Proposed Rules Title 28

TITLE 28. INSURANCE

PART 2. TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION

CHAPTER 122. COMPENSATION PROCEDURE--CLAIMANTS

SUBCHAPTER B. CLAIMS PROCEDURE FOR BENEFICIARIES OF INJURED EMPLOYEES

28 TAC §122.100

The Texas Department of Insurance, Division of Workers' Compensation (Division) proposes amendments to §122.100 of this title relating to Claim for Death Benefits. This proposal concerns the authority of the Commissioner of Workers' Compensation ("Commissioner") to extend the one year time period in which an eligible parent must file a claim for death benefits. This proposal also makes conforming changes to §122.100 of this title.

This proposal is necessary in order to implement amendments made to Labor Code §408.182 and §408.183 by House Bill (HB) 724, enacted by the 80th Legislature, Regular Session, effective September 1, 2007. The Division is also proposing elsewhere in this edition of the Texas Register amendments to §§132.6, 132.9, and 132.11 of this title relating to Eligibility of Other Surviving Dependents To Receive Death Benefits, Duration of Death Benefits for an Eligible Grandchild and any Other Eligible Dependents, and Distribution of Death Benefits, respectively which are also necessary in order to implement these legislative amendments.

HB 724 amended Labor Code §408.182 and §408.183 by adding "eligible parents" to the class of legal beneficiaries entitled to receive death benefits under the Texas Workers' Compensation Act. Labor Code §408.182(f)(4) defines "eligible parent" as the mother or the father of a deceased employee, including an adoptive parent or a stepparent, who receives burial benefits under Labor Code §408.186. A parent whose parental rights have been terminated is specifically excluded from the definition of "eligible parent." Labor Code §408.182(d-1) provides that if there is no eligible spouse, no eligible child, and no eligible grandchild, and there are no surviving dependents of the deceased employee who are parents, siblings, or grandparents of the deceased, the death benefits shall be paid in equal shares to surviving eligible parents of the deceased. Labor Code §408.183(f-1) provides that an eligible parent who is not a surviving dependent of the deceased employee is entitled to receive death benefits until the earlier of the date the eligible parent dies or the date of the expiration of 104 weeks of death benefit payments. The payment of death benefits to an eligible parent(s) may not, according to Labor Code §408.182(d-1), exceed one payment per household and may not exceed 104 weeks.

Labor Code §408.182(d-2) provides that in order to be eligible to receive death benefits, an eligible parent must file a claim with the Division not later than the first anniversary of the date of the injured employee's death. This subsection further provides that a claim for death benefits must designate all eligible parents and necessary information for payment to the eligible parents. An insurance carrier will not be liable for payment to any eligible parent who is not designated on the claim. Finally, Labor Code §408.182(d-2) permits the Commissioner to extend the time period for filing a claim for death benefits by an eligible parent if the eligible parent submits proof satisfactory to the Commissioner of a compelling reason for the delay.

This proposal amends §122.100 of this title which sets out the procedures and requirements all legal beneficiaries must follow when filing a claim for death benefits with the Division. This rule will apply to eligible parents. Section 122.100 of this title among other things requires a legal beneficiary seeking death benefits to file the claim within one year of the employee's death. Section 122.100(e) of this title provides that failure to file the claim for death benefits within this time period will bar the claim. Section 122.100(e) of this title however provides exceptions to this rule. Section 122.100(e)(1) and (2) of this title provides that the failure to file the claim within the one year time period will not bar the claim if the legal beneficiary is a minor or otherwise legally incompetent, or good cause exists for failure to file the claim in a timely manner. This proposal adds to §122.100(e) of this title the exception for eligible parents set out in Labor Code §408.182(d-2). First, this proposal provides that the good cause exception applies to legal beneficiaries other than eligible parents. The good cause exception will not apply to an eligible parent because it is a lesser standard for extending the filing deadline than the standard prescribed by Labor Code §408.182(d-2). Second, this proposal provides that an eligible parent's failure to file a claim for death benefits within the one year time period does not bar the claim in cases where the eligible parent submits proof satisfactory to the Commissioner of a compelling reason for the delay.

As stated above, Labor Code §408.182(d-2) requires a claim for death benefits to designate all eligible parents. An insurance carrier will not be liable for payment to any eligible parent who is not designated on the claim. Current §122.100(d) of this title requires each beneficiary to file a separate claim for death benefits, unless the claim expressly includes or is made on behalf of another person. An eligible parent who is designated on a claim for death benefits filed by another eligible parent is considered expressly included under §122.100(d) of this title.

