2005 Texas Labor Code CHAPTER 409. COMPENSATION PROCEDURES

LABOR CODE

CHAPTER 409. COMPENSATION PROCEDURES

SUBCHAPTER A. INJURY REPORTS, CLAIMS, AND RECORDS


	§ 409.001. NOTICE OF INJURY TO EMPLOYER.  (a) An employee 
or a person acting on the employee's behalf shall notify the 
employer of the employee of an injury not later than the 30th day 
after the date on which:
		(1)  the injury occurs;  or                                                   
		(2)  if the injury is an occupational disease, the 
employee knew or should have known that the injury may be related to 
the employment.
	(b)  The notice required under Subsection (a) may be given 
to:               
		(1)  the employer;  or                                                        
		(2)  an employee of the employer who holds a 
supervisory or management position.
	(c)  If the injury is an occupational disease, for purposes 
of this section, the employer is the person who employed the 
employee on the date of last injurious exposure to the hazards of 
the disease.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.                    


	§ 409.002. FAILURE TO FILE NOTICE OF INJURY.  Failure to 
notify an employer as required by Section 409.001(a) relieves the 
employer and the employer's insurance carrier of liability under 
this subtitle unless:
		(1)  the employer, a person eligible to receive notice 
under Section 409.001(b), or the employer's insurance carrier has 
actual knowledge of the employee's injury;
		(2)  the division determines that good cause exists for 
failure to provide notice in a timely manner;  or
		(3)  the employer or the employer's insurance carrier 
does not contest the claim.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 2005, 79th Leg., ch. 265, § 3.134, eff. Sept. 1, 2005.


	§ 409.003. CLAIM FOR COMPENSATION.  An employee or a 
person acting on the employee's behalf shall file with the division 
a claim for compensation for an injury not later than one year after 
the date on which:
		(1)  the injury occurred;  or                                                 
		(2)  if the injury is an occupational disease, the 
employee knew or should have known that the disease was related to 
the employee's employment.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 2005, 79th Leg., ch. 265, § 3.135, eff. Sept. 1, 2005.


	§ 409.004. EFFECT OF FAILURE TO FILE CLAIM FOR 
COMPENSATION.  Failure to file a claim for compensation with the 
division as required under Section 409.003 relieves the employer 
and the employer's insurance carrier of liability under this 
subtitle unless:
		(1)  good cause exists for failure to file a claim in a 
timely manner;  or  
		(2)  the employer or the employer's insurance carrier 
does not contest the claim.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 2005, 79th Leg., ch. 265, § 3.136, eff. Sept. 1, 2005.


	§ 409.005. REPORT OF INJURY;  MODIFIED DUTY PROGRAM 
NOTICE;  ADMINISTRATIVE VIOLATION.  (a) An employer shall report to 
the employer's insurance carrier if:
		(1)  an injury results in the absence of an employee of 
that employer from work for more than one day;  or
		(2)  an employee of the employer notifies that employer 
of an occupational disease under Section 409.001.
	(b)  The report under Subsection (a) must be made not later 
than the eighth day after:
		(1)  the employee's absence from work for more than one 
day due to an injury;  or
		(2)  the day on which the employer receives notice 
under Section 409.001 that the employee has contracted an 
occupational disease.
	(c)  The employer shall deliver a written copy of the report 
under Subsection (a) to the injured employee at the time that the 
report is made to the insurance carrier.
	(d)  The insurance carrier shall file the report of the 
injury on behalf of the policyholder.  Except as provided by 
Subsection (e), the insurance carrier must electronically file the 
report with the division not later than the seventh day after the 
date on which the carrier receives the report from the employer.
	(e)  The commissioner may waive the electronic filing 
requirement under Subsection (d) and allow an insurance carrier to 
mail or deliver the report to the division not later than the 
seventh day after the date on which the carrier receives the report 
from the employer.
	(f)  A report required under this section may not be 
considered to be an admission by or evidence against an employer or 
an insurance carrier in a proceeding before the division or a court 
in which the facts set out in the report are contradicted by the 
employer or insurance carrier.
	(g)  In addition to any information required under 
Subsection (h), the report provided to the injured employee under 
Subsection (c) must contain a summary written in plain language of 
the employee's statutory rights and responsibilities under this 
subtitle.
	(h)  The commissioner may adopt rules relating to:                             
		(1)  the information that must be contained in a report 
required under this section, including the summary of rights and 
responsibilities required under Subsection (g);  and
		(2)  the development and implementation of an 
electronic filing system for injury reports under this section.
	(i)  An employer and insurance carrier shall file subsequent 
reports as required by commissioner rule.
	(j)  The employer shall, on the written request of the 
employee, a doctor, the insurance carrier, or the division, notify 
the employee, the employee's treating doctor if known to the 
employer, and the insurance carrier of the existence or absence of 
opportunities for modified duty or a modified duty return-to-work 
program available through the employer.  If those opportunities or 
that program exists, the employer shall identify the employer's 
contact person and provide other information to assist the doctor, 
the employee, and the insurance carrier to assess modified duty or 
return-to-work options.
	(k)  This section does not prohibit the commissioner from 
imposing requirements relating to return-to-work under other 
authority granted to the division in this subtitle.
	(l)  A person commits an administrative violation if the 
person fails to comply with this section unless good cause exists.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 1995, 74th Leg., ch. 980, § 1.29, eff. Sept. 1, 1995;  
Acts 2001, 77th Leg., ch. 1456, § 3.01, eff. June 17, 2001;  Acts 
2005, 79th Leg., ch. 265, § 3.137, eff. Sept. 1, 2005.


