LABOR CODE CHAPTER 408. WORKERS' COMPENSATION BENEFITS
LABOR CODE
CHAPTER 408. WORKERS' COMPENSATION BENEFITS
SUBCHAPTER A. GENERAL PROVISIONS
§ 408.001. EXCLUSIVE REMEDY; EXEMPLARY DAMAGES.
(a) Recovery of workers' compensation benefits is the exclusive
remedy of an employee covered by workers' compensation insurance
coverage or a legal beneficiary against the employer or an agent or
employee of the employer for the death of or a work-related injury
sustained by the employee.
(b) This section does not prohibit the recovery of exemplary
damages by the surviving spouse or heirs of the body of a deceased
employee whose death was caused by an intentional act or omission of
the employer or by the employer's gross negligence.
(c) In this section, "gross negligence" has the meaning
assigned by Section 41.001, Civil Practice and Remedies Code.
(d) A determination under Section 406.032, 409.002, or
409.004 that a work-related injury is noncompensable does not
adversely affect the exclusive remedy provisions under Subsection
(a).
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.077, eff. September 1,
2005.
§ 408.002. SURVIVAL OF CAUSE OF ACTION. A right of
action survives in a case based on a compensable injury that results
in the employee's death.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1991.
§ 408.003. REIMBURSABLE EMPLOYER PAYMENTS; SALARY
CONTINUATION; OFFSET AGAINST INCOME BENEFITS; LIMITS. (a) After
an injury, an employer may:
(1) initiate benefit payments, including medical
benefits; or
(2) on the written request or agreement of the
employee, supplement income benefits paid by the insurance carrier
by an amount that does not exceed the amount computed by subtracting
the amount of the income benefit payments from the employee's net
preinjury wages.
(b) If an injury is found to be compensable and an insurance
carrier initiates compensation, the insurance carrier shall
reimburse the employer for the amount of benefits paid by the
employer to which the employee was entitled under this subtitle.
Payments that are not reimbursed or reimbursable under this section
may be reimbursed under Section 408.127.
(c) The employer shall notify the division and the insurance
carrier on forms prescribed by the commissioner of the initiation
of and amount of payments made under this section.
(d) Employer payments made under this section:
(1) may not be construed as an admission of
compensability; and
(2) do not affect the payment of benefits from another
source.
(e) If an employer does not notify the insurance carrier of
the injury in compliance with Section 409.005, the employer waives
the right to reimbursement under this section.
(f) Salary continuation payments made by an employer for an
employee's disability resulting from a compensable injury shall be
considered payment of income benefits for the purpose of
determining the accrual date of any subsequent income benefits
under this subtitle.
(g) If an employer is subject to a contractual obligation
with an employee or group of employees, such as a collective
bargaining agreement or a written agreement or policy, under which
the employer is required to make salary continuation payments, the
employer is not eligible for reimbursement under this section for
those payments.
(h) Payments made as salary continuation or salary
supplementation do not affect the exclusive remedy provisions of
Section 408.001.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 954, § 5, eff. Sept. 1, 1999; Acts
1999, 76th Leg., ch. 1003, § 1, 2, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.078, eff. September 1,
2005.
§ 408.004. REQUIRED MEDICAL EXAMINATIONS;
ADMINISTRATIVE VIOLATION. (a) The commissioner may require an
employee to submit to medical examinations to resolve any question
about the appropriateness of the health care received by the
employee.
(a-1) A doctor, other than a chiropractor, who performs a
required medical examination under this section is subject to
Section 408.0043. A chiropractor who performs a required medical
examination under this section is subject to Section 408.0045.
(b) The commissioner may require an employee to submit to a
medical examination at the request of the insurance carrier, but
only after the insurance carrier has attempted and failed to
receive the permission and concurrence of the employee for the
examination. Except as otherwise provided by this subsection, the
insurance carrier is entitled to the examination only once in a
180-day period. The commissioner may adopt rules that require an
employee to submit to not more than three medical examinations in a
180-day period under specified circumstances, including to
determine whether there has been a change in the employee's
condition and whether it is necessary to change the employee's
diagnosis. The commissioner by rule shall adopt a system for
monitoring requests made under this subsection by insurance
carriers. That system must ensure that good cause exists for any
additional medical examination allowed under this subsection that
is not requested by the employee. A subsequent examination must be
performed by the same doctor unless otherwise approved by the
commissioner.
(c) The insurance carrier shall pay for:
(1) an examination required under Subsection (a) or
(b); and
(2) the reasonable expenses incident to the employee
in submitting to the examination.
(d) An injured employee is entitled to have a doctor of the
employee's choice present at an examination required by the
division at the request of an insurance carrier. The insurance
carrier shall pay a fee set by the commissioner to the doctor
selected by the employee.
(e) 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 (b) commits an
administrative violation. The commissioner by rule shall ensure
that an employee receives reasonable notice of an examination and
that the employee is provided a reasonable opportunity to
reschedule an examination missed by the employee for good cause.
(f) This section does not apply to health care provided
through a workers' compensation health care network established
under Chapter 1305, Insurance Code.
(g) An insurance carrier who makes a frivolous request for a
medical examination under Subsection (b), as determined by the
commissioner, commits an administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1997, 75th Leg., ch. 1133, § 1, 2, eff. Sept. 1, 1999;
Acts 1999, 76th Leg., ch. 1426, § 8, eff. Jan. 1, 2000; Acts
2001, 77th Leg., ch. 1456, § 5.01, eff. June 17, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.079, eff. September 1,
2005.
Acts 2007, 80th Leg., R.S., Ch. 1218, § 2, eff. September
1, 2007.
§ 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) A medical examination requested under Subsection (a)
shall be performed by the next available doctor on the division's
list of designated doctors whose credentials are appropriate for
the issue in question and the injured employee's medical condition
as determined by commissioner rule. 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. 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.
(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.
(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) or
(f); 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.
Added by Acts 2001, 77th Leg., ch. 1456, § 5.02, eff. June 17,
2001.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.080, eff. September 1,
2005.
Acts 2007, 80th Leg., R.S., Ch. 1150, § 1, eff. September
1, 2007.
Acts 2007, 80th Leg., R.S., Ch. 1218, § 3, eff. September
1, 2007.
§ 408.0042. MEDICAL EXAMINATION BY TREATING DOCTOR TO
DEFINE COMPENSABLE INJURY. (a) The division shall require an
injured employee to submit to a single medical examination to
define the compensable injury on request by the insurance carrier.
(b) A medical examination under this section shall be
performed by the employee's treating doctor. The insurance
carrier shall pay the costs of the examination.
(c) After the medical examination is performed, the
treating doctor shall submit to the insurance carrier a report that
details all injuries and diagnoses related to the compensable
injury, on receipt of which the insurance carrier shall:
(1) accept all injuries and diagnoses as related to
the compensable injury; or
(2) dispute the determination of specific injuries and
diagnoses.
(d) Any treatment for an injury or diagnosis that is not
accepted by the insurance carrier under Subsection (c) as
compensable at the time of the medical examination under Subsection
(a) must be preauthorized before treatment is rendered. If the
insurance carrier denies preauthorization because the treatment is
for an injury or diagnosis unrelated to the compensable injury, the
injured employee or affected health care provider may file an
extent of injury dispute.
(e) Any treatment for an injury or diagnosis that is
accepted by the insurance carrier under Subsection (c) as
compensable at the time of the medical examination under Subsection
(a) may not be reviewed for compensability, but may be reviewed for
medical necessity.
(f) The commissioner may adopt rules relating to
requirements for a report under this section, including
requirements regarding the contents of a report.
(g) This section does not limit an injured employee or
insurance carrier's ability to request an examination under Section
408.004 or 408.0041, as provided by those sections.
Added by Acts 2005, 79th Leg., Ch. 265, § 3.0805, eff. September
1, 2005.
§ 408.0043. PROFESSIONAL SPECIALTY CERTIFICATION
REQUIRED FOR CERTAIN REVIEW. (a) This section applies to a
person, other than a chiropractor or a dentist, who performs health
care services under this title as:
(1) a doctor performing peer review;
(2) a doctor performing a utilization review of a
health care service provided to an injured employee, including a
retrospective review;
(3) a doctor performing an independent review of a
health care service provided to an injured employee, including a
retrospective review;
(4) a designated doctor;
(5) a doctor performing a required medical
examination; or
(6) a doctor serving as a member of the medical quality
review panel.
(b) A person described by Subsection (a) who reviews a
specific workers' compensation case must hold a professional
certification in a health care specialty appropriate to the type of
health care that the injured employee is receiving.
Added by Acts 2007, 80th Leg., R.S., Ch. 1218, § 1, eff.
September 1, 2007.
§ 408.0044. REVIEW OF DENTAL SERVICES. (a) This section
applies to a dentist who performs dental services under this title
as:
(1) a doctor performing peer review of dental
services;
(2) a doctor performing a utilization review of a
dental service provided to an injured employee, including a
retrospective review;
(3) a doctor performing an independent review of a
dental service provided to an injured employee, including a
retrospective review; or
(4) a doctor performing a required dental examination.
(b) A person described by Subsection (a) who reviews a
dental service provided in conjunction with a specific workers'
compensation case must be licensed to practice dentistry.
Added by Acts 2007, 80th Leg., R.S., Ch. 1218, § 1, eff.
September 1, 2007.
§ 408.0045. REVIEW OF CHIROPRACTIC SERVICES. (a) This
section applies to a chiropractor who performs
chiropractic services under this title as:
(1) a doctor performing peer review of chiropractic
services;
(2) a doctor performing a utilization review of a
chiropractic service provided to an injured employee, including a
retrospective review;
(3) a doctor performing an independent review of a
chiropractic service provided to an injured employee, including a
retrospective review;
(4) a designated doctor providing chiropractic
services;
(5) a doctor performing a required
medical examination; or
(6) a chiropractor serving as a member of the medical
quality review panel.
