Appeals Panel: Claimant’s Refusal to Appear for Testing ordered by DD May Result in TIBs Suspension
The appeals panel has recognized that an injured worker is required to submit to testing ordered by a designated doctor and that a claimant’s failure to appear for such testing without good cause may result in suspension of TIBs. The decision, Texas Division of Workers’ Compensation Appeals Panel Decision No. 210284, decided April 30, 2021, “clarifies” the ALJ’s statement to the contrary.
The issue in that case was whether the claimant had good cause for her failure to submit to a designated doctor’s referral examination, and if so, whether claimant was entitled to TIBs in the interim. It was undisputed that an examination had been scheduled by the designated doctor with a referral doctor to address the issues of MMI and IR.
The claimant missed the examination. The ALJ found the claimant had good cause for missing the examination because of lack of notice. Thus, the ALJ found the claimant was entitled to TIBs for the disputed period.
But the ALJ also wrote in her decision that neither Rule 127.10 nor Rule 127.25 imposed a “good cause” requirement for failing or refusing to attend a referral examination, or for suspension of TIBs for failure or refusing to attend a referral examination. The ALJ further stated that, under the circumstances of the case, the claimant was not required to demonstrate that she had good cause for failing to attend a referral examination.
The appeals panel disagreed, observing that the preamble to Rule 127.10 (c) “discusses, in part, the Division’s response to concerns regarding the necessity or reasonableness of designated doctor referrals for testing and notes that ‘referrals for additional testing are often absolutely necessary for and thus essentially part of the designated doctor’s examination of an injured employee.’ See 35 Tex. Reg. 11325, December 17, 2010.” The appeals panel squarely stated:
In the case on appeal, Dr. O stated in his June 24, 2020, report that he recommended the claimant to undergo psychological testing/evaluation as additional testing necessary to determine MMI and IR. Because the referral appointment was necessary for Dr. O to determine the Division-appointed issues of MMI and IR, the referral appointment, by extension, is a part of his examination to determine MMI and IR. Therefore, the claimant’s failure to attend Dr. O’s referral appointment, if she did not have good cause for that failure, could be subject to the self-insured suspending TIBs under Rule 127.25.
After this decision, it is clear that an employee must attend a referral examination or testing ordered by a designated doctor to facilitate the DD’s obligation to express an opinion on the disputed issue. A claimant’s failure to do so without good cause can result in the suspension of the claimant’s TIBs.
FOLIO
