Part 2.
TEXAS WORKERS' COMPENSATION COMMISSION
Chapter 102.
PRACTICE AND PROCEDURES--GENERAL PROVISIONS
28 TAC §102.10
The Texas Workers' Compensation Commission (the commission)
adopts new §102.10 (Interest, General) without changes to the text as
published in the September 15, 2000, issue of the
Texas Register
(25 TexReg 9180).
As required by the Texas Government Code §2001.033(1), the commission's
reasoned justification for this rule is set out in this order which includes
the preamble, which in turn includes the rule. This preamble contains a summary
of the factual basis of the rule, a summary of comments received from interested
parties, names of those groups and associations who commented and whether
they were for or against adoption of the rule, and the reasons why the commission
disagrees with some of the comments and proposals.
This rule remains unchanged from the proposal as published in the
The new rule is adopted to clarify the application of simple interest on
accrued but unpaid benefits except where compounded interest is specifically
provided for by statute or rule.
New §102.10 is added to clarify the method to be used when calculating
interest required on workers' compensation benefits under the Texas Workers'
Compensation Act (the Act). (The new rule does not address other references
to interest in the Act and recognizes that there are laws outside the Act,
which may affect the payment of interest.) The fact that there is a specific
statutory provision for
compound interest
in some parts of the Act and commission rules (for instance, for payments
to the subsequent injury fund, see Texas Labor Code §403.007(b) and 28
T.A.C. §132.10(f)), and not in others, indicates the legislature intended
to require
compound interest
only where specifically
provided. The interpretation of
simple interest
whenever the term
interest
appears with respect
to interest due on workers' compensation benefits, is consistent with Johnson &
Higgins of Texas v. Kenneco Energy, 962 S.W.2d 507, 533 (Tex. 1998), which
called for uniformity in the law holding that prejudgment interest is to be
computed as
simple interest
.
Commission Advisory 93-07 (Interest/Discount Rates Applicable to Commission
Orders for Income Benefits) addressed interest on accrued income or death
benefits and may have been misinterpreted by some to say that compound interest
was to be applied to all commission orders. Subsequent Appeals Panel decisions
have clarified that compound interest is limited to commuted death benefits
paid to the Subsequent Injury Fund. It is understood that the possibility
exists that this advisory may have been misconstrued to read that the application
of compounded interest was to be applied to all benefits. However, the paragraph
which addresses the application of compounded interest directly followed and
addressed commuted death benefits paid to the Subsequent Injury Fund referred
to in the preceding paragraph, and is limited to that situation. This limited
application of the third paragraph of the advisory has further been supported
by commission Appeals Panel decisions. The purpose of this rule is for clarification
of the statute and commission rules.
By
simple interest
the proposal refers
to interest computed for each interest period on the same amount of principle
each period, regardless of any interest accrued in the past.
One comment suggesting changes to proposed §102.10 was received from
an individual. A summary of the comment and commission's response is as follows:
COMMENT: Commentor suggested that when the law does not specify the type
of interest to be paid, then the presiding officer at the Benefit Review Conference
or Contested Case Hearing should make the decision. The commentor felt this
would provide a deterrent when carriers deny claims without justification.
Commenter also felt that the simple interest provision in the rule as proposed
provides minimal consequences for denying benefits to injured employees.
RESPONSE: The Commission disagrees. The intent of this rule is to provide
a uniform interpretation to the term
interest
.
The award of interest is to compensate for the loss of use of money which
should have been paid. Although the requirement to pay interest may act as
a deterrent to withholding money which is owed, that is not its primary purpose.
Administrative penalties may be imposed as a result of violation of the Act
or commission rules. These penalties are structured to deter and punish violations.
The commission's interpretation of the Act is that it requires use of simple
interest on payment of interest due on workers' compensation benefits, unless
the Act explicitly provides for compounded interest. The rule as proposed
follows that legislative intent; the commentor's suggestion would be contrary
to that legislative intent.
The new rule is adopted pursuant to the Texas Labor Code §402.061
which requires the commission to adopt rules necessary for the implementation
and enforcement of the Texas Workers Compensation Act; Texas Labor Code §403.007,
which provides for the insurance carrier to commute payments to the subsequent
injury fund at the rate established in §401.023, compounded annually;
Texas Labor Code §408.064, which directs interest to be paid on income
or death benefits pursuant to an order; Texas Labor Code §408.081, which
provides that the carrier must pay interest on accrued but unpaid income benefits;
Texas Labor Code §408.147, which provides for the contest of an employee's
entitlement to supplemental income benefits by an insurance carrier; Texas
Labor Code §410.208, which provides for interest on benefits recovered
by a judgment; Texas Labor Code §413.019, which directs that interest
be paid on late payments, refunds, or overpayments; and Texas Labor Code §415.008,
which directs that interest be paid on benefits fraudulently obtained or denied.