(b) A person described by Subsection (a) who reviews a
chiropractic service provided in conjunction with a specific
workers' compensation case must be licensed to engage in the
practice of chiropractic.
Added by Acts 2007, 80th Leg., R.S., Ch. 1218, § 1, eff.
September 1, 2007.
§ 408.0046. RULES. The commissioner may adopt rules as
necessary to determine which professional health practitioner
specialties are appropriate for treatment of certain compensable
injuries. The rules adopted under this section must require an
entity requesting a peer review to obtain and provide to the doctor
providing peer review services all relevant and updated medical
records.
Added by Acts 2007, 80th Leg., R.S., Ch. 1218, § 1, eff.
September 1, 2007.
§ 408.005. SETTLEMENTS AND AGREEMENTS. (a) A
settlement may not provide for payment of benefits in a lump sum
except as provided by Section 408.128.
(b) An employee's right to medical benefits as provided by
Section 408.021 may not be limited or terminated.
(c) A settlement or agreement resolving an issue of
impairment:
(1) may not be made before the employee reaches
maximum medical improvement; and
(2) must adopt an impairment rating using the
impairment rating guidelines described by Section 408.124.
(d) A settlement must be signed by the commissioner and all
parties to the dispute.
(e) The commissioner shall approve a settlement if the
commissioner is satisfied that:
(1) the settlement accurately reflects the agreement
between the parties;
(2) the settlement reflects adherence to all
appropriate provisions of law and the policies of the division; and
(3) under the law and facts, the settlement is in the
best interest of the claimant.
(f) A settlement that is not approved or rejected before the
16th day after the date the settlement is submitted to the
commissioner is considered to be approved by the commissioner on
that date.
(g) A settlement takes effect on the date it is approved by
the commissioner.
(h) A party to a settlement may withdraw acceptance of the
settlement at any time before its effective date.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.081, eff. September 1,
2005.
§ 408.006. MENTAL TRAUMA INJURIES. (a) It is the
express intent of the legislature that nothing in this subtitle
shall be construed to limit or expand recovery in cases of mental
trauma injuries.
(b) A mental or emotional injury that arises principally
from a legitimate personnel action, including a transfer,
promotion, demotion, or termination, is not a compensable injury
under this subtitle.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.007. DATE OF INJURY FOR OCCUPATIONAL DISEASE. For
purposes of this subtitle, the date of injury for an occupational
disease is the date on which the employee knew or should have known
that the disease may be related to the employment.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.008. COMPENSABILITY OF HEART ATTACKS. A heart
attack is a compensable injury under this subtitle only if:
(1) the attack can be identified as:
(A) occurring at a definite time and place; and
(B) caused by a specific event occurring in the
course and scope of the employee's employment;
(2) the preponderance of the medical evidence
regarding the attack indicates that the employee's work rather than
the natural progression of a preexisting heart condition or disease
was a substantial contributing factor of the attack; and
(3) the attack was not triggered solely by emotional
or mental stress factors, unless it was precipitated by a sudden
stimulus.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER B. MEDICAL BENEFITS
§ 408.021. ENTITLEMENT TO MEDICAL BENEFITS. (a) An
employee who sustains a compensable injury is entitled to all
health care reasonably required by the nature of the injury as and
when needed. The employee is specifically entitled to health care
that:
(1) cures or relieves the effects naturally resulting
from the compensable injury;
(2) promotes recovery; or
(3) enhances the ability of the employee to return to
or retain employment.
(b) Medical benefits are payable from the date of the
compensable injury.
(c) Except in an emergency, all health care must be approved
or recommended by the employee's treating doctor.
(d) An insurance carrier's liability for medical benefits
may not be limited or terminated by agreement or settlement.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.022. SELECTION OF DOCTOR. (a) Except in an
emergency, the division shall require an employee to receive
medical treatment from a doctor chosen from a list of doctors
approved by the commissioner. A doctor may perform only those
procedures that are within the scope of the practice for which the
doctor is licensed. The employee is entitled to the employee's
initial choice of a doctor from the division's list.
(b) If an employee is dissatisfied with the initial choice
of a doctor from the division's list, the employee may notify the
division and request authority to select an alternate doctor. The
notification must be in writing stating the reasons for the change,
except notification may be by telephone when a medical necessity
exists for immediate change.
(c) The commissioner shall prescribe criteria to be used by
the division in granting the employee authority to select an
alternate doctor. The criteria may include:
(1) whether treatment by the current doctor is
medically inappropriate;
(2) the professional reputation of the doctor;
(3) whether the employee is receiving appropriate
medical care to reach maximum medical improvement; and
(4) whether a conflict exists between the employee and
the doctor to the extent that the doctor-patient relationship is
jeopardized or impaired.
(d) A change of doctor may not be made to secure a new
impairment rating or medical report.
(e) For purposes of this section, the following is not a
selection of an alternate doctor:
(1) a referral made by the doctor chosen by the
employee if the referral is medically reasonable and necessary;
(2) the receipt of services ancillary to surgery;
(3) the obtaining of a second or subsequent opinion
only on the appropriateness of the diagnosis or treatment;
(4) the selection of a doctor because the original
doctor:
(A) dies;
(B) retires; or
(C) becomes unavailable or unable to provide
medical care to the employee; or
(5) a change of doctors required because of a change of
residence by the employee.
(f) This section does not apply to requirements regarding
the selection of a doctor under a workers' compensation health care
network established under Chapter 1305, Insurance Code, except as
provided by that chapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.082, eff. September 1,
2005.
§ 408.023. LIST OF APPROVED DOCTORS; DUTIES OF TREATING
DOCTORS. (a) The division shall develop a list of doctors
licensed in this state who are approved to provide health care
services under this subtitle. A doctor is eligible to be included
on the division's list of approved doctors if the doctor:
(1) registers with the division in the manner
prescribed by commissioner rules; and
(2) complies with the requirements adopted by the
commissioner under this section.
(b) The commissioner by rule shall establish reasonable
requirements for training for doctors as a prerequisite for
inclusion on the list. Except as otherwise provided by this
section, the requirements adopted under this subsection apply to
doctors and other health care providers who:
(1) provide health care services as treating doctors;
(2) provide health care services as authorized by this
chapter;
(3) perform medical peer review under this subtitle;
(4) perform utilization review of medical benefits
provided under this subtitle; or
(5) provide health care services on referral from a
treating doctor, as provided by commissioner rule.
(c) The division shall issue to a doctor who is approved by
the commissioner a certificate of registration. In determining
whether to issue a certificate of registration, the commissioner
may consider and condition approval on any practice restrictions
applicable to the applicant that are relevant to services provided
under this subtitle. The commissioner may also consider the
practice restrictions of an applicant when determining appropriate
sanctions under Section 408.0231.
(d) A certificate of registration issued under this section
is valid, unless revoked, suspended, or revised, for the period
provided by commissioner rule and may be renewed on application to
the division. The division shall provide notice to each doctor on
the approved doctor list of the pending expiration of the doctor's
certificate of registration not later than the 60th day before the
date of expiration of the certificate.
(e) Notwithstanding other provisions of this section, a
doctor not licensed in this state but licensed in another state or
jurisdiction who treats employees or performs utilization review of
health care for an insurance carrier may apply for a certificate of
registration under this section to be included on the division's
list of approved doctors.
(f) Except in an emergency or for immediate post-injury
medical care as defined by commissioner rule, or as provided by
Subsection (h), (i), or (j), each doctor who performs functions
under this subtitle, including examinations under this chapter,
must hold a certificate of registration and be on the division's
list of approved doctors in order to perform services or receive
payment for those services.
(g) The commissioner by rule shall modify registration and
training requirements for doctors who infrequently provide health
care or who perform utilization review or peer review functions for
insurance carriers as necessary to ensure that those doctors are
informed of the regulations that affect health care benefit
delivery under this subtitle.
(h) Notwithstanding Section 4201.152, Insurance Code, a
utilization review agent or an insurance carrier that uses doctors
to perform reviews of health care services provided under this
subtitle, including utilization review and retrospective review,
may only use doctors licensed to practice in this state.
(i) The commissioner may grant exceptions to the
requirement imposed under Subsection (f) as necessary to ensure
that:
(1) employees have access to health care; and
(2) insurance carriers have access to evaluations of
an employee's health care and income benefit eligibility as
provided by this subtitle.
(j) A doctor who contracts with a workers' compensation
health care network certified under Chapter 1305, Insurance Code,
is not subject to the registration requirements of Subsections
(a)-(i) for the purpose of providing health care services under
that network contract. The doctor is subject to the requirements
of Subsections (l)-(p), and Subsection (q) applies to health care
services and functions provided by a doctor who contracts with a
certified workers' compensation health care network.
(k) The requirements of Subsections (a)-(g) and Subsection
(i) expire September 1, 2007. Before that date, the commissioner
may waive the application of the provisions of Subsections (a)-(g)
and Subsection (i) that require doctors to hold a certificate of
registration and to be on the list of approved doctors if the
commissioner determines that:
(1) injured employees have adequate access to health
care providers who are willing to treat injured employees for
compensable injuries through workers' compensation health care
networks certified under Chapter 1305, Insurance Code; or
(2) injured employees who are not covered by a workers'
compensation health care network certified under Chapter 1305,
Insurance Code, do not have adequate access to health care
providers who are willing to treat injured employees for
compensable injuries.
