82R18674 RWG-F
By: Smithee H.B. No. 3362
Substitute the following for H.B. No. 3362:
By: Cook C.S.H.B. No. 3362
A BILL TO BE ENTITLED
AN ACT
relating to the appointment of an attorney for a workers'
compensation claimant in certain proceedings.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 403.006(b), 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 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, or Subchapter C,
Chapter 413, in which the court has appointed an attorney for the
claimant under Section 410.309 or 413.033, 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. 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 has made a good
faith effort to obtain representation by an attorney before the
appointment of an attorney. A claimant who did not prevail in an
administrative proceeding before the division:
(1) is not entitled to a court-appointed attorney; and
(2) may recover reasonable and necessary attorney's
fees and expenses incurred in a trial initiated by the claimant in
which the claimant prevails as provided by Subsection (b).
(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-1) 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 4. Subchapter C, Chapter 413, Labor Code, is
amended by adding Section 413.033 to read as follows:
Sec. 413.033. 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 has made a good
faith effort to obtain representation by an attorney before the
appointment of an attorney. A claimant who did not prevail in an
administrative proceeding before the division:
(1) is not entitled to a court-appointed attorney; and
(2) may recover reasonable and necessary attorney's
fees and expenses incurred in a trial initiated by the claimant in
which the claimant prevails as provided by Subsection (b).
(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-1) 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 5. The change in law made by this Act applies only
to a proceeding initiated under Subchapter G, Chapter 410, Labor
Code, or Subchapter C, Chapter 413, Labor Code, on or after the
effective date of this Act. A proceeding initiated before that date
is governed by the law in effect on the date the proceeding was
initiated, and the former law is continued in effect for that
purpose.
SECTION 6. This Act takes effect September 1, 2011.