New Qualified Medical Examiner (QME) regulations were issued on Feb. 17, 2009. These regulations provide helpful guidance for both attorneys and doctors on how to obtain the highest quality evaluations for injured workers. Compliance with these regulations will ensure that once the case goes to trial, the medical-legal report will constitute substantial evidence upon which the judge can rely for his or her opinion on decision. So it is necessary to be familiar with the regulations and to review all reports to make sure that they are consistent with the regulations.
The new regulations can be found at the DWC website at: http://www.dir.ca.gov/samples/search/querydwc.htm
One of the most important sections in the QME rules regulates the amount of time that a physician must spend with each injured worker. Physicians are required to be physically present and meet with the injured worker for a minimum “face to face” period which includes the following:
• the time for taking a history,
• performing a physical examination,
• discussing the worker's medical condition.
Face to face time does not include:
• research time
• records review
• report writing.
These time periods are set forth in Regs §49.2 - §49.9. Several medical specialties have their own regulation, with an estimated minimum “face to face” time required for the exam of the injured worker. Practitioners are urged to check these regulations to ensure that the QME in their particular case has met the minimum requirements and has indicated this in the medical legal report.
PRACTICE TIP>>> There is a trap for the unwary with this issue. The regs provide minimum time periods for an “uncomplicated evaluation.” If you review Reg. §49(h), you will find that it defines “uncomplicated evaluation” as a “face to face evaluation in which all of the following are recorded in the medical report: Minimal or no review of records, minimal or no diagnostic studies or laboratory testing, minimal or no research, and minimal or no medical history taking.” It has been my experience that most workers’ compensation cases would not fall within this definition and would probably be considered “complicated evaluations.” Therefore, the time periods most likely required of a physician would be in excess of those set forth in the regulations, depending on the complexity of the case. Attorneys should be aware of this issue, and should review each QME’s reported “face to face” time to confirm that it is adequate and to avoid any issues at trial.
The other issues that attorneys should check for compliance with the QME regs are as follows:
§41(a)(1) The physician's office should contain “functioning medical instruments and equipment appropriate to conducting the evaluation within the physician's scope of practice and a functioning business office phone with the phone number listed with the Medical Director for that location which a party may use to schedule an examination or to handle other matters related to a comprehensive medical/legal evaluation.”
§41(a)(7) The QME should have refrained from unilaterally rescheduling a panel QME examination more than two times in the same case.
§41(b) The QME should have avoided all ex parte communication in violation of Labor Code section 4062.3. (This also applies to physicians appointed by a WCJ per LC §5701, per 8 CCR §10718 & 10213(c).)
PRACTICE TIP>>> Attorneys also need to avoid ex parte communication with QMEs and 5701 physicians, to avoid the report getting tossed at trial, but also to avoid contempt charges and liability for costs of a new evaluation. LC §4062.3(g) provides, “the party making the communication prohibited by this section shall be subject to being charged with contempt before the appeals board and shall be liable for the costs incurred by the aggrieved party as a result of the prohibited communication, including the cost of the medical evaluation, additional discovery costs, and attorney's fees for related discovery.” (There is no such penalty set forth in the regulations regarding 5701 physicians, but courts have been treating ex parte violations rather strictly in the past couple of years.)
§41(c)(2) The QME should “review all available relevant medical and non-medical records and/or facts necessary for an accurate and objective assessment of the contested medical issues in an injured worker's case before generating a written report. The report must list and summarize all medical and non-medical records reviewed as part of the evaluation.”
§41(c)(7) The QME should “write all portions of the report that contain discussion of medical issues, medical research used as the basis for medical determinations, and medical conclusions made by the evaluator. In the event more than one evaluator signs a single report, each signing physician shall clearly state those parts of the employee evaluation examination performed and the portions of the report discussion and conclusion drafted by the signing evaluator. Where a consultation report is obtained by an evaluator from a physician in a different specialty, the consultation report shall be incorporated by reference into the final report and appended to the referring QME's report.” (Emphasis added.)
§41(f) The QME should not keep the injured worker waiting for more than one hour.
CONCLUSION: If a medical report is found not to constitute substantial evidence, the WCJ may have no choice but to rule in favor of the opposing party. By making sure that the QME has complied with the current QME regulations, parties substantially increase their chances of having a bulletproof medical report at trial.
This blog has been approved by the California Division of Workers' Compensation.
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