(l) The injured employee's treating doctor is responsible
for the efficient management of medical care as required by Section
408.025(c) and commissioner rules. The division shall collect
information regarding:
(1) return-to-work outcomes;
(2) patient satisfaction; and
(3) cost and utilization of health care provided or
authorized by a treating doctor on the list of approved doctors.
(m) The commissioner may adopt rules to define the role of
the treating doctor and to specify outcome information to be
collected for a treating doctor.
(n) The commissioner by rule shall establish reasonable
requirements for doctors, and health care providers financially
related to those doctors, regarding training, impairment rating
testing, and disclosure of financial interests as required by
Section 413.041, and for monitoring of those doctors and health
care providers as provided by Sections 408.0231, 413.0511, and
413.0512.
(o) A doctor, including a doctor who contracts with a
workers' compensation health care network, shall:
(1) comply with the requirements established by
commissioner rule under Subsections (l) and (m) and with Section
413.041 regarding the disclosure of financial interests; and
(2) if the doctor intends to provide certifications of
maximum medical improvement or assign impairment ratings, comply
with the impairment rating training and testing requirements
established by commissioner rule under Subsection (n).
(p) A person required to comply with Subsection (o),
including a doctor who contracts with a workers' compensation
health care network, who does not comply with that section commits
an administrative violation.
(q) An insurance carrier may not use, for the purpose of
suspending temporary income benefits or computing impairment
income benefits, a certification of maximum medical improvement or
an impairment rating assigned by a doctor, including a doctor who
contracts with a workers' compensation health care network
certified under Chapter 1305, Insurance Code, who fails to comply
with Subsection (o)(2).
(r) Notwithstanding the waiver or expiration of Subsections
(a)-(g) and (i), there may be no direct or indirect provision of
health care under this subtitle and rules adopted under this
subtitle, and no direct or indirect receipt of remuneration under
this subtitle and rules adopted under this subtitle by a doctor who:
(1) before September 1, 2007:
(A) was removed or deleted from the list of
approved doctors either by action of the Texas Workers'
Compensation Commission or the division or by agreement with the
doctor;
(B) was not admitted to the list of approved
doctors either by action of the Texas Workers' Compensation
Commission or the division or by agreement with the doctor;
(C) was suspended from the list of approved
doctors either by action of the Texas Workers' Compensation
Commission or the division or by agreement with the doctor; or
(D) had the doctor's license to practice
suspended by the appropriate licensing agency, including a
suspension that was stayed, deferred, or probated, or voluntarily
relinquished the license to practice; and
(2) was not reinstated or restored by the Texas
Workers' Compensation Commission or the division to the list of
approved doctors before September 1, 2007.
(s) The waiver or expiration of Subsections (a)-(g) and (i)
do not limit the division's ability to impose sanctions as provided
by this subtitle and commissioner rules.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.25, eff. Sept. 1, 1995;
Acts 2001, 77th Leg., ch. 1456, § 1.01, eff. Sept. 1, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.083, eff. September 1,
2005.
Acts 2007, 80th Leg., R.S., Ch. 134, § 2, eff. September 1,
2007.
§ 408.0231. MAINTENANCE OF LIST OF APPROVED DOCTORS;
SANCTIONS AND PRIVILEGES RELATING TO HEALTH CARE. (a) The
commissioner shall delete from the list of approved doctors a
doctor:
(1) who fails to register with the division as
provided by this chapter and commissioner rules;
(2) who is deceased;
(3) whose license to practice in this state is
revoked, suspended, or not renewed by the appropriate licensing
authority; or
(4) who requests to be removed from the list.
(b) The commissioner by rule shall establish criteria for:
(1) deleting or suspending a doctor from the list of
approved doctors;
(2) imposing sanctions on a doctor or an insurance
carrier as provided by this section;
(3) monitoring of utilization review agents, as
provided by a memorandum of understanding between the division and
the Texas Department of Insurance; and
(4) authorizing increased or reduced utilization
review and preauthorization controls on a doctor.
(c) Rules adopted under Subsection (b) are in addition to,
and do not affect, the rules adopted under Section 415.023(b). The
criteria for deleting a doctor from the list or for recommending or
imposing sanctions may include anything the commissioner considers
relevant, including:
(1) a sanction of the doctor by the commissioner for a
violation of Chapter 413 or Chapter 415;
(2) a sanction by the Medicare or Medicaid program
for:
(A) substandard medical care;
(B) overcharging;
(C) overutilization of medical services; or
(D) any other substantive noncompliance with
requirements of those programs regarding professional practice or
billing;
(3) evidence from the division's medical records that
the applicable insurance carrier's utilization review practices or
the doctor's charges, fees, diagnoses, treatments, evaluations, or
impairment ratings are substantially different from those the
commissioner finds to be fair and reasonable based on either a
single determination or a pattern of practice;
(4) a suspension or other relevant practice
restriction of the doctor's license by an appropriate licensing
authority;
(5) professional failure to practice medicine or
provide health care, including chiropractic care, in an acceptable
manner consistent with the public health, safety, and welfare;
(6) findings of fact and conclusions of law made by a
court, an administrative law judge of the State Office of
Administrative Hearings, or a licensing or regulatory authority; or
(7) a criminal conviction.
(d) The commissioner by rule shall establish procedures
under which a doctor may apply for:
(1) reinstatement to the list of approved doctors; or
(2) restoration of doctor practice privileges removed
by the commissioner based on sanctions imposed under this section.
(e) The commissioner shall act on a recommendation by the
medical advisor selected under Section 413.0511 and, after notice
and the opportunity for a hearing, may impose sanctions under this
section on a doctor or an insurance carrier or may recommend action
regarding a utilization review agent. The commissioner and the
commissioner of insurance shall enter into a memorandum of
understanding to coordinate the regulation of insurance carriers
and utilization review agents as necessary to ensure:
(1) compliance with applicable regulations; and
(2) that appropriate health care decisions are reached
under this subtitle and under Chapter 4201, Insurance Code.
(f) The sanctions the commissioner may recommend or impose
under this section include:
(1) reduction of allowable reimbursement;
(2) mandatory preauthorization of all or certain
health care services;
(3) required peer review monitoring, reporting, and
audit;
(4) deletion or suspension from the approved doctor
list and the designated doctor list;
(5) restrictions on appointment under this chapter;
(6) conditions or restrictions on an insurance carrier
regarding actions by insurance carriers under this subtitle in
accordance with the memorandum of understanding adopted under
Subsection (e); and
(7) mandatory participation in training classes or
other courses as established or certified by the division.
(g) The commissioner shall adopt rules regarding doctors
who perform peer review functions for insurance carriers. Those
rules may include standards for peer review, imposition of
sanctions on doctors performing peer review functions, including
restriction, suspension, or removal of the doctor's ability to
perform peer review on behalf of insurance carriers in the workers'
compensation system, and other issues important to the quality of
peer review, as determined by the commissioner. A doctor who
performs peer review under this subtitle must hold the appropriate
professional license issued by this state. A doctor, other than a
chiropractor or a dentist, who performs peer review is subject to
Section 408.0043. A dentist who performs a peer review of a dental
service provided to an injured employee is subject to Section
408.0044. A chiropractor who performs a peer review of a
chiropractic service provided to an injured employee is subject to
Section 408.0045.
Added by Acts 2001, 77th Leg., ch. 1456, § 1.01, eff. June 17,
2001.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.084, eff. September 1,
2005.
Acts 2007, 80th Leg., R.S., Ch. 134, § 3, eff. September 1,
2007.
Acts 2007, 80th Leg., R.S., Ch. 1218, § 4, eff. September
1, 2007.
§ 408.024. NONCOMPLIANCE WITH SELECTION REQUIREMENTS.
Except as otherwise provided, and after notice and an opportunity
for hearing, the commissioner may relieve an insurance carrier of
liability for health care that is furnished by a health care
provider or another person selected in a manner inconsistent with
the requirements of this subchapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.085, eff. September 1,
2005.
§ 408.025. REPORTS AND RECORDS REQUIRED FROM HEALTH CARE
PROVIDERS. (a) The commissioner by rule shall adopt requirements
for reports and records that are required to be filed with the
division or provided to the injured employee, the employee's
attorney, or the insurance carrier by a health care provider.
(b) The commissioner by rule shall adopt requirements for
reports and records that are to be made available by a health care
provider to another health care provider to prevent unnecessary
duplication of tests and examinations.
(c) The treating doctor is responsible for maintaining
efficient utilization of health care.
(d) On the request of an injured employee, the employee's
attorney, or the insurance carrier, a health care provider shall
furnish records relating to treatment or hospitalization for which
compensation is being sought. The division may regulate the charge
for furnishing a report or record, but the charge may not be less
than the fair and reasonable charge for furnishing the report or
record. A health care provider may disclose to the insurance
carrier of an affected employer records relating to the diagnosis
or treatment of the injured employee without the authorization of
the injured employee to determine the amount of payment or the
entitlement to payment.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 1426, § 9, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.086, eff. September 1,
2005.
§ 408.0251. ELECTRONIC BILLING REQUIREMENTS. (a) The
commissioner, by rule and in cooperation with the commissioner of
insurance, shall adopt rules regarding the electronic submission
and processing of medical bills by health care providers to
insurance carriers.
(b) Insurance carriers shall accept medical bills submitted
electronically by health care providers in accordance with
commissioner rule.
(c) The commissioner shall by rule establish criteria for
granting exceptions to insurance carriers and health care providers
who are unable to submit or accept medical bills electronically.
(d) On or after January 1, 2008, the commissioner may adopt
rules regarding the electronic payment of medical bills by
insurance carriers to health care providers.
Added by Acts 2005, 79th Leg., Ch. 265, § 3.087, eff. September
1, 2005.
