By: Patterson H.B. No. 790
 
 
 
A BILL TO BE ENTITLED
 
AN ACT
  relating to certain claims for benefits, compensation, or
  assistance by certain public safety employees and survivors of
  certain public safety employees.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Title 5, Subtitle A, Section 408.0041, Labor
  Code, is amended by adding subsection (m) to read as follows:
         Sec. 408.0041.  DESIGNATED DOCTOR EXAMINATION. (a) At the
  request of an insurance carrier or an employee, or on the
  commissioner's own order, the commissioner may order a medical
  examination to resolve any question about:
               (1)  the impairment caused by the compensable injury;
               (2)  the attainment of maximum medical improvement;
               (3)  the extent of the employee's compensable injury;
               (4)  whether the injured employee's disability is a
  direct result of the work-related injury;
               (5)  the ability of the employee to return to work; or
               (6)  issues similar to those described by Subdivisions
  (1)-(5).
         (b)  Except as provided by Section 408.1225(f), a medical
  examination requested under Subsection (a) shall be performed by
  the next available doctor on the division's list of certified
  designated doctors whose credentials are appropriate for the area
  of the body affected by the injury and the injured employee's
  diagnosis as determined by commissioner rule.  The division shall
  assign a designated doctor not later than the 10th day after the
  date on which the request under Subsection (a) is approved, and the
  examination must be conducted not later than the 21st day after the
  date on which the commissioner issues the order under Subsection
  (a). An examination under this section may not be conducted more
  frequently than every 60 days, unless good cause for more frequent
  examinations exists, as defined by commissioner rules.
         (b-1)  A designated doctor, other than a chiropractor, is
  subject to Section 408.0043. A designated doctor who is a
  chiropractor is subject to Section 408.0045. To the extent of a
  conflict between this section and Section 408.0043 or 408.0045,
  this section controls.
         (c)  The treating doctor and the insurance carrier are both
  responsible for sending to the designated doctor all of the injured
  employee's medical records relating to the issue to be evaluated by
  the designated doctor that are in their possession. The treating
  doctor and insurance carrier may send the records without a signed
  release from the employee. The designated doctor is authorized to
  receive the employee's confidential medical records to assist in
  the resolution of disputes. The treating doctor and insurance
  carrier may also send the designated doctor an analysis of the
  injured employee's medical condition, functional abilities, and
  return-to-work opportunities.
         (d)  To avoid undue influence on a person selected as a
  designated doctor under this section, and except as provided by
  Subsection (c), only the injured employee or an appropriate member
  of the division's staff may communicate with the designated doctor
  about the case regarding the injured employee's medical condition
  or history before the examination of the injured employee by the
  designated doctor. After that examination is completed,
  communication with the designated doctor regarding the injured
  employee's medical condition or history may be made only through
  appropriate division staff members. The designated doctor may
  initiate communication with any doctor or health care provider who
  has previously treated or examined the injured employee for the
  work-related injury or with peer reviewers identified by the
  insurance carrier.
         (e)  The designated doctor shall report to the division. The
  report of the designated doctor has presumptive weight unless the
  preponderance of the evidence is to the contrary. An employer may
  make a bona fide offer of employment subject to Sections 408.103(e)
  and 408.144(c) based on the designated doctor's report.
         (f)  Unless otherwise ordered by the commissioner, the
  insurance carrier shall pay benefits based on the opinion of the
  designated doctor during the pendency of any dispute. If an
  insurance carrier is not satisfied with the opinion rendered by a
  designated doctor under this section, the insurance carrier may
  request the commissioner to order an employee to attend an
  examination by a doctor selected by the insurance carrier.
         (f-1)  The subsequent injury fund shall reimburse an
  insurance carrier for any overpayment of benefits made by the
  insurance carrier under Subsection (f) based on an opinion rendered
  by a designated doctor if that opinion is reversed or modified by a
  final arbitration award or a final order or decision of the
  commissioner or a court. The commissioner shall adopt rules to
  provide for a periodic reimbursement schedule, providing
  reimbursement at least annually.
