California: WCAB Panel Upholds Telehealth Medical-Legal Evaluation Under Emergency Rule

Workers’ compensation practitioners know that a comprehensive medical-legal evaluation must be performed in-person. Labor Code section 4628(a) prohibits anyone other than the physician who signs the report from examining the injured employee, except a nurse performing the functions routinely performed by a nurse, such as taking blood pressure. Applicable regulations even prescribe the amount of “face-to-face” time that the physician must spend performing the physical examination and discussing the injured employee’s medical history with the injured employee (8 Cal. Code Regs. § 49(b).) For example, 30 minutes of face-to-face time is the minimum amount of time the physician must actually spend in-person with the injured worker for an uncomplicated evaluation unless a different amount of face-to-face time is specifically stated in another regulation (8 Cal. Code Regs. § 49.9). It is not an understatement to acknowledge that an in-person medical-legal evaluation is sacrosanct as far as workers’ compensation law is concerned. (See Sheffield Medical Group v. Workers’ Comp. Appeals Bd. (1999) 70 Cal. App. 4th 868, 881 [64 Cal. Comp. Cases 358].) Well, a global pandemic can change our notion of how a medical-legal evaluation must be conducted. As the recent panel decision in Rosenbrook v. Knight-Swift Transportation Holdings, Inc., 2021 Cal. Wrk Comp. P.D. LEXIS 16 makes abundantly clear, a telehealth (i.e., telephonic or video) medical-legal evaluation that satisfies the provisions of emergency regulation section 46.2 (8 Cal. Code Regs. § 46.2) is an appropriate alternative to an in-person evaluation during the current COVID-19 pandemic.

To our knowledge, Rosenbrook is the first panel decision to consider whether a defendant acted unreasonably when it refused to authorize a telehealth comprehensive medical-legal evaluation under emergency regulation section 46.2 (8 Cal. Code Regs. § 46.2). That rule, entitled “QME Emergency Regulation in Response to COVID-19,” was adopted in response to Governor Newsom’s Executive Order N-33-20, which declared a state of emergency due to the COVID-19 pandemic and ordered all Californians except certain essential workers to stay at home. Emergency regulation section 46.2 was adopted on May 14, 2020, and became effective the same date. In relevant part, it provides:

(3) A QME or AME may complete a medical-legal evaluation through telehealth when a physical examination is not necessary and all of the following conditions are met:

(A) The injured worker is not required to travel outside of their immediate household to accomplish the telehealth evaluation; and

(B) There is a medical issue in dispute which involves whether or not the injury is AOE/COE (Arising Out of Employment / Course of Employment), or the physician is asked to address the termination of an injured worker's indemnity benefit payments or address a dispute regarding work restrictions; and

(C) There is agreement in writing to the telehealth evaluation by the injured worker, the carrier or employer, and the QME. Agreement to the telehealth evaluation cannot be unreasonably denied. If a party to the action believes that agreement to the telehealth evaluation has been unreasonably denied under this section, they may file an objection with the Workers' Compensation Appeals Board, along with a Declaration of Readiness to Proceed to set the matter for a hearing;

(D) The telehealth visit under the circumstances is consistent with appropriate and ethical medical practice, as determined by the QME; and

(E) The QME attests in writing that the evaluation does not require a physical exam.

(4) For purposes of evaluations pursuant to subdivision (3) of this emergency regulation, telehealth means remote visits via video-conferencing, video-calling, or similar such technology that allows each party to see the other via a video connection.

The underlying facts in Rosenbrook are straightforward. Kenneth Rosenbrook (applicant) sustained a compensable injury to his low back while employed by Knight-Swift Transportation Holdings, Inc. (defendant). The application for adjudication of claim was subsequently amended to include allegations of industrial injury to the urologic system and internal system (diabetes and hypertension). Defendant timely denied the claims of injury to urologic and internal systems on the basis of lack of factual and/or medical evidence.