This proposal also replaces all references in §122.100 of this title to the "commission" with references to the "Division" due to the legislative changes made by HB 7, enacted by the 79th Legislature, Regular Session, effective September 1, 2005, in abolishing the Texas Workers' Compensation Commission and transferring the powers and duties of that former agency to the Division of Workers' Compensation of the Texas Department of Insurance.

Brent Hatch, Policy Advisor, has determined that for each year of the first five years the proposed amendments are in effect there will be no fiscal impact on state or local government as a result of enforcing or administering these proposed amendments. Mr. Hatch has also determined that there will be no measurable effect on local employment or the local economy as a result of enforcing or administering these proposed amendments.

Mr. Hatch has determined that for each year of the first five years the proposed amendments will be in effect the anticipated public benefit will be the incorporation into the Division's rules governing death benefits the legislative provisions governing the Commissioner's authority to extend the time period in which an eligible parent may file a claim for death benefits. Incorporating this legislative amendment into §122.100 of this title will provide eligible parents with clear notice of the legal standard an eligible parent must meet in order to extend the time period for filing a claim for death benefits. The proposed conforming amendments will benefit the public by providing the public with notice as to the proper state agency that administers the laws and rules governing death benefits. Mr. Hatch has determined that for each year of the first five years the proposed amendments are in effect there will be some costs imposed upon eligible parents that are associated with submitting proof satisfactory to the Commissioner of a compelling reason for the delay in filing a claim for death benefits. These costs will be the costs associated with preparing and submitting correspondence to the Commissioner requesting an extension of time to file the claim for death benefits together with any evidence relevant to establishing a compelling reason for the delay in filing the claim. Any cost that is associated with submitting this request for an extension and supporting proof to the Commissioner is a result of the legislative enactment of HB 724 and not a result of these proposed amendments. This proposed amendment does not impose costs upon carriers, health care providers, or employers because this proposed amendment does not impose requirements upon those entities. The proposed conforming amendments replacing "commission" with "Division" do not impose costs upon any person or entity.

As required by Government Code §2006.002(c), the Division has determined that these proposed amendments will not have an adverse economic effect on small or micro-businesses. The Division's analysis of any possible costs for compliance with these proposed amendments that are detailed in the Public Benefit/Cost Note section of this proposal is also applicable to small and micro-businesses. Because these proposed amendments will not have an adverse economic effect on small or micro-businesses, Government Code §2006.002(c) does not require an economic impact statement or regulatory flexibility analysis.

The Division has determined that no private real property interests are affected by these proposed amendments and that these proposed amendments do not restrict or limit an owner's right to property that would otherwise exist in the absence of government action and, therefore, do not constitute a taking or require a takings impact assessment under Government Code §2007.043.

To be considered, written comments on the proposed amendments must be submitted no later than 5:00 p.m. on September 2, 2008. Comments may be submitted via the Internet through the Division's Internet website at http://www.tdi.state.tx.us/wc/rules/proposedrules/toc.html or by mailing your comments to Victoria Ortega, Legal Services, MS-4D, Texas Department of Insurance, Division of Workers' Compensation, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744.

Any request for a public hearing must be submitted separately to the Office of General Counsel, MS-1, 7551 Metro Center Drive, Austin, Texas 78744 by 5:00 p.m. on September 2, 2008. If a hearing is held, written and oral comments presented at the hearing will be considered.

These proposed amendments are proposed under Labor Code §§402.00111, 402.061, 408.181, 408.182, and 408.183.

Labor Code §402.00111 provides that the Commissioner of Workers' Compensation shall exercise all executive authority, including rulemaking authority, under Labor Code Title 5. Labor Code §402.061 provides that the Commissioner of Workers' Compensation shall adopt rules as necessary for the implementation and enforcement of the Texas Workers' Compensation Act. Labor Code §408.181 requires an insurance carrier to pay death benefits to the legal beneficiary if a compensable injury results in death. Labor Code §408.182 requires death benefits to be paid to surviving eligible parents of the deceased if there is no eligible spouse, no eligible child, and no eligible grandchild, and there are no surviving dependents of the deceased employee who are parents, siblings, or grandparents of the deceased. Labor Code §408.183 provides that an eligible parent is entitled to receive death benefits until the earlier of the date the eligible parent dies or the date of the expiration of 104 weeks of death benefit payments.

The following sections are affected by this proposal: Labor Code §403.007; Labor Code Subchapter J, Chapter 408.

§122.100.Claim for Death Benefits.

(a) In order for a legal beneficiary, other than the subsequent injury fund, to receive the benefits available as a consequence of the death of an employee which results from a compensable injury, a person shall file a written claim for compensation with the Division [~~commission~~] within one year after the date of the employee's death.

