LABOR CODE
CHAPTER 408. WORKERS' COMPENSATION BENEFITS
SUBCHAPTER A. GENERAL PROVISIONS
§ 408.001. EXCLUSIVE REMEDY; EXEMPLARY
DAMAGES. (a) Recovery of workers' compensation benefits is the
exclusive remedy of an employee covered by workers' compensation
insurance coverage or a legal beneficiary against the employer or
an agent or employee of the employer for the death of or a
work-related injury sustained by the employee.
(b) This section does not prohibit the recovery of exemplary
damages by the surviving spouse or heirs of the body of a deceased
employee whose death was caused by an intentional act or omission of
the employer or by the employer's gross negligence.
(c) In this section, "gross negligence" has the meaning
assigned by Section 41.001, Civil Practice and Remedies Code.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.002. SURVIVAL OF CAUSE OF ACTION. A right of
action survives in a case based on a compensable injury that results
in the employee's death.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1991.
§ 408.003. REIMBURSABLE EMPLOYER PAYMENTS; SALARY
CONTINUATION; OFFSET AGAINST INCOME BENEFITS;
LIMITS. (a) After an injury, an employer may:
(1) initiate benefit payments, including medical
benefits; or
(2) on the written request or agreement of the
employee, supplement income benefits paid by the insurance carrier
by an amount that does not exceed the amount computed by subtracting
the amount of the income benefit payments from the employee's net
preinjury wages.
(b) If an injury is found to be compensable and an insurance
carrier initiates compensation, the insurance carrier shall
reimburse the employer for the amount of benefits paid by the
employer to which the employee was entitled under this subtitle.
Payments that are not reimbursed or reimbursable under this section
may be reimbursed under Section 408.127.
(c) The employer shall notify the commission and the
insurance carrier on forms prescribed by the commission of the
initiation of and amount of payments made under this section.
(d) Employer payments made under this section:
(1) may not be construed as an admission of
compensability; and
(2) do not affect the payment of benefits from another
source.
(e) If an employer does not notify the insurance carrier of
the injury in compliance with Section 409.005, the employer waives
the right to reimbursement under this section.
(f) Salary continuation payments made by an employer for an
employee's disability resulting from a compensable injury shall be
considered payment of income benefits for the purpose of
determining the accrual date of any subsequent income benefits
under this subtitle.
(g) If an employer is subject to a contractual obligation
with an employee or group of employees, such as a collective
bargaining agreement or a written agreement or policy, under which
the employer is required to make salary continuation payments, the
employer is not eligible for reimbursement under this section for
those payments.
(h) Payments made as salary continuation or salary
supplementation do not affect the exclusive remedy provisions of
Section 408.001.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 954, § 5, eff. Sept. 1, 1999; Acts
1999, 76th Leg., ch. 1003, § 1, 2, eff. Sept. 1, 1999.
§ 408.004. REQUIRED MEDICAL EXAMINATIONS;
ADMINISTRATIVE VIOLATION. (a) The commission may require an
employee to submit to medical examinations to resolve any question
about:
(1) the appropriateness of the health care received by
the employee; or
(2) similar issues.
(b) The commission may require an employee to submit to a
medical examination at the request of the insurance carrier, but
only after the insurance carrier has attempted and failed to
receive the permission and concurrence of the employee for the
examination. Except as otherwise provided by this subsection, the
insurance carrier is entitled to the examination only once in a
180-day period. The commission may adopt rules that require an
employee to submit to not more than three medical examinations in a
180-day period under specified circumstances, including to
determine whether there has been a change in the employee's
condition, whether it is necessary to change the employee's
diagnosis, and whether treatment should be extended to another body
part or system. The commission by rule shall adopt a system for
monitoring requests made under this subsection by insurance
carriers. That system must ensure that good cause exists for any
additional medical examination allowed under this subsection that
is not requested by the employee. A subsequent examination must be
performed by the same doctor unless otherwise approved by the
commission.
(c) The insurance carrier shall pay for:
(1) an examination required under Subsection (a) or
(b); and
(2) the reasonable expenses incident to the employee
in submitting to the examination.
(d) An injured employee is entitled to have a doctor of the
employee's choice present at an examination required by the
commission at the request of an insurance carrier. The insurance
carrier shall pay a fee set by the commission to the doctor selected
by the employee.
(e) An employee who, without good cause as determined by the
commission, fails or refuses to appear at the time scheduled for an
examination under Subsection (a) or (b) commits a violation. A
violation under this subsection is a Class D administrative
violation. An employee is not entitled to temporary income
benefits, and an insurance carrier may suspend the payment of
temporary income benefits, during and for a period in which the
employee fails to submit to an examination under Subsection (a) or
(b) unless the commission determines that the employee had good
cause for the failure to submit to the examination. The commission
may order temporary income benefits to be paid for the period that
the commission determines the employee had good cause. The
commission by rule shall ensure that an employee receives
reasonable notice of an examination and of the insurance carrier's
basis for suspension of payment, and that the employee is provided a
reasonable opportunity to reschedule an examination missed by the
employee for good cause.
(f) If the report of a doctor selected by an insurance
carrier indicates that an employee can return to work immediately
or has reached maximum medical improvement, the insurance carrier
may suspend or reduce the payment of temporary income benefits on
the 14th day after the date on which the insurance carrier files a
notice of suspension with the commission as provided by this
subsection. The commission shall hold an expedited benefit review
conference, by personal appearance or by telephone, not later than
the 10th day after the date on which the commission receives the
insurance carrier's notice of suspension. If a benefit review
conference is not held by the 14th day after the date on which the
commission receives the insurance carrier's notice of suspension,
an interlocutory order, effective from the date of the report
certifying maximum medical improvement, is automatically entered
for the continuation of temporary income benefits until a benefit
review conference is held, and the insurance carrier is eligible
for reimbursement for any overpayment of benefits as provided by
Chapter 410. The commission is not required to automatically
schedule a contested case hearing as required by Section 410.025(b)
if a benefit review conference is scheduled under this subsection.
If a benefit review conference is held not later than the 14th day,
the commission may enter an interlocutory order for the
continuation of benefits, and the insurance carrier is eligible for
reimbursement for any overpayments of benefits as provided by
Chapter 410. The commission shall adopt rules as necessary to
implement this subsection under which:
(1) an insurance carrier is required to notify the
employee and the treating doctor of the suspension of benefits
under this subsection by certified mail or another verifiable
delivery method;
(2) the commission makes a reasonable attempt to
obtain the treating doctor's opinion before the commission makes a
determination regarding the entry of an interlocutory order; and
(3) the commission may allow abbreviated contested
case hearings by personal appearance or telephone to consider
issues relating to overpayment of benefits under this section.
(g) An insurance carrier who unreasonably requests a
medical examination under Subsection (b) commits a violation. A
violation under this subsection is a Class B administrative
violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1997, 75th Leg., ch. 1133, § 1, 2, eff. Sept. 1, 199;
Acts 1999, 76th Leg., ch. 1426, § 8, eff. Jan. 1, 2000; Acts
2001, 77th Leg., ch. 1456, § 5.01, eff. June 17, 2001.
§ 408.0041. DESIGNATED DOCTOR EXAMINATION. (a) At the
request of an insurance carrier or an employee, the commission
shall order a medical examination to resolve any question about:
(1) the impairment caused by the compensable injury;
or
(2) the attainment of maximum medical improvement.
(b) A medical examination requested under Subsection (a)
shall be performed by the next available doctor on the commission's
list of designated doctors whose credentials are appropriate for
the issue in question and the injured employee's medical condition.
The designated doctor doing the review must be trained and
experienced with the treatment and procedures used by the doctor
treating the patient's medical condition, and the treatment and
procedures performed must be within the scope of practice of the
designated doctor. The commission shall assign a designated doctor
not later than the 10th day after the date on which the request
under Subsection (a) is received, and the examination must be
conducted not later than the 21st day after the date on which the
commission 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 commission rules.
(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 staff of the commission 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 commission staff members. The designated doctor may
initiate communication with any doctor 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 commission.
The report of the designated doctor has presumptive weight unless
the great weight 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) If an insurance carrier is not satisfied with the
opinion rendered by a designated doctor under this section, the
insurance carrier may request the commission to order an employee
to attend an examination by a doctor selected by the insurance
carrier. The commission shall allow the insurance carrier
reasonable time to obtain and present the opinion of the doctor
selected under this subsection before the commission makes a
decision on the merits of the issue in question.
(g) The insurance carrier shall pay for:
(1) an examination required under Subsection (a) or
(f); and
(2) the reasonable expenses incident to the employee
in submitting to the examination.
(h) An employee is not entitled to compensation, 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 this chapter unless the
commission determines that the employee had good cause for the
failure to submit to the examination. The commission may order
temporary income benefits to be paid for the period for which the
commission determined that the employee had good cause. The
commission 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.
(i) If the report of a designated doctor indicates that an
employee has reached maximum medical improvement, the insurance
carrier may suspend or reduce the payment of temporary income
benefits immediately.
(j) The employee or the insurance carrier may request that
the commission hold an expedited benefit review conference to
dispute a decision made under this section. The commission shall
adopt rules as necessary to implement this subsection. This
subsection expires September 1, 2003.
Added by Acts 2001, 77th Leg., ch. 1456, § 5.02, eff. June 17,
2001.
§ 408.005. SETTLEMENTS AND AGREEMENTS. (a) A
settlement may not provide for payment of benefits in a lump sum
except as provided by Section 408.128.
(b) An employee's right to medical benefits as provided by
Section 408.021 may not be limited or terminated.