The QME panel process was initiated by the parties to address the disputed claim of injury to the internal system. By coincidence, the parties were engaged in the QME selection process at the very time the COVID-19 pandemic was making itself known throughout our country and our lives were changing in response. Californians sheltered in place at home per Governor Newsom’s Executive Order N-33-20. The WCAB implemented telephonic and video hearing platforms as an alternative to in-person hearings, and the Administrative Director adopted emergency regulation section 46.2 (8 Cal. Code Regs § 46.2) to facilitate telehealth rather than in-person medical-legal evaluations under specified circumstances.

A QME panel in internal medicine issued, and Dr. Bahman Omrani was selected as the QME. There was disagreement between the parties as to whether applicant’s evaluation by Dr. Ormani could be conducted by a telehealth appointment pursuant to the emergency regulation or whether an in-person evaluation was required. Applicant lives in Washington state and Dr. Ormani’s office is in California, which would necessitate applicant to travel to attend the evaluation. A hearing was held, and the parties agreed to send a joint letter to Dr. Ormani to obtain his opinion on that issue. On August 21, 2020, applicant sent a letter to Dr. Ormani asking him to advise the parties if he felt a telehealth evaluation would be appropriate. The letter also asked Dr. Ormani to state whether he believed a physical examination necessary. Finally, the letter indicated applicant’s willingness to attend any required testing at a location close to his home.

Several days later, Dr. Ormani responded to the letter by a signed fax, stating that he would conduct the evaluation by telehealth without a physical examination. There was no indication in Dr. Ormani’s fax that medical testing was contemplated or necessary.

Defendant declined to authorize a telehealth evaluation with Dr. Ormani, and applicant requested an expedited hearing on the reasonableness of defendant’s refusal, and whether a telehealth evaluation is consistent with emergency regulation section 46.2.

At the expedited hearing applicant testified that in order to attend an in-person evaluation with Dr. Ormani, he would be required to travel from his home in Washington state to Dr. Ormani’s office in California. That would require air travel and lodging. Applicant also testified that he and certain family members have medical conditions that cause him to worry about the risk of traveling to the medical examination, becoming infected and bringing home COVID-19 to his family. He testified that he was willing to attend the evaluation by telehealth. Additionally, applicant testified that if Dr. Ormani recommended testing as part of the evaluation, applicant would obtain the required testing at a location near his home.

The WCJ issued a Findings and Order that defendant unreasonably denied the telehealth evaluation under emergency regulation section 46.2 and ordered the evaluation with Dr. Ormani to be conducted by way of telehealth.

Defendant sought reconsideration, challenging the order that applicant’s evaluation with Dr. Ormani be conducted by telehealth rather than in-person. Defendant asserted that it did not unreasonably deny a telehealth appointment because applicant failed to establish that the requirements of emergency regulation section 46.2 were met. Specifically, defendant argued that because applicant expressed a willingness to leave his home in Washington state and travel to a nearby location to obtain any necessary testing, applicant is able to travel to California to be evaluated in-person by Dr. Ormani. Next, defendant argued that because it has accepted applicant’s low back injury as compensable, there is no dispute as to injury AOE/COE. Further, defendant argued that Labor Code section 4628(a) requires Dr. Ormani to conduct an in-person examination because applicant was previously evaluated in-person by an internist. Finally, defendant claimed that its right to due process would be violated by a telehealth medical evaluation.

The panel rejected defendant’s arguments, finding that applicant met the requirements for a telehealth medical-legal evaluation under emergency regulation section 46.2(a)(3). It also rejected the contention that Labor Code section 4628 requires an in-person evaluation because applicant was previously examined in-person by an internist. The panel characterized that claim as speculative in view of Dr. Ormani’s advisement that a physical exam was not required. Reconsideration was denied, leaving in place the Order that applicant’s medical evaluation with Dr. Ormani be conducted by telehealth rather than in-person.

