WCDefenseCA

Happy Wednesday, dear readers!

I return to you now, to grace your e-mail inboxes and pollute your otherwise rational thinking.  In the immortal words of the 20th Century poet Eminem, “Guess who’s back, back again, blogger’s back, tell a friend…”

So your humble blogger comes back with a report of a victory for defendants, and also for man’s ever intensifying battle against technology.  The case is that of Beitpolous v. California Correctional Healthcare Services (a WCAB Panel Decision).

In a denied case, applicant obtained a PM&R panel and after the strike process the QME remaining was listed as appearing via telemedicine (“Evaluation will take place through the use of telehealth using interactive audio, video, or data communications.”)

The telemedicine exam was conducted by having an assistant call ahead of the evaluation and take applicant’s complete history, and then, at the exam, the PQME appeared via video-conference while a QME chiropractor was in the exam room with the applicant and conducted the actual exam and took measurements (within view of the actual QME).

Defendant apparently was not advised that the QME exam would be via telemedicine until it received the QMEs report which reflected the same.  At that time, after defendant refused to accept the case based on the QME’s opinion, applicant set the matter for an MSC.  At the MSC defendant objected to the panel because the exam was conducted via telemedicine.

The WCJ ruled in favor of the defense, disqualifying the QME because the exam was conducted via telemedicine.  On removal, the WCAB sided with the defendant and the WCJ, citing Section 4628(a) which provides that no person other than the physician signing the medical-legal exam may take a history, review and summarize records, or compose the conclusions of the report.

The WCAB ruled that “constitutional principles of fairness and due process require that the identity of a physician assistant who is to physical perform the clinical examination be disclosed to the parties promptly upon the QME’s selection.”

So, absent an agreement ahead of time by the parties to allow for a telemedicine exam, it looks like any such exam would be vulnerable to an objection.

On the other hand, if an applicant’s attorney REALLY wanted to keep the QME exam, would advance disclosure cure any potential defects?