On the IC's request, or by the Commissioner's order, an IE may be required to submit to a required medical examination (RME) to resolve issues on: appropriateness of health care received by the IE; the designated doctor's determinations on impairment rating (IR), attainment of MMI, extent of injury, disability, ability to work, and any other similar issue; or whether the IE's medical condition has improved sufficiently to allow the IE to return to work. TLC Sections 408.004, 408.0041, 408.151; 28 TAC Section 126.5. If the IC is not satisfied with the opinion of the DWC-selected designated doctor, it may then request to have a doctor selected by the IC examine the IE. TLC Section 408.0041(f).
An IC is required to send a copy of the request for medical examination to the IE and the IE'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. 28 TAC Section 126.5(f) and (g).
Notice to Attend.
Once the request for an RME has been granted, DWC shall send a copy of the order to the IE, the IE's representative, and the carrier. 28 TAC Section 126.6(a). The exam must be scheduled within 30 days from the date the order is received. In addition, the IE is entitled to 10 days' advance notice of the RME. 28 TAC Section 126.6(b).
10 Day Notice Not Required for Rescheduled RME.
The IE appeared for the initial RME but could not be seen that day because a translator was not available. The RME was rescheduled to take place more than 10 days later. The IE failed to attend the rescheduled RME due to transportation issues. A CCH was held to determine if the IE had good cause for failing to attend the rescheduled RME and, if not, whether the IC could terminate the payments of TIBs. The ALJ found that the IE did not have good cause, but the IC was not entitled to suspend benefits because it had failed to give the IE 10 days' notice of the examination. The AP reversed and rendered, stating that the 10-day notice requirement did not apply to rescheduled RMEs. APD 020108-s.
Notice of RME Need Not Be Sent by Verifiable Means.
The IE failed to attend a scheduled RME appointment. At the CCH the IE testified that she did not receive notice of the RME appointment. The IC presented evidence that it sent the notice through a private shipper. The ALJ ruled in favor of the IE because the IC had not sent the notice through verifiable means. This was clear error. 28 TAC Section 126.5(g) (now 28 TAC Section 126.5(f)) requires that a copy of the request for an RME order be sent through verifiable means. That rule provision does not apply to the notice of the scheduled RME appointment. APD 051193.
Failure to Attend.
An IE 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 when there is no good cause for failing to attend an RME. TLC Section 408.0041(j); 28 TAC Section 126.6(j). The test for whether good cause exists is whether the IE acted as a reasonable, prudent person. An IE 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 ALJ to decide. APD 941656. An ALJ's determination as to good cause will not be set aside unless the ALJ acted without reference to any guiding rules or principles. APD 010828.
Good Cause Found.
A CCH was held to determine whether the IE had good cause for failing to attend an RME. During the CCH, the IE credibly testified that he failed to appear for the scheduled RME, because he did not receive notice of the appointment and the mail delivery at his apartment complex was unreliable. The evidence showed the IC sent the notice as required. Based on the IE's testimony, the ALJ determined that the IE had good cause for failing to attend the RME. Good cause is a question of fact for the ALJ to decide. As the ALJ could have found good cause based on the IE's testimony, there was no abuse of discretion and the ALJ's decision was affirmed. APD 013039.
No Good Cause.
The IE did not drive and did not have a vehicle. The IE testified that he arranged to have a friend take him to his RME appointment. On the way to the appointment, the IE's friend received a call in which the friend was informed that his father was dying or had died. The IE'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 ALJ did not believe the IE'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 IE had good cause for failure to attend the RME appointment was a question of fact for the ALJ to resolve. APD 010828.
Failure to Cooperate.
An IE 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 28 TAC Section 126.6(j) has been construed to include and require submission to an RME. The IE must actually submit to the examination as opposed to merely attending the examination. APD 022315.
The day before an RME was scheduled, the IE rescheduled the RME because she was experiencing a "flare-up" of a digestive disorder. The second RME was scheduled for two weeks after the initial RME. The IE 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 IE was attempting to avoid examination, and the IE would resist any attempts to examine her, the RME doctor rescheduled the IE's examination to over a month later. The ALJ found that the IE's failure to submit to the previous two exams constituted a failure to attend the RME and that the IE did not have good cause for doing so. Good cause is a question of fact for the ALJ to decide. As the ALJ did not act without reference to any guiding rules or principles, the AP affirmed the ALJ's decision. APD 010407.