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A BILL TO BE ENTITLED
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AN ACT
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relating to the appointment of an attorney for a workers' |
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compensation claimant in certain judicial review proceedings |
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initiated by a workers' compensation insurance carrier. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subchapter G, Chapter 410, Labor Code, is |
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amended by adding Section 410.309 to read as follows: |
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Sec. 410.309. APPOINTMENT OF ATTORNEY FOR CLAIMANT IN |
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PROCEEDING INITIATED BY INSURANCE CARRIER. (a) In a trial |
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initiated by an insurance carrier under this subchapter, at the |
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request of the claimant the court shall appoint an attorney to |
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represent the claimant before the court, if the court determines |
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that the claimant has made a good faith effort to retain counsel but |
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is unable to retain counsel. The court may hold a pre-trial hearing |
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to make the determination required by this subsection. |
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(b) Except as otherwise provided by this subsection, the |
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insurance carrier is liable for the attorney's reasonable and |
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necessary fees in accordance with Section 408.221(c) on any issue |
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on which the claimant prevails. The number of hours for which |
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attorney's fees are awarded to the claimant's attorney under this |
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subsection concerning an issue on which the claimant prevails may |
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not exceed the number of hours the carrier's counsel billed the |
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carrier for work concerning that same issue. |
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(c) The subsequent injury fund is liable for the attorney's |
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reasonable and necessary fees in accordance with Section |
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408.221(c-1) on any issue on which the insurance carrier prevails. |
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SECTION 2. Section 408.221, Labor Code, is amended by |
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amending Subsections (b) and (i) and adding Subsection (c-1) to |
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read as follows: |
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(b) Except as otherwise provided, an attorney's fee under |
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this section is based on the attorney's time and expenses according |
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to written evidence presented to the division or court. Except as |
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provided by Subsection (c) or (c-1) or Section 408.147(c), the |
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attorney's fee shall be paid from the claimant's recovery. |
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(c-1) In a judicial review proceeding initiated by an |
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insurance carrier under Subchapter G, Chapter 410, in which the |
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court has appointed an attorney for the claimant under Section |
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410.309, the subsequent injury fund is liable for the attorney's |
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reasonable and necessary fees as provided by Subsection (d) on any |
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issue on which the insurance carrier prevails. If the insurance |
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carrier appeals multiple issues and the insurance carrier prevails |
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on some, but not all, of the issues appealed, the court shall |
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apportion and award fees to the claimant's court-appointed attorney |
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from the subsequent injury fund only for issues on which the |
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insurance carrier prevails. In making that apportionment, the |
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court shall consider the factors prescribed by Subsection (d). An |
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award of attorney's fees under this subsection is not subject to |
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commissioner rules adopted under Subsection (f). |
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(i) Except as provided by Subsection (c) or (c-1) or Section |
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408.147(c), an attorney's fee may not exceed 25 percent of the |
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claimant's recovery. |
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SECTION 3. Section 403.006(b), Labor Code, is amended to |
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read as follows: |
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(b) The subsequent injury fund is liable for: |
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(1) the payment of compensation as provided by Section |
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408.162; |
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(2) reimbursement of insurance carrier claims of |
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overpayment of benefits made under an interlocutory order or |
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decision of the commissioner as provided by this subtitle, |
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consistent with the priorities established by rule by the |
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commissioner; |
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(3) reimbursement of insurance carrier claims as |
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provided by Sections 408.042 and 413.0141, consistent with the |
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priorities established by rule by the commissioner; [and] |
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(4) the reimbursement of an insurance carrier as |
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provided by Section 408.0041(f-1); and |
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(5) the payment of court-appointed attorney's fees as |
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provided by Section 408.221(c-1). |
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SECTION 4. The change in law made by this Act applies only |
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to a judicial review proceeding initiated under Subchapter G, |
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Chapter 410, Labor Code, on or after the effective date of this Act. |
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A proceeding initiated before that date is governed by the law in |
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effect on the date the proceeding was initiated, and the former law |
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is continued in effect for that purpose. |
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SECTION 5. This Act takes effect September 1, 2009. |