The panel’s careful analysis of the requirements of emergency regulation section 46.2 is instructive. Subdivision (a)(3) of the regulation allows a telehealth evaluation when a physical examination is not necessary and the criteria listed in (A) through (E) of the subsection are met. As the panel observed, Dr. Ormani’s fax response stated that he would conduct a telehealth evaluation without a physical examination. From that statement, the panel inferred that in Dr. Ormani’s expert opinion, a physical examination is not necessary. Since Dr. Ormani signed the fax statement, the criteria in subdivision (3) and (3)(E) were met.

Next, subdivision (3)(A) requires that the injured employee not be required to travel outside of their immediate household to participate in the telehealth evaluation. Defendant argued that applicant’s willingness to travel to a facility near his home to obtain any required testing made the medical evaluation one that required travel. The panel rejected defendant’s argument, observing that Dr. Ormani did not indicate that testing was required as part of the evaluation. Therefore, applicant also satisfied subdivision (3)(A) of the rule.

Similarly, the panel found that applicant satisfied subdivision (3)(B), which requires the existence of a disputed medical issue, such as whether the claimed injury arose out of and occurred in the course of employment. Defendant argued that because it accepted applicant’s low back injury as compensable, there was no medical issue in dispute. The panel summarily rejected that argument as well, noting that applicant’s claim of an industrial internal injury is disputed by defendant.

Subdivision (3)(C) requires the parties and the PQME to agree in writing to a telehealth evaluation. Additionally, the subdivision states, “Agreement to the telehealth evaluation cannot be unreasonably denied.” Here, only applicant and Dr. Ormani agreed to the telehealth evaluation. The panel, however, concluded that there was no agreement to the telehealth evaluation because defendant refused to agree. Since applicant filed an objection and a declaration of readiness to proceed to request a hearing on the disagreement over the telehealth evaluation, the requirements of this subdivision were also satisfied.

Finally, under subdivision (3)(D), a telehealth visit must be consistent with appropriate ethical and medical practice, as determined by the QME. Dr. Ormani confirmed in the signed fax that he would conduct a telehealth evaluation without a physical examination. The panel interpreted that statement as demonstrating compliance with the emergency regulation on the presumption that Dr. Ormani would have advised the parties if he believed that a telehealth evaluation was inconsistent with ethical and medical practice.

Once the panel concluded that applicant met the requirements of emergency regulation section 46.2(a)(3) for a telehealth medical-legal evaluation in internal medicine, it considered defendant’s contention that a telehealth medical-legal evaluation violated its right to due process. The panel acknowledges that all parties to a workers’ compensation proceeding have the fundamental right to due process and a fair hearing under both the California and United States Constitutions. (Rucker v. Workers’ Comp. Appeals Bd. (2000) 82 Cal. App. 4th 151,157-158 [65 Cal. Comp. Cases 805].) But, as the panel observes, the unique circumstances of a given time cannot be ignored, and those circumstances may influence our concept of what due process means in that moment. The panel explains that emergency regulation section 46.2 was intended to strike a balance between preserving the integrity of the medical-legal evaluation process while simultaneously protecting the public from real and serious harm and achieving California’s Constitutional mandate that workers’ compensation cases be resolved expeditiously, inexpensively and without undue encumbrance. It endorses the rationale set forth in a recent significant panel decision that “[d]ue process is the process that is due under the circumstances as we find them, not as we might wish them to be.” (Gao v. Chevron Corporation (2021) 86 Cal. Comp. Cases 44, 48 (Appeals Board significant panel decision))

When the COVID-19 pandemic is behind us and Governor Newsom terminates Executive Order N-33-20, emergency regulation 46.2 will no longer be necessary, and medical-legal evaluations will again take place in-person as described in Labor Code section 4628 and the QME regulations. Even so, the import of Rosenbrook should not fade from memories. The decision serves as a reminder that the unique circumstances of the moment may require temporary alterations in long-standing rules and procedures where such changes are necessary to protect health and safety and facilitate the resolution of workers’ compensation disputes in the most efficient and timely manner possible.

Reminder: Panel decisions are not binding precedent.

© Copyright 2021 LexisNexis. All rights reserved.