         (f-2)  An employee required to be examined by a designated
  doctor may request a medical examination to determine maximum
  medical improvement and the employee's impairment rating from the
  treating doctor or from another doctor to whom the employee is
  referred by the treating doctor if:
               (1)  the designated doctor's opinion is the employee's
  first evaluation of maximum medical improvement and impairment
  rating; and
               (2)  the employee is not satisfied with the designated
  doctor's opinion.
         (f-3)  The commissioner shall provide the insurance carrier
  and the employee with reasonable time to obtain and present the
  opinion of a doctor selected under Subsection (f) or (f-2) before
  the commissioner makes a decision on the merits of the issue.
         (f-4)  The commissioner by rule shall adopt guidelines
  prescribing the circumstances under which an examination by the
  employee's treating doctor or another doctor to whom the employee
  is referred by the treating doctor to determine any issue under
  Subsection (a), other than an examination under Subsection (f-2),
  may be appropriate.
         (g)  Except as otherwise provided by this subsection, an
  injured employee is entitled to have a doctor of the employee's
  choice present at an examination requested by an insurance carrier
  under Subsection (f). The insurance carrier shall pay a fee set by
  the commissioner to the doctor selected by the employee. If the
  injured employee is subject to a workers' compensation health care
  network under Chapter 1305, Insurance Code, the doctor must be the
  employee's treating doctor.
         (h)  The insurance carrier shall pay for:
               (1)  an examination required under Subsection (a), (f),
  or (f-2), unless otherwise prohibited by this subtitle or by an
  order or rule of the commissioner; and
               (2)  the reasonable expenses incident to the employee
  in submitting to the examination.
         (i)  An employee who, without good cause as determined by the
  commissioner, fails or refuses to appear at the time scheduled for
  an examination under Subsection (a) or (f) commits an
  administrative violation. An injured employee may not be fined
  more than $10,000 for a violation of this subsection.
         (j)  An employee is not entitled to temporary income
  benefits, and an insurance carrier is authorized to suspend the
  payment of temporary income benefits, during and for a period in
  which the employee fails to submit to an examination required by
  Subsection (a) or (f) unless the commissioner determines that the
  employee had good cause for the failure to submit to the
  examination. The commissioner may order temporary income benefits
  to be paid for the period for which the commissioner determined that
  the employee had good cause. The commissioner by rule shall ensure
  that:
               (1)  an employee receives reasonable notice of an
  examination and the insurance carrier's basis for suspension; and
               (2)  the employee is provided a reasonable opportunity
  to reschedule an examination for good cause.
         (k)  If the report of a designated doctor indicates that an
  employee has reached maximum medical improvement or is otherwise
  able to return to work immediately, the insurance carrier may
  suspend or reduce the payment of temporary income benefits
  immediately.
         (l)  A person who makes a frivolous request for a medical
  examination under Subsection (a) or (f), as determined by the
  commissioner, commits an administrative violation.
         (m)  The first request of a Designated Doctor's examination
  by the carrier, injured employee or the Division of Workers'
  Compensation must include a request to the Designated Doctor to
  provide an opinion of the extent of the compensable injury.
         SECTION 2.  Title 5, Subtitle A, Section 409.021, Labor
  Code, has been amended by amending subsection (a) (2) (B) and adding
  subsections (a) (2) (B) and (C) and subsection (a-4) to read as
  follows:
         Sec. 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 division 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 division. ; and
                     (C)  the specific reasons why the carrier is
  contesting the claim, including any disputes in the cause of the
  injury, the extent of the injury or the treatment of the injury.
         (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.
