State News : Texas

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We recently faced an issue where a Claimant was scheduled to attend a post-DD RME exam to evaluate MMI/IR. The Claimant showed up but then refused to submit to the exam unless his wife was permitted to video record the exam on her phone. The post-DD RME doctor wisely refused this demand, and Claimant left without undergoing the RME. The Carrier then terminated based on failure to attend the RME. Both the RME doctor and the Carrier correctly handled the situation in accordance with long-standing policy of the Division of Workers’ Compensation.

The policy preventing claimants from bringing witnesses to RMEs or recording the exams was laid out by the Texas Workers’ Compensation Commission (now, the Division of Workers’ Compensation) way back in 1996. In APD 960367, an injured employee had presented himself for the post-DD RME with a cassette recorder and video camera. The RME doctor refused to examine the injured employee under these circumstances and sent him away. While the Hearing Officer did not address the issue of whether the claimant had the right to record the examination, the Appeals Panel did stating:

"The statute and rule provide a more direct, obvious and effective way to ensure the integrity of the examination by authorizing, at carrier’s expense, the presence of the claimant’s treating doctor at the examination."

The Appeals Panel went on to say that, while the treating doctor’s attendance may not necessarily be the only way to establish how a post-DD RME examination is conducted, it is “the only one a claimant is entitled to under the statute and rule.”  (AP 960367).
The Appeals Panel also citedTWCC-Advisory 96-01, which directly addressed situations that had arisen where injured employees failed to submit to an RME examination because the doctor would not allow a witness other than the employee’s doctor to attend the examination or allow the examination to be video or audio taped.
The Division again cited the Act and Rule provisions that allow the employee to have the treating doctor present at the examination.  The Division went on to advise that, if the claimant wants to have any other person in the examination room, the claimant must obtain prior authorization from the examining doctor:
"[V]ideo cameras or other recording equipment will not be allowed in the examination without prior authorization from the examining doctor."
Finally, the Advisory states that a doctor’s decision not to allow a witness other than the employee’s doctor to attend the examination or allow the examination to be recorded isnot good cause for failure to submit to the examination. (TWCC-Advisory 96-01 emphasis supplied).  The Division went on to reiterate that, under Section 408.004(f), failure to submit to an RME examination without good cause may result in anadministrative penalty against the claimant.

In short, based on APD 960367 and Advisory 96-01, an injured worker may not record an RME and may not bring a witness to the exam (except the treating doctor). When scheduling RMEs, we recommend reminding your doctors of this now-decades old Division policy.

-  Copyright 2019, Dan Price,  Stone Loughlin & Swanson, LLP