| (a) Authorization to receive documents. The designated
doctor is authorized under Labor Code §408.0041(c) to receive
the injured employee's confidential medical records and analyses of
the injured employee's medical condition, functional abilities, and
return-to-work opportunities without a signed release from the injured
employee to help resolve a dispute under this subchapter. The following
requirements apply to the designated doctor's receipt of medical records
and analyses:
(1) The treating doctor and insurance carrier must
provide the designated doctor copies of all the injured employee's
medical records in their possession relating to the medical condition
to be evaluated by the designated doctor.
(A) For subsequent examinations with the same designated
doctor, the treating doctor and insurance carrier must provide only
those medical records not previously sent.
(B) The cost of copying must be reimbursed in accordance
with §134.120 of this title (relating to Reimbursement for Medical
Documentation).
(2) The treating doctor and insurance carrier may also
send the designated doctor an analysis of the injured employee's medical
condition, functional abilities, and return-to-work opportunities.
(A) The analysis sent by any party may only cover the
injured employee's medical condition, functional abilities, and return-to-work
opportunities as provided in Labor Code §408.0041. The analysis
may include supporting information, such as videotaped activities
of the injured employee and marked copies of medical records.
(B) If the insurance carrier sends an analysis to the
designated doctor, the insurance carrier must send a copy to the treating
doctor, the injured employee, and the injured employee's representative,
if any.
(C) If the treating doctor sends an analysis to the
designated doctor, the treating doctor must send a copy to the insurance
carrier, the injured employee, and the injured employee's representative,
if any.
(3) The treating doctor and insurance carrier must
ensure that the designated doctor receives the required records and
analyses (if any) no later than three working days before the date
of the designated doctor examination.
(A) If the designated doctor has not received the medical
records or any part of them at least three working days before the
examination, the designated doctor must report this violation to the
division within one working day of not timely receiving the records.
(B) Once notified, the division will take action necessary
to ensure that the designated doctor receives the records.
(C) If the designated doctor does not receive the medical
records within one working day of the examination or does not have
sufficient time to review the late medical records before the examination,
the designated doctor must reschedule the examination to occur no
later than 21 days after receiving the records.
(b) Requirement to review information. Before examining
an injured employee, the designated doctor must review the injured
employee's medical records, including any analysis of the injured
employee's medical condition, functional abilities, and return to
work opportunities that the insurance carrier and treating doctor
provide in accordance with subsection (a) of this section, and any
materials the division submits to the doctor.
(1) The designated doctor must also review the injured
employee's medical condition, history, and any medical records the
injured employee provides and must perform a complete physical examination
of the injured employee.
(2) The designated doctor must give the medical records
reviewed the weight the designated doctor determines to be appropriate.
(c) Additional testing and referrals. The designated
doctor must perform additional testing when necessary to resolve the
issue in question. The designated doctor must also refer an injured
employee to other health care providers when the referral is necessary
to resolve the issue in question, and the designated doctor is not
qualified to fully resolve it.
(1) Any additional testing or referrals required for
the evaluation are not subject to preauthorization requirements.
(2) Payment for additional testing or referrals that
the designated doctor has determined are necessary under this subsection
must not be denied prospectively or retrospectively, regardless of
any potential disagreements about medical necessity, extent of injury,
or compensability.
(3) Any additional testing or referrals required for
the evaluation are subject to the requirements of §180.24 of
this title (relating to Financial Disclosure).
(4) Any additional testing or referrals required for
the evaluation of an injured employee under a certified workers' compensation
network under Insurance Code Chapter 1305 or a political subdivision
under Labor Code §504.053(b):
(A) are not required to use a provider in the same
network as the injured employee; and
(B) are not subject to the network or out-of-network
restrictions in Insurance Code §1305.101 (relating to Providing
or Arranging for Health Care).
(5) Any additional testing or referral examination
and the designated doctor's report must be completed within 15 working
days of the designated doctor's physical examination of the injured
employee unless the designated doctor receives division approval for
additional time before the 15 working days expire.
(6) If the injured employee fails or refuses to attend
the designated doctor's requested additional testing or referral examination
within 15 working days or within the additional time the division
approved, the designated doctor must complete the report based on
the designated doctor's examination of the injured employee, the medical
records received, and other information available to the doctor and
indicate the injured employee's failure or refusal to attend the testing
or referral examination in the report.
(d) MMI and impairment ratings. Any evaluation relating
to either MMI, an impairment rating, or both, must be conducted in
accordance with §130.1 of this title (relating to Certification
of Maximum Medical Improvement and Evaluation of Permanent Impairment).
For examinations conducted under this subsection on or after June
5, 2023, the designated doctor may provide multiple certifications
of MMI and impairment ratings only when directed by the division.
(e) Reports on MMI and impairment ratings. A designated
doctor who determines the injured employee has reached MMI, assigns
an impairment rating, or determines the injured employee has not reached
MMI, must complete and file a report as required by §130.1 and §130.3
of this title (relating to Certification of Maximum Medical Improvement
and Evaluation of Permanent Impairment by a Doctor Other than the
Treating Doctor).
