SECTION 102.4. General Rules for Non-Division Communications

(a) All written communications to a claimant (who is either an employee, an employee's legal beneficiary, or a subclaimant) must be sent to the most recent address or fax number supplied by the claimant. If an address has not been supplied by the claimant, the most recent address provided by the employer must be used.

(b) After an insurance carrier, employer, or health care provider is notified in writing that a claimant is represented by an attorney or other representative, copies of all written communications related to the claim or to the claimant must be mailed or delivered to the representative as well as the claimant, unless the claimant requests delivery to the representative only.

(c) Insurance carriers must provide a toll-free telephone number for receipt of communication from claimants or their representatives with a sufficient quantity of lines to service their volume of business.

(d) Insurance carriers and health care providers must provide telephone numbers, fax numbers, and email addresses sufficient to service the volume of business for receiving required verbal and written communications on workers' compensation claims.

(e) Insurance carriers must ensure effective and timely communication with claimants and other parties in the system. If a claimant is unable to communicate with an insurance carrier due to a language barrier, and the claimant is unable to provide a person that he or she trusts to serve as a translator, the insurance carrier must provide a means to translate except as needed for a division proceeding. The claimant must not be required to contract with or otherwise employ a translator.

(f) When a claimant contacts an insurance carrier and requests a response on their claim, the response must be verbally provided or sent in writing by the insurance carrier within five working days of receiving the request, unless the request is redundant or the response duplicates information previously provided.

(g) Insurance carriers must employ or provide a sufficient number of personnel, including adjusters appropriately licensed by the Texas Department of Insurance, to meet their obligations under the Act and this title.

(h) Unless the great weight of evidence indicates otherwise, written communications will be deemed to have been sent on:

(1) the date received if sent by fax, personal delivery, or electronic transmission; or

(2) the date postmarked if sent by mail through United States Postal Service regular mail, or, if the postmark date is unavailable, the later of the signature date on the written communication or the date it was received minus five days. If the date received minus five days is a Sunday or legal holiday, the date deemed sent must be the next previous day that is not a Sunday or legal holiday.

(i) An insurance carrier must maintain adjuster's notes on activities and verbal communications involved with the administration of a claim, with the exception of privileged attorney-client communications. The adjuster's notes must, at a minimum, include the date of the activity or communication, the identity of the insurance carrier staff involved in the contact, the person contacted by or contacting the insurance carrier, and a summary of the activity or communication.

(j) An insurance carrier, employer, or health care provider that receives a written communication related to a workers' compensation claim must date stamp or otherwise note on the document the date the written communication was received.

(k) Written communications include all records, reports, notices, filings, submissions, and other information contained either on paper or in an electronic format.

(l) For purposes of this title, if a written communication is required to be filed with both the division and another person by the Act or division rules, the other person will be presumed to have received the written communication on the date the division received its copy, unless the other person noted the date of receipt as provided in subsection (j) of this section, or the means of delivery of the communication was different. In this situation, the other person has the burden of proving that they did not receive or timely receive the written communication.

(m) Electronic transmission is defined as transmission of information by fax, electronic mail, electronic data interchange (EDI), or any other similar method and does not include telephonic communication.

(n) If the division receives an allegation that an insurance carrier or health care provider has failed to provide sufficient toll-free telephone numbers, telephone numbers, fax numbers, or email addresses, or that an insurance carrier has not provided a sufficient number of adjusters as required by this section, unless the violation appears to be willful or intentional, the division will not issue a monetary penalty or other sanctions before:

(1) notifying the alleged violator of the allegation;

(2) affording the alleged violator the opportunity to either disprove the allegation or provide mitigating information; and

(3) if the violator is unable to disprove the allegation, issuing a written warning to the violator allowing a reasonable grace period of not less than 30 days to correct the noncompliance. The grace period may be less than 30 days if the noncompliance prevents the violator from fulfilling other obligations under this title.

(o) A violation as described in subsection (n) will be considered willful or intentional if the violator has been advised of complaints such that the violator knew or should have known that the toll-free telephone numbers, telephone numbers, fax numbers, email addresses, or number of adjusters was insufficient, and the violator cannot establish that it made good faith efforts to correct the deficiency or if the violator otherwise exhibited willful or intentional conduct.

(p) For purposes of determining the date of receipt for non-division written communications, unless the great weight of evidence indicates otherwise, the division will deem the received date to be five days after the date mailed through United States Postal Service regular mail, or the date faxed or electronically transmitted.

(q) This section is effective on adoption.

Source Note: The provisions of this §102.4 adopted to be effective January 11, 1991, 16 TexReg 114; amended to be effective August 29, 1999, 24 TexReg 6488; amended to be effective April 28, 2005, 30 TexReg 2396; amended to be effective March 9, 2022, 47 TexReg 1093