Abuse of Discretion/Subsequent DD.

An abuse of discretion occurs when an action is taken without reference to any guiding rules and principles. Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986). The AP has applied an abuse-of-discretion standard to the appointment of a subsequent DD. APD 030467.

28 Texas Administrative Code (TAC) Sec. 127.5(d), effective December 6, 2018, provides as follows:

Except as provided in subsection (h) of this section, the division shall select the next available doctor on the DD list for a medical examination requested under 28 TAC Sec. 127.1 (relating to Requesting DD Examinations). A DD is available to perform an examination at any address the doctor has filed with the division if the doctor:

(1) does not have any disqualifying associations as described in 28 TAC Sec. 127.140 (relating to Disqualifying Associations);

(2) is appropriately qualified to perform the examination in accordance with 28 TAC Sec. 127.130 (relating to Qualification Standards for DD Examinations);

(3) is a certified DD on the day the examination is offered and has not failed to timely file for recertification under 28 TAC Sec. 127.110 (relating to DD Recertification), if applicable; and

(4) has not treated or examined the IE in a non-DD capacity within the past 12 months and has not examined or treated the IE in a non-DD capacity with regard to a medical condition being evaluated in the DD examination.

28 TAC Sec. 127.5(h), also effective on December 6, 2018, provides as follows: 

If the division has previously assigned a DD to the claim at the time a request is made, the division shall reassign that doctor again unless the division has authorized or required the doctor to stop providing services on the claim in accordance with 28 TAC Sec. 127.130. Examinations under this subsection must be conducted at the same examination address as the DD’s previous examination of the IE or at another examination address approved by the division.

Burden of Proof on the Party Challenging the Order.

The ALJ found that a second DD was improperly appointed. The ALJ correctly placed the burden of proof on the IC, which was the party challenging the division's order appointing the second DD; however, the ALJ found that the division abused its discretion in the appointment of the second DD. The AP reversed the ALJ's determination that the second DD was improperly appointed and rendered a decision that based on the evidence, the second DD was properly appointed. In this case, the only evidence regarding why a second DD was appointed is a dispute resolution information system (DRIS) note reflecting that the IE would have to be sent to a different DD because the initial DD could not meet the time frame for setting up a DD appointment. Therefore, there was no showing by the IC that the division abused its discretion in appointing the second DD. The AP stated that an order of an administrative body is presumed to be valid and that the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action, citing Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref'd). APD 042669-s.

The ALJ found that the second DD was improperly appointed. The ALJ incorrectly placed the burden of proof on the IC and found that it was not established by the IC that the first DD was unable or unwilling to continue as DD. However, the IE was the party challenging the appointment of the second DD, therefore the IE had the burden to establish that the second DD was not properly appointed. Because the ALJ incorrectly placed the burden of proof on the IC, the AP reversed and remanded the case back to the ALJ to apply the correct burden of proof in considering the evidence presented at the hearing. APD 042979.

Disqualifying Association Preventing a Doctor from Serving as a DD.

A disqualifying association is any association that may reasonably be perceived as having potential to influence the conduct or decision of a DD. 28 TAC Sec. 127.140(a). A non-exhaustive list of disqualifying associations is found at 28 TAC Sec. 127.140(a)(1)-(7).

For examinations after January 1, 2013, a DD has a disqualifying association on a claim or examination if his or her agent has a disqualifying association relevant to the claim. 28 TAC Sec. 127.140(b).

The AP has determined the following to be disqualifying associations that would prevent the doctor from serving as the DD:

A doctor serving as either an IC peer review doctor or IC RME doctor and also serving as a referral doctor of the DD for the IE in the same claim. APD 100842.

Performing a DD exam in a facility of the IE's employer. APD 101194.

The sharing of common office facilities and phone and fax numbers with a doctor with a disqualifying association. APD 101194.

The sharing of the same address, the same suite number, and the same telephone and fax numbers by the DD and the IC's RME doctor. APD 091660.

The sharing of the same address, the same suite number, and same telephone and fax numbers by the DD and the peer review doctor. APD 091210.

NOTE: APDs 100842, 101194, 091660, and 091210 above, were decided under 28 TAC Secs. 126.7(h)(2) and 180.21, which were in effect at the applicable time but have since been repealed.

Frequency of DD Examination.

Section 408.0041(b) and 28 TAC Sec. 127.1(c) provide, in part, that a DD examination may not be conducted more frequently than every 60 days, unless good cause for more frequent examinations exists.  Section 408.0041 and 28 TAC Sec. 127.1(c) both specifically discuss the date of the actual DD examination rather than the date the request for a DD examination is made.   The AP held that the controlling date in the question of whether a requested DD examination occurs within 60 days of a previous DD examination is the date of the actual subsequent examination rather than the date the request is made.  APD 160697-s.

Qualification Standards for DD Examinations for DD Assignments

In accordance with 28 TAC Sec. 127.130, a DD is qualified to perform a DD examination on an IE if the DD meets the appropriate qualification criteria for the area of the body affected by the injury and the IE’s diagnosis and has no disqualifying associations under 28 TAC Sec. 127.140. Qualification standards for DDs were updated and clarified in the version of 28 TAC Sec. 127.130 effective on December 6, 2018.

DD Found Not Qualified.

The IE sustained a compensable injury when she tripped and fell.  The IE asserted that her compensable injury extended to disc herniations with nerve root irritation and cauda equina-like syndrome.  In response to a DWC-32 filed by the IE for a DD to address MMI, IR , and extent of injury on the claim, the division appointed a doctor of chiropractic as DD. Since that DD was not qualified to examine spinal cord injuries under 28 TAC Sec. 127.130(b)(8)(B), the AP reversed and remanded the case back to the ALJ so that the parties could receive the benefit of an impartial examination by a qualified DD as contemplated by Secs. 408.0041 and 408.0043 and 28 TAC Sec. 127.130(b)(8)(B).  APD 170849.

NOTE: APD 170849 was decided under the version of 28 TAC Sec. 127.130 that was in effect from September 1, 2012, through December 5, 2018.