Call the Doctor -- I Think I am Gonna Crash

Tuesday, January 16, 2007 | 0

By Robert Graves

Gov. Rick Perry signed House Bill 7 (HB 7), the Workers' Compensation Reform Bill of 2005, into law on June 1, 2005. HB 7 made significant changes in the Texas workers' compensation system. Among its many changes, HB 7 broadened the responsibilities of the designated doctor and narrowed the role of required medical examinations (RMEs). HB 7 also directed the Texas Department of Insurance, Division of Workers' Compensation (DWC) to adopt rules incorporating HB 7's changes to the designated doctor and RME process. While most of HB 7's changes became effective on Sept. 1, 2005, the provisions regarding designated doctors and RMEs were mandated to "become effective on the date provided by commissioner rule." Pursuant to HB 7's mandate, the DWC amended Rules 126.5, 126.6 and 126.7, addressing the utilization of designated doctors and RMEs.

Although the rules were filed with the Secretary of State on July 17, 2006, they do not become effective until Jan. 1, 2007. Therefore HB 7's changes to the designated doctor and RME process do not become effective until Jan. 1, 2007. This paper will address HB 7's changes to the designated doctor and RME processes and will focus on the DWC's new rules implementing those changes.

Designated Doctors

HB 7's amendments broadened the role of designated doctors in the dispute resolution process. Designated doctors are no longer limited to issues of maximum medical improvement (MMI) and impairment, but will now render opinions on a wide rage of issues, ranging from return to work issues to extent of injury questions. In response to HB 7's changes, the DWC adopted amendments to Rules 126.7, which implements the legislative changes. The following is a description of the new designated doctor process under HB 7's amendments and DWC Rule 126.7.

Qualifications for Designated Doctor

To be a designated doctor, a doctor must be on the designated doctor list (DDL). To be on the list a doctor must:

(1) be currently active on the DWC's Approved Doctor List (ADL) with a Level 2 Certificate of Registration, with no conditions or restrictions or have a temporary exception to the requirement to be on the ADL as set forth in meet the registration requirements, or the exceptions, or upon expiration or waiver of the ADL in accordance with Labor Code Section 408.023(k), comply with all successor requirements, including but not limited to financial disclosure under Labor Code Section 413.041;

(2) have filed an application to be on the DDL, which must be renewed biennially;

(3) have successfully completed DWC-approved training and examination on the assignment of impairment ratings using the currently adopted edition of the American Medical Association Guides, medical causation, extent of injury, functional restoration, return to work, and other disability management topics; and

(4) have had an active practice for at least three years during the doctor's career.

A doctor who has contracted with or is employed by a workers' compensation health care network (network doctor) may not perform a designated doctor examination for a claimant receiving medical care through the same network.

Scope of Designated Doctor Examination

In the past, designated doctors were utilized to help resolve disputes concerning when a claimant reached MMI, the claimant's impairment rating and, in some supplemental income benefits (SIBs) cases, whether the claimant had an ability to work. As a result of HB 7, designated doctors will be utilized in the resolution of a broad range of issues. Under the amendments to Labor Code Section 408.0041, designated doctors will be utilized to help resolve questions about:

(1) impairment;

(2) MMI;

(3) the extent of the compensable injury;

(4) whether a claimant's disability is a direct result of the work-related injury;

(5) the ability of a claimant to return to work; and

(6) similar issues.

Request for a Designated Doctor Examination

The DWC may require an examination by designated doctor at the request of: (1) the carrier; (2) the claimant or his representative; (3) the medical adviser; or (4) on its own motion. All requests for designated doctors must be on the proper form, which currently is a Request for Designated Doctor (DWC-32).

If the request is approved and, at the time the request is made, the DWC had previously assigned a designated doctor to the claim, the DWC should use that doctor again, as long as the doctor is still qualified and available. Otherwise, the DWC must select the next available doctor on the DDL who: (1) has not previously treated or examined the claimant within the past 12 months and has not examined or treated the claimant with regard to a medical condition being evaluated; (2) does not have any disqualifying associations; and (3) has credentials appropriate to the issue in question and the claimant's medical condition.

