LABOR CODE
CHAPTER 410. ADJUDICATION OF DISPUTES
SUBCHAPTER A. GENERAL PROVISIONS
§ 410.001. DEFINITIONS. In this chapter:
(1) "Director" means the director of the division.
(2) "Division" means the division of hearings.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.002. LAW GOVERNING LIABILITY PROCEEDINGS. A
proceeding before the commission to determine the liability of an
insurance carrier for compensation for an injury or death under
this subtitle is governed by this chapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.003. APPLICATION OF ADMINISTRATIVE PROCEDURE AND
TEXAS REGISTER ACT. Except as otherwise provided by this chapter,
Chapter 2001, Government Code does not apply to a proceeding under
this chapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 76, § 5.95(49), eff. Sept. 1, 1995.
§ 410.004. DIVISION OF HEARINGS. The division shall
conduct benefit review conferences, contested case hearings,
arbitration, and appeals within the commission related to workers'
compensation claims.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.005. VENUE FOR ADMINISTRATIVE
PROCEEDINGS. (a) Unless the commission determines that good
cause exists for the selection of a different location, a benefit
review conference or a contested case hearing may not be conducted
at a site more than 75 miles from the claimant's residence at the
time of the injury.
(b) Unless the assigned arbitrator determines that good
cause exists for the selection of a different location, arbitration
may not be conducted at a site more than 75 miles from the
claimant's residence at the time of the injury.
(c) All appeals panel proceedings shall be conducted in
Travis County.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.006. REPRESENTATION AT ADMINISTRATIVE
PROCEEDINGS. (a) A claimant may be represented at a benefit
review conference, a contested case hearing, or arbitration by an
attorney or may be assisted by an individual of the claimant's
choice who does not work for an attorney or receive a fee. An
employee of an attorney may represent a claimant if that employee:
(1) is a relative of the claimant; and
(2) does not receive a fee.
(b) An insurance carrier may be represented by an attorney
or adjuster.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER B. BENEFIT REVIEW CONFERENCE
§ 410.021. PURPOSE. A benefit review conference is a
nonadversarial, informal dispute resolution proceeding designed
to:
(1) explain, orally and in writing, the rights of the
respective parties to a workers' compensation claim and the
procedures necessary to protect those rights;
(2) discuss the facts of the claim, review available
information in order to evaluate the claim, and delineate the
disputed issues; and
(3) mediate and resolve disputed issues by agreement
of the parties in accordance with this subtitle and the policies of
the commission.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.022. BENEFIT REVIEW OFFICERS;
QUALIFICATIONS. (a) A benefit review officer shall conduct a
benefit review conference.
(b) A benefit review officer must:
(1) be an employee of the commission; and
(2) be trained in the principles and procedures of
dispute mediation.
(c) The commission shall institute and maintain an
education and training program for benefit review officers and
shall consult or contract with the Federal Mediation and
Conciliation Service or other appropriate organizations for this
purpose.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.023. REQUEST FOR BENEFIT REVIEW CONFERENCE. On
receipt of a request from a party or on its own motion, the
commission may direct the parties to a disputed workers'
compensation claim to meet in a benefit review conference to
attempt to reach agreement on disputed issues involved in the
claim.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.024. BENEFIT REVIEW CONFERENCE AS PREREQUISITE TO
FURTHER PROCEEDINGS ON CERTAIN CLAIMS. (a) Except as otherwise
provided by law or commission rule, the parties to a disputed
compensation claim are not entitled to a contested case hearing or
arbitration on the claim unless a benefit review conference is
conducted as provided by this subchapter.
(b) The commission by rule shall adopt guidelines relating
to claims that do not require a benefit review conference and may
proceed directly to a contested case hearing or arbitration.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.025. SCHEDULING OF BENEFIT REVIEW CONFERENCE;
NOTICE. (a) The commission by rule shall prescribe the time
within which a benefit review conference must be scheduled.
(b) At the time a benefit review conference is scheduled,
the commission shall schedule a contested case hearing to be held
not later than the 60th day after the date of the benefit review
conference if the disputed issues are not resolved at the benefit
review conference.
(c) The commission shall send written notice of the benefit
review conference to the parties to the claim and the employer.
(d) The commission by rule shall provide for expedited
proceedings in cases in which compensability or liability for
essential medical treatment is in dispute.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.026. POWERS AND DUTIES OF BENEFIT REVIEW
OFFICER. (a) A benefit review officer shall:
(1) mediate disputes between the parties and assist in
the adjustment of the claim consistent with this subtitle and the
policies of the commission;
(2) thoroughly inform all parties of their rights and
responsibilities under this subtitle, especially in a case in which
the employee is not represented by an attorney or other
representative; and
(3) ensure that all documents and information relating
to the employee's wages, medical condition, and any other
information pertinent to the resolution of disputed issues are
contained in the claim file at the conference, especially in a case
in which the employee is not represented by an attorney or other
representative.
(b) A benefit review officer may reschedule a benefit review
conference if the benefit review officer determines that any
available information pertinent to the resolution of disputed
issues is not produced at the benefit review conference.
