WCDefenseCA

And we’re back for another glorious Wednesday in California’s workers’ compensation swamp, dear readers. 

If you’ve been waiting for the emergency telehealth rules to expire, your humble blogger has some rather bad news for you, dear readers.  While the current 8 CCR 46.3 are set to expire on October 18, 2022, the DWC intends to extend the regulations another 90 days.

What’s important about these regulations?  The regulations allow QMEs and AMEs to conduct medical-legal evaluations under certain conditions.  Previously, Rule 34(b) only allowed examinations to be conducted physically in the office of the QME or AME.

Lots of your humble blogger’s colleagues have objections to telemedicine med-legal examinations, and your humble blogger certainly sees merit in these arguments – a physical exam cannot be properly done over video, nor can range of motion be adequately measured; an examinee can be fed information by someone off screen or terminate the evaluation abruptly and claim technical difficulties.

Naturally, some folks in the workers’ compensation community are cheering the anticipated end of telemedicine examination.

If the WCAB proceeds with extending the telemedicine regulation, we can expect the status quo for another 90 days afterwards, unless the regulation is made permanent, rather than part of the “emergency.”

As my well-informed readers will recall, the WCAB recently had attorneys return to in-person trials and expedited hearings back in March of this year.  So, your humble blogger can’t help but ask… what is the difference between the two?  What compelling need is there for in-person trials that is not needed for med-legal examinations?  Or, by contrast, what makes med-legal examinations effective when conducted via telemedicine that doesn’t equally apply to in-person trials?

As any Canadian Goose farmer will tell you in between giant mouthfuls of maple syrup and glances at the local Canadian hockey game, what is good for the goose is good for the gander.

In any case, dear readers, I think we can all feel it in the air.  As the panic of the pandemic is dissipating and we’re all getting on with our lives – returning to normal, rather than arriving at a “new” normal – we are coming to a very important fork in the road: is workers’ compensation going to go effectively remote, with video deposition, telemedicine, and video-trials, or will we revert back to an in-person system?

Happy Monday dear readers!

Here we are again, slugging through our beloved swamp of California’s workers’ compensation system.  Your humble blogger brings you a panel decision today which touches on everyone’s favorite subject: panel disputes!  Indeed, when the California legislature deemed fit to strip parties of their rights to retain their own experts as part of the SB-899 reforms, the car-salesman pitch was a savings in costs.  I wonder how much money the system is saved having to litigate every panel request and specialty.

Anywho, let’s take a look at the panel decision in the case of Ceballos v. Access to Independence of San Diego.  The issue here was, of course, yet another panel dispute.  Applicant was evaluated by a psychology PQME in 2019.  When defendant tried to set a re-evaluation in December of 2020, the QME advised she was only willing to engage in a remote, telemedicine evaluation. 

Defendant requested a replacement panel on two grounds – the first that because the QME was unwilling to do an in-person evaluation, and the second because no appointment was available within 90 days of the request as per rule 31.5(a)(2). 

Applicant’s counsel objected to the replacement panel request and filed a DOR, and the matter eventually proceeded to trial.  The WCJ held that defendant was not entitled to a replacement panel and the WCAB concurred.  Relying on Rule 46.2 the WCAB noted that the rule provided that a party cannot be unreasonably denied, and that the remedy for an alleged unreasonable denial was to file a DOR and bring this to the WCAB for a hearing.  The WCAB noted that a replacement panel was not the appropriate remedy, but rather a hearing by the WCAB.

The WCAB also held that the time limits for an evaluation in rule 31.5 apply to an initial evaluation, and not subsequent re-evaluations.

So, a few thoughts on this.  First off, your humble blogger agrees with the WCAB opinion in Ceballos of course that agreement to telemedicine cannot be unreasonable denied.  But, with that in mind, what is a reasonable basis upon which to object to telemedicine?  If the QME can observe the applicant via the computer screen and hear the applicant via the audio functions, what would be the hesitation.  Now, your humble blogger would be among the first to object to a telemedicine QME evaluation for an orthopedic issue – a doctor cannot effectively take measurements of range of motion or check for Waddell’s signs of magnification over a ZOOM conference.  But with a psyche evaluation, telemedicine seems appropriate. 

