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COA (again) Holds That IMR Need Not Be Timely to be Valid

July 24th, 2017 No comments

Happy Monday, dear readers!

Your humble blogger knows full well that he is, far too often, charged with bringing bad news to his beloved workers’ compensation community.  Well, remember, dear readers, that even the crocodile shouldn’t be blamed for the shade in the swamp.

With that in mind, I have some good though belated news to report to you.  Sometimes, confirmation of what we all knew can be just as pleasant, even if not surprising.  The Court of Appeal, in an unpublished decision, ruled that IMR need not be timely to be valid.  The case, of course, is Baker v. WCAB/Sierra Pacific Fleet Services, and, though it is unpublished, it is still of considerable benefit to the defense community.

The facts are pretty simple – applicant sustained an admitted injury and sought medical treatment.  The medical treatment request went through UR, which recommended against certifying the request.  The appeal to IMR followed and, with IMR upholding the UR denial, applicant challenged IMR’s determination because it was not made within 30 days of the appeal.

The WCJ, WCAB, and then the Court of Appeal all agreed that, as the 30 day timeline was directory and not mandatory, so the IMR stood.

This isn’t anything new, of course.  The Court of Appeal in Ramirez held to the same conclusion.

So what’s so great about an unpublished case?  After all, we can’t cite an unpublished case, right?

Well, we’ve had Stevens and Margaris  tell us that IMR is constitutional and speculate that a timely IMR determination is not necessary to be binding.  We’ve had Ramirez and now Baker tell us for certain that IMR need not be timely to be valid and binding.

In other words, the Courts of Appeal have sent a pretty clear message to every WCJ and WCAB commissioner in the land of, as one WCJ would say “a preview of coming attractions.”

Let’s look at big picture, for a moment – the disputed medical treatment in Baker? Pennsaid and Norco.  Drugs.  We’re not talking a whole lot of money in the grand scheme of things.  In fact, Mr. Baker’s attorney might have had more luck paying for these drugs out of pocket rather than pouring in the time and money to go to the Court of Appeal.  But it wasn’t about the Norco or the Pennsaid – it was about undermining IMR.

IMR is a wonderful thing – applicant attorneys used to be able to over-inflate future medical valuation by threatening to take every UR determination to the QME or AME, and run up the bill for the defense.  No longer – now you’re looking at a few hundred dollars every year on IMR – hardly worth the applicant attorney’s effort.

So far, so good, dear readers – have a great weekend!

 

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COA Upholds IMR Again!

March 31st, 2017 No comments

Happy Friday, dear readers!

Your humble blogger is always happy to bring you good news, especially on a Friday.

Due to the hard work and diligence of the appellate counsel for State Compensation Insurance Fund, the Court of Appeal for the third appellate district has issued a ruling confirming what we all knew, what applicant attorneys dreaded, and what the other Courts of Appeal have already found: IMR is constitutional!

In the case of Ramirez v. WCAB, applicant/appellant “challenges the constitutionality of the independent medical review process.  He claims it violates the state Constitution’s separation of powers clause, and state and federal principles of procedural due process.”  In response the Court of Appeal, in a published decision, concluded “the Legislature’s plenary power over the workers’ compensation system precludes any separation of powers violation, and the process afforded workers under the system afford sufficient opportunity to present evidence and be heard.”

Don’t look so surprised, dear readers – this is just part of a trend, and as we all know, a trend is your friend!

Stevens held that IMR is constitutional, even when late, and Margaris seemed to confirm this as well.

I won’t go into the specific reasoning by the Court of Appeal because the ruling is published and controlling – IMR will continue to be the sole arena for determining appropriateness of medical treatment for timely denied or modified UR, and this determination will be taken out of the hands of QMEs, AMEs, lawyers, and judges.

For better or for worse, IMR will continue to be an instrument to reduce employer liability for medical treatment and for litigation costs associated with the issue.  Furthermore, because IMR can be late, there appears to be little incentive to expand the capacity or volume of IMR, because it is of benefit to the employers to delay an IMR determination as much as possible: after all, wouldn’t you rather pay for something later than earlier?