The new rule is adopted pursuant to the Texas Labor Code §§402.061,
402.061, 403.007, 401.023, 408.064, 408.081, 408.147, 410.208, 413.019, 415.008.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 22, 2001.
TRD-200101091
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: March 14, 2001
Proposal publication date: September 15, 2000
For further information, please call: (512) 804-4286
28 TAC §143.3, §143.4
The Texas Workers' Compensation Commission (the commission)
adopts amendments to §143.3 (relating to Requesting the Appeals Panel
to Review the Decision of the Hearing Officer) and §143.4 (relating to
Responding to a Request for Review by the Appeals Panel) without changes to
the proposed text published in the November 3, 2000, issue of the
Texas Register
(25 TexReg 10877) and will not be republished.
As required by the Government Code §2001.033(1), the commission's
reasoned justification for this rule is set out in this order which includes
the preamble, which in turn includes the rule. This preamble contains a summary
of the factual basis of the rule, a summary of comments received from interested
parties, names of those groups and associations who commented and whether
they were for or against adoption of the rule, and the reasons why the commission
disagrees with some of the comments and proposals.
Section 143.3(b) and §143.4(b) establish the format for the statement
certifying that a copy of the request for the Appeals Panel to review a decision
(§143.3) has been served on the other party and the statement certifying
that a copy of the response to the request (§143.4) has been served on
the appellant.
The format for the certification of service date under §143.3(b) and §143.4(b)
has been amended by replacing "19___" with "_____" for use in years on or
after January 1, 2000.
One comment proposing further amendments to §143.3 and §143.4
was received from Hermes Sargent Bates, L.L.P. A summary of the comment and
commission response follows:
COMMENT: Section 143.3 and §143.4 should be amended to permit, but
not require, parties to submit the request for review and the response to
the request for review via email and/or fax to the Appeals Panel clerk. This
is consistent with Texas Labor Code Annotated §401.021, where the Legislature
clearly intends for TWCC to reduce its paper. The date that an emailed or
faxed document is received can be actually determined.
RESPONSE: The Commission disagrees. The suggested amendment is outside
the scope of this proposed change. Labor Code §401.024 and commission
rule 102.5 govern use of electronic transmission for filings with the commission.
The amendment is adopted under the Texas Labor Code §402.061,
which authorizes the commission to adopt rules necessary to administer the
Act, Texas Labor Code, §410.004, which gives the division of hearings
the authority to conduct benefit review conferences, contested case hearings,
arbitration, and appeals within the commission related to workers' compensation
claims, Texas Labor Code, §410.202, which provides that a party shall
file a written request for appeal with the appeals panel and that a respondent
shall file a written response with the appeals panel and establishes the time
periods for these filings, and Texas Labor Code, §410.204, which provides
that the appeals panel shall issue a decision not later than the 30th day
after the date on which the written response to the request for appeal is
filed.
The amendment is adopted under the Texas Labor Code §§402.061,
410.004, 410.202, and 410.204.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 22, 2001.
TRD-200101096
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: March 14, 2001
Proposal publication date: November 3, 2000
For further information, please call: (512) 804-4287
Subchapter A. ARBITRATION
28 TAC §144.3
The Texas Workers' Compensation Commission (the commission)
adopts an amendment to §144.3 (relating to Delivery of Copies of Documents),
without changes to the proposed text published in the November 3, 2000, issue
of the
Texas Register
(25 TexReg 10879) and
will not be republished.
As required by the Government Code §2001.033(1), the commission's
reasoned justification for this rule is set out in this order which includes
the preamble, which in turn includes the rule. This preamble contains a summary
of the factual basis of the rule.
Section 144.3 establishes that a party who sends a document to the commission
or the arbitrator and the other parties shall include a statement certifying
delivery. The format for the certification of service date under §144.3,
has been amended by replacing "19___" with "_____" for use in years on or
after January 1, 2000.
No comments were received regarding the proposed amendment.
The amendment is adopted under the Texas Labor Code Annotated §402.061,
which authorizes the commission to adopt rules necessary to administer the
Act, and Texas Labor Code §410.112, Exchange and Filing of Information;
Administrative Violation, which states that a party to the arbitration proceeding
must timely file an exchange with the Arbitrator, or be subject to an administrative
violation for failure to comply with this subsection.
The amendment is adopted under the Texas Labor Code §402.061 and §410.112.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 22, 2001.
