28 TAC §§141.5 - 141.7
The Texas Department of Insurance, Division of Workers' Compensation
proposes amendments to §§141.5 - 141.7, pertaining to interlocutory
orders. These proposed amendments are necessary to address House Bill (HB)
7 amendments to Labor Code §410.032 and §410.033, which establish
requirements for requesting and issuing interlocutory orders for the payment
of benefits pending final resolution of a dispute. HB 7 amended Labor Code §410.032
to prohibit a benefit review officer who presides over a dispute from issuing
an interlocutory order in that dispute. HB 7 amended Labor Code §410.033
by authorizing the Commissioner to issue an interlocutory order directing
each insurance carrier to pay a proportionate share of benefits in disputes
where two or more insurance carriers are liable for the injured employee's
compensable or work-related injuries.
The proposed amendments to §141.5 prohibit a benefit review officer
from issuing an interlocutory order during or at the conclusion of a benefit
review conference. The proposed amendments to §141.6 establish the method
and timeframes for requesting interlocutory orders. At any time within 10
days after a benefit review conference has concluded, a person seeking benefits
may request an interlocutory order. Division staff designated by the Commissioner
will consider the request, along with any response by the insurance carrier,
and either deny the request or issue an interlocutory order. The proposed
section also gives the designated Division staff the option of conducting
a teleconference with the parties prior to acting on a request. The proposed
amendments to §141.7 remove the reference to a benefit review officer
sending an interlocutory order to Austin as part of the benefit review officer's
report.
Heidi Jackson, Director, Claims Services, has determined that for each
year of the first five years the proposed sections will be in effect there
will be no fiscal impact to state and local governments as a result of the
enforcement or administration of the rule. There will be no measurable effect
on local employment or the local economy as a result of the proposal.
Ms. Jackson has also determined that for each year of the first five years
the sections are in effect, the public benefits anticipated as a result of
the proposed sections will be restructuring the benefit review conferences
to more closely resemble a mediation session where the benefit review officer
would be more objective, not have a stake in the outcome, and not make recommendations
or consider requests for interlocutory orders. The interlocutory order is
an avenue where injured employees may obtain benefits while adjudicating the
dispute and the insurance carrier is entitled to a refund if the dispute is
resolved in the carrier's favor. The proposed sections establish a process
for considering requests for interlocutory orders by staff designated by the
Commissioner, other than a benefit review officer assigned to the dispute.
Removing the benefit review officer's ability to issue interlocutory orders
gives insurance carriers and injured employees a stronger and more objective
dispute resolution process. The proposed process establishes a simple way
to make a request with a new form, assures due process for the carriers, as
well as expedites the process to alleviate financial hardships. All requests
will come through the Division's central office in Austin, which is anticipated
to bring better consistency to the determination process for both insurance
carriers and injured employees.
The Division anticipates that 300-500 requests for interlocutory orders
will be processed within one year. The Division has historically processed
an average of 664 interlocutory orders per year based on 2004 and 2005 Division
statistics. The anticipated reduction of interlocutory orders processed in
the workers' compensation system is likely to provide a cost savings for both
insurance carriers and injured employees. It is anticipated that the increased
costs associated with the adoption of the proposed rule will be offset by
the reduction of interlocutory orders requested. The probable economic cost
to persons required to comply with the sections will vary depending on the
number of times an interlocutory order is requested.
Injured employees may realize the cost of postage to send the request to
the Division and other parties in the dispute. Injured employees may also
realize additional costs in attorney fees to complete and file the required
form. It is anticipated that an attorney should be able to complete the form
in 30 minutes or less, which may cost approximately $75 - $100.
Insurance carriers may realize a minimal financial impact as a result of
the proposed sections. Insurance carriers will also be required to send their
response to the injured employee or representative and other parties in the
dispute, which may result in an approximate $2 postage cost. Insurance carriers
may also realize additional attorney's fee costs resulting in approximately
$75 - $100 for the 30 minutes or less time to respond to the interlocutory
order request.
Any additional economic costs currently exist under existing rules or result
from the enactment of HB 7 and are not a result of the adoption, enforcement,
or administration of the proposed sections. There will be no difference in
the cost of compliance between a large and small business as a result of the
proposed sections. Based upon the cost of labor per hour, there is no disproportionate
economic impact on small or micro businesses. Even if the proposed sections
would have an adverse effect on small or micro businesses, it is neither legal
nor feasible to waive the provisions of the proposed sections for small or
micro businesses because the Labor Code requires equal application of these
provisions to all affected individuals.
