(a) All written communications to a claimant (who is either an employee, an employee's legal beneficiary, or a subclaimant) shall be sent to the most recent address or facsimile number supplied by the claimant. If an address has not been supplied by the claimant, the most recent address provided by the employer shall 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 to the claimant shall thereafter be mailed or delivered to the representative as well as the claimant, unless the claimant requests delivery to the representative only.
(c) Insurance carriers shall provide a toll free telephone number for receipt of communication from claimants and/or their representatives with a sufficient quantity of lines to service their volume of business.
(d) Insurance carriers and health care providers shall provide telephone and facsimile numbers in sufficient quantity of lines to service the volume of business for receiving required verbal and written communications regarding 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 a carrier due to a language barrier and the claimant is unable to provide a person who he or she trusts to serve as a translator, the carrier shall provide a means to translate except as needed for a Commission proceeding. The claimant shall not be required to contract with or otherwise employ a translator.
(f) When a claimant contacts a carrier and requests a response regarding their claim, the response shall be verbally provided or sent in writing by the carrier within five working days of receiving the request, unless the request is redundant or the response is duplicative of information previously provided.
(g) Insurance carriers shall employ or provide sufficient numbers of person, 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 shall 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 via 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 shall be the next previous day which is not a Sunday or legal holiday.
(i) A carrier shall 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 shall, at a minimum, include the date of the activity or communication, the identity of the carrier staff involved in the contact, the person contacted by or contacting the 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 shall date stamp or otherwise annotate the document indicating 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 Commission and another person by the Act or Commission rules, the other person shall be presumed to have received the written communication on the date the Commission received its copy, unless the other person annotated 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 it did not receive or timely receive the written communication.
(m) Electronic communication refers to the electronic transmission of claim or medical information. Electronic transmission is defined as transmission of information by facsimile, electronic mail, electronic data interchange, or any other similar method and does not include telephonic communication. Electronic communication for reporting purposes is described in § 102.5(e) of this chapter (relating to General Rules for Written Communications to and from the Commission), § 124.2 of this title (relating to Carrier Reporting and Notification Requirements), and § 134.802 of this title (relating to Insurance Carrier Medical Electronic Data Interchange to the Commission).
(n) If the Commission receives an allegation that a carrier or health care provider has failed to provide a sufficient number of toll-free telephone, toll telephone, or facsimile lines or that a carrier has not provided a sufficient number of adjusters as required by this section, unless the violation appears to be willful or intentional, the Commission will not issue a monetary penalty or other sanctions prior to:
(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 number of toll-free telephone, toll telephone, facsimile lines, or 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-commission written communications, unless the great weight of evidence indicates otherwise, the Commission shall deem the received date to be five days after the date mailed via United States Postal Service regular mail; or the date faxed or electronically transmitted.
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.