(c) A settlement or agreement resolving an issue of
impairment:
(1) may not be made before the employee reaches
maximum medical improvement; and
(2) must adopt an impairment rating using the
impairment rating guidelines described by Section 408.124.
(d) A settlement must be signed by the director of the
division of hearings and all parties to the dispute.
(e) The director of the division of hearings shall approve a
settlement if the director is satisfied that:
(1) the settlement accurately reflects the agreement
between the parties;
(2) the settlement reflects adherence to all
appropriate provisions of law and the policies of the commission;
and
(3) under the law and facts, the settlement is in the
best interest of the claimant.
(f) A settlement that is not approved or rejected before the
16th day after the date the settlement is submitted to the director
of the division of hearings is considered to be approved by the
director on that date.
(g) A settlement takes effect on the date it is approved by
the director of the division of hearings.
(h) A party to a settlement may withdraw acceptance of the
settlement at any time before its effective date.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.006. MENTAL TRAUMA INJURIES. (a) It is the
express intent of the legislature that nothing in this subtitle
shall be construed to limit or expand recovery in cases of mental
trauma injuries.
(b) A mental or emotional injury that arises principally
from a legitimate personnel action, including a transfer,
promotion, demotion, or termination, is not a compensable injury
under this subtitle.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.007. DATE OF INJURY FOR OCCUPATIONAL DISEASE. For
purposes of this subtitle, the date of injury for an occupational
disease is the date on which the employee knew or should have known
that the disease may be related to the employment.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.008. COMPENSABILITY OF HEART ATTACKS. A heart
attack is a compensable injury under this subtitle only if:
(1) the attack can be identified as:
(A) occurring at a definite time and place; and
(B) caused by a specific event occurring in the
course and scope of the employee's employment;
(2) the preponderance of the medical evidence
regarding the attack indicates that the employee's work rather than
the natural progression of a preexisting heart condition or disease
was a substantial contributing factor of the attack; and
(3) the attack was not triggered solely by emotional
or mental stress factors, unless it was precipitated by a sudden
stimulus.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER B. MEDICAL BENEFITS
§ 408.021. ENTITLEMENT TO MEDICAL BENEFITS. (a) An
employee who sustains a compensable injury is entitled to all
health care reasonably required by the nature of the injury as and
when needed. The employee is specifically entitled to health care
that:
(1) cures or relieves the effects naturally resulting
from the compensable injury;
(2) promotes recovery; or
(3) enhances the ability of the employee to return to
or retain employment.
(b) Medical benefits are payable from the date of the
compensable injury.
(c) Except in an emergency, all health care must be approved
or recommended by the employee's treating doctor.
(d) An insurance carrier's liability for medical benefits
may not be limited or terminated by agreement or settlement.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.022. SELECTION OF DOCTOR. (a) Except in an
emergency, the commission shall require an employee to receive
medical treatment from a doctor chosen from a list of doctors
approved by the commission. A doctor may perform only those
procedures that are within the scope of the practice for which the
doctor is licensed. The employee is entitled to the employee's
initial choice of a doctor from the commission's list.
(b) If an employee is dissatisfied with the initial choice
of a doctor from the commission's list, the employee may notify the
commission and request authority to select an alternate doctor.
The notification must be in writing stating the reasons for the
change, except notification may be by telephone when a medical
necessity exists for immediate change.
(c) The commission shall prescribe criteria to be used by
the commission in granting the employee authority to select an
alternate doctor. The criteria may include:
(1) whether treatment by the current doctor is
medically inappropriate;
(2) the professional reputation of the doctor;
(3) whether the employee is receiving appropriate
medical care to reach maximum medical improvement; and
(4) whether a conflict exists between the employee and
the doctor to the extent that the doctor-patient relationship is
jeopardized or impaired.
(d) A change of doctor may not be made to secure a new
impairment rating or medical report.
(e) For purposes of this section, the following is not a
selection of an alternate doctor:
(1) a referral made by the doctor chosen by the
employee if the referral is medically reasonable and necessary;
(2) the receipt of services ancillary to surgery;
(3) the obtaining of a second or subsequent opinion
only on the appropriateness of the diagnosis or treatment;
(4) the selection of a doctor because the original
doctor:
(A) dies;
(B) retires; or
(C) becomes unavailable or unable to provide
medical care to the employee; or
(5) a change of doctors required because of a change of
residence by the employee.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.0221. REGIONAL HEALTH CARE DELIVERY NETWORKS;
ADVISORY COMMITTEE. (a) In this section:
(1) "Advisory committee" means the Health Care Network
Advisory Committee.
(2) "Regional network" means a regional workers'
compensation health care delivery network established by the
commission under this section.
(b) The regional networks established under this section
shall be fee-for-service networks designed to improve the quality
and reduce the cost of health care, with active health care
management and monitoring and a full range of health care services
under contract as considered feasible under the feasibility study
required under Subsection (d).
(c) The Health Care Network Advisory Committee is
established to advise the commission on the implementation of this
section and Section 408.0222. Members of the advisory committee
are appointed by the governor for staggered two-year terms, with
the membership as follows:
(1) three employee representatives recommended by a
recognized statewide labor federation;
(2) three employer representatives;
(3) three ex officio insurance carrier
representatives, with one member representing state agencies, one
member representing the Texas Workers' Compensation Insurance
Fund, and one member representing a voluntary market insurance
carrier;
(4) three ex officio health care provider
representatives;
(5) one ex officio independent actuarial expert; and
(6) the commission's medical advisor, who shall serve
as chair of the advisory committee.
(d) The commission, on behalf of the advisory committee
established under this section, shall establish and, through
competitive procurement, contract with regional networks for the
provision of health care under this subtitle. The commission
shall, through competitive procurement, contract with one or more
entities to determine the feasibility of, develop, and evaluate the
regional networks established under this section. Those entities
shall also recommend to the advisory committee appropriate network
standards and application requirements and assist the advisory
committee during the procurement process. The provision of health
care under this subtitle shall not apply to prescription medication
or services as defined by Section 401.011(19), Subsection (e),
Labor Code.
(e) The advisory committee shall make recommendations to
the commission regarding:
(1) the development of the standards by which health
care services are provided through regional networks;
(2) regional network application requirements and
fees;
(3) contract proposals;
(4) the feasibility of establishing one or more
regional networks using a phased implementation and evaluation
process;
(5) the use of consultants as necessary to assist the
commission in the procurement of regional network contracts; and
(6) the selection of administrators to build and
manage the regional networks and to report on their progress.
(f) The advisory committee shall gather information from
other entities, including the Research and Oversight Council on
Workers' Compensation, the Texas Health Care Information Council,
the Texas Department of Insurance, the Texas Department of Health,
and the Employees Retirement System of Texas.
(g) The standards adopted for preferred provider networks
under Article 3.70-3C, Insurance Code, as added by Chapter 1024,
Acts of the 75th Legislature, Regular Session, 1997, apply as
minimum standards for regional health care delivery networks
created under this section and are adopted by reference in this
section except to the extent they are inconsistent with this
subtitle. The advisory committee may also recommend additional
standards, including standards that require:
(1) for each geographic region, access to an adequate
number of health care providers and treating doctors in each
appropriate health care discipline and the professional
specialties within those disciplines and a viable network through:
(A) the use of economic profiling as described by
Article 3.70-3C, Insurance Code, as added by Chapter 1024, Acts of
the 75th Legislature, Regular Session, 1997; and
(B) limitations on the number of providers, as
provided by that article;
(2) the ability of an employee to receive treatment by
a regional network provider within a reasonable amount of time of
the regional network's knowledge of the need or request for
treatment and within a reasonable travel distance for the employee;
(3) a reasonable effort by the regional network to
attract health care providers who reflect the ethnic and cultural
background of the regional employee population;
(4) the availability of board-certified occupational
medicine specialists to provide expertise on disability management
and prevention and treatment of occupational injuries and
illnesses;
(5) accreditation of the regional networks or a
commitment to seek accreditation from a nationally recognized
organization such as the American Accreditation HealthCare
Commission or the National Committee for Quality Assurance;
(6) the use of strict credentialing criteria by
regional networks in the selection and deselection of its health
care providers, including verification that the provider:
(A) is on the commission's list of approved
doctors, if the provider is required to be on that list;
(B) has not, at the time of selection or
deselection, been sanctioned or made subject to additional
utilization review requirements by the commission;
(C) is not, at the time of selection or
deselection, subject to sanctions or substantive practice
restrictions imposed by the provider's licensing authority;
(D) has or is able to obtain practice privileges,
if required, at a participating hospital; and
(E) is covered by professional liability
insurance coverage as required by the regional network contract;
(7) satisfactory evidence of the regional network's
ability to comply with any financial requirements and ensure
delivery of services;
(8) compliance with ongoing training and educational
requirements established by the commission;
(9) the use of nationally recognized, scientifically
valid, and outcome-based treatment standards as guidelines for
health care;
(10) disclosure of the availability of interpreter
services as appropriate for the evaluation and treatment of
employees;
(11) timely and accurate reporting of data to
appropriately manage and determine the effectiveness of the
regional network in reducing medical costs and ensuring quality of
care;
(12) a process for reconsideration of medical
necessity denials and dispute resolution within the regional
network; and
(13) a process for reviewing requests for a change in
treating doctors made under Section 408.0222(s).