To be considered, written comments on the proposal must be submitted no
later than 5:00 p.m. on March 20, 2006, to Norma Garcia, General Counsel,
MS 4D, Division of Workers' Compensation, Texas Department of Insurance, 7551
Metro Center Drive, Suite 100, Austin, Texas 78744. An additional copy of
the comment must be simultaneously submitted to Heidi Jackson, Director of
Claims Services, MS 30, Division of Workers' Compensation, Texas Department
of Insurance, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744. A request
for a public hearing should be submitted separately to the General Counsel.
The amendments are proposed under the Labor Code §§410.032,
410.033, 402.00111, and 402.061. Section 410.032 provides that as designated
by the Commissioner, division staff, other than the benefit review officer
who presided or will preside at the benefit review conference, shall consider
a request for an interlocutory order and shall issue an interlocutory order
if determined to be appropriate. The order may address accrued benefits, further
benefits, or both accrued benefits and future benefits. Section 410.033 provides
if there is a dispute as to which of two or more insurance carriers is liable
for compensation for one or more compensable injuries, the Commissioner may
issue an interlocutory order directing each insurance carrier to pay a proportionate
share of benefits due pending a final decision on liability. Section 402.00111
provides that the Commissioner of Workers' Compensation shall exercise all
executive authority, including rulemaking authority, under the Labor Code
and other laws of this state. Section 402.061 provides the Commissioner the
authority to adopt rules as necessary to implement and enforce the Texas Workers'
Compensation Act.
The following sections are affected by this proposal: Labor Code §410.032
and §410.033
§141.5.Description of the Benefit Review Conference.
(a) - (b)
(No change.)
(c)
Opening. The benefit review officer shall:
(1) - (2)
(No change.)
(3)
explain the purpose of the conference[
,
] and
the procedures and time frame to be observed;
(4) - (5)
(No change.)
(d)
Mediation. The benefit review officer shall:
(1)
(No change.)
(2)
encourage the parties to discuss the disputed issues[
,
] and ask and answer questions;
(3)
(No change.)
(4)
permit other participants to discuss the disputed issues[
,
] and ask and answer questions, to the extent the benefit review officer
deems appropriate;
(5) - (6)
(No change.)
(7)
assist the parties
in resolving
[
to resolve
] disputed issues by agreement or settlement.
(e)
Closing. The benefit review officer shall:
(1)
assist the parties
in reducing
[
to reduce
] agreements or settlements to writing; [
and
]
(2)
identify any issues left unresolved
; and
(3)
if available information pertinent
to the resolution of the disputed issue(s) was not produced at the benefit
review conference, schedule a second benefit review conference if a second
one has not already been conducted.
[
(f)
Interlocutory orders. Pursuant
to §141.6 of this title (relating to Interlocutory Orders), the benefit
review office may enter interlocutory orders.]
§141.6. Requesting Interlocutory Orders.
(a)
An injured employee, subclaimant,
or beneficiary may request from the Division an interlocutory order for the
payment of accrued and/or future benefits within 10 days of the conclusion
of a benefit review conference in which the unresolved issues were scheduled
for a contested case hearing.
(b)
The request shall be in writing
in the form and manner prescribed by the Division and shall be specific as
to the benefits being sought. All supporting documentation shall accompany
the request.
(c)
When a request is filed with
the Division, the party making the request shall provide a copy of the request
with all supporting documentation directly to the representative that appeared
for the carrier at the benefit review conference. Failure to provide a copy
to the carrier representative may result in a delay of the processing of the
request.
(d)
Upon receipt of a request for
an interlocutory order, a carrier representative shall file an immediate response
and submit any additional documentation for consideration. The Division shall
contact the carrier representative that appeared at the benefit review conference,
electronically or by telephone, to request a response if one has not been
received within five days. The Division may provide a copy of the request
to a carrier representative if necessary.
(e)
Within 10 days of receiving
a request for an interlocutory order, Division staff, as designated by the
Commissioner, shall either:
(1)
deny the request for an interlocutory order;
(2)
issue an interlocutory order as provided for
in subsection (g) of this section, or;
(3)
schedule a teleconference to take place within
five days to consider written documentation and arguments of the parties regarding
the request for an interlocutory order.
(f)
If the Division schedules a
teleconference, the Division shall provide the parties with the date and time
of the teleconference by electronic transmission, personal delivery, or telephone.
Other benefit review conference participants may participate in the teleconference
at the discretion of the Division. Testimony will not be accepted and no official
record will be made of a teleconference.
