Presumptive Disability Law in Texas
CODE PART:
Texas Statutes
Labor Code
TITLE 5. WORKERS’ COMPENSATION
SUBTITLE A. TEXAS WORKERS’ COMPENSATION ACT
CHAPTER 408. WORKERS’ COMPENSATION BENEFITS
SUBCHAPTER A. GENERAL PROVISIONS
§. 408.006. MENTAL TRAUMA INJURIES
SUBTITLE C. WORKERS’ COMPENSATION INSURANCE COVERAGE FOR CERTAIN GOVERNMENT EMPLOYEES
CHAPTER 504. WORKERS’ COMPENSATION INSURANCE COVERAGE FOR EMPLOYEES OF POLITICAL SUBDIVISIONS
SUBCHAPTER B. COVERAGE
§ 504.019. COVERAGE FOR POST-TRAUMATIC STRESS DISORDER FOR CERTAIN FIRST RESPONDERS.
§ 504.074. SELF-INSURANCE ACCOUNT FOR DEATH BENEFITS AND LIFETIME INCOME BENEFITS.
Government Code
TITLE 6. PUBLIC OFFICERS AND EMPLOYEES
CHAPTER 607. BENEFITS RELATING TO CERTAIN DISEASES AND ILLNESSES
SUBCHAPTER B. DISEASES OR ILLNESSES SUFFERED BY FIREFIGHTERS AND EMERGENCY MEDICAL TECHNICIANS
DESCRIPTION:
SECTION 607.051. DEFINITIONS
§ 607.052. APPLICABILITY
§ 607.053. IMMUNIZATION; SMALLPOX.
§ 607.054. TUBERCULOSIS OR OTHER RESPIRATORY ILLNESS.
§ 607.056. ACUTE MYOCARDIAL INFARCTION OR STROKE.
§ 607.057. EFFECT OF PRESUMPTION
§ 607.058. PRESUMPTION REBUTTABLE.
§ 408.006. MENTAL TRAUMA INJURIES
(b) Notwithstanding Section 504.019, a [A] mental or emotional injury that arises principally from a legitimate personnel action, including a transfer, promotion, demotion, or termination, is not a compensable injury under this subtitle.
Acts 2017, effective September 1, 2017.
§ 504.019. COVERAGE FOR POST-TRAUMATIC STRESS DISORDER FOR CERTAIN FIRST RESPONDERS.
(a) In this section:
(1) “First responder” means an individual employed by a political subdivision of this state who is:
(A) a peace officer under Article 2.12, Code of Criminal Procedure;
(B) a person licensed under Chapter 773, Health and Safety Code, as an emergency care attendant, emergency medical technician, emergency medical technician-intermediate, emergency medical technician-paramedic, or licensed paramedic; or
(C) a firefighter subject to certification by the Texas Commission on Fire Protection under Chapter 419, Government Code, whose principal duties are firefighting and aircraft crash and rescue.
(2) “Post-traumatic stress disorder” means a disorder that meets the diagnostic criteria for post-traumatic stress disorder specified by the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition, or a later edition adopted by the commissioner of workers’ compensation.
(b) Post-traumatic stress disorder suffered by a first responder is a compensable injury under this subtitle only if it is based on a diagnosis that:
(1) the disorder is caused by an event occurring in the course and scope of the first responder’s employment; and
(2) the preponderance of the evidence indicates that the event was a substantial contributing factor of the disorder.
§ 504.074. SELF-INSURANCE ACCOUNT FOR DEATH BENEFITS AND LIFETIME INCOME BENEFITS.
(a) A pool or a political subdivision that self-insures may establish an account for the payment of death benefits and lifetime income benefits under Chapter 408.
(b) An account established under this section may accumulate assets in an amount that the pool or political subdivision, in its sole discretion, determines is necessary in order to pay death benefits and lifetime income benefits. The establishment of an account under this section or the amount of assets accumulated in the account does not affect the liability of a pool or political subdivision for the payment of death benefits and lifetime income benefits.
(c) Chapter 2256, Government Code, does not apply to the investment of assets in an account established under this section. A pool or political subdivision investing or reinvesting the assets of an account shall discharge its duties solely in the interest of current and future beneficiaries:
(1) for the exclusive purposes of:
(A) providing death benefits and lifetime income benefits to current and future beneficiaries; and
(B) defraying reasonable expenses of administering the account;
(2) with the care, skill, prudence, and diligence under the prevailing circumstances that a prudent person acting in a like capacity and familiar with matters of the type would use in the conduct of an enterprise with a like character and like aims;
(3) by diversifying the investments of the account to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and
(4) in accordance with the documents and instruments governing the account to the extent that the documents and instruments are consistent with this section.