Well, here’s the downside – if the medical treatment is necessary to bring the injured worker to a P&S state, then the employer might be stuck paying TTD until IMR issues a decision.  Fortunately, there’s an easy solution to this, which involves taking a glance and the proposed treatment and authorizing it if it is likely to bring about a P&S status.  After all, if you’re going to authorize the treatment anyway, who is harmed when you fail to do the UR (except the bank account of the UR vendor)?

But, when it comes time to negotiate a C&R, the prospect of having superfluous and unnecessary treatment being reduced by IMR should make the demands more reasonable, which is good for the defense.

So, good news, dear readers – enjoy your weekend!

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WCJ; WCAB; COA – all uphold that IMR can be late and still binding

November 4th, 2016 No comments

Happy Friday, dear readers!

Your humble blogger congratulates you on surviving another week – one riddled with Halloween trick-or-treaters and the final stretch of the Presidential election.  (Your humble blogger is, of course, writing in “giant meteor” in an effort to end it all…)

Anywho, I have some news today that’s fairly reassuring: it looks like the Court of Appeals’ decision in Margaris (IMR can be as late as it wants!) is being given due weight.

Recently, the Court of Appeal denied applicant’s petition for a writ of review of the WCAB’s reversal of a WCJ’s ruling that IMR is invalid if late.  Got that?

Ok, in case you’ve checked out for the weekend, it goes like this:

WCJ: IMR is late, but I still can’t award medical care!
Applicant: Oh yeah? I’ll show you… To the Recon Department!
WCAB: WCJ is right – even if late, only UR/IMR can award medical care.
Applicant: Oh yeah? I’ll show you… To the Court of Appeal!
CoA: Did I stutter? IMR CAN BE LATE!

Ok, so what happened in the case of Tyni v. City of Montebello?  Applicant sustained an admitted injury and his primary treating physician requested treatment that UR found to be unnecessary in a timely UR denial.  Applicant sought IMR and, when IMR did not render a decision 30 days of the application for IMR (the WCAB corrected this on reconsideration – it’s 30 days from receipt of the application and supporting documentation; see Labor Code section 4610.6(d)) he sought to invoke the WCAB’s jurisdiction to decide whether he should be entitled to the requested treatment.

At trial, the WCJ ruled that even if it is late, the determination is still confined to IMR, a ruling bolstered by the Court of Appeal in Stevens (somewhat in dicta) and Margaris as mentioned above.  Recon only reversed to correct the timeline as above, but otherwise upheld the WCJ: effectively, applicant’s request for treatment can linger for all eternity.

In this case, of course, the determination came some four months (rather than 30 days) after the application, but that is of no importance.

Now, I understand what some of my readers will say, either sincerely or sarcastically: how could this be a good system? How could employers and insurers reap the benefits of administrative delays while injured workers linger without their medical treatment?

Well your humble blogger has been told by some applicant attorneys that regardless how small or how big, now necessary or how wasteful, they will request IMR for every single denied UR to purposefully drive up costs and to clog IMR with a flood of requests.

“Settle with me now,” they say “or you’ll pay as much in IMR costs and compliance.”

Well, the rule of unintended consequences applies here too.  Guess what?  All those petty IMR requests that were initiated as punitive measures have clogged up the system to the point where even legitimately injured workers can’t have their treatment requests evaluated on time.  Even Procrustes had to eventually sleep in the bed he made.

Long story short, dear readers – it looks like there’s no inventive reason the WCAB is accepting for why IMR should be deemed invalid if untimely.  So let’s keep UR churning out timely and let IMR do it’s thing.

Have a good weekend!

 

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IMR Can Be Late! Defendants Rejoice!

June 24th, 2016 No comments

Hello dear readers!

Your humble blogger is bursting with delight to bring you news of a great victory for defendants everywhere: IMR is not bound by time limitations!

The Court of Appeal ruled in the matter of CHP v. WCAB, Margaris that “the 30-day time limit in section 4610.6, subdivision (d), is directory and, accordingly, an untimely IMR determination is valid and binding upon the parties as the final determination of the director.”  What does that mean?  That means that it doesn’t matter how long it takes IMR to decide on an issue – the parties must sit and wait and be bound by the eventual determination.

IMR Is Never Late. Nor is it early. It arrives precisely when it means to.

IMR Is Never Late. Nor is it early. It arrives precisely when it means to.

