The New Role of the Designated Doctor and Required Medical Exam

Saturday, March 25, 2006 | 0

By Brandi Prejean

Times are a changin' in the world of workers' compensation in Texas. Governor Rick Perry signed the Texas Workers' Compensation Reform Bill, House Bill 7 (HB 7), into law on June 1, 2005. Since that time, many have speculated how these legal reforms were going to affect the Texas workers' compensation system as we know it. Many of the HB 7 changes took effect on September 1, 2005, and every day since then the workers' compensation system seems to have been in a state of constant flux. For those who have attempted to keep abreast of the constant changes, the task has proven difficult, yet exciting. While change always elicits feelings of uncertainty, there is hope that HB 7 will prove to be a step in the right direction towards badly needed reform of the Texas workers' compensation system. The focus of this article is the roles of the designated doctor and the required medical examination (RME) doctor that were changed by HB 7.

First, lets look to the statutory changes made applicable to the RME. Section 408.004 of the Texas Labor Code was amended to read as follows:

(a)The commissioner may require an employee to submit to medical examinations to resolve any question about the appropriateness of health care received by the employee.

(b)The commissioner may require an employee to submit to a medical examination at the request of the insurance carrier, but only after the insurance carrier has attempted and failed to receive the permission and concurrence of the employee for the examination.

(c)Except as otherwise provided by this subsection, the insurance carrier is entitled to the examination only once in a 180-day period. The commissioner may adopt rules that require an employee to submit to not more than three medical examinations in a 180-day period under specified circumstances, including to determine whether there has been a change in the employee's condition and whether it is necessary to change the employee's diagnosis. The Commissioner by rule shall adopt a system for monitoring requests made under this subsection by insurance carriers. That system must ensure that good cause exists for any additional medical examination allowed under this subsection that is not requested by the employee. The same doctor must perform a subsequent examination unless otherwise approved by the commissioner.

(d)An injured employee is entitled to have a doctor of the employee's choice present at an examination required by the division at the request of an insurance carrier. The insurance carrier shall pay a fee set by the commissioner to the doctor selected by the employee.

(e)An employee who, without good cause as determined by the Commissioner, fails to or refuses to appear at the time scheduled for an examination under Subsection (a) or (b) commits an administrative violation. The Commissioner by rule shall ensure that an employee receives reasonable notice of an examination and that the employee is provided a reasonable opportunity to reschedule an examination missed by an employee for good cause.

(f)This section does not apply to health care provided through a workers' compensation health care network established under Chapter 1305 of the Texas Insurance Code.

The most drastic changes made by Section 408.004 of the Texas Labor Code were the limitations on the role played by the RME in the workers' compensation system. The role of the RME is limited to addressing only the appropriateness of health care prior to the designated doctor's exam. Section 408.004 of the Texas Labor Code is not applicable when healthcare is provided in a workers' compensation healthcare network certified under Chapter 1305 of the Texas Insurance Code. The network's doctors will opine on the appropriateness of health care in network.

To facilitate the changes made to Section 408.004 of the Texas Labor Code, the Division of Workers' Compensation (DWC) has adopted proposed rules that were filed with the Office of the Secretary of State on February 3, 2006. The earliest possible date of adoption is March 5, 2006. Proposed amendments to Rule 126.5 provide clarification regarding the reasons and timeframes for which an RME may be requested and granted. The rule first clarifies that a doctor employed by or contracted with a certified network under Chapter 1305 of the Texas Insurance Code may not serve as an RME for a claimant treating within the network. The rule further states that the carrier should send a request to the employee or the employees representative and attempt to obtain an agreement to attend an RME prior to sending the request to the DWC. The employee will have 10 days to respond to the request and if no response is made, the carrier can send the request to the DWC. The carrier will have an array of options regarding the method by which the carrier makes the request. However, the carrier will be required to maintain copies of the request and verifiable proof of successful transmission of the information. Verifiable proof is also defined in the proposed rule.

Proposed amendments to Rule 126.6 provide clarification regarding scheduling appointments and rescheduling appointments when there is a scheduling conflict. First, the examination must take place within 30 days of receipt of the notice from the DWC, with at least 10 days notice to the employee and the employee's representative (if any). If a scheduling conflict exists, the rule provides for a strict 24-hour policy in which the employee and the doctor must make contact to reschedule. The rescheduled examination shall be set for a date within seven days of the originally scheduled examination, unless the employee and doctor agree upon an extension. The agreement that can be made between the doctor and the employee simplifies the process, as the DWC is not required to be involved in this decision.