	§ 409.006. RECORD OF INJURIES;  ADMINISTRATIVE 
VIOLATION.  (a) An employer shall maintain a record of each 
employee injury as reported by an employee or otherwise made known 
to the employer.
	(b)  The record shall be available to the division at 
reasonable times and under conditions prescribed by the 
commissioner.
	(c)  The commissioner may adopt rules relating to the 
information that must be contained in an employer record under this 
section.
	(d)  Information contained in a record maintained under this 
section is not an admission by the employer that:
		(1)  the injury did in fact occur;  or                                        
		(2)  a fact maintained in the record is true.                                 
	(e)  A person commits an administrative violation if the 
person fails to comply with this section.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 2005, 79th Leg., ch. 265, § 3.138, eff. Sept. 1, 2005.


	§ 409.007. DEATH BENEFIT CLAIMS.  (a) A person must file a 
claim for death benefits with the division not later than the first 
anniversary of the date of the employee's death.
	(b)  Failure to file in the time required by Subsection (a) 
bars the claim unless:
		(1)  the person is a minor or incompetent;  or                                
		(2)  good cause exists for the failure to file a claim 
under this section.  
	(c)  A separate claim must be filed for each legal 
beneficiary unless the claim expressly includes or is made on 
behalf of another person.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 2005, 79th Leg., ch. 265, § 3.139, eff. Sept. 1, 2005.


	§ 409.008. FAILURE TO FILE EMPLOYER REPORT OF INJURY;  
LIMITATIONS TOLLED.  If an employer or the employer's insurance 
carrier has been given notice or has knowledge of an injury to or 
the death of an employee and the employer or insurance carrier 
fails, neglects, or refuses to file the report under Section 
409.005, the period for filing a claim for compensation under 
Sections 409.003 and 409.007 does not begin to run against the claim 
of an injured employee or a legal beneficiary until the day on which 
the report required under Section 409.005 has been furnished.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.                    


	§ 409.009. SUBCLAIMS.  A person may file a written claim 
with the division as a subclaimant if the person has:
		(1)  provided compensation, including health care 
provided by a health care insurer, directly or indirectly, to or for 
an employee or legal beneficiary;  and
		(2)  sought and been refused reimbursement from the 
insurance carrier.      

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 2005, 79th Leg., ch. 265, § 3.140, eff. Sept. 1, 2005.


	§ 409.010. INFORMATION PROVIDED TO EMPLOYEE OR LEGAL 
BENEFICIARY.  Immediately on receiving notice of an injury or death 
from any person, the division shall mail to the employee or legal 
beneficiary a clear and concise description of:
		(1)  the services provided by:                                                
			(A)  the division;  and                                                      
			(B)  the office of injured employee counsel, 
including the services of the ombudsman program;
		(2)  the division's procedures;  and                                          
		(3)  the person's rights and responsibilities under 
this subtitle.          

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 2005, 79th Leg., ch. 265, § 3.141, eff. Sept. 1, 2005.