Why is this such a good thing for defendants? Well, medical treatment isn’t medical treatment to the defense – it’s money.  Every day that the defendant does not have to pay for a treatment that is medically unnecessary is another day that the defendant gets to protect its money from wasteful spending.  Less money out means lower rates and less exposure for businesses and employers.  That, of course, means lower prices for the rest of us.

The Court of Appeal noted, of course, that it was implementing “the Legislature’s stated policy that decisions regarding the necessity and appropriateness of medical treatment should be made by doctors, not judges.”

As my learned and diligent readers may recall, the Court of Appeal held in Stevens that not only is IMR constitutional, but that there is no mechanism for enforcing the time limits imposed by section 4610.6 – even a late IMR determination is constitutional.

One of the great things about this is that the fact that IMR has more time to make a determination once UR has denied treatment is that it puts parties in the proper posture to settle their case.  Yes, the applicant wants a particular course of treatment.  No, it isn’t medically necessary or reasonable.  But, through the magic of money, the parties can agree to disagree – an injured worker can sell out the treatment to which he is entitled but doesn’t want, in order to buy the treatment he wants but to which he isn’t entitled.

And the best part is – everybody walks away happy and a winner.

Have a great weekend, folks!

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IMR Thrown Out Over Alleged Factual Inconsistencies In Report

May 11th, 2016 No comments

Happy Wednesday, dear readers!

Your humble blogger brings you a case that’s been making the rounds of proverbial water cooler talk recently – Gonzalez-Ornelas v. County of Riverside.  It is, of course, on everyone’s favorite topic: IMR.

Applicant had sustained admitted knee injuries, and her doctor requested authorization for Synvisc injections to both knees.  UR denied the request and applicant went the IMR route, which upheld the UR denial.  Here’s where things get interesting…

The IMR report had “reviewed and considered” the report of a prior treating physician noting that conservative treatment had failed to help her symptoms, but Synvisc injections, over the past years, had in fact helped her.  However, the IMR reviewer noted that the UR decision should be upheld because there was no documentation that conservative therapies had not helped.

Applicant argued that the IMR result should be thrown out, and a re-review granted, under Labor Code section 4610.6(i), on the basis that the report was procured by fraud (because the IMR reviewer said he read the prior treating physician’s report, but didn’t really); or mistake of fact in that the IMR reviewer forgot the contents of the report when issuing his decision.

The WCJ rejected applicant’s argument, reasoning that applicant was proceeding on a flawed presumption, to wit, no one could read the treating physician’s report and disagree with the physician’s conclusions.

Not so, argued the WCJ in the face of applicant’s petition for reconsideration: there was nothing to suggest actual fraud, and the weight that should be given to the treating physician’s medical records are not common knowledge, but the domain of experts, which excludes any defects from section 4610.6(i) as argued by applicant.

The WCAB reversed, reasoning that the IMR case summary itself concludes that there was a history of arthritis to the knees, and that there were still complaints of pain even after conservative care.  The WCAB noted that “[d]enying authorization based upon a finding that there is ‘no documentation’ when such documentation is, in fact, in the possession of the IMR reviewer is” plainly erroneous and not the realm of expert analysis or opinion.

The WCAB awarded applicant a new review by IMR, and ordered the Administrative Director to provide a new IMR report “in accordance with this decision” which would, presumably, recognize, from page 7 of the panel opinion, “[a]s part of the new IMR, the ODG should be applied based upon the documentation in the record, which as discussed above, appears to support the provision of the Synvisc injections.”

Just think about this for a moment, dear readers.  Is the WCAB telling IMR how it must rule on a UR determination?  Because, if your humble blogger’s very biased, highly selective, and extremely unreliable memory serves… the whole point in not only establishing IMR but also giving it some teeth was to take medical determinations out  of the hands of the lawyers at the WCAB.

Here’s something interesting to watch: what happens when IMR comes back and says that even though there is medical documentation of conservative treatment being ineffective, the documentation is insufficient?  Will the WCAB just order defendant to provide the treatment?

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CWCI Study: Roughly 85% of UR Upheld by IMR

February 22nd, 2016 No comments

Hello, dear readers!  It’s a glorious Monday Morning, and your humble blogger has some rather interesting news for you:  it appears that about 85% of UR denials are upheld (and, sometimes, even held up) by IMR.

