I received an interesting decision this week regarding a claimant’s failure to attend her designated doctor appointment.  The appointment was scheduled for August 20, 2009.  My client missed the appointment.  She is a young woman, who lives with her Dad.  She testified that she does not have a car, and neither of her parents have a car.  She depends on friends and public transportation to get around.  Her designated doctor appointment was scheduled in Arlington, a city without public transportation.  She lined up several rides that day and everybody let her down…all the rides fell through.  So, she missed her appointment.

 

Rule 126.7(g) indicates that if a claimant misses a designated doctor’s appointment, the workers’ compensation insurance carrier can stop paying temporary income benefits, and the claimant will lose entitlement to temporary income benefits, unless the insurance carrier or the Division of Workers’ Compensation finds that the claimant had “good cause” for her failure to attend the appointment.  This rule exists to force claimants to comply with the Division’s Order to attend a designated doctor examination.

 

Good Cause is typically some kind of emergency or situation that can’t be controlled that results in a claimant’s failure to do something.  For instance, if a claimant had a heart attack and was rushed to the hospital just prior to the designated doctor exam, then she would have good cause for failing to attend the appointment.  The question in this case was whether a lack of transportation would be enough to support a finding of good cause.  The question had not been answered before, at least in any way that had been published for others to know.

 

The judge ruled that the lack of transportation was good cause for failing to attend the appointment.  However, Rule 126.7(f) indicates that if a claimant is going to miss the appointment, she has to call the designated doctor and reschedule the appointment.  My client did not do this until September 8, 2009, more than two weeks after the scheduled exam.  So, while a lack of transportation would have been good cause in this instance, the claimant did not have good cause for failing to pick up the phone and call the designated doctor to get the exam rescheduled for over two weeks.

 

That is a pretty straightforward finding.  And the claimant would have lost if that was the only argument we had.  But in an interesting turn, the claimant prevailed.

 

When we got to the contested case hearing, neither party had a copy of the letter notifying the claimant of the appointment with the designated doctor.  The first thing we did at the CCH was ask the Hearing Officer to look up the internal computer file notes on this claim and tell us when the Division mailed out the notice of the designated doctor appointment.  The file notes indicated that while the letter notifying the claimant of the appointment was printed on August 6, 2009, it was not mailed until August 7, 2009.  This is significant because Rule 126.7(e) requires that a claimant be given 14 days notice of a designated doctor appointment.   Had the letter in this case been mailed on the day it was printed, which was the day the appointment was made, then the notice to the claimant would have been timely.  By mailing the letter to the claimant the next day, the notice only allowed 13 days notice to the claimant.  This violated the Rule.

 

The judge ruled that “the notice was inadequate.”  The carrier still argued that while the notice may be inadequate, the Rule does not provide a remedy.  But the judge ruled that the language of the Rule requires adequate notice and because it was inadequate, the claimant had good cause for failing to attend the designated doctor appointment.

 

The result of the case is that the insurance company has to pay the claimant the temporary income benefits that had been withheld from her for failing to attend the designated doctor appointment.

 

The practice lesson learned here is that just having the notice of the designated doctor appointment to determine whether adequate notice has been given is not enough.  The Division’s computer file notes indicate the date the notice letter is mailed, which may be different from the date on the notice letter when it is printed.  The mailing date is the date notice is given, not the printing date.  The difference in those two dates may be the difference between winning and losing.

 

This decision can still be appealed by the insurance company.  If it is, and the Appeals Panel comments in any meaningful way, I will post the results.