A new legislative proposal would have the Division of Workers’ Compensation standardize QME reporting with joint evaluation request forms and QME report templates.
Rep. Greg Wallis (R-San Jose) introduced Assembly Bill 1293, which proposes creating new forms in an attempt to eliminate confusion amid QME reporting. The bill is still in its early stages and is just a proposal at this time – to become law, it would need to be approved by the General Assembly and the state Senate, and signed into law by Gov. Gavin Newsom.
AB 1293 was amended at a recent Assembly Insurance Committee hearing, and was referred back to the Committee for a future hearing.
The bill would require the Administrative Director of the DWC to:
- Make a joint medical evaluation request form.
- Make a template form for QME reports, to help QMEs include all necessary statutory and regulatory requirements.
- Establish a method for grading the quality of QME reporting, which would also include standards as to whether QME reports are a) incomplete and whether they are b) insubstantial evidence on PD or apportionment. This would also incorporate use of Findings and Award and Opinions on Decision.
- Create new regulations regarding all of the above.
Let’s take a look at the pros and cons of each one of these categories in greater detail.
JOINT MEDICAL EVALUATION REQUEST FORM
The creation of a joint medical evaluation request form is an attempt to avoid gamesmanship by parties. For instance, some applicant’s attorneys firms like to schedule QME evaluations as early as possible, but won’t agree to schedule depositions until as late as possible. When used intentionally and improperly, that is clearly an attempt to hinder discovery.
While making a joint evaluation request form could eliminate that type of gamesmanship, it also could invite different types of gamesmanship by other parties – such as refusing to set just because they don’t like the QME, or insisting on impossible dates/times to intentionally be obstructive.
TEMPLATE FORM FOR QME REPORTS TO FOLLOW
The template for QME reports has its pros and its cons. One pro is that it could encourage QMEs to address all important topics in a report. However, a QME who does not want to address all of those issues could just write “deferred until MMI” like many already do. This could also create new areas for gamesmanship as well.
It could also lead to requiring a QME to comment on unnecessary topics, when for example a supplemental report request only asks a doctor to comment on one thing. This leads to unnecessary report writing and unnecessary billing.
ESTABLISHING A METHOD TO GRADE QME REPORTING
This seems like a well-intentioned request, and it could lead to improvement in how reports are written. It has multiple cons, however.
First of all, it could be used to attack apportionment and increase permanent disability, despite the well-known mantra that employers should only be liable for industrial injuries (and not nonindustrial permanent disability).
Secondly, this proposal begs the question of “why wouldn’t this apply to primary treating physicians too?” After all, the DWC does have regulations and oversight over primary treating physicians too (just think of CCR section 9785).
Third, this also begs the question of “why would it only look at PD and apportionment?” For instance, we have physicians (both treaters and QMEs) going rogue and:
- Issuing endless diagnoses which are clearly an attempt to drive up billing, despite numerous diagnoses clearly being outside of their specialty and having no medical basis.
- Refusing to MMI, even though most other doctors have said applicant was MMI years ago.
- Requesting unrelated diagnostic testing for body parts not pled in the application for adjudication.
- Requesting clearly unnecessary treatment that the applicant doesn’t even need or want.
As you can see, your humble blogger’s sneaking suspicion is that there appears to be interest in punishing QMEs for finding apportionment, while letting sketchy providers continue to run amok. That doesn’t sit well for those of us on the defense side of the aisle.
CONCLUSION
This bill still has a long way to go. It is possible that it gets through the Legislature. If it were to pass, we would like to see the DWC address some of the concerns raised above to avoid abuse and gamesmanship. The DWC could do this through its regulatory rulemaking authority.
We at the Law Offices of Bradford and Barthel will be happy to keep you updated on this new bill, as well as other legislative proposals.
Got a question about workers’ compensation defense issues? Feel free to contact John P. Kamin. Mr. Kamin is a workers’ compensation defense attorney and partner at Bradford & Barthel’s Woodland Hills location, where he monitors the recent legislative affairs as the firm’s Director of the Editorial Board. Mr. Kamin previously worked as a journalist for WorkCompCentral, where he reported on work-related injuries in all 50 states. Please feel free to contact John at jkamin@bradfordbarthel.com or at (818) 654-0411.
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