(h) The advisory committee and the Research and Oversight
Council on Workers' Compensation shall develop evaluation
standards and specifications as necessary to implement a regional
network report card. The commission shall ensure that the report
card is published and available for inspection. The commission may
procure services as necessary to produce the report card. The
report card, at a minimum, must be based on contracted reviews and
must include a risk-adjusted evaluation of:
(1) employee access to care;
(2) coordination of care and return to work;
(3) communication among system participants;
(4) return-to-work outcomes;
(5) health-related outcomes;
(6) employee, health care provider, employer, and
insurance carrier satisfaction;
(7) disability and re-injury prevention;
(8) appropriate clinical care;
(9) health care costs;
(10) utilization of health care; and
(11) statistical outcomes of medical dispute
resolution provided by independent review organizations.
(i) The regional network administrators shall report
quarterly to the commission and the advisory committee on the
progress of implementing the regional networks and shall submit
consolidated annual reports. The Research and Oversight Council on
Workers' Compensation shall report to the legislature by January 1
of each odd-numbered year on the status of the implementation of
regional networks under this section.
(j) The commission shall ensure that regional network
contracts provide that insurance carriers have reasonable rights to
conduct audits under this subsection. Insurance carriers
participating in the regional network shall be allowed the
opportunity for consolidated audits of the regional networks.
(k) The cost of assessing the feasibility of, developing,
and evaluating the regional networks created under this section
shall be funded through an assessment on the subsequent injury fund
established under Section 403.006. This cost may not exceed a total
of $1.5 million for the regional networks. The cost of ongoing
regional network administration and management services shall be
included in the fees for health care services paid by insurance
carriers participating in the regional network.
(l) Based on the information compiled for the annual reports
submitted under Subsection (i), the regional network
administrators, in consultation with actuaries with whom the
regional networks contract, shall determine on an annual basis any
cost savings to the operation of the workers' compensation system
derived from the use of the regional networks and the amount of
those savings.
Added by Acts 2001, 77th Leg., ch. 1456, § 2.01, eff. June 17,
2001.
§ 408.0222. PARTICIPATION IN REGIONAL NETWORK;
SELECTION OF DOCTOR WITHIN REGIONAL NETWORK; BENEFIT
INCENTIVES. (a) An insurance carrier or a self-insurer certified
to provide workers' compensation coverage in this state may elect
to participate or not participate, by contract, in a regional
network established under Section 408.0221. A public employer
covered under Subtitle C of this title, other than an employer
covered under Chapter 504, is required to participate in a regional
network established under Section 408.0221. An insurance carrier
who elects to participate in regional networks agrees to abide by
the terms of the regional network contracts between the commission
and the regional networks.
(b) An insurance carrier may limit its election to
participate in a regional network established under Section
408.0221 to a particular employer or a particular region of this
state. This subsection expires January 1, 2006.
(c) A health care provider participating in a regional
network established under Section 408.0221 may perform only those
procedures that are within the scope of the practice for which the
health care provider is licensed.
(d) An employee may elect to participate or not participate
in a regional network established under Section 408.0221. Only an
employee covered by an insurance carrier who has elected to
participate in a regional network established under Section
408.0221 may elect to participate in that regional network. An
eligible employee may elect to participate or not participate in
the regional network for each compensable injury sustained by the
employee. Except as provided by this section, the employee's
election to participate in the network is effective for all medical
care related to that injury. The advisory committee shall make
recommendations and the commission, by rule, shall establish:
(1) the form and manner by which an employee:
(A) receives notice of the employee's rights; or
(B) documents the employee's election or
rescission of a prior election;
(2) the timing and recovery of a payment of enhanced
benefits; and
(3) other related issues.
(e) Except as provided by Subsection (f), an employee shall
make the election described by this section during an
employer-designated enrollment period or at the time of employment.
An employee who has elected to participate in the network may
rescind that election at any time before the earlier of:
(1) the date on which the employee begins to receive
enhanced income benefits under Subsection (m); or
(2) the 14th day after the date on which the employee
receives health care from a network health care provider for that
injury.
(f) An employee may elect to participate in a regional
network established under Section 408.0221 at any time with the
insurance carrier's agreement. An employee is not bound by an
election to participate in a regional network made under Subsection
(d) or this subsection if:
(1) the insurance carrier waives the election;
(2) the commission invalidates the election based on a
determination of coercion;
(3) the employee relocates to an area outside of the
regional network's service area, and the regional network is not
able to identify alternate network providers to provide health care
services reasonable for the employee's medical condition; or
(4) notwithstanding Subsection (n), the commission
sets aside the employee's election based on a finding that:
(A) the worker was bound by an election to
participate in the network;
(B) the carrier disputes the compensability of
the employee's injury; and
(C) network health care providers are unwilling
to provide health care to the employee pending the resolution of the
dispute.
(g) An insurance carrier who elects to participate in a
regional network established under Section 408.0221 shall provide
each employer who obtains coverage through the insurance carrier
with adequate information about the regional network to share with
the employer's employees. Before an employee makes an election
under this section to participate in a regional network, the
employer shall provide the employee with:
(1) a complete, plain-language description of the
regional network's services, restrictions, and benefits, including
a description of the enhanced income benefits that may be due; and
(2) access to the most recent:
(A) list of doctors available through the
regional network; and
(B) regional network report card developed under
Section 408.0221.
(h) An employer shall not discharge, subject to
disciplinary action, or take an adverse employment action against
an employee who elects not to participate in a regional network
created under Section 408.0221 if the employer's action would not
have occurred in the absence of the employee's election not to
participate.
(i) An employee may bring suit against an employer for
violation of Subsection (h) if:
(1) the employee gives written notice of intent to
bring suit to the employer within 60 days of the alleged violation;
and
(2) the employer does not reinstate the employee and
pay actual wages lost and reasonable attorney's fees incurred due
to the employer's action within 60 days of notification of the
employee's intent to bring suit.
(j) The employee must bring suit for an employer's violation
of Subsection (h) within one year of the alleged violation. A suit
under this section may be brought in the county in which:
(1) the plaintiff resides;
(2) the plaintiff was employed; or
(3) the defendant's primary place of business is
located.
(k) If the employee prevails in an action under Subsection
(i), the employee may recover:
(1) lost wages;
(2) reinstatement of front pay as equitable relief in
lieu of reinstatement;
(3) reasonable attorney's fees; and
(4) court costs.
(l) A suit under this section is the exclusive remedy for
violation of Subsection (h), and the provisions of Chapter 451 do
not apply to such a violation. Parties may not maintain an action
under Rule 42, Texas Rules of Civil Procedure.
(m) An employee who elects to participate in a regional
network created under Section 408.0221 shall receive:
(1) notwithstanding Section 408.082(c), income
benefits from the date disability begins if the disability lasts
two weeks or longer; and
(2) notwithstanding Section 408.061, an increased
maximum weekly benefit of up to 150 percent of the state average
weekly wage for temporary income benefits.
(n) Except for emergency care, or as otherwise provided by
this section, an employee who elects to participate in a regional
network shall receive medical treatment, including referrals, from
health care providers within the regional network. An employee or
an employee's treating doctor may use a health care provider
outside of the regional network with the approval of the regional
network for good cause consistent with the regional network
contract. If medically necessary services are not available
through regional network health care providers, the regional
network must, on the request of a regional network health care
provider, within a reasonable time allow a referral to a
nonregional network health care provider and shall fully reimburse
the nonregional network physician or provider at the rate provided
by the commission fee guidelines or an agreed rate. For purposes of
this subsection, "emergency care" has the meaning assigned by
Section 843.002, Insurance Code.
(o) A health care provider who participates in a regional
network created under Section 408.0221 shall be reimbursed and be
subject to utilization review as provided by the regional network
contract. The insurance carrier is responsible for payment of
regional network providers as provided by the contract with the
regional network. A non-network provider who does not obtain the
approval of the regional network to provide services may not be
reimbursed by the insurance carrier, unless the provider requested
and received verification from the insurance carrier that the
employee was not bound by a network election under Subsection (e).
(p) To resolve an issue regarding the necessity or the
appropriateness of care, or referrals to nonregional network
physicians or providers, an employee or an employee's treating
doctor may request a review by an independent review organization
under Section 413.031(d).
(q) An employee who elects to participate in a regional
network established under Section 408.0221 shall select an initial
treating doctor within the regional network as provided by the
regional network contract. An employee who requests to change
treating doctors within the regional network is not subject to
Section 408.022. At the sole discretion of the regional network, an
employee may select a treating doctor outside of the regional
network if:
(1) the employee has a preexisting relationship with a
doctor who maintains the employee's medical records and has a
documented history of treatment before the date of injury; and
(2) that doctor agrees in writing to abide by the
rules, terms, and conditions of the regional network contract,
including an agreement to refer the employee within the regional
network for services available through the regional network.
(r) An employee is subject to the selection of doctor,
change of doctor, and other medical benefit and income benefit
requirements established under this chapter and Chapter 413 if an
employee:
(1) elects not to participate in a regional network
established under Section 408.0221; or
(2) is employed by an employer for whom the insurance
carrier has not elected to participate in a regional network
established under Section 408.0221.
(s) An employee may change treating doctors within the
regional network established under Section 408.0221 in which the
employee is participating in accordance with the regional network
contract and is entitled to:
(1) make one change from the initial treating doctor
to an alternate treating doctor within the regional network unless
the change is for the purpose of securing a new impairment rating or
new determination of maximum medical improvement; and
(2) request additional changes of the treating doctor
in the manner provided by the regional network contract.
(t) An employee or insurance carrier may request that the
commission order an examination under Section 408.0041 if an
employee has received conflicting impairment ratings or
determinations of maximum medical improvement from more than one
treating doctor.
