CHAPTER 401. GENERAL PROVISIONS - Texas Statutes

LABOR CODE

TITLE 5. WORKERS' COMPENSATION

SUBTITLE A. TEXAS WORKERS' COMPENSATION ACT

CHAPTER 401. GENERAL PROVISIONS

SUBCHAPTER A. SHORT TITLE; APPLICATION OF SUNSET ACT

Sec. 401.001. SHORT TITLE. This subtitle may be cited as the

Texas Workers' Compensation Act.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 401.003. ACTIVITIES OF THE STATE AUDITOR. (a) The

division is subject to audit by the state auditor in accordance

with Chapter 321, Government Code. The state auditor may audit:

(1) the structure and internal controls of the division;

(2) the level and quality of service provided by the division to

employers, injured employees, insurance carriers, self-insured

governmental entities, and other participants;

(3) the implementation of statutory mandates by the division;

(4) employee turnover;

(5) information management systems, including public access to

nonconfidential information;

(6) the adoption and implementation of administrative rules by

the commissioner; and

(7) assessment of administrative violations and the penalties

for those violations.

(b) Nothing in this section limits the authority of the state

auditor under Chapter 321, Government Code.

Added by Acts 2001, 77th Leg., ch. 1456, Sec. 7.02, eff. June 17,

2001.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.002, eff. September 1, 2005.

SUBCHAPTER B. DEFINITIONS

Sec. 401.011. GENERAL DEFINITIONS. In this subtitle:

(1) "Adjuster" means a person licensed under Chapter 4101,

Insurance Code.

(2) "Administrative violation" means a violation of this

subtitle, a rule adopted under this subtitle, or an order or

decision of the commissioner that is subject to penalties and

sanctions as provided by this subtitle.

(3) "Agreement" means the resolution by the parties to a dispute

under this subtitle of one or more issues regarding an injury,

death, coverage, compensability, or compensation. The term does

not include a settlement.

(4) "Alien" means a person who is not a citizen of the United

States.

(5) "Benefit" means a medical benefit, an income benefit, a

death benefit, or a burial benefit based on a compensable injury.

(5-a) "Case management" means a collaborative process of

assessment, planning, facilitation, and advocacy for options and

services to meet an individual's health needs through

communication and application of available resources to promote

quality, cost-effective outcomes.

(6) "Certified self-insurer" means a private employer granted a

certificate of authority to self-insure, as authorized by this

subtitle, for the payment of compensation.

(7) "Child" means a son or daughter. The term includes an

adopted child or a stepchild who is a dependent of the employee.

(8) "Commissioner" means the commissioner of workers'

compensation.

(9) "Commute" means to pay in a lump sum.

(10) "Compensable injury" means an injury that arises out of and

in the course and scope of employment for which compensation is

payable under this subtitle.

(11) "Compensation" means payment of a benefit.

(12) "Course and scope of employment" means an activity of any

kind or character that has to do with and originates in the work,

business, trade, or profession of the employer and that is

performed by an employee while engaged in or about the

furtherance of the affairs or business of the employer. The term

includes an activity conducted on the premises of the employer or

at other locations. The term does not include:

(A) transportation to and from the place of employment unless:

(i) the transportation is furnished as a part of the contract of

employment or is paid for by the employer;

(ii) the means of the transportation are under the control of

the employer; or

(iii) the employee is directed in the employee's employment to

proceed from one place to another place; or

(B) travel by the employee in the furtherance of the affairs or

business of the employer if the travel is also in furtherance of

personal or private affairs of the employee unless:

(i) the travel to the place of occurrence of the injury would

have been made even had there been no personal or private affairs

of the employee to be furthered by the travel; and

(ii) the travel would not have been made had there been no

affairs or business of the employer to be furthered by the

travel.

(12-a) "Credentialing" has the meaning assigned by Chapter 1305,

Insurance Code.

(13) "Death benefit" means a payment made under this subtitle to

a legal beneficiary because of the death of an employee.

