Five First Responder Bills Pass this Session

The 86^th Regular Session of the Texas Legislature adjourned
May 27, 2019. Five first responder bills passed this session and are on their
way to Governor Greg Abbott’s desk, while five more bills aimed at cities and
other governmental entities failed to pass.

During the 85^th Session, the Legislature adopted specific
criteria that forms the basis of a compensable PTSD claim for first responders.
This session, HB
2143 amended that section and provides that PTSD suffered by a first
responder is a compensable injury under this subtitle only if it is based on a
diagnosis that: the disorder is caused by one or more events occurring in the
course and scope of the first responder’s employment so long as the event or
events is a producing cause of the disorder.

HB
1090 by Rep. Bell expands the definition of “first responder” to
include an emergency response operator or emergency services dispatcher who
provides communication support services for an agency by responding to requests
for assistance in emergencies; and other emergency response personnel employed
by an agency.

Surviving spouses of first responders have been permitted to remarry
without losing death benefit entitlement under the Texas Act. HB
2503 by Rep. Kacal extends that eligibility to the surviving spouses
of other state employees such as peace officers, parole officers, jailers or
guards or other employees described by Section 615.003(1), Government Code, or
Section 501.001(5)(F). The new provision applies regardless of the date on which
the death of the first responder or other individual occurred.

Since 2005 firefighters and EMTs have been entitled to claim that
certain diseases and injuries are presumed to be related to their work. SB
1582 by Sen. Lucio expands the presumption statute to apply in some
cases also to peace officers. The firefighter presumption for certain forms of
cancer does not apply to peace officers under this legislation.

SB 2551 by Sen. Hinojosa involves the cancer presumption found in Chapter 607 of the Texas Government Code. Previously, § 607.055 provided that cancers which the International Agency for Research on Cancer had determined may be related to firefighting were presumed to be compensable under the Workers’ Compensation Act. The IARC published a monograph that determined that three types of cancer (prostate, testicular and non-Hodgkin lymphoma) may be related to firefighting. This bill expands the presumption to 11 types of cancer (a cancer that originates at the stomach, colon, rectum, skin, prostate, testis, or brain; non-Hodgkin’s lymphoma; multiple myeloma; malignant melanoma; and renal cell carcinoma).

The bill makes a significant change to the timeframe in which presumption claims should be processed. The changes apply only to claims involving a chapter 607 presumption. In such claims, the self insurer has 15 days to investigate the claim initially. If, on or before day 15 the claim cannot be accepted or denied, the self insurer can file a notice with the Division that describes its investigation and identifies the information it believes it needs to complete its investigation. If such a notice is timely filed and delivered to the employee, the self insurer has an additional 45 days to complete its investigation before it is obligated to pay or dispute the claim.

The bill also changes the standard to be applied for rebutting the
presumption and requires an administrative law judge to make specific findings
of fact and conclusions of law. In addition, the bill waives governmental
immunity for fee shifted attorneys’ fees under § 408.221(c). This waiver of
immunity is applicable generally and not just with regard to presumption cases.
In effect, the bill has reversed the decision of the Texas Supreme Court in Manbeck
v. Austin Independent School District.

Finally, SB 2551 provides that a pool or a political subdivision that
self-insures  may establish an account
for the payment of death benefits and lifetime income benefits which may
accumulate assets in an amount that the pool or political subdivision, in its
sole discretion, determines is necessary in order to pay death benefits and
lifetime income benefits. The Public Funds Investment Act does not apply to the
investment of assets in an account established under this section.

A number of bills that would have affected self-insured governmental
entities did not pass this session. One of the more important of those bills was
HB
359, which would have placed restrictions on the ability of cities
and counties to discharge an employee based on the employee’s inability to
perform his duties due to a compensable injury. That bill died in a Senate
committee. As proposed, HB
1521 would have required the Division to assess an administrative
penalty of at least two times the amount of benefits payable on a claim if the
carrier committed an administrative violation in connection with a workers ’
compensation claim filed by an a peace officer or firefighter.

HB
3492 would have created a presumption of compensability in favor of
first responders for PTSD claims. The bill died in a House committee. HB
3676 would have created automatic LIBs entitlement for any first
responder who has been determined to be permanently and totally disabled by the
Bureau of Justice Assistance of the U.S. Department of Justice under the
federal Public Safety Officers’ Benefits Act of 1976. Finally, HB
3996 would have expanded the list of cancers to which the § 607.055
presumption applies to 24 different cancers for which benefits are payable
under the World Trade Center Health Program administered by the Centers for
Disease Control. The bill died in a House committee.