Happy Wednesday, dear readers!

How are we doing?  Has anyone had a run in with those giant Asian murder hornets yet?  Well, as scary as it is, remember that old Pharaoh managed to survive 10 plagues, so let’s try to keep our chins up!

Well while we’re all struggling to make our way back to normal, the department of industrial relations posted the proposed regulations for QME evaluations during the crisis.

They are not in effect as of this posting, but anticipated to be effective on or about May 14, 2020. 

The regulations allow a presently scheduled in-person QME or AME examination to be rescheduled up to 90 days after all stay-at-home and similar regulations are lifted.  It also provides that even beforehand, a medical evaluator to perform certain tasks such as reviewing records, conducting phone or video interviews of the applicant, and then conduct the in-person examination after the stay-at-home orders are lifted. 

As per the regulations, the parties must provide records to the QME or AME at least 10 days prior to the tele-medicine exam.

Correction: Thanks to reader I.F. for pointing out that the fee schedule regs were stricken from the proposed language after a response from the WC community.

The regulations also have proposed fee schedule for the services –
writing the summary of the tele-medicine interview and records reviewed will be
a flat rate of $650, including the first 200 pages not previously
reviewed.  The regulations then allow charging $3 per page for pages
201-1,700, so long as those records were not previously reviewed in an exam,
and then $2 per page for everything in excess of 1700 pages.  Finally, the
face-to-face evaluation when all this is over will cost $1,316.25.

So, if the QME does a phone interview ($650), reviews 200 pages in
medical reports and issues a report, then follows up with an in-person
examination ($1,316.25) and, presumably, issues a second report following the
in-person examination, the total fee would be $1,966.25.

The proposed regulations also provide for purely tele-medicine exams, without the need for in-person follow-up, under the following conditions:

1. A physical examination is not necessary;
2. The applicant is not required to travel outside of his or her immediate household;
3. The issues to be addressed are AOE/COE, ending indemnity benefit payments, or a dispute regarding work restrictions;
4. There is agreement by the applicant, defendant, and QME/AME, in writing, to the tele-medicine exam, but the agreement cannot be “unreasonably denied” and if no agreement can be reached, the parties are to set a hearing and proceed before a Judge;
5. The visit must be consistent with the appropriate and ethical medical standards determined by the QME or AME; and
6. The QME attests that the evaluation does not require a physical exam.

Telehealth QME evaluations are to be paid at $2,015 for the exam, report, and the first 400 pages of record review; with pages 401-1700 being charged at $3 per page, and pages 1701 and onward at $2 per page.

Of interest, in-person re-evaluation after a tele-medicine QME/AME exam is to be charged at a flat rate of $503.75 (which includes an additional 200 pages of records).  And, of course, the exam is to be using video – a mere phone call is not enough.

There is a provision to allow cost modifiers for AME status instead of QME status and the use of an interpreter.  QME appointments may be set within 90 – 120 days of an evaluation request (rather than 60 – 90), and even the 120 is not a cutoff upon mutual consent by the parties in writing.

Finally, the deadlines for issuing reports are extended by 15 days.

So, here are the problems your humble blogger has with the language as written:

1. Refence is repeatedly made to the “injured worker.”  Well, doesn’t that presume a few things?  If a QME is tasked with determining AOE/COE, does that mean that these regulations don’t apply, because we first have to determine if the worker was injured?  Your humble blogger would opine that the language should instead be changed to “the claimant” or “the applicant” to the extent that an application was filed prior to obtaining a panel;
2. While a psychiatric exam might be a reasonable one to have remotely, how could one justify an orthopedic exam via tele-medicine for the purposes of AOE/COE?  If the doctor need not make a physical exam, why not just have the applicant’s attorney fill out a questionnaire and send to the doctor?  Without verifying subjective complaints through a physical exam, what’s the role for the QME in doing an exam at all?
3. The regulations propose that consent to a telemedicine QME exam cannot be “unreasonably” denied, but then don’t propose any guidance on what would be unreasonable.  Without such guidance, there will be a distinct standard for every trial judge, because by the time the WCAB has an opportunity to review the record for any semblance of uniformity, the shelter-in-place order is likely to be lifted (hopefully, at least)
4. There is no provision for video-recording the examination, even though the very act of telemedicine lends itself to such an approach and the technology is readily available.  Many of the concerns that parties have with a QME, whether applicant or defendant, is that the final report will not reflect the reality of the situation.  Perhaps the defense-leaning QME will not properly record all the subjective complaints; perhaps the applicant-leaning QME will guide the injured worker into volunteering the necessary complaints to justify higher ratings. 
   
   With a fully recorded exchange between QME and claimant, those fears could be assuaged and could only serve to bolster the validity of the examination. Unfortunately, the proposed regulars are not seizing upon this by requiring video-recorded of the exam absent waiver by both parties.

What do you think, dear readers?  Is this the inevitable destination of our beloved workers’ compensation system, or is there hoping for correcting our trajectory?