(13-a) "Department" means the Texas Department of Insurance.

(14) "Dependent" means an individual who receives a regular or

recurring economic benefit that contributes substantially to the

individual's welfare and livelihood if the individual is eligible

for distribution of benefits under Chapter 408.

(15) "Designated doctor" means a doctor appointed by mutual

agreement of the parties or by the division to recommend a

resolution of a dispute as to the medical condition of an injured

employee.

(16) "Disability" means the inability because of a compensable

injury to obtain and retain employment at wages equivalent to the

preinjury wage.

(16-a) "Division" means the division of workers' compensation of

the department.

(17) "Doctor" means a doctor of medicine, osteopathic medicine,

optometry, dentistry, podiatry, or chiropractic who is licensed

and authorized to practice.

(18) "Employer" means, unless otherwise specified, a person who

makes a contract of hire, employs one or more employees, and has

workers' compensation insurance coverage. The term includes a

governmental entity that self-insures, either individually or

collectively.

(18-a) "Evidence-based medicine" means the use of current best

quality scientific and medical evidence formulated from credible

scientific studies, including peer-reviewed medical literature

and other current scientifically based texts, and treatment and

practice guidelines in making decisions about the care of

individual patients.

(19) "Health care" includes all reasonable and necessary medical

aid, medical examinations, medical treatments, medical diagnoses,

medical evaluations, and medical services. The term does not

include vocational rehabilitation. The term includes:

(A) medical, surgical, chiropractic, podiatric, optometric,

dental, nursing, and physical therapy services provided by or at

the direction of a doctor;

(B) physical rehabilitation services performed by a licensed

occupational therapist provided by or at the direction of a

doctor;

(C) psychological services prescribed by a doctor;

(D) the services of a hospital or other health care facility;

(E) a prescription drug, medicine, or other remedy; and

(F) a medical or surgical supply, appliance, brace, artificial

member, or prosthetic or orthotic device, including the fitting

of, change or repair to, or training in the use of the appliance,

brace, member, or device.

(20) "Health care facility" means a hospital, emergency clinic,

outpatient clinic, or other facility providing health care.

(21) "Health care practitioner" means:

(A) an individual who is licensed to provide or render and

provides or renders health care; or

(B) a nonlicensed individual who provides or renders health care

under the direction or supervision of a doctor.

(22) "Health care provider" means a health care facility or

health care practitioner.

(22-a) "Health care reasonably required" means health care that

is clinically appropriate and considered effective for the

injured employee's injury and provided in accordance with best

practices consistent with:

(A) evidence-based medicine; or

(B) if that evidence is not available, generally accepted

standards of medical practice recognized in the medical

community.

(23) "Impairment" means any anatomic or functional abnormality

or loss existing after maximum medical improvement that results

from a compensable injury and is reasonably presumed to be

permanent.

(24) "Impairment rating" means the percentage of permanent

impairment of the whole body resulting from a compensable injury.

(25) "Income benefit" means a payment made to an employee for a

compensable injury. The term does not include a medical benefit,

death benefit, or burial benefit.

(25-a) "Independent review organization" has the same meaning as

in Section 1305.004(a)(11), Insurance Code.

(26) "Injury" means damage or harm to the physical structure of

the body and a disease or infection naturally resulting from the

damage or harm. The term includes an occupational disease.

(27) "Insurance carrier" means:

(A) an insurance company;

(B) a certified self-insurer for workers' compensation

insurance;

(C) a certified self-insurance group under Chapter 407A; or

(D) a governmental entity that self-insures, either individually

or collectively.

(28) "Insurance company" means a person authorized and admitted

by the Texas Department of Insurance to do insurance business in

this state under a certificate of authority that includes

authorization to write workers' compensation insurance.

(29) "Legal beneficiary" means a person entitled to receive a

death benefit under this subtitle.

(30) "Maximum medical improvement" means the earlier of:

(A) the earliest date after which, based on reasonable medical

probability, further material recovery from or lasting

improvement to an injury can no longer reasonably be anticipated;

(B) the expiration of 104 weeks from the date on which income

benefits begin to accrue; or

(C) the date determined as provided by Section 408.104.