(c) A benefit review officer may not take testimony but may
direct questions to an employee, an employer, or a representative
of an insurance carrier to supplement or clarify information in a
claim file.
(d) A benefit review officer may not make a formal record.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.027. RULES. (a) The commission shall adopt
rules for conducting benefit review conferences.
(b) A benefit review conference is not subject to common law
or statutory rules of evidence or procedure.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.028. FAILURE TO ATTEND; ADMINISTRATIVE
VIOLATION. (a) A scheduled benefit review conference shall be
conducted even though a party fails to attend unless the benefit
review officer determines that good cause exists to reschedule the
conference.
(b) A party commits a violation if the party fails to attend
a benefit review conference without good cause as determined by the
benefit review officer. A violation under this subsection is a
Class D administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.029. RESOLUTION AT BENEFIT REVIEW CONFERENCE;
WRITTEN AGREEMENT. (a) A dispute may be resolved either in whole
or in part at a benefit review conference.
(b) If the conference results in the resolution of some
disputed issues by agreement or in a settlement, the benefit review
officer shall reduce the agreement or the settlement to writing.
The benefit review officer and each party or the designated
representative of the party shall sign the agreement or settlement.
(c) A settlement takes effect on the date it is approved by
the director in accordance with Section 408.005.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.030. BINDING EFFECT OF AGREEMENT. (a) An
agreement signed in accordance with Section 410.029 is binding on
the insurance carrier through the conclusion of all matters
relating to the claim, unless the commission or a court, on a
finding of fraud, newly discovered evidence, or other good and
sufficient cause, relieves the insurance carrier of the effect of
the agreement.
(b) The agreement is binding on the claimant, if represented
by an attorney, to the same extent as on the insurance carrier. If
the claimant is not represented by an attorney, the agreement is
binding on the claimant through the conclusion of all matters
relating to the claim while the claim is pending before the
commission, unless the commission for good cause relieves the
claimant of the effect of the agreement.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.031. INCOMPLETE RESOLUTION; REPORT. (a) If a
dispute is not entirely resolved at a benefit review conference,
the benefit review officer shall prepare a written report that
details each issue that is not settled at the conference.
(b) The report must also include:
(1) a statement of each resolved issue;
(2) a statement of each issue raised but not resolved;
(3) a statement of the position of the parties
regarding each unresolved issue;
(4) the officer's recommendation regarding each
unresolved issue;
(5) the officer's recommendations regarding the
payment or denial of benefits;
(6) a statement of any interlocutory orders entered
under Sections 410.032 and 410.033(a); and
(7) a statement of the procedures required to request
a contested case hearing or arbitration and a complete explanation
of the differences in those proceedings and the rights of the
parties to subsequent review of the determinations made in those
proceedings.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.032. PAYMENT OF BENEFITS UNDER INTERLOCUTORY
ORDER. If a benefit review officer recommends that benefits be
paid or not paid, the benefit review officer may issue an
interlocutory order for the payment of all or part of medical
benefits or income benefits. The order may address accrued
benefits, future benefits, or both accrued benefits and future
benefits.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 955, § 2, eff. Sept. 1, 1999.
§ 410.033. MULTIPLE CARRIERS. (a) 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 benefit
review officer may issue an interlocutory order directing each
insurance carrier to pay a proportionate share of benefits due
pending a final decision on liability. The proportionate share is
computed by dividing the compensation due by the number of
insurance carriers involved.
(b) On final determination of liability, an insurance
carrier determined to be not liable for the payment of benefits is
entitled to reimbursement for the share paid by the insurance
carrier from any insurance carrier determined to be liable.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.034. FILING OF AGREEMENT AND REPORT. (a) The
benefit review officer shall file the signed agreement and the
report with the director.
(b) The commission by rule shall prescribe the times within
which the agreement and report must be filed.
(c) The director shall furnish a copy of the file-stamped
report to:
(1) the claimant;
(2) the employer; and
(3) the insurance carrier.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER C. ARBITRATION
§ 410.101. PURPOSE. The purpose of arbitration is to:
(1) enter into formal, binding stipulations on issues
on which the parties agree;
(2) resolve issues on which the parties disagree; and
(3) render a final award with respect to all issues in
dispute.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.102. ARBITRATORS; QUALIFICATIONS. (a) An
arbitrator must be an employee of the commission, except that the
commission may contract with qualified arbitrators on a
determination of special need.
(b) An arbitrator must:
(1) be a member of the National Academy of
Arbitrators;
(2) be on an approved list of the American Arbitration
Association or Federal Mediation and Conciliation Service; or
(3) meet qualifications established by the commission
by rule and be approved by an affirmative vote of at least two
commission members representing employers of labor and at least two
commission members representing wage earners.
(c) The commission shall require that each arbitrator have
appropriate training in the workers' compensation laws of this
state. The commission shall establish procedures to carry out this
subsection.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.103. DUTIES OF ARBITRATOR. An arbitrator shall:
(1) protect the interests of all parties;
(2) ensure that all relevant evidence has been
disclosed to the arbitrator and to all parties; and
(3) render an award consistent with this subtitle and
the policies of the commission.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.104. ELECTION OF ARBITRATION; EFFECT. (a) If
issues remain unresolved after a benefit review conference, the
parties, by agreement, may elect to engage in arbitration in the
manner provided by this subchapter. Arbitration may be used only to
resolve disputed benefit issues and is an alternative to a
contested case hearing. A contested case hearing scheduled under
Section 410.025(b) is canceled by an election under this
subchapter.
