AP Reverses ALJ Who Refused its Request for Post-DD RME
The Appeals Panel has reversed an ALJ’s Decision and Order where the judge ordered the appointment of a new DD during the course of proceedings and failed to permit the carrier to obtain a post-DD RME to evaluate that examination. The appeal is posted in Texas Division of Workers’ Compensation Appeals Panel Decision No. 182111, decided November 20, 2018.
The Division scheduled a CCH on the issues of MMI, IR, and finality under the 90-day rule. During the CCH proceeding, the ALJ issued a Presiding Officer’s Directive to the DD, but the DD was no longer qualified to serve as a DD. Therefore, a new doctor was appointed to serve as the DD on the case.
The ALJ provided the parties with the second DD’s MMI/IR report on August 8, 2018, and gave the parties until the close of business on August 15, 2018, to comment or respond to that report before he closed the record. The carrier responded on August 13, 2018, and requested a continuance so the claimant could be evaluated by a post-designated doctor RME doctor. The carrier had not previously requested a post-designated doctor RME. The ALJ noted in the discussion portion of the Decision that the carrier did not show good cause for its request and he closed the record on August 15, 2018.
The ALJ sided with the claimant on the disputed issues. The carrier appealed, arguing that the ALJ improperly deprived it of its right to a post-DD RME conducted by a doctor of its choice. The Appeals Panel agreed with the carrier on appeal.
Section 408.0041(f) provides, in part, that if an insurance carrier is not satisfied with the opinion rendered by a designated doctor under this section, the carrier may request the commissioner to order an employee to attend an examination by a doctor selected by the insurance carrier. Carriers are entitled to a post-designated doctor RME for the purpose of evaluating a designated doctor’s determination on the issues listed under Section 408.0041 (which include MMI and IR) in accordance with Rule 126.5(c)(2).
The carrier contended that the ALJ abused his discretion in denying its request to reconvene the CCH to allow a post-designated doctor RME. Rulings on continuances are reviewed under an abuse-of-discretion standard and the Appeals Panel will not disturb an ALJ’s ruling on a continuance absent an abuse of discretion. Hernandez v. Hernandez, 611 S.W.2d 732 (Tex. Civ. App.-San Antonio 1981, no writ). In determining whether there has been an abuse of discretion, the Appeals Panel looks to see whether the ALJ acted without reference to any guiding rules or principles. Appeals Panel Decision (APD) 043000, decided January 12, 2005; APD 121647, decided October 24, 2012; Morrow v. H.E.B., Inc., 714 S.W.2d 297 (Tex. 1986).
As noted above, the carrier had not requested a post-designated doctor RME in this case until the ALJ, on his own motion after the CCH, designated a new designated doctor to examine the claimant for purposes of MMI and IR. The carrier promptly requested a post-designated doctor RME upon receipt of the new designated doctor’s report. Accordingly, we hold that under the facts of this case the ALJ abused his discretion in denying the carrier’s request for continuance to allow a post-designated doctor RME.
The Appeals Panel remanded the case to the ALJ and ordered him to allow a continuance for a post-designated doctor RME. The ALJ was instructed to give the parties an opportunity to respond to the DD’s and post-DD RME doctor’s reports. The ALJ was then ordered to determine the issues of MMI and IR consistent with the Appeals Panel’s Decision.
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