(31) "Medical benefit" means payment for health care reasonably

required by the nature of a compensable injury and intended to:

(A) cure or relieve the effects naturally resulting from the

compensable injury, including reasonable expenses incurred by the

employee for necessary treatment to cure and relieve the employee

from the effects of an occupational disease before and after the

employee knew or should have known the nature of the disability

and its relationship to the employment;

(B) promote recovery; or

(C) enhance the ability of the employee to return to or retain

employment.

(31-a) "Network" or "workers' compensation health care network"

means an organization that is:

(A) formed as a health care provider network to provide health

care services to injured employees;

(B) certified in accordance with Chapter 1305, Insurance Code,

and rules of the commissioner of insurance; and

(C) established by, or operates under contract with, an

insurance carrier.

(32) "Objective" means independently verifiable or confirmable

results that are based on recognized laboratory or diagnostic

tests, or signs confirmable by physical examination.

(33) "Objective clinical or laboratory finding" means a medical

finding of impairment resulting from a compensable injury, based

on competent objective medical evidence, that is independently

confirmable by a doctor, including a designated doctor, without

reliance on the subjective symptoms perceived by the employee.

(34) "Occupational disease" means a disease arising out of and

in the course of employment that causes damage or harm to the

physical structure of the body, including a repetitive trauma

injury. The term includes a disease or infection that naturally

results from the work-related disease. The term does not include

an ordinary disease of life to which the general public is

exposed outside of employment, unless that disease is an incident

to a compensable injury or occupational disease.

(34-a) "Orthotic device" means a custom-fitted or

custom-fabricated medical device that is applied to a part of the

human body to correct a deformity, improve function, or relieve

symptoms related to a compensable injury or occupational disease.

(35) "Penalty" means a fine established by this subtitle.

(35-a) "Prosthetic device" means an artificial device designed

to replace, wholly or partly, an arm or leg.

(36) "Repetitive trauma injury" means damage or harm to the

physical structure of the body occurring as the result of

repetitious, physically traumatic activities that occur over time

and arise out of and in the course and scope of employment.

(37) "Representative" means a person, including an attorney,

authorized by the commissioner to assist or represent an

employee, a person claiming a death benefit, or an insurance

carrier in a matter arising under this subtitle that relates to

the payment of compensation.

(38) "Research center" means the research functions of the Texas

Department of Insurance required under Chapter 405.

(38-a) "Retrospective review" means the utilization review

process of reviewing the medical necessity and reasonableness of

health care that has been provided to an injured employee.

(39) "Sanction" means a penalty or other punitive action or

remedy imposed by the commissioner on an insurance carrier,

representative, employee, employer, or health care provider for

an act or omission in violation of this subtitle or a rule,

order, or decision of the commissioner.

(40) "Settlement" means a final resolution of all the issues in

a workers' compensation claim that are permitted to be resolved

under the terms of this subtitle.

(41) "Subjective" means perceivable only by an employee and not

independently verifiable or confirmable by recognized laboratory

or diagnostic tests or signs observable by physical examination.

(42) "Treating doctor" means the doctor who is primarily

responsible for the employee's health care for an injury.

(42-a) "Utilization review" has the meaning assigned by Chapter

4201, Insurance Code.

(42-b) "Utilization review agent" has the meaning assigned by

Chapter 4201, Insurance Code.

(42-c) "Violation" means an administrative violation subject to

penalties and sanctions as provided by this subtitle.

(43) "Wages" includes all forms of remuneration payable for a

given period to an employee for personal services. The term

includes the market value of board, lodging, laundry, fuel, and

any other advantage that can be estimated in money that the

employee receives from the employer as part of the employee's

remuneration.