(u) For purposes of this section, the following is not a
selection of an alternate doctor in a regional network established
under Section 408.0221:
(1) a referral made by the doctor chosen by the
employee if the referral is medically reasonable and necessary;
(2) the receipt of services ancillary to surgery;
(3) the obtaining of a second opinion only on the
appropriateness of the diagnosis or treatment;
(4) the selection of a doctor because the original
doctor:
(A) dies;
(B) retires; or
(C) becomes unavailable or unable to provide
medical care to the employee; or
(5) a change of doctor required because of a change of
residence by the employee.
Added by Acts 2001, 77th Leg., ch. 1456, § 2.01, eff. June 17,
2001. Amended by Acts 2003, 78th Leg., ch. 1276, § 10A.536, eff.
Sept. 1, 2003.
§ 408.0223. INSURANCE CARRIER NETWORKS. (a) In this
section, "insurance carrier network" means a voluntary workers'
compensation health care delivery network established by an
insurance carrier. The term does not include a regional network
established under Section 408.0221.
(b) This subtitle does not prohibit an insurance carrier,
whether doing business as an individual carrier or as a group, from
participating in or maintaining voluntary insurance carrier
networks if those voluntary insurance carrier networks allow
selection of doctors as provided by Section 408.022.
(c) This subtitle does not prohibit an insurance carrier
from concurrently participating in an insurance carrier network and
a regional network established under Section 408.0221.
(d) The standards adopted for preferred provider networks
under Article 3.70-3C, Insurance Code, as added by Chapter 1024,
Acts of the 75th Legislature, Regular Session, 1997, and as
subsequently amended, apply as minimum standards for insurance
carrier networks and are adopted by reference in this section
except to the extent those standards are inconsistent with this
subtitle. The advisory committee, defined in Section 408.0221, may
recommend additional standards for insurance carrier networks that
are no more stringent than the additional standards that the
advisory committee recommends for regional health care delivery
networks pursuant to Section 408.0221(g).
(e) The Texas Workers' Compensation Commission shall adopt
rules, as necessary, to implement additional standards for
insurance carrier networks.
Added by Acts 2001, 77th Leg., ch. 1456, § 2.01, eff. June 17,
2001.
§ 408.023. LIST OF APPROVED DOCTORS; DUTIES OF TREATING
DOCTORS. (a) The commission shall develop a list of doctors
licensed in this state who are approved to provide health care
services under this subtitle. Each doctor licensed in this state on
September 1, 2001 , is eligible to be included on the commission's
list of approved doctors if the doctor:
(1) registers with the commission in the manner
prescribed by commission rules; and
(2) complies with the requirements adopted by the
commission under this section.
(b) The commission by rule shall establish reasonable
requirements for doctors and health care providers financially
related to those doctors regarding training, impairment rating
testing, and disclosure of financial interests as required by
Section 413.041, and for monitoring of those doctors and health
care providers as provided by Sections 408.0231 and 413.0512. The
commission by rule shall provide a reasonable period, not to exceed
18 months after the adoption of rules under this section, for
doctors to comply with the registration and training requirements
of this subchapter. Except as otherwise provided by this section,
the requirements under this subsection apply to doctors and other
health care providers who:
(1) provide health care services as treating doctors;
(2) provide health care services as authorized by this
chapter;
(3) perform medical peer review under this subtitle;
(4) perform utilization review of medical benefits
provided under this subtitle; or
(5) provide health care services on referral from a
treating doctor, as provided by commission rule.
(c) The commission shall issue to a doctor who is approved
by the commission a certificate of registration. In determining
whether to issue a certificate of registration, the commission may
consider and condition its approval on any practice restrictions
applicable to the applicant that are relevant to services provided
under this subtitle. The commission may also consider the practice
restrictions of an applicant when determining appropriate
sanctions under Section 408.0231.
(d) A certificate of registration issued under this section
is valid, unless revoked, suspended, or revised, for the period
provided by commission rule and may be renewed on application to the
commission. The commission shall provide notice to each doctor on
the approved doctor list of the pending expiration of the doctor's
certificate of registration not later than the 60th day before the
date of expiration of the certificate .
(e) Notwithstanding other provisions of this section, a
doctor not licensed in this state but licensed in another state or
jurisdiction who treats employees or performs utilization review of
health care for an insurance carrier may apply for a certificate of
registration under this section to be included on the commission's
list of approved doctors.
(f) Except in an emergency or for immediate post-injury
medical care as defined by commission rule, or as provided by
Subsection (h) or (i), each doctor who performs functions under
this subtitle, including examinations under this chapter, must hold
a certificate of registration and be on the list of approved doctors
in order to perform services or receive payment for those services.
(g) The commission by rule shall modify registration and
training requirements for doctors who infrequently provide health
care, who perform utilization review or peer review functions for
insurance carriers, or who participate in regional networks
established under this subchapter, as necessary to ensure that
those doctors are informed of the regulations that affect health
care benefit delivery under this subtitle.
(h) Notwithstanding Section 4(h), Article 21.58A, Insurance
Code, a utilization review agent that uses doctors to perform
reviews of health care services provided under this subtitle may
use doctors licensed by another state to perform the reviews, but
the reviews must be performed under the direction of a doctor
licensed to practice in this state.
(i) The commission may grant exceptions to the requirement
imposed under Subsection (f) as necessary to ensure that:
(1) employees have access to health care; and
(2) insurance carriers have access to evaluations of
an employee's health care and income benefit eligibility as
provided by this subtitle.
(j) The injured employee's treating doctor is responsible
for the efficient management of medical care as required by Section
408.025(c) and commission rules. The commission shall collect
information regarding:
(1) return-to-work outcomes;
(2) patient satisfaction; and
(3) cost and utilization of health care provided or
authorized by a treating doctor on the list of approved doctors.
(k) The commission may adopt rules to define the role of the
treating doctor and to specify outcome information to be collected
for a treating doctor.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.25, eff. Sept. 1, 1995;
Acts 2001, 77th Leg., ch. 1456, § 1.01, eff. Sept. 1, 2001.
§ 408.0231. MAINTENANCE OF LIST OF APPROVED DOCTORS;
SANCTIONS AND PRIVILEGES RELATING TO HEALTH CARE. (a) The
executive director shall delete from the list of approved doctors a
doctor:
(1) who fails to register with the commission as
provided by this chapter and commission rules;
(2) who is deceased;
(3) whose license to practice in this state is
revoked, suspended, or not renewed by the appropriate licensing
authority; or
(4) who requests to be removed from the list.
(b) The commission by rule shall establish criteria for:
(1) deleting or suspending a doctor from the list of
approved doctors;
(2) imposing sanctions on a doctor or an insurance
carrier as provided by this section;
(3) monitoring of utilization review agents, as
provided by a memorandum of understanding between the commission
and the Texas Department of Insurance; and
(4) authorizing increased or reduced utilization
review and preauthorization controls on a doctor.
(c) Rules adopted under Subsection (b) are in addition to,
and do not affect, the rules adopted under Section 415.023(b). The
criteria for deleting a doctor from the list or for recommending or
imposing sanctions may include anything the commission considers
relevant, including:
(1) a sanction of the doctor by the commission for a
violation of Chapter 413 or Chapter 415;
(2) a sanction by the Medicare or Medicaid program
for:
(A) substandard medical care;
(B) overcharging;
(C) overutilization of medical services; or
(D) any other substantive noncompliance with
requirements of those programs regarding professional practice or
billing;
(3) evidence from the commission's medical records
that the applicable insurance carrier's utilization review
practices or the doctor's charges, fees, diagnoses, treatments,
evaluations, or impairment ratings are substantially different
from those the commission finds to be fair and reasonable based on
either a single determination or a pattern of practice;
(4) a suspension or other relevant practice
restriction of the doctor's license by an appropriate licensing
authority;
(5) professional failure to practice medicine or
provide health care, including chiropractic care, in an acceptable
manner consistent with the public health, safety, and welfare;
(6) findings of fact and conclusions of law made by a
court, an administrative law judge of the State Office of
Administrative Hearings, or a licensing or regulatory authority;
or
(7) a criminal conviction.
(d) The commission by rule shall establish procedures under
which a doctor may apply for:
(1) reinstatement to the list of approved doctors; or
(2) restoration of doctor practice privileges removed
by the commission based on sanctions imposed under this section.
(e) The commission shall act on a recommendation by the
medical advisor selected under Section 413.0511 and, after notice
and the opportunity for a hearing, may impose sanctions under this
section on a doctor or an insurance carrier or may recommend action
regarding a utilization review agent. The commission and the Texas
Department of Insurance shall enter into a memorandum of
understanding to coordinate the regulation of insurance carriers
and utilization review agents as necessary to ensure:
(1) compliance with applicable regulations; and
(2) that appropriate health care decisions are reached
under this subtitle and under Article 21.58A, Insurance Code.
(f) The sanctions the commission may recommend or impose
under this section include:
(1) reduction of allowable reimbursement;
(2) mandatory preauthorization of all or certain
health care services;
(3) required peer review monitoring, reporting, and
audit;
(4) deletion or suspension from the approved doctor
list and the designated doctor list;
(5) restrictions on appointment under this chapter;
(6) conditions or restrictions on an insurance carrier
regarding actions by insurance carriers under this subtitle in
accordance with the memorandum of understanding adopted between the
commission and the Texas Department of Insurance regarding Article
21.58A, Insurance Code; and
(7) mandatory participation in training classes or
other courses as established or certified by the commission.
Added by Acts 2001, 77th Leg., ch. 1456, § 1.01, eff. June 17,
2001.
§ 408.024. NONCOMPLIANCE WITH SELECTION
REQUIREMENTS. Except as otherwise provided, and after notice and
an opportunity for hearing, the commission may relieve an insurance
carrier of liability for health care that is furnished by a health
care provider or another person selected in a manner inconsistent
with the requirements of this subchapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.025. REPORTS AND RECORDS REQUIRED FROM HEALTH CARE
PROVIDERS. (a) The commission by rule shall adopt requirements
for reports and records that are required to be filed with the
commission or provided to the injured employee, the employee's
attorney, or the insurance carrier by a health care provider.