(d) In choosing and contracting for professional investment management services for an account established under this section and in continuing the use of an investment manager, the pool or political subdivision must act prudently and in the interest of the current and future beneficiaries of the account.
§ 607.052. APPLICABILITY
(a) Notwithstanding any other law, this subchapter applies only to a firefighter or emergency medical technician who:
(1) on becoming employed or during employment as a firefighter or emergency medical technician, received a physical examination that failed to reveal evidence of the illness or disease for which benefits or compensation are sought using a presumption established by this subchapter;
(2) is employed for five or more years as a firefighter or emergency medical technician; and
(3) seeks benefits or compensation for a disease or illness covered by this subchapter that is discovered during employment as a firefighter or emergency medical technician.
(b) A presumption under this subchapter does not apply:
(1) to a determination of a survivor’s eligibility for benefits under Chapter 615;
(2) in a cause of action brought in a state or federal court except for judicial review of a proceeding in which there has been a grant or denial of employment-related benefits or compensation;
(3) to a determination regarding benefits or compensation under a life or disability insurance policy purchased by or on behalf of the firefighter or emergency medical technician
that provides coverage in addition to any benefits or compensation required by law; or
(4) if the disease or illness for which benefits or compensation is sought is known to be caused by the use of tobacco and:
(A) the firefighter or emergency medical technician is or has been a user of tobacco; or
(B) the firefighter’s or emergency medical technician’s spouse has, during the marriage, been a user of tobacco that is consumed through smoking.
(c) This subchapter does not create a cause of action.
(d) This subchapter does not enlarge or establish a right to any benefit or compensation or eligibility for any benefit or compensation.
(e) A firefighter or emergency medical technician who uses a presumption established under this subchapter is entitled only to the benefits or compensation to which the firefighter or emergency medical technician would otherwise be entitled to receive at the time the claim for benefits or compensation is filed.
(f) For purposes of this subchapter, an individual described by Section 607.051(3)(B) is considered to have been employed or compensated while the individual actively served as a volunteer firefighter. An individual who actively serves as a volunteer firefighter is one who participates in a minimum of 40 percent of the drills conducted by the individual’s department and 25 percent of the fire or other emergency calls received by the department during the time that the volunteer firefighter is on call.
(g) This subchapter applies to a firefighter or emergency medical technician who provides services as an employee of an entity created by an interlocal agreement.
(h) Subsection (b)(4) only prevents the application of the presumption authorized by this subchapter and does not affect the right of a firefighter or emergency medical technician to provide proof, without the use of that presumption, that an injury or illness occurred during the course and scope of employment.
§ 607.053. IMMUNIZATION; SMALLPOX.
(a) A firefighter or emergency medical technician is presumed to have suffered a disability or death during the course and scope of employment if the firefighter or emergency medical technician:
(1) received preventative immunization against smallpox, or another disease to which the firefighter or emergency
medical technician may be exposed during the course and scope of employment and for which immunization is possible; and
(2) suffered death or total or partial disability as a result of the immunization.
(b) An immunization described by this section is considered preventative whether the immunization occurs before or after exposure to the disease for which the immunization is prescribed.
(c) A presumption established under Subsection (a) may not be rebutted by evidence that the immunization was:
(1) not required by the employer;
(2) not required by law; or
(3) received voluntarily or with the consent of the firefighter or emergency medical technician.
(d) A firefighter or emergency medical technician who suffers from smallpox that results in death or total or partial disability is presumed to have contracted the disease during the course and scope of employment as a firefighter or emergency medical technician.
§ 607.054. TUBERCULOSIS OR OTHER RESPIRATORY ILLNESS.
A firefighter or emergency medical technician who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter or emergency medical technician, that results in death or total or partial disability is presumed to have contracted the disease or illness during the course and scope of employment as a firefighter or emergency medical technician.
§ 607.055. CANCER.
(a) A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if:
(1) the firefighter or emergency medical technician:
(A) regularly responded on the scene to calls involving fires or fire fighting; or
(B) regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while the person was employed as a firefighter or emergency medical technician; and
(2) the cancer is described by Subsection (b).
(b) This section applies only to:
(1) cancer that originates at the stomach, colon, rectum, skin, prostate, testis, or brain;
(2) non-Hodgkin’s lymphoma;
(3) multiple myeloma;
(4) malignant melanoma; and
(5) renal cell carcinoma
§ 607.056. ACUTE MYOCARDIAL INFARCTION OR STROKE.