(44) "Workers' compensation insurance coverage" means:

(A) an approved insurance policy to secure the payment of

compensation;

(B) coverage to secure the payment of compensation through

self-insurance as provided by this subtitle; or

(C) coverage provided by a governmental entity to secure the

payment of compensation.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1997, 75th Leg., ch. 1443, Sec. 1, eff. Sept. 1,

1997; Acts 2003, 78th Leg., ch. 275, Sec. 2, eff. Sept. 1, 2003.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.003, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch.

133, Sec. 1, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch.

134, Sec. 1, eff. September 1, 2007.

Acts 2007, 80th Leg., R.S., Ch.

147, Sec. 1, eff. September 1, 2007.

Acts 2009, 81st Leg., R.S., Ch.

1330, Sec. 13, eff. September 1, 2009.

Sec. 401.012. DEFINITION OF EMPLOYEE. (a) In this subtitle,

"employee" means each person in the service of another under a

contract of hire, whether express or implied, or oral or written.

(b) The term "employee" includes:

(1) an employee employed in the usual course and scope of the

employer's business who is directed by the employer temporarily

to perform services outside the usual course and scope of the

employer's business;

(2) a person, other than an independent contractor or the

employee of an independent contractor, who is engaged in

construction, remodeling, or repair work for the employer at the

premises of the employer; and

(3) a person who is a trainee under the Texans Work program

established under Chapter 308.

(c) The term "employee" does not include:

(1) a master of or a seaman on a vessel engaged in interstate or

foreign commerce; or

(2) a person whose employment is not in the usual course and

scope of the employer's business.

(d) A person who is an employee for the purposes of this

subtitle and engaged in work that otherwise may be legally

performed is an employee despite:

(1) a license, permit, or certificate violation arising under

state law or municipal ordinance; or

(2) a violation of a law regulating wages, hours, or work on

Sunday.

(e) This section may not be construed to relieve from fine or

imprisonment any individual, firm, or corporation employing or

performing work or a service prohibited by a statute of this

state or a municipal ordinance.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1997, 75th Leg., ch. 456, Sec. 6, eff. Sept. 1,

1997.

Sec. 401.013. DEFINITION OF INTOXICATION. (a) In this

subtitle, "intoxication" means the state of:

(1) having an alcohol concentration to qualify as intoxicated

under Section 49.01(2), Penal Code; or

(2) not having the normal use of mental or physical faculties

resulting from the voluntary introduction into the body of:

(A) an alcoholic beverage, as defined by Section 1.04, Alcoholic

Beverage Code;

(B) a controlled substance or controlled substance analogue, as

defined by Section 481.002, Health and Safety Code;

(C) a dangerous drug, as defined by Section 483.001, Health and

Safety Code;

(D) an abusable glue or aerosol paint, as defined by Section

485.001, Health and Safety Code; or

(E) any similar substance, the use of which is regulated under

state law.

(b) The term "intoxication" does not include the loss of normal

use of mental or physical faculties resulting from the

introduction into the body of a substance:

(1) taken under and in accordance with a prescription written

for the employee by the employee's doctor; or

(2) listed under Subsection (a) by inhalation or absorption

incidental to the employee's work.

(c) On the voluntary introduction into the body of any substance

listed under Subsection (a)(2)(B), based on a blood test or

urinalysis, it is a rebuttable presumption that a person is

intoxicated and does not have the normal use of mental or

physical faculties.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1995, 74th Leg., ch. 76, Sec. 14.48, eff. Sept.

1, 1995; Acts 1999, 76th Leg., ch. 1426, Sec. 1, eff. Sept. 1,

1999.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.004, eff. September 1, 2005.

