An IE who, without good cause, fails or refuses to attend a scheduled designated doctor examination has committed an administrative violation and is not entitled to TIBs for the time during which he or she fails to submit to the examination. TLC Section 408.0041(i) and (j). Good cause is a question of fact for the ALJ to resolve. APD 941656. An IE who, without good cause, fails to attend a referral examination the designated doctor ordered is also subject to suspension of TIBs, since the referral appointment is a part of the designated doctor examination. APD 210284.
In the absence of a DWC finding of good cause, an IC may presume an IE did not have good cause for failure to attend a scheduled designated doctor examination under the circumstances listed in 28 TAC Section 127.25(b) and suspend TIBs as described in TLC Section 408.0041(j) and 28 TAC Section 127.25(a). An IC that has suspended TIBs under TLC Section 408.0041 and 28 TAC Section 127.25(a) is to reinitiate TIBs as of the date the IE submits to the examination unless the designated doctor finds the IE has reached MMI or is otherwise not eligible for income benefits. 28 TAC Section 127.25(e).
The IE failed to submit to a scheduled designated doctor examination. The ALJ determined the IE had good cause for failing to attend the appointment because the IE did not receive notice of the appointment. The AP affirmed, noting that the credible evidence did not show the notice was sent to the IE or to his representative. APD 032927. Note: this case was decided under now-repealed 28 TAC Section 130.6, a forerunner to the current version of the Rule, 28 TAC Section 127.25.
No Good Cause.
The IE failed to submit to a scheduled designated doctor examination. The IE claimed a DWC employee told him he did not have to attend the appointment because he had been approved to have surgery on a date after the scheduled appointment. The IE contacted DWC after the IC suspended TIBs to request that the designated doctor examination be rescheduled. The DRIS notes did not reference a conversation with a DWC employee where the IE was advised he did not have to attend the examination. The ALJ was not persuaded that a DWC employee told the IE he did not have to attend the appointment and determined that the IE did not have good cause for failing to attend the appointment. The AP affirmed. APD 030524. Note: this case was also decided under now-repealed 28 TAC Section 130.6.
No Good Cause.
The IE testified in the CCH that her attorney advised her not to attend a scheduled designated doctor examination and that he would have other doctors see her in relation to her work-related injury. The ALJ decided that the IE’s reliance on her attorney’s advice to not attend the examination constituted good cause. The AP reversed the ALJ’s decision, noting that bad advice from one’s own attorney is not an excuse for failing to comply with DWC requirements. The ALJ’s determination that the IE had good cause for failing to attend the designated doctor examination was reversed and the AP rendered a new decision that the IE did not have good cause. APD 151718.