AP Clarifies Rule for Requesting Repeat DD Examinations

The Appeals Panel has reversed the decision of a Hearing Officer who concluded that that a claimant had not shown good cause to obtain a second designated doctor’s examination. The Appeals Panel rendered a decision that the claimant was, under the facts of his case, entitled to a repeat examination by the designated doctor. In Appeals Panel Decision Number 160697-S, decided May 25, 2016, the Appeals Panel clarified how and when a party can request a repeat designated doctor’s examination every sixty days. The decision is designated as a “significant” decision.

The designated doctor had examined the claimant on December 23, 2015, for extent of injury, MMI, IR, and disability and return to work. The Appeals Panel observed that that the 60th day after the DD’s December 23, 2015, examination was Sunday, February 21, 2016, so pursuant to Rule 102.3 the 60th day is extended to the next working day, which is Monday, February 22, 2016.

On February 5, 2016, within 60 days of the date of the DD’s December 23, 2015, designated doctor examination, the claimant filed a DWC-32 on the issues of disability and return to work. On February 12, 2016, within 60 days of the DD’s December 23, 2015, designated doctor examination, the Division approved the claimant’s DWC-32 and scheduled a second designated doctor examination for March 7, 2016, for the issues of disability and return to work. The March 7, 2016, examination was more than 60 days after the DD’s first designated doctor examination on December 23, 2015. The carrier filed a motion for an expedited CCH to challenge the propriety of allowing the claimant an additional designated doctor examination.

The claimant argued that Section 408.0041(b) and Rule 127.1(c) specifically provide that the controlling date in the question of whether a requested designated doctor examination occurs within 60 days of a previous designated doctor examination is the date of the actual subsequent examination rather than the date the request is made. The carrier, on the other hand, contended that the controlling date is the date of the request rather than the date of the examination. The Appeals Panel agreed with the claimant.

Section 408.0041(b) specifically provides that “[a]n examination under this section may not be conducted more frequently than every 60 days. . . .” Rule 127.1(c) specifically provides that “[i]f a party submits a request for a designated doctor examination . . . that would require the [D]ivision to schedule an examination within 60 days of a previous examination of the injured employee. . . .” Section 408.0041(b) and Rule 127.1(c) both specifically discuss the date of the actual designated doctor examination rather than the date the request for a designated doctor examination is made. Therefore, we hold that the controlling date in determining whether a requested designated doctor examination takes place within 60 days of a previous designated doctor examination is the date of the actual subsequent designated doctor examination.

The Appeals Panel also noted that the period of disability in question in the second DD request was a different period of disability than the period that was considered by the DD in the first examination. The comment implies that a DD examination for a different period of disability may not necessarily need to be conducted more than 60 days after the previous examination. It also implies that a second DD examination that occurs more than 60 days after the first examination may consider the same periods of disability that were considered in the first DD’s examination. This second implication is very important because it sets up a situation in which a second DD (who may not always be the same doctor as the first DD) can reevaluate a period of disability that has previously been determined by the first DD. Moreover, if the second DD can consider the same period of disability again, there is nothing in the opinion to prevent a second DD from re-determining the MMI and IR issues again even though the reconsideration is contrary to the opinion of the first DD.