§ 408.0252. UNDERSERVED AREAS. The commissioner by rule
may identify areas of this state in which access to health care
providers is less available and may adopt appropriate standards,
guidelines, and rules regarding the delivery of health care in
those areas.
Added by Acts 2005, 79th Leg., Ch. 265, § 3.087, eff. September
1, 2005.
§ 408.026. SPINAL SURGERY. Except in a medical
emergency, an insurance carrier is liable for medical costs related
to spinal surgery only as provided by Section 413.014 and
commissioner rules.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 1456, § 4.01, eff. June 17, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.088, eff. September 1,
2005.
§ 408.027. PAYMENT OF HEALTH CARE PROVIDER. (a) A
health care provider shall submit a claim for payment to the
insurance carrier not later than the 95th day after the date on
which the health care services are provided to the injured
employee. Failure by the health care provider to timely submit a
claim for payment constitutes a forfeiture of the provider's right
to reimbursement for that claim for payment.
(b) The insurance carrier must pay, reduce, deny, or
determine to audit the health care provider's claim not later than
the 45th day after the date of receipt by the carrier of the
provider's claim. The carrier may request additional
documentation necessary to clarify the provider's charges at any
time during the 45-day period. If the insurance carrier requests
additional documentation under this subsection, the health care
provider must provide the requested documentation not later than
the 15th day after the date of receipt of the carrier's request. If
the insurance carrier elects to audit the claim, the carrier must
complete the audit not later than the 160th day after the date of
receipt by the carrier of the health care provider's claim, and, not
later than the 160th day after the receipt of the claim, must make a
determination regarding the relationship of the health care
services provided to the compensable injury, the extent of the
injury, and the medical necessity of the services provided. If the
insurance carrier chooses to audit the claim, the insurance carrier
must pay to the health care provider not later than the 45th day
after the date of receipt by the carrier of the provider's claim 85
percent of:
(1) the amount for the health care service established
under the fee guidelines authorized under this subtitle if the
health care service is not provided through a workers' compensation
health care network under Chapter 1305, Insurance Code; or
(2) the amount of the contracted rate for that health
care service if the health care service is provided through a
workers' compensation health care network under Chapter 1305,
Insurance Code.
(c) If the health care services provided are determined to
be appropriate, the insurance carrier shall pay the health care
provider the remaining 15 percent of the claim not later than the
160th day after the date of receipt by the carrier of the health
care provider's documentation of the claim. An insurance carrier
commits an administrative violation if the carrier, in violation of
Subsection (b), fails to:
(1) pay, reduce, deny, or notify the health care
provider of the intent to audit the claim by the 45th day after the
date of receipt by the carrier of the health care provider's claim;
or
(2) pay, reduce, or deny an audited claim by the 160th
day after the date of receipt of the claim.
(d) If an insurance carrier contests the compensability of
an injury and the injury is determined not to be compensable, the
carrier may recover the amounts paid for health care services from
the employee's accident or health benefit plan, or any other person
who may be obligated for the cost of the health care services. If
an accident or health insurance carrier or other person obligated
for the cost of health care services has paid for health care
services for an employee for an injury for which a workers'
compensation insurance carrier denies compensability, and the
injury is later determined to be compensable, the accident or
health insurance carrier or other person may recover the amounts
paid for such services from the workers' compensation insurance
carrier. If an accident or health insurance carrier or other
person obligated for the cost of health care services has paid for
health care services for an employee for an injury for which the
workers' compensation insurance carrier or the employer has not
disputed compensability, the accident or health insurance carrier
or other person may recover reimbursement from the insurance
carrier in the manner described by Section 409.009 or 409.0091, as
applicable.
(e) If an insurance carrier disputes the amount of payment
or the health care provider's entitlement to payment, the insurance
carrier shall send to the division, the health care provider, and
the injured employee a report that sufficiently explains the
reasons for the reduction or denial of payment for health care
services provided to the employee. The insurance carrier is
entitled to a hearing as provided by Section 413.031(d).
(f) Any payment made by an insurance carrier under this
section shall be in accordance with the fee guidelines authorized
under this subtitle if the health care service is not provided
through a workers' compensation health care network under Chapter
1305, Insurance Code, or at a contracted rate for that health care
service if the health care service is provided through a workers'
compensation health care network under Chapter 1305, Insurance
Code.
(g) Notwithstanding any other provision in this subtitle or
Chapter 1305, Insurance Code, this section and Section 408.0271
apply to health care provided through a workers' compensation
health care network established under Chapter 1305, Insurance
Code. The commissioner shall adopt rules as necessary to implement
the provisions of this section and Section 408.0271.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 1426, § 10, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.089, eff. September 1,
2005.
Acts 2007, 80th Leg., R.S., Ch. 1007, § 4, eff. September
1, 2007.
§ 408.0271. REIMBURSEMENT BY HEALTH CARE PROVIDER.
(a) If the health care services provided to an injured employee
are determined by the insurance carrier to be inappropriate, the
insurance carrier shall:
(1) notify the health care provider in writing of the
carrier's decision; and
(2) demand a refund by the health care provider of the
portion of payment on the claim that was received by the health care
provider for the inappropriate services.
(b) The health care provider may appeal the insurance
carrier's determination under Subsection (a). The health care
provider must file an appeal under this subsection with the
insurance carrier not later than the 45th day after the date of the
insurance carrier's request for the refund. The insurance carrier
must act on the appeal not later than the 45th day after the date on
which the provider files the appeal.
(c) A health care provider shall reimburse the insurance
carrier for payments received by the provider for inappropriate
charges not later than the 45th day after the date of the carrier's
notice. The failure by the health care provider to timely remit
payment to the carrier constitutes an administrative violation.
Added by Acts 2005, 79th Leg., Ch. 265, § 3.0895, eff. September
1, 2005.
§ 408.0272. CERTAIN EXCEPTIONS FOR UNTIMELY SUBMISSION
OF CLAIM. (a) In this section:
(1) "Group accident and health insurance" has the
meaning assigned by Chapter 1251, Insurance Code.
(2) "Health maintenance organization" has the meaning
assigned by Chapter 843, Insurance Code.
(b) Notwithstanding Section 408.027, a health care provider
who fails to timely submit a claim for payment to the insurance
carrier under Section 408.027(a) does not forfeit the provider's
right to reimbursement for that claim for payment solely for
failure to submit a timely claim if:
(1) the provider submits proof satisfactory to the
commissioner that the provider, within the period prescribed by
Section 408.027(a), erroneously filed for reimbursement with:
(A) an insurer that issues a policy of group
accident and health insurance under which the injured employee is a
covered insured;
(B) a health maintenance organization that
issues an evidence of coverage under which the injured employee is a
covered enrollee; or
(C) a workers' compensation insurance carrier
other than the insurance carrier liable for the payment of benefits
under this title; or
(2) the commissioner determines that the failure
resulted from a catastrophic event that substantially interfered
with the normal business operations of the provider.
(c) Notwithstanding Subsection (b), a health care provider
who erroneously submits a claim for payment to an entity described
by Subdivision (1) of that subsection forfeits the provider's right
to reimbursement for that claim if the provider fails to submit the
claim to the correct workers' compensation insurance carrier within
95 days after the date the provider is notified of the provider's
erroneous submission of the claim.
(d) Notwithstanding any other provision of this section or
Section 408.027, the period for submitting a claim for payment may
be extended by agreement of the parties.
Added by Acts 2007, 80th Leg., R.S., Ch. 459, § 1, eff. September
1, 2007.
§ 408.028. PHARMACEUTICAL SERVICES. (a) A physician
providing care to an employee under this subchapter shall prescribe
for the employee any necessary prescription drugs, and order
over-the-counter alternatives to prescription medications as
clinically appropriate and applicable, in accordance with
applicable state law and as provided by Subsection (b). A doctor
providing care may order over-the-counter alternatives to
prescription medications, when clinically appropriate, in
accordance with applicable state law and as provided by Subsection
(b).
(b) The commissioner by rule shall require the use of
generic pharmaceutical medications and clinically appropriate
over-the-counter alternatives to prescription medications unless
otherwise specified by the prescribing doctor, in accordance with
applicable state law. The commissioner by rule shall adopt a
closed formulary under Section 413.011. Rules adopted by the
commissioner shall allow an appeals process for claims in which a
treating doctor determines and documents that a drug not included
in the formulary is necessary to treat an injured employee's
compensable injury.
(c) Except as otherwise provided by this subtitle, an
insurance carrier may not require an employee to use pharmaceutical
services designated by the carrier.
(d) The commissioner shall adopt rules to allow an employee
to purchase over-the-counter alternatives to prescription
medications prescribed or ordered under Subsection (a) or (b) and
to obtain reimbursement from the insurance carrier for those
medications.
(e) Notwithstanding Subsection (b), the commissioner by
rule shall allow an employee to purchase a brand name drug rather
than a generic pharmaceutical medication or over-the-counter
alternative to a prescription medication if a health care provider
prescribes a generic pharmaceutical medication or an
over-the-counter alternative to a prescription medication. The
employee shall be responsible for paying the difference between the
cost of the brand name drug and the cost of the generic
pharmaceutical medication or of an over-the-counter alternative to
a prescription medication. The employee may not seek
reimbursement for the difference in cost from an insurance carrier
and is not entitled to use the medical dispute resolution
provisions of Chapter 413 with regard to the prescription. A
payment described by this subsection by an employee to a health care
provider does not violate Section 413.042. This subsection does
not affect the duty of a health care provider to comply with the
requirements of Subsection (b) when prescribing medications or
ordering over-the-counter alternatives to prescription
medications.
