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