What’s more, telemedicine presents a feasible opportunity for the defense community to test its rights to send a nurse case manager to observe the evaluation, and see if interpretation of the law can be forced to allow recording of a psyche exam by the defense, as discussed here.

But, on to the other point by the WCAB.  Is the limit of 60-90 days to set an evaluation really only for the initial examination?  Can the parties really be held hostage by a QME who won’t re-evaluate applicant for a year or two?  The WCAB’s decision in Ceballos focused on the language in 31.5(a)(2), specifically “a QME on the panel issued cannot schedule an examination for the employee within sixty (60) days of the initial request for an appointment” (emphasis added) and cited the panel decision of Cienfuegos v. Fountain Valley School District, a 2011 panel opinion.  This same reasoning is applied in the 2019 panel decision of Gustafson v. City of Mountain View.

So, what is a party to do when the QME cannot or will not set a re-evaluation within a reasonable time?  Well, section 31.5(a)(6) does provide a catch-all: “the evaluator who previously reported in the case is no longer available.”  Granted, it’s bit of a stretch, but if the WCAB interprets 31.5(a)(2) to apply only to initial evaluations, then perhaps a QME that refuses to provide a reasonable re-evaluation date is “unavailable” under section 31.5(a)(6).

What do you think, dear readers?  Does this interpretation violate the California constitution’s requirement to “accomplish substantial justice in all cases expeditiously”? 

Don’t be shy, dear readers… tell me what you really think!

Alrighty dear readers! It is Wednesday and we are powering through this week like your humble blogger used to power through all-you-can-eat sushi-boat before COVID19, dignity, and middle age but a cruel and regrettable Kibosh on such practices.

So, odds are pretty good that you’re getting at least some reports reflecting PTP visits through tele-medicine.  Sometimes it’s a phone conversation.  Sometimes it’s a video-conference.  I suspect that, sometimes, nothing happens at all but the shadier members of the medical community just can’t help but routinely bill.  Hopefully, due to the diligence of the defense community, and the zeal of our prosecutors will keep that to a minimum.

Telemedicine, as vital as it is during this period of shelter-in-place, has its limitations.  While a psychiatric QME examination might very well be done over video-conference, a physical exam is not so readily performed.  Perhaps the PTP can prescribe medication, but probably can’t administer an injection, right?  So, about that…

Inverse.com has an article about an experimental “surgery” performed on a cadaver by Italian physicians from 9 miles away.  Assistants set up the cadaver and the robots, and then surgeons wearing 3D headsets and using robots controlled over the internet performed the surgery.  The lag between command and response was negligible and did not appear to affect the performance of the surgeons.  Pretty cool, huh?

What does this mean for us in the workers’ compensation world? 

Well, the advantages of tele-medicine are many.  A doctor in one geographic area can provide service to many geographic areas.  The WCAB already uses remote Judges and court reporters as necessary.  When one location is becoming overwhelmed, a less-congested venue can fill in and help.  

Could this approach be used for more invasive procedures?  Can an injured worker report to a clinic and have epidural injections remotely controlled by a doctor?  Could chiropractic manipulations be controlled and guided by a remote chiropractor?

Fee schedule issues are an ongoing point of contention within our beloved workers’ compensation system.   Physicians naturally want to be paid more for their services, and carriers naturally want to pay less.  What if the fees stayed the same but this approach significantly reduced provided overhead and increased capacity for more services?

Laugh all you want, dear readers, but it doesn’t look like California’s Shelter-in-Place approach is going away before the flu season, and we’re likely to be hit by the perfect storm at that point: kids returning to school, businesses reopening out of desperation, and influenza resurging as is tradition.  Technology may, yet again, be the answer.

Now, if you’ll excuse me, your humble blogger’s Roomba has yet again lost its battle with the curtains, which I’m sure, in no way, reflects on the prospects of success for robotic surgeries.

Straight on till Friday, dear readers!