Alrighty dear readers – how are we doing?  Is the cabin fever kicking in yet?  Remember, unlike our predecessors, we have the joy of the internet to keep us company while we teach home school and work from home as well.  Goods are delivered, communication is done over the world wide web, and so long as we can keep those living with us a safe distance away, video conference can proceed without leaving our homes.  Surviving shelter-in-place, for most of us, is not as bad as it would have been a single generation ago.

But, the workers’ compensation community struggles to adapt – not everything, it seems, can be done from the kitchen table in our pajamas. 

Last week, your humble blogger had the privilege of rebroadcasting the efforts of the DWC and the WCAB to limit the spread of infection, primarily by limiting in-person appearances at the WCAB to expedited hearings, moving most other hearings to court call and changing “walk-throughs” to “email-ins.”

Well, the cry has been raised by some QMEs and stake-holders to allow all QMEs to shift to telemedicine – conducting evaluations via Skype or some alternative, to avoid face-to-face and Corona-to-Lungs interactions.  In response, the DWC has published a statement, although it stops short of giving a firm directive.

“The use of telemedicine for a QME evaluation may be appropriate where all parties agree that there is a medical issue in dispute which involves whether or not the injury is AOE/COE… and all parties to the action, including the physician, agree to a telemedicine evaluation in order to resolve the dispute.”

So basically, if the dispute is AOE/COE, the DWC is giving a wink and a nudge that it might be ok to do a video chat instead of an in-person exam, but only if all parties agree.

So why would an applicant agree to this?  Well, some QMEs are cancelling in-person examinations for personal safety already, so if an applicant is looking to get benefits on a denied case, he or she might be eager to agree to just about anything to get a report that says “yep, that’s industrial!” 

But, why then, would a defendant agree to this?  If the defendant already has a denied claim, what benefit does a defendant see in expending an examination that will be less precise and reliable than a standard, in-person exam?

As far as your humble blogger can tell, there’s only one benefit – and it is not provided for in the DWC guidance, so it would have to be agreed to in addition to a telemedicine exam: a recording of everything that goes on during the exam.

Many members of the community have suspicions about one or another QME. Applicant attorneys sometimes suspect that certain “conservative” QMEs are purposefully recording altered responses that their clients give, or leaving out pertinent facts. Many defense attorneys and adjusters suspect that certain “liberal” QMEs are purposefully coaching the injured workers to give responses resulting in more benefits.

Well, for those harboring such suspicions, now might be your chance. Perhaps the desire of the QMEs to continue the stream of income based on conducting exams, the desire of the applicant to get an exam date sooner, and the desire of the adjuster to move a denied file towards closure can form the perfect storm for such an arrangement.

If you wait this out, there is going to be an exam like before – closed doors and no evidence of ignoring responses or coaching.  But if you agree to a telemedicine exam on the condition that to be admissible, the entirety of the exam must be recorded and produced to the parties, well… there’s a reason why police misconduct watch-dogs demand body cameras for Law Enforcement Officers and encourage civilians to film any interaction with the police.

The only reason I would be tempted to recommend a telemedicine QME exam is if the entire exam will be recorded and the parties will each get a copy.  What’s more, the parties would have to agree ahead of time that there would be no communication of any sort between the QME and the injured worker that was NOT recorded in both video and audio.

What do you think, dear readers?  Would you be tempted by an offer such as this?

Now to the three applicant attorneys still speaking to me… what do you think?  Would you allow your client to be examined over telemedicine?  Would you allow it to be recorded?