(b) The commission by rule shall adopt requirements for
reports and records that are to be made available by a health care
provider to another health care provider to prevent unnecessary
duplication of tests and examinations.
(c) The treating doctor is responsible for maintaining
efficient utilization of health care.
(d) On the request of an injured employee, the employee's
attorney, or the insurance carrier, a health care provider shall
furnish records relating to treatment or hospitalization for which
compensation is being sought. The commission may regulate the
charge for furnishing a report or record, but the charge may not be
less than the fair and reasonable charge for furnishing the report
or record. A health care provider may disclose to the insurance
carrier of an affected employer records relating to the diagnosis
or treatment of the injured employee without the authorization of
the injured employee to determine the amount of payment or the
entitlement to payment.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 1426, § 9, eff. Sept. 1, 1999.
§ 408.026. SPINAL SURGERY. Except in a medical
emergency, an insurance carrier is liable for medical costs related
to spinal surgery only as provided by Section 413.014 and
commission rules.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 1456, § 4.01, eff. June 17, 2001.
§ 408.027. PAYMENT OF HEALTH CARE PROVIDER. (a) An
insurance carrier shall pay the fee allowed under Section 413.011
for a service rendered by a health care provider not later than the
45th day after the date the insurance carrier receives the charge
unless the amount of the payment or the entitlement to payment is
disputed.
(b) If an insurance carrier disputes the amount charged by a
health care provider and requests an audit of the services
rendered, the insurance carrier shall pay 50 percent of the amount
charged by the health care provider not later than the 45th day
after the date the insurance carrier receives the statement of
charge.
(c) If an insurance carrier denies liability or the health
care provider's entitlement to payment and an accident or health
insurance company provides benefits to the employee for medical or
other health care services, the right to recover that amount may be
assigned by the employee to the accident or health insurance
company.
(d) If an insurance carrier disputes the amount of payment
or the health care provider's entitlement to payment, the insurance
carrier shall send to the commission, the health care provider, and
the injured employee a report that sufficiently explains the
reasons for the reduction or denial of payment for health care
services provided to the employee. The insurance carrier is
entitled to a hearing as provided by Section 413.031(d).
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 1426, § 10, eff. Sept. 1, 1999.
§ 408.028. PHARMACEUTICAL SERVICES. (a) A physician
providing care to an employee under this subchapter shall prescribe
for the employee any necessary prescription drugs, and order
over-the-counter alternatives to prescription medications as
clinically appropriate and applicable, in accordance with
applicable state law and as provided by Subsection (b). A doctor
providing care may order over-the-counter alternatives to
prescription medications, when clinically appropriate, in
accordance with applicable state law and as provided by Subsection
(b).
(b) The commission by rule shall develop an open formulary
under Section 413.011 that requires the use of generic
pharmaceutical medications and clinically appropriate
over-the-counter alternatives to prescription medications unless
otherwise specified by the prescribing doctor, in accordance with
applicable state law.
(c) Except as otherwise provided by this subtitle, an
insurance carrier may not require an employee to use pharmaceutical
services designated by the carrier.
(d) The commission shall adopt rules to allow an employee to
purchase over-the-counter alternatives to prescription medications
prescribed or ordered under Subsection (a) or (b) and to obtain
reimbursement from the insurance carrier for those medications.
(e) Notwithstanding Subsection (b), the commission by rule
shall allow an employee to purchase a brand name drug rather than a
generic pharmaceutical medication or over-the-counter alternative
to a prescription medication if a health care provider prescribes a
generic pharmaceutical medication or an over-the-counter
alternative to a prescription medication. The employee shall be
responsible for paying the difference between the cost of the brand
name drug and the cost of the generic pharmaceutical medication or
of an over-the-counter alternative to a prescription medication.
The employee may not seek reimbursement for the difference in cost
from an insurance carrier and is not entitled to use the medical
dispute resolution provisions of Chapter 413 with regard to the
prescription. A payment described by this subsection by an
employee to a health care provider does not violate Section
413.042. This subsection does not affect the duty of a health care
provider to comply with the requirements of Subsection (b) when
prescribing medications or ordering over-the-counter alternatives
to prescription medications.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 1456, § 6.01, eff. June 17, 2001;
Acts 2003, 78th Leg., ch. 468, § 1, eff. Sept. 1, 2003.
§ 408.029. NURSE FIRST ASSISTANT SERVICES. An
insurance carrier may not refuse to reimburse a health care
practitioner solely because that practitioner is a nurse first
assistant, as defined by Section 301.1525, Occupations Code, for a
covered service that a physician providing health care services
under this subtitle has requested the nurse first assistant to
perform.
Added by Acts 2001, 77th Leg., ch. 812, § 9, eff. Sept. 1, 2001.
§ 408.030. REPORTS OF PHYSICIAN VIOLATIONS. If the
commission discovers an act or omission by a physician that may
constitute a felony, a misdemeanor involving moral turpitude, a
violation of a state or federal narcotics or controlled substance
law, an offense involving fraud or abuse under the Medicare or
Medicaid program, or a violation of this subtitle, the commission
shall immediately report that act or omission to the Texas State
Board of Medical Examiners.
Added by Acts 2003, 78th Leg., ch. 202, § 38, eff. June 10, 2003.
SUBCHAPTER C. COMPUTATION OF AVERAGE WEEKLY WAGE
§ 408.041. AVERAGE WEEKLY WAGE. (a) Except as
otherwise provided by this subtitle, the average weekly wage of an
employee who has worked for the employer for at least the 13
consecutive weeks immediately preceding an injury is computed by
dividing the sum of the wages paid in the 13 consecutive weeks
immediately preceding the date of the injury by 13.
(b) The average weekly wage of an employee whose wage at the
time of injury has not been fixed or cannot be determined or who has
worked for the employer for less than the 13 weeks immediately
preceding the injury equals:
(1) the usual wage that the employer pays a similar
employee for similar services; or
(2) if a similar employee does not exist, the usual
wage paid in that vicinity for the same or similar services provided
for remuneration.
(c) If Subsection (a) or (b) cannot reasonably be applied
because the employee's employment has been irregular or because the
employee has lost time from work during the 13-week period
immediately preceding the injury because of illness, weather, or
another cause beyond the control of the employee, the commission
may determine the employee's average weekly wage by any method that
the commission considers fair, just, and reasonable to all parties
and consistent with the methods established under this section.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.042. AVERAGE WEEKLY WAGE FOR PART-TIME EMPLOYEE OR
EMPLOYEE WITH MULTIPLE EMPLOYMENT. (a) The average weekly wage
of a part-time employee who limits the employee's work to less than
a full-time workweek as a regular course of that employee's conduct
is computed as provided by Section 408.041.
(b) For part-time employees not covered by Subsection (a),
the average weekly wage:
(1) for determining temporary income benefits is
computed as provided by Section 408.041; and
(2) for determining impairment income benefits,
supplemental income benefits, lifetime income benefits, and death
benefits is computed as follows:
(A) if the employee has worked for the employer
for at least the 13 weeks immediately preceding the date of the
injury, the average weekly wage is computed by dividing the sum of
the wages paid in the 13 consecutive weeks immediately preceding
the date of the injury by 13 and adjusting that amount to the weekly
wage level the employee would have attained by working a full-time
workweek at the same rate of pay; or
(B) if the employee has worked for the employer
for less than 13 weeks immediately preceding the date of the injury,
the average weekly wage is equal to:
(i) the weekly wage that the employer pays a
similar employee for similar services based on a full-time
workweek; or
(ii) if a similar employee does not exist,
the usual wage paid in that vicinity for the same or similar
services based on a full-time workweek.
(c) For employees with multiple employment, the average
weekly wage for determining temporary income benefits, impairment
income benefits, supplemental income benefits, lifetime income
benefits, and death benefits, is computed as follows:
(1) the average weekly wage for an employee with
multiple employment is equal to the sum of the average weekly wages
computed under Subdivisions (2) and (3);
(2) for each of the employers for whom the employee has
worked for at least the 13 weeks immediately preceding the date of
injury, the average weekly wage is equal to the sum of the wages
paid by that employer to the employee in the 13 weeks immediately
preceding the injury divided by 13;
(3) for each of the employers for whom the employee has
worked for less than the 13 weeks immediately preceding the date of
the injury, the average weekly wage is equal to:
(A) the weekly wage that employer pays similar
employees for similar services; or
(B) if a similar employee does not exist, the
usual weekly wage paid in that vicinity for the same or similar
services; and
(4) the average weekly wage of an employee with
multiple employment who limits the employee's work to less than a
full-time workweek, but does not do so as a regular course of that
employee's conduct, is adjusted to the weekly wage level the
employee would have attained by working a full-time workweek at the
employee's average rate of pay.
(d) The commission shall:
(1) prescribe a form to collect information regarding
the wages of employees with multiple employment; and
(2) by rule, determine the manner by which the
commission collects and distributes wage information to implement
this section.
(e) For an employee with multiple employment, only the
employee's wages that are reportable for federal income tax
purposes may be considered. The employee shall document and verify
wage payments subject to this section.
(f) If the commission determines that computing the average
weekly wage for an employee as provided by Subsection (c) is
impractical or unreasonable, the commission shall set the average
weekly wage in a manner that more fairly reflects the employee's
average weekly wage and that is fair and just to both parties or is
in the manner agreed to by the parties. The commission by rule may
define methods to determine a fair and just average weekly wage
consistent with this section.
