LABOR CODE
CHAPTER 409. COMPENSATION PROCEDURES
SUBCHAPTER A. INJURY REPORTS, CLAIMS, AND RECORDS
§ 409.001. NOTICE OF INJURY TO EMPLOYER. (a) An
employee or a person acting on the employee's behalf shall notify
the employer of the employee of an injury not later than the 30th
day after the date on which:
(1) the injury occurs; or
(2) if the injury is an occupational disease, the
employee knew or should have known that the injury may be related to
the employment.
(b) The notice required under Subsection (a) may be given
to:
(1) the employer; or
(2) an employee of the employer who holds a
supervisory or management position.
(c) If the injury is an occupational disease, for purposes
of this section, the employer is the person who employed the
employee on the date of last injurious exposure to the hazards of
the disease.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.002. FAILURE TO FILE NOTICE OF INJURY. Failure to
notify an employer as required by Section 409.001(a) relieves the
employer and the employer's insurance carrier of liability under
this subtitle unless:
(1) the employer, a person eligible to receive notice
under Section 409.001(b), or the employer's insurance carrier has
actual knowledge of the employee's injury;
(2) the commission determines that good cause exists
for failure to provide notice in a timely manner; or
(3) the employer or the employer's insurance carrier
does not contest the claim.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.003. CLAIM FOR COMPENSATION. An employee or a
person acting on the employee's behalf shall file with the
commission a claim for compensation for an injury not later than one
year after the date on which:
(1) the injury occurred; or
(2) if the injury is an occupational disease, the
employee knew or should have known that the disease was related to
the employee's employment.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.004. FAILURE TO FILE CLAIM FOR
COMPENSATION. Failure to file a claim for compensation with the
commission as required under Section 409.003 relieves the employer
and the employer's insurance carrier of liability under this
subtitle unless:
(1) good cause exists for failure to file a claim in a
timely manner; or
(2) the employer or the employer's insurance carrier
does not contest the claim.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.005. REPORT OF INJURY; MODIFIED DUTY PROGRAM
NOTICE; ADMINISTRATIVE VIOLATION. (a) An employer shall report
to the employer's insurance carrier if:
(1) an injury results in the absence of an employee of
that employer from work for more than one day; or
(2) an employee of the employer notifies that employer
of an occupational disease under Section 409.001.
(b) The report under Subsection (a) must be made not later
than the eighth day after:
(1) the employee's absence from work for more than one
day due to an injury; or
(2) the day on which the employer receives notice
under Section 409.001 that the employee has contracted an
occupational disease.
(c) The employer shall deliver a written copy of the report
under Subsection (a) to the injured employee at the time that the
report is made to the insurance carrier.
(d) The insurance carrier shall file the report of the
injury on behalf of the policyholder. Except as provided by
Subsection (e), the insurance carrier must electronically file the
report with the commission not later than the seventh day after the
date on which the carrier receives the report from the employer.
(e) The executive director may waive the electronic filing
requirement under Subsection (d) and allow an insurance carrier to
mail or deliver the report to the commission not later than the
seventh day after the date on which the carrier receives the report
from the employer.
(f) A report required under this section may not be
considered to be an admission by or evidence against an employer or
an insurance carrier in a proceeding before the commission or a
court in which the facts set out in the report are contradicted by
the employer or insurance carrier.
(g) In addition to any information required under
Subsection (h), the report provided to the injured employee under
Subsection (c) must contain a summary written in plain language of
the employee's statutory rights and responsibilities under this
subtitle.
(h) The commission may adopt rules relating to:
(1) the information that must be contained in a report
required under this section, including the summary of rights and
responsibilities required under Subsection (g); and
(2) the development and implementation of an
electronic filing system for injury reports under this section.
(i) An employer and insurance carrier shall file subsequent
reports as required by commission rule.
(j) The employer shall, on the written request of the
employee, a doctor, the insurance carrier, or the commission,
notify the employee, the employee's treating doctor if known to the
employer, and the insurance carrier of the existence or absence of
opportunities for modified duty or a modified duty return-to-work
program available through the employer. If those opportunities or
that program exists, the employer shall identify the employer's
contact person and provide other information to assist the doctor,
the employee, and the insurance carrier to assess modified duty or
return-to-work options.
(k) This section does not prohibit the commission from
imposing requirements relating to return-to-work under other
authority granted to the commission in this subtitle.
(l) A person commits a violation if the person fails to
comply with this section unless good cause exists. A violation
under this subsection is a Class D administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.29, eff. Sept. 1, 1995;
Acts 2001, 77th Leg., ch. 1456, § 3.01, eff. June 17, 2001.
§ 409.006. RECORD OF INJURIES; ADMINISTRATIVE
VIOLATION. (a) An employer shall maintain a record of each
employee injury as reported by an employee or otherwise made known
to the employer.