	§ 409.011. INFORMATION PROVIDED TO EMPLOYER;  EMPLOYER'S 
RIGHTS.  (a) Immediately on receiving notice of an injury or death 
from any person, the division shall mail to the employer a 
description of:
		(1)  the services provided by the division and the 
office of injured employee counsel;
		(2)  the division's procedures;  and                                          
		(3)  the employer's rights and responsibilities under 
this subtitle.        
	(b)  The information must include a clear statement of the 
following rights of the employer:
		(1)  the right to be present at all administrative 
proceedings relating to an employee's claim;
		(2)  the right to present relevant evidence relating to 
an employee's claim at any proceeding;
		(3)  the right to report suspected fraud;                                     
		(4)  the right to contest the compensability of an 
injury if the insurance carrier accepts liability for the payment 
of benefits;
		(5)  the right to receive notice, after making a 
written request to the insurance carrier, of:
			(A)  a proposal to settle a claim;  or                                       
			(B)  an administrative or a judicial proceeding 
relating to the resolution of a claim;  and
		(6)  the right to contest the failure of the insurance 
carrier to provide accident prevention services under Subchapter E, 
Chapter 411.
	(c)  The division is not required to provide the information 
to an employer more than once during a calendar year.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 2005, 79th Leg., ch. 265, § 3.142, eff. Sept. 1, 2005.


	§ 409.012. VOCATIONAL REHABILITATION INFORMATION.  (a) 
The division shall analyze each report of injury received from an 
employer under this chapter to determine whether the injured 
employee would be assisted by vocational rehabilitation.
	(b)  If the division determines that an injured employee 
would be assisted by vocational rehabilitation, the division shall 
notify:
		(1)  the injured employee in writing of the services 
and facilities available through the Department of Assistive and 
Rehabilitative Services and private providers of vocational 
rehabilitation;  and
		(2)  the Department of Assistive and Rehabilitative 
Services and the affected insurance carrier that the injured 
employee has been identified as one who could be assisted by 
vocational rehabilitation.
	(c)  The division shall cooperate with the office of injured 
employee counsel, the Department of Assistive and Rehabilitative 
Services, and private providers of vocational rehabilitation in the 
provision of services and facilities to employees by the Department 
of Assistive and Rehabilitative Services.
	(d)  A private provider of vocational rehabilitation 
services may register with the division.
	(e)  The commissioner by rule may require that a private 
provider of vocational rehabilitation services maintain certain 
credentials and qualifications in order to provide services in 
connection with a workers' compensation insurance claim.
	(f)  The division and the Department of Assistive and 
Rehabilitative Services shall report to the legislature not later 
than August 1, 2006, on their actions to improve access to and the 
effectiveness of vocational rehabilitation programs for injured 
employees.  The report must include:
		(1)  a description of the actions each agency has taken 
to improve communication regarding and coordination of vocational 
rehabilitation programs;
		(2)  an analysis identifying the population of injured 
employees that have the poorest return-to-work outcomes and are in 
the greatest need for vocational rehabilitation services;
		(3)  any changes recommended to improve the access to 
and effectiveness of vocational rehabilitation programs for the 
populations identified in Subdivision (2);  and
		(4)  a plan to implement these changes.                                       

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 1999, 76th Leg., ch. 956, § 2, eff. Sept. 1, 1999;  Acts 
2005, 79th Leg., ch. 265, § 3.143, eff. Sept. 1, 2005.


	§ 409.013. PLAIN LANGUAGE INFORMATION;  NOTIFICATION OF 
INJURED EMPLOYEE.  (a) The division shall develop information for 
public dissemination about the benefit process and the compensation 
procedures established under this chapter.  The information must be 
written in plain language and must be available in English and 
Spanish.
	(b)  On receipt of a report under Section 409.005, the 
division shall contact the affected employee by mail or by 
telephone and shall provide the information required under 
Subsection (a) to that employee, together with any other 
information that may be prepared by the office of injured employee 
counsel or the division for public dissemination that relates to 
the employee's situation, such as information relating to back 
injuries or occupational diseases.

Added by Acts 1995, 74th Leg., ch. 980, § 1.30, eff. Sept. 1, 
1995.  Amended by Acts 2005, 79th Leg., ch. 265, § 3.144, eff. 
Sept. 1, 2005.

SUBCHAPTER B. PAYMENT OF BENEFITS


	§ 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.         
	(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.
	(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)  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)  An insurance carrier commits a violation if the 
insurance carrier does not initiate payments or file a notice of 
refusal as required by this section.  A violation under this 
subsection shall be assessed at $500 if the carrier initiates 
compensation or files a notice of refusal within five working days 
of the date required by Subsection (a), $1,500 if the carrier 
initiates compensation or files a notice of refusal more than five 
and less than 16 working days of the date required by Subsection 
(a), $2,500 if the carrier initiates compensation or files a notice 
of refusal more than 15 and less than 31 working days of the date 
required by Subsection (a), or $5,000 if the carrier initiates 
compensation or files a notice of refusal more than 30 days after 
the date required by Subsection (a).  The administrative penalties 
are not cumulative.