(f) Notwithstanding any other provision of this title, the
commissioner by rule shall adopt a fee schedule for pharmacy and
pharmaceutical services that will:
(1) provide reimbursement rates that are fair and
reasonable;
(2) assure adequate access to medications and services
for injured workers; and
(3) minimize costs to employees and insurance
carriers.
(g) Insurance carriers must reimburse for pharmacy benefits
and services using the fee schedule as developed by this section, or
at rates negotiated by contract.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 1456, § 6.01, eff. June 17, 2001;
Acts 2003, 78th Leg., ch. 468, § 1, eff. Sept. 1, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.090, eff. September 1,
2005.
§ 408.029. NURSE FIRST ASSISTANT SERVICES. An insurance
carrier may not refuse to reimburse a health care practitioner
solely because that practitioner is a nurse first assistant, as
defined by Section 301.1525, Occupations Code, for a covered
service that a physician providing health care services under this
subtitle has requested the nurse first assistant to perform.
Added by Acts 2001, 77th Leg., ch. 812, § 9, eff. Sept. 1, 2001.
§ 408.030. REPORTS OF PHYSICIAN VIOLATIONS. If the
division discovers an act or omission by a physician that may
constitute a felony, a misdemeanor involving moral turpitude, a
violation of a state or federal narcotics or controlled substance
law, an offense involving fraud or abuse under the Medicare or
Medicaid program, or a violation of this subtitle, the division
shall immediately report that act or omission to the Texas State
Board of Medical Examiners.
Added by Acts 2003, 78th Leg., ch. 202, § 38, eff. June 10, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.091, eff. September 1,
2005.
§ 408.031. WORKERS' COMPENSATION HEALTH CARE NETWORKS.
(a) Notwithstanding any other provision of this chapter, an
injured employee may receive benefits under a workers' compensation
health care network established under Chapter 1305, Insurance Code,
in the manner provided by that chapter.
(b) In the event of a conflict between this title and
Chapter 1305, Insurance Code, as to the provision of medical
benefits for injured employees, the establishment and regulation of
fees for medical treatments and services, the time frames for
payment of medical bills, the operation and regulation of workers'
compensation health care networks, the regulation of the health
care providers who contract with those networks, or the resolution
of disputes regarding medical benefits provided through those
networks, Chapter 1305, Insurance Code, prevails.
Added by Acts 2005, 79th Leg., Ch. 265, § 3.092, eff. September
1, 2005.
§ 408.032. STUDY ON INTERDISCIPLINARY PAIN
REHABILITATION PROGRAM AND FACILITY ACCREDITATION REQUIREMENT.
The division shall study the issue of required accreditation of
interdisciplinary pain rehabilitation programs or
interdisciplinary pain rehabilitation treatment facilities that
provide services to injured employees and shall report to the
legislature regarding any statutory changes that the division
considers necessary to require that accreditation.
Added by Acts 2005, 79th Leg., Ch. 265, § 3.093, eff. September
1, 2005.
SUBCHAPTER C. COMPUTATION OF AVERAGE WEEKLY WAGE
§ 408.041. AVERAGE WEEKLY WAGE. (a) Except as
otherwise provided by this subtitle, the average weekly wage of an
employee who has worked for the employer for at least the 13
consecutive weeks immediately preceding an injury is computed by
dividing the sum of the wages paid in the 13 consecutive weeks
immediately preceding the date of the injury by 13.
(b) The average weekly wage of an employee whose wage at the
time of injury has not been fixed or cannot be determined or who has
worked for the employer for less than the 13 weeks immediately
preceding the injury equals:
(1) the usual wage that the employer pays a similar
employee for similar services; or
(2) if a similar employee does not exist, the usual
wage paid in that vicinity for the same or similar services provided
for remuneration.
(c) If Subsection (a) or (b) cannot reasonably be applied
because the employee's employment has been irregular or because the
employee has lost time from work during the 13-week period
immediately preceding the injury because of illness, weather, or
another cause beyond the control of the employee, the commissioner
may determine the employee's average weekly wage by any method that
the commissioner considers fair, just, and reasonable to all
parties and consistent with the methods established under this
section.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.094, eff. September 1,
2005.
§ 408.042. AVERAGE WEEKLY WAGE FOR PART-TIME EMPLOYEE OR
EMPLOYEE WITH MULTIPLE EMPLOYMENT. (a) The average weekly wage of
a part-time employee who limits the employee's work to less than a
full-time workweek as a regular course of that employee's conduct
is computed as provided by Section 408.041.
(b) For part-time employees not covered by Subsection (a),
the average weekly wage:
(1) for determining temporary income benefits is
computed as provided by Section 408.041; and
(2) for determining impairment income benefits,
supplemental income benefits, lifetime income benefits, and death
benefits is computed as follows:
(A) if the employee has worked for the employer
for at least the 13 weeks immediately preceding the date of the
injury, the average weekly wage is computed by dividing the sum of
the wages paid in the 13 consecutive weeks immediately preceding
the date of the injury by 13 and adjusting that amount to the weekly
wage level the employee would have attained by working a full-time
workweek at the same rate of pay; or
(B) if the employee has worked for the employer
for less than 13 weeks immediately preceding the date of the injury,
the average weekly wage is equal to:
(i) the weekly wage that the employer pays a
similar employee for similar services based on a full-time
workweek; or
(ii) if a similar employee does not exist,
the usual wage paid in that vicinity for the same or similar
services based on a full-time workweek.
(c) For employees with multiple employment, the average
weekly wage for determining temporary income benefits, impairment
income benefits, supplemental income benefits, lifetime income
benefits, and death benefits, is computed as follows:
(1) the average weekly wage for an employee with
multiple employment is equal to the sum of the average weekly wages
computed under Subdivisions (2) and (3);
(2) for each of the employers for whom the employee has
worked for at least the 13 weeks immediately preceding the date of
injury, the average weekly wage is equal to the sum of the wages
paid by that employer to the employee in the 13 weeks immediately
preceding the injury divided by 13;
(3) for each of the employers for whom the employee has
worked for less than the 13 weeks immediately preceding the date of
the injury, the average weekly wage is equal to:
(A) the weekly wage that employer pays similar
employees for similar services; or
(B) if a similar employee does not exist, the
usual weekly wage paid in that vicinity for the same or similar
services; and
(4) the average weekly wage of an employee with
multiple employment who limits the employee's work to less than a
full-time workweek, but does not do so as a regular course of that
employee's conduct, is adjusted to the weekly wage level the
employee would have attained by working a full-time workweek at the
employee's average rate of pay.
(d) The commissioner shall:
(1) prescribe a form to collect information regarding
the wages of employees with multiple employment; and
(2) by rule, determine the manner by which the
division collects and distributes wage information to implement
this section.
(e) For an employee with multiple employment, only the
employee's wages that are reportable for federal income tax
purposes may be considered. The employee shall document and verify
wage payments subject to this section.
(f) If the commissioner determines that computing the
average weekly wage for an employee as provided by Subsection (c) is
impractical or unreasonable, the commissioner shall set the average
weekly wage in a manner that more fairly reflects the employee's
average weekly wage and that is fair and just to both parties or is
in the manner agreed to by the parties. The commissioner by rule
may define methods to determine a fair and just average weekly wage
consistent with this section.
(g) An insurance carrier is entitled to apply for and
receive reimbursement at least annually from the subsequent injury
fund for the amount of income and death benefits paid to a worker
under this section that are based on employment other than the
employment during which the compensable injury occurred. The
commissioner may adopt rules that govern the documentation,
application process, and other administrative requirements
necessary to implement this subsection.
(h) In this section:
(1) "Employee with multiple employment" means an
employee who has more than one employer.
(2) "Full-time workweek" means a 40-hour workweek.
(3) "Part-time employee" means an employee who, at the
time of the injury, was working less than a full-time workweek for
the employer for whom the employee was working when the compensable
injury occurred.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 1456, § 10.03, eff. June 17, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.095, eff. September 1,
2005.
Acts 2007, 80th Leg., R.S., Ch. 1150, § 2, eff. September
1, 2007.
§ 408.043. AVERAGE WEEKLY WAGE FOR SEASONAL EMPLOYEE.
(a) For determining the amount of temporary income benefits of a
seasonal employee, the average weekly wage of the employee is
computed as provided by Section 408.041 and is adjusted as often as
necessary to reflect the wages the employee could reasonably have
expected to earn during the period that temporary income benefits
are paid.
(b) For determining the amount of impairment income
benefits, supplemental income benefits, lifetime income benefits,
or death benefits of a seasonal employee, the average weekly wage of
the employee is computed by dividing the amount of total wages
earned by the employee during the 12 months immediately preceding
the date of the injury by 50.
(c) If, for good reason, the commissioner determines that
computing the average weekly wage for a seasonal employee as
provided by this section is impractical, the commissioner shall
compute the average weekly wage as of the time of the injury in a
manner that is fair and just to both parties.
(d) In this section, "seasonal employee" means an employee
who, as a regular course of the employee's conduct, engages in
seasonal or cyclical employment that does not continue throughout
the entire year.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.096, eff. September 1,
2005.
§ 408.044. AVERAGE WEEKLY WAGE FOR MINOR, APPRENTICE,
TRAINEE, OR STUDENT. (a) For computing impairment income
benefits, supplemental income benefits, lifetime income benefits,
or death benefits, the average weekly wage of an employee shall be
adjusted to reflect the level of expected wages during the period
that the benefits are payable if:
(1) the employee is a minor, apprentice, trainee, or
student at the time of the injury;
(2) the employee's employment or earnings at the time
of the injury are limited primarily because of apprenticeship,
continuing formal training, or education intended to enhance the
employee's future wages; and
(3) the employee's wages would reasonably be expected
to change because of a change of employment during that period.
