The past two legislative sessions have shown that the Legislature seems increasingly open to giving preferences to certain types of employees and to loosening some of the controls that have contained system costs since the great reform of 1989. With the approach of the 2024-25 Sunset Advisory Commission review cycle, when the Workers’ Compensation Division of the Texas Department of Insurance will undergo legislative examination, there is growing concern that some of the lessons of the past have been forgotten. Only a small handful of legislators who voted on the 1989 reforms are still at their desks, while it goes without saying that our current statewide elected officials arrived on the scene long after the fact. TCJL houses much of the remaining institutional memory about the conditions that prompted those reforms and believes it imperative that we begin to educate policymakers about the need to maintain the bulwarks of the workers’ compensation system that has served Texas so well for more than the last three decades.
The causes for our concern began to emerge clearly during the 2019 session, when the Legislature expanded a 2005 statute extending a presumption that firefighters and emergency medical technicians who experienced certain diseases, cancers, strokes, and heart attacks contracted those conditions within the course and scope of employment for purposes of workers’ compensation or other employee benefits, including pension plans, to include peace officers (SB 1582). SB 1582 simply added the term “peace officer” to the existing law, which was originally based on a demonstrable link between certain health conditions and the specific occupational activities of firefighters and EMTs. While peace officers certainly encounter many of the same risks while on duty as firefighters and EMTs, appending them to a statute designed only for the latter might be seen as significantly loosening the fundamental principle of “course and scope,” especially with respect to workers’ compensation benefits.
In 2021 the Legislature took the statute even further, expanding the presumption to include COVID-19 and adding state and local detention and custodial officers to the presumption for that disease (but not the other diseases and conditions in the existing law). At the same time, several other bills expanding coverage and benefits were considered as well, including:
- HB 396, creating a presumption under workers’ compensation law that a nurse who treated or came into contact with a patient contracted COVID-19 in the course and scope of employment;
- HB 2502, providing that for a claim of lifetime benefits income (LBI) by an employee who is a first responder, the maximum weekly income benefit in effect on the date the claim for LBI is finally adjudicated and is applicable for the entire time LIB is paid;
- HB 2598, amending §504.019(c), Labor Code, to fix the date of injury for PTSD of a first responder on the 30thday after the date of first diagnosis (current standard is the date on which the responder knew or should have known the disorder may be related to his or her employment);
- HB 3158, amending §408.001, Labor Code, to permit the estate of a deceased employee to recover exemplary damages in a gross negligence action against the employer.
- SB 612, amending §408.009, Labor Code, to establish a presumption of compensability for public school employees who contract COVID-19 and suffer disability or death; and
- SB 1450, extending lifetime income benefits to an employee who sustains a traumatic injury to the brain that results in permanent cognitive deficits that prevent further employment and to first responders or political subdivision employees who suffer certain permanent and total disabilities under the Public Safety Officers’ Benefits Act.
While none of these bills passed, most of them advanced in the process to the point of clearing committee or the first house. Thus they are not the type of bill repeatedly introduced, referred to committee, and never heard from again. Moreover, while most (but not all) focus on public employees of one type or another, there is nothing in principle that would prevent expanding them to private sector employees. Note also the bills that intervene in the schedule of benefits and statutorily direct payment of benefits to certain types of employees at prescribed levels for a prescribed duration. These kinds of deviations from the uniform system that predetermine both eligibility and benefits could, if extended much further, undermine the circuit breakers built into the current system to contain runaway costs, i.e., the administrative process for determining eligibility for benefits, employer liability, level, duration, and payment of benefits, and return to work protocols.
We are not saying that the sky is falling or that there might not be perfectly reasonable policy reasons for treating some types of employees differently than others. What we are saying is that the workers’ compensation insurance system, whether public (funded by taxpayers) or private (funded by employers, employees, and people who buy goods and services), is a delicately balanced compromise between employers and employees that only works if everyone is treated equally and uniformly. Once exceptions creep into the system, it becomes increasingly difficult to justify not adding to them. Before long, there won’t be much of a “system” left, only a patchwork of special rules for specific types of cases. And if we’re not careful, we’ll end up back in the pre-1989 days of no uniform rules, no predictability or standards for benefits, no way to cost out the system, and no way to insure it at a price any employer could afford.