28 Tex. Admin. Code § 126.6 - Required Medical Examination
(a) When a request
is made by the insurance carrier (carrier), or the Division, for a medical
examination, the Division shall determine if an examination should occur. The
Division shall grant or deny the request within seven days of the date the
request is received by the Division. A copy of the action of the Division shall
be sent to the injured employee (employee), the employee's representative (if
any), and the carrier. The notice shall explain the circumstances under which
an employee may experience loss of benefits and penalty exposure for failing to
attend the examination as well as the need to reschedule a missed examination.
An agreement between the parties for an examination under §
126.5 of this title (relating to
Entitlement and Procedure for Requesting Required Medical Examinations) that
the carrier has a right to has the same effect as the action of the
Division.
(b) All examinations
required under this section must be scheduled to occur within 30 days after
receipt of the notice, with at least 10 days notice to the employee and the
employee's representative (if any). If a scheduling conflict exists, the
employee and the doctor shall contact each other. The doctor or the employee
who has the scheduling conflict must make contact at least 24 hours prior to
the appointment. The 24-hour requirement will be waived in an emergency
situation (such as a death in the immediate family or a medical emergency). The
rescheduled examination shall be set for a date within seven days of the
originally scheduled examination, unless an extension is agreed upon by the
employee and doctor. The extension may not be to a date later than the 30th day
after the originally scheduled examination. In this event, the examining doctor
shall notify the carrier and the 10 days notice requirement does not apply to a
rescheduled examination.
(c) The
employee's treating doctor may be present at an examination scheduled with a
doctor selected by the carrier. The employee's treating doctor may observe the
conduct of the examination, and may consult with the examining doctor about the
course of the employee's treatment. The employee's treating doctor shall not
otherwise participate in, impede, or advise the employee not to cooperate with
the examination. In initially scheduling the examination, a reasonable attempt
shall be made to accommodate the schedule of the treating doctor if the
employee wants the treating doctor to attend the examination and the treating
doctor is willing to do so. However, once an examination is scheduled based on
the treating doctor's availability, the examination shall not be delayed,
canceled, or rescheduled due to the treating doctor's scheduling conflicts
unless:
(1) the required medical examination
(RME) doctor agrees to the rescheduling; or
(2) the examination was canceled by the RME
doctor.
(d) If the RME
doctor, selected by a carrier, refuses to allow the treating doctor to attend
the examination, the carrier shall cancel the appointment and request that
another doctor be approved for the RME. If reasonable notice is not provided to
the employee and the employee's representative (if any), the carrier shall be
liable for any reasonable travel expenses incurred by the employee and for the
payment for the treating doctor's attendance at a refused appointment. This
subsection shall not apply to situations where the treating doctor is not able
to attend the examination due to any form of scheduling conflict.
(e) An RME doctor, selected by the carrier or
the Division, who conducts an examination regarding the appropriateness of the
health care received by the employee, shall complete a medical report that
includes objective findings of the examination and an analysis that explains
how the medical condition and objective findings lead to the conclusion reached
by the doctor. In addition, the RME doctor shall file the report with the
insurance carrier by facsimile or electronic transmission, and shall file the
report with the employee and the employee's representative (if any) by
facsimile or by electronic transmission if the RME doctor has been provided
with a facsimile number or email address for the recipient, otherwise, the RME
doctor shall send the report by other verifiable means. Written notice is
verifiable when it is provided from any source in a manner that reasonably
confirms delivery to the party. This may include an acknowledged receipt by the
injured employee or insurance carrier, a statement of personal delivery,
confirmed by e-mail, confirmed delivery by facsimile, or some other confirmed
delivery to the home or business address. The goal of this requirement is not
to regulate how a system participant makes delivery of a report or other
information to another system participant, but to ensure that the system
participant filing the report or providing the information has verifiable proof
that it was delivered.