(b) An adjustment under Subsection (a) may not consider
expected wage levels for a period occurring after the third
anniversary of the date of the injury.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.0445. AVERAGE WEEKLY WAGE FOR MEMBERS OF STATE
MILITARY FORCES AND TEXAS TASK FORCE 1. (a) For purposes of
computing income benefits or death benefits under Section 431.104,
Government Code, the average weekly wage of a member of the state
military forces as defined by Section 431.001, Government Code, who
is engaged in authorized training or duty is an amount equal to the
sum of the member's regular weekly wage at any employment the member
holds in addition to serving as a member of the state military
forces, disregarding any period during which the member is not
fully compensated for that employment because the member is engaged
in authorized military training or duty, and the member's regular
weekly wage as a member of the state military forces, except that
the amount may not exceed 100 percent of the state average weekly
wage as determined under Section 408.047.
(b) For purposes of computing income benefits or death
benefits under Section 88.303, Education Code, the average weekly
wage of a Texas Task Force 1 member, as defined by Section 88.301,
Education Code, who is engaged in authorized training or duty is an
amount equal to the sum of the member's regular weekly wage at any
employment, including self-employment, that the member holds in
addition to serving as a member of Texas Task Force 1, except that
the amount may not exceed 100 percent of the state average weekly
wage as determined under Section 408.047. A member for whom an
average weekly wage cannot be computed shall be paid the minimum
weekly benefit established by the division.
Added by Acts 1999, 76th Leg., ch. 1205, § 4, eff. Sept. 1, 1999.
Amended by Acts 2003, 78th Leg., ch. 644, § 2, eff. June 20,
2003.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.097, eff. September 1,
2005.
§ 408.0446. AVERAGE WEEKLY WAGE; SCHOOL DISTRICT
EMPLOYEE. (a) For determining the amount of temporary income
benefits of a school district employee under Chapter 504, the
average weekly wage is computed on the basis of wages earned in a
week rather than on the basis of wages paid in a week. The wages
earned in any given week are equal to the amount that would be
deducted from an employee's salary if the employee were absent from
work for one week and the employee did not have personal leave
available to compensate the employee for lost wages for that week.
(b) An insurance carrier may adjust a school district
employee's average weekly wage as often as necessary to reflect the
wages the employee reasonably could expect to earn during the
period for which temporary income benefits are paid. In adjusting a
school district employee's average weekly wage under this
subsection, the insurance carrier may consider any evidence of the
employee's reasonable expectation of earnings.
(c) For determining the amount of impairment income
benefits, supplemental income benefits, lifetime income benefits,
or death benefits of a school district employee under Chapter 504,
the average weekly wage of the employee is computed by dividing the
total amount of wages earned by the employee during the 12 months
immediately preceding the date of the injury by 50.
(d) If the commissioner determines that computing the
average weekly wage of a school district employee as provided by
this section is impractical because the employee did not earn wages
during the 12 months immediately preceding the date of the injury,
the commissioner shall compute the average weekly wage in a manner
that is fair and just to both parties.
(e) The commissioner shall adopt rules as necessary to
implement this section.
Added by Acts 2001, 77th Leg., ch. 1456, § 10.04, eff. June 17,
2001.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.098, eff. September 1,
2005.
§ 408.045. NONPECUNIARY WAGES. The division may not
include nonpecuniary wages in computing an employee's average
weekly wage during a period in which the employer continues to
provide the nonpecuniary wages.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.099, eff. September 1,
2005.
§ 408.046. SIMILAR EMPLOYEES, SERVICES, OR EMPLOYMENT.
For purposes of this subchapter and Subchapter D, the determination
as to whether employees, services, or employment are the same or
similar must include consideration of:
(1) the training and experience of the employees;
(2) the nature of the work; and
(3) the number of hours normally worked.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
For expiration of Subsec. (b), see Subsec. (b).
§ 408.047. STATE AVERAGE WEEKLY WAGE. (a) On and after
October 1, 2006, the state average weekly wage is equal to 88
percent of the average weekly wage in covered employment computed
by the Texas Workforce Commission under Section 207.002(c).
(b) The state average weekly wage for the period beginning
September 1, 2005, and ending September 30, 2006, is $540. This
subsection expires October 1, 2006.
(c) Notwithstanding Subsection (a), the commissioner by
rule may increase the state average weekly wage to an amount not to
exceed 100 percent of the average weekly wage in covered employment
computed by the Texas Workforce Commission under Section
207.002(c).
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2003, 78th Leg., ch. 963, § 6, eff. June 20, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.100, eff. September 1,
2005.
SUBCHAPTER D. COMPUTATION OF BENEFITS
§ 408.061. MAXIMUM WEEKLY BENEFIT. (a) A weekly
temporary income benefit may not exceed 100 percent of the state
average weekly wage under Section 408.047 rounded to the nearest
whole dollar.
(b) A weekly impairment income benefit may not exceed 70
percent of the state average weekly wage rounded to the nearest
whole dollar.
(c) A weekly supplemental income benefit may not exceed 70
percent of the state average weekly wage rounded to the nearest
whole dollar.
(d) A weekly death benefit may not exceed 100 percent of the
state average weekly wage rounded to the nearest whole dollar.
(e) A weekly lifetime income benefit may not exceed 100
percent of the state average weekly wage rounded to the nearest
whole dollar.
(f) The division shall compute the maximum weekly income
benefits for each state fiscal year not later than October 1 of each
year.
(g) The maximum weekly income benefit in effect on the date
of injury is applicable for the entire time that the benefit is
payable.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.101, eff. September 1,
2005.
§ 408.062. MINIMUM WEEKLY INCOME BENEFIT. (a) The
minimum weekly income benefit is 15 percent of the state average
weekly wage as determined under Section 408.047, rounded to the
nearest whole dollar.
(b) The division shall compute the minimum weekly income
benefit for each state fiscal year not later than October 1 of each
year.
(c) The minimum weekly income benefit in effect on the date
of injury is applicable for the entire time that income benefits are
payable.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.102, eff. September 1,
2005.
§ 408.063. WAGE PRESUMPTIONS; ADMINISTRATIVE
VIOLATION. (a) To expedite the payment of income benefits, the
commissioner may by rule establish reasonable presumptions
relating to the wages earned by an employee, including the
presumption that an employee's last paycheck accurately reflects
the employee's usual wage.
(b) Not later than the 30th day after the date the employer
receives notice of an injury to the employee, the employer shall
file a wage statement showing the amount of all wages paid to the
employee.
(c) An employer who fails to file a wage statement in
accordance with Subsection (b) commits an administrative
violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.103, eff. September 1,
2005.
§ 408.064. INTEREST ON ACCRUED BENEFITS. (a) An order
to pay income or death benefits accrued but unpaid must include
interest on the amount of compensation due at the rate provided by
Section 401.023.
(b) Accrued but unpaid compensation and interest shall be
paid in a lump sum.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER E. INCOME BENEFITS IN GENERAL
§ 408.081. INCOME BENEFITS. (a) An employee is
entitled to income benefits as provided in this chapter.
(b) Except as otherwise provided by this section or this
subtitle, income benefits shall be paid weekly as and when they
accrue without order from the commissioner. Interest on accrued
but unpaid benefits shall be paid, without order of the
commissioner, at the time the accrued benefits are paid.
(c) The commissioner by rule shall establish requirements
for agreements under which income benefits may be paid
monthly. Income benefits may be paid monthly only:
(1) on the request of the employee and the agreement of
the employee and the insurance carrier; and
(2) in compliance with the requirements adopted by the
commissioner.
(d) An employee's entitlement to income benefits under this
chapter terminates on the death of the employee. An interest in
future income benefits does not survive after the employee's death.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 1426, § 11, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.104, eff. September 1,
2005.
§ 408.082. ACCRUAL OF RIGHT TO INCOME BENEFITS.
(a) Income benefits may not be paid under this subtitle for an
injury that does not result in disability for at least one week.
(b) If the disability continues for longer than one week,
weekly income benefits begin to accrue on the eighth day after the
date of the injury. If the disability does not begin at once after
the injury occurs or within eight days of the occurrence but does
result subsequently, weekly income benefits accrue on the eighth
day after the date on which the disability began.
(c) If the disability continues for two weeks or longer
after the date it begins, compensation shall be computed from the
date the disability begins.
(d) This section does not preclude the recovery of medical
benefits as provided by Subchapter B.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.105, eff. September 1,
2005.
§ 408.083. TERMINATION OF RIGHT TO TEMPORARY INCOME,
IMPAIRMENT INCOME, AND SUPPLEMENTAL INCOME BENEFITS. (a) Except
as provided by Subsection (b), an employee's eligibility for
temporary income benefits, impairment income benefits, and
supplemental income benefits terminates on the expiration of 401
weeks after the date of injury.
(b) If an employee incurs an occupational disease, the
employee's eligibility for temporary income benefits, impairment
income benefits, and supplemental income benefits terminates on the
expiration of 401 weeks after the date on which benefits began to
accrue.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.26, eff. Sept. 1, 1995.
§ 408.084. CONTRIBUTING INJURY. (a) At the request of
the insurance carrier, the commissioner may order that impairment
income benefits and supplemental income benefits be reduced in a
proportion equal to the proportion of a documented impairment that
resulted from earlier compensable injuries.
(b) The commissioner shall consider the cumulative impact
of the compensable injuries on the employee's overall impairment in
determining a reduction under this section.
(c) If the combination of the compensable injuries results
in an injury compensable under Section 408.161, the benefits for
that injury shall be paid as provided by Section 408.162.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.106, eff. September 1,
2005.
