TEXAS DEPARTMENT OF INSURANCENotification Pursuant to the Insurance Code, 
Chapter 5, Subchapter LAs required by the Insurance Code, Article 5.96 and 5.97, 
the Texas Register publishes notice of proposed actions by the Texas Board of 
Insurance. Notice of action proposed under Article 5.96 must be published in the 
Texas Register not later than the 30th day before the board adopts the proposal. 
Notice of action proposed under Article 5.97 must be published in the Texas 
Register not later than the 10th day before the Board of Insurance adopts the 
proposal. The Administrative Procedure Act, the Government Code, Chapters 2001 
and 2002, does not apply to board action under Articles 5.96 and 5.97.
The complete text of the proposal summarized here may be examined in the offices 
of the Texas Department of Insurance, 333 Guadalupe Street, Austin, Texas 78714-
9104.)
This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts it from the requirements of the Administrative Procedure Act.

Texas Department of Insurance
ADOPTED
The Commissioner of Insurance ("Commissioner") held a public hearing under 
Docket No. 2337 on March 25, 1998, at 9:00 a.m. and reconvened on April 2, 1998, 
at 10:00 a.m., in Room 100 of the William P. Hobby, Jr. State Office Building, 
333 Guadalupe Street in Austin, Texas, to consider the petition of Gary L. 
Wickert of Hughes, Watters, and Askanase, L.L.P. The petition sought the 
adoption of amendments to Endorsement No. WC 42 03 04, entitled Texas Waiver of 
Our Right to Recover From Others Endorsement (the Endorsement), as contained in 
the Texas Basic Manual of Rules, Classifications and Experience Rating Plan for 
Workers' Compensation and Employers' Liability Insurance. Mr. Wickert's petition 
(Ref. W-1297-42) proposing the amendments was filed with the Texas Department of 
Insurance Chief Clerk on December 3, 1997, and notice of the filing was 
published in the February 3, 1998 issue of the Texas Register (23 TexReg 1335).
The Endorsement currently provides for waiver of a workers' compensation 
carrier's right to recover payment from anyone liable for an injury covered by 
the policy. The petitioner proposed that the Endorsement be amended to specify 
that the waiver of subrogation under the Endorsement would apply only to past 
payments made by the insurance carrier, but would not waive the insurer's right 
to a credit against future benefits that the claimant receives. As support, the 
petitioner argued that the amendment should be adopted to allow insurers to 
retain their rights to take a credit against future benefits instead of waiving 
their rights to both past payments and the credit against future benefits as 
under the current Endorsement. The presenter also argued that this amendment may 
eliminate the potential double recovery for future benefits by injured 
employees. 
The Commissioner does not find these arguments persuasive. The Commissioner 
finds that there have been no comments or complaints from the insurance 
industry, employers who purchase policies with the current Endorsement, third 
parties who require the waiver, or other potentially affected persons supporting 
the amendment. The Commissioner further finds that amending the Endorsement 
would disrupt a long-standing practice without comment or support from these 
groups. The petitioner presented no evidence to support his argument that 
injured workers are receiving double compensation by receiving both workers' 
compensation and payments from the liable third party for future benefits.
The Commissioner has jurisdiction over this matter pursuant to the Insurance 
Code, Articles 5.56, 5.57 and 5.96. Articles 5.56 and 5.57 authorize the 
department to prescribe standard and uniform policy forms and endorsements to be 
used by all workers' compensation insurers, unless the insurer submits and 
obtains departmental approval to use a different endorsement. Article 5.96(a) 
authorizes the Commissioner to prescribe, promulgate, adopt, approve, amend, or 
repeal standard and uniform manual rules, rating plans, classification plans, 
statistical plans and policy and endorsement forms for workers' compensation 
insurance under the procedures in that article. Article 5.96(b) allows any 
interested party to initiate proceedings with respect to any matter specified in 
Article 5.96(a) by filing a written petition as described in that section.
This notification is made pursuant to the Insurance Code, Article 5.96, which 
exempts action taken under this article from the requirements of the 
Administrative Procedure Act (Government Code, Title 10, Ch. 2001). 
IT IS THEREFORE THE ORDER of the Commissioner of Insurance that the petition for 
amendments to the current Endorsement WC 42 03 04 - Texas Waiver of Our Right to 
Recover From Others Endorsement filed by Gary Wickert be denied.
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 April 22, 1998.
TRD-9805621
Caroline Scott
General Counsel and Chief Clerk
Texas Department of Insurance
Effective date: May 16, 1998
Proposal publication date: February 13, 1998
For further information, please call: (512) 463-6327