(a) A firefighter or emergency medical technician who suffers an acute myocardial infarction or stroke resulting in disability or
death is presumed to have suffered the disability or death during the course and scope of employment as a firefighter or emergency
medical technician if:
(1) while on duty, the firefighter or emergency medical technician:
(A) was engaged in a situation that involved nonroutine stressful or strenuous physical activity involving fire
suppression, rescue, hazardous material response, emergency medical services, or other emergency response activity; or
(B) participated in a training exercise that involved nonroutine stressful or strenuous physical activity; and
(2) the acute myocardial infarction or stroke occurred while the firefighter or emergency medical technician was engaging in the activity described under Subdivision (1).
(b) For purposes of this section, “nonroutine stressful or strenuous physical activity” does not include clerical, administrative, or nonmanual activities.
§ 607.057. EFFECT OF PRESUMPTION.
Except as provided by Section 607.052(b), a presumption established under this subchapter applies to a determination of whether a firefighter’s or emergency medical technician’s disability or death resulted from a disease or illness contracted in the course and scope of employment for purposes of benefits or compensation provided under another employee benefit, law, or plan, including a pension plan.
§ 607.058. PRESUMPTION REBUTTABLE.
(a) A presumption under Section 607.053, 607.054, 607.055, or 607.056 may be rebutted through a showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the individual’s service as a firefighter or emergency medical technician was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not have occurred.
(b) A rebuttal offered under this section must include a statement by the person offering the rebuttal that describes, in detail, the evidence that the person reviewed before making the determination that a cause not associated with the individual’s service as a firefighter or emergency medical technician was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not
have occurred.
(c) In addressing an argument based on a rebuttal offered under this section, an administrative law judge shall make findings of fact and conclusions of law that consider whether a qualified expert, relying on evidence-based medicine, stated the opinion that, based on reasonable medical probability, an identified risk
factor, accident, hazard, or other cause not associated with the individual’s service as a firefighter or emergency medical technician was a substantial factor in bringing about the individual’s disease or illness, without which the disease or illness would not have occurred.
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CODE PART:
Texas Statutes Labor Code TITLE 5. WORKERS' COMPENSATION SUBTITLE A. TEXAS WORKERS' COMPENSATION ACT CHAPTER 408. WORKERS' COMPENSATION BENEFITS SUBCHAPTER A. GENERAL PROVISIONS §. 408.006. MENTAL TRAUMA INJURIES SUBTITLE C. WORKERS' COMPENSATION INSURANCE COVERAGE FOR CERTAIN GOVERNMENT EMPLOYEES CHAPTER 504. WORKERS' COMPENSATION INSURANCE COVERAGE FOR EMPLOYEES OF POLITICAL SUBDIVISIONS SUBCHAPTER B. COVERAGE § 504.019. COVERAGE FOR POST-TRAUMATIC STRESS DISORDER FOR CERTAIN FIRST RESPONDERS. § 504.074. SELF-INSURANCE ACCOUNT FOR DEATH BENEFITS AND LIFETIME INCOME BENEFITS. Government Code TITLE 6. PUBLIC OFFICERS AND EMPLOYEES CHAPTER 607. BENEFITS RELATING TO CERTAIN DISEASES AND ILLNESSES SUBCHAPTER B. DISEASES OR ILLNESSES SUFFERED BY FIREFIGHTERS AND EMERGENCY MEDICAL TECHNICIANS
DESCRIPTION:
SECTION 607.051. DEFINITIONS
§ 607.052. APPLICABILITY
§ 607.053. IMMUNIZATION; SMALLPOX.
§ 607.054. TUBERCULOSIS OR OTHER RESPIRATORY ILLNESS.
§ 607.056. ACUTE MYOCARDIAL INFARCTION OR STROKE.
§ 607.057. EFFECT OF PRESUMPTION
§ 607.058. PRESUMPTION REBUTTABLE.
§ 408.006. MENTAL TRAUMA INJURIES
(b) Notwithstanding Section 504.019, a [A] mental or emotional injury that arises principally from a legitimate personnel action, including a transfer, promotion, demotion, or termination, is not a compensable injury under this subtitle.
Acts 2017, effective September 1, 2017.
§ 504.019. COVERAGE FOR POST-TRAUMATIC STRESS DISORDER FOR CERTAIN FIRST RESPONDERS.
(a) In this section:
(1) "First responder" means an individual employed by a political subdivision of this state who is:
(A) a peace officer under Article 2.12, Code of Criminal Procedure;
(B) a person licensed under Chapter 773, Health and Safety Code, as an emergency care attendant, emergency medical technician, emergency medical technician-intermediate, emergency medical technician-paramedic, or licensed paramedic; or
(C) a firefighter subject to certification by the Texas Commission on Fire Protection under Chapter 419, Government Code, whose principal duties are firefighting and aircraft crash and rescue.