Within 10 days after approval of a request, the DWC will issue a written notice that assigns a designated doctor. The notice will be provided to the designated doctor, the claimant and the claimant's representative, and the carrier. The notice will include:

(1) the designated doctor's name, license number, practice address and telephone number, and the date and time of the examination or the date range for the examination to be conducted;

(2) an explanation of the purpose of the designated doctor examination;

(3) a statement requiring the claimant to submit to an examination by the designated doctor; and

(4) a statement requiring the treating doctor and carrier to forward all appropriate medical records.

Scheduling the Designated Doctor Examination

The exam is required to be conducted no earlier than 14 days, but no later than 21 days from the date of the written notice. If a scheduling conflict arises, the designated doctor and the claimant must contact each. The person who has the scheduling conflict must make the contact at least 24 hours before the appointment. However, the 24-hour requirement will be waived in an emergency situation. The rescheduled examination should be scheduled to occur within 21 days of the originally scheduled examination. Within 24 hours of rescheduling, the designated doctor must contact the DWC field office and the carrier and inform them of the date and time of the rescheduled examination. If the examination cannot be rescheduled within 21 days, the designated doctor must notify the DWC and the DWC will assign a new designated doctor.

Providing Information to the Designated Doctor

The designated doctor is authorized to receive the claimant's confidential medical records without a signed release from the claimant. The treating doctor and carrier are required to provide the designated doctor with copies of all the claimant's medical records in their possession relating to the medical condition to be evaluated. For subsequent examinations with the same designated doctor, only those medical records not previously sent must be provided. The treating doctor and carrier may also send the designated doctor an analysis of the claimant's medical condition, functional abilities, and return-to-work opportunities. The analysis may include supporting information such as videotaped activities of the claimant, as well as marked copies of medical records.

The records must be mailed to the designated doctor no later than the fifth working day before the date of the designated doctor examination. If the designated doctor has not received all or part of the medical records at least one working day before the examination, the designated doctor is required to: (1) report this violation to the DWC's Compliance and Practices Section; and (2) reschedule the examination. The designated doctor must conduct the rescheduled examination regardless of whether he has received the complete medical record.

Communications with Designated Doctor

To avoid undue influence on the designated doctor, except for the supplying medical records and an analysis, only the claimant or appropriate DWC staff may communicate with the designated doctor before the examination regarding the claimant's medical condition or history. After the examination is completed, communication with the designated doctor regarding the claimant's medical condition or history may only be made through appropriate DWC staff.

The designated doctor may initiate communication with any doctor who has treated or examined the claimant for the work-related injury or a peer review doctor who examined the claimant's claim.

The carrier, treating doctor, claimant or claimant's representative may contact the designated doctor's office to ask about administrative matters such as whether the designated doctor received the records, whether the exam took place, or whether the report has been filed, or similar matters.

The designated doctor must review the claimant's medical histories, medical records and analyses provided, and perform a complete physical examination. The designated doctor is required to give the medical records reviewed the weight the doctor determines to be appropriate.

The designated doctor is required to perform additional testing or refer a claimant to other health care providers when necessary to determine the issue in question. Any additional testing required for the evaluation is not subject to preauthorization. Such additional testing must be completed within 10 working days of the designated doctor's physical examination of the claimant. The need for additional testing extends the amount of time the designated doctor has to file the report by 10 working days.

Designated Doctor's Report

1. Requirements of Report

A designated doctor who determines that the claimant has reached MMI, assigns an impairment rating, or determines the claimant has not reached MMI, must complete and file the appropriate report (currently the DWC-69). The report must be sent to the carrier, the claimant and the claimant's representative, the treating doctor, and DWC. Under Rule 130.1, the report must be sent no later than the seventh working day after the later of the examination or receipt of medical records.

A designated doctor who determines that the claimant can return to work immediately with or without restrictions is required to file a Work Status Report (DWC-73) within seven days of the date of the examination of the claimant. This report must be filed with the carrier, the treating doctor, the claimant and the claimant's representative.