(g) An insurance carrier is entitled to apply for and
receive reimbursement at least annually from the subsequent injury
fund for the amount of income benefits paid to a worker under this
section that are based on employment other than the employment
during which the compensable injury occurred. The commission may
adopt rules that govern the documentation, application process, and
other administrative requirements necessary to implement this
subsection.
(h) In this section:
(1) "Employee with multiple employment" means an
employee who has more than one employer.
(2) "Full-time workweek" means a 40-hour workweek.
(3) "Part-time employee" means an employee who, at the
time of the injury, was working less than a full-time workweek for
the employer for whom the employee was working when the compensable
injury occurred.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 1456, § 10.03, eff. June 17, 2001.
§ 408.043. AVERAGE WEEKLY WAGE FOR SEASONAL
EMPLOYEE. (a) For determining the amount of temporary income
benefits of a seasonal employee, the average weekly wage of the
employee is computed as provided by Section 408.041 and is adjusted
as often as necessary to reflect the wages the employee could
reasonably have expected to earn during the period that temporary
income benefits are paid.
(b) For determining the amount of impairment income
benefits, supplemental income benefits, lifetime income benefits,
or death benefits of a seasonal employee, the average weekly wage of
the employee is computed by dividing the amount of total wages
earned by the employee during the 12 months immediately preceding
the date of the injury by 50.
(c) If, for good reason, the commission determines that
computing the average weekly wage for a seasonal employee as
provided by this section is impractical, the commission shall
compute the average weekly wage as of the time of the injury in a
manner that is fair and just to both parties.
(d) In this section, "seasonal employee" means an employee
who, as a regular course of the employee's conduct, engages in
seasonal or cyclical employment that does not continue throughout
the entire year.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.044. AVERAGE WEEKLY WAGE FOR MINOR, APPRENTICE,
TRAINEE, OR STUDENT. (a) For computing impairment income
benefits, supplemental income benefits, lifetime income benefits,
or death benefits, the average weekly wage of an employee shall be
adjusted to reflect the level of expected wages during the period
that the benefits are payable if:
(1) the employee is a minor, apprentice, trainee, or
student at the time of the injury;
(2) the employee's employment or earnings at the time
of the injury are limited primarily because of apprenticeship,
continuing formal training, or education intended to enhance the
employee's future wages; and
(3) the employee's wages would reasonably be expected
to change because of a change of employment during that period.
(b) An adjustment under Subsection (a) may not consider
expected wage levels for a period occurring after the third
anniversary of the date of the injury.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.0445. AVERAGE WEEKLY WAGE FOR MEMBERS OF STATE
MILITARY FORCES AND TEXAS TASK FORCE 1. (a) For purposes of
computing income benefits or death benefits under Section 431.104,
Government Code, the average weekly wage of a member of the state
military forces as defined by Section 431.001, Government Code, who
is engaged in authorized training or duty is an amount equal to the
sum of the member's regular weekly wage at any employment the member
holds in addition to serving as a member of the state military
forces, disregarding any period during which the member is not
fully compensated for that employment because the member is engaged
in authorized military training or duty, and the member's regular
weekly wage as a member of the state military forces, except that
the amount may not exceed 100 percent of the state average weekly
wage as determined under Section 408.047.
(b) For purposes of computing income benefits or death
benefits under Section 88.303, Education Code, the average weekly
wage of a Texas Task Force 1 member, as defined by Section 88.301,
Education Code, who is engaged in authorized training or duty is an
amount equal to the sum of the member's regular weekly wage at any
employment, including self-employment, that the member holds in
addition to serving as a member of Texas Task Force 1, except that
the amount may not exceed 100 percent of the state average weekly
wage as determined under Section 408.047. A member for whom an
average weekly wage cannot be computed shall be paid the minimum
weekly benefit established by the commission.
Added by Acts 1999, 76th Leg., ch. 1205, § 4, eff. Sept. 1, 1999.
Amended by Acts 2003, 78th Leg., ch. 644, § 2, eff. June 20,
2003.
§ 408.0446. AVERAGE WEEKLY WAGE; SCHOOL DISTRICT
EMPLOYEE. (a) For determining the amount of temporary income
benefits of a school district employee under Chapter 504, the
average weekly wage is computed on the basis of wages earned in a
week rather than on the basis of wages paid in a week. The wages
earned in any given week are equal to the amount that would be
deducted from an employee's salary if the employee were absent from
work for one week and the employee did not have personal leave
available to compensate the employee for lost wages for that week.
(b) An insurance carrier may adjust a school district
employee's average weekly wage as often as necessary to reflect the
wages the employee reasonably could expect to earn during the
period for which temporary income benefits are paid. In adjusting a
school district employee's average weekly wage under this
subsection, the insurance carrier may consider any evidence of the
employee's reasonable expectation of earnings.
(c) For determining the amount of impairment income
benefits, supplemental income benefits, lifetime income benefits,
or death benefits of a school district employee under Chapter 504,
the average weekly wage of the employee is computed by dividing the
total amount of wages earned by the employee during the 12 months
immediately preceding the date of the injury by 50.
(d) If the commission determines that computing the average
weekly wage of a school district employee as provided by this
section is impractical because the employee did not earn wages
during the 12 months immediately preceding the date of the injury,
the commission shall compute the average weekly wage in a manner
that is fair and just to both parties.
(e) The commission shall adopt rules as necessary to
implement this section.
Added by Acts 2001, 77th Leg., ch. 1456, § 10.04, eff. June 17,
2001.
§ 408.045. NONPECUNIARY WAGES. The commission may not
include nonpecuniary wages in computing an employee's average
weekly wage during a period in which the employer continues to
provide the nonpecuniary wages.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.046. SIMILAR EMPLOYEES, SERVICES, OR
EMPLOYMENT. For purposes of this subchapter and Subchapter D, the
determination as to whether employees, services, or employment are
the same or similar must include consideration of:
(1) the training and experience of the employees;
(2) the nature of the work; and
(3) the number of hours normally worked.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.047. STATE AVERAGE WEEKLY WAGE. The state average
weekly wage for the fiscal year beginning September 1, 2003, and
ending August 31, 2004, is $537, and for the fiscal year beginning
September 1, 2004, and ending August 31, 2005, is $539.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2003, 78th Leg., ch. 963, § 6, eff. June 20, 2003.
SUBCHAPTER D. COMPUTATION OF BENEFITS
§ 408.061. MAXIMUM WEEKLY BENEFIT. (a) A weekly
temporary income benefit may not exceed 100 percent of the state
average weekly wage under Section 408.047 rounded to the nearest
whole dollar.
(b) A weekly impairment income benefit may not exceed 70
percent of the state average weekly wage rounded to the nearest
whole dollar.
(c) A weekly supplemental income benefit may not exceed 70
percent of the state average weekly wage rounded to the nearest
whole dollar.
(d) A weekly death benefit may not exceed 100 percent of the
state average weekly wage rounded to the nearest whole dollar.
(e) A weekly lifetime income benefit may not exceed 100
percent of the state average weekly wage rounded to the nearest
whole dollar.
(f) The commission shall compute the maximum weekly income
benefits for each state fiscal year not later than September 1 of
each year.
(g) The maximum weekly income benefit in effect on the date
of injury is applicable for the entire time that the benefit is
payable.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.062. MINIMUM WEEKLY INCOME BENEFIT. (a) The
minimum weekly income benefit is 15 percent of the state average
weekly wage as determined under Section 408.047, rounded to the
nearest whole dollar.
(b) The commission shall compute the minimum weekly income
benefit for each state fiscal year not later than September 1 of
each year.
(c) The minimum weekly income benefit in effect on the date
of injury is applicable for the entire time that income benefits are
payable.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.063. WAGE PRESUMPTIONS; ADMINISTRATIVE
VIOLATION. (a) To expedite the payment of income benefits, the
commission may by rule establish reasonable presumptions relating
to the wages earned by an employee, including the presumption that
an employee's last paycheck accurately reflects the employee's
usual wage.
(b) Not later than the 30th day after the date the employer
receives notice of an injury to the employee, the employer shall
file a wage statement showing the amount of all wages paid to the
employee.
(c) An employer who fails to file a wage statement in
accordance with Subsection (b) commits a violation. A violation
under this subsection is a Class D administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.064. INTEREST ON ACCRUED BENEFITS. (a) An order
to pay income or death benefits accrued but unpaid must include
interest on the amount of compensation due at the rate provided by
Section 401.023.
(b) Accrued but unpaid compensation and interest shall be
paid in a lump sum.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER E. INCOME BENEFITS IN GENERAL
§ 408.081. INCOME BENEFITS. (a) An employee is
entitled to income benefits as provided in this chapter.
(b) Except as otherwise provided by this section or this
subtitle, income benefits shall be paid weekly as and when they
accrue without order from the commission. Interest on accrued but
unpaid benefits shall be paid, without order of the commission, at
the time the accrued benefits are paid.
(c) The commission by rule shall establish requirements for
agreements under which income benefits may be paid monthly. Income
benefits may be paid monthly only:
(1) on the request of the employee and the agreement of
the employee and the insurance carrier; and
(2) in compliance with the requirements adopted by the
commission.
(d) An employee's entitlement to income benefits under this
chapter terminates on the death of the employee. An interest in
future income benefits does not survive after the employee's death.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 1426, § 11, eff. Sept. 1, 1999.
§ 408.082. ACCRUAL OF RIGHT TO INCOME
BENEFITS. (a) Income benefits may not be paid under this subtitle
for an injury that does not result in disability for at least one
week.
