82R1037 RWG-D
By: Lucio S.B. No. 93
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 has 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. 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 4. The change in law made by this Act applies only
to a proceeding initiated under Subchapter G, Chapter 410, 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 5. This Act takes effect September 1, 2011.