(2) "Post-traumatic stress disorder" means a disorder that meets the diagnostic criteria for post-traumatic stress disorder specified by the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition, or a later edition adopted by the commissioner of workers' compensation.
(b) Post-traumatic stress disorder suffered by a first responder is a compensable injury under this subtitle only if it is based on a diagnosis that:
(1) the disorder is caused by an event occurring in the course and scope of the first responder's employment; and
(2) the preponderance of the evidence indicates that the event was a substantial contributing factor of the disorder.
§ 504.074. SELF-INSURANCE ACCOUNT FOR DEATH BENEFITS AND LIFETIME INCOME BENEFITS.
(a) A pool or a political subdivision that self-insures may establish an account for the payment of death benefits and lifetime income benefits under Chapter 408.
(b) An account established under this section may accumulate assets in an amount that the pool or political subdivision, in its sole discretion, determines is necessary in order to pay death benefits and lifetime income benefits. The establishment of an account under this section or the amount of assets accumulated in the account does not affect the liability of a pool or political subdivision for the payment of death benefits and lifetime income benefits.
(c) Chapter 2256, Government Code, does not apply to the investment of assets in an account established under this section. A pool or political subdivision investing or reinvesting the assets of an account shall discharge its duties solely in the interest of current and future beneficiaries:
(1) for the exclusive purposes of:
(A) providing death benefits and lifetime income benefits to current and future beneficiaries; and
(B) defraying reasonable expenses of administering the account;
(2) with the care, skill, prudence, and diligence under the prevailing circumstances that a prudent person acting in a like capacity and familiar with matters of the type would use in the conduct of an enterprise with a like character and like aims;
(3) by diversifying the investments of the account to minimize the risk of large losses, unless under the circumstances it is clearly prudent not to do so; and
(4) in accordance with the documents and instruments governing the account to the extent that the documents and instruments are consistent with this section.
(d) In choosing and contracting for professional investment management services for an account established under this section and in continuing the use of an investment manager, the pool or political subdivision must act prudently and in the interest of the current and future beneficiaries of the account.
§ 607.052. APPLICABILITY
(a) Notwithstanding any other law, this subchapter applies only to a firefighter or emergency medical technician who:
(1) on becoming employed or during employment as a firefighter or emergency medical technician, received a physical examination that failed to reveal evidence of the illness or disease for which benefits or compensation are sought using a presumption established by this subchapter;
(2) is employed for five or more years as a firefighter or emergency medical technician; and
(3) seeks benefits or compensation for a disease or illness covered by this subchapter that is discovered during employment as a firefighter or emergency medical technician.
(b) A presumption under this subchapter does not apply:
(1) to a determination of a survivor's eligibility for benefits under Chapter 615;
(2) in a cause of action brought in a state or federal court except for judicial review of a proceeding in which there has been a grant or denial of employment-related benefits or compensation;
(3) to a determination regarding benefits or compensation under a life or disability insurance policy purchased by or on behalf of the firefighter or emergency medical technician
that provides coverage in addition to any benefits or compensation required by law; or
(4) if the disease or illness for which benefits or compensation is sought is known to be caused by the use of tobacco and:
(A) the firefighter or emergency medical technician is or has been a user of tobacco; or
(B) the firefighter's or emergency medical technician's spouse has, during the marriage, been a user of tobacco that is consumed through smoking.
(c) This subchapter does not create a cause of action.
(d) This subchapter does not enlarge or establish a right to any benefit or compensation or eligibility for any benefit or compensation.
(e) A firefighter or emergency medical technician who uses a presumption established under this subchapter is entitled only to the benefits or compensation to which the firefighter or emergency medical technician would otherwise be entitled to receive at the time the claim for benefits or compensation is filed.
(f) For purposes of this subchapter, an individual described by Section 607.051(3)(B) is considered to have been employed or compensated while the individual actively served as a volunteer firefighter. An individual who actively serves as a volunteer firefighter is one who participates in a minimum of 40 percent of the drills conducted by the individual's department and 25 percent of the fire or other emergency calls received by the department during the time that the volunteer firefighter is on call.
(g) This subchapter applies to a firefighter or emergency medical technician who provides services as an employee of an entity created by an interlocal agreement.
(h) Subsection (b)(4) only prevents the application of the presumption authorized by this subchapter and does not affect the right of a firefighter or emergency medical technician to provide proof, without the use of that presumption, that an injury or illness occurred during the course and scope of employment.