(b) The claim should be submitted to the Division [~~commission~~] either on paper or via electronic transmission, in the form, format, and manner prescribed by the Division [~~commission~~], and should include the following:

(1) - (3) (No change.)

(c) A claimant shall file with the Division [~~commission~~] a copy of the deceased employee's death certificate and any additional documentation or other evidence that establishes that the claimant is a legal beneficiary of the deceased employee.

(1) - (2) (No change.)

(d) (No change.)

(e) Failure to file a claim for death benefits within one year after the date of the employee's death shall bar the claim of a legal beneficiary, other than the subsequent injury fund, unless:

(1) that legal beneficiary is a minor or otherwise legally incompetent; [or]

(2) for a legal beneficiary other than an eligible parent, good cause exists for failure to file the claim in a timely manner; or

(3) for a legal beneficiary who is an eligible parent, the parent submits proof satisfactory to the Commissioner of Workers' Compensation of a compelling reason for the delay in filing the claim for death benefits.

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 July 21, 2008.

TRD-200803694

Stanton K. Strickland

Deputy Commissioner, Legal Services

Texas Department of Insurance, Division of Workers' Compensation

Earliest possible date of adoption: August 31, 2008

For further information, please call: (512) 804-4715

CHAPTER 132. DEATH BENEFITS--DEATH AND BURIAL BENEFITS

28 TAC §§132.6, 132.9, 132.11

The Texas Department of Insurance, Division of Workers' Compensation (Division) proposes amendments to §§132.6, 132.9, and 132.11 of this title (relating to Eligibility of Other Surviving Dependents To Receive Death Benefits, Duration of Death Benefits for an Eligible Grandchild and any Other Eligible Dependents, and Distribution of Death Benefits, respectively). These proposed amendments concern an eligible parent's entitlement to death benefits under the Texas Workers' Compensation Act and the duration and distribution of those death benefits.

These proposed amendments are necessary in order to implement amendments made to Labor Code §408.182 and §408.183 by House Bill (HB) 724, enacted by the 80th Legislature, Regular Session, effective September 1, 2007. These legislative amendments add "eligible parents" to the class of legal beneficiaries entitled to receive death benefits under the Texas Workers' Compensation Act. Labor Code §408.182(f)(4) defines "eligible parent" to mean the mother or the father of a deceased employee, including an adoptive parent or a stepparent, who receives burial benefits under Labor Code §408.186. A parent whose parental rights have been terminated is specifically excluded from the definition of "eligible parent." Labor Code §408.182(d-1) provides that if there is no eligible spouse, no eligible child, and no eligible grandchild, and there are no surviving dependents of the deceased employee who are parents, siblings, or grandparents of the deceased, the death benefits shall be paid in equal shares to surviving eligible parents of the deceased. Labor Code §408.183(f-1) provides that an eligible parent who is not a surviving dependent of the deceased employee is entitled to receive death benefits until the earlier of the date the eligible parent dies or the date of the expiration of 104 weeks of death benefit payments. The payment of death benefits to an eligible parent(s) may not, according to Labor Code §408.182(d-1), exceed one payment per household and may not exceed 104 weeks.

Labor Code §408.182(d-2) provides that in order to be eligible to receive death benefits, an eligible parent must file a claim with the Division not later than the first anniversary of the date of the injured employee's death. This subsection further provides that a claim for death benefits must designate all eligible parents and necessary information for payment to the eligible parents. An insurance carrier will not be liable for payment to any eligible parent who is not designated on the claim. Finally, Labor Code §408.182(d-2) permits the Commissioner of Workers' Compensation ("Commissioner") to extend the time period for filing a claim for death benefits by an eligible parent if the eligible parent submits proof satisfactory to the Commissioner of a compelling reason for the delay.

Section 122.100 of this title relating to Claim for Death Benefits sets out the procedures and requirements a legal beneficiary must follow when filing a claim for death benefits with the Division. It prescribes the manner in which a claim for death benefits should be submitted to the Division and sets out the information that should be included with the claim. This rule also requires a claim for death benefits to be filed within one year of the date of the employee's death. Section 122.100 of this title applies to all legal beneficiaries applying for death benefits and will apply to eligible parents. The Division is proposing elsewhere in this edition of the Texas Register amendments to §122.100 of this title that concern the Commissioner's authority to extend the one year time period in which an eligible parent must file a claim for death benefits.

