the commissioner, the | ||
insurance carrier shall pay benefits based on the opinion of the | ||
designated doctor during the pendency of any dispute. If an | ||
insurance carrier is not satisfied with the opinion rendered by a | ||
designated doctor under this section, the insurance carrier may | ||
request the commissioner to order an employee to attend an | ||
examination by a doctor selected by the insurance carrier. | ||
(f-1) The subsequent injury fund shall reimburse an | ||
insurance carrier for any overpayment of benefits made by the | ||
insurance carrier under Subsection (f) based on an opinion rendered | ||
by a designated doctor if that opinion is reversed or modified by a | ||
final arbitration award or a final order or decision of the | ||
commissioner or a court. The commissioner shall adopt rules to | ||
provide for a periodic reimbursement schedule, providing | ||
reimbursement at least annually. | ||
(f-2) An employee required to be examined by a designated | ||
doctor may request a medical examination to determine maximum | ||
medical improvement and the employee's impairment rating from the | ||
treating doctor or from another doctor to whom the employee is | ||
referred by the treating doctor if: | ||
(1) the designated doctor's opinion is the employee's | ||
first evaluation of maximum medical improvement and impairment | ||
rating; and | ||
(2) the employee is not satisfied with the designated | ||
doctor's opinion. | ||
(f-3) The commissioner shall provide the insurance carrier | ||
and the employee with reasonable time to obtain and present the | ||
opinion of a doctor selected under Subsection (f) or (f-2) before | ||
the commissioner makes a decision on the merits of the issue. | ||
(f-4) The commissioner by rule shall adopt guidelines | ||
prescribing the circumstances under which an examination by the | ||
employee's treating doctor or another doctor to whom the employee | ||
is referred by the treating doctor to determine any issue under | ||
Subsection (a), other than an examination under Subsection (f-2), | ||
may be appropriate. | ||
(g) Except as otherwise provided by this subsection, an | ||
injured employee is entitled to have a doctor of the employee's | ||
choice present at an examination requested by an insurance carrier | ||
under Subsection (f). The insurance carrier shall pay a fee set by | ||
the commissioner to the doctor selected by the employee. If the | ||
injured employee is subject to a workers' compensation health care | ||
network under Chapter 1305, Insurance Code, the doctor must be the | ||
employee's treating doctor. | ||
(h) The insurance carrier shall pay for: | ||
(1) an examination required under Subsection (a), (f), | ||
or (f-2), unless otherwise prohibited by this subtitle or by an | ||
order or rule of the commissioner; and | ||
(2) the reasonable expenses incident to the employee | ||
in submitting to the examination. | ||
(i) An employee who, without good cause as determined by the | ||
commissioner, fails or refuses to appear at the time scheduled for | ||
an examination under Subsection (a) or (f) commits an | ||
administrative violation. An injured employee may not be fined | ||
more than $10,000 for a violation of this subsection. | ||
(j) An employee is not entitled to temporary income | ||
benefits, and an insurance carrier is authorized to suspend the | ||
payment of temporary income benefits, during and for a period in | ||
which the employee fails to submit to an examination required by | ||
Subsection (a) or (f) unless the commissioner determines that the | ||
employee had good cause for the failure to submit to the | ||
examination. The commissioner may order temporary income benefits | ||
to be paid for the period for which the commissioner determined that | ||
the employee had good cause. The commissioner by rule shall ensure | ||
that: | ||
(1) an employee receives reasonable notice of an | ||
examination and the insurance carrier's basis for suspension; and | ||
(2) the employee is provided a reasonable opportunity | ||
to reschedule an examination for good cause. | ||
(k) If the report of a designated doctor indicates that an | ||
employee has reached maximum medical improvement or is otherwise | ||
able to return to work immediately, the insurance carrier may | ||
suspend or reduce the payment of temporary income benefits | ||
immediately. | ||
(l) A person who makes a frivolous request for a medical | ||
examination under Subsection (a) or (f), as determined by the | ||
commissioner, commits an administrative violation. | ||
(m) The first request of a Designated Doctor's examination | ||
by the carrier, injured employee or the Division of Workers' | ||
Compensation must include a request to the Designated Doctor to | ||
provide an opinion of the extent of the compensable injury. | ||
SECTION 2. Title 5, Subtitle A, Section 409.021, Labor | ||
Code, has been amended by amending subsection (a) (2) (B) and adding | ||
subsections (a) (2) (B) and (C) and subsection (a-4) to read as | ||
follows: | ||
Sec. 409.021. INITIATION OF BENEFITS; INSURANCE CARRIER'S | ||
REFUSAL; ADMINISTRATIVE VIOLATION. (a) An insurance carrier shall | ||
initiate compensation under this subtitle promptly. Not later than | ||
the 15th day after the date on which an insurance carrier receives | ||
written notice of an injury, the insurance carrier shall: | ||
(1) begin the payment of benefits as required by this | ||
subtitle; or | ||
(2) notify the division and the employee in writing of | ||
its refusal to pay and advise the employee of: | ||
(A) the right to request a benefit review | ||
conference; and | ||
(B) the means to obtain additional information | ||
from the division |
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(C) the specific reasons why the carrier is | ||
contesting the claim, including any disputes in the cause of the | ||
injury, the extent of the injury or the treatment of the injury. | ||
(a-1) An insurance carrier that fails to comply with | ||
Subsection (a) does not waive the carrier's right to contest the | ||
compensability of the injury as provided by Subsection (c) but | ||
commits an administrative violation subject to Subsection (e). | ||
(a-2) An insurance carrier is not required to comply with | ||
Subsection (a) if the insurance carrier has accepted the claim as a | ||
compensable injury and income or death benefits have not yet | ||
