Upon request by the IC, or by order of the Commissioner, an IW may be required to submit to a medical examination (RME) in order to resolve issues regarding: impairment rating; attainment of MMI; extent of injury; compensability; ability to work; and any other similar issue. Sections 408.004, 408.0041, 408.151; Section 126.5. If the IW is receiving his or her health care through a workers' compensation health care network established under Chapter 1305, Insurance Code, the IC may not request an RME until after the IW has first been examined by a Division designated doctor. Sections 408.004(f) and 408.0041(f). If the IC is not satisfied with the opinion of the Division's designated doctor, it may then request to have a doctor selected by the IC examine the IW. Section 408.0041(f).
An IC is required to send a copy of the request for medical examination to the IW and the IW's representative by fax, electronic transmission, or other verifiable means. The IC is also required to maintain copies of the request and proof of its successful transmission. Section 126.5(h).
Notice to Attend.
Once the request for an RME has been granted, The Division shall send a copy of the order to the IW, the IW's representative, and the carrier. Section 126.6(a). The exam must be scheduled within thirty days from the date the order is received. Additionally, the IW is entitled to 10 days advanced notice of the RME. Section 126.6(b).
10 Day Notice Not Required for Rescheduled RME.
The IW appeared for the initial RME, scheduled on August 23, 2001, but could not be seen that day because a translator was not available. The RME was rescheduled for September 12, 2001. The IW failed to attend the RME on that date due to transportation issues. A CCH was held to determine whether the IW had good cause for failing to attend the September 12, 2001, RME and, if not, whether the IC could terminate the payments of TIBs. The HO found that the IW did not have good cause, but that the IC was not entitled to suspend benefits because it had failed to give the IW 10 days notice of the examination. The AP reversed and remanded the case, stating that the 10-day notice requirement did not apply to rescheduled RMEs. APD 020108s.
Notice of RME Need Not Be Sent by Verifiable Means.
The IW failed to attend an RME appointment scheduled for April 22, 2004. At the CCH the IW testified that she did not receive notice of the RME appointment. The IC presented evidence that the notice had been sent through a private shipper. The HO ruled in favor of the IW because the IC had not sent the notice through verifiable means. This was clear error. Section 126.5(g) requires that a copy of the request for an RME order be sent through verifiable means. Section 126.5(g) does not apply to the notice of the scheduled RME appointment. APD 051193s.
Failure to Attend.
An IW who fails to attend an RME without good cause is not entitled to receive TIBs. An IC may suspend payment of benefits during the period for which there is no good cause for failing to attend an RME. Section 408.004(e); Section 126.6(h). The test for whether good cause exists is whether the IW acted as a reasonable, prudent person. An IW acts as a reasonable, prudent person if they act with the degree of diligence which an ordinary person would exercise in the same or similar circumstances. APD 94244. Good cause is a question of fact for the HO to decide. APD 941656. A HO's determination as to good cause will not be set aside unless the HO acted without reference to any guiding rules or principles. APD 010828.
Good Cause Found.
A CCH was held to determine whether the IW had good cause for failing to attend an RME. During the CCH, the IW credibly testified that he failed to appear for the RME scheduled for July 10, 2001, because he did not receive notice of the appointment and that the mail delivery at his apartment complex was unreliable. The evidence showed the IC sent the notice as required. Based upon the IW's testimony, the HO determined that the IW had good cause for failing to attend the RME. Good cause is a question of fact for the HO to decide. As the HO could have found good cause based on the IW's testimony, there was no abuse of discretion and the HO's decision was affirmed. APD 013039.
No Good Cause.
The IW did not drive and did not have a vehicle. The IW testified that he arranged to have a friend take him to his RME appointment. On the way to the appointment, the IW's friend received a call in which the friend was informed that his father was dying or had died. The IW's friend could not find the doctor's office and decided to abort the trip and go to the hospital to be with his father. The HO did not believe the IW's testimony and determined that he did not have good cause for failing to attend the RME thereby allowing the IC to suspend TIBs. Whether the IW had good cause for failure to attend the RME appointment was a question of fact for the HO to resolve. APD 010828.
Failure to Cooperate.
An IW who attends an RME, but fails to participate or cooperate during the examination without good cause is not entitled to TIBs. The term "attend" in Section 126.6(h) has been construed to include and require submission to an RME. The IW must actually submit to the examination as opposed to merely attending the examination. APD 022315.
An RME was scheduled for September 15, 2000. On September 14, 2000, the IW rescheduled the RME because she was experiencing a "flare-up" of a digestive disorder. The second RME was scheduled for September 29, 2000. The IW appeared for the RME on that date, but did not feel she could be examined due to her condition. Because the examining RME doctor believed that the IW was attempting to avoid examination, and that any attempts to exam her on September 29, 2000, would be resisted, the RME doctor rescheduled the IW's examination to November 20, 2000. The HO found that the IW's failure to submit to the previous two exams constituted a failure to attend the RME and that the IW did not have good cause for doing do. Good cause is a question of fact for the HO to decide. As the HO did not act without reference to any guiding rules or principles, the AP affirmed. APD 010407.