Texas Labor Code -CHAPTER 409. COMPENSATION PROCEDURES
Texas Workers Compensation Act
Title 5 - Texas Labor Code - Chapters 401-506
TABLE OF CONTENTS
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.
