1. (a) If 104 weeks have passed since the date that temporary income benefits began to accrue, maximum medical improvement has, by definition, been reached and this section does not apply.

2. (b) If there has not been a certification from a doctor that an injured employee has reached maximum medical improvement (MMI), an insurance carrier may follow the procedure outlined in this section to resolve whether an employee has reached MMI. The carrier shall presume, only to invoke this procedure, that an employee has reached MMI, if:

   1. (1) the compensable injury is not an occupational disease other than a repetitive trauma injury;
   2. (2) the treating doctor has examined the employee at least twice for the same compensable injury;
   3. (3) the number of days between the two of the examinations is greater than 60 except for laminectomy, spinal fusion, and diskectomy for which the number of days between two of the exams is greater than 90;
   4. (4) the two examinations referenced in this subsection were held after the date on which temporary income benefits began to accrue; and
   5. (5) the treating doctor's medical reports, as filed with the insurance carrier, for all examinations and reports conducted after the first of the two examinations indicate a lack of medical improvement in the employee's condition from the first of the two examinations.
3. (c) The insurance carrier may also follow the procedure outlined in this section if it appears that the employee has failed to attend two or more consecutively scheduled health care appointments.
4. (d) The insurance carrier shall not suspend temporary income benefits based on this section, unless a benefit review officer issues an interlocutory order granting suspension of benefits.
5. (e) An insurance carrier that identifies an apparent lack of medical improvement, as set forth in subsection (b) of this section, or an apparent failure to attend health care appointments by an employee may notify the commission in writing, and request that a medical status request letter be sent by the commission to the treating doctor.

6. (f) A medical evaluation report form, described under §130.1 of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment), shall be provided by the commission, no later than five days from the insurance carrier's request, along with the medical status request letter. The letter shall notify the doctor of the requirements of the Texas Workers' Compensation Act (the Act), §1.03(32). In addition, the letter shall request the treating doctor to answer the following questions:

   1. (1) whether the employee has reached maximum medical improvement; and
   2. (2) whether the employee has failed to attend two or more consecutively scheduled health care appointments, and the dates of the missed appointments.
7. (g) The treating doctor shall complete and file the medical evaluation report as required by §130.1 of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment), no later than seven days after receiving the request from the commission.
8. (h) If the treating doctor fails to respond as required by this rule, or if the treating doctor certifies that the employee has not reached MMI, the carrier may request a benefit review conference, on the ground of the apparent lack of improvement in medical condition or failure to attend health care appointments.

9. (i) The insurance carrier shall include with its request for a benefit review conference the following:

   1. (1) a request for a required medical examination as provided under the Act, §4.16. Section 126.5 of this title (relating to Procedure for Requesting Required Medical Examinations) and §126.6 of this title (relating to Order for Required Medical Examinations) apply, except that the employee may not reschedule the examination except for an exceptional circumstance. The rescheduled appointment shall be within 72 hours of the originally scheduled appointment; or
   2. (2) a request for a designated doctor to be appointed by the commission if an agreement with the employee is not reached. The request shall indicate whether or not an agreement has been reached with the employee for selection of the designated doctor. Section 130.6 of this title (relating to Designated Doctor: General Provisions) shall apply, except that the examination by the designated doctor shall be held no later than 14 days after the doctor is agreed to by the parties or appointed by the commission, whichever is earlier. The employee may not reschedule the examination, except for an exceptional circumstance. The rescheduled appointment shall be within 72 hours of the originally scheduled appointment.
   3. (3) For purposes of rescheduling an appointment, an "exceptional circumstance" includes, but is not limited to, a death in the employee's immediate family.
10. (j) An agreement on a designated doctor to resolve a dispute over MMI under this section shall also include an agreement on the same doctor for assigning an impairment rating, if any.
11. (k) The commission shall order the requested required medical examination under the Act, §4.16, or direct an examination by a designated doctor, concurrent with the scheduling of an expedited benefit review conference, if appropriate, as provided by §141.4 of this title (relating to Requesting and Setting a Benefit Review Conference).

12. (l) The benefit review conference may be canceled by the commission, without prejudice, if:

    1. (1) the examining doctor ordered under subsection (i) of this section certifies that the employee has not reached MMI; or
    2. (2) by agreement of the parties, when a designated doctor certifies that an employee has reached MMI, in which case the designated doctor shall assign an impairment rating, if any, and complete the medical evaluation report pursuant to §130.1 of this title (relating to Reports of Medical Evaluation: Maximum Medical Improvement and Permanent Impairment). The carrier shall pay benefits based on the report of the designated doctor.
13. (m) If a benefit review conference is held, and there is no signed settlement or agreement on the dispute on MMI, the benefit review officer shall presume that the finding of a designated doctor is correct, unless there is information, statements, or medical reports that clearly and convincingly rebut a determination of MMI. If a doctor ordered pursuant to §4.16 finds that MMI has been reached, and this finding is disputed, the benefit review officer shall direct an examination by a designated doctor.

14. (n) The benefit review officer shall enter an interlocutory order directing the insurance carrier to suspend temporary income benefits, and begin payment of impairment income benefits, if any, if the benefit review officer's recommendations state that:

    1. (1) the determination of the designated doctor has not been clearly and convincingly rebutted by information, statements, or medical reports; or
    2. (2) there has been a lack of improvement in the employee's medical condition, the certification of MMI by the doctor requested under §4.16 is disputed, and a designated doctor is directed to resolve the dispute; or
    3. (3) the employee has missed two or more consecutively scheduled health care appointments or has otherwise abandoned treatment without good cause.

Source Note:The provisions of this §130.4 adopted to be effective March 8, 1991, 16 TexReg 1296.