State News : Texas

Texas Legislature Eyes Changes to Workers’ Compensation 

Like a bad penny, the Texas Legislature returns to Austin, our home town, on January 14, and legislators already are filing bills that would significantly alter the workers’ compensation scheme.

At least one of those bills -- SB 423 -- could upend the dispute resolution process as we know it. Other bills would make less drastic, but still significant, changes.

Virtual hearings

SB 423 would require the Texas Department of Insurance, Division of Workers’ Compensation (DWC) to conduct contested case hearings by telephone or videoconference whenever the parties “mutually agree” to proceed in that manner. This would mark a significant departure from DWC’s current practice, in which parties are required to appear in person for nearly all contested cases hearings.

The bill was authored by Senator Sarah Eckhardt, a lawyer and Democrat representing Travis County. It appears generally consistent with a legislative recommendation from DWC. As we reported last month, DWC has issued its Biennial Report to the 89^th Legislature in which, among other things, it recommended that the legislature amend the Labor Code “to allow contested case hearings . . . by videoconference if all parties agree to that format.”

DWC Commissioner Jeff Nelson has said that one reason for DWC’s recommendation was to help shape a bill that appeared inevitable anyway. “[T]hat bill in one version or another has been filed the past three sessions by parties that weren’t us,” Nelson told lawyers at the Texas Bar Advanced Workers’ Compensation Law Seminar in August, emphasizing that a legislative change should require both parties to agree to a virtual hearing. “Some of those allowed the claimant to have total say on if it was going to be virtual or not . . . [w]e had to work like crazy last session to rein in a lot of those bills and to keep [them] somewhat reasonable.”

But the introduced version of SB 423 does not appear to contain everything that DWC would like to see in it. Specifically, it does not contain a provision for DWC to override the will of the parties and conduct a hearing by videoconference even when the parties desire to proceed in person.  Nelson told lawyers at the August seminar that DWC maintains a “zero tolerance list” of injured workers “who are combative and threatening” and DWC would like authority to conduct a hearing by videoconference when one of the parties is a worker on the list.

Mandatory comp for construction workers

SB 338 and its companion, HB 875, as well as HB 480, would make workers’ compensation insurance coverage mandatory for workers in the construction industry. They would amend Labor Code section 406.096 to provide that a construction contractor or subcontractor “shall provide workers’ compensation insurance coverage for each employee.”

Cost-of-living adjustments for death benefit payments

HB 1292 would amend Labor Code section 408.181 to provide that the amount of a death benefit must be adjusted each year, as necessary, to reflect inflation. The change would apply only to claims based on an injury occurring after the effective date of the change and it would require insurance carriers to re-compute the amount of a death benefit each year. The amount of the adjustment would equal the percentage increase, if any, used by the United States Social Security Administration to provide cost-of-living adjustment for social security payments.

First responders - Presumption of compensability of infertility

SB 454 would create a presumption that a firefighter or emergency medical technician suffering from infertility is presumed to have developed the infertility during the course and scope of employment.

Designated Doctor exams and assignment of IR by telemedicine

HB 1066 would amend Labor Code section 408.0041, pertaining to Designated Doctor examinations, to allow DWC to order a Designated Doctor to conduct an examination by telemedicine if DWC determines that conducting the exam in that manner “is necessary to ensure access to a timely examination by a qualified doctor.” It would require a health care professional to be physically present in the room with the employee to assist with the examination and administer any necessary testing.

HB 1066 also would add new Labor Code section 408.1231 to allow a doctor to certify maximum medical improvement and assign an impairment rating by telemedicine for many injuries. It would require a health care professional to be physically present in the room with the employee to assist with the examination and administer any necessary testing unless the certifying doctor determines that the employee (1) is not at MMI or (2) has no possibility of impairment.

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