(b) The record shall be available to the commission at
reasonable times and under conditions prescribed by the commission.
(c) The commission may adopt rules relating to the
information that must be contained in an employer record under this
section.
(d) Information contained in a record maintained under this
section is not an admission by the employer that:
(1) the injury did in fact occur; or
(2) a fact maintained in the record is true.
(e) A person commits a violation if the person fails to
comply with this section. A violation under this subsection is a
Class D administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.007. DEATH BENEFIT CLAIMS. (a) A person must
file a claim for death benefits with the commission not later than
the first anniversary of the date of the employee's death.
(b) Failure to file in the time required by Subsection (a)
bars the claim unless:
(1) the person is a minor or incompetent; or
(2) good cause exists for the failure to file a claim
under this section.
(c) A separate claim must be filed for each legal
beneficiary unless the claim expressly includes or is made on
behalf of another person.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.008. FAILURE TO FILE EMPLOYER REPORT OF INJURY;
LIMITATIONS TOLLED. If an employer or the employer's insurance
carrier has been given notice or has knowledge of an injury to or
the death of an employee and the employer or insurance carrier
fails, neglects, or refuses to file the report under Section
409.005, the period for filing a claim for compensation under
Sections 409.003 and 409.007 does not begin to run against the claim
of an injured employee or a legal beneficiary until the day on which
the report required under Section 409.005 has been furnished.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.009. SUBCLAIMS. A person may file a written claim
with the commission as a subclaimant if the person has:
(1) provided compensation, including health care
provided by a health care insurer, directly or indirectly, to or for
an employee or legal beneficiary; and
(2) sought and been refused reimbursement from the
insurance carrier.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.010. INFORMATION PROVIDED TO EMPLOYEE OR LEGAL
BENEFICIARY. Immediately on receiving notice of an injury or death
from any person, the commission shall mail to the employee or legal
beneficiary a clear and concise description of:
(1) the services provided by the commission, including
the services of the ombudsman program;
(2) the commission's procedures; and
(3) the person's rights and responsibilities under
this subtitle.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.011. INFORMATION PROVIDED TO EMPLOYER; EMPLOYER'S
RIGHTS. (a) Immediately on receiving notice of an injury or death
from any person, the commission shall mail to the employer a
description of:
(1) the services provided by the commission;
(2) the commission's procedures; and
(3) the employer's rights and responsibilities under
this subtitle.
(b) The information must include a clear statement of the
following rights of the employer:
(1) the right to be present at all administrative
proceedings relating to an employee's claim;
(2) the right to present relevant evidence relating to
an employee's claim at any proceeding;
(3) the right to report suspected fraud;
(4) the right to contest the compensability of an
injury if the insurance carrier accepts liability for the payment
of benefits;
(5) the right to receive notice, after making a
written request to the insurance carrier, of:
(A) a proposal to settle a claim; or
(B) an administrative or a judicial proceeding
relating to the resolution of a claim; and
(6) the right to contest the failure of the insurance
carrier to provide accident prevention services under Subchapter E,
Chapter 411.
(c) The commission is not required to provide the
information to an employer more than once during a calendar year.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.012. VOCATIONAL REHABILITATION
INFORMATION. (a) The commission shall analyze each report of
injury received from an employer under this chapter to determine
whether the injured employee would be assisted by vocational
rehabilitation.
(b) If the commission determines that an injured employee
would be assisted by vocational rehabilitation, the commission
shall notify the injured employee in writing of the services and
facilities available through the Texas Rehabilitation Commission
and private providers of vocational rehabilitation. The commission
shall notify the Texas Rehabilitation Commission and the affected
insurance carrier that the injured employee has been identified as
one who could be assisted by vocational rehabilitation.
(c) The commission shall cooperate with the Texas
Rehabilitation Commission and private providers of vocational
rehabilitation in the provision of services and facilities to
employees by the Texas Rehabilitation Commission.
(d) A private provider of vocational rehabilitation
services may register with the commission.
(e) The commission by rule may require that a private
provider of vocational rehabilitation services maintain certain
credentials and qualifications in order to provide services in
connection with a workers' compensation insurance claim.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 956, § 2, eff. Sept. 1, 1999.
§ 409.013. PLAIN LANGUAGE INFORMATION; NOTIFICATION OF
INJURED WORKER. (a) The commission shall develop information for
public dissemination about the benefit process and the compensation
procedures established under this chapter. The information must be
written in plain language and must be available in English and
Spanish.
(b) On receipt of a report under Section 409.005, the
commission shall contact the affected employee by mail or by
telephone and shall provide the information required under
Subsection (a) to that employee, together with any other
information that may be prepared by the commission for public
dissemination that relates to the employee's situation, such as
information relating to back injuries or occupational diseases.
