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By: Hon. Robert G. Rassp, June 11, 2021
DISCLAIMER: The opinions expressed in this article are the opinions of the author and are not the opinions of the State of California Department of Industrial Relations, Division of Workers’ Compensation, or the Workers’ Compensation Appeals Board.
The California Office of Administrative Law approved the new medical-legal fee schedule for workers’ compensation cases on March 30, 2021. This article will summarize the new fee schedule along with some commentary on the potential consequences of the new regulations and how they may affect the practice of workers’ compensation law and medical-legal evaluations. The new regulations are in Title 8 Cal. Code of Regulations, Sections 9793 through 9795. Section 9793 has definitions. Section 9794 has the mandate for reimbursement for medical-legal examination and reports including the payment and collection procedures and IBR requirements, and Section 9795 is the actual fee schedule.
Pursuant to Title 8 California Code of Regulations Section 9795(f) the medical-legal fee schedule became effective for a physical examination or medical-legal testimony that occurs on or after April 1, 2021. Notice that the effective date of the fee schedule is not the date a report is issued by a medical-legal physician. For supplemental reports, the fee schedule applies if the request for a supplemental report occurs on or after April 1, 2021. Supplemental reports do not require a physical examination and usually involve a request by a party for the medical-legal physician to clarify their conclusions in a prior report or to answer questions that were originally asked but not addressed in the prior reporting.
A brief summary to the changes to the medical-legal fee schedule is described in this article and described below in more detail. The prior Medical-Legal Fee Schedule based billing on time spent and complexity factors, e.g., ML101, ML104, ML106. The new schedule establishes a flat fee for different types of reporting that involves less than 200 pages of review by the reporting physician. In addition, there is a $3.00 per page charge for review of records that are greater than 200 pages, provided those records were not previously reviewed by the evaluating physician.
There is an increase in payment rates for medical-legal testimony and reports by psychiatrists, psychologists, and internal medicine physicians who review cases where the claim is primarily involving toxicology or oncology. There is a new declaration under penalty of perjury that parties have to sign certifying the number of pages being requested to be reviewed by the physician. Physicians have to indicate under penalty of perjury how many pages of documents they reviewed. There is also a flat fee for missed appointments.
Here are more specific aspects of the new medical-legal report billing schedule:
Those are the nuts and bolts of the new medical-legal fee schedule. So how does this affect an attorney’s legal practice and physician’s medical practice?
The first step before the initial physical examination of an Applicant by a medical-legal evaluator (QME or QME) occurs when there is a determination of what is being sent to the medical-legal evaluator for review in the first place. What is a “record” or a “page?”
A “record” is an 8 ½ x 11-inch single-sided document, chart, or paper in either physical or electronic form. Multiple condensed pages on a single page like a condensed deposition transcript are billed as multiple pages. So if 4 pages of a deposition transcript appears in a 1-page record for review, the physician can consider that record as 4 pages for review towards the count of the first 200 pages included in the flat rate of pay, or in subsequent pages above 200 pages. Single page documents such as EAMS or fax cover sheets, proof of service, or divider sheets are not counted.
Issues may arise when opposing sides send the evaluator duplicate records. Can the evaluator charge per page a review of duplicate records? What if Applicant’s attorney sends 1,000 pages of Kaiser Permanente records to a QME and Defense counsel also sends the same records? This could result in unnecessary double expense to a claims administrator. Can the evaluator bill for review of duplicate records? Maybe. Section 9795 does not discuss or even mention billing for duplicate record reviews. Neither does Title 8 Cal. Code of Regulations section 9794, which pertains to billing for medical-legal services, including timelines, the basis for objections to billing, explanation of benefits, requests for second bill reviews and IBR and non-IBR procedures.
Labor Code section 4062.3(a) mandates that “Any party may provide to the qualified medical evaluator selected from a panel any of the following information: (1) Records prepared or maintained by the employee’s treating physician or physicians, (2) Medical and non-medical records relevant to determination of the medical issue.”
Counsel is strongly recommended to meet and confer in accordance with Labor Code Section 4062.3 and comply with title 8 Cal. Code of Regulations Section 35. In fact, section 35(c) states: “At least twenty (20) days before the information is to be provided to the evaluator, the party providing such medical and non-medical reports and information shall serve it on the opposing party.” The best practice is for counsel to meet and confer and agree as to what is being sent to a medical-legal evaluator to review. The medical-legal fee schedule was drafted in contemplation of parties cooperating and agreeing in advance of a medical-legal examination as to what records are being sent for review by a QME or AME and who is sending them. Absent best practices, parties could incur unnecessary and additional litigation expenses to appear at a WCAB District Office and litigate what is being sent to a medical-legal evaluator. Part of the best practices in this regard is to avoid having a judge intervene in these discovery disputes that cause unnecessary delay and additional expense.
While there is no actual statutory or regulatory mandate to meet and confer referenced in Title 8 Cal. Code of Regulations section 35, there is case law that provides guidance. Counsel is reminded of the case Maxham v. Calif. Dept. of Corrections and Rehab. (2017) 82 Cal. Comp. Cases 136, 147–148 (Appeals Board en banc) (“information,” as used in Lab. Code, § 4062.3, constitutes: (1) records prepared or maintained by an employee’s treating physician or physicians; and/or (2) medical and nonmedical records relevant to determination of medical issues, and “communication,” as used in Lab. Code, § 4062.3, may constitute “information” if it contains, references, or encloses: (1) records prepared or maintained by an employee’s treating physician or physicians; and/or (2) medical and nonmedical records relevant to determination of medical issues)].