(f) An RME
doctor who, subsequent to a designated doctor's examination, determines the
employee has reached maximum medical improvement (MMI) or who assigns an
impairment rating, shall complete and file the report as required by §
130.1 and §
130.3 of this title (relating to
Certification of Maximum Medical Improvement and Evaluation of Permanent
Impairment and Certification of Maximum Medical Improvement and Evaluation of
Permanent Impairment by Doctor Other than the Treating Doctor). Otherwise, the
RME doctor shall not certify MMI or assign an impairment rating. If the RME
doctor disagrees with the designated doctor's opinion regarding MMI, the RME
doctor's report shall explain why the RME doctor believes the designated doctor
was mistaken or why the designated doctor's opinion is no longer valid. Other
reports shall be completed in the form and manner prescribed by the Division
and shall be sent to the carrier, the employee, the employee's representative,
if any, the treating doctor, and Division no later than 10 days after the
examination.
(g) An RME doctor who,
subsequent to a designated doctor's examination, determines that the employee
can return to work immediately with or without restrictions is required to file
a Work Status Report, as described in §
129.5 of this title (relating to
Work Status Reports) within seven days of the date of the examination of the
employee. This report shall be filed with the treating doctor and the carrier
by facsimile or electronic transmission. In addition, the RME doctor shall file
the report with the employee and the employee's representative (if any) by
facsimile or by electronic transmission if the RME doctor has been provided
with a facsimile number or email address for the recipient, otherwise, the RME
doctor shall send the report by other verifiable means.
(h) An RME doctor who, subsequent to a
designated doctor's examination, addresses issues other than those listed in
subsections (f) and (g) of this section, shall file a narrative report within
seven days of the date of the examination of the employee. This report shall be
filed with the treating doctor and the carrier by facsimile or electronic
transmission. In addition, the RME doctor shall file the report with the
employee and the employee's representative (if any) by facsimile or by
electronic transmission if the RME doctor has been provided with a facsimile
number or email address for the recipient, otherwise, the RME doctor shall send
the report by other verifiable means.
(i) A doctor who conducts an examination
solely under the authority of this rule shall not be considered a designated
doctor under the Labor Code §
408.0041, § 408.122 or §
408.125. Examinations with a designated doctor are not subject to any
limitations under the provisions for RMEs.
(j) A carrier may suspend temporary income
benefits (TIBs) if an employee, without good cause, fails to attend an RME
required pursuant to Labor Code §
408.0041(f).
(1) In the absence of a finding by the
Division to the contrary, a carrier may presume that the employee did not have
good cause to fail to attend the examination if by the day the examination was
originally scheduled to occur the employee has both:
(A) failed to submit to the examination;
and
(B) failed to contact the RME
doctor's office to reschedule the examination in accordance with subsection (b)
of this section.
(2) If,
after the carrier suspends TIBs pursuant to this section, the employee contacts
the RME doctor to reschedule the examination, the RME doctor shall reschedule
the examination as soon as possible, but not later than the 30th day after the
employee contacted the doctor. The insurance carrier shall re-initiate TIBs
effective as of the date the employee submitted to the examination. The
re-initiation of TIBs shall occur no later than the seventh day following:
(A) the date the carrier was notified that
the employee attended the examination; or
(B) the date that the carrier was notified
that the Division found that the employee had good cause for not attending the
examination.
(3) An
employee is not entitled to TIBs for a period during which the carrier was
entitled to suspend benefits pursuant to this section unless the employee later
submits to the examination and the Division finds or the carrier determines
that the employee had good cause to fail to attend the appointment.
(k) An employee who, without good
cause, fails or refuses to appear at the time scheduled for an examination
authorized by this section may be assessed an administrative penalty under
Labor Code §
408.004 and §
408.0041. An employee who
fails to submit to an examination at the carrier's request when the carrier
selected doctor refuses to allow the treating doctor to attend the examination
or when the RME doctor cancels the examination does not commit an
administrative violation.
(l) The
Division shall require examinations requiring travel of up to 75 miles from the
employee's residence, unless the treating doctor certifies that such travel may
be harmful to the employee's recovery. Travel over 75 miles may be authorized
if good cause exists to support such travel. The carrier shall pay reasonable
travel expenses incurred by the employee in submitting to any required medical
examination, as specified in Chapter 134 of this title (relating to
Benefits--Guidelines For Medical Service, Charges, and Payments).
(m) This section is effective on January 1,
2007 and a request for an RME under this section may be made on or after
January 1, 2007.
Notes
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