Appeals Panel Rejects Hearing Officer’s Appointment of Second DD

The Appeals Panel has reversed the decision of a Hearing Officer who appointed a new designated doctor to re-examine the claimant on an extent of injury issue, even though the prior DD was still fully qualified to do so.

In Appeals Panel Decision Number 160228, decided March 24, 2016, a dispute arose concerning EOI, MMI and IR. The Division appointed a designated doctor to examine the claimant and prepare a report addressing the disputed issues in the case. Following that doctor’s examination and report, a CCH was held concerning the disputed issues. Subsequently, the Hearing Officer filed a Presiding Officer Directive causing the appointment of another doctor to serve as a second designated doctor to examine the claimant and provide a report addressing EOI, MMI and IR.

In his decision in this case, the Hearing Officer stated that he ordered the appointment of a second designated doctor because following the CCH he determined that the preponderance of the evidence was contrary to the first DD’s determination of EOI and that:

Rather than ask the Division to re-appoint Dr. [RL] to do the reexamination, based on the [h]earing [o]fficer’s finding on the [EOI], the [h]earing [o]fficer exercised his discretion and requested that a different [designated doctor] be appointed. . . . The [h]earing [o]fficer requested a different [designated doctor] because he was concerned that Dr. [RL] might take umbrage in being instructed that his opinion of extent was rejected. . . .

The carrier appealed, arguing that the Hearing Officer’s actions in the case raised, at least, the appearance of impropriety and that his determination violated the mandatory provisions of Division Rules 127.5(d) and 127.130(e). The Appeals Panel agreed, reversing the decision of the Hearing Officer and rendering a decision that the second DD was not properly appointed as designated doctor in accordance with Rule 127.1. The appeals panel wrote:

Rule 127.5(d) provides in part that if the Division has previously assigned a designated doctor to the claim at the time a request is made, the Division shall use that doctor again unless the Division has authorized or required the doctor to stop providing services on the claim in accordance with Rule 127.130. Rule 127.130(f) provides, in part, that the Division may authorize a designated doctor to stop providing services in a number of scenarios, including, if the doctor has ceased practicing, relocates or has asked the Division to defer his availability on the designated doctor. Rule 127.130(g) provides, in part, that the Division will prohibit a designated doctor from providing services on a claim in circumstances such as those where the doctor has failed to become recertified, no longer has appropriate qualification criteria to perform examinations on the claim, has a disqualifying association or has repeatedly failed to respond to Division requests for appointments, clarification or other inquiries regarding the claim. Rule 127.130(h) provides that the Division will prohibit a designated doctor from providing services on a claim if the designated doctor has had his doctor’s license revoked or suspended and the suspension has not been probated by an appropriate authority.

An order of an administrative body is presumed to be valid and the burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action. Herron v. City of Abilene, 528 S.W.2d 349 (Tex. Civ. App.-Eastland 1975, writ ref’d). In support of its contention that the Division erred in appointing Dr. JL as designated doctor in the case, the self-insured requested that the hearing officer take official notice of the Dispute Resolution Information System (DRIS) notes in this claim, which request was granted. The DRIS notes in this claim reveal no instances where Dr. RL requested authorization to stop providing designated doctor services, repeatedly failed to respond to Division requests or met any of the other criteria under Rule 127.130(f),(g) or (h) which would constitute an exception to the requirement in Rule 127.5(d) that if the Division has previously assigned a designated doctor to the claim at the time a request is made, the Division shall use that doctor again.

The Appeals Panel concluded that the Hearing Officer’s reason for ordering the appointment of a new designated doctor was not one of those authorized by Rules 127.5(d) and 127.130.