Legislature Pushes Forward With Workers' Comp Bills

Wednesday, April 19, 2023 | 0

By Steve Nichols, News Contributor

The 88th Texas Legislature is shifting into high gear to address legislation, including workers’ compensation measures, that are still pending in various committees as lawmakers eye the session's conclusion in May.

Lucinda Saxon, a lobbyist and principal at Texas Star Alliance, said the number of workers’ compensation bills filed this session shows that people are itching to take a look at how the state’s comp system is operating.

At this point in the session, Saxon said, observers can start to see which bills will move forward and which bills will not make it.

“This session’s bills are especially interesting because if a bill doesn’t pass, it doesn’t mean it is dead forever,” Saxon said. “We will likely see a discussion of all these issues during the sunset review of the Texas Department of Insurance’s Division of Workers’ Compensation, which begins in June. That is the evaluation done of every agency every 12 years. TDI and DWC are up for review in the next cycle.”

Several workers’ compensation bills have cleared the first major hurdle and were passed out of the chamber in which they were introduced. Some are up for final votes in the chamber of origin, while others are still waiting for committee action.

The state House of Representatives has already passed a bill relating to benefits for certain members of the Texas military forces. The House voted 146-0 to pass HB 90, by Rep. Jared Patterson, R-Frisco, on April 12.

The measure would establish an assistance payment for certain survivors of a member of the Texas military who died while on active duty.

The Texas Military Department would be required to determine the circumstances under which a member’s death qualifies for benefits and to certify whether a specific member’s death qualifies for payment. Survivors eligible for the payment would include the member's spouse, the child if no surviving spouse, or parent if no surviving spouse or child.

The bill would also add post-traumatic stress disorder as a covered injury under workers' compensation if the condition was caused by one or more events that occurred during a member's state active duty and if a preponderance of evidence indicates that the state active duty events were a leading cause. The bill would establish certain requirements for determining when the injury occurred.

Under the bill, workers' compensation insurers would be required to accelerate and give priority to medical claims for members of the Texas Army National Guard, Texas Air National Guard and Texas State Guard who sustain serious bodily injury while on state active duty.

Further, the bill would require the Department of Insurance to accelerate a contested case hearing or appeal related to the denial of a claim from a member of the Texas military who sustained a serious bodily injury while on state active duty.

The bill, known as the Bishop Evans Act, would take effect Sept. 1 and apply only to deaths or injuries resulting in workers' compensation claims that occurred on or after the effective date of the bill.

The House on Thursday voted 147-0 to pass HB 2314, a bill by Rep. Terry Canales, D-Edinburg, relating to filing death benefits claims.

The bill would simplify the death benefits process by allowing family members to file claims directly through their insurance carrier. Under current statute, to receive death benefits an individual must file a claim directly with the Division of Workers’ Compensation within a year of the person's death.

Navigating workers' compensation can be confusing and family members often believe that they have taken all necessary steps after filing the claim, but legitimate claims are often still denied based on a technicality, according to the bill's proponents. HB 2314 would assist grieving family members and simplify the process by permitting them to file directly with an insurance carrier, according to supporters.

The House on April 5 voted 146-0 to pass HB 2468, by Rep. Dustin Burrows, R-Lubbock, relating to the entitlement of an injured employee to lifetime income benefits under the workers' compensation system.

HB 2468 would amend the Labor Code to revise certain conditions establishing an injured employee's eligibility for lifetime income benefits until death under the Texas Workers' Compensation Act. The bill would:

• Update the description of the compensable condition of an injured employee with a physically traumatic brain injury to specify that such an injury, rather than resulting in incurable insanity or imbecility, is an injury that results in a permanent major neurocognitive disorder for which the employee requires occasional supervision in the performance of routine daily tasks of self-care and that renders the employee permanently unemployable.
• Require that this conclusion regarding the result of the brain injury will be determined using evidence-based medicine.
• Change the type of compensable burn injury from third-degree burns covering the majority of either both hands or one hand and the face to third-degree burns covering the majority of both hands, one hand and one foot, or one hand or foot and the face.

The bill would also make an employee eligible for lifetime indemnity benefits for a serious bodily injury suffered in the course and scope of employment or volunteer service as a first responder if the injury renders the person permanently unemployable.

A detailed analysis of the bill can be found here.

Meanwhile, the Senate on April 12 voted 31-0 to pass SB 1122, by Sen. Charles Schwertner, R-Georgetown, relating to the exclusion from sales and use taxes of certain medical services performed to determine an appropriate level of workers' compensation benefits.

The bill would exempt from sales and use tax medical examinations or services performed under the designated doctor program.

SB 1122 was filed in response to the Comptroller of Public Accounts of the State of Texas' issuance of a private ruling in October 2022 stating that charges for designated doctor examinations are considered "insurance services" and are subject to state sales and use tax.

The ruling imposed an unanticipated requirement for doctors to collect sales tax when performing exams that are ordered by the DWC.

Measures that remain in their chamber of origin include HB 790, by Patterson, relating to certain claims from public safety workers.

The bill would amend the Labor Code relating to certain claims for benefits, compensation or assistance by public safety employees and survivors of certain public safety employees covered by the bill.