(1) If the designated doctor provides multiple certifications
of MMI and impairment ratings, the designated doctor must file a Report
of Medical Evaluation under §130.1(d) of this title for each
assigned impairment rating and a designated doctor examination data
report under §127.220 of this title (relating to the Designated
Doctor Reports) for the doctor's extent of injury determination.
(2) The designated doctor must submit only one narrative
report required by §130.1(d)(1)(B) of this title on all assigned
impairment ratings and extent of injury findings.
(3) All designated doctor narrative reports submitted
under this subsection must comply with the requirements of §127.220(a)
of this title (relating to Designated Doctor Reports).
(f) Reports on return to work. A designated doctor
who examines an injured employee for any question relating to return
to work must complete a Work Status Report that complies with §129.5
of this title (relating to Work Status Reports) and a narrative report
that complies with the requirements of §127.220(a) of this title.
The designated doctor must file the work status report and the narrative
report together within seven working days of the date the designated
doctor examines the injured employee.
(1) The designated doctor must file the reports with
the treating doctor, the division, and the insurance carrier by fax
or electronic transmission.
(2) The designated doctor must file the reports with
the injured employee and the injured employee's representative (if
any) by fax or electronic transmission if the designated doctor has
a fax number or email for the recipient.
(3) If the designated doctor has no fax number or email
for a recipient, the designated doctor must send them the reports
by other verifiable means.
(g) Report on other issues. A designated doctor who
resolves questions on issues other than those listed in subsections
(d), (e), and (f) of this section must file a designated doctor examination
data report that complies with §127.220(c) of this title and
a narrative report that complies with §127.220(a) of this title
within seven working days of the date the designated doctor examines
the injured employee.
(1) The designated doctor must file these reports with
the treating doctor, the division, and the insurance carrier by fax
or electronic transmission.
(2) The designated doctor must provide these reports
to the injured employee and the injured employee's representative
(if any) by fax or electronic transmission if the designated doctor
has a fax number or email for the recipient.
(3) If no fax number or email is provided for the recipient,
the designated doctor must send the reports by other verifiable means.
(h) Presumptive weight. The designated doctor's report
is given presumptive weight on the issue or issues the designated
doctor was properly appointed to address, unless the preponderance
of the evidence is to the contrary.
(i) Payment of benefits during dispute. The insurance
carrier must pay all benefits, including medical benefits, in accordance
with the designated doctor's report for the issue or issues in dispute.
(1) If the designated doctor provides multiple certifications
of MMI and impairment ratings, the insurance carrier must pay benefits
based on the conditions to which the designated doctor determines
the compensable injury extends.
(2) For medical benefits, the insurance carrier has
21 days from receipt of the designated doctor's report to reprocess
all medical bills previously denied for reasons inconsistent with
the designated doctor's findings. By the end of this period, insurance
carriers must pay these medical bills in accordance with the Labor
Code and Chapters 133 and 134 of this title.
(3) The insurance carrier must pay all other benefits
no later than five days after receiving the report.
(j) Record retention. The designated doctor must maintain
accurate records for, at a minimum, five years from the anniversary
date of the date of the designated doctor's last examination of the
injured employee.
(1) This requirement does not reduce or replace any
other record retention requirements imposed on a designated doctor
by an appropriate licensing board.
(2) These records must include the injured employee's
medical records, any analysis the insurance carrier or treating doctor
submits (including supporting information), reports the designated
doctor generates as a result of the examination, and narratives the
insurance carrier and treating doctor provide, to reflect:
(A) the date and time of any designated doctor appointments
scheduled with an injured employee;
(B) the circumstances for a cancellation, no-show,
or other situation where the examination did not occur as initially
scheduled or rescheduled, and if applicable, documentation of the
agreement to reschedule the examination and the notice that the doctor
provided to the division, the injured employee's treating doctor,
and the insurance carrier within 24 hours of rescheduling an appointment;
(C) the date of the examination;
(D) the date the designated doctor received medical
records from the treating doctor or any other person;
(E) the date the designated doctor submitted the reports
described in subsections (d), (e), and (f) of this section to all
required parties and documentation that these reports were submitted
to the division, treating doctor, and insurance carrier by fax or
electronic transmission and to other required parties by verifiable
means;
(F) if applicable, the names of any referral health
care providers the designated doctor used, the dates of referral health
care provider appointments, and the reason the designated doctor referred
them; and
(G) if applicable, the date the doctor contacted the
division for assistance in getting medical records from the insurance
carrier or treating doctor.
(k) Dispute resolution. Parties may dispute any entitlement
to benefits affected by a designated doctor's report through the dispute
resolution processes outlined in Chapters 140-144 and 147 of this
title (relating to dispute resolution processes, proceedings, and
procedures).
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