1. (a) When a request is made by the insurance carrier (carrier), or the commission, for a medical examination, the commission shall determine if an examination should be ordered. The commission shall issue an order granting or denying the request within seven days of the date the request is received by the commission. A copy of the order shall be sent to the employee, the employee's representative (if any), and the carrier. The order shall explain the potential 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 commission's formal order.
2. (b) All examinations ordered must be scheduled to occur within 30 days after receipt of order, 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 hours 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 granted by the commission's field office. In this event, the examining doctor shall notify the carrier and the 10 days notice requirement does not apply to a rescheduled examination.

3. (c) The employee's treating doctor, chosen under the Texas Workers' Compensation Act (the Act), Texas Labor Code, §408.022, 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. (1) the required medical examination (RME) doctor agrees to the rescheduling; or
   2. (2) the examination was canceled by the RME doctor.
4. (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.
5. (e) An RME doctor who, subsequent to a designated doctor's examination, determines the employee has reached maximum medical improvement 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 according to applicable rules for consultant medical reports as described in §133.104 of this title (relating to Consultant Medical Reports) and shall be sent to the carrier, employee, the treating doctor, and commission no later than 10 days after the examination.
6. (f) An RME doctor who 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 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.
7. (g) A doctor who conducts an examination solely under the authority of an order issued according to this rule shall not be considered a designated doctor under the Texas 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.

8. (h) A carrier may suspend temporary income benefits (TIBs) if an employee, without good cause, fails to attend an RME.

   1. (1) In the absence of a finding by the commission to the contrary, a carrier may presume that the employee did not have good cause to fail to attend the examination if:

      1. (A) by the day the examination was originally scheduled to occur the employee has both:

         1. (i) failed to submit to the examination; and
         2. (ii) failed to contact the RME doctor's office to reschedule the examination to occur no later than the later of the seventh day after the originally scheduled examination date or the doctor's first available appointment date; or
      2. (B) after rescheduling the examination as provided in subsection (h)(1)(A)(ii) of this section, the employee failed to submit to the rescheduled examination.

   2. (2) If, after the carrier suspends TIBs pursuant to this section, the employee submits to the required medical examination, the carrier shall reinitiate temporary income benefits as of the date the employee submitted to the examination. The re-initiation shall occur no later than the seventh day following the latter of:

      1. (A) the date the carrier was notified that the employee had attended the examination; or
      2. (B) the date that the carrier was notified that the commission found that the employee had good cause for not attending the examination.
   3. (3) An employee is not entitled to TIBs for a period during which the carrier suspended benefits pursuant to this section unless the employee later submits to the examination and the commission finds or the carrier determines that the employee had good cause to fail to attend the appointment.
9. (i) 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 a Class D administrative penalty under the Act, §408.004(f). 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 and shall not have benefits suspended for failing to attend that particular appointment.
10. (j) The commission shall order 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 by §134.6 of this title (relating to Travel Expenses).

Source Note:The provisions of this §126.6 adopted to be effective January 30, 1991, 16 TexReg 313; amended to be effective January 1, 1998, 22 TexReg 11693; amended to be effective December 26, 1999, 24 TexReg 11399; amended to be effective January 2, 2002, 26 TexReg 10899.