The proposed amendments to §§132.6, 132.9, and 132.11 of this title incorporate "eligible parents" into Chapter 132 of this title relating to Death Benefits--Death and Burial Benefits. These proposed amendments also specify other requirements that apply exclusively to an eligible parent seeking death benefits.

The proposed amendment to §132.6 of this title incorporates into that rule the requirements an eligible parent must meet in order to be entitled to death benefits under the Texas Workers' Compensation Act. This proposed amendment also amends the title of this rule to reflect this incorporation. This proposed amendment defines "eligible parent" to mean the mother or the father of a deceased employee, including an adoptive parent or a stepparent, who receives burial benefits under §132.13 of this title relating to Burial Benefits. This proposed amendment excludes from the definition of "eligible parent" a parent whose parental rights have been terminated. This proposed amendment provides that an eligible parent is entitled to death benefits only if there is no eligible spouse, no eligible child, and no eligible grandchild, and there are no surviving dependents of the deceased employee who are parents, siblings, or grandparents of the deceased. This proposed amendment further provides that an eligible parent submitting a claim for death benefits must provide proof of the relationship to the deceased. This proof shall consist of certified copies of applicable birth certificates, decrees of adoption, or proof of marriage. If this evidence does not exist, baptismal records, court orders establishing paternity, voluntary admissions of paternity, or affidavits of persons who have personal knowledge of the relationship to the deceased qualify as sufficient proof of relationship. This proposed amendment also requires the eligible parent to designate all eligible parents on the claim for death benefits. An insurance carrier will not be liable for payment to an eligible parent who is not designated on the claim for death benefits. Finally, the proposed amendment to §132.6 of this title requires an eligible parent to submit proof of receipt of burial benefits. This proof will not be required if the eligible parent files the claim for burial benefits with the insurance carrier at the same time the parent files the claim for death benefits with the Division or the eligible parent has filed a claim for burial benefits and that claim is still pending at the time the parent files the claim for death benefits. The parent will be permitted to file the claim for death benefits simultaneously with the claim for burial benefits or while the claim for burial benefits is pending with the insurance carrier because both claims must be filed within one year of the date of the employee's death.

The proposed amendment to §132.9 of this title sets forth the duration of death benefits to be paid to an eligible parent. It provides that death benefits are to be paid to the eligible parent until the earlier of the date of the eligible parent's death or the date of the expiration of 104 weeks of death benefit payments. This proposed amendment also amends the title of this section to reflect its applicability to eligible parents.

The proposed amendment to §132.11 provides that death benefits shall be paid in equal shares to surviving eligible parents if there is no eligible spouse, no eligible child, and no eligible grandchild, and there are no surviving dependents of the deceased employee who are parents, siblings, or grandparents of the deceased. This proposed amendment also provides that the amount paid may not exceed one payment per household and may not exceed 104 weeks.

Brent Hatch, Policy Advisor, has determined that for each year of the first five years the proposed amendments are in effect there will be a reduction in the amount of death benefits paid into the subsequent injury fund from 364 weeks to 260 weeks in fatal injury cases where the only surviving legal beneficiary is an eligible parent(s). The fiscal note for HB 724 estimated the reduction in amount to the subsequent injury fund to be $1,983,600 for fiscal year 2008, $2,035,800 for fiscal year 2009, $2,105,400 for fiscal year 2010, $2,157,600 for fiscal year 2011, and $2,209,800 for fiscal year 2012. This reduction is a result of the legislative enactment of HB 724 and not a result of these proposed amendments. Mr. Hatch has determined that for each year of the first five years the proposed amendments are in effect there will be no fiscal impact on local government as a result of enforcing or administering these proposed amendments. Mr. Hatch has also determined that there will be no measurable effect on local employment or the local economy as a result of enforcing or administering these proposed amendments.

Mr. Hatch has determined that for each year of the first five years the proposed amendments will be in effect the anticipated public benefit will be rules that will provide for the effective and efficient distribution of death benefits to eligible parents in accordance with HB 724's legislative mandates. Mr. Hatch has determined that for each year of the first five years the proposed amendments are in effect there will be some costs imposed upon eligible parents. These costs will be the costs associated with completing the claim form provided by the Division and providing the claim form with any required supporting documentation to the Division. There are no costs imposed upon insurance carriers as a result of these proposed amendments. HB 724 nor these proposed amendments increase the amount of death benefits an insurance carrier must pay as a result of an employee's compensable injury that results in death. HB 724 and these proposed amendments require an amount of death benefits that were paid to the subsequent injury fund in no beneficiary cases prior to the enactment of HB 724 to instead be paid to eligible parents. There are no costs imposed upon health care providers or employers by these proposed amendments because these proposed amendments do not impose requirements upon those entities.

