PART 2. TEXAS DEPARTMENT OF INSURANCE, DIVISION OF WORKERS' COMPENSATION
CHAPTER 116. GENERAL PROVISIONS--SUBSEQUENT INJURY FUND
28 TAC §116.11, §116.12
The Texas Department of Insurance (Department), Division
of Workers' Compensation (Division) proposes amendments to §116.11
(relating to Request for Reimbursement or Refund from the Subsequent
Injury Fund) and §116.12 (relating to Subsequent Injury Fund
Payment/Reimbursement Schedule).
The proposed amendments are necessary for consistency with the
Labor Code and to implement the amendments to Labor Code §§403.006,
408.0041, and 408.042 enacted by Senate Bill (SB) 1169, 80th Legislature,
Regular Session, effective September 1, 2007. Amended Labor Code §403.006
provides that the subsequent injury fund is liable for the reimbursement
of an insurance carrier as provided for by Labor Code §408.0041(f-1).
New Labor Code §408.0041(f-1) requires the subsequent injury
fund to reimburse an insurance carrier for any overpayment of benefits
made by the insurance carrier based on the opinion of a designated
doctor if that opinion is reversed or modified by a final arbitration
award or a final order or decision of the Commissioner of Workers'
Compensation (Commissioner) or a court.
Amended Labor Code §408.042(g) added the provision that an
insurance carrier is entitled to apply for and receive reimbursement
from the subsequent injury fund for the amount of death benefits,
in addition to the amount of other income benefits, paid to an employee
that are based on employment other than the employment during which
the compensable injury occurred.
Proposed amendments to §116.11. Proposed amendments to §116.11
include deletion of the term "Refund" in the title of the section
and throughout the section to provide consistency with Labor Code §403.006.
Proposed amendments to §116.11(a)(1) remove the reference to
the State Office of Administrative Hearings to be consistent with
the Labor Code §§403.006, 408.0041, and 410.209. The proposed
amendments to §116.11(a)(2) add language to be more consistent
with Labor Code §403.007. Proposed amendments to §116.11(a)(3)
add language to conform to current nomenclature and clarifies a legal
reference. Proposed amendments to §116.11(a)(4) implement §408.042(g)
by providing for insurance carrier reimbursement from the subsequent
injury fund for income or death benefits paid to an injured employee
or a legal beneficiary attributable to multiple employment. Proposed
amendments to §116.11(a)(5) implement Labor Code §408.0041(f-1)
by providing that an insurance carrier may request a reimbursement
from the subsequent injury fund for any overpayment of benefits made
by the insurance carrier based on an opinion of a designated doctor
if the opinion is later reversed or modified. Proposed amendments
to §116.11(a)(6) contain language to conform to current nomenclature,
including using "commissioner" and "division" as appropriate, and
deletes language already included in Labor Code §413.0141, which
is cited. The proposed amendments to §116.11(b) add language
to conform to current nomenclature, "insurance carrier" and "injured
employee," and adds language to implement Labor Code §408.0041
and §408.042. Proposed amendments to §116.11(c) add language
to conform to current nomenclature, add language to clarify the contents
of a request for reimbursement; and, remove the reference to the State
Office of Administrative Hearings to be consistent with Labor Code §§403.006,
408.0041, and 410.209. Proposed amendments to §116.11(d) add
language to clarify with greater specificity the procedure for requesting
a reimbursement. Proposed amendments to §116.11(e) clarify that
subsection (e) applies to multiple employment-based requests and clarify
the information that must be included in a reimbursement request.
Proposed amendments to §116.11(f) update the submission for reimbursement
example and add "the total amount of reimbursement requested" to the
information that must be provided in the reimbursement request. Proposed
amendments to §116.11(g) implements Labor Code §408.0041(f-1)
by setting forth the request for reimbursement procedure and the necessary
information that must be included in the request. Proposed amendments
to §116.11(h) clarify that the insurance carrier is required
to file any other information reasonably required by the subsequent
injury fund administrator and must also notify the administrator of
any pending disputes to evaluate the request.
