State News : Texas

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It is a generally recognized fact that the statute and Division rules provide insurance carriers

an absolute right to an RME to address an opinion of a designated doctor. Tex. Lab. Code

Section 408.0041(f); 28 Tex. Admin. Code Section 126.5. However, in some cases, Hearing

Officers are declining to keep the record open to allow opportunity for the insurance carrier

to obtain a post‐DD RME to address a newly amended DD report (received in response to a

Hearing Officer’s request for clarification made in the course of an ongoing proceeding), on the

basis that the carrier “failed to use due diligence.”

For example, a recent Appeals Panel decision addressed a situation in which the self‐insured

had tried to obtain an RME addressing a DD’s amended report. The Hearing Officer has sent

the DD a letter of clarification, which led to the DD re‐examining the Claimant and amending

his prior report with respect to MMI/IR. The Hearing Officer gave the parties the opportunity

to respond to the DD’s report, and the self‐insured responded and requested additional time

so that an RME doctor could be obtained. The Hearing Officer denied the self‐insured’s request

to hold the record open for an RME report, citing that the self‐insured “failed to exercise due

diligence in seeking and obtaining an alternate IR although the self‐insured was fully aware

that the designated doctor had not rated the entire compensable injury prior to the CCH.” The

self‐insured appealed, contending it was denied procedural due process because it was not

granted additional time to obtain an RME doctor to opine on the DD’s amended report. The

Appeals Panel found the Hearing Officer did not abuse his/her discretion in denying the selfinsured’s

request to leave the record open to obtain the RME. Appeals Panel Decision (APD)

140722, decided June 5, 2014.

We could not find any “due diligence standard” in the rules or statute allowing for post‐DD

RMEs. We know, because we looked. Nevertheless, we must live with the cards we are dealt,

and are including this case in this month’s newsletter as a cautionary tale: in any case in which

you believe a post‐DD RME will be necessary or helpful to the carrier’s case, it’s best to

proceed with the request as soon as possible to ensure the carrier’s statutory right to an RME

is preserved. This is always good practice, regardless.