accrued but will be paid by the insurance carrier when the benefits | ||
accrue and are due. | ||
(a-3) An insurance carrier is not required to comply with | ||
Subsection (a) if the claim results from an employee's disability | ||
or death for which a presumption is claimed to be applicable under | ||
Subchapter B, Chapter 607, Government Code, and, not later than the | ||
15th day after the date on which the insurance carrier received | ||
written notice of the injury, the insurance carrier has provided | ||
the employee and the division with a notice that describes all steps | ||
taken by the insurance carrier to investigate the injury before the | ||
notice was given and the evidence the carrier reasonably believes | ||
is necessary to complete its investigation of the compensability of | ||
the injury. The commissioner shall adopt rules as necessary to | ||
implement this subsection. | ||
(a-4) Notwithstanding any other provision of this code, an | ||
insurance carrier who fails to comply with subsection (a) within 60 | ||
days, when the injured employee is a person described under Section | ||
607.051 of the Texas Government Code, waives its right to contest or | ||
deny the extent of the specific injury claimed by the injured worker | ||
or reasonably reflected in a review of the injured workers medical | ||
records. | ||
(b) An insurance carrier shall notify the division in | ||
writing of the initiation of income or death benefit payments in the | ||
manner prescribed by commissioner rules. | ||
(c) If an insurance carrier does not contest the | ||
compensability of an injury on or before the 60th day after the date | ||
on which the insurance carrier is notified of the injury, the | ||
insurance carrier waives its right to contest compensability. The | ||
initiation of payments by an insurance carrier does not affect the | ||
right of the insurance carrier to continue to investigate or deny | ||
the compensability of an injury during the 60-day period. | ||
(d) If a workers' compensation insurance carrier does not | ||
contest or deny the extent of a compensable injury in writing on or | ||
before the 60th day on which the workers' compensation insurance | ||
carrier had reasonable notice of the specific claimed injury, the | ||
workers' compensation insurance carriers waives its right to | ||
contest or deny the extend of the specific injury claimed by the | ||
injured worker or reasonably reflected in a review of the injured | ||
worker's medical records. | ||
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compensability of an injury if there is a finding of evidence that | ||
could not reasonably have been discovered earlier. | ||
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violation if the insurance carrier does not initiate payments or | ||
file a notice of refusal as required by this section. | ||
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certified self-insurer occurs only on written notice to the | ||
qualified claims servicing contractor designated by the certified | ||
self-insurer under Section 407.061(c). | ||
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(1) a certified self-insurer receives notice on the | ||
date the qualified claims servicing contractor designated by the | ||
certified self-insurer under Section 407.061(c) receives notice; | ||
and | ||
(2) a political subdivision that self-insures under | ||
Section 504.011, either individually or through an interlocal | ||
agreement with other political subdivisions, receives notice on the | ||
date the intergovernmental risk pool or other entity responsible | ||
for administering the claim for the political subdivision receives | ||
notice. | ||
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point of contact in the carrier's office for an injured employee for | ||
whom the carrier receives a notice of injury. | ||
(i) The division shall adopt the rules necessary to comply | ||
with these changes. | ||
SECTION 3. Title 5, Subtitle A, Chapter 417, Labor Code, is | ||
amended by adding section 417.005 to read as follows: | ||
Sec. 417.005. WORKERS' COMPENSATION INSURANCE CARRIER | ||
LIABILITY TO INJURED PARTY. If a workers' compensation insurance | ||
carrier denies a claim of medical benefits on or before the 60th day | ||
on which the workers' compensation insurance carrier had reasonable | ||
notice of the specific claimed injury and upon final determination | ||
of an administrative law judge that the claimed injury is | ||
compensable, the workers' compensation insurance carrier is liable | ||
to reimburse the injured worker for any and all reasonable and | ||
necessary medical expenses incurred by the injured worker for the | ||
specific claimed injury. | ||
SECTION 4. Title 5, Subtitle A, Chapter 410.156, Labor | ||
Code, is amended by adding subsection (c), (d) and (e) to read as | ||
follows: | ||
Sec. 410.156. ATTENDANCE REQUIRED; ADMINISTRATIVE | ||
VIOLATION. (a) Each party shall attend a contested case hearing. | ||
(b) A party commits an administrative violation if the | ||
party, without good cause as determined by the administrative law | ||
judge, does not attend a contested case hearing. | ||
(c) If good cause exists, a party or witness may attend a | ||
contested case hearing telephonically or by videoconference. | ||
(d) For the purpose of this subsection, the administrative | ||
law judge shall determine if good cause exists for a party or | ||
witness to attend the contested case hearing telephonically or by | ||
videoconference. | ||
(e) An attorney representing a party in a contested case | ||
hearing, shall be permitted to represent a party to the case | ||
telephonically or by videoconference. | ||
SECTION 5. The changes in law made by this Act apply to a | ||
claim for benefits, compensation, or assistance brought on or after | ||
the effective date of this Act. A claim for benefits, compensation, | ||
or assistance brought before that date is covered by the law in | ||
effect on the date the claim was made, and that law is continued in | ||
effect for that purpose. | ||
SECTION 6. This Act takes effect immediately if it receives | ||
a vote of two-thirds of all the members elected to each house, as | ||
provided by Section 39, Article III, Texas Constitution. If this | ||
Act does not receive the vote necessary for immediate effect, this | ||
Act takes effect September 1, 2023. |