Proposed amendments to §116.12. Proposed amendments to §116.12(a)
add language to conform to current nomenclature and clarifies a legal
reference. The proposed amendments to §116.12(c) provide that
claims filed under §116.12(a)(1), (2) and (3) should be processed
in the fiscal quarter following the quarter in which the request was
submitted and no later than one year following the submission. In
accordance with §403.006(d), proposed amendments to §116.12(d)
include a separate provision for the review and processing of requests
under Labor Code §408.042(g) relating to multiple employment
and claims under Labor Code §413.0141 relating to initial pharmaceutical
coverage. The proposed amendments to §116.12(d) delete language
that applies to internal administrative procedures. Proposed amendments
to §116.12(e) add language to conform to current nomenclature
and clarify a legal reference. Proposed amendments to §116.12(f)
provide that the subsection only applies to reimbursement request
relating to multiple employment and pharmaceutical claims, add language
to conform to current nomenclature and clarify a date reference. Current §116.12(g)
is proposed to be deleted because it applies to administrative procedures
of the Texas Workers' Compensation Commission and is no longer necessary
as a result of the restructuring and reorganization of that agency
into the Texas Department of Insurance. Proposed amendments to §116.12(h)
reletter the subsection to subsection (g) and add language which provides
the insurance carrier must notify the subsequent injury fund administrator
of any pending disputes and that the administrator will refrain from
acting on an insurance carrier's request for reimbursement from the
subsequent injury fund until final resolution of all disputes affecting
the request for reimbursement.
The Fiscal Note for SB 1169, dated May 18, 2007, estimated that
the impact on the Subsequent Injury Fund would be $1,128,908 each
year of the first five years the statute will be in effect. The proposed
rules do not increase the fiscal impact beyond the impact of SB 1169.
Mr. Dirk Johnson, General Counsel, has determined that for each
year of the first five years the proposed rules will be in effect
there will be no fiscal impact on state or local government as a result
of enforcing or administering the proposed rules. There will be no
measurable effect on local employment or the local economy as a result
of the proposal.
Local government and state government as a covered regulated entity
will be impacted in the same manner as persons required to comply
with the proposed amendments as described later in the preamble.
Mr. Johnson has also determined that for each year of the first
five years the proposed rules will be in effect the public benefit
anticipated as a result of enforcing the rules will be improved operation
of the subsequent injury fund. The proposed rules do not increase
costs to system participants beyond the impact estimated by SB 1169.
As required by the Government Code §2006.002(c), the Division
has determined that the proposal will not have an adverse economic
effect on small or micro-businesses who may be required to comply
with the proposed rules.
The cost of compliance with the proposal will not vary between
large businesses and small or micro-businesses, and the Division's
cost analysis and resulting estimated costs in the Public Benefit/Cost
Note portion of this proposal is equally applicable to small or micro-businesses.
The Division has determined that this proposal is not a "major
environmental rule" as defined by Government Code §2001.0225
and therefore a regulatory flexibility analysis is not required.
The Division has determined that no private real property interests
are affected by this proposal and that this proposal does not restrict
or limit an owner's right to property that would otherwise exist in
the absence of government action and, therefore, does not constitute
a taking or require a takings impact assessment under the Government
Code §2007.043.
To be considered, written comments on the proposal must be submitted
no later than 5:00 p.m. on August 31, 2009. Comments may be submitted
via the Internet through the Division's Internet website at http://www.tdi.state.tx.us/rules/proposedrules/index.html
or by mailing or delivering your comments to Maria Jimenez,
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 August 31, 2009. If a hearing is held,
written and oral comments presented at the hearing will be considered.
The amendments are proposed under the Labor Code §§402.00111,
402.061, 403.006, 408.0041, and 408.042. 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
of Workers' Compensation the authority to adopt rules as necessary
to implement and enforce the Texas Workers' Compensation Act. Section
403.006 establishes the subsequent injury fund. Section 408.0041 provides
for designated doctor examinations to resolve various questions about
the injured employee's injury. Section 408.042 provides for the calculation
of the average weekly wage for a part-time employee or an employee
with multiple employment.
