State News : Texas

Hey, Speaking of Rule 127.130... – The claimant suffered an eye injury in January 2011, which he
alleged aggravated his pre-existing glaucoma. The designated doctor assigned to examine his eye
condition was a plastic surgeon, not an ophthalmologist, and the claimant argued that as such he
lacked the experience and qualifications necessary to evaluate an eye condition. To support his
argument, the claimant relied on Rule 127.130(b)(6), which states, “To examine injuries and
diagnoses relating to the eyes, including the eye and adnexal structures of the eye, a designated
doctor must be a licensed medical doctor, doctor of osteopathy, or doctor of optometry.” The Court
of Appeals held that Rule 127.130(b)(6) did not apply in this case because that provision pertains
only to injuries sustained on or after January 1, 2013. However, the Court clarified that even if Rule
127.130(b)(6) did apply, the designated doctor, as a licensed medical doctor, would not be
automatically precluded from evaluating an eye injury merely because of his specialty as a plastic
surgeon. Joe Ballard v. Arch Insurance Company and Transforce, Inc., Houston Court of Appeals
– 14th Dist. 2015 WL 6560531.

Errant Errand – The injured worker died as a result of injuries sustained in a motor vehicle accident
while out of town on a business trip. For the duration of his trip, he was under “continuous
coverage”, which provides round the clock coverage for employees sent out of town overnight on
business by an employer. After work one night, the decedent and his son agreed to meet for dinner,
but the pair chose a restaurant twelve miles from the employee’s Dallas hotel. The worker was
injured in a motor vehicle accident occurred on the way to the restaurant. The Hearing Officer and
the Appeals Panel concurred that the decedent remained in the course and scope of his employment
under the continuous coverage doctrine and had not substantially deviated from the business purpose
of the trip. The trial court granted the carrier’s motion for summary judgment that the worker was
not in the course and scope of his employment at the time of injury, and the Court of Appeals affirmed the trial court’s judgment, stating that the travel at the time of the accident was to
accommodate a personal visit and represented a distinct departure from the course and scope of his
employment for a personal errand. Barbara Pinkus v. Hartford Casualty Insurance Company,
Dallas Court of Appeals – 2015 WL 6751059.

Appointment With Disappointment– A claimant followed her attorney’s (terrible) advice not to
appear for a designated doctor appointment on June 3, 2014. The Hearing Officer determined that
such counsel constituted good cause for her failure to attend. The Appeals Panel reversed, stating
that “bad advice received from one’s own attorney is not an excuse for the failure to comply with
Division requirements.” The designated doctor examination was reset to October 7, 2014, then
rescheduled upon request of the designated doctor to November 4, 2014 with a different doctor. The
claimant attended that exam. The claimant then argued that the insurance carrier should begin
payment of TIBs as of the date of the first scheduled DD exam, October 7, 2014 since it was not her
fault the exam was delayed until November 4, 2014. However, the Appeals Panel clarified that Rule
127.25(a) requires actual attendance at the designated doctor examination and does not allow for the
suspension of TIBs based on a delay in the subsequent appointment of a designated doctor
examination. Therefore, the carrier was permitted to suspend TIBs through November 4, 2014, the
date the claimant actually submitted to her designated doctor exam. Appeal No. 151718