We hope everyone had an excellent Fourth of July. There are some recent changes relating to Texas workers’ compensation. The Division of Workers’ Compensation is scheduled to reinstate work search requirements for SIBs, as well as designated doctor and required medical examinations for disability and return to work issues, on August 2, 2021. The 87th Texas legislative regular session has concluded and resulted in a few changes in workers’ compensation laws.
Division to reinstate work search requirements for SIBs and DD/RMEs on issues of Disability and Return to Work on August 2, 2021
In response to the COVID-19 pandemic, the Texas Department of Insurance, Division of Workers’ Compensation suspended provisions regarding the work search compliance standards for supplemental income benefits (SIBs) and designated doctor examinations regarding issues related to disability and return to work. The Division has determined that the suspension of these provisions is no longer necessary. Regarding SIBs, for each full week of the qualifying period on or after Monday, August 2, 2021, injured employees must meet at least one of the work search requirements to be able to get SIBs. Similarly, on Monday, August 2, 2021, the Division will resume processing requests for designated doctor examinations and required medical examinations (RMEs) for all issues, including return to work or disability as a direct result of the compensable injury. The Division will contact designator doctor requesters about pending requests to determine if the exam is still needed. The Division will not process pending RME requests. Therefore, insurance carriers should submit new requests for RMEs as needed. The Division encouraged system participants to contact the Division at 1-800-252-7300, Option 1, with any concerns about these requirements as they relate to specific exams.
On a similar note, some of the Division’s SIBs rules, including those related to work search requirements, are currently under review by the Court of Appeals for the Third District of Texas in the case of Texas Department of Insurance, Division of Workers’ Compensation v. Accident Fund Insurance Company of America and Texas Cotton Ginners’ Trust, Cause No. 3-21-00074-CV.
The 87th Texas Legislature, Regular Session convened on January 12, 2021, and adjourned May 31, 2021. While a number of workers’ compensation changes were proposed, only a few survived the journey through the legislative process. The following is a brief description of the workers’ compensation legislation passed by the Legislature and signed into law by the Governor this year.
A. Texas Government Code Section 607.0545 (SB-22) and Presumptions related to COVID-19
Senate Bill (SB) 22 signed by Governor Abbott on June 14, 2021, amended Texas Government Code Chapter 607 and created a presumption that the contraction of COVID-19 by certain employees is presumed to have occurred in the course and scope of employment. The bill created Government Code Section 607.0545, which applies to full-time detention officers, custodial officers, firefighters, peace officers, and emergency medical technicians (EMTs). If such a person is diagnosed, by a test (authorized, approved, or licensed by the FDA), with COVID-19 and the person suffers total or partial disability or death, the person is presumed to have contracted COVID-19 in the course and scope of employment. If the individual is deceased, the diagnosis can be established using the FDA test or “by another means, including diagnosis by a physician.”
For the presumption to apply, the individual is required to have been on duty not more than 15 days before the date the individual was diagnosed with COVID-19. If the individual is deceased, the individual must have been on duty not more than 15 days before the date the individual:
- was diagnosed with COVID-19 using a test authorized, approved, or licensed by the United States FDA;
- began to show symptoms of COVID-19 as determined by a licensed physician;
- was hospitalized for symptoms related to COVID-19; or
- died, if COVID-19 was a contributing factor in the person’s death.
The presumption applies in the following circumstances:
- The individual is employed in the area designated in a disaster declaration by the governor under Section 418.014 or another law and the disaster is related to COVID-19; and
- The individual contracts the disease during the disaster declared by the governor.
The presumption does not affect an individual’s right to provide proof, without the use of the presumption, that an injury or illness occurred during the course and scope of employment.
To rebut the presumption, it must be shown that a risk factor, accident, hazard or other cause not associated with individual’s service as a detention officer, custodial officer, firefighter, peace officer, or EMT was a substantial factor in bringing about the individual’s COVID-19. However, a rebuttal may not be based solely on evidence relating to the risk of exposure to COVID-19 the individual may have had from a person with whom the individual resides. Any rebuttal must include a statement by the person offering the rebuttal that describes, in detail, the evidence that the person reviewed before making the determination that a cause not associated with the individual’s service as a detention officer, custodial officer, firefighter, peace officer, or EMT was a substantial factor in bringing about the individual’s COVID-19, without which it would not have occurred. Should the case proceed to a hearing, the administrative law judge (ALJ) must make findings of fact and conclusions of law that consider whether a qualified expert, relying on evidence-based medicine, stated the opinion that, based on reasonable medical probability, an identified risk factor, accident, hazard, or other cause not associated with the individual’s service as a detention officer, custodial officer, firefighter, peace officer, or EMT was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not have occurred.