§ 408.085. ADVANCE OF BENEFITS FOR HARDSHIP. (a) If
there is a likelihood that income benefits will be paid, the
commissioner may grant an employee suffering financial hardship
advances as provided by this subtitle against the amount of income
benefits to which the employee may be entitled. An advance may be
ordered before or after the employee attains maximum medical
improvement. An insurance carrier shall pay the advance ordered.
(b) An employee must apply to the division for an advance on
a form prescribed by the commissioner. The application must
describe the hardship that is the grounds for the advance.
(c) An advance under this section may not exceed an amount
equal to four times the maximum weekly benefit for temporary income
benefits as computed in Section 408.061. The commissioner may not
grant more than three advances to a particular employee based on the
same injury.
(d) The commissioner may not grant an advance to an employee
who is receiving, on the date of the application under Subsection
(b), at least 90 percent of the employee's net preinjury wages under
Section 408.003 or 408.129.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.107, eff. September 1,
2005.
§ 408.086. DIVISION DETERMINATION OF EXTENDED
UNEMPLOYMENT OR UNDEREMPLOYMENT. (a) During the period that
impairment income benefits or supplemental income benefits are
being paid to an employee, the commissioner shall determine at
least annually whether any extended unemployment or
underemployment is a direct result of the employee's impairment.
(b) To make this determination, the commissioner may
require periodic reports from the employee and the insurance
carrier and, at the insurance carrier's expense, may require
physical or other examinations, vocational assessments, or other
tests or diagnoses necessary to perform the commissioner's duty
under this section and Subchapter H.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.108, eff. September 1,
2005.
SUBCHAPTER F. TEMPORARY INCOME BENEFITS
§ 408.101. TEMPORARY INCOME BENEFITS. (a) An employee
is entitled to temporary income benefits if the employee has a
disability and has not attained maximum medical improvement.
(b) On the initiation of compensation as provided by Section
409.021, the insurance carrier shall pay temporary income benefits
as provided by this subchapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.102. DURATION OF TEMPORARY INCOME BENEFITS.
(a) Temporary income benefits continue until the employee reaches
maximum medical improvement.
(b) The commissioner by rule shall establish a presumption
that maximum medical improvement has been reached based on a lack of
medical improvement in the employee's condition.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.109, eff. September 1,
2005.
§ 408.103. AMOUNT OF TEMPORARY INCOME BENEFITS.
(a) Subject to Sections 408.061 and 408.062, the amount of a
temporary income benefit is equal to:
(1) 70 percent of the amount computed by subtracting
the employee's weekly earnings after the injury from the employee's
average weekly wage; or
(2) for the first 26 weeks, 75 percent of the amount
computed by subtracting the employee's weekly earnings after the
injury from the employee's average weekly wage if the employee
earns less than $8.50 an hour.
(b) A temporary income benefit under Subsection (a)(2) may
not exceed the employee's actual earnings for the previous
year. It is presumed that the employee's actual earnings for the
previous year are equal to:
(1) the sum of the employee's wages as reported in the
most recent four quarterly wage reports to the Texas Workforce
Commission divided by 52;
(2) the employee's wages in the single quarter of the
most recent four quarters in which the employee's earnings were
highest, divided by 13, if the commissioner finds that the
employee's most recent four quarters' earnings reported in the
Texas Workforce Commission wage reports are not representative of
the employee's usual earnings; or
(3) the amount the commissioner determines from other
credible evidence to be the actual earnings for the previous year if
the Texas Workforce Commission does not have a wage report
reflecting at least one quarter's earnings because the employee
worked outside the state during the previous year.
(c) A presumption under Subsection (b) may be rebutted by
other credible evidence of the employee's actual earnings.
(d) The Texas Employment Commission shall provide
information required under this section in the manner most
efficient for transferring the information.
(e) For purposes of Subsection (a), if an employee is
offered a bona fide position of employment that the employee is
reasonably capable of performing, given the physical condition of
the employee and the geographic accessibility of the position to
the employee, the employee's weekly earnings after the injury are
equal to the weekly wage for the position offered to the employee.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.110, eff. September 1,
2005.
§ 408.104. MAXIMUM MEDICAL IMPROVEMENT AFTER SPINAL
SURGERY. (a) On application by either the employee or the
insurance carrier, the commissioner by order may extend the
104-week period described by Section 401.011(30)(B) if the employee
has had spinal surgery, or has been approved for spinal surgery
under Section 408.026 and commissioner rules, within 12 weeks
before the expiration of the 104-week period. If an order is
issued under this section, the order shall extend the statutory
period for maximum medical improvement to a date certain, based on
medical evidence presented to the commissioner.
(b) Either the employee or the insurance carrier may dispute
an application for extension made under this section. A dispute
under this subsection is subject to Chapter 410.
(c) The commissioner shall adopt rules to implement this
section, including rules establishing procedures for requesting
and disputing an extension.
Added by Acts 1997, 75th Leg., ch. 1443, § 5, eff. Jan. 1, 1998.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.111, eff. September 1,
2005.
§ 408.105. SALARY CONTINUATION IN LIEU OF TEMPORARY
INCOME BENEFITS. (a) In lieu of payment of temporary income
benefits under this subchapter, an employer may continue to pay the
salary of an employee who sustains a compensable injury under a
contractual obligation between the employer and employee, such as a
collective bargaining agreement, written agreement, or policy.
(b) Salary continuation may include wage supplementation
if:
(1) employer reimbursement is not sought from the
carrier as provided by Section 408.127; and
(2) the supplementation does not affect the employee's
eligibility for any future income benefits.
Added by Acts 1999, 76th Leg., ch. 1003, § 3, eff. Sept. 1, 1999.
SUBCHAPTER G. IMPAIRMENT INCOME BENEFITS
§ 408.121. IMPAIRMENT INCOME BENEFITS. (a) An
employee's entitlement to impairment income benefits begins on the
day after the date the employee reaches maximum medical improvement
and ends on the earlier of:
(1) the date of expiration of a period computed at the
rate of three weeks for each percentage point of impairment; or
(2) the date of the employee's death.
(b) The insurance carrier shall begin to pay impairment
income benefits not later than the fifth day after the date on which
the insurance carrier receives the doctor's report certifying
maximum medical improvement. Impairment income benefits shall be
paid for a period based on the impairment rating, unless that rating
is disputed under Subsection (c).
(c) If the insurance carrier disputes the impairment rating
used under Subsection (a), the carrier shall pay the employee
impairment income benefits for a period based on the carrier's
reasonable assessment of the correct rating.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.122. ELIGIBILITY FOR IMPAIRMENT INCOME BENEFITS.
A claimant may not recover impairment income benefits unless
evidence of impairment based on an objective clinical or laboratory
finding exists. If the finding of impairment is made by a doctor
chosen by the claimant and the finding is contested, a designated
doctor or a doctor selected by the insurance carrier must be able to
confirm the objective clinical or laboratory finding on which the
finding of impairment is based.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.27, eff. Sept. 1, 1995;
Acts 2001, 77th Leg., ch. 1456, § 5.03, eff. June 17, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.112, eff. September 1,
2005.
§ 408.1225. DESIGNATED DOCTOR. (a) To be eligible to
serve as a designated doctor, a doctor must meet specific
qualifications, including training in the determination of
impairment ratings and demonstrated expertise in performing
examinations and making evaluations as described by Section
408.0041. The commissioner shall develop qualification standards
and administrative policies to implement this subsection and may
adopt rules as necessary.
(b) The commissioner shall ensure the quality of designated
doctor decisions and reviews through active monitoring of the
decisions and reviews, and may take action as necessary to:
(1) restrict the participation of a designated doctor;
or
(2) remove a doctor from inclusion on the department's
list of designated doctors.
(c) The report of the designated doctor has presumptive
weight, and the division shall base its determination of whether
the employee has reached maximum medical improvement on the report
unless the preponderance of the other medical evidence is to the
contrary.
(d) The commissioner shall develop rules to ensure that a
designated doctor called on to conduct an examination under Section
408.0041 has no conflict of interest in serving as a designated
doctor in performing any examination.
(e) 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.
Added by Acts 2005, 79th Leg., Ch. 265, § 3.112, eff. September
1, 2005.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1218, § 5, eff. September
1, 2007.
§ 408.123. CERTIFICATION OF MAXIMUM MEDICAL IMPROVEMENT;
EVALUATION OF IMPAIRMENT RATING. (a) After an employee has been
certified by a doctor as having reached maximum medical
improvement, the certifying doctor shall evaluate the condition of
the employee and assign an impairment rating using the impairment
rating guidelines described by Section 408.124. If the
certification and evaluation are performed by a doctor other than
the employee's treating doctor, the certification and evaluation
shall be submitted to the treating doctor, and the treating doctor
shall indicate agreement or disagreement with the certification and
evaluation.
(b) A certifying doctor shall issue a written report
certifying that maximum medical improvement has been reached,
stating the employee's impairment rating, and providing any other
information required by the commissioner to:
(1) the division;
(2) the employee; and
(3) the insurance carrier.
(c) The commissioner shall adopt a rule that provides that,
at the conclusion of any examination in which maximum medical
improvement is certified and any impairment rating is assigned by
the treating doctor, written notice shall be given to the employee
that the employee may dispute the certification of maximum medical
improvement and assigned impairment rating. The notice to the
employee must state how to dispute the certification of maximum
medical improvement and impairment rating.
(d) If an employee is not certified as having reached
maximum medical improvement before the expiration of 102 weeks
after the date income benefits begin to accrue, the division shall
notify the treating doctor of the requirements of this subchapter.
(e) Except as otherwise provided by this section, an
employee's first valid certification of maximum medical
improvement and first valid assignment of an impairment rating is
final if the certification or assignment is not disputed before the
91st day after the date written notification of the certification
or assignment is provided to the employee and the carrier by
verifiable means.
