Respondents are not directing medical care or treatment by setting demand appointments with the authorized treating provider.

In Fitzsimmons, the authorized treating provider (“ATP”) had determined that the claimant was at MMI; however, the ATP did not provide an impairment rating. Respondents set several demand appointments and there was evidence that the claimant was properly notified of each appointment. After claimant failed to attend the demand appointments twice, Respondents filed a motion to compel the claimant’s attendance to another rescheduled appointment. This motion was granted by a Prehearing ALJ. However, the claimant still failed to appear. Respondents then filed an Amended General Admission of Liability pursuant to Rule 6-1(A)(5) terminating temporary total disability benefits (“TTD”). The claimant filed for hearing and sought TTD benefits for a period of time when Respondents filed the Amended General Admission and penalties against Respondents for setting demand appointments with the claimant’s ATP.

The ALJ determined that Respondents were permitted to set demand appointments with the ATP and that penalties were not appropriate. The claimant appealed and the Industrial Claims Appeals Office (the “Panel”) affirmed the ALJ’s Order. The Panel declined to overturn the ALJ’s ruling and did not grant claimant’s request for wage loss or penalties. The Panel agreed with the ALJ that Respondents had correctly followed Rule 6-1(A)(5) in terminating TTD benefits for the claimant’s failure to attend demand appointments set with the ATP. Moreover, in setting the demand appointment for purposes of obtaining an impairment rating for the shoulder, Respondents were not directing medical care or treatment and penalties were therefore, not appropriate. The Panel specifically noted that 8-43-404(3) applies to appointments relating to second opinions – i.e. IMEs – and also to demand appointments set with ATPs.

Fitzsimmons v. Lincoln Surgery Center, W.C. No. 4-995-913-001 (ICAO Dec. 16, 2020)

Want to know more? Contact Christin Bechmann at or 877-259-5693.

February 2021 Newsletter