SB 22’s changes apply to a claim for benefits, compensation, or assistance pending on or filed on or after the bill’s effective date (June 14, 2021- the date Senate Bill 22 was signed by the Governor).
If a qualified individual contracted COVID-19 on or after the date the governor declared a disaster relating to COVID-19 (March 13, 2020), but before the bill’s effective date (June 14, 2021), the bill authorizes the individual to file a claim, regardless of whether that claim is otherwise considered untimely. However, such a claim must be made no later than six months after the bill’s effective date (June 14, 2021), which would be December 14, 2021.
If a qualified individual filed a COVID-19 claim before the bill’s effective date (June 14, 2021) and the claim was later denied, SB-22 authorizes the person to request the insurance carrier to reprocess the claim. The request is to be in writing and submitted no later than one year after SB-22’s June 14, 2021, effective date. If such a request is made, the carrier must reprocess the claim and apply SB-22’s changes, including the presumption. Please note, some have raised questions as to whether the retroactive application of SB-22 is constitutional under the Texas Constitution.
For the full text of SB 22, please visit:
B. Virtual Benefit Review Conferences (BRC) – HB 1752
House Bill (HB) 1752 signed by Governor Abbott on June 4, 2021 and effective as of that day, amended Texas Labor Code section 410.005(a) concerning BRCs at the Division of Workers’ Compensation. The amendments provide that the Division may conduct a BRC telephonically, by videoconference or in person, on showing of good cause as determined by the Division. Regarding in person BRCs, the BRC may not be conducted at a site more than 75 miles from the claimant’s residence, unless there is good cause for a different location.
For the full text of HB 1752, please visit:
C. Disclosures For The Sale Of Certain Occupational Insurance Policies – HB 3769
House Bill (HB) 3769 amended the Texas Insurance Code to require an occupational insurance policy to include a specified disclosure statement regarding the fact that the policy is not a workers’ compensation policy on the first page of the policy and on the first page of all materials used in advertising or marketing the occupational policy to an employer that elects not to maintain workers’ compensation insurance coverage.
The bill applies only to an occupational insurance policy delivered, issued for delivery, or renewed on or after January 1, 2022. HB 3769 becomes effective on September 1, 2021.
For the full text of HB 3769, please visit:
D. Revising Certain Required Reports under the Texas Workers’ Compensation System- House Bill 1753
House Bill (HB) 1753 amended Texas Insurance Code section 1305.502(a) to require the workers’ compensation research and evaluation group to develop and issue consumer report cards regarding workers’ compensation health care networks by December 1 of each even numbered year, instead of annually. HB 1753’s amendments became effective on June 14, 2021.
For the full text of HB 1753, please visit:
E. Quarantine Leave for Firefighters, Peace Officers, Detention Officers, and EMTs – HB 2073
House Bill (HB) 2073 amended Local Government Code Chapter 180 by adding Section 180.008. The amendments require that peace officers, EMTs and professional firefighters be placed on paid leave by the political subdivision that employs them if they are ordered by a supervisor or health authority to quarantine or isolate due to a possible or known on-duty exposure to a communicable disease. Political subdivisions are required to provide to such first responders placed on quarantine leave all employee benefits and compensation and any costs specifically related to the quarantine, including lodging, medical and transportation costs. Political subdivisions may not reduce a paid leave balance (including sick leave, vacation time, or holidays) for such first responders in connection with such a quarantine leave. HB 2073 became effective on June 15, 2021.
For the full text of HB 2073, please visit:
Division extends COVID-19 data call
On June 2, 2020, the Texas Department of Insurance, Division of Workers’ Compensation issued a mandatory data call for certain information related to COVID-19 injuries reported to selected insurance carriers on or after December 1, 2019. To ensure that the Division has sufficient information to determine the impact of COVID-19 injuries on the Texas workers’ compensation system, the Division has extended the data call through December 2021.