(b) To elect arbitration, the parties must file the election
with the commission not later than the 20th day after the last day
of the benefit review conference. The commission shall prescribe a
form for that purpose.
(c) An election to engage in arbitration under this
subchapter is irrevocable and binding on all parties for the
resolution of all disputes arising out of the claims that are under
the jurisdiction of the commission.
(d) An agreement to elect arbitration binds the parties to
the provisions of Chapter 408 relating to benefits, and any award,
agreement, or settlement after arbitration is elected must comply
with that chapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.105. LISTS OF ARBITRATORS. (a) The commission
shall establish regional lists of arbitrators who meet the
qualifications prescribed under Sections 410.102(a) and (b). Each
regional list shall be initially prepared in a random name order,
and subsequent additions to a list shall be added chronologically.
(b) The commission shall review the lists of arbitrators
annually and determine if each arbitrator is fair and impartial and
makes awards that are consistent with and in accordance with this
subtitle and the rules of the commission. The commission shall
remove an arbitrator if after review the arbitrator does not
receive an affirmative vote of at least two commission members
representing employers of labor and at least two commission members
representing wage earners.
(c) The commission's lists are confidential and are not
subject to disclosure under Chapter 552, Government Code. The
lists may not be revealed by any commission employee to any person
who is not a commission employee. The lists are exempt from
discovery in civil litigation unless the party seeking the
discovery establishes reasonable cause to believe that a violation
of the requirements of this section or Section 410.106, 410.107,
410.108, or 410.109(b) occurred and that the violation is relevant
to the issues in dispute.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 76, § 5.95(88), eff. Sept. 1, 1995.
§ 410.106. SELECTION OF ARBITRATOR. The commission
shall assign the arbitrator for a particular case by selecting the
next name after the previous case's selection in consecutive order.
The commission may not change the order of names once the order is
established under this subchapter, except that once each arbitrator
on the list has been assigned to a case, the names shall be randomly
reordered.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.107. ASSIGNMENT OF ARBITRATOR. (a) The
commission shall assign an arbitrator to a pending case not later
than the 30th day after the date on which the election for
arbitration is filed with the commission.
(b) When an arbitrator has been assigned to a case under
Subsection (a), the parties shall be notified immediately.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.108. REJECTION OF ARBITRATOR. (a) Each party is
entitled, in its sole discretion, to one rejection of the
arbitrator in each case. If a party rejects the arbitrator, the
commission shall assign another arbitrator as provided by Section
410.106.
(b) A rejection must be made not later than the third day
after the date of notification of the arbitrator's assignment.
(c) When all parties have exercised their right of rejection
or if no rejection is registered, the assignment is final.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.109. SCHEDULING OF ARBITRATION. (a) The
arbitrator shall schedule arbitration to be held not later than the
30th day after the date of the arbitrator's assignment and shall
notify the parties and the commission of the scheduled date.
(b) If an arbitrator is unable to schedule arbitration in
accordance with Subsection (a), the commission shall appoint the
next arbitrator on the applicable list. Each party is entitled to
reject the arbitrator appointed under this subsection in the manner
provided under Section 410.108.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.110. CONTINUANCE. (a) A request by a party for a
continuance of the arbitration to another date must be directed to
the director. The director may grant a continuance only if the
director determines, giving due regard to the availability of the
arbitrator, that good cause for the continuance exists.
(b) If the director grants a continuance under this section,
the rescheduled date may not be later than the 30th day after the
original date of the arbitration.
(c) Without regard to whether good cause exists, the
director may not grant more than one continuance to each party.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.111. RULES. The commission shall adopt rules for
arbitration consistent with generally recognized arbitration
principles and procedures.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.112. EXCHANGE AND FILING OF INFORMATION;
ADMINISTRATIVE VIOLATION. (a) Not later than the seventh day
before the first day of arbitration, the parties shall exchange and
file with the arbitrator:
(1) all medical reports and other documentary evidence
not previously exchanged or filed that are pertinent to the
resolution of the claim; and
(2) information relating to their proposed resolution
of the disputed issues.
(b) A party commits a violation if the party, without good
cause as determined by the arbitrator, fails to comply with
Subsection (a). A violation under this subsection is a Class D
administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.113. DUTIES OF PARTIES AT ARBITRATION;
ATTENDANCE; ADMINISTRATIVE VIOLATION. (a) Each party shall
attend the arbitration prepared to set forth in detail its position
on unresolved issues and the issues on which it is prepared to
stipulate.
(b) A party commits a violation if the party does not attend
the arbitration unless the arbitrator determines that the party had
good cause not to attend. A violation under this subsection is a
Class D administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.114. TESTIMONY; RECORD. (a) The arbitrator may
require witnesses to testify under oath and shall require testimony
under oath if requested by a party.
(b) The commission shall make an electronic recording of the
proceeding.
