Texas Workers' Compensation Legal Developments 2019

Heading into the 2019 Texas Legislature, conventional wisdom was few workers’ compensation related bills would be filed or eventually passed during the session. System participants anticipated much of the legislature’s attention would be focused on first responder benefit issues. Ultimately, the legislature considered nearly 60 workers’ compensation related bills and as expected very few passed. Of those that passed, the significant changes related to first responder benefits and cancer presumptions for firefighters and emergency medical technicians (EMTs).

Prior to the session, both DWC and OIEC proposed certain biennial recommendations and identified cancer presumption for firefighters and EMTs as an issue for legislative consideration. In addition, the agencies included concerns about reimbursement of medical treatment for injured workers who suffered traumatic injuries and were treated at federal medical treatment facilities. Due to difference in the Texas workers’ compensation system medical fee rules and federal medical fees, injured workers were being billed for amounts not covered under the state’s fee guidelines. Both of these issues, and others, are addressed in the legislation summarized below.

The following is a brief overview of key bills that passed in 2019:

House Bill 387. Work status reports (DWC Form 73) regarding an injured employee's ability to return to work can now be completed and signed by an advanced practice registered nurse licensed in Texas, when the treating doctor delegates the authority to complete the report. Effective 9/1/2019.

House Bill 1665. Deletes the reporting requirement for DWC-84, Exception to Application of Joint Agreement for Certain Building and Construction Workers. The bill amended Labor Code §406.145 (f), and hiring contractors are no longer be required to file the DWC-84 with DWC. Effective for new notifications on or after 5/23/2019.

House Bill 2143. Post-Traumatic Stress Disorder for first responders is now recognized as being compensable if caused by one or more events occurring in the course and scope of the first responder's employment. Effective for injuries occurring on or after 9/1/19.

House Bill 2503. Death benefit eligibility for certain spouses of certain employees killed in the line of duty laws amended to include spouses of persons described by Section 615.003(1), Government Code, or Section 501.001(5) (F) of the Government Code. Amends Sec. 408.183, Labor Code, to include not only first responders but also all law enforcement officers of the state, parole officers, county jail officials, and other similar types of law enforcement and fire fighters. The eligible spouse is entitled to lifetime death benefits even if the spouse remarries. Effective for remarriages occurring on or after 9/1/19.

Senate Bill 619. Sunset Advisory Commission review date for DWC and OIEC changed from September 1, 2021 to September 1, 2023.

Senate Bill 935. Establishes new reimbursement requirements for Federal Military Treatment Facilities (FTMF) who have treated an injured employee and provides that FTMFs are exempt from workers' compensation statutory requirements related to network participation, medical billing, and reimbursements. The reimbursement rates are as provided by federal law. Requires DWC to adopt a rule to establish a separate medical dispute resolution process to resolve disputes over charges billed directly to an injured employee must be adopted. Effective for healthcare services provided by an FMTF on or after 1/1/20.

Senate Bill 1336. Eliminating workers’ compensation relativities. The bill amended the Insurance Code and the Labor Code to remove the requirement for the Texas Department of Insurance (TDI) to establish classification relativities for purposes of the workers' compensation hazard classification system. Among other provisions, the bill removes the requirement that TDI revise the classification system at least once every five years. Effective 9/1/19.

Senate Bill 1582. Amends the Government Code and Labor Code to extend statutory presumptions that certain diseases are work-related to peace officers listed in Texas Code of Criminal Procedures Article 2.12 (presumptions previously applied only to firefighters and emergency medical technicians). The statutory presumptions include smallpox or other diseases that can be immunized, tuberculosis or other respiratory diseases, and heart attacks and strokes. The bill also entitles peace officers to preventative immunization for any disease that they may be exposed to at work. Effective 9/1/19.

Senate Bill 1742. Peer Review, Utilization Review and Independent Review physicians must be of the same or similar specialty as physician who requested, ordered, or provided the medical service under review. Utilization Review Agents must conduct utilization review under the direction of a physician licensed to practice medicine in Texas. In addition, physicians performing utilization, concurrent, or independent review must be licensed in Texas. Effective 9/1/19.

Senate Bill 2551. Amends the Cancer presumption law (Texas Government Code section 607.055) to provide that a firefighter or emergency medical technician, who suffers from cancer resulting in death or total or partial disability, is presumed to have developed the cancer during the course and scope of their employment. The amendment includes 11 specified cancers that will now be covered by the presumption law.

In addition to clarifying cancers subject to the presumption, the bill made other changes. Under certain conditions, a carrier would not be required to comply with deadlines to either initiate benefits payments or provide a notice of refusal. In order to qualify for this exemption, the carrier would need to send both the employee and DWC an explanation within 15 days describing the steps it had taken to investigate the employee's injury and any evidence it believed would be necessary to complete its investigation of the compensability of the injury.

The bill authorizes a self-insured political subdivision or a political subdivision risk pool to establish an account for the payment of lifetime income benefits and death benefits for a compensable injury caused by cancer to a firefighter or EMT.

There are changes to how DWC administers penalties related to cancer presumption claims handling. DWC has to consider certain factors in determining whether to assess an administrative penalty for refusal to pay benefits in response to a claim for compensation under the bill.

Finally, the bill clarifies that political subdivisions do not have sovereign immunity for sanctions, administrative penalties, and other remedies authorized under chapter 415 of the Act. Also, creates liability for attorney fees under Labor Code section 408.221. Effective 6/10/2019 and DWC required to adopt rules by 1/1/20.

DWC has already begun rulemaking for some of the laws, reimbursement at FMTFs and cancer presumption provisions, and will be initiating rulemaking where required for other new laws. You should review the statutory changes and any related administrative rulemaking to ensure compliance.

Conclusion

We hope you find this year’s edition of Texas Workers' Compensation Handbook (LexisNexis) useful and the changes helpful. As always, we welcome any feedback and suggestions to help make this a better Handbook.

Stuart D. Colburn scolburn@downsstanford.com

Albert Betts, Jr. abetts@insurancecouncil.org

Joe R. Anderson JAnderson@bajb.com

© Copyright 2019 LexisNexis. All rights reserved. This article was excerpted from the upcoming Texas Workers' Compensation Handbook, 2020 Edition.