The following sections are affected by this proposal:
§116.11: Labor Code §408.0041(f-1) and §408.042(g)
§116.12: Labor Code §408.0041(f-1) and §408.042(g)
§116.11.Request for Reimbursement [
(a) An insurance [
(1) reimbursement from the Subsequent Injury Fund ("SIF"),
pursuant to Labor Code §403.006(b)(2), for an overpayment
of income, death, or medical benefits when the insurance carrier
has made an unrecoupable overpayment pursuant to decision of a hearing
officer or the appeals panel or an interlocutory order, and that decision
or order is reversed or modified by final arbitration, order, or decision
of the commissioner [
(2) reimbursement from the SIF [
(3) for a compensable injury that occurs on or after
July 1, 2002, [
(4) for a compensable injury that
occurs on or after September 1, 2007, reimbursement from the SIF for
the amount of income or death benefits paid to an injured employee
or a legal beneficiary attributable to multiple employment and paid
pursuant to Labor Code §408.042;
(5) reimbursement from the SIF, pursuant
to Labor Code §408.0041(f) and (f-1), for an overpayment of benefits
made by the insurance carrier based on the opinion of the designated
doctor if that opinion is reversed or modified by a final arbitration
award or a final order or decision of the commissioner or a court; or
(6) [
(A) The final decision of the commissioner [
(B) A claimant's failure to respond within one year
of a timely dispute of compensability filed by an insurance carrier.
In this instance only, the effective date of the determination of
non compensability is one year from the date the dispute is filed
with the division [
(i) A determination under this paragraph [
(ii) If the claim is later determined to be compensable,
the insurance carrier shall reimburse the SIF [
(b) The amount of reimbursement that the insurance carrier
may be entitled to is equal to the amount of unrecoupable overpayments
paid and does not include any amounts the insurance carrier
overpaid voluntarily or as a result of its own errors. An unrecoupable
overpayment of income or death benefits for the purpose
of reimbursement from the SIF only includes those benefits that were
overpaid by the insurance carrier pursuant to an interlocutory
order, a designated doctor opinion or decision which were
finally determined to be not owed and which, in the case of an overpayment
of income or death benefits to the injured employee
or legal beneficiary, were not recoverable or convertible from
other income or death benefits.
(c) Requests for reimbursement attributable to subsection
(a)(1) of this section, insurance carrier claims of benefit overpayments
made under an interlocutory order or decision of the
commissioner [
(1) a claim-specific summary of the reason the insurance carrier is seeking reimbursement
and the total amount of reimbursement requested [
(2) a detailed payment record showing the dates of
payments, the amounts of the payments, purpose of payments, [
(3) the name, address, and federal employer identification
number of the payee for any reimbursement [
(4) copies of all [
(5) copies of all reports and DWC forms filed by
the employer with the insurance carrier [
(6) if an overpayment of medical benefits, copies of
all medical bills and preauthorization request forms associated with
the overpayment as well as all Independent Review Organization
("IRO") decisions, fee dispute decisions and Contested Case Hearing
Decision and Orders, Appeals Panel Decisions, and court orders regarding
medical disputes [
(d) Requests for reimbursement pursuant [
(1) a claim-specific summary of the reason the insurance carrier is seeking reimbursement
and the total amount of reimbursement requested [
(2) a detailed payment record showing the dates of
payments, the amounts of the payments, purpose of payments, [
(3) the name, address, and federal employer identification
number of the payee for any reimbursement [
(4) the documentation the legal beneficiary
provided with the claim for death benefits in accordance with [
(5) if applicable [
(e) Requests for reimbursement pursuant to subsection
(a)(3) or (4) of this section, regarding multiple
employment, shall be submitted on an annual basis for the payments
made during the same or previous fiscal year. The fiscal year begins
each September 1st and ends on August 31st of the next calendar year.
