Selective Filing of Medical Reports under EAMS

Selective Filing of Medical Reports under EAMS

Within the next few months, California’s Division of Workers’ Compensation (DWC) will substantially change the adjudication of California workers’ compensation claims via the implementation of the Electronic Adjudication Management System (EAMS). While EAMS is primarily the DWC’s new case management system, it will change the handling of workers compensation claims in several ways. This post concerns one of those reforms, replacing the requirement of comprehensive filing of physicians’ reports with a requirement of selective filing.

Achieving justice through due process of law requires quality evidence upon which determinations can be based. In California workers’ compensation proceedings, the preferred form of medical-legal evidence is a written physicians’ report. WCAB Rule 10606; 8 Cal. Code of Regulations §10606. However, many physicians’ reports are interim, obsolete, or otherwise immaterial to the disputed issues presented for adjudication. Nevertheless, the existing system requires comprehensive filing of medical reports, regardless of their potential utility in resolving disputes.

A party filing or objecting to a Declaration of Readiness to Proceed (DoR) is expected to file “the physician’s reports that are in the possession or under control of the declarant” as well as serve any previously un-served reports. WCAB Rule 10606{b}; 8 Cal. Code of Regulations §10606{b}. A party receiving a DoR, regardless of whether they object to it, is expected to review available medical evidence and file and serve any previously un-filed or previously un-served reports within six days. WCAB Rule 10606{c}; 8 Cal. Code of Regulations §10606{c}.

These regulations have teeth and can be strongly enforced. Un-filed or tardily-filed reports need not be recieved into evidence and, where non-compliance was willful, it can be presumed that the contents of the report were adverse to the non-compliant party. WCAB Rule 10622; 8 Cal. Code of Regulations § 10622. (Exactly what it means to deem a medical report adverse is an under-developed area of the law, and probably depends a great deal on the facts of a particular case). If the relevant medical report still has not been filed by the time of the Mandatory Settlement Conference, it is to be excluded from evidence unless “the proponent of the evidence can demonstrate that it was not available or could not have been discovered by the exercise of due diligence prior to the settlement conference.” Lab.C. §5502{e}(3).

Thus, the present paper-based system burdens the DWC District Offices with a continuous stream of medical reports, regardless of whether any particular report makes an iota of difference to the proper handling or outcome of any particular workers’ compensation claim. This system of comprehensive filing has a history of failure. Prior to the stabilization of DWC’s financial resources through “user-funding” the resources necessary to process the incoming medical reports were not available. Lengthy delays in the processing of medical reports and the outright loss of some filed materials occurred. During this unfortunate period, prudent advocates came to hearings with an extra copy of the already-filed materials, anticipating that the relevant medical reports had been lost, misplaced or not yet processed into the court file.

Eventually, it was necessary for the DWC Administrative Director and the WCAB Chairman to issue a joint memorandum excusing the community from compliance with comprehensive filing and instead asking the parties to continue comprehensive service but to selectively file only those reports (and other exhibits) which were intended to be offered in evidence. This interim system of comprehensive service but selective filing, together with the beneficial effects of user-funding, significantly improved the reliable and prompt processing of medical and medical-legal evidence in California workers compensation proceedings.

The proposed regulations in support of EAMS will formalize the success of selective filing and set the groundwork for selective and automated filing. Additionally, the proposed regulations account for the success of user funded staffing in alleviating many of the problem experienced before 2004 – where documents were slowly processed and filed – and also accounts for filings will take place immediately through EAMS.

It is important to note that the proposed regulations are, just that, proposed. Pre-adoption publication and public comment are still in progress. Changes may yet be made. Assuming, however, that the proposed regulations are adopted in something close to their present form, the filing of documents will be governed by Article 3 of the Rules of the Court Administrator (8 Cal. Code of Regulations 10228 et seq.). Declarations of Readiness to Proceed are to be filed only with the Agreed Medical Examination (AME), Qualified Medical Evaluation (QME) or treatment reports that “are relevant to the issue being raised by the declaration of readiness to proceed”. Likewise, proposed settlements are to be supported by the selective filing of AME, QME, or treatment reports that “are relevant to a determination of the adequacy of the compromise and release or stipulations with request for award”. Remaining exhibits are to be filed at the Mandatory Settlement Conference “but only if the matter is being set for trial, unless otherwise ordered …”. Proposed Ct.Adm. Rule 10223. The remaining reports (those that are not the AME, QME or treatment reports that bear on the disputed issues and are not otherwise offered by any litigant as relevant and important to the determination) aren’t to be filed at all. Proposed Ct.Adm. Rules 10233 and 10235{a}(6).

In a reversal of the requirement of the prior system, the new rules will specify that copies of the reports, rather than originals, are to be filed. Proposed Ct.Adm. Rule 10236. This is sensible, since submitted documents will be destroyed after being scanned into EAMS. Proposed Ct.Adm. Rule 10229{b}.

It is also important to note that comprehensive service of physicians’ reports will still be required. Comprehensive filing of physicians’ reports is a failure. Comprehensive filing needlessly burdens the parties and the DWC with the replication, processing, and retention of documents that, in many situations, make no meaningful difference in the proper handling or outcome of the disputed issues. Therefore, properly and understandably, the EAMS-enabling regulations mandate the selective filing of reports. It really is a case where less work can be better work.

                                         

   This blog has been approved by the California Division of Workers' Compensation.

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Comments

Anonymous
Anonymous
  • 12-12-2011

Great post.. I like these blog.. Thank you.