A designated doctor who addresses other issues must file a narrative report within seven days of the date of the examination of the claimant. This report must be filed with the carrier, the treating doctor, the claimant and the claimant's representative.

The designated doctor is supposed to send the report to the claimant and his representative by facsimile or by electronic transmission if the designated doctor has been provided with a facsimile number or email address for the recipient, otherwise, the designated doctor must send the report by other verifiable means.

2. Effect of Report on Benefits

Before HB 7, the report of the designated doctor was entitled to presumptive weight and the former Texas Workers' Compensation Commission (TWCC) was required to adopt the opinion of the designated doctor regarding MMI and impairment unless the opinion was contrary to the great weight of the other medical evidence. This posed a significant burden and it was difficult to overcome the designated doctor's opinion before the TWCC. Interesting, Labor Code Chapter 410 did not impose the "great weight standard" in judicial review. Accordingly, in some cases, parties would challenge an impairment rating under the assumption that they could not overcome the "great weight standard" before the TWCC, intending to take the matter to court, where the lesser standard of "preponderance of the evidence" applied.

Under HB 7's amendments, the report of the designated doctor is given presumptive weight regarding the issues in question. However, while the designated doctor's opinion still has presumptive weight, it no longer takes the "great weight" of the other evidence to overcome the presumption. Under HB 7's amendments, the report of the designated doctor has presumptive weight unless the "preponderance" of the evidence is to the contrary. This lightens the burden required to overcome a designated doctor's opinion. It also makes the burden of proof before the DWC the same as in judicial review.

The carrier must pay any accrued income benefits, and must begin or continue to pay weekly income benefits, in accordance with the designated doctor's report for the issue in dispute. Payment must be made no later than five days after receipt of the report or five days after receipt of notice from the DWC, whichever is earlier.

For years, the rules have required that a carrier pay benefits pursuant to a designated doctor's report pending resolution of a dispute. However, until HB 7, no such requirement was contained in the Act. When the amendments to Rule 126.7 were proposed, some commenters suggested that, just as carriers are able to obtain reimbursement from the Subsequent Injury Fund (SIF) for an overpayment of benefits made under an interlocutory order or DWC decision that is later overturned, carriers should also be entitled to reimbursement from the SIF for overpayments made pursuant to a designated doctor's report that is eventually overturned. The DWC noted this concern and stated that it would "review the applicable provisions of the Labor Code and rules and make a determination if this is a matter that can possibly be addressed at a future date."

Requests for Clarification

Parties may file a request with the DWC for clarification of the designated doctor's report. A copy of the request must be provided to the opposing party. The DWC may contact the designated doctor if it determines that clarification is necessary to resolve an issue regarding the designated doctor's report. The DWC, at its discretion, may request clarification from the designated doctor on issues the DWC deems appropriate.

To respond to the request for clarification, the designated doctor must be on the DDL at the time the request is received by the DWC. The designated doctor must respond to the letter of clarification within five days of receipt. If, in order to respond to the request for clarification, the designated doctor needs to reexamine the claimant, the doctor must: (1) respond to the request for clarification advising of the need for an additional examination within five days of receipt and provide copies of the response to the parties; and (2) conduct the reexamination within 21 days from the request by the DWC at the location of the original examination.

Subsequent Designated Doctor Examinations

A carrier or claimant is not entitled to a subsequent designated doctor examination until the earlier of: (1) the 60th day after the last designated doctor examination was held; or (2) the date the carrier or the claimant is found by the DWC to have good cause, such as the inclusion of additional body parts (extent of injury).

Designated Doctor for SIBs

Texas Labor Code Section 408.151, adopted before HB 7, provides for the appointment of a designated doctor in some SIBs cases to determine whether a claimant has an ability to work. HB 7 did not amend Section 408.151, which resulted in some confusion as Section 408.151 has some constraints on the use of a designated doctor not contained in HB 7. Accordingly, Section 408.151 and the corresponding DWC Rule 130.110 will govern SIBs designated doctors.

