SECTION 127.1. Requesting Designated Doctor Examinations

(a) Initiating an examination. At the request of the insurance carrier, an injured employee, the injured employee's representative, or on its own motion, the division may order a medical examination by a designated doctor to resolve questions about:

(1) the impairment caused by the injured employee's compensable injury;

(2) the attainment of maximum medical improvement (MMI);

(3) the extent of the injured employee's compensable injury;

(4) whether the injured employee's disability is a direct result of the work-related injury;

(5) the ability of the injured employee to return to work; or

(6) issues similar to those described by paragraphs (1) - (5) of this subsection.

(b) Requirements for a request. To request a designated doctor examination, a requester must:

(1) provide a specific reason for the examination;

(2) report the injured employee's current diagnosis or diagnoses and body part or body parts affected by the injury;

(3) provide general information about the identity of the requester, injured employee, treating doctor, and insurance carrier;

(4) identify the workers' compensation health care network certified under Insurance Code Chapter 1305 through which the injured employee is receiving treatment, if applicable;

(5) identify whether the claim involves medical benefits provided through a political subdivision under Labor Code §504.053(b)(2) and the name of the health plan, if applicable;

(6) submit the request on the form prescribed by the division under this section. A copy of the prescribed form is:

(A) on the division's website at www.tdi.texas.gov/wc; or

(B) at the division's headquarters in Austin, Texas, or any division field office location;

(7) submit the request to the division and a copy of the request to each party listed in subsection (a) of this section who did not request the designated doctor examination;

(8) provide all information listed in subparagraphs (A) - (G) of this paragraph that applies to the type of examination the requester seeks:

(A) if the requester seeks an examination on the attainment of MMI, include the statutory date of MMI, if any;

(B) if the requester seeks an examination on the impairment rating of the injured employee, include the date of MMI that has been determined to be valid by a final decision of the division or a court or by agreement of the parties, if any;

(C) if the requester seeks an examination on the extent of the compensable injury, include a description of the accident or incident that caused the claimed injury and a list of all injuries in question;

(D) if the requester seeks an examination on whether the injured employee's disability is a direct result of the work-related injury, include the beginning and ending dates for the claimed periods of disability and state if the injured employee is either not working or is earning less than pre-injury wages as defined by Labor Code §401.011(16);

(E) if the requester seeks an examination on the injured employee's ability to return to work in any capacity and the activities the injured employee can perform, include the beginning and ending dates for the periods to be addressed. If no dates are included, the designated doctor must examine the injured employee's work status as of the date of the examination;

(F) if the requester seeks an examination to determine whether an injured employee entitled to supplemental income benefits may return to work in any capacity for the identified period, include the beginning and ending dates for the qualifying periods to be addressed and whether this period involves the ninth quarter or a subsequent quarter of supplemental income benefits;

(G) if the requester seeks an examination on topics under subsection (a)(6) of this section, specify the issue in sufficient detail for the designated doctor to identify and answer the questions; and

(9) provide a signature to attest that every reasonable effort has been made to ensure the accuracy and completeness of the information in the request.

(c) Scheduling an examination within 60 days. The division will not schedule a designated doctor examination within 60 days of the most recent designated doctor examination absent a showing of good cause.

(1) Good cause requires the requester to show that the requested examination is reasonably necessary to resolve the submitted questions and that it will affect entitlement to benefits.

(2) If the requester already asked for an examination on the claim, they must also show that the submitted questions could not reasonably have been included in the previous examination.

(d) Denial of a request. The division will determine whether good cause exists on a case-by-case basis. The division will deny a request for a designated doctor examination and provide a written explanation for the denial to the requester if:

(1) the request does not comply with any of the requirements of subsection (b) or (c) of this section;

(2) the request would require the division to schedule an examination that violates Labor Code §§408.0041, 408.123, or 408.151;

(3) there is an unresolved dispute about compensability reported under §124.2 of this title (relating to Insurance Carrier Reporting and Notification Requirements); or

(4) the request lacks any legal or factual basis that would reasonably merit approval.

(e) Examination ordered during a dispute. During a dispute on the compensability of a claim as a whole, if a division administrative law judge or benefit review officer determines that an expert medical opinion would be necessary to resolve a dispute about whether the claimed injury resulted from the claimed incident, the administrative law judge or benefit review officer may order the injured employee to attend a designated doctor examination to address that issue.

(f) Disputes about designated doctor requests. The dispute resolution processes in Chapters 140 - 144 and 147 of this title (relating to dispute resolution processes, proceedings, and procedures) govern disputes about designated doctor requests.

(1) The insurance carrier, an injured employee, or the injured employee's representative may dispute the division's approval or denial of a designated doctor examination request.

(2) Until the division has either approved or denied the request, a party may not dispute the designated doctor examination request itself or the accuracy of any information on the request.

(3) To dispute an approved or denied request for a designated doctor examination, a party may seek an expedited contested case hearing under §140.3 of this title (relating to Expedited Proceedings). The party must file the request within three working days of receiving the order under §127.5(b) of this title (relating to Scheduling Designated Doctor Appointments).

(4) If the division receives and approves a timely request for expedited proceedings to dispute a designated doctor examination, the division will stay the disputed examination pending the outcome of the expedited contested case hearing.

Source Note: The provisions of this §127.1 adopted to be effective February 1, 2011, 35 TexReg 11324; amended to be effective September 1, 2012, 37 TexReg 5422; amended to be effective November 4, 2018, 43 TexReg 7149; amended to be effective April 30, 2023, 48 TexReg 2123