CHAPTER 401. GENERAL PROVISIONS
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.