For example, insurance carrier payments made during the
fiscal year from September 1, 2009 [
(1) a claim-specific summary of the reason the insurance carrier is seeking reimbursement
and the total amount of reimbursement requested [
(2) a detailed payment record showing the dates of
payments, the amounts of the payments, purpose of payments, [
(3) the name, address, and federal employer identification
number of the payee for any reimbursement [
(4) [
(5) [
(f) Requests for reimbursement attributable to initial
pharmaceutical coverage shall be submitted in the same or in the following
fiscal year after a determination that the injury is not compensable
in accordance with subsection (a)(6) [
(1) a claim-specific summary of the reason the insurance
carrier is seeking reimbursement and the total amount
of reimbursement requested [
(2) a detailed payment record showing the dates of
payments, specifically including documentation of payment of Initial
Pharmaceutical Coverage, (i.e., first seven days following the date
of injury); the amounts of the payments, the purpose of payments,
[
(3) the name, address, and federal employer identification
number of the payee for any reimbursement [
(4) copies of any prescription filled and documentation
that the pharmaceutical services were provided during the first seven
days following the date of injury, not counting the actual date the
injury occurred; and
(5) documentation of the final resolution of any dispute
which determines the injury is not compensable either from the
commissioner [
(g) Requests for reimbursement attributable
to subsection (a)(5) of this section, insurance carrier claims of
benefit overpayments made pursuant to a designated doctor opinion
that is later reversed or modified by final arbitration award or a
final order or decision of the commissioner or a court, shall be filed
with the SIF administrator in writing and include:
(1) a claim-specific summary of the reason the insurance
carrier is seeking reimbursement and the total amount of reimbursement
requested;
(2) a detailed payment record showing the dates of
payments, the amounts of the payments, purpose of payments, the payees,
and the periods of benefits paid; all PLNs regarding the payment of
benefits and all certifications of maximum medical improvement and
all assignments of impairment rating.
(3) the name, address, and federal employer identification
number of the payee for any reimbursement that may be due;
(4) copies of all designated doctor opinions (including
responses to letters of clarification) and orders and decisions (IRO
decisions, dispute decisions, Interlocutory Orders, Contested Case
Hearing Decision and Orders, Appeal Panel Decisions, and Court orders)
regarding the designated doctor opinion and the payment, or the circumstances
requiring payment made pursuant to the designated doctor opinion for
which reimbursement is being requested along with an indication of
which document is the final decision on the matter;
(5) copies of all reports and DWC forms filed by the
employer with the insurance carrier; and
(6) for an overpayment of medical benefits, copies
of all medical bills and preauthorization request forms associated
with the overpayment.
(h) [
§116.12.Subsequent Injury Fund Payment/Reimbursement Schedule.
(a) Claims against the Subsequent Injury Fund ("SIF")
shall be paid in the following priority:
(1) claims by insurance carriers for reimbursement
made pursuant to Labor Code §403.007 [
(2) claims by injured workers for lifetime benefits,
as provided by Labor Code §408.162 [
(3) claims by insurance carriers for reimbursement,
made pursuant to Labor Code §§408.0041, 410.209
and [
(4) claims by insurance carriers for reimbursement
made pursuant to Labor Code §408.042(g) [
(b) The SIF uses the fiscal year September 1 through August 31.
(c) Claims described in subsection (a)(1), [
(d) Claims described in subsection (a)(4) of this
section should be processed in the first fiscal quarter following
the fiscal year in which the request was submitted but may be reviewed
and ordered paid by the SIF administrator as provided by subections
(e) and (f) of this section. [
(e) In accordance with Labor Code §403.006(d) [
(1) The total amount of completed eligible requests
for reimbursement submitted under subsection (a)(4) of this section
that are received during the previous fiscal year will be used to
establish a baseline amount.
(2) The baseline amount will be divided by the total
amount of SIF funding available as determined in accordance with the
Labor Code [
(3) The resulting fraction will be equally applied
to all claims submitted under subsection (a)(4) to determine the partial
reimbursement amount.