         (a-3)  An insurance carrier is not required to comply with
  Subsection (a) if the claim results from an employee's disability
  or death for which a presumption is claimed to be applicable under
  Subchapter B, Chapter 607, Government Code, and, not later than the
  15th day after the date on which the insurance carrier received
  written notice of the injury, the insurance carrier has provided
  the employee and the division with a notice that describes all steps
  taken by the insurance carrier to investigate the injury before the
  notice was given and the evidence the carrier reasonably believes
  is necessary to complete its investigation of the compensability of
  the injury. The commissioner shall adopt rules as necessary to
  implement this subsection.
         (a-4)  Notwithstanding any other provision of this code, an
  insurance carrier who fails to comply with subsection (a) within 60
  days, when the injured employee is a person described under Section
  607.051 of the Texas Government Code, waives its right to contest or
  deny the extent of the specific injury claimed by the injured worker
  or reasonably reflected in a review of the injured workers medical
  records.
         (b)  An insurance carrier shall notify the division in
  writing of the initiation of income or death benefit payments in the
  manner prescribed by commissioner 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)  If a workers' compensation insurance carrier does not
  contest or deny the extent of a compensable injury in writing on or
  before the 60th day on which the workers' compensation insurance
  carrier had reasonable notice of the specific claimed injury, the
  workers' compensation insurance carriers waives its right to
  contest or deny the extend of the specific injury claimed by the
  injured worker or reasonably reflected in a review of the injured
  worker's medical records.
         (d) (e)  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) (f)  An insurance carrier commits an administrative
  violation if the insurance carrier does not initiate payments or
  file a notice of refusal as required by this section.
         (f) (g)  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).
         (f) (g)  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.
         (j) (h)  Each insurance carrier shall establish a single
  point of contact in the carrier's office for an injured employee for
  whom the carrier receives a notice of injury.
         (i)  The division shall adopt the rules necessary to comply
  with these changes.
         SECTION 3.  Title 5, Subtitle A, Chapter 417, Labor Code, is
  amended by adding section 417.005 to read as follows:
         Sec. 417.005.  WORKERS' COMPENSATION INSURANCE CARRIER
  LIABILITY TO INJURED PARTY. If a workers' compensation insurance
  carrier denies a claim of medical benefits on or before the 60th day
  on which the workers' compensation insurance carrier had reasonable
  notice of the specific claimed injury and upon final determination
  of an administrative law judge that the claimed injury is
  compensable, the workers' compensation insurance carrier is liable
  to reimburse the injured worker for any and all reasonable and
  necessary medical expenses incurred by the injured worker for the
  specific claimed injury.
         SECTION 4.  Title 5, Subtitle A, Chapter 410.156, Labor
  Code, is amended by adding subsection (c), (d) and (e) to read as
  follows:
         Sec. 410.156.  ATTENDANCE REQUIRED; ADMINISTRATIVE
  VIOLATION. (a) Each party shall attend a contested case hearing.
         (b)  A party commits an administrative violation if the
  party, without good cause as determined by the administrative law
  judge, does not attend a contested case hearing.
         (c)  If good cause exists, a party or witness may attend a
  contested case hearing telephonically or by videoconference.
         (d)  For the purpose of this subsection, the administrative
  law judge shall determine if good cause exists for a party or
  witness to attend the contested case hearing telephonically or by
  videoconference.
         (e)  An attorney representing a party in a contested case
  hearing, shall be permitted to represent a party to the case
  telephonically or by videoconference.
         SECTION 5.  The changes in law made by this Act apply to a
  claim for benefits, compensation, or assistance brought on or after
  the effective date of this Act. A claim for benefits, compensation,
  or assistance brought before that date is covered by the law in
  effect on the date the claim was made, and that law is continued in
  effect for that purpose.
         SECTION 6.  This Act takes effect immediately if it receives
  a vote of two-thirds of all the members elected to each house, as
  provided by Section 39, Article III, Texas Constitution. If this
  Act does not receive the vote necessary for immediate effect, this
  Act takes effect September 1, 2023.