(b) If the disability continues for longer than one week,
weekly income benefits begin to accrue on the eighth day after the
date of the injury. If the disability does not begin at once after
the injury occurs or within eight days of the occurrence but does
result subsequently, weekly income benefits accrue on the eighth
day after the date on which the disability began.
(c) If the disability continues for four weeks or longer
after the date it begins, compensation shall be computed from the
date the disability begins.
(d) This section does not preclude the recovery of medical
benefits as provided by Subchapter B.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.083. TERMINATION OF RIGHT TO TEMPORARY INCOME,
IMPAIRMENT INCOME, AND SUPPLEMENTAL INCOME BENEFITS. (a) Except
as provided by Subsection (b), an employee's eligibility for
temporary income benefits, impairment income benefits, and
supplemental income benefits terminates on the expiration of 401
weeks after the date of injury.
(b) If an employee incurs an occupational disease, the
employee's eligibility for temporary income benefits, impairment
income benefits, and supplemental income benefits terminates on the
expiration of 401 weeks after the date on which benefits began to
accrue.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.26, eff. Sept. 1, 1995.
§ 408.084. CONTRIBUTING INJURY. (a) At the request of
the insurance carrier, the commission may order that impairment
income benefits and supplemental income benefits be reduced in a
proportion equal to the proportion of a documented impairment that
resulted from earlier compensable injuries.
(b) The commission shall consider the cumulative impact of
the compensable injuries on the employee's overall impairment in
determining a reduction under this section.
(c) If the combination of the compensable injuries results
in an injury compensable under Section 408.161, the benefits for
that injury shall be paid as provided by Section 408.162.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.085. ADVANCE OF BENEFITS FOR HARDSHIP. (a) If
there is a likelihood that income benefits will be paid, the
commission may grant an employee suffering financial hardship
advances as provided by this subtitle against the amount of income
benefits to which the employee may be entitled. An advance may be
ordered before or after the employee attains maximum medical
improvement. An insurance carrier shall pay the advance ordered.
(b) An employee must apply to the commission for an advance
on a form prescribed by the commission. The application must
describe the hardship that is the grounds for the advance.
(c) An advance under this section may not exceed an amount
equal to four times the maximum weekly benefit for temporary income
benefits as computed in Section 408.061. The commission may not
grant more than three advances to a particular employee based on the
same injury.
(d) The commission may not grant an advance to an employee
who is receiving, on the date of the application under Subsection
(b), at least 90 percent of the employee's net preinjury wages under
Section 408.003 or 408.129.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.086. COMMISSION DETERMINATION OF EXTENDED
UNEMPLOYMENT OR UNDEREMPLOYMENT. (a) During the period that
impairment income benefits or supplemental income benefits are
being paid to an employee, the commission shall determine at least
annually whether any extended unemployment or underemployment is a
direct result of the employee's impairment.
(b) To make this determination, the commission may require
periodic reports from the employee and the insurance carrier and,
at the insurance carrier's expense, may require physical or other
examinations, vocational assessments, or other tests or diagnoses
necessary to perform its duty under this section and Subchapter H.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER F. TEMPORARY INCOME BENEFITS
§ 408.101. TEMPORARY INCOME BENEFITS. (a) An employee
is entitled to temporary income benefits if the employee has a
disability and has not attained maximum medical improvement.
(b) On the initiation of compensation as provided by Section
409.021, the insurance carrier shall pay temporary income benefits
as provided by this subchapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.102. DURATION OF TEMPORARY INCOME
BENEFITS. (a) Temporary income benefits continue until the
employee reaches maximum medical improvement.
(b) The commission by rule shall establish a presumption
that maximum medical improvement has been reached based on a lack of
medical improvement in the employee's condition.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.103. AMOUNT OF TEMPORARY INCOME
BENEFITS. (a) Subject to Sections 408.061 and 408.062, the
amount of a temporary income benefit is equal to:
(1) 70 percent of the amount computed by subtracting
the employee's weekly earnings after the injury from the employee's
average weekly wage; or
(2) for the first 26 weeks, 75 percent of the amount
computed by subtracting the employee's weekly earnings after the
injury from the employee's average weekly wage if the employee
earns less than $8.50 an hour.
(b) A temporary income benefit under Subsection (a)(2) may
not exceed the employee's actual earnings for the previous year. It
is presumed that the employee's actual earnings for the previous
year are equal to:
(1) the sum of the employee's wages as reported in the
most recent four quarterly wage reports to the Texas Employment
Commission divided by 52;
(2) the employee's wages in the single quarter of the
most recent four quarters in which the employee's earnings were
highest, divided by 13, if the commission finds that the employee's
most recent four quarters' earnings reported in the Texas
Employment Commission wage reports are not representative of the
employee's usual earnings; or
(3) the amount the commission determines from other
credible evidence to be the actual earnings for the previous year if
the Texas Employment Commission does not have a wage report
reflecting at least one quarter's earnings because the employee
worked outside the state during the previous year.
(c) A presumption under Subsection (b) may be rebutted by
other credible evidence of the employee's actual earnings.
(d) The Texas Employment Commission shall provide
information required under this section in the manner most
efficient for transferring the information.
(e) For purposes of Subsection (a), if an employee is
offered a bona fide position of employment that the employee is
reasonably capable of performing, given the physical condition of
the employee and the geographic accessibility of the position to
the employee, the employee's weekly earnings after the injury are
equal to the weekly wage for the position offered to the employee.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.104. MAXIMUM MEDICAL IMPROVEMENT AFTER SPINAL
SURGERY. (a) On application by either the employee or the
insurance carrier, the commission by order may extend the 104-week
period described by Section 401.011(30)(B) if the employee has had
spinal surgery, or has been approved for spinal surgery under
Section 408.026 and commission rules, within 12 weeks before the
expiration of the 104-week period. If an order is issued under this
section, the order shall extend the statutory period for maximum
medical improvement to a date certain, based on medical evidence
presented to the commission.
(b) Either the employee or the insurance carrier may dispute
an application for extension made under this section. A dispute
under this subsection is subject to Chapter 410.
(c) The commission shall adopt rules to implement this
section, including rules establishing procedures for requesting
and disputing an extension.
Added by Acts 1997, 75th Leg., ch. 1443, § 5, eff. Jan. 1, 1998.
§ 408.105. SALARY CONTINUATION IN LIEU OF TEMPORARY
INCOME BENEFITS. (a) In lieu of payment of temporary income
benefits under this subchapter, an employer may continue to pay the
salary of an employee who sustains a compensable injury under a
contractual obligation between the employer and employee, such as a
collective bargaining agreement, written agreement, or policy.
(b) Salary continuation may include wage supplementation
if:
(1) employer reimbursement is not sought from the
carrier as provided by Section 408.127; and
(2) the supplementation does not affect the employee's
eligibility for any future income benefits.
Added by Acts 1999, 76th Leg., ch. 1003, § 3, eff. Sept. 1, 1999.
SUBCHAPTER G. IMPAIRMENT INCOME BENEFITS
§ 408.121. IMPAIRMENT INCOME BENEFITS. (a) An
employee's entitlement to impairment income benefits begins on the
day after the date the employee reaches maximum medical improvement
and ends on the earlier of:
(1) the date of expiration of a period computed at the
rate of three weeks for each percentage point of impairment; or
(2) the date of the employee's death.
(b) The insurance carrier shall begin to pay impairment
income benefits not later than the fifth day after the date on which
the insurance carrier receives the doctor's report certifying
maximum medical improvement. Impairment income benefits shall be
paid for a period based on the impairment rating, unless that rating
is disputed under Subsection (c).
(c) If the insurance carrier disputes the impairment rating
used under Subsection (a), the carrier shall pay the employee
impairment income benefits for a period based on the carrier's
reasonable assessment of the correct rating.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.122. ELIGIBILITY FOR IMPAIRMENT INCOME BENEFITS;
DESIGNATED DOCTOR. (a) A claimant may not recover impairment
income benefits unless evidence of impairment based on an objective
clinical or laboratory finding exists. If the finding of
impairment is made by a doctor chosen by the claimant and the
finding is contested, a designated doctor or a doctor selected by
the insurance carrier must be able to confirm the objective
clinical or laboratory finding on which the finding of impairment
is based.
(b) To be eligible to serve as a designated doctor, a doctor
must meet specific qualifications, including training in the
determination of impairment ratings. The executive director shall
develop qualification standards and administrative policies to
implement this subsection, and the commission may adopt rules as
necessary. The designated doctor doing the review must be trained
and experienced with the treatment and procedures used by the
doctor treating the patient's medical condition, and the treatment
and procedures performed must be within the scope of practice of the
designated doctor. A designated doctor's credentials must be
appropriate for the issue in question and the injured employee's
medical condition.
(c) The report of the designated doctor has presumptive
weight, and the commission shall base its determination of whether
the employee has reached maximum medical improvement on the report
unless the great weight of the other medical evidence is to the
contrary.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.27, eff. Sept. 1, 1995;
Acts 2001, 77th Leg., ch. 1456, § 5.03, eff. June 17, 2001.
§ 408.123. CERTIFICATION OF MAXIMUM MEDICAL
IMPROVEMENT; EVALUATION OF IMPAIRMENT RATING. (a) After an
employee has been certified by a doctor as having reached maximum
medical improvement, the certifying doctor shall evaluate the
condition of the employee and assign an impairment rating using the
impairment rating guidelines described by Section 408.124. If the
certification and evaluation are performed by a doctor other than
the employee's treating doctor, the certification and evaluation
shall be submitted to the treating doctor, and the treating doctor
shall indicate agreement or disagreement with the certification and
evaluation.