Subsections (f) and (g) of Rule 126.6 may seem contradictory to a statement made earlier about limiting the role of the RME to addressing only appropriateness of healthcare. Clarification is in order. Appropriateness of healthcare is the only issue that can be addressed by an RME prior to the designated doctor exam. However, subsections (f) and (g) provide for the RME to address maximum medical improvement and impairment rating, as well as return-to-work after the designated doctor exam. The designated doctor will be the first to address these issues. Should the carrier be dissatisfied with the opinion of the designated doctor on these issues, an RME can be requested to consider maximum medical improvement (MMI), impairment rating (IR) or return-to work (RTW). In addition, Section 408.0041 provides that the designated doctor may be asked to evaluate MMI and permanent whole body impairment, the extent of the employee's compensable injury, whether the employee's disability is a direct result of the work related injury, the ability of the employee to return to work, or similar issues. The carrier's RME may address all of these issues but only after a designated doctor examination for the specific issue(s) has taken place. When considering Rule 126.6 and Section 408.0041 together, the role of the RME is not looking as limited, although it must wait until the issue is first addressed by the designated doctor.

Subsection (j) provides for the suspension of temporary income benefits (TIBs) when an injured employee fails to attend an RME without good cause. Those circumstances are statutorily limited to RMEs following a designated doctor examination. Proposed subsection (j) is further amended to reinitiate TIBs, following an injured employee's attendance at a rescheduled examination, effective upon the date the injured employee contacted the doctor's office to reschedule the examination. Primarily, subsection (j) promotes a more streamlined approach to re-instating TIBs by removing administrative delay. Though the role of the RME is not as limited as it seemed at the start of this article, it is much more confined when compared to the pre-HB 7 era.

Since the RME has such a limited role, one may be wondering who will be responsible for all the examinations and opinions for which we would rely on the RME? HB 7 amended Section 408.0041 of the Texas Labor Code, most notably expanding the role of the designated doctor. Section 408.0041 of the Texas Labor Code has many more amendments than Section 408.004, thus, rather than providing the entire new statute, a summary of the most important changes follows. At the request of an insurance carrier or an employee, or on the Commissioner's own order, the Commissioner may order a medical examination to resolve any question about: the impairment caused by the compensable injury, the attainment of maximum medical improvement, the extent of the employee's compensable injury, whether the injured employee's disability is a direct result of the work-related injury, the ability of the employee to return to work, or the issues similar to those described above. Pre-HB 7, the designated doctor was only to address MMI/IR and return to work in supplemental income benefit (SIBs) cases.

The statute further discuses how often a designated doctor exam, for the above issues, can be requested, and who is responsible for sending the employee's medical records. No big changes exist in those sections from the prior statute. However, one major change in another section states that the treating doctor and insurance carrier may also send the designated doctor an analysis of the injured employee's medical condition, functional abilities and return-to-work opportunities.

Communications with the designated doctor were incredibly limited pre-HB 7, thus, being able to provide an analysis and inform the doctor of return-to-work options should facilitate early return-to-work. In addition, the designated doctor will presumably be better informed at the time of the examination. Communications are still limited to a certain extent, as the statue provides that only the injured employee or an appropriate member of the DWC's staff may communicate with the designated doctor about the case regarding the injured employee's medical condition or history before the examination of the injured employee by the designated doctor. After that examination is completed, communication with the designated doctor regarding the injured employee's medical condition or history may be made only through appropriate DWC staff members. The designated doctor may initiate communication with any doctor or health care provider who has previously treated or examined the injured employee for the work-related injury or with peer reviewers identified by the insurance carrier.

Another change made to the statute is that the employee can choose a doctor to attend the designated doctor's appointment at the carrier's expense. If the employee is non-network, he/she may choose any doctor. If the employee is in a network, he/she is limited to the treating doctor in network. This addition should result in the designated doctor being better informed at the time of the examination, as well as enabling the designated doctor to ask questions of the treating doctor at the time of the examination, rather than relating to letters being sent thus causing delay.

HB 7 amended Section 408.0041 of the Texas Labor Code and changed the weight given to the report of the designated doctor. The report of the designated doctor has presumptive weight unless the preponderance of the evidence is to the contrary. The prior rule required the presumptive weight of the designated doctor to be overcome by the great weight of the evidence. Great weight is a higher standard than preponderance, thus the designated doctor's opinion is not going to be given as much deference as it was in the past.