Added by Acts 1995, 74th Leg., ch. 980, § 1.30, eff. Sept. 1,
1995.
SUBCHAPTER B. PAYMENT OF BENEFITS
§ 409.021. INITIATION OF BENEFITS; INSURANCE CARRIER'S
REFUSAL; ADMINISTRATIVE VIOLATION. (a) An insurance carrier
shall initiate compensation under this subtitle promptly. Not
later than the 15th day after the date on which an insurance carrier
receives written notice of an injury, the insurance carrier shall:
(1) begin the payment of benefits as required by this
subtitle; or
(2) notify the commission and the employee in writing
of its refusal to pay and advise the employee of:
(A) the right to request a benefit review
conference; and
(B) the means to obtain additional information
from the commission.
(a-1) An insurance carrier that fails to comply with
Subsection (a) does not waive the carrier's right to contest the
compensability of the injury as provided by Subsection (c) but
commits an administrative violation subject to Subsection (e).
(a-2) An insurance carrier is not required to comply with
Subsection (a) if the insurance carrier has accepted the claim as a
compensable injury and income or death benefits have not yet
accrued but will be paid by the insurance carrier when the benefits
accrue and are due.
(b) An insurance carrier shall notify the commission in
writing of the initiation of income or death benefit payments in the
manner prescribed by commission rules.
(c) If an insurance carrier does not contest the
compensability of an injury on or before the 60th day after the date
on which the insurance carrier is notified of the injury, the
insurance carrier waives its right to contest compensability. The
initiation of payments by an insurance carrier does not affect the
right of the insurance carrier to continue to investigate or deny
the compensability of an injury during the 60-day period.
(d) An insurance carrier may reopen the issue of the
compensability of an injury if there is a finding of evidence that
could not reasonably have been discovered earlier.
(e) An insurance carrier commits a violation if the
insurance carrier does not initiate payments or file a notice of
refusal as required by this section. A violation under this
subsection shall be assessed at $500 if the carrier initiates
compensation or files a notice of refusal within five working days
of the date required by Subsection (a), $1,500 if the carrier
initiates compensation or files a notice of refusal more than five
and less than 16 working days of the date required by Subsection
(a), $2,500 if the carrier initiates compensation or files a notice
of refusal more than 15 and less than 31 working days of the date
required by Subsection (a), or $5,000 if the carrier initiates
compensation or files a notice of refusal more than 30 days after
the date required by Subsection (a). The administrative penalties
are not cumulative.
Text of subsec. (f) as added by Acts 2003, 78th Leg., ch. 939, § 1
(f) For purposes of this section, "written notice" to a
certified self-insurer occurs only on written notice to the
qualified claims servicing contractor designated by the certified
self-insurer under Section 407.061(c).
Text of subsec. (f) as added by Acts 2003, 78th Leg., ch. 1100, §
1
(f) For purposes of this section:
(1) a certified self-insurer receives notice on the
date the qualified claims servicing contractor designated by the
certified self-insurer under Section 407.061(c) receives notice;
and
(2) a political subdivision that self-insures under
Section 504.011, either individually or through an interlocal
agreement with other political subdivisions, receives notice on the
date the intergovernmental risk pool or other entity responsible
for administering the claim for the political subdivision receives
notice.
Added by Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Amended by Acts 2003, 78th Leg., ch. 939, § 1, eff. Sept. 1,
2003; Acts 2003, 78th Leg., ch. 1100, § 1, eff. Sept. 1, 2003.
§ 409.022. REFUSAL TO PAY BENEFITS; NOTICE;
ADMINISTRATIVE VIOLATION. (a) An insurance carrier's notice of
refusal to pay benefits under Section 409.021 must specify the
grounds for the refusal.
(b) The grounds for the refusal specified in the notice
constitute the only basis for the insurance carrier's defense on
the issue of compensability in a subsequent proceeding, unless the
defense is based on newly discovered evidence that could not
reasonably have been discovered at an earlier date.
(c) An insurance carrier commits a violation if the
insurance carrier does not have reasonable grounds for a refusal to
pay benefits, as determined by the commission. A violation under
this subsection is a Class B administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.023. PAYMENT OF BENEFITS; ADMINISTRATIVE
VIOLATION. (a) An insurance carrier shall continue to pay
benefits promptly as and when the benefits accrue without a final
decision, order, or other action of the commission, except as
otherwise provided.
(b) Benefits shall be paid solely to the order of the
employee or the employee's legal beneficiary.
(c) An insurance carrier commits a violation if the
insurance carrier fails to comply with this section. A violation
under this subsection is a Class B administrative violation. Each
day of noncompliance constitutes a separate violation.
