AP Concludes that Claimant Representative can Request DD Postponement

The appeals panel has reversed an ALJ’s decision and order and rendered a decision that a representative from the law firm hired to represent the injured worker properly requested the rescheduling of a DD appointment. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 191978, decided December 18, 2019.

The claimant was scheduled to attend a designated doctor’s appointment on June 27, 2019. The claimant testified that beginning two days before the scheduled appointment he developed a sore throat and migraine headaches. He testified that on June 26, 2019, he called his attorney’s office to inform them he was ill and would not be able to attend the designated doctor’s appointment scheduled for the next day.

A legal assistant with the claimant’s attorney’s office called the office of Dr. S, as well as the DD’s scheduling company, on June 26, 2019 to inform them of the claimant’s illness and his inability to attend the appointment for June 27, 2019. The note further documented that the DD would not be able to reschedule an appointment within 21 days. A new designated doctor was appointed and the claimant attended the examination with the subsequently appointed designated doctor on August 21, 2019.

The ALJ stated on the record that he believed the claimant was ill on June 26, 2019. In his discussion, the ALJ stated that the manner in which the claimant attempted to reschedule the examination was not consistent with the Division rules. The ALJ wrote that Rule 127.25(c) requires the claimant himself should contact the designated doctor, not his attorney. Because the claimant did not attempt himself to contact the designated doctor, the ALJ reasoned that the claimant did not properly request that the DD appointment be rescheduled.

The appeals panel reversed the ALJ’s decision, writing:

Section 401.011(37) defines representative, in part, as a person, including an attorney, authorized by the commissioner to assist or represent an employee in a matter arising under the 1989 Act that relates to the payment of compensation. We cannot conclude that, when the claimant has a representative, he or she is required to personally contact the designated doctor to reschedule an appointment before good cause can be found. Accordingly, we reverse the ALJ’s determination that the claimant did not have good cause for failing to submit to the designated doctor’s examination on June 27, 2019, and we render a new decision that the claimant did have good cause for failing to submit to the designated doctor’s examination on June 27, 2019. Since a new decision has been rendered that the claimant had good cause for failing to submit to the designated doctor’s examination on June 27, 2019, we also reverse the ALJ’s determination that the claimant is not entitled to TIBs from July 2 through August 20, 191978.doc 3 2019, and render a new decision that the claimant is entitled to TIBs from July 2 through August 20, 2019.