Section 408.0041 of the Texas Labor Code provides that the employer may make a bona fide offer (BFO) of employment based on the designated doctor's report, which is a shift from the prior law allowing BFOs to be based only on the treating doctor's opinion. This addition is also to facilitate early return-to-work. The insurance carrier shall pay benefits based on the opinion of the designated doctor during the pendency of any dispute. If an insurance carrier is not satisfied with the opinion rendered by a designated doctor under this section, the insurance carrier may request that the commissioner order an employee to attend an examination by a doctor selected by the insurance carrier, as was discussed earlier in the RME section of this article.

As provided for pre-HB 7, an employee is not entitled to temporary income benefits, and an insurance carrier is authorized to suspend the payment of temporary income benefits during and for a period in which the employee fails to submit to an examination required by Subsection (a) or (f) of Section 408.0041 of the Texas Labor Code, unless the commissioner determines that the employee had good cause for the failure to submit to the examination. The commissioner may order temporary income benefits to be paid for the period for which the commissioner determined that the employee had good cause.

Proposed Rule 126.7 clarifies statute 408.0041 by providing procedural guidance regarding the request for and selection of a designated doctor. Some of the changes in the first section are not noteworthy. However, the section does provide that a doctor who has contracted with or is employed by an authorized workers' compensation health care network established under Chapter 1305 of the Texas Insurance Code, may not perform a designated doctor examination for an employee receiving medical care through the same network.

Proposed Rule 126.7 also provides procedural guidance regarding the responsibilities of the designated doctor. The rule in many sections simply mirrors the statute listing the new issues the designated doctor is now permitted to address, the new preponderance standard needed to overcome the designated doctor's presumptive weight on these issues, scheduling and rescheduling appointments, the suspension of temporary income benefits and the requirement of the insurance carrier to pay pursuant to the designated doctor's opinion during the pendency of a dispute. Proposed rule 126.7 permits the marking and highlighting of medical records submitted by the treating doctor and insurance carrier for all determinations made by a designated doctor. Prior rules prohibited the marking of medical records.

Subsection (j), which requires the completion of additional testing by the designated doctor or another provider on referral within seven working days of the designated doctor's physical examination, is an addition to prevent delay in resolution to questions presented to the designated doctor. Additionally, proposed subsection (w) formally permits parties to file a request for clarification of a designated doctor's report with the DWC and requires a copy of the request be provided to the opposing party. The determination to forward the request to the designated doctor remains at the discretion of the DWC, but this process provides the opposing party with notice and an opportunity to have its position considered by the DWC.

You may be wondering what all of this means for you, me, and everyone else. We can look to the legislative intent to see what the anticipated benefits of this change are. To say how all of this will work once in practice is speculation. In my opinion, there are anticipated benefits to all system participants. The changes have several general goals. First, the changes give clear and consistent manners in which RME and designated doctor exams are scheduled, re-scheduled and conducted. The changes are drafted to facilitate faster resolution of disputes by eliminating unnecessary delays in the administrative procedure. Obtaining a designated doctor should be made easier and faster, thus facilitating faster resolution of disputes. The responsibilities of all participants are more clearly delineated. The situations in which the insurance carrier may suspend or resume payment of temporary income benefits are more streamlined, promoting less overpayment for carriers and less gaps in payment to injured workers. Many of the changes encourage early return-to-work, which translates to quicker employee recovery, savings for employers in premiums and less disturbance to their workforce as well as savings for carriers.

It is believed that there will be a positive impact on employees returning to work earlier as a result of the designated doctor's opinion carrying presumptive weight on this issue. However, several providers have indicated they will not be able to adhere to the deadlines for scheduling and re-scheduling of appointments. If this is correct, then the process will not be as quick and easy as anticipated. It is also anticipated that the system will see quicker resolution of disputes, although there may well be an increase in the number of disputes on these issues. Many participants, pre-HB7, were hesitant to challenge a designated doctor's opinion because meeting the standard of great weight proved daunting. With the changes, the designated doctor's presumptive weight must be overcome by a preponderance of the evidence, a lesser standard. If participants feel they have a stronger chance of overturning a designated doctor opinion with which they disagree, it is more likely they will pursue a dispute. The hope is that the changes discussed in this article are applied in a manner that will reflect the good intentions from which they were born.

by Brandi Prejean. Ms. Prejean is an associate at the Austin law office of Harris and Harris. She practices insurance defense with a focus in Workers' Compensation matters. Ms. Prejean can be reached at Brandi.Prejean@harriswc.com

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