Insurance Journal reports that CWCI’s study concludes that if you get a UR denial, you are likely to get an IMR affirmation.

Thinking about it in terms of dollars and sense (see what I did there?) if you’re paying your UR, whether the treatment is denied or recommended, and you’re paying your IMR vendor, whether the treatment is denied or recommended, perhaps it’s time to run the numbers again.

What’s the best formula for deciding whether to override a UR denial?

If [cost of IMR] x .85 > cost of treatment, override it!

On the bright side, things like physical therapy, chiropractic visits, and acupuncture are limited, by statute, to 24 (see Labor Code section 4604.5(c)(1)), so even if you override UR, after 24 visits you  might not have to provide the treatment anyway.  But, as the conventional wisdom goes, it might make sense, globally, to pre-authorize certain treatments so that you can even skip out on the UR bill too – odds are that certain injuries are going to require physical therapy or prescription medication, etc., so why suffer the UR bill when you’ll likely have to provide it anyway?

In summary, dear readers, this is pretty good news, at least for now.  As you will recall, IMR was dearly paid for with a lot of momentum to get SB-863 on the Governor’s desk and signed, and the battle still rages in the courts to about its constitutionality.  Although, as you may have heard, the Court of Appeal in Stevens held that IMR, even when late, is constitutional and the California Supreme Court, on February 17, 2016, denied to review it.

What do you think, dear readers?  Is it worth it to send every single RFA to UR and to allow an IMR?  Or would defendants be wise in adopting a measured response?

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COA: IMR, Early, On Time, or Late, is Constitutional!

October 30th, 2015 No comments

Good news, dear readers!

In case you hadn’t heard, the Court of Appeal, in the case of Stevens v. WCAB, has found California’s IMR process to be constitutional and valid.

In Stevens, a case touched upon a time or two by this most humble of blogs, applicant’s treating physician requested various medications to alleviate her pain stemming from an accepted injury, and also the services of a home health aide for 40 hours per week.  The request was denied by UR and the denial was confirmed by internal review.  Applicant then requested IMR which was also upheld the original UR denial.

The applicant then turned to the WCAB, but neither the WCJ nor the WCAB were of any help, ruling that there is no jurisdiction to invalidate the UR and IMR decision.

The Court of Appeal also ruled that IMR is constitutional.  After an excellent history of California’ workers’ compensation system and the recent reforms, the COA ruled that the Legislature, in its wisdom, put medical necessity determinations in the hands of physicians, and there is no violation of due process when the injured worker can still request review of non-scientific determinations.

Basically, if the doc got the facts wrong, the WCAB can swoop in and order a new IMR; if the doc got the facts right, neither Judges nor Commissioners are in a position to challenge the finding.

The Stevens opinion also discussed the fact that there is no mechanism for enforcing timeliness of IMR, essentially approving the Arrendondo holding.  (But, please note the Southard decision, where a split majority held that untimely IMR grants the WCAB authority to review and authorize medical treatment).  Stevens reasoned that “[w]e are unconvinced that the lack of a mechanism to enforce time limits renders the IMR process unconstitutional.  In the absence of a penalty, consequence, or contrary intent, a time limit is typically considered to be directory, and its violation does not require the invalidation of the action to which the time limit applies.”  (Page 26).

The question for practitioners at the Board in the coming months will be whether the COA’s opinion that a blow deadline doesn’t render IMR unconstitutional means that a blow deadline is not authority for the WCAB to take matters into its own hands.

It’s an interesting (but somewhat lengthy) read if you’ve got the time for it, but above are the main take-aways.

What’s next?  There are enough interested parties in this case that we can probably expect the Supreme Court to get a knock on its proverbial door soon enough (at times, your humble blogger wonders if the California Supreme Court will eventually overrule the entire workers’ comp system so that it can stop reviewing WC cases), but if the Justices will answer, your humble blogger can’t say.

For now, though, IMR continues to rule, and employers and insurers can continue to reap the benefits therefrom.

Have a great weekend, dear readers!

Please remember, folks, Saturday is Halloween – kids are out even after dark, so drive carefully!

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WCAB En Banc: +5 Days for IMR Appeal AND Panel Strike

September 18th, 2015 1 comment

Hello, dear readers!

