On April 3rd the Department of Workers’ Compensation (DWC) issued a notice of public hearing for QME regulations. That hearing is set for 10 a.m. May 22, 2015 in Oakland (for those of you passionate enough about the panel process to attend). The full notice may be found at: http://www.dir.ca.gov/DIRNews/2015/2015-28.pdf.
The new regulations are designed to implement an online process for represented initial panel requests. Anybody who has been along for the bumpy ride that has been EAMS might reasonably be concerned about a new online process (in spite of the promised efficiency gains). So, keeping in mind that all we have at the moment is a draft, let’s take a stroll through the proposed regulations to see what the new process is likely to look like.
If you’re reading this, you could probably complete a panel request blindfolded with your left hand while your right hand puts the finishing touches on an IMR submission. You’ll feel right at home with the electronic version. In addition to names and addresses for the attorneys, employer, and applicant, the electronic form will have fields for: date of injury, claim number, requesting party, reason for the QME request, dispute type, name of treating physician, date of report being objected to, date of the objection letter, specialty of treating physician, QME specialty requested, and opposing party’s QME specialty choice. If this sounds familiar, it’s because it is exactly what is on the current paper Form 106. It may very well be that the electronic version of the form simply has a shiny new “submit” button where there had previously only been an option to print.
As for that paper form, it’s being updated for January 1, 2005 and older dates of injury, but for any subsequent dates the electronic form is mandated. Per draft Regulation 30(b):
Requests for an initial QME panel in a represented case, for all cases with a date of injury on or after January 1, 2005 shall be submitted electronically utilizing the Division of Workers’ Compensation internet site at www.dwc.ca.gov.
To that form we’ll be able to upload and attach a 4060 panel request or the objection notice that triggered the medical-legal process under Labor Code 4061 or 4062 (draft Regulation 30(b)(2)). There is no enumeration of any other supporting documents that may be uploaded, so those of us who were in a habit of sending a cover letter or the actual medical reporting along with our panel request may not be able to upload such supporting documents.
Once the online form is completed, it is mandated that a paper copy be printed and served on opposing counsel within one day of completion with a proof of service.
Proposed regulation (b)(4) acknowledges that the internet never sleeps:
Requests may be made twenty-four hours a day, seven days a week. Requests made on Saturday, Sunday or a holiday will be deemed to have been made the next business day. Requests made Monday through Friday after 5:00 p.m. and before 12:00 a.m. will be deemed to have been made the next business day and requests made between 12:00 a.m. and 8:00 a.m. will be deemed to have been made 8:00 a.m. of the same business day.
Once submitted, (b)(5) tells us that the QME panel selection will be “generated automatically.” Hopefully they are more “automatic” than the current system. The specialty, according to 30.5, is to be made by the requestor. Any dispute is to be resolved per 31.1. Under the old version of 31.1, there was language addressing concurrent panel requests in different specialties. The draft version of 31.1 removes this language, with the assumption being that with an electronic submission multiple requests will not be possible. Instead, “disputes regarding the validity of panel requests may be resolved by a Workers’ Compensation Administrative Law Judge” while “disputes regarding the appropriateness of the specialty designated shall be resolved pursuant to section 31.5(a)(10).” That process requires submission of the Doctor’s First Report as well as the latest PR-2 or narrative for the Medical Director to review and render a determination regarding the specialty dispute. Insofar as the electronic system is only for initial panel requests, the specialty dispute resolution process and the submission of supporting documents will likely still need to be conducted by mail.
Under draft 31.1(c), if the Medical Director doesn’t issue a panel within thirty calendar days the parties may request an Order from a WCJ and that Order may specify the specialty of the panel. While clearly intended to give the parties an option to secure a panel if the new system breaks down, it is inevitable that parties will seek to contest the specialty choice at the hearing at which the Order for a panel is sought. Have your objection and medical reporting handy!
As it stands, it appears that the actual panel list will still be mailed to the parties. There is no indication that instantaneous, online generation of the panel list itself is in the pipeline. It is too bad, instantaneous panel generation with a requirement that the requesting party serve the list, presumably along with that party’s strike, would remove the last bit of lag in the system assuming that the submission component being rolled out works as intended.
If it does work as intended, there is certainly the potential to reduce the time from objection to receipt of panel, which will make everyone happy. Naturally, there will be additional concerns and questions that will need to get sorted out. How will a requesting party know a panel has already been requested? Will that notice be available before attempting to submit a request? Will the system itself hold up? What if a submission does not go through and opposing counsel gets their request in first? What happens if your request is submitted but not served the very next day?
That’s it for now, with more to follow as the regulations move towards their final form. Like most new systems, we won’t know how well it will work until it goes live. If you’d like to review the draft regulations yourself they can be found here: http://www.dir.ca.gov/dwc/DWCPropRegs/QME-Regulations/TextOfRegulations.pdf
Ryan T. Alves is a Partner and Managing Attorney of Bradford & Barthel Sacramento location. He can be reached at (916) 569-0790 or via email at ralves@bradfordbarthel.com.
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