Appeals Panel Finds Claimant had No Good Cause to Miss DD Exam
The Appeals Panel has reversed a Hearing Officer’s determination that an injured worker’s reliance upon his attorney’s advice constituted good cause for failing to attend a designated doctor’s examination. The decision was posted on the Division’s website on November 4, 2015 and is designated Appeals Panel Decision Number 151718.
The decision of the Appeals Panel noted that the claimant had been ordered by the Division to attend an April 29, 2014 examination with a designated doctor. The claimant requested that the examination be rescheduled to June 3, 2014. However, the claimant failed to attend the June 3, 2014 designated doctor’s examination. The carrier suspended TIBs.
At a subsequent CCH, the claimant testified that her attorney advised her not to attend the June 3, 2014, designated doctor examination, and that he would have the claimant seen by other doctors regarding her work-related injury. The claimant then testified that she did not attend the June 3, 2014, appointment on the advice of her attorney. The Hearing Officer determined that the claimant had good cause for failing to attend the examination and ordered the carrier to pay TIBs to the claimant. The carrier appealed this determination. The Appeals Panel reversed the hearing officer’s decision and rendered a decision that the claimant had no good cause for failing to attend the designated doctor’s examination.
The hearing officer determined that the claimant had good cause for failing to attend the June 3, 2014, designated doctor examination. The hearing officer makes clear in his decision that the claimant’s reliance on her attorney’s advice not to attend the June 3, 2014, designated doctor examination constituted good cause for failing to attend that examination. However, bad advice received from one’s own attorney is not an excuse for the failure to comply with Division requirements. See Appeals Panel Decision (APD) 031799, decided August 18, 2003; APD 022223, decided October 8, 2002; APD 981939, decided September 30, 1998; and APD 951487, decided October 19, 1995. Accordingly, we reverse the hearing officer’s determination that the claimant had good cause for failing to submit to the designated doctor’s examination on June 3, 2014, and we render a new decision that the claimant did not have good cause for failing to submit to the designated doctor’s examination on June 3, 2014.
The Appeals Panel then turned to the question of whether and when TIBs should be reinstated. The claimant testified that she eventually fired her first attorney and hired a new lawyer. This lawyer requested a rescheduled DD examination and advised the claimant to attend the appointment. The new designated doctor’s examination was first scheduled for October 4, 2014, but eventually rescheduled to take place on November 7, 2014. The claimant attended that examination and the DD determined that she was not yet at MMI. The delay in the rescheduled appointment was occasioned by the examining doctor’s belief that the claimant’s injuries were outside his scope of practice.
The claimant argued that if she did not have good cause for attending the first DD examination, the Division should order her TIBs to be reinstated as of the October 4, 2014 examination date. She contended that the delay in rescheduling the examination was not attributable to her actions and that she would have been available to attend the examination but for the DD’s request to reschedule. The Appeals Panel rejected the argument.
Rule 127.25 requires actual attendance of the designated doctor’s examination. Additionally, Rule 127.25 does not provide for an exception to the suspension of TIBs based on a delay in the subsequent appointment of a designated doctor examination. See APD 141226, decided August 8, 2014. We note that APD 141226 was decided under a previous version of Rule 127.25; however, the cited legal proposition remains the same under both versions of Rule 127.25.
Therefore, pursuant to Rule 127.25, the carrier is entitled to suspend TIBs beginning June 3, 2014, when the claimant failed, without good cause, to attend the June 3, 2014, designated doctor examination, through November 4, 2014, the date the claimant submitted to the rescheduled designated doctor examination. Accordingly, we render a new decision that the claimant is not entitled to TIBs beginning June 3, 2014, through November 4, 2014.
This case reinforces the rule that a claimant who fails to attend a designated doctor’s examination without good cause will forfeit her right to TIBs during the period of time in which she refuses to submit to the examination.
FOLIO