(c) An official stenographic record is not required, but any
party may at the party's expense make a stenographic record of the
proceeding.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.115. EVIDENCE. (a) The parties may offer
evidence as they desire and shall produce additional evidence as
the arbitrator considers necessary to an understanding and
determination of the dispute.
(b) The arbitrator is the judge of the relevance and
materiality of the evidence offered. Conformity to legal rules of
evidence is not required.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.116. CLOSING STATEMENTS; BRIEFS. The parties may
present closing statements as they desire, but the record may not
remain open for written briefs unless requested by the arbitrator.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.117. EX PARTE CONTACTS PROHIBITED. A party and an
arbitrator may not communicate outside the arbitration unless the
communication is in writing with copies provided to all parties or
relates to procedural matters.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.118. AWARD. (a) The arbitrator shall enter the
arbitrator's award not later than the seventh day after the last day
of arbitration.
(b) The arbitrator shall base the award on the facts
established at arbitration, including stipulations of the parties,
and on the law as properly applied to those facts.
(c) The award must:
(1) be in writing;
(2) be signed and dated by the arbitrator; and
(3) include a statement of the arbitrator's decision
on the contested issues and the parties' stipulations on
uncontested issues.
(d) The arbitrator shall file a copy of the award as part of
the permanent claim file at the commission and shall notify the
parties in writing of the decision.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.119. EFFECT OF AWARD. (a) An arbitrator's award
is final and binding on all parties. Except as provided by Section
410.121, there is no right to appeal.
(b) An arbitrator's award is a final order of the
commission.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.120. CLERICAL ERROR. For the purpose of
correcting a clerical error, an arbitrator retains jurisdiction of
the award for 20 days after the date of the award.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.121. COURT VACATING AWARD. (a) On application
of an aggrieved party, a court of competent jurisdiction shall
vacate an arbitrator's award on a finding that:
(1) the award was procured by corruption, fraud, or
misrepresentation;
(2) the decision of the arbitrator was arbitrary and
capricious; or
(3) the award was outside the jurisdiction of the
commission.
(b) If an award is vacated, the case shall be remanded to the
commission for another arbitration proceeding.
(c) A suit to vacate an award must be filed not later than
the 30th day after:
(1) the date of the award; or
(2) the date the appealing party knew or should have
known of a basis for suit under this section, but in no event later
than 12 months after an order denying compensation or after the
expiration of the income or death benefit period.
(d) Venue for a suit to vacate an award is in the county in
which the arbitration was conducted.
(e) In a suit to vacate an arbitrator's award, only the
court may make determinations, including findings of fact or
conclusions of law.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER D. CONTESTED CASE HEARING
§ 410.151. CONTESTED CASE HEARING; SCOPE. (a) If
arbitration is not elected under Section 410.104, a party to a claim
for which a benefit review conference is held or a party eligible to
proceed directly to a contested case hearing as provided by Section
410.024 is entitled to a contested case hearing.
(b) An issue that was not raised at a benefit review
conference or that was resolved at a benefit review conference may
not be considered unless:
(1) the parties consent; or
(2) if the issue was not raised, the commission
determines that good cause existed for not raising the issue at the
conference.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.152. HEARING OFFICERS; QUALIFICATIONS. (a) A
hearing officer shall conduct a contested case hearing.
(b) A hearing officer must be licensed to practice law in
this state.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.153. APPLICATION OF ADMINISTRATIVE PROCEDURE
ACT. Chapter 2001, Government Code, applies to a contested case
hearing to the extent that the commission finds appropriate, except
that the following do not apply:
(1) Section 2001.054;
(2) Sections 2001.061 and 2001.062;
(3) Section 2001.202; and
(4) Subchapters F, G, I, and Z, except for Section
2001.141(c).
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 76, § 5.93, eff. Sept. 1, 1995.
§ 410.154. SCHEDULING OF HEARING. The commission shall
schedule a contested case hearing in accordance with Section
410.024 or 410.025(b).
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.155. CONTINUANCE. (a) A written request by a
party for a continuance of a contested case hearing to another date
must be directed to the commission.
(b) The commission may grant a continuance only if the
commission determines that there is good cause for the continuance.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.156. ATTENDANCE REQUIRED; ADMINISTRATIVE
VIOLATION. (a) Each party shall attend a contested case hearing.
(b) A party commits a violation if the party, without good
cause as determined by the hearing officer, does not attend a
contested case hearing. A violation under this subsection is a
Class C administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.157. RULES. The commission shall adopt rules
governing procedures under which contested case hearings are
conducted.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.158. DISCOVERY. (a) Except as provided by
Section 410.162, discovery is limited to:
(1) depositions on written questions to any health
care provider;
(2) depositions of other witnesses as permitted by the
hearing officer for good cause shown; and
(3) interrogatories as prescribed by the commission.
(b) Discovery under Subsection (a) may not seek information
that may readily be derived from documentary evidence described in
Section 410.160. Answers to discovery under Subsection (a) need
not duplicate information that may readily be derived from
documentary evidence described in Section 410.160.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.159. STANDARD INTERROGATORIES. (a) The
commission by rule shall prescribe standard form sets of
interrogatories to elicit information from claimants and insurance
carriers.
