Texas Legislative Update: Part Deux

Stuart Colburn. Shareholder / Attorney at Downs Stanford, P.C. | Austin, TX

Stuart was kind enough to carve out some time recently to give us an update on the Texas Legislature and workers’ compensation bills filed for the session. The last day to file bills was Friday, March 8. So, grab a cup of coffee, make a cup of tea, or get whatever your favorite beverage is and spend a few minutes as we chat about WC legislation in Texas…

Q. Hi Stuart, thanks so much for making time for me. The deadline to file bills for the 86th legislative session in Texas closed on March 8. Can you give us a rundown on what you think we should know?

A. My pleasure. Cancer presumption bill HB 3996, sponsored by Rep. Dustin Burrows, R-Lubbock, is the most important bill filed this session and is likely to pass in some form. Here is an article on WorkCompCentral about the bill (note: WorkCompCentral is a subscription-based publication).

Q. Okay, so what do we need to know? Can you break down what are the biggest takeaways related to this bill?

A. Sure. Across the nation, legislators in many states are grappling with how to properly take care of their first responders, most notably firefighters that sustain certain kinds of injuries, especially certain cancers and it is difficult to prove these are work related. To fix that problem, legislators have turned to presumptions; e.g. presumptions that the cancers are work related. In Texas, such a presumption was passed in 2005 and referred to the International Agency for Research on Cancer (IARC) Monagraph. The problem is that the monograph document is ambiguous. When published, the press release indicated three specific cancers that were found to be related (testicular, prostate, and non-Hodgkin Lymphoma). However, others read the report and generally say more than those three cancers should enjoy the presumption. Several studies have come out since the IARC Monograph and show whether other cancers may or may not be related.

There is agreement between political entities and representatives of first responders that listing more cancers found to be related to the line of duty would remove ambiguities and therefore reduce litigation on whether cancer should or should not enjoy the presumption. Both firefighters and political entities agree that some cancers are work related and that our firefighters should be taken care of. However, there are other cancers that are a normal “life” issue / occurrence and should not be included in the presumption law.

Q. So if there is agreement on both sides, what is the concern?

A. The major concern is that this bill will add significant costs to local subdivisions without providing additional funds to help offset those costs. Actuaries say that if all the cancers alleged enjoy the presumption, then there will be a significant financial impact on these entities.

So, if political entities would like to know exactly what their costs are by knowing which cancers get presumption; and firefighters and their representatives would also like to know what cancers enjoy presumption so they can avoid litigation, there seems to be ground that both can call common.

Q. That’s a good thing, right? That the bill provides both sides something to work with? e.g. that common ground you referred to?

A. Yes. There is work do be done though. The legislation as proposed lists too many cancers, according to the political entities that pay for the cancers / treatments. They claim there are too many cancers listed that are not established by studies, or the studies referenced are not well designed or scientifically valid to establish a sufficient nexus between firefighters, or other first responders, the work they do and some cancers listed.

Groups representing firefighters believe there is sufficient evidence and that we should protect our firefighters and other first responders to the fullest extent of law.

So, now we get to see the magic of the legislative process at work. There is a good chance that the parties will be able to reach some common ground — a compromise. And, if they are able to reach a compromise, both parties will have more certainty about which cancers will be covered.

Q. Were there any other bills submitted that will affect workers’ compensation that we should know of?

A. One bill of particular interest one that addresses medical settlements. It is a bill that would allow employees and carriers to settle their medical benefits if and only if there is a Workers’ Compensation Medicare Set Aside (WCMSA). It would be completely voluntary on both sides. Settlement must be professionally administered and even allows a reversionary interest that could revert back to both the payer (carrier) and the injured workers’ beneficiaries. So monies in trust is negotiated between parties. If the injured worker (IW) dies, the IW can pass on benefits to beneficiaries.

Q. So why should this bill be of any interest to those involved in Texas workers compensation system?

A. Because in Texas, the last date of injury when parties could settle on medical was December 31, 1990!

Proponents of the bill say that settling medical in limited circumstances would free up reserves, free up collateral requirements and would remove friction costs that workers often complain about in workers compensation regarding difficulties of finding a doctor that accepts workers compensation. This would allow them to see any doctor they choose because would have the funds to do so.

Q. And opposers of the bill? What are their concerns?

A. People who oppose the bill are mostly concerned with the argument that it’s a slippery slope if we allow any settlement — no matter how well intentioned. Those that are medicare- eligible or expect to be medicare-eligible would be allowed to settle. They are concerned that then other groups will want settlements too and that is why Texas adopted the 1989 act to address settlements. This bill addresses those concerns to ensure funds are professionally administered; and there is the backstop of the MSA trust. It will be interesting to see if this bill progresses.

Thanks again Stuart for taking time out of your busy day to keep us up to date on Texas legislative issues related to workers’ compensation!

If you missed Stuart’s first summary of legislative activity in Texas back in February.

By the way, you can see Stuart Colburn at the upcoming Insurance Council of Texas Workers’ Compensation Seminar in Austin, Texas on April 11. Here is the agenda!

Also, be sure to check out the Texas Workers’ Compensation Handbook – the latest updated version released in January 2019 and co-authored by Stuart Colburn, Joe Anderson and Albert Betts.