(a) At the request of the insurance carrier, an injured employee, the injured employee's representative, or on its own motion, the division may order a medical examination by a designated doctor to resolve questions about the following:
(1) the impairment caused by the injured employee's compensable injury;
(2) the attainment of maximum medical improvement (MMI);
(3) the extent of the injured employee's compensable injury;
(4) whether the injured employee's disability is a direct result of the work-related injury;
(5) the ability of the injured employee to return to work; or
(6) issues similar to those described by paragraphs (1)-(5) of this subsection.
(b) To request a designated doctor examination a requestor must:
(1) provide a specific reason for the examination;
(2) report the injured employee's current diagnosis or diagnoses and body part or body parts affected by the injury;
(3) list all injuries determined to be compensable by the division or court, or all injuries accepted as compensable by the insurance carrier;
(4) provide general information regarding the identity of the requestor, injured employee, employer, treating doctor, insurance carrier;
(5) identify the workers' compensation health care network certified under Insurance Code, Chapter 1305 through which the injured employee is receiving treatment, if applicable;
(6) identify whether the claim involves medical benefits provided through a political subdivision under Labor Code §504.053(b)(2) and the name of the health plan, if applicable;
(7) submit the request on the form prescribed by the division under this section. A copy of the prescribed form can be obtained from:
(A) the division's website at www.tdi.texas.gov/wc/indexwc.html; or
(B) the Texas Department of Insurance, Division of Workers' Compensation, 7551 Metro Center Drive, Suite 100, Austin, Texas 78744 or any local division field office location;
(8) submit the request to the division and a copy of the request to each party listed in subsection (a) of this section who did not request the designated doctor examination;
(9) provide all information listed in subparagraphs (A)-(G) of this paragraph below applicable to the type of examination the requestor seeks:
(A) if the requestor seeks an examination on the attainment of MMI, include the statutory date of maximum medical improvement, if any;
(B) if the requestor seeks an examination on the impairment rating of the injured employee, include the date of MMI that has been determined to be valid by a final decision of division or court or by agreement of the parties, if any;
(C) if the requestor seeks an examination on the extent of the compensable injury, include a description of the accident or incident that caused the claimed injury and a list of all injuries in question;
(D) if the requestor seeks an examination on whether the injured employee's disability is a direct result of the work-related injury, include the beginning and ending dates for the claimed periods of disability; state if the injured employee is either not working or is earning less than pre-injury wages as defined by Labor Code §401.011(16);
(E) if the requestor seeks an examination regarding the injured employee's ability to return to work in any capacity and what activities the injured employee can perform, include the beginning and ending dates for the periods to be addressed if the requestor is requesting for the designated doctor to examine the injured employee's work status during a period other than the current period;
(F) if the requestor seeks an examination to determine whether or not an injured employee entitled to supplemental income benefits may return to work in any capacity for the identified period, include the beginning and ending dates for the qualifying periods to be addressed and whether or not this period involves the ninth quarter or a subsequent quarter of supplemental income benefits;
(G) if the requestor seeks an examination on topics under subsection (a)(6) of this section, specify the issue in sufficient detail for the designated doctor to answer the question(s); and
(10) provide a signature to attest that every reasonable effort has been made to ensure the accuracy and completeness of the information provided in the request.
(c) If a party submits a request for a designated doctor examination under subsection (b) of this section that would require the division to schedule an examination within 60 days of a previous examination of the injured employee that party must provide good cause for scheduling that designated doctor examination in order for the division to approve the party's request. For the purposes of this subsection, the commissioner or the commissioner's designee shall determine good cause on a case by case basis and will require at a minimum:
(1) if that requestor also requested the previous examination, a showing by the requestor that the submitted questions could not have reasonably been included in the prior examination and a designated doctor examination is reasonably necessary to resolve the submitted question(s) and will affect entitlement to benefits; or
(2) if that requestor did not request the previous examination, a showing by the requestor a designated doctor examination is reasonably necessary to resolve the submitted question(s) and will affect entitlement to benefits.
(d) The division shall deny a request for a designated doctor examination and provide a written explanation for the denial to the requestor:
(1) if the request does not comply with any of the requirements of subsection (b) or (c) of this section;
(2) if the request would require the division to schedule an examination in violation of Labor Code §§408.0041, 408.123, or 408.151;
(3) if the commissioner or the commissioner's designee determines the request to be frivolous because it lacks either any legal or any factual basis that would merit approval; or
(4) if the insurance carrier has denied the compensability of the claim or otherwise denied liability for the claim as a whole and reported the denial to the division in accordance with §124.2 of this title (relating to Carrier Reporting and Notification Requirements) and the dispute is not yet resolved.
(e) If a division administrative law judge or benefit review officer determines during a dispute regarding the compensability of a claim as a whole that an expert medical opinion would be necessary to resolve a dispute as to whether the claimed injury resulted from the claimed incident, the administrative law judge or benefit review officer may order the injured employee to attend a designated doctor examination to address that issue.
(f) A party may dispute the division's approval or denial of a designated doctor request through the dispute resolution processes outlined in Chapters 140-144 and 147 of this title (relating to Dispute Resolution processes, proceedings, and procedures). Parties may not dispute a designated doctor examination request or any information on the request until the division has either approved or denied the request. Additionally, a party is entitled to seek an expedited contested case hearing under §140.3 of this title (relating to Expedited Proceedings) to dispute an approved or denied request for a designated doctor examination. The division, upon timely receipt and approval of the request for expedited proceedings, shall stay the disputed examination pending the decision and order of the expedited contested case hearing. Parties seeking expedited proceedings and the stay of an ordered examination must file their request for expedited proceedings with the division within three working days of receiving the order of designated doctor examination under §127.5(b) of this title (relating to Scheduling Designated Doctor Appointments).
(g) This section will become effective on December 6, 2018.
The provisions of this §127.1 adopted to be effective February 1, 2011, 35 TexReg 11324; amended to be effective September 1, 2012, 37 TexReg 5422; amended to be effective November 4, 2018, 43 TexReg 7149.