To be considered, written comments on the proposed amendments must be submitted no later than 5:00 p.m. on September 2, 2008. Comments may be submitted via the Internet through the Division's Internet website at http://www.tdi.state.tx.us/wc/rules/proposedrules/toc.html or by mailing your comments to Victoria Ortega, Legal Services, MS-4D, Texas Department of Insurance, Division of Workers' Compensation, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744.

These proposed amendments are proposed under Labor Code §§402.00111, 402.061, 408.181, 408.182, and 408.183.

The following sections are affected by this proposal: Labor Code §403.007; Labor Code Subchapter J, Chapter 408.

§132.6.Eligibility of Other Surviving Dependents and Eligible Parents To Receive Death Benefits.

(a) A parent, stepparent, sibling, or grandparent of a deceased employee who was dependent on the employee on the day of death is entitled to receive death benefits, only if there is no eligible spouse, child, or grandchild.

(b) A surviving eligible parent is entitled to receive death benefits only if there is no eligible spouse, no eligible child, and no eligible grandchild, and there are no surviving dependents of the deceased employee who are parents, siblings, or grandparents of the deceased. The term "eligible parent" means the mother or the father of a deceased employee, including an adoptive parent or a stepparent, who receives burial benefits under §132.13 of this title (relating to Burial Benefits), but does not include a parent whose parental rights have been terminated.

(c) [~~(b)~~] A person claiming to be a [ ~~an eligible~~] beneficiary under subsection (a) or (b) of this section [~~the Texas Workers' Compensation Act, §4.42(e),~~ ] is required to present proof of the relationship to the deceased employee to the carrier or along with the claim for death benefits. The evidence presented as proof of a relationship shall include certified copies of applicable birth certificates, or decrees of adoption, or proof of marriage. If these documents do not exist, the claimant shall submit other proof of relationship, such as baptismal records, court orders establishing paternity, voluntary admissions of paternity, or affidavits of persons who have personal knowledge of the relationship to the deceased employee. A person claiming to be a beneficiary under subsection (a) of this section [ ~~In addition, the claimant~~] shall submit evidence of dependence on the deceased employee as defined in §132.2 of this title (relating to Determination of Facts of Dependent Status). A person claiming to be a beneficiary under subsection (b) of this section shall designate all eligible parents on the claim for death benefits. An insurance carrier is not liable for payment to any eligible parent not designated on the claim for death benefits. A person claiming to be a beneficiary under subsection (b) of this section shall also submit proof of receipt of burial benefits unless the claim for burial benefits is filed with the insurance carrier pursuant to §132.13 of this title at the same time the claim for death benefits is filed with the Division or the claim for burial benefits has been filed with the insurance carrier but is still pending at the time the claim for death benefits is filed with the Division.

(d) [~~(c)~~] The term "sibling" means a brother or sister who shares at least one parent, through birth or adoption, with the deceased employee.

§132.9.Duration of Death Benefits for an Eligible Grandchild , Eligible Dependent, and Eligible Parent [ ~~and any Other Eligible Dependents~~].

(a) - (c) (No change.)

(d) An eligible parent who is entitled to receive death benefits shall receive benefits until the earlier of:

(1) the date the eligible parent dies; or

(2) the date of the expiration of 104 weeks of death benefit payments.

§132.11.Distribution of Death Benefits.

(a) - (c) (No change.)

(d) If there is no eligible spouse, child, or grandchild, the death benefits shall be paid in equal shares to any surviving dependents of the deceased employee who are parents, siblings, or grandparents of the deceased [~~other eligible beneficiaries~~]. The amount to be paid to each surviving dependent shall be calculated by dividing the weekly death benefit by the number of surviving dependents [~~eligible beneficiaries~~].

(e) If there is no eligible spouse, no eligible child, and no eligible grandchild, and there are no surviving dependents of the deceased employee who are parents, siblings, or grandparents of the deceased, the death benefits shall be paid in equal shares to surviving eligible parents. The amount paid may not exceed one payment per household and may not exceed 104 weeks.

(f) [~~(e)~~] If the deceased employee has no legal beneficiaries as defined by the rules and the Texas Workers' Compensation Act, the death benefits shall be paid to the subsequent injury fund, as set out in §132.10 of this title (relating to Payment of Death Benefits to the Subsequent Injury Fund).

(g) [~~(f)~~] The term "per stirpes" means that the grandchildren shall be entitled to share in only the amount of benefits that the parent of those grandchildren would have received had the parent been alive or otherwise eligible to receive death benefits.