By: Lucio S.B. No. 394
A BILL TO BE ENTITLED
AN ACT
relating to the appointment of an attorney for a workers'
compensation claimant in certain proceedings initiated by a
workers' compensation insurance carrier.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter G, Chapter 410, Labor Code, is
amended by adding Section 410.309 to read as follows:
Sec. 410.309. APPOINTMENT OF ATTORNEY FOR CLAIMANT IN
PROCEEDING INITIATED BY INSURANCE CARRIER. (a) In a trial
initiated by an insurance carrier under this subchapter, at the
request of the claimant the court shall appoint an attorney to
represent the claimant before the court. The court may hold a
pretrial hearing to determine whether the claimant made a good
faith effort to obtain representation by an attorney before the
appointment of an attorney.
(b) The insurance carrier is liable for the attorney's
reasonable and necessary fees as determined by the jury in the case,
or by the trial judge when a jury is not requested, in accordance
with Section 408.221(c) on any issue on which the claimant
prevails.
(c) The subsequent injury fund is liable for the attorney's
reasonable and necessary fees as determined by the jury in the case,
or by the trial judge when a jury is not requested, in accordance
with Section 408.221(c-1) on any issue on which the insurance
carrier prevails.
SECTION 2. Section 408.221, Labor Code, is amended by
amending Subsections (b) and (i) and adding Subsection (c-1) to
read as follows:
(b) Except as otherwise provided, an attorney's fee under
this section is based on the attorney's time and expenses according
to written evidence presented to the division or court. Except as
provided by Subsection (c) or (c-1) or Section 408.147(c), the
attorney's fee shall be paid from the claimant's recovery.
(c-1) In a judicial review proceeding initiated by an
insurance carrier under Subchapter G, Chapter 410, in which the
court has appointed an attorney for the claimant under Section
410.309, the subsequent injury fund is liable for the attorney's
reasonable and necessary fees as provided by Subsection (d) on any
issue on which the insurance carrier prevails. If the insurance
carrier appeals multiple issues and the insurance carrier prevails
on some, but not all, of the issues appealed, the court shall
apportion and award fees to the claimant's court-appointed attorney
from the subsequent injury fund only for issues on which the
insurance carrier prevails. In making that apportionment, the
court shall consider the factors prescribed by Subsection (d). An
award of attorney's fees under this subsection is not subject to
commissioner rules adopted under Subsection (f).
(i) Except as provided by Subsection (c) or (c-1) or Section
408.147(c), an attorney's fee may not exceed 25 percent of the
claimant's recovery.
SECTION 3. Subsection (b), Section 403.006, Labor Code, is
amended to read as follows:
(b) The subsequent injury fund is liable for:
(1) the payment of compensation as provided by Section
408.162;
(2) reimbursement of insurance carrier claims of
overpayment of benefits made under an interlocutory order or
decision of the commissioner as provided by this subtitle,
consistent with the priorities established by rule by the
commissioner;
(3) reimbursement of insurance carrier claims as
provided by Sections 408.042 and 413.0141, consistent with the
priorities established by rule by the commissioner; [and]
(4) the reimbursement of an insurance carrier as
provided by Section 408.0041(f-1); and
(5) the payment of court-appointed attorney's fees as
provided by Section 408.221(c-1).
SECTION 4. The change in law made by this Act applies only
to a trial or judicial review proceeding initiated under Subchapter
G, Chapter 410, Labor Code, on or after the effective date of this
Act. A trial or judicial review proceeding initiated before that
date is governed by the law in effect on the date the trial or
judicial review proceeding was initiated, and the former law is
continued in effect for that purpose.
SECTION 5. This Act does not make an appropriation. A
provision in this Act that creates a new governmental program,
creates a new entitlement, or imposes a new duty on a governmental
entity is not mandatory during a fiscal period for which the
legislature has not made a specific appropriation to implement the
provision. This section does not apply if this Act does not require
an appropriation.
SECTION 6. This Act takes effect September 1, 2009.