(a) This section does not apply if statutory maximum medical improvement (MMI) has been reached. Statutory MMI is the later of:
(1) the end of the 104th week after the date that temporary income benefits (TIBs) began to accrue; or
(2) the date to which MMI was extended by the commission through operation of Texas Labor Code § 408.104.
(b) If there has not been a certification in accordance with § 130.1 of this title (relating to Certification of Maximum Medical Improvement and Evaluation of Permanent Impairment) that an injured employee has reached MMI, an insurance carrier (carrier) may follow the procedure outlined in this section to resolve whether an employee has reached MMI. The carrier shall presume, only for purposes of invoking this procedure, that an employee has reached MMI, if:
(1) it appears that the employee has failed to attend two or more consecutively scheduled health care appointments and the number of days between the two examinations is greater than 60 except for laminectomy, spinal fusion or diskectomy in which case the number of days between the two examinations is greater than 90;
(2) the treating doctor has examined the employee at least twice for the same compensable injury after the date on which TIBs began to accrue, and the 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 employees condition since the date of the first of the two examinations;
(3) the employee was previously found not to be at MMI by a designated doctor but the employee has reached the date the designated doctor estimated that the employee would reach MMI; or
(4) the employee is four weeks past the point that the claim has become a Work Release Outlier Claim as defined by commission rule.
(c) A carrier permitted by subsection (b) of this section to invoke this procedure may request the treating doctor to provide a report on the employee’s medical status as it relates to MMI. Note–nothing in this section prohibits the carrier from contacting the treating doctor about whether the employee has reached MMI.
(d) The treating doctor shall evaluate the employee’s condition within 14 days of receiving the request from the carrier under subsection (c) of this section. The evaluation shall be conducted in accordance with § 130.1 of this title and the report filed within seven working days of the date of the examination. If the treating doctor determines that the employee has permanent impairment but is not authorized to certify MMI or assign an impairment rating, the doctor shall refer the employee to a doctor who is so authorized and this doctor shall comply with the requirements of this section, § 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 by Doctor Other Than Treating Doctor).
(e) 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 designated doctor under § 130.5 (relating to Entitlement and Procedure for Requesting Designated Doctor Examinations Related to Maximum Medical Improvement and Impairment Rating).
The provisions of this § 130.4 adopted to be effective March 8, 1991, 16 TexReg 1296; amended to be effective January 2, 2002, 26 TexReg 10910.