Texas proposes new rules to job search, supplemental income requirements

The Texas Division of Workers’ Compensation proposed amendments that it says will better align the language of its supplemental income benefit rules with statutory requirements.

Injured workers with a permanent impairment rating of at least 15% who have not returned to work or are earning less than 80% of their preinjury wages despite a good-faith job search are eligible for supplemental income benefits.

The proposed rule would require injured workers to submit copies of their job applications as part of their work search efforts. The rule would also define “job application” to mean “a physical or electronic form or other document that is submitted to an employer or its designated representative to provide information about a candidate for a specific position.”

Another section requiring injured workers to make a minimum number of job search applications would be amended to also require a minimum number of work search efforts. The division also proposed changing regulatory references to “work search contacts” to “work search efforts.”

The labor code requires injured workers seeking supplemental income benefits to provide proof of “active work search efforts documented by job applications submitted by the recipient.” The division said it needs to change the rules to conform to the statute.

“Amending (the code) is necessary to eliminate confusion that has resulted from differences between the wording in the rule and the wording in the statute,” the division said in rulemaking materials. “It is also necessary to clarify that a job application is submitted to provide an employer or its designated representative information about a candidate for a specific position, and that a job application may be a physical or electronic form or other document. This ensures that the application is directed at a specific position, is about a specific candidate, can be physical or electronic and can be a document other than a form.”

Accident Fund Insurance Co. of America and the Texas Cotton Ginners’ Trust in 2023 both petitioned the state Supreme Court to review whether the DWC rules nullified the Legislature’s precise criteria for SIB eligibility by omitting the requirement that injured workers provide copies of applications they submitted.

“DWC has turned SIBs entitlement into a capricious farce, awarding SIBs to injured workers who have nothing to do with the job search that they or their attorneys ‘document,’” Accident Fund and the Cotton Ginners’ Trust said in their joint petition for review. “DWC’s version of SIBs entitlement for the independent job seeker impairs or eliminates the incentive to return to work, with the injured employee becoming dependent on monthly checks that require only that they hire the right attorneys: the ones willing to exploit DWC’s vision for SIBs.”

In response, the division argued that there is nothing to indicate the Legislature intended the phrase “job application” to refer to a specific thing rather than an action. The division said it “is willing to accept a sworn statement that an SIBs claimant has submitted a verbal job application as sufficient documentation of the worker’s job search” because doing so encourages injured workers to apply for all jobs, not just those that have a paper or electronic application.

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