(b) Standard interrogatories shall be answered by each
party and served on the opposing party within the time prescribed by
commission rule, unless the parties agree otherwise.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.160. EXCHANGE OF INFORMATION. Within the time
prescribed by commission rule, the parties shall exchange:
(1) all medical reports and reports of expert
witnesses who will be called to testify at the hearing;
(2) all medical records;
(3) any witness statements;
(4) the identity and location of any witness known to
the parties to have knowledge of relevant facts; and
(5) all photographs or other documents that a party
intends to offer into evidence at the hearing.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.161. FAILURE TO DISCLOSE INFORMATION. A party who
fails to disclose information known to the party or documents that
are in the party's possession, custody, or control at the time
disclosure is required by Sections 410.158-410.160 may not
introduce the evidence at any subsequent proceeding before the
commission or in court on the claim unless good cause is shown for
not having disclosed the information or documents under those
sections.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.162. ADDITIONAL DISCOVERY. For good cause shown,
a party may obtain permission from the hearing officer to conduct
additional discovery as necessary.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.163. POWERS AND DUTIES OF HEARING
OFFICER. (a) At a contested case hearing the hearing officer
shall:
(1) swear witnesses;
(2) receive testimony;
(3) allow examination and cross-examination of
witnesses;
(4) accept documents and other tangible evidence; and
(5) allow the presentation of evidence by affidavit.
(b) A hearing officer shall ensure the preservation of the
rights of the parties and the full development of facts required for
the determinations to be made. A hearing officer may permit the use
of summary procedures, if appropriate, including witness
statements, summaries, and similar measures to expedite the
proceedings.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.164. RECORD. (a) The proceedings of a contested
case hearing shall be recorded electronically. A party may request
a transcript of the proceeding and shall pay the reasonable cost of
the transcription.
(b) A party may request that the proceedings of the
contested case hearing be recorded by a court reporter. The party
making the request shall bear the cost.
(c) At each contested case hearing, as applicable, the
insurance carrier shall file with the hearing officer and shall
deliver to the claimant a single document stating the true
corporate name of the insurance carrier and the name and address of
the insurance carrier's registered agent for service of process.
The document is part of the record of the contested case hearing.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 1456, § 11.01, eff. June 17, 2001.
§ 410.165. EVIDENCE. (a) The hearing officer is the
sole judge of the relevance and materiality of the evidence offered
and of the weight and credibility to be given to the evidence.
Conformity to legal rules of evidence is not necessary.
(b) A hearing officer may accept a written statement signed
by a witness and shall accept all written reports signed by a health
care provider.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.166. STIPULATIONS. A written stipulation or
agreement of the parties that is filed in the record or an oral
stipulation or agreement of the parties that is preserved in the
record is final and binding.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.167. EX PARTE CONTACTS PROHIBITED. A party and a
hearing officer may not communicate outside the contested case
hearing unless the communication is in writing with copies provided
to all parties or relates to procedural matters.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.168. DECISION. (a) The hearing officer shall
issue a written decision that includes:
(1) findings of fact and conclusions of law;
(2) a determination of whether benefits are due; and
(3) an award of benefits due.
(b) The decision may address accrued benefits, future
benefits, or both accrued benefits and future benefits.
(c) The hearing officer may enter an interlocutory order for
the payment of all or part of medical benefits or income benefits.
The order may address accrued benefits, future benefits, or both
accrued benefits and future benefits. The order is binding during
the pendency of an appeal to the appeals panel.
(d) On a form that the commission by rule prescribes, the
hearing officer shall issue a separate written decision regarding
attorney's fees and any matter related to attorney's fees. The
decision regarding attorney's fees and the form may not be made
known to a jury in a judicial review of an award, including an
appeal.
(e) The commission by rule shall prescribe the times within
which the hearing officer must file the decisions with the
division.
(f) The division shall send a copy of the decision to each
party.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 955, § 3, eff. Sept. 1, 1999.
§ 410.169. EFFECT OF DECISION. A decision of a hearing
officer regarding benefits is final in the absence of a timely
appeal by a party and is binding during the pendency of an appeal to
the appeals panel.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
SUBCHAPTER E. APPEALS PANEL
§ 410.201. APPEALS JUDGES;
QUALIFICATIONS. (a) Appeals judges, in panels of three, shall
conduct administrative appeals proceedings.
(b) An appeals judge must be licensed to practice law in
this state.
(c) An appeals judge may not conduct a benefit review
conference or a contested case hearing.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.202. REQUEST FOR APPEAL; RESPONSE. (a) To
appeal the decision of a hearing officer, a party shall file a
written request for appeal with the appeals panel not later than the
15th day after the date on which the decision of the hearing officer
is received from the division and shall on the same date serve a
copy of the request for appeal on the other party.
(b) The respondent shall file a written response with the
appeals panel not later than the 15th day after the date on which
the copy of the request for appeal is served and shall on the same
date serve a copy of the response on the appellant.
(c) A request for appeal or a response must clearly and
concisely rebut or support the decision of the hearing officer on
each issue on which review is sought.