Additionally, this bill would provide for a party or witness to attend a contested case hearing by telephone or videoconference, should an administrative law judge determine that good cause exists. An attorney in a contested case hearing could appear by telephone or video conference without needing a good cause determination.

The bill would require that 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.

The bill would require an insurance carrier that denies a claim to notify DWC and the employee of the specific reasons why it is contesting the claim, including any disputes in the cause of the injury, the extent of the injury or its treatment.

The bill would take effect immediately if it receives a vote of two-thirds of all members from both chambers; otherwise, the bill will take effect Sept. 1.

HB 102, by Rep. Senfronia Thompson, D-Houston, relating to the recovery of exemplary damages based on a compensable death under the Texas Workers' Compensation Act, is also awaiting action in the House.

The bill would amend Section 408.001(b) of the Labor Code by adding the estate of a deceased employee as able to recover exemplary damages when the death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.

Another bill pending House action is HB 679, by Rep. Keith Bell, R-Forney, relating to limitations on the use of experience modifier values in soliciting and awarding public and private construction contracts.

The bill would add a voidable contract provision to Chapter 272 of the Business & Commerce Code.

Another bill awaiting final action in the House is HB 2534, by Rep. Chris Turner, D-Grand Prairie, relating to the confidentiality of working papers and electronic communications of administrative law judges and appeals judges under the workers' compensation system.

The bill would amend the Labor Code to exempt from disclosure under state public information law the following working papers and electronic communications of an administrative law judge or appeals judge created in connection with conducting contested case hearings on workers' compensation claims or related appeals to the appeals panel:

• Notes and electronic communications recording the observations, thoughts, questions, deliberations or impressions of an administrative law judge or appeals judge.
• Drafts of a decision.
• Drafts of an order.

The bill would apply to a document or electronic communication created by an administrative law judge or appeals judge before, on or after the bill's effective date.

The DWC requested the bill, saying the ability of a party to request working papers, draft decisions and electronic communications may hinder a judge's ability to fully consider and analyze a case and have a chilling effect on the work process.

The House Business and Industry Committee heard testimony on a handful of bills Monday, but committee action on those measures was not immediately available.

Bills the committee heard include:

• HB 1240, by Rep. Tom Oliverson, R-Cypress, which would provide that a physician may delegate to any qualified and properly trained person acting under the physician’s supervision the act of administering dangerous drugs in the physician’s office, as ordered by the physician, that are used or required to meet the immediate needs of the physician’s patients or the act of providing or dispensing dangerous drugs as ordered by the physician to the patients.
• HB 4147, by Houston Democrat Thompson, would amend Subchapter B, Chapter 501 of the Labor Code, adding Section 501.027, which addresses workers' compensation insurance coverage of a post-traumatic stress disorder for a first responder. The bill would apply to a PTSD claim filed by a person licensed under Chapter 773 of the Health and Safety Code, as an emergency care attendant, emergency medical technician, emergency medical technician-intermediate, emergency medical technician-paramedic or licensed paramedic or a firefighter subject to certification by the Texas Commission on Fire Protection under Chapter 419 of the Government Code whose principal duties are firefighting and aircraft crash and rescue.
• HB 4389, by Rep. Sheryl Cole, D-Austin, which would replace the current maintenance tax paid by insurance carriers with a surcharge that would fund the regulation of workers’ compensation. The bill would allow an insurance company to recover a surcharge by reflecting it as an expense in a rate filing or by charging the insurer’s policyholders.
• HB 4524, by Rep. Salman Bhojani, D-Euless, which would provide that a medical examination conducted to certify maximum medical improvement or assign an impairment rating may be performed using telehealth services or telemedicine medical services. The bill would require that a health care professional must be physically present in the room in which the employee is located to assist the certifying doctor in conducting the examination and administering any necessary testing. The health care professional present in the rooms could be an individual licensed, certified or otherwise authorized to administer health care, for profit or otherwise, in the ordinary course of business or professional practice. A health care professional would not be required to be physically present in the room during a medical examination performed using telehealth services or telemedicine medical services as provided by Subsection (i) that is conducted to assign an impairment rating if a doctor has certified maximum medical improvement, and based on the examination, has concluded there was no possibility of impairment.

The committee also heard testimony on HB 4859, by Rep. Hugh Shine, R-Temple, relating to discontinuing group self-insurance coverage and dissolving the Texas self-insurance group guaranty fund and trust fund under the Texas Workers' Compensation Act.

The Senate Business & Commerce Committee considered a companion bill, SB 2269, by Sen. Charles Perry, R-Lubbock, during a hearing Thursday. The vote has not been reported, nor has the bill been updated to reflect that it was voted out of committee.

Lawmakers have until the end of May to finish the people’s business.

The deadline for committees in the House of Representatives to consider House bills and resolutions is May 11. The deadline for the Senate to consider all bills and resolutions is May 24. However, the Senate can suspend its rules as necessary to consider and pass legislation.

The Texas Legislature's session will end May 29.

Gov. Gregg Abbott has until June 18 to sign or veto bills. Measures that don’t take effect immediately or have a specific effective date will become law on Aug. 28.

Other dates of interest for the 2023 legislative session can be found here.