By David Bryan Leonard, Esq., Special to the LexisNexis Workers’ Compensation Law Community
Day two of the 2012 California Workers’ Compensation and Risk Conference included a panel by James Fisher, Esq., counsel for the Department of Industrial Relations, currently assigned to the DWC Medical Unit, and Suzanne Honor-Vangerov, Esq. retired Manager of the DWC Medical Unit and current attorney with the law firm of Floyd, Skeren & Kelly, LLP.
Initially scheduled to speak on the topic of utilization of AME & QMEs, they quickly adapted the presentation to the impact of Senate Bill 863.
Mr. Fisher began by noting that while many things have changed with the enactment of SB 863, many of the fundamental dynamics in the workers’ compensation system remain the same. He specifically observed that the system has always been configured to “start and stop” with the opinions of the treating physician. Mr. Fisher explained that the first issue in any medical treatment case is: What did the treating physician conclude? Once the parties know the treating physician’s conclusions, each side can assess whether or not they agree or disagree with the treating physician’s findings. If there is no disagreement, then the case will be concluded based on the treating physician’s reporting. However, if one party disputes the treating physician’s findings, then the medical-legal process could be initiated. Mr. Fisher pointed out that the use of the treating physician’s conclusions have been the underpinnings of the protocol envisioned under California Code of Regulations, Title 8, Section 9785, which has existed in its current form since 2005.
Both panelists emphasized that it is best if the parties can attempt to specifically identify the nature and type of dispute that may exist. They explained that identification of the type of medical dispute would help the parties identify which medical-legal process was best for any individual case. By example, it was noted that because of the genetic advances in identifying the source of spores responsible for Valley Fever, an Agreed Medical Examiner (“AME”) may be best, as the genetic analysis utilized to identify the pathogen may not be commonly found in offices of a Qualified Medical Examiners (“QME”). Alternatively, dispute in cases involving relatively common occupational injuries may be better suited for QMEs who routinely evaluate similar case presentations. One way or the other, both panelists concluded that a medical dispute based upon the treating physician’s report “must exist” before the medical legal process can be initiated.
The panelists went on to note that under SB 863, future medical treatment disputes would no longer be subject to resolution by AMEs or QMEs. Starting January 1, 2013, and phasing in completely for all dates of injury after July 1, 2013, if a medical treatment dispute results in the delay, denial or modification of treatment recommended by the injured worker’s treating physician, the only method of resolution available to employee after utilization review would be an Independent Medical Review (IMR) conducted pursuant to the procedures set forth in Labor Code Section 4610.5.
Ms. Honor-Vangerov observed that, while not being able to resolve treatment disputes, AME and QMEs opinions on other issues such as AOE/COE, PD, TD, and apportionment would be vital. In addition, these forensic experts would be necessary to render an opinion on the injured worker’s need for future medical in cases that are postured to settle by Compromise and Release. She explained that the parties settling the issue of future medical care would require medical opinions that allow them to anticipate and value the injured worker’s future treatment needs. Furthermore, while SB 863 has eliminated permanent disability add-ons for sleep, sexual dysfunction and psychiatric sequelae, it is anticipated that medical legal opinion will still be required to address treatment and temporary disability issues associated with these conditions.
Addressing the issue of AME/QME recommendations for future medical verses an injured worker’s current need for treatment, both panelists observed that the IMR process would be required to resolve any future disputes. By example, if an AME or QME recommended a future knee replacement, if a dispute occurred, the IMR process would be required to determine if the injured worker required the knee replacement surgery at the time it was requested.
To summarize the role of AME and QMEs in the medical treatment process, the panelists concluded that these medical legal evaluators would not be able to render an opinion on whether a current treatment procedure was required. Their opinions would be limited to whether or not future medical treatment is warranted, along with the nature and extent of the types of future medical care that were anticipated at the time the evaluation occurred.
Next, it was observed that under Labor Code Section 5502, medical legal reports can be obtained earlier in the litigation process. Specifically, expedited hearings are now allowed for issues such as injury AOE/COE and whether or not the employee is entitled to treatment on an industrial basis. Other expedited events that may require forensic evaluators include TTD disputes, treatment contribution from multiple employers, or any other issues that may result from the upcoming regulations created by the Administrative Director.
The first element required to obtain an AME or QME evaluation is an objection to a treating physician’s conclusion. The panelists emphasized an actual treatment dispute is required. This means that not only is a treating physician’s report required, a timely objection is filed by the opposing party. This would then trigger the medical legal process detailed by Labor Code Section 4062. Of note, the AME/QME dance where the parties were required to first attempt to use an AME prior to seeking a Panel QME is no longer required.
Turning to the specialty of the Panel QME, it was noted that, at this time, the “letter race” regarding QME specialty is still on. This race most commonly occurs with the specialties of chiropractic, orthopedic, psychology and psychiatry. Due to the overlap in physician specialty, either group may be appropriate to evaluate claims of muscular skeletal or psyche injury.
The “race” is created by the fact that the party making the panel request is required to specifically designate the specialty of the medical evaluator. Specifically, for represented Applicants, no earlier than the first working day that is at least 10 days after the date of mailing of a request for a medical evaluation pursuant to Section 4060 or the first working day that is at least 10 days after the date of mailing of an objection pursuant to Sections 4061 or 4062, either party may request the assignment of a three-member panel of qualified medical evaluators to conduct a comprehensive medical evaluation. A similar procedure is available to the unrepresented worker.
The panelists noted that panel specialty “race” increases everyone’s work load. Situations regularly occur where one side requests a chiropractor and the other selects an orthopedist. Because both specialists are classified as physicians and are able to render decisions within the scope of their practice, the DWC issues two panels. This creates additional litigation within the WCAB as the parties litigate which specialty applies. It also increases the work load for injured workers and/or attorneys that are representing their client’s interests. Ideally, the DWC would like to avoid processes that drain scarce judicial resources. Currently, consideration is being given to the creation of new algorithms that better synchronize the panel QME process.
Hoping to increase the random nature of QME panel assignment, the panelists noted that the 10-office limitation may allow the increased inclusion of practitioners that only have 1 location. Both panelists hoped that the reduction in the number of QME locations operated by any individual would eliminate what they viewed as a troubling trend of always seeing the same name on any panel assignment. The panelists concluded it was best for the system if QMEs with fewer offices have a higher probability of being included in the panel selection process.
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***Robert G. Rassp, Esq. has written a 14-page article analyzing the 8/30/2012 version of SB 863 and Permanent Disability. The article is for sale on the LexisNexis Bookstore. For further information, click here.***