Text of subsec. (f) as added by Acts 2003, 78th Leg., ch. 939, § 1
	(f)  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).

Text of subsec. (f) as added by Acts 2003, 78th Leg., ch. 1100, § 
1
	(f)  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.
	(g)  to (i) Blank.                                                             
	(j)  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.

Added by Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  
Amended by Acts 2003, 78th Leg., ch. 939, § 1, eff. Sept. 1, 
2003;  Acts 2003, 78th Leg., ch. 1100, § 1, eff. Sept. 1, 2003;  
Acts 2005, 79th Leg., ch. 265, § 3.145, eff. Sept. 1, 2005.


	§ 409.022. REFUSAL TO PAY BENEFITS;  NOTICE;  
ADMINISTRATIVE VIOLATION.  (a) An insurance carrier's notice of 
refusal to pay benefits under Section 409.021 must specify the 
grounds for the refusal.
	(b)  The grounds for the refusal specified in the notice 
constitute the only basis for the insurance carrier's defense on 
the issue of compensability in a subsequent proceeding, unless the 
defense is based on newly discovered evidence that could not 
reasonably have been discovered at an earlier date.
	(c)  An insurance carrier commits an administrative 
violation if the insurance carrier does not have reasonable grounds 
for a refusal to pay benefits, as determined by the commissioner.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 2005, 79th Leg., ch. 265, § 3.146, eff. Sept. 1, 2005.


	§ 409.023. PAYMENT OF BENEFITS;  ADMINISTRATIVE 
VIOLATION.  (a) An insurance carrier shall continue to pay benefits 
promptly as and when the benefits accrue without a final decision, 
order, or other action of the commissioner, except as otherwise 
provided.
	(b)  Benefits shall be paid solely to the order of the 
employee or the employee's legal beneficiary.
	(c)  An insurance carrier commits an administrative 
violation if the insurance carrier fails to comply with this 
section.
	(d)  An insurance carrier that commits multiple violations 
of this section commits an additional administrative violation and 
is subject to:
		(1)  the sanctions provided under Section 415.023;  and                       
		(2)  revocation of the right to do business under the 
workers' compensation laws of this state.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 2005, 79th Leg., ch. 265, § 3.147, eff. Sept. 1, 2005.


	§ 409.0231. PAYMENT BY ELECTRONIC FUNDS TRANSFER.  (a) An 
insurance carrier shall offer employees entitled to the payment of 
benefits for a period of sufficient duration the option of 
receiving the payments by electronic funds transfer.  The insurance 
carrier shall provide the necessary forms to an employee who 
requests that benefits be paid by electronic funds transfer.
	(b)  The commissioner shall adopt rules in consultation with 
the Texas Department of Information Resources as necessary to 
implement this section, including rules prescribing a period of 
benefits that is of sufficient duration to allow payment by 
electronic funds transfer.

Added by Acts 1999, 76th Leg., ch. 690, § 1, eff. Sept. 1, 1999.  
Amended by Acts 2005, 79th Leg., ch. 265, § 3.148, eff. Sept. 1, 
2005.


	§ 409.0232. TIMELINESS OF PAYMENTS.  An insurance carrier 
is considered to have paid benefits in a timely manner if a payment:
		(1)  is made by electronic funds transfer and is 
deposited in the employee's account on or before the benefit 
payment due date;
		(2)  is made by mail and is mailed in time for the 
payment to be postmarked on or before the benefit payment due date;  
or
		(3)  is to be picked up by the employee and the payment 
is made available to the employee during regular business hours not 
later than the opening of business on the benefit payment due date.

Added by Acts 1999, 76th Leg., ch. 690, § 1, eff. June 18, 1999.           


	§ 409.024. TERMINATION OR REDUCTION OF BENEFITS;  NOTICE;  
ADMINISTRATIVE VIOLATION.  (a) An insurance carrier shall file 
with the division a notice of termination or reduction of benefits, 
including the reasons for the termination or reduction, not later 
than the 10th day after the date on which benefits are terminated or 
reduced.
	(b)  An insurance carrier commits an administrative 
violation if the insurance carrier does not have reasonable grounds 
to terminate or reduce benefits, as determined by the commissioner.

Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.  Amended 
by Acts 2005, 79th Leg., ch. 265, § 3.149, eff. Sept. 1, 2005.