The Analysis Provided to Designated Doctors Pursuant to Texas Labor Code §408.0041(c) and 28 Texas Administrative Code §127.10(a)(2) Cannot Include Legal Arguments and Directives–Texas Workers’ Compensation Defense Attorneys

On December 16, 2013, the Texas Department of Insurance, Division of Workers’ Compensation (DWC) reiterated an Initiative defining the character of the communications which may take place between participants and the Division appointed Designated Doctor.

The DWC has reminded workers’ compensation system participants that pursuant to Texas Labor Code §409.0041 and 28 Texas Administrative Code (TAC) §127.10, only the injured employee’s treating doctor and the insurance carrier may send the designated doctor an analysis.

This analysis may only cover the injured employee’s:

1. medical condition;

2. functional abilities; and

3. return-to-work opportunities.

The analysis may also include supporting information such as videotaped activities of the injured worker, as well as marked copies of the medical records, but may not include impermissible legal arguments and directives. The DWC has found that, in some cases, these improper analyses have misstated DWC rules and requirements regarding the designated doctor’s evaluation. Any impermissible analysis provided to the designated doctor, whether drafted by the insurance carrier, the treating doctor, or their agents constitutes improper communication with the designated doctor and may result in an enforcement action.

To emphasize this further, the DWC recently sent a copy of this clarifying initiative directly to the state’s designated doctors to reiterate the statutory and rule requirements [Texas Labor Code §408.0041(a)(1) and §408.123(a) and 28 TAC §130.1(b)(4) & (c)(3)].


Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas workers’ compensation attorneys in Tarrant County who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

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