§ 607.053. IMMUNIZATION; SMALLPOX.
(a) A firefighter or emergency medical technician is presumed to have suffered a disability or death during the course and scope of employment if the firefighter or emergency medical technician:
(1) received preventative immunization against smallpox, or another disease to which the firefighter or emergency
medical technician may be exposed during the course and scope of employment and for which immunization is possible; and
(2) suffered death or total or partial disability as a result of the immunization.
(b) An immunization described by this section is considered preventative whether the immunization occurs before or after exposure to the disease for which the immunization is prescribed.
(c) A presumption established under Subsection (a) may not be rebutted by evidence that the immunization was:
(1) not required by the employer;
(2) not required by law; or
(3) received voluntarily or with the consent of the firefighter or emergency medical technician.
(d) A firefighter or emergency medical technician who suffers from smallpox that results in death or total or partial disability is presumed to have contracted the disease during the course and scope of employment as a firefighter or emergency medical technician.
§ 607.054. TUBERCULOSIS OR OTHER RESPIRATORY ILLNESS.
A firefighter or emergency medical technician who suffers from tuberculosis, or any other disease or illness of the lungs or respiratory tract that has a statistically positive correlation with service as a firefighter or emergency medical technician, that results in death or total or partial disability is presumed to have contracted the disease or illness during the course and scope of employment as a firefighter or emergency medical technician.
§ 607.055. CANCER.
(a) A firefighter or emergency medical technician who suffers from cancer resulting in death or total or partial disability is presumed to have developed the cancer during the course and scope of employment as a firefighter or emergency medical technician if:
(1) the firefighter or emergency medical technician:
(A) regularly responded on the scene to calls involving fires or fire fighting; or
(B) regularly responded to an event involving the documented release of radiation or a known or suspected carcinogen while the person was employed as a firefighter or emergency medical technician; and
(2) the cancer is described by Subsection (b).
(b) This section applies only to:
(1) cancer that originates at the stomach, colon, rectum, skin, prostate, testis, or brain;
(2) non-Hodgkin's lymphoma;
(3) multiple myeloma;
(4) malignant melanoma; and
(5) renal cell carcinoma
§ 607.056. ACUTE MYOCARDIAL INFARCTION OR STROKE.
(a) A firefighter or emergency medical technician who suffers an acute myocardial infarction or stroke resulting in disability or
death is presumed to have suffered the disability or death during the course and scope of employment as a firefighter or emergency
medical technician if:
(1) while on duty, the firefighter or emergency medical technician:
(A) was engaged in a situation that involved nonroutine stressful or strenuous physical activity involving fire
suppression, rescue, hazardous material response, emergency medical services, or other emergency response activity; or
(B) participated in a training exercise that involved nonroutine stressful or strenuous physical activity; and
(2) the acute myocardial infarction or stroke occurred while the firefighter or emergency medical technician was engaging in the activity described under Subdivision (1).
(b) For purposes of this section, "nonroutine stressful or strenuous physical activity" does not include clerical, administrative, or nonmanual activities.
§ 607.057. EFFECT OF PRESUMPTION.
Except as provided by Section 607.052(b), a presumption established under this subchapter applies to a determination of whether a firefighter's or emergency medical technician's disability or death resulted from a disease or illness contracted in the course and scope of employment for purposes of benefits or compensation provided under another employee benefit, law, or plan, including a pension plan.
§ 607.058. PRESUMPTION REBUTTABLE.
(a) A presumption under Section 607.053, 607.054, 607.055, or 607.056 may be rebutted through a showing by a preponderance of the evidence that a risk factor, accident, hazard, or other cause not associated with the individual's service as a firefighter or emergency medical technician was a substantial factor in bringing about the individual's disease or illness, without which the disease or illness would not have occurred.
(b) A rebuttal offered under this section must include a statement by the person offering the rebuttal that describes, in detail, the evidence that the person reviewed before making the determination that a cause not associated with the individual's service as a firefighter or emergency medical technician was a substantial factor in bringing about the individual's disease or illness, without which the disease or illness would not
have occurred.
(c) In addressing an argument based on a rebuttal offered under this section, an administrative law judge shall make findings of fact and conclusions of law that consider whether a qualified expert, relying on evidence-based medicine, stated the opinion that, based on reasonable medical probability, an identified risk
factor, accident, hazard, or other cause not associated with the individual's service as a firefighter or emergency medical technician was a substantial factor in bringing about the individual's disease or illness, without which the disease or illness would not have occurred.