(4) If reimbursement requests are paid with partial
payments, no further future recovery is available from the subsequent
injury fund for the non-reimbursed portion of that particular request.
(f) If reimbursement requests are paid with partial
payments, [
(g) [
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 20, 2009.
TRD-200902964
Dirk Johnson
General Counsel
Texas Department of Insurance, Division of Workers' Compensation
Earliest possible date of adoption: August 30, 2009
For further information, please call: (512) 804-4703
or Refund ] from the Subsequent Injury Fund. A] carrier may request:
commission], [the
State Office of Administrative Hearings,] or a court of last
resort; [or]
a refund of death benefits
] pursuant to Labor Code §403.007(d)
for death benefits paid to the SIF prior to a legal beneficiary
determined to be entitled [being eligible] to receive
death benefits;
: a] reimbursement from the SIF
for the amount of income benefits paid to an injured employee [
a worker that is] attributable to multiple employment and [
is] paid pursuant to Labor Code §408.042 [relating
to Multiple Employment]; [or]
(4)] [a] reimbursement
from the SIF made in accordance with rules adopted by the
commissioner [commission] pursuant to
Labor Code §413.0141[
, Initial Pharmaceutical Coverage for injuries determined not to be
compensable]. For purposes of this subsection only, an injury
is determined not to be compensable following:
commission
] or the judgment of the court of last resort; or
commission] by the
insurance carrier.
subsection
] does not constitute final adjudication. It does
not preclude a party from pursuing their claim through the
division's [commission's] dispute resolution process and it
does not permit a health care provider to pursue a private claim against
the claimant.
subsequent injury fund] for any initial pharmaceutical payment
which the SIF previously reimbursed [refunded]
to the insurance carrier. The insurance carrier's
reimbursement of the SIF shall be paid within the timeframe the
insurance carrier has to comply with the agreement, decision and order,
or other judgment which found the claim to be compensable.
commission
] that is later reversed or modified by final arbitration,
order, or decision of the commissioner [commission,
the State Office of Administrative Hearings], or court of last
resort shall be filed with the SIF administrator in writing and include:
or refund];
total amount of payment requested,] the payees, [and] the
periods of benefits paid, all plain language notices ("PLNs")
regarding the payment of benefits, all certifications of maximum medical
improvement and all assignments of impairment rating [as
well as documentation that shows that the overpayment was unrecoupable
as described in subsection (b), if applicable];
or refund] that
may be due;
relevant] orders and
decisions (Benefit Review Conferences, Interlocutory Orders, Contested
Case Hearing Decision & Orders, Appeal Panel Decisions, and Court
orders) regarding the payment and/or the circumstances of payment, [
that relate to the payment] for which reimbursement is being
requested along with an indication of which document is
the final decision on the matter;
including,
but not limited to, the Employer's First Report of Injury, the Wage
Statement, and all Supplemental Reports of Injury for overpayments
of income benefits]; and
for overpayments of medical benefits].
related
] to subsection (a)(2) of this section, related to a reimbursement [strike>
refund] of death benefits paid to the SIF prior to a
legal beneficiary being determined to be entitled [
eligible] to receive death benefits, shall be filed with the
SIF administrator in writing and include:
or refund];
total amount of payment requested,] the payees, and the periods of
benefits paid;
or refund
] that may be due;
under] §122.100 of this title (relating to Claim for Death
Benefits); and
the agreement],
the final award of the commissioner [
commission],
or the final judgment of a court of competent jurisdiction determining
that the legal beneficiary is entitled to the death benefits[
, if entitlement to benefits had been disputed].
9/1/02]
through August 31, 2010, [8/31/03
] must be submitted prior to August 31, 2011 [
8/31/04]. Any claims for insurance carrier payments related to multiple employment
that are not submitted within the required timeframe will not be reviewed
for reimbursement. These requests shall be filed with the SIF administrator
in writing and include:
or refund];
total amount of payment requested,] the payees, and the periods of
benefits paid, all PLNs regarding the payment of benefits, as
well as documentation that shows that the overpayment was unrecoupable
as described in subsection (b) of this section, if applicable;
or refund] that may be due;
all] information documenting
the injured employee's average weekly wage amounts
paid from
all non claim employment held at the time of the work related injury
pursuant to §122.5 of this title (relating to Employee's Multiple
Employment Wage Statement[.]); and
all] information documenting the injured
employee's average weekly wage amounts paid based on employment
with the claim employer.