A happy Friday to one and all!  Just yesterday, the WCAB issued an en banc ruling in the matter of Matute v. Los Angeles Unified School District.  Applicant had received an adverse IMR determination on November 6, 2014, and filed an appeal on December 10, 2014, exactly 34 days after the initial determination.  When the appeal was heard by a workers’ compensation Judge, it was ruled untimely because Labor Code section 4610.6(h) provides that “[a] determination of the administrative director pursuant to this section may be reviewed only by a verified appeal … served on all interested parties within 30 days of the date of mailing of the determination to the aggrieved employee or the aggrieved employer.”

The WCAB interpreted the term “mailing” as above, to mean “served by mail.”  Accordingly, the en banc opinion reversed the WCJ’s finding, as the WCJ started counting the 30 days from the date of mailing, without addition an additional 5 days for service, as per California Code of Civil Procedure section 1013(a).

Now, the basic point held in this opinion is that you get an extra five days on top of the 30 to appeal an IMR determination.  But that’s not the gem in this opinion, as far as your humble blogger is concerned.

The opinion can be applied to the panel strike process – do you have 10 days from the date of issuance of the panel to strike a name, or fifteen?  This blog commented on this post some time ago – practitioners had a writ denied case on one hand, telling them the 5-days don’t apply to panel strikes, and a panel decision from 2014 telling them that the 5-day period does apply.

Now, it appears, there is a binding en-banc approval of the holding that parties have an additional 5 days to contemplate and strike a name from a panel.  (See page 6, footnote 10).

Don’t get your humble blogger wrong, dear readers – this isn’t all bad or all good.  On the one hand, IMR tends to overwhelmingly uphold UR determinations, so giving an applicant an additional 5 days to appeal those decisions isn’t going to be a particularly good thing.  On the other hand, an IMR appeal can only really provide a second review to the applicant, which will still likely have the same result.  As for the 5-day application to the striking process, the extra time is not particularly important.  Most of us don’t take the full 10 days to decide who we want to strike from the panel.  But, the good thing is, there will be no more uncertainty on this point: now everyone knows exactly how much time you have to issue your strike, and the folks that issue their strike on day 14 don’t need to litigate the issue with the folks that issue their strikes on day 9.

On the subject of IMR, your humble blogger would much rather see an en banc confirmation that an IMR determination issued more than 45 days after the initial request is still valid and binding.  But, I guess your humble blogger will just have to wait, hope, and keep checking under the Soviet-non-religious-secular-new-years-tree.

 

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WCAB: IMR Need Not be Timely to be Binding

September 14th, 2015 No comments

Good Morning, dear readers!  Your humble blogger has missed you very much, and is so happy to be back on your screen and your e-mail in-box.  Just last week, as your humble blogger walked whistling to himself and thinking of more blog post to write, he was confronted with an angry crowd.  At first I thought it was a host of applicants’ attorneys, or possibly disgruntled lien claimants.  It actually turns out that a recent rage-a-holics anonymous meeting was abruptly cancelled because someone forgot to bring coffee and doughnuts, and your humble blogger just happened to be in the wrong place at the wrong time.

Freshly released from intensive care and after reading several notes that started apologizing and quickly escalated into threatening before calming down to apologizing again, your humble blogger is back and ready for action!

Today, I bring you the story that will warm the heart of anyone who loves IMR – the case of Arredondo v. Tri-Modal Distribution Services, Inc., recently denied review by the Court of Appeal.  Applicant’s case-in-chief was resolved via stipulated award with future medical care included, and, invoking this award, the primary treating physician requested authorization for medication, physical therapy, and a back brace.  Timely UR denied certification, and applicant appealed using the IMR process.  IMR, however, was not timely, having been requested on December 24, 2013, and only issuing an opinion on April 25, 2014, upholding the UR determination.

Applicant had scheduled an expedited hearing, and argued the IMR determination was invalid because it was untimely.  Labor Code section 4610.6(d) provides that “[t]he organization shall complete its review and make its determination in writing, and in layperson’s terms to the maximum extent practicable, within 30 days of the receipt of the request for review and supporting documentation…”  By contrast, between December 24, 2013 and April 25, 2014 there are 122 days which, pending confirmation from your humble blogger’s accountant, appears to be more than 30.