(f) An employee's first certification of maximum medical
improvement or assignment of an impairment rating may be disputed
after the period described by Subsection (e) if:
(1) compelling medical evidence exists of:
(A) a significant error by the certifying doctor
in applying the appropriate American Medical Association
guidelines or in calculating the impairment rating;
(B) a clearly mistaken diagnosis or a previously
undiagnosed medical condition; or
(C) improper or inadequate treatment of the
injury before the date of the certification or assignment that
would render the certification or assignment invalid; or
(2) other compelling circumstances exist as
prescribed by commissioner rule.
(g) If an employee has not been certified as having reached
maximum medical improvement before the expiration of 104 weeks
after the date income benefits begin to accrue or the expiration
date of any extension of benefits under Section 408.104, the
impairment rating assigned after the expiration of either of those
periods is final if the impairment rating is not disputed before the
91st day after the date written notification of the certification
or assignment is provided to the employee and the carrier by
verifiable means. A certification or assignment may be disputed
after the 90th day only as provided by Subsection (f).
(h) If an employee's disputed certification of maximum
medical improvement or assignment of impairment rating is finally
modified, overturned, or withdrawn, the first certification or
assignment made after the date of the modification, overturning, or
withdrawal becomes final if the certification or assignment is not
disputed before the 91st day after the date notification of the
certification or assignment is provided to the employee and the
carrier by verifiable means. A certification or assignment may be
disputed after the 90th day only as provided by Subsection (f).
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2003, 78th Leg., ch. 278, § 1, eff. June 18, 2003; Acts
2003, 78th Leg., ch. 1190, § 1, eff. June 20, 2003; Acts 2003,
78th Leg., ch. 1323, § 2, eff. June 21, 2003.
Reenacted and amended by Acts 2005, 79th Leg., Ch. 265, § 3.113,
eff. September 1, 2005.
§ 408.124. IMPAIRMENT RATING GUIDELINES. (a) An award
of an impairment income benefit, whether by the commissioner or a
court, must be based on an impairment rating determined using the
impairment rating guidelines described by this section.
(b) For determining the existence and degree of an
employee's impairment, the division shall use "Guides to the
Evaluation of Permanent Impairment," third edition, second
printing, dated February 1989, published by the American Medical
Association.
(c) Notwithstanding Subsection (b), the commissioner by
rule may adopt the fourth edition of the "Guides to the Evaluation
of Permanent Impairment," published by the American Medical
Association, or a subsequent edition of those guides, for
determining the existence and degree of an employee's impairment.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 1426, § 12, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.114, eff. September 1,
2005.
§ 408.125. DISPUTE AS TO IMPAIRMENT RATING. (a) If an
impairment rating is disputed, the commissioner shall direct the
employee to the next available doctor on the division's list of
designated doctors, as provided by Section 408.0041.
(b) The designated doctor shall report in writing to the
division.
(c) The report of the designated doctor shall have
presumptive weight, and the division shall base the impairment
rating on that report unless the preponderance of the other medical
evidence is to the contrary. If the preponderance of the medical
evidence contradicts the impairment rating contained in the report
of the designated doctor chosen by the division, the division shall
adopt the impairment rating of one of the other doctors.
(d) To avoid undue influence on a person selected as a
designated doctor under this section, only the injured employee or
an appropriate member of the staff of the division 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 who
has previously treated or examined the injured employee for the
work-related injury.
(e) Notwithstanding Subsection (d), the treating doctor and
the insurance carrier are both responsible for sending to the
designated doctor all the injured employee's medical records that
are in their possession and that relate to the issue to be evaluated
by the designated doctor. The treating doctor and the 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 the insurance carrier may also
send the designated doctor an analysis of the injured employee's
medical condition, functional abilities, and return-to-work
opportunities.
(f) A violation of Subsection (d) is an administrative
violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.28, eff. Sept. 1, 1995;
Acts 2001, 77th Leg., ch. 1456, § 5.04, eff. June 17, 2001.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.115, eff. September 1,
2005.
§ 408.126. AMOUNT OF IMPAIRMENT INCOME BENEFITS.
Subject to Sections 408.061 and 408.062, an impairment income
benefit is equal to 70 percent of the employee's average weekly
wage.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.127. REDUCTION OF IMPAIRMENT INCOME BENEFITS.
(a) An insurance carrier shall reduce impairment income benefits
to an employee by an amount equal to employer payments made under
Section 408.003 that are not reimbursed or reimbursable under that
section.
(b) The insurance carrier shall remit the amount of a
reduction under this section to the employer who made the payments.
(c) The commissioner shall adopt rules and forms to ensure
the full reporting and the accuracy of reductions and
reimbursements made under this section.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.116, eff. September 1,
2005.
§ 408.128. COMMUTATION OF IMPAIRMENT INCOME BENEFITS.
(a) An employee may elect to commute the remainder of the
impairment income benefits to which the employee is entitled if the
employee has returned to work for at least three months, earning at
least 80 percent of the employee's average weekly wage.
(b) An employee who elects to commute impairment income
benefits is not entitled to additional income benefits for the
compensable injury.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.129. ACCELERATION OF IMPAIRMENT INCOME BENEFITS.
(a) On approval by the commissioner of a written request received
from an employee, an insurance carrier shall accelerate the payment
of impairment income benefits to the employee. The accelerated
payment may not exceed a rate of payment equal to that of the
employee's net preinjury wage.
(b) The commissioner shall approve the request and order the
acceleration of the benefits if the commissioner determines that
the acceleration is:
(1) required to relieve hardship; and
(2) in the overall best interest of the employee.
(c) The duration of the impairment income benefits to which
the employee is entitled shall be reduced to offset the increased
payments caused by the acceleration taking into consideration the
discount for present payment computed at the rate provided under
Section 401.023.
(d) The commissioner may prescribe forms necessary to
implement this section.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.117, eff. September 1,
2005.
SUBCHAPTER H. SUPPLEMENTAL INCOME BENEFITS
§ 408.141. AWARD OF SUPPLEMENTAL INCOME BENEFITS. An
award of a supplemental income benefit, whether by the commissioner
or a court, shall be made in accordance with this subchapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.118, eff. September 1,
2005.
§ 408.1415. WORK SEARCH COMPLIANCE STANDARDS. (a) The
commissioner by rule shall adopt compliance standards for
supplemental income benefit recipients that require each recipient
to demonstrate an active effort to obtain employment. To be
eligible to receive supplemental income benefits under this
chapter, a recipient must provide evidence satisfactory to the
division of:
(1) active participation in a vocational
rehabilitation program conducted by the Department of Assistive and
Rehabilitative Services or a private vocational rehabilitation
provider;
(2) active participation in work search efforts
conducted through the Texas Workforce Commission; or
(3) active work search efforts documented by job
applications submitted by the recipient.
(b) In adopting rules under this section, the commissioner
shall:
(1) establish the level of activity that a recipient
should have with the Texas Workforce Commission and the Department
of Assistive and Rehabilitative Services;
(2) define the number of job applications required to
be submitted by a recipient to satisfy the work search
requirements; and
(3) consider factors affecting the availability of
employment, including recognition of access to employment in rural
areas, economic conditions, and other appropriate employment
availability factors.
(c) The commissioner may consult with the Texas Workforce
Commission, the Department of Assistive and Rehabilitative
Services, and other appropriate entities in adopting rules under
this section.
Added by Acts 2005, 79th Leg., Ch. 265, § 3.119, eff. September
1, 2005.
§ 408.142. SUPPLEMENTAL INCOME BENEFITS. (a) An
employee is entitled to supplemental income benefits if on the
expiration of the impairment income benefit period computed under
Section 408.121(a)(1) the employee:
(1) has an impairment rating of 15 percent or more as
determined by this subtitle from the compensable injury;
(2) has not returned to work or has returned to work
earning less than 80 percent of the employee's average weekly wage
as a direct result of the employee's impairment;
(3) has not elected to commute a portion of the
impairment income benefit under Section 408.128; and
(4) has complied with the requirements adopted under
Section 408.1415.
(b) If an employee is not entitled to supplemental income
benefits at the time of payment of the final impairment income
benefit because the employee is earning at least 80 percent of the
employee's average weekly wage, the employee may become entitled to
supplemental income benefits at any time within one year after the
date the impairment income benefit period ends if:
(1) the employee earns wages for at least 90 days that
are less than 80 percent of the employee's average weekly wage;
(2) the employee meets the requirements of Subsections
(a)(1), (3), and (4); and
(3) the decrease in earnings is a direct result of the
employee's impairment from the compensable injury.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.1195, eff. September 1,
2005.
§ 408.143. EMPLOYEE STATEMENT. (a) After the
commissioner's initial determination of supplemental income
benefits, the employee must file a statement with the insurance
carrier stating:
(1) that the employee has earned less than 80 percent
of the employee's average weekly wage as a direct result of the
employee's impairment;
(2) the amount of wages the employee earned in the
filing period provided by Subsection (b); and
(3) that the employee has complied with the
requirements adopted under Section 408.1415.
(b) The statement required under this section must be filed
quarterly on a form and in the manner provided by the
commissioner. The commissioner may modify the filing period as
appropriate to an individual case.
(c) Failure to file a statement under this section relieves
the insurance carrier of liability for supplemental income benefits
for the period during which a statement is not filed.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by:
Acts 2005, 79th Leg., Ch. 265, § 3.120, eff. September 1,
2005.
§ 408.144. COMPUTATION OF SUPPLEMENTAL INCOME
BENEFITS. (a) Supplemental income benefits are calculated
quarterly and paid monthly.
(b) Subject to Section 408.061, the amount of a supplemental
income benefit for a week is equal to 80 percent of the amount
compu