(d) Saturdays and Sundays and holidays listed in Section
662.003, Government Code, are not included in the computation of
the time in which a request for an appeal under Subsection (a) or a
response under Subsection (b) must be filed.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 1456, § 12.01, eff. June 17, 2001.
§ 410.203. POWERS AND DUTIES OF APPEALS PANEL; PRIORITY
OF HEARING ON REMAND. (a) An appeals panel shall consider:
(1) the record developed at the contested case
hearing; and
(2) the written request for appeal and response filed
with the appeals panel.
(b) An appeals panel may:
(1) affirm the decision of the hearing officer;
(2) reverse that decision and render a new decision;
or
(3) reverse that decision and remand the case to the
hearing officer for further consideration and development of
evidence.
(c) An appeals panel may not remand a case under Subsection
(b)(3) more than once.
(d) A hearing on remand shall be accelerated and the
commission shall adopt rules to give priority to the hearing over
other proceedings.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.204. DECISION. (a) An appeals panel shall issue
a decision that determines each issue on which review was
requested. The decision must be in writing and shall be issued not
later than the 30th day after the date on which the written response
to the request for appeal is filed. The appeals panel shall file a
copy of the decision with the director.
(b) A copy of the decision of the appeals panel shall be sent
to each party not later than the seventh day after the date the
decision is filed with the commission.
(c) If an appeals panel does not issue its decision in
accordance with this section, the decision of the hearing officer
becomes final and is the final decision of the appeals panel.
(d) Each final decision of the appeals panel shall conclude
with a separate paragraph stating: "The true corporate name of the
insurance carrier is (NAME IN BOLD PRINT) and the name and address
of its registered agent for service of process is (NAME AND ADDRESS
IN BOLD PRINT)."
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2001, 77th Leg., ch. 1456, § 11.02, eff. June 17, 2001.
§ 410.205. EFFECT OF DECISION. (a) A decision of an
appeals panel regarding benefits is final in the absence of a timely
appeal for judicial review.
(b) The decision of the appeals panel regarding benefits is
binding during the pendency of an appeal under Subchapter F or G.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1999, 76th Leg., ch. 955, § 4, eff. Sept. 1, 1999.
§ 410.206. CLERICAL ERROR. The executive director may
revise a decision in a contested case hearing on a finding of
clerical error.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.207. CONTINUATION OF COMMISSION
JURISDICTION. During judicial review of an appeals panel decision
on any disputed issue relating to a workers' compensation claim,
the commission retains jurisdiction of all other issues related to
the claim.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.208. JUDICIAL ENFORCEMENT OF ORDER OR DECISION;
ADMINISTRATIVE VIOLATION. (a) If a person refuses or fails to
comply with an interlocutory order, final order, or decision of the
commission, the commission may bring suit in Travis County to
enforce the order or decision.
(b) If an insurance carrier refuses or fails to comply with
an interlocutory order, a final order, or a decision of the
commission, the claimant may bring suit in the county of the
claimant's residence or the county in which the injury occurred to
enforce the order or decision.
(c) If the commission brings suit to enforce an
interlocutory order, final order, or decision of the commission,
the commission is entitled to reasonable attorney's fees and costs
for the prosecution and collection of the claim, in addition to a
judgment enforcing the order or decision and any other remedy
provided by law.
(d) A claimant who brings suit to enforce an interlocutory
order, final order, or decision of the commission is entitled to a
penalty equal to 12 percent of the amount of benefits recovered in
the judgment, interest, and reasonable attorney's fees for the
prosecution and collection of the claim, in addition to a judgment
enforcing the order or decision.
(e) A person commits a violation if the person fails or
refuses to comply with an interlocutory order, final order, or
decision of the commission within 20 days after the date the order
or decision becomes final. A violation under this subsection is a
Class A administrative violation.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2003, 78th Leg., ch. 397, § 1, eff. Sept. 1, 2003.
§ 410.209. REIMBURSEMENT FOR OVERPAYMENT. The
subsequent injury fund shall reimburse an insurance carrier for any
overpayments of benefits made under an interlocutory order or
decision if that order or decision is reversed or modified by final
arbitration, order, or decision of the commission or a court. The
commission shall adopt rules to provide for a periodic
reimbursement schedule, providing for reimbursement at least
annually.
Added by Acts 1999, 76th Leg., ch. 955, § 5, eff. Sept. 1, 1999.
SUBCHAPTER F. JUDICIAL REVIEW--GENERAL PROVISIONS
§ 410.251. EXHAUSTION OF REMEDIES. A party that has
exhausted its administrative remedies under this subtitle and that
is aggrieved by a final decision of the appeals panel may seek
judicial review under this subchapter and Subchapter G, if
applicable.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.252. TIME FOR FILING PETITION; VENUE. (a) A
party may seek judicial review by filing suit not later than the
40th day after the date on which the decision of the appeals panel
was filed with the division.
(b) The party bringing suit to appeal the decision must file
a petition with the appropriate court in:
(1) the county where the employee resided at the time
of the injury or death, if the employee is deceased; or
(2) in the case of an occupational disease, in the
county where the employee resided on the date disability began or
any county agreed to by the parties.