On or after the second anniversary of the initial award of Supplemental Income Benefits (SIBs), the carrier may require a claimant who is receiving SIBs to submit to a designated doctor examination annually, if in the preceding year, the claimant's medical condition resulting from the compensable injury had not improved sufficiently to allow the claimant to return to work.

Claimant's failure to attend Designated Doctors Examination.

A carrier may suspend temporary income benefits (TIBs) if a claimant, without good cause, fails to attend a designated doctor examination. In the absence of a finding by the DWC to the contrary, an carrier may presume that the claimant did not have good cause to fail to attend the examination if the claimant: (1) failed to submit to the examination; and (2) failed to contact the designated doctor's office to reschedule the examination.

If, after the carrier suspends TIBs, the claimant contacts the designated doctor to reschedule the examination, the designated doctor must schedule the examination to occur as soon as possible, but not later than the 21st day after the claimant contacted the doctor. The carrier must reinstate TIBs effective as of the date the claimant submitted to the examination, unless the report of the designated doctor indicates that the claimant has reached MMI or is otherwise not eligible for income benefits. A claimant is not entitled to TIBs for a period during which the carrier suspended benefits unless: (1) the claimant later submits to the examination; and (2) the DWC finds or the carrier determines that the claimant had good cause for failure to attend the examination.

Designated Doctor's Duties to Maintain Records

The designated doctor must maintain accurate records, including the claimant records, analysis (including supporting information), and narratives provided by the carrier and treating doctor, to reflect:

(1) the date and time of any designated doctor appointments scheduled with a claimant;

(2) the circumstances regarding a cancellation, no-show or other situation where the examination did not occur as initially scheduled or rescheduled;

(3) the date of the examination;

(4) the date medical records were received from the treating doctor or any other person or organization;

(5) the date the medical evaluation report, including the narrative report described in subsection (n) of this section, was submitted to all parties;

(6) the name of all referral health care providers, date of appointments and reason for referral by the designated doctor; and

(7) the date the doctor contacted the DWC for assistance in obtaining medical records from the carrier or treating doctor.

Required Medical Examinations (RME)

While HB 7 broadened the applicability of the designated doctor in benefit disputes, HB 7 limited the usage of RMEs. As a result of HB 7, there are two types of RMEs: Medial Necessity RMEs and Post-DD RMEs. The procedures, rights and duties of system participants vary, depending on the type of RME. In response to HB 7, the DWC adopted amendments to Rules 126.5 and 126.6 regarding RMEs. The following is a description of the new RME process under HB 7's amendments and DWC Rules 126.5 and 126.6.

Who may Request an RME?

Both a carrier and the DWC may request an RME. In the past, the DWC would request a "DWC appointed RME" to render an opinion on issues other than MMI or impairment, such as extent of injury. However, given the nature of designated doctor and the broadened scope of issues he may address, it is somewhat confusing why the DWC would have the need to request an RME. However, in response to comments concerning Rule 126.5(b) the DWC explained that it interprets the relevant statutory provisions to mean that the DWC may order a RME upon its own motion only regarding questions of the appropriateness of health care.

Two Types of RMEs

A carrier is entitled to a RME by a doctor of its choice as follows:

1. Medical Necessity RMEs

An RME may be scheduled, once every 180 days, to resolve questions about the appropriateness of the health care received by the claimant. The carrier's first medical necessity RME may be requested at any time after the date of injury. A later examination may be requested once every 180 days after the first examination and must be performed by the same doctor unless otherwise approved by the DWC.

Medical Necessity RMEs do not apply to network claims and a claimant receiving care through a workers' compensation network may not be required to attend an RME concerning the appropriateness of medical care.

2. Post-DD RME

There are two types of Post DD exams.

a. Post-DD Typical (non-SIBs)

A RME may be scheduled for the purpose of evaluating a designated doctor's opinion on all issues but SIBs.

b. Post-DD SIBs RME

A RME may be scheduled for the purpose of evaluating a SIBs designated doctor's opinion that a claimant cannot return to work. A carrier may require a claimant to submit to such a RME no more than once per year.

