2009S0007-1 10/28/08
 
  By: Lucio S.B. No. 394
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to the appointment of an attorney for a workers'
  compensation claimant in certain proceedings initiated by a
  workers' compensation insurance carrier.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subchapter G, Chapter 410, Labor Code, is
  amended by adding Section 410.309 to read as follows:
         Sec. 410.309.  APPOINTMENT OF ATTORNEY FOR CLAIMANT IN
  PROCEEDING INITIATED BY INSURANCE CARRIER. (a)  In a trial
  initiated by an insurance carrier under this subchapter, at the
  request of the claimant the court shall appoint an attorney to
  represent the claimant before the court. The court may hold a
  pretrial hearing to determine whether the claimant made a good
  faith effort to obtain representation by an attorney before the
  appointment of an attorney.
         (b)  The insurance carrier is liable for the attorney's
  reasonable and necessary fees in accordance with Section 408.221(c)
  on any issue on which the claimant prevails. The claimant attorney
  may not bill for more hours than the hours the carrier attorney
  billed.
         (c)  The subsequent injury fund is liable for the attorney's
  reasonable and necessary fees in accordance with Section
  408.221(c-1) on any issue on which the insurance carrier prevails.
         SECTION 2.  Section 408.221, Labor Code, is amended by
  amending Subsections (b) and (i) and adding Subsection (c-1) to
  read as follows:
         (b)  Except as otherwise provided, an attorney's fee under
  this section is based on the attorney's time and expenses according
  to written evidence presented to the division or court. Except as
  provided by Subsection (c) or (c-1) or Section 408.147(c), the
  attorney's fee shall be paid from the claimant's recovery.
         (c-1)  In a judicial review proceeding initiated by an
  insurance carrier under Subchapter G, Chapter 410, in which the
  court has appointed an attorney for the claimant under Section
  410.309, the subsequent injury fund is liable for the attorney's
  reasonable and necessary fees as provided by Subsection (d) on any
  issue on which the insurance carrier prevails.  If the insurance
  carrier appeals multiple issues and the insurance carrier prevails
  on some, but not all, of the issues appealed, the court shall
  apportion and award fees to the claimant's court-appointed attorney
  from the subsequent injury fund only for issues on which the
  insurance carrier prevails. In making that apportionment, the
  court shall consider the factors prescribed by Subsection (d). An
  award of attorney's fees under this subsection is not subject to
  commissioner rules adopted under Subsection (f).
         (i)  Except as provided by Subsection (c) or (c-1) or Section
  408.147(c), an attorney's fee may not exceed 25 percent of the
  claimant's recovery.
         SECTION 3.  Subsection (b), Section 403.006, Labor Code, is
  amended to read as follows:
         (b)  The subsequent injury fund is liable for:
               (1)  the payment of compensation as provided by Section
  408.162;
               (2)  reimbursement of insurance carrier claims of
  overpayment of benefits made under an interlocutory order or
  decision of the commissioner as provided by this subtitle,
  consistent with the priorities established by rule by the
  commissioner;
               (3)  reimbursement of insurance carrier claims as
  provided by Sections 408.042 and 413.0141, consistent with the
  priorities established by rule by the commissioner; [and]
               (4)  the reimbursement of an insurance carrier as
  provided by Section 408.0041(f-1); and
               (5)  the payment of court-appointed attorney's fees as
  provided by Section 408.221(c-1).
         SECTION 4.  The change in law made by this Act applies only
  to a trial or judicial review proceeding initiated under Subchapter
  G, Chapter 410, Labor Code, on or after the effective date of this
  Act. A trial or judicial review proceeding initiated before that
  date is governed by the law in effect on the date the trial or
  judicial review proceeding was initiated, and the former law is
  continued in effect for that purpose.
         SECTION 5.  This Act takes effect September 1, 2009.