(d) An insurance carrier that commits multiple violations
of this section commits a Class A administrative violation and is
subject to:
(1) the sanctions provided under Section 415.023; and
(2) revocation of the right to do business under the
workers' compensation laws of this state.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 409.0231. PAYMENT BY ELECTRONIC FUNDS
TRANSFER. (a) An insurance carrier shall offer employees
entitled to the payment of benefits for a period of sufficient
duration the option of receiving the payments by electronic funds
transfer. The insurance carrier shall provide the necessary forms
to an employee who requests that benefits be paid by electronic
funds transfer.
(b) The commission shall adopt rules in consultation with
the Texas Department of Information Resources as necessary to
implement this section, including rules prescribing a period of
benefits that is of sufficient duration to allow payment by
electronic funds transfer.
Added by Acts 1999, 76th Leg., ch. 690, § 1, eff. Sept. 1, 1999.
§ 409.0232. TIMELINESS OF PAYMENTS. An insurance
carrier is considered to have paid benefits in a timely manner if a
payment:
(1) is made by electronic funds transfer and is
deposited in the employee's account on or before the benefit
payment due date;
(2) is made by mail and is mailed in time for the
payment to be postmarked on or before the benefit payment due date;
or
(3) is to be picked up by the employee and the payment
is made available to the employee during regular business hours not
later than the opening of business on the benefit payment due date.
Added by Acts 1999, 76th Leg., ch. 690, § 1, eff. June 18, 1999.
§ 409.024. TERMINATION OR REDUCTION OF BENEFITS;
NOTICE; ADMINISTRATIVE VIOLATION. (a) An insurance carrier
shall file with the commission a notice of termination or reduction
of benefits, including the reasons for the termination or
reduction, not later than the 10th day after the date on which
benefits are terminated or reduced.
(b) An insurance carrier commits a violation if the
insurance carrier does not have reasonable grounds to terminate or
reduce benefits, as determined by the commission. A violation
under this subsection is a Class B administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER C. OMBUDSMAN PROGRAM
§ 409.041. OMBUDSMAN PROGRAM. (a) The commission
shall maintain an ombudsman program as provided by this subchapter
to assist injured workers and persons claiming death benefits in
obtaining benefits under this subtitle.
(b) An ombudsman shall:
(1) meet with or otherwise provide information to
injured workers;
(2) investigate complaints;
(3) communicate with employers, insurance carriers,
and health care providers on behalf of injured workers;
(4) assist unrepresented claimants, employers, and
other parties to enable those persons to protect their rights in the
workers' compensation system; and
(5) meet with an unrepresented claimant privately for
a minimum of 15 minutes prior to any informal or formal hearing.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 980, § 1.31, eff. Sept. 1, 1995.
§ 409.042. DESIGNATION AS OMBUDSMAN; ELIGIBILITY AND
TRAINING REQUIREMENTS; CONTINUING EDUCATION
REQUIREMENTS. (a) At least one specially qualified employee in
each commission office shall be designated an ombudsman who shall
perform the duties under this section as the person's primary
responsibility.
(b) To be eligible for designation as an ombudsman, a person
must:
(1) demonstrate satisfactory knowledge of the
requirements of:
(A) this subtitle and the provisions of Subtitle
C that relate to claims management;
(B) other laws relating to workers'
compensation; and
(C) rules adopted under this subtitle and the
laws described under Subdivision (1)(B);
(2) have demonstrated experience in handling and
resolving problems for the general public;
(3) possess strong interpersonal skills; and
(4) have at least one year of demonstrated experience
in the field of workers' compensation.
(c) The commission by rule shall adopt training guidelines
and continuing education requirements for ombudsmen. Training
provided under this subsection must:
(1) include education regarding this subtitle, rules
adopted under this subtitle, and appeals panel decisions, with
emphasis on benefits and the dispute resolution process; and
(2) require an ombudsman undergoing training to be
observed and monitored by an experienced ombudsman during daily
activities conducted under this subchapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Redesignated from V.T.C.A., Labor Code § 409.041(c) and amended
by Acts 1995, 74th Leg., ch. 980, § 1.31, eff. Sept. 1, 1995.
Amended by Acts 1997, 75th Leg., ch. 1443, § 8, eff. Sept. 1,
1997.
§ 409.043. EMPLOYER NOTIFICATION; ADMINISTRATIVE
VIOLATION. (a) Each employer shall notify its employees of the
ombudsman program in a manner prescribed by the commission.
(b) An employer commits a violation if the employer fails to
comply with this section. A violation under this section is a Class
C administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Redesignated from V.T.C.A., Labor Code § 409.041(d) and amended
by Acts 1995, 74th Leg., ch. 980, § 1.31, eff. Sept. 1, 1995.
§ 409.044. PUBLIC INFORMATION. The commission shall
widely disseminate information about the ombudsman program.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
Renumbered from V.T.C.A., Labor Code § 409.042 by Acts 1995,
74th Leg., ch. 980, § 1.31, eff. Sept. 1, 1995.