SUBCHAPTER C. MISCELLANEOUS PROVISIONS

Sec. 401.021. APPLICATION OF OTHER ACTS. Except as otherwise

provided by this subtitle:

(1) a proceeding, hearing, judicial review, or enforcement of a

commissioner order, decision, or rule is governed by the

following subchapters and sections of Chapter 2001, Government

Code:

(A) Subchapters A, B, D, E, G, and H, excluding Sections

2001.004(3) and 2001.005;

(B) Sections 2001.051, 2001.052, and 2001.053;

(C) Sections 2001.056 through 2001.062; and

(D) Section 2001.141(c);

(2) a proceeding, hearing, judicial review, or enforcement of a

commissioner order, decision, or rule is governed by Subchapters

A and B, Chapter 2002, Government Code, excluding Sections

2002.001(3) and 2002.023;

(3) Chapter 551, Government Code, applies to a proceeding under

this subtitle, other than:

(A) a benefit review conference;

(B) a contested case hearing;

(C) a proceeding of the appeals panel;

(D) arbitration; or

(E) another proceeding involving a determination on a workers'

compensation claim; and

(4) Chapter 552, Government Code, applies to a workers'

compensation record of the division, the department, or the

office of injured employee counsel.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1995, 74th Leg., ch. 76, Sec. 5.92, 5.95(82),

(88), eff. Sept. 1, 1995.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.005, eff. September 1, 2005.

Sec. 401.022. DISCRIMINATION PROHIBITED. (a) This subtitle may

not be applied to discriminate because of race, sex, national

origin, or religion.

(b) This section does not prohibit consideration of an

anatomical difference in application of the impairment guidelines

under Chapter 408 in rating an injury or a disease such as, but

not limited to, breast cancer or an inguinal hernia. If an

impairment rating assigns different values to the same injury for

males and females, the higher value shall be applied.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Sec. 401.023. INTEREST OR DISCOUNT RATE. (a) Interest or a

discount under this subtitle shall be computed at the rate

provided by this section.

(b) The division shall compute and publish the interest and

discount rate quarterly, using the treasury constant maturity

rate for one-year treasury bills issued by the United States

government, as published by the Federal Reserve Board on the 15th

day preceding the first day of the calendar quarter for which the

rate is to be effective, plus 3.5 percent. For this purpose,

calendar quarters begin January 1, April 1, July 1, and October

1.

Acts 1993, 73rd Leg., ch. 269, Sec. 1, eff. Sept. 1, 1993.

Amended by Acts 1999, 76th Leg., ch. 1426, Sec. 2, eff. Oct. 1,

1999; Acts 2001, 77th Leg., ch. 1456, Sec. 15.01, eff. June 17,

2001.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.006, eff. September 1, 2005.

Sec. 401.024. TRANSMISSION OF INFORMATION. (a) In this

section, "electronic transmission" means the transmission of

information by facsimile, electronic mail, electronic data

interchange, or any other similar method.

(b) Notwithstanding another provision of this subtitle that

specifies the form, manner, or procedure for the transmission of

specified information, the commissioner by rule may permit or

require the use of an electronic transmission instead of the

specified form, manner, or procedure. If the electronic

transmission of information is not authorized or permitted by

rule, the transmission of that information is governed by any

applicable statute or rule that prescribes the form, manner, or

procedure for the transmission, including standards adopted by

the Department of Information Resources.

(c) The commissioner may designate and contract with a data

collection agent to fulfill the data collection requirements of

this subtitle.

(d) The commissioner may prescribe the form, manner, and

procedure for transmitting any authorized or required electronic

transmission, including requirements related to security,

confidentiality, accuracy, and accountability.

Added by Acts 1999, 76th Leg., ch. 954, Sec. 1, eff. Sept. 1,

1999.

Amended by:

Acts 2005, 79th Leg., Ch.

265, Sec. 3.007, eff. September 1, 2005.

Sec. 401.025. REFERENCES TO COMMISSION AND EXECUTIVE DIRECTOR.

(a) A reference in this code or other law to the Texas Workers'

Compensation Commission or the executive director of that

commission means the division or the commissioner as consistent

with the respective duties of the commissioner and the division

under this code and other workers' compensation laws of this

state.

(b) A reference in this code or other law to the executive

director of the Texas Workers' Compensation Commission means the

commissioner.

Added by Acts 2005, 79th Leg., Ch.

265, Sec. 3.008, eff. September 1, 2005.