(c) If a suit under this section is filed in a county other
than the county described by Subsection (b), the court, on
determining that it does not have jurisdiction to render judgment
on the merits of the suit, shall transfer the case to a proper court
in a county described by Subsection (b). Notice of the transfer of
a suit shall be given to the parties. A suit transferred under this
subsection shall be considered for all purposes the same as if
originally filed in the court to which it is transferred.
(d) If a suit is initially filed within the 40-day period in
Subsection (a), and is transferred under Subsection (c), the suit
is considered to be timely filed in the court to which it is
transferred.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2003, 78th Leg., ch. 663, § 1, eff. Sept. 1, 2003.
§ 410.253. SERVICE; NOTICE. (a) A party seeking
judicial review shall simultaneously:
(1) file a copy of the party's petition with the court;
(2) serve any opposing party to the suit; and
(3) provide written notice of the suit or notice of
appeal to the commission.
(b) A party may not seek judicial review under Section
410.251 unless the party has provided written notice of the suit to
the commission as required by this section.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 2003, 78th Leg., ch. 397, § 2, eff. Sept. 1, 2003.
§ 410.254. COMMISSION INTERVENTION. On timely motion
initiated by the executive director, the commission shall be
permitted to intervene in any judicial proceeding under this
subchapter or Subchapter G.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.255. JUDICIAL REVIEW OF ISSUES OTHER THAN
COMPENSABILITY OR INCOME OR DEATH BENEFITS. (a) For all issues
other than those covered under Section 410.301(a), judicial review
shall be conducted in the manner provided for judicial review of a
contested case under Subchapter G, Chapter 2001, Government Code.
(b) Judicial review conducted under this section is
governed by the substantial evidence rule.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1995, 74th Leg., ch. 76, § 5.95(53), eff. Sept. 1, 1995.
§ 410.256. COURT APPROVAL OF SETTLEMENT. (a) A claim
or issue may not be settled contrary to the provisions of an appeals
panel decision issued on the claim or issue unless a party to the
proceeding has filed for judicial review under this subchapter or
Subchapter G. The trial court must approve a settlement made by the
parties after judicial review of an award is sought and before the
court enters judgment.
(b) The court may not approve a settlement except on a
finding that:
(1) the settlement accurately reflects the agreement
between the parties;
(2) the settlement adheres to all appropriate
provisions of the law; and
(3) under the law and facts, the settlement is in the
best interest of the claimant.
(c) A settlement may not provide for:
(1) payment of any benefits in a lump sum except as
provided by Section 408.128; or
(2) limitation or termination of the claimant's right
to medical benefits under Section 408.021.
(d) A settlement or agreement that resolves an issue of
impairment may not be made before the claimant reaches maximum
medical improvement and must adopt one of the impairment ratings
under Subchapter G, Chapter 408.
(e) A party proposing a settlement before judgment is
entered by the trial court may petition the court orally or in
writing for approval of the settlement.
(f) Settlement of a claim or issue under this section does
not constitute a modification or reversal of the decision awarding
benefits for the purpose of Section 410.209.
(g) Settlement of a claim or issue must be in compliance
with all appropriate provisions of the law, including this section
and Section 410.258 of this subchapter. A settlement which on its
face does not comply with this section is void.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended
by Acts 1997, 75th Leg., ch. 1267, § 1, eff. Sept. 1, 1997; Acts
2003, 78th Leg., ch. 397, § 3, eff. Sept. 1, 2003.
§ 410.257. JUDGMENT AFTER JUDICIAL REVIEW. (a) A
judgment entered by a court on judicial review of an appeals panel
decision under this subchapter or Subchapter G must comply with all
appropriate provisions of the law.
(b) A judgment under this section may not provide for:
(1) payment of benefits in a lump sum except as
provided by Section 408.128; or
(2) the limitation or termination of the claimant's
right to medical benefits under Section 408.021.
(c) A judgment that resolves an issue of impairment may not
be entered before the date the claimant reaches maximum medical
improvement. The judgment must adopt an impairment rating under
Subchapter G, Chapter 408, except to the extent Section 410.307
applies.
(d) A judgment under this section may not order
reimbursement from the subsequent injury fund.
(e) A judgment under this section based on default or on an
agreement of the parties does not constitute a modification or
reversal of a decision awarding benefits for the purpose of Section
410. 209.
(f) A judgment that on its face does not comply with this
section is void.
Added by Acts 1997, 75th Leg., ch. 1267, § 2, eff. Sept. 1, 1997.
Amended by Acts 2003, 78th Leg., ch. 397, § 4, eff. Sept. 1,
2003.
§ 410.258. NOTIFICATION OF COMMISSION OF PROPOSED
JUDGMENTS AND SETTLEMENTS; RIGHT TO INTERVENE. (a) The party who
initiated a proceeding under this subchapter or Subchapter G must
file any proposed judgment or settlement made by the parties to the
proceeding, including a proposed default judgment, with the
executive director of the commission not later than the 30th day
before the date on which the court is scheduled to enter the
judgment or approve the settlement. The proposed judgment or
settlement must be mailed to the executive director by certified
mail, return receipt requested.
(b) The commission may intervene in a proceeding under
Subsection (a) not later than the 30th day after the date of receipt
of the proposed judgment or settlement.