Following a trial, the WCJ concluded that the WCAB has no jurisdiction to overrule IMR based on an untimely determination, reasoning that 4610.6(g) makes an IMR determination binding on all parties, and, furthermore, the bases for appealing an IMR decision are listed in section 4610.6(h), but limits the remedy upon a successful appeal to a new IMR determination.

In considering applicant’s petition for reconsideration, the WCAB noted that the time limit for an IMR determination is actually up to 45 days – 15 days to provide the relevant information to IMR, and another 30 days after the information has been provided.   However, the WCAB affirmed the WCJ’s “determination that the WCAB does not have statutory authority to disregard the IMR determination in this case…”

Under the WCAB’s reasoning, the legislature, in enacting SB-863, meant to have medical treatment determinations made by medical professionals only.  Furthermore, the effect of the language of 4610.6(d) is meant to guide the IMR determination, rather than to invalidate the effect of the decision.  In other words, 4610.6(d) has no effect if it is disregarded.

One commissioner dissented, however, reasoning instead that IMR should be treated much like UR – if it fails to meet the timeliness requirements as laid out in the relevant statute, it loses its immunity from WCAB review and the issue of medical necessity should be resolved by the WCJ.

Does this issue seem at all familiar, dear readers?  Because your humble blogger provided a post back in June – Saunders v. Loma Linda University Medical Group – that addressed a similar issue.  In that case, a split panel found that an IMR determination that came in five months after the UR decision was referred to IMR was NOT timely and thus invalid, granting the WCAB jurisdiction to determine whether the requested treatment should be awarded.

So… what’s the answer, dear readers?  Does IMR have to come back no later than 45 days after the initial request?  Or, can IMR let the injured worker languish and wait for medical treatment?  The split in opinion between these two panel cases appears to provide a reasonable basis to seek reconsideration.

But, here’s a scenario for you to consider.  UR denies treatment and the injured worker requests IMR.  When IMR doesn’t come back two months later, the injured worker files for an expedited hearing.  The WCJ rules that, because IMR is untimely, the WCAB has jurisdiction to determine if medical treatment should be awarded as requested, but also concludes that the reasoning articulated in the UR determination is persuasive and declines to award medical treatment.  Applicant seeks reconsideration, and the WCAB reverses, awarding the medical treatment instead.  Has the defendant lost its opportunity to appeal the determination regarding jurisdiction?

Have a good week, dear readers!

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DWC: How About We e-mail Med Reports to IMR?

August 17th, 2015 1 comment

Hello, dear readers!

Your humble blogger is back,and so are you!  Are you ready to help me take on the workers’ compensation system in California one sarcastic and grossly inaccurate blog post at a time?
Well, those of you who, for some unthinkable reason, have read this blog before and have come back will recognize that your humble blogger is a big fan of technology.  Ideally, workers’ compensation will continue to modernize until all the work is done by robots and we all have the same job: sipping Oban and chuckling about how tough it used to be.
Presumably, the discussion might also include transmitting records and receiving reports from QMEs electronically, but who knows?
Your humble blogger is all for this, of course.  However, we’ve seen more than one instance where government agencies and private insurers alike have accidentally released the personal and medical information of countless injured workers.
If, ultimately, insurers are required to respond to every IMR request by electronically transmitting medical records, who will be responsible for the security of the injured worker’s privacy?  Will paper-based insurers suddenly be required to update their systems and purchase security software?  What happens if the leak is on the side of the IMR vendor?
Hopefully this will be addressed at the meeting.
What do you folks think about allowing records to be transmitted electronically to QMEs?
My take is that there are a lot of benefits: save on paper; save on postage; save on time for the PQME to get the records (we already have a 20-day delay to allow opposing counsel to review the records before they go to the PQME); and, best of all, there is a very clear record of exactly what was sent to the PQME and when.
The downside is, of course, that we would likely see even larger PQME bills for document review.  Not every QME is going to print out the records sent, and might take a slow and methodical approach to reading all the records on the screen.
What are your thoughts, dear readers?  Would you like to see a rule requiring QMEs to accept records and reports in electronic format?  Would you like them to be required to transmit their reports via e-mail?
Have a good Monday!
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