(a)(4)]
of this section. The fiscal year begins each September 1st and ends
on August 31st of the next calendar year. For example, if an injury
is determined to be not compensable during the fiscal year from
September 1, 2009 [9/1/02] through
August 31, 2010 [8/31/03
], the request for reimbursement pursuant to
Labor Code §413.0141 must be submitted prior to
August 31, 2011 [8/31/04]. Any claims for
insurance carrier
payments related to initial pharmaceutical coverage that are not submitted
within the required timeframe will not be reviewed for reimbursement.
The requests shall be filed with the SIF administrator in writing
and include:
or refund];
total amount of payment requested,] the payees, and the
periods of benefits paid;
or refund] that may be due;
commission] or court of last resort
, or documentation of a claimant's failure to respond in accordance with subsection (a)(6)(B)
of this section.
(g)] An insurance carrier
seeking reimbursement from the SIF shall timely provide any
[Any
] other documentation reasonably required by the SIF administrator
to determine entitlement to reimbursement or payment from the SIF
and the amount of reimbursement to which the insurance carrier
is entitled. The insurance carrier must also provide notice to
the SIF of any pending dispute or other information that may affect
the workers' compensation claim that is the subject of a request for
reimbursement and all litigation affecting the request for reimbursement.
of the
Act] and §132.10(g) of this title (relating to Payment
of Death Benefits to the Subsequent Injury Fund);
of the Act];
§]413.055 [of the Act
] and §116.11
of this title (relating to Request for Reimbursement [
or Refund] from the Subsequent Injury Fund)[.]; and
of the Act] relating to multiple employment and those in accordance
with division [commission] rule(s) adopted pursuant
to Labor Code §413.0141 [of the Act relating
to initial pharmaceutical coverage].
(a)](2)
and [(a)](3) of this section should be processed in
the fiscal quarter following the quarter in which the request was
submitted and no later than one year following the submission. [
may be reviewed and ordered paid by the SIF administrator at any time
during the fiscal year.]
Following the end of the
fiscal year, the administrator of the SIF shall review:]
[(1) the SIF available balance and
projected revenues and liabilities;]
[(2) the current claims against the
SIF, in the order of priorities set out in subsection (a) of this
section; and]
[(3) all completed requests for reimbursement
as described in §116.11 and §132.10 of this title, received
during the prior fiscal year, except as provided in subsection (g)
of this section.]
of the Act], if the commissioner [commission
] determines that partial payments of the claims described in
subsection (a)(4) of this section are [is] necessary,
partial payments shall be calculated in the following manner:
Act].
Following the end of each fiscal year,]
the SIF administrator shall, no later than October 30 of the
following fiscal year, enter appropriate orders for claims described
in subsection (a)(4) [(a)(3)] of this section.
The order shall specify the amount the SIF shall pay to the
insurance carrier.
[(g) The SIF administrator shall submit
orders to the state comptroller for payment and send a copy of the
order to the requesting carrier.]
(h)] The insurance
carrier must provide notice to the SIF of any pending dispute or other
information that may affect the workers' compensation claim that is
the subject of a request for reimbursement and all litigation affecting
the request for reimbursement. The SIF administrator will refrain
from acting on an insurance [a
] carrier's request for reimbursement [or refund
] from the SIF until final [dispute] resolution of
all disputes affecting the request for reimbursement [
the claim by a final decision
of the commission, State Office of Administrative Hearings or the
court of last resort except as provided in §116.11(a)(3) and
(4)].
CHAPTER 143. DISPUTE RESOLUTION REVIEW BY THE APPEALS PANEL