A dispute over what information may be provided to a QME is to be presented to the Appeals Board if the parties cannot informally resolve it, using the procedural steps set forth by the Maxham en banc. Because Labor Code section 4062.3(b) does not provide a specific timeline for an opposing party to object to provision of medical records for a QME’s consideration, that party must object within a reasonable time. The trier of fact has wide discretion to determine an appropriate remedy for violation of the statute [Suon v. California Dairies (2018) 83 Cal. Comp. Cases 1803, 1805, 1812–1819 (Appeals Board en banc opinion)].
The new medical-legal fee schedule under Title 8 Cal. Code of Regulations section 9795 now requires any party who sends documents to a QME or AME to include a Declaration under penalty of perjury what the total page count is of the documents being sent for review by the evaluator. When the medical-legal evaluator issues a report, the evaluator must also include a declaration under penalty of perjury the number of pages of documents that were reviewed and summarized.
It is now June of 2021 and the new fee schedule has been in effect for only two months. Will there be an increase in litigation over these issues? It is too soon to say since the workers’ compensation legal community is just now becoming aware of the changes and requirements of full disclosure and exchange of information. It seems likely that litigation will increase with discovery disputes between counsel regarding who sends what to a medical-legal evaluator for review. The direct impact of these disputes may result in unnecessary charges for document review at $3.00 per page above the initial 200 pages due to a lack of communication between counsel and a resultant duplicative document review by a QME or AME. So where does this leave us? Parties are always free to bring discovery disputes to the attention of a workers’ compensation judge to hear disputes between the parties as to what documents are to be sent to a medical-legal evaluator. This includes, but is not limited to a judge hearing disputes over the content of advocacy letters; whether denial notices, witness statements, investigation reports, and other items can be sent to a doctor for review and commentary. These are only a few examples of disputed items that have been proposed to be sent to a medical-legal evaluator. These issues will continue to be determined on a case by case basis.
Another potential logistical problem is when records are duplicative as a result of being generated from an electronic medical record (EMR) source. Many medical facilities will send EMR for a patient from one specialist to another within the same medical group or outside a medical group. That results in each specialist having the common EMR records in their own specialist records. So an orthopedic surgeon would have the same EMR records on a patient as an internist where the records are duplicative by default. There is no way to redact those repetitive records for review by an outside QME or AME. So who screens records like this before they get to a medical-legal evaluator?
Best practices may be for defense counsel to take the lead on this issue by agreeing with Applicant’s counsel on what records are to be sent to a QME or AME and then to screen them for duplicity before sending a final set to the doctor and opposing counsel. This is going to require a great deal of time and effort and someone will have to pay for it. Claims administrators will have to decide whether to pay the doctor $3.00 per page to review duplicate records or to pay the attorney’s office to eliminate duplicative documents before they are sent to the QME or AME. This of course assumes opposing counsel has agreed to all of this.
Remember, Labor Code Section 4062.3 and Rule 35 mandate that each party must serve information that it intends to send to a medical-legal evaluator to an opposing party 20 days before the information is provided to the evaluator. The opposing party then has 10 days to object to any non-medical records such as a claims administrator’s notice of denial of a claim, a party’s advocacy letter, witness statements, investigator reports, etc. If there is a good-faith objection, then the information shall not be provided to the evaluator and the parties may request assistance from a workers’ compensation judge. A judge may have to determine the accuracy or authenticity of the material in dispute and to either order it to be sent to the evaluator or excluded from the records being sent.
So what does a QME or AME do if the records for review are not received by the doctor on or before the date of the doctor’s examination of the Applicant? The evaluator should still conduct the physical examination of the Applicant and obtain the Applicant’s past medical history; history of present illness; current signs, symptoms, and complaints; and mechanism of the alleged parts of body injured. What if records are received for review by the QME or AME, but there is no declaration from the party or parties who sent them to the physician? Same answer—the QME or AME should still examine the patient, write a report, and indicate to the parties that records were received without the required declaration and no record review will occur until one is received by the physician from the party who sent the records.
Best practices should include both parties meeting and conferring well in advance of a QME or AME appointment to establish a list of medical and non-medical records to be sent to the evaluator and an exchange of proposed advocacy letters. In fact, the best practice is to send the QME or AME a single advocacy letter that describes the mechanism of the alleged injury or injuries (cumulative trauma, specific, or both), parts of body claimed that are admitted or denied, a paragraph or two from each side that outlines their contentions, and the usual standard questions that are asked to evaluators in accordance with Labor Code Section 4628, Title 8 Cal. Code of Regulations section 10682 and Section 2.6 of the AMA Guides. Despite the rigors of practicing workers’ compensation law, these best practices would make the process run much more smoothly for all parties and for the QME or AME as well.
The author wishes to thank and acknowledge Associate Chief Judge Jamie Spitzer who peer reviewed this article and provided valuable feedback and corrections.
© Copyright 2021 Robert G. Rassp and LexisNexis. All rights reserved. Parts of this article will appear in an upcoming edition of Rassp & Herlick, California Workers’ Compensation Law (LexisNexis).