DWC Proposes Two Legislative Recommendations for 2019 Session
The Division of Workers’ Compensation has proposed two legislative recommendations for the 86th Texas Legislature, which convenes in Austin on January 8, 2019. The proposals are contained in the agency’s biennial report to the 86th Texas Legislature, which was posted on the DWC website December 1, 2018. The report also identifies one “emerging issue” without proposing any particular legislative change to the Act.
In its first proposal, the Division recommends amending Texas Labor Code §406.145 (f) to remove the requirement for hiring contractors to file the DWC-84, Exception to Application of Joint Agreement for Certain Building and Construction Workers, with DWC. Under the proposal the form would continue to be sent to the hiring contractor’s insurance carrier and would be available to DWC, if requested.
The bill appears to correct an oversight from the 2017 session where HB 2112 made several changes to Chapter 406 to eliminate obsolete reporting requirements. The reporting requirement relating to the DWC-84 was inexplicably omitted from that legislation.
The Division’s second proposal concerns healthcare provided to injured employees in federal medical facilities. This recommendation is designed to address the issue of injured employees being balance-billed when receiving medical care at military treatment facilities. The Division recommends that the legislature create a new section in Chapter 413 that would provide a definition of “federal military treatment facility” and would clarify that medical care provided in these facilities is exempt from certain workers’ compensation-specific statutory requirements in Labor Code Chapters 408, 413, and 504 relating to medical billing and reimbursement, as well as network requirements in Texas Insurance Code, Chapter 1305.
Finally, the Division has highlighted an issue related to first responders, without making a specific legislative recommendation on that issue. The issue concerns presumptions created under Chapter 607 of the Texas Government Code. That Chapter creates rebuttable presumptions for firefighters and EMTs who are diagnosed with certain forms of cancer, heart attacks and strokes, tuberculosis and other respiratory diseases, and smallpox or other diseases for which immunization is possible. According to the Division:
Some system participants have expressed concern about the frequency at which these cancer claims are being initially denied, while others are concerned about the potential cost that these cancer claims pose to political subdivisions. As most firefighters and EMTs are employed by political subdivisions, the denials are mainly coming from individually self-insured cities or municipalities, or political subdivisions that are part of larger intergovernmental risk pools. At times, political subdivisions have interpreted the IARC information to argue that only three types of cancer: prostate, testicular, and non-Hodgkin’s lymphoma, qualify for the statutory presumption under Texas Government Code, Chapter 607. Firefighters, EMTs, and their beneficiaries argue that any cancer that can be tied to on-the-job exposures documented by IARC are presumed to be work-related. As a result, the statutory presumption language in Texas Government Code, Chapter 607 is interpreted in different ways by different parties in the workers’ compensation system.
The description of this emerging issue in the Division’s report to the legislature appears to be educational in nature, for members who may not have familiarity with the points of view of the first responders or the governmental entities that employ them.
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