Qualifications of RMEs

The doctor selected to perform an RME must be on the DWC's approved doctors list. If the purpose of the examination is to evaluate MMI or impairment following a designated doctor examination, the RME doctor must be authorized to assign impairment ratings.

The DWC may require examinations requiring travel of up to 75 miles from the claimant's residence, unless the treating doctor certifies that such travel may be harmful to the claimant's recovery. Travel more than 75 miles may be authorized only if good cause exists to support such travel. The carrier must pay reasonable travel expenses incurred by the claimant in submitting to any required medical examination.

A doctor who has contracted with or is employed by a workers' compensation health care network may not perform a RME, the Act for a claimant receiving medical care through the same network. It is the responsibility of the requesting party to ensure the doctor selected does not have a disqualifying association.

Requesting a RME

Except for Post-DD RMEs, the DWC may not require a claimant to submit to a medical examination at the carrier's request until the carrier has made an attempt to obtain the agreement of the claimant for the examination. The carrier must notify the DWC of any agreement or non-agreement by the claimant regarding the requested examination. An examination of a claimant by a doctor selected by the carrier must be requested as follows:

(1) Before to requesting a RME from the DWC, the carrier must send a copy of the request to the claimant and the claimant's representative in an attempt to obtain the claimant's agreement to the examination.

(2) The carrier must give the claimant 15 days to agree to the examination. The 15-day period begins on the date the carrier sends the request to the claimant and the claimant's representative. Though the claimant has 15 days to respond to the request, the carrier is not prohibited from contacting the claimant or the claimant's representative by telephone to discuss the request and obtain the claimant's or the representative's response.

(3) The carrier must send the request to the DWC after either obtaining the claimant's answer to the request or when the claimant fails to respond after the 15-day period.

The carrier must maintain copies of the request for a RME and must also maintain verifiable proof of successful transmission of the information. For these purposes, verifiable proof includes, but is not limited to, a facsimile confirmation sheet, certified mail return receipt, delivery confirmation from the postal or delivery service, or a copy of the electronic submission.

DWC's consideration of RME Request

When a request for a RME is made by a carrier or the DWC, the DWC will determine if an examination should occur. The DWC will grant or deny the request within seven days of the date the request is received. A copy of the DWC's action and the report will be sent to the claimant, the claimant's representative and the carrier. The notice will explain the circumstances under which a claimant may experience loss of benefits and consequences for failing to attend the examination as well as the need to reschedule a missed examination. An agreement between the parties for an examination that the carrier has a right to has the same effect as the action of the DWC.

All RMEs must be scheduled to occur within 30 days after receipt of the notice, with at least 10 days notice to the claimant and the claimant's representative. If a scheduling conflict exists, the claimant and the doctor must contact each other. The person who has the scheduling conflict must make contact at least 24 hours before the appointment. The 24-hour requirement may be waived in an emergency situation (such as a death in the immediate family or a medical emergency). The rescheduled examination must be scheduled for a day within seven days of the originally scheduled exam, unless an extension is agreed upon by the claimant and doctor. The extension may not be to a date later than the 30th day after the originally scheduled examination. In this event, the examining doctor must notify the carrier and the 10 days notice requirement does not apply to a rescheduled examination.

Attendance of Treating Doctor

The claimant's treating doctor may be present at a carrier's RME. The claimant's treating doctor may observe the conduct of the examination, and may consult with the examining doctor about the course of the claimant's treatment. The claimant's treating doctor is prohibited from otherwise participating in, impeding, or advising the claimant not to cooperate with the examination. In initially scheduling the examination, a reasonable attempt must be made to accommodate the schedule of the treating doctor if the claimant wants the treating doctor to attend the examination and the treating doctor is willing to do so. However, once an examination is scheduled based on the treating doctor's availability, the examination must not be delayed, canceled, or rescheduled due to the treating doctor's scheduling conflicts unless: (1) the RME doctor agrees to the rescheduling; or (2) the examination was canceled by the RME doctor.