(g)
[
(a)
]
Upon a determination
that the issuance of an interlocutory order is appropriate, the Division
[
At the close of the benefit review conference, benefit review officer
]
may enter interlocutory orders as follows:
(1)
when the benefit dispute involves payment of benefits,
the
Division
[
benefit review officer
] may order the
carrier to pay all or part of
death, burial,
medical
,
or
income benefits. The order may address either or both accrued and future benefits.
Such an order is binding until reversed or modified by an agreement or settlement,
as provided by §147.7 of this title (relating to Effect on Previously-Entered
Decisions and Orders), by an interlocutory order or by a decision rendered
after a subsequent
Division
[
Commission
] proceeding;
(2)
when the benefit dispute involves the liability of two
or more carriers for compensation for one or more compensable injuries, the
Commissioner or Commissioner's designee
[
benefit review officer
] may order each carrier to pay a proportionate share, determined by
dividing the compensation due by the number of carriers
potentially liable
for benefits
[
involved
].
(h)
[
(b)
] An interlocutory order for
payment of
death, burial,
income
,
or medical benefits
shall be effective on the date signed by the
designated Division staff
[
benefit review officer
].
(i)
[
(c)
] An insurance carrier shall
comply with an interlocutory order to pay accrued benefits by issuing and
delivering payment for income benefits accrued and unpaid no later than the
fifth day after receiving the order and shall pay benefits in accordance with
the order as and when they accrue.
(j)
[
(d)
] Payment of accrued and unpaid
income
or death
benefits paid in accordance with an interlocutory
order shall include interest pursuant to the [
Texas
] Labor Code[
,
] §408.064 and §408.081.
(k)
[
(e)
] Payment of medical benefits
pursuant to an interlocutory order shall be made in accordance with Chapters
408 and 413 of the [
Texas
] Labor Code.
(l)
Nothing is this section is
intended to limit the Commissioner's authority to issue an interlocutory order
prior to a benefit review conference.
[
(f)
Copies of an interlocutory
order entered under this rule will be provided to the parties within three
days of the close of the benefit review conference by facsimile or electronic
transmission, personal delivery, or first class mail.]
§141.7. Division [ Commission ] Actions After a Benefit Review Conference.
(a)
If all disputed issues are resolved at the benefit review
conference by agreement, the benefit review officer shall make the agreement
part of the claim file[
, and return the file for ordinary handling
].
(b)
If all disputed issues are resolved at the benefit review
conference by settlement, the benefit review officer shall submit the signed
settlement to the
Commissioner or Commissioner's designee
[
director of the hearings division,
] for handling as provided by Chapter
147 of this title (relating to Dispute Resolution by Agreement or Settlement).
If the
Commissioner or Commissioner's designee
[
director
]
rejects the settlement, the parties may request a subsequent benefit review
conference as provided by §141.1 of this title (relating to Requesting
and Setting a Benefit Review Conference).
(c)
If all disputed issues are not resolved at the benefit
review conference, no later than the fifth day after the close of the benefit
review conference[
,
] the benefit review officer shall submit a
written report, as provided by
Labor Code
§410.031
and
[
of the Texas Labor Code, including
] any signed agreement[
, and a copy of any interlocutory order entered,
] to the
Division's
central office in Austin
[
director of the hearings division
].
(d)
No later than the eighth
day
[
days
]
after receiving the benefit review officer's report, the
Division
[
director of the hearings division
] shall furnish, by first class mail
, electronically,
or personal delivery, to the
injured employee;
injured employee's
[
claimant; claimant's
] representative,
if any; the insurance carrier; and the employer the following:
(1)
a file-stamped copy of the report; and
(2)
notice of the date, time, [
estimated duration
]
and location of the contested case hearing.
[
(e)
The director shall additionally
furnish the following:]
[
(1)
a statement of the parties' right to elect,
by mutual agreement, dispute resolution by binding arbitration in lieu of
a benefit contested case hearing;]
[
(2)
a detailed explanation of the differences between
dispute resolution by benefit contested case hearing and binding arbitration;
and]
[
(3)
a Commission-prescribed form to elect, by mutual
agreement, dispute resolution by binding arbitration.]
This agency hereby certifies that the proposal has been
reviewed by legal counsel and found to be within the agency's legal authority
to adopt.
Filed with the Office of
the Secretary of State on February 3, 2006.
TRD-200600599
Norma Garcia
General Counsel
Texas Department of Insurance, Division of Workers' Compensation
Earliest possible date of adoption: March 19, 2006
For further information, please call: (512) 804-4288