(b) A certifying doctor shall issue a written report
certifying that maximum medical improvement has been reached,
stating the employee's impairment rating, and providing any other
information required by the commission to:
(1) the commission;
(2) the employee; and
(3) the insurance carrier.
(c) If an employee is not certified as having reached
maximum medical improvement before the expiration of 102 weeks
after the date income benefits begin to accrue, the commission
shall notify the treating doctor of the requirements of this
subchapter.
Text of subsec. (d) to (g) as added by Acts 2003, 78th Leg., ch. 278,
§ 1
(d) Except as provided in Subsections (e), (f), and (g), the
first valid certification of maximum medical improvement and the
first valid assignment of impairment rating to an employee are
final if the certification of maximum medical improvement and/or
the assigned impairment rating is not disputed within 90 days after
written notification of the maximum medical improvement and/or
assignment of impairment rating is provided to the claimant and the
carrier by verifiable means.
(e) The first certification of maximum medical improvement
and/or impairment rating may be disputed after the 90-day period
if:
(1) there is compelling medical evidence establishing
the following:
(A) a significant error on the part of the
certifying doctor in applying the appropriate American Medical
Association Guides and/or calculating the impairment rating;
(B) a clear misdiagnosis or a previously
undiagnosed medical condition; or
(C) prior improper or inadequate treatment of the
injury which would render the certification of maximum medical
improvement or impairment rating invalid; or
(2) there are other compelling circumstances as
established by commission rule.
(f) If an employee has not been certified as having reached
maximum medical improvement before the expiration of 104 weeks from
the date on which income benefits begin to accrue or the expiration
of the date of any extension under Section 408.104, the impairment
rating assigned after the end of the 104 weeks or after the end of
the extended period under Section 408.104 is final if the
impairment rating is not disputed within 90 days after written
notification of the maximum medical improvement and/or assignment
of impairment rating is provided to the claimant and the carrier by
verifiable means.
(g) If a disputed certification of maximum medical
improvement or assignment of impairment rating is finally modified,
overturned, or withdrawn, the first subsequent certification and
assignment becomes final if it is not disputed within 90 days after
written notification of maximum medical improvement and/or
assignment of impairment rating is provided to the claimant and the
carrier by verifiable means.
Text of subsec. (d) to (g) as added by Acts 2003, 78th Leg., ch.
1190, § 1 and Acts 2003, 78th Leg., ch. 1323, § 2
(d) Except as otherwise provided by this section, an
employee's first valid certification of maximum medical
improvement and first valid assignment of an impairment rating is
final if the certification or assignment is not disputed before the
91st day after the date written notification of the certification
or assignment is provided to the employee and the carrier by
verifiable means.
(e) An employee's first certification of maximum medical
improvement or assignment of an impairment rating may be disputed
after the period described by Subsection (d) if:
(1) compelling medical evidence exists of:
(A) a significant error by the certifying doctor
in applying the appropriate American Medical Association
guidelines or in calculating the impairment rating;
(B) a clearly mistaken diagnosis or a previously
undiagnosed medical condition; or
(C) improper or inadequate treatment of the
injury before the date of the certification or assignment that
would render the certification or assignment invalid; or
(2) other compelling circumstances exist as
prescribed by commission rule.
(f) If an employee has not been certified as having reached
maximum medical improvement before the expiration of 104 weeks
after the date income benefits begin to accrue or the expiration
date of any extension of benefits under Section 408.104, the
impairment rating assigned after the expiration of either of those
periods is final if the impairment rating is not disputed before the
91st day after the date written notification of the certification
or assignment is provided to the employee and the carrier by
verifiable means. A certification or assignment may be disputed
after the 90th day only as provided by Subsection (e).
(g) If an employee's disputed certification of maximum
medical improvement or assignment of impairment rating is finally
modified, overturned, or withdrawn, the first certification or
assignment made after the date of the modification, overturning, or
withdrawal becomes final if the certification or assignment is not
disputed before the 91st day after the date notification of the
certification or assignment is provided to the employee and the
carrier by verifiable means. A certification or assignment may be
disputed after the 90th day only as provided by Subsection (e).
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2003, 78th Leg., ch. 278, § 1, eff. June 18, 2003; Acts
2003, 78th Leg., ch. 1190, § 1, eff. June 20, 2003; Acts 2003,
78th Leg., ch. 1323, § 2, eff. June 21, 2003.
§ 408.124. IMPAIRMENT RATING GUIDELINES. (a) An award
of an impairment income benefit, whether by the commission or a
court, shall be made on an impairment rating determined using the
impairment rating guidelines described in this section.
(b) For determining the existence and degree of an
employee's impairment, the commission shall use "Guides to the
Evaluation of Permanent Impairment," third edition, second
printing, dated February 1989, published by the American Medical
Association.
(c) Notwithstanding Subsection (b), the commission by rule
may adopt the fourth edition of the "Guides to the Evaluation of
Permanent Impairment," published by the American Medical
Association, for determining the existence and degree of an
employee's impairment.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 1426, § 12, eff. Sept. 1, 1999.
§ 408.125. DISPUTE AS TO IMPAIRMENT RATING. (a) If an
impairment rating is disputed, the commission shall direct the
employee to the next available doctor on the commission's list of
designated doctors, as provided by Section 408.0041.
(b) The designated doctor shall report in writing to the
commission.
(c) The report of the designated doctor shall have
presumptive weight, and the commission shall base the impairment
rating on that report unless the great weight of the other medical
evidence is to the contrary. If the great weight of the medical
evidence contradicts the impairment rating contained in the report
of the designated doctor chosen by the commission, the commission
shall adopt the impairment rating of one of the other doctors.
(d) To avoid undue influence on a person selected as a
designated doctor under this section, only the injured employee or
an appropriate member of the staff of the commission 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
commission staff members. The designated doctor may initiate
communication with any doctor who has previously treated or
examined the injured employee for the work-related injury.
(e) Notwithstanding Subsection (d), the treating doctor and
the insurance carrier are both responsible for sending to the
designated doctor all the injured employee's medical records that
are in their possession and that relate to the issue to be evaluated
by the designated doctor. The treating doctor and the 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 the insurance carrier may also
send the designated doctor an analysis of the injured employee's
medical condition, functional abilities, and return-to-work
opportunities.
(f) A violation of Subsection (d) is a Class C
administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.28, eff. Sept. 1, 1995;
Acts 2001, 77th Leg., ch. 1456, § 5.04, eff. June 17, 2001.
§ 408.126. AMOUNT OF IMPAIRMENT INCOME
BENEFITS. Subject to Sections 408.061 and 408.062, an impairment
income benefit is equal to 70 percent of the employee's average
weekly wage.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.127. REDUCTION OF IMPAIRMENT INCOME
BENEFITS. (a) An insurance carrier shall reduce impairment
income benefits to an employee by an amount equal to employer
payments made under Section 408.003 that are not reimbursed or
reimbursable under that section.
(b) The insurance carrier shall remit the amount of a
reduction under this section to the employer who made the payments.
(c) The commission shall adopt rules and forms to ensure the
full reporting and the accuracy of reductions and reimbursements
made under this section.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.128. COMMUTATION OF IMPAIRMENT INCOME
BENEFITS. (a) An employee may elect to commute the remainder of
the impairment income benefits to which the employee is entitled if
the employee has returned to work for at least three months, earning
at least 80 percent of the employee's average weekly wage.
(b) An employee who elects to commute impairment income
benefits is not entitled to additional income benefits for the
compensable injury.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.129. ACCELERATION OF IMPAIRMENT INCOME
BENEFITS. (a) On approval by the commission of a written request
received from an employee, an insurance carrier shall accelerate
the payment of impairment income benefits to the employee. The
accelerated payment may not exceed a rate of payment equal to that
of the employee's net preinjury wage.
(b) The commission shall approve the request and order the
acceleration of the benefits if the commission determines that the
acceleration is:
(1) required to relieve hardship; and
(2) in the overall best interest of the employee.
(c) The duration of the impairment income benefits to which
the employee is entitled shall be reduced to offset the increased
payments caused by the acceleration taking into consideration the
discount for present payment computed at the rate provided under
Section 401.023.
(d) The commission may prescribe forms necessary to
implement this section.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER H. SUPPLEMENTAL INCOME BENEFITS
§ 408.141. AWARD OF SUPPLEMENTAL INCOME BENEFITS. An
award of a supplemental income benefit, whether by the commission
or a court, shall be made in accordance with this subchapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.142. SUPPLEMENTAL INCOME BENEFITS. (a) An
employee is entitled to supplemental income benefits if on the
expiration of the impairment income benefit period computed under
Section 408.121(a)(1) the employee:
(1) has an impairment rating of 15 percent or more as
determined by this subtitle from the compensable injury;
(2) has not returned to work or has returned to work
earning less than 80 percent of the employee's average weekly wage
as a direct result of the employee's impairment;
(3) has not elected to commute a portion of the
impairment income benefit under Section 408.128; and
(4) has attempted in good faith to obtain employment
commensurate with the employee's ability to work.
(b) If an employee is not entitled to supplemental income
benefits at the time of payment of the final impairment income
benefit because the employee is earning at least 80 percent of the
employee's average weekly wage, the employee may become entitled to
supplemental income benefits at any time within one year after the
date the impairment income benefit period ends if:
(1) the employee earns wages for at least 90 days that
are less than 80 percent of the employee's average weekly wage;
(2) the employee meets the requirements of Subsections
(a)(1), (3), and (4); and
(3) the decrease in earnings is a direct result of the
employee's impairment from the compensable injury.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 408.143. EMPLOYEE STATEMENT. (a) After the
commission's initial de