If the RME doctor refuses to allow the treating doctor to attend the examination, the carrier must cancel the appointment and request that another doctor be approved for the RME. If reasonable notice is not provided to the claimant and the claimant's representative, the carrier is liable for any reasonable travel expenses incurred by the claimant and for the payment for the treating doctor's attendance at a refused appointment. This does not apply to situations where the treating doctor is not able to attend the examination due to any form of scheduling conflict.

RME Report

1. Medical Necessity RME Report

An RME doctor who conducts an examination regarding the appropriateness of the health care received by the claimant, is required to complete a medical report that includes objective findings of the examination and an analysis that explains how the medical condition and objective findings lead to the conclusion reached by the doctor. The RME doctor must file the report with the carrier and claimant and claimant's representative.

2. Post-DD RME Report

A RME doctor who, following a designated doctor's examination, determines the claimant has reached MMI or who assigns an impairment rating, is required to complete and file the proper form (currently the DWC-69). Otherwise, the RME doctor may not certify MMI or assign an impairment rating. If the RME doctor disagrees with the designated doctor's opinion regarding MMI, the RME doctor's report must explain why the RME doctor believes the designated doctor was mistaken or why the designated doctor's opinion is no longer valid. Other reports must be completed in the form and manner prescribed by the DWC and must be sent to the carrier, the claimant, the claimant's representative, the treating doctor and the DWC no later than 10 days after the examination.

A RME doctor who, following a designated doctor's examination, determines that the claimant can return to work immediately with or without restrictions is required to file a Work Status Report (DWC-73) within seven days of the date of the examination of the claimant. This report must be filed with the treating doctor and the carrier by facsimile or electronic transmission. In addition, the RME doctor must file the report with the claimant and the claimant's representative. A RME doctor who, following a designated doctor's examination, addresses issues other than MMI, impairment or return to work, must file a narrative report within seven days of the date of the examination of the claimant. This report must be filed with the carrier, treating doctor, claimant and claimant representative.

Carriers' Ability to Suspend TIBs

A carrier may suspend TIBs if a claimant, without good cause, fails to attend a Post-DD RME. In the absence of a finding by the DWC to the contrary, a carrier may presume that the claimant did not have good cause to fail to attend the examination if, the claimant: (1) failed to submit to the examination; and (2) failed to contact the RME doctor's office to reschedule the examination.

If, after the carrier suspends TIBs, the claimant contacts the RME doctor to reschedule the examination, the RME doctor is required to reschedule the examination as soon as possible, but not later than the 30th day after the claimant contacted the doctor. The carrier must re-initiate TIBs effective as of the date the claimant submitted to the examination. The re-initiation of TIBs must occur no later than the seventh day following: (1) the date the carrier was notified that the claimant attended the examination; or (2) the date that the carrier was notified that the DWC found that the claimant had good cause for not attending the examination.

A claimant is not entitled to TIBs for a period during which the carrier was entitled to suspend benefits unless the claimant later submits to the examination and the DWC finds or the carrier determines that the claimant had good cause to fail to attend the appointment.

A carrier may not suspend TIBs if a claimant fails to appear for a Medical Necessity RME. However, a claimant who, without good cause, fails or refuses to appear to any RME may be assessed an administrative penalty. Failure to follow RME process.

A carrier is not entitled to take action with respect to benefits based on, and the DWC may not consider, a report of an RME doctor that was not approved or obtained in accordance with this section.

Conclusion

HB 7's changes and the rules implementing those changes have significantly modified the roles of the designated doctor and the RME. After Jan. 1, 2007, designated doctors will no longer be limited to MMI and impairment issues and will play a part in a wide range of benefit dispute issues. However, the role of the RME has been diminished. It will be interesting to see how these changes develop and the effect they will have on the benefit dispute resolution process.

Robert R. Graves is an attorney with the law firm of Burns Anderson Jury & Brenner. He has experience in all aspects of Texas workers' compensation, including benefit disputes, medical disputes, compliance matters, and subrogation. He is a graduate of Centenary College of Louisiana and Willamette University College of Law. This article was republished with the permission of the Insurance Council of Texas, www.insurancecouncil.org.

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