DWC Adopts New Enforcement and Presumption Rules Under SB 2551
The Division of Workers’ Compensation has adopted amendments to 28 Texas Administrative Code §§124.2, 124.3, 180.8, and 180.26 to implement Senate Bill 2551, 86th Legislature. The rules took effect January 1
These amendments involve process changes for claims by first responders that may qualify for a presumption under Texas Government Code Chapter 607, Subchapter B. Several changes were made in response to the comments received. Editorial corrections are made throughout these amendments to provide clarity and to align the rule with current agency style.
The adopted rules will be published in the January 10, 2020, issue of the Texas Register and will be available at www.sos.state.tx.us/texreg/index.shtml once published. A courtesy copy is presently available on the Division website.
DWC has also adopted a new PLN-14, Notice of Continuing Investigation, as a template for an insurance carrier to use when communicating with a first responder whose claim may be subject to a presumption under Government Code Chapter 607, Subchapter B.
Under the rules, a presumption is claimed to be applicable upon a first responder’s written notice of injury for a disease or illness identified by Subchapter B. A written notice of injury constitutes a claim for any presumption under Subchapter B, and the rules provide that an insurance carrier has the duty to investigate whether a presumption does or does not apply to an individual claim.
The Division states that whether a presumption does or does not apply has no direct bearing on issues relating to compensability, liability for the injury, and the accrual of benefits. “For instance, if an injured employee is a smoker, the employee nonetheless may have suffered a compensable injury even if the presumption under Government Code §607.054 does not apply. Accordingly, as set forth in subsection (g)(3), an insurance carrier has a continuing obligation to conduct a reasonable investigation even when a presumption does not apply or may be rebuttable.”
Section 409.021(a-3) of the statute created a unique procedure to extend the time to pay or dispute a claim based on an injury to which a presumption may be applicable. The procedure applies to any presumptive injury or illness – not just cancer claims. See Chapter 607 of the Government Code.
The amendments to Rule 124.3(a)(1-4) address the use of a new form, the Notice of Continuing Investigation, which is used to extend the deadline. By issuing a timely Notice of Continuing Investigation, an insurance carrier is allowed additional time to investigate a claim before deciding to pay or deny a claim on or before the 60th day from written notice of injury. §409.021(a-3). Under Rule 124.3(a)(4), if a Notice of Continuing Investigation is issued after the 15th day from receipt of written notice of injury, the insurance carrier is liable for accrued or payable income and medical benefits prior to a timely denial.
Rule 124.2 Insurance Carrier Reporting and Notification Requirements
• Adds Subsection (f) that describes the three alternative actions that an insurance carrier must take no later than the 15th day from the notice of injury: pay the claim, deny it, or issue a Notice of Continuing Investigation.
• Adds Subsection (g) which provides that a “claim for benefits” means the first written notice of injury.
• Adds Subsection (h) that describes the elements of a Notice of Continuing Investigation, as authorized under Texas Labor Code §409.021(a-3).
• Adds Subsection (j) that lists requirements for a notice of denial for a disease or illness covered by Texas Government Code, Chapter 607, Subchapter B.
• Adds Subsection (s) to require insurance carriers to provide all required plain language notices to claimants using plain language and a minimum font size of 12-point.
Rule 124.3 Investigation of an Injury and Notice of Denial or Dispute
• Amends Subsection (a)(1-5) to provide for a Notice of Continuing Investigation.
• Amends Subsection (a)(4) to provide that an insurance carrier’s failure to file a timely Notice of Continuing Investigation obligates the insurance carrier to pay all accrued and accruing income and medical benefits, subject to contesting compensability on or before the 60th day from written notice of injury.
• Deletes Subsection (a)(5)(A-C) to remove outdated penalty provisions.
• Amends Subsection (d) to provide for a Notice of Continuing Investigation relating to a claim for death benefits.
• Adds Subsection (e) to provide for a Notice of Continuing Investigation relating to a claim for burial benefits.
• Deletes the obsolete text of Subsection (f).
• Adds Subsection (g) regarding an insurance carrier’s investigation of a claim and any applicable statutory presumption. Provides that a claimant is not required to expressly claim a presumption and that an insurance carrier is required to investigate the applicability of the statutory presumption.
Rule 180.8 Notices of Violation; Notices of Hearing; Default Judgments
• Amends Subsection (b)(4) to include the factors from Labor Code §415.021(c-2).
Rule 180.26 Criteria for Imposing, Recommending and Determining Sanctions; Other Remedies
• Adds Subsection (f) to provide that when an insurance carrier has provided a Notice of Continuing Investigation, DWC must consider the factors under Labor Code §415.021(c-2).
• Amends Subsection (i), previously (h), to note that DWC must consider the factors from Labor Code §415.021(c-2) as part of the appropriateness of a sanction.
• Amends Subsection (j)(2), previously (i), to note that a consent order will include an acknowledgement that DWC considered the factors from Labor Code §415.021(c-2).
The changes in law made by SB 2551 apply to a claim for benefits filed on or after June 10, 2019, the effective date of SB 2551. Section 8 of SB 2551 provides that the amendments to Government Code §607.055 and §607.058 apply only to a claim for benefits filed on or after June 10, 2019. Section 10 of SB 2551 provides that Labor Code §504.053(e)(1) applies only to administrative violations that occur filed on or after June 10, 2019. The amendments will not apply to a claim for benefits filed before June 10, 2019.
If you have questions concerning these rules, please contact Steve Tipton, James Sheffield, or Bobby Stokes.
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