(c) The commission shall review the proposed judgment or
settlement to determine compliance with all appropriate provisions
of the law. If the commission determines that the proposal is not
in compliance with the law, the commission may intervene as a matter
of right in the proceeding not later than the 30th day after the
date of receipt of the proposed judgment or settlement. The court
may limit the extent of the commission's intervention to providing
the information described by Subsection (e).
(d) If the commission does not intervene before the 31st day
after the date of receipt of the proposed judgment or settlement,
the court shall enter the judgment or approve the settlement if the
court determines that the proposed judgment or settlement is in
compliance with all appropriate provisions of the law.
(e) If the commission intervenes in the proceeding, the
commission shall inform the court of each reason the commission
believes the proposed judgment or settlement is not in compliance
with the law. The court shall give full consideration to the
information provided by the commission before entering a judgment
or approving a settlement.
(f) A judgment entered or settlement approved without
complying with the requirements of this section is void.
Added by Acts 1997, 75th Leg., ch. 1267, § 2, eff. Sept. 1, 1997.
SUBCHAPTER G. JUDICIAL REVIEW OF ISSUES REGARDING COMPENSABILITY OR
INCOME OR DEATH BENEFITS
§ 410.301. JUDICIAL REVIEW OF ISSUES REGARDING
COMPENSABILITY OR INCOME OR DEATH BENEFITS. (a) Judicial review
of a final decision of a commission appeals panel regarding
compensability or eligibility for or the amount of income or death
benefits shall be conducted as provided by this subchapter.
(b) A determination of benefits before a court shall be in
accordance with this subtitle.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.302. LIMITATION OF ISSUES. A trial under this
subchapter is limited to issues decided by the commission appeals
panel and on which judicial review is sought. The pleadings must
specifically set forth the determinations of the appeals panel by
which the party is aggrieved.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.303. BURDEN OF PROOF. The party appealing the
decision on an issue described in Section 410.301(a) has the burden
of proof by a preponderance of the evidence.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.304. CONSIDERATION OF APPEALS PANEL
DECISION. (a) In a jury trial, the court, before submitting the
case to the jury, shall inform the jury in the court's instructions,
charge, or questions to the jury of the commission appeals panel
decision on each disputed issue described by Section 410.301(a)
that is submitted to the jury.
(b) In a trial to the court without a jury, the court in
rendering its judgment on an issue described by Section 410.301(a)
shall consider the decision of the commission appeals panel.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.305. CONFLICT WITH RULES OF CIVIL
PROCEDURE. (a) To the extent that this subchapter conflicts with
the Texas Rules of Civil Procedure or any other rules adopted by the
supreme court, this subchapter controls.
(b) Notwithstanding Section 22.004, Government Code, or any
other law, the supreme court may not adopt rules in conflict with or
inconsistent with this subchapter.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.306. EVIDENCE. (a) Evidence shall be adduced as
in other civil trials.
(b) The commission on payment of a reasonable fee shall make
available to the parties a certified copy of the commission's
record. All facts and evidence the record contains are admissible
to the extent allowed under the Texas Rules of Civil Evidence.
(c) Except as provided by Section 410.307, evidence of
extent of impairment shall be limited to that presented to the
commission. The court or jury, in its determination of the extent
of impairment, shall adopt one of the impairment ratings under
Subchapter G, Chapter 408.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.307. SUBSTANTIAL CHANGE OF
CONDITION. (a) Evidence of the extent of impairment is not
limited to that presented to the commission if the court, after a
hearing, finds that there is a substantial change of condition. The
court's finding of a substantial change of condition may be based
only on:
(1) medical evidence from the same doctor or doctors
whose testimony or opinion was presented to the commission;
(2) evidence that has come to the party's knowledge
since the contested case hearing;
(3) evidence that could not have been discovered
earlier with due diligence by the party; and
(4) evidence that would probably produce a different
result if it is admitted into evidence at the trial.
(b) If substantial change of condition is disputed, the
court shall require the designated doctor in the case to verify the
substantial change of condition, if any. The findings of the
designated doctor shall be presumed to be correct, and the court
shall base its finding on the medical evidence presented by the
designated doctor in regard to substantial change of condition
unless the preponderance of the other medical evidence is to the
contrary.
(c) The substantial change of condition must be confirmable
by recognized laboratory or diagnostic tests or signs confirmable
by physical examination.
(d) If the court finds a substantial change of condition
under this section, new medical evidence of the extent of
impairment must be from and is limited to the same doctor or doctors
who made impairment ratings before the commission under Section
408.123.
(e) The court's finding of a substantial change of condition
may not be made known to the jury.
(f) The court or jury in its determination of the extent of
impairment shall adopt one of the impairment ratings made under
this section.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
§ 410.308. CERTIFIED COPY OF NOTICE SECURING
COMPENSATION. (a) The commission or the Texas Department of
Insurance shall furnish any interested party in the claim with a
certified copy of the notice of the employer securing compensation
with the insurance carrier, filed with the commission.
(b) The certified copy of the notice is admissible in
evidence on trial of the claim pending and is prima facie proof of
the facts stated in the notice unless the facts are denied under
oath by the opposing party.
Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.