TRD-200101097
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: March 14, 2001
Proposal publication date: November 3, 2000
For further information, please call: (512) 804-4287
28 TAC §§164.1-164.4, 164.6-164.12, 164.14-164.16
The Texas Workers' Compensation Commission (the commission)
adopts amendments to §§164.1-164.4, 164.6-164.12, and 164.14-164.16,
concerning the Extra-Hazardous Employer Program, without changes to the proposed
text published in the September 15, 2000 issue of the
Texas Register
(25 TexReg 9181). The amendments are adopted to implement
a change in the name of this commission program contained in Texas Labor Code
Chapter 411, Subchapter D.
As required by the Government Code §2001.033(1), the commission's
reasoned justification for this rule is set out in this order which includes
the preamble, which in turn includes the rule. This preamble contains a summary
of the factual basis of the rule.
The 76th Legislature, 1999, in House Bill 2514, amended the Texas Labor
Code, Chapter 411, Subchapter D by changing the name of the "Extra-Hazardous
Employer Program" to the "Hazardous Employer Program." This change in program
name was effective September 1, 1999. Because the change in program name was
made by the legislature, in July of 1999 the
Texas
Register
agreed to administratively change the references to the "Extra-
Hazardous Employer Program" to the "Hazardous Employer Program" in the commission's
rules. Recently, the
Texas Register
indicated
that this change was not made administratively and therefore, it was necessary
to incorporate this change of program name into the commission's rules through
the formal rulemaking procedures of the Administrative Procedure Act. To incorporate
this change into the commission rules which relate to this program, amendments
to §§164.1-164.4, 164.6-164.12, and 164.14-164.16 are adopted which
change "Extra-Hazardous Employer Program" to "Hazardous Employer Program"
and also change references to this program. The adopted amendments make no
substantive change to the rules. In addition, the change of "an" to "a" is
adopted in appropriate places throughout the rules and correction of the rule
title reference in §164.1(b)(8) and §164.2(b)(4) are adopted.
No comments were received regarding these proposed amendments.
The amended rule is adopted pursuant to the Texas Labor Code §402.061
which requires the commission to adopt rules necessary for the implementation
and enforcement of the Texas Workers Compensation Act; and the Texas Labor
Code §§411.041-411.068, which require the commission to identify
hazardous employers and develop, implement and enforce accident prevention
programs.
The amended rule is adopted pursuant to the Texas Labor Code §§402,
and 411.041-411.068.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 22, 2001.
TRD-200101095
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: March 14, 2001
Proposal publication date: September 15, 2000
For further information, please call: (512) 804-4286
28 TAC §165.1
The Texas Workers' Compensation Commission (the commission)
adopts an amendment to §165.1 concerning identification and notification
of certain policyholders insured by the Texas Workers' Compensation Insurance
Fund (the Fund) without changes to the proposed text published in the September
15, 2000, issue of the
Texas Register
(25
TexReg 9185). The amendment is adopted to eliminate the requirement for identified
employers with corporate offices outside of Texas to provide information concerning
their senior officials in Texas to the commission.
As required by the Government Code §2001.033(1), the commission's
reasoned justification for this rule is set out in this order which includes
the preamble, which in turn includes the rule. This preamble contains a summary
of the factual basis of the rule.
Previously, subsection (c) of the rule required a policyholder whose corporate
office is outside of Texas, who received a notice from the Fund that injury
prevention services were required as a condition of insurance, to provide
information concerning its senior official in Texas to the Texas Workers Compensation
Insurance Fund and to the Texas Workers Compensation Commission. The requirement
to provide that information to the commission is deleted. The commission intends
to obtain that information exclusively from the Fund in the future.
No comments were received regarding the proposed amendment.
The amendment is adopted pursuant to the Texas Labor Code §402.061
which requires the commission to adopt rules necessary for the implementation
and enforcement of the Texas Workers Compensation Act; Texas Labor Code Chapter
415, which sets out prohibited acts, penalties, and procedures for administrative
violations; and the Texas Insurance Code, Article 5.76-3, Section 10, which
authorizes the commission to implement accident prevention plans, conduct
follow-up inspections, and enforce the plans.
The amendment is adopted pursuant to the Texas Labor Code §402.061,
Chapter 415, and the Texas Insurance Code, Article 5.76-3, Section 10.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on February 22, 2001.
TRD-200101093
Susan Cory
General Counsel
Texas Workers' Compensation Commission
Effective date: March 14, 2001
Proposal publication date: September 15, 2000
For further information, please call: (512) 804-4286
Chapter 143.
DISPUTE RESOLUTION REVIEW BY THE APPEALS PANEL
Chapter 144.
DISPUTE RESOLUTION
Chapter 164.
HAZARDOUS EMPLOYER PROGRAM
Chapter 165.
REJECTED RISK: INJURY PREVENTIONS SERVICES
Chapter 166.